Given the oft-repeated claim that President Trump is an isolationist, it is no surprise that his foreign policy is distinct from that of the Obama administration. However, the two are not without continuity. In fact, the Trump, Obama, Bush, and Clinton administrations have all been unwilling to ratify the Rome Statute and join the International Criminal Court (I.C.C.) unlike its 123 signatory states.
The Rome Statute was drafted by the U.N. General Assembly in 1998 at the end of a tumultuous decade full of genocide and civil wars. Special international tribunals had been established throughout the 1990s, including ones for the former Yugoslavia and Rwanda, in addition to one dealing with the Cambodian genocide of the late 1970s. However, international courts were not new to the ‘90s. Courts were set up in the wake of the Second World War to try German and Japanese war criminals. But whereas these ad hoc tribunals were established on a case by case basis, the Rome Statute sought to establish a permanent court capable of trying perpetrators of crimes against humanity.
The notion of crimes against humanity is a complex one. To say that certain atrocities are condemnable by the world at large is one thing, and the U.S. seems to agree with that, given its participation in the cases mentioned above. But to appoint a permanent body capable of adjudicating and penalizing those atrocities is another thing altogether. The combination of “international law” and national sovereignty is something of a paradox, and given the apparent tension between the two, the U.S. has firmly come down on the side of national sovereignty— kind of.
Obviously, the U.S. is not opposed to the idea of international law, as it has played a formative role in all of the previous ad hoc tribunals mentioned above. There is an established precedent that the U.S. is okay with the international community imposing agreed-upon principles of justice onto belligerent states. And yet it has not ratified the Rome Statute.
Although the Rome Statute was signed in 1998, the I.C.C. was not officially formed until 2002. In 2001, Dr. Henry Kissinger submitted a piece to Foreign Affairs magazine explaining why he found the establishment of a permanent international court problematic. Among the things he found objectionable was the fact that such a court would have universal jurisdiction. In other words, the I.C.C. would be capable of trying persons of any nationality for crimes committed anywhere, in a court somewhere else altogether. The issue of extradition is a sensitive one for the U.S., and the idea that an American could be forcibly extradited and tried on foreign soil has been deemed unacceptable by the past four administrations.
Kissinger also proposed that a U.N. committee could be set up (in lieu of a permanent I.C.C.), the purpose of which would be to investigate human rights violations on a case-by-case basis and determine whether or not international justice would be necessary. However, even in the case of the International Criminal Tribunal for the Former Yugoslavia, complaints were issued that a NATO airstrike had violated international law. Although the complaints never led to a trial, the idea that an international court even entertained the thought that they had jurisdiction over American nationals was worrisome to Kissinger.
This was also a point of concern for the Bush administration, which oversaw the passage of the American Servicemembers’ Protection Act of 2002. As one might guess from its title, the purpose of the act was to insulate American soldiers from indictment by an extranational court. The act prohibited cooperation with the I.C.C. and also sought to prohibit U.S. military assistance to I.C.C. member states (aside from NATO nations and other “major allies”).
This fear is not completely ungrounded. The I.C.C. does wield a lot of power over the states who have agreed to be party to it and surprisingly little over the states who haven’t. Omar al-Bashir, the president of Sudan, was indicted by the I.C.C. for crimes against humanity in 2008, but Sudan has never ratified the I.C.C. Consequently, al-Bashir is outside the reach of the court and has not been brought to court. There is definitely the potential for the I.C.C. to make politicized rulings and abuse its power. The I.C.C. could certainly take issue with U.S. actions, so the U.S. has little incentive to sign the Rome Statute.
On the other hand, it is disconcerting that a country like the United States would be unwilling to hold its soldiers to higher standards of accountability, but perhaps such caution is warranted given the I.C.C.’s potential to be used as a political weapon.
The Obama administration maintained its distance from the I.C.C., but cooperated with I.C.C. investigations and otherwise showed its support for its trial of war criminals.
The U.S.’s inconsistent approach to the I.C.C. is hard for either side of the political spectrum to defend morally. But, the back and forth nature of American politics creates a convenient situation where a left-leaning (i.e. Obama) administration can both support the I.C.C. and bomb Libya without fearing international legal action, and a right-leaning (i.e. Bush) administration can keep their distance from the court but benefit from the prosecution of Germain Katanga, a Congolese war criminal.
It is easy to be optimistic about the prospect of universal justice and to be cynical about the U.S.’s abstention from the Rome Statute, but it is also important to recognize that there may be problems with the I.C.C. If there are problems, they should be tackled head on so that international law can be carried out equitably, and if there aren’t problems, then the U.S. should be willing to stand with the 123 other signatories of the Rome Statute and support the court. Although President Trump has never personally mentioned the I.C.C., given his administration’s cutbacks to the State Department budget and the general pivot away from human rights issues, the U.S. is unlikely to engage with the I.C.C. over the next few years.
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