The United States and many advocates for the
International Criminal Court (ICC) have long been at odds over the
court's statute, accountability, and jurisdiction. Although these
differences have not been resolved, two recent actions have
refocused international and domestic attention on America's policy
toward the ICC. The first was enactment of the Nethercutt
amendment, which extended prohibitions on assistance to ICC
parties beyond those already in place under the American
Servicemembers' Protection Act (ASPA). The second is the
debate over whether or not the U.N. Security Council should
refer the genocide in Sudan to the ICC for investigation.
As with earlier
disagreements over U.S. policy toward the ICC, advocates of the
court seek to portray the U.S. position as shortsighted and at
odds with human rights. Nothing could be further from the
Both the Clinton
Administration and the Bush Administration concluded that the ICC
is a seriously flawed institution that the U.S. should not join.
Regrettably, the Rome Statute establishing the ICC broke with
long-standing international legal precedent by asserting ICC
jurisdiction over nationals and military personnel from states that
are not party to the treaty. This forced the U.S. to take unusual
steps to protect its people from the ICC.
Unless the ICC's flaws are
addressed, the U.S. should not join the court and should oppose
initiatives that could give credence to the court's claims of
jurisdiction over American nationals and military. Specifically,
the Administration should:
Continue to use the ASPA and
the Nethercutt amendment as tools to secure Article 98
agreements. The ASPA
and Nethercutt amendment have contributed to America's success
in negotiating Article 98 agreements by which countries agree not
to turn over American persons to the ICC.
Oppose Security Council
resolutions endorsing the International Criminal Court or referring
cases to the ICC. The
U.S. fully supports ad hoc tribunals to address allegations of war
crimes, human rights abuses, and genocide. ICC advocates need
to decide whether their allegiance to the court is more important
than the need to see that justice is done.
As long as the U.S.
determines that it is not in America's interest to join the ICC,
the President must take steps to protect Americans from the
America has long been a
champion of human rights. It was a key supporter of the ad hoc war
crimes tribunals in Rwanda and the former Yugoslavia, which
were approved by the Security Council. It was an eager
participant in the effort to create the International Criminal
Court. Once negotiations began on the final version of the Rome
Statute, however, America's concerns were ignored and the final
document was approved despite U.S. opposition.
Since the approval of the
Rome Statute, U.S. policy toward the ICC has been clear and
consistent: The U.S. opposes the ICC because it is an
international legal body that lacks prudent safeguards against
political manipulation, possesses sweeping authority without
accountability to the Security Council, and violates national
sovereignty by claiming jurisdiction over the nationals and
military personnel of non-party states.
The U.S. policy toward the
ICC was initiated by the Clinton Administration-a fact that is
conveniently ignored by ICC advocates. According to former
Ambassador-at-Large for War Crimes Issues David J. Scheffer, the
1998 negotiations on the Rome Statute "produced a seriously flawed
take-it-or-leave-it text, one that provides a recipe for
politicization of the court and risks deterring responsible
international action to promote peace and security." Although acknowledging the
treaty's "significant flaws" and recommending to his successor
against submitting the treaty to the Senate for advice and consent,
President Bill Clinton signed the ICC treaty in December 2000 to
give the U.S. an opportunity to address American
After several ineffective
attempts to change the objectionable parts of the ICC treaty, the
Bush Administration ended the farce of the U.S. being a signatory
to a treaty that it would never ratify by sending a letter to the
U.N. Secretary-General declaring that "the United States has no
legal obligations arising from its signature" of the Rome
Statute-in essence, "unsigning" the Rome Statute.
In normal circumstances,
this would have ended the matter; but the ICC, in direct
contravention of the norms and precedents of
international law, claims jurisdiction to prosecute and
imprison persons from countries that are not party to the Rome
Statute and, more shockingly, jurisdiction over those who have
specifically rejected the court's jurisdiction. This unprecedented
break with international legal norms has required the U.S. to take
unusual steps to protect its citizens and military personnel
Blocking overzealous advocates of
the ICC from using the Security Council to legitimize the ICC's
illegitimate claims of jurisdiction and
Protecting U.S. citizens and
military personnel through a network of Article 98 agreements
(non-surrender agreements named after the section of the ICC
treaty that permits such arrangements) with as many countries
as possible. Countries that sign such agreements with the United
States promise, in effect, not to surrender U.S. nationals or
military personnel to the ICC without the consent of the U.S.
Even though the Bush
Administration policy is benign, focused solely on shielding the
U.S. from the ICC and not designed to undermine the court, it has
been met with hostility by supporters of the court.
Criticism of U.S. policy
toward the ICC has specifically targeted the ASPA and the
Nethercutt amendment. These laws, respectively,
prohibit disbursement of U.S. military assistance and economic
support funds to countries that are party to the Rome Statute
unless they are specifically exempted in the legislation, have
entered into an Article 98 agreement with the U.S., or have
received a waiver from the President.
Critics object to the
non-surrender agreements and to using U.S. foreign assistance as a
means for convincing countries to sign the agreements. These
criticisms mischaracterize U.S. policy:
Article 98 agreements are
limited in scope. Critics see Article 98 agreements as a
direct threat to the ICC or as "bilateral immunity agreements."
This is a great exaggeration. The agreements are nothing more than
an obligation by the country not to turn U.S. persons over to
the ICC without permission from the U.S. government. They do not
absolve the U.S. of its obligation to investigate and prosecute
alleged crimes or constrain the other nation's ability to
investigate and prosecute crimes committed by an American person
within its jurisdiction. Finally, the agreements do not constrain
the ability of an international tribunal established by the
Security Council to investigate or prosecute crimes committed by
American persons. The Article 98 agreements simply prevent U.S.
persons from being turned over to an international legal body that
does not have jurisdiction recognized by the U.S.
The limited nature of
Article 98 agreements is entirely consistent with international
law, which supports the principle that a state cannot be bound
by a treaty to which it is not a party. The agreements are also
consistent with customary international law because the issue of
ICC jurisdiction is very much in dispute. Moreover, they are
consistent with the Rome Statute itself, which permits such
agreements in Article 98 of the treaty.
The use of foreign aid to
advance U.S. objectives is common. Countries are not entitled to U.S.
assistance. The U.S. can assign any conditions to its assistance
that it deems appropriate and often does so, as demonstrated by the
many laws and congressional earmarks governing disbursement of
foreign assistance. The U.S. distributes most assistance,
particularly military assistance and economic support funds,
to support U.S. policy priorities.
Congress and the Administration have
determined through the ASPA and the Nethercutt amendment that
protecting U.S. persons from the illegitimate claims of ICC
jurisdiction is an American priority. Congress has also
determined that this concern generally supersedes other
foreign aid priorities, but has provided a waiver to the President
for any exceptions.
Constraints on foreign
assistance have been useful in persuading countries to sign Article
98 agreements. The constraints provide a reason (i.e., maintaining
eligibility for U.S. assistance) for countries to sign the Article
98 agreements in the face of aggressive financial and other
pressure from the European Union, the United Nations, and ICC
However, the critics of
the U.S. policy are exaggerating the legislation's impact. As shown
by Table 1, the legislation will potentially affect only 22
countries and less than $100 million in 2005. In truth,
the ASPA and Nethercutt restrictions are far less intrusive
than other constraints on U.S. foreign assistance. For instance,
they do not force a country either to adopt strict labor or
environmental standards or to restructure fiscal priorities. They
do not even demand that a country not become a party to the
ICC. They simply ask the country to respect the sovereign decision
of the U.S. not to be a party.
Critics are similarly
mischaracterizing the U.S. objection to U.N. Security Council
resolutions referencing the ICC, such as a recommendation that
the ICC investigate accusations of genocide, war crimes, and crimes
against humanity in Darfur, Sudan. The U.S. has been
leading the effort to stop atrocities around the world,
particularly in Darfur. Specifically:
While serving as Secretary of
State, Colin Powell declared that violations of human rights,
war crimes, and genocide were occurring.
The U.S. led the effort to pass a
Security Council resolution condemning the atrocities and has
pressed for economic sanctions on Sudan because of the government's
support for militia groups committing atrocities in
The U.S. has been a key supporter
of the African Union peacekeepers authorized by the Security
Council to monitor the situation.
The U.S. is a major donor of
humanitarian aid to people in the region, providing over $567
million in aid since 2003.
The U.S. has consistently insisted
that those responsible for the atrocities in Darfur must be held to
account by an ad hoc tribunal.
The U.S. has been frustrated in its effort.
The Security Council has not imposed sanctions because China,
France, and Russia-afraid that their commercial interests would
suffer-have threatened to veto resolutions imposing sanctions. The
U.N. Human Rights Commission has minimized criticism of Sudan
because that nation sits on the commission.
The U.S. has not drawn the
ire of human rights and ICC advocacy groups because it opposes an
investigation into the atrocities in Darfur. What angers the ICC
advocates is that the U.S. opposes using the ICC to investigate the
atrocities in Darfur. The fact is that ICC advocates have
focused attention away from the true failure-the inability to pass
a Security Council resolution imposing sanctions if Sudan fails to
constrain the militia groups-onto U.S. opposition to a Security
Council resolution requesting that the ICC investigate
atrocities in Darfur.
Worse, the ICC advocates
are dismissive of valid reasons for establishing an ad hoc
tribunal. From the U.S. perspective, using the ICC would undermine
ongoing efforts to build regional capacity among Africans to handle
conflicts and hold accountable those who commit atrocities. As
noted by international lawyers Lee Casey and David
[B]oth of the ICC's
current investigations involve African countries, the Democratic
Republic of Congo and Uganda, respectively. Adding Darfur to this
list begins to look a very great deal like European justice for
that the ICC intends to look at cases in the Central African
Republic and the Ivory Coast bolster that argument.
Moreover, the ICC lacks an
enforcement mechanism and would face many challenges in
arresting and incarcerating perpetrators, since Khartoum would be
unlikely to assist the court. A regional solution based on an
African Union and U.N. hybrid court approved by the Security
Council- perhaps using the existing infrastructure of the
International Criminal Tribunal for Rwanda in Arusha,
Tanzania-could count on support from the existing African Union
forces to support the arrest and incarceration of the perpetrators
and serve as the core of a permanent African Union court of
justice, which is a goal of that body.
The bottom line is that,
while it is opposed to a Security Council resolution supporting an
ICC investigation in Darfur, the U.S. has proposed a credible-even
superior-alternative. The fact that ICC advocates
are angered by the U.S. proposal reveals that they are more
interested in affirming the authority of the ICC through the
Security Council than they are in seeing justice done.
the United States Should Do
The U.S. has decided that
the flaws in the Rome Statute are serious enough to prohibit U.S.
participation in the International Criminal Court. Unless
these flaws are addressed, the U.S. should not join the court and
should oppose initiatives that could give credence to the court's
claims of jurisdiction over American nationals and military
personnel. Specifically, the Bush Administration should:
Continue to use the ASPA and
the Nethercutt amendment as tools to secure Article 98
agreements. Despite the
best efforts of pro-ICC countries and groups, America has
concluded Article 98 agreements with 99 governments-more
than the number of countries that have ratified or acceded to the
Rome Statute. Significantly, over two-thirds of these
agreements are with ICC parties and signatories. The ASPA and
the Nethercutt amendment have contributed to this progress,
and U.S. negotiators should use them to convince other countries to
sign Article 98 agreements with the U.S.
Oppose Security Council
resolutions endorsing the International Criminal Court or referring
cases-including the Darfur atrocities in Sudan-to the
ICC. The United States
has been a leader in trying to force the Sudanese government to
stop supporting the militia groups that are committing atrocities
in Darfur. The Security Council's failure to impose sanctions on
the Sudanese government despite the best efforts of the U.S.
government is a tragedy that sadly reveals the failures of the
U.N. in dealing with human rights abuses. The fact that commercial
interests in China, France, and Russia trump efforts to stop
genocide is shameful.
ICC advocates, however,
have ignored these true failures and instead have focused attention
on U.S. opposition to the ICC. In truth, the U.S. fully supports
establishing a tribunal to address allegations of war crimes, human
rights abuses, and genocide. America has proposed a solution
that will address the situation without compromising America's
policy toward the ICC. The ICC advocates need to decide whether
their allegiance to the court is more important than the need to
see that justice is done in Darfur.
The true measure of
America's commitment to peace and justice and its opposition to
genocide and war crimes lies not in its participation in
international bureaucracies like the ICC, but in its actions.
The United States has led the fight to free millions in Afghanistan
and Iraq. It is a party to many human rights treaties and, unlike
many other nations, abides by those treaty commitments.
The U.S. has led the
charge to hold violators of human rights to account, including
fighting hard for imposing Security Council sanctions on the
Sudanese government until it stops supporting the militia groups
that are committing genocide in Darfur and helps to restore
order to the region. The U.S. polices its military and punishes
them when they commit crimes. In every practical way, the U.S.
honors the beliefs and purposes underlying the ICC.
But America's strong
record on human rights is irrelevant to advocates of the ICC.
Supporters of the court appear more interested in whether or not a
country is a party to the Rome Statute than in whether or not the
country actually lives up to the principles of the ICC
For instance, over 150
allegations of sexual abuse have been made against the civilian and
military personnel deployed on the U.N. peacekeeping mission
in the Democratic Republic of the Congo- including persons from a
number of ICC parties- but few prosecutions or investigations are
ongoing. ICC supporters' time would be better spent in pressing
these countries to hold their nationals and military to account or
urging ICC signatories Iran, Sudan, Zimbabwe, and Russia to address
human rights concerns in their countries--violations that range
from substandard to horrifying.
Schaefer is Jay Kingham Fellow in International
Regulatory Affairs in the Center for International Trade and
Economics at The Heritage Foundation.
the final stages of the U.N. Conference of Plenipotentiaries on the
Establishment of an International Criminal Court, from June 15 to
July 17, 1998, the U.S. proposed changes in the Rome Statute in an
effort to address its concerns and increase the likelihood that the
U.S. could become a party to the ICC. These changes were rejected
by a vote of 113 to 17, with 25 abstentions. The final text of the
Rome Statute was adopted by a vote of 120 to 7, with 21
abstentions. The U.S. voted against. See press release, "UN
Diplomatic Conference Concludes in Rome with Decision to Establish
Permanent International Criminal Court," United Nations, L/ROM/22,
July 17, 1998, at www.un.org/icc/pressrel/lrom22.htm (March
J. Scheffer, "America's Stake in Peace, Security, and Justice,"
U.S. Department of State, August 31, 1998, at
(February 28, 2005).
text of the letter, signed by Under Secretary John Bolton, stated:
"This is to inform you, in connection with the Rome Statute of the
International Criminal Court adopted on July 17, 1998, that the
United States does not intend to become a party to the treaty.
Accordingly, the United States has no legal obligations arising
from its signature on December 31, 2000. The United States requests
that its intention not to become a party, as expressed in this
letter, be reflected in the depositary's status lists relating
to this treaty." Press statement, "International Criminal Court:
Letter to UN Secretary General Kofi Annan," U.S. Department of
State, May 6, 2002, at
www.state.gov/r/pa/prs/ps/2002/9968.htm (March 2,
other things, this legislation prohibits disbursement of selected
U.S. assistance to an ICC party unless the country is specifically
exempted in the legislation, is waived by the President, or has
entered into a bilateral agreement not to surrender U.S.
persons to the ICC. The Senate approved an amendment to add the
ASPA to the Supplemental Defense Appropriations Act of 2002 by
a vote of 75 to 19. The House approved the ASPA in H.R. 4775 by a
vote of 280 to 138. The American Servicemembers' Protection Act
became law when President George W. Bush signed the Supplemental
Defense Appropriations Act of 2002 (Public Law 107-206) on August
2, 2002. The House approved the Nethercutt amendment by a vote of
241 to 166 on July 15, 2004. The Senate approved the Nethercutt
amendment as Section 574 of the FY 2005 Foreign Operations,
Export Financing, and Related Programs Appropriations Bill (H.R.
4818). The President signed it into law (Public Law 108-447) on
December 8, 2004.
98 (2) states: "The Court may not proceed with a request for
surrender which would require the requested State to act
inconsistently with its obligations under international agreements
pursuant to which the consent of a sending State is required to
surrender a person of that State to the Court, unless the Court can
first obtain the cooperation of the sending State for the giving of
consent for the surrender." Rome Statue of the International
Criminal Court, Article 98, U.N. Doc. A/ CONF.183/9, at
www.un.org/law/icc/statute/romefra.htm (March 2,
which is scheduled to receive $209 million in military assistance
and $250 million in Economic Support Funds assistance in 2005, is
not included in the table for two reasons. First, as a major
non-NATO ally, it is exempt from ASPA prohibitions. Second, Jordan
recently signed an Article 98 agreement with the U.S. and received
a six month waiver on February 10, 2005, for the funds that would
be affected by the Nethercutt amendment.
ICC cannot assert jurisdiction without such a recommendation
because Sudan is not a party to the ICC and the alleged
perpetrators and victims are Sudanese.
of State Colin L. Powell, "The Crisis in Darfur," testimony before
the Committee on Foreign Relations, U.S. Senate, September 9,
(March 2, 2005).
Agency for International Development, "Darfur Humanitarian
(March 2, 2005).
B. Rivkin, Jr., and Lee A. Casey, "Darfur's Last Hope," The
Washington Times, February 4, 2005, p. A19.
on comments by Ambassador Pierre-Richard Prosper, U.S.
Ambassador-at-Large for War Crimes Issues. See Brookings
Institution, "Darfur, War Crimes, the International Criminal Court,
and the Quest for Justice," Brookings Briefing,
transcript, February 25, 2005, at
a more detailed discussion, see Brett D. Schaefer "Why the U.S. Is
Right to Support an Ad Hoc Tribunal for Darfur," Heritage
Foundation WebMemo No. 665, February 15, 2005, at