European Affairs

As ICC Starts Major Review, Can U.S. and EU Cooperate?     Print Email
By Bill Marmon

Obama Team Seeks to Engage with the Court -- a Fence-Straddling Position as a “Non-Signatory” Participant

The International Criminal Court (ICC) represents a manifest irony in U.S. foreign policy. While Washington has defiantly refused to join the tide of broad international acceptance and join the ICC or submit to its jurisdiction, the U.S. has traditionally been a strong supporter (and sometimes even a leader) in international efforts to bring to justice those individuals and states guilty of war crimes and atrocities -- precisely the kinds of crimes the ICC was created to prosecute.   The U.S. leadership was critically important in the prosecution of German and Japanese officials after World War II and in support for tribunals dealing with the genocides in Rwanda, the former Yugoslavia and elsewhere.

The ironies, along with sharp U.S.-EU divergences, are about to surface once again as the ICC convenes its 2010 review conference in Kampala, Uganda, commencing May 31 and ending June 11.  The Obama administration, while not about to reverse the “non-signature” U.S. posture of the past, wants to develop a more cooperative relationship with the ICC – perhaps, by helping with its vast anti-terrorism assets to dig up information that would bring human-rights abusers and war criminals to justice and tracking down fugitives. The Obama administration is sending a high level delegation to the Kampala conference, headed by Harold Koh, Legal Adviser to the State Department, and Stephen Rapp, who holds the position of Ambassador-at-Large for War Crimes Issues.  All their political skills will be needed if the U.S. is to manage its nuanced diplomatic goals in Kampala and beyond without appearing hypocritical, or opportunistic, or obstructive, or unilaterally hubristic—or all of the above.  (See a good report by the Council on Foreign Relations about the issues raised by the upcoming conference “From Rome to Kampala.”

The ICC was adopted by a special United Nations conference in Rome in 1998, and went into effect in 2002.  Some 111 nations have ratified the Rome Statute and committed themselves to accept the court’s jurisdiction on their territory. The court’s writ now runs in all 27 members of the European Union, Australia, Canada, Japan, most African countries and many in Latin America. The “non-parties,” besides the U.S., include China, Russia, India, Iraq and Israel. (Interestingly, Afghanistan is a state party to the treaty, meaning that it would be expected to open its territory to any war crimes prosecution initiated by the ICC about acts in the war there, including any that might involve U.S. or other NATO forces there.) The U.S. position is that it has demonstrated it can deal with any war crimes of its own soldiers, and that because of its superpower role,  it cannot allow the possibility of other countries trying to preempt this mission. The lack of similarly credible national institutions in so many countries, notably in Africa but also in the Balkans, provides grounds for the existence of an international institution such as the ICC – a court of last resort for cases where countries cannot or will not prosecute crimes against humanity, war crimes and genocide.

It is a fourth category of offense – “aggression” – that will be the most controversial and sensitive agenda item in Kampala. ICC actions to date (five in number) have been conducted under the ICC’s jurisdiction over crimes after war has actually commenced, “jus in belli.” Jurisdiction over “aggression” would give ICC power to prosecute the initiation of war, “jus ad bellum.”  When the ICC was created, no definition of aggression could be agreed upon (and none exist in national legislations), but the founding conference instructed that this should be done by the first review conference in order to activate the ICC’s role in this regard. Since then, a rough consensus has emerged from a series of working groups.  The process has come up with a torturous formulation, to be on the table in Kampala, that defines it as “the planning, preparation, initiation or executions, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”

That language seems to offer little by way of clarification beyond the current authority of the Security Council to judge a particular situation and declare that the UN Charter has been violated. So the key point seems to be less legal than political: its advocates want a definition that opens the way to direct jurisdiction by the ICC, thus end-running the Security Council with its veto powers for the permanent five member states. The U.S., however, favors Security Council primacy in any determination of impermissible “aggression.” But that approach does not suit some other countries such as Brazil and other emerging powers, or Germany, which seeks more independence for the ICC.

The very existence of a definition of aggression worries many U.S. legal minds who fear that the language -- once codified, even if not endorsed by major powers – will bleed into other international fora and reemerge as an annoyance for countries that might want to undertake a controversial humanitarian intervention (such as NATO’s attack on Serbia to free Kosovo). But there is also recognition among some Obama advisers that it may be too late for Washington to kill a process that has been under way without American involvement for nearly a decade. In this situation, instituting the Security Council as a “jurisdictional filter” could be a compromise that the U.S. could accept.  

On this and other issues including aid for the court’s $135 million budget and help with its mission of strengthening national human-rights courts and beefing up enforcement compliance, none of the 25 observer delegations will be as closely watched as the U.S. 

American attitudes and actions toward the ICC have been ambivalent and uncomfortable from the beginning.  The U.S. was one of seven states to vote against the final Rome statute.  Notwithstanding the negative vote, President Bill Clinton signed the Rome Statute, but at the time stated that he did not intend to submit it to the Senate for ratification. President George W. Bush repudiated even the signature and informed the UN Secretary General that the U.S. accepted no obligations under the Rome Statute.  Under Bush the U.S. Congress passed the American Service Members’ Protection Act (ASPA), which prohibited U.S. military assistance to countries which had ratified the treaty establishing the court.  This was an effort to protect U.S. soldiers involved in actions abroad from being subjected to ICC actions. Before they could take effect, the provisions of this act were watered down in the second Bush administration.

In contrast, the Obama administration has indicated its intent to cooperate with the ICC. Last year Ambassador Rapp led a delegation to the ICC’s annual meeting in The Hague with an announcement that “our government has now made the decision that Americans will return to engagement at the ICC.”  And in response to a question in Congress, Secretary of State Hillary Rodham Clinton said that the U.S. would end its “hostility” towards the court.

But, continuing the parade of ironies, none of the friendly talk from the Obama administration means the U.S. has any intention of signing up with the ICC.  As the world’s only remaining superpower and only real global “cop on the beat,” the U.S. feels that it has legitimate concerns about ceding to any other entity the power to pass judgment on whether its “police actions” or self-defensive “pre-emptive actions” are legitimate. (Obama has excised the word “pre-emptive” in his National Security Strategy, which specifically cited U.S. interest in the ICC. But he has never ruled out unilateral U.S. action where US interests were directly at issue.)

So the U.S. position remains that only the Security Council, where the U.S. has a veto, should initiate international sanctions for war crimes. U.S. concerns about the ICC have been exacerbated by the unilateral actions of prosecuting magistrates in other nations to seek legal action against U.S. officials for alleged war crimes. Particularly nettlesome has been Spanish Judge Baltasar Garzon.  Last year he publicly weighed whether Spain should allow charges to be filed against six former Bush officials for offering justifications for torture.  Garzon has repeatedly sought to subpoena Henry Kissinger in connection with the former secretary of state’s alleged implication in Operation Condor, an assassination and political destabilization plot in several Latin American nations in the 1970s.   Recently Judge Garzon himself was suspended from his position in Spain for exceeding his authority by investigating crimes by the Franco regime that were covered by an amnesty. The day after his suspension, the ICC announced that it hired Garzon for seven months as a consultant -- an appointment not likely to be viewed happily by the U.S. administration.

Now, with the U.S. already likely to resolutely oppose any amendment of the Rome Statute to activate jurisdiction over aggression, the American delegation will be trying to obtain concessions on “aggression” as part of a new “partnership” in which the non-member U.S. would adopt a more cooperative stance toward the ICC. Any such trade-off will require skillful diplomacy, given the “non-party” status of the U.S. and its history of unilateralism, particularly during the George W. Bush administration. It will be interesting to see whether EU nations will play an important role in brokering a compromise. The EU has powerful sway in the ICC: under a regional system of allocating places on the court’s bench, eight of the 18 judges are reserved for jurists nominated by EU states. But there are questions about how much influence European nations can have in a body where they are heavily outnumbered and where much of the action so far has been “Africa-centric” in its cases – with some collateral discord among African member states. So far, Britain is the sole country that has adopted all the recommended national compliance measures such as sentence enforcement and witness-protection provisions. In contrast, some of the court’s African members are threatening to cut back their cooperation in protest at the decision by its chief prosecutor, Luis Moreno-Ocampo, to indict Sudan’s President Omar al-Bashir on charges of war crimes in his country’s strife-torn Darfur region. The case was referred to the ICC by the Security Council (with U.S. acquiescence), and it marked the first occasion on which the ICC indicted a sitting head of state.

There are persuasive considerations for the ICC to forebear activating its own “aggression” definition and jurisdiction.  For one thing, standards for impermissible “aggression” under international law are vague and imprecise, particularly as compared with standards for “war crimes” and “atrocities.”  And in terms of realpolitik, the ICC stands to gain from support of the world’s only superpower in solidifying its credentials, improving its performance and expanding its reach and authority. But the Obama administration’s room for maneuver and concessions may be severely limited.  The White House has to keep an eye over its shoulder at the concerns (and even antipathy) about the ICC throughout much of Washington, including the U.S. Senate, the Pentagon and other federal agencies, including the CIA. Of course, other democracies also have their own inter-agency problems to manage issues that involve surrender of national sovereignty, but not many other governments need to worry very hard about the ICC’s real-world impact on them. In this regard, the situation is different for a small group of major powers, including Russia, China and perhaps especially the U.S. because of its dominant global role. Headlines regularly point to these concerns – for example, the use of drones causing civilian casualties in the Afghan-Pakistan theater of the war against terrorism. To take another example, ICC investigation of Israel’s actions in Gaza, which have been called war crimes by many, would exacerbate the U.S. squirm on the ICC.

Taking stock of the situation, it is evident that any “partnership” between the ICC and the U.S. with its “non-party” status will be tricky to construct and then to manage effectively.  The key player in this regard may well be the EU, which has invested a great deal of political capital in the ICC and therefore might well be in a position to broker new arrangements that serve and protect all parties’ interests. Such an outcome has to be seen as a long shot, especially nowadays when the EU is struggling to maintain its geopolitical credibility. Already, back in December before the euro zone crisis had erupted in Greece, the EU had been given a measure of its shrinking influence at the Copenhagen conference on climate change. Europe, which had claimed a leadership role in this domain, found itself powerless and sidelined in the decision-making that drove the conference to its inconclusive and disappointing end.

In Kampala, the EU caucus will need to demonstrate greater finesse and discernment and more determination and persuasion than it has so far if it wants to broker a useful new working relationship between the ICC and the U.S. Any strengthening of the court along these lines would require a real effort to work out a special modus vivendi with Washington. But an effective break-through would reinforce that deterrent effect on genocidal dictators and signal that the “age of impunity” is ending. Europe is the best-placed player to broker some difficult compromises in an awkward situation riddled with mistrust. It has an interest in doing so: new momentum out of Kampala would suggest that the world may be reaching the conclusion that it needs to put international efforts behind Obama’s rhetoric if there is to be hope for creating a new international reality. A derailment of that prospect in Kampala will be fresh evidence that the world is not ready to take the U.S. President at his word. That might be understandable, but it would be a shame. Success would help shore up the moral weight of the West in dealing with troubled areas before they tumble into horror. Europe may have the room for maneuver to bridge the mutual wariness and conflicting agendas, opening the way to bolstering the ICC’s future. That international success would be to Europe’s credit everywhere. But failure in Kampala is liable to be chalked up as another sign that Europe is being marginalized in global politics.

Bill Marmon is managing editor of the European Institute’s online journal, “European Affairs.”