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.

POSITIONS OF US ADMINISTRATIONS

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."

Read about the Clinton administration and the ICC.

The Bush administration 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 policy towards peacekeeping and the ICC.

Read about the Bush administration's bilateral immunity campaign to shield US nationals from the ICC.

The Obama administration began by stating that it would end US hostility toward the Court and consult with military leaders before deciding whether to join the ICC. It has since participated in meetings of the ICC's governing body, the Assembly of States Parties, and met with ICC officials with a view to cooperating witht he Court. The Obama administration has also stated that it supports the ICC's Darfur and Libya investigations, the second of which it voted for in the UN Security Council, as well as many of the Court's outstanding arrest warrants.

Read about the Obama administration's current position toward the ICC.

REACTION IN CONGRESS

In the US Congress, while there were a few very vocal members adamantly opposed to the ICC and international obligations in general, most negative votes arose because members lacked information, had been swayed by disinformation, or saw the Court as low priority. Those who still oppose the Court share many of the same concerns of the Bush 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 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 Nethercutt Amendment to the Foreign Operations appropriations bill, which was signed into law on December 7, 2004 for Fiscal Year 2005 and renewed for Fiscal Years 2006 and 2008, cut Economic Support Fund aid, including some counter-terrorism funds, to ICC States Parties that refused bilateral immunity agreements (BIAs) with the US. The Nethercutt Amendment, which expired on September 30, 2008 and was not renewed, differed from the American Servicemembers' Protection Act (ASPA) by ending economic aid in addition to ASPA cuts in military aid. In addition, existing Status of Forces Agreements (SOFAs) and other bilateral agreements already provide full US jurisdiction over US personnel and officials serving abroad.

Read more about congressional action on the ICC.

US PUBLIC OPINION

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.

INTERNATIONAL REACTION

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 under the Bush administration was 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' 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 more about the international reaction to the US position.