The International Criminal Court building in The Hague, Netherlands. (globalpolicy.org)

Despite these setbacks, the court has pursued accountability in the atrocity zones of Africa and perhaps deterred crimes that would have proceeded if not for the Court’s watchdog presence. The ICC is advancing principles of law in armed conflicts that offer a refreshing contrast to the principles promulgated by the Bush administration. The ICC also stands as a cost-effective alternative to what might otherwise be an endless stream of ad hoc tribunals to prosecute future atrocities.

The Bush administration’s abdication of leadership in international justice encouraged many allies to champion, in words if not in deeds, the worthy aims of the ICC. Other nations have discovered international judicial intervention as a means to confront evil and uphold their own responsibility to protect civilian populations from atrocity crimes. The United States must follow this lead.

US Steps in the Right Direction

Recent developments in the United States have opened the door for a more balanced and constructive understanding of the ICC and its growing role in preventing impunity for perpetrators of atrocities on the international stage. Support has remained relatively high in Washington for the continued work of the International Criminal Tribunals for the former Yugoslavia and Rwanda as well as for the Special Court for Sierra Leone. These specialist international courts—covering specific territories, time periods, crimes, and categories of suspects—were launched during the Clinton administration and have demonstrated the potential to pursue accountability in atrocity zones at minimal or no judicial risk to American nationals.

The rejectionist philosophy began to crack with the US decision to abstain from voting on the Security Council referral of Darfur to the ICC more than two years ago. US officials have softened their objections and publicly recognized the value of the ICC’s work. The punitive pillars of the American Service Members Protection Act have eroded. Last year, President Bush signed waivers for scores of nations, thus continuing the flow of economic support funds or international military education training (IMET) programs despite their participation in the ICC. After listening to the complaints of top military commanders about their lost credibility in military-to-military relations due to the constraints of non-surrender agreements, Senator John Warner was instrumental in enacting a permanent removal of IMET programs from ASPA’s punitive package. The remaining non-surrender agreements with mostly small nations, such as Comoros, St. Kitts & Nevis, and recently Montenegro, clearly demonstrate that ASPA is becoming increasingly cosmetic as each month passes.

Last year, the Henry L. Stimson Center published a report on the ICC that examined US military attitudes towards the Court. The Stimson project was a path-breaking effort because it revealed that active and retired military officers are more familiar with and less apprehensive about the ICC than in the past. A rough consensus exists among these officers that the Bush posture denied the United States the opportunity to advance its own interests with foreign militaries, that the United States needed to move from a studied distance to constructive engagement, and that Washington should consider cooperation on a case by case basis. Nationwide polling consistently shows a majority of US citizens believing that the United States should join the ICC.

No senior Bush administration official has been on the warpath against the ICC since John Bolton lost his ambassadorial post at the United Nations in late 2006. Many of his colleagues in arms departed the halls of power in Washington long ago and those who remain have other critical policy issues to tend to in the final months of the Bush administration.

The US Needs the ICC

During the 1990s, it was often said that the ICC would need the United States in order to be successful in its mandate of international justice. There is little doubt that American financial, technical, and diplomatic support would still be of great assistance to the ICC, but the Court has matured over five years without US assistance and has gained widespread international support. After a series of highly controversial military expeditions and flawed interpretations that undermined key treaties, today it is the United States that needs the ICC to help it climb back into a position of global leadership.

The classic US objection to the ICC—that it would put American soldiers at risk of prosecution in The Hague—has been losing its appeal despite the massive and legally volatile US engagements in Afghanistan and Iraq. Ocampo has declined to investigate situations that do not rise to the level of substantiality for atrocity crimes required by the Court’s mandate. His focus, and that of any ICC prosecutor, will be on Africa and those parts of the world where atrocity crimes—and the criminal intent that must be proven—are undeniable. Under the principle of complementarity, which US negotiators successfully embedded deep into the Rome Statute, any effort to investigate American officials would be offered first to US prosecutors and courts. The ICC prosecutor has firmly upheld principles of complementarity, even leaning over backwards to afford the highly suspect Sudanese court system every opportunity to handle the atrocity crimes in Darfur. His deference to the US legal system is certain, although good faith on the part of US authorities would be expected in return.

As long as US officials refrain from planning and unleashing the mass slaughters associated with genocide, crimes against humanity, and serious war crimes, they should feel confident in the Court’s restraint. But if any US official were found to be engaged in such conduct, he or she should be aggressively prosecuted in US courts. Otherwise, raw politics will have triumphed with a vengeance over the rule of law in Washington.

The Bush administration’s detention policies have been so poorly managed under international law that Washington may have learned in spades the lesson that such conduct simply cannot be perpetuated in the modern world, even one subject to terrorist threats. If such policies continue, the country will be in far deeper trouble than the scrutiny of the ICC alone.

Getting to the Review Conference

One key event should compel Washington to act decisively over the next two years, perhaps even leading to its embrace of the Rome Statute in spring 2009. The Rome Statute requires the convening of a review conference seven years after the establishment of the ICC—that date arrives on July 1, 2009. The Assembly of States Parties of the ICC is already well into the planning for a 2009 or 2010 review conference, which will open up the Rome Statute for possible amendment. If the United States is a state party to the ICC by the time the conference convenes, then it can exert considerable influence on the outcome of the conference with its own proposals and exercise of diplomatic power in the negotiations. If Washington remains aloof from the ICC, then other nations will determine the future of international criminal justice and the character of judicial risks that may confront the United States in the exercise of its foreign and military policies. Why any administration, Republican or Democratic, would abdicate such critical responsibilities to others defies reason and good governance.