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."
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 has not yet announced its formal policy
toward the ICC. It has indicated, however, that it would end US hostility
toward the Court and consult with military leaders before deciding whether
to join the ICC. The Obama administration has also stated that it supports
the ICC's Darfur investigation and the warrant issued for Omar Al Bashir,
president of Sudan.
Read about
the Obama administration's current position toward the ICC.
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.
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.
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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