THE HAGUE | The Obama administration is likely to announce a change in policy toward the International Criminal Court (ICC) in the next few months, but it may be years before the United States joins an institution that the Bush administration at first disdained but later came to appreciate.
That change likely will be in the form of an affirmation of the U.S. signature, first offered by President Clinton in 2000, diplomats and experts say.
The signature was “withdrawn” by his successor, President George W. Bush, less than a year later because of concerns that U.S. soldiers and officials might be subject to ICC prosecution for political reasons.
“If they don’t announce a change of policy, there will be real questions about the administration’s support for the ICC” and its prosecution of war crimes in Sudan’s Darfur region and elsewhere, said Richard Dicker, director of Human Rights Watch’s International Justice Program.
The State Department has said that policy toward the court is, like many other issues, “under review.” When asked to elaborate, the department’s Office of the Legal Adviser, which is responsible for ICC-related matters, declined comment.
In private, officials say any announcement would only come after a serious consideration of the consequences of ICC membership.
“We want to be very careful and cautious and make sure that we’ve looked at all potential ways that joining the ICC could affect our troops around the world,” said a senior U.S. official, who asked not to be named because he was not authorized to speak publicly.
Even if Mr. Obama restores the U.S. signature, membership in the court has to be approved by Congress, which could take years. Mr. Dicker noted that it took the Senate four decades to ratify the U.N. Convention on Genocide.
Kim R. Holmes, vice president for foreign- and defense-policy studies at the Heritage Foundation - and assistant secretary of state for international-organization affairs during Mr. Bush’s first term - said that reaffirming the U.S. signature “would be a mere gesture.”
“Despite the Democratic majority in the Senate, it would still not get two-thirds for ratification if submitted for advice and consent,” he said. “The Obama administration knows this. Reaffirming would be a typical half-step gesture to mollify his base without actually having to follow through with the full measure.”
Mr. Holmes said the American Service-Members’ Protection Act “prevents direct cooperation with the ICC,” and if reaffirming the signature “implied some more direct cooperation with the court, then this could be a problem with Republicans in Congress.”
Human Rights Watch’s Mr. Dicker said: “It’s important for the president to talk about ratification as a goal. One would expect that, before year’s end, the administration would have completed its review and articulated much closer cooperation with the ICC.”
Washington “needs to join this court” because “accountability for serious crimes, coupled with a fair trial, are values that have deep resonance” in the U.S., he said.
Although many human rights and international justice experts say the ICC can only benefit from U.S. membership, court officials are careful not to comment on any particular country joining or staying away.
“It’s not our job” to recruit new members, said Sonia Robla, head of the ICC’s public information and documentation section. “Of course, we would like to be a universal court. We hope that by doing our work well, by conducting fair trials, we’ll get the support of more and more countries.”
The court’s Rome statute was first adopted in 1998, but it did not begin to function as an institution at The Hague until 2002. It now has 18 judges and 810 staff members, 18 of whom are Americans, Ms. Robla said. There are 108 members, and the largest contributor to the budget - which totals about $135 million this year - is Japan, followed by Germany, Britain and France, she said.
So far, the court has issued 11 arrest warrants for war crimes and crimes against humanity, involving citizens of the Democratic Republic of Congo (DRC), the Central African Republic, Uganda and Sudan. Four suspects have been arrested and are being held in the ICC detention facility in the Dutch capital. It shares a building with the International Criminal Tribunal for the Former Yugoslavia, where the country’s one-time leader, Slobodan Milosevic, was jailed before he died in 2006.
The ICC’s first trial - against Congo’s Thomas Lubanga Dyilo - began in January. However, its highest-profile indictee, Sudanese President Gen. Omar al-Bashir, remains at large, with virtually no prospects of being arrested.
His arrest could only happen if Gen. Bashir visits an ICC member state, which would be obligated to hand him over to The Hague. So far, Mr. Bashir has visited only nonmembers in Africa and the Arab world.
Washington warmly welcomed Mr. Bashir’s indictment last month. Even under the Bush administration, U.S. authorities encouraged the court’s involvement in Darfur.
The Bush administration negotiated bilateral “agreements protecting American citizens” from the ICC with 104 countries. Ninety-seven of those accords are in force, a State Department official said.
The Bush administration initially conditioned U.S. military aid to foreign countries on signing these so-called Article 98 agreements. In 2006, some of the agreements were waived so that the U.S. could resume aid and military cooperation.
Then-Secretary of State Condoleezza Rice conceded that the U.S. actions were “sort of the same as shooting ourselves in the foot” because the withheld aid, particularly in Latin America, made it difficult for some countries to effectively fight terrorism and drug-trafficking.
“It’s important from time to time that we take a look to make sure that we are not having a negative effect on the relationships that are really important to us from the point of view of improving the security environment,” she said.
After that, the Bush administration’s disdain for the ICC began to mellow, Mr. Dicker said.
“It was striking how dramatically the attitude of the Bush administration changed in the last few years,” he said. “That created a much more favorable landscape for the Obama administration.”
Asked if the U.S. should continue to fear that its troops overseas could be turned over to the ICC by the country where they are stationed, Ms. Robla said the court is “not above national jurisdictions,” and it only gets involved “when states are unable or unwilling to prosecute” suspected criminals.
The ICC’s Web site says it is “a court of last resort.”
“It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine - for example, if formal proceedings were undertaken solely to shield a person from criminal responsibility,” the site says. “In addition, the ICC only tries those accused of the gravest crimes.
“We want to be very careful and cautious and make sure that we’ve looked at all potential ways that joining the ICC could affect our troops around the world.”
- U.S. official