The United States' Overall Approach to These Issues

US delegation by JD Lasica

To close out this Section of the Report, we offer the following overarching advice for the United States as it charts its course: stay focused on the multiplicity of interests at stake; capitalize upon this moment in time when states parties are focused on the reform of the Court; maintain a sense of perspective on the risks presented by the two situations of concern; and be open to different visions of success.

a. Recognizing the Multiplicity of Interests that the United States Has at Stake #

Each of the issues described in this Section of the Report is important but also complex. On the one hand, a narrower “aperture” that results in the ICC pursuing a smaller range of situations and cases would in principle lessen the prospects for the ICC to end up confronting the United States in future circumstances. At the same time, because the United States retains a strong interest in accountability, deterrence, and atrocity prevention, diminishing the role that the ICC can play in support of these goals could come into tension with efforts to promote accountability in future situations of mass violence. It is worth noting that, at least in the Bush and Obama administrations, the United States in key cases looked to the ICC Prosecutor for action and public statements to highlight the possibility of punishment by the ICC as a way to deter would-be perpetrators from committing further atrocities. The genocide in Darfur during the Bush Administration and widespread atrocities in the Central African Republic during the Obama Administration are two cases that come quickly to mind. Thus, while there undeniably are reasons that, as the Independent Experts recommend, the Court’s aperture should be narrowed, narrowing can come at great cost. Careful thought—and a hard-nosed assessment of both the pros and the cons—needs to be given to each of the possible ways in which such narrowing might occur. All that said, the broader point is clear: an atmosphere exists in which these issues can be put forward in a constructive manner and in which partner states can be expected to engage in a collegial and respectful manner.

b. Capturing the Current Opening to Raise Issues of Concern #

It is important to bear in mind that the audience for the kind of mature engagement that the Task Force recommends with the ongoing review and reform process is not solely the Court, but also the international community more generally and particularly U.S. friends and allies. The IER process has not, by its terms, involved the United States, but the United States needs to present itself as motivated to engage, wanting to provide leadership and good ideas, and having a stake in the Court’s foundational objectives—around justice, deterrence, and norm enunciation—being achieved. Indeed, separate from whether the United States is successful in persuading friendly countries of its genuineness in this regard, there is a profound benefit simply in demonstrating that it is putting forth coherent arguments—that in itself is a show of respect to the sensibilities of U.S. friends and allies and the international order and a break from the past four years. The Biden Administration should approach its policy toward the Court with the same equanimity and respect that it approaches multilateral institutions generally: it will seek to defend and advance U.S. interests, but will do so in ways that are principled, that advance the rule of law, and that reflect core U.S. values.

c. Keeping Perspective #

In all its interactions with the Court, and in the way it considers issues internally, the United States should eschew dogma and avoid making the perfect the enemy of the good. Perhaps most importantly, the United States should not exaggerate the threat that the Afghanistan investigation will actually lead to any trials of U.S. personnel. This is especially so in relation to allegations against Department of Defense personnel (for the reasons articulated above). In particular, the risk that a rank-and-file servicemember might be arrested on a European beach, invoked in some attacks on the Court,  is de minimis. Nothing the ICC is doing in Afghanistan could plausibly lead to this result, and nothing the ICC has done in other cases suggests that this is a realistic scenario. Indeed, Former U.S. Legal Adviser John Bellinger has gone further and argued that in practical terms that “there is no possibility that any U.S. official will ever be arrested and prosecuted in the Hague…[T]he likelihood of prosecutions is zero…” 

d. Visions of “Success” #

In practical terms, the United States needs to be open to different visions of success. Insofar as Afghanistan is concerned, and as stated above, the view of the Task Force is that the actual risk of any American being tried is, in fact, remote. The likelihood of eventually achieving successful prosecutions will no doubt be seen by the new Prosecutor as an important factor in the process of selecting the cases to which he should channel his limited investigative and prosecutorial resources. But even if the new Prosecutor does not intend to focus on allegations against U.S. personnel it may nevertheless be hard for him to publicly offer an assurance to that effect rather than simply not pursuing such an investigation in a tangible way. Inaction can thus be a form of success, at least if such inaction becomes stable over time. The new Administration can increase the likelihood of success in this regard by taking steps that restore U.S. credibility more generally—e.g., by engaging on issues in a constructive manner, communicating respectfully with Court personnel, defending itself “on the merits” and within the rule of law, speaking forthrightly about the Administration’s unrelenting opposition to torture, committing to be respectful of the discipline meted out by the military justice system in the aftermath of any misconduct, and disavowing the disdainful rhetoric that accompanied President Trump’s pardons for Eddie Gallagher and others. Indeed, these are policies that the United States should be adopting anyway, and are consistent with President Biden’s commitment that the United States will lead “by the power of our example.”  All this will help create space for dialogue with Court actors and for U.S. friends and allies to give serious weight to U.S. views on these issues, thus adding to their credibility internationally.

To be sure, the perception—even if incorrect—that the ICC might, with a sealed arrest warrant, ambush a former U.S. official while transiting through or visiting a Rome Statute country has tremendous potential for destabilizing any prospects for a constructive relationship. To address this issue, the United States, as part of its engagement with the new Prosecutor, should consider coming to an understanding with the Prosecutor pursuant to which the Prosecutor would commit not to seek sealed arrest warrants against U.S. persons, at least without some subsequent notification that the Prosecutor has moved to a later stage and making clear that this commitment no longer applies.