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?
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 section1 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:
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 terror3.
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 ICC4. 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 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 release6, 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 reported7, 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.
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 prosecution8. Amnesty International described it as unlawful because the resolution undermines the ICC, which is an international treaty9. 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.
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
10) 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 for11, 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 aid12
for countries that would not guarantee U.S. immunity from prosecution by the ICC13. At that time, Human Rights Watch described the pressure on these countries as the Bush Administration’s attempt at blackmail14.
Amnesty international also provided a
15 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 agreements16, 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 Italy17 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
18, 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 release19 (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:
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 countries21. Human Rights Watch has described this as bully tactics22. 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.