International Criminal Court for the US: Join the ICC, America

in Continuing the Discussion

BENJAMIN SCHAARE
GUEST CONTRIBUTOR AT SAIS WASHINGTON

The International Criminal Court (ICC) holds individuals accountable for the four most heinous crimes: genocide, war crimes, crimes against humanity and aggression. That is why joining the court is in the United States’ interests. After initially opposing the courts’ creation in 1998, President Clinton signed the Rome Statute in 2000, only for President Bush and John Bolton to gleefully ‘unsign’ it in 2002.

US suspicion of the ICC is understandable, but misplaced. For instance, a key concern is the court’s potential ability to indict senior U.S. officials. While theoretically possible, in reality the chances are slim to none. The ICC has jurisdiction over only the most serious crimes, investigations are launched and progress cautiously, and not all investigations result in indictments. With its limited resources and mandate the ICC cannot and does not entertain frivolous lawsuits, which discounts the chances of politically motivated investigations and indictments. The likelihood of a senior U.S. official being involved in one of these appalling crimes, and the crime being ignored by domestic courts is exceptionally low.

Domestic opponents of the ICC frequently cite their apprehension of granting an overseas court jurisdiction over Americans; in effect sacrificing sovereignty. Based on the court’s jurisdiction however, this fear is unfounded. The ICC’s jurisdiction over a case is subject to complementarity, which means the ICC can only investigate a situation if national courts are halfheartedly investigating or actively refusing to investigate the matter. The healthy and well-developed U.S. military justice system should thus preclude ICC investigation of US actions.

The United States already works with the court, but as a non-member has few means to influence its actions. Despite unsigning the Rome Statute and working to sink the ICC, even neoconservatives within the George W. Bush administration acquiesced to ICC involvement in Darfur. Confronted with a decision between condemning genocide and impunity or clinging to unilateralism, the US chose international justice. Since then, US cooperation with the court has increased. It makes little sense for the US to continue to support an institution that represents its values without being able to formally participate in the court’s actions and decisions.

Finally, remaining outside the ICC is contrary to US values and foreign policy goals. The US ostensibly stands for international justice and peace, but merely pays lip service to these values by exempting itself from the international body enforcing them, to the ire of many other countries. Among US advocates of the ICC, a well-worn pretext for not ratifying the Rome Statute is the challenges it would face in Congress. Yes, Congress is divided, but that is a weak excuse. As discussed, US apprehension towards the ICC can be allayed, so either the US stands with 122 other states that value international justice, or they do not.

The United States does not want impunity for war criminals like Muammar Gaddafi and Laurent Gbagbo, and joining the ICC would be a bold and laudable step cementing America’s commitment to international justice.