Many Obama administration officials — and most likely the president himself — are enamored with international law and institutions. Thus, when it was reported last year that the administration was seeking to change U.S. policy toward the International Criminal Court (ICC) to facilitate increased U.S. cooperation with the court, there was barely a ripple of surprise. But the story did raise justifiable concerns over what such a policy shift might mean for U.S. military servicemen and civilian officials, and what impact it might have on America’s ability to defend its interests.
Last summer, we wrote a rather lengthy piece discussing the reasons that policymakers should be concerned about changing U.S. policy toward the ICC. Our concerns were underscored by the ICC prosecutor’s subsequent announcement that he was looking into alleged war crimes in Afghanistan that could involve actions by U.S. servicemen and officials.
In a notable development last week, Ambassador-at-Large for War Crimes Issues Stephen Rapp announced that the Obama administration would not seek ratification of the Rome Statute. As we have noted, while this was a welcome announcement, there is a world of space between ratification and current U.S. policy. The summary of the ambassador’s remarks included a statement that the “U.S. should continue to support the work of international criminal tribunals.” Does that mean that the Obama administration will seek to enhance U.S. cooperation with the ICC by modifying domestic legislation, “resigning” the Rome Statute, or seeking changes to the Rome Statute or ICC rules and regulations at the upcoming ICC review conference in Uganda? It is very likely.
The U.S. should not generally “enhance” its cooperation with the ICC, nor should it change its laws to facilitate greater cooperation. The U.S. owes its military servicemen and civilian officials what protections and peace of mind it can provide, such as those provided in bilateral Article 98 agreements, which prohibit the transfer of U.S. persons to the ICC without U.S. consent. Current policy and legislation allows for à la carte cooperation with the ICC, such as the Bush administration’s policy on the ICC investigation in Darfur. There is no compelling reason to loosen current restrictions.
But the ICC is not the only international legal forum or jurisdiction to be concerned about. Increasingly, for reasons of conscience or self-aggrandizement, lawyers and judges around the world have sought to extend their domestic legal jurisdiction abroad and apply it to crimes committed in other countries. British Conservative party MEP Daniel Hannan has explained why this effort is short-sighted and anti-democratic. It also poses a direct threat to U.S. sovereignty and national interests. For instance, notorious Spanish judge Baltasar Garzón has announced that he is launching an inquiry into U.S. actions at the detention facility at Guantanamo Bay, Cuba.
The ICC and the use of universal jurisdiction are two facets of an increasingly prevalent and alarming trend of eroding national sovereignty by divorcing the vital link between the law and the people subject to it. As Hannan concludes, we need to arrest this trend and “return to the well-tried and understood concept of state sovereignty, which operated effectively enough between 1648 and the 1990s. When was the internationalization of jurisdiction agreed? When was it even discussed? To quote Judge Bork again: ‘What we have wrought is a coup d’état: slow-moving and genteel, but a coup d’état none the less.’”
– Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at the Heritage Foundation.