There are a number of steps that the Task Force believes that the United States should undertake no matter the state of the relationship between the United States and the ICC. While they may be supportive of the Court’s goals, these measures advance U.S. interests that exist independent of the ICC and should be pursued as a matter of course.
Enhance General Support for International Justice Efforts
The United States has a longstanding commitment to the project of global criminal justice. This promotion of accountability for international crimes has continued through periods in which the United States was more engaged with the ICC as well as periods in which it was more skeptical or hostile. Even during the last administration when relations with the Court reached a new low, Congress passed a number of important pieces of legislation aimed at advancing international justice in a number of ICC situation countries, generating more information about the risk of mass violence around the globe, and sharpening the United States' atrocities prevention and response tools. Likewise, U.S. officials pressed for cooperation with the Kosovo Specialist Chambers, the only ad hoc justice institution still in full operation. Interlocutors from across the political spectrum stressed that the United States should continue to manifest in word and deed its principled determination that those responsible for atrocities should be held to account. Indeed, a number of our interlocutors from foreign governments led by reiterating that they want the United States to be an ally in the global fight against impunity.
The interests of the United States in accountability and the rule of law extend beyond the ICC. The United States has devoted considerable energy and resources to promoting the principle of accountability, and it should continue to do so. While the ICC looms large in many discussions of international accountability, even the Court’s strongest supporters recognize the importance of delivering justice at or closer to the local level. The ICC can only ever be one small part of a larger global accountability effort, which includes hybrid institutions, national courts, and any number of locally tailored efforts. The Rome Statute itself its predicated on the primary “duty of every State to exercise its criminal jurisdiction over those responsible for international crimes” and that accountability for international crimes “must be ensured by taking measures at the national level and by enhancing international cooperation.” The United States should not let its views on that one component (whatever they may be at any point in time) overshadow or compromise its commitment to the whole.
Indeed, the United States has a commendable track record of supporting local, mobile, and hybrid courts in the DRC and CAR as well as international investigative mechanisms, such as those for Iraq, Syria, Myanmar, and Guatemala, and funding civil society groups in a wide range of countries to enable vital work documenting atrocity crimes and advocating for accountability. The Task Force recommends that the United States continue its longstanding support for such efforts to promote accountability for international crimes, including local investigations, documentation, and victim rehabilitation by domestic, hybrid, and other international institutions. Such support should proceed regardless of the state of U.S.-ICC relations and regardless of whether the ICC is also operating in a particular situation country.
Build Accountability into the President’s National Security Strategy
Attend and Participate in the ASP and Other Relevant Meetings and Conferences
The Task Force recommends that the United States participate fully in the annual meetings of the ICC Assembly of States Parties and other ICC-related international meetings and conferences. The meetings present a clear opportunity to represent the views of the United States and to understand the views being expressed by other states, and by Court actors, so as to best position itself to formulate and articulate policies and positions in a manner that will advance the interests of the United States. As exemplified by the outcome of U.S. engagement on the crime of aggression, the Task Force believes it makes little sense for the United States to deny itself the opportunity to understand the views of others and to explain its positions in ways most likely to be influential simply because it has concerns—even serious ones—about the Court’s activities.
At these gatherings, the United States should be represented by an official at an appropriately senior level (e.g., the Ambassador-at-Large for Global Criminal Justice and/or the State Department Legal Adviser) to be able to share U.S. views, speak credibly on the importance the United States places on accountability, highlight matters of common interest, articulate U.S. priorities regarding global criminal justice, and voice any concerns. Such activities are not inherently “supportive” of the Court, but they position the United States to better advance its views and interests and avoid ceding a forum in which other states may assert or pursue their interests unopposed. Time and again, we have seen that there are opportunity costs to not attending those gatherings. As Secretary of State Blinken has said, “if [the United States is] not in there and present…helping to write the rules and shape [international norms],…then either someone else is going to do it in our place, or maybe just as bad, no one does it and you have chaos.”
Preserve Political Capital When It Comes to Diplomatic References to the ICC
Actively Follow the Court’s Substantive Jurisprudence
Pursue Possibility of Sanctions Against Persons Sought by the ICC
Implement a No Contacts or Restricted Contacts Policy
Task U.S. Diplomatic Missions to Report on Relevant ICC Developments and Views of Host States About the Court
The ICC is likely to be a politically significant actor in any country where it operates, and the U.S. Government thus has an interest in understanding its activities. The Task Force accordingly recommends that the State Department consider tasking relevant U.S. diplomatic missions to report on developments related to ICC activities. This could include reporting from missions in countries that are under investigation or preliminary examination (or whose nationals are implicated in such proceedings) on the reaction of host state governments and members of the public and on related accountability and transitional justice initiatives underway in the national judicial systems, including the rehabilitation of survivors. It could also include conveying the views of U.S. partners and allies on the ICC’s activities and on the ongoing process of review and reform.
Similarly, the Task Force recommends that the United States should be actively gathering information from countries that are undergoing, or are at risk of, mass violence and may fall within the jurisdiction of the Court. As manifested by legislation mandating greater information sharing with Congress, such information will be critical as the new Administration develops and articulates its policy toward the ICC as well as toward atrocities prevention and accountability more generally.
Provide Reporting to Congress on Activities Undertaken by ICC in Other Situations and Enhance Opportunities for Engagement Between the U.S. Government and the ICC
The same is true for other reporting and briefings that the State Department provides regarding developments in countries in which the ICC is playing or considering playing an active role. The State Department should be straightforward in its assessments of these developments, and relevant congressional committees should encourage the Department to provide briefings on the role being played by the ICC and its effect on the broader situation in that country. The United States can maintain any concerns about particular Court actions while still recognizing that the ICC plays a valuable role in many of the places in which it operates, and indeed is often welcomed by the governments of, and by survivors in, states with which the United States is partnering.
In this connection, the U.S. Government should also fully implement the Elie Wiesel Genocide and Atrocities Prevention Act and related legislation aimed at atrocities prevention and response. This innovative legislation was signed into law in 2019 to reflect Congress' recognition of the critical importance of U.S. Government efforts at atrocity prevention. Among other things, the legislation requires annual reports from the Executive branch on efforts to prevent and respond to atrocities, a description of countries considered to be at risk, and a consideration of analyses, reporting, and policy recommendations produced by civil society, academics, and other non-governmental organizations and institutions. Past reports under this legislation have noted the importance of efforts to hold accountable those responsible for atrocities in a number of countries in which the ICC has been pursuing investigations and prosecutions, but have not mentioned the ICC.
The Task Force believes it would be beneficial for the State Department, in preparing future reports, to take a straightforward approach to mentioning the role of the ICC in its reports under the legislation and other communications with Congress. This could both help provide a fuller understanding to the public and to the congressional committees for which the reports are intended of the landscape of efforts to prevent and punish international crimes, and could also help bring greater focus to the question of the extent to which ICC involvement in various countries aligns with United States policy objectives in promoting accountability. All this could be undertaken irrespective of the extent to which the United States supports or opposes the ICC’s work as a general matter.
More generally, the Administration and relevant congressional committees should consider encouraging greater contacts between Executive branch agencies and congressional members and staff, on the one hand, and ICC representatives (from across the Court’s organs) on the other. Such contacts—at the principal and working levels—could play a useful role in demystifying the ICC’s work and build greater appreciation for the contributions that it is making to advancing the cause of justice in the great majority of situations in which the Court is operating. In a similar way, the Administration and congressional committees could consider the desirability of inviting relevant congressional staff to attend the annual meeting of the Assembly of States Parties (as was done for the 2010 ICC Review Conference in Kampala).
Accept Information and Evidence from ICC
Maintain the Office of Global Criminal Justice and the Position of Ambassador-at-Large
The Task Force recommends that the United States continue to support and empower the State Department’s Office of Global Criminal Justice, including by the expeditious appointment and confirmation of a new Ambassador-at-Large for Global Criminal Justice. In 2017, there was speculation that the Trump Administration would shutter the office. This prospect received significant negative press and expressions of concern from counterparts responsible for atrocity prevention and accountability issues in the foreign ministries of numerous friendly states; it also sparked a critical countermovement within civil society and in Congress. In the face of such considerable blowback, then-Secretary of State Rex Tillerson announced his decision to maintain the Office.
The Office should retain its autonomy within the Undersecretariat for Civilian Security, Democracy, and Human Rights (the “J” Undersecretariat) given that its mandate and perspective are unique and highly specialized. The U.S. Government needs an empowered Ambassador-at-Large, with her or his own voice to speak forcefully and effectively on behalf of the United States on accountability issues and, internally, to brief and communicate with the Secretary as a peer to other Assistant Secretaries and equivalents. The fact that the United States is the only country with a dedicated ambassadorial-level position enables the United States to address these issues in a manner that ensures the attention of other governments, victims and survivors, and the general public.
The Office should also ensure its personnel have the requisite technical expertise and also a regularized employment status to ensure continuity and efficacy within the interagency and multilateral fora. Maintaining adequate personnel is particularly important given that Congress has provided increased programming funds to advance the mandate of the Office. The Office of Global Criminal Justice will remain an important liaison point for such programming funds and U.S. policy in atrocity prevention and response more generally.
Assure Steady and Predictable Funding for Ad Hoc and Hybrid Tribunals and Other Local and International Justice Efforts
The United States has regularly funded international justice efforts, as discussed above (see Background and U.S. Interests; Accountability), and should continue to do so. Past efforts include the Extraordinary African Chambers, which prosecuted Hissène Habré of Chad for the commission of grave international crimes while he was President of Chad. The United States provided direct funding to the Special Court for Sierra Leone and Extraordinary Chambers in the Courts of Cambodia and supported the disbursement of UN subvention grants for both institutions when voluntary contributions ran short. The United States has also funded local efforts, including mobile courts and other transitional justice mechanisms. The United States should continue to capacitate such efforts, perhaps out of a standing justice fund that could be accessed as needed. In 2020, for example, Congress directed $10 million to the State Department’s Office of Global Criminal Justice (GCJ) for programming, a positive development given difficulties the United States has faced in the past in ensuring a consistent flow of funding for otherwise cost-effective alternatives to big, expensive international courts. The Task Force recommends that Congress continue and build upon this line of funding.
In addition, the new Administration should consider the impact of recent appropriations legislation devoted to funding international justice efforts. If events unfold in a manner that would make use of funds in connection with the work of the ICC an attractive option, the new Administration may want to review this legislation or any further legislation that may be needed.
Support Domestic Proceedings Involving International Crimes
Continue to Issue Rewards Under the War Crimes Rewards Program
The United States should also maintain and expand its War Crimes Rewards Program. The program has time and again served as a key U.S. contribution to ensuring that those credibly accused of the most serious international crimes face justice. It is a high-profile and tangible signal of the United States commitment to accountability, and its continuation helps underscore that support within the United States for the underlying principle of accountability is deeply bipartisan. Thus, when the program was extended in 2013 to enable rewards to be offered for information leading to the arrest, transfer, or conviction of individuals to any international criminal tribunal, including the ICC, members of the House of Representatives described this as “a critical tool,” “a responsible, bipartisan bill that will significantly enhance our ability to fight transnational organized crime and grave human rights abuses,” and “a technique that works.” Then-Secretary of State John Kerry attested to the practical impact of the Program:
“Can it work? You bet it can. Two weeks ago, one of the most notorious and brutal rebels in the DRC voluntarily surrendered to our Embassy in Rwanda shortly after being named to the War Crimes Reward Programs list. Now Bosco Ntaganda is charged by the International Criminal Court with war crimes and crimes against humanity. I would have been announcing a reward for him today, but instead, he is sitting in a cell at The Hague.”
Especially in light of the bipartisan support for this initiative, the United States should continue to fund and implement this program. In this connection, the United States should review all suspects for whom the ICC has issued arrest warrants and who remain at large to determine whether to offer rewards for information leading to their arrest, transfer, or conviction. This is particularly appropriate in cases in which the United States does not object to the basis on which the ICC is exercising its jurisdiction, such as those involving nationals of a state party or whose arrest is sought in connection with a situation referred by the UN Security Council.
Support Victims and Survivors of International Crimes
Support for the victims and survivors of atrocity crimes, like accountability for perpetrators, enjoys broad bipartisan support in the United States (see Other Atrocities Legislation, Support for ICC Investigations, and U.S. Interests; Atrocity Prevention). The United States should remain committed to this work, including by looking for opportunities to provide in-country assistance and rehabilitation for victims of atrocity crimes and supporting organizations and legal representatives that assist victims in seeking justice.
Giving voice to survivors featured prominently in the negotiations of the Rome Statute, and is reflected in a range of provisions, including its Victims and Witnesses Unit, provisions providing for the participation of victims in proceedings, the power of the Court to order reparations against convicted persons, and the contemplation of a Trust Fund for Victims (TFV) “for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims.”
The United States' ability to support numerous ICC initiatives is limited by the FRAA, which prevents the United States from providing funds directly to the ICC. However, under the Rome Statute, the Trust Fund for Victims is an entity that is distinct from the organs of the Court. Unlike the ICC, it was established by a decision of the Assembly of States Parties, rather than directly by the Rome Statute. Further, the TFV is governed by an independent five-member Board of Directors and not by the Court personnel. The Trust Fund has two distinct functions: managing reparations orders issued by the judges and providing separate assistance programs in victimized communities in ICC situation countries. The reparations orders are linked to, and dependent on, an ICC guilty verdict and reparations award, but the assistance programs are independent of any Court (and, in particular, any prosecutorial) activity. In other words, while any assistance provided must go to victims of crimes that are within the jurisdiction of the Court, the TFV’s assistance programs are not contingent upon any one investigation or prosecution. To the contrary, the assistance mandate was designed to be both more responsive to survivors' needs and more expansive than the prosecutorial and judicial processes.
The focus of the TFV’s assistance programs is providing physical and psychological rehabilitation, and material support, to individuals and communities that have suffered from atrocity crimes. This assistance dimension is entirely consistent with U.S. interests and its past practice in supporting the rights of victims and survivors. A number of the TFV’s implementing partners are (or have been) U.S. entities, including the Center for Victims of Torture, Health Right International, and World Relief. And the United States does not object to the basis for the Court’s jurisdiction in any of the countries in which the Trust Fund is operating. To the contrary, the situations in which the TFV has assistance programs underway are amongst those where the United States has been heavily engaged in supporting accountability, the rule of law, and support for victims: the DRC, Uganda, and the Central African Republic. For example, in Uganda, the TFV priorities include psychological and material support for ex-child soldiers, abducted persons, and victims of sexual and gender-based violence. In addition, it is helping to provide prosthetic limbs for individuals who suffered amputations in LRA attacks. In the CAR, the TFV’s current pilot project is focused on the long-term impact of sexual and gender-based crimes, including providing medical care for those with HIV/AIDS and education for the children of victims and survivors.
Making a contribution to the Trust Fund for Victims, as called for by the G-8 in 2013, provides the United States with an opportunity to send a tangible signal of its dedication to the underlying goals of the ICC and to confirm that any concerns that it has with the Court do not detract from its whole-hearted commitment to victim and survivor communities. The United States can make such a donation without supporting, providing funds to, or even engaging directly with the Court itself. Contributions to the Trust Fund can also be earmarked for specific projects, issues, or communities, thus ensuring that they are used in situations that the United States prioritizes. As such, the United States could provide funding for assistance that is closely aligned with other U.S. projects, for example support to survivors of sexual and gender-based violence in the eastern DRC. Or it could encourage the Trust Fund to provide resources to expand its assistance programs into other areas where the United States sees a particular need, for example in Darfur to take advantage of, and advance, the political developments in Sudan.
As such, the Task Force recommends that the United States review the operative legal authorities to determine whether it can lawfully provide contributions to the Trust Fund for Victims, and actively consider doing so to the extent possible. In the event that direct funding is foreclosed for whatever reason, the United States should continue to empower and capacitate the TFV’s implementing partners that are focused on the psycho-social and economic rehabilitation of communities wracked by violence.
Contribute to Witness Protection Measures
Enact Crimes Against Humanity and Other Atrocity Crimes Legislation
The Executive Branch and the Congress should strongly consider adopting legislation that would permit the prosecution of persons within the jurisdictional reach of the United States who stand accused of committing crimes against humanity. The United States has legislation providing a basis for criminal prosecution of war crimes, the use of child soldiers, torture, a range of terrorism crimes, trafficking, slavery and forced labor, piracy, and genocide, but not crimes against humanity. Indeed, at the time of Under Secretary Grossman’s May 2002 speech comprehensively setting out the Bush Administration’s objections to the ICC, the Administration stated emphatically that it would “take steps to ensure that gaps in United States' law do not allow persons wanted or indicted for genocide, war crimes, or crimes against humanity to seek safe haven on our soil in hopes of evading justice” (see Text Box - Excerpt from Speech by Under Secretary of State Marc Grossman (May 6, 2002)). Enactment of such legislation would help vindicate this promise, serve as a powerful reaffirmation of the United States' support for accountability, strengthen the ability of the United States to assert the primacy of its domestic jurisdiction over any attempts by the ICC or foreign courts to investigate or prosecute cases that may arise, and guard against the United States being used as a safe haven by persons alleged to have committed crimes against humanity. Along the lines of the recently adopted European Union human rights sanctions regime, Congress should also consider explicitly including in legislation responsibility for all atrocity crimes, regardless of the status of the victims, among the grounds on which the President can impose sanctions, possibly in connection with the anticipated reauthorization of the Global Magnitsky Human Rights Accountability Act.
In addition, the United States should consider revising its war crimes statutes to better reflect the grave breaches regime set forth in the 1949 Geneva Conventions, which require states to exercise criminal jurisdiction regardless of the nationality of the perpetrator or victim. The existing legislation only allows for the assertion of criminal jurisdiction when the victim or perpetrator is a U.S. national, thus raising questions about whether the United States is compliant with its obligations under the Conventions. Amending the War Crimes Act would also bring it into line with other U.S. international crimes legislation, which allows for the exercise of jurisdiction when the perpetrator is found or present in the United States. Finally, Congress should ensure that appropriate legislation is in place so that U.S. courts can adjudicate the doctrine of superior responsibility, which at the moment is only applicable before U.S. military commissions.
Together, these gaps hinder the reach of the United States' prosecutorial authorities and have led to instances of impunity and incomplete accountability. For example, some perpetrators have faced prosecution not for their substantive crimes but for violations of immigration law—a distant second-best option when crimes against humanity are at issue. Given the strong and bipartisan record of recent congressional action supporting accountability for international crimes and the prevention of atrocities (see Other Atrocities Legislation), these proposed enactments may well find fertile ground on the Hill. The Task Force therefore recommends that both the Executive branch and the Congress actively pursue appropriate legislation to achieve these objectives.
In addition to these domestic enactments, and notwithstanding the difficulties experienced by the United States in ratifying multilateral treaties, the United States should give serious consideration to and, ideally, promote the adoption of a treaty on the prevention and punishment of crimes against humanity, along the lines of the draft articles produced by the International Law Commission and currently under consideration before the General Assembly. In addition, the United States should likewise contribute to diplomatic processes to produce a proposed treaty on Mutual Legal Assistance for all atrocity crimes under consideration by some states. Both of these treaty efforts can play an important role in plugging significant gaps in the global treaty framework around atrocities crimes. As such, the United States should support these efforts even if domestic ratification may not occur or may take significant time.