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General Approach to the ICC

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.

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."

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.

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.

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 would not adopt 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."

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 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.

Approach to ICC Cases

The US has made statements in support of the situations currently under investigation and prosecution by the ICC:

On January 29, 2009 Ambassador Rice signaled a shift from the Bush approach to the ICC by raising it in her first appearance in the Security Council. In her statement, she said that that ICC "looks to become an important and credible instrument for trying to hold accountable the senior leadership responsible for atrocities committed in the Congo, Uganda, and Darfur."

Regarding Darfur, Ambassador Rice stated, "It is our view that we support the ICC investigation and the prosecution of war crimes in Sudan, and we see no reason for an Article 16 deferral" by the UN Security Council, according to The Washington Post. Following the issuance of an arrest warrant for Omar Al Bashir, president of Sudan, Ambassador Rice issued a statement reiterating US support for the Court on Darfur and the requirement of Sudan to cooperate with the ICC. Ambassador Rice repeated this support following a Security Council meeting on Darfur in July 2010. On July 14, 2010 President Obama urged the government of Sudan to cooperate with the ICC following the issuance of an arrest warrant for Al Bashir on genocide charges. On October 17, 2012, in an open debate on the ICC in the UN Security Council, Ambassador Rice stated, "This Council should review additional steps that can be undertaken to complete the ICC's work in Darfur."

On May 24, 2010 President Obama signed into law the Lord's Resistance Army Disarmament and Northern Uganda Recovery Act of 2009. In his signing statement, he recognized the ICC's role in dealing with Lord's Resistance Army (LRA) atrocities and stated that US policy supports bringing the LRA leadership to justice. On November 24, 2010 the White House released its strategy to support the disarmament of Uganda's Lord's Resistance Army and reaffirmed that LRA leaders should face justice at the ICC. On March 16, 2012 US Ambassador the African Union Michael Battle stated that "we need to capture [LRA leader Joseph Kony] militarily. He needs to go before the international criminal court. He needs to be prosecuted."

On December 15, 2010 President Obama released a statement in support of the ICC Prosecutor's announcement naming six suspects in the Kenya investigation. The State Department affirmed this support on January 23, 2012 when the Court confirmed charges against four of the six suspects.

On February 26, 2011 the US co-sponsored and voted in favor of Resolution 1970, adopted unanimously by the UN Security Council, which referred the situation in Libya to the ICC. The US abstained from voting on the only other Security Council referral to the Court, Resolution 1593 (2005) on Darfur. Following the adoption of Resolution 1970 (2011), the US Mission to the UN issued a statement and a factsheet. The US has made subsequent statements following reports of the Prosecutor to the UN Security Council the investigation and encouraged "the Government of Libya to maintain its cooperation with the International Criminal Court in accordance with Security Council Resolution 1970."

Following the guilty verdict in the Thomas Lubanga Dyilo case, which marked the completion of the Court's first trial, both the White House and the State Department issued statements in support of the ICC's work. In February 2013, at a UN Security Council debate on the protection of civilians, Ambassador Rice noted that "Recent events, including the conviction of Charles Taylor by the Special Court for Sierra Leone and the International Criminal Court's judgment against Thomas Lubanga Dyilo of the Democratic Republic of the Congo, show us that accountability for those who commit atrocities and justice for their victims is possible."

Approach to Cooperation with the ICC

The US regularly offers and provides support to the ICC on its investigations and prosecutions:

In March 2010 at an ICC meeting in New York, Ambassador Rapp offered support to the Court on current investigations and spoke to CNN about the US-ICC relationship.

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 May 27, 2010 President Obama issued the US National Security Strategy which affirmed that "we are engaging with State Parties to the Rome Statute on issues of concern and are supporting the ICC's prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law."

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 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 April 3, 2013 the Department of State announced rewards of up to $5 million for information leading to the arrest, transfer, or conviction of ICC suspects Joseph Kony, Okot Odhiambo, Dominic Ongwen and Sylvestre Mudacumura under the expanded War Crimes Rewards Program (WCRP). This follows the signing into law of the authorizing legislation, S.2318, the Department of State Rewards Program Update and Technical Corrections Act of 2012, on January 15, 2013 by President Obama who made a statement on it. Ambassador Rapp had reported to Congress on Rewards for Justice in March 2012 and suggested that Abdullah al-Senussi, wanted by the ICC in the Libya situation, and LRA leader Joseph Kony could be included in the program. Rapp was explicit that the objective was to have the ICC try Senussi and Kony. Rapp stated that the expanded program "would be crime-specific, not court-specific and would allow the United States to engage more fully in pursuit of such foreign nationals. The proposed authority falls within section 2015 of the American Service members' Protection Act of 2002 ('ASPA') and is not intended to authorize activity with respect to the ICC that would currently be precluded under ASPA."

On March 22, 2013 the US facilitated the transfer of ICC suspect Bosco Ntaganda, wanted since 2006 for alleged crimes in the Democratic Republic of the Congo, following Ntagand's voluntary surrender at the US Embassay in Kigali, Rwanda, and request to be sent to The Hague. US Secretary of State John Kerry stated that "Ntaganda's expected appearance before the International Criminal Court in The Hague will contribute to that goal [of peace and stability in the D.R.C. and the Great Lakes], and will also send a strong message to all perpetrators of atrocities that they will be held accountable for their crimes." The US, along with the Rwandan, Dutch, and British governments, cooperated with the Court to facilitate Ntaganda's transfer.

Approach to Diplomatic Engagement with the ICC

The US has participated regularly as an Observer in the meetings of the ICC's governing body, the Assembly of States Parties (ASP), since November 2009. It does so as of right and with most privileges of ICC States Parties except voting and making proposals.

Ambassador Rapp speaking at the tenth session of the ASP. SASP/ICC-CPI.

On November 16, 2009 the State Department confirmed Ambassador Rapp's earlier announcement that the US would participate as an observer in the November 18-26 ASP meeting in The Hague. The US presence there, including its statement in the General Debate, marked the first time the US had participated in ICC meetings since 2001.

The US has participated extensively in all ASP meetings since November 2009 and made statements at all of them:

The US participated as an observer in the ICC Review Conference, May 31-June 11 in Kampala, Uganda, and was the only non-State Party to make pledges of commitment to justice for certain atrocities. The US made two statements during the conference, delivered by the co-heads of the delegation, Ambassador Rapp and then-Legal Adviser Koh. The US delegation also held press briefings during and at the conclusion of the conference.

Then-Legal Adviser Koh elaborated US views on the crime of aggression prior to the Review Conference, in a March 25, 2010 address to the American Society of International Law.

Approach to Ratification of the Rome Statute

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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