It has been over 12 years since President Bill Clinton hesitantly signed the Rome Statute, almost 11 years since President George W. Bush nullified his signature, and days since the Obama Administration assisted in the transfer of a wanted war criminal from the US Embassy in Rwanda to the International Criminal Court’s (ICC) headquarters at the Hague. Thus continues America’s complicated relationship with the ICC. A combination of fear, American Exceptionalism and control issues have defined our policies toward the court, and our involvement in its proceedings. Wavering between outright objection and quiet cooperation, the U.S. position on this international court has shown signs it is slowly evolving. Bosco Ntaganda’s surrender to the US Embassy serves to shine a light on our current relationship with the court, as well as what the future could potentially hold.
Independent from the United Nations, the ICC serves as the only established court focused on the capture and conviction of international war criminals. Unlike tribunals such as those in Yugoslavia and Cambodia, the ICC is a permanent court dealing with cases from around the world. With arrest warrants issued for those such as Omar al Bashir of Sudan and Joseph Kony of the Lord’s Resistance Army, the ICC aims to bring an end to impunity for those who would commit crimes such as genocide, mass murder and the use of child soldiers. Ntaganda is currently facing charges ranging from war crimes, crimes against humanity, enlistment and conscription of child soldiers, rape and sexual slavery, and the list goes on.
The United States has long avoided a real commitment to the ICC. The main concern among law makers has centered on the jurisdiction of the court over U.S. citizens. There is a fear that perhaps American citizens will be wrongfully targeted in politically motivated prosecutions. This concern is not specific to one political party as even liberal contingents struggle to come to terms with the idea of an outside court having power over our citizens. During his time as a senator, current Secretary of State John Kerry expressed the sort of partial support we’ve seen from many Democrats. In a sense supporting the court, but not wanting to join in full unless there are protections for U.S. officials as well as soldiers.
The problem with this argument is that protections are actually in place, they are just not broadly understood. In speaking with Matthew Heaphy, Deputy Convener of the American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC), he highlighted that one of the main challenges has been overcoming a lack of understanding among leaders and the American public alike when it comes to the ICC. According to Heaphy, “there are good answers for their concerns, but we need to make sure that they understand there are protections to prevent Americans from being improperly investigated and prosecuted by the court.” One of the most relevant protections is that the U.S. government’s jurisdiction trumps that of the court when it comes to its own citizens. What has been seen as a nuisance in cases such as Bashir's where the ICC cannot force Sudan to turn him over to the court, is precisely the safety measure that should put U.S. lawmakers at ease.
While we have not seen a push from the Obama Administration to ratify the Rome Statute and join the ICC in full, there have been obvious shifts in our level of cooperation. The U.S. has recently begun attending the ICC’s Assembly of States meetings in an observer capacity. Additionally, we have promoted our Rewards for Justice program which offers rewards for information leading to the arrest of war criminals and terrorist factions. This program has been expanded to include those wanted by the ICC. According to the Department of State, “Although the United States is not a party to the ICC’s Statute, the Obama administration has been prepared to support the Court’s prosecutions and provide assistance in response to specific requests from the ICC prosecutor and other court officials, consistent with U.S. law, when it is in U.S. national interest to do so.”
AMICC’s Heaphy seemed hopeful about the Obama Administration’s desire to cooperate further with the court. “I think [the Obama Administration] is looking for ways to cooperate as much as possible within US legislative restrictions...it especially looks for opportunities in cases which are in the U.S. national interest, and the U.S. has said that all eight situations under investigation by the court are in the U.S. national interest.” For those in support of U.S. involvement with the court, this comes as great news. While it is likely the Obama Administration will not use the next few years to push for ratification, this sort of growing cooperation with the court has the potential to become the building blocks for future administrations to do just that.
Ultimately, the situation with Ntaganda is not an amazing act of cooperation. It does not mark a major divergence from our normal agenda. It simply serves to highlight how the U.S. is currently working within its abilities to assist the court. Heaphy explained, “I think the Ntaganda situation is just one more way to both explain the ICC to the American people and it is an opportunity for the American people, political leaders and policy makers to understand that the ICC, and an effective U.S. relationship with it, can especially serve American interests as well as strengthen the court.” Hopefully, we will continue to see further examples of cooperation as the U.S. strives to become a champion of international justice, not a hindrance to it.
Follow Corrie on Twitter @corrie_hulse
Bosco Ntaganda, ICC, Omar al-Bashir, US Foreign Policy