Global Policy Forum

US Opposition to the International Criminal Court

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Picture Credit: flickr.com/Alkan de Beaumont Chaglar


The United States government has consistently opposed an international court that could hold US military and political leaders to a uniform global standard of justice. The Clinton administration participated actively in negotiations towards the International Criminal Court treaty, seeking Security Council screening of cases. If adopted, this would have enabled the US to veto any dockets it opposed. When other countries refused to agree to such an unequal standard of justice, the US campaigned to weaken and undermine the court. The Bush administration, coming into office in 2001 as the Court neared implementation, adopted an extremely active opposition. Washington began to negotiate bilateral agreements with other countries, insuring immunity of US nationals from prosecution by the Court. As leverage, Washington threatened termination of economic aid, withdrawal of military assistance, and other painful measures. The Obama administration has so far made greater efforts to engage with the Court. It is participating with the Court's governing bodies and it is providing support for the Court's ongoing prosecutions. Washington, however, has no intention to join the ICC, due to its concern about possible charges against US nationals.


  UN Documents | Articles

UN Documents

Why the United States Is So Opposed (December 2003)

In this Crimes of War article Paul W. Kahn analyzes the US opposition to the International Criminal Court. Kahn argues that the jurisdiction of the Court has become the site for a symbolic battle between law and politics for the US, a nation that believes that politics has priority over law.

America Service Members Protection Act 2002

This text is the original version as introduced into the US senate. The Act deepens the US refusal to cooperate with the ICC and it gives authority to the executive branch to "use all necessary means" to "free members of the armed forces of the United States 'detained' by the ICC."

Articles

2012

Opening the other Eye: Charles Taylor and Selective Accountability (May 1, 2012)

The US upholds a series of double standards on international criminality. It is the number 1 advocate of international criminal justice for others, but refuses to subject its own officials to the jurisdiction of the ICC, even going so far to threaten the use of military force in the Hague if the ICC indicts any US citizens. Western corporations are asked to comply voluntarily to moral practices, while political leaders in sovereign African states are subject to international criminal law. In this article, Richard Falk argues that the rule of law must be implemented consistently for people to take it seriously, and not only when it’s convenient for the global elite. (al Jazeera)

2011

Susan Rice Versus the ICC Prosecutor (August 24, 2011)

Following US Ambassador to the UN Susan Rice’s announcement that Libyan people can decide whether to try Gaddafi, the ICC chief prosecutor Luis Moreno-Ocampo released a statement reaffirming that the ICC, not Libya, must make the decision regarding Gaddafi’s trial. These conflicting statements highlight background politics of the Security Council (SC) and international law. Under controversial Resolution 1973, the SC granted the ICC authority to prosecute top Libyan officials for their role in the bloody crackdown on protests, but recent statements by Rice and other P3 (UK, etc.) members of the council “delegitimize” the role of the ICC. This shows the danger of the ICC being used by the SC in such an instrumental and political way. (Foreign Policy)


Wrestling Over ICC's Role in Africa (April 14, 2011)

Since December 2009 Kenya has lobbied for the ICC case against six of its officials to be deferred to domestic courts.  This marked an about face for Kenya, which had previously been supportive of the ICC.  Ironically the US, which has consistently opposed the ICC, has been vocal in its criticism of Kenya’s attempt to avoid the court’s jurisdiction.  While some observers interpret this as a sign of US support for the ICC, this article argues it does not mean the US is any closer to signing the Rome Statute.  The US has always been happy for the nationals of other countries to be subject to the jurisdiction of the ICC, just not its own citizens.  US criticism of Kenya is simply another example of this double standard. (IPS)

2010

US Takes Cautious Steps Toward ICC (May 6, 2010)

The United States has signalled a willingness to engage with the International Criminal Court (ICC) since President Obama took office. Domestic political pressure, however, is forcing the Obama administration limit its engagement with the ICC. One of the main obstacles to closer US-ICC cooperation with the ICC is the controversy around the definition of the crimes of aggression and the question whether the Court should prosecute such offences. This issue will be discussed at the ICC Review Conference in Kampala, Uganda, this month. The US is expected to argue against the proposal, as it fears that a broader jurisdiction of the Court will increase the possibility of charges against US military and government officials. (IWPR)

International Criminal Court Doesn't Need Power over 'Aggression' (April 2, 2010)

Stephen G. Rademaker is Senior Counsel at the lobbying firm BGR Government Affairs and former Assistant Secretary of State during the Bush administration. He argues in this Washington Post column that the International Criminal Court (ICC) should not expand its jurisdiction to include the "crime of aggression" at the Review Conference on the ICC Statute which will take place in May in Kampala, Uganda. He believes it would be bad for the United States, as it would enable the Court to prosecute leaders of any country that commits aggression on the territory of a member state. In other words, it would make it harder for the US to commit such crimes in the future. (The Washington Post)

2009

A Global Court Quandary for the President (August 10, 2009)

The Obama administration has recently expressed its "great regret" that the US is not a member of the ICC, signaling a departure from US policy under the Bush administration. However, the US is unlikely to join the ICC while waging war on two fronts. The US military still fears that the Court could be used to prosecute American soldiers abroad. (The Washington Post)

2008

Darfur Killings Soften Bush's Opposition to International Court (October 12, 2008)

This Washington Post article states that the US government softened its opposition to the International Criminal Court because it supports the ICC's indictment of Sudanese president Al-Bashir. In practice though, the US opposes the work of the ICC in relation to its own citizens as Washington still has not signed the Rome Statute and has even established a "Hague invasion clause" which allows the US military to liberate citizens of US or its allies if they are held by the ICC.

Ambassador for All War Crimes Except Our Own (September 22, 2008)

The US actively encourages prosecution of foreign war criminals, but Washington does not allow the International Criminal Court to prosecute US nationals for war crimes. The job of Clint Williamson, the US Ambassador-at-Large for War Crimes Issues, reflects this double standard of the US, since Williamson only investigates war crimes in other countries like Yugoslavia, Rwanda and Sri Lanka. (Huffington Post)

2007

It All Makes Sense Now – Blackwater and the ICC (October 1, 2007)

In this article, the author speculates whether the US opposition to the International Criminal Court (ICC) was part of a long term plan to provide immunity to contractors working for or on behalf of the US in Iraq. The Hague Invasion Act was passed by the US Congress in 2002, prior to the invasion of Iraq, and prohibits US courts from extraditing any person to the ICC. The author cites numerous atrocities committed by private security contractors working in Iraq including Blackwater USA, to demonstrate how these firms operate without any accountability to the ICC. (Tonic Blotter)

2006

US Recognizes Counterproductive BIA Policy (October 10, 2006)

The US Congress has amended the 2002 American Service Members Protection Act, which cut all foreign aid to countries that refused to grant immunity to US citizens from the International Criminal Court. Under the revised version, Washington will re-establish military aid to its Latin American and African allies, but will keep the foreign aid restrictions. Though welcoming this modification, Citizens for Global Solutions denounces US efforts to undermine the ICC. The move does not represent a change in Washington's position towards the Court, but rather, efforts to boost shadowy alliances in the "war on terror."

US Warms to Hague Tribunal (June 14, 2006)

The US seems to relax its harsh opposition to the International Criminal Court (ICC) as Washington now views the Hague-based court as "the only chance" to deliver justice in Darfur. While claiming to acknowledge the importance of the ICC, the Bush administration still maintains a different approach to international law and multilateral institutions. According to this Wall Street Journal article, this change in outlook comes as the US grows more concerned about "the immediate loss of military relations" with countries that declined to sign US immunity agreements than "the speculative danger that the ICC could pursue an American for war crimes."

Ocampo Turns Down Iraq Case: Implications for the US (February 2006)

International Criminal Court Prosecutor Luis Moreno Ocampo announced that his office will not investigate war crimes committed in Iraq by coalition forces. The Bush administration has staunchly opposed the ICC claiming it will "unfairly target" US military personnel. Ocampo's decision gives evidence of the court's impartiality. (Citizens for Global Solutions)

The Court That Tries America's Patience (January 12, 2006)

The chief prosecutor at the International Criminal Court (ICC) states that the first trial will take place this year involving the Democratic Republic of Congo (DRC). The US continues however to oppose the ICC, claiming political grounds. John Bellinger, US State Department Legal Adviser, charges that the Rome Statute created an "unaccountable prosecutor" with a dangerous "unchecked power". The ICC dismisses these claims as unfounded. (Telegraph)

2005

US Resurfaces Opposition to International Court (December 22, 2005)

In November 2005, the US showed flexibility in its attitude to the International Criminal Court (ICC) when dealing with the crisis in Darfur. One month later, the US has done an "about-face." US officials are now opposing any mention of the ICC in a Security Council resolution that seeks to protect civilians caught in armed conflicts. Meanwhile, UN officials and EU diplomats continue to support the ICC in this area. (OneWorld)

US' Attempts to Delete ICC from UN Security Council Resolution Undermine Advances Made (December 16, 2005)

The Coalition for the International Criminal Court (CICC) calls upon the Security Council to counter US efforts to remove mention of the ICC from a new resolution aimed at protecting civilians in armed conflict. The Coalition criticizes the US for its hypocrisy - in November 2005, the US had been sending a different message of support of the ICC taking action in the crisis in Darfur.

US and Mexico at Odds over Tribunal (October 29, 2005)

In a ceremony at UN headquarters, Mexico became the 100th nation to ratify the Rome Statute, which established the International Criminal Court (ICC). Amid the celebrations of this milestone, experts voiced concern that Washington's stubborn opposition to the ICC could exacerbate issues of illegal immigration and drug trafficking in the US. Mexico City refuses to grant ICC immunity to US citizens. Like many of its Latin American counterparts, Mexico may therefore stop receiving military and financial aid from the US. (Seattle Times)

Schoolyard Bully Diplomacy (October 16, 2005)

New York Times columnist Nicholas Kristof is ashamed of the Bush administration's use of foreign aid as blackmail for ensuring International Criminal Court immunity. Washington has made a habit of requiring countries – mainly those most in need of economic aid – to agree never to prosecute US citizens in the ICC. In essence, the US bullies these countries by threatening, "Unless you give us an immunity agreement, [your] kids will die."

Hunting Kony (October 7, 2005)

International Criminal Court officials may have had political motivations for issuing an indictment of Lord's Resistance Army leader Joseph Kony. The US government recognizes Kony as the leader of a "terrorist group." The US does not, however, recognize the ICC. The hunt for Kony provides an opportunity to reconcile this paradox, and perhaps force the Bush administration to grant legitimacy to the ICC. (American Prospect)

Bush's Aid Cuts on Court Issue Roils Latin America (August 19, 2005)

The Bush administration continues to pressure Latin American nations to sign bilateral agreements stipulating that these countries will not prosecute US citizens in the International Criminal Court. While the US has not threatened sanctions against richer countries who do not sign, it has used aid and sanctions to bully poorer nations into signing the immunity agreements, which, US officials maintain, protect US citizens from "politically motivated prosecutions." (New York Times)

Groups Urge Iraq to Join ICC (August 5, 2005)

An Iraqi petition brought to light the influence of US unilateral opposition to the ICC in Baghdad, and indicated that Washington pressured Iraqi policymakers to reject the Rome Statute. The petition, signed by nearly one hundred prominent Iraqi professionals and intellectuals, calls for an Iraqi constitution that "clearly affirms international law in its totality, primarily the Rome Statute of the ICC, as well as the international agreements, conventions, and declarations." The petition reignited debate over the role of US pressure in Iraq's withdrawal from its endorsement of the ICC earlier in the year (Inter Press Service).

Economic Support Funds Threatened Again for ICC Member Countries (June 29, 2005)

The US House of Representatives passed new legislation forbidding economic assistance grants to most governments party to the International Criminal Court which refuse to sign bilateral immunity agreements. Excluding only a few strategic allies, the measure "sabotages international law" and puts developing countries in a difficult position, reports Citizens for Global Solutions.

US Immunity in Colombia Scrutinized (June 7, 2005)

Despite Bogotá's desire to revise the US-Colombia agreement granting immunity to US troops in the ICC, observers doubt that changes will take place: any negotiations would be "time-consuming and politically tricky." Many nations such as Colombia are subject to Washington's "political blackmail" and have implicit restrictions – such as the threat of aid revocation – that keep them from bringing US offenders to justice. (Christian Science Monitor)

Kenya on Collision Course with US on ICC Treaty (April 25, 2005)

The Kenyan Assistant Minister for Foreign Affairs has stated that Nairobi "has no intention of exempting anybody or any country under any circumstances" from prosecution at the International Criminal Court (ICC). By resisting US pressure to sign an Article 98 Bilateral Immunity Agreement, Kenya will likely lose potential US aid and risks expulsion from "Washington's good books." (East African)

The ICC, Transatlantic Relations and Cooperation with Third Parties to Promote the Rule of Law (April 14, 2005)

The Commissioner for External Relations and European Neighbourhood Policy reinforces the EU's strong support for the International Criminal Court (ICC) and comments on "the challenge which the [Court] poses for the Transatlantic Relationship." Specifically she recognizes that the American concept of international justice depends on US ability to "exercise its power freely in the world" while European countries invest in international law and "are accustomed to oversight by international bodies." The Commissioner believes the Rome Statue provides sufficient safeguards against political manipulation and hopes the US will change its position. (Parliamentarians for Global Action)

The Bush Administration on Darfur: Less than Meets the Eye (April 5, 2005)

This article from The Center for American Progress examines Washington's decision to abstain from voting on the UN resolution to refer Sudan to the International Criminal Court (ICC). This move seemed "an extraordinary turn around" for the administration that actively opposed the Court for the past four years, and observers speculate that it was the "latest sign of moderation" from US President George Bush at the start of his second term. The author of this piece dismisses that hypothesis in favor of a "more sinister" theory: In allowing Darfur's referral to the ICC, the US has created the illusion of action in Sudan, when in reality, the killing will continue unabated.

US Obstructs Global Justice (March 29, 2005)

The Los Angeles Times denounces the continuing US hostility towards the International Criminal Court. This commentary tears apart Washington's theory that US citizens might become targets for unlawful prosecution, and urges the US to reconsider its position.

France Asking UN to Refer Darfur to ICC (March 24, 2005)

The UN Security Council will vote on a French-proposed resolution to refer Sudan's war crimes to the International Criminal Court (ICC). The resolution needs nine votes to pass, and France remains confident it can secure at least eleven. The US must now decide between allowing the ICC referral to go ahead after relentlessly campaigning against it, or casting a "politically damaging" veto. (World Bank)

Trying Times in Darfur and the Establishment of International Criminal Law (March 4, 2005)

Power and Interest News Report asserts that Security Council debate over the International Criminal Court's (ICC) role in Sudan has more to do with establishing an international legal precedent than ending Darfur's conflict. In particular, the outcome could set a standard for US compliance (or non-compliance) with international law. This article speculates that Russia and China may even support ICC jurisdiction for Darfur solely to weaken the US' superpower status.

Darfur: Washington Battles Against International Justice (February 17, 2005)

Non-governmental organizations have slammed Britain's proposal to give American citizens immunity from prosecution by the International Criminal Court (ICC). In exchange, the US would abstain from the UN Security Council vote on whether to refer Sudan to the ICC. But Washington's opposition to the court remains too intense to accept compromise. (Le Monde)

Pressure Growing on Bush to Send Darfur Killings to The Hague (February 17, 2005)

As the US maintains its stubborn opposition to the International Criminal Court (ICC), an increasing number of organizations and individuals urge Washington to rethink its position. In an attempt to reach a compromise, a group of 50 independent national security specialists have asked the EU to guarantee ICC immunity for US citizens if the country promises to support Sudan's referral to The Hague and restores aid to those governments that refused to sign a bilateral immunity agreement. ICC supporters consider such a deal unacceptable. (OneWorld US)

US Proposal for a Darfur Tribunal: Not an Effective Option to Ensure Justice (February 15, 2005)

Human Rights Watch denounces Washington's plan for an ad hoc tribunal to try Darfur's war criminals. This persuasive paper instead argues the case for referral to the International Criminal Court, citing unnecessary expense and a lack of permanence as two of the main reasons why a special tribunal "simply does not present a viable option" for justice in Sudan.

Court of First Resort (February 10, 2005)

Although Washington's condemnation of Darfur's human rights atrocities was swift and outspoken, the US now "can't decide what it dislikes more: genocide or the International Criminal Court (ICC)." Staunchly opposed to any UN-recommended ICC referral, the Bush administration instead backs the establishment of an ad hoc tribunal to try Sudan's war criminals. In a New York Times Op-Ed, Samantha Power exposes this approach as an "about-face" in light of Washington's prior criticism of the International Criminal Tribunals for Yugoslavia and Rwanda.

Sudan Bait and Switch (February 3, 2005)

According to this Wall Street Journal commentary, the UN has pulled "a classic bait and switch" by leaving the US with little choice but to support Sudan's referral to the International Criminal Court (ICC), or side "with a country like China" against the recommendation. The article advances the conspiracy theory that those states pushing for an ICC referral want "to divert attention from the suffering in Darfur and embarrass the US" and "have no intention of ever bringing anyone in Sudan to justice."

Why Should We Shield the Killers? (February 2, 2005)

Nicholas Kristof condemns Washington's obstinate opposition to the International Criminal Court (ICC). Despite a UN commission's recommendation that the Security Council refer Darfur's war criminals to the ICC, the US would rather establish an ad hoc tribunal for Sudan which "could take another year and 120,000 more deaths" before prosecutions begin. Kristof hopes that if the other Security Council members stand firm on the issue, the US might abstain from the vote rather than exercise its veto. (New York Times)

US Floats Plan for Its Own Tribunal to Address Sudan Violence (January 28, 2005)

The US is proposing to establish an ad hoc war crimes tribunal in Tanzania to deal with allegations of genocide in Sudan. Washington intends for the African Union to play a key role in the court, which will "meet the administration's twin goals of confronting atrocities in Sudan and shunning the [International Criminal Court]" writes the Wall Street Journal. However, other UN members are generally unimpressed by the plan, labeling the tribunal as too costly and unnecessarily time consuming. UN Secretary General Kofi Annan also maintains that the ICC is "the most logical place" for the trials.

Support War Crimes Trials for Darfur (January 24, 2005)

This Washington Post article speculates on the possible US reaction if the UN commission led by Antonio Cassese recommends an International Criminal Court (ICC) investigation of Sudan's war crimes. Such an action will first require Security Council referral, which the author predicts will attract US support. The Darfur case would allow Washington to argue that Council referral is the "only valid route to ICC prosecutions" for non-parties to the Rome treaty, and retain some control over the process. Critics denounce this as yet another "double standard" for veto-wielding members of the Security Council, while others welcome it as "a more moderate [US] stance toward the ICC."

2004

Senator Calls on Congress and White House to Protect Troops from International Criminal Court (December 10, 2004)

Conservative US Republican Senator Jon Kyl defends the Bush administration's position on the International Criminal Court in the right-wing newspaper, HUMAN EVENTS. Kyl says many UN peacekeeping operations occur in non-democratic anti-US countries, and subjecting US "leaders, troops, and personnel vulnerable to arrest and use as political pawns would be a colossal mistake." Kyl recommends that the US should deploy troops only in support for the "war on terrorism" and veto any UN resolution using US resources. But this solution is itself a means of political manipulation.

The US Administration and the ICC (December 9, 2004)

US Congressman Dennis Kucinich argues for ratification of the International Criminal Court (ICC) in the broader context of "international unity," a concept the Bush administration shuns by refusing to sign global treaties on the ICC as well as on climate change and weapons bans. Kucinich says the ICC is the only legitimate framework for international justice. But, he sadly notes, "Given the public record of its conduct in Iraq, is it any wonder that the Administration…would go to extraordinary efforts to weaken and even destroy the ICC, and to threaten nations which support it with economic reprisals?" (Common Dreams)

International Criminal Court Deserves Support (November 15, 2004)

The head of the European Commission's delegation to Barbados and the Eastern Caribbean denounces the US opposition to the International Criminal Court (ICC) and the bullying of Caribbean countries into signing Article 98 agreements in order to guarantee US citizens immunity from ICC prosecution. The author believes the ICC would not engage in "politicized prosecution" or overtake national jurisdiction on the part of a willing government. "Countries which respect the rule of law and are capable of dealing with crimes committed by its citizens have nothing to fear," he writes. (Nation, Barbados)

The Partial Rule of Law (October 2, 2004)

Author Anne-Marie Slaughter applauds the US role in supporting international criminal tribunals and special courts but criticizes the double standard that emerges as the US refuses to let its own citizens face international standards of justice. She asks, "So when exactly did the American conception of the rule of law come to mean one set of rules for others and another for ourselves?" (American Prospect)

America and the International Criminal Court (January 11, 2004)

This Nation (Nairobi) article strongly criticizes US opposition to the International Criminal Court (ICC). It condemns US measures, such as the American Servicemember's Protection Act, which allows a "US invasion of The Hague."

 

 

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