www.guardian.co.uk
Hillary Clinton has signalled a significant shift by the US in favour of the international criminal court, the world body that pursues war criminals but was strenuously opposed by the Bush administration.
In the most public expression of support yet from Barack Obama's administration, the US secretary of state expressed regret that the US has not yet joined the ICC.
The court, set up in 2002, has pursued dictators, mainly from Africa, who are alleged to have been engaged in genocide and other war crimes.
The US is at present not only not a member but government officials are theoretically banned from any engagement with the ICC whatsoever. An administration official predicted there will be increased US cooperation with the ICC but cautioned against expecting early entry.
Clinton, speaking at a public meeting in Kenya, the first leg of an African tour, indicated she hoped this would come sooner rather than later: "This is a great regret that we are not a signatory. I think we could have worked out some of the challenges that are raised concerning our membership. But that has not yet come to pass."
There is a divide in the Obama administration over entry. Clinton and some other senior figures at the White House and state department are passionately in favour, while others advocate caution, saying the president can afford not to rush membership and should wait to see how the ICC evolves.
Supporters of the ICC, including the UK, which is a member, have long advocated the US joining, saying this would immensely strengthen the body.
But President George Bush blocked American membership, expressing fears that US officials could be open to arrest for alleged war crimes. The Pentagon was concerned that US soldiers might end up in court in The Hague.
In December 2000, just before he left office, the former president Bill Clinton signed up to the ICC. But Bush two years later announced that the US would not be joining and a bill ratifying membership failed to get through Congress.
Noah Weisbord, who teaches law at Duke University and who worked in The Hague with the ICC's chief prosecutor Luis Moreno-Ocampo, expressed scepticism about whether the US would sign up within the next four years, but he said the US can help the ICC in other ways. This included help in gathering evidence and in isolating diplomatically leaders accused of war crimes as a precursor to bringing them to justice.
"Hilary Clinton's comment that she regrets that the US is not yet a signatory to the ICC is intriguing. I think it marks an important moment in the courtship between the US and the ICC. Not only has she voiced an aspiration, but she has explicitly stated that the US has been cooperating with the ICC," said Weisbord.
Barack Obama backed the ICC's decision earlier this year to issue an arrest warrant for the Sudanese president Omar al-Bashir in connection with the mass killings in Darfur.
This week Clinton criticised African leaders who continued to support Bashir instead of helping to bring him to justice. She said the US supported the charges and considered the ICC indictments against him as a clear message that his behaviour was outside accepted bounds.
The British government was coy yesterday about reacting to her comments. A Foreign Office spokesperson issued a short statement, without referring to the US: "The UK played a leading role in the negotiations and drafting of the Rome statute [which set up the ICC]. We believed then, and continue to do so, that the principles of the statute can help bring an end to the culture of impunity for the most serious crimes of concern to the international community."
During his election campaign, Obama's foreign policy advisers said he would on taking office consult with US military commanders and examine the track record of the court before reaching a decision.
But the advisers also said that membership would be difficult while the US was still in Iraq and the prison at Guantánamo Bay remained open.
Supporters of the ICC say the US is losing out by not being a member, citing discussion currently underway on adding the crime of aggression to the ICC's list. This is being shaped without US participation. A vote on the new crime is scheduled for May next year in Uganda.
So far 110 countries have ratified the Rome statute. Those who have not signed, apart from the US, include Russia, China and Israel.
Although the Bush administration frequently cited Pentagon concerns, US lawyers report that there appears to be a shift there too, with some senior military figures now viewing the court as a useful tool rather than a threat.
One of the most prestigious international legal bodies in the US, the American Society of International Law, published a report in March from its own taskforce, which unanimously recommended that the Obama administration officially engage with the ICC and give serious consideration to joining the court.
About the International Criminal Court
The ICC was set up in 2002 to ensure individuals engaged in genocide, war crimes and other atrocities would no longer escape with impunity.
Temporary ad hoc courts have been established in the past to deal with Nazi war crimes and more recently with ethnic cleansing in the Balkans and genocide in Rwanda. But the international court is a permanent one and is based in The Hague.
The creation of the ICC had long been lobbied for by human rights campaigners after watching a host of atrocities created round the world without any action being taken.
Its powers were not retrospective and it has only be able to tackle crimes alleged to have been committed after 1 July 2002.
So far the ICC has investigated or started the process of prosecution into crimes in Uganda, the Democratic Republic of Congo, the Central African Republic and Sudan. With regard to the latter, the ICC issued an arrest warrant for the Sudanese president Omar al-Bashir, over the mass killings in Darfur. But the limitations of the ICC have been exposed, with Bashir able to travel freely round Africa without being arrested.
The prosecutor can decide when to intervene, or can react to complaints against a state or individual or a request from the UN security council.
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