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Although the US signed the ICC Statute in December
2000, the Bush Administration opposed it because:
The US claimed that the ICC potentially
could investigate and try US citizens without US consent
even though the US is not a party to the ICC Statute.
Because the ICC Statute has jurisdiction to investigate
and prosecute only individuals, not governments, long standing
principles of criminal law influence how the Court will
work. One of those principles is that an individual of any
nationality who commits a crime on a state's territory can
be prosecuted by that state -- without the consent of his
or her respective government.
American citizens are frequently prosecuted in the courts
of foreign countries for crimes they are alleged to have
committed on foreign territory, without any requirement
to obtain US consent for those prosecutions. US courts
likewise prosecute foreign nationals who allegedly commit
crimes on US territory without seeking the consent of
their home state.
By ratifying the ICC Statute or signing a declaration
for ICC jurisdiction in a particular situation, a state
delegates to the ICC its existing and continuing right
under international law, and its own domestic law, to
investigate, and if warranted, prosecute, any individual
of any nationality who is alleged to have committed an
atrocity crime on its territory. This legal power over
the foreign national exists regardless of the consent
or interests of his or her government. Legal arguments
disputing this application of international criminal law
have not proven convincing to most governments.
The US says that the Court had
too much unchecked power and feared that its prosecutor would
be uncontrollable. However, the ICC has many checks
and balances in its Statute that limit the authority of
the prosecutor and judges. For example:
- The Prosecutor cannot pursue an investigation without
the approval of at least two judges.
- The judges, the Prosecutor, or an accused can ask
that either a judge or the prosecutor be disqualified
if there are doubts about his or her impartiality.
- An independent defense unit will be a watchdog against
prosecutorial and judicial abuse.
- No two judges may be from the same state, and, given
the pattern of ratification, most of the 18 judges will
be from countries that are America's allies and friends.
- The Prosecutor must immediately notify a suspect's
state of nationality about an impending investigation.
- A state can decide to conduct its own investigation
of a citizen suspected of ICC crimes and thus stop the
Prosecutor from acting.
- The Assembly of States Parties, made up of member
states, has ultimate oversight authority over the Court.
For example, if a judge or the Prosecutor acts inappropriately,
the Assembly can remove him or her.
Additional safeguards include:
- The UN Security Council can prevent the Court from
proceeding with specified investigations or prosecutions
for a 12-month period, and can renew that request indefinitely.
- A state can withhold, or choose to negotiate protected
disclosure of, any information that it feels would prejudice
its national security interests.
The US said that the ICC could
investigate and prosecute US leaders for the "crime of aggression"
(that is, the unlawful use of force by one state against
another, for example, Iraq's invasion of Kuwait in 1990).
However, until the Assembly of States Parties can agree
on an actionable definition for this crime (which under
the terms of the ICC Statute cannot occur for at least seven
years) and the Statute is amended by the
states parties to include this definition, the Court has
no authority to charge any individual with this crime. If
the US were to join the Court, it could decide not to be bound
by the crime of aggression provision and thus shield its leaders
and indeed all of its citizens from being charged with aggression.
Click here
to read the Bush Administration's last statement in the
ICC negotiations, providing its views on the crime of aggression.
The US argued that the Court's
very existence threatens US sovereignty. However, the
Court will not judge the actions of states or governments,
but only persons. Moreover, like any other treaty, the ICC
Statute does not obligate or impose duties on any state
that is not a party to the treaty. States have no obligation
to cooperate with the Court unless they have chosen to exercise
their sovereign right to ratify the Court's Statute. Thus,
until the US chooses to ratify the ICC Statute, the Court
will not be able to gain custody of US citizens who remain
in the United States, and the US will have no obligation
to transfer them to the Court.
The US feared that the Court
would be politically motivated against US leaders and soldiers.
The Court can only investigate the designated types of very
serious crimes of high magnitude that fall within the Court's
jurisdiction -- crimes that would never conceivably be authorized
as part of any military strategy by the US armed forces.
Nonetheless, the Bush Administration argued that there would always be the
possibility of politically motivated charges being lodged
against US leaders and soldiers. However, the ICC Statute
has many safeguards, most introduced by US negotiators,
to thwart politically motivated charges and thus maintain
the integrity of the Court. One of the primary safeguards
is the power of the US, even as a non-party to the Court,
to preempt the Court with its own national investigation
of any such charges.
In spite of the safeguards, if the Court were to succumb
to politically motivated charges lacking any legal merit,
its own future, particularly its financial future, would
be at great jeopardy as states that are members of the
Court realize that they too could be subjected to such
unwarranted actions.
Further, states that have joined the ICC are in large
part America's allies and friends. Aggressive and rogue
regimes would be at high risk of their leaders being prosecuted
if they were to join the ICC. For example, if Iraq were
to join the ICC, the Court then would be able to prosecute
Saddam Hussein if his forces continued to commit crimes
against humanity in the southern marshes of Iraq.
Finally, the ICC does not have a police force. Its power
will depend entirely on the willingness of its members
and the Security Council to enforce its decisions. The
ICC will quickly lose credibility if it acts illegitimately.
The US said that it would prefer
to support trials in the country where the atrocity took
place. The founders of the ICC support this view, which
is why they made it a court of last resort. Significantly,
in joining the Court, many countries are adopting laws that
strengthen their ability to prosecute war criminals themselves.
The existence of the ICC also will help to strengthen states'
will to act domestically, because if they do not, the ICC
may have jurisdiction in a case and act on it.
History shows that national courts are frequently unable
or unwilling to prosecute these types of crimes. Often
atrocities arise out of the disintegration of states and
the institutions of law and order. And even states that
are capable of trying the accused themselves might occasionally
prefer to avoid domestic turmoil by delegating such high-profile
cases to an international court. For instance, Sierra
Leone has said that:
The result of this request [for a Special Court
for Sierra Leone] is Resolution 1315 of the Security Council.
The point here is that if the International Criminal Court
had begun to function, Sierra Leone would not have requested
the setting up of a Special Court. The perpetrators of
those heinous crimes committed in my country, would have
been handed to the Jurisdiction of the Court. Read
the full text.
The US had constitutional concerns
about the ICC Statute, particularly with the due process
rights accorded defendants. However, the ICC
Statute contains the due process rights found in the US
Constitution and now well recognized in international
standards of due process, with the exception of the American
right to jury trial.
In the negotiations, the US accepted the absence of jury
trial because civil law systems, which formed the large
majority of states negotiating the ICC Statute, do not
have jury trials and because it actually is extremely
impractical to empanel a jury of peers from the international
community to pass judgment on the crimes and defendants
of the ICC. Indeed, just as the ad hoc tribunals for the
former Yugoslavia and for Rwanda rely on panels of experienced
judges, so too would the ICC require the expertise and
integrity of judges to examine these complex crimes. Any
potential American defendant, as unlikely as that might
be, would doubtless prefer expert judges to rule on his
or her conduct than a cross-section of foreign nationals
drawn from around the world. There is a real difference
between an international trial and a domestic trial for
these purposes.
In any event, US service members do not enjoy a constitutional
right to jury trial under US law. Also, pursuant to the
many extradition treaties to which the US is a party,
the US may, and occasionally does, extradite a US citizen
to foreign courts that lack the right to jury trial and
other due process rights. The ICC's procedures are more
analogous to US law than perhaps any other state's legal
system, so it would be more advantageous for an American
citizen to be tried before the ICC, if that unlikely event
ever were to occur, than in most foreign courts.
The results of the Bush Administration's policy review of
the United States position on the ICC were announced by Under
Secretary Marc Grossman at the Center for Strategic and International
Studies on May 6, 2002. As expected, the Administration took
the unprecedented act of suspending its signature on the Rome
Statute for the ICC by informing the Secretary General that
that the US recognizes no obligations toward the Statute and
would like its intention not to become a party reflected in
the UN depository's status list. The US believes that with
this action it has relieved itself of any responsibility not
to defeat the object and purpose of the treaty and has made
unmistakably clear its intention not to ratify the Rome Statute.
It is understood that the US could reinstate its signature of
the Rome Statute by sending a note to the UN Secretary-General
declaring the US intent to assume the obligation of a signatory.
Click here to read AMICC's analysis of the status
of the US signature.
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John
Bolton, Under Secretary of State for Arms Control and International Security, Letter to the UN Secretary-General
informing him, as treaty depository, of the suspension of the US signature , May 6, 2002 |
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Marc Grossman, Under Secretary for Political Affairs, "American Foreign Policy and the International Criminal Court," Remarks to the Center for Strategic and International Studies, May 6, 2002 |
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Donald Rumsfeld, Secretary
of Defense, Statement on the ICC, May 6, 2002 |
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Pierre Prosper, Ambassador-at-Large for War Crimes Issues, Press briefing to foreign correspondents
regarding the US signature renunciation, May 6, 2002 |
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Demarche
on the US Government Policy on the International Criminal
Court from Secretary of State to Ambassadors |
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Richard Boucher, State
Department Spokesman, Press briefing, May 6, 2002 |
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United
States Mission to the OSCE Statement on the International
Criminal Court, Chargé d'Affaires
Douglas A. Davidson to the Permanent Council, Vienna, May
16, 2002 |
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AMICC's Analysis of the Status of the US Signature of the Rome Statute of the International Criminal Court, by Aurélie Coppin, September 11, 2008 |
Subsequent to the May 6, 2002 ICC policy announcement by the Bush
Administration that it was suspending the US signature on
the Statute, the administration has said that:
- It would continue to have a leadership role in promoting
international justice, but would devote its resources to
supporting domestic or combined domestic/international tribunals
such as the Special Court in Sierra Leone, and as a last
resort, to the creation of ad hoc courts by the Security
Council.
- It planned to amend federal law to expand US ability to
initiate domestic prosecutions.
- It planned to actively negotiate bilateral non-surrender
(so-called Article 98(2)) agreements "with every country
in the world, regardless of whether they have signed or
ratified the ICC, regardless of whether they intend to in
the future."
- It "will regard as illegitimate any attempt by the court
or state parties to the treaty to assert the ICC's jurisdiction
over American citizens" and "will taken the actions necessary
to ensure that [its] efforts to meet [its] global security
commitments and protect Americans are not impaired by the
potential for investigations, inquiry, or prosecution by
the International Criminal Court, whose jurisdiction does
not extend to Americans and which [it does] not accept."
- It will "respect the right of other states to be part
of the ICC" but "they in turn must respect [its] decision
not to be bound by jurisdictional claims to which [it] has
not consented.
- Ambassador-at-Large for War Crimes Issues Pierre Prosper said that the US had not ruled
out the possibility that it would allow the Security Council
to refer cases to the Court in the US interest,
but he also said that that "the ICC should not expect
any support or cooperation from the United States government."
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"US
Policy Regarding the International Criminal Court," Jennifer
Elsea, Legislative Attorney, American Law Division, Congressional
Research Service, September 3, 2002 |
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Statement
of the U.S. Embassy, The International
Criminal Court & Reaction to the American Servicemembers'
Protection Act, June 12, 2002 |
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US
Department of State Fact Sheet: "The International Criminal
Court", Office of War Crimes Issues, May 6, 2002 |
On March 31, 2005 the Security Council passed Resolution 1593
referring the situation in Darfur, Sudan to the ICC. Four Security
Council members - the United States, Algeria, Brazil and China -
abstained from the vote. In explaining its vote, the US stated
that it did not veto the referral due to the need of the
international community to work together to end the impunity in
Sudan. While the Resolution provided for the protection of US
nationals from investigation or prosecution and stated that the UN
would bear none of the costs associated with the referral, the US
abstention marked a major shift in practice away from its overt
antagonism against the Court.
Following the Security Council referral, the Bush Administration
continued to signal acceptance of the Court, at least in the
context of Darfur. In May 2005, US Deputy Secretary of State
Robert Zoellick stated
in a briefing on Sudan that the role of the ICC in Sudan sends "a
signal about accountability" and is "a useful deterrence against
others and allows us to emphasize a tool about the need to stop
violence." In November 2005, Zoellick stated
that while the ICC Prosecutor will try to focus on major
perpetrators in his investigations, he recognized that for the
process of accountability to take hold, Sudanese action must be
taken. Also in November 2005, US Assistant Secretary of State for
African Affairs Jendayi Frazer told
the House International Relations Committee "that if the ICC
requires assistance, the United States stands ready for any
assistance … because we don't want to see impunity for any of
these actors." In July 2008, the State Department acknowledged that it
was considering an information request from the ICC.
In June 2006, US Department of State Legal Adviser John B.
Bellinger III acknowledged in a Wall Street Journal interview
that the ICC "has a role to play in the overall system of
international justice." In April 2008, at an ICC conference in Chicago,
Bellinger spoke about
the past, present and future approach of the United States
toward the ICC. It was the most far-reaching statement on
US-ICC policy by a high-ranking member of the Bush Administration
since Under Secretary of State Marc Grossman announced the official
US policy of disengagement on May 6, 2002.
Bellinger’s remarks purported to
cover the history of US engagement with (and disengagement from) the ICC,
suggested that the next administration’s approach to the ICC would follow the
"straight line" of the policies pursued by the Clinton and Bush administrations,
and laid out a number of factors that would shape the US-ICC relationship,
including defining the crime of aggression.
Click here to read
AMICC's analysis of Bellinger's remarks.
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AMICC
factsheet: Chronology of US Opposition to the International Criminal Court: From 'Signature Suspension' to Immunity Agreements to Darfur,
March 13, 2009 |
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Statements regarding US-ICC Cooperation, March 20, 2009 |
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John B. Bellinger III, Legal Adviser, US Department of State, Remarks at the Fletcher School of Law and Diplomacy, Medford, Massachusetts, November 14, 2008 |
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John B. Bellinger III, Legal Adviser, US Department of State, Remarks to the DePaul University College of Law, Chicago, Illinois, April 25, 2008
AMICC's analysis |
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John B. Bellinger III, Legal Adviser, US Department of State, Lecture at World Legal Forum, International Court of Justice, The Hague, The Netherlands, December 10, 2007 |
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John B. Bellinger III, Legal Adviser, US Department of State, Remarks at the 29th Round Table on Current Problems of International Humanitarian Law, San Remo, Italy, September 8, 2006 |
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