The Obama administration has taken a more positive approach to the ICC than the previous administration. As a candidate, then-Senator Barack Obama stated that his administration would cooperate with the Court on Darfur and other cases and consult closely with military and legal advisers before making a decision on whether to join the Court.The consultations on joining the Court by ratifyign the Rome Statute were ended quickly by the political environment as Obama took office. They were replaced by internal disucssions and exchanges with civil society organizations about how much to participate in the activites of the ICC. Following conclusions made in these consultations, U.S. delegations as observers attended meetings of the Assembly of State Parties, U.S. officials met directly with the staff and leaders of the ICC and cooperations with the Office of the Prosecutor on the Darfur and other cases led to a more close relationship with the Court. Although there was no complete formal statement of U.S. policy on the ICC, an accumulation of speeches by senior U.s. officals and a passage in the National Security Strategy for 2010 defined the Obama administration approach to the Court. The main elements of this were that the U.S. will assist and cooperate with the ICC on any case or matter deemed to be in the U.S. national interest (all have been found to be in that interest), will attend Assembly and other meetings and will pursue vigorously there U.S. positions on issues such as the crime of aggression.
On October 17, 2012 Ambassador Rice stated, "We have actively engaged with the ICC Prosecutor and Registrar to consider how we can support specific prosecutions already underway, and we've responded positively to informal requests for assistance." Under current US law, the US cannot provide direct funding to the ICC. In addition, she raised concerns about the providing UN-assessed funds to the ICC for cases authorized by the UN Security Council.
On June 4, 2012 the Organization of American States (OAS), of which the US is member state, adopted, as it has since 2002, its annual resolution on the ICC without the inclusion of a reservation by the US regarding its concerns about the Court. This represents the reversal of the long-standing US practice in ICC resolutions since 2003.
On August 4, 2011 President Barack Obama issued a Presidential Study Directive on Mass Atrocities establishing an Atrocities Prevention Board "to coordinate a whole of government approach to preventing mass atrocities and genocide." While the directive did not mention the ICC, the inter-agency policy to be developed by this body - which formally began its work on April 23, 2012 - will likely include the Court and address Rome Statute crimes.
On May 10, 2011 Ambassador Rapp delivered remarks about the US approach to the ICC at a conference in the Philippines - emphasizing that "[t]he United States respects the right of every country to join the ICC" - and answered questions from conference participants and journalists.
On February 11, 2010 Ambassador Rapp announced that the US would assist the ICC to protect witnesses who testify before the Court in its proceedings on Kenya.
On October 2, 2009 US Ambassador-at-Large for War Crimes Issues Stephen J. Rapp stated that the US policy toward the ICC was under review and that the US was beginning an approach of greater cooperation with the ICC. By the end of President Obama's first term, it became clear that the administration was not adopting a comprehensive policy. Instead, according to Harold H. Koh, the State Department Legal Adviser under Secretary Clinton, "we have applied a pragmatic, case-by-case approach towards ICC issues."
In May, 2010, the administration issued a National Security Strategy report report: "Although the United States is not at Present a party to the Rome statute of the International Criminal Court (ICC), and will always protect US personnel, we are engaging with States Parties to the Rome Statute on issues of concern and are supporting the ICC's prosecution of those cases that advance US interests and values consistent with the requirements of US law."
On September 30, 2009 the UN Security Council, under the presidency of the US and chaired by then-Secretary Clinton, adopted resolution 1888 concerning sexual violence in armed conflict. The resolution, drafted by the US, includes a reference to the ICC "[r]ecalling the inclusion of a range of sexual violence offences in the Rome Statute of the International Criminal Court..." This departs from the Bush administration's practice of opposing references to the ICC in UN resolutions. US Ambassador to the UN Susan E. Rice announced in August 2009 that the US would no longer oppose such references.
In response to written questions by the Senate Foreign Relations Committee in January 2009, Hillary Rodham Clinton, who served as US Secretary of State in President Obama's first term, stated that "we will end hostility to towards the ICC, and look for opportunities to encourage effective ICC action in ways that promote US interests by bringing war criminals to justice" (pp. 65-66). On August 6, 2009 then-Secretary Clinton stated that it is a "great regret" that the US is not a member of the ICC but said that "we have supported the work of the court and will continue to do so under the Obama Administration."
US Ambassador at Large for Global Criminal Justice Stephen J. Rapp speaking on the US and the ICC on July 4, 2012 at A Grotian Moment: The International Criminal Court, The US and The Hague Tradition in Delft, the Netherlands.
The US has not ratified or acceded to the Rome Statute of the International Criminal Court, the treaty that established and governs the Court, and thus it is not currently an ICC State Party. The US will not likely join the ICC soon.
In a January 28, 2010 speech at the University of Pittsburgh School of Law, Ambassador Rapp discussed US-ICC policy and stated that the US would likely not join the ICC in the "foreseeable future." Following the speech, Jurist published a comment from AMICC.
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