The Obama administration will not be able to shift the anti-American bent of the International Criminal Court by further engaging with it, and should instead focus its efforts on convincing ICC member states to oppose measures that run counter to U.S. interests, a panel of experts said at a Heritage Foundation panel talk Friday.
Though the United States is not an ICC member, President Obama has said he will send a panel of officials to the ICC Review Conference in Kampala, Uganda, later this month. Members are set to discuss amendments to the court’s founding document, the Rome Statute, that could have dire consequences for the United States, panel speakers said.
Changes up for consideration include the expansion of list of weapons in what constitutes “war crimes” and the definition of the term “crime of aggression.”
“Quite simply, a broad definition of the “crime of aggression” … would pose a direct thereat to the United States’ [ability] to defend” itself and its allies, panelist Brett D. Schaefer of the Heritage Institute said. “The U.S. should be wary about expanding the list of weapons as a precedent,” Schaefer said, adding that some of the ICC’s proposed amendments infringe on United Nations Security Council authority and violate the U.N. charter and Obama’s panel should say as much at the meeting.
Though the United States is prohibited because of its non-membership and retraction of its initial ratification of the court’s signing document from providing any aid - financial, military or otherwise - to the ICC, Obama has said publicly he believes the United States should join the court. But this could prove dangerous because the interests of the ICC and the United States are in some instances diametrically opposed, panel speakers said.
“In our system the president is both the chief law enforcement officer of the country [and] he is also the commander in chief,” panelist Lee A. Casey, a partner at law firm Baker Hostetler and a frequent commentator on ICC-related issues, said. “Under the law of the International Criminal Court [the president] is a potential defendant in almost every case … and so we have an inherent conflict of interest.”
Casey added that further U.S. involvement with the ICC would not make current White House officials any less vulnerable to prosecution for alleged “war crimes” in Afghanistan or Iraq. Since pictures of supposed torture of terror suspects at the hands of U.S. troops at Iraqi prison Abu Ghraib surfaced several years ago the U.N. Security Council no longer exempts U.S. citizens from ICC prosecution.
“If the ICC expands its jurisdiction [through Rome Treaty amendments] no Obama official, no senior Obama official, will be able to travel [abroad] for the rest of his life without thinking” he will be arrested for war crimes, panelist Stephen Rademaker, senior counsel at BGR Government Affairs, said, citing the example of former Secretary of State Henry Kissinger, a strong opponent of universal jurisdiction, who has been accused multiple times of “crimes against humanity” and “war crimes.”
So far “the United States government has decided not to expose itself to these risks,” and it should continue not to, he said.