The Heritage Foundation published a report by Brett Schaefer earlier this month that argues (unsurprisingly) that the U.S. should remain wary of the ICC (h/t Opinio Juris). I (unsurprisingly) think he’s wrong. The report’s problems begin in its first paragraph:
Until recently, U.S. policy toward the International Criminal Court (ICC) has been clear and consistent: The U.S. has refused to join the ICC because it lacks prudent safeguards against political manipulation, possesses sweeping authority without accountability to the U.N. Security Council, and violates national sovereignty by claiming jurisdiction over the nationals and military personnel of nonparty states in some circumstances. In a break with previous policy, the Obama Administration has stated that it views U.S. policy toward the ICC as too hostile and has expressed the intent to increase U.S. cooperation with and support for the court.
This very brief summary of the U.S.’s engagement with the court grossly oversimplifies things. Yes, the first Bush administration stridently opposed the ICC, passing the Hague Invasion Act and concluding over 100 bilateral immunity agreements, intending to protect the U.S. from ICC jurisdiction. But the second Bush administration was much more nuanced. The second Bush administration vocally opposed referring the Darfur situation to the ICC but did not veto UN Security Council resolution 1593, which did so, choosing abstention instead. And State Department legal adviser John Bellinger said in 2007:
Moreover, over the past couple of years we have worked hard to demonstrate that we share the main goals and values of the Court. We did not oppose the Security Council’s referral of the Darfur situation to the ICC, and have expressed our willingness to consider assisting the ICC Prosecutor’s Darfur work should we receive an appropriate request. We supported the use of ICC facilities for the trial of Charles Taylor, which began this week here in The Hague. These steps reflect our desire to find practical ways to work with ICC supporters to advance our shared goals of promoting international criminal justice.
The Obama administration has taken a similar stance. As I wrote in an earlier post, Jurist reported in January of this year:
[U.S. Ambassador-at-Large for War Crimes Issues, Stephen Rapp] said that while the US has an important role in international criminal justice, it is unlikely to join the ICC anytime soon. Rapp cited fears that US officials would be unfairly prosecuted and the US’s strong national court system as reasons it would be difficult to overcome opposition to ratification.
So the Obama administration’s policy is more of a continuation of that of the second Bush administration, which itself was a return to the policy of Clinton, who signed the Rome Statute, but, as his signing statement shows, felt the dual pull of wanting to support the court and feeling wary of its perceived flaws.
Strangely, later in the report, Schaefer sketches a narrative that actually approximates the one I just sketched out. So I’m not sure why he believes the second Bush administration’s policy was more “clear and consistent” than that of the Obama administration. Or how Obama’s continuation of Bush’s policy constitutes a “break with previous policy.”
But as for Schaefer’s actual arguments, he really only identifies one reason to justify ICC wariness:
As Obama Administration officials have acknowledged, there remains a strong possibility that U.S. military and political officials could be unfairly prosecuted by the ICC because of the breadth of U.S. political and military interests. Indeed, the ICC has opened a preliminary investigation into alleged war crimes in Afghanistan that could involve American citizens and soldiers given America’s leadership role in the military operations and the political transition.
But I’m wary of this wariness. Is the concern really that the U.S. could be “unfairly” prosecuted? Or is it more that the U.S. could be prosecuted at all (i.e. “fairly” prosecuted). The above statement presupposes that the ICC Afghanistan investigation is somehow unfair, despite the widespread reports, before and after the WikiLeaks revelations, of war crimes committed by the U.S. The argument that the U.S. should be exempt from the ICC since it has the biggest military and the greatest military presence in the world is also unconvincing. I outlined some strategic benefits to ICC membership a couple months ago at Foreign Policy in Focus. An additional reason stems from the David Kennedy lecture to which I linked earlier this week. Just like some businesses lobby the government to regulate them to shield them from blame if something goes wrong and to legitimate their practices, countries can similarly benefit from submitting themselves to international jurisdiction.
Schaefer doesn’t really engage with such arguments, essentially accepting it as a given that ICC jurisdiction threatens U.S. interests. If one accepts that premise, then his report’s prescriptions (never ratify the Rome Statute, maintain the bilateral immunity agreements, try to convince the ICC to further delay its implementation of aggression jurisdiction, etc.) are dead on. As Julian Ku at Opinio Juris notes, this is “the U.S. political consensus.” This is, of course, also a minority position, since 68% of Americans favor U.S. participation in the ICC (as of September 2008). I guess that doesn’t matter, though.
