The New York Times has it close, but not quite right, about the US and the International Criminal Court in its June 3 piece, “Politics Seen Undercutting Credibility of a Court” (read here). This was prompted, like a lot of similar comments, by the failure in the UN Security Council of a resolution to refer atrocities in Syria to the Court.
Despite the impression given by the article, France, not the United States, led this effort. All Council members knew well that China and Russia would veto. Most joined France in wanting to use the resolution to isolate and condemn them for their position on Syrian atrocities. With patience, adroit drafting, adept diplomacy and support from fellow Council permanent members the USA and Britain, France won votes for its resolution from 13 members of the total Security Council members. Supporting speeches, including the American one, condemned China and Russia harshly and directly. No one hearing these remarkably emotional and hard-hitting statements could possibly have agreed with the Times that they politicized the notion of international criminal justice or undermined its credibility. The speeches marked the success of a collective attack on Syria’s supporters, not a single-handed United States effort “to skewer its foes.”
In its relations with the ICC, the United States is shackled by legislation. These laws ban the country from giving money either directly or through the United Nations to the Court, allow US support to it only in cases that are “in the American national interest” and block the Court’s jurisdiction over US service members. However, the United States has never declared an ICC case to be not in the national interest.
Nonetheless, the United States did give a political coloration to the draft resolution on Syria by insisting on language about the American national interest, denying UN funds to the Court and keeping the Golan Heights out of the ICC’s jurisdiction. Argentina and Chad rightly called out the US on these restrictions. If the United States continues to do this, some ICC supporters believe that, rather than compromise its efficiency and independence, the Court should refuse to accept Security Council referrals that contain these limitations.
The United States is one among many members and friendly nations that fail to enforce ICC arrest warrants and other orders. This is a general problem for the Court with which a caucus in the Court’s governing body is grappling now. The United States should join in carrying out any sensible solution the caucus achieves.
The infamous bilateral immunity agreements strong-armed by the Bush administration indeed remain technically in effect, but are feared by other countries no longer, now that Congress has removed the threat of stopping military aid to them. However, the agreements should go for good, lest some future administration try to restore the threat. Abandoning them might start if countries offended by the agreements began to withdraw from them.
As the Times explains, the US has a good and ever-growing relationship in support of the ICC. This now needs a firm foundation of policy, consistently applied, to support this good practice.
Written by John Washburn, AMICC Convener