The implications of President Barack Obama’s review of American policy towards the International Criminal Court (ICC) could have large and dangerous future results, argued three panelists during a Margaret Thatcher Center for Freedom lecture.
A former advisor under President George W. Bush, Lee A. Baker, pointed out that prior to the Obama administration; the U.S. Congress passed the American Serviceman Protection Act in order to protect American servicemen and women from the prosecution of the ICC. Baker reasoned that American constitutional law prevents the United States from “divesting” power and authority to another country or organization such as the ICC. And, unlike American law, under which there are both military and civilian courts as well as civil and criminal prosecutors, the ICC is only focused on prosecution regardless of a citizen’s occupation. These are reasons enough to resist the ICC treaty as Americans, argued Baker.
Brett D. Schaefer, a Jay Kingham Fellow at the Heritage Foundation, agreed with Baker’s argument. Before, Schaefer said, Americans could only theorize if the ICC would have jurisdiction over them, and if so, what would be the ramifications for American servicemen and women. When asked about the ICC’s open case referring to war crimes in Afghanistan, prosecutor Luis Moreno-Ocampo said, “War crimes are under my jurisdiction. I cannot say more now because we are just collecting information,” leaving open the possibility of investigating Americans for war crimes and prosecuting them in the near future.
Schaefer also sees the progress of the Obama administration’s review of ICC policy as slow. He said that the administration’s report on the United States’ ICC policy was “expected widely to be released last summer,” yet after “a year and a half into the Obama administration” there still has been no release or public statement regarding it. As for Pres. Obama’s enthusiasm for a quick resolution among agencies regarding the policy review, Schaefer said it is easier said in theory than in practice.
In conjunction with the perceived slow progress of the Obama administration, Stephen Rademaker, Senior Counsel at BGR Government Affairs organization, emphasized the slow progress of the ICC since its inception. It has eight open cases against criminals (all of whom are related to civil wars and atrocities in the continent of Africa). Only five criminals in custody await trial, three have since died, and eight are currently free. With all the prosecution focused in Africa, Rademaker felt that the ICC has already prejudiced and “engendered” black Africans against the international law entity. He argues that this focus leaves the impression that the ICC is a puppet of the “white man” set out to prosecute and punish black Africa. He believed that there are no current checks or balances on the ICC prosecutor, unlike the checks and balances prevalent in American constitutional law. Regardless of political motivation, the ICC prosecutor has the power to investigate and prosecute without worrying about ethics or conflict of interest.
The forum illustrated the conflicts of interests for Americans participating in the International Criminal Court as well as concerns regarding the court’s effectiveness in reaching its aim: to prosecute war criminals and aggressor countries. The panelists agreed that it is too early to measure the success or failure of the ICC as a whole, and that only time will tell whether it will reach its goals.