United States and the International Criminal Court
Encyclopedia
The United States
is not a member of the International Criminal Court
(ICC). The ICC is a permanent international criminal court, founded in 2002 by the Rome Statute to "bring to justice the perpetrators of the worst crimes known to humankind - war crimes, crimes against humanity, and genocide", especially when national courts are unable or unwilling to do so.
As of September 2011, 116 states are members of the court and 139 countries have signed but not ratified
the Rome Statute
. Other countries that have not signed or ratified the Rome Statute include India
, Indonesia
, and China
. On May 6, 2002, the United States, in a position shared with Israel
and Sudan
, signed the Rome Statute but formally withdrew its intent of ratification.
Positions in the United States concerning the ICC vary widely. The Clinton Administration signed the Rome Statute in 2000, but did not submit it for Senate ratification. The Bush Administration, the US administration at the time of the ICC's founding, stated that it would not join the ICC. The Obama Administration
has subsequently re-established a working relationship with the court.
originally signed the Rome Statute of the International Criminal Court
in 2000, but stated that he would not submit it to the Senate for advice and consent for ratification
until the U.S. government had a chance to assess the functioning of the court. He nonetheless supported the proposed role of the ICC and its objectives:
After the Rome Statute reached the requisite 60 ratifications in 2002, President George W. Bush
's Administration sent a note to the UN Secretary General on May 6, 2002. The note suspended the US's signature and informed the Secretary General that the US recognized no obligation toward the Rome Statute. In addition, the US stated that its intention to not become a member state should be reflected in the UN depositry's list. This is because signatories have an obligation not to undermine the object and purpose of a treaty. The US could engage with the Court by reactivating its signature to the Rome Statute by submitting a letter to the UN Secretary General.
A treaty that is not ratified is not legally binding. ‘Signature’ of a treaty provides a preliminary endorsement. Signing does not create a binding legal obligation but does demonstrate the State’s intention to examine the treaty domestically and consider ratifying it. It does oblige the State to refrain from acts that would counter or undermine the treaty’s objective and purpose.
of a nation only when the treaty has been ratified
. In the US, the constitution gives the President power to negotiate treaties under Article II. The President must then submit a treaty to the Senate for advice and consent for ratification. The Senate must approve the treaty by a two-thirds majority before it can take effect. The Senate may submit amendments, reservations, or explanations to the President regarding the treaty. Once ratified, treaties are generally self-executing—at least from the perspective of other nations—as the ratifying state fully binds itself to the treaty as a matter of the public international law and of national honor and good faith
. In the US, however, a treaty does not immediately become effective as US domestic law upon entry into force, which occurs only if the treaty is self-executing. In Foster v. Neilson 27 U.S. 253 (1829), the US Supreme Court explained that treaties are self-executing if accompanying legislation is not necessary for implementation. A treaty requiring additional action is not self-executing; it would create an international obligation for the US, but would have no effect on domestic law. (Id. 314-315).
However, entrenched
provisions of municipal law—such as the constitution of a state party or other fundamental laws—may cause the treaty to not be fully executable in municipal law if it conflicts with those entrenched provisions. Article VI of the US Constitution contains the supremacy clause, which gives all treaties ratified in accordance with the constitution the effect of federal law. In the US, if a treaty is found to be self-executing it will preempt inconsistent state law and previous legislation. This issue was addressed by the US Supreme Court in Ware v. Hylton 3 U.S. 199 (1796), where it found that the treaty at issue was self-executing and struck down an inconsistent state law. (Id. 284). However, a treaty cannot preempt the Constitution itself (as held in the 1957 US Supreme Court case, Reid v. Covert
). Thus, in order for a treaty to be executable within the United States, it might be necessary for the Constitution to be amended. Otherwise, treaty provisions could potentially be found unconstitutional and consequently struck down by the courts. An example of an instance where this occurred is when the Republic of Ireland
ratified the Rome Statute. The Irish government's response was to hold a national referendum on the issue in 2001, after which the government amended their Constitution to bring it into effect. The question of whether the Rome Statute would require amendments to the US Constitution to be brought into effect is a matter of debate within the United States. However, many scholars and experts believe that the Rome Statute is compatible with the US Constitution.
, (1969), which the US has not ratified, according to which states that have signed but not ratified treaties are considered bound nonetheless not to contravene them. The act did not pass in 2001, although weaker legislation preventing cooperation with of funding to the Court was approved.
The Bush administration's policies toward the ICC exceeded merely staying out of the Statute, and actively began seeking to guarantee that US citizens be immune to the Court and to thwart other states from acceding to the Stature without taking US concerns into account. The US vigorously pressed states to conclude agreements with the US that would guarantee its citizens immunity from the Court's jurisdiction, threatening to cut off aid to states that refused to agree.
However, Bush Administration officials tempered their previously strident opposition to the ICC in the Administration's second term (especially with the departure of John Bolton
from the Bush Administration). The United States did not oppose using the ICC to prosecute atrocities in Darfur
, as evidenced by the U.S. abstention on United Nations Security Council Resolution 1593
referring the Darfur situation to the ICC for prosecution. In a statement, the State Department's John Bellinger stated: “At least as a matter of policy, not only do we not oppose the ICC’s investigation and prosecutions in Sudan but we support its investigation and prosecution of those atrocities.”
In addition, the Congress of the United States, in a resolution, acknowledged the ICC's authority to prosecute war crimes in Darfur.
In response to a question from the Senate Foreign Relations Committee, Secretary of State Hillary Rodham Clinton
remarked that the US will end its “hostility” towards the Court. In addition, Susan Rice, US Ambassador to the United Nations, in her first address to the Security Council, expressed US support for the Court’s investigation in Sudan. These statements coupled with the removal of sanctions to the Bilateral Immunity agreements (BIAs) signaled a positive shift in the US cooperation with the Court. The Obama Administration has made no formal policy decision yet on the ICC or the status of the BIAs.
Recently, the Administration sent a large delegation drawn from all of main participants in policymaking on the ICC within the American government to the Review Conference in Kampala, Uganda in May and June 2010. The final outcome from Kampala included a successful assessment of the Rome Statute system of international justice, the announcement of numerous formal pledges by countries to assist the Court, and the adoption of amendments on war crimes and the crime of aggression. The US co-sponsored a side event with Norway and the Democratic Republic of the Congo (DRC) on building the capacity of the DRC’s judicial system to address atrocity crimes.
The US announced two pledges at Kampala, and was the only non-State Party to make a pledge. The US formally committed to building the legal capacity of certain countries to prosecute atrocity crimes themselves, and to assisting the ICC in its investigation and prosecution of leaders of the Lord’s Resistance Army (LRA) now wanted by the ICC.
The conference adopted two sets of amendments. The Administration believes that the outcome on both is in accord with important US interests. The Conference adopted a definition for the crime of aggression, the conditions under which it would exercise jurisdiction, and a roadmap for the eventual activation of jurisdiction after January 1, 2017. The US initially raised concerns about the definition, but accepted it after other countries agreed to attach a set of detailed understandings to the resolution adopting the amendments. Under the amendment the ICC will be, first, unable to prosecute individuals of a non-state party and second, state- parties will have the opportunity to opt-out of aggression jurisdiction if they so wish.”
Speaking about the past and future of US-ICC relations in light of the Review Conference, Legal Adviser Koh recently declared: “After 12 years, I think we have reset the default on the U.S. relationship with the Court from hostility to positive engagement. In this case, principled engagement worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill.”
Despite the Obama Administration's commitment to working with the ICC on prosecution of certain matters such as crimes committed by leaders of the LRA, a rebel group originating from Uganda, it has not stated an intention to rejoin the Rome Statute or submit the treaty to Senate ratification.
evidence is allowed; allegations of no right to a speedy trial
, a public trial
or reasonable bail
. Supporters of the ICC say that the ICC Statute contains the due process rights found in the US Constitution and now well recognized in international standards of due process in Article 67 Rome Statute, with the exception of the American right to jury trial
.
jury trial, i.e. "by an impartial jury of the State and district wherein the crime shall have been committed".
has said:
The US has adopted forms of war crimes and crimes against humanity within its military courts The military courts have jurisdiction over all military personnel abroad and any accompanying civilians. Further the US has adopted crimes of genocide within its domestic system and conscription of child soldiers.
claims that "United States participation in the ICC treaty regime would also be unconstitutional because it would allow the trial of American citizens for crimes committed on American soil, which are otherwise entirely within the judicial power of the United States. The Supreme Court has long held that only the courts of the United States, as established under the Constitution, can try such offenses."
This statement refers to several issues. The first is the trial of American citizens by the ICC and implies that the Court does not have the power to try Americans for crimes committed on U.S. territory. The second refers to due-process issues.
RenewAmerica claim that ratification by the United States
of the Rome Statute would require a constitutional amendment
, as was the case in other countries such as Ireland
. According to RenewAmerica, "Because the ICC is inconsistent with fundamental constitutional protections, the federal government is without authority to ratify the treaty absent a constitutional amendment."
Critics argue that because the US Constitution permits the creation of only one Supreme Court that participation with the International Criminal Court violates the US Constitution. However, the Court is not a creation of the US; instead, it functions internationally. Further, the US has participated in various international courts including the International Military Tribunals for the Far East, the Nuremberg Tribunal, and the tribunals for the former Yugoslavia and Rwanda.
The Congressional Research Service
's Report for Congress states the ICC is not "an instrumentality of the U.S.". Therefore, it does not threaten to supplant the Constitutional authority of the US Supreme Court.
(ASPA), which contained a number of provisions, including prohibitions on the United States providing military aid to countries which had ratified the treaty establishing the court; however, there were a number of exceptions to this, including NATO members, major non-NATO allies
, and countries which entered into an agreement with the United States not to hand over U.S. nationals to the Court (see Article 98 agreements below). ASPA also excluded any military aid that the U.S. President certified to be in the U.S. national interest. Limits on military assistance have been repealed, as outlined below.
In addition, ASPA contained provisions prohibiting U.S. co-operation with the Court, and permitting the President to authorize military force to free any U.S. military personnel held by the court, leading opponents to dub it "The Hague Invasion Act." The act was later modified to permit U.S. cooperation with the ICC when dealing with U.S. enemies. It has been argued that the act was a measure created to protect Americans from ICC jurisdiction or prosecution
On October 2, 2006 President Bush issued waivers of these same IMET prohibitions with respect to 21 nations. Foreign Military Funds (FMF) restricted under ASPA were not affected by the 2006 waivers or the ASPA amendment. On October 17, 2006 President Bush signed into law an amendment to ASPA as part of the John Warner
National Defense Authorization Act for Fiscal Year 2007 removing International Military Education and Training
(IMET) restrictions for all nations. On November 22, 2006 President George W. Bush issued ASPA waivers with respect to the Comoros
and Saint Kitts and Nevis
, followed by a similar waiver with respect to Montenegro
on August 31, 2007.
On January 28, 2008 President Bush signed into law an amendment to the American Servicemembers' Protection Act (ASPA) to eliminate restrictions on Foreign Military Financing (FMF) to nations unwilling to enter into Bilateral Immunity Agreements (BIAs) shielding US nationals from the jurisdiction of the ICC. Section 1212 of HR 4986 effectively gutted from ASPA all of the provisions which threaten nations with the loss of military assistance of any kind for refusing a BIA.
Committee on House Armed Services regarding the FY 2006 Budget, US Army General Bantz J. Craddock
, Commander of the US Southern Command, made strong statements on the impact of ASPA on military operations and cooperation in Latin America. He explains that ASPA is creating a void of contact that is being filled by other extra-hemispheric actors, including China. Vice Admiral Lowell Jacoby made similar statements during a hearing of the Senate Armed Services Committee. In addition, the Chairman of the Joint Chiefs of Staff
, Air Force General Richard Myers
testified at the Senate Appropriations Defense Subcommittee on April 27, 2005 that ASPA has reduced foreign troop training opportunities and hurt the government's ability to fight terrorism abroad as an "unintended consequence."
's "Nethercutt Amendment" to the Foreign Operations, Export Financing, and Related Programs Appropriations Act suspends Economic Support Fund assistance to ICC States Parties who refused bilateral immunity agreements (BIAs) with the US or were not provided a Presidential waiver. The funds affected support initiatives including peacekeeping, anti-terrorism measures, democracy-building and drug interdiction. The language of the amendment allowed presidential exemptions for NATO, MNNA (major non-NATO allies), and Millennium Fund countries.
The Nethercutt Amendment differed from former anti-ICC provisions the American Servicemembers' Protection Act (ASPA) by imposing economic aid cuts instead of military aid cuts. Cutting economic assistance is far a more damaging act because in many countries, it intended to bolster local economies instead of national defense. In addition, existing Status of Forces Agreements (SOFAs) and other bilateral agreements already provide full US jurisdiction over US personnel and officials serving abroad.
The appropriations bill containing the controversial amendments were adopted for FY 2005, FY 2006, and FY 2008. Congress did not pass a foreign operations appropriations bill or any other bill containing the Nethercutt provision for FY 2007. On December 17, 2007 the US Congress approved HR 2764, a comprehensive Consolidated Appropriations Act which reinstates the so-called Nethercutt provision cutting off Economic Support Funds (ESF) to nations unwilling to enter into Bilateral Immunity Agreements (BIAs) or so-called Article 98 Agreements shielding US nationals from the jurisdiction of the ICC.
President Bush signed the bill into law on December 26 and it became Public Law 110-161. However, by mid-2009 Congress had removed all the IMET and failed to renew the Nethercutt Amendment.
, said that the US proposal "flies in the face of treaty law", risked undermining the Rome Treaty setting up the court, and warned that it could end up discrediting the Security Council.
Initially, the United States sought to prevent prosecution of personnel on UN missions by any country except that of their nationality. The Security Council rejected that approach and the United States made use of a provision of the Rome Statute that allowed the Security Council to direct the ICC not exercise its jurisdiction over a certain matter for up to one year. The United States sought the Security Council to convey such a request to the ICC concerning personnel on United Nations peacekeeping and enforcement operations. Further, the US sought to have that request renewed automatically each year. (If renewed automatically each year, then another Security Council resolution would be required to cease the request, which the United States could then veto, which would effectively make the request permanent.) Court supporters argued that the Rome Statute requires the request to be valid it must be voted upon each year in the Security Council. Therefore,an automatically renewing request would violate the Statute. By international law, questions regarding the interpretation of the UN Charter may only be interpreted by the UN Security Council. The UN Charter requires that all UN members abide by the decisions of the Security Council, so only ICC members who are not also UN members are not bound.
Members of the Security Council opposed this request; however, they were increasingly concerned about the future of peacekeeping operations. The United Kingdom eventually negotiated a compromise, whereby the United States would be granted its request, but only for a period of one year. A new Security Council vote would be required in July each year for the exclusion of peacekeepers from ICC jurisdiction to be continued. All members of the Security Council eventually endorsed resolution United Nations Security Council Resolution 1422
.
NGO supporters of the Court, along with several countries not on the Security Council (including Canada and New Zealand), protested the legality of the resolution. The resolution was made under Chapter VII of the UN Charter, which requires a "threat to international peace or security" for the Security Council to act; ICC supporters have argued that a U.S. threat to veto peacekeeping operations does not constitute a threat to international peace or security. In such a case the UN Charter states that the Security Council will determine if the Security Council's actions conformed with the UN Charter.
A resolution to exempt citizens of the United States from jurisdiction of the ICC was renewed in 2003 by United Nations Security Council Resolution 1487
. However, the Security Council refused to renew the exemption again in 2004 after pictures emerged of US troops torturing and abusing Iraqi prisoners in Abu Ghraib
, and the US withdrew its demand.
Article 98 of the Rome Statute prohibits the Court from requesting assistance or the surrender of a person to the Court if to do so would require the state to "act inconsistently" with its obligations under international law or international agreements unless the state or the third-party state waives the immunity or grants cooperation. The US has interpreted this article to mean that its citizens cannot be transferred to the ICC by any state that has signed a bilateral agreement with the US prohibiting such a transfer, even if the state is a member of the Rome Statute. The US actively pressures states to conclude such so-called Article 98 or bilateral immunity agreements (BIAs). By Spring 2006, such agreements had been accepted by approximately one hundred governments and were under consideration by approximately eighteen more. The Bush Administration claimed that the BIAs were drafted out of concern that existing agreements--particularly the Status of Forces or Status of Mission Agreements (SOFAs or SOMAs)--did not sufficiently protect Americans from the jurisdiction of the International Criminal Court (ICC). According to the Coalition for the International Criminal Court
, 54 countries "rejected US efforts to sign BIAs despite unrelenting US pressure and the threat and actual loss of military assistance under the ASPA".
To date, approximately 102 BIA's have been signed. It is unclear how many of these are legally binding. Article 98 agreements were intended to prevent prosecution of any American citizen by the ICC. Romania
was one of the first countries to sign an Article 98 agreement with the United States. In response to Romania's action, the European Union requested that candidate countries not sign Article 98 agreements with the United States until the EU ministers had met to agree upon a common position.
In October 2002, the Council of the European Union adopted a common position, permitting member states to enter into Article 98 agreements with the United States, but only concerning U.S. military personnel, U.S. diplomatic or consular officials, and persons extradited, sent to their territories by the United States with their permission; not the general protection of U.S. nationals that the United States sought; furthermore the common position provided that any person protected from ICC prosecution by such agreements would have to be prosecuted by the United States. This was in agreement with the original position of the EU, that Article 98 agreements were allowed to cover these restricted classes of persons but could not cover all the citizens of a state.
Others argue that due to the patriation of the ICC into the territory of every state-party, the ICC has effectively become an domestic court of the sovereign state in question, and, as an internal affair of the state-party, exemption of Americans from the jurisdiction of the ICC would render U.S. citizens "above the law"--specifically the domestic law—of the state-party, giving them such rights as Europeans were once given under the "unequal treaties" with some developing countries. Still others believe that a State Party has simply given itself another option for the exercise of its sovereign right to deal legally as it wishes with persons who commit crimes on its territory.
The United States used bilateral diplomacy to persuade certain nations to sign these agreements. US law requires the suspension of military assistance and U.S. Economic Support Fund (ESF) aid to those States Parties which do not sign these agreements. The granting of such special favors is of course always subject to diplomacy.
In 2002, the United States passed a law cutting off military aid for 35 countries (among them nine European countries), under the terms of an amendment to the American Service-Members' Protection Act. ESF funding entails a wide range of governance programs including international counter-terrorism efforts, peace process programs, anti-drug trafficking initiatives, truth and reconciliation commissions, wheelchair distribution and HIV/AIDS education, among others.
On May 2, 2005, Angola
became the 100th country to sign a bilateral agreement with the United States under Article 98. Since then, there have been no additional signings of these agreements
In March 2006, Condoleezza Rice
admitted that the United States' position on Article 98 agreements was "sort of the same as shooting ourselves in the foot".
Until 2008 U.S. law required the cessation of such aid payments if a state was unwilling to sign the bilateral agreement (there are exceptions for NATO-members and allies such as Israel, Egypt, Australia and South Korea). However, these decisions were repealed in October 2006 and January 2008.
The United States cut certain forms of military and economic funding for several countries that had not signed bilateral Article 98 agreements. Countries who declined aid include Barbados, Bolivia, Brazil, Costa Rica, Ecuador, Mexico, Paraguay, Peru, Saint Vincent and the Grenadines, Trinidad and Tobago, Uruguay and Venezuela. Mali, Namibia, South Africa, Tanzania and Kenya publicly rejected signing Article 98 agreements in 2003, and subsequently saw their Overseas Development Aid funding cut by more than 89 million dollars.
In a 2005 poll of 1,182 Americans by the Chicago Council on Foreign Relations and the Program on International Policy Attitudes at the University of Maryland, 69% favored US participation in the Court.
Senator Barack Obama
, the current President of the United States of America, was asked the following question on a candidate questionnaire during the 2004 Senate race: "Should the United States ratify the ‘Rome Statute of the International Criminal Court’? If not, what concerns do you have that need to be resolved before you would support joining the court? Prior to ratification, what should the United States relationship with the Court be, particularly in regards to sharing intelligence, prosecuting war criminals, and referring cases to the UN Security Council?"
Senator Obama answered:
Senator John McCain
, the Republican presidential candidate in the 2008 elections, said on January 28, 2005:
McCain later added:
Senator Hillary Clinton, the current Secretary of State, said as a candidate in the 2008 Democratic presidential primaries on February 13, 2005:
Clinton later added:
Representative Ron Paul
, a Republican presidential candidate in the 2008 elections, said on April 8, 2002:
Bill Richardson, the Governor of New Mexico and another candidate for the 2008 Democratic Nomination said in 2007, as part of his nomination campaign:
Dennis Kucinich
, Democratic member of the United States House of Representatives
and a presidential candidate in the 2004 and 2008 elections, said on April 26, 2007:
John Edwards
the former Senator
and the Democratic Party
's Vice-Presidential candidate in 2004
called for America to be part of the court when campaigning for the 2008 Democratic Nomination. Edwards said that:
Benjamin B. Ferencz
, an investigator of Nazi war crime
s after World War II
and the Chief Prosecutor for the United States
Army at the Einsatzgruppen Trial
, one of the twelve military trials
held by the U.S. authorities at Nuremberg
, later became a vocal advocate of the establishment of an international rule of law
and of an International Criminal Court. In his first book published in 1975, entitled Defining International Aggression-The Search for World Peace, he argued for the establishment of an international court.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
is not a member of the International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
(ICC). The ICC is a permanent international criminal court, founded in 2002 by the Rome Statute to "bring to justice the perpetrators of the worst crimes known to humankind - war crimes, crimes against humanity, and genocide", especially when national courts are unable or unwilling to do so.
As of September 2011, 116 states are members of the court and 139 countries have signed but not ratified
Ratification
Ratification is a principal's approval of an act of its agent where the agent lacked authority to legally bind the principal. The term applies to private contract law, international treaties, and constitutionals in federations such as the United States and Canada.- Private law :In contract law, the...
the Rome Statute
Rome Statute of the International Criminal Court
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court . It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of 13 October 2011, 119 states are party to the statute...
. Other countries that have not signed or ratified the Rome Statute include India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
, Indonesia
Indonesia
Indonesia , officially the Republic of Indonesia , is a country in Southeast Asia and Oceania. Indonesia is an archipelago comprising approximately 13,000 islands. It has 33 provinces with over 238 million people, and is the world's fourth most populous country. Indonesia is a republic, with an...
, and China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
. On May 6, 2002, the United States, in a position shared with Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
and Sudan
Sudan
Sudan , officially the Republic of the Sudan , is a country in North Africa, sometimes considered part of the Middle East politically. It is bordered by Egypt to the north, the Red Sea to the northeast, Eritrea and Ethiopia to the east, South Sudan to the south, the Central African Republic to the...
, signed the Rome Statute but formally withdrew its intent of ratification.
Positions in the United States concerning the ICC vary widely. The Clinton Administration signed the Rome Statute in 2000, but did not submit it for Senate ratification. The Bush Administration, the US administration at the time of the ICC's founding, stated that it would not join the ICC. The Obama Administration
Presidency of Barack Obama
The Presidency of Barack Obama began at noon EST on January 20, 2009 when he became the 44th President of the United States. Obama was a United States Senator from Illinois at the time of his victory over Arizona Senator John McCain in the 2008 presidential election...
has subsequently re-established a working relationship with the court.
Signing and ratification
Seven countries voted against the treaty, namely: Iraq, Israel, Libya, People's Republic of China, Qatar, Yemen, and the United States. U.S. President Bill ClintonBill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
originally signed the Rome Statute of the International Criminal Court
Rome Statute of the International Criminal Court
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court . It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of 13 October 2011, 119 states are party to the statute...
in 2000, but stated that he would not submit it to the Senate for advice and consent for ratification
Ratification
Ratification is a principal's approval of an act of its agent where the agent lacked authority to legally bind the principal. The term applies to private contract law, international treaties, and constitutionals in federations such as the United States and Canada.- Private law :In contract law, the...
until the U.S. government had a chance to assess the functioning of the court. He nonetheless supported the proposed role of the ICC and its objectives:
After the Rome Statute reached the requisite 60 ratifications in 2002, President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
's Administration sent a note to the UN Secretary General on May 6, 2002. The note suspended the US's signature and informed the Secretary General that the US recognized no obligation toward the Rome Statute. In addition, the US stated that its intention to not become a member state should be reflected in the UN depositry's list. This is because signatories have an obligation not to undermine the object and purpose of a treaty. The US could engage with the Court by reactivating its signature to the Rome Statute by submitting a letter to the UN Secretary General.
A treaty that is not ratified is not legally binding. ‘Signature’ of a treaty provides a preliminary endorsement. Signing does not create a binding legal obligation but does demonstrate the State’s intention to examine the treaty domestically and consider ratifying it. It does oblige the State to refrain from acts that would counter or undermine the treaty’s objective and purpose.
Particular U.S. ratification contingencies
A treaty becomes part of the municipal lawMunicipal law
Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels...
of a nation only when the treaty has been ratified
Ratification
Ratification is a principal's approval of an act of its agent where the agent lacked authority to legally bind the principal. The term applies to private contract law, international treaties, and constitutionals in federations such as the United States and Canada.- Private law :In contract law, the...
. In the US, the constitution gives the President power to negotiate treaties under Article II. The President must then submit a treaty to the Senate for advice and consent for ratification. The Senate must approve the treaty by a two-thirds majority before it can take effect. The Senate may submit amendments, reservations, or explanations to the President regarding the treaty. Once ratified, treaties are generally self-executing—at least from the perspective of other nations—as the ratifying state fully binds itself to the treaty as a matter of the public international law and of national honor and good faith
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
. In the US, however, a treaty does not immediately become effective as US domestic law upon entry into force, which occurs only if the treaty is self-executing. In Foster v. Neilson 27 U.S. 253 (1829), the US Supreme Court explained that treaties are self-executing if accompanying legislation is not necessary for implementation. A treaty requiring additional action is not self-executing; it would create an international obligation for the US, but would have no effect on domestic law. (Id. 314-315).
However, entrenched
Entrenched legislation
Entrenched legislation is legislation that may be amended or repealed only after certain prescribed procedures have been observed, for example a special majority, or referendum. See also Legislation, Manner and form; Repeal....
provisions of municipal law—such as the constitution of a state party or other fundamental laws—may cause the treaty to not be fully executable in municipal law if it conflicts with those entrenched provisions. Article VI of the US Constitution contains the supremacy clause, which gives all treaties ratified in accordance with the constitution the effect of federal law. In the US, if a treaty is found to be self-executing it will preempt inconsistent state law and previous legislation. This issue was addressed by the US Supreme Court in Ware v. Hylton 3 U.S. 199 (1796), where it found that the treaty at issue was self-executing and struck down an inconsistent state law. (Id. 284). However, a treaty cannot preempt the Constitution itself (as held in the 1957 US Supreme Court case, Reid v. Covert
Reid v. Covert
Reid v. Covert, , is a landmark case in which the United States Supreme Court ruled that the Constitution supersedes international treaties ratified by the United States Senate...
). Thus, in order for a treaty to be executable within the United States, it might be necessary for the Constitution to be amended. Otherwise, treaty provisions could potentially be found unconstitutional and consequently struck down by the courts. An example of an instance where this occurred is when the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
ratified the Rome Statute. The Irish government's response was to hold a national referendum on the issue in 2001, after which the government amended their Constitution to bring it into effect. The question of whether the Rome Statute would require amendments to the US Constitution to be brought into effect is a matter of debate within the United States. However, many scholars and experts believe that the Rome Statute is compatible with the US Constitution.
Bush Administration's approach to the ICC
The position of the Bush Administration during its first term in office was to unalterably oppose US ratification of the Rome Statute, believing Americans would be unfairly treated for political reasons. Moreover, the Bush Administration actively pursued a policy of hostility towards the court in its international relations. In early May, the American Servicemembers' Protection Act of 2001 was introduced in both the House and the Senate. Essentially the same as the prior ASPA, the legislation would have prohibited any US government cooperation with the ICC unless the US ratified the Rome Treaty. Because the US has signed the statute, the legislation would have required actions counter to the normal obligation under the Vienna Convention on the Law of TreatiesVienna Convention on the Law of Treaties
The Vienna Convention on the Law of Treaties is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969. The Convention entered into force on 27 January 1980. The VCLT has been ratified by 111 states as of November...
, (1969), which the US has not ratified, according to which states that have signed but not ratified treaties are considered bound nonetheless not to contravene them. The act did not pass in 2001, although weaker legislation preventing cooperation with of funding to the Court was approved.
The Bush administration's policies toward the ICC exceeded merely staying out of the Statute, and actively began seeking to guarantee that US citizens be immune to the Court and to thwart other states from acceding to the Stature without taking US concerns into account. The US vigorously pressed states to conclude agreements with the US that would guarantee its citizens immunity from the Court's jurisdiction, threatening to cut off aid to states that refused to agree.
However, Bush Administration officials tempered their previously strident opposition to the ICC in the Administration's second term (especially with the departure of John Bolton
John R. Bolton
John Robert Bolton is an American lawyer and diplomat who has served in several Republican presidential administrations. He served as the U.S. Permanent Representative to the United Nations from August 2005 until December 2006 on a recess appointment...
from the Bush Administration). The United States did not oppose using the ICC to prosecute atrocities in Darfur
Darfur
Darfur is a region in western Sudan. An independent sultanate for several hundred years, it was incorporated into Sudan by Anglo-Egyptian forces in 1916. The region is divided into three federal states: West Darfur, South Darfur, and North Darfur...
, as evidenced by the U.S. abstention on United Nations Security Council Resolution 1593
United Nations Security Council Resolution 1593
United Nations Security Council Resolution 1593, adopted on March 31, 2005, after receiving a report by the International Commission of Inquiry on Darfur, the Council referred the situation in the Darfur region of Sudan to the International Criminal Court and required all states to co-operate fully...
referring the Darfur situation to the ICC for prosecution. In a statement, the State Department's John Bellinger stated: “At least as a matter of policy, not only do we not oppose the ICC’s investigation and prosecutions in Sudan but we support its investigation and prosecution of those atrocities.”
In addition, the Congress of the United States, in a resolution, acknowledged the ICC's authority to prosecute war crimes in Darfur.
Obama Administration's approach to the ICC
The Obama Administration has stated its intent to cooperate with the International Criminal Court. Cooperation with the Assembly of States Parties of the ICC is a key component of the Obama Administration's first National Security Strategy. On November 16, 2009, Ambassador-at-Large for War Crimes Issues, Stephen Rapp, announced that he would lead the U.S. delegation to the ICC's annual meeting of the Assembly of States Parties in The Hague. He told journalists "Our government has now made the decision that Americans will return to engagement at the ICC." The U.S. participated as an observer. This was the first time the U.S.A. had a delegation attend the ICC's annual meeting of the Assembly.In response to a question from the Senate Foreign Relations Committee, Secretary of State Hillary Rodham Clinton
Hillary Rodham Clinton
Hillary Diane Rodham Clinton is the 67th United States Secretary of State, serving in the administration of President Barack Obama. She was a United States Senator for New York from 2001 to 2009. As the wife of the 42nd President of the United States, Bill Clinton, she was the First Lady of the...
remarked that the US will end its “hostility” towards the Court. In addition, Susan Rice, US Ambassador to the United Nations, in her first address to the Security Council, expressed US support for the Court’s investigation in Sudan. These statements coupled with the removal of sanctions to the Bilateral Immunity agreements (BIAs) signaled a positive shift in the US cooperation with the Court. The Obama Administration has made no formal policy decision yet on the ICC or the status of the BIAs.
Recently, the Administration sent a large delegation drawn from all of main participants in policymaking on the ICC within the American government to the Review Conference in Kampala, Uganda in May and June 2010. The final outcome from Kampala included a successful assessment of the Rome Statute system of international justice, the announcement of numerous formal pledges by countries to assist the Court, and the adoption of amendments on war crimes and the crime of aggression. The US co-sponsored a side event with Norway and the Democratic Republic of the Congo (DRC) on building the capacity of the DRC’s judicial system to address atrocity crimes.
The US announced two pledges at Kampala, and was the only non-State Party to make a pledge. The US formally committed to building the legal capacity of certain countries to prosecute atrocity crimes themselves, and to assisting the ICC in its investigation and prosecution of leaders of the Lord’s Resistance Army (LRA) now wanted by the ICC.
The conference adopted two sets of amendments. The Administration believes that the outcome on both is in accord with important US interests. The Conference adopted a definition for the crime of aggression, the conditions under which it would exercise jurisdiction, and a roadmap for the eventual activation of jurisdiction after January 1, 2017. The US initially raised concerns about the definition, but accepted it after other countries agreed to attach a set of detailed understandings to the resolution adopting the amendments. Under the amendment the ICC will be, first, unable to prosecute individuals of a non-state party and second, state- parties will have the opportunity to opt-out of aggression jurisdiction if they so wish.”
Speaking about the past and future of US-ICC relations in light of the Review Conference, Legal Adviser Koh recently declared: “After 12 years, I think we have reset the default on the U.S. relationship with the Court from hostility to positive engagement. In this case, principled engagement worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill.”
Despite the Obama Administration's commitment to working with the ICC on prosecution of certain matters such as crimes committed by leaders of the LRA, a rebel group originating from Uganda, it has not stated an intention to rejoin the Rome Statute or submit the treaty to Senate ratification.
Lack of due process
The ICC has been criticized for: absence of jury trials; allegations of retrials allowed for errors of fact; allegations that hearsayHearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
evidence is allowed; allegations of no right to a speedy trial
Speedy trial
Speedy trial refers to one of the rights guaranteed by the United States Constitution to defendants in criminal proceedings. The right to a speedy trial, guaranteed by the Sixth Amendment, is intended to ensure that defendants are not subjected to unreasonably lengthy incarceration prior to a fair...
, a public trial
Public trial
Public trial or open trial is a trial open to public, as opposed to the secret trial. The term should not be confused with show trial.-United States:...
or reasonable bail
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
. Supporters of the ICC say that the ICC Statute contains the due process rights found in the US Constitution and now well recognized in international standards of due process in Article 67 Rome Statute, with the exception of the American right to jury trial
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
.
Jury trial
The most common criticism is the lack of Sixth AmendmentSixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
jury trial, i.e. "by an impartial jury of the State and district wherein the crime shall have been committed".
Military justice
Former U.S. State Department Legal Advisor Monroe LeighMonroe Leigh
Monroe Leigh was a prominent American political philosopher and diplomat. He was born in Halifax, Virginia, in 1919. He graduated from Hampden-Sydney College in 1940 and earned a law degree from the University of Virginia, serving as editor of the Virginia Law Review. His time in law school was...
has said:
The US has adopted forms of war crimes and crimes against humanity within its military courts The military courts have jurisdiction over all military personnel abroad and any accompanying civilians. Further the US has adopted crimes of genocide within its domestic system and conscription of child soldiers.
Incompatibility with the U.S. Constitution
The U.S. conservative group the Heritage FoundationHeritage Foundation
The Heritage Foundation is a conservative American think tank based in Washington, D.C. Heritage's stated mission is to "formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong...
claims that "United States participation in the ICC treaty regime would also be unconstitutional because it would allow the trial of American citizens for crimes committed on American soil, which are otherwise entirely within the judicial power of the United States. The Supreme Court has long held that only the courts of the United States, as established under the Constitution, can try such offenses."
This statement refers to several issues. The first is the trial of American citizens by the ICC and implies that the Court does not have the power to try Americans for crimes committed on U.S. territory. The second refers to due-process issues.
RenewAmerica claim that ratification by the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
of the Rome Statute would require a constitutional amendment
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
, as was the case in other countries such as Ireland
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
. According to RenewAmerica, "Because the ICC is inconsistent with fundamental constitutional protections, the federal government is without authority to ratify the treaty absent a constitutional amendment."
Critics argue that because the US Constitution permits the creation of only one Supreme Court that participation with the International Criminal Court violates the US Constitution. However, the Court is not a creation of the US; instead, it functions internationally. Further, the US has participated in various international courts including the International Military Tribunals for the Far East, the Nuremberg Tribunal, and the tribunals for the former Yugoslavia and Rwanda.
The Congressional Research Service
Congressional Research Service
The Congressional Research Service , known as "Congress's think tank", is the public policy research arm of the United States Congress. As a legislative branch agency within the Library of Congress, CRS works exclusively and directly for Members of Congress, their Committees and staff on a...
's Report for Congress states the ICC is not "an instrumentality of the U.S.". Therefore, it does not threaten to supplant the Constitutional authority of the US Supreme Court.
American Policies Towards the ICC
The United States and many advocates for the International Criminal Court (ICC) have long been at odds over the court's statute, accountability, and jurisdiction. Although these differences have not been resolved, two recent actions have refocused international and domestic attention on America's policy toward the ICC. The first was enactment of the Nethercutt amendment, which extended prohibitions on assistance to ICC parties beyond those already in place under the American Servicemembers' Protection Act (ASPA). The second is the debate over whether or not the U.N. Security Council should refer the genocide in Sudan to the ICC for investigation.American Service Members Protection Act
In 2002, the U.S. Congress passed the American Servicemembers' Protection ActAmerican Servicemembers' Protection Act
The American Service-Members' Protection Act is a United States federal law introduced by US Senator Jesse Helms and signed into Law by George W. Bush as an amendment to the National Defense Authorization Act and passed in August 2002 by Congress...
(ASPA), which contained a number of provisions, including prohibitions on the United States providing military aid to countries which had ratified the treaty establishing the court; however, there were a number of exceptions to this, including NATO members, major non-NATO allies
Major non-NATO ally
Major non-NATO ally is a designation given by the United States government to close allies who have strategic working relationships with US armed forces but are not members of the North Atlantic Treaty Organization...
, and countries which entered into an agreement with the United States not to hand over U.S. nationals to the Court (see Article 98 agreements below). ASPA also excluded any military aid that the U.S. President certified to be in the U.S. national interest. Limits on military assistance have been repealed, as outlined below.
In addition, ASPA contained provisions prohibiting U.S. co-operation with the Court, and permitting the President to authorize military force to free any U.S. military personnel held by the court, leading opponents to dub it "The Hague Invasion Act." The act was later modified to permit U.S. cooperation with the ICC when dealing with U.S. enemies. It has been argued that the act was a measure created to protect Americans from ICC jurisdiction or prosecution
On October 2, 2006 President Bush issued waivers of these same IMET prohibitions with respect to 21 nations. Foreign Military Funds (FMF) restricted under ASPA were not affected by the 2006 waivers or the ASPA amendment. On October 17, 2006 President Bush signed into law an amendment to ASPA as part of the John Warner
John Warner
John William Warner, KBE is an American Republican politician who served as Secretary of the Navy from 1972 to 1974 and as a five-term United States Senator from Virginia from January 2, 1979, to January 3, 2009...
National Defense Authorization Act for Fiscal Year 2007 removing International Military Education and Training
International Military Education and Training
International Military Education and Training is the title of a United States security assistance program, a type of student exchange program. The policies underlying this program are directed by the United States Department of State's Bureau of Political-Military Affairs and the constituent...
(IMET) restrictions for all nations. On November 22, 2006 President George W. Bush issued ASPA waivers with respect to the Comoros
Comoros
The Comoros , officially the Union of the Comoros is an archipelago island nation in the Indian Ocean, located off the eastern coast of Africa, on the northern end of the Mozambique Channel, between northeastern Mozambique and northwestern Madagascar...
and Saint Kitts and Nevis
Saint Kitts and Nevis
The Federation of Saint Kitts and Nevis , located in the Leeward Islands, is a federal two-island nation in the West Indies. It is the smallest sovereign state in the Americas, in both area and population....
, followed by a similar waiver with respect to Montenegro
Montenegro
Montenegro Montenegrin: Crna Gora Црна Гора , meaning "Black Mountain") is a country located in Southeastern Europe. It has a coast on the Adriatic Sea to the south-west and is bordered by Croatia to the west, Bosnia and Herzegovina to the northwest, Serbia to the northeast and Albania to the...
on August 31, 2007.
On January 28, 2008 President Bush signed into law an amendment to the American Servicemembers' Protection Act (ASPA) to eliminate restrictions on Foreign Military Financing (FMF) to nations unwilling to enter into Bilateral Immunity Agreements (BIAs) shielding US nationals from the jurisdiction of the ICC. Section 1212 of HR 4986 effectively gutted from ASPA all of the provisions which threaten nations with the loss of military assistance of any kind for refusing a BIA.
Criticism of ASPA
The effects of the American Service Members Protection Act (ASPA) were severely criticized by the Defense Department. While speaking before the United States ArmyUnited States Army
The United States Army is the main branch of the United States Armed Forces responsible for land-based military operations. It is the largest and oldest established branch of the U.S. military, and is one of seven U.S. uniformed services...
Committee on House Armed Services regarding the FY 2006 Budget, US Army General Bantz J. Craddock
Bantz J. Craddock
Bantz John Craddock is a retired United States Army four-star general. His last military assignment was as Commander, U.S. European Command and the NATO's Supreme Allied Commander Europe as well as the commanding officer of Allied Command Operations from December 2006 to June 30, 2009. He also...
, Commander of the US Southern Command, made strong statements on the impact of ASPA on military operations and cooperation in Latin America. He explains that ASPA is creating a void of contact that is being filled by other extra-hemispheric actors, including China. Vice Admiral Lowell Jacoby made similar statements during a hearing of the Senate Armed Services Committee. In addition, the Chairman of the Joint Chiefs of Staff
Chairman of the Joint Chiefs of Staff
The Chairman of the Joint Chiefs of Staff is by law the highest ranking military officer in the United States Armed Forces, and is the principal military adviser to the President of the United States, the National Security Council, the Homeland Security Council and the Secretary of Defense...
, Air Force General Richard Myers
Richard Myers
Richard Bowman Myers is a retired four-star general in the United States Air Force and served as the 15th Chairman of the Joint Chiefs of Staff. As Chairman, Myers was the United States military's highest ranking uniformed officer....
testified at the Senate Appropriations Defense Subcommittee on April 27, 2005 that ASPA has reduced foreign troop training opportunities and hurt the government's ability to fight terrorism abroad as an "unintended consequence."
The Nethercutt Amendment
Former Rep. George NethercuttGeorge Nethercutt
George R. Nethercutt, Jr. is an American politician, and is the founder and chairman of The George Nethercutt Foundation. He was a Republican member of the United States House of Representatives from 1995 to 2005, representing ....
's "Nethercutt Amendment" to the Foreign Operations, Export Financing, and Related Programs Appropriations Act suspends Economic Support Fund assistance to ICC States Parties who refused bilateral immunity agreements (BIAs) with the US or were not provided a Presidential waiver. The funds affected support initiatives including peacekeeping, anti-terrorism measures, democracy-building and drug interdiction. The language of the amendment allowed presidential exemptions for NATO, MNNA (major non-NATO allies), and Millennium Fund countries.
The Nethercutt Amendment differed from former anti-ICC provisions the American Servicemembers' Protection Act (ASPA) by imposing economic aid cuts instead of military aid cuts. Cutting economic assistance is far a more damaging act because in many countries, it intended to bolster local economies instead of national defense. In addition, existing Status of Forces Agreements (SOFAs) and other bilateral agreements already provide full US jurisdiction over US personnel and officials serving abroad.
The appropriations bill containing the controversial amendments were adopted for FY 2005, FY 2006, and FY 2008. Congress did not pass a foreign operations appropriations bill or any other bill containing the Nethercutt provision for FY 2007. On December 17, 2007 the US Congress approved HR 2764, a comprehensive Consolidated Appropriations Act which reinstates the so-called Nethercutt provision cutting off Economic Support Funds (ESF) to nations unwilling to enter into Bilateral Immunity Agreements (BIAs) or so-called Article 98 Agreements shielding US nationals from the jurisdiction of the ICC.
President Bush signed the bill into law on December 26 and it became Public Law 110-161. However, by mid-2009 Congress had removed all the IMET and failed to renew the Nethercutt Amendment.
United Nations Security Council Resolutions
In July 2002, the United States threatened to use its Security Council veto to block renewal of the mandates of several United Nations peacekeeping operations, unless the Security Council agreed to permanently exempt U.S. nationals from the Court's jurisdiction. The then Secretary General of the United Nations, Kofi AnnanKofi Annan
Kofi Atta Annan is a Ghanaian diplomat who served as the seventh Secretary-General of the UN from 1 January 1997 to 31 December 2006...
, said that the US proposal "flies in the face of treaty law", risked undermining the Rome Treaty setting up the court, and warned that it could end up discrediting the Security Council.
Initially, the United States sought to prevent prosecution of personnel on UN missions by any country except that of their nationality. The Security Council rejected that approach and the United States made use of a provision of the Rome Statute that allowed the Security Council to direct the ICC not exercise its jurisdiction over a certain matter for up to one year. The United States sought the Security Council to convey such a request to the ICC concerning personnel on United Nations peacekeeping and enforcement operations. Further, the US sought to have that request renewed automatically each year. (If renewed automatically each year, then another Security Council resolution would be required to cease the request, which the United States could then veto, which would effectively make the request permanent.) Court supporters argued that the Rome Statute requires the request to be valid it must be voted upon each year in the Security Council. Therefore,an automatically renewing request would violate the Statute. By international law, questions regarding the interpretation of the UN Charter may only be interpreted by the UN Security Council. The UN Charter requires that all UN members abide by the decisions of the Security Council, so only ICC members who are not also UN members are not bound.
Members of the Security Council opposed this request; however, they were increasingly concerned about the future of peacekeeping operations. The United Kingdom eventually negotiated a compromise, whereby the United States would be granted its request, but only for a period of one year. A new Security Council vote would be required in July each year for the exclusion of peacekeepers from ICC jurisdiction to be continued. All members of the Security Council eventually endorsed resolution United Nations Security Council Resolution 1422
United Nations Security Council Resolution 1422
United Nations Security Council Resolution 1422, adopted unanimously on July 12, 2002, after noting the recent entry into force of the Rome Statute of the International Criminal Court, the Council granted immunity from prosecution by the International Criminal Court to United Nations peacekeeping...
.
NGO supporters of the Court, along with several countries not on the Security Council (including Canada and New Zealand), protested the legality of the resolution. The resolution was made under Chapter VII of the UN Charter, which requires a "threat to international peace or security" for the Security Council to act; ICC supporters have argued that a U.S. threat to veto peacekeeping operations does not constitute a threat to international peace or security. In such a case the UN Charter states that the Security Council will determine if the Security Council's actions conformed with the UN Charter.
A resolution to exempt citizens of the United States from jurisdiction of the ICC was renewed in 2003 by United Nations Security Council Resolution 1487
United Nations Security Council Resolution 1487
United Nations Security Council Resolution 1487, adopted on June 12, 2003, after noting the recent entry into force of the Rome Statute of the International Criminal Court, the Council granted a one-year extension for immunity from prosecution by the International Criminal Court to United Nations...
. However, the Security Council refused to renew the exemption again in 2004 after pictures emerged of US troops torturing and abusing Iraqi prisoners in Abu Ghraib
Abu Ghraib torture and prisoner abuse
Beginning in 2004, human rights violations in the form of physical, psychological, and sexual abuse, including torture, rape, sodomy, and homicide of prisoners held in the Abu Ghraib prison in Iraq came to public attention...
, and the US withdrew its demand.
Article 98 Agreements
Coalition for the International Criminal Court
The Coalition for the International Criminal Court is an international non-governmental organisation with a membership of over 2,500 organizations worldwide advocating for a fair, effective and independent International Criminal Court The Coalition for the International Criminal Court (commonly...
, 54 countries "rejected US efforts to sign BIAs despite unrelenting US pressure and the threat and actual loss of military assistance under the ASPA".
To date, approximately 102 BIA's have been signed. It is unclear how many of these are legally binding. Article 98 agreements were intended to prevent prosecution of any American citizen by the ICC. Romania
Romania
Romania is a country located at the crossroads of Central and Southeastern Europe, on the Lower Danube, within and outside the Carpathian arch, bordering on the Black Sea...
was one of the first countries to sign an Article 98 agreement with the United States. In response to Romania's action, the European Union requested that candidate countries not sign Article 98 agreements with the United States until the EU ministers had met to agree upon a common position.
In October 2002, the Council of the European Union adopted a common position, permitting member states to enter into Article 98 agreements with the United States, but only concerning U.S. military personnel, U.S. diplomatic or consular officials, and persons extradited, sent to their territories by the United States with their permission; not the general protection of U.S. nationals that the United States sought; furthermore the common position provided that any person protected from ICC prosecution by such agreements would have to be prosecuted by the United States. This was in agreement with the original position of the EU, that Article 98 agreements were allowed to cover these restricted classes of persons but could not cover all the citizens of a state.
Others argue that due to the patriation of the ICC into the territory of every state-party, the ICC has effectively become an domestic court of the sovereign state in question, and, as an internal affair of the state-party, exemption of Americans from the jurisdiction of the ICC would render U.S. citizens "above the law"--specifically the domestic law—of the state-party, giving them such rights as Europeans were once given under the "unequal treaties" with some developing countries. Still others believe that a State Party has simply given itself another option for the exercise of its sovereign right to deal legally as it wishes with persons who commit crimes on its territory.
The United States used bilateral diplomacy to persuade certain nations to sign these agreements. US law requires the suspension of military assistance and U.S. Economic Support Fund (ESF) aid to those States Parties which do not sign these agreements. The granting of such special favors is of course always subject to diplomacy.
In 2002, the United States passed a law cutting off military aid for 35 countries (among them nine European countries), under the terms of an amendment to the American Service-Members' Protection Act. ESF funding entails a wide range of governance programs including international counter-terrorism efforts, peace process programs, anti-drug trafficking initiatives, truth and reconciliation commissions, wheelchair distribution and HIV/AIDS education, among others.
On May 2, 2005, Angola
Angola
Angola, officially the Republic of Angola , is a country in south-central Africa bordered by Namibia on the south, the Democratic Republic of the Congo on the north, and Zambia on the east; its west coast is on the Atlantic Ocean with Luanda as its capital city...
became the 100th country to sign a bilateral agreement with the United States under Article 98. Since then, there have been no additional signings of these agreements
In March 2006, Condoleezza Rice
Condoleezza Rice
Condoleezza Rice is an American political scientist and diplomat. She served as the 66th United States Secretary of State, and was the second person to hold that office in the administration of President George W. Bush...
admitted that the United States' position on Article 98 agreements was "sort of the same as shooting ourselves in the foot".
Until 2008 U.S. law required the cessation of such aid payments if a state was unwilling to sign the bilateral agreement (there are exceptions for NATO-members and allies such as Israel, Egypt, Australia and South Korea). However, these decisions were repealed in October 2006 and January 2008.
The United States cut certain forms of military and economic funding for several countries that had not signed bilateral Article 98 agreements. Countries who declined aid include Barbados, Bolivia, Brazil, Costa Rica, Ecuador, Mexico, Paraguay, Peru, Saint Vincent and the Grenadines, Trinidad and Tobago, Uruguay and Venezuela. Mali, Namibia, South Africa, Tanzania and Kenya publicly rejected signing Article 98 agreements in 2003, and subsequently saw their Overseas Development Aid funding cut by more than 89 million dollars.
American supporters and opponents of the ICC
Some, such as The Heritage Foundation, believe that:The true measure of America's commitment to peace and justice and its opposition to genocide and war crimes lies not in its participation in international bureaucracies like the ICC, but in its actions. The United States has led the fight to free millions in Afghanistan and Iraq. It is a party to many human rights treaties and, unlike many other nations, abides by those treaty commitments. The U.S. has led the charge to hold violators of human rights to account, including fighting hard for imposing Security Council sanctions on the Sudanese government until it stops supporting the militia groups that are committing genocide in Darfur and helps to restore order to the region. The U.S. polices its military and punishes them when they commit crimes. In every practical way, the U.S. honors the beliefs and purposes underlying the ICC.
In a 2005 poll of 1,182 Americans by the Chicago Council on Foreign Relations and the Program on International Policy Attitudes at the University of Maryland, 69% favored US participation in the Court.
Senator Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
, the current President of the United States of America, was asked the following question on a candidate questionnaire during the 2004 Senate race: "Should the United States ratify the ‘Rome Statute of the International Criminal Court’? If not, what concerns do you have that need to be resolved before you would support joining the court? Prior to ratification, what should the United States relationship with the Court be, particularly in regards to sharing intelligence, prosecuting war criminals, and referring cases to the UN Security Council?"
Senator Obama answered:
Senator John McCain
John McCain
John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....
, the Republican presidential candidate in the 2008 elections, said on January 28, 2005:
McCain later added:
Senator Hillary Clinton, the current Secretary of State, said as a candidate in the 2008 Democratic presidential primaries on February 13, 2005:
Clinton later added:
Representative Ron Paul
Ron Paul
Ronald Ernest "Ron" Paul is an American physician, author and United States Congressman who is seeking to be the Republican Party candidate in the 2012 presidential election. Paul represents Texas's 14th congressional district, which covers an area south and southwest of Houston that includes...
, a Republican presidential candidate in the 2008 elections, said on April 8, 2002:
Bill Richardson, the Governor of New Mexico and another candidate for the 2008 Democratic Nomination said in 2007, as part of his nomination campaign:
Dennis Kucinich
Dennis Kucinich
Dennis John Kucinich is the U.S. Representative for , serving since 1997. He was furthermore a candidate for the Democratic nomination for President of the United States in the 2004 and 2008 presidential elections....
, Democratic member of the United States House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
and a presidential candidate in the 2004 and 2008 elections, said on April 26, 2007:
John Edwards
John Edwards
Johnny Reid "John" Edwards is an American politician, who served as a U.S. Senator from North Carolina. He was the Democratic nominee for Vice President in 2004, and was a candidate for the Democratic presidential nomination in 2004 and 2008.He defeated incumbent Republican Lauch Faircloth in...
the former Senator
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
and the Democratic Party
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
's Vice-Presidential candidate in 2004
United States presidential election, 2004
The United States presidential election of 2004 was the United States' 55th quadrennial presidential election. It was held on Tuesday, November 2, 2004. Republican Party candidate and incumbent President George W. Bush defeated Democratic Party candidate John Kerry, the then-junior U.S. Senator...
called for America to be part of the court when campaigning for the 2008 Democratic Nomination. Edwards said that:
Benjamin B. Ferencz
Benjamin B. Ferencz
Benjamin Berell' Ferencz is a Romanian-born American lawyer. He was an investigator of Nazi war crimes after World War II and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, one of the twelve military trials held by the U.S. authorities at Nuremberg, Germany...
, an investigator of Nazi war crime
War crime
War crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
s after World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
and the Chief Prosecutor for the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
Army at the Einsatzgruppen Trial
Einsatzgruppen Trial
The Einsatzgruppen Trial was the ninth of the twelve trials for war crimes the U.S. authorities held in their occupation zone in Germany in Nuremberg after the end of World War II. These twelve trials were all held before U.S...
, one of the twelve military trials
Subsequent Nuremberg Trials
The Subsequent Nuremberg Trials were a series of twelve U.S...
held by the U.S. authorities at Nuremberg
Nuremberg
Nuremberg[p] is a city in the German state of Bavaria, in the administrative region of Middle Franconia. Situated on the Pegnitz river and the Rhine–Main–Danube Canal, it is located about north of Munich and is Franconia's largest city. The population is 505,664...
, later became a vocal advocate of the establishment of an international rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
and of an International Criminal Court. In his first book published in 1975, entitled Defining International Aggression-The Search for World Peace, he argued for the establishment of an international court.
See also
- Abu Ghraib torture and prisoner abuseAbu Ghraib torture and prisoner abuseBeginning in 2004, human rights violations in the form of physical, psychological, and sexual abuse, including torture, rape, sodomy, and homicide of prisoners held in the Abu Ghraib prison in Iraq came to public attention...
- AMICC (American NGO Coalition for the International Criminal Court)AMICC (American NGO Coalition for the International Criminal Court)The leads the civil society movement for full United States participation in the International Criminal Court.With over 40 member and observer organizations, AMICC is a national coalition made up of US-based non-governmental organizations that works to build support for the International Criminal...
- Benjamin B. FerenczBenjamin B. FerenczBenjamin Berell' Ferencz is a Romanian-born American lawyer. He was an investigator of Nazi war crimes after World War II and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, one of the twelve military trials held by the U.S. authorities at Nuremberg, Germany...
- Command responsibilityCommand responsibilityCommand responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
- Human rights in the United StatesHuman rights in the United StatesHuman rights in the United States are legally protected by the Constitution of the United States and amendments, conferred by treaty, and enacted legislatively through Congress, state legislatures, and plebiscites...
- International Criminal CourtInternational Criminal CourtThe International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
- List of War Crimes
- Nuremberg PrinciplesNuremberg PrinciplesThe Nuremberg principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.- Principle...
- Review Conference of the International Criminal Court StatuteReview Conference of the International Criminal Court StatuteA Review Conference of the Rome Statute took place from 31 May to 11 June 2010, in Kampala, Uganda to consider amendments to the treaty that founded the International Criminal Court....
- International Criminal Court and the 2003 invasion of Iraq
- War Crimes
- War crimes committed by the United StatesWar crimes committed by the United StatesThe United States of America has been accused of committing war crimes at various points throughout its history. Most, but not all contemporary war crimes are defined by the International Criminal Court , the Geneva Conventions, and the associated laws of war under international law...
Further reading
- Paul D. Marquardt, “Law Without Borders: The Constitutionality of an International Criminal Court,” 33 Colum. J. Transnat'l. L. 74, 76 (1995).
- Roy S Lee, ed. (1999). The International Criminal Court: The Making of the Rome Statute. The Hague: Kluwer Law International. ISBN 90-411-1212-X
- Madeline Morris, ed. (2001). "The United States and the International Criminal Court", Law and Contemporary Problems, Winter 2001, vol. 64, no. 1. Accessed 2 January 2008.
- Michael P. Scharf (1999). "The Politics behind U.S. Opposition to the International Criminal Court", Brown J. World Aff., Winter/Spring 1999, vol. VI, p. 97.
- Jason Ralph (2007). Defending the Society of States. Why America Opposes the International Criminal Court and its Vision of World Society, Oxford University Press. ISBN 10: 019921431X
- Rebecca Hamilton (2011). Fighting for Darfur: Public Action and the Struggle to Stop Genocide, Palgrave Macmillan, Chs. 5, 11.
External links
- Objections to the ICC under the U.S. Constitution and International Law
- The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny by Henry KissingerHenry KissingerHeinz Alfred "Henry" Kissinger is a German-born American academic, political scientist, diplomat, and businessman. He is a recipient of the Nobel Peace Prize. He served as National Security Advisor and later concurrently as Secretary of State in the administrations of Presidents Richard Nixon and...
- A reply to Henry Kissinger's paper by Benjamin B. FerenczBenjamin B. FerenczBenjamin Berell' Ferencz is a Romanian-born American lawyer. He was an investigator of Nazi war crimes after World War II and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, one of the twelve military trials held by the U.S. authorities at Nuremberg, Germany...
, a former Prosecutor at the Subsequent Nuremberg TrialsSubsequent Nuremberg TrialsThe Subsequent Nuremberg Trials were a series of twelve U.S...
- A reply to Henry Kissinger's paper by Benjamin B. Ferencz
- Why Bilateral Agreements with the U.S. are not valid under Art.98 of ICC Statute by Derechos.org
- American Justice and the International Criminal Court Remarks by John R. BoltonJohn R. BoltonJohn Robert Bolton is an American lawyer and diplomat who has served in several Republican presidential administrations. He served as the U.S. Permanent Representative to the United Nations from August 2005 until December 2006 on a recess appointment...
, Under Secretary for Arms Control and International Security, at the American Enterprise InstituteAmerican Enterprise InstituteThe American Enterprise Institute for Public Policy Research is a conservative think tank founded in 1943. Its stated mission is "to defend the principles and improve the institutions of American freedom and democratic capitalism—limited government, private enterprise, individual liberty and...
in Washington, D.C.Washington, D.C.Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
on November 3, 2003 - U.S. Policy Regarding the International Criminal Court Congressional Research Service Report for Congress, Updated April 26, 2006
- http://www.ictj.org/en/news/features/3625.html