The Universality of the Rome Statute and Expansion of the International Criminal Law Framework

Thank you to the organizers for inviting me to participate in this event, to hear from a diverse range of experts and representatives on issues about which the Biden-Harris administration cares deeply, and to share some views on these topics. As the United States’ 6th Ambassador-at-Large for Global Criminal Justice, I am tasked with leading the U.S. State Department’s initiatives to prevent, mitigate, and redress atrocities around the world—including genocide, crimes against humanity, and war crimes—through justice and accountability measures.

And although I am a diplomat, and not a parliamentarian, I enjoy engaging with our own members of Congress and their staff as they seek to strengthen the legislative framework devoted to preventing and responding to atrocities. For example, while the United States has domestic laws criminalizing genocide and war crimes, we still lack a crimes against humanity statute. And, we can exercise jurisdiction over war crimes only if the victim or the perpetrator is a U.S. person, which calls into question our compliance with the Geneva Conventions. Furthermore, our weak war crimes statute stands in stark contrast to our statutes criminalizing genocide, torture, a range of trafficking and terrorism crimes, and the use of child soldiers, which allow charges to be brought against individuals present, or found, in the United States. However, there was a hearing just this past September in our Senate, where reforms to our federal penal code were discussed. The Biden-Harris Administration has made clear that we would support a domestic crimes against humanity statute and the expansion of U.S. jurisdiction over war crimes.

I feel fortunate to be at the forefront of U.S. government efforts to making sure that those responsible for atrocities are held to account and that the United States plays its part in advancing the imperative of justice on behalf of victims and survivors.

The US and the ICC

Turning to the ICC, as you may be aware, the United States is not a State Party to the Rome Statute. We have signed the Rome Statute, but we have not ratified it. But, there are many ways that we can support the Rome Statute system and advance the work of the Court even as a non-party state.

Importantly, early on, the Biden-Harris administration launched a reset of the United States’ relationship with the ICC to acknowledge and address previous missteps. We started by terminating the sanctions previously imposed on Court personnel, recognizing that these measures were inappropriate and should never have been pursued. At last year’s Assembly of States Parties, the United States affirmed the Court’s role as an important part of the multilateral system in the fight against impunity. When I assumed my post as Ambassador-at-Large for Global Criminal Justice in March, I inherited a clear mandate to continue to rebuild the US-ICC relationship.

Throughout this administration, the United States has been engaging with all ICC stakeholders in an effort to help the ICC achieve its core mission of serving as a court of last resort in punishing and deterring atrocity crimes. On my first international trip, I undertook an itinerary of great symbolic import, visiting Nuremberg, Geneva, Brussels, and The Hague to convey the Biden Administration’s new approach toward international justice efforts and help to rebuild relationships with the Court and ASP members. In visits to The Hague, I have met with all ICC organs to express U.S. support for their work, announce our willingness to engage, and solicit ideas for how the United States could advance the Court’s work.

Prosecutor Khan conducted his first official visit to the United States in April to meet with senior members of the Administration, situation country experts in the State Department, and members of Congress and their staff regarding our shared interest in justice. Additionally, this fall, a member of my team attended a study tour recently organized by the Irish Embassy in the Hague to observe the important work of the Trust Fund for Victims in Northern Uganda. As we are convened here today, a bipartisan group of U.S. Senators and their staff are undertaking a historic trip to The Hague to better understand the work of the Court, and its various organs, and to explore how the United States might assist in their work.

We continue to look for ways to assist and support the Court’s prosecutions in a range of situations—including in Darfur, the Central African Republic, Uganda, Libya, Venezuela—and we welcomed the latest investigation to be opened in Ukraine. U.S. actions in this regard include providing steady diplomatic support for the Court’s work in multilateral fora and in our bilateral relationships around the globe. For example, when it comes to the Darfur cases, the United States welcomed the opening of trial proceedings in the case against Ali Kushayb, a former Janjaweed commander. This is the first trial against any senior leader for crimes committed by the Omar al-Bashir regime and government-supported forces following the genocide and other atrocities in Darfur. We continue to urge the Sudanese authorities to comply with their international legal obligations to cooperate fully with, and provide any necessary assistance to, the Court in the Darfur situation, including by permitting ICC teams to travel within the country, cooperating with requests for evidence and other information and assistance, offering unimpeded access to key witnesses, and facilitating an enhanced ICC field presence. We must all insist that those who are subject to arrest warrants by the ICC, including in the Sudan cases, face justice.

As we are in Argentina, I would note the strong contribution by states in this hemisphere to international justice efforts. In June, I represented the United States at the OAS Working Meeting to Strengthen Cooperation with the ICC, in which I announced U.S. support for the Court’s investigation in Venezuela and acknowledged that the region had pioneered many of the mechanisms that comprise the transitional justice tool kit and that are now employed around the world to address legacies of authoritarianism, state repression, and mass violence. The United States has also contemplated potential new referrals by the Security Council to the ICC. As Secretary Blinken announced in a statement marking the 5-year anniversary of the 2017 genocide in Burma against Rohingya, the United States would support a U.N. Security Council referral of the situation in Burma to the ICC, in line with the U.N. Security Council’s mandate to promote international peace and security.

To support the execution of ICC warrants for arrest, we are reinvigorating the War Crimes Rewards Program, which my office administers. This program offers rewards for information leading to the arrest, transfer or conviction of designated individuals who stand accused of committing war crimes, crimes against humanity, or genocide. We have revitalized our campaign with respect to Joseph Kony, the messianic head of the LRA, and the 4 remaining Rwandan fugitives from justice before the International Residual Mechanism for Criminal Tribunals. The War Crimes Rewards Program is a valuable tool for seeking to bring to justice those responsible for atrocity crimes, and the Department of State continues to evaluate all situations in which offering rewards might further the imperative of accountability.

Increasing the safety and wellbeing of witnesses is crucial to fostering a safe environment for others to testify and promote accountability globally. One of my priorities as Ambassador at Large for Global Criminal Justice is to focus on the protection of victims and witnesses, including “insider witnesses” who assist in the investigations and prosecutions of atrocities. In partnership with the ICC Registry, and the Argentine and Swiss embassies in The Hague, we will be holding a side event at the Assembly of State Parties to the International Criminal Court in The Hague in December examining ways in which the international community can better protect witnesses, including through the thorny issue of the relocation of insider witnesses who cooperate in investigations and prosecutions.

These are all examples of how a non-party state, such as the United States, can support the ICC and engage constructively with all actors—including parliamentarians such as yourself—who share the goal of ensuring that the ICC can deliver on its important mandate.

Many of you may be also wondering how the United States would view ratification of the Rome Statute by other countries. So let me state clearly: the United States respects the right of every country to join the ICC. This has been a position across multiple U.S. administrations. We recognize that ratification of any international treaty, including the Rome Statute, is the sovereign decision of all States. We respect those decisions. And, we are encouraged when states undertake commitments to promote justice and accountability for genocide, war crimes, and crimes against humanity. We wholeheartedly share these underlying values and objectives. While we have not made the decision ourselves to ratify the Rome Statute, and such a decision would require Congressional action, it would be a mistake to look to the ratification of a treaty as the sole test for our overarching commitment to accountability.

Conclusion

In conclusion, while there is much happening on the international justice realm, it only scratches the surface of the acute needs, and more must be done on the preventative side. Just as the Allies at the end of the Second World War ushered in a new era of accountability for the worst imaginable crimes, it now falls to us to ensure that those responsible for war crimes and other atrocities in Ukraine — and around the world — are held to account. We must work together to ensure that the principles of justice championed at Nuremberg are not only maintained but also strengthened.

As the world focuses on Ukraine, we cannot overlook the growing perception by many states, especially from the Global South, that all this concerted action stands as a stark exception to an inconsistent and uneven response to atrocities in many other parts of the world. We must engage seriously with these perceptions of bias, double standards, and selective justice. All of us here must redouble our efforts to rectifying this reality and work toward a more equitable distribution of justice for the commission of international crimes for all victims.

Thank you and I look forward to our discussion…