The International Criminal Court: A New American Victory

Charged with prosecuting the perpetrators of genocide, crimes against humanity and war crimes, the International Criminal Court (ICC) should, in theory, also judge the perpetrators of crimes of “aggression.” But it’s nothing of the sort. Gathered since the beginning of June in Uganda to amend the statute of the Court, the 111 states that ratified this treaty have adopted a judicial definition for this crime, but have delayed any decisions about putting it into practice by at least seven years.

Americans are not part of the Court, but they were well present in Kampala. Washington doesn’t want crimes of aggression to fall under the authority of international justice. “We ensure total protection for our Armed Forces,” Harold Hongju Koh, judicial consultant of the American State Department, said with satisfaction during the negotiations.

Washington doesn’t want an [international] independent court, guided by outside prosecutors, susceptible to hounding its soldiers and diplomats. Since the ICC was put into place in The Hague in 2002, the Bush administration has battled it. With the Obama administration, Washington has gone from “hostility to positive engagement,” affirms Harold Hongju Koh. But this improved tactic doesn’t answer to a fundamental change in America’s position. Washington doesn’t expect to ratify the Court’s treaty. But since 111 states have done it, it’s no longer possible to backpedal, the American counselor notes with lucidity. They have to get involved. And if until now the Court hasn’t worried the United States, it could prove itself useful.

Ever since Nuremberg, the United States has always advocated and built their justice “à la carte.” The key stakes of this justice that threatens state leaders and high ranking officials, targets of successive prosecutors, have always been the object of negotiation. For crimes pertaining to Nazis, the Japanese, Rwandans or Yugoslavians, Washington has always managed to present their list of suspects, while others were either “forgotten” or acquitted.

It seems it is this perspective that the Obama administration is adopting, so that now, the ICC is groping around helplessly. The judges have not announced any verdict, on any case, for eight years. Only two cases are in court right now, against three heads of militia who are responding to minimalist accusations. Audiences are noting the weakness of these prosecutors’ investigations. Nine out of 12 arrest warrants have not been executed. Since then, the United States expects to make this bureaucratic machine work with 100 million Euros per year. Many supporters of the Court salute this advance, and too bad if the American support is for a program other than this one lone battle against impunity.

Because America has not ratified the Court’s statute, it’s not obliged to cooperate. Instead, it chooses. It’s on the pursuit of killers from the Lord’s Resistance Army (LRA) – of which four are being charged by the ICC – that the United States is marking their engagement.

According to a law signed at the end of May by Barack Obama, the American administration has to put a strategy in place to “eliminate the threat posed by the Lord’s Resistance Army,” through military and economic support and ongoing efforts to “apprehend or otherwise remove Joseph Kony and his high commanders.” The LRA, whose troops are made up of kidnapped young men, mark their crimes by cutting the lips of their victims. Today it rages through Congo-Kinshasa and in Central Africa, after having spread terror in northern Uganda for 20 years.

During the debate of this law, the Democratic Senator Russ Feingold estimated that this operation could also “help shape an AFRICOM that works effectively for both Africa and America’s security interests.” Established in 2007, US Africa Command (AFRICOM), the continent’s American military force, could win one’s spurs by supporting the ICC.

The prosecutor of the ICC adheres to this. Luis Moreno Ocampo has often advocated intervention of “special forces” within a coalition directed by the United States to execute arrest warrants against the LRA.

A report undertaken in April by General William Ward, the head of AFRICOM, shows that three of the four priorities of the organization are in line with those of the ICC: Darfur, the LRA and the Democratic Forces for the Liberation of Rwanda, which rages in the east of the Democratic Republic of Congo (DRC). It’s difficult to contest these choices: Crimes by Sudan and Ugandan and Congolese militias have made millions of victims. But other parties in these conflicts are, themselves, curiously spared.

For Adam Branch, professor at the University of San Diego, “the ICC risks becoming the latest pawn of US military strategy on the continent,” and “appears to be trading its independence in return for access to coercive force.” In slowly affirming itself as an important political actor or prosecutor, all the while being protected from eventual pursuits, America seems to have every reason not to ratify the treaty of the Court.