The shocking events of 9/11 provided fodder for the Bush administration's radical opposition to both the ICC and some of the provisions in the Geneva Conventions. Both were deemed incompatible with the "war on terrorism." After three years of hostility, Washington is now beginning to accept the ICC out of sheer pragmatism. This discrete, but nonetheless real change in attitude does not apply to the Geneva Conventions, judging from the law passed by the Senate on September 28 that strips "illegal combatants" of their habeas corpus rights if they are held outside the US and reduces their protection against ill treatment. After having clashed with the ICC like no other permanent member of the UN Security Council, the US has taken on a new tone. During a conference organized in September by the International Institute of Humanitarian Law in San Remo, John Bellinger, legal advisor to Secretary of State Condoleeza Rice, said that the quarrel between Washington and the Europeans over the ICC "had obscured" other areas of agreement. Wanting to show the American government's "pragmatism", he stressed that the White House "did not hesitate for a moment to agree to hold the trial of former Liberian president Charles Taylor at the ICC premises, since he will be tried by the Special Court for Sierra Leone." The day before, as if to support the American administration's efforts to normalize relations in the are of international law, President Bush officially recognized during a speech to the nation on September 6, that the CIA had secretly detained 14 Al Qaeda officials who were later transferred to Guantanamo and said that representatives of the International Committee of the Red Cross, the well-known guardian of the Geneva Conventions, could visit these detainees.

Counterproductive "jihad"

There have, in fact, been signs of this normalization vis-à-vis the ICC since 2005. This was not a sudden conversion, but rather a realization that Washington's "jihad" against the ICC, to use an expression by Human Rights Watch, had finally become counter-productive. On the one hand, the Hague-based court was in no way a threat to the United States and on the other hand, this symbolic clash had crystallized the disastrous image of a unilateralist super power wanting to shield itself from international law. The ensuing shift in the Bush administration position was also due to the fact that the "war on terror" was a long way from producing the desired strategic and political results. The United States had not defeated "the terrorists;" the "great Middle East" never came into being; the American army is bogged down in Afghanistan and Iraq; and the Abu Ghraib prison scandal, the Guantanamo "no law" zones and the CIA secret prisons had tarnished the US's image as a champion of human rights, shocked the Muslim world and solidified opposition against the US, even among its historic allies. On June 29, 2006, the US Supreme Court struck down the military commissions established by the government to try the Guantanamo detainees. The country's highest court felt that these commissions violated both the Geneva Conventions and the American military code [IJT-50].

Five years after 9/11, the times seemed to have changed when in a memo addressed to the president, White House counsel Alberto Gonzales described the Geneva Conventions as "obsolete." Gone also is the time when, driven by a right wing pressured by the demon of hubris, the American Congress passed a law in May 2002 authorizing military intervention in The Hague in order to liberate any American prisoners who may be in the clutches of the despised ICC. Without the Bush administration blowing its own trumpet, the change in policy is noteworthy.

One of the first acts stemming from this change occurred precisely within the UN Security Council. On March 31, 2005, American ambassador John Bolton, the very same person who had signed a letter on May 6, 2002 announcing that the US was "un-signing" the treaty establishing the ICC, did not veto when members of the Council proposed that the cases of crimes against humanity committed in Darfur be referred to the International Criminal Court. Granted, the American position had become untenable. How could the US denounce the mass crimes that even it qualified as "genocide" and at the same time, refuse to let the court take over the matter [IJT-36-49]? But even if it was the result of an impasse, the abstaining vote on March 31 marked a turning point. The United States quickly renounced its push for sanctions against States that refused to sign a bilateral agreement guaranteeing that no American citizen would be extradited to the ICC. And in the past few months, at least two other events have illustrated the American policy shift.

Strategies less ideological than geopolical

According to Bellinger, in the case of transferring Charles Taylor to The Hague [IJT-44-45-49], Condoleezza Rice herself contacted Nigerian president Obasanjo, the British government and the Dutch authorities to organize the transfer of Taylor from Nigeria to a British prison until he goes to trial in The Hague. Thus, after having fought it with uncommon relentlessness, Washington is now indirectly legitimizing the ICC. Even more spectacular - at the beginning of July, the American ambassador to Uganda publicly announced his support for the ICC prosecutor's indictments against the five top leaders of the Lord's Resistance Army (LRA), even though Ugandan president Yoweri Museveni, an otherwise faithful US ally, has stated that he is contemplating annulling the arrest warrants and granting amnesty. Of course, the American diplomat's position can also be explained by the desire to put pressure on the Sudanese government. Every shift by the Bush administration to a less ideological stance can undoubtedly be explained by geopolitical considerations. Nevertheless, this new "pragmatism" that Bellinger referred to in San Remo is indicative of the fact that the American government was rethinking the high political price that it was paying by clashing with the ICC.

Given its power and role in the world, the US is even more exposed than others to having its policies scrutinized under the lens of legal principles. Traditionally, the US has always encouraged a normative process even if for strategic reasons it refrains from ratifying certain treaties. President Clinton was very careful not to initiate the process to ratify the ICC statutes, which he signed just before he left office. And yet he was also the architecture of the post-Cold War penal revolution. In so doing, he was making a long-standing political commitment on behalf of the United States.

In essence, the US has always been the primary, undeniable player in international justice. This is an historic, political and financial reality all in one, with roots in the US's strong affiliation with the law. Following WW2, it was the Americans who imposed the Nuremburg military tribunal on the British and Soviets who were more in favor of expeditious punishment for the former Nazi leaders. After the Cold War, it was the US that pushed for the creation of the two ad hoc tribunals to try the perpetrators of crimes in the former Yugoslavia and in Rwanda. A few years later, after having pointed out with just cause the limits and shortcomings of these tribunals - their high cost, judicial inefficiency, distant and abstract relationship with the societies where the crimes occurred - the Americans are still the driving force behind the Special Court for Sierra Leone and behind the War Crimes Chamber in Bosnia, the famous "mixed" national-international models [IJT-27-31]. Now, the US is also supporting the Extraordinary Chambers in Cambodia, which was established to try a handful of former Khmer Rouge leaders.

500 million dollars spent in 13 years on international
and mixed tribunals

Here is the paradox: the country that has been the ICC's staunchest opponent since its inception is also the country without which the international criminal justice revolution could have never occurred and would have never had the financial resources to achieve its ambitions. Since 1993, the United States has in fact spent 500 million dollars on the international and "mixed" tribunals. Today, the Bush administration is no longer opposing the ICC. Unlike its opposition to applying the Geneva Conventions, the government's active hostility toward the Court was never anything more than symbolic. Ironically, the US seems to have realized now that the Court's actions can actually serve its interests from time to time. Four years after its creation, the International Criminal Court (ICC) is recognized by over one hundred States with the exception of three pillars of the UN Security Council: the United States, Russia and China. However, the most powerful states have continued to influence the Court's ability to act, and the touchstone of the prosecutor's strategy has been to seek the approval of the most influential diplomatic players. The Security Council, which played a clear role in the Darfur case *IJT-49+ and a telling role in the Côte d'Ivoire case *IJT-52+, now seems poised to take on an even bigger role. This is a first in a series of IJT articles that will analyze the positions of the Security Council's five permanent members.