Support for ICC Investigations

As described above, and as confirmed by interlocutors involved at the time, the United States during the Bush Administration provided occasional support for ICC activities where United States and ICC interests aligned. For its part, the Obama Administration adopted a policy of providing support on a case-by-case basis where consistent with U.S. interests.  This Section describes in more detail some of the types of support and assistance that the United States provided under this framework to identify areas where it has been determined that U.S. assistance is lawful and will further U.S. interests in justice.

We have already discussed the situation in Darfur, in which the United States during the Bush administration made a decision at the presidential level to permit the Security Council to refer the situation to the ICC Prosecutor. The United States provided strong political support in various forms thereafter, including publicly stating early on that the United States would cooperate with the Court if it requested information for its Darfur investigation, subsequently undertaking measures and making statements aimed at bringing about the arrest of the ICC’s fugitives in this situation, and objecting to provisions of a resolution that hinted at possible support for a deferral of the Darfur investigation under Article 16 of the Rome Statute. 

Operational Field Support #

In other cases, support to the Court was provided “in the field.” Through all phases of the U.S.-ICC relationship, dating back to even before the Darfur referral, there was sharing of information between U.S. diplomatic and deployed defense personnel in the field and ICC actors (including investigators and victims' representatives) in countries where the ICC was investigating (or where indictees were present). This exchange of information reflected the imperatives of the situation on the ground, in often dangerous environments with limited information sources, and the recognition of a shared mission to pursue justice and accountability for the victims of atrocity crimes and limit the malign impact of perpetrators. In particular, according to one interlocutor, U.S. and ICC field personnel shared information on developments within the Lord’s Resistance Army (LRA), and the United States helped to spread information in northern Uganda on the ICC’s activities in order to reduce support for the LRA and induce defections. U.S. activity intensified thereafter, with efforts focused on the role of LRA Commander Joseph Kony, who had been subject to an ICC arrest warrant since 2005. The Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act, signed into law by President Obama in 2010, stated that it is the policy of the United States to “work vigorously” to:

“eliminat[e] the threat posed by the Lord’s Resistance Army to civilians and regional stability through political, economic, military, and intelligence support for a comprehensive multilateral effort to protect civilians in affected areas, to apprehend or otherwise remove Joseph Kony and his top commanders from the battlefield, and to disarm and demobilize Lord’s Resistance Army fighters; and…further support[] comprehensive reconstruction, transitional justice, and reconciliation efforts…” 

Indeed, in its pledge in Kampala, the United States “reaffirm[ed] President Obama’s recognition…that we must renew our commitments and strengthen our capabilities to protect and assist civilians caught in the [Lord’s Resistance Army’s] wake, to receive those that surrender, and to support efforts to bring the LRA leadership to justice.”  In 2011, President Obama, with bipartisan support, launched Operation Observant Compass and sent one hundred combat-equipped military advisors drawn from U.S. Special Operations Forces to assist the Ugandan Peoples Defense Forces and an African Union Regional Task Force (AU-RTF) in their efforts to track Kony and remove him and “his top commanders from the battlefield.”  This was on top of the provision of substantial matériel (including communications equipment, logistical support, tactical equipment such as night vision goggles, and vehicles) to support this initiative.  This effort lasted several years, helped substantially diminish the group, and featured regional cooperation in the transfer of Ongwen to the Court.

Support in the Arrest and Surrender of Fugitives #

As noted above, the United States extended its WCRP in 2013 to enable it to offer rewards for information leading to the transfer and conviction of specific foreign nationals to the ICC and offered such rewards for four ICC suspects. However, its support for the arrest and surrender of fugitives has gone beyond merely offering rewards. The most tangible U.S. contribution to the work of the Court has been its critical operational role in the surrender of two of the highest-profile fugitives to the ICC. The United States first facilitated the transfer of former Congolese militia leader Bosco Ntaganda, who had been subject to an outstanding ICC arrest warrant since 2006 (although it was not unsealed until 2008), to The Hague after he turned himself in at the U.S. Embassy in Kigali, Rwanda, in 2013, shortly after being added to the WCRP list.  In 2019, Ntaganda was convicted and sentenced to imprisonment for thirty years for crimes against humanity and war crimes, including murder, rape, sexual slavery, persecution, intentionally attacking civilians, and conscripting children into an armed group. 

Similarly, U.S. forces operating in Central Africa in 2015 facilitated the transfer to the ICC of Dominic Ongwen, one of the five LRA commanders subject to arrest warrants since 2005, who had surrendered himself to a Central African militia.  In February 2021, Ongwen was convicted of a similar litany of crimes against humanity and war crimes, including a number of gender-based crimes (forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy, and outrages upon personal dignity).  The United States welcomed the verdict, recalling its role in facilitating Ongwen’s transfer and the outstanding reward for information leading to the arrest, transfer, or conviction of the LRA defendants under the War Crimes Rewards Program, and reiterated that it “stands with all the victims of Ongwen and the LRA.”  All this was accomplished without a formal agreement on the surrender of indictees to the ICC, as it had with the ICTY and the ICTR  (although there has been a proposal for an ICC Arrest Procedures Protocol ).

Protection of Witnesses #

The United States has also assisted in providing protection to vulnerable witnesses who are participating in ICC investigations or prosecutions. Ambassador Rapp highlighted the willingness of the United States to provide such technical support on witness protection at the November 2012 meeting of the ICC Assembly of States Parties:

“On witness protection, we seek to focus international resources and attention on these challenges, both at the national and international level. As you may recall, last year, we co-hosted a side event at the ASP on this topic. We have offered assistance and training to states seeking to protect witnesses in their own cases. We have worked with the ICC to respond positively to its requests for assistance relating to witness protection issues. And various parts of the U.S. government, including the Departments of Justice and State, are currently seeking to strengthen and expand our capacity to assist courts and tribunals on the protection of witnesses and judicial personnel.” 

Interlocutors report that the Obama Administration provided protection to at least two witnesses involved in an ICC prosecution, at a time when it was difficult to secure assistance from any other state, and that the United States offered one of the best opportunities for these vulnerable and traumatized individuals to remake their lives in safety. However, restrictions under ASPA, which have been interpreted to prevent the ICC from conducting at least some kinds of interviews with witnesses who are on U.S. territory, complicated the ability of witnesses located in the United States to participate in ongoing investigations.  Nevertheless, various arrangements have been made under which witnesses were able to travel to third countries to meet with OTP staff and thus not encounter difficulties under the legislation.

Support for Victims #

The United States has provided extensive humanitarian assistance and other funding to support victim communities in a number of situation countries in which the ICC is investigating, including in the Central African Republic and to Rohingya victims who have fled to Bangladesh.  The United States has not in the past provided contributions to the Trust Fund for Victims established by the Assembly of States Parties under Article 79 of the Rome Statute; however—as discussed below in the Recommendation on Support Victims and Survivors of International Crimes—this may well be something the new Administration will want to explore.

Evidence/Information to Support Investigations #

During the second term of the Bush administration, the United States indicated that, at least with respect to the ICC investigation it supported in Darfur, the United States would provide help if requested by the ICC. Deputy Secretary of State Robert B. Zoellick stated in April 2006 that “if [the ICC] ask[s] for information and help, we try to provide that help,” and that “we will fully cooperate with it and pursue those actions as related to the genocide in Darfur.”  Subsequently, the United States publicly stated its openness to providing specific evidence to the ICC in support of other investigations or prosecutions of foreign nationals. For example, Ambassador Rapp noted that “the United States has worked with the ICC to identify practical ways to advance our mutual goals, on a case-by-case basis and consistent with U.S. policy and laws,”  although there is no public record of the specifics of how or whether the United States has done so. More recently, even with the ICC investigation into the situation in Afghanistan pending, a State Department spokesperson reportedly stated that the United States may cooperate with the ICC in “exceptional cases.”  As a practical matter, however, the ICC’s case law on the disclosure of potentially exculpatory evidence makes sharing information on a confidential basis more complicated than it was in the U.S. relationship with other tribunals. 

Public and Diplomatic Statements #

U.S. strategic messaging regarding the ICC has ranged from condemnations and threats against the Court, as part of efforts to undermine the institution, to statements of diplomatic support, at the level of both policy and with respect to specific activities. Public statements attacking the legitimacy of the ICC were common in the first term of the Bush Administration, although they diminished significantly thereafter until the Trump Administration took office.  Following the ICC Prosecutor’s announcement that she would request authorization to investigate crimes committed in Afghanistan that would encompass allegations against U.S. personnel, National Security Advisor Bolton sharply criticized the Court in a September 2018 speech, saying among other things:

“We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.” 

Meanwhile, in connection with the imposition of sanctions against the Prosecutor, Secretary of State Pompeo said “[w]e cannot, we will not stand by as our people are threatened by a kangaroo court,”  later referring to the ICC as “a thoroughly broken and corrupted institution.” 

At other times, however, the United States offered diplomatic support for the Court. Often this was public: indeed, the Ambassador-at-Large for War Crimes Issues formally noted at one point that the United States had “expressed our support for each of the situations in which ICC investigations and prosecutions are underway.”  In particular, the United States welcomed the work of the ICC in all the situation countries in which the Prosecutor was conducting investigations or prosecutions  and made specific statements regarding many of these including Kenya,  Darfur,  Libya,  the DRC,  and Mali.  Some of it was more ad hoc: for example, when Ambassador Rapp interceded with authorities in Libya on behalf of four ICC staff members detained in Zintan.  It has also articulated more generalized support for the overall mission of the Court,  including in a number of its National Security Strategies.  Most recently, in January 2021 the State Department reaffirmed that “[t]he United States shares the goals of the ICC in promoting accountability for the worst crimes known to humanity,” while maintaining its longstanding position that the Court’s jurisdiction should be limited to states that consent or are referred by the Security Council. 

For its part, Congress has adopted a number of resolutions commending international justice endeavors and the role of the ICC in specific situations, including the potential investigation by the ICC in South Sudan;  an Organization of American States (OAS) review of whether human rights abuses in Venezuela warrant investigation by the ICC;  and a potential UN referral of those responsible for crimes against humanity committed by the Burmese military against the Rohingya to the ICC.