The United States and the International Criminal Court: Why Undermining the Icc Undercuts U.s. Interests

• Jurisdiction: United States,Federal
• Citation: Vol. 47 No. 3
• Publication year: 2019

THE UNITED STATES AND THE INTERNATIONAL CRIMINAL COURT: WHY UNDERMINING THE ICC UNDERCUTS U.S. INTERESTS

Jane Stromseth^*

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TABLE OF CONTENTS

I. INTRODUCTION....................................................................................640

II. BOLTON'S ATTACK ON THE ICC.........................................................642

III. THE PATH NOT TAKEN........................................................................651

IV. IS THERE A CONSTRUCTIVE WAY AHEAD?.........................................655

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I. Introduction

The U.S. relationship with the International Criminal Court (ICC) has been complicated from the very start. I have seen this first-hand serving as a U.S. government official in several administrations—first just after the Rome Statute was adopted, and most recently in the Obama Administration's small-but-mighty Office of Global Criminal Justice at the State Department.

Yet, even so, it is fair to say the U.S.-ICC relationship is currently at a new low point, with John Bolton's September 2018 speech attacking the Court and threatening its personnel as the most visible manifestation.¹ Bolton, of course, has been a repeat protagonist in this story. He led earlier U.S. efforts to undercut the ICC in the first George W. Bush Administration—that is, until President Bush himself changed course and decided the ICC offered the best prospect for justice for atrocity victims in Darfur, Sudan, a situation which the UN Security Council referred to the ICC.² Indeed, President Bush's second term saw a greater recognition of ways in which aspects of the ICC's work could be consistent with U.S. interests.³

This trend continued and intensified in the Obama Administration, which decided to constructively and pragmatically engage with the ICC and support its work, on a case-by-case basis, consistent with U.S. law and interests.⁴ In so doing, the Administration supported the UN Security Council's referral of

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the situation in Libya to the ICC and assisted in turning over major ICC indictees to the Court, including Lord's Resistance Army commander Dominique Ongwen and Congolese warlord Bosco Ntaganda, both of whom are on trial before the ICC.⁵ The United States also expanded and offered rewards through its War Crimes Rewards Program for information contributing to the arrest and surrender of designated foreign nationals wanted by the ICC and other international tribunals.⁶

The Obama Administration also engaged diplomatically with the ICC to express U.S. views and advance U.S. interests. American officials participated at the Kampala negotiations over the crime of aggression, securing a result that protected non-parties to the ICC from the Court's jurisdiction over the crime of aggression.⁷ The United States also attended the annual ICC Assembly of States Parties meetings as an observer delegation.⁸ The Obama Administration expressed support for each of the cases before the Court, while also actively supporting a range of domestic and hybrid courts whose work was complementary to the ICC in bringing perpetrators of atrocity crimes to justice.⁹

Notwithstanding these important trends and developments across both Democratic and Republican administrations, the possibility that the ICC might commence an investigation concerning the situation in Afghanistan was always a challenging issue looming on the horizon. Both the Bush and Obama

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Administrations sought to protect nationals of the United States—a non-party to the ICC—from exposure to the jurisdiction of the Court in the absence of U.S. consent, while also recognizing the value in other aspects of the Court's work. Moreover, navigating the complex and evolving U.S.-ICC relationship required calm, careful and astute diplomacy.

Yet Bolton's shrill attack on the ICC as a Trump Administration official was none of those things. Indeed, it was even more extreme than his earlier efforts—in the nature of the threats against ICC personnel, in the scope of those potentially covered, and in the many exaggerated and false claims about the ICC.¹⁰ And his hostile posture towards the Court has been reinforced by others, including Secretary of State Pompeo and President Trump himself, and reflects a larger stance by the Trump Administration of skepticism and indeed often hostility toward multilateral institutions.¹¹

II. BOLTON'S ATTACK ON THE ICC

Bolton claimed that the Trump Administration's ICC policy "put[s] the interests of the American people FIRST."¹² But is this really true? Is this aggressive stance and attack on the ICC the best way to advance U.S. interests? That is the central question I will address. I argue it is not, for three main reasons. First, Bolton's attack rests on an unduly narrow conception of the interests of the United States and the American people. This conception takes insufficient account of the importance of standing up against atrocity crimes. Second, Bolton's attack ignores and undercuts important ICC contributions to the pursuit of justice and accountability—including encouraging national efforts the U.S. has long supported. Third, it disregards the more effective ways to navigate issues growing out of the ICC's decade-long examination of the situation in Afghanistan and the more constructive ways to address U.S. concerns about the ICC. In short, Bolton's approach is neither

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the best way to support an affirmative agenda of accountability, nor is it the best defensive strategy.

First, Bolton is so focused on attacking the ICC that he fails to acknowledge or adequately appreciate the deep and longstanding stake the United States has in affirmatively supporting justice and accountability for mass atrocity crimes. Indeed, the United States—on a largely bipartisan basis—has long supported advancing justice for international atrocity crimes—including genocide, forced recruitment of child soldiers, mass rape, and other egregious crimes—recognizing that standing up against these atrocities advances both U.S. interests and values. This includes both advancing a norm that such atrocities are unacceptable and a tangible legacy of supporting a range of tribunals—national, hybrid, and international—to bring perpetrators to account. Let us call this the affirmative agenda.

Examples include American leadership in establishing the Nuremberg and Tokyo tribunals after World War II and helping to build the vital framework of international humanitarian law. Examples also include U.S. support for the Security Council's creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) and for Rwanda (ICTR) as well as U.S. support for numerous hybrid courts such as in Cambodia, Sierra Leone, Senegal, the Central African Republic, and elsewhere, and for domestic processes such as the mobile courts in the Democratic Republic of the Congo that have brought to justice perpetrators of atrocity crimes.¹³

Why does this advance U.S. interests? It does so for both normative and pragmatic reasons. Normatively, these efforts affirm the most fundamental standards of human conduct. The prohibitions against mass atrocities reflect legal rules the United States has sought to advance on a bipartisan basis along with many other countries for decades, aiming to protect civilians from harm and to protect combatants from unnecessary suffering. And better enforcement not only brings some measure of justice to victims; it also helps build an architecture of accountability—at the national, regional, and international levels—that, over time, can help to strengthen prospects for prevention of these atrocities.

There are also very pragmatic reasons why strengthening enforcement of this body of law is in the interest of the United States. These include conflict resolution: Atrocities can fuel an ongoing cycle of grievance and inflame conflicts—with profound security consequences—including desperate populations fleeing across borders and regional instability. This often puts the United States and its allies and partners in the challenging position of facing options, such as military intervention, that are far more costly and difficult

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than earlier efforts aimed at structural prevention.¹⁴ And failure to seek any credible measure of accountability can fuel pressures for retributive violence, making prospects for rebuilding after conflict all the more difficult.

Another pragmatic issue concerns coalitions and partnerships. American commitment to these rules and their enforcement helps to reinforce the legitimacy of military operations and aids in coalition-building with allies and friends, whose support is often critical for success.¹⁵ Furthermore, the United States often works with and through partners in foreign militaries, providing forms of support other than direct combat operations and thus has a strong stake in how those partners conduct themselves. If the United States is to help build professional and accountable partners, who are seen as protectors and not predators, the law prohibiting atrocity crimes (and meaningful enforcement) is a vital part of training and education.

In John Bolton's account, however, we hear about virtually none of this. Nowhere does the long history of U.S. contributions to international justice appear. The positive agenda is hardly acknowledged. Never mentioned are the contributions of leading American lawyers—including Supreme Court Justice Robert Jackson, Judge Patricia Wald and many others—who have served as prosecutors, judges, or defense attorneys in international and hybrid criminal courts that have held perpetrators of atrocity crimes to account.¹⁶

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Also invisible from Bolton's narrative is the work of U.S. lawyers and diplomats to ensure the ICC is based on the primacy of national accountability for the most egregious atrocity crimes.

There is a second fundamental reason why Bolton's strident attack on the ICC does not effectively advance U.S. interests. Namely...