Thursday, January 27, 2011

Whither now the United States & the ICC?

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

The relationship between the United States and the International Criminal Court has recently come full circle. The United States has transitioned from being an ICC supporter to opponent, and back again, in little more than a decade. The current climate -- of “positive and principled” U.S. engagement with the Court -- represents a dramatic change from the United States’ formerly hostile position. (credit for June 2010 photo of U.S. State Department briefing on ICC) The new reality includes:
► Active involvement with the Court’s Assembly of States Parties;
► U.S. promises to assist with ICC prosecutions; and
► An ICC President who is now “very optimistic and hopeful” about the prospect of the United States ultimately joining the Court.
How likely is the possibility of U.S. accession to the ICC Statute?
This is the question that I address in my new article, "The United States and the International Criminal Court Post-Bush: A Beautiful Courtship, but an Unlikely Marriage," forthcoming in the Berkeley Journal of International Law. My conclusion, evidenced in the article’s title, is unlikely to surprise. What may prove unexpected, however, is the reasoning behind it.
The crux of my argument does not turn upon any of the concerns historically raised by U.S. opponents of the Court. To the contrary, I first illustrate why much of the early anti-ICC rhetoric has been neutralized by the Court’s work to date. For example:
The Prosecutor: The standard contention that the ICC Prosecutor is likely to target U.S. nationals is difficult to sustain when viewed through the lens of current practice. The reality is ICC investigations have thus far—and not coincidentally—aligned with U.S. foreign policy interests. ICC Prosecutor Luis Moreno-Ocampo (right) has likewise demonstrated a noticeable hesitancy to employ his power to trigger the Court’s jurisdiction, the would-be tool for those oft-anticipated “politicized prosecutions.”
Instead, the Prosecutor has embraced the sovereignty-friendly practice of self-referrals (referrals made by states of situations on their own territories). He has only once triggered the Court’s jurisdiction himself, and only then with the apparent support for this proprio motu exercise from both the territorial state (the Republic of Kenya) and the United States.
Aggression: Another source of U.S. anxiety—the Court’s subject matter jurisdiction over the crime of aggression—was put to rest during this year’s Review Conference of the Rome Statute, about which many IntLawGrrls have posted. Noting U.S. dissatisfaction with the recently adopted definition of the crime (prior IntLawGrrls post), I explain why these perceived flaws are ultimately of little significance to U.S. interests. The Court’s ability to exercise its jurisdiction over alleged acts of aggression is the crucial factor.
In this respect, the United States has found a friend in new Article 15 bis. The provision both insulates nationals of non-member states from the Court’s aggression prosecutions and allows state parties to opt out of the Court’s aggression jurisdiction (which, presumably, the United States would do, should it ultimately ratify the Rome Statute). As such, a U.S. national can be tried for aggression at the ICC only through a U.N. Security Council referral, an unlikely possibility that would require at least tacit U.S. approval.
These and other developments help to account for the present U.S. position and illustrate why, assuming status quo, U.S. support for the Court will likely continue.
What, then, is the barrier to the burgeoning U.S.-ICC relationship?
Simply put, it is that the ICC does not appear poised to fulfill its intended and self avowed role as a “court of last resort.”
Contrary to the United States’ longstanding and clear preference for justice at the national level, the Court’s jurisprudence makes clear that the ICC is in no way limited to acting only when there is no alternative forum for investigation or prosecution.
At the heart of the cases I consider is the principle of complementarity, a fundamental aspect of the Court’s Statute commonly thought to mean that the ICC can intervene only if a state with jurisdiction is unwilling or unable to carry out an investigation or prosecution. This definition of complementarity is so prevalent it appears in the latest edition of Black’s Law Dictionary.
A 2009 ICC Appeals Chamber decision, however, definitively rejects this interpretation. According to this Appeals Chamber decision in the case of Prosecutor v. Katanga and Chui, the Court’s ability to act is limited by the principle of complementarity only if national proceedings are being (or have been) conducted. In the absence of any domestic activity, there is, in the Chamber's view simply no impediment to case admissibility.
As I explain in the article, “inaction admissibility” has many sides. Among them:
The Good: Recalcitrant states cannot, by doing nothing, shield perpetrators of atrocities from ICC prosecutions.
The Bad: As applied thus far, inaction admissibility may discourage otherwise “willing and able” states from fulfilling their responsibility to investigate and prosecute international crimes. States that prefer for the Court to do the heavy lifting can make this happen by simply referring a situation and then doing nothing.
The Ugly: The Appeals Chamber in Katanga and Chui, a case arising out of the situation in the Democratic Republic of Congo, has given the ICC Prosecutor a veritable blank check to target individuals who are already the subject of relevant (perhaps even identical) national proceedings. Provided that the domestic proceedings are terminated in a timely fashion, and in favor of the ICC prosecution, a case is considered admissible due to “inaction.”
Quite obviously, the second and third points (combined with other factors discussed in the article) spell trouble for the prospect of U.S. ratification.
The absence of any limitations on inaction admissibility means that the Court may address, and perhaps is presently addressing, matters that could be prosecuted at the national level. As long as inaction admissibility remains ripe for abuse in this way, the United States will have a compelling reason not to assume the role of the Court’s leading funder.
Accordingly, the article concludes by isolating the factors that have brought this problem to the fore and discussing what can be done to remove this new impediment to U.S. accession.
The full paper is posted here. I welcome your comments!


mihai martoiu ticu said...

It strikes me that many international law scholars, especially Americans, don’t make distinction between legitimate and illegitimate interest. One should be against ICC only if the court hurts the legitimate interests, not if the court hurts illegitimate interests. Precisely as in the national case, I might have an interest in someone elses wallet, but that does not mean that I have the freedom to act in such a way as avoid any court that might indict me for stealing it.

Deborah said...

I find your argument on the problematic application of the principle of complementarity very interesting. Concerning the position of the United States however, I find it futile to articulate reasons for it. To me is simple and plain and the proof is in the recent role of the US at the Review Conference. The US has been the main obstacle for giving the crime of aggression the same jurisdictional bases as the other crimes. As you point out and the Senate report on Kampala confirms, 15bis (5) was by and for the United States. Yet, the US alligned itself with the statement of France rejecting the consensus achieved. the US is not against the Court, just simply against anything they can't control. Concerning the complementarity principle it is being a problem that states do not understand that even if the ICC opens a case this does not mean that national proceedings for the many other cases should be renounced to. But the problem starts not in the Rome Statute but in the failure of states to admit that this so called 'positive' complementarity is jut a reaffirmation of their duty to prosecute. The first step to do so is by way of adopting implementing legislation, something that is just starting to happen. Unfortunately, and despite the 'positive' engagement of the US, we have seen no evidence of moves for the incorporation of all the ICC crimes in US legislation.