JURIST Contributing Editor David Crane of Syracuse College of Law and Guest Columnist Leila Sadat of the Washington University in St. Louis School of Law say that after the failure of American legislative and diplomatic initiatives opposing the International Criminal Court, the time has come for the US to support and cooperate with the ICC...
or the past ten months, in a modest courtroom in The Hague, the International Criminal Court (ICC) has been conducting its first trial. The accused, Thomas Lubanga, is charged with forcing children to fight as soldiers in the simmering wars that have consumed central Africa in recent years. Although these crimes are all too common, it is remarkably uncommon for a warlord like Lubanga to be facing justice. This trial, therefore, represents a singular triumph for the international justice system and for the ICC, the world's first permanent court created to try persons accused of genocide, war crimes and crimes against humanity.
The ICC's progress from a start-up international court in 2002 to a fully functioning court today, conducting four wide-ranging investigations of atrocities in African countries that would otherwise escape scrutiny, might seem like something that the US would naturally support. After all, this country was founded on the rule of law, and the US has played a central role in the creation of every international court from Nuremberg through the ad hoc
tribunals for the former Yugoslavia, Rwanda and Sierra Leone. Opinion polls, moreover, have consistently shown that a clear majority of Americans support the ICC.
Since the ICC's creation, however, US policy toward the ICC has been driven by hysteria and misinformation. Wild-eyed opponents of the Court predicted that the ICC would be an anti-American monster, and before the Court ever had a chance to do anything, Congress enacted anti-ICC legislation and the Bush administration launched a global diplomatic campaign against the ICC. During President Bush's second term, when it became apparent that the ICC was a responsible judicial institution, some of the more heated anti-ICC rhetoric faded away, and US policy gradually evolved in the direction of less overt hostility and even quiet cooperation at times, although the anti-ICC policy remained unchanged throughout.
Since President Obama took office, there has been no formal change in policy as of yet, thus the US remains on the outside looking in. There are, however, signs of a thaw. Secretary of State Clinton said on her recent trip to Africa that it was her "great regret" that the US was not an ICC member. And in March 2009, following the ICC's arrest warrant for Sudan's President, the US Permanent Representative to the United Nations, Ambassador Susan E. Rice, stated that "[t]he United States supports the International Criminal Court's actions to hold accountable those responsible for the heinous crimes in Darfur"
The time has come for the US to support and cooperate with the ICC. The legislative and diplomatic initiatives against the ICC have failed and have only served to isolate the US, as more and more countries join the ICC (the Czech Republic recently became the 110th member of the ICC). There is added urgency for US participation due to the ICC Review Conference to be held next year in Uganda. This meeting's purpose is to take stock in the progress of the court, and evaluate mechanisms to help the Court function more efficiently. A major agenda item is settling on a workable definition of the crime of aggression, whether the ICC should exercise jurisdiction over the crime of aggression particularly what will trigger that jurisdiction over this inherently political crime.
US membership in the ICC is a long-term goal of many of us in the United States, but we recognize that ratification of the Rome Statute is highly unlikely for the foreseeable future. The time is right, though, for a new ICC policy embracing the following elements:
First, no more empty chairs: taking part in ICC meetings should be an obvious step. The US may participate as a nonvoting observer in the intergovernmental meetings of the ICC. Other countries that have not ratified the Rome Statute, such as Russia and Israel, attend and participate.
Second, the US should continue to support the ICC's investigations and operations by sharing intelligence and providing resources. The US has repeatedly called upon other countries to provide support for the ICC's Darfur investigations and prosecutions.
Finally, engaging with the ICC will require the US to repeal or amend the harmful anti-ICC legislation that remains on the books. Appropriate legislation should begin as soon as an ICC policy is in place.
Americans are justly proud of this country's commitment to the rule of law and to basic principles of justice. The past several years has brought that commitment into question by the world community. We must reclaim this heritage by rejecting the anti-ICC policies of recent years and embracing a new spirit of cooperation and support for this new and exciting institution. The principles the US helped draft at Nuremberg demand it.
The Section for International Law of the American Bar Association (ABA) and the ABA writ large have both been long term advocates of better support to the ICC. The Section for International Law has formed a blue-ribbon task force to assist the Assembly of States Parties and the new US administration in developing a dialog as the ASP begins to prepare for the Plenary Session in Kampala, Uganda in the late spring of 2010. The goal of this task force is to ensure that the US has an ability to work with the ASP on the key issues that the Plenary Session will consider next year and to develop mechanisms for communication, building mutual trust and respect. As members of that task force our hope is to see an engaged American diplomat sitting at the table in Kampala. The time is right to move forward together in seeking justice around the world for victims of atrocity.David M. Crane is a Professor at Syracuse University College of Law and former founding Chief Prosecutor of the international war crimes tribunal in West Africa called the Special Court for Sierra Leone, 2002-2005. Leila Sadat is Henry H. Oberschelp Professor of Law and Director of the Harris World Law Institute at the Washington University in St. Louis School of Law.