JURIST Guest Columnist David Scheffer of the Northwestern University School of Law says that although the US is not an official member of the International Criminal Court, it can nonetheless promote international justice through strengthening its unofficial ties to the organization…

The US has become a de facto member of the International Criminal Court (ICC). That reality may surprise those who view the advent of the court’s second decade as reason either to reiterate their objections to Washington joining the tribunal or to advocate for US ratification of the court’s constitutional document, the Rome Statute. That treaty has been joined by 121 nations, including all of Europe, South America, and most of America’s other allies and democratic friends. Russia, China, India, Pakistan, Indonesia, and most of the Arab world remain outliers.

In recent years the Obama administration has engaged the International Criminal Court on so many levels that the days of Washington seeking to undermine the ICC are over. Both sides in the long-running debate over any US participation in the court should recognize that there is a common bond between them, one that can protect national interests and revive American leadership in international criminal justice.

Since it opened its doors on July 1, 2002, the ICC has indicted more than 20 political and military leaders of genocide, crimes against humanity and war crimes in seven African nations, launched eight cases before the trial chambers and convicted its first war criminal, Thomas Lubanga Dyilo, in March 2012. In hindsight, more probably could have been accomplished and trials managed more efficiently during the last decade. But the court has gone through a maturing process that holds promise for the future as the new prosecutor, Fatou Bensouda, takes office.

The Bush administration actively opposed the ICC with such determined antagonism (at least during its first term) that it dug a deep ditch out of which it will take the US a long time to climb. As chief US negotiator on tribunal-building during the Clinton administration, I have long advocated for formal ratification of the Rome Statute once certain measures are taken domestically. These include enabling the federal courts to exercise jurisdiction over all atrocity crimes so that American citizens are held accountable at home rather than before trial chambers in The Hague, and assuring the US Senate of the Rome Statute’s constitutionality.

Although these steps are not yet realized, the US has already become a key player in ICC efforts to advance international justice.

Last October, the Obama administration deployed at least 100 military advisers to Uganda to assist in tracking and apprehending Joseph Kony, head of the Lord’s Resistance Army, and his three top associates. They have long been indicted by the ICC for recruitment and use of child soldiers and other atrocity crimes. Removing them from East Africa would improve security and the prospects for peace there.

The US is well-positioned to use its diplomatic clout and intelligence capabilities with other apprehension and transfer challenges facing the court. These include determining the ultimate fates of Saif al-Islam Gaddafi, one of the court’s highest-profile indictees, who is being held in Libya, and his co-indictee Abdullah al-Senussi, detained in Mauritania. American diplomatic initiatives in the UN Security Council (UNSC) have been instrumental in maintaining pressure on Sudan President Omar al-Bashir, who has been indicted by the court for genocide and other atrocity crimes in Darfur.

Washington also played a key role in sustaining the court’s investigative and prosecutorial efforts of key political figures in Kenya. Tracking down indicted fugitive Bosco Ntaganda, who continues his murderous attacks in the Ituri region of the Democratic Republic of the Congo, has to be a high priority for American intelligence-gathering in the region.

The US global criminal justice ambassador, Stephen Rapp, has worked tirelessly on apprehension initiatives to assist the ICC. He seeks to extend the Rewards for Justice program, initiated against indicted war criminals during the 1990s, to make generous payments to those who provide information leading to the arrest of indicted fugitives of the ICC.

As a permanent member of the UNSC, the US facilitated the referral of the Darfur atrocities to the court in 2005 (the first crack in the Bush administration’s anti-court crusade) and last year led in referring the Libyan uprising, which resulted in the indictment of autocrat Muammar Gaddafi. Given the tough American initiatives in the UNSC on the Syrian conflagration, it would not be surprising if the US leads in referring Syria to the court if Russian and Chinese resistance can be deflected.

Since November 2009, top US officials, supported by a legion of bureaucrats, have participated with observer nation status in the periodic meetings of the court’s Assembly of States Parties. Their impact has been significant, such as in defining and enforcing the newly added crime of aggression. Though the US cannot vote in these meetings, its presence is generally welcomed by states parties and signifies de facto influence over the entire endeavor.

US President Barack Obama recently created the Atrocities Prevention Board, which will coordinate atrocities prevention policies and initiatives throughout the federal government and in coordination with other nations and non-governmental organizations. One of the instruments the board will rely upon to prevent further atrocities in violent regions is the ICC. Deterrence can never be guaranteed, but initiating criminal investigations and prosecutions of war criminals can send a powerful message and remove bad actors from atrocity zones.

Granted, the US has not assumed any of the financial or legal obligations of the Rome Statute, such as paying annual assessments and being subject to the jurisdiction of the court as are states parties. De jure membership would greatly strengthen Washington’s influence in the work of the court and demonstrate American resolve to collaborate with other nations in the enforcement of international criminal law. In the meantime, the US could take the initiative in the UNSC to ensure that the investigative and prosecutorial costs of council referrals to the ICC are at least partially paid for with UN funds (as envisaged under the Rome Statute). The US Justice Department could also show greater resolve in prosecuting those officials who may have engaged in, or been complicit in the commission of, atrocity crimes. Repealing the American Service-Members’ Protection Act of 2002, which still blocks some cooperation with the court and sanctions the invasion of the Netherlands to liberate any Americans detained for trial before the ICC, would send a strong signal that the US is no longer intimidated by the court.

America’s de facto membership in the ICC may not be the best possible means to achieve international justice, but it nonetheless should be recognized as a win-win for everyone other than tyrannical regimes and indicted war criminals.

David Scheffer is a law professor at Northwestern University and former US ambassador-at-large for war crimes issues. His new book is All the Missing Souls: A Personal History of the War Crimes Tribunals.

Suggested citation: David Scheffer, America’s Embrace of the International Criminal Court, JURIST – Forum, July 2, 2012, http://jurist.org/forum/2012/06/dan-scheffer-us-icc.php.