Global Policy Forum

Will the ICC's First Indictment Inspire Détente between the Bush Administration and the World Court?

Joseph Kony is a lot of things to a lot of people. To his followers in the Lord's Resistance Army (LRA), he is God-like, with mystical powers that render him immortal. To the president of Uganda, he is a murderous gadfly who has been terrorizing the population of the northern provinces for nearly two decades. To the kidnapped children that constitute the rank and file of his army, he is a serial rapist and murderer. And to the U.S. State Department, he is the leader of a terrorist group.

Kony's newest designation, however, is likely to provide the most lasting epitaph for which history will remember him: the world's first fugitive-at-large from the International Criminal Court (ICC). At the same time, the indictment will draw attention to the Bush administration's troublesome policy toward the court, and perhaps force the President to release the executive branch from its prohibitions against cooperating with the court.

The ICC was established by treaty in 1998 to try the world's worst war criminals when local courts have neither the competence nor the will to do so. It first opened its doors in The Hague, Netherlands, in the summer of 2002, and has been operational ever since.

Kony's crimes in northern Uganda became the target of ICC investigations in January 2004, and although it's not yet been made official by the ICC, United Nations Under-Secretary General for Political Affairs Ibrahim Gambari told reporters last week that Kony had been under sealed indictment since last Tuesday. Once unsealed, that indictment is likely to detail Kony's role in a rebellion that has devastated the civilian population of northern Uganda for well over a decade. And though the ICC is legally permitted only to prosecute crimes that have occurred since 2002, prosecutor Luis Moreno Ocampo will have plenty of material to work with. The LRA is notorious for its gunpoint conscription of children as soldiers and sex slaves; those who refuse to serve in those roles are often mutilated in front of their families. And to this day, thousands of children, known as the "night commuters," travel from their rural homes to safer confines each evening to avoid abduction by the LRA.

For these reasons, and for the fact that Uganda's president, Yoweri Museveni, voluntarily ceded national jurisdiction over these crimes to the ICC, Kony is the ideal first target of an indictment. The politically savvy Ocampo, meanwhile, may have had the court's main detractors in the Bush administration in mind with this indictment: Museveni is an American ally, and the LRA consistently appears in State Department reports on foreign terrorist organizations.

And therein lies the rub that this indictment exposes: Now that an international man of dread has been indicted by the ICC, U.S. law makes it illegal for the United States to aid in his apprehension. The American Servicemembers Protection Act (ASPA), which was passed under Jesse Helms' watchful eye in 2002, prohibits any agency of the U.S. government from aiding the ICC. For the moment, it is illegal for the U.S. government to help the only court that is seeking the apprehension of a man the United States considers the leader of a terrorist group.

The Helms-ian logic that led to this absurd point is mirrored in the Bush administration's general approach to the court. In May 2002, fearing the prospect that Americans would be the target of politically motivated indictments, President Bush took the highly unusual step of "unsigning" President Clinton's name to the treaty that created the ICC. Since then, the administration has been on an unrelenting campaign to limit the court's jurisdiction throughout the world by strong-arming countries into signing bilateral immunity agreements with the United States. When those countries (which are often close allies) refuse to grant Americans immunity from the ICC in their territory, the United States routinely suspends military or economic assistance earmarked for combating more urgent transnational threats like drug trafficking.

In once instance shortly after the invasion of Iraq, this policy led to a thoroughly bizarre set of circumstances in which Latvia -- a card-carrying member of the "coalition of the willing" -- was denied military assistance for five months for refusing to sign a bilateral immunity agreement. To be sure, the ICC is not above critique. There is a lingering concern that ICC indictments might be detrimental to local efforts at peace and reconciliation, which has born some fruitful results in Uganda. Also, the Kony indictment highlights something about the court that its prosecutor would like to leave best unsaid: namely that the ICC is likely to only ever prosecute Africans (or, perhaps more charitably, citizens of the underdeveloped "global south.") The ICC, after all, only asserts its jurisdiction when national courts are unwilling or unable to effectively prosecute their own war criminals. In countries that lack a highly competent judiciary, this standard is inevitably lower. Further, in practice, it's a lot easier to muster international political will to prosecute warlords in isolated or failed states than it is to take on sitting governments in developed countries. As it is, the only ongoing ICC investigations aside from Uganda are in the Democratic Republic of Congo and Sudan.

Nonetheless, now that the ICC has issued an indictment, the United States is completely handcuffed in how it deals with Kony. If U.S. agencies come across intelligence as to his whereabouts, they would be prohibited from passing that on to the ICC. Furthermore, the State Department cannot even include Kony in its Rewards for Justice program, which was used to some success in apprehending war criminals in the former Yugoslavia for trial at the International Criminal Tribunal for the former Yugoslavia.

The president could sign a waiver that would release U.S. agencies from their absurd prohibition from helping in the apprehension of Kony. If he does, it would mark the second time that his administration tacitly endorsed the work of the ICC (if not the court itself). In February of this year, after a bitter dispute between the United States and the rest of the UN Security Council over the venue in which war crimes in Sudan ought to be tried, the United States relented on its opposition to the ICC and abstained from a vote that granted the ICC jurisdiction in Sudan.

Now, thanks to the Kony indictment, there is again room for détente between the United States and the ICC. The ball is in the president's court.