Most followers of the International Criminal Court (ICC) likely thought that the days of absurd proposals from US officials to undermine the ICC were at thing of the past. Surely no one would ever propose to do something as politically bizarre as, say, ‘unsigning’ the Rome Statute of the ICC or as futile as investing huge amounts of time and energy into deploying coercive diplomacy to pressure dozens of states into promising that no American citizen would end up be prosecuted in The Hague. No, those days were over. Heck, former Secretary of State Condoleezza Rice went so far as to say that her administration’s anti-ICC policies were like “shooting ourselves in the foot.” Fast-forward to today, the Obama administration speaks highly of its “positive engagement” and supports (at least some) of its interventions. Indeed, the biggest controversy in the US-ICC relationship is whether the ‘one-foot-in, one-foot-out‘ approach employed by Washington is actually hampering international justice and making global accountability more, rather than less, selective.
Then along came Stephen Rademaker, a former senior official in the George W. Bush administration who helped establish the Department of Homeland Security and acted as the article published today in Foreign Policy, Rademaker has proposed to make it a federal crime in the United States to prosecute American citizens at the ICC:. In one fell swoop, Rademaker harked back to the foolish, counterproductive, and cavalier days of American anti-ICC hostility. In an
Congress should make it a federal criminal offense for an official of the ICC, or a foreign government acting under authority of the ICC, to indict, prosecute, detain, or imprison American military personnel or government officials for alleged war crimes.
Call it a “crime against sovereignty.” Any person indicted for such a crime would become a fugitive from U.S. justice, subject to international arrest warrants and liable to prosecution if brought into U.S. custody. They would, in other words, find themselves in precisely the same predicament as the American they sought to turn into an international fugitive through their official acts.
This isn’t the first time Rademaker has taken on the ICC. In advance of the Kampala Review Conference, where diplomats deliberated the potential for the Court to prosecute the crime of aggression, Rademaker exclaimed that the Court “is manifestly incapable of exercising the responsibility and making the judgments that would come with jurisdiction over aggression.” More recently, Rademaker blamed the ICC’s creators for wanting “an independent prosecutor who would be relentless in the pursuit of international justice, insulated to the maximum degree possible from all other considerations.” He also chimed in on the relationship between Washington and the ICC, stating that “[t]he Court cannot expect—and does not deserve—enhanced U.S. support unless it is fundamentally reformed in ways that transform it into a useful institution.” You can see the trend here. But his latest diatribe truly takes the cake.
Incredulously, and apparently without any sense of irony, Rademaker insists his proposal actually represents an improvement on ICC-US relations. Referring to the 2002 American Servicemembers Protection Act (also known as the “The Hague Invasion Act”), which grants the US President the authority to use “all necessary measures” to repatriate any American citizen prosecuted at the ICC, Rademaker argues that
threatening criminal prosecution in such cases would be a more modest and more credible response than threatening military action, which was the remedy Congress came up with the last time it considered the problem.
Seething with exceptionalism, the barrage of misguided arguments hits a crescendo as Rademaker implies that any actions taken by US officials or military personnel that are sanctioned by the government should be excluded from international prosecution:
The prospect of U.S. prosecutions of ICC and foreign law enforcement officials admittedly is an unsavory one. But it is no more unsavory than ongoing threats to prosecute Americans for actions undertaken by them pursuant to the constitution and laws of the United States to defend the nation.
Critics and proponents of the ICC are likely to agree that Rademaker’s proposal is both preposterous and counter-intuitive. First, the notion that an ICC prosecution of an alleged perpetrator of crimes against humanity, war crimes, and genocide would amount to a “crime against sovereignty” smacks of cynicism and hypocrisy given US forays into Pakistan to assassinate Osama bin Laden (without Pakistan’s approval) and the Bush administration’s questionably legal (if not blatantly illegal) war in Iraq. Second, Rademaker’s concern betrays the fact that he – or at least the White House he worked for – has something to hide (which, if you read the Torture Reports or even just the New York Times, they clearly do). Third, and relatedly, Rademaker’s paranoia towards a far-reaching ICC actually portrays the Court as a highly effective institution that presents a threat to high-level US officials. In so doing, the former Bush administration official elevates, rather than diminishes, the Court’s relevance and potential impact.
Despite its obvious folly, however, it is important to realize that Rademaker is not a lone wolf in concocting anti-ICC policies. His article should thus act as reminder that there is still a constituency of US policymakers intent on undermining the Court and shielding American officials from prosecution for war crimes and crimes against humanity, be it domestically and internationally. This is something that the next US War Crimes Ambassador, whoever it ends up being, must be prepared for.
Still, proponents of the Court need not fret. Just how breathtakingly absurd Rademaker’s proposal sounds is indicative of how far the ICC, and its relationship with the US, has come. It wasn’t that long ago that such policies would have been greeted with widespread agreement in Washington.