In my contribution to Arguendo in 2014, I suggested that it was in the interests of the United States to support the ICC. It had given critical support to the two ad hoc tribunals for the former Yugoslavia and Rwanda and the hybrid tribunals for Sierra Leone and Cambodia. American jurists and experts played key roles in all three organs of those tribunals. In providing that support and assistance, the United States’ policy was aligned with that of its democratic allies. That its policy furthered the interests of international justice and rendered support to victims cannot be doubted.
During my term as the chief prosecutor respectively of the ICTY and ICTR, the United States, at different times, supported our policies and decisions, and at other times, opposed them. What was of substantial assistance was the openness with which those policies and decisions were debated. There is no question that the views of the then Clinton administration were taken fully into account and made our work more constructive and successful. I need hardly add that making those views known and debated was quite consistent with the recognition of my independence as chief prosecutor.
At the Rome Conference in 1998, the United States delegation was fully involved in the debates on the terms of the Rome Statute. That the United States was not fully satisfied with the final product is well known. The recent report of the ASIL Task Force on Policy Options for US Engagement with the ICC describes how, after the Court became operative in 2002, support from the United States for the Court has been complicated and uneven. The report also highlights the existing challenges for the Biden administration based on an investigation previously opened by the Prosecutor of the ICC that includes war crimes allegedly committed by US personnel in Afghanistan. That has been further complicated by the opening of an investigation into international crimes allegedly committed since 2014 in the Palestine/Israel situation.
To its credit, the Biden administration has withdrawn the unfortunate and inappropriate sanctions that were imposed by the Trump Administration on senior personnel of the the Office of the Prosecutor. The US opposition to the ICC exercising jurisdiction in those two situations remains, and that should come as no surprise. However, as Secretary of State Antony Blinken pointed out when announcing the removal of the sanctions, “our concerns about these cases would be better addressed through engagement with all stakeholders in the ICC process rather than through the imposition of sanctions.”
Secretary Blinken went on to state: “We are encouraged that States Parties to the Rome Statute are considering a broad range of reforms to help the Court prioritize its resources and to achieve its core mission of serving as a court of last resort in punishing and deterring atrocity crimes. We think this reform is a worthwhile effort.” He was referring to the Independent Expert Review of the ICC (IER) that was established by the Assembly of States Parties of the ICC (ASP) at the end of 2019 and tasked with making “concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole.” It was my privilege to chair the Expert Review Committee.
The IER held a total of 278 interviews and meetings with 246 current and former officials, staff and external defense and victims representatives, alongside meetings with the Heads of Organs, Staff Union Council, 9 States Parties, 12 ASP representatives/bodies, 54 NGOs and 6 academics. The report of the IER was made public on September 30, 2020. It contains 384 recommendations addressed to the organs of the Court and to the Assembly of States Parties. Successes and failures of the Court are considered in some detail and the IER has made recommendations that are actionable, focused on systemic issues, and for the most part do not require amendments to the Rome Statute or budget increases. While the report identifies shortcomings and makes recommendations to better prepare the Court to address the global challenges it faces pursuing accountability for atrocity crimes, the Court’s value and necessity remain clear.
The report refers to the concern expressed by many stakeholders, including States Parties to the Rome Statute, that the OTP handles too high a volume of situations and cases, taking into account its limited resources. Two ways of addressing this problem are addressed in the report: the first is to give greater consideration to the prospects of investigative and prosecutorial success; and the second to accord greater weight to the gravity threshold in the situation selection process. In short, the IER suggested that the current number of situations being investigated by the Office of the Prosecutor is unsustainable at the current time.
Those and many other issues were referred to in some detail in the helpful submission received by the IER from the International Criminal Court Project of the American Bar Association. Other United States non-governmental organizations also made constructive submissions to the IER. The efforts of the International Criminal Court Project and other organizations within civil society to support the work of the ICC has been much appreciated by the principals and staff of the ICC and especially at the time of the intemperate attacks made on the Court by the Trump administration.
It should be appreciated and acknowledged that the outspoken support for the ICC from many Americans keeps alive the reputation of the United States as a supporter of justice for the victims of heinous war crimes, and ensuring that the perpetrators of those crimes are not granted impunity.
The IER Report has been welcomed by the Assembly of States Parties and by the Court. In December 2020, the Assembly established a Review Mechanism that is mandated with the “planning, coordinating, keeping track and regularly reporting” on the assessment of the IER recommendations. The Biden administration should interact with that Mechanism and make its views and priorities known concerning the most important recommendations made by the IER.
Continued contact between the United States government and the ICC is of cardinal importance. As an observer, the United States has contributed to the work of the Assembly of States Parties and the Court itself and could once again contribute to shared goals if it chooses. Important offices capable of carrying the relationship forward, such as the Office of Global Criminal Justice and its Ambassador-at-Large, should be fully supported by the Biden administration and encouraged to continue support for the ICC in respect of issues that are consistent with the interests of the United States.