Engage with the ICC!

David Kaye, a former lawyer in the Clinton and Bush administrations, provides some sensible reasoning on why the United States should join the International Criminal Court. In addition to all the helpful information Washington could have provided in the lead-up to the Bashir indictment — and its tumultuous after-effects — Kaye writes that the United States risks being left on the sidelines when it comes to shaping international law.

Closer engagement also would allow the U.S. to help shape policy and legal developments in ways that meet its concerns. Today, we have little ability to influence the court’s thinking. As a consequence, many basic principles of international law are being developed without U.S. input.

If that doesn’t sound scary enough (okay, it’s not exactly fear-inducing), then Kaye brings up a dangerous eventuality that may hit closer to home for many U.S. lawmakers.

Not all the action is in the courtroom either. Parties to the ICC are considering whether and how to amend the Rome Statute to include the crime of aggression — the unlawful use of military force. Our ability to shape the court’s approach to this crime is limited unless we take prompt steps to play an active role.

The unspoken reference here is obviously to Iraq. Regardless of what American legislators think of the war in Iraq, or of future use of preventive warfare, none of them want the United States to be brought to court over it. Rather than merely provide fodder for those who instinctively contend that the ICC is hopelessly heading in the wrong direction, this development is, as Kaye suggests, all the more reason for the U.S. to join the Court. The only way to convey one’s interests, as we seem to repeat ad nauseam here at UN Dispatch, is by showing up and participating.