United States and the International Criminal Court

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  • by Anup Shah
  • This Page Last Updated Sunday, September 25, 2005

The U.S. opposed the ICC from the beginning, surprising and disappointing many people. Human rights organizations and social justice groups around the world, and from within the US, were very critical of the U.S. stance given its dominance in world affairs.

The U.S. did eventually signed up to the ICC just before the December 2000 deadline to ensure that it would be a State Party that could participate in decision-making about how the Court works. However,

  • By May 2002, the Bush Administration “unsigned” the Rome Satute.
  • The U.S. threatened to use military force if U.S. nationals were held at the Hague
  • The U.S. continues to pressure many countries to sign agreements not to surrender U.S. citizens to the ICC.

But why would a country, often vocal in the area of human rights, and often amongst the first to promote human rights as a global issue in the past refuse to sign up to an international law and institution designed to protect human rights?

US “unsigns” The Rome Statute in May 2002

At the beginning of May, 2002, the Bush Administration announced that it had resolved to “unsign” the Rome Statute creating the International Criminal Court (ICC). The U.S. has long been afraid of an international body having jurisdiction over the United States and that cases will be brought against U.S. civilian and military authorities on political grounds.

However, as noted in the introduction section on this site, the ICC would not undermine the sovereignty of nations because it would function only where states are unable or unwilling to. The U.S., had it remained signed up, would have been able to prosecute its own members, if needed, itself.

Responding to that annoucement, Washington D.C-based Center for Defense Information (CDI) also pointed out that the concerns of the U.S. are not justified. In addition, CDI noted that this was also another example of the U.S. dropping out of an international treaty, thus raising a number of concerns:

What is lost is costly. First, the rest of the world will regard this action as another unilateral rejection of engagement by the United States except when narrow U.S. interests are involved. In turn, general U.S. diplomatic leadership will also suffer. Worse, the U.S. action sets a precedent for other nations who have signed but not ratified treaties to renounce any inclination to abide by the provisions of such treaties or to refrain from undermining their provisions when it suits their interests — as provided by the 1969 Vienna Convention on the Law of Treaties.

The administration’s action also sets a precedent for similar U.S. actions with regard to other signed but unratified treaties....

What may also be at stake is U.S. adherence to the Vienna Convention itself. Media sources reported that the administration was prepared to announce it would also “unsign” the Vienna Convention at the same time it renounced the Rome Statute. (Indeed, the New York Times article stated that U.S. “officials” said the ICC withdrawal notification “was also intended to relieve the United States of obligations under the Vienna Convention on the Law of Treaties.”) Article 18 of the Convention obligates nations not to take any action that might undermine treaties to which they are signatories even if the treaties are not ratified. Ironically, the United States signed but has never ratified the Vienna Convention although it has adhered to the provisions of Article 18.

To undo the Vienna Convention on top of “unsigning” the Rome Statute would constitute a second serious blow to the whole international system of the rule of law, and personal and national accountability for actions that the United States has championed for decades. Such action would further isolate the United States from allies and friends, and confirm for many the charge that the United States is becoming not just a dropout or refusenik but a “rogue” nation itself. That may be why a move against the Vienna Convention, if really contemplated, was postponed. Unfortunately, once such an idea surfaces, it may never go away.

Colonel Daniel Smith, USA (Ret.), Dropping Out — American Style, CDI Weekly Defense Monitor, Volume 6, Issue #14, May 16, 2002

Side Note

CDI’s concerns raises another thought that in the light of the terrorist attacks on September 11 and the resulting “war on terror.” That is, there is of course an urgent need to really understand why various nations, groups or societies around the world might regard the United States with varying degrees from suspicion and caution to outright hatred based on its various international policies and actions. Hence, not participating in the ICC deals another blow to the U.S’s credibility on the international arena. For more on this angle, see this site’s section on the war on terror.

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US threatens military force if personnel held at the Hague

On 3 August, 2002, U.S. President George Bush signed into law the American Servicemembers Protection Act (ASPA) of 2002. Human Rights Watch and others condemned such use of U.S. military against the ICC. For example,

  • The act was dubbed the “Hague Invasion Act” because, as Human Rights Watch commented, “The new law authorizes the use of military force to liberate any American or citizen of a U.S.-allied country being held by the court, which is located in The Hague.”
  • In addition, “the law provides for the withdrawal of U.S. military assistance from countries ratifying the ICC treaty, and restricts U.S. participation in United Nations peacekeeping unless the United States obtains immunity from prosecution. At the same time, these provisions can be waived by the president on ‘national interest’ grounds.”

But as Human Rights Watch noted further, “another provision of the bill allows the United States to assist international efforts to bring to justice those accused of genocide, war crimes or crimes against humanity — including efforts by the ICC.” This can be seen as saying “we will help you bring others to justice, but not us.”

But the ASPA had been controversial for some time.

At the beginning of December, 2001, when the ASPA had been passed by the U.S. Senate, various rights groups expressed a lot of concern about this controversial act. As Human Rights Watch described back then:

The ASPA would empower the U.S. president to use “all means necessary and appropriate” to free any American detained by the International Criminal Court, which will prosecute individuals accused of genocide, crimes against humanity, and war crimes. It also prohibits cooperation of any kind with the court.

U.S.: Waiver Needed for War Crimes Court, Human Rights Watch Press Release, December 10, 2001

The Coalition for the International Criminal Court is a network of over 1,000 non-governmental organizations (NGOs) advocating for a fair, effective and independent International Criminal Court (ICC). The Coalition pointed out in a December 11 2001 press release, that this ASPA provides “the legal framework to support U.S. opposition to the future International Criminal Court (ICC).” Furthermore, as Heather Hamilton, of the Coalition says in the previous link, “it’s shocking that the [U.S.] Senate has authorized the use of force against the very allies who have joined the U.S. in the international campaign against terrorism.”

After strong pressure from various human rights groups and others, on December 20, 2001, the U.S. House and Senate agreed in conference committee to reject the Senate’s ASPA. In its place, Congress passed the House’s Hyde Amendment which was also criticized by various rights groups as still trying to undermine the ICC. As the Coalition for the ICC reported, this amendment was “a weaker yet likewise prohibitive piece of legislation intended to undermine U.S. cooperation with the future International Criminal Court (ICC) by barring use of Defense Department funds for any related activities.”

This has also been seen by many as another part of the efforts by the United States to undermine various international agreements, and trying to exempt itself from various obligations. To that end, the U.S. is seeking agreements with other countries not to surrender or transfer U.S. nationals to the ICC.

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US pressuring other nations not to surrender or transfer US nationals to the ICC

In July 2002, the United Nations Security Council agreed on resolution 1422 to exempt peace-keepers from prosecution. Amnesty International described it as “unlawful” because the resolution undermines the ICC, which is an international treaty. “What the Security Council has done,” Amnesty criticizes, “is to attempt to amend a treaty agreed between state parties, a power in this case only given to the Assembly of States Parties. Moreover, the Council is exceeding its powers by seeking to amend a treaty which is fully consistent with the UN Charter. In addition, by invoking Chapter VII of the UN Charter, the Security Council has wrongly characterized the US threat to veto peace-keeping operations as either a threat to peace, a breach of peace, or an act of aggression. None of those terms apply to a court created to establish accountability for the worst possible crimes under international law.”

Furthermore,

  • A lot of pressure for this resolution came from the United States, and the United Kingdom, as Amnesty also pointed out
  • Jim Lobe, writing for Inter Press Service also summarized (June 9, 2003) that in 2002, “Washington asked the Security Council to approve a complete, indefinite exemption from the Court’s jurisdiction for U.S. nationals, and even threatened to veto the renewal of U.N. peacekeeping operations in Bosnia and elsewhere if it did not get its way. But the other Council members, particularly those associated with the European Union (EU), refused to go along.” In the end, “the two sides compromised by approving a resolution that granted an exemption of one year for all individuals from countries that had not ratified the Rome Statute.”
  • Human Rights Watch added that this resolution was weaker than what the U.S. was going for, which was to “to permanently exempt Americans from the reach of the International Criminal Court.”

Since then, the United States has continued its opposition and has approached a number of countries to seek an agreement not to surrender or transfer U.S. nationals to the ICC.

These agreements have been called various things, from the “Article 98” agreement (referring to the Article in the Rome Statute that seems to provide such provisions), to “impunity agreements”, “bilateral agreements” or “bilateral impunity agreements” (BIAs).

In August 2002, the U.S. threatened to withdraw military aid for countries that would not guarantee U.S. immunity from prosecution by the ICC. At that time, Human Rights Watch described the pressure on these countries as the Bush Administration’s attempt at “blackmail.”

Amnesty international also provided a scathing report of those threats and the U.S. position on the ICC. Amongst the criticism of such agreements, they said that [emphasis added]

  • Instead of being subject to the ICC, “the USA expresses its intention to investigate and prosecute only “where appropriate”, thus, indicating that the decision to investigate or prosecute is a matter solely within the discretion of the USA and not a matter of law.”
  • the agreement does not provide for primary jurisdiction in the USA — or even any jurisdiction in the USA — but simply provides that the second state may not surrender or otherwise transfer persons to the International Criminal Court”
  • there is no requirement that the second state investigate and, if there is sufficient admissible evidence, prosecute.”
  • To effectively undermine the ICC in some circumstances, U.S nationals and the nation in the agreement cannot be witnesses before any ICC investigation: “the US impunity agreement is designed to prevent US nationals and associated persons, as well as nationals and associated persons of the second state, from appearing as witnesses, including as expert witnesses, before the International Criminal Court.”

In addition, “the US has made clear that it is approaching almost every other state or jurisdiction seeking impunity for its nationals with regard to prosecution in the International Criminal Court for genocide, crimes against humanity and war crimes.” Amnesty International describe some countries as having already “caved into US pressure” and that other nations are also likely to face a U.S. “threat” of withdrawal of aid.

Amnesty also pointed out that such agreements would be illegal. States that are parties to the ICC they said, “will violate their obligations under Article 86 of the Rome Statute to arrest and surrender persons accused of such crimes to the International Criminal Court if their parliaments ratify these agreements.”

Jim Lobe, mentioned above, also adds that, there are currently some 37 such agreements with the U.S and that “the most important [signatories of the U.S. agreement] include Israel, India, Egypt, Romania, and the Philippines; most of the rest are small, poor countries that are heavily dependent on external aid, including U.S. military assistance.” (By July 1, 2003, Human Rights Watch notes that 48 countries have signed such agreements, and most “the majority of them [are] small and poor countries that have not ratified the ICC treaty anyway and therefore have no obligation to transfer U.S. personnel to the court.”

This pressure by the U.S. has caused some friction with their allies in the European Union (EU). In 2002 as Lobe also reports, “the EU’s legal service issued an opinion that any member that signed a bilateral immunity accord with Washington would be violating the Rome Statute.”

Radio Netherlands pointed out in September 2002, that the United Kingdom and Italy were also considering signing this as well, at that time going counter to the policy of the rest of E.U. However, in June 2003, when the U.S. was seeking to press the United Nations Security Council to exempt all U.S. troops and officials from the jurisdiction of the ICC for a second straight year, the European Union on the whole decided not to follow this.

On June 12, 2003, the Coalition for the International Criminal Court mentioned in a press release (PDF) that the European Union adopted a common position on the ICC, and that the “position includes for the first time a call to prevent the signature of US-proposed non-surrender agreements amidst increased US pressure to disengage from influencing countries involved in US negotiations.” The Coalition also provides some more information about the agreements as well as the U.S. position, and is quoted here at length:

Q: Why is the U.S. seeking bilateral immunity agreements?

A: The pursuit of bilateral immunity agreements is part of a long history of U.S. efforts to gain immunity for its citizens from the ICC. From 1995 through 2000, the U.S. government supported the establishment of an ICC, yet one that could be controlled through the Security Council or provided exemption from prosecution of U.S. officials and nationals. ... Purportedly, the Bush Administration believes that the Court could be used as a stage for political prosecutions, despite ample safeguards included in the Rome Statute to protect against such an event.

Contrary to assurances from high-level U.S. officials, the U.S. is not respecting the rights of States that have ratified or acceded to the Rome Statute. As it did in seeking an exemption for peacekeepers from the jurisdiction of the ICC through the Security Council, the U.S. government is using coercive tactics to obtain immunity from the jurisdiction of the ICC for its nationals. U.S. officials have publicly threatened economic sanctions, such as the termination of military assistance, if countries do not sign the agreement. In several instances, there have been media reports of the U.S. providing large financial packages to countries at the time of their signature of bilateral immunity agreements.

Q: What is Article 98 of the Rome Statute?

A: The nations that negotiated the drafting of the Statute did so with extensive reference to international law and with care to address potential conflicts between the Rome Statute and existing international obligations. The drafters recognized that some nations had previously existing agreements, such as Status of Forces Agreements (SOFAs), which obliged them to return home the nationals of another country (the “sending state”) when a crime had allegedly been committed. Thus Article 98 was designed to address any potential discrepancies that may arise as a result of these existing agreements and to permit cooperation with the ICC. The article also gives the “sending state” priority to pursue an investigation of crimes allegedly committed by its nationals. This provision is consistent with the Statute’s complementarity principle, which allows the country of the nationality of the accused the first opportunity to investigate and, if necessary, try an alleged case of genocide, war crimes, or crimes against humanity.

Q: What are the bilateral immunity agreements being sought by the U.S.?

A: To date, several versions of these bilateral agreements have been proposed: those that are reciprocal, providing that neither of the two parties to the accord would surrender the other’s “persons” without first gaining consent from the other; those that are non-reciprocal, providing only for the non-surrender to the ICC of U.S. “persons”; and those that are intended for states that have neither signed nor ratified the Rome Statute, providing that those states not cooperate with efforts of third-party states to surrender U.S. “persons” to the ICC.

Q: Why do experts believe bilateral immunity agreements are in contravention of international law?

A: Many governmental, legal and non-governmental experts have concluded that the bilateral agreements being sought by the U.S. government are contrary to international law and the Rome Statute for the following reasons:

The U.S. bilateral immunity agreements are contrary to the intention of the Rome Statute’s drafters

Delegates involved in the negotiation of Article 98 of the Statute indicate that this article was not intended to allow the conclusion of new agreements based on Article 98, but rather to prevent legal conflicts which might arise because of existing agreements, or new agreements based on existing precedent, such as new SOFAs. Article 98 was not intended to allow agreements that would preclude the possibility of a trial by the ICC where the sending state did not exercise jurisdiction over its own nationals. Indeed, Article 27 of the Rome Statute provides that no one is immune from the crimes under its jurisdiction.

The U.S. bilateral immunity agreements are contrary to the language of Article 98 itself.

The proposed agreements seek to amend the terms of the treaty by effectively deleting the concept of the sending state from Article 98; this term indicates that the language of Article 98 is intended to cover only SOFAs, Status of Mission Agreements (SOMAs) and other similar agreements. SOFAs and SOMAs reflect a division of responsibility for a limited class of persons deliberately sent from one country to another and carefully addresses how any crimes they may commit should be addressed.

By contrast, the US-proposed bilateral immunity agreements seek immunity for a wideranging class of persons, without any reference to the traditional sending state-receiving state relationship of SOFA and SOMA agreements. This wide class of persons would include anyone found on the territory of the state concluding the agreement with the U.S. who works or has worked for the U.S. government. Government legal experts have stated that this could easily include non-Americans and could include citizens of the state in which they are found, effectively preventing that state from taking responsibility for its own citizens.

The U.S. interpretation of Article 98 is contrary to the overall purpose of the ICC.

The U.S. government’s so-called “Article 98” agreements have been constituted solely for the purpose of providing individuals or groups of individuals with immunity from the ICC. Furthermore, the agreements do not ensure that the U.S. will investigate and, if necessary, prosecute alleged crimes. Therefore, the intent of these U.S. bilateral immunity agreements is contrary to the overall purpose of the ICC, which is to ensure that genocide, crimes against humanity and/or war crimes be addressed either at the national level or by an international judicial body.

U.S. Bilateral Immunity or So-called “Article 98” Agreements, Questions & Answers, Coalition for the International Criminal Court, June 13, 2003 (PDF format)

The last point made by the Coalition is also interesting because it suggests that while the Bush Administration opposes the ICC due to fears of prosecution on political grounds, it may itself choose which crimes to investigate, and that could also be politicized.

Following on with their threats, on July 1, 2003, the Bush administration cut off military aid to 35 friendly countries. Human Rights Watch has described this as bully tactics. Richard Dicker, director of the International Justice program, said that the U.S. ambassadors that have been pushing these agreements onto various countries have been “acting like schoolyard bullies.”

As of June 15, 2004, the Coalition noted that the US State Department has reported over 80 Bilateral Immunity Agreements (BIAs), 79 of which they broke down as follows:

Status of U.S. Bilateral Immunity Agreements (BIAs)
U.S. Success In Getting Impunity Agreements
Signatures of BIAs to-date79
States Parties to have signed36
States to receive permanent waivers27
Ratifications of BIAs14
U.S. Unsuccessful In Getting Impunity Agreements
Countries that have publicly refused signing45
States Parties that have not signed58 of 94
States Parties that have not signed despite loss of US aid23

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Geopolitical Context and Imperialistic Policies

Why does the US fear the ICC might be used by other nations for “political” purposes? Why would the US not want its personnel investigated and, if warranted, tried for crimes against humanity? The answer is complex but lies along the lines of its very involved foreign policies.

For decades, the US has been involved in various regions around the world, sometimes propping up dictators and other unpopular regimes. The US has been known to sell many arms and provide training to many human rights abusers. Much of this was done during the Cold War, and the US often said it did this because it was better than these nations “going Communist.” Invoking the “Domino Theory”, if just one nation was to fall outside its sphere of influence, then others could follow. Hence, the US became very involved in most areas of the world.

Chalmers Johnson, president of the Japan Policy Research Institute and professor emeritus at the University of California, has written many books on Japan and Asia, and about US hegemonic power. In 2000, his book, Blowback; The Costs and Consequences of American Empire was published (Henry Holt/Owl Books). In it, he details some context for the US opposition to the ICC and is quoted at some length here:

Largely by design, much of America’s imperial politics takes place well below the sight lines of the American public. Throughout the world in the wake of the Cold War, official and unofficial U.S. representatives have been acting, often in covert ways, to prop up repressive regimes or their militaries and police forces, sometimes against significant segements of their own populaces. Such policies are likely to produce future instances of blowback who origins, on arrival, will seem anything but self-evident to the American public.

Every now and then, however, America’s responsibility for its imperial policies briefly comes into public view. One such moment occurred ... [when much of the] world voted to establish an international criminal court.

... With his opening speech to the conference [In Rome when the ICC was being established] American ambassador Bill Richardson managed to infuriate virtually every human rights group on earth and led many delegates to accuse the United States of “neo-colonial aspirations.” The United States, he said, would support only a court that received its cases solely from the U.N. Security Council, where a single American vote can veto any action.

American officials claim that they must protect their two hundred thousand troops permanently deployed in forty countries from “politically motivated charges.” They maintain that, due to America’s “special global responsibilities,” no proceedings can be permitted to take place against its soldiers or clandestine agents unless the United States itself agrees to them. In essence, America’s leaders believe that their “lone superpower” must be above the very concept of international law — unless defined and controlled by them.

The terms of the treaty setting up the court specifically include as war crimes rape, forced pregnancy, torture, and the forcible recruitment of children into the military. The United States objected to including these acts within the court’s jurisdiction, claiming that the court should concern itself only with genocide. The French at first joined the United States in opposing the treaty because ... France feared that its officers and men could be charged with complicity in [the Rwandan] genocide [where France had trained the Hutu-controlled Rwandan military]. Afer a clause was added to the treaty allowing signatories to exempt themselves from the court’s jurisdiction for its first seven years, France ... agreed to sign.

This escape clause was still not enough for the United States. Its representatives held that because the “world’s greatest military and economic power ... is expected” to intervene in humanitarian catastrophes wherever they occur, this “unique position” makes its personnel especially vulnerable to the mandate of an international criminal court capable of arresting and trying individuals. He did not deal with the question of whether war crimes charges against Americans might on some occasions be warranted, nor did he, of course, raise the possibility that if his country intervened less often in the affairs of other states where none of its vital interests were involved, it might avoid the possibility of even a capricious indictment.

Chalmers Johnson, Blowback; The Costs and Consequences of American Empire, (Henry Holt/Owl Books, 2000/2001), pp.64-67

Chalmers continues, noting historian Rudolph Rummel’s estimate that in the 20th century, 170 million civilians have been victims of war crimes, crimes against humanity and genocide. He notes the observation of Michael Scharf of the American Society of International Law that although there was a pledge of “never again” during the Nuremburg Trials after World War II, that pledge seems to have become “again and again”. This therefore raises the importance of international treaties, laws, and institutions such as the ICC. Chalmers continues:

At Nuremburg, the United States pioneered the idea of holding government leaders responsible for war crimes, and it is one of the few countries that has an assistant secretary of state for human rights. Its pundits and lawmakers endlessly criticize other nations for failing to meet American standards in the treatment of human beings under their jurisdiction. No country has been more active than the United States in publicizing the idea of “human rights,” even if it has been notably silent in some cases, ignoring, implicitly condoning, or even endorsing acts of state terrorism by regimes with which it has been closely associated.... The American government displays one face to its own people (and its English-speaking allies) but another in areas where the support of repressive regimes seems necesasry to maintain American imperial dominance. Whenever this contradiction is revealed as in Rome, Americans try to cover it up with rhetoric about the national burden of being the “indispensible nation,” or what the ... world’s “reluctant sheriff.”

Chalmers Johnson, Blowback; The Costs and Consequences of American Empire, (Henry Holt/Owl Books, 2000/2001), p.68

It would appear then, that a key fear the US has in the ICC is that its own crimes (or support for such crimes) against humanity will be highlighted by an international institution if it is not under the control of the US (or, by proxy, the United Nations Security Council). This would then undermine the ability of the US to project its power around the world, something its neo-conservative Bush Administration want to exploit as the sole remaining super power, as explained on this site’s section on Military Expansion.

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Author and Page Information

  • by Anup Shah
  • Created: Monday, July 20, 1998
  • Last Updated: Sunday, September 25, 2005

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Document Revision History

DateReason
September 25, 2005Added some geopolitical context to the US opposition of the ICC
June 26, 2004Update added on how many countries had signed bilateral agreements with the U.S. to give U.S. nationals immunity from the ICC

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