Michael A. Newton, professor of the practice of law in Vanderbilt’s International Legal Studies Program, is a member of the American Society of International Law’s Task Force on U.S. Policy Toward the International Criminal Court (ICC), which recently issued a statement recommending that the President announce a policy of positive engagement with the Court.
The Task Force, created last summer, is chaired by former Legal Advisor to the State Department and Deputy Secretary of Defense William H. Taft, IV, and former U.S. federal appellate and International Criminal Tribunal for the Former Yugoslavia (ICTY) Judge Patricia M. Wald. Other members of the Task Force in addition to Professor Newton include former Congressman Mickey Edwards, former U.S. Supreme Court Justice Sandra Day O’Connor, former International Court of Justice President Stephen M. Schwebel, former Deputy Prosecutor of the ICTY David Tolbert, and Johns Hopkins School for Advanced International Studies Professor Ruth Wedgwood.
"We recommended that President Obama take prompt steps to establish and announce a policy of positive engagement with the International Criminal Court," Professor Newton said.
Steps recommended by the Task Force include:
- A stated policy of the U.S. Government’s intention, notwithstanding its prior letter of May 6, 2002 to the U.N. Secretary General, to support the object and purpose of the Rome Statute of the Court;
- Examination of methods by which the United States can support important criminal investigations of the Court, including cooperation on the arrest of fugitive defendants, the provision of diplomatic support, and the sharing of information, as well as ways in which it can cooperate with the Court in the prevention and deterrence of genocide, war crimes, and crimes against humanity;
- Examination of U.S. policy concerning the scope, applicability, and implementation of “Article 98 Agreements” concerning the protections afforded to U.S. personnel and others in the territory of States that have joined the Court;
- U.S. participation as an observer in the Assembly of States Parties to the Rome Statute, including the Special Working Group on the Crime of Aggression and the 2010 Review Conference of the Rome Statute;
- The issuance of any presidential waivers in the interests of the United States that address restrictions on assistance to and cooperation with the Court contained in the American Service-members’ Protection Act of 2002 (ASPA) and advice to the Congress on the need for further amendments of ASPA;
- Identification of a high-ranking official to serve as the focal point within the executive branch to coordinate U.S. cooperation with the Court and monitor ICC performance in order to inform the further development of U.S. policy in this area;
- U.S. development assistance focused on rule-of-law capacity building, including that which enables countries to exercise their complementary jurisdiction to the Court effectively;
- Support for the continued development of contacts between the various branches of the U.S. Government and the Court;
- Support for the legislative agenda detailed below; and
- An inter-agency policy review to re-examine, in light of the Court’s further performance and the outcome of the 2010 Review Conference, whether the United States should become a party to the Rome Statute with any appropriate understandings and declarations as other States Parties have done.
The Task Force has also recommended that Congress pursue a legislative agenda on the Court that includes:
- Amendment of the American Service-members’ Protection Act and other applicable laws to the extent necessary to enhance flexibility in the U.S. Government’s engagement with the Court and allies that are State Parties to the Rome Statute;
- Consideration of amendment to U.S. law to permit full domestic U.S. prosecution of crimes within the jurisdiction of the Court so as to ensure the primacy of U.S. jurisdiction over the Court’s jurisdiction under the complementarity regime; and
- Hearings to review and monitor Court performance in order to identify means by which the United States can support the Court consistent with the interests of the United States and the international community and to re-examine whether the U.S. should become a party to the Rome Statute with any appropriate understandings and declarations as other States Parties have done.
The Task Force is scheduled to issue a full report that elaborates on and gives justification for its findings just prior to the Society’s 103rd Annual Meeting, March 25-28, 2009, in Washington, D.C.
ASIL is a nonprofit, nonpartisan, educational membership organization, which was founded in 1906, chartered by the U.S. Congress in 1950, and has held Category II Consultative Status to the Economic and Social Council of the United Nations since 1993. ASIL’s mission is to foster the study of international law and to promote the establishment and maintenance of international relations on the basis of law and justice.