United States Should Join the International Criminal Court

Source: The Progressive Magazine

President Obama is being too wimpy about joining the rest of the world.

In January, the Obama Administration’s Ambassador-at-Large for War Crimes Issues Stephen Rapp said that the United States was unlikely to become a member of the International Criminal Court for the “foreseeable future.”

Last week, Rapp tried to lessen the sting by claiming that the Obama Administration would be actively cooperating with the court, even if it were beneath its dignity to actually sign on. This insincere attitude represents a defeat for the principle that the United States should operate under international law. It also marks a turnaround from last August, when Secretary of State Hillary Clinton expressed “great regret” that the United States was not a member of the court.

Rapp cited the fear of unfair prosecutions of U.S. servicemembers and officials by the court and the fact that the United States had a strong court system as reasons for the Obama Administration’s hesitancy to take the plunge. This line of thinking displays an astonishing continuity with the anti-court stance of the Bush Administration. The Bushies were so spooked by the International Criminal Court that they actively set out to sabotage it. Led by John Bolton, they arm-twisted more than 100 countries to sign reciprocal agreements making certain that American personnel would not appear in court. And in conjunction, the Republican Congress passed two laws to punish those countries that resisted.

Interestingly, the Bush Administration softened its stance toward the end by raising no objections to the court’s action in the Sudan. This was perhaps because it realized that the way the court was acting posed little threat to U.S. interests. As Columbia University Professor Mahmood Mamdani has pointed out, the International Criminal Court hasn’t been too willing to take on rich and powerful nations.

“The fact of mutual accommodation between the world’s only superpower and an international institution struggling to find its feet on the ground is clear if we take into account the four countries where the ICC has launched its investigations: Sudan, Uganda, Central African Republic and Congo,” Mamdani wrote in 2008. “All are places where the United States has no major objection to the course chartered by ICC investigations. Its name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity.”

This character of the court is reinforced by its recent announcement that it will investigate the post-2007 election violence in Kenya. Mamdani exposes a structural flaw with the International Criminal Court: The U.N. Security Council can refer cases to the court (even regarding a non-signatory) or, conversely, block any such attempts. This gives an inordinate amount of clout to the five permanent members, including the three Western powers. This explains to a large extent the hesitancy of the court’s chief prosecutor to take on the West or its allies.

Such shortcomings notwithstanding, the court deserves to be supported. The fact that there is a global judicial mechanism to try genocide, crimes against humanity, and war crimes is a huge advance on the international stage. A number of African militia leaders have been put on trial for horrific crimes. The United States joining the court would be a big boost to its legitimacy and workings. And the international community is on the court’s side: 111 nations have subjected themselves so far to its jurisdiction, with thirty-eight others signing on but not ratifying yet.

The Obama Administration’s arguments against the court are specious. The court’s chief prosecutor, Luis Moreno-Ocampo, has shown very little inclination to go after the United States, even when he has had legitimate reasons to do so, such as for the Iraq War. And if the U.S. court system is so sound, then the United States has nothing to fear.

The main reason for Obama’s timidity lies elsewhere: He doesn’t want to pick another fight with the rightwing, which would be in conniptions about his “surrender” of U.S. sovereignty. But Obama should stand up to them, affirm the primacy of international law, and join the International Criminal Court.

Amitabh Pal is the Managing Editor of The Progressive magazine.