Human Rights Salon Day Three: What About The ICC?

Our week long panel discussion of ideas the next president can adopt to help promote human rights continues with a suggestion from On Day One user RustNeverSleeps:.

The United States should join the international criminal court. The court’s four ongoing investigations in Central African Republic, Democratic Republic of the Congo, Darfur and Uganda show that the court can work to prosecute war criminals. If the United States helps the ICC, the court can become even closer to its goal of deterring future war criminals.

David Kaye, Eric Schwartz and Suzanne Nossel respond below the fold. David Kaye:

The United States can do a lot of good for international justice without joining the International Criminal Court. Indeed, it seems to me that we ought to avoid the theological debates associated with the ICC and simply begin the process of engaging with the institution in a pragmatic way, supporting its efforts without taking – at least not yet – the more fraught political route of seeking ratification of the Rome Statute. Let me mention two concrete areas where we can offer that kind of support, and comment on two other important topics in the ICC world.

First, with respect to Darfur, the Bush Administration has clearly taken the decision that supporting efforts to end the genocide and hold accountable those responsible takes precedence over the anti-Rome theology that held sway during much of the Bush Presidency. The next administration should take that a step or two further by supporting the Office of the Prosecutor with the kind of lead and background evidence that can make the difference between successful and unsuccessful investigations and prosecutions. We should do this because our objectives and the ICC’s neatly align, and we should not allow flimsy arguments about legitimizing the ICC get in the way of such cooperation. Frankly, we should find opportunities to support the ICC’s work in the same way in the other areas of investigation as well, such as those mentioned by RustNeverSleeps.

A second area of support we can offer goes to one of the key problems with international justice today – the lack of a mechanism to apprehend those for whom the ICC has issued arrest warrants. Here is an area where U.S. leadership could be applied, where the United States – working within the Security Council – could deploy the mechanisms of financial and travel sanctions against those whose arrest is sought while also working with concerned governments on apprehension strategies.

Quite apart from these areas where U.S. support could make a meaningful contribution, the United States has an interest in reengaging with key states and NGOs associated with the ICC. For one thing, the U.S. demonizing of the ICC has been a symbolic element of the critique of go-it-alone U.S. foreign policy of the Bush years; reversal of that tone and policy should help rebuild U.S. credibility where multilateral action may make a difference. To be more specific, States Parties to the Rome Statute are actively engaged in efforts to define the crime of aggression and the terms under which jurisdiction over the crime may be exercised. The United States needs to participate in those discussions, not from a position of extreme critique but from one of constructive engagement. We’re more likely to have a positive impact on those negotiations from the inside, as an observer if not a formal party to Rome.

Finally, it’s important to note that the ICC has faced a spate of troubles recently. The Darfur indictment has come under strong attack even from individuals strongly supportive of the historic project of international justice. The Lubanga case has gone seriously off the rails because of the Office of the Prosecutor’s inability to share information with the defense or the trial chamber, a problem that has a lot to do with a failure to manage the expectations of information providers but also a strategic failure at managing the case itself. And on top of these difficulties, the International Labor Organization strongly rebuked Chief Prosecutor Luis Moreno-Ocampo for firing an employee in a way that totally avoided due process (and cast doubt on his leadership and ethical responsibilities). At this time, the United States can have little to say on these matters because we have disengaged for so long. But for the sake of the ICC and international justice more generally, we need to be involved, not only to support where we can but to be a constructive critic so as to ensure that the institution doesn’t fail.

Eric Schwartz:

The Senate would not now consent to ratification of the Rome Statute of the International Criminal Court, and early submission would be a mistake. Our history is far different than that of our European friends and allies, which have decades of experience in establishing regional institutions with considerable decision-making authority. This is no reason for the United States to walk away from the International Criminal Court, but it is reason to engage with prudence. Even the Bush Administration recognized the value of engagement, when it did not object to referral of Sudan to the ICC. A new Presidential Administration should go even further, and be prepared to provide support and assistance to ICC investigations of gross violations of human rights, and to proceed toward a “good neighbor” approach to the Court. As we see how this important institution evolves over time — and, in particular, as it continues to demonstrate a commitment to justice and professionalism — a U.S. President will be in a strong position to consider, and present to the Congress, proposals for strengthening our commitment to the Court.

Suzanne Nossel:

I support the idea of engaging pragmatically with the ICC. If as a political matter such engagement is initially easier to pursue without addressing whether it will ultimately lead to joining the court, so be it. But the goal should be to make the court as effective a tool for accountability as possible and that will mean broadening its membership to include more key actors globally. The Bush Administration deserves some credit for reexamining its early hostility toward the court. In recent months, the Bush Administration has been out in front supporting efforts to enforce accountability for Sudanese President Omar al-Bashir for genocide and crimes against humanity for the atrocities he allegedly directed in Darfur. It has said it will block an effort afoot in the UN Security Council to suspend the indictment of al-Bashir by the ICC prosecutor. Despite arguments put forward by the Sudanese government and given some credence by the French, British, Chinese and others that the indictment will set back peace efforts in Darfur and that postponement ought to be considered, the Bush Administration has held firm on the principle that al-Bashir should be brought to justice now. This position is driven by a recognition that the US’s national security interests are served when the perpetrators of war crimes are prosecuted for their abuses, and when other current and future dictators are made to recognize that they too may be held to account. This stance, coming from an Administration that “unsigned” President Clinton’s signature on the Rome Treaty that created the ICC, points to the potential to build political consensus in Washington behind the principles of international accountability for war crimes. I agree with a number of David’s suggestions regarding constructive ways for the next Administration to support and engage with the court, and bring about better understanding and appreciation for the court’s vital work.