William H. Taft IV,Patricia M. Wald
Wednesday, April 1, 2009
The time has come for the United States to engage officially with the International Criminal Court. Established in 2002, the court exists to prosecute persons accused of genocide, crimes against humanity and war crimes, and the United States should cooperate with all responsible efforts to combat such abhorrent acts. We should act now to develop a more formal relationship with the leading institution for prosecuting such violators.
The United States has been wary of the ICC and so far declined to join the 108 nations that are members. Objections began with the Clinton administration and were magnified after 9/11. Out of fear that the court would issue frivolous arrest warrants for American soldiers and otherwise overstep its bounds, the Bush administration in 2002 announced that the United States would have nothing to do with the court.
Those fears have not been realized. The ICC prosecutor has declined to investigate politically motivated charges in Iraq and elsewhere, and instead has focused on the gravest human rights cases of our time: in the Democratic Republic of Congo, Uganda, the Central African Republic and Darfur. The courthas compiled a commendable record in cases of considerable interest to the United States. Recognizing this, the Bush administration in 2005 began softening its opposition to the court and even supported some of its efforts, particularly in Darfur, where the court issued an arrest warrant against Sudanese President Omar Al-Bashir.
The American Society of International Law convened an independent, nonpartisan task force of American legal experts, which we chaired, to examine the U.S. relationship with the court. The task force concluded unanimously that the Obama administration should take the next step and announce an explicit policy of positive engagement with the ICC. If that policy proves successful, we should then give serious consideration to joining the court.
There are several ways in which the United States can and should be helpful to the court right now. First, the administration can designate a senior official as the U.S. liaison to the court. Second, President Obama should direct U.S. negotiators to attend upcoming meetings of court members. Of particular U.S. concern will be whether the member states decide to add the "crime of aggression" to the court's jurisdiction. This decision could affect U.S. military operations around the world. Staying away can only hurt our interests.
Third, the president should order an assessment of how the United States could offer concrete support to the court. That could include sharing evidence and information and assisting in the arrest and extradition of fugitive defendants.
Fourth, Congress should revisit the American Service-Members' Protection Act of 2002. Congress passed the law principally to protect members of our armed forces from International Criminal Court prosecution. In practice, without a specific waiver, the act prohibits cooperation of any kind by U.S. agencies with the court, unnecessarily tying our hands. Congress should consider amending or repealing this law.
The International Criminal Court is well situated to enforce international laws against the most heinous crimes. The movement since 2005 toward increased engagement with the court has been beneficial - both to the court and to U.S. interests. The time has come to advance our common interests and help shape the court into an effective, accountable body. We could then consider whether to join it.
William H. Taft IV is former deputy secretary of Defense; Patricia M. Wald is a former chief judge of the U.S. Court of Appeals for the D.C. Circuit.
This article appeared on page A - 15 of the San Francisco Chronicle
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