Renewing justice for atrocities

Originally published at the Hill

May 18, 2021 10:28 am (EST)

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Current political and economic issues succinctly explained.

President Biden’s recognition of the Armenian genocide, inflicted over a century ago with an estimated 1.5 million deaths, acknowledges historical facts and rejects Turkey’s long campaign of denialism. The president deserves praise for delivering such a clear statement and, in doing so, underscoring the United States’ commitment to confront genocide.

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As former diplomats committed to justice for mass atrocities, we have worked collectively for the better part of the last three decades on behalf of the American people to build, support and staff numerous tribunals to prosecute perpetrators of genocide, crimes against humanity and war crimes against thousands, sometimes millions, of innocent people. America has led before and we must continue to champion the pursuit of international justice for such atrocity crimes.

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The American Society of International Law just issued a Task Force report, U.S. Options for Engagement with the ICC, describing this country’s far-reaching support to international justice over the last 75 years and advocating tangible and constructive options for U.S. policy towards the permanent International Criminal Court (ICC). It should be noted that one of us, Todd Buchwald, helped author the report. Despite aberrant episodes of withdrawal, Washington has repeatedly projected — through diplomacy, legislation, presidential directives, military manuals, strategic messaging and targeted appropriations — America’s strong national interests in promoting human rights, the rule of law and accountability for those responsible for mass atrocities.

Bipartisan support for these underlying values has deep roots, including in the United States’ instrumental role in establishing the Nuremberg and Tokyo tribunals to try major war criminals after World War II and its critical support for tribunals prosecuting perpetrators of atrocity crimes in Rwanda, former Yugoslavia, Sierra Leone, Timor-Leste and Cambodia. 

American efforts to buttress international criminal justice must include engagement with the ICC. The United States negotiated the creation of this institution and signed the court’s treaty in 2000 but never ratified it. Washington has not joined the more than 120 states, including almost all our allies and friends, as a member of the court.

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Nonetheless, save in the court’s very early years, the United States embraced a pragmatic approach in which Washington worked with the court and its supporters on issues of common interest, recognizing that there would be issues on which our interests would diverge.  

The court’s investigations of the situations in Afghanistan (including some torture allegations against U.S. personnel) and Palestine (based on the court’s finding that Palestine need not qualify as a state under international law before the court exercises jurisdiction) present such issues and undoubtedly will remain contentious. But such disagreements must not translate into reflexive rejectionism of everything the court touches, as in the Trump administration. Far too much of the court’s work serves U.S. interests to make such an approach viable or productive.

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The United States learned this lesson as it confronted genocide in Darfur. A policy course correction generated a constructive relationship that enabled the Security Council to refer genocidal atrocities in Darfur to the court. The Obama administration facilitated the surrender of long-time fugitives from justice to the court — efforts that served American interests by incapacitating individuals accused of committing the worst crimes known to humankind. The United States doubtless will need to turn to the court again to enforce the proposition that atrocity crimes must be prosecuted. 

This was an underlying message when Secretary of State Antony J. Blinken recently announced the lifting of Trump-era sanctions against the court that were widely seen as counterproductive and anathema to the rule of law and American values. The Biden administration should keep turning the page and return to a pragmatic approach to the court that is consistent with American interests and with our long-standing support for global rule of law and accountability. 

The United States, its allies, and friends need the court in our collective toolbox for responding to crises where widespread atrocity crimes are being perpetrated and other options do not exist. We should work with our allies to improve the court’s effectiveness and the focus on its core mission, as proposed in a recent independent expert review.

Current realities beckon. As the U.S. government surveys the world, Russian troops intimidate Ukraine, Venezuelans endure life-threatening government policies, Syrians and Yazidis cry out for justice, Rohingya flee Myanmar’s military, Uyghurs are cruelly interned in Chinese camps and atrocities rage in Ethiopia’s Tigray region. The ICC needs reform, but a turbulent future demands that we recognize the court for what it is: a critical pillar in the framework of international accountability and atrocity prevention. We would be foolish to pretend otherwise.

The authors served respectively as U.S. ambassadors for global criminal justice in the Clinton, George W. Bush and Obama administrations. The views expressed are solely their own and do not necessarily reflect any institution with which they are associated.

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