International Criminal Court and the U.S. Position in the United States

The United States is not a party to the Rome Statute. The United States signed the Statute on
December 31, 2000, but at the time, the Clinton Administration had objections to it and said it
would not submit it to the Senate for its advice and consent to ratification. The Statute was never submitted to the Senate. In May 2002, the Bush Administration notified the United Nations that it did not intend to become a party to the International Criminal Court (ICC), and that there were therefore no legal obligations arising from the signature. The Bush Administration opposed the Court and renounced any U.S. obligations under the treaty. Objections to the Court were based on a number of factors, including:

the Court’s assertion of jurisdiction (in certain circumstances) over citizens, including military personnel, of countries that are not parties to the treaty (the United States had supported a version of the Rome Statute that would have allowed the U.N. Security Council to refer cases involving non-states parties to the ICC, but would not have allowed other states or the Prosecutor to refer cases);
the perceived lack of adequate checks and balances on the powers of the International Criminal Court prosecutors and judges;
the perceived dilution of the role of the U.N. Security Council in maintaining
peace and security; and
the International Criminal Court’s potentially chilling effect on America’s willingness to project power in
the defense of its interests.

The Bush Administration concluded bilateral immunity agreements (BIAs), known as “Article 98
agreements,” with most states parties to exempt U.S. citizens from possible surrender to the
International Criminal Court. Each state party to an Article 98 agreement promises that it will not surrender citizens of the other state party to international tribunals or the International Criminal Court, unless both parties agree in advance. An Article 98 agreement would prevent the surrender of certain persons to the International Criminal Court by parties to the agreement, but would not bind the International Criminal Court if it were to obtain custody of the accused through other means

These agreements are named for Article 98(2) of the Statute, which bars the International Criminal Court from asking for surrender of persons from a state party that would require it to act contrary to its international obligations.

The United States government is prohibited by law from providing material assistance to the International Criminal Court in its investigations, arrests, detentions, extraditions, or prosecutions of war crimes, under the American Servicemembers’ Protection Act of 2002, or ASPA (P.L. 107-206, Title II). The prohibition covers, among other things, the obligation of appropriated funds, assistance in investigations on United States territory, participation in United Nations peacekeeping operations unless certain protections from International Criminal Court actions are provided to specific categories of personnel, and the sharing of classified and law enforcement information. These prohibitions do not apply to cooperation with an ad hoc international criminal tribunal established by the United Nations.

Security Council such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR). See 22 U.S.C. 7423(a)(1). In the case of Darfur, the Darfur Accountability and Divestment Act of 2007 (H.R. 180), passed by the House on August 3, 2007, would have offered United States support to the International Criminal Court’s efforts to prosecute those responsible for acts of genocide in Darfur, but was not enacted into law.

Section 2015 of ASPA (22 U.S.C. 7433, known as the “Dodd Amendment”), however, provides an exception to these provisions:

“Nothing in this title shall prohibit the United States from rendering assistance to international
efforts to bring to justice Saddam Hussein, Slobodan Milosevic, Osama bin Laden, other members of Al Qaeda, leaders of Islamic Jihad, and other foreign nationals accused of
genocide, war crimes or crimes against humanity.”

In her confirmation hearing as Secretary of State before the Senate Foreign Relations Committee in January 2009, Hillary Clinton said, “Whether we work toward joining or not, we will end hostility toward the International Criminal Court and look for opportunities to encourage effective International Criminal Court action in ways that promote U.S. interests by bringing war criminals to justice.” Speaking in Nairobi, Kenya, in August 2009, Secretary of State Clinton said that it was a “great regret” that the United States was not a party to the International Criminal Court, but that the United States has supported the Court and “continue[s] to do so.”Obama Administration officials have recently indicated, amid a wider review of U.S. policy toward the Court, that the Administration is “considering ways in which we may be able to assist the International Criminal Court, consistent with our law, in investigations involving atrocities.” (U.S. Mission in Geneva, “Press Briefing with Stephen J. Rapp, Ambassador-at-Large for War Crimes,” January 22, 2010). A January 2010 review by the Department of Justice concluded that diplomatic or “informational” support for “particular investigations or prosecutions” by the International Criminal Court would not violate existing laws (U.S. Department of Justice, Office of Legal Counsel, “Memorandum for Mary DeRosa, Legal Advisor, National Security Council, Re: Engagement with the International Criminal Court,” January 15, 2010).

In November 2009, the United States began formally attending meetings of the International Criminal Court’s Assembly of States Parties as an observer nation, and in May 2010 sent a delegation led by Ambassador-at- Large for War Crimes Issues Stephen Rapp and State Department Legal Advisor Harold Koh to the Review Conference of the Rome Statute in Kampala, Uganda. Administration officials reiterated at the Conference the United States’ intention to support current cases before the International Criminal Court.

In addition, Rapp stated that Administration officials had “renewed our commitment to the rule of law and capacity-building projects in which we have ongoing in each” African country in which
International Criminal Court prosecutions are taking place. At the same time, Rapp averred that the Administration was “nowhere near that point” of submitting the Rome Statute for ratification. The United States
voted in favor of U.N. Security Council Resolution 1970, referring the situation in Libya to the
International Criminal Court, the first time it has done so.

American Exceptionalism

Martin Lasden, editor of the California Lawyer, wrote in 2012:

“Time and again, the United States takes positions on human rights issues that drive our allies nuts. As Michael Ignatieff, a former leader of Canada’s Liberal Party, recently observed: “From Nuremberg onward, no country has invested more [than the U.S.] in the development of international jurisdiction for atrocity crimes, and no country has worked harder to make sure that the law it seeks for others does not apply to itself.”

It was along these lines that President George W. Bush in 2002 “unsigned” the treaty that led to the creation of the International Criminal Court. The ICC now has 120 countries onboard. But because of concerns that American citizens might one day be brought before such a tribunal, the United States remains the only western industrialized nation that is not a party to the court.

Even the International Genocide Convention-which shouldn’t have been controversial at all-faced tough sledding in the U.S. Senate after being adopted by the United Nations General Assembly in 1948. In fact, it wasn’t ratified for almost 40 years, and then only after the Senate attached a so-called “sovereignty package” that essentially stripped the measure of its binding power.

Call this American exceptionalism. Call it hypocrisy. But at the very least it lends an element of instability to a system of laws and norms that is largely in America’s interest to support.”

Congressional Interest in International Criminal Court Activities

Many Congress Members oppose the International Criminal Court on jurisdictional and other grounds. For example, several pieces of draft legislation introduced during the 111th Congress, such as H.R. 5351 (Ros-Lehtinen), S.Con.Res. 59 (Vitter), and H.Con.Res. 265 (Lamborn), expressed broad objections to the International Criminal Court and to U.S. cooperation with it.

In the 112th Congress, S.Res. 85 (Menendez), agreed to in the Senate on March 1, 2011,
welcomes the U.N. Security Council referral of Libya to the International Criminal Court. Draft legislation introduced during the 111th Congress referenced the International Criminal Court in connection with human rights abuses committed in the Democratic Republic of Congo and by the Lord’s Resistance Army in central Africa, and inconnection with the global use of child soldiers. Additionally, there has been particular congressional interest in the International Criminal Court’s work related to Darfur.

The U.S. Relationship

With respect to the U.S. relationship to the ICC, in November, two U.S. officials led an interagency delegation that resumed engagement with the Court by attending a meeting of the ICC Assembly of States Parties (ASP). This was the first time that the United States had attended such a meeting, and this week’s New York meeting continued that November session. The United States is not party to the Rome Statute, but the U.S. have attended these meetings as an observer.

Significantly, although during the last decade the United States was largely absent from the ICC, the U.S. historic commitment to the cause of international justice has remained strong. The U.S. has not been silent in the face of war crimes and crimes against humanity. As one of the vigorous supporters of the work of the ad hoc tribunals regarding the former Yugoslavia, Rwanda, Cambodia, Sierra Leone, and Lebanon, the United States has worked for decades with other countries to ensure accountability on behalf of victims of such crimes. But as some of those ad hoc war crimes tribunals enter their final years, the eyes of the world are increasingly turned toward the ICC. At the end of May 2010, the United States attend the ASP’s Review Conference in Kampala, Uganda. There were two key items on the agenda: stock-taking and the crime of aggression (see about aggression here).

In 2010, the Court had open investigations and prosecutions in relation to four situations, but had not yet concluded any trials. The stock-taking exercise is designed to address ways to strengthen the Court, and includes issues such as state cooperation; complementarity; effect on victims; peace and justice; and universality of membership. Even as a non-State party, the United States believes that it can be a valuable partner and ally in the cause of advancing international justice. The Obama Administration has been actively looking at ways that the U.S. can, consistent with U.S. law, assist the ICC in fulfilling its historic charge of providing justice to those who have endured crimes of epic savagery and scope. The Ambassador Rapp announced in New York that the U.S. would like to meet with the Prosecutor at the ICC to examine whether there are specific ways that the United States might be able to support the particular prosecutions that already underway in the Democratic Republic of Congo, Sudan, Central African Republic, and Uganda.