INTERNATIONAL JUSTICE FEBRUARY 25, 2013
The bill that President Obama signed into law on January 15, the Department of State Rewards Program Update and Technical Corrections Act, was ostensibly about improving the government's ability to combat international war criminals. Obama's signing statement even cited Joseph Kony, the infamous warlord (and subject of a viral video campaign) who faces charges before international tribunals for attacks on civilians, murder, the recruitment and use of child soldiers, and rape. But the importance of the law is likely to extend for beyond the pursuit of Kony. Indeed, the law's biggest impact may be the way it had quietly reset the fraught relationship between conservative policy makers and the International Criminal Court.
Established in 1998 under the Rome Statute to prosecute war crimes, genocide, and other human rights atrocities, the International Criminal Court has never before been recognized by the United States. But under the new law, the State Department is empowered to offer monetary rewards for foreign nationals indicted by any international court for genocide, war crimes, or crimes against humanity, including the ICC. This amounts to an unprecedented channel of cooperation between the U.S. and the ICC—and a surprising, if tacit, endorsement of multilateralism and international institutions by the conservative lawmakers who fought to pass the bill.
The explicit inclusion of the ICC in the text of the law is no small matter given Washington's traditional suspicion of international law. Historically, opponents of the court in both parties have worried about prosecutions against Americans. While President Bill Clinton signed the Rome Statute in 2000, he did so noting that “fundamental concerns” remained and that he would not send it on to the Senate for ratification. The Bush administration then abandoned the treaty entirely in 2002. Later, Bush signed the American Servicemembers Protection Act (ASPA), which shields U.S. and allied personnel from prosecution by the ICC, and generally restricts American cooperation with the court.
That proved to be the high point of Washington's unipolar moment; the Bush administration's hostility towards the court faded soon began to fade, at least somewhat. In March of 2005, Bush agreed to allow the UN Security Council to refer the atrocities in Darfur to the ICC for investigation; it also waived the restrictions on foreign assistance to ICC party countries. But adherence to international legal norms was still mostly dismissed by conservatives as a liberal cause. When the Obama administration threw its weight behind the Security Council’s referral of the Libya conflict to the ICC—a first for the United States—the decision was blasted by John Bolton on the pages of Wall Street Journal editorial page.
Which is why it was such a surprise that the new law’s entire lifecycle—from inspiration, to conception, to passage—was nurtured by Republicans. (It was spearheaded by Ed Royce, the incoming chair of the House Committee on Foreign Affairs, and outgoing chairwoman Ileana Ros-Lehtinen.) The final product does make concessions to conservatives worried about the prospect of the government becoming beholden to international law: Anytime the State Department wishes to announce a reward for a war criminal, it will also have to notify Congress 15 days in advance and submit a report detailing why the particular arrest aligns with the national security interests of the United States. The law also explicitly preserves ASPA. But Congress also explicitly deprived itself of any special veto power over targets. The executive branch is required only to inform lawmakers of its intent to act on specific names.
John Washburn, the director of the American Non-Governmental Organizations Coalition for the International Criminal Court, sees the legislation as yet another signal that the United States is increasingly comfortable with the notion of a permanent international tribunal, as opposed to the current, ad-hoc system of courts as seen in Sierra Leone, Rwanda, and the former Yugoslavia. As American University law professor Kenneth Anderson told Foreign Policy’s Colum Lynch earlier this month, Washington “has made its peace on both sides of the political aisle with the existence of the International Criminal Court and with the functioning of the ICC as long as it doesn’t get too close” to the sactivities of the United States.
None of this means that there's an international criminal justice revolution underway. Even in the age of Obama, American officials still harbor plenty of skepticism about the court. Speaking recently at the Brookings Institute, Assistant Secretary of State for African affairs Johnnie Carson underscored that while the Obama administration supported the ICC's mission, its structure, and its founding charter, it still would not commit to recognizing its legitimacy in any official capacity. This is as far as Washington is currently willing to venture.
According to John Bellinger, a legal advisor to the State Department under President Bush, that won’t change so long as Democrats are themselves hesitant about endorsing international law. “Human rights observers believed there would be a dramatically changed approach by the Obama administration to the International Criminal Court,” he says. “These people have forgotten that the Clinton administration said that the Rome Statute was flawed.”
Indeed, it's clear that the Obama administration doesn't see the issue as a political winner. One expert on atrocity crimes who declined to be named because of the political sensitivity of the issues at stake, said that the administration showed great care to not portray the bill as moving the ball forward at all on the American relationship with the ICC. “They certainly downplayed that, and really tried to put it to the side,” he says. “They really want to go forward with getting people like Kony…but at the same time, they don’t want to be seen as supporting the ICC, and don’t want to be seen as letting international law have any influence over U.S. jurisprudence.”
Still, Bellinger sees the Rewards for Justice program as an important incremental step by the U.S. government towards embracing international justice. “Look, the court has been a mixed bag. In ten years, it’s done nothing to really threaten the United States or United States’ interests,” he says. “The ICC is doing at least some useful work that most Republicans or Democrats would probably support—going after people like [Sudanese president Omar al Bashir] and Kony, and that maybe it’s time to modify the ASPA slightly, to ensure that we provide greater support to the court.”
The State Department has yet to officially name Kony as the inaugural target enabled by the new law, though it may not be long until that's the case. And if the new program does in fact lead to his capture, American policy makers will no doubt see the program as a success—which may eventually pave the way for conservatives to make another subtle, incremental embrace of international justice.