Is the U.S. Ready to Get Engaged with the ICC?

Although prospects of a marriage remain somewhat fanciful, if the ASIL Task Force on U.S. Policy Toward the International Criminal Court has its way, the Obama Administration will take steps to engage with the ICC in a much more positive way than the Bush Administration.  The Task Force issued a press release today, proposing several significant shifts in U.S. policy.  Here are a few of the highlights: 

a stated policy of the U.S. Government’s intention, notwithstanding its prior letter of May 6, 2002 to the U.N. Secretary General, to support the object and purpose of the Rome Statute of the Court;

examination of methods by which the United States can support important criminal investigations of the Court, including cooperation on the arrest of fugitive defendants, the provision of diplomatic support, and the sharing of information, as well as ways in which it can cooperate with the Court in the prevention and deterrence of genocide, war crimes, and crimes against humanity;

examination of U.S. policy concerning the scope, applicability, and implementation of “Article 98 Agreements” concerning the protections afforded to U.S. personnel and others in the territory of States that have joined the Court;

U.S. participation as an observer in the Assembly of States Parties to the Rome Statute, including the Special Working Group on the Crime of Aggression and the 2010 Review Conference of the Rome Statute;

an inter-agency policy review to re-examine, in light of the Court’s further performance and the outcome of the 2010 Review Conference, whether the United States should become a party to the Rome Statute with any appropriate understandings and declarations as other States Parties have done.

The Task Force is also recommending some changes in U.S. law to coincide with their recommended policy changes:  

• amendment of the American Service-members’ Protection Act and other applicable laws to the extent necessary to enhance flexibility in the U.S. Government’s engagement with the Court and allies that are State Parties to the Rome Statute;

• consideration of amendment to U.S. law to permit full domestic U.S. prosecution of crimes within the jurisdiction of the Court so as to ensure the primacy of U.S. jurisdiction over the Court’s jurisdiction under the complementarity regime; and

• hearings to review and monitor Court performance in order to identify means by which the United States can support the Court consistent with the interests of the United States and the international community and to re-examine whether the U.S. should become a party to the Rome Statute with any appropriate understandings and declarations as other States Parties have done.

The Task Force, chaired by Will Taft and Patricia Wald, includes an august group of former jurists, notably Sandra Day O’Connor and Stephen Schwebel, scholars like Ruth Wedgwood and Michael Newton, along with former congressman Mickey Edwards and former Deputy ICTY prosecutor David Tolbert (Harold Koh was originally listed as a Task Force member, but appears no longer to be associated with it).  Although there’s definitely an internationalist tilt in membership, it’s truly bipartisan.  They’ve met frequently and sought outside expertise as well (full disclosure: I provided some advice to the Task Force on the international and domestic legal effects of John Bolton’s 2001 letter indicating the United States had no intention to ratify the Rome Statute).  Given the membership and the amount of time the Task Force has spent trying to craft a common position, I suspect its opinions will likely get some serious play at the White House, Foggy Bottom, or even on the Hill.  The Task Force is scheduled to issue a more detailed report of its position in time for the upcoming ASIL meeting, so I’ll try and report back when we have a more nuanced vision of the group’s recommendations.