New Relationship with the International Criminal Court Critical to U.S. Goal of Prosecuting War Criminals

May 11, 2010

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As the Obama administration prepares for the May 31-June 11 review conference of the International Criminal Court (ICC) in Kampala, Uganda, a new Council on Foreign Relations (CFR) Special Report, From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference, outlines a negotiating strategy to secure an outcome that could further U.S. foreign policy interests.

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Although the United States is unlikely to join the court in the near future, the report’s author, Vijay Padmanabhan of Benjamin N. Cardozo School of Law, recommends that the United States become a "nonparty partner" to assist conducting investigations, apprehending suspects, and successfully prosecuting cases. Given that the ICC will be the "presumptive forum for future international trials of the worst perpetrators of war crimes and mass atrocities," the report argues that a strong working relationship between the United States and the ICC is essential to the shared goal of holding accountable those who have committed these crimes.

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Directed by CFR adjunct fellows Matthew C. Waxman and John B. Bellinger III, the report recommends sending a cabinet-level representative to Kampala to articulate the U.S. approach to the ICC. The report also argues that the U.S. should oppose activation of the ICC’s jurisdiction over the crime of "aggression." While the Rome Statute that established the ICC in 1998 gives the Court jurisdiction over aggression, it does not define the term, nor specify what conditions must be met for the court to prosecute perpetrators. Padmanabhan warns that activating the aggression clause "risks miring the court in politicized investigations," and therefore undermines its effectiveness in prosecuting genocide, crimes against humanity, and war crimes. It also "places the U.S. and allied leaders at risk of prosecution for what they view as necessary and legitimate security actions," and therefore "could widen the distance between the United States and the ICC, perhaps irreversibly." The report urges the Obama administration—specifically senior diplomats and White House officials—to consult actively with foreign counterparts on these issues well in advance of Kampala.

While the United States should oppose activating the aggression clause, it should participate constructively in "stocktaking," the evaluation process planned in Kampala in four critical areas: victims outreach, state cooperation with the ICC, national prosecution capacity, and peace and justice. "Stocktaking represents an opportunity for the United States to use its experience in international justice to improve the function of the ICC and will be a tangible demonstration of benefits to the ICC of American cooperation."

The report concludes by noting that a successful outcome in Kampala could lay the foundation for greater U.S. cooperation with the ICC. "The United States could commit to make available to the court significant resources" as part of an "effective collaboration between the ICC and the United States in combating the worst atrocity crimes."

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For the full text of the report, From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference, visit: http://www.cfr.org/icc_csr.

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Vijay Padmanabhan is a visiting assistant professor at Yeshiva University’s Benjamin N. Cardozo School of Law, focusing on international criminal and 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.

John B. Bellinger III is CFR adjunct senior fellow for international and national security law and a partner at 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, 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 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.

Matthew C. Waxman is CFR adjunct senior fellow for law and foreign policy and associate professor at Columbia Law School. From 2005 to 2007, Waxman served at the U.S. Department of State, as principal deputy director of policy planning. 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.

Council Special Reports (CSRs) are concise policy briefs that provide timely responses to developing crises or contribute to debates on current policy dilemmas. CSRs are written by individual authors in consultation with an advisory committee. The content of the reports is the sole responsibility of the authors.

The Council on Foreign Relations (CFR) is an independent, nonpartisan membership organization, think tank, and publisher dedicated to being a resource for its members, government officials, business executives, journalists, educators and students, civic and religious leaders, and other interested citizens in order to help them better understand the world and the foreign policy choices facing the United States and other countries.

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