July 1 will mark the 10th anniversary of the opening of the International Criminal Court (ICC), the global tribunal established in The Hague to prosecute acts of genocide, war crimes, aggression and crimes against humanity.

Today, 121 countries are party to the Rome Statute, the treaty that created the court, and the court has indicted more than two dozen people, including Sudanese President Omar Al Bashir and the Lord’s Resistance Army leader Joseph Kony.

The US is not a party to the Rome treaty. Still, Congress should revise legislation it passed in 2002 because of fears that the court might prosecute US personnel. These outdated restrictions hinder the executive branch’s ability to support the court’s prosecutions of international war criminals.

The US attitude toward a dedicated war crimes tribunal has been ambivalent from the start. Congress passed several bipartisan resolutions in the 1990s supporting the creation of an international criminal court modelled on the Nuremberg tribunals but with safeguards to protect Americans.

Officials in Bill Clinton’s administration participated in negotiations for the 1998 Rome Statute but voted against it at the end of the diplomatic conference in Rome because of concerns at the Defence Department the ICC would conduct politicised prosecutions of US military personnel. Clinton authorised the signature but said the treaty had “significant flaws” and “I will not and do not recommend that my successor submit the treaty to the Senate... until our fundamental concerns are satisfied”.

Underming the court

In May 2002, the Bush administration formally notified the United Nations that the United States would not become party to the statute. This action was denounced by human rights groups and many countries as Washington ‘unsigning’ the treaty and seeking to undermine the fledgling court. That July, alarmed the ICC might attempt to prosecute US officials even though the US was not a party to the treaty, Congress passed the American Service-Members’ Protection Act. This punitive law, drafted by House Republicans but supported by many Democrats, including then-senator Hillary Clinton, prohibits US assistance to the ICC and to countries that join. One jingoistic provision even authorises the president to use force to free Americans imprisoned by the court; the legislation soon became known in Europe as the ‘Hague Invasion Act’.

In its second term, the Bush administration agreed to the UN Security Council resolution referring the Darfur genocide for investigation by the court and later blocked efforts by China to defer the Darfur inquiry. Bush waived restrictions on counter-terrorism assistance to many ICC members after secretary of state Condoleezza Rice publicly remarked in 2006 they were like “shooting ourselves in the foot”.

President Barack Obama has approached the ICC cautiously. Administration officials have adopted a warmer tone toward the court and attend meetings of ICC members as observers. But they continue to voice concerns about its jurisdiction over US nationals and have not reversed the Bush administration’s ‘unsigning’.

In 10 years of high-cost operations, the ICC has had mixed success. Currently, the court does not have jurisdiction over attacks against civilians by the Syrian regime as Syria is not a party to the Rome Statute, and China and Russia have blocked UN Security Council efforts to refer the Syrian situation to the court.

The court’s tenth anniversary tomorrow is an appropriate time for Congress to review US policy towards the court and whether the restrictions (including the authorisation to invade The Hague) in the American Service-Members’ Protection Act do more harm than good.

— Washington Post

Bellinger is a partner with Arnold & Porter and an adjunct senior fellow in international and national security law at the Council on Foreign Relations. He was legal adviser for the US State Department from 2005 to 2009 and legal adviser for the National Security Council from 2001 to 2005.