The idea of establishing an international court to prosecute
serious international crimes--war crimes, crimes against humanity,
and genocide--has long held a special place in the hearts of human
rights activists and those hoping to hold perpetrators of terrible
crimes to account. In 1998, that idea became reality when the Rome
Statute of the International Criminal Court was adopted at a
diplomatic conference convened by the U.N. General Assembly. The
International Criminal Court (ICC) was formally established in 2002
after 60 countries ratified the statute. The ICC was created to
prosecute war crimes, crimes against humanity, genocide, and the as
yet undefined crime of aggression. Regrettably, although the
court's supporters have a noble purpose, there are a number of
reasons to be cautious and concerned about how ratification of the
Rome Statute would affect U.S. sovereignty and how ICC action could
affect politically precarious situations around the world.
Among other concerns, past U.S. Administrations concluded that
the Rome Statute created a seriously flawed institution that lacks
prudent safeguards against political manipulation, possesses
sweeping authority without accountability to the U.N. Security
Council, and violates national sovereignty by claiming jurisdiction
over the nationals and military personnel of non-party states in
some circumstances. These concerns led President Bill Clinton to
urge President George W. Bush not to submit the treaty to the
Senate for advice and consent necessary for ratification. After
extensive efforts to change the statute to address key U.S.
concerns failed, President Bush felt it necessary to "un-sign" the
Rome Statute by formally notifying the U.N. Secretary-General that
the U.S. did not intend to ratify the treaty and was no longer
bound under international law to avoid actions that would run
counter to the intent and purpose of the treaty. Subsequently, the
U.S. took a number of steps to protect its military personnel,
officials, and nationals from ICC claims of jurisdiction.
Until these and other concerns are fully addressed, the Obama
Administration should resist pressure to "re-sign" the Rome
Statute, eschew cooperation with the ICC except when U.S. interests
are affected, and maintain the existing policy of protecting U.S.
military personnel, officials, and nationals from the court's
illegitimate claims of jurisdiction. Nor should the Obama
Administration seek ratification of the Rome Statute prior to the
2010 review, and then only if the Rome Statute and the ICC and its
procedures are amended to address all of the serious concerns that
led past U.S. Administrations to oppose ratification of the Rome
The United States has long championed human rights and supported
the ideal that those who commit serious human rights violations
should be held accountable. Indeed, it was the United States that
insisted--over Soviet objections--that promoting basic human rights
and fundamental freedoms be included among the purposes of the
United Nations. Eleanor Roosevelt served as chairman of the
U.N. Human Rights Commission when it drafted the Universal
Declaration of Human Rights, which has served as the U.N.'s bedrock
human rights document since 1948. The United States also played a
lead role in championing major international efforts in
international humanitarian law, such as the Geneva Conventions.
The U.S. has supported the creation of international courts to
prosecute gross human rights abuses. It pioneered the Nuremburg and
Tokyo tribunals to prosecute atrocities committed during World War
II. Since then, the U.S. was a key supporter of establishing the ad
hoc International Criminal Tribunal for the former Yugoslavia
(ICTY) and International Criminal Tribunal for Rwanda (ICTR), which
were both approved by the Security Council.
Continuing its long support for these efforts, the U.S.
initially was an eager participant in the effort to create an
International Criminal Court in the 1990s. However, once
negotiations began on the final version of the Rome Statute,
America's support waned because many of its concerns were ignored
or opposed outright in the five-week United Nations Diplomatic
Conference of Plenipotentiaries on the Establishment of an
International Criminal Court held in Rome, Italy, in June 1998.
According to David J. Scheffer, chief U.S. negotiator at the 1998
In Rome, we indicated our willingness to be flexible....
Unfortunately, a small group of countries, meeting behind closed
doors in the final days of the Rome conference, 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.
In the end, despite persistent efforts to amend the Rome Statute
to alleviate U.S. concerns, the conference rejected most of the
changes proposed by the U.S., and the final document was approved
over U.S. opposition.
Since the approval of the Rome Statute in 1998, U.S. policy
toward the ICC has been clear and consistent: The U.S. has refused
to join the ICC because it lacks prudent safeguards against
political manipulation, possesses sweeping authority without
accountability to the U.N. Security Council, and violates national
sovereignty by claiming jurisdiction over the nationals and
military personnel of non-party states in some circumstances.
The United States is not alone in its concerns about the ICC. As
of August 6, 2009, only 110 of the 192 U.N. member states had
ratified the Rome Statute. In fact, China, India, and Russia are among
the other major powers that have refused to ratify the Rome Statute
out of concern that it unduly infringes on their foreign and
security policy decisions--issues rightly reserved to sovereign
governments and over which the ICC should not claim authority.
The ICC's Record
The International Criminal Court has a clear legal lineage
extending back to the Nuremburg and Tokyo trials and ad hoc
tribunals, such as the ICTY and the ICTR, which were established by
the U.N. Security Council in 1993 and 1994, respectively. However,
the ICC is much broader and more independent than these limited
precedents. Its authority is not limited to disputes between
governments as is the case with the International Court of Justice
(ICJ) or to a particular jurisdiction as is the case with national
judiciaries. Nor is its authority limited to particular crimes
committed in a certain place or period of time as was the case with
the post-World War II trials and the Yugoslavian and Rwandan
Instead, the ICC claims jurisdiction over individuals committing
genocide, crimes against humanity, war crimes, and the undefined
crime of aggression. This jurisdiction extends from the entry into
force of the Rome Statute in July 2002 and applies to all citizens
of states that have ratified the Rome Statute. However, it also
extends to individuals from countries that are not party to the
Rome Statute if the alleged crimes occur on the territory of an ICC
party state, the non-party government invites ICC jurisdiction, or
the U.N. Security Council refers the case to the ICC.
International lawyers Lee Casey and David Rivkin point out that
the ICC is a radical departure from previous international
The ICC represents a fundamental break with the past. It has
jurisdiction over individuals, including elected or appointed
government officials, and its judgments may be directly enforced
against them, regardless of their own national constitutions or
court systems. Unlike the ICJ, the ICC has the very real potential
to shape the policies of its member states in the substantive areas
where it operates. These include the core issues of when states can
lawfully resort to armed force, how that force may be applied, and
whether particular actions constitute the very serious
international offenses of war crimes, crimes against humanity, or
Moreover, although it is generally considered to be within the
U.N. family, the ICC is not explicitly a U.N. body. It is an
independent treaty body overseen by the states that have ratified
the Rome Statute.
The ICC is divided into five main components: the Assembly of
States Parties, the presidency, the judges, the prosecutor's
office, and the registrar. The assembly elects the court's judges and
the prosecutor, determines the court's budget, and broadly oversees
ICC operations. The presidency, composed of three judges elected by
their peers, administers the daily operations of the court, except
the independent Office of the Prosecutor. The 18 judges are divided
into the Pre-Trial Division, the Trial Division, and the Appeals
Division and handle the various judicial responsibilities of the
ICC. The Office of the Prosecutor is charged with receiving
referrals and information on alleged crimes, considering them, and
conducting investigations and prosecutions. The registry handles
the non-judicial administration of court matters.
The court's structure establishes few, if any, practical
external checks on the ICC's authority. Among the judges'
responsibilities are determining whether the prosecutor may proceed
with a case and whether a member state has been "unwilling or
unable genuinely to carry out the investigation or prosecution," which
would trigger the ICC's jurisdiction under the principle of
"complementarity," which is designed to limit the court's power and
avoid political abuse of its authority. Thus, the various arms of
the ICC are themselves the only real check on its authority. This
absence of external checks raises serious concerns:
The ability both to interpret the law and effectively to force
member states to adopt its view gives the ICC unprecedented power.
For the first time, a permanent international institution is
entitled to determine the legal obligations of states and their
individual citizens and to criminally punish those individual
citizens--even if its understanding of the law radically differs
from the relevant state's position. Moreover, the ICC's judges are
not otherwise subject to the supervision or control of the states
parties, except in matters of personal corruption. Thus, when the
ICC determines what international law requires in any of its areas
of competence, this is arguably the final word.
The Assembly of States Parties first met in August 2002 to
establish a budget and approve various documents and instruments
negotiated by states parties between 1998 and 2002 that detailed
the court's rules, procedures, and operations. In early 2003, the
judges were elected and sworn in, and Luis Moreno-Ocampo was
selected as the prosecutor in April 2003. The proposed 2010 ICC
budget, which must be approved by the Assembly of States Parties,
would provide for a staff of 781 and a budget of _102.98 million
(about $145 million).
Even though the Rome Statute entered into force in July 2002,
there is little concrete basis for judging the ICC's performance.
Shortly after its formal establishment, the ICC began receiving its
first referrals. Currently, the ICC has opened four cases,
involving situations in the Democratic Republic of Congo (DRC),
Uganda, the Central African Republic, and Darfur, Sudan.
The Democratic Republic of Congo. President Joseph Kabila
of the Democratic Republic of Congo referred "crimes within the
jurisdiction of the Court allegedly committed anywhere in the
territory of the DRC since the entry into force of the Rome
Statute" to the ICC in an April 2004 letter to the prosecutor. In
June 2004, the prosecutor announced his decision to open the ICC's
first investigation into "grave crimes allegedly committed on the
territory of the Democratic Republic of Congo" after concluding
that "an investigation...will be in the interest of justice and of
The ICC issued four arrest warrants. Bosco Ntaganda remains
free. Germain Katanga and Mathieu Ngudjolo Chui are in ICC custody,
and their cases are in pre-trial. Thomas Lubanga Dyilo is under
trial by the ICC for the war crime of "[e]nlisting and conscripting
of children under the age of 15 years...and using them to
participate actively in hostilities in the context of an
international armed conflict." His trial has experienced
numerous problems, including a halt in June 2008 by the ICC after
the prosecutor refused to disclose documents with "potential
exculpatory effect" to the defense. The court granted
Lubanga's application for release in July, but it was delayed to
permit a series of appeals by the prosecution. The trial proceeded
after the prosecutor agreed to make the information available to
the defense, but again experienced several missteps.
The prosecution rested its case on July 14, 2009.
Uganda. In December 2003, President of Uganda
Yoweri Museveni referred to the prosecutor crimes against humanity
allegedly committed by the Lord's Resistance Army (LRA) rebel group
against the population of northern Uganda. The prosecutor
announced his determination that there was a "reasonable basis to
open an investigation into the situation" in July 2004.
Arrest warrants have been issued against five members of the Lord's
Resistance Army, including LRA leader Joseph Kony. No arrests have
been made, and all suspects remain at large except for one who is
dead. The LRA has refused to engage in peace talks or ceasefire
negotiations until the ICC arrest warrant for Kony is withdrawn.
The Central African Republic. In a July 2005 letter, the
government of the Central African Republic referred to the ICC all
crimes within the jurisdiction of the court committed anywhere on
the territory of the Central African Republic since July 2002. In
May 2007, the prosecutor decided to open an investigation into
"grave crimes.... Civilians were killed and raped; and homes and
stores were looted. The alleged crimes occurred in the context of
an armed conflict between the government and rebel forces." In
2008, the ICC issued a warrant for the arrest of Jean-Pierre Bemba,
leader of the DRC rebel group Movement for the Liberation of Congo
(since transformed into a DRC political party), for war crimes and
crimes against humanity committed in the Central African Republic
in 2002-2003. Bemba was arrested by Belgian authorities
in May 2008 and transferred to ICC custody.
Darfur, Sudan. The Security Council
referred the situation in Darfur since July 2002 to the ICC in
March 2005. The prosecutor announced his decision to
proceed with an investigation in June 2006. The ICC has
issued four arrest warrants involving the situation in Darfur. Bahr
Idriss Abu Garda appeared voluntarily and is not in custody based
on his cooperation with the investigation. The three other suspects
remain at large, including President of Sudan Omar Hassan Ahmad
al-Bashir. The decision to issue an arrest warrant against a
sitting head of state was very controversial and led the African
Union (AU) to request that the ICC withdraw the warrant out of
concern that it could impede the Darfur peace process--concern
echoed by aid workers who have since faced increased harassment in
Darfur--and undermine the 2005 peace agreement that ended the
decades of civil war between Khartoum and southern Sudanese
rebels. The AU also decided to refuse to
cooperate with the ICC, and several African leaders have argued
that the African states party to the ICC should withdraw from the
Other Investigations. In addition to these four cases,
the Office of the Prosecutor is "currently conducting preliminary
analysis of situations in a number of countries including Chad,
Kenya, Afghanistan, Georgia, Colombia and Palestine."
Interest in using the ICC to investigate situations has increased
rapidly. By February 2006, the prosecutor had received 1,732
communications alleging crimes. As of July 2009, the
prosecutor has "received over 8137 communications...from more than
130 countries." Thus, the prosecutor received nearly four
times as many communications in the past three and a half years
(February 2006 to July 2009) as in its first three and a half years
(July 2002 to February 2006).
As an institution, the ICC has performed little, if any, better
than the ad hoc tribunals that it was created to replace. Like the
Rwandan and Yugoslavian tribunals, the ICC is slow to act. The ICC
prosecutor took six months to open an investigation in Uganda, two
months with the DRC, over a year with Darfur, and nearly two years
with the Central African Republic. It has yet to conclude a full
trial cycle more than seven years after being created. Moreover,
like the ad hoc tribunals, the ICC can investigate and prosecute
crimes only after the fact. The alleged deterrent effect of a
standing international criminal court has not ended atrocities in
the DRC, Uganda, the Central African Republic, or Darfur, where
cases are ongoing. Nor has it deterred atrocities by Burma against
its own people, crimes committed during Russia's 2008 invasion of
Georgia (an ICC party), ICC party Venezuela's support of leftist
guerillas in Colombia, or any of a number of other situations
around the world where war crimes or crimes against humanity may be
Another problem is that the ICC lacks a mechanism to enforce its
rulings and is, therefore, entirely dependent on governments to
arrest and transfer perpetrators to the court. However, such
arrests can have significant diplomatic consequences, which can
greatly inhibit the efficacy of the court in pursuing its warrants
and prosecuting outstanding cases. The most prominent example is
Sudanese President Bashir's willingness to travel to other
countries on official visits--thus far only to non-ICC states--
despite the ICC arrest warrant. This flaw was also present with the
ICTY and the ICTR, although they could at least rely on a Security
Council resolution mandating international cooperation in enforcing
their arrest warrants. In contrast, the Nuremburg and Tokyo
tribunals were established where the authority of the judicial
proceedings could rely on Allied occupation forces to search out,
arrest, and detain the accused.
The Myth of Bush Administration
The U.S. refusal to ratify the Rome Statute has been
mischaracterized by ICC proponents as solely a Bush Administration
policy. In fact, the Clinton Administration initiated the U.S.
policy of distancing itself from the ICC. According to David J.
Scheffer, Ambassador-at-Large for War Crimes Issues under the
Foreign officials and representatives of non-governmental
organizations tried to assure us in Rome that procedural safeguards
built into the treaty--many sought successfully by the United
States--meant that there would be no plausible risk to U.S.
soldiers. We could not share in such an optimistic view of the
infallibility of an untried institution....
We hope that other governments will recognize the benefits of
potential American participation in the Rome treaty and correct its
flawed provisions. The United States can make the critical
difference in the ability and willingness of reluctant governments
to cooperate with the court, but not if the court places at risk
those who shoulder the responsibility for international peace and
President Clinton himself acknowledged the treaty's "significant
flaws" and recommended that President Bush not submit the treaty to
the Senate for advice and consent. When President Clinton
authorized the U.S. delegation to sign the Rome Statute on December
31, 2000, it was not to pave the way for U.S. ratification, but
solely to give the U.S. an opportunity to address American concerns
about the ICC:
In signing, however, we are not abandoning our concerns about
significant flaws in the treaty. In particular, we are concerned
that when the court comes into existence, it will not only exercise
authority over personnel of states that have ratified the treaty
but also claim jurisdiction over personnel of states that have not.
With signature, however, we will be in a position to influence the
evolution of the court. Without signature, we will not.
Signature will enhance our ability to further protect U.S.
officials from unfounded charges and to achieve the human rights
and accountability objectives of the ICC. In fact, in negotiations
following the Rome Conference, we have worked effectively to
develop procedures that limit the likelihood of politicized
prosecutions. For example, U.S. civilian and military negotiators
helped to ensure greater precision in the definitions of crimes
within the court's jurisdiction.
But more must be done. Court jurisdiction over U.S. personnel
should come only with U.S. ratification of the treaty. The United
States should have the chance to observe and assess the functioning
of the court, over time, before choosing to become subject to its
jurisdiction. Given these concerns, I will not, and do not
recommend that my successor submit the treaty to the Senate for
advice and consent until our fundamental concerns are satisfied.
After adoption of the Rome Statute in 1998, both the Clinton and
Bush Administrations sought to rectify the parts of the statute
that precluded U.S. participation. Specifically, the U.S. actively
participated in the post-Rome preparatory commissions, hoping to
address its concerns. As former U.S. Under Secretary for Political
Affairs Marc Grossman noted:
After the United States voted against the treaty in Rome, the
U.S. remained committed and engaged--working for two years to help
shape the court and to seek the necessary safeguards to prevent a
politicization of the process. U.S. officials negotiated to address
many of the concerns we saw in hopes of salvaging the treaty. The
U.S. brought international law experts to the preparatory
commissions and took a leadership role in drafting the elements of
crimes and the procedures for the operation of the court.
While we were able to make some improvements during our active
participation in the UN Preparatory Commission meetings in New
York, we were ultimately unable [to] obtain the remedies necessary
to overcome our fundamental concerns.... President Clinton...hoped
the U.S. signature would provide us influence in the future and
assist our effort to fix this treaty. Unfortunately, this did not
prove to be the case. On April 11, 2002, the ICC was ratified by
enough countries to bring it into force on July 1 of this year. Now
we find ourselves at the end of the process. Today, the treaty
contains the same significant flaws President Clinton
The consequences of failing to change the objectionable
provisions of the Rome Statute became acute when the 60th country
ratified the treaty, causing the statute to enter into force in
July 2002. Faced with the prospect of a functioning International
Criminal Court that could assert jurisdiction over U.S. soldiers
and officials in certain circumstances, the Bush Administration and
Congress took steps to protect Americans from the court's
jurisdiction, which the U.S. did not recognize. For instance,
Congress passed the American Service-Members' Protection Act of
2002 (ASPA), which restricts U.S. interaction with the ICC and its
state parties by:
- Prohibiting cooperation with the ICC by any official U.S.
entity, including providing support or funds to the ICC,
extraditing or transferring U.S. citizens or permanent resident
aliens to the ICC, or permitting ICC investigations on U.S.
- Prohibiting participation by U.S. military or officials in U.N.
peacekeeping operations unless they are shielded from the ICC's
- Prohibiting the sharing of classified national security
information or other law enforcement information with the ICC.
- Constraining military assistance to ICC member states, except
NATO countries and major non-NATO allies and Taiwan, unless they
entered into an agreement with the U.S. not to surrender U.S.
persons to the ICC without U.S. permission.
- Authorizing the President to use "all means necessary and
appropriate" to free U.S. military personnel or officials detained
by the ICC.
Congress also approved the Nethercutt Amendment to the foreign
operations appropriations bill for fiscal year 2005,
which prohibited disbursement of selected U.S. assistance to an ICC
party unless the country has entered into a bilateral agreement not
to surrender U.S. persons to the ICC (commonly known as an Article
98 agreement) or is specifically exempted in the legislation. Both
ASPA and the Nethercutt Amendment contained waiver provisions
allowing the President to ignore these restrictions with
notification to Congress. In recent years, Congress has repealed or
loosened restrictions on providing assistance to ICC state parties
that have not entered into Article 98 agreements with the U.S.
However, other ASPA restrictions remain in effect.
The Bush Administration signed these legislative measures and
undertook several specific efforts to fulfill the mandates of the
legislation and to protect U.S. military personnel and officials
from potential ICC prosecution.
Possible Legal Obligations from Signing the Rome Statute.
Under Article 18 of the Vienna Convention on the Law of Treaties,
the Bush Administration determined that its efforts to protect U.S.
persons from the ICC could be construed as "acts which would defeat
the object and purpose of a treaty." To resolve this potential
conflict, the U.S. sent a letter to U.N. Secretary-General Kofi
Annan, the depositor for the Rome Statute, stating that it did not
intend to become a party to the Rome Statute and declaring that
"the United States has no legal obligations arising from its
signature" of the Rome Statute. This act has been described as
"un-signing" the Rome Statute. As John Bellinger, former
Legal Advisor to Secretary of State Condoleezza Rice, made clear in
a 2008 speech, "the central motivation was to resolve any confusion
whether, as a matter of treaty law, the United States had residual
legal obligations arising from its signature of the Rome
While critics may disagree with the decision, the Bush
Administration's action complied with international law. In
fact, the critics' mischaracterization of the un-signing as proof
of the Administration's intransigence and defiance of international
law exposes their political leanings in favor of U.S. ratification
more than it supports their contention that the Bush Administration
was trying to "kill the ICC."  The very act of un-signing
demonstrated U.S. concern about observing its obligations under
Article 98 Agreements. Because the ICC could claim
jurisdiction over non-parties to the Rome Statute--an assertion
unprecedented in international legal jurisdiction--the Bush
Administration sought legal protections to preclude nations from
surrendering, extraditing, or transferring U.S. persons to the ICC
or third countries for that purpose without U.S. consent. Under an
Article 98 agreement, a country agrees not to turn U.S. persons
over to the ICC without U.S. consent.
Contrary to the claims of the more strident critics, who label
the Article 98 agreements as "bilateral immunity agreements" or
"impunity agreements," the agreements neither absolve the U.S.
of its obligation to investigate and prosecute alleged crimes,
constrain the other nation's ability to investigate and prosecute
crimes committed by an American person within its jurisdiction, nor
constrain an international tribunal established by the Security
Council from investigating or prosecuting crimes committed by U.S.
persons. The agreements simply prevent other countries from turning
U.S. persons over to an international court that does not have
jurisdiction recognized by the United States.
The limited nature of the 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 contemplates such
agreements in Article 98:
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
Although the U.S. is not currently seeking to negotiate
additional Article 98 agreements, there are no known plans to
terminate existing agreements. Reportedly, 104 countries have
signed Article 98 agreements with the U.S., of which 97 agreements
remain in effect.
Language to Protect U.S. Persons. In 2002, the U.S.
sought a Security Council resolution to indefinitely exempt from
ICC jurisdiction U.S. troops and officials participating in U.N.
peacekeeping operations. The effort failed in the face of arguments
that the Security Council lacked the authority to rewrite the terms
of the Rome Statute, but the Security Council did adopt Resolution
1422, which deferred ICC prosecution of U.N. peacekeeping personnel
for one year under Article 16 of the Rome Statute. The deferral was
renewed once and expired in June 2004. The U.S. also successfully
included language in Resolution 1497 on the U.N. Mission to Liberia
granting exclusive jurisdiction over "current or former officials
or personnel from a contributing State" to the contributing state
if it is not a party to the Rome Statute.
U.S. Cooperation with the ICC
Many of the flaws in the Rome Statute identified by the Clinton
and Bush Administrations remain unaddressed. Although the U.S. has
reserved the option of cooperating with the ICC in certain
circumstances, it has repeatedly stated that fundamental changes to
the Rome Statute are needed before the U.S. could ratify the
treaty. The U.S. has taken legislative and diplomatic steps to
protect U.S. citizens, officials, and military personnel from the
ICC's jurisdiction, which the U.S. considers illegitimate. These
steps in no way violate international law. On the contrary, they
bolster international law by complying with international legal
norms and rules as they have been traditionally understood.
Moreover, these actions do not preclude the U.S. from supporting
an ICC investigation when it is deemed important to U.S. interests.
The most pertinent example is the Bush Administration's decision
not to block U.N. Security Council Resolution 1593, which referred
the situation in Darfur to the ICC. The U.S. abstention
acknowledged that the existence of the court and many states'
support for the ICC would not be changed by the U.S. vetoing every
Security Council resolution that references the ICC. It
demonstrated a pragmatic approach of weighing the costs and
benefits of U.S. policy toward the ICC against other interests and
echoed President Bush's use of his waiver authority under ASPA and
the Nethercutt Amendment when those restrictions undermined other
U.S. interests. However, it did not change the U.S. effort to
protect its nationals from the ICC's illegitimate jurisdictional
claims. Indeed, the U.S. abstention was secured only after language
protecting U.S. persons from the ICC was included in the
[N]ationals, current or former officials or personnel from a
contributing State outside Sudan which is not a party to the Rome
Statute of the International Criminal Court shall be subject to the
exclusive jurisdiction of that contributing State for all alleged
acts or omissions arising out of or related to operations in Sudan
established or authorized by the Council or the African Union,
unless such exclusive jurisdiction has been expressly waived by
that contributing State.
Interestingly, when the ICC prosecutor issued an arrest warrant
for President Bashir of Sudan, staunch supporters of the ICC sought
to defer ICC pursuit of the situation in Darfur. These supporters
reportedly included permanent Security Council members France and
the United Kingdom, which had strongly criticized U.S. efforts to
protect its military and officials from the ICC. As Bellinger
[I]n recent months, we have opposed efforts by some countries to
invoke Article 16 of the ICC Statute to defer the investigation and
prosecution of Sudanese President Al Bashir. The irony of the
United States' support for the court in opposing an Article 16
deferral is often noted by the press; what I hope will get equal
attention is the still-greater irony that some strong supporters of
the court seem so willing to consider interfering with the Court's
prosecution of an individual responsible for genocide.
The basis for these role reversals was a concern of African
countries and some Security Council members that prosecution of
Bashir would further destabilize the situation in Darfur. The U.S.
determined that the pursuit of justice in Darfur, even through the
flawed ICC, was too important to defer. Regardless of the merits of
both arguments, the dispute underscores long-standing concerns
about the ICC's involvement in situations that are overwhelmingly
political and foreign policy concerns.
Until the U.S. formally joins the ICC, legislative and policy
measures to protect U.S. military personnel, officials, and
nationals from the ICC are entirely prudent and warranted. Indeed,
recent instances of national courts and prosecutors asserting
extraterritorial jurisdiction, such as those by judicial
authorities in Spain and the Netherlands, underscore the need for
the U.S. to protect itself and its citizens and soldiers from
claims of jurisdiction under international law by the ICC and other
foreign judicial authorities.
Persistent Barriers to U.S.
ICC supporters have called for the Obama Administration to
re-sign the Rome Statute, reverse protective measures secured
during the Bush Administration (Article 98 agreements), and fully
embrace the ICC. Indeed, the Obama Administration may be
considering some or all of those actions. However, the ICC's flaws
advise caution and concern, particularly in how the ICC could
affect national sovereignty and politically precarious situations
around the globe.
When it decided to un-sign the Rome Statute, the Bush
Administration voiced five concerns regarding the Rome Statute.
These critical concerns have not been addressed.
The ICC's Unchecked Power. The U.S. system of government
is based on the principle that power must be checked by other power
or it will be abused and misused. With this in mind, the Founding
Fathers divided the national government into three branches, giving
each the means to influence and restrain excesses of the other
branches. For instance, Congress confirms and can impeach federal
judges and has the sole authority to authorize spending, the
President nominates judges and can veto legislation, and the courts
can nullify laws passed by Congress and overturn presidential
actions if it judges them unconstitutional.
The ICC lacks robust checks on its authority, despite strong
efforts by U.S. delegates to insert them during the treaty
negotiations. The court is an independent treaty body. In theory,
the states that have ratified the Rome Statute and accepted the
court's authority control the ICC. In practice, the role of the
Assembly of State Parties is limited. The judges themselves settle
any dispute over the court's "judicial functions." The prosecutor
can initiate an investigation on his own authority, and the ICC
judges determine whether the investigation may proceed. The U.N.
Security Council can delay an investigation for a year--a delay
that can be renewed--but it cannot stop an investigation. As
Under the UN Charter, the UN Security Council has primary
responsibility for maintaining international peace and security.
But the Rome Treaty removes this existing system of checks and
balances, and places enormous unchecked power in the hands of the
ICC prosecutor and judges. The treaty created a self-initiating
prosecutor, answerable to no state or institution other than the
The Challenges to the Security Council's Authority. The
Rome Statute empowers the ICC to investigate, prosecute, and punish
individuals for the as yet undefined crime of "aggression." This
directly challenges the authority and prerogatives of the U.N.
Security Council, which the U.N. Charter gives "primary
responsibility for the maintenance of international peace and
security" and which is the only U.N. institution empowered to
determine when a nation has committed an act of aggression. Yet,
the Rome Statute "empowers the court to decide on this matter and
lets the prosecutor investigate and prosecute this undefined crime"
free of any oversight from the Security Council.
A Threat to National Sovereignty. A bedrock principle of
the international system is that treaties and the judgments and
decisions of treaty organizations cannot be imposed on states
without their consent. In certain circumstances, the ICC claims the
authority to detain and try U.S. military personnel, U.S.
officials, and other U.S. nationals even though the U.S. has not
ratified the Rome Statute and has declared that it does not
consider itself bound by its signature on the treaty. As Grossman
noted, "While sovereign nations have the authority to try
non-citizens who have committed crimes against their citizens or in
their territory, the United States has never recognized the right
of an international organization to do so absent consent or a U.N.
Security Council mandate."
As such, the Rome Statute violates international law as it has
been traditionally understood by empowering the ICC to prosecute
and punish the nationals of countries that are not party to it. In
fact, Article 34 of the Vienna Convention on the Law of Treaties
unequivocally states: "A treaty does not create either obligations
or rights for a third State without its consent."
Protestations by ICC proponents that the court would seek such
prosecutions only if a country is unwilling or unable to prosecute
those accused of crimes within the court's jurisdiction--the
principle of complementarity--are insufficient to alleviate
sovereignty concerns. As Casey and Rivkin note:
[C]omplementarity applies only if the state in question handles
the particular case at issue in a manner consistent with the ICC's
understanding of the applicable legal norms. If the court concludes
that a state has been unwilling or unable to prosecute one of its
citizens or government officials because it does not consider the
questioned conduct unlawful, based on its own interpretation of the
relevant international legal requirements, the court can proceed
with an investigation.
For example, the Obama Administration recently declared that no
employee of the Central Intelligence Agency (CIA) who engaged in
the use of "enhanced interrogation techniques" on detainees would
be criminally prosecuted. That decision was presumably the result
of an analysis of U.S. law, legal advice provided to the CIA by
Justice Department lawyers, and the particular actions of the
interrogators. Yet if the U.S. were a party to the Rome Statute,
the Administration's announced decision not to prosecute would
fulfill a prerequisite for possible prosecution by the ICC under
the principle of complementarity. That is, because the U.S. has no
plans to prosecute its operatives for acts that many in the
international community consider torture, the ICC prosecutor would
be empowered (and possibly compelled) to pursue charges against the
Erosion of Fundamental Elements of the U.N. Charter. The
ICC's jurisdiction over war crimes, crimes against humanity,
genocide, and aggression directly involves the court in fundamental
issues traditionally reserved to sovereign states, such as when a
state can lawfully use armed force to defend itself, its citizens,
or its interests; how and to what extent armed force may be
applied; and the point at which particular actions constitute
serious crimes. Blurring the lines of authority and responsibility
in these decisions has serious consequences. As Grossman notes,
"with the ICC prosecutor and judges presuming to sit in judgment of
the security decisions of States without their assent, the ICC
could have a chilling effect on the willingness of States to
project power in defense of their moral and security interests."
The ability to project power must be protected, not only for
America's own national security interests, but also for those
individuals threatened by genocide and despotism who can only be
protected through the use of force.
Complications to Military Cooperation Between the U.S.
and Its Allies. The treaty creates an obligation to hand over U.S.
nationals to the court, regardless of U.S. objections, absent a
competing obligation such as that created through an Article 98
agreement. The United States has a unique role and responsibility
in preserving international peace and security. At any given time,
U.S. forces are located in approximately 100 nations around the
world, standing ready to defend the interests of the U.S. and its
allies, engaging in peacekeeping and humanitarian operations,
conducting military exercises, or protecting U.S. interests through
military intervention. The worldwide extension of U.S. armed forces
is internationally unique. The U.S. must ensure that its soldiers
and government officials are not exposed to politically motivated
investigations and prosecutions.
Ongoing Causes for Concern
Supporters of U.S. ratification of the Rome Statute often
dismiss these concerns as unjustified, disproved by the ICC's
conduct during its first seven years in operation, or as
insufficient to overcome the need for an international court to
hold perpetrators of serious crimes to account. Considering the
other options that exist or could be created to fill the ICC's role
of holding perpetrators of war crimes, crimes against humanity,
genocide, and aggression to account, the benefits from joining such
a flawed institution do not justify the risks.
Furthermore, based on the ICC's record and the trend in
international legal norms, they are being disingenuous in
dismissing concerns about overpoliticization of the ICC, its impact
on diplomatic initiatives and sovereign decisions on the use of
force, its expansive claim of jurisdiction over the citizens of
non-states parties, and incompatibility with U.S. legal norms and
traditions. A number of specific risks are obvious.
Politicization of the Court. Unscrupulous individuals and
groups and nations seeking to influence foreign policy and security
decisions of other nations have and will continue to seek to misuse
the ICC for politically motivated purposes. Without appropriate
checks and balances to prevent its misuse, the ICC represents a
dangerous temptation for those with political axes to grind. The
prosecutor's proprio motu authority to initiate an
investigation based solely on his own authority or on information
provided by a government, a nongovernmental organization (NGO), or
individuals is an open invitation for political
One example is the multitude of complaints submitted to the ICC
urging the court to indict Bush Administration officials for
alleged crimes in Iraq and Afghanistan. The Office of the
Prosecutor received more than 240 communications alleging crimes
related to the situation in Iraq. Thus far, the prosecutor has
demonstrated considerable restraint, declining to pursue these
cases for various reasons, including that the ICC does not have
"jurisdiction with respect to actions of non-State Party nationals
on the territory of Iraq," which is also not a party to the Rome
All current ICC cases were referred to the ICC by the
governments of the territories in which the alleged crimes occurred
or by the Security Council. Comparatively speaking, these cases are
low-hanging fruit--situations clearly envisioned to be within the
authority of the court by all states. Even so, they have not been
without controversy, as demonstrated by the AU reaction to the
arrest warrant for President Bashir and attempts to have the
Security Council defer the case.
However, the ICC's brief track record is no assurance that
future cases will be similarly resolved, especially given the
increasing appetite for lodging charges with the ICC. A
far more significant test will arise if the prosecutor decides to
investigate (and the court's pre-trial chamber authorizes) a case
involving a non-ICC party without a Security Council referral or
against the objections of the government of the involved
This could arise from the prosecutor's monitoring of the
situation in Palestine. Even though Israel is not a party to the
Rome Statute, the ICC prosecutor is exploring a request by the
Palestinian National Authority to prosecute Israeli commanders for
alleged war crimes committed during the recent actions in Gaza.
The request is supported by 200 complaints from individuals and
NGOs alleging war crimes by the Israeli military and civilian
leaders related to military actions in Gaza.
Palestinian lawyers maintain that the Palestinian National
Authority can request ICC jurisdiction as the de facto sovereign
even though it is not an internationally recognized state. By
countenancing Palestine's claims, the ICC prosecutor has enabled
pressure to be applied to Israel over alleged war crimes, while
ignoring Hamas's incitement of the military action and its
commission of war crimes against Israeli civilians. Furthermore, by
seemingly recognizing Palestine as a sovereign entity, the
prosecutor's action has arguably created a pathway for Palestinian
statehood without first reaching a comprehensive peace deal with
Israel. This determination is an inherently political issue beyond
the ICC's authority, yet the prosecutor has yet to reject the
possibility that the ICC may open a case on the situation.
Alternatively, the prosecutor could raise ire by making a legal
judgment call on a crime under the court's jurisdiction that lacks
a firm, universal interpretation, such as:
- "Committing outrages upon personal dignity, in particular
humiliating and degrading treatment";
- "Intentionally launching an attack in the knowledge that such
attack will cause incidental loss of life or injury to civilians or
damage to civilian objects or widespread, long-term and severe
damage to the natural environment which would be clearly excessive
in relation to the concrete and direct overall military advantage
- Using weapons "which are of a nature to cause superfluous
injury or unnecessary suffering or which are inherently
indiscriminate in violation of the international law of armed
In each of these cases, a reasonable conclusion could be made to
determine whether a crime was committed. For instance, many human
rights groups allege outrages on personal dignity and "humiliating
and degrading treatment" were committed at the detention facility
at Guantanamo Bay, Cuba. The U.S. disputes these claims. Excessive
use of force has been alleged in Israel's attacks in Gaza, while
others insist Israel demonstrated forbearance and consideration in
trying to prevent civilian casualties. There is also an ongoing
international effort to ban landmines and cluster munitions. If the
ICC member states agree to add them to the annex of banned weapons,
it could lead to a confrontation over their use by non-party
states, such as the U.S., which opposes banning these weapons.
These are merely some scenarios in which politicization could
become an issue for the ICC.
Disruption of Diplomatic Efforts. ICC decisions to pursue
investigations and indictments can upset delicate diplomatic
situations.Although the U.N. Security Council has been largely
deadlocked over placing strong sanctions on the government of Sudan
for its complicity in the terrible crimes in Darfur, it did pass a
resolution in 2005 referring the situation in Darfur to the ICC. In
summer 2008, the ICC announced that it would seek an indictment
against Sudanese President Omar al-Bashir for his involvement in
crimes committed in Darfur. On March 4, 2009, a warrant was issued
for his arrest.
Issuing the arrest warrant for Bashir was certainly justified.
His government has indisputably supported the janjaweed militias
that have perpetrated massive human rights abuses that rise to the
level of crimes against humanity. His complicity in the crimes
demands that he be held to account. Regrettably, the decision to
refer the case to the ICC and the subsequent decision to issue an
arrest warrant for the sitting Sudanese head of state have
aggravated the situation in Darfur and may put more innocent people
In response to his indictment, Bashir promptly expelled vital
humanitarian NGOs from Sudan. Bashir may ultimately
decide he has nothing to lose and increase his support of the
janjaweed, encouraging them to escalate their attacks, even against
aid workers and U.N. and AU peacekeepers serving in the African
Union/UN Hybrid operation in Darfur (UNAMID). It could also
undermine the 2005 peace agreement meant to reconcile the 20-year
north-south civil war, which left more than 2 million dead.
Moreover, the decision to seek the arrest of Bashir, cheered by
ICC supporters, may actually hurt the court in the long run.
African countries, which would bear the most immediate consequences
of a more chaotic Sudan, have called on the Security Council to
defer the Bashir prosecution. Sudan's neighbors may be forced to
choose between arresting Bashir, which could spark conflict with
Sudan, or ignoring the court's arrest warrant. Indeed, all AU
members except for Botswana announced in July 2009 that they would
not cooperate with the ICC in this instance. South Africa
subsequently announced that it would honor the ICC warrant in
August 2009. Whether the AU decision will have broader
ramifications for the court's relationship with African governments
remains to be seen. Some African ICC parties have mentioned
withdrawing from the Rome Statute.
The desire to see Bashir face justice for his role in the crimes
committed in Darfur is understandable and should not be abandoned.
However, premature efforts to bring Bashir to justice may be
counterproductive. The priority in Sudan is to reduce the violence,
stop the atrocities, restore peace and security, reconstitute
refugees, and set the region on a path to avoid a return to
conflict. This requires strong action by the AU and the
international community, including economic and diplomatic
sanctions designed to bring maximum pressure to bear on Bashir and
his allies. It may require military intervention. Once this is
achieved, justice can be pursued by the Sudanese themselves through
their courts, through an ad hoc tribunal, or even through the
In another situation, the Ugandan government referred alleged
crimes committed by the Lord's Resistance Army in northern Uganda
to the court in 2004 in hopes of "engaging the western powers who
had ignored the situation in northern Uganda" and pressuring
the LRA to negotiate a peace. Regrettably, the LRA has responded by
announcing that it will not agree to peace talks until the ICC
arrest warrants are withdrawn. If Uganda could resolve its long
festering conflict with the LRA by agreeing not to prosecute its
leader, it would have no ability to call off the ICC prosecution.
Thus, the ICC's involvement could be a real impediment to peace in
Uganda, assuming the LRA would abide by an agreement.
The desire to address tragedies such as those in Darfur and
Uganda is as laudable as the international community's
unwillingness or inability to act is frustrating. The perpetrators
of war crimes, genocide, and crimes against humanity should be held
to account, but ICC investigation and arrest warrants cannot
substitute for decisive action to stop the perpetrators and resolve
such situations. Because the vast majority of the court's
discretion lies within the Office of the Prosecutor, there is
little opportunity to resolve disputes, conflicts, or sensitive
political issues diplomatically after a case is brought to the
Furthermore, the ICC prosecutor and judges are unlikely ever to
be held accountable if their decisions lead to greater carnage in
Darfur or prolong the conflict in Uganda. They are free to act
without considering the potential consequences. Others are not so
The long-term implications of supporting the ICC, which has
become a wild card in a foreign and security policy, are
significant, and they emphasize the need for the ICC to keep its
distance from political issues.
The Undefined Crime of Aggression. It would be
irresponsible for the U.S. to expose its military personnel and
civilian officials to a court that has yet to define the very
crimes over which it claims jurisdiction. Yet that is the situation
the U.S. would face if it ratified the Rome Statute. The Statute
includes the crime of aggression as one of its enumerated crimes,
but the crime has yet to be defined, despite a special working
group that has been debating the issue for more than five
For instance, some argue that any military action conducted
without Security Council authorization violates international law
and is, therefore, an act of aggression that could warrant an ICC
indictment. The U.S. has been the aggressor in several recent
military actions, including military invasions of the sovereign
territories of Afghanistan and Iraq, albeit with the U.N. Security
Council's blessing in the case of Afghanistan. U.S. forces bombed
Serbia in 1999 and launched dozens of cruise missiles at targets in
Afghanistan and the Sudan in 1998 without explicit Security Council
authorization. While charges of aggression are unlikely to be
brought against U.S. officials ex post facto for military
actions in Iraq and elsewhere--certainly not for actions before
July 2002 as limited by the Rome Statute--submitting to the
jurisdiction of an international court that judges undefined crimes
would be highly irresponsible and an open invitation to levy such
charges against U.S. officials in future conflicts.
If the U.S. becomes an ICC party, every decision by the U.S. to
use force, every civilian death resulting from U.S. military action
and every allegedly abused detainee could conceivably give cause to
America's enemies to file charges against U.S. soldiers and
officials. Indeed, any U.S. "failure" to prosecute a high-ranking
U.S. official in such instances would give a cause of action at the
ICC. For example, the principle of complementarity will not prevent
a politicized prosecutor from bringing charges against a sitting
U.S. President or Secretary of Defense. That is, the U.S.
Department of Justice is unlikely to file criminal charges against
such officials for their decisions involving the use of military
force. This decision not to prosecute would be a prerequisite for
the ICC taking up the case.
At best, the U.S. would find itself defending its military and
civilian officials against frivolous and politically motivated
charges submitted to the ICC prosecutor. At worst, international
political pressure could compel the ICC's prosecutor to file
charges against current or former U.S. officials. Until the crime
of aggression is defined, U.S. membership in the ICC is
What the U.S. Should Do
The serious flaws that existed when President Clinton signed the
Rome Statute in December 2000 continue to exist today. The Bush
Administration's policy toward the ICC was prudent and in the best
interests of the U.S., its officials, and particularly its armed
forces. Since the ICC came into existence, the U.S. has treaded
carefully by supporting the ICC on an ad hoc basis without backing
away from its long-standing objections to the court. The U.S. has
simultaneously taken the necessary steps to protect U.S. persons
from the court's illegitimate claims of jurisdiction.
Despite intense pressure to overturn U.S. policies toward the
ICC, the Obama Administration appears to appreciate the possible
ramifications of joining the court. Indeed, as a candidate, Obama
expressed the need to ensure that U.S. troops have "maximum
protection" from politically motivated indictments by the ICC and
did not openly support ratification of the Rome Statute.
However, the Obama Administration has expressed less caution than
either the Bush or Clinton Administrations did about the ICC.
Specifically, during her confirmation hearing as Secretary of State
Hillary Clinton stated:
The President-Elect believes as I do that we should support the
But at the same time, we must also keep in mind that the U.S.
has more troops deployed overseas than any nation. As
Commander-in-Chief, the President-Elect will want to make sure they
continue to have the maximum protection.... Whether we work toward
joining or not, we will end hostility towards the ICC, and look for
opportunities to encourage effective ICC action in ways that
promote U.S. interests by bringing war criminals to justice.
News reports indicate that the Obama Administration is close to
announcing a change in U.S. policy toward the ICC, including
affirming the 2000 signature on the Rome Statute and increasing
U.S. cooperation with the court. On her recent trip to
Africa, Secretary of State Clinton stated that it was "a great
regret but it is a fact that we are not yet a signatory [to the
Rome Statute]. But we have supported the court and continue to do
These steps are premature if the Administration seriously wishes
to provide "maximum protection" for U.S. troops. Instead, to
protect U.S. military personnel and other U.S. persons and to
encourage other member states to support reforms to the Rome
Statute that would address U.S. concerns, the Obama Administration
- Not re-sign the Rome Statute. The Obama Administration
is under pressure to "re-sign" the Rome Statute, reversing the Bush
Administration's decision. In critical ways, this would be
tantamount to signing a blank check. The Rome Statute is up for
review by the Assembly of States Parties in 2010, and key crimes
within the court's jurisdiction have yet to be defined and
long-standing U.S. objections to the treaty have yet to be
addressed. The Obama Administration should use the possibility of
U.S. membership as an incentive to encourage the state parties to
remedy the key flaws in the Rome Statute.
- Maintain existing Article 98 agreements. Until the Rome
Statute is reformed to address all of the U.S. concerns, the Obama
Administration should confirm and endorse all existing Article 98
agreements. The U.S. is militarily engaged in Iraq and Afghanistan,
has troops stationed and in transit around the globe, and in all
likelihood will be involved in anti-terror activities around the
world for many years. Now is not the time to terminate the legal
protections enjoyed by U.S. military personnel and officials
deployed in foreign nations. Even if the U.S. joins the ICC at some
future date, the U.S. should not terminate the Article 98
agreements because they are consistent with the Rome Statute and
would serve as a useful protection if the court overreaches.
- Establish clear objectives for changes to the Rome Statute
for the 2010 review conference that would help to reduce current
and potential problems posed by the ICC. In 2010, the Assembly
of States Parties is scheduled to hold the first review conference
to consider amendments to the Rome Statute. A key issue on the
agenda is agreeing to a definition of the crime of aggression,
which is technically under the ICC's jurisdiction, but remains
latent due to the states parties' inability to agree to a
definition. Rather than accede to an anodyne definition, the U.S.
should either seek an explicit, narrow definition to prevent
politicization of this crime or, even better, seek to excise the
crime from the Rome Statute entirely, on the grounds that it
infringes on the Security Council's authority. Moreover, the review
conference should reverse the Rome Statute's violation of customary
international law by explicitly limiting the ICC's jurisdiction
only to nationals of those states that have ratified or acceded to
the Rome Statute and to nationals of non-party states when the U.N.
Security Council has explicitly referred a situation to the
- Approach Security Council recommendations to the ICC on
their merits and oppose those deemed detrimental to U.S.
interests. The U.S. abstentions on Security Council resolutions
on Darfur indicate only that it is not U.S. policy to block all
mentions of the ICC. However, accepting the reality of the ICC does
not mean that the U.S. should acquiesce on substantive issues when
they may directly or indirectly affect U.S. interests, U.S. troops,
U.S. officials, or other U.S. nationals. Many concerns about the
Rome Statute have not yet been adequately addressed. The U.S.
should abstain if the resolution addresses issues critical to U.S.
interests and would not directly or indirectly undermine the U.S.
policy of opposing ICC claims of jurisdiction over U.S. military
personnel and its nationals. Moreover, the U.S. should insist that
all resolutions include language protecting military and officials
from non-ICC states participating in U.N. peacekeeping
While the International Criminal Court represents an admirable
desire to hold war criminals accountable for their terrible crimes,
the court is flawed notionally and operationally. The ICC has not
overcome many of the problems plaguing the ad hoc tribunals
established for Yugoslavia and Rwanda. It remains slow and
inefficient. Worse, unlike ad hoc tribunals, it includes a drive to
justify its budget and existence in perpetuity rather than simply
completing a finite mission.
Its broad autonomy and jurisdiction invite politically motivated
indictments. Its inflexibility can impede political resolution of
problems, and its insulation from political considerations can
complicate diplomatic efforts. Efforts to use the court to apply
pressure to inherently political issues and supersede the foreign
policy prerogatives of sovereign nations--such as the prosecutor's
decision to consider Israel's actions in Gaza--undermine the
court's credibility and threaten its future as a useful tool for
holding accountable the perpetrators of genocide, war crimes, and
crimes against humanity.
President Clinton considered the ICC's flaws serious enough to
recommend against U.S. ratification of the Rome Statute unless they
were resolved, and President Bush concurred. These issues remain
unresolved and continue to pose serious challenges to U.S.
sovereignty and its national interests. Unless the serious flaws
are addressed fully, President Obama should similarly hold the ICC
at arm's length. To protect its own interests and to advance the
notion of a properly instituted international criminal court, the
U.S. should continue to insist that it is not bound by the Rome
Statute and does not recognize the ICC's authority over U.S.
persons and should exercise great care when deciding to support the
Schaefer is Jay Kingham Fellow in International Regulatory
Affairs and Steven Groves is Bernard and Barbara Lomas
Fellow in the Margaret Thatcher Center for Freedom, a division of
the Kathryn and Shelby Cullom Davis Institute for International
Studies, at The Heritage Foundation.
instance, see Evan Luard, The Years of Western Domination,
1945-1955, Vol. 1 of A History of the United Nations
(New York, St. Martin's Press, 1982), pp. 31-32.
the final stages of the U.N. Conference of Plenipotentiaries on the
Establishment of an International Criminal Court, 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 and a last ditch effort by the
U.S. to allow ICC jurisdiction over non-party states "only if the
State had accepted that jurisdiction" was defeated 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, July 17, 1998, at http://www.un.org/icc/pressrel/lrom22.htm
(July 30, 2009).
A Casey and David B. Rivkin, Jr., "Making Law: The United Nations'
Role in Formulating and Enforcing International Law," in Brett D.
Schaefer, ed., ConUNdrum: The Limits of the United Nations and
the Search for Alternatives (New York: Rowman and Littlefield,
2009), p. 47.
Casey and Rivkin, "Making Law," p. 48.
Press release, "Prosecutor Receives Referral
of the Situation in the Democratic Republic of Congo,"
International Criminal Court, April 19, 2004.
Press release, "The Office of the Prosecutor
of the International Criminal Court Opens Its First Investigation,"
June 23, 2004.
Press release, "Trial Chamber Imposes a Stay
on the Proceedings of the Case Against Thomas Lubanga Dyilo,"
International Criminal Court, June 16, 2008.
Over the past 20 years of its conflict with
the Ugandan government, the LRA has been accused of massive
atrocities, including displacing and killing thousands of Ugandans
and kidnapping juveniles to use as child soldiers. The conflict has
spread beyond Uganda to include southern Sudan, eastern Democratic
Republic of Congo, and eastern parts of the Central African
Republic. See press release, "President of Uganda Refers Situation
Concerning the Lord's Resistance Army (LRA) to the ICC,"
International Criminal Court, January 29, 2004.
Press release, "Prosecutor of the
International Criminal Court Opens an Investigation into Northern
Uganda," International Criminal Court, July 29, 2004.
Press release, "Prosecutor Receives Referral
Concerning Central African Republic," International Criminal Court,
January 7, 2005.
Press release, "The Prosecutor of the ICC
Opens Investigation in Darfur," International Criminal Court, June
Reuters, "Two Female Foreign Aid Workers
Kidnapped in Darfur," France 24, July 3, 2009, at http://www.france24.com/en/20090703-
(July 31, 2009), and Jon Ward and Betsy Pisik, "Obama Backs
Indictment of Sudan leader," The Washington Times, February
5, 2009, at http://www.washingtontimes
(July 31, 2009).
American Society of International Law,
Independent Task Force, U.S. Policy Toward the International
Criminal Court: Furthering Positive Engagement, March 2009, p.
18, at /static/reportimages/A4DDCEABC75DAF07595CFC6C3576955D.pdf
(July 31, 2009), and International Criminal Court, Office of the
Prosecutor, "Communications, Referrals and Preliminary Analysis,"
Comm+and+Ref (July 31, 2009).
Scheffer, "America's Stake in Peace,
Security, and Justice."
Clinton, "Statement on the Rome Treaty on the
International Criminal Court."
Public Law 108-447, div. D, tit. I, §
For a more detailed discussion, see Alexis
Arieff, Rhoda Margesson, and Marjorie Ann Browne, "International
Criminal Court Cases in Africa: Status and Policy Issues,"
Congressional Research Service Reportfor Congress, May 18,
2009, pp. 6-7, at http://www.fas.org/sgp/crs/row/
RL34665.pdf (July 31, 2009); American Society of
International Law, U.S. Policy Toward the International Criminal
Court, pp. 5-17; John Warner National Defense Authorization Act
for Fiscal Year 2007, Public Law 109-364, § 1222; Foreign
Operations, Export Financing, and Related Programs Appropriations
Act, 2006, Public Law 109-102, § 574(b); and National Defense
Authorization Act for Fiscal Year 2008, Public Law 110-181, §
The U.S. has signed, but not ratified this
treaty. However, the U.S. observes it in part because it arguably
constitutes "customary international law on the law of treaties."
U.S. Department of State, "Frequently Asked Questions: Vienna
Convention on the Law of Treaties," at http://www.state.gov/s/l/treaty/faqs/70139.htm
(July 31, 2009).
The text of the letter, signed by U.S.
Undersecretary of State for Arms Control 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." John R. Bolton, letter to U.N. Secretary General Kofi
Annan regarding the Rome Statute of the International Criminal
Court, May 6, 2002, at http://www.asil.org/ilib
0506.cfm#r3 (July 31, 2009).
As Curtis A. Bradley notes: "While the policy
merits of the Bush Administration's announcement are of course open
to debate, the announcement appears to be consistent with
international law. There is nothing in international law that
obligates a signatory to a treaty to become a party to the treaty,
and the Rome Statute itself (in Article 125) states that it is
'subject to ratification, acceptance or approval by signatory
States.' In addition, Article 18 of the Vienna Convention on the
Law of Treaties provides that, upon signing a treaty, a nation is
'obliged to refrain from acts which would defeat the object and
purpose' of the treaty 'until it shall have made its intention
clear not to become a party to the treaty.' The Vienna Convention
thus contemplates that nations may announce an intent not to ratify
a treaty after signing it." Curtis A. Bradley, "U.S. Announces
Intent Not to Ratify International Criminal Court Treaty," ASIL
Insights, May 2002, at http://www.asil.org/insigh87.cfm (July 31,
Bellinger, "U.S. Perspectives on
International Criminal Justice."
Rome Statute of the International Criminal
Court, Art. 98, Sect. 2, p. 69.
U.N. Security Council, "Resolution 1497
(2003)," S/RES/1497, August 1, 2003.
U.N. Security Council, "Resolution 1593
(2005)," S/RES/1593, March 31, 2005.
Bellinger, "U.S. Perspectives on
International Criminal Justice."
For instance, under a since-amended universal
jurisdiction law in Belgium, activists launched criminal
prosecutions against General Tommy Franks in 2003 over the use of
cluster bombs in Iraq. Former U.S. Secretary of State Colin Powell,
President George H. W. Bush, and Israeli Prime Minister Ariel
Sharon were also targeted with lawsuits under the Belgian law. It
became such a diplomatic headache that U.S. Secretary of Defense
Donald Rumsfeld threatened to pull NATO headquarters out of
Brussels unless the law was changed. See Ambrose Evans-Pritchard,
"US Threatens to Pull Nato HQ out of Belgium," Telegraph.co.uk,
June 13, 2003, at http://www.telegraph.co.uk/news/worldnews/europe/belgium
(July 31, 2009). Spanish Judge Baltasar Garzón has made a
name for himself pursuing cases under Spain's universal
jurisdiction laws, including seeking the extradition of Chilean
dictator Augusto Pinochet through an international arrest warrant
issued during Pinochet's 1997 visit to the United Kingdom and the
recent effort to open an investigation into the U.S. incarceration
and interrogation of detainees at Guantánamo Bay. See CBS
News, "Thatcher: Release Pinochet," October 19, 1998, at http://www.cbsnews
.com/stories/1998/10/19/world/main20458.shtml (July 31,
2009), and Thomas Catan, "Spanish Judge Probes U.S. Torture
Allegations," The Wall Street Journal, April 30, 2009, at
758039968837.html (July 31, 2009).
Kralev, "U.S. Warms to Global Court."
Grossman, "American Foreign Policy and the
International Criminal Court."
Vienna Convention on the Law of Treaties.
Casey and Rivkin, "Making Law," p. 48.
Grossman, "American Foreign Policy and the
International Criminal Court."
For example, see American Society of
International Law, "U.S. Policy Toward the International Criminal
Rome Statute of the International Criminal
Court, Art. 15.
Article 16 of the Rome Statute allows the
U.N. Security Council to defer an ICC investigation or prosecution
for a renewable period of 12 months, "No investigation or
prosecution may be commenced or proceeded with under this Statute
for a period of 12 months after the Security Council, in a
resolution adopted under Chapter VII of the Charter of the United
Nations, has requested the Court to that effect; that request may
be renewed by the Council under the same conditions." See also
James Sturcke, "UN Extends Darfur Peacekeeping Mandate in
Last-Minute Vote," The Guardian, August 1, 2008, at http://www.guardian.co.uk/world/
2008/aug/01/unitednations.sudan (August 3, 2009).
International Criminal Court, Office of the
Prosecutor, "Visit of the Palestinian National Authority Minister
of Foreign Affairs, Mr. Riad al-Malki, and Minister of Justice, Mr.
Ali Khashan, to the Prosecutor of the ICC (13 February 2009)," at
(August 3, 2009), and Sebastian Rotella, "International Criminal
Court to Consider Gaza Investigation," Los Angeles Times,
February 5, 2009, at http://articles.latimes.com/2009/feb/05/world/fg-court-palestinians5
(August 3, 2009).
Rome Statute of the International Criminal
Court, Art. 8(2)(c)(ii).
Ibid., Art. 8(2)(b)(iv).
Ibid., Art. 8(2)(b)(xx). Likely
candidates are landmines and cluster munitions, which are targets
for bans under international treaty and are used by the U.S.
The LRA is notoriously unpredictable and
intransigent, and there is no guarantee that its leaders would
abide by a peace agreement.
See Kralev, "U.S. Warms to Global Court."