ICC Panel Discussion at SAIS

ICC Panel Discussion at SAIS

For those around DC this upcoming Monday afternoon, there is a very interesting panel discussion organized jointly by the ABA International Section, ASIL, and SAIS on the ICC.  It will feature a screening of an excerpt from the documentary The Reckoning, and then a panel discussion that will have Gary Solis, Jane Stromseth, John Bellinger, and me, and moderated by Ruth Wedgwood.  At SAIS, Rome Auditorium, 1619 Mass Ave, NW.  Film excerpt from 4:30-5:00, and then the panel discussion from 5:00 to 6:00.  RSVP at this link.

I imagine one of the important issues for the panel discussion will be the US and the ICC – join, cooperate, what exactly?  This was the topic of an ASIL initiative that Chris was involved with a few months ago, as well as a Brookings initiative as well.  The Brookings initiative has turned into a hardback book authored by Lee Feinstein (currently US ambassador to Poland) and the Hoover Institution’s Tod Lindberg, editor of Policy Review.  I was part of the advisory group that Brookings convened on this, and read early drafts of the manuscript.  It’s a terrific discussion, and builds an impressive case that centrists across the divide could build on to support the ICC in some fashion.

My own views were much closer to the views of the book until a few months ago; they have gradually shifted since then. I find myself much less favorably disposed to the US getting closer to the ICC than in 2008, at least if that means actually joining.  The reasons are two:  one is that the ICC prosecutor has been sufficiently erratic that I don’t think the ICC itself has sufficient stability that the US could believe that it has a clear understanding of what it would be getting itself into by actually joining.  The ICC prosecutor has turned the office in the forseeable future into something that carries too many uncertainties for the US, in my view.  The second is that the Obama administration seems to me unlikely to be sufficiently protective of US interests, at least as I see them, in setting the terms of a US getting closer to the ICC for this to be a good thing.  That is in what I would regard as the extraordinarily unlikely event that the Obama administration, at least anytime before its last months in office, decided to pursue joining.  But of course this is explicitly predicated on my view of what the US interest is.  But it is hard for me to imagine that the Obama administration thinks that it could seriously consider joining an organization with some ability to go after it on legal grounds for its targeting decisions in Afghanistan and Pakistan and other places.

Much of this is moot, however, because at bottom I don’t think the ICC leading actors – states, the prosecutor, others – particularly want the US to join.  It introduces a new layer of uncertainties for it that I do not think it wants or needs at this point.  So I think there are ways in which the US could cooperate with the ICC in ways that don’t touch on, for example, Afghanistan or targeted killing or other things.  There are many common interests, or at least would be, if there were any reason to think that the US is interested in international criminal justice issues related to such places as Sudan.  Is there?

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[…] panel discussion 5–6:00, at the Rome Auditorium, SAIS.  This short book is well worth reading; I comment on it briefly here at Opinio Juris and on the general question of US relations with the ICC at this point in time (about which I am […]

Kevin Jon Heller


I’m sure we would disagree on the merits of the US joining the ICC, but I’m genuinely puzzled by your statement that you “don’t think the ICC leading actors – states, the prosecutor, others – particularly want the US to join.”  I, for one, fail to see the downside for the Court — the US would become the leading funder of the Court, US membership would mean a new source of excellent judges, the US would be treaty bound to cooperate with the Court in its various investigations, etc.  Could you elaborate on your view?