Congressional Briefing on The International Criminal Court and US-ICC relations
By Megan A. Fairlie
I recently attended a briefing on the International Criminal Court(ICC) delivered by U.S Ambassador-at-Large, Stephen J. Rapp, (photo, above) head of the Office of Global Justice in the U.S. Department of State and hosted by the Washington Working Group on the International Criminal Court(WICC) and the Tom Lantos Human Rights Commissionof the U.S. House of Representatives. The event was moderated by Christopher “Kip” Hale, Senior Counsel for the American Bar Association and Director of the ABA’s International Criminal Court Project.
Those present heard an up-to-date perspective on the ICC, including its now constructive relationship with the United States. The current U.S. policy of positively engagingwith the Court represents a significant shift from a former period of hostility that included the now infamous U.S. decision to “unsign”the Court’s treaty. In large part, this change is attributable to the fact that U.S. concerns about its officials facing unfounded charges and politicized prosecutionsat the ICC have been neutralized by the Court’s work to date.
Ambassador Rapp set the stage for his briefing by discussing the global leadership of the United States in the field of international criminal justice, beginning with the Nuremberg proceedings and continuing through to the work of the International Criminal Tribunals for the former Yugoslavia and Rwanda.
He followed with an extensive and detailed discussion of the work of the Court to date, along with an incisive analysis of the evolving role played by the United States over the course of the ICC’s development.
Among other themes, Ambassador Rapp discussed:
• The ways in which ICC practice and US policy are aligned: The clear preference of the United States is to see justice performed at the national level. This position, Rapp emphasized, is consistent with the Court’s principle of complementarity. Under each approach, the priority is for cases to be prosecuted at the national level unless nations lack the will or capacity for domestic prosecutions.
• The benefits of engaging with the ICC:Rapp highlighted that the current policy of constructive engagement ensures that U.S. interests and perspectives are well-represented as the Court goes forward. To place the importance of this positioning in perspective, Rapp noted that a number of Court’s developments—particularly those related to the crime of aggression—might have gone differently, and perhaps preferably, had the United States been a part of the ICC conversationfrom 2002-2008.
• The need to structure engagement with the Court within the confines of existing laws:Federal law presently prohibits direct financial support to the ICC. Thus, Rapp discussed alternative means of US assistance including the U.S. Rewards for Justice Programwhich, with bipartisan backing, was recently expandedto include support for the apprehension of individuals wanted by the ICC.
• The salutary benefits of the ABA’s ICC project: Federal law also limits U.S. non-monetary assistance to specific ICC cases, precluding the United States from acting in ways designed to benefit the Court as a whole. Rapp lauded the ABA’s ICC Project for filling this void. Promoting practitioner engagement and training is one of the three pillars of the ABA project, which aims to unite ICC lawyers and staff with their domestic counterparts, enhancing investigation and advocacy skills through such vehicles as best practices conferences and training workshops.
The overall tenor of the briefing was markedly positive. Noting the U.S. commitment to hold perpetrators of atrocities accountable, Rapp reasoned that the United States ought to do what it can to assist the Court in bringing alleged war criminals to justice.
When I asked Rapp to identify what, in his view, was the most significant impediment to the United States joining the ICC, he first acknowledged that U.S. ratification of international treaties has historically been a lengthy process. Rapp noted, however, that before moving in this direction, the United States would have to overcome its concern that the Court might be used unfairly against it. In Rapp’s view, this process will require more time for the United States to assess how prosecutors act and how ICC judges decide admissibility standards, in order to establish confidence that the U.S. would not be unfairly targeted by the Court.