The United States and the ICC: A Slight Warming?

U.S. Ambassador-at-Large for War Crimes Stephen Rapp just concluded his statement to the plenary session of the Review Conference.  His comments included some broadly positive references to the ICC, but equally some concerns and warnings.  On the positive side, Rapp noted the important role the Court can play in bringing international criminals to justice and contributing to the decisive end of heinous acts of violence.  The United States, Rapp noted, supports current efforts to arrest Joseph Kony and other indicted members of the Lord’s Resistance Army.  However, Rapp’s statement was also at pains to emphasize the challenges facing the ICC.  While avoiding reference to specific U.S. objections to the Court, Ambassador Rapp did highlight the unsettled status of the crime of aggression, and the current lack of agreement on key elements of its definition and proposed operation (the so-called “jurisdictional filter”).  The conclusion in this respect was stark:  moving forward on aggression without consensus could undermine the ICC as an effective–or perhaps potentially effective–international legal institution.

The question, it seems, is whether this interesting but relatively innocuous statement represents anything new.

Observers have noted a partial shift in the U.S. position towards the Court since the start of the Obama administration.  This apparent change has been reflected in a more sympathetic view of the ICC, and an effort to find opportunities for accommodation and common cause rather than a fundamental realignment of U.S. policy regarding formal membership.  Yet even this modest shift is a welcome change from the overt hostility of the early Bush (Jr.) years.  The second term of the latter Bush administration did witness a partial acceptance of the Court, most notably in its decision not to veto a UN Security Council resolution referring the Darfur case to the ICC Prosecutor.  In this light, the Obama policy appears to be a a further incremental move towards the Court — a trajectory, however, which still stops short of formal accession to the treaty.  Though non-parties are not permitted to vote on proposed amendments to the Rome Statute, the U.S. has brought a large delegation to Kampala, and will no doubt seek to influence the final negotiations, most notably on the crime of aggression.  All of which is to say: watch this space.