After years of open hostility, the US and the International Criminal Court have agreed to an uneasy truce. Can the only military superpower forge a partnership with the world's most ambitious war crimes tribunal?
War crimes tribunals like the ICC seek to end impunity from the law
In the aftermath of the September 11th attacks, the United States severed its already strained ties with the International Criminal Court (ICC) in The Hague. In spite of the critical role Washington played in prosecuting crimes against humanity during the 1990s, America's political establishment harbored a bipartisan suspicion of the ICC.
Under President Barack Obama, the US has dropped its outright hostility toward the world's first permanent war crimes court and is re-evaluating its confrontational stance. Washington is now seeking a sort of strategic partnership with the Court - rooted in the pursuit of common interests. However, even as relations warm, the prospects of US membership are slim.
The ICC meanwhile soberly continues its task of prosecuting widely condemned war criminals. The next major trial begins on November 22 against Jean-Pierre Bemba, the Democratic Republic of Congo's former vice-president.
Equal justice under the law
Originally, the US administration under Bill Clinton supported the idea of a permanent tribunal to prosecute war crimes, crimes against humanity and genocide. But American diplomats ran into major sticking points during the negotiations that laid the foundation for the ICC.
The international community thought the Security Council would obstruct the ICC's work
Washington envisioned a court anchored in the United Nations Security Council, which could check the power of the ICC prosecutor. Ultimately, the five veto-holding countries would decide whether a case moved forward.
However, the majority of nations without a veto feared the Security Council would simply torpedo the Court's work. To prevent obstructionism, the international community granted the ICC judicial independence within the so-called Rome Statute, the treaty which set up the Court.
"They wanted an independent court," Johannes Thimm, an expert on US foreign policy at the German Institute for International and Security Affairs, told Deutsche Welle. "They wanted to prevent the possibility of double standards, and they wanted to prevent the possibility that the Court could be held hostage to members of the Security Council."
Meanwhile, Washington worried that its critics would use the Court to impeach American power. US officials across party lines argued that as an exceptional world power with exceptional obligations, the country required exceptional guarantees that its political leaders and military officers would not be targeted by the ICC's prosecutor.
"The reality is that there's a difference between the US and other states in respect to their security obligations," Vijay Padmanabhan, a former attorney-adviser at the US Department of State, told Deutsche Welle. "With the US committing troops as it does to the four corners of the globe, there needs to be a sense of comfort with the Court that it won't go after US officials."
According to the Rome Statute, the Court can only investigate a case if the responsible nation state fails to do so. But this safeguard did little to ease the concern expressed by Washington. Then when the international community refused to grant the US a special status, Washington's relationship with the ICC hit an impasse.
In response, the Clinton administration opted for a wait-and-see approach, signing the statute without ratifying it. In other words, Washington endorsed the idea of the ICC, but objected to its current structure.
With us or against us
Ambivalence toward the Court gave way to open hostility after the September 11th attacks. As the administration under George W. Bush unilaterally waged its controversial "War on Terror," US policymakers worried that the military had become vulnerable to politically motivated indictments by the ICC. They feared that an activist world court could undermine America's ability to wage an effective war.
The Bush administration called a truce with the ICC during its second term
"The argument often brought forward within the discussion in the US is that they want to protect their soldiers," Thimm said. "Their true concern is to give the international community another forum in which decisions about US military strategy or intervention policy can be criticized and their legitimacy can be questioned."
In order to ease these concerns, Congress passed the American Service-Members' Protection Act, which prohibited US cooperation with the Court. The act empowered the president to cut aid to ICC member states unless they guaranteed legal immunity for American soldiers.
The US position at the time was that you were either with the United States or against it. Since the ICC could not take sides, it became an unwitting political enemy of the Bush administration.
Agreeing to disagree
But as the ICC began to prosecute cases, US policymakers realized they could use the Court as a tool to further American objectives abroad.
"In the second term of George W. Bush, there were important practical changes away from the ideological campaigns that some had conducted against the Court in its first years," Richard Dicker, director of the international justice program at Human Rights Watch, told Deutsche Welle.
According to Dicker, there was real support for the Court's work on a practical level.
"In particular, situations where the Bush Administration saw the congruence of US foreign policy interests and the work the Court was doing," he said.
When the Bush administration made the humanitarian crisis in Sudan a part of its policy agenda, the ICC became a useful lever to put pressure on President Omar al-Bashir's regime in Khartoum. The US abstained when the Security Council voted to refer Sudan to the ICC in 2005, indicating for the first time that Washington tacitly supported the Court.
"If you want to take a skeptical state like the US and develop a working relationship, this is how you do it," Padmanabhan said. "You find cases where there's agreement between the US and the Court and in those cases, the US will provide a full range of support for the Court."
Building on the policy of Bush's second term, the Obama administration has turned tacit cooperation with the Court into an active partnership. During a trip to Kenya in 2009, Secretary of State Hillary Clinton expressed regret that the US was not a signatory to the Court.
Meanwhile, the US Ambassador for War Crimes Stephen Rapp announced the US would "return to engagement with the ICC."
The Obama administration supports the ICC indictment of Sudanese President al-Bashir
A series of concrete steps have followed the conciliatory rhetoric. The Obama administration sent delegations to ICC conferences for the first time in years, including a crucial review conference in Kampala, Uganda last June.
The administration has also publicly supported the ICC's indictment of al-Bashir, the first sitting head of state to face an arrest warrant from the Court.
"There's a change in tone, and there's a change of rhetoric," Thimm said. "They don't attack the ICC as much as the Bush administration did, and they say they share the goals of the ICC."
Elephant in the room
Despite improved relations, the US remains unlikely to join the Court in the near future. The US Senate views the ICC as a potential violation of national sovereignty, making it very difficult to garner the two-thirds vote needed to ratify the Rome Statute. Also, the Court's recent decision to include the crime of aggression within its jurisdiction has raised red flags in Washington.
Aggression is politically charged and poorly defined under international law, according to Padmanabhan. Its inclusion would muddle the Court's "core" mandate to prosecute crimes of war, crimes against humanity and genocide. If the crime of aggression becomes a major focus of the Court's energies, the United States could become estranged once again.
Yet Dicker believes that if the Court pursues its mission fairly and consistently, Washington may eventually come around.
"The only course for the Court is to do its work as a judicial institution - not to cater to the United States, not to cut corners or adjust its practices in the hope that it would raise the comfort level in Washington," Dicker said.
Author: Spencer Kimball
Editor: Sabina Casagrande