Washington's Growing Ties With International Court

Blake Evans-Pritchard

Africa Editor

Wednesday, 23 January, 2013

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Although the United States remains outside the International Criminal Court, ICC, it is increasingly showing support for the court, and more generally for international efforts to bring the perpetrators of atrocities to justice. 

Over the past 12 months, the US government has ratcheted up efforts to catch Ugandan rebel leader Joseph Kony, pledged support for Libya’s emergent judiciary, and issued calls for calm in the upcoming elections in Kenya. These are all parts of the world where the ICC is working to end impunity.

However, Washington’s foreign policy goals, and its opposition to American citizens being sent to trial in The Hague, mean there is only so far it can go in cooperating with the ICC.

In November, the US ambassador-at-large for global justice, Stephen Rapp, attended the annual meeting of the Assembly of State Parties – the 121 countries that have signed up to the ICC – as an observer, for the fourth year running. In his speech to the assembly, he praised the work of the court and said that “ensuring the prevention and deterrence of atrocities and making good on the promise of justice to the victims of these crimes is an urgent priority for the highest levels of my government”. This, he said, was both “a moral imperative and a matter of national security”.

Earlier this January, the US House of Representatives approved a Congressional bill that could see the US offering up to five million United States dollars for information leading to the arrest of any fugitive wanted by the ICC. President Barack Obama signed the bill on January 15, entering it into law.

Few believe that the US will ratify the Rome Statute, the ICC’s founding treaty, any time soon. And even supporters of international justice like Ambassador Rapp have concerns about how the court operates.

ICC officials recognise the value of Washington’s support and practical assistance, and have welcomed the alignment of some US objectives with their own.

COOPERATION WITH ARREST EFFORTS

A key area in which the US has already provided significant support is in pursuing individuals charged by the ICC. Rapp told IWPR that he had made apprehending fugitives from justice one of his top priorities.

“The ICTY [International Criminal Tribunal for Yugoslavia] charged 161 people and all of those indicted by the ICTY were, over time, brought to justice,” Rapp said. “By comparison, there are at least nine public ICC arrest warrants for persons who are alive and at large. This creates the perception that perpetrators can just thumb their nose at justice and get away with human rights atrocities.”

The ICC recognises that it is hampered by its restricted capacity to arrest suspects, and remains dependent on the international community to put pressure on countries to cooperate with arrest warrants. Its success here has been limited. The authorities in the Democratic Republic of Congo, DRC, have so far failed to send rebel commander Bosco Ntaganda to The Hague, and Sudan continues to shield alleged war criminals including the country’s president, Omar al-Bashir.

“Arresting fugitives is one of the main challenges that the ICC faces,” said Phakiso Mochochoko, head of the ICC’s Jurisdiction, Complementarity and Cooperation Division. “If ICC fugitives are fleeing justice, then an incentive that can lead to their arrest is a positive step towards sustaining international justice.”

The Congressional bill amends the US government’s Rewards for Justice Programme. First launched in 1984 as a way of combating terrorism and drugs trafficking, this programme has gradually been extended to cover fugitives sought by UN-backed courts including the ICTY and the International Criminal Tribunal for Rwanda. The new bill allows rewards to be offered for the capture of individuals wanted by other tribunals “for war crimes, crimes against humanity, or genocide, as defined under the statute of such tribunal”.

This would include ICC suspects who have not been apprehended, such as Ntaganda and Joseph Kony, head of the Ugandan rebel Lord’s Resistance Army, LRA.

The US has already taken concrete steps against the LRA by providing Uganda’s armed forces with the military and technical support they need to track the rebels’ senior leadership. However, this effort has been driven more by foreign policy considerations rather by calls by the ICC to catch those still at large.

Inside the US, domestic pressure is mounting to bring LRA leaders to justice. This has been influenced by high-profile campaigns like the Kony 2012 video launched by the Californian-based advocacy group Invisible Children. Successive US Secretaries of State have made it clear that they regard Kony as a terrorist who is a threat to East Africa’s Great Lakes region.

The US has agreed to hand over any member of the LRA whom they capture to the Ugandan authorities, although there is a general expectation that those wanted by the ICC will end up in The Hague.

“The US has been a crucial component of this operation,” said Thierry Vircoulon, director of the Central African project at the think tank International Crisis Group. “The US has provided core funding, paid for logistics, performed intelligence-gathering and provided air transportation. The [Ugandan military] could not have done this on its own.”

But while US-backed efforts to capture Kony and his associates have been broadly welcomed by proponents of international justice, observers acknowledge that they have not been effective so far.

Some argue that Washington should apply more pressure on governments to ensure that arrests happen.

The US-backed operation is limited in its geographical scope. The Ugandan military is not allowed to enter DRC where there is a lot of LRA activity, or Kafia Kinji, an area of South Darfur in Sudan where some believe Kony may be hiding out.

“Technology and training are important, but they are of limited use if the forces don’t have the capability to go where they need to go,” said Kasper Agger, a consultant working for the Enough Project, which campaigns against genocide and war crimes in the region.

Agger argues that on-the-ground military operations should be combined with high-level diplomatic pressure.

“We know that there have been some efforts behind the scenes to improve access, but we have been a bit disappointed with the political outreach of things. Because the US wants African ownership of the mission, there has been a tendency to sit back a bit,” he said.

As the DRC’s largest development aid donor, the US has leverage in that country.

As Rapp notes, the US recently suspended aid to Malawi in protest at governance failings, and at the country’s decision to host Sudanese president Bashir in defiance of the ICC arrest warrant. Since then, Joyce Banda has replaced Bingu wa Mutharika as Malawian president, and the US has reinstated the aid. In mid-2012, Bashir was blocked from visiting the country.

It is less clear whether American diplomacy can be effective in the case of Sudan, although there has been talk of writing off some of the 2.4 billion-dollar debt the country owes the US as a way of encouraging it to give up Bashir and other indicted persons.

Rapp recognises the positive effect that such diplomatic pressure can have in making international justice work.

“[The success of the ICTY] was largely because of political and diplomatic leverage by countries that were outside the former Yugoslavia,” said Rapp. “Economic assistance and accession to the European Union [for Balkan states] were made conditional on arresting and surrendering fugitives for trial, among other things.”

Some believe US pressure could be helpful in Kenya, where a leading candidate in the March presidential election, Uhuru Kenyatta, and his running-mate William Ruto, are due to go on trial at the ICC in April.

There are fears that should either man win a prominent position, they would be in a position to push for non-cooperation with the ICC.

During a recent visit to Kenya, Secretary of State Hillary Clinton expressed reservations about ICC suspects running for the presidency. Her comments were denounced by the Kenyan candidates as an infringement of national sovereignty.

Some observers say the international community must be unequivocal about the repercussions of electing an indicted individual to the presidency.

“If it can be made clear that there could be serious consequences if there is an ICC suspect in the presidency, then this is something that could affect the whole process. Business people and others involved in politics will listen [to such a warning],” Thomas Hansen, an assistant professor of international law at the United States International University in Nairobi, told IWPR.

While Washington is keen to be seen as an advocate of international justice around the world, US foreign policy is not always on the same page as the ICC. The White House recognises that bringing too much pressure to bear on wayward countries could backfire and cast it as a meddler in national affairs, ultimately damaging its interests abroad.

"The US could arguably do more to add pressure on the Kenyan leadership, but there is also a danger that US pressure is seen as undue interference in national affairs and electoral processes,” Hansen said. “Washington is of course aware of this, and has other interests in the region, for example with respect to ensuring support for its global war against terrorism."

RELUCTANCE TO CEDE SOVEREIGNTY

The past decade has seen a significant shift in US attitudes towards the ICC. The ink was barely dry on President Bill Clinton’s signature to the Rome Statute when George Bush succeeded him in 2000, and the prospect of Congressional ratification receded into the distance.

Under pressure from powerful lobbies including the armed forces, Bush set about undoing US commitments under the treaty. It was his administration that started the process of negotiating bilateral treaties in which countries around the world were promised concessions in return for a commitment not to send US citizens to The Hague.

John Washburn, convener of AMICC, a coalition of NGOs advocating for the US to join the international court, says that such open hostility to the ICC is now a thing of the past. Recognising that the ICC is here to stay, Washington wants at the very least to engage with it. Meanwhile, a September 2012 poll by the Chicago Council on Global Affairs found that as many as 70 per cent of American respondents thought the US should join the court.

So is the US likely to become a fully signed-up member of the ICC any time soon? Although AMICC has been calling for this for years, Washburn retains a sense of pragmatism.

“In all likelihood, any realistic chance of ratification is several years away at best,” he said. “Nonetheless, preparing in advance for that chance will also require a year or more, since the legal, constitutional, political and bureaucratic obstacles are so severe and complicated.”

Rapp agrees that despite the latest polls, the climate is not yet right for the US to accede to the ICC, and may not be for some time to come.

The US has a mixed record on ratifying international treaties, largely because of the two-thirds majority these require in the Senate. Rapp points out that even the most uncontroversial legislation has difficulty surmounting this threshold.

Domestic legislation, by contrast, typically requires only a simple majority in both houses of Congress. Hence, it is far easier to get measures like extending the Rewards for Justice programme approved than to sign up to the ICC.

Rapp likens the position on the Rome Statute to the United States’ failure to ratify the UN Convention on the Law of the Sea. In that case, although the US never signed up, it has made every effort to comply with the convention’s key principles.

Rapp also notes that certain concerns about the ICC would need to be resolved before the US would consider joining. Washington is still worried by the lack of safeguards to protect its nationals – military personnel on foreign operations in particular – from ending up in The Hague.

If the US is going to put its troops in harm's way – be that as part of a UN force or in roles like supporting Ugandan action against the LRA – then it will want assurances from the ICC that soldiers will not be indicted. This could happen if a case is referred to the ICC, or if the court’s prosecutor launches her own investigation. But while the US remains outside the court and has bilateral treaties in place, that prospect is extremely remote.

US concerns centre on the ICC’s criteria for intervening in a country, which are that the state in question is deemed to be “unwilling or unable” to prosecute crimes itself. While it seems unlikely this would apply to the US, those opposed to ICC membership warn of a scenario where the ICC accused US troops of committing crimes in, say, Afghanistan. If a tribunal in the US investigated such a case, it might well look at different factors to those deemed significant by ICC judges. The different approaches could lead to the US being found “unwilling to prosecute”.

Although the ICC has not prosecuted citizens of states that have robust judicial mechanisms, Rapp says this remains a concern for Washington. However, he believes it could be resolved over time as the ICC matures as an institution.

“In picking cases, the ICC should avoid prosecuting those who are protecting people from mass atrocities but not committing atrocities themselves, and should choose cases that involve widespread and intentional attacks on civilians,” Rapp said. “I think that as the work of the court continues, and more and more judgements are handed down, a lot of the substantive concerns about case selection will be addressed.”

While concerns about the prosecution of US troops have not gone away, Deputy Assistant Secretary of Defence William Lietzau denied that the Pentagon is hostile to the ICC, insisting it shared the same position as the US government as a whole.

“We fully support constructive engagement with the ICC, and we believe that bringing perpetrators to justice is in line with our national security interests,” he told IWPR. “We do not, however, support ICC jurisdiction that is susceptible to political manipulation.”

BENEFITS MAINLY FINANCIAL 

Were it ever to join the ICC through Congressional ratification, Washington’s biggest contribution would be an injection of funds into the cash-strapped court. The ICC uses the same funding rules as the UN, so that contributions from member states are calibrated according to their ability to pay. The US would almost certainly end up paying the most – another reason why Congress remains so reluctant to join.

Beyond funding, it is unclear what additional benefits US membership would bring. One argument is that the ICC would acquire greater credibility, and would be better able to counter the criticism that the ICC is essentially a European-backed court with an excessive focus on Africa.

Well aware that the prospect of Washington joining remains distant, ICC officials simply welcome the current level of cooperation.

“We cannot really ask much more from the US,” said Mochochoko. “We look forwards to the day when every country in the world is part of the ICC, but of course that is a political decision for the countries concerned. The US has moved from a negative position to a point where we are working together. As long as that positive engagement continues, I think the court will be fine with that. We ask for things from them as and when this becomes necessary, and they cooperate with us to the extent that they are able to do so.”

Blake Evans-Pritchard is an IWPR contributor in The Hague.