The Emerging Consensus on U.S. Policy Toward the ICC: CFR Issues Report on Kampala

by Julian Ku

In many ways, it is more important to note the continuity between Obama and Bush administration policies than to dwell on their differences. Given the political antecedents of the two administrations, the areas where they have adopted the same policy is a sure-fire sign that there is broad consensus in the U.S. on a policy.  I think we are getting close to such a consensus with respect to U.S. policy toward the ICC.  Here are the likely areas of the emerging U.S. consensus (after the jump):

1) The U.S. will not join, nor does it have any plans in the near future to join, the ICC.

2) The U.S. will seek to remain engaged in the ICC as an observer, and will no longer seek to obstruct or oppose ICC investigations and other works.  Indeed, it will cooperate with the ICC (as in Sudan) in certain cases.

3) The U.S. will oppose — strongly oppose — the current definition of “aggression” that may be adopted by the ICC at its Kampala review conference as well as the addition of “aggression” (however defined) to the jurisdiction of the ICC.

This last point is still up in the air since Kampala is not until next week. But it is a safe bet that the U.S. will follow this policy, as laid out in a persuasive and compelling report offering guidance on U.S. policy toward the upcoming International Criminal Court review conference in Kampala, Uganda.  Authored by Vijay Padmanabhan, a visiting lawprof at Cardozo and a former senior lawyer at the State Department Legal Advisor’s office, the report is probably a fair reflection of the views of the State Department on the ICC during the second George W. Bush term.  The directors of the report were both high-level Bush State Department officials: John Bellinger (Legal Adviser 2004-2008) and Matthew Waxman (former Deputy Director for Policy Planning).

Yeah, we (probably) have consensus!  Sure, not everyone is going to be happy. I myself am doubtful that the level of cooperation with the ICC recommended in the report will get the U.S. anywhere, but I do agree that rigid opposition has not been particularly effective either.  So I can live with the consensus, and with the policy of using the ICC sometimes, ignoring it when we need to (see, e.g., our recent policy toward Sudan), and trying to nudge it from the outside whenever possible.  So I wish the best of luck to the U.S. Kampala delegation.  They should feel good that there is a lot of consensus back home behind them!

http://opiniojuris.org/2010/04/24/the-emerging-consensus-on-us-policy-toward-the-icc-cfr-issues-report-on-kampala/

2 Responses

  1. I agree with remember the continuity between the two administrations, though I’d like to stress even more the amount of back tracking currently taking place in Obama’s administration.  Change was just another buzzword afterall… just separation between church and state is fading away into obscurity:
    http://lawblog.legalmatch.com/2010/04/20/family-court-wont-stop-non-custodial-parent-from-taking-child-to-church/

  2. “Politicians promises only bind those who believe them.” – Jacques Chirac.

    The ICC should start reexamining its view of the United States.  Waxman and Bellinger as drafters – no comment.  All very insidious seeping in of a unilateralist vision to which it seems many are willing to acquiesce in this country – I guess betting that we will win in all these circumstances. How shortsighted.

    Best,
    Ben

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