D. Support for Particular ICC Cases

Military conflict. Crimea. Ukraine. by Sasha Maksymenko

The final question that this Report will address is the extent to which the United States can and should support the ICC’s work in particular situation countries in light of the concerns generated by the Afghanistan and Palestine situations. In the past, the United States has provided a range of valuable (and often crucial) support to other international criminal tribunals—including diplomatic support for the institution and its activities, personnel and funding, and tangible assistance with specific investigations or cases. Indeed, the U.S. approach in the past (in particular the Obama Administration’s case-by-case approach) resulted in the provision of many comparable forms of support to the ICC at various points. This included diplomatic support (e.g., in the UN Security Council); support for tracking, capture, surrender, and transfer of fugitives (who may also be destabilizing influences in their region) to The Hague; providing input into security assessments for investigative missions; and providing expertise in the analysis of evidence that the ICC has already gathered (e.g., the provenance of particular munitions) (See Support for ICC Investigations.).

For its part, the new Administration has already indicated that, while the United States will “vigorously protect current and former United States personnel” from attempts to exercise ICC jurisdiction,  there may be “exceptional cases where we consider cooperating with the court as we sometimes have in the past,” and that the Administration “will weigh the interests at stake on a case-by-case basis when cooperation may be consistent with U.S. law and policy.”  In practice, words like “case-by-case” and “exceptional circumstances” tend to be placeholders, the more precise content of which only becoming apparent only over time. Despite the conflicting interests in potential investigations in Afghanistan and Palestine, there remain a number of ICC investigations and prosecutions that are directly aligned with concrete U.S. interests and policy positions (e.g., in Myanmar, Georgia, Ukraine, and Darfur). Likewise, there are ICC cases underway in situations in which the United States has already made significant U.S. investments in accountability and stability (e.g., in Northern Uganda, DRC, and CAR).

The Task Force thus believes that the new Administration should remain open to supporting the ICC in appropriate cases, even as it recognizes that the political “space” for doing so will depend on wider circumstances, including most importantly the direction of ICC investigations or prosecutions in Afghanistan and Palestine. The Task Force recognizes the simple political truth that ongoing activity on these two situations has already created great resistance to the provision of such support. It is also true, however, that the strength of that resistance will fluctuate as circumstances change over time, with resistance increasing if those two investigations appear to move forward in ways that implicate U.S. (or Israeli) personnel, but relenting if the investigations do not move forward in a tangible way. At the same time, the likelihood of that resistance—however strong it might be—being overcome may turn on events in particular atrocity situations, and conclusions about whether U.S. support for the ICC action will or will not advance the range of important U.S. interests in international justice.

Indeed, this is the lesson of Darfur—even the Bush Administration’s acute concerns about the ICC eventually gave way to the overwhelming conviction that it needed to stand up against a particular set of unfolding atrocities. Can the conclusion really be that President Bush should have blocked the Darfur referral to the Court in 2005? Or that the Obama Administration should have refused to work with the ICC when Bosco Ntaganda walked into the U.S. Embassy in Kigali, Rwanda, in 2013. Or that U.S. military forces should not have facilitated the surrender of Lord’s Resistance Army Commander Dominic Ongwen in 2015? It is inevitable that situations like these will arise again in which the imperatives of pursuing accountability for massive crimes will outweigh concerns with the ICC as an institution and that dogmatic opposition to the ICC in the face of mass atrocities may impose unacceptable costs on other U.S. interests.

The Task Force also recommends that the United States consider with fresh eyes how it will address questions of funding in the event of a future Security Council referral that it supports.  The language included in the two previous Security Council referrals, and in the vetoed referral resolution on Syria, all contained language “recognizing” that none of the expenses would be borne by the United Nations. This stance is a departure from what many drafters of the Rome Statute anticipated, as reflected in the fact that Article 115 of the Statute contemplates the possibility of funding from the United Nations in relation to costs incurred due to Security Council referrals, subject to the approval of the General Assembly.  It also is arguably in tension with the statement of the U.S. delegation at Rome that “it would be appropriate” to cover “part of the costs of referrals,”  but is in line with the general U.S. approach to opposing the use of the assessed UN budget to fund the expenses of independent organizations and avoided legal concerns about whether the statutory restrictions on U.S. funding for the ICC would prohibit the United States from contributing its portion of the assessed UN budget that would be used for this purpose.  All that said, there has been increasing opposition to the notion of further Security Council referrals for which the United Nations would not provide funding, with some states arguing that it is unfair to leave the Rome Statute parties bearing the costs for work that the Security Council wants the Court to carry out. Thus, assuming that a future case may arise in which the United States wants to support a Security Council referral, there will very likely be significant pressure on the United States to reconsider its opposition to such funding, and the United States should be prepared to consider creative ways to meet these concerns.

Finally, in connection with the general recommendation that the new Administration remain open to providing support for particular cases, it would be advisable for the new Administration to give thought in advance to categories of situations in which it would make sense to be alert to the possibility of providing assistance. Categories for which the case for U.S. support might be particularly strong could include situations referred to the Court by the Security Council (like Darfur itself) or that might be appropriate for a Council referral, situations in which a state has referred itself to the ICC (like the Central African Republic), situations involving particularly egregious or notorious perpetrators (like Myanmar or the LRA cases in northern Uganda), matters where the Obama administration was previously involved or invested in the pursuit of justice, and situations in which the alignment with U.S. political interests is particularly strong (as seen in the referral of the situation in Venezuela by Canada and five other Rio Treaty allies).