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ASIL Task Force on Policy Options for US Engagement with The ASIL TASK FORCE ON POLICY OPTIONS FOR U.S. ENGAGEMENT WITH THE ICC TABLE OF CONTENTS Foreword ..............................................................................vii Executive Summary .....................................................................ix I. Background ..........................................................................1 II. The Operative Legal Framework .......................................................8 A. ICC-Specific Legislative Framework ................................................ 8 B. War Crimes Rewards Program .....................................................11 C. Other Atrocities Prevention and Response Legislation . 11 III. U.S. Engagement with the ICC ......................................................13 A. U.S. Interactions with the ICC in the United Nations . 13 1. Peacekeeping .................................................................13 2. Referrals of Situations to the ICC Prosecutor . 14 3. Proposals to Defer ICC Investigations or Cases . 17 4. Other UN Resolutions Referring to the ICC ....................................17 B. U.S. Engagement on the Crime of Aggression and the Kampala Review Conference ...............................................................18 C. Other U.S. Interactions with the Assembly of States Parties . 20 D. Support for ICC Investigations ....................................................20 1. Operational Field Support .....................................................21 2. Support in the Arrest and Surrender of Fugitives . 22 3. Protection of Witnesses ......................................................22 4. Support for Victims ..........................................................23 5. Evidence/Information to Support Investigations . 23 6. Public and Diplomatic Statements ...........................................24 IV. Recent ICC Developments Relevant to Its Relationship with the United States . 26 A. The “Situation in Afghanistan” .....................................................27 B. The “Situation in Palestine” .......................................................33 C. ICC Performance, Review, and Potential Reforms . 36 V. U.S. Interests Implicated by the Work of the ICC . 40 A. Jurisdiction Over U.S. Personnel ...................................................41 B. Peace Negotiations and Conflict Resolution ........................................44 C. The Prevention of Atrocities ......................................................45 D. Accountability for International Crimes ............................................48 iii iv Table of Contents E. Compliance with International Humanitarian Law . 50 F. Interpretation and Development of International Law (Including IHL) .. 52 G. Promoting the Rule of Law .......................................................53 H. Effective U.S. Diplomacy and “Soft Power” .........................................53 I. Conclusion .......................................................................55 VI. Policy Options for Pragmatic Engagement .............................................56 A. “Clearing the Air” and Recasting the Tone .........................................57 B. Steps for Promoting Justice Regardless of Concerns About the ICC . 58 1. Enhance General Support for International Justice Efforts . 58 2. Build Accountability into the President’s National Security Strategy . 59 3. Attend and Participate in the ASP and Other Relevant Meetings and Conferences ..............................................................60 4. Preserve Political Capital When It Comes to Diplomatic References to the ICC .......................................................................60 5. Actively Follow the Court’s Substantive Jurisprudence . 61 6. Pursue Possibility of Sanctions Against Persons Sought by the ICC . 61 7. Implement a No Contacts or Restricted Contacts Policy . 61 8. Task U.S. Diplomatic Missions to Report on Relevant ICC Developments and Views of Host States About the Court ..................................62 9. Provide Reporting to Congress on Activities Undertaken by ICC in Other Situations and Enhance Opportunities for Engagement Between the U.S. Government and the ICC .......................................................62 10. Accept Information and Evidence from ICC .......................................63 11. Maintain the Office of Global Criminal Justice and the Position of Ambassador-at-Large ........................................................63 12. Assure Steady and Predictable Funding for Ad Hoc and Hybrid Tribunals .............................................................64 13. Support Domestic Proceedings Involving International Crimes . 65 14. Continue to Issue Rewards Under the War Crimes Rewards Program . 65 15. Support Victims and Survivors of International Crimes . 66 16. Contribute to Witness Protection Measures . 67 17. Enact Crimes Against Humanity and Other Atrocity Crimes Legislation . 68 18. Prosecute International Crimes Domestically . 69 Table of Contents v C. Dealing with the Biggest Issues: Afghanistan, Palestine, and Issues Implicated by the Review and Reform Process . 70 1. The Situation in Afghanistan ..................................................70 2. The Situation in Palestine ....................................................80 3. Contributing to the Ongoing ICC Reform Process . 81 a. Contribute to Work to Tighten the Court’s Admissibility Criteria . 82 b. Encourage Court Actors to Revitalize the Interests of Justice Inquiry . 83 c. Moving the Court Away from the “Situation as a Whole” Principle . 84 4. The United States’ Overall Approach to These Issues . 85 a. Recognizing the Multiplicity of Interests that the United States Has at Stake . 85 b. Capturing the Current Opening to Raise Issues of Concern . 85 c. Keeping Perspective ........................................................86 d. Visions of “Success” ........................................................86 D. Support for Particular ICC Cases ................................................87 VII. Conclusion .........................................................................90 Acknowledgements .....................................................................91 Task Force Members ................................................................... 92 Advisory Group Members ................................................................93 Endnotes ................................................................................95 FOREWORD Over the past decades, the relationship of the United States to the International Criminal Court (ICC) has presented some of the most notable questions of international law and policy facing the U.S. Government, presenting complex and ever-shifting legal and political considerations. The Society, as a non-partisan organization devoted to the study of international law, is well-suited to the task of bringing to bear on these questions the expertise of distinguished independent experts drawing from a broad range of perspectives among policymakers, civil society, and the public. It has been over 12 years since ASIL President Lucy F. Reed convened a task force, chaired by Ambassador William H. Taft IV and Judge Patricia M. Wald, to examine the U.S. relationship with the ICC and to produce a set of recommendations for the then newly elected Obama Administration. The report of that Task Force, U.S. Policy Toward the International Criminal Court: Furthering Positive Engagement, built on the more nuanced relationship and greater openness to engagement with the ICC that had begun to emerge during the second term of the George W. Bush Administration, and many of the report’s suggestions were ultimately reflected in the policies adopted by the Obama Administration. Much changed over the intervening years and in late 2019, President Sean D. Murphy commissioned a new Task Force, with generous support from the Open Society Foundations. Chaired by Todd Buchwald and Beth Van Schaack, the Task Force was charged with conducting a review of the U.S. relationship with the ICC and offering recommendations to Congress and the Administration for fostering pragmatic engagement. Since the Task Force began its work, the legal and political situation has continued to shift: the ICC opened investigations into the Afghanistan and Palestine situations; the U.S. imposed sanctions on the ICC Prosecutor and a senior staff member of the Court; a panel of nine eminent experts conducted an Independent Expert Review of the ICC and made extensive recommendations for reform; and the Assembly of States Parties elected a new Prosecutor who will take office in June 2021. Such developments emphasized both the challenge and the urgency of this effort. Over the last 18 months, the Task Force and its 13-member Advisory Group have engaged in an extensive process of consultation and analysis that are exemplary of the engagement on matters of international law that ASIL encourages. The result is this excellent Report to recommend to policymakers concrete options that could be implemented for pragmatic engagement between the U.S. Government and the ICC. I am confident that both the process of the wide-ranging consultations that the Task Force undertook and the Report itself will help to advance understanding of international law and the United States’s relationship with the ICC FOREWORD vii viii Foreword among policymakers and others, both in the United States and abroad. As with the previous Task Force, the Task Force and Advisory Group
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