ICC Prosecutor Symposium: Advice for the Incoming ICC Prosecutor–Engage the U.S. Public Directly

[Beth Van Schaack is the Leah Kaplan Visiting Professor in Human Rights at the Law School and a Visiting Scholar at the Center for International Security & Cooperation at Stanford University. Please don’t miss Patryk I. Labuda’s symposium post at Justice in Conflict.]

The relationship between the United States and the ICC has been characterized by change more than continuity. Over the years, and across U.S. presidential administrations, these interactions have vacillated between a wary arms-length posture to constructive support and cooperation to overt hostility (see the ABA’s timeline here). There is no question that this relationship has reached a new nadir under the Trump Administration. Even before the ICC Appeals Chamber greenlighted the OTP’s Afghanistan investigation—which encompasses U.S. custodial abuses in Afghanistan and other ICC member states—elements of the Trump Administration had denounced the Court and taken retaliatory measures in the form of revoking the visa of the Prosecutor, Fatou Bensouda. The ad hominem attacks against judges and other personnel of an international institution have been roundly condemned by U.S. allies, but saluted by representatives of a few states that are themselves subject to investigation, such as Burundi, which withdrew from the Court in 2017 but too late to divest the Court of jurisdiction over alleged crimes against humanity in connection with the country’s constitutional crisis. “We can only rejoice that another country has seen the same wrong,” said the representative of Burundi whose government is widely reported as responsible for pervasive campaigns of murder, rape, and torture.

Once the Afghanistan appellate ruling issued, the United States again reacted confrontationally. In mid-March 2020, Secretary of State Mike Pompeo identified two prosecutorial staffers by name who might be subject to visa restrictions and other punitive measures—the Prosecutor’s Chef de Cabinet and the head of the Jurisdiction, Complementarity, and Cooperation Division (JCCD) (even though neither would likely be involved in any actual investigation were one to materialize)—and threatened to also sanction the family members of ICC personnel. Experienced U.S. diplomats, including several who served under Republican and Democratic Administrations as U.S. Ambassadors-at-Large for War Crimes Issues, along with former Nuremberg Prosecutor Ben Ferencz, immediately decried this startling and counter-productive move, pronouncing it a show of weakness and fear rather than of strength or confidence.

The new ICC prosecutor is slated to assume his or her position in June 2021. By this time, the U.S. presidential election will have concluded, if all goes as planned. A new U.S. administration will offer the incoming Prosecutor the opportunity for a desperately-needed “reset” once the foreign policy team has settled in. Most important will be the Office of Global Criminal Justice in the State Department, currently headed by Ambassador Morse Tan, which is the point of contact for international criminal justice issues and which has served as the primary voice within both Republican and Democratic administrations for the principle that those responsible for atrocities should be held to account. But the United States’ ICC policy is also influenced by elements within the White House’s National Security Council, regional and other offices in the State Department, the intelligence agencies (the activities of which would likely be the primary target for an Afghanistan investigation focused on U.S. custodial abuses), and the Pentagon, not to mention The Hill. In all of these agencies and offices, there will be individuals who are supportive of forging a constructive relationship with the Court and who see the current combative posture as counterproductive, unwise, and perhaps even unlawful, even if the Afghanistan investigation eventually includes U.S. persons. To be sure, the room to maneuver and influence of these internal allies will depend not only on how the Afghanistan situation evolves, but also on the outcome of the ongoing ICC reform process, which has brought a spotlight to serious structural and methodological shortcomings of the Court.

In the event that President Trump is re-elected, I suppose there is some slim possibility that a second term Trump Administration would reach a conclusion similar to that of George W. Bush: that there are times when the work of the Court can advance, or is entirely consistent with, U.S. global interests and that an overly bellicose stance impedes the United States’ ability to achieve its foreign policy objectives on other fronts. Regardless of who is in the White House, the ongoing Afghanistan investigation obviously complicates any future U.S. engagement with the Court and will render various forms of cooperation difficult, even under a less hostile administration. Indeed, some types of engagement may actually be impossible—legally and/or politically—in the event that the OTP and the U.S. government find themselves in a formally adversarial relationship if any U.S. persons are investigated or even indicted.

It is important to highlight that the Trump Administration’s uncompromisingly hostile attitude towards the Court does not reflect the attitudes of the U.S. populace as they have been expressed in a number of national polls. The views of U.S. citizens vis-à-vis the Court are obviously hard to accurately gauge and were collected at a time when there was no chance that U.S. personnel might appear before it. Furthermore, these positive views have not necessarily translated into concrete pressure on Congress, which during the Bush Administration passed anti-ICC legislation that limits the types of cooperation the United States can provide the Court (although some of the more hostile elements have since been declawed).

All that said, a number of population-based surveys suggest a high level of support for the Court in principle, the ideals it embodies, the broader project of international justice, and the United States assuming a leadership role when it comes to multilateral engagement. As such, even while pursuing a “reset” with the U.S. government, the new Prosecutor should look for ways to cultivate a direct relationship with the U.S. people. This includes working with the media, academia, bar associations, diaspora organizations, and other elements of the civil society ecosystem. In addition to the usual suspects (e.g., Human Rights Watch and Amnesty International), the OTP should look for ways to reach U.S. citizens involved in other civic and fraternal organizations, such as the Rotary Foundation. In addition, faith-based communities in the United States have been instrumental in provoking a strong response from Congress around atrocities situations, such as the genocide in Darfur and the depredations of Joseph Kony and the Lord’s Resistance Army in Northern Uganda and Central Africa. And the American Bar Association’s Center for Human Rights and its ICC project has worked to enhance understanding of, and build support for, the Court within legal circles. Unfortunately, the American Coalition for the International Criminal Court (AMICC) would have been the natural partner in this endeavor, had to reduce activities last year for lack of funds.

Surveys of the American public are enlightening when it comes to the ICC and suggest that outreach from the OTP, Court personnel, and other surrogates will be well-received. For example, with the global market research enterprise Ipsos, the American Bar Association’s ICC Project has conducted surveys of the American people for several years now. Some highlights of this longitudinal study:

• In 2018, 50% of Americans believed the United States should become more involved in, or fully join, the ICC, up from 34% in 2014. (Indeed, 45% of Americans erroneously thought that the U.S. had in fact joined the Court). In 2018, only 20% agreed that the United States should not join the Court.
• 73% of Americans agreed it is important for the United States to participate in international organizations that support human rights and that hold individuals accountable for mass atrocities. This position has always enjoyed a strong consensus among survey participants, but this percentage has increased consistently over the tracking period, beginning in February 2014 when 60% approved of this proposition. Not surprisingly, support for international organizations that advance human rights and hold individuals accountable for mass atrocities is strongest among those who believe the United States should become more involved or fully join the ICC (90%).
• Even when asked about a potential investigation of U.S. personnel for crimes in Afghanistan, a plurality of respondents (45%) support the investigations (with 20% strongly supporting it). Only 21% were opposed; the rest were unsure. That said, a much stronger percentage supported the investigation when only the Taliban or ISIL would be under investigation. An earlier Pew survey dating from 2003 (when the United States was on a war footing in Iraq) found that only 37% of Americans said that “the International Criminal Court should have jurisdiction over U.S. troops accused of war crimes, even if the U.S. government refuses to try them.”
• The number of Americans who believe we should dedicate U.S. resources—including financial, military and intelligence assistance—to international organizations that support human rights and that hold individuals accountable for mass atrocities continues to grow, from 47% in 2014 to 63% in 2018.

Similarly, the Chicago Council on Global Affairs regularly surveys a sample of the U.S. populace on a range of foreign policy issues, including multilateral engagement. In their 2018 survey, a broad majority of their sample (70%)—including individuals who identify as strong supporters of President Trump—rejected isolationism and favored active U.S. involvement in multilateral affairs. Likewise, participants support the United States exercising leadership on international issues. In terms of the ICC, U.S. respondents to this survey have increased their expressions of support for United States’ participation in the institution, peaking in 2018 at 74% approval.

The Chicago Council’s 2016 survey generated similar results. At least half of respondents, and a larger majority when it comes to some of these propositions, indicated that maintaining and building new alliances, strengthening the United Nations, and joining multilateral treaties are all “somewhat” or “very” effective for achieving U.S. foreign policy goals (more so overall than maintaining military superiority, although Republicans do favor the latter more than other options). In terms of particular agreements, there was strong support even among core Trump supporters for the Paris Agreement on the environment and for the Rome Statute. The question on the ICC asked specifically: “do you think the United States should particulate in … the agreement on the International Criminal Court that can try individuals for war crimes, genocide, or crimes against humanity if their own country won’t try them.” Respondents across the political spectrum agreed with this statement. A total of 72% of surveyed Americans indicated that the United States should cooperate with the ICC. The results were highest among Democrats (79%) but a strong majority among “core Trump supporters” (65%) as well. No doubt, these numbers would shrink if “American soldiers” were substituted for “individuals,” but the idea of global justice is appealing to the American public.

The 2014 survey did not compile details on the ICC specifically, but did note that: “Over the past decade, majorities of Americans have consistently supported international treaties and agreements, ranging from the ban on land mines and the nuclear test ban treaty to the International Criminal Court and Kyoto agreements.” Going back to 2012, 70% of Americans agreed that the United States should participate in the Rome Statute in light of the complementarity principle. And, in 2010, 78% approved of the “trial of suspected terrorists in the International Criminal Court,” with 70% approving of the United States’ participation in the Rome Treaty, up from 68% in 2008. In 2010, half of all respondents agreed that the ICC needs to be strengthened “based on the idea that because of the increasing interaction between countries, we need to strengthen international institutions to deal with shared problems.”  That said, 42% expressed concerns that strengthening the Court “would only create bigger, unwieldy bureaucracies.”

Support for the United States’ commitment to atrocities prevention and response remained high throughout this period. For example, in 2010, a full 73% supported the creation of an “international marshals service” to arrest leaders responsible for genocide. The Pew Research Center recorded partisan differences on whether the United States should join the Court in a 2005 survey, with 88% of Democrats opinion leaders being in favor as compared to only 33% of Republican influencers (62% of Independents were also in favor of involvement with the Court). Similar partisan differences were recoded with respect to people’s views of the United Nations. Support for the ICC varies slightly across different professions:

• scientists and engineers (83% in favor)
• foreign affairs (81% in favor)
• security (74% in favor)
• academic/think tanks (66% in favor)
• religious leaders (64% in favor)
• news media (62% in favor)
• military (45% in favor)
• state and local government leaders (45% in favor)

Collectively, these results are important because they signal that John Bolton’s and now Mike Pompeo’s “kill the Court at all costs” approach does not enjoy any support within the U.S. populace. Indeed, the American public has long believed in the imperative of accountability for the worst international crimes and wants the U.S. government to play a leadership role in fostering justice. Of course, the OTP cannot undertake this outreach to U.S. citizens alone. Human rights NGOs must continue to cultivate an informed and active U.S. constituency in favor of international justice, including the Court, and—most importantly—one that is willing to consistently engage their members of Congress on this issue. Seeing what the Kony 2012 film was able to accomplish in terms of galvanizing young people and ordinary Americans to care about the LRA and Northern Uganda—notwithstanding that the film was wildly inaccurate and painfully simplistic—speaks to the power of these ideas to move Congress and, ultimately, U.S. policy. Unfortunately, the U.S. public has not been sufficiently vocal in the ways that matter when it comes to other opportunities for the United States to work constructively with the Court on atrocities situations around the globe.

My hope is that the incoming Prosecutor will have an opening with the next U.S. administration to normalize the U.S.-ICC relationship and that the current bellicose stance has not caused irreversible damage, as some have feared. And, that a new U.S. presidential administration will abandon Pompeo’s posture as part of a larger effort to re-establish U.S. leadership in the world, re-commit to enhancing human rights and international justice, and re-affirm the idea that multilateral engagement around shared problems and principles falls squarely within U.S. interests. The U.S. public will be essential to nudge government actors in this direction and human rights NGOs will be essential to facilitate this movement. If there are silver linings to be found around the covid-19 pandemic, one might be that the U.S. populace will realize what happens when the United States turns inward and fails to lead and when the states of the world fail to work together to respond to global challenges. Those supportive of a less antagonistic U.S.-ICC relationship should endeavor to ride the wave of a decisive U.S. return to multilateralism.