Monday, May 22, 2017

An Update on the Trump Administrations’ Approach to the ICC

The current administration has not set a new policy for the ICC; predictions about the future US-ICC relationship cannot be based on clear statements from the administration, because there are none. However, the strongest and most hopeful clues about future US-ICC relations came in the form of a statement from the US Deputy Legal Advisor, Stephen Townley, at the UN Security Council meeting on May 8th, 2017 and a statement from the US Embassy in Khartoum in Sudan. Yet, even logical deductions from those statements cannot be turned into predictions about the future position of the Trump administration on the ICC.

Security Council Statement on the Libya Situation

The United States’ statement at the Security Council praised the ICC Prosecutor Fatou Bensouda's work on the Libya situation, and, implored states to extradite individuals under ICC arrest warrants to The Hague for trial. The United States also expressed support for accountability of those responsible for crimes in Libya. It did so because the United States recognizes the necessity of accountability and justice to secure peace and stability. This was a powerful and commendable statement by the United States.

Although, it is a positive statement that the UN mission was consistent with past policy; the statement could have resulted from a variety of situations. The statement indicates that the Trump administration’s policy on the ICC could resemble the Obama administration policy or the policy of the second half of the Bush administration. However, it is also possible that the statement about Libya originated from the UN mission, and might not represent thinking in Washington. It could also mean that no new policy has formed. In fact, the “International Criminal Court” page on the State Department’s website still states that the “May 2010 National Security Strategy summarizes current US policy.” It is possible that no one in the Trump circles has really thought about the ICC or that changing the policy is not a priority for the administration. If the Trump administration does plan to follow the policy, it should continue to show a strong push for international criminal justice in situations where it fits US national interests, such as in Libya.

US Embassy Statement on Bashir

So far, the biggest test of the US-ICC relationship under the Trump Administration came in the form of reports that both US President Donald Trump and Sudanese President Omar al-Bashir would be attending the Islamic-American Summit. The ICC issued an arrest warrant for Bashir for charges of genocide, crimes against humanity and war crimes. Fortunately, for the administration, it was announced that Bashir would no longer be attending the meeting on Friday, May 19th. The preceding Wednesday, May 17th, the US Embassy in Khartoum, Sudan had stated:
"We oppose invitations, facilitation, or support for travel by any person subject to outstanding International Criminal Court (ICC) arrest warrants, including President Bashir."
The statement not only referred to Bashir but stated US position towards “any person subject to… (ICC arrest warrants.” It was a strong statement in support of upholding the ICC arrest warrants and the travel of Bashir, which has been a continuous problem for the Court. However, like the Security Council statement, the Embassy statement may have been derived from a wider State Department agenda, or it may have merely originated from inside the Embassy. It may have reflected a variety of situations in Washington.

Furthermore, given the existing global press attention and the potential image problem, if Trump had attended the summit with Bashir, it would have been a stronger demonstration of US commitment to accountability if a statement came directly from Washington. During the previous two administrations, high-level officials gave numerous statements of US support for the Court’s efforts in Darfur and called for the transfer of Bashir to The Hague after the Court issued an arrest warrant for him. It is more important than ever that the United States show a commitment to accountability in Darfur, and demonstrate that the United States does not condone impunity for those who committed atrocities. It should encourage its allies to work with the ICC to transfer those under ICC arrest warrants instead of enabling those individuals to travel to their country with impunity.

Another cause of concern for how the Trump Administration will treat the ICC situation in Darfur can be found in the March 2017 US Bureau of African Affairs’ fact-sheet on US-Sudan relations failed to mention the ICC, genocide, accountability or justice. The US has done very little on the issue of Darfur under the Trump Administration, and the fact sheet could reflect a potential shift away from the approach taken by Trump’s predecessors. However, the fact sheet also does not mention any individuals who face arrest warrants from the ICC, and the ICC tries individuals, not states. Perhaps it could be reasoned that since the fact sheet was about the US relationship with Sudan, the state and not with its officials, it does not represent a shift in approach.

Room for Concern

There is further room for concern about the future US-ICC relationship. The Prosecutor is considering allegations that the US and other NATO personnel committed war crimes against detainees in Afghanistan. While charges at the ICC against US nationals could have negative consequences for US-ICC relations, there is hope that it might be an impetus for the administration to procure justice for war crimes. The Administration could be encouraged to hold domestic trials of its nationals alleged to be most responsible for war crimes. There are reasons to do so. It would be a signal to the rest of the world and to the American public, that the United States does not condone or provide impunity for those who commit atrocities and violate American commitments. As a result, our global image might be reshaped as a state committed to human rights, the rule of law, and justice. Plus, prosecutions might mend the dissonance between Americans calling for accountability of foreign officials responsible for atrocities while allowing American nationals to enjoy impunity. Following the principle of complementarity, the ICC would refrain from trying Americans where the US has proceedings under way to uphold accountability and the rule of law, and this, in turn, could relieve many American fears about the ICC.

The Trump administration has asserted opposition to international organizations, which may be an indicator that the Trump administration will oppose the ICC, but it is unlikely that the Trump administration would oppose the existence of all international organizations. Previous AMICC blogs have pointed out that numerous international organizations do essential work. For example, without US participation in international organizations, Americans would be unable to safely fly internationally. Certain objectives can only be procured through international cooperation. The US mission at the UN has already recognized the importance of the ICC for securing accountability in Libya. The ICC’s commitment to justice and accountability for atrocities is particularly attractive to the United States, and it serves an essential role in securing justice in many situations. Additionally, the US is not a state party to the Rome Statute, has very few obligations to the ICC, but is interested the Court’s success.

Likewise, there were initial concerns about a draft executive order that included a provision about a committee recommending the United States defund the ICC. The committee would make recommendations on defunding international organizations, and the draft order included an extensive list of organizations for the committee to consider. The ICC is one of them. However, the provision of the draft executive order has yet to be signed by the president, and it would have no effect on US-ICC relations since it is already illegal under domestic law for the United States to fund the ICC.

Ultimately, there are numerous indicators, but they lack clarity. Even the statement by the US delegation at the UN cannot confidently be asserted as a forecast of future Trump administration policy towards the Court. In some respects, it might be better that the Trump administration avoid the topic of the Court altogether. The administration has yet to alter the inherited Obama policy towards the Court, and they have yet to criticize or attack the Court as the early Bush administration did. While a formulated approach by the new administration could follow the path of the Obama Administration or the late Bush administration, there is also the possibility that the administration would adopt the attitudes of the early Bush administration. On the other hand, there are cases where US political and tactical support have been extremely beneficial to the Court’s. It might be best to simply hope that the Trump administration provide support for the Court on a case-by-case basis—expressing its approval and offering its help in cases it finds attractive and staying mostly silent in other situations.

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