Statement by NGO Coalition for the ICC, September 2012

The International Criminal Court (ICC) investigates and prosecutes the worst perpetrators of the most serious crimes of genocide, war crimes, and crimes against humanity. It is now fully functioning and has successfully completed its first case. It convicted Thomas Lubanga Dyilo of the Democratic Republic of the Congo of child soldier crimes on March 14, 2012. Sixteen cases in seven situations have been brought before the ICC since the Rome Statute treaty’s entry into force on July 1, 2002.

The work of the ICC has been consistent with US national interest, and the US’s relationship with the Court has been expanding and deepening, reflecting a clear approach but no formal policy. US leadership is critical to the protection and promotion of international justice and democratic values of freedom, accountability and justice. Further support and a more consistent relationship with the ICC will allow the US to advance justice and deter future atrocities.

Continued US support for the ICC would have a strong symbolic impact and express American commitment to multilateralism and global justice. It would also contribute to stronger relations with other countries who value the Court, such as EU nations, who are strongly interested in the US’s future relationship with the ICC. Proposed actions would not require new funds and only small investments of time and expertise.

Current US-ICC Relations

The US currently interacts with the ICC on a case-by-case basis, and the present administration has determined that all cases before the ICC are in the US national interest. Since the UN Security Council’s referral to the ICC of the situation in Darfur, a resolution the US allowed to be adopted, there has been increasing American support for the Court. On February 26, 2011 the US co-sponsored and voted in favor of Resolution 1970, adopted unanimously by the UN Security Council, which referred the situation in Libya to the ICC.

The US has participated as an Observer in meetings of the Assembly of State Parties (ASP), the ICC’s governing body, and there has been ongoing interaction between US government officials and their ICC counterparts, particularly those in the Office of the Prosecutor, which began during the Bush administration.

Furthermore, in response to the ICC’s case against the Lord’s Resistance Army (LRA) leader Joseph Kony in the situation of Uganda, the Obama administration recognized the urgency of ending Kony’s crimes and with bipartisan support in Congress sent 100 military personnel to aid regional efforts to capture Kony on October 14, 2011. The recently established Atrocities Prevention Board (APB) reflects the US’s commitment to protecting human rights and preventing atrocities.

Bipartisan Support for the ICC’s Work

Strong conservative support for the work of the Court in particular cases has been increasing through bipartisan legislation, resolutions, and laws in Congress about these situations. Most of these actions invoke the ICC in a positive way. In the 112th Congress, several Democratic and Republican members of Congress sponsored or co-sponsored legislation and resolutions calling on the US government to be more active in pursuing suspects wanted by the ICC. Conservative legislators have supported and introduced many of these bills. Rep. Ed Royce (R-CA), for example, recently introduced the “Department of State Rewards Program Update and Technical Corrections Act of 2012” which calls for the expansion, to include the ICC, of the US State Department’s “Rewards for Justice Program” that provides financial incentives for information or capture of indicted war criminals. The movement in Congress toward a more accepting approach to the ICC is indicative of the growing positive relationship between the US and the Court.

The military has begun to accept the permanence of the ICC and thus the need for a new approach to it, but remains concerned about protecting service members and senior officers.. Reassurance about senior officers must come from familiarization with the Court from experiences such as continued participation in the ASP and reporting on the Court’s jurisdiction and jurisprudence.

Consistent Public Support, Growing Public Interest

There has been consistent support for the work of the ICC in the US and great surges in public attention. The American people are outraged and stirred up by the atrocities in Darfur and Uganda that the Court is addressing.. According to a September 2010 poll by the Chicago Council on Global Affairs, 70% of Americans believe that the United States should participate in the Rome Statute treaty agreement on the International Criminal Court to try individuals for war crimes, genocide or crimes against humanity if their own country will not try them. This poll is consistent with others taken beginning in 1999.

Potential Future Interim Actions

The US can reinstate the legal force of its signature of the Rome Statute, which the Bush administration deactivated, simply by sending a note to the UN Secretary-General so requesting. He would report this as a footnote to the entry for of the United States inthe list of signatories for which he is responsible. He would also advise government missions to the UN about this in a circular diplomatic note. Reinstatement of the signature would oblige the United States not to act counter to the object and purpose of the Rome Statute. The reinstatement of the signature would also assure other signatories that the US would not take any action to frustrate the purposes of the Rome Statute.

Continuing US assistance to the ICC in the execution of its mandate can both clarify and help protect US interests. The US should continue to support the Court’s efforts to end impunity for the world’s worst crimes, as it did when it sent 100 military personnel to Uganda to arrest Joseph Kony. Fostering a relationship between the US and the ICC will be important to the work of the recently established Atrocities Prevention Board (APB). The APB’s work on the deterrence of atrocities will include the ICC, and the US should move from a case-by-case relationship with the ICC to a more formal relationship, including through the APB.

Under current law, the US cannot provide direct financial support to the ICC. The 2000-2001 foreign relations authorization act prevents any US funds from going to the ICC unless the US joins the court. The American Service-Members’ Protection Act (ASPA) separately bars the US from assisting the ICC on its cases but does not deal with other aspects of the US relationship with the Court. However, the US has made use of its waivers and the Dodd Amendment, which permits support to and cooperation with the Court on particular cases. The US under recent administrations has maintained a constructive relationship by using these waivers and has been careful to respect the restrictions in US law prohibiting the US from giving money directly to the Court.

Furthermore, the US should continue express its support for the Court and participate in the ASP. This would permit the US to explain its continuing concerns and explore solutions for them, become familiar and comfortable with the court, and influence its continuing work. This kind of participation would effectively protect American interests.

The US should expand and intensify the US relationship with the ICC.: Further along, depending on circumstances in Congress, the administration should repeal ASPA and reinstate the US signature to the Rome Statute. High ranking officials have released statements supporting the work of the ICC, and the administration should turn these accumulated statements into a formal policy statement.The ICC will be an important subject in future international relations and bilateral relations between the US and other countries. The US should continue this positive relationship and support the ICC in bringing global justice against the world’s worst perpetrators of war crimes, genocide and crimes against humanity.