The US government was a long-time leader in developing the
standards of international criminal law now incorporated into
the ICC's Rome Statute. It was also an early advocate of establishing
international courts -- from Nuremberg to the UN ad hoc tribunals
for the former Yugoslavia and Rwanda to the Special Court of Sierra Leone.
As an early supporter of the ICC, it also made extraordinary
contributions to the development of its Statute. Significant
examples of US leadership and effectiveness at the ICC negotiations
include the inclusion in the jurisdiction of the Court of
crimes committed during internal armed conflicts, and the
drafting of a supplemental code explaining the precise actions
and intent that must be proved for each of the crimes in the
Statute, which the Pentagon found to be in complete accord
with US military law.
However, from the beginning, the US sought to ensure that
it could maintain control over the ICC, initially arguing
that the UN Security Council should be able to decide whether
or not the Court takes a case, and later insisting on an exemption
for US servicepersons and officials. These suggestions were
rejected by other nations as violating the Nuremberg principle
of individual criminal accountability. Nevertheless, US concerns
were addressed through compromise solutions, including basing
the court on the principle of complementarity, which means
that the US will always have a primary right to investigate,
and if warranted, try any US national accused of a crime within
the jurisdiction of the Court.
Although the US, along with Iraq, Israel, China, Yemen, Libya,
and Qatar voted against the adoption of the ICC Statute, and did not join the approximately 140 states in Rome
that adopted the Statute by consensus in July 1998, the
Clinton administration continued to participate fully in the
ongoing negotiations and asked his Ambassador-at-large for
War Crimes Issues, David Scheffer, to sign the Statute on
December 31, 2000. At the same time, President Clinton recommended
that his successor not ratify the treaty, which he called
"flawed."
The Bush Administration has continued to insist on full exemption
from the ICC's jurisdiction for officials
and agents of the United States and other governments as long
as they are not party to the Rome Statute. However, both ratifying
and signatory states have emphasized that this demand, which
would require the Court to give preferential treatment to
some suspects over others, would violate international law,
and would delegitimize the Court. At first, the Bush administration
sent small low-level delegations to the ongoing negotiations,
but beginning in 2002 it failed to send any delegation at
all. Finally, in May 2002, the administration announced that
it would not participate in any activity whatsoever involving
the ICC and would not cooperate with the Court once it was
established. Read about
the Bush administration's current position toward the ICC.
When the Bush administration could not obtain an exemption from ICC jurisdiction for its officials and personnel involved in UN authorized missions, the United States vetoed the extension of the Bosnian peacekeeping mission on June 30, 2002. Against the wishes of many of its allies, the US then pushed for the adoption of Security Council Resolution 1422 in July 2002 and its later renewal in June 2003 under Resolution 1487, to shield all current and former officials and personnel in UN missions from non-ICC countries from prosecution by the ICC. Resolution 1422 allowed the Security Council the option of renewing the exemptions annually. But by June 2004, the US announced its decision not to bring Resolution 1487 up for a vote. Hostility toward the text increased in light of the revelations of prisoner abuse in Iraq. Shortly after announcing its decision, the US pulled out peacekeepers from several UN missions, including 2 from Kosovo and 7 from Ethiopia-Eritrea. Read more about administration policy towards peacekeeping and the ICC.
Currently, the Bush Administration is conducting a vigorous campaign to conclude bilateral immunity agreements to remove US nationals from the reach of the Court. The administration claims that these agreements meet the requirements of Article 98(2) of the ICC Statute. However, Article 98(2) only addresses treaties between countries covering persons that they have sent to each other on official business. The Article's wording explicitly requires the existence of a "sending state" relationship, such as when US military and civilian personnel are sent to a receiving state by the US government pursuant to Status of Forces or Status of Mission agreements (SOFAs or SOMAs). Such treaties often say that if such a person commits a crime in a country where he or she has been sent, he or she is to be returned to the sending country. Although the US has said that it is not applying pressure on states to sign non-surrender agreements, some US government officials have indicated that a state's unwillingness to sign could affect US support for its entry into NATO and lead to the cut off of US military aid. While some officials have argued that the administration is obligated by the American Servicemembers' Protection Act (ASPA) to withhold military aid from states parties that do not conclude such agreements, administration Spokesperson Reeker has acknowledged that the ASPA "does not prevent the United States from providing military assistance to any country when the president determines that such assistance is important to the national interests." There have been reports in the media and by foreign officials and NGOs that threats have been made toward smaller countries to cut off non-military aid as well. As of May 2005, the State Department indicates that 100 countries have signed bilateral immunity agreements with the US, 41 of which are states parties to the Rome Statute. Read more about US policy towards bilateral immunity agreements and the ICC.
In the US Congress, while there are a few very vocal members adamantly opposed to the ICC and international obligations in general, most negative votes have arisen because members lack information, have been swayed by disinformation, or see the Court as low priority. Those who oppose the Court have many of the same concerns as the Administration, but are also guided by their belief in American exceptionalism and their perception that the ICC violates US sovereignty. The American Servicemembers' Protection Act (ASPA), signed into law in 2002, includes provisions prohibiting cooperation with the ICC; restricts US participation in UN peacekeeping operations; prohibits direct or indirect transfer of classified national security information, including law enforcement information, to the ICC, even if no American is accused of a crime; prohibits US military assistance to parties to the ICC; and provides preauthorized authority to free members of the armed forces of the US and certain other persons detained or imprisoned by or on behalf of the ICC. However, proponents of the Court included in the final version broad waiver authority for the President, strengthened by a stipulation that no part of the bill may interfere with the President's constitutional authority to make foreign policy. Moreover, the conference committee made a deliberate decision not to modify the amendment added in the Senate version that prohibits any portion of the bill from interfering with US efforts to bring to justice foreign nationals accused of atrocious crimes (Dodd Amendment).
The proposed Nethercutt Amendment to the Foreign Operations appropriations bill, which passed the House in July 2004, cuts Economic Support Fund aid, including some counter-terrorism funds, to all state parties to the ICC that have not signed bilateral immunity agreements (BIAs) with the U.S. The Nethercutt Amendment differs from the American Servicemembers Protection Act (ASPA) by adding economic aid cut offs to ASPA cuts in military aid and by not allowing Presidential waivers for friendly States. In addition, existing Status of Forces Agreements (SOFAs) and other bilateral agreements already provide full U.S. jurisdiction over U.S. personnel and officials serving abroad. The amendment passed in the Senate on December 7, 2004. Read more about
recent action in Congress on the ICC.
The EU has made the ICC a priority issue and has called repeatedly
on Washington to reconsider its position on the Court. These
interchanges have made it clear that the ICC is very likely
to remain a continuing irritant in EU-US relations. Nations
elsewhere also continue to raise the ICC in their bilateral
relations with the United States. In all of these discussions
other countries point out that the US position is not compatible
with the American effort to achieve worldwide cooperation
in the effort against terrorism. They also call attention
to its inconsistency with the US's worldwide pursuit of the
rule of law and the strengthening of judicial systems, as
well as with American leadership in seeking accountability
for international atrocities through tribunals such as those
for Rwanda and Yugoslavia. In the eyes of these countries,
the US appears to have turned its back on the lessons of the
wars and atrocities of the 20th century, on its own extensive
and important substantive contributions to the Rome Statute
and on the United Nations. Read
the latest about the international reaction to the US position.
Opposition to the International Criminal Court in the United
States has altered somewhat in focus and approach since the
ICC has become an inescapable reality. Since it is no longer
possible to urge that the Court be stopped, opposition objectives
now range from the official goal of maximum separation and
self protection from the Court to proposals in Congress and
some sectors of the public to preempt, delegitimize and incapacitate
the Court as it begins.
Among the American public, a series of polls show that around
65% of respondents support immediate American participation
in the Court and ratification of the Rome Statute. AMICC has
found a strong public response in various parts of the country
to the Court in the establishing of local alliances. As AMICC's
membership attests, the ICC cause attracts a wide and diverse
variety of organizations that believe that the Court will
uniquely serve and promote the individual issues and objectives
to which they are committed. Read
more about US public opinion.
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