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January 26, 2009

Trial Membership
Posted by James Lamond

The criminal prosecution of Thomas Lubanga for war crimes began today at the International Criminal Court in the Hague, marking an important step in the development of international criminal law.  The trial, the first for the ICC, is a huge step for the still developing international court. 

The court is developing and becoming a fully functioning criminal court to prosecute those who have committed the most egregious crimes at the same time that a new administration takes charge in Washington, an administration committed to the international community. This forces the question: Is it time for the US to reconsider its position on the ICC?

Many of the key foreign policy makers in the administration have been vocal advocates of US intervention on human rights, including Joe Biden, Hillary Clinton, Susan Rice, and President Obama himself.  However, with the neocon disasters of the Bush administration giving humanitarian intervention a bad name, not to mention our commitment of soldiers and treasure in Iraq and Afghanistan and the financial crisis, there is little stomach for such intervention among the American public- and understandably so.   However the ICC provides an opportunity for the US to make a strong statement on its commitment to human rights and international law without a great cost. 

One step that the new administration could take would be to participate in an observer capacity at the both the ICC Assembly of States Parties and the 2009 Review Conference.  The review conference is mandated by the Rome Statute and here parties can propose amendments to the treaty, allowing the court to reform as needed after seven years in creation.

As Spencer Boyer writes in a 2007 CAP report:

As an observer, the United States would be able to participate significantly in Assembly debates, as well as suggest and respond to proposals, even if it does not become a party to the statute. Congress should also hold hearings on the ICC in advance of the Review Conference to assess America’s position toward the Court. Such hearings should include military experts, officials from several ad hoc international tribunals in which the United States is involved, and international criminal law practitioners and scholars.

Such a step would also help rebuild America’s relations abroad, especially with our allies.  The US played a vital role in writing the Rome Statute and creating the ICC.  When President Bush “unsigned” America from the treaty, it was a slap in the face of the international community.  An involvement in the court by Obama administration and Congress, even one short of membership, would be an extended hand to the international community.  It would also be a practical contribution to the development of international law and human rights efforts. 


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