Interview with Lee Feinstein on the International Criminal Court and the United States

The United Nations’ International Criminal Court (ICC), for the first time since its work began in 2002, has issued arrest warrants against war criminals. The current case levies indictments against rebel leaders of Uganda’s Lord’s Resistance Army. The court, which was created by the 1998 Rome Statute, has been under debilitating political pressure from Washington since its inception. But when the case of Sudan—where crimes against humanity have been committed in the country’s Darfur region—was referred to the ICC this summer, the United States made no objections.

According to Lee Feinstein, the Council’s top expert on international law, this “little noticed but underappreciated” development signals “a very significant shift” in the Bush administration’s approach. He explains the politically complex U.S.-ICC relationship and considers whether recent developments bode well for the court’s future cases. He was interviewed by Mary Crane, cfr.org editorial coordinator, on October 5, 2005.

How has international—especially U.S.—acceptance of the International Criminal Court (ICC) developed since it came into being in 2002?

The history of this is that it was the United States who first proposed the creation of an International Criminal Court under President Clinton. In the meantime, ad hoc tribunals were created to deal with different atrocities that had taken place in different regions—both in Africa [such as the International Criminal Tribunal for Rwanda (ICTR)] and in the former Yugoslavia [the the International Criminal Tribunal for the former Yugoslavia (ICTY)].

Kind of as a consequence of the Clinton administration’s difficult relations with conservatives in the United States and the unpopularity of peacekeeping operations that were particularly intense during his first term, it became very difficult for the United States to follow through on the ICC, and of course, President Clinton ended up signing it essentially at the eleventh hour of his administration. He did so with the caveat that he did not intend to submit it for advice and consent to ratification until—and unless—several defects from the U.S. perspective were addressed.

The larger perspective is that this all took place in a backdrop in which the United States was no longer in a position to direct the course of international negotiations as it had done previously. This was because of a variety of things, but I would say, mainly, structural changes, including the end of the Cold War and adoption by the European Union of a common security and foreign policy on certain issues and was acting as a bloc on the ICC issue. There had also been a recent example of an international negotiation which had taken place without the United States —the landmine treaty—which had gone forward and gotten near universal support despite American opposition. So, the ICC in a way became an expression of a desired multi-polarity internationally.

And then the treaty was un-signed by the Bush administration in 2002.

The Bush administration unsigned it, which is an unusual step to take in international law. Basically, what happens is that over the course of many administrations, there are lots of treaties the United States signs but does not submit or plan to submit for advice and consent to ratification—in other words, for Senate approval. And, so long as it’s on hold, the treaty has a certain standing in international law under the Vienna Convention on the Law of Treaties, and that standing is that if you have signed it but haven’t ratified it, you have certain international obligations with respect to the treaty and that goes to the issue of not defeating the object and purpose of the agreement.

If you go so far as to un-sign it, what that means is that not only is it on indefinite hold, the executive has made a decision to actively remove it from the queue. That changes your relationship to the agreement under international law under the Vienna Convention, so you no longer have even that minimal obligation under the treaty and its object and purpose.

What are some of the U.S. objections to the 1998 Rome Statute (PDF), the treaty that created the court?

The fundamental U.S. position was that referrals of cases to the International Criminal Court should be subject to the decisions of the UN Security Council, which is another way of saying the five permanent members—including the United States—would have a veto over any referrals. At the time of these negotiations in the late-1990s, that kind of double standard became very difficult to apply any longer in international arrangements; they seemed to fly in the face of developing notions of fairness in the international system.

And so, without the ability to veto, none of the other devices that the ICC embedded in the text of its agreement to prevent frivolous or politically motivated prosecutions seemed adequate, particularly to the [U.S.] armed forces. And their reasons were that the armed forces takes seriously the issue of command authority and, in some ways, they saw the ICC as a potential threat to the command authority of military officers because soldiers are trained to reject orders they believe personally to be violations of international law. And so, the notion that a soldier could be prosecuted jeopardizes—from the military’s perspective—the chain of command.

Does this have to do with the fact that the ICC can intervene to prosecute criminals in countries that haven’t signed the treaty?

Part of it specifically has to deal with the notion that nonparties to the treaty are subject to its provisions. But part of it also goes to a broader issue, which conservatives put forward, that the American constitution has supremacy over other laws, which traditionally—and I think most international experts agree—have equal standing to the constitution so that the international treaty is the law of the land just like any other law and should be treated with the same standing. But conservatives challenged that principle. So, there’s a specific ideological and legal argument that underpins their opposition.

Now, there are also a couple of larger issues. The first is the background noise during the Clinton administration about the perception—cultivated or otherwise—that the Clinton administration was anti-military. And then during the Bush administration, there was a strong element—particularly during the first term—a principled, ideological perspective that the United States was ceding sovereign authority to international bodies which was, one, illegal under the American constitution, and two, unwise. And finally, the United States wanted to send a signal early in the Bush administration that it would no longer be bound by these international institutions if they were perceived to be contrary to American interests.

So this summer, the UN referred Sudan to the International Criminal Court and the U.S. didn’t make much noise about that. Do you think that signals a shift on the Bush administration’s part on its opinion of the ICC?

Yes. I think that this has been little noticed and underappreciated. This is a very significant shift in the administration’s approach to the International Criminal Court because it moves the administration from a posture of active opposition to the very existence of the court to a position much closer to what the Clinton administration adopted in its last days, which was acquiescence in the court’s existence even though it had problems with its conception.

This shift is coinciding with the beginning of the court’s first case, which is against Uganda’s rebel group, the Lord’s Resistance Army (LRA). Is this a good signal, then, for future cases the court will take on?

Well, just to go back to the earlier point to drive it home a little bit: The administration had initially proposed creating a new ad hoc court for Africa to deal with the Darfur referrals or to use an existing ad hoc court. And that met with a very cold reception, and almost nobody—a few Africans supported it, but almost nobody else. So that proposal was dead on arrival. In addition, there was a lot of concern in the United States —Democrats and Republicans, conservatives and liberals, religious leaders and civic leaders—about the plight of Darfurians. There was a lot of political pressure on the administration not to obstruct an effort to bring war criminals to justice or those who hadn’t yet been indicted for further atrocities.

What this now creates is a situation where the United States has acquiesced in referrals of these [Ugandan] names to the ICC for indictment and it raises the question as to whether the United States will cooperate with the prosecutor [Mr. Luis Moreno-Ocampo] in pursuing these cases further.

For the Uganda case, do you think they will bring some of these LRA leaders to court, or will it be kind of like the Slobodan Milosevic situation in the ICTY, where the court is put in motion but they criminals are missing?

It’s too early to say. The capacity of the prosecutor is very limited and he and the court depend on cooperation of others to arrest people. He can’t really do it on his own, so the question is going to be the degree to which the United States and others bring this about.