From Rome to Kampala

The U.S. Approach to the 2010 International Criminal Court Review Conference

Author: Vijay Padmanabhan, Visiting Assistant Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University
Directors: John B. Bellinger III, Adjunct Senior Fellow for International and National Security Law, and Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy

From Rome to Kampala - from-rome-to-kampala
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Publisher Council on Foreign Relations Press

Release Date April 2010

Price $10.00 paper

52 pages
ISBN 978-0-87609-480-8
Council Special Report No. 55

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Overview

The United States has long been a leading force behind international efforts to bring the perpetrators of atrocities to justice. It spearheaded the prosecution of German and Japanese officials after World War II and more recently supported tribunals to deal with events in Rwanda, the former Yugoslavia, and elsewhere. Washington has kept far more distance, however, from the International Criminal Court (ICC). Although President Bill Clinton allowed U.S. negotiators to sign the Rome Statute, the agreement that established the court, he and subsequent presidents have maintained objections to elements of the court’s jurisdiction and prosecutorial authority. U.S. administrations have since cooperated to varying degrees with the ICC, but the notion of ratifying the Rome Statute and joining the court has never been seriously entertained.

Even as a nonmember, though, the United States has important interests at stake in the ICC’s operations. On the one hand, the court can bring to justice those responsible for atrocities, something with both moral and strategic benefits. On the other hand, there are fears that the court could seek to investigate American actions and prosecute American citizens, as well as concerns that it will weaken the role of the UN Security Council (where the United States has a veto) as the preeminent arbiter of international peace and security.

This Council Special Report, authored by Vijay Padmanabhan, examines how the United States should advance its interests at the ICC’s 2010 review conference, scheduled for May and June in Kampala, Uganda. After outlining the history of U.S. policy toward the court, the report analyzes the principal items on the review conference agenda, most notably the debate over the crime of aggression. The conference faces the task of deciding whether to adopt a definition of aggression and, should it do so, whether and how to activate the court’s jurisdiction over this crime. Padmanabhan explains the important questions this debate raises.

Offering guidance for U.S. policy, the report recommends that the United States not seek to join the court in the foreseeable future. However, Padmanabhan urges the Obama administration to make an active case for its preferred outcomes at the review conference, including by sending a cabinet-level official to Kampala. On the question of aggression, he calls for a strong stand against activating the ICC’s jurisdiction. He argues that the proposed definition is overly vague, something that could endanger U.S. interests and risk embroiling the court in political disputes over investigations. Should the review conference nonetheless adopt a definition, he advises the administration to emphasize the potential drawbacks of activating the ICC’s jurisdiction without consensus among its members. On other issues, the report urges the United States to contribute constructively to the evaluation of the court’s functioning that the conference will carry out. And if the conference’s overall outcome is favorable, Padmanabhan concludes, the United States should consider boosting its cooperation with the court in such areas as training, funding, the sharing of intelligence and evidence, and the apprehension of suspects.

From Rome to Kampala offers a timely agenda for U.S. policy at this year’s review conference and toward the ICC in general. Its thoughtful analysis and detailed recommendations make an important addition to current thinking on a set of issues with deep moral, legal, and strategic implications.

More About This Publication

Vijay Padmanabhan is a visiting assistant professor of law at Yeshiva University’s Benjamin N. Cardozo School of Law. Professor Padmanabhan teaches the law of war and human rights law, and has published on topics in international criminal law and international humanitarian law. From 2003 to 2008, he was an attorney-adviser in the office of the legal adviser at the U.S. Department of State. While there he served as the department’s chief counsel for law of war–related litigation, including collaborating with the U.S. Department of Justice on the Boumediene, Omar, and Hamdan cases in the U.S. Supreme Court. He also was the department liaison to the office of military commissions in the U.S. Department of Defense. Padmanabhan was a law clerk to the Honorable James L. Dennis of the U.S. Court of Appeals for the Fifth Circuit. He received his BSBA summa cum laude from Georgetown University and JD magna cum laude from New York University School of Law.

John B. Bellinger III is adjunct senior fellow for international and national security law at the Council on Foreign Relations. He is also a partner in the international and national security law practices of Arnold & Porter LLP.  He is one of the four U.S. members of the Permanent Court of Arbitration in the Hague.  From 2005 to 2009, Mr. Bellinger was the legal adviser to the U.S. Department of State. Previously, he served as senior associate counsel to the president and legal adviser to the National Security Council and counsel for national security matters at the Department of Justice. He has also served as of counsel to the Senate Select Committee on Intelligence, general counsel to the Commission on the Roles and Capabilities of the U.S. Intelligence Community, and special assistant to the director of central intelligence. Mr. Bellinger received his AB from Princeton University's Woodrow Wilson School of Public and International Affairs, and his JD from Harvard Law School. He also received an MA in foreign affairs from the University of Virginia.

Matthew C. Waxman is adjunct senior fellow for law and foreign policy at the Council on Foreign Relations. He is also associate professor at Columbia Law School and a member of the Hoover Institution task force on national security and law. Mr. Waxman previously served at the U.S. Department of State, as principal deputy director of policy planning (2005–2007). His prior government appointments include deputy assistant secretary of defense for detainee affairs, director for contingency planning and international justice at the National Security Council, and special assistant to the national security adviser. He is a graduate of Yale College and Yale Law School, and studied international relations as a Fulbright scholar in the United Kingdom. After law school, he served as law clerk to Supreme Court justice David H. Souter and U.S. Court of Appeals judge Joel M. Flaum. His previous publications include The Dynamics of Coercion: American Foreign Policy and the Limits of Military Might (with Daniel Byman, Cambridge University Press, 2002) and the Council Special Report Intervention To Stop Genocide and Mass Atrocities: International Norms and U.S. Policy (CFR, 2009).

 

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