THE arrest warrant issued last week for Sudan President Omar Bashir has thrown into stark relief a question the Obama administration and Congress need to address:
What are we going to do about the International Criminal Court? The desire for a permanent criminal court to try individuals accused of crimes against humanity, war crimes and genocide has been around since the Nuremberg trials. Its creation, stalled during the Cold War, picked up momentum again in the 1990s, when the United States led the creation of war crimes tribunals for Yugoslavia and Rwanda. By 1995, the United States under President Bill Clinton had assumed a leadership role in planning for an International Criminal Court.
In 1998, most of the world’s nations gathered in Rome for final negotiations on an ICC treaty. The Clinton administration pushed hard to immunize American officials from prosecution and to give the UN Security Council a significant role in determining situations the ICC should pursue.
In the end, although more than 90 percent of the court statute was acceptable, the US was unable to secure the concessions it wanted and voted against the ICC’s founding document, the Rome Statute. Although he was disappointed in the outcome, Clinton nonetheless authorized signing the document shortly before he left office. The incoming Bush administration saw things differently. Soon after taking office, the new president ordered the Rome Statute “unsigned,” and his administration embarked on an effort to undermine the ICC, encouraging other nations to promise not to hand over Americans to its jurisdiction under any circumstance.
Led by Jesse Helms, the late Republican senator from North Carolina, Congress imposed sanctions against governments that joined the court, even cutting off military assistance to some. Congress prohibited US cooperation with the court and authorized the president to use any necessary means to rescue Americans who might be held by the court. Europeans, sensing the hostility, dubbed the law “The Hague Invasion Act.”
The ICC started operation during the summer of 2002, after the 60th government joined. Today, 108 countries are members, including most of Western Europe, Latin America and Africa, as well as Canada, Mexico, Australia and Japan. But the US hostility was slow to thaw. The time has now come for the US to become more engaged.
Consider the warrant for Bashir. The ICC undoubtedly would have benefited from US input last year, when the prosecutor was considering the warrant, and from the kind of information and analysis the United States routinely has provided to other international tribunals.
Closer engagement also would allow the US to help shape policy and legal developments in ways that meet its concerns. Today, we have little ability to influence the court’s thinking. Parties to the ICC are considering whether and how to amend the Rome Statute to include the crime of aggression — the unlawful use of military force. Our ability to shape the court’s approach to this crime is limited unless we take prompt steps to play an active role.
Bringing Congress along on the idea of increased engagement could prove difficult, and joining probably remains unlikely. Despite polls showing public support for international justice, the court is still seen as a political liability in this country. Both Democrats and Republicans in Congress have expressed concern about the court’s potential ability to interfere with American sovereignty on military and political issues.
Still, engagement with the court is possible, even without joining. The Obama administration’s first job, working with Congress, is to reverse the hostility of the past eight years. Among other things, we should sign back on to the Rome Statute — a step that merely indicates that the US affirms the ICC’s objectives. We should then initiate a process to provide the court with information to advance its investigations. Finally, we should consider measures domestically and at the Security Council to squeeze those who harbor alleged perpetrators of war crimes, crimes against humanity and genocide.
Rebooting ICC policy serves US interests. It also is an important step toward resetting America’s place in the world. It’s time to re-engage.
