By Nora Boustany
Washington Post Foreign Service
Tuesday, June 12, 2007
In a bid to deflect world criticism of America's approach to international law, John B. Bellinger III, the State Department legal adviser, in a speech last week offered the possibility of U.S. assistance to the International Criminal Court in The Hague in its investigation into atrocities in the Darfur region of western Sudan.
In a telephone interview Monday, Bellinger confirmed that the Bush administration was open to considering any request for help in the investigation and prosecution of war crimes committed in western Sudan since 2003, provided the assistance did not conflict with U.S. laws or provisions for the protection of U.S. military personnel abroad.
U.S. officials insist that this is not a reversal of past policy. Nonetheless, court officials and human rights activists have welcomed the remarks as evidence of a new U.S. willingness to engage in practical collaboration with the ICC. Court officials said they will be more confident making requests that they now know will be considered.
"The very seriousness with which we approach international law is sometimes mischaracterized as obstructionism or worse," Bellinger said in his speech last Wednesday in The Hague, which is posted on the State Department's Web site. America's decision not to join the ICC was over concerns of jurisdiction and national sovereignty but was "in no way . . . a vote for impunity," Bellinger said.
"If we have differences with the ICC, we share its goals of accountability in crimes against humanity, particularly in Darfur," he said in the interview.
Over the past couple of years, "we have worked hard to demonstrate that we share the main goals and values of the Court," Bellinger said in the speech, disclosing to an international audience a policy that until then was the subject of debate on Capitol Hill. "We did not oppose the Security Council's referral of the Darfur situation to the ICC, and have expressed our willingness to consider assisting the ICC prosecutor's Darfur work should we receive an appropriate request."
On Friday, the ICC's chief prosecutor, Luis Moreno-Ocampo, said in an interview here that Bellinger had informed court officials that the United States would be willing to "share evidence with us." One of Moreno-Ocampo's assistants said Bellinger also made that promise in his speech in The Hague.
Bellinger would not say if he met separately with ICC representatives but noted that they were in the audience Wednesday.
Moreno-Ocampo said he was delighted to see both the U.S. ambassador to the United Nations, Zalmay Khalilzad, and his deputy attend his presentation to the Security Council on Thursday. "Before, they only sent junior staff members," Moreno-Ocampo said.
Japan has informed the ICC it will be joining at the end of July, he added. "So the ball is rolling. The Japanese are meticulous, but they are coming. The ICC is a great idea whose time has come."
Bellinger said that when he gave his speech, at the Atlantic Commission in The Hague, there were judges and prosecutors in attendance from all the ad hoc tribunals set up to investigate war crimes, as well as senior sponsors of the event from the ICC, bringing together many of the most prominent international jurists. The United States is not a signatory to the Rome Statute that created the court and objects on principle to its claim of jurisdiction over citizens of states that are not members.
Sen. John McCain (R-Ariz.) and human rights activists have pressed the U.S. government to use its satellites to assist the ICC, which is not only investigating the perpetrators of past crimes but also monitoring the situation in Sudan in real time to ensure that displaced people and refugees from Darfur are protected from further harm.
Bellinger would not go into the details of how far the offer to assist the ICC's Darfur probe will go.
"One cannot say yes in advance to receiving a request," he said. "Depending on what it is, and if it is something that we have and is in accordance with our own laws and did not undermine our own intelligence work, we would be prepared to say yes."
The American Service-Members' Protection Act has often been cited as the reason the administration has hesitated to collaborate openly with the ICC. Bellinger referred to a statement made by Robert B. Zoellick, then deputy secretary of state, during a Senate Foreign Relations Committee hearing on Darfur on Sept. 28, 2005.
Referring to an exemption in the act, Zoellick, who has been chosen to be the next World Bank president, said at the time: "We have the ability to cooperate. And as I said in the House, if people ask for our help, we will try to make sure that this gets pursued fully. We do not want to see impunity for any of these actors."