The US, the ICC and international justice in the presidential election campaign

libyausuniccreferral2011

After abstaining from joining the Darfur referral in 2005, the United States in 2011 voted in favor of the UN Security Council resolution referring the situation in Libya to the ICC. (Photo: AMICC)

As the United States’ 2016 presidential elections enter the final stretch, Convener for the American NGOs Coalition for the International Criminal Court John Washburn reflects on Obama’s legacy of positive engagement with the International Criminal Court (ICC) while offering recommendations toward the continued evolution of US-ICC relations during the next administration.

The Obama administration’s relations with the International Criminal Court (ICC) will probably be little mentioned in the presidential election campaign, but a new administration led by Hillary Clinton will likely recognize them as part of its legacy from Obama. Those relations have always accepted the reality of the Court and its importance, both potential and actual, to the United States.

The Obama government inherited a Bush administration policy on the Court, which had softened from energetic hostility in its early years, to abstention as the UN Security Council referred Sudan to the ICC in its midlife, and finally to detente in its later years. The new administration could therefore begin its ICC policy of careful approval and support in a way that built upon the approach of its predecessor.

“So far, the United States has considered all ICC cases to advance its interests.”

The United States almost at once began to send large, expert observer delegations to ICC meetings. The interest of these delegations in the key issues and detailed operations of the Court confirmed that it had a place in the administration’s commitment to multilateralism in its foreign policy. Speeches by government officials in various venues including the United Nations began to refer favorably to the ICC. The State Department rebranded and expanded its War Crimes office and Ambassador into what came to be called the Office of Global Criminal Justice and the US Ambassador-at-Large for International Criminal Justice. This office is responsible for managing US relations with the Court (along with international criminal justice efforts on a number of other fronts). The 2010 National Security Strategy declared a policy of “ …supporting the ICC in prosecuting those cases  that advance US interests consistent with US law.” So far, the United States has considered all ICC cases to advance its interests.

US laws such as the American Servicemembers Protection Act prohibit several types of assistance to the ICC and an earlier Foreign Relations Authorization Act prohibits US funding to the Court. However, the US government considers that these laws permit limited in-kind support to the ICC on a case-by-case basis. Under Obama, this support has become more substantial, and includes information, expertise and analyses. It has been especially helpful to the ICC Office of the Prosecutor in providing leads to evidence that will be accepted in hearings and trials.

Currently in Congress, although there has been very little general support for the ICC, a number of laws or resolutions about specific countries have referred favorably to the ICC or intended to include it under general provisions about “international courts and tribunals.”  This language appears, for instance, in a law providing for monetary rewards to persons assisting in the successful execution of arrest warrants from international courts and tribunals

“A formal statement of the Obama position on the ICC as part of the legacy would help to frame the issue for whatever attention it may receive in the presidential election campaign.”

As the Obama administration approaches its close, US supporters of the ICC hope that its policy and practice about the ICC will become part of its formal legacy now being put together. An important element of this legacy would be reactivation of the US signature of the Rome Statute. The Bush administration deactivated the signature so that it would not oblige the United States to support the Court. Reactivation by a simple note to the UN Secretary General would help prevent hostile actions toward the ICC and encourage productive engagement.

A formal statement of the Obama position on the ICC as part of the legacy would help to frame the issue for whatever attention it may receive in the presidential election campaign. Since the campaign will be focused mostly on domestic issues and terrorism, this attention is likely to be very slight. Any consideration this early about the position and policy of a new administration about the Court can only be very speculative. It is probable however that, with the inherited Obama position, together with the performance of the Court so far, we will see continued engagement.  Whether the United States in future goes further in support  of the Court depends on unfolding international events and the Court’s response to them.


John L. Washburn is convener for the American NGOs Coalition for the International Criminal Court (AMICC) and co-chair of the Washington Working Group on the International Criminal Court (WICC). He was previously a member of the United States Foreign Service and acted as a director in both the Executive Office of the Secretary-General of United Nations and the United Nations Department of Political Affairs. Washburn attended most of the United Nations negotiations on the International Criminal Court since 1994, including all of the 1998 diplomatic conference in Rome. Read more on the history of US support for the ICC and see what the US public thinks of the ICC.

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