On the ICC, Obama administration, how deep is your love?

By David Kaye

Palestine’s accession to the Rome Statute just before New Year’s Eve unleashed some excellent quick commentary and reactions. It clearly cut into David Bosco’s party time, as his posts on this blog are must-reads for those trying to understand both the legal and political/diplomatic factors likely to be at play as this – whatever “this” is – moves forward. I was particularly interested in David’s comment that, “At the very least, the Obama administration’s moves to smooth relations with the court will come under much greater scrutiny” by Congress. I suspect that is true. During the Obama administration, the United States and the ICC have enjoyed a cooperative relationship without much if any controversy or even discussion.

It doesn’t take a specialist to predict that members of Congress on both sides of the aisle, reacting to an ICC investigation related to Israeli behavior in the West Bank and Gaza Strip, would seek to put the brakes on U.S.-ICC cooperation. American reconsideration of support for the ICC would be unfortunate and short-sighted, but it’s easy to imagine. From a distance, despite the robust support for the Court from the administration, the overall commitment to the Court in Washington seems transactional and vulnerable. It’s not clear how much work the administration has done to build genuine support for the Court on the Hill (maybe a lot, but I don’t see it). In any event, David’s comment made me wonder about two aspects to the politics of ICC support.

First, I wonder how hard administration officials would resist a Congressional push to pull back from ICC support. Do the administration’s principal ICC proponents see the last two years of the Obama administration as an opportunity to lock in the gains in the US-ICC relationship? Clarify the relationship between atrocity prevention and accountability? Seek legislation to move to a place where more formal cooperation can be considered normal (and lawful)? I find it hard to imagine such a push (let alone such efforts working). The attitude toward a Syria referral – long-time opposition and then finally support last spring – suggests that, despite support for a number of the Africa situations, the administration sees the ICC in transactional ways (support when it advances or is neutral with respect to U.S. objectives). Would it fight for the relationship in the face of a Palestine investigation?

Second, the perception of December as a bad month for OTP – withdrawing the Kenyatta charges and mothballing the Darfur investigation — led to some negative op-eds and the usual superficial gibberish about credibility. (I think it’s just as possible to see the prosecutor, Fatou Bensouda, as retrenching, repairing, and preserving her office’s resources for the future, actually a savvy if difficult set of moves.) Still, the perception may be that it’s simply not worth fighting for a weak Court. In the absence of many good-news stories for the Court overall, there’s a potential for very soft support for the Court. It would be interesting to see whether those on the Hill who have supported the ICC’s Africa situations – especially Uganda, Darfur and the DRC – continue to promote and defend a Court pursuing a Palestine investigation.

I could cite a long list of reasons to support the Court, but I only wanted to raise these narrow questions about the politics in Washington. ICC supporters, inside and outside Washington, do need to be making the case now for the Court. I’d be interested to know what others think, particularly those who follow this stuff in Washington. Needless to say, if a Palestine process moves ahead, the Court will need all the American support it can muster. Just don’t count on it.

About David Kaye

Clinical professor of law at UC Irvine School of Law. UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. Writing mainly about freedom of expression but also international justice and human rights more generally.
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4 Responses to On the ICC, Obama administration, how deep is your love?

  1. Mark Kersten says:

    Thanks for the fascinating post! I appreciate the use of “transactional” to describe the US’s approach to the ICC. I think it’s more useful than ascribing the relationship to simple ‘selectivity’ or, worse, hypocrisy, even if at times it appears to have elements of both. It would be interesting to look into how the ICC buys and sells its work in this ‘market’.

    One question I have is what concrete measures or steps has the Obama administration taken to position itself positively towards the ICC and solidify / strengthen US support. I may be missing something, but of concrete measures that could / should resonate for some time, I can only really think of the expansion of the Rewards for Justice Programme. The support for a Libya referral is offset (if not completely than significantly) by the politicized nature of Resolution 1970 (especially the US insistence to exclude citizens of non-member states which only seems increasingly problematic now). The support for a Syria referral is likely offset by the fact that the US still seems to prefer an ad hoc tribunal and it took three years to get there and everyone from Hilary Clinton to Samantha Power are on record saying that the ICC would not be useful in Syria. Other developments – specifically more positive rhetoric, participation in ASP conferences and other events, etc. – seem to me to be the type of measures that are easily rolled back and very likely would be under a Republican or Clinton administration. Am I missing something in terms of how the Obama has entrenched US support for the Court?

    The other thing I wonder about is about the strength of the Court and how this affects its relations with powerful states. Is it perhaps not easier for the US to support a *weak* Court than a strong one? That seems to be one of the underlying messages of David’s ‘Rough Justice’. At the very least, the US seems to prefer a Court that is not strong or bold enough to intervene in states where it has heightened interests.

    Thanks again – really interesting post that I hope generates some earnest discussion.

    • David Kaye says:

      Thanks, Mark. I also do not see more than RFJ as far as concrete measures, though I would add to your list of resonant actions the transfer of Bosco to The Hague. The administration clearly has built a strong cooperative relationship with the Court on its existing caseload, creating a kind of infrastructure or process that could easily continue on and improve in the absence of future barriers. But the cooperation is case specific. Look at the war crimes office website, where it quotes the 2010 National Security Strategy policy that the administration will support “the I.C.C.’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.” (my itals) There’s your transaction.

      As for RFJ, the USG pays out rewards for “designated” defendants. I can’t easily find a list for who those are designated (apart from the LRA defendants), but the obvious result is that rewards are not available for all those subject to an ICC arrest warrant, just those designated by State.

      Interesting last question there. Good plug for David’s book (the other Bosco)!

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