John B. Bellinger III is a partner with Arnold & Porter LLP and an adjunct senior fellow in international and national security law at the Council on Foreign Relations. He served as legal adviser for the State Department from 2005 to 2009 and as legal adviser for the National Security Council from 2001 to 2005.
July 1 will mark the 10th anniversary of the opening of the International Criminal Court (ICC), the global tribunal established in The Hague to prosecute acts of genocide, war crimes, aggression and crimes against humanity. Today, 121 countries are party to the Rome Statute, the treaty that created the court, and the court has indicted more than two dozen people, including Sudanese President Omar al-Bashir, on suspicion of genocide in Darfur, and Lord’s Resistance Army leader Joseph Kony, suspected of war crimes in Uganda.
The United States is not a party to the Rome treaty and will not join anytime soon. Still, Congress should revise legislation it passed in 2002 because of fears that the court might prosecute U.S. personnel. These outdated restrictions hinder the executive branch’s ability to support the court’s prosecutions of international war criminals.
The U.S. attitude toward a dedicated war crimes tribunal has been ambivalent from the start. Congress passed several bipartisan resolutions in the 1990s supporting the creation of an international criminal court modeled on the Nuremberg tribunals but with safeguards to protect Americans. Officials in President Bill Clinton’s administration participated in negotiations for the 1998 Rome Statute but ended up voting against it at the end of the diplomatic conference in Rome because of concerns at the Defense Department that the ICC would conduct politicized prosecutions of U.S. military personnel. Clinton authorized the United States’ signature but said that the treaty had “significant flaws” and that “I will not and do not recommend that my successor submit the treaty to the Senate . . . until our fundamental concerns are satisfied.”
In May 2002, the Bush administration formally notified the United Nations that the United States would not become party to the statute. This action was denounced by human rights groups and many countries as Washington “unsigning” the treaty and seeking to undermine the fledgling court. That July, alarmed that the ICC might attempt to prosecute U.S. officials even though the United States was not a party to the treaty, Congress passed the American Service-Members’ Protection Act. This punitive law — drafted by House Republicans but supported by many Democrats, including then-Sen. Hillary Rodham Clinton — prohibits U.S. assistance to the ICC and to countries that join. One jingoistic provision even authorizes the president to use force to free Americans imprisoned by the court; the legislation soon became known in Europe as the “Hague Invasion Act.”
In its second term, the Bush administration established a modus vivendi with the court. It agreed to the U.N. Security Council resolution referring the Darfur genocide for investigation by the courtand later blocked efforts by China to defer the Darfur inquiry. President George W. Bush waived restrictions on counterterrorism assistance to many ICC members after Secretary of State Condoleezza Rice publicly remarked in 2006 that the restrictions were like “shooting ourselves in the foot.”
President Obama has approached the ICC cautiously. Administration officials have adopted a warmer tone toward the court and attend meetings of ICC members as observers. But they continue to voice concerns about ICC jurisdiction over U.S. nationals and have not reversed the Bush administration’s “unsigning.”
In 10 years of high-cost operations, the ICC has had mixed success in delivering international justice. It has indicted 28 African political or military leaders but has completed the trial of only one: Thomas Lubanga, convicted in March of conscripting child soldiers in the Democratic Republic of the Congo. African governments have said that the ICC is too Africa-focused and that it has failed to prosecute crimes committed by other governments. The court does not have jurisdiction over the attacks against civilians carried out by the Syrian regime because Syria is not a party to the Rome Statute, and China and Russia have blocked U.N. Security Council efforts to refer the Syrian situation to the court.
The court has proved less threatening to U.S. personnel and interests than many Americans first feared. The ICC prosecutor has never charged a U.S. official with war crimes and declined to prosecute offenses allegedly committed by U.S. forces in Iraq. In April he appropriately refused to open an investigation into Israel’s intervention in Gaza in 2008-09. Next month’s anniversary is an appropriate time for Congress to review U.S. policy toward the court and whether the restrictions (including the authorization to invade The Hague) in the American Service-Members’ Protection Act do more harm than good. Although the law contains exceptions and waivers (some of which I negotiated), it has hindered the Bush and Obama administrations from providing some forms of assistance to the court, even in cases for which there is strong bipartisan support for holding war criminals such as Bashir and Kony accountable.
No president should submit the Rome treaty to the Senate until the concerns identified by Clinton and Bush have been addressed. But Congress must balance these concerns with the United States’ long-standing and bipartisan commitment to international justice. When the partisanship of this election year subsides, Congress should modify the restrictions in the 2002 law that have prevented the United States from supporting the court in cases where justice for international atrocities cannot be achieved through other means.