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February 18, 2013

Beating the ICC

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Earlier this week, Washington Post U.N. correspondent Colum Lynch posed this question on his Foreign Policy blog: “Have U.S. conservatives really lost the war on the International Criminal Court?” The inspiration for the question is the increasing willingness of the U.S. to tolerate, even support, references to the ICC in U.N. Security Council resolutions and the observation that “in Washington, the court faces far fewer of the fiery broadsides and political threats that marked the conservative campaign to gut it in its infancy.”

Lynch’s interesting piece provides views from both sides of the debate. But he, perhaps unintentionally, leaves the impression that the ICC is winning conservatives over. Is that the case?

Not really. Conservatives shaped U.S. policy toward the ICC over the past decade, and that policy remains largely intact. Indeed, aside from cautiously agreeing to work with the ICC on an ad hoc basis and showing more tolerance for ICC references and referrals in Security Council resolutions — changes begun under President George W. Bush — the Obama administration has continued the conservative policy it inherited. Conservatives, that is, no longer fight the ICC because they’ve won, not because they’ve lost. For instance:

  • The 2002 American Servicemembers’ Protection Act (ASPA), as amended in 2007 and 2008, significantly restricts U.S. cooperation with and support of the ICC. Both former secretary of state Hillary Clinton and current secretary of state John Kerry voted for ASPA.
  • The Obama administration has taken no action to abrogate the 2002 letter from John Bolton, then the under secretary of state for arms control and international security, to U.N. Secretary-General Kofi Annan. The letter states that “the United States does not intend to become a party to [the Rome Statute of the International Criminal Court]” and that “the United States has no legal obligations arising from its signature on December 31, 2000.”
  • The Bush administration negotiated over 100 bilateral non-surrender agreements through which other countries agree not to turn Americans over to the ICC without U.S. authorization. ICC advocates disparage these agreements, also called “Article 98 agreements” after article 98(2) of the Rome Statute, as “bilateral immunity agreements.” Yet most, if not all, of these agreements remain in force under the Obama administration.
  • The Obama administration has not pressed the Senate to ratify the treaty. Indeed, it did not include the Rome Statute on its Treaty Priority List.
  • At the 2010 Review Conference on the Rome Statute of the International Criminal Court, the Obama administration was instrumental in circumscribing the crime of “aggression” under debate there. State Department legal adviser Harold Koh summarized the outcome this way: “No U.S. national can be prosecuted for aggression so long as the U.S. remains a non-state party. And if we were to become a state party, we’d still have the option to opt out from having our nationals prosecuted for aggression. So we ensure total protection for our Armed Forces and other U.S. nationals going forward.”

The consistency of U.S. policy toward the ICC, based on decidedly conservative views, is rather remarkable considering the Democratic majorities in Congress in recent years and the election of President Barack Obama. The most significant policy change is that the U.S. now attends the meetings of the Assembly of States Parties of the International Criminal Court.

No wonder conservatives are not paying the ICC much mind. U.S. policy is already largely where they want it to be, and the Obama administration, thankfully, appears uninterested in changing it.

The ICC itself has also helped alleviate conservative concerns. For better or worse, the court has not proven terribly effective. It has completed only two trials since its creation in 2002, one of which resulted in acquittal. The court’s most significant warrants, such as those for Sudanese president Omar al-Bashir and Ugandan rebel Joseph Kony, remain outstanding. Budgetary constraints and waning support in Africa, where all of the court’s cases have been located, have led some scholars to predict that, unless the ICC implements key changes to regain the support it once had, in 10 to 15 years it may begin “withering away.”

Moreover, the ICC has avoided cases that could raise the ire of the U.S. and other major powers. However, past practice is no assurance of future behavior. ICC restraint could be quickly reversed. If the ICC were to launch formal investigations into Israeli actions in the Palestinian territories or into alleged crimes by U.S. soldiers in Afghanistan, I daresay Washington would again ring with “fiery broadsides and political threats” — and not just from conservatives.

Predicting the future is impossible. But unless the Obama administration dramatically shifts course, U.S. policy toward the ICC appears to be settled. The U.S. may not continue expressing open hostility toward the court, but it is unlikely to join any time soon or abandon the conservative policies that distance and protect America from the ICC.

— Brett D. Schaefer is the Jay Kingham Fellow in International Regulatory Affairs at the Heritage Foundation.

First appeared in National Review Online.

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