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.