U.S. Cash Rewards Program to Include International Criminal Court Arrests

by Jennifer Trahan

[Jennifer Trahan is associate clinical professor at the Center for Global Affairs at the NYU School of Continuing and Professional Studies (NYU-SCPS). She is also chair of the American Branch of the International Law Association International Criminal Court Committee and was a member of the American Bar Association’s 2010 International Criminal Court Task Force.]

Congress recently approved a bill expanding the U.S.’s “Rewards for Justice” program to include apprehension of individuals wanted by international tribunals such as the International Criminal Court.  The bill, passed by the Senate on December 20 and House on January 3, and promoted by U.S. Ambassador-at-Large for Global Criminal Justice Stephen J. Rapp, covers rewards for information leading to

the transfer to or conviction by an international criminal tribunal (including a hybrid or mixed tribunal), of any foreign national accused of war crimes, crimes against humanity, or genocide ….

While the U.S. Government still clearly remains wary of the ICC and is not anticipated to ratify the ICC’s Rome Statue at any time in the near future, the legislation is a further positive step that strengthens U.S. constructive engagement with the Court.  Other recent positive developments include U.S. deployment of 100 special operations forces as military advisers to Uganda to assist with the apprehension of members of the Lords Resistance Army led by Joseph Kony; statements by State Department Legal Advisor Harold H. Koh that the U.S. respects its obligations as signatory to the ICC’s Rome Statute (obligations the second Bush Administration attempted to revoke); and U.S. participation at ICC-related meetings, including meetings of the Assembly of States Parties to the ICC.

During the second term of the Obama Administration, the U.S. should further solidify the US-ICC relationship by formally reactivating U.S. signatory obligations and articulating a clear policy position of U.S. support for the Court, which is designed to prosecute the worst instances of genocide, war crimes and crimes against humanity.  Congress should repeal the ban on direct U.S. financial support of the Court, to which the U.S. has supported referral of the situations in Libya and tacitly supported referral of the Darfur situation.  The U.S. should also press for referral by the U.N. Security Council of the situation in Syria, which has now claimed an estimated 60,000 fatalities, to the Court for investigation and prosecution.


8 Responses

  1. We can laud these efforts by the US, but I understand from the AALS meeting ICC session last week that our inability or unwillingness to hold our own high level civilians or generals accountable in our domestic system for the worldwide massive torture program or lying us into the War in Iraq (upwards of 100 000 dead) is not lost on our counterparts and hampers Ambassador Rapp’s efforts. The fault for this falls squarely on Obama’s shoulders for choosing political expediency and short term considerations over providing the American people meaningful accountability for these crimes that demean America and left over 4000 American soldiers dead and 30 000 wounded in pursuit of a big lie.

  2. Would it be possible to provide a link to Koh’s statements on obligations as signatory of the Statute? That would be very much appreciated. I was always under the impression that the letter from Bush constituted a notification of intent not to become party to the treaty, which, as per article 18(a) VCLT would relieve the US of its interim object and purpose obligations.

  3. To the first question by Benjamin Davis:
    I would agree that the US faces international criticism at least for the first of your points–the “enhanced interrogation” program.  In terms of the US entry into Gulf War II, that is not really an ICC issue.  The crime of aggression may be prosecuted at the ICC level in 2017 at the earliest (if there is activation of the Kampala Review Conference crime of aggression amendment), but the US will be exempt from such jurisdiction and the legislation would not be retroactive in any event.  The other factor that creates some skepticism about the US ICC position is that, while its efforts are as you note laudatory, it is ultimately not a party to the ICC’s Rome Statute; this is a source of frustration, especially since the US (along with China and Russia) have the power to make Security Council referrals to the ICC, yet are all non-States Parties.

  4. To the question of RJ: 

    I don’t have Koh’s statements in written form.  He made a statement first at the Grotius Center of Leiden University on November 16, 2012.  He then repeated it at the New York City Bar Association on November 29, 2012, where it also appeared as a talking point on his slide.  I was present on both occasions.  My notes state that he said “the Administration’s policy is not to defeat the object and purpose of the Rome Statute,” which is somewhat weaker than I may have suggested in my original posting (mea culpa).  Yes, the Bush administration’s note made clear that the US didn’t adhere to the “object and purpose” obligations (but it was never clear that this was effectively “un-signing” the treaty since the Vienna Convention doesn’t provide for unsigning). In any event, Koh has now (at least orally) attempted to negate that part of the Bush Administration’s position.  

  5. Ben could get rich if the draft legislation was changed from “any foreign national accused” to “any person accused”. Isn’t it shameful that even this rewards program would be “American exceptionalism”? Add to this the fact that at least since WWII there have been no prosecutions of any person of any nationality for genocide, other crimes against humanity, or war crimes in our federal district courts. Legislation exists in 10 USC Sec. 810 that incorporates all of the laws of war as offenses against the laws of the United States, and the fed. dist. cts. have jurisd. over such under 18 USC Sec. 3231. More jobs for our grads

  6. I want to expand on my earlier response, which may have left the impression I was suggesting the illegality of Gulf War II.  It is true there is no clear contemporaneous Security Council authorization of Gulf War II.  There is, however, an argument to be made that earlier security council resolutions (from the conclusion of Gulf War I), which allowed continuing use of force to combat “hostile or provocative action” by Iraq, could be “revived” by later material breaches of the weapons inspection regime.  Thus, the legality issue is really quite a complex one.  

  7. Jennifer: that was basically the claim of the US and the UK — that the earlier authorization to use military force for three reasons (get Iraq out of Kuwait, implement subsequent relevant resolutions, and restore peace and security in the area  (which is still an open ended authorrization)– had remained and was expressly kept alive in other subsequent resolutions, including the last one prior to the massive use of armed force.  Another claim was that the first Gulf War never ended — which seems to be technically correct since, at best, there was a cease fire (which does not end a war or armed conflict) and as the US and UK noted, Iraq even breached the ceasefire.  There was continued use of armed force to enforce two no-fly zones over Iraq (so the war de facto continued), etc.
    What I have serious trouble with is the war against Afghanistan (the Taliban), the longest in U.S. history, because it was never publicly proven that the Taliban had attacked the US or did anything more to meet the ICJ test in Nicaragua v. US for imputation or attribution with respect to the non-state actor armed attacks by al Qaeda (which gave the US the UN 51 the right to use military force against al Qaeda as such inside Afghanistan, and still today inside Pakistan). Perhaps the fact that most of the world’s opium comes from Afghanistan and production levels increased after we went in and that organized crime in eastern Europe and esp. Russia helped to stablize the region (stability better than chaos as Russia was nearly bankrupt) had something to do with our entry and continued presence in Afghanistan?

  8. And Ben and I wili give U.S. $ 1.00 (one U.S. doallar) to each person who testifies before the ICC in The Prosceutor v. Bush, Cheney, Gonzales, Addington, Rice, Rumsfeld, Yoo, Bybee, Bradbury, or Rizzo with respect to war crimes and/or crimes against humanity committed or facilitated during the Bush-Cheney era (for ICC jurisdiction, after mid-2002 and with respect to conduct that occurred at least partly in any territory of any party to the ICC, such as Afghanistan) — payable by a check made out to the witness in U.S. dollars upon receipt of a proper address, etc.

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