Recommendations: Policy Options for Pragmatic Engagement | ASIL Task Force on Policy Options for U.S. Engagement with the ICC

Although the U.S.-ICC relationship has evolved over the years, driven largely by the salience and potency of competing considerations, the objectives and work of the Court implicate core commitments to justice and accountability that are foundational to U.S. foreign policy in many situations around the world. This brings into stark relief the need to chart a course that best balances the United States' ability to advance these interests and the desire to address countervailing risks. This diversity of perspectives on what is desirable when it comes to U.S. engagement with the Court, along with the pragmatic reality that different forms of engagement may be more or less feasible depending on relevant developments at different points in time, suggested to the Task Force that it should disaggregate the different forms of engagement that the United States could undertake. With this in mind, the recommendations that follow are broken into four categories:

(A) Clearing the Air: Steps that the new Administration should take immediately so as to reinforce its overall approach to multilateralism and international institutions; to underscore that the United States shares the goals of the ICC; and to help strengthen the credibility of the United States as a dependable voice on issues of accountability, human rights, and the rule of law.

(B) Promoting Justice Regardless of Concerns About the ICC: Actions that are independently constructive and consistent with longstanding U.S. values that should be undertaken regardless of the general state of its relations with the ICC at any given time.

(C) Approaches for Dealing with the Three Biggest Issues: Recommendations for how the United States could approach the situations in Afghanistan and Palestine, and the opportunities presented by the review and reform process being undertaken by Rome Statute Parties—which the Task Force sees as closely correlated.

(D) Possibilities for Support for ICC Efforts in Particular Situation Countries: Finally, a set of considerations for providing support to organs of the ICC for particular investigations and prosecutions in appropriate circumstances.

In developing these recommendations, the Task Force was mindful of its mandate to recommend options that are “pragmatic.” The Task Force did not, for example, envision ratification of the Rome Statute by the United States as something that the new Administration would plausibly pursue. Indeed, almost none of the interlocutors with whom the Task Force spoke expected the United States to ratify the Statute (at least in the foreseeable future), although many would support it and some identified advantages to membership (including the benefits of participating in the work of the ICC as a state party). The Task Force has, however, considered a range of options in light of the various positions adopted by U.S. agencies over the years, the historical engagement by the United States with the ICC and other international criminal tribunals, the lines of reasoning that have or have not proven persuasive with U.S. interlocutors and stakeholders in the past, and how elements the international community have reacted to past approaches. In short, we have been guided by the goal of recommending particular approaches that the Task Force believes could be expected to be effective at advancing U.S. interests.