U.S. Interests Impacted by the ICC

US military personnel on relief or rebuilding mission by U.S. Department of Defense

The ICC implicates a range of U.S. foreign policy interests—both regional and thematic. For example, the United States has manifested—in word and deed—longstanding, deep, and bipartisan commitments to atrocity prevention, accountability for international crimes, and support for the rule of law. These priorities suggest the merits of normalizing the U.S. relationship with the Court and thereby enhancing the ability of the United States to provide assistance to ongoing investigations in situation countries where the ICC presents the most promising, or in some cases only, option for providing some measure of accountability. Indeed, there are circumstances in which the Security Council has referred a matter for the Court, or where the Court is working in partnership with the territorial/nationality state, that do not trigger the traditional U.S. concerns about the ICC, and where ICC involvement would indeed further U.S. interests.

At the same time, recent activities by the Court in the situations in Afghanistan and Palestine have shone a spotlight on the potential for the Court to conflict with other U.S. interests. The opening of an investigation into the situation in Afghanistan has cast in sharper relief longstanding U.S. concerns about the exercise of international or foreign jurisdiction over its servicemembers or officials. And the potential investigation of Israeli officials in connection with the situation in Palestine raises concerns over both the ICC exercising jurisdiction over the nationals of non-party states (in this case a close U.S. ally) and the potential for the ICC to impede the peaceful resolution of longstanding conflicts (including by judicializing the resolution of matters such as the fate of settlements in the West Bank, which the U.S. has long insisted must be negotiated between the parties).

There is a risk that these areas of more acute concern could overshadow more diffuse U.S. commitments to justice and accountability. Specifically, the history of U.S. leadership on international justice grew out of a number of deeply held values that are aligned with the underlying mission of the ICC and many of its activities, as discussed below. Although the ICC occupies an important place in this system, it is not the only forum in which efforts toward justice and accountability are underway. Any U.S. approach should seek the most effective options to address the commission of international crimes, bring justice to victims, and promote the principle that those responsible for atrocities should be held to account. Recommending a course of action that will best advance these affirmative and defensive equities of the United States is the major challenge faced by this Task Force. To help map a path forward, this Section identifies the universe of interests implicated by the U.S. relationship with the Court—both those where the ICC’s efforts may be in tension with U.S. interests and those where it may be well-aligned.

  1. Jurisdiction over U.S. Personnel
  2. Peace Negotiations and Conflict Resolution
  3. The Prevention of Atrocities
  4. Accountability for International Crimes
  5. Compliance with International Humanitarian Law
  6. Interpretation and Development of International Law (including IHL)
  7. Promoting the Rule of Law
  8. Effective U.S. Diplomacy and 'Soft Power'
  9. Conclusion