The ICC and the US

The ICC Building

Both the Bill Clinton and George W. Bush administrations publicly opposed ratifying the ICC because of concerns that the international court would compromise national sovereignty. Clinton did, however, sign the treaty as a sign of US support for ending impunity for grave rights violations.

Upon signing, President Clinton said: “The United States should have the chance to observe and assess the functioning of the court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor, submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied. Nonetheless, signature is the right action to take at this point. I believe that a properly constituted and structured International Criminal Court would make a profound contribution in deterring egregious human rights abuses worldwide, and that signature increases the chances for productive discussions with other governments to advance these goals in the months and years ahead.”[4]

Since then, the US has evolved and sometimes vacillated between actively undercutting the court under President Bush, to a quiet role, under the Obama administration, not a party to the court but standing by and letting the court fulfill its first few cases, with limited engagement.

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US arguments for Involvement with the ICC and Against Involvement with the Court

Butch Bracknell, a Marine lieutenant colonel and a senior fellow at the Atlantic Council, wrote an article for the LA Times articulating why the US should support the ICC. It is worth quoting at length:

“I recently returned from a week in Iraq, where I trained an elite security force unit on human rights and the law of combat operations. Discussions regarding the responsibility of commanders for the acts of their forces migrated to the issue of the United Nations’ International Criminal Court. One Iraqi officer asked me, “If the United States believes in accountability over impunity, why are you not a party to the International Criminal Court?” I did not have a satisfactory answer.”

John Bolton’s ICC policy

As Bush’s former Ambassador to the UN John Bolton explained to House International Relations Committee in 2000: “We should isolate and ignore the ICC. Specifically, I propose for the United States policy – I have got a title for it .. I call it the Three No’s: no financial support , directly or indirectly; no collaboration; and no further negotiations with other governments to improve the Statute… This approach is likely to maximize the chances that the ICC will wither and collapse, which should be our objective.”

The ICC poses extraordinarily low risks to U.S. sovereignty, service members and public officials abroad. Under the Rome Statute’s “complementarity” principle, before the court asserts jurisdiction over a citizen, the ICC prosecutor must determine and substantiate that the citizen’s country is operating with impunity or that its judicial processes are broken or powerless. To avoid ICC jurisdiction over American service members and public officials, the United States would have to avoid charging and indicting war criminals, and bringing cases to court. All that is required is for the U.S. to undertake a good-faith investigative effort of offenses under the statute and domestic law, and meaningfully assert national jurisdiction over alleged offenses.

The Rome Statute merely confirms our national social and legal instincts: to address unlawful activity appropriately and within an evenhanded, legitimate legal framework. As long as U.S. processes continue to operate and set the world standard for impartial investigations and just exercise of prosecutorial discretion, the U.S. has little to fear from the ICC.

Absent accession to the Rome Statute, the message America sends to the world is unprincipled: The U.S. is committed to the concept of multilateralism — except when it is not. According to a September 2010 poll by the Chicago Council on Global Affairs, 70% of Americans believe that the United States should participate in the Rome Statute treaty agreement on the International Criminal Court to try individuals for war crimes, genocide, or crimes against humanity if their own country won’t try them. But US policy hasn’t followed US public opinion.

American Servicemembers Protection Act

The US’s first legislation in the ICC, adopted by Congress,was the American Servicemembers’ Protection Act, called by opponents of the legislation, “The Hague Invasion Act.” The law allows the President to use “any means necessary” to free US citizens from custody in The Hague.

The Nethercutt Amendment

In December 2004, Congress adopted the Nethercutt Amendment. According to the Coalition of the International Criminal Court, “This legislation is far more wide-reaching than ASPA and authorizes the loss of Economic Support Funds (ESF) to all countries, including many key US allies, which have ratified the ICC treaty but have not signed a bilateral immunity agreement with the US.”

Bilaterial Immunity Agreements/ Article 98 Agreements 

Over the course of the Bush administration’s two terms, the US signed Bilateral Immunity Agreements (BIAs) with over 100 countries. The BIAs  prohibit the country from turning over any US citizens to the ICC, even if that country was a party to the Rome Statute. In some instances the US made signing a BIA a requirement for receiving US funds for aid.