Over the past decades, the relationship of the United States to the International Criminal Court (ICC) has presented some of the most notable questions of international law and policy facing the U.S. Government, presenting complex and ever-shifting legal and political considerations. The Society, as a nonpartisan organization devoted to the study of international law, is well-suited to the task of bringing to bear on these questions the expertise of distinguished independent experts drawing from a broad range of perspectives among policymakers, civil society, and the public.

It has been over 12 years since ASIL President Lucy F. Reed convened a task force, chaired by Ambassador William H. Taft IV and Judge Patricia M. Wald, to examine the U.S. relationship with the ICC and to produce a set of recommendations for the then newly elected Obama Administration. The report of that Task Force, U.S. Policy Toward the International Criminal Court: Furthering Positive Engagement, built on the more nuanced relationship and greater openness to engagement with the ICC that had begun to emerge during the second term of the George W. Bush Administration, and many of the report’s suggestions were ultimately reflected in the policies adopted by the Obama Administration.

Much changed over the intervening years and in late 2019, President Sean D. Murphy commissioned a new Task Force, with generous support from the Open Society Foundations. Chaired by Todd Buchwald and Beth Van Schaack, the Task Force was charged with conducting a review of the U.S. relationship with the ICC and offering recommendations to Congress and the Administration for fostering pragmatic engagement. Since the Task Force began its work, the legal and political situation has continued to shift: the ICC opened investigations into the Afghanistan and Palestine situations; the U.S. imposed sanctions on the ICC Prosecutor and a senior staff member of the Court; a panel of nine eminent experts conducted an Independent Expert Review of the ICC and made extensive recommendations for reform; and the Assembly of States Parties elected a new Prosecutor who will take office in June 2021. Such developments emphasized both the challenge and the urgency of this effort.

Over the last 18 months, the Task Force and its 13-member Advisory Group have engaged in an extensive process of consultation and analysis that are exemplary of the engagement on matters of international law that ASIL encourages. The result is this excellent Report to recommend to policymakers concrete options that could be implemented for pragmatic engagement between the U.S. Government and the ICC. I am confident that both the process of the wide-ranging consultations that the Task Force undertook and the Report itself will help to advance understanding of international law and the United States’s relationship with the ICC among policymakers and others, both in the United States and abroad. As with the previous Task Force, the Task Force and Advisory Group members were selected to represent the diversity of views on the ICC within the ASIL membership and broader legal and policy community. Of course, the recommendations remain those of the Task Force and do not necessarily represent the views of the Society or its members.

I wish to thank the brilliant co-chairs, Todd Buchwald and Beth Van Schaack, for their expertise and commitment to this project, as well as our superb Project Director, Ben Batros, whose tireless efforts kept this complex project on track. I also extend my deep gratitude to the Task Force members—David Bosco, Sandy Hodgkinson, Saira Mohamed, and Alex Whiting—and to the members of our distinguished Advisory Group, whose insights were so important to the project’s success. Finally, I would like to express my appreciation to the Society’s Executive Director, Mark Agrast, Deputy Director, Wes Rist, and the ASIL staff, who skillfully launched and guided this project over these many months. ASIL is also of course deeply grateful to the Open Society Foundations for funding this project.

Catherine Amirfar
President
April 2021