Marriage of Convenience

(by Jamie Dean, WorldMag.com) – Nearly six years after its establishment, the International Criminal Court (ICC) is set to begin its first trial next month in The Hague, Netherlands.

The independent court established by dozens of United Nations (UN) members will try former Democratic Republic of Congo rebel leader Thomas Lubanga for war crimes stemming from a bloody ethnic conflict that left as many as 60,000 people dead over four years.

The court has formally charged Lubanga, 46, with abducting children under the age of 16 and forcing them to fight for his Union of Congolese Patriots in a war waged over control of the gold-rich Ituri region of northeast Congo. War observers say Lubanga also masterminded the massacre of 400 people, and that the 1999-2003 fighting left hundreds of thousands homeless.

The trial brings intense scrutiny. The proceedings represent the first case tried by a court formally supported by more than 100 nations, but famously criticized by the United States. On the eve of Lubanga’s trial, U.S. officials are expressing growing openness to the court, but cautioning that fundamental objections remain the same.

The United States is one of a handful of UN members not signed on to the Rome Statute, a treaty first adopted 10 years ago to establish the ICC to pursue and prosecute war criminals from countries unwilling or unable to try their worst offenders.

The court’s designers say the ICC is the final step in the evolution of war tribunals like the Nuremberg trials that prosecuted Nazi war criminals after World War II, and the tribunal for former Yugoslavian leaders accused of ethnic cleansing. Unlike those ad hoc tribunals, the ICC is intended as a permanent, ongoing effort to prosecute war crimes at its headquarters in The Hague.

At the treaty’s signing in 1998, President Bill Clinton and U.S. officials supported the goals of the ICC but expressed concerns with the court’s structure: As an independent body, the ICC operates separately from the UN, with an independent prosecutor possessing expansive powers. Clinton and the U.S. delegation argued that the ICC needs external checks and balances to guard against abuses of power and politically motivated trials.

Clinton eventually signed the treaty in 2000 but did not send it to the U.S. Senate for ratification. The president said he hoped the ICC would move toward needed changes that would prompt the United States to consider formally ratifying the document. But the court’s structure remained the same, and the Bush administration withdrew from the treaty in 2002 as the ICC was being established, citing the same concerns.

Since then, the ICC has opened investigations in four cases and has issued 10 public indictments, including the charges against Lubanga.

While the United States has remained opposed to joining the ICC in its current form, the Bush administration has remained open to supporting the court from the outside. In 2005, the United States accepted the UN Security Council’s decision to refer rampant war crimes in Darfur to the ICC.

Late last month, John Bellinger, the State Department’s chief lawyer, told a gathering in Chicago that the United States wants to find common ground for working with the court on a case-by-case basis: “In some cases such as Darfur, the ICC’s success in investigating and prosecuting serious crimes may advance goals we share.”

Bellinger said in such cases the United States could consider providing financial, legal, and logistical support to the court. The Wall Street Journal called Bellinger’s speech “a rhetorical turnabout” for the administration, and Richard Dicker of Human Rights Watch told the newspaper he was surprised by the attorney’s openness to the court: “It’s impossible to imagine such a statement four years ago.”

But Michael Newton disagrees. Newton, a professor of law at Vanderbilt University, worked on a U.S. delegation involved in the Rome Statute negotiations. Newton also helped write the Elements of Crimes, a major document defining crimes for the international court. Other nations, including Iraq, have used the reference for domestic courts as well.

Newton told WORLD he thought Bellinger’s comments didn’t represent a huge shift in U.S. policy: “The policy of the United States has always been to support the goals of the court without supporting the actual structure of the institution.” He noted the United States’ substantial support of war tribunals in Yugoslavia, Rwanda, and Sierra Leone.

Newton believes Bellinger was setting out “realistic expectations” for how the United States could work with the court without necessarily joining it: “It’s not an all or nothing game.”

Bellinger emphasized that theme in his speech, reiterating that without significant changes to the treaty, the United States likely wouldn’t join the court anytime soon. (All three presidential candidates have also expressed concern about the ICC’s structure.)

Bellinger urged members of the court to accept the United States’ right to opt out of the treaty but to find common ground: “The sooner both sides respectfully agree to disagree about the ICC as an institution, the sooner we will be able to focus on finding practical and constructive ways to cooperate in advancing our common goals.”

One of those common goals is in Sudan, where the ICC has issued an arrest warrant for Ahmad Harun, the country’s former interior minister. Harun is accused of crimes against humanity for financing, arming, and inciting the Janjaweed militia to mass killings, rapes, and displacement of civilians.

Sudanese government officials in Khartoum have not responded to the ICC warrant for Harun issued over a year ago. Instead, they’ve named Harun state minister for humanitarian affairs.

Copyright ©2008 WORLD Magazine, May 17, 2008 issue.  Reprinted here May 20th with permission from World Magazine. Visit the website at www.WorldMag.com.