With the Trump campaign throwing no direct light on its international criminal justice agenda (with the exception of certain vague foreign policy statements) and the ICC prosecutor planning to launch a full scale investigation in Afghanistan (which would include a focus on Torture at the highest levels of the US administration), US-ICC relations are expected to get more complex in the times to come.
Clinton administration and the emergence of the ICC
The Rome Statute establishing the ICC was adopted on 17th July, 1998. United States, despite being a chief participant in the Rome deliberations during the Clinton Presidency was one of the seven countries which voted against the adoption of the Statute as opposed to 120 countries who supported the adoption. The chief objection was the possibility of ICC exercising jurisdiction over US servicemen engaged in legitimate and appropriate use of force and the resultant loss in sovereignty even in the absence of a formal ratification of the ICC statute. Even the indictment of civilian foreign policy makers by the ICC was not ruled out. Efforts to secure immunity for US nationals from the Courts jurisdiction proved futile. On December 31st 2000, President Bill Clinton signed the Rome Statute which, however, was not submitted for ratification to the Senate on the ground that a closer examination of the Court’s actual functioning was necessary for further action.
Bush Administration’s contempt towards the ICC
Prior to the coming into force of the Rome Statute on 1st July 2002, President Bush took the unprecedented step of “unsigning” US from the treaty and formally renounced all obligations that the US may have towards the Court. To further bolster its position against the Court, President Bush signed the American Servicemembers Protection Act (ASPA) which prohibited all wings of the US government from cooperating with the ICC. This was followed by “Article 98” Bilateral Immunity Agreements (BIA’s) with various countries including India which precluded bilateral partners from surrendering US nationals to the ICC. Under Article 98 of the Rome Statute, the ICC is prohibited from proceeding with the surrender of an individual to the Court unless the court has first obtained the cooperation of the sending state for surrender and cannot compel a state to violate an international agreement it is party to. The BIA’s in practice took away the power of the ICC to deal with US nationals and considerably whittled down the concept of universal jurisdiction. The referral of the Darfur situation to the ICC by the UNSC through Resolution 1593 in 2005 under Article 13 (b) of the Rome Statute was strongly objected by the Bush Administration on the ground of its fundamental disagreements with the ICC. However, the collective weight of the UNSC persuaded the US (and China, the other major objector) not to exercise their veto power and abstentions followed which facilitated the subsequent issue of arrest warrants by the ICC against Omar Al Bashir and others. Thus the Bush administration was the forefront of international efforts to scuttle the power of the ICC and efforts to undermine the legitimacy of the Court were significant features of its foreign policy.
Obama Administration and International Criminal Justice initiatives
The extreme hostility of the Bush administration to the ICC puts the Obama administration’s approach to the ICC in a comparatively positive light. While the Obama administration was careful not to water down the fundamental objections of the US towards the ICC, it took steps to extend an olive branch to the ICC. Among the favourable steps include the willingness of the administration to send forces to track down Joseph Kony, an ICC indictee and leader of the Lord’s Resistance Army (LRA) in Uganda, through the passage of the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act with the unanimous support of the Senate among other initiatives.
Expansion of the Rewards for Justice Programme (RFJ)
The RFJ, started in 1984 is a State Department programme to award information that leads to the arrest of individuals engaged in acts of aiding, abetting and conspiring terror against US interests. The expansion of the RFJ to cover ICC indictees and others wanted by mixed or hybrid tribunals was a major initiative of the Obama Presidency. However, keeping in view the existence of the Bush era’s ASPA, information pertaining to US nationals was excluded from the ambit of the programme.
Referral of Libya to the ICC
In sharp contrast to the Bush administration’s position of abstaining from Resolution 1593, the Obama administration voted positively to refer Libya’s situation to the ICC (UNSC Resolution 1970) in February 2011. However, the inability of the administration to take a leadership role on two controversial issues hanging fire since the Darfur referral in 2005 further exposed the commitment of the US to the ICC; firstly, the funding of UNSC referred ICC proceedings by the UNSC itself and secondly, the indictment of citizens of non-state parties in the referred scenarios. The position of the Obama administration was to leave the funding of these proceedings to the ICC and its state parties without involving the UNSC and non-prosecution of citizens of non-state parties to the ICC. Furthermore, the subsequent unwillingness of the administration to goad the ICC in enforcing its Libya mandate after a failed intervention in the country (accepted by Obama to be his biggest foreign policy failure) did not serve the cause of international justice.
Handing over Bosco Ntaganda to the ICC
Congolese warlord Bosco Ntaganda, an ICC indictee was handed over to the ICC after his voluntary surrender at the US embassy in Kigali, Rwanda in March 2013. US not being a party to the Rome Statute and having no obligations in this regard, decided to hand over the indictee to the Hague. Given the historic animosity of the US to the ICC, its voluntary co-operation with the ICC was widely viewed as a reflection of the changing nature of US-ICC relations.
While eroding the credibility of the ICC was a chief objective of the Bush administration in the wake of a favourable climate created by the Clinton administration, significant improvements in US-ICC relations were witnessed during the Obama administration, despite no indication that the country would be joining the Rome Statute. A Trump presidency given its ideological moorings is likely to take the US back to the Bush era and progressive developments made during the last eight years are likely to be lost. The world should be ready for a possible showdown between the Trump Administration and the ICC which does not bode well for anti-impunity initiatives. The immediate litmus test to this complex relationship would be ICC’s decision to proceed with the Afghanistan scenario given the reality that it would be seeking to pursue justice against the US -a non-state party on the ground that alleged violations of international law took place in Afghanistan- a State Party to the Rome Statute.