The US and the ICC: Still the Same

An article was posted yesterday by Colum Lynch titled The world's court vs. the American right.  This discussion is timely, I think, since the International Criminal Court (ICC) is in an extremely difficult position and will face significant challenges over the next decade.

The article paints only a general picture of current United States policy towards the ICC.  On 31 December 2000, President Clinton authorized the US signing of the Rome Statute, so the US could participate in the Preparatory Commission and influence the development of the court and its procedures, which would protect United States interest.  Clinton stated on the day of the signature that the US had concerns with the Rome Statute and he would not submit it to the Senate for advice and consent.  Moreover, President Clinton had instructed the United States delegation in Rome 1998, to vote against the adoption of the Statute.  The vote against the Rome Statute was not simply a right-wing, conservative vote against the ICC.

Bush's first move on the ICC was to put the UN and the Assembly of States Parties to the ICC (ASP) on notice that the US did not intend to fulfill its legal obligation as a signatory of a treaty, which is to work towards its ratification.  This is often absurdly referred to as the United States "unsinging" the Rome Statute.  This sounds good to the critics of Bush's policy toward the ICC, but there is no such thing as "unsigning" a treaty.  Personally, I think that if Clinton was in the White House when the Rome Statute gained its 60th ratification, he, too, would have had discussions on how to put the international community on notice how his administration would not work towards US ratification.  Clinton's position on the ICC was not so different than Bush's.

The US began taking measures to protect itself from the ICC once the court began operating.  This policy was not only supported by "the right."  For example, the adoption of the American Service-Members Protection Act, which prevents US money being used to support the ICC and giving the US the ability to use any means necessary to get an American national out of the custody of the court, was supported by most democrats, including Hillary Clinton.  The US began establishing a friendlier relationship with the ICC in Bush's second term.  The US had accepted that the ICC had a role to play in international criminal justice and would work with the ICC on a case-by-case basis when both shared a common interest.  This policy rolled over into the Obama administration and its policy towards the ICC.  The one difference that can be cited is that the US now sends a delegation to the annual ASP meetings.  Former State Department Legal Advisor, John Bellinger, told me that he and others in the Bush administration thought that the US should have attended ASP meetings.  However, the final decision was that the US would not gain anything by attending and that it would give a false impression to other States that the US was working towards ratification.  This is a good example that many people within different presidential administrations have had differences of opinion towards the ICC regardless of their affiliation to a political party.  It has not always been the ICC "vs. the right."  And it is certaintly not the case now.  Currently, the US has not paid much attention to the ICC.  But this is not necessarily due to a change of policy towards the ICC.  The fact of the matter is that the ICC is irrelevant to the US and its current focus on international and domestic policies.  Consideration for sending the Rome Statute to the Senate for advice and consent is probably No. 2137 on the Obama administration's to do list and has little to do with what "radical," "right-wing," "neoconservatives" think of the ICC.  It is a position held by liberal democrats as well.

A COURT IN JEOPARDY

The ICC is in Jeopardy.  In its first ten years it has completed only two cases with one conviction and one acquittal.  The conviction was of Thomas Lubanga Dyilo for recruiting and training children under the age of 15 to participate in armed conflict.  He received a fourteen-year sentence, which is equivalent to what William Schabas sarcastically claimed as a sentence in the US criminal justice system for a second DWI conviction.  Basically, as horrible as the crimes are, they do not meet the magnitude of crimes that drove the support for establishing the first permanent International Criminal Court and a fourteen-year sentence reflects this.  Therefore, a critic could easily claim that the ICC is 0-2, rather than 1-1, in its first ten years.

The ICC also finds itself in a financial crises.  It lacks the funds necessary for a court of its magnitude to function effectively.  Furthermore, the court is only as strong as its member states.  Many States do not support the ICC as they once did, vocally, at the Rome Conference and in the court's early years of operation.  Many of the states that supported the ICC were African.  Recently, the African Union has criticized the court for opening formal investigations only into African conflicts.  African States party to the ICC have had opportunities to arrest war criminals indicted by the ICC, but have chose not to, which is a failure to fulfill their legal obligations under the Rome Statute.  The AU has gone from being one of the ICC's strongest supporters to holding discussions on establishing an African regional war crimes court.  The ICC has to make some crucial decisions soon to gain the support it once had.  Otherwise, I see it lasting about ten-fifteen years before withering away.

While some claim that the United States may have changed its policy towards the ICC, it has not.  For example, Obama has made no attempt to reverse the American Service-Members Protection Act's negative affects on the ICC.  But the United States has accepted the ICC as an international institution.  However, if the next ten years are anything like the first ten, then the United States, Russia and China may be expecting the ICC not to be around much longer and are waiting it out.