April 16, 2008

Re-Evaluate Our Position Toward the International Criminal Court

Center for American Progress

Congress should re-examine its stance towards the International Criminal Court—the first permanent international court created to try those responsible for the most egregious international crimes—in the lead-up to the ICC Review Conference in 2009, when parties to the ICC can propose amendments to the Court’s statute.

The United States played an active role in conceptualizing the ICC, but since the statute came into force in July 2002 (without the United States as a participant) the Bush administration’s approach toward the institution has varied from uncooperative to downright hostile. As of today, 104 states have become parties to the statute,with the United States joining countries such as China, Cuba, North Korea, Iraq, Libya, and Burma in opposing the Court.

The ICC is an essential building block in the evolution of international and criminal law that the United States should be helping to lead, not tear down. A strong ICC could help deter genocide, crimes against humanity, and war crimes through the threat of accountability. It could also foster reconciliation in war-torn countries and encourage states to hold their own citizens accountable for serious violations of international humanitarian law and human rights.

The ICC is still developing a track record, but the Court has made significant progress so far. In its first few years, it has opened investigations into grave alleged crimes in Uganda, the Democratic Republic of the Congo, Sudan (Darfur), and the Central African Republic. U.S. critics of the ICC have consistently stated that the Court will bring politically motivated cases against U.S. soldiers and other citizens. Yet precisely because the United States was deeply involved in the creation of the ICC statute, the Court is designed to be a fair and independent judicial body, with one of the most expansive lists of due process guarantees ever created.

The ICC contains numerous safeguards to prevent politically motivated or frivolous cases from being brought against Americans. As Sen. Patrick Leahy (D-VT), chairman of the Appropriations Subcommittee on Foreign Operations stated,

“The ICC has refuted its critics, who confidently and wrongly predicted that it would be politicized and manipulated by our enemies to prosecute U.S. soldiers.”

Congress should lay the groundwork for the next administration and see the 2009 Review Conference as a chance for a fresh start with the ICC. While U.S. Senate ratification of the treaty before the Review Conference would be the ideal course of action, as a first step Congress should call upon the Bush administration (through a concurrent resolution or in an appropriations bill) to participate in both the ICC Assembly of States Parties and the Review Conference as an observer. As an observer, the United States would be able to participate significantly in Assembly debates, as well as suggest and respond to proposals, even if it does not become a party to the statute.

Congress should also hold hearings on the ICC in advance of the Review Conference to assess America’s position toward the Court. Such hearings should include military experts, officials from several ad hoc international tribunals in which the United States is involved, and international criminal law practitioners and scholars.

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