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US & ICC > Administration Update > Bush Administration

Bush Approach to the ICC

The administration of George W. Bush actively opposed the International Criminal Court during its first term, and it gradually softened this hostility 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 forced the UN Security Council to pass 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 might 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.

Early Approach

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.

Suspension of the Rome Statute Signature: The US Disengages

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 unusual act of suspending the legal force of its signature of the Rome Statute and informed the UN Secretary-General that the US recognizes no obligations under the Statute and has no intention to become a party. Under the Vienna Convention on the Law of Treaties, this notification had the effect of deactivating but not erasing the signatures. The US can reinstate its signature of the Rome Statute by sending a note to the UN Secretary-General declaring the US intent to assume again the obligations of a signatory.

Reaction in Congress

International Reaction

A New US Policy

Subsequent to the May 6, 2002 ICC policy announcement by the Bush Administration, the administration said that:

  • It would continue to have a leadership role in promoting international justice, but would devote its resources to supporting domestic or combined domestic/international tribunals such as the Special Court in Sierra Leone, and as a last resort, to the creation of ad hoc courts by the Security Council.
  • It planned to amend federal law to expand US ability to initiate domestic prosecutions.
  • It planned to actively negotiate bilateral non-surrender (so-called Article 98(2)) agreements "with every country in the world, regardless of whether they have signed or ratified the ICC, regardless of whether they intend to in the future."
  • It "will regard as illegitimate any attempt by the court or state parties to the treaty to assert the ICC's jurisdiction over American citizens" and "will take the actions necessary to ensure that [its] efforts to meet [its] global security commitments and protect Americans are not impaired by the potential for investigations, inquiry, or prosecution by the International Criminal Court, whose jurisdiction does not extend to Americans and which [it does] not accept."
  • It will "respect the right of other states to be part of the ICC" but "they in turn must respect [its] decision not to be bound by jurisdictional claims to which [it] has not consented.

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."

International Reaction

The Darfur Referral

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, at US insistence, 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 of atrocities in Sudan in his investigations, he recognized that for the process of accountability to take hold, Sudan's government must also investgate. 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.

A Shift in Practice, if Not Policy

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 and 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.

Responses to Bush Administration Fears About the ICC

Claim: The ICC potentially could investigate and try US citizens without US consent even though the US is not a party to the ICC treaty.

Opponents of the ICC in the United States continue to make these claims.

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 includes the ICC within 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 the individual's government. Legal arguments disputing this application of international criminal law have not proven convincing to most governments.

Claim: The Court has too much unchecked power and its Prosecutor cannot be controlled.

Response: The ICC has many checks and balances in its Rome Statute that limit the authority of the Prosecutor and judges. For example:

  • The Prosecutor cannot pursue an investigation on his or her own initiative without the approval of at least two judges.
  • The judges, the Prosecutor or an accused can ask that either a judge or the Prosecutor be disqualified if there are doubts about his or her impartiality.
  • No two judges may be from the same state, and, given the pattern of ratification, most of the 18 judges will be from countries that are America's allies and friends.
  • The Prosecutor must immediately notify a suspect's state of nationality about an impending investigation.
  • A state can decide to conduct its own investigation of a citizen suspected of ICC crimes and thus stop the Prosecutor from acting if the investigation is genuine.
  • The Assembly of States Parties (ASP), made up of member states, has ultimate oversight authority over the Court. For example, if a judge or the Prosecutor acts inappropriately, the ASP can remove him or her.

Additional safeguards include:

  • The UN Security Council can prevent the Court from proceeding with specified investigations or prosecutions for a 12-month period, and can renew that request indefinitely.
  • A state can withhold, or choose to negotiate protected disclosure of, any information that it feels would prejudice its national security interests.

Claim: The ICC could investigate and prosecute US leaders for the "crime of aggression."

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 Assembly 2010 Review Conference. The US expressed satisfaction at its outcome.]

Claim: The Court's very existence threatens US sovereignty.

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 or do not commit atrocities in other countries, and the US will have no obligation to transfer them to the Court.

Claim: The Court could be politically motivated against US leaders and soldiers.

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 the many safeguards mentioned above, 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.

Further, many countries that have joined the ICC are America's allies and friends.

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.

Claim: The ICC prevents trials from occurring in the country where the atrocity took place.

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.

Claim: The ICC's Rome Statute does not meet US constitutional standards, particularly with the due process rights it accords to defendants.

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 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 have a right to jury trials 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.