The administration of George W. Bush actively opposed the International Criminal Court during its first term, and it took a more practical approach in its second. Specifically, when it was clear that the Rome Statute of the ICC would enter into force in 2002, the Bush administration adopted a policy of hostility. It completely disengaged from the Court, and it began a campaign to secure Bilateral Immunity Agreements from over 100 countries to shield Americans from the jurisdiction of the Court, punishing countries that refused. It also sought the protection of the UN Security Council which passed several resolutions barring the ICC from investigating possible crimes by peacekeeping forces of non-States Parties. It was only when the administration realized in its second term that the Court may serve US national interests in situations such as Darfur, and that its campaign of hostility was undercutting the US internationally, that it softened its rhetoric and general approach to the ICC.
At the beginning of the Bush administration and following September 11, 2001, administration officials made several statements on the ICC and international justice. Most of these statements focused on the administration's preference to do justice on local and regional levels.
The results of the Bush Administration's policy review of the United States position on the ICC were announced by Under Secretary of State Marc Grossman at the Center for Strategic and International Studies on May 6, 2002. As expected, the Administration took the unprecedented act of suspending the legal force of its signature of the Rome Statute by informing the UN Secretary-General that that the US recognizes no obligations under the Statute and would like its intention not to become a party reflected in the UN's depositary status list. The US believed that with this action it relieved itself of any responsibility not to defeat the object and purpose of the treaty and made unmistakably clear its intention not to ratify the Rome Statute. It is understood that the US could reinstate its signature of the Rome Statute by sending a note to the UN Secretary-General declaring the US intent to assume the obligation of a signatory.
Subsequent to the May 6, 2002 ICC policy announcement by the Bush Administration, the administration said that:
Ambassador Pierre-Richard Prosper, then leading the administration's Office for War Crimes Issues, said that the US had not ruled out the possibility that it would allow the Security Council to refer cases to the Court in the US interest, but he also said that that "the ICC should not expect any support or cooperation from the United States government."
On March 31, 2005 the Security Council passed Resolution 1593 referring the situation in Darfur, Sudan to the ICC. Four Security Council members - the United States, Algeria, Brazil and China - abstained from voting. In explaining its vote, the US stated that it did not veto the referral due to the need of the international community to work together to end the impunity in Sudan. While the resolution provided for the protection of US nationals from investigation or prosecution and stated that the UN would bear none of the costs associated with the referral, the US abstention marked a major shift in practice away from its overt hostility toward the Court.
Following the Security Council referral, the Bush Administration continued to signal acceptance of the Court, at least in the context of Darfur. In May 2005, US Deputy Secretary of State Robert Zoellick stated in a briefing on Sudan that the role of the ICC in Sudan sends "a signal about accountability" and is "a useful deterrence against others and allows us to emphasize a tool about the need to stop violence." In November 2005, Zoellick stated that while the ICC Prosecutor will try to focus on major perpetrators in his investigations, he recognized that for the process of accountability to take hold, Sudanese action must be taken. Also in November 2005, US Assistant Secretary of State for African Affairs Jendayi Frazer told the House International Relations Committee "that if the ICC requires assistance, the United States stands ready for any assistance ... because we don't want to see impunity for any of these actors." In July 2008, the State Department acknowledged that it was considering an information request from the ICC.
During the second term of the Bush administration and following the Darfur referral, US Department of State Legal Adviser John B. Bellinger III made several statements speeches in which he sought to soften anti-ICC rhetoric and to promote a more practical US approach to the ICC.
In June 2006, US Department of State Legal Adviser John B. Bellinger III acknowledged in a Wall Street Journal interview that the ICC "has a role to play in the overall system of international justice." In April 2008, at an ICC conference in Chicago, Bellinger spoke about the past, present and future approach of the United States toward the ICC. It was the most far-reaching statement on US-ICC policy by a high-ranking member of the Bush Administration since Under Secretary of State Marc Grossman announced the official US policy of disengagement on May 6, 2002. Bellinger's remarks - of which AMICC offered an analysis - purported to cover the history of US engagement with (and disengagement from) the ICC, suggested that the next administration's approach to the ICC would follow the "straight line" of the policies pursued by the Clinton and Bush administrations, and laid out a number of factors that would shape the US-ICC relationship, including defining the crime of aggression.
Response: Because the ICC has jurisdiction to investigate and prosecute only individuals, not governments, long standing principles of criminal law influence how the Court works. One of those principles is that an individual of any nationality who commits a crime on a state's territory can be prosecuted by that state - without the consent of his or her respective government.
American citizens are frequently prosecuted in the courts of foreign countries for crimes they are alleged to have committed on foreign territory, without any requirement to obtain US consent for those prosecutions. US courts likewise prosecute foreign nationals who allegedly commit crimes on US territory without seeking the consent of their home state.
By ratifying the ICC's Rome Statute treaty or accepting the ICC's jurisdiction in a particular situation, a country delegates to the ICC its existing and continuing right under international law, and its own domestic law, to investigate, and if warranted, prosecute, any individual of any nationality who is alleged to have committed an atrocity crime on its territory. This legal power over the foreign national exists regardless of the consent or interests of his or her government. Legal arguments disputing this application of international criminal law have not proven convincing to most governments.
Response: The ICC has many checks and balances in its Rome Statute that limit the authority of the Prosecutor and judges. For example:
Additional safeguards include:
Response: Until the Assembly of States Parties can agree on an actionable definition for this crime (that is, the unlawful use of force by one state against another, for example, Iraq's invasion of Kuwait in 1990) and the Statute is amended by the states parties to include this definition, the Court has no authority to charge any individual with this crime. If the US were to join the Court, it could decide not to be bound by the crime of aggression provision and thus shield its leaders and indeed all of its citizens from being charged with aggression. [Note: this amendment was adopted at the 2010 Review Conference. The US expressed satisfaction at its outcome.]
Response: The Court does not judge the actions of states or governments, but only persons. Moreover, like any other treaty, the Rome Statute does not obligate or impose duties on any state that is not a party to the treaty. States have no obligation to cooperate with the Court unless they have chosen to exercise their sovereign right to ratify the Court's Statute. Thus, until the US chooses to ratify the ICC Statute, the Court will not be able to gain custody of US citizens who remain in the US, and the US will have no obligation to transfer them to the Court.
Response: The Court can only investigate the designated types of very serious crimes of high magnitude that fall within the Court's jurisdiction - crimes that would never conceivably be authorized as part of any military strategy by the US armed forces.
Nonetheless, the Bush administration argued that there would always be the possibility of politically motivated charges being lodged against US leaders and soldiers. However, the Rome Statute has many safeguards, most introduced by US negotiators, to thwart politically motivated charges and thus maintain the integrity of the Court. One of the primary safeguards is the power of the US, even as a non-party to the Court, to preempt the Court with its own national investigation of any such charges.
In spite of the safeguards, if the Court were to succumb to politically motivated charges lacking any legal merit, its own future, particularly its credibility, would be at great jeopardy as countries that are members of the Court realize that they too could be subjected to such unwarranted actions.
Further, countries that have joined the ICC are in large part America's allies and friends. Aggressive and rogue regimes would be at high risk of their leaders being prosecuted if they were to join the ICC.
Finally, the ICC does not have a police force. Its power will depend entirely on the willingness of its members and the Security Council to enforce its decisions. The ICC will quickly lose credibility if it acts illegitimately.
Response: The founders of the ICC made it a court of last resort. Significantly, in joining the Court, many countries are adopting laws that strengthen their ability to prosecute war criminals themselves. The existence of the ICC also will help to strengthen states' will to act domestically, because if they do not, the ICC may have jurisdiction in a case and act on it.
History shows that national courts are frequently unable or unwilling to prosecute these types of crimes. Often atrocities arise out of the disintegration of states and the institutions of law and order. And even states that are capable of trying the accused themselves might occasionally prefer to avoid domestic turmoil by delegating such high-profile cases to an international court. For instance, Sierra Leone stated:
The result of this request [for a Special Court for Sierra Leone] is Resolution 1315 of the Security Council. The point here is that if the International Criminal Court had begun to function, Sierra Leone would not have requested the setting up of a Special Court. The perpetrators of those heinous crimes committed in my country, would have been handed to the Jurisdiction of the Court.
Response: The ICC Statute contains the due process rights found in the US Constitution and now well recognized in international standards of due process, with the exception of the American right to jury trial.
In the negotiations, the US accepted the absence of jury trial because civil law systems, which formed the large majority of states negotiating the ICC Statute, do not have jury trials and because it actually is extremely impractical to empanel a jury of peers from the international community to pass judgment on the crimes and defendants of the ICC. Indeed, just as the UN ad hoc tribunals for the former Yugoslavia and for Rwanda rely on panels of experienced judges, so too would the ICC require the expertise and integrity of judges to examine these complex crimes. Any potential American defendant, as unlikely as that might be, would doubtless prefer expert judges to rule on his or her conduct than a cross-section of foreign nationals drawn from around the world. There is a real difference between an international trial and a domestic trial for these purposes.
In any event, US servicemembers do not necessarily enjoy a constitutional right to jury trial under US law. Also, pursuant to the many extradition treaties to which the US is a party, the US may, and occasionally does, extradite a US citizen to foreign courts that lack the right to jury trial and other due process rights. The ICC's procedures are more analogous to US law than perhaps any other state's legal system, so it would be more advantageous for an American citizen to be tried before the ICC, if that unlikely event ever were to occur, than in most foreign courts.
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