United States and The International Criminal Court - Obama Administration's Approach To The ICC

Obama Administration's Approach To The ICC

The Obama Administration has stated its intent to cooperate with the International Criminal Court. Cooperation with the Assembly of States Parties of the ICC is a key component of the Obama Administration's first National Security Strategy. On November 16, 2009, Ambassador-at-Large for War Crimes Issues, Stephen Rapp, announced that he would lead the U.S. delegation to the ICC's annual meeting of the Assembly of States Parties in The Hague. He told journalists "Our government has now made the decision that Americans will return to engagement at the ICC." The U.S. participated as an observer. This was the first time the U.S.A. had a delegation attend the ICC's annual meeting of the Assembly.

In response to a question from the Senate Foreign Relations Committee, Secretary of State Hillary Rodham Clinton remarked that the US will end its “hostility” towards the Court. In addition, Susan Rice, US Ambassador to the United Nations, in her first address to the Security Council, expressed US support for the Court’s investigation in Sudan. These statements coupled with the removal of sanctions to the Bilateral Immunity agreements (BIAs) signaled a positive shift in the US cooperation with the Court. The Obama Administration has made no formal policy decision yet on the ICC or the status of the BIAs.

Recently, the Administration sent a large delegation drawn from all of main participants in policymaking on the ICC within the American government to the Review Conference in Kampala, Uganda in May and June 2010. The final outcome from Kampala included a successful assessment of the Rome Statute system of international justice, the announcement of numerous formal pledges by countries to assist the Court, and the adoption of amendments on war crimes and the crime of aggression. The US co-sponsored a side event with Norway and the Democratic Republic of the Congo (DRC) on building the capacity of the DRC’s judicial system to address atrocity crimes.

The US announced two pledges at Kampala, and was the only non-State Party to make a pledge. The US formally committed to building the legal capacity of certain countries to prosecute atrocity crimes themselves, and to assisting the ICC in its investigation and prosecution of leaders of the Lord’s Resistance Army (LRA) now wanted by the ICC.

The conference adopted two sets of amendments. The Administration believes that the outcome on both is in accord with important US interests. The Conference adopted a definition for the crime of aggression, the conditions under which it would exercise jurisdiction, and a roadmap for the eventual activation of jurisdiction after January 1, 2017. The US initially raised concerns about the definition, but accepted it after other countries agreed to attach a set of detailed understandings to the resolution adopting the amendments. Under the amendment the ICC will be, first, unable to prosecute individuals of a non-state party and second, state- parties will have the opportunity to opt-out of aggression jurisdiction if they so wish.”

Speaking about the past and future of US-ICC relations in light of the Review Conference, Legal Adviser Koh recently declared: “After 12 years, I think we have reset the default on the U.S. relationship with the Court from hostility to positive engagement. In this case, principled engagement worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill.”

Despite the Obama Administration's commitment to working with the ICC on prosecution of certain matters such as crimes committed by leaders of the LRA, a rebel group originating from Uganda, it has not stated an intention to rejoin the Rome Statute or submit the treaty to Senate ratification.