U.S. and the ICC: Lukewarm is not warm

I’ve been an ICC advocate for almost seven years and there’s one question people ask that never seems to have a short answer: What’s the real deal with the current U.S. policy on the ICC? I am going to spare you the very long answer (in this blog, at least). But sufficed to say that characterizing U.S. policy on the ICC as one that is “warming up” these days would be, well, wrong. Don’t take my word for it though—take the word of the Secretary of State’s Senior Legal Advisor, John B. Bellinger III.

I gave a presentation on U.S.-ICC policy last November at the ICC’s fifth Assembly of States Parties in The Hague, and as tempting as it was to paint a rosy picture for the foreign officials, NGO representatives, and other stakeholders who were wondering about Washington’s mixed signals on the ICC, I refrained. When you’re a 29 year-old halfway across the world in a room full of diplomats and veteran ICC advocates, you remember your manners: Be attentive. Show respect by listening. Think before you speak. Don’t be overly confident. But I was there for a reason, and as one of (sadly) a handful of people who tracks U.S. policy on the ICC, I wasn’t about to misrepresent the facts on the U.S. side.

The reality was that I didn’t think the Administration was “warming up” to the ICC. Put another way, I didn’t believe that the recent congressional and presidential action was reflective of a deeper policy shift toward the ICC. Rather, the Administration was trying to triage the consequences of a policy that had been bad from the start: its Bilateral Immunity Agreement (BIA) campaign. More pragmatic voices inside the Administration had seemingly realized that the BIA campaign, which requires all ICC countries to sign blanket immunity agreements for Americans or face millions of dollars in aid cuts, was an ineffective policy at best. At worst (which in my view has come to pass), the BIA campaign has been a counterproductive policy that has burned much needed political capital with countries like Jordan (“our greatest Arab ally in the war against terror”), Kenya (“a linchpin of East African stability and security”), and a slew of Latin American countries (much to the delight of Venezuelan President Hugo Chavez).

For the last eight months, I’ve been hoping my assessment at The Hague was overly cautious. But Mr. Bellinger’s June speech in The Hague and July 12 interview with the Council on Foreign Relations (CFR) here in D.C. confirmed how lukewarm the U.S. government is when it comes to the ICC.

On June 6, Mr. Bellinger gave a speech titled “United States and the Law” in The Hague, the Netherlands. He opened his speech with this memorable line: “Some of you may think it rather bold of me to come to a city renowned for its institutions of international peace, justice, and security and talk about the United States’ commitment to international law.” (It’s no secret that our European friends are dumbfounded by U.S. policy toward the ICC, not to mention other issues like Guantanamo). He mentioned U.S. opposition to the ICC, saying that “we believe it important that ICC supporters take a…practical approach in working with us on these [international justice] issues, one that reflects respect for our decision not to become a party to the Rome Statute. It is in our common interest to find a modus vivendi on the ICC based on mutual respect for the positions of both sides.” (I put in the bold).

There’s no question that the U.S. is a sovereign country and as such can choose not to join the ICC. But this fact is precisely where he loses me—why doesn’t the reverse hold true for the U.S. government? Surely other sovereign countries have the same right to choose to join the ICC without fear of reprisal or strong-arming from us. This would be the “mutual respect” that Mr. Bellinger mentioned. But this has not been our policy. Mutual respect would not leave a country like Peru with a 2005 per capita GNI of $2610 with millions of dollars in aid cuts from the U.S. simply because it joined the ICC and doesn’t want to violate its own laws by signing a BIA.

In his July 12 interview with CFR’s Robert McMahon, Mr. Bellinger finally set the record straight: “I understand that this has been the view of many ICC supporters all along—that as long as the ICC as an institution continues to behave reasonably, the United States will warm to it. I don’t think that’s an accurate characterization” (my bold).

By the way, if you’re wondering why the U.S. is so opposed to the ICC, Mr. Bellinger described the Administration’s chief concern as the ICC having “purported jurisdiction over us.” I’m glad he used the word “purported”—sounds like he’s read the ICC Chief Prosecutor’s detailed communique in February 2006 explaining exactly why the ICC does not have jurisdiction over U.S. actions in situations like the war in Iraq. The communique wasn’t an isolated occurrence, either—ICC officials have stressed at every turn that in accordance with its treaty, the ICC is a court of last resort. This means each country’s domestic legal system has primary jurisdiction over its own nationals accused of committing war crimes, crimes against humanity, and genocide.

I understand Mr. Bellinger’s situation: to have a change of heart now would make the fiery rhetoric of opposition that the Administration and some members of congress have shown the ICC for the past seven years seem awfully silly. (My favorite is former Congressman Tom Delay’s characterization of the ICC as “Kofi Annan’s kangaroo court.” I should mention that the ICC is wholly independent from the U.N. and its Secretary Generals). Still, I really wish our officials were going about this differently. If the government has concerns about the ICC, which it has a right to do, it should go about expressing them in a much more constructive way. If you’re upset with someone, stewing in a corner and picking on others who speak to that person is only going to leave you angry and alone.

It’s recently been rumored that the State Department no longer views the BIA campaign as a priority. The reason? Apparently the Administration doesn’t consider the ICC as a threat anymore. Not exactly the warmth I was looking for. I’m having an increasingly difficult time letting Mr. Bellinger speak for me and other Americans. The fact is the majority of us in this country support the ICC—an international criminal court that is tasked with investigating and prosecuting the world’s worst crimes. The ICC isn’t about targeting the U.S. Characterizing the Court that way tells the millions of innocent civilians in Darfur, Democratic Republic of Congo, Uganda, and countless other places that we don’t care about ending genocide and impunity. Mr. Bellinger says our Administration shares the “overall ends” of justice and accountability, just not the ICC. It’s time for other American voices to be heard.