The arrest warrant issued last week for Sudan President Omar Hassan Ahmed Bashir has thrown into stark relief a question the Obama administration and Congress need to address:
What are we going to do about the International Criminal Court?
The desire for a permanent criminal court to try individuals accused of crimes against humanity, war crimes and genocide has been around since the Nuremberg trials. Its creation, stalled during the Cold War, picked up momentum again in the 1990s, when the United States led the creation of war crimes tribunals for Yugoslavia and Rwanda. By 1995, the United States under President Clinton had assumed a leadership role in planning for an International Criminal Court.
In 1998, most of the world's nations gathered in Rome for final negotiations on an ICC treaty. The Clinton administration -- knowing that it could only get Congress to ratify such an agreement with strict protections for national security interests -- pushed hard to immunize American officials from prosecution and to give the U.N. Security Council a significant role in determining situations the ICC should pursue.
In the end, although more than 90% of the court statute was acceptable, the U.S. was unable to secure the concessions it wanted, and it voted against the ICC's founding document, the Rome Statute. Although he was disappointed in the outcome, Clinton nonetheless authorized signing the document shortly before he left office, an act that allowed the U.S. to remain engaged with the court but did not require it to join.
The incoming Bush administration saw things differently. Soon after taking office, the new president ordered the Rome Statute "unsigned," and his administration embarked on an effort to undermine the ICC, encouraging other nations to promise not to hand over Americans to its jurisdiction under any circumstance.
Led by Jesse Helms, the late Republican senator from North Carolina, Congress imposed sanctions against governments that joined the court, even cutting off military assistance to some. Congress prohibited U.S. cooperation with the court and authorized the president to use any necessary means to rescue Americans who might be held by the court. Europeans, sensing the hostility, dubbed the law "The Hague Invasion Act."
The ICC started operation during the summer of 2002, after the 60th government joined. Today, 108 countries are members, including most of Western Europe, Latin America and Africa, as well as Canada, Mexico, Australia and Japan. But the U.S. hostility was slow to thaw. It wasn't until 2005, after Colin Powell defined the Darfur atrocities as genocide, that the first signs of a more pragmatic approach emerged. The United States went along with the U.N. Security Council's referral of Darfur to the ICC for investigation and possible prosecution. Under Condoleezza Rice, the United States quietly adopted a posture of wary realism, rhetorically supporting the Darfur investigation without engaging the ICC in a serious or official way.
The time has now come for the U.S. to become more engaged.
Consider the warrant for Bashir. The warrant may well have been the right move. But it could cause damage to the peace process in Sudan and retaliation against millions of displaced persons and refugees in Darfur, where the U.S. has deep moral and political stakes. The ICC undoubtedly would have benefited from U.S. input last year, when the prosecutor was considering the warrant, and from the kind of information and analysis the United States routinely has provided to other international tribunals.
Closer engagement also would allow the U.S. to help shape policy and legal developments in ways that meet its concerns. Today, we have little ability to influence the court's thinking. As a consequence, many basic principles of international law are being developed without U.S. input.
Not all the action is in the courtroom either. Parties to the ICC are considering whether and how to amend the Rome Statute to include the crime of aggression -- the unlawful use of military force. Our ability to shape the court's approach to this crime is limited unless we take prompt steps to play an active role.
Bringing Congress along on the idea of increased engagement could prove difficult, and joining probably remains unlikely. Despite polls showing public support for international justice, the court is still seen as a political liability in this country. Both Democrats and Republicans in Congress have expressed concern about the court's potential ability to interfere with American sovereignty on military and political issues.
Still, engagement with the court is possible, even without joining. The Obama administration's first job, working with Congress, is to reverse the hostility of the last eight years. Among other things, we should sign back on to the Rome Statute -- a step that merely indicates that the U.S. affirms the ICC's objectives. We should then initiate a process to provide the court with information to advance its investigations. Finally, we should consider measures domestically and at the Security Council to squeeze those who harbor alleged perpetrators of war crimes, crimes against humanity and genocide.
Getting back in the game will advance American interests while contributing to international justice. In addition to Darfur, the ICC is pursuing cases referred to it by Uganda, the Democratic Republic of Congo and the Central African Republic, places where U.S. engagement can make a difference. American support for other tribunals in the Balkans, Sierra Leone, Lebanon, Cambodia and elsewhere has likewise proved essential.
Rebooting ICC policy serves U.S. interests. It also is an important step toward resetting America's place in the world. It's time to reengage.
David Kaye, a State Department lawyer in the Clinton and Bush administrations, directs the UCLA Law School's Human Rights Program and its Sanela Diana Jenkins International Justice Clinic.Copyright © 2015, Los Angeles Times