Bush Administration

2001-2009

The Bush administration actively opposed the International Criminal Court during the first term, and gradually softened their approach in the second.

 

When it became clear that the Rome Statute of the ICC would enter into force in 2002, the Bush administration announced a policy of outright noncompliance. 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. At this time, the US also pressured the UN Security Council to pass resolutions barring the ICC from investigating alleged crimes committed by peacekeeping forces of non-States Parties. Realizing that the Court can serve US national interests, as was the case in Darfur, and that a vehemently anti-ICC campaign was unflattering in the international arena, the Bush administration partially relaxed its rhetoric and general approach to the ICC.

White House photo by David Bohrer

THE EARLY YEARS

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

May 6, 2002: Under Secretary of State Marc Grossman at the Center for Strategic and International Studies announced the results of the Bush Administration's policy review of the United States position on the ICC.

 

  • 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.

Ask John Bolton how he feels about the U.S. pulling out of the treaty creating the new International Criminal Court, and he doesn't hesitate: 'It was the happiest moment of my government service,' he says.

-Robbins, Carla Anne. "State Department's Arms Chief Leads Charge Against Treaties," Wall Street Journal, July 19, 2002. Web. 

NEW US POLICY

After 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 it 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 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."

DARFUR REFERRAL

 

March 31, 2005: The United States abstained from voting Resolution 1593 , thereby, allowing the Security Council to refer the situation in Darfur, Sudan to the ICC. 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.

 

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."

 

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 investIgate.

 

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."

 

July 2008: the State Department acknowledged that it was considering an information request from the ICC.

 

 

 

 

 

 

 

A CHANGE 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.

June 2006: Bellinger III acknowledged in a Wall Street Journal interview that the ICC "has a role to play in the overall system of international justice."

 

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 May 6, 2002 when Under Secretary of State Marc Grossman announced the official US policy of disengagement. 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.

Courtesy George W. Bush Presidential Library and Museum. (P20542-08A)

My key point is that ICC supporters and the United States have more to gain by focusing on our shared values and commitment to advancing the cause of international justice than by trying to persuade each other to change our views about the ICC. 

 

 

 

 

-John. B. Bellinger, Legal Advisor
Remarks to the DePaul University College of Law
Chicago, IL
April 25, 2008

 

 

 

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