By Adam Keith
In the fog on the outskirts of The Hague, governments and civil society representatives came together last week for the annual meeting of the International Criminal Court’s member states.
Gatherings like these are good sources of exchange and partnership, providing new connections for Human Rights First’s work on targeted human rights and anti-corruption sanctions and a clearer sense of how U.S. policy toward an essential accountability institution is unfolding.
The U.S. government was a prominent observer at this year’s event, the first in which the Assembly of States Parties met in person since the pandemic pushed everything online – and since the Trump administration’s political and financial attacks on the court reached their peak in 2020. The Biden administration still does not want U.S. officials and personnel to be subject to the ICC’s jurisdiction, but on a case-by-case basis (and with some measure of hypocrisy) it has resumed some practices that will help advance justice for atrocity crimes in some countries that have chosen to be parties to the ICC.
Many of these actions repeat earlier cycles of U.S. hostility and rapprochement with the court. Last week, the U.S. delegation highlighted several areas of cooperation with the ICC, especially on support for witness protection. Ambassador-at-Large for Global Criminal Justice Beth Van Schaack committed to “reinvigorating” the U.S. rewards program that can offer informants money in exchange for information on the whereabouts of ICC fugitives – a vital effort because ICC member states have failed to create their own such program which would make the court less dependent on the U.S. government’s. Van Schaack also made a passing reference to the U.S. government having “signed” the Rome Statute, a nod to advocates who wish that Washington, if still unwilling to join the court, would undo its “un-signing” of the statute in 2002.
The U.S. presence at the Assembly was clearly appreciated in many quarters. Just two years ago, the previous administration was freezing the assets of top ICC officials and openly threatening to seek the court’s dissolution. We at Human Rights First have supported legislation that would prevent the return of such financial sanctions in the future, but even small, positive steps are a welcome shift in U.S. policy.
Some harms are not undone so quickly, though. I was told by an activist last week that the previous U.S. posture is a factor in discouraging Ukraine from ratifying the Rome Statute, which civil society activists want to see happen as part of Ukraine’s efforts to hold Russian war criminals in its territory accountable and commit itself to the rule of law.
Ukraine’s own posture toward the ICC has been curious. It already accepted the court’s jurisdiction over its territory and its personnel and taken on a legal obligation to cooperate with the court’s investigations. Its governments have nonetheless hesitatedto fully join the court by ratifying the Rome Statute, which would not increase Ukraine’s legal exposure but would give it a say in the court’s governance and satisfy a condition for the country’s eventual membership in the European Union.
Whether or not they have Ukraine in mind, U.S. officials stressed last week that Washington “respects the rights of every country to join the ICC.” This, too, is an echo of past U.S. clean-ups: a previous U.S. ambassador-at-large and my former boss, Stephen Rapp, traveled to the Philippines in 2011 and said in public remarks that even the Bush administration’s hostility to the court had not extended to seeing mere ratification of the Rome Statute as “an unfriendly act.”
Governments that feel they must take the U.S. government’s opinion into account may not be fully attuned to such clarifications, however, or they may simply be clear-eyed about how transient a shift in U.S. policy may be.
The Biden administration should do all it can while it holds office to provide tangible U.S. support for accountability and make it more difficult for future administrations to revert to a hostile stance toward the court. It should set aside the policy position that still stands in the way of U.S. assistance to the ICC’s investigation of war crimes in Ukraine, among others. It should also use sanctions tools and the rewards program to support specific ICC cases.
To help monitor and encourage such steps, Human Rights First is posting a tracker of ICC cases that shows where the United States and other governments have and have not used tools like these to help bring alleged perpetrators to account.
