The United States and the International Criminal Court

Discussion with ICC judge Hans-Peter Kaul and David J. Scheffer, director of the Center for International Human Rights

02/10/2012 | 12:00 - 14:00 | DGAP | Invitation only

Expert Round Table

Category: ICC

In March 2012 the International Criminal Court (ICC) filed its first verdict: a 14 year prison sentence for Congolese military leader Thomas Lubanga. But even with this recent success, the ICC faces problems, most notably the fact that the United States is not a member. On the Court's tenth anniversary, David J. Scheffer and Hans-Peter Kaul took stock of where the court stands and discussed the prospects of American membership.

When Anja Papenfuß, host and editor-in-chief of the magazine Vereinte Nationen (United Nations), asked a question about the state of international law, neither of the two guests was keen on answering. David J. Scheffer stepped up and answered: “I am optimistic in regard to international law. A lot has changed since the 1990s, but it has been a difficult development.”

But who would know better than him? In 2000, as the US Ambassador at Large for War Crimes Issues and head of the US delegation, Scheffer signed the Rome Statute for President Bill Clinton – America's membership to the ICC seemed set. But under President George W. Bush, the United States cancelled their signature due to concerns that the Court would erode national jurisdiction and prosecute American citizens for political reasons.

Hans-Peter Kaul sees these concerns as unreasonable. According to him, the ICC is a court of ultimate resort that lacks any political character: “The court is based on voluntary consent. It is a construct of the international community and only takes action when members are not able or willing to file suit.” The court is structurally weak and does not threaten the sovereignty of its member states, said Kaul.

American Accession?

Kaul welcomes the United States' quick accession but doubts it will happen. “I assume that China will ratify the Rome Statute before the US,” he said. However, his pessimism toward American accession is serious. “Whenever someone asks me about when America will become a member I always say: round about 2040.”

David J. Scheffer does not share Kaul's dark vision of the future. By now, the ICC's activities are accepted by Washington and American support for institutions such as the Khmer Rouge Tribunal illustrates the country's commitment to international justice. Still, Scheffer thinks the debate needs to be stimulated at the highest level. “The Obama administration has other priorities than the ratification of the Rome Statute, for instance the signing of the United Nations Convention on the Law of the Sea,” Scheffer made clear.

Increased Membership

US accession would be very important not only in terms of acceptance but also for financial reasons. The ICC's budget has remained steady over the past years, but it is by no means able to handle increasing financial requirements. According to Hans-Peter Kaul, member states have to deal with the question of whether they are really investing enough money to put war criminals behind bars. After all, the Court deals with “complex investigations, which sometimes take place up to 5000 kilometers away from The Hague.”

On a positive note: The circle of Rome Statute signees continues to grow. 121 states have now signed the document, with Malaysia and Indonesia next in line. It is still unclear though when the United States will join. David J. Scheffer is sure about one thing “If the US wishes to help shape international law in the future, they will have to join the International Criminal Court.”

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