It is with a great amount of interest and substantial respect for their efforts that I am delighted to pass along news of the release of the American Society of International Law Task Force Report on Policy Options for U.S. Engagement with the International Criminal Court (the ASIL ICC Report) Their objectives were quite straightforward:
The goal of this Report is to provide relevant background about United States policy toward the International Criminal Court (ICC or Court) and to recommend options that can be implemented by the Executive Branch and Congress for engagement with the ICC. Accordingly, our recommendations are directed toward U.S. Government actors with an eye toward balancing the competing equities within the political branches and the relevant Executive agencies.
The objectives also underlined the core premises driving the analysis: (1) engagement of some sort with the ICC is unavoidable; (2) positive engagement (rather than an engagement designed to hobble or destroy th ICC as a functioning institution) might better enhance US interests; (3) but that such positive engagement involves substantial risks to US interests as well (this last point "coded" by the langauge of "balancing the competing equities").
The Recommendations were roughly in line with a cautious approach geared to salvage what is possible from earlier efforts at multilateralism in general, and the development of a consensus global legalization of a core group of actions around the structures of a global judiciary and prosecutorial bureaucracy. The conclusions were straightforward and nicely aligned with this approach.
(A) “Clearing the Air”: The U.S. relationship with the ICC does not exist in a vacuum. U.S. attacks on the Court in recent years, and especially the imposition of sanctions on the ICC Prosecutor and one of her staff, came at significant cost to the U.S. reputation and to its ability to be an effective voice on issues of importance to it. These measures also created an environment in which states parties felt that the Court needed to be defended, were forced to distance themselves from the U.S. position, and found it more challenging to pursue legitimate reforms that could be seen as benefiting the United States. Against this background, the Task Force recommends that the new Administration approach and speak about the Court and its personnel in a manner that comports with its overall approach to multilateralism, international institutions, and working with friends and allies.
(B) Steps that Should Be Pursued Regardless of Specific Concerns About the ICC: The Report includes eighteen specific recommendations that should be considered by relevant U.S. actors, no matter what the state of its relationship with the ICC, to promote its own interests in international justice and accountability and to present U.S. positions on the ICC and related issues. These steps fall into a number of general categories:
• Enhancing and highlighting U.S. support for international justice efforts, including by building accountability into the President’s National Security Strategy, maintaining the independence of the State Department’s Office of Global Criminal Justice and the position of Ambassador-at-Large, and assuring steady and predictable funding for initiatives to provide accountability for atrocity crimes.
• Preserving political capital by not withholding support for multilateral resolutions or declarations supporting international justice simply on the basis that those resolutions mention the ICC or insisting on the deletion of factual references to the ICC in resolutions that are devoted to issues that the United States cares about.
• Using existing U.S. authorities to target those responsible for atrocity crimes, including by maintaining and expanding the War Crimes Rewards Program, supporting sanctions Executive Summary against those responsible for atrocity crimes, and implementing a no- or restricted-contacts policy.
• Strengthening the United States’ ability and commitment to prosecute international crimes domestically by enacting appropriate legislation to make crimes against humanity and superior responsibility subject to prosecution under U.S. law; encouraging the prosecution of suspects within the United States for their substantive crimes rather than relying exclusively on immigration offences; and signaling that the United States will accept information and evidence from the ICC where this could assist in such prosecutions or in other enforcement actions.
• Reaffirming the U.S. commitment to victims/survivors of international crimes and those at risk because of their willingness to serve as witnesses by supporting in-country assistance to victims of atrocity crimes, considering making a contribution to the Trust Fund for Victims, and offering protection to vulnerable witnesses.
• Attending and participating as an observer state in meetings of the Assembly of States Parties and participating in other relevant meetings and conferences; actively following the substantive jurisprudence of the ICC, which will inevitably affect the way in which other states interpret their legal obligations and those of their personnel under international law; and tasking diplomatic missions to report on relevant ICC developments and the views of relevant host states on the Court.
(C) Dealing with the Biggest Issues—the Afghanistan and Palestinian Situations and ICC Review and Reform: Virtually every interlocutor with whom we spoke who has served in the U.S. Government underscored that, for better or worse, the extent to which the United States will be in a position to be supportive of ICC efforts will inevitably be influenced by developments in those two situations. These are of course challenging issues but, as explained in considerable detail in Section VI of this Report, the Task Force believes there are pragmatic paths forward that do not trivialize the allegations but that will help the Administration achieve its goals in these two situations. (ASIL ICC Report pp. xiii-xiv).
Points "A" and "B" make eminent sense. The contradiction, one that the many pages of the Report were unable to overcome satisfactorily, are set out in "C": the Afghanistan and Palestinian Situations and ICC Review and Reform.With respect to Afghanistan, the ASIL ICC Report's pragmatism effectively starts from the premise that the case is unwieldy for the ICC and complicated by a substantial number of bad actions undertaken by virtually all of the parties to that conflict. The approach then is traditionally American--to intensely litigate, and to use resources to overwhelm the capacity of the ICC to effectively and timely respond. More importantly, the ASIL ICC Report suggests that the ICC proceedings are not even the most useful part of the prosecution--the ability fo the United States to use the prosecution as a means of leveraging its own narrative might be worth the pain of investigation and eventually trial. With respect to the Palestinian issue, the initial response is akin to "not my problem." That is then backed up by the need to protect US interests with respect to the use of that case to amplify ICC jurisdiction and practice in ways that may work against US interest.
That sort of pragmatism, however, is unlikely to inspire confidence. It is the approach that comes from a part in the weaker position. And it suggests a legitimacy of the ICC's project that is superior to the US interests that the ICC challenges (and thus the need for pragmatism and balancing equities). That baseline set of premises, however, suggests the importance of the difficulties that have taken the form (in this instance) of the Afghanistan and Palestine inquiries. If the ICC system is to be respected as conceived, then the United States, like every other power (including the Chinese and Russians), must subordinate their interests to the legalized juridical processes of the court and the overarching prosecutorial power of the ICC apparatus. In that respect, the US may grumble, but must obey if it is to express fidelity to the core premises of the ICC global criminal law order. But that is the point here--the ASIL ICC Report would concede the conceptual authority of the ICC but not its application to US actions, or that involving the use of global criminal regimes as part of a greater effort to delegitimate and ultimately subvert an important national ally. In other words the good intentions of Points "A" and "B" are contradicted by Point "C" which effectively undermines and re-invents the ICC's own authority in ways that inevitably make the system much more a tool of leading states. Neither position is "wrong" from the perspective of the United States, but an emphasis on the first points underlines a fundamental commitment ot the ICC system as conceived (with reform at the margins). A vigorous pursuit of Point C effectively concedes the political nature of global criminal regimes under conditions of empire and the responsibilities it imposes on leading states. That was the point more crudely made (and thus ineffectively) by the prior administration; and it is effectovely the position fo the People's Republic of China. Point C, then, makes it plausible to argue that the ICC system is essential for the disciplining of global dependencies of imperial orders, but its jurisdiction ends at the borders of global leading states.
Decide for yourselves. Either way, the United States must engage with the ICC. The real question is the starting point conceptually for that engagement. The two possible conceptual starting points are quite different: one concedes that the United States fits within the ICC system, the other affirms that the US must by the nature of its own historical context operate outside of the ICC system. There is a third possibility, though it is implausible and quite damaging to US interests, however concieved--a policy of dis establishing the ICC. For those who believe in the importance of the ICC project--as a great expression of that drive toward collective standards collectively applied to all on an equal basis, then the ASIL ICC Report represents measured steps in the right direction. For those who are less convinced about the value of the ICC in a context in which vertically ordered post global imperial systems are emerging, and where, like virtually every other international institution caught in the multi-generational trajectory of legalization within international administrative bureaucracies mediated through judicialized dispute resolution mechanisms, the ICC represents an epression of politics using the language of law and performed in quasi judicial forums to enhance legitimacy, then the ASIL ICC Report approach poses serious danger.