United States and the International Criminal Court Totally Explained

Everything about United States And The International Criminal Court totally explained

Positions in the United States concerning the International Criminal Court (ICC) vary widely. The current U.S. administration doesn't intend to join the ICC, which was established in 2002 as a permanent tribunal to investigate and prosecute genocide, crimes against humanity, and war crimes. Although the position of the Bush administration has been made clear, the Rome Statute is subject to intense debate within the United States, and the US position will likely be revisited, at least, to a certain extent, by the next President and Congress, as the three remaining Presidential candidates (as of March 2008) have expressed interest in joining, or at least cooperating, to a larger extent, with the ICC.

Signing and ratification

Although the then U.S. President, Bill Clinton, signed the Rome Statute of the International Criminal Court in 2000, he stated that although he wouldn't submit it to the Senate 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 aims: . After the Rome Statute reached the requisite 60 ratifications in 2002, President George W. Bush "unsigned" the Rome Statute on May 6, 2002.
A treaty that isn't ratified isn't legally binding. The U.S. never ratified the treaty.

Particular U.S. Ratification Contingencies

A treaty is only patriated, that is, made part of, the municipal law of a nation, when the treaty has been ratified; treaties are generally self-executing, once ratification is made, at least from the point of view of other nations--as the ratifying state fully binds itself by the treaty in the international sphere at the point that the treaty is ratified, as a matter of the public international law, and in terms of national honor and good faith. 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. For the purposes of the United States, the Constitution of the United States may have to be modified so as to bring a treaty into force internally, when a treaty conflicts with said Constitution. The question of whether the Rome Statute would require amendments to the Constitution of the United States to be brought into full force and effect, is, however, a matter of debate within the United States. (A similar situation happened 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.)
Arguing for the potential necessity of such an amendment to the U.S. Constitution doesn't in itself constitute opposition to the ICC; such an amendment can be passed through specified constitutional procedures, and ratified by the several states of the Republic. Indeed, it can be argued that the ICC has due process safeguards that are broadly comparable to those of the U.S. Constitution (if not technically compatible with them). It can also be argued that such an amendment would be keeping with--and not repugnant to the letter or the spirit of that same Constitution, whose Framers explicitly acknowledged "offenses against the law of nations" (or what we now know as the public international law) as being crimes subject to punishment under the domestic law of the United States, and with the historical role of the United States--a nation whose own Declaration of Independence notes a "decent respect to the opinions of Mankind"--as an advocate for much of the present system of international law, ranging from the issuance of the Lieber Code, to the key role the U.S. played in the Nuremberg Tribunal, to the chartering of the United Nations, to the ICTY, and the ICTR.

Bush administration's official and unofficial objections to the court

The position of the Bush Administration is in opposition to ratifying the Rome Statute and joining the ICC. However, Bush Administration officials have toned down their previously strident opposition to the ICC, to a certain degree (especially with the departure of John Bolton from the Bush Administration). The United States took no action to 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.
The U.S. State Department has published a list of US objections to the Court.

Claimed infringement of national sovereignty

The State Department remarks that under the Rome Statute, the ICC claims the authority to second-guess the actions taken and the results reached by sovereign states with respect to the investigation and prosecution of crimes.
In remarks to the Federalist Society in 2002, then Under Secretary of State for Arms Control and International Security John Bolton discussed the Bush Administration's position regarding the ICC,

Claimed vague, broad, and unaccountable powers

Bolton also stated:
Senate Committee on Foreign Relations stated: "There is only one source of legitimacy of the American government's policies - and that's the consent of the American people."

Claimed possibility of politically motivated prosecutions

Bolton further claimed:

Claimed effects on peacekeeping and humanitarian missions

In 1998 David Scheffer, Ambassador-at-Large for War Crimes Issues and Head of the U.S. Delegation to the UN Diplomatic Conference on the Establishment of a Permanent International Criminal Court, argued before the U.S. Senate Committee on Foreign Relations that while:

Opposition from political groups outside of government

Claimed lack of due process

The Republican activist group "RenewAmerica", run by supporters of U.S. Presidential candidate Alan Keyes, has accused the court of not protecting defendants' human rights, particularly:

allegations of absence of jury trials

allegations of retrials allowed for errors of fact

allegations that hearsay 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, which US negotiators agreed with since it isn't practical to have an international jury of one’s peers. Former U.S. State Department Legal Advisor Monroe Leigh has said:

Claimed incompatibility with the U.S. Constitution

The U.S. conservative group the Heritage Foundation 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 doesn't 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."
As pointed out in the Congressional Research Service's Report for Congress, the ICC isn't "an instrumentality of the U.S.".

Efforts to shield Americans from ICC jurisdiction

In 2002 the United States began to undertake measures to shield U.S. nationals from prosecution by the ICC.

American Servicemembers Protection Act

In 2002, the U.S. Congress passed the American Servicemembers' Protection Act (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.
   In addition, the Nethercutt Amendment to the Foreign Appropriations Bill suspends Economic Support Fund assistance to ICC States Parties who have not signed bilateral immunity agreements (BIAs) with the United States. The funds affected support initiatives including peacekeeping, anti-terrorism measures, democracy-building and drug interdiction. The omnibus appropriations bill containing the controversial amendment was signed by President Bush on December 7, 2004.
   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. Previously, on October 2, 2006 President Bush had issued a waiver 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 November 22, 2006 President 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 guts from ASPA all of the provisions which threaten nations with the loss of military assistance of any kind for refusing a BIA. In October 2006, Congress lifted International Military and Education Training (IMET) restrictions provided for in ASPA. ASPA will still place restrictions on US cooperation to the ICC, subject to the Dodd Amendment which essentially reverses the effect of ASPA by authorizing the US government to participate in a wide-range of international justice efforts, as well as US participation in peacekeeping missions, and authorize military force to free US nationals from the custody of the ICC.

Criticism of ASPA

The effects of ASPA have been severely criticized by the Defense Department. While speaking before the United States Army Committee on House Armed Services regarding the Fiscal 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's 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."

The Nethercutt Amendment

Former Rep. George Nethercutt's so-called "Nethercutt Amendment" to the Foreign Operations, Export Financing, and Related Programs Appropriations Act suspends Economic Support Fund assistance to ICC States Parties who refuse bilateral immunity agreements (BIAs) with the US or have not been provided a Presidential waiver. The funds affected support initiatives including peacekeeping, anti-terrorism measures, democracy-building and drug interdiction. The language of the amendment allows presidential exemptions for NATO, MNNA (major non-NATO allies), and Millennium Fund countries.
The appropriations bill containing the controversial amendment was adopted two years in a row, for FY 2005 and FY 2006. Congress didn't 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. As a result, dozens of nations, many of which are allies of the US, may lose millions of dollars in economic assistance for FY 2008 and further alienate the US in the world community. The Nethercutt Amendment differs 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.

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 Annan, said at the time 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 had sought to prevent personnel on UN missions being tried by any country except that of their nationality. When the other members of the Security Council rejected that approach, the United States made use of a provision of the Rome Statute, which permits the Security Council to direct that the ICC may 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, and 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..
   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 doesn't 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 Agreements

As part of the U.S. campaign to exclude its citizens and military personnel from extradition by the ICC, the U.S. Bush administration has been approaching countries around the world seeking to conclude Bilateral Immunity Agreements, or “Article 98” agreements. Article 98 agreements don't offer Americans impunity, nor do they protect Americans from prosecution by any nation where they may commit any offense.
   The United States has used bilateral diplomacy to persuade many 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 don't 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. Until 2008 U.S. law requires the cessation of such aid payments if a state is 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. In March of 2006, Condoleezza Rice admitted that the United States' position on Article 98 agreements was "sort of the same as shooting ourselves in the foot". 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 couldn't cover all the citizens of a state.
   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
   The United States has cut certain forms of military and economic funding for several countries that have not signed bilateral Article 98 agreements. Countries who have so 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

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. However, knowledge of the Court was limited with only half of the Republicans knowing that the Court was opposed by the US. Levels of support among Republicans were lower after the interviewees learned that the Court was opposed by the Bush administration.
The court has been supported by former Senator and the Democratic Party's Vice-Presidential candidate in 2004, John Edwards, who called for America to be part of the court when campaigning for the 2008 Democratic Nomination. Edwards said that:
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:
Senator Hillary Clinton, a Democratic presidential candidate in the 2008 elections, said on February 13, 2005:
Senator John McCain, a Republican presidential candidate in the 2008 elections, said on January 28, 2005:
Senator Barack Obama, a Democratic presidential candidate in the 2008 elections, 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've that need to be resolved before you'd 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:

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