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Obama White House Will Not Seek ICC Membership

Late last month, as reported by the Jurist (at Pittburgh Law) and discussed at, the White House will not seek ICC membership for the United States. While many feel that the United States plays a critical role in strengthening and enforcing international criminal law, there is concern that the benefits of membership would be outweighed by political challenges. During his 2008 campaign for the White House, Obama had promised that the United States would reexamine its policy regarding ICC membership. Although this promise appeared to be a nod to progressives, the promise was easy to fulfill, as this reexamination has occurred, and will not lead to a major change in US policy.

The national security impact of such a decision, at least as WH officials frame the issue, would be far greater if the US were to seek membership instead of avoiding it. Policymakers have indicated their concern that US officials would be the targets of ICC prosecution – a fear that may only have been strengthened by suits brought in Europe against former Bush administration officials. Although some of the persons named in these suits as defendants (e.g., John Yoo, Jay Bybee, Donald Rumsfeld, Alberto Gonzales) are considered by many to be far more controversial than any current Obama WH officials, this is not enough to assuage current fears.

Even if general opposition to ICC membership were not an issue, political pressures would likely cause the Obama administration to tread slowly. A recent Financial Times article shows that WH Chief of Staff Rahm Emanuel pushed back on the closure of Guantanamo, feeling that this nod to the Democratic base would scuttle efforts on health care legislation. Setting aside any assessment of the wisdom of Emanuel’s calculation, this shows that the White House will be more risk-averse in foreign policy and security matters. With the 2010 midterm elections approaching, there is little electoral benefit to ICC membership, especially if it may enable political opponents to accuse the White House of risking the prosecution of national security officials.


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