From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference

Vijay Padmanabhan

2010년 1월 · CSR (New York, N.Y.) 55권 · Council on Foreign Relations

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The United States has long been a leading force behind international efforts to bring the perpetrators of atrocities to justice. It spearheaded the prosecution of German and Japanese officials after World War II and more recently supported tribunals to deal with events in Rwanda, the former Yugoslavia, and elsewhere. Washington has kept far more distance, however, from the International Criminal Court (ICC). Although President Bill Clinton allowed U.S. negotiators to sign the Rome Statute, the agreement that established the court, he and subsequent presidents have maintained objections to elements of the court's jurisdiction and prosecutorial authority. U.S. administrations have since cooperated to varying degrees with the ICC, but the notion of ratifying the Rome Statute and joining the court has never been seriously entertained.Even as a nonmember, though, the United States has important interests at stake in the ICC's operations. On the one hand, the court can bring to justice those responsible for atrocities, something with both moral and strategic benefits. On the other hand, there are fears that the court could seek to investigate American actions and prosecute American citizens, as well as concerns that it will weaken the role of the UN Security Council (where the United States has a veto) as the preeminent arbiter of international peace and security.This Council Special Report, authored by Vijay Padmanabhan, examines how the United States should advance its interests at the ICC's 2010 review conference, scheduled for May and June in Kampala, Uganda. After outlining the history of U.S. policy toward the court, the report analyzes the principal items on the review conference agenda, most notably the debate over the crime of aggression. The conference faces the task of deciding whether to adopt a definition of aggression and, should it do so, whether and how to activate the court's jurisdiction over this crime. Padmanabhan explains the important questions this debate raises.Offering guidance for U.S. policy, the report recommends that the United States not seek to join the court in the foreseeable future. However, Padmanabhan urges the Obama administration to make an active case for its preferred outcomes at the review conference, including by sending a cabinet-level official to Kampala. On the question of aggression, he calls for a strong stand against activating the ICC's jurisdiction. He argues that the proposed definition is overly vague, something that could endanger U.S. interests and risk embroiling the court in political disputes over investigations. Should the review conference nonetheless adopt a definition, he advises the administration to emphasize the potential drawbacks of activating the ICC's jurisdiction without consensus among its members. On other issues, the report urges the United States to contribute constructively to the evaluation of the court's functioning that the conference will carry out. And if the conference's overall outcome is favorable, Padmanabhan concludes, the United States should consider boosting its cooperation with the court in such areas as training, funding, the sharing of intelligence and evidence, and the apprehension of suspects.From Rome to Kampala offers a timely agenda for U.S. policy at this year's review conference and toward the ICC in general. Its thoughtful analysis and detailed recommendations make an important addition to current thinking on a set of issues with deep moral, legal, and strategic implications.

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Vijay Padmanabhan is a visiting assistant professor of law at Yeshiva University's Benjamin N. Cardozo School of Law. Professor Padmanabhan teaches the law of war and human rights law, and has published on topics in international criminal law and international humanitarian law. From 2003 to 2008, he was an attorney-adviser in the office of the legal adviser at the U.S. Department of State. While there he served as the department's chief counsel for law of warndash;related litigation, including collaborating with the U.S. Department of Justice on the Boumediene, Omar, and Hamdan cases in the U.S. Supreme Court. He also was the department liaison to the office of military commissions in the U.S. Department of Defense. Padmanabhan was a law clerk to the Honorable James L. Dennis of the U.S. Court of Appeals for the Fifth Circuit. He received his BSBA summa cum laude from Georgetown University and JD magna cum laude from New York University School of Law.