ASIL ICC Task Force Report Now Available
Back in February, I noted that the ASIL Task Force on U.S. Policy Toward the International Criminal Court had adopted a set of recommendations for how the Obama Administration could take steps to engage with the ICC in new, more positive ways than the preceding Bush Administration. As part of the ASIL Conference last week, the Task Force released a Report to support their earlier Recommendations (full disclosure–I was asked for, and provided advice to, the Task Force, on the legal effects of John Bolton’s 2002 letter indicating the United States did not intend to ratify the Rome Statute).
Here’s the quick take-away version from the Report’s Executive Summary:
The Court is in the early stage of development, now convening its first trial. And yet, it has an emerging track record of engagement in situations of great interest to the United States. In 2010, the Assembly of States Parties to the Rome Statute will convene its first Review Conference to consider the future direction of the Court. Among the issues to be addressed at the Review Conference are defining the crime of aggression and setting out the conditions under which the Court shall exercise jurisdiction over allegations of aggression—steps that inevitably implicate U.S. interests. The time is ripe for a review of U.S. policy toward the Court, to assess its performance to date and identify ways in which the United States might, in its own interests as well as those of the international community, more effectively contribute to the development of the Court.
This Task Force has undertaken such a review, hearing from more than a dozen experts and officials representing a variety of perspectives on the ICC. Our conclusion—detailed in the recommendations in this report—is that the United States should announce a policy of positive engagement with the Court, and that this policy should be reflected in concrete support for the Court’s efforts and the elimination of legal and other obstacles to such support. The Task Force does not recommend U.S. ratification of the Rome Statute at this time. But it urges engagement with the ICC and the Assembly of States Parties in a manner that enables the United States to help further shape the Court into an effective accountability mechanism. The Task Force believes that such engagement will also facilitate future consideration of whether the United States should join the Court.
The Report goes on to talk about a host of ICC-related issues, including the Rome Statute’s consistency with other rules of international law, the legal effects of the 2002 Bolton letter on U.S. obligations under the “object and purpose” rule found in Article 18 of the Vienna Convention on the Law of Treaties, the constraints of the American Service-Members’ Protection Act of 2002, Article 98 Agreements, complimentarity, as well as U.S. constitutional questions relating to due process and the construction of domestic courts. For those interested in the ICC, and more particularly, the future of U.S. relations with the Court, there’s a lot to digest here. Given the expertise and bipartisan nature of the Task Force, I’ll be interested to see how the State Department responds to the Report and its recommendations.