Today’s visit to the International Criminal Court (The Hague, Netherlands) by U.S. war crimes ambassador Stephen Rapp was indeed eventful (See Part I), and many had high hopes this appearance would mark the USA’s full-fledged entry into the ICC.

So did we ratify the Rome Treaty? Agree to recognize the legitimacy of the international criminal court (and its authority over the acts of the USA)? Consent to the jurisdiction of a global war crimes tribunal? Ehhh….No, no, and heck no.

Instead, Rapp discussed how the USA is committed to persecuting those who commit international crimes against humanity, by working together with other foreign states and the United Nations Security Council. Rapp said the decision to prosecute a crime of aggression should rest with the Security Council – where, by the way, the United States has veto power along with Britain, Russia, China and France. Previously, the U.S. worked with the Security Council to call upon the ICC to intervene against the acts of genocide in the Darfur region of Sudan, which resulted in the arrest warrant for Sudanese President Omar al-Bashir last March.

But all in all, everyone’s in agreement, right? The bad guys who commit international crimes against humanity will still have to answer for their actions, right? Well, yes – sort of.

The member countries of the ICC are like brothers in a fraternity – members who freely associate as equals for a mutually beneficial purpose, who have paid their annual dues and at times, subjected themselves to a lengthy and cumbersome pledging process. And in this instance the USA is a bit like the independent friend, the one who associates with all of the members and reaps the same social benefits as the fraternity brothers, but managed to avoid paying any dues or complying with the same pledging requirements as the rest of the group.

The USA’s reluctance to ratify the Rome Treaty is partly due to fears the ICC would become a forum for politically-motivated criminal trials, brought about to prosecute troops involved in unpopular wars. Or in other words, the USA doesn’t want to officially join for fear of being brutally hazed.

Nevertheless, the presence of U.S. war crimes ambassador Rapp represents a softening of the USA’s previously icy relationship with the ICC. Rapp himself served as a prosecutor at the United Nations Rwanda tribunal and as chief prosecutor at the Special Court of Justice for Sierra Leone.

So for now, the USA is embracing its new-found “observer” status at the ICC, but American ratification of the Rome Treaty will likely hinge on the future success- or failure – of two very unpopular wars in Iraq and Afghanistan.

See also Part I at bdhlaw.net