For example, there is likely to be another leap in atrocity law with the codification of new crimes in the Rome Statute. The most important would be the crime of aggression, which a working group has been laboring on intensely with a firm target of 2009 for delivery of a definition and the procedural trigger for prosecution. Simply by virtue of the extensive global presence of US forces and commitments to allies and to the so-called “War on Terror,” the crime of aggression would be a likely accusation against the United States. Though such accusations against US forces presumably would lack merit, the fact remains that the Rome Statute’s definition of aggression and how the ICC exercises jurisdiction over the charge of aggression is of crucial importance to the United States. Until 2001, the US delegation was a very active player in talks over aggression and gained important support for its position. US negotiators should re-enter the talks immediately and seek to influence the outcome so that the United States can feel comfortable with how the ICC handles the crime of aggression if it is added to the Rome Statute.

There likely will be an attempt to strip out of the Rome Statute a safeguard that France and Colombia have already used: to delay until seven years after ratification their exposure to any possible charges regarding war crimes allegedly committed thereafter. There may also be attempts at the review conference to make good on a pledge delivered in conjunction with the Rome Statute in July 1998: that the review conference would consider inclusion of drug trafficking and terrorism as ICC crimes. The United States either can be a state party with a voice of reason and influence in these important debates, or sit outside as a non-party huffing and puffing. US negotiators could also seek to amend the ICC’s rules of procedure and evidence to improve the Court’s fairness in applying the complementarity principle and also clarify the intent behind non-surrender agreements, thus correcting the flawed texts of these bilateral treaties.

Whether at the initial review conference or others held thereafter, amendments could arise that criminalize the use of cluster bombs, depleted uranium shells, or phosphorous bombs—all currently in the US arsenal. If the United States is absent at the review conference, others may have a chance to determine whether use of these weapons is illegal as a matter of criminal law. Washington could take the lead and propose that all chemical weapons become prohibited weapons under the Rome Statute. Other options include criminalizing the trafficking of nuclear weapons, adding ethnic cleansing as an explicit crime against humanity, and criminalizing instances of large-scale corruption in the United Nations, such as the alleged misconduct in the oil-for-food scandal.

To demonstrate a change in attitude in the United States, a US university could step forward and offer to host or co-host the review conference with private funding. In coming years, private US benefactors, with Washington’s backing, could provide critical financial support for the construction of the ICC’s permanent buildings in The Hague. Just as Andrew Carnegie financed the construction of the Peace Palace housing the International Court of Justice, US citizens can become the carpenters of another international court for the twenty-first century.

Joining the ICC

The United States should take several steps before 2009 to lay the groundwork for a ratification or accession debate in the Senate. The Bush administration, while maintaining a healthy skepticism, could begin to cooperate with the ICC on key investigative priorities in Africa and thus test the Court’s professionalism in working with the United States. Strong US efforts in the Security Council and with European and African nations to compel Khartoum to permit full deployment of the authorized 26,000 UN and African Union military and police personnel in Darfur would go a long way in getting the witnesses of genocide and other atrocity crimes to cooperate with ICC investigators. Washington could share appropriate intelligence with the ICC prosecutor, including declassified imagery concerning activities in Darfur and the other African investigations in much the same manner as with the Yugoslav and Rwanda tribunals.

Congress should continue to amend ASPA so that it no longer serves as a battering ram against the ICC and its supporters. There is no reason ASPA should authorize the president to invade the Netherlands or any other country that detains a US citizen for trial before the ICC. That silly provision has long embarrassed the United States, and also gives the president unprecedented war powers. The punitive provisions for withholding economic support funds and certain military assistance from nations supporting the ICC should be radically modified or removed. The prohibitions on cooperation with the ICC and the requirement that the United States block UN peacekeeping operations that do not exempt US forces from ICC jurisdiction should be repealed. The president’s waiver authorities should be used frequently. Alternatively, Congress could simply repeal all of ASPA and thus remove an unnecessary irritant from world politics.

Congress already has begun to amend the federal criminal code in order to modernize its provisions on atrocity crimes. The bipartisan Genocide Accountability Act of 2007 ensures that the crime of genocide can be prosecuted against any alien who is present in the United States and is suspected of committing genocide anywhere in the world. Further legislation should be drafted to ensure that the crimes against humanity and all of the war crimes described in the Rome Statute can be prosecuted in US courts and in courts martial. Until that is done, the United States risks not being able to prosecute some of these crimes and thus fail the complementarity test that is its first line of defense against unwarranted ICC investigations. Ironically, as parties to the ICC, allies of the US are far less exposed to its scrutiny because they have modernized their criminal codes to mirror the Rome Statute’s crimes while the United States, even as a non-party, stands more exposed because of its relatively antiquated criminal law. If the law can be changed by early 2009, then one of the toughest steps towards ratification—implementing legislation—will have been largely achieved. Even the staunchest critics of the ICC should support such legislation because it would bring US law into conformity with the ICC Statute and, like the states parties to the ICC, ensure that domestic courts have priority over ICC jurisdiction.