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The status of the United States and the International Criminal Court, amid bipartisan consensus, is that the United States has stated that it does not intend to ratify the treaty creating the International Criminal Court. Although the then U.S. President, Bill Clinton, signed the Rome Statute of the International Criminal Court, he stated he would not support its ratification as it stood, and only signed so that the United States could participate in negotiations on the court's rules of procedure. Under United States and International Law, a signature is not binding unless and until a treaty is ratified. Commentators have suggested that the treaty could not be ratified without a constitutional amendment.

Objections to the court

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National sovereignty

In remarks to the Federalist Society in 2002, then Under Secretary of State for Arms Control and International Security John Bolton discussed the United State's position regarding the ICC,

For a number of reasons, the United States decided that the ICC had unacceptable consequences for our national sovereignty. Specifically, the ICC is an organization whose precepts go against fundamental American notions of sovereignty, checks and balances, and national independence. It is an agreement that is harmful to the national interests of the United States, and harmful to our presence abroad."

The United States accepts that American citizens who travel to other countries, including troops and politicians, are bound by the laws of those countries. However, it argues that a country can under international law, only delegate the enforcement of those laws to courts with international jurisdiction. The US recognizes the United Nations, has a treaty with it, and so legally the UN has international jurisdiction over Americans that the ICC lacks. Therefore indictment by the ICC (without legal jurisdiction) of any American citizen for any crime would be a breach of American sovereignty.

Universal Jurisdiction

Many ICC advocates expect the ICC to soon exercise "universal jurisdiction", a legal concept that means that there would be no external limitations upon what the ICC could or could not legally do within the United States, except those imposed by the Rome Statute or by the court upon itself. Henry Kissenger said "The very concept of universal jurisdiction is of recent vintage. The sixth edition of Black's Law Dictionary, published in 1990, does not contain even an entry for the term. The closest analogous concept listed is hostes humani generis ("enemies of the human race"). Until recently, the latter term has been applied to pirates, hijackers, and similar outlaws whose crimes were typically committed outside the territory of any state. The notion that heads of state and senior public officials should have the same standing as outlaws before the bar of justice is quite new."

Politically motivated prosecutions

The United States claims that American soldiers and political leaders are at risk of "frivolous or politically motivated prosecutions" (a form of barratry). American troops and civilians are active in over 100 countries in the world and are therefore in a uniquely vulnerable position.

The ICC Prosecutor, Mr. Luis Moreno-Ocampo recently issued a report of his investigation regarding alleged crimes during the invasion of Iraq. The ICC Prosecutor's web pages states: "The Prosecutor may start an investigation upon referral of situations in which there is a reasonable basis to believe that crimes have been or are being committed. Such referrals must be made by a State Party or the Security Council of the United Nations, acting to address a threat to international peace and security. In the case of the Iraq investigation, political pressure from "240 communications concerning the situation in Iraq" were enough to persuade the ICC's three judges to investigate. He also stated "It may be observed, however, that the Office also collected information on national proceedings, including commentaries from various sources, and that national proceedings had been initiated with respect to each of the relevant incidents." He thus formally confirmed that none of the 240 communications had offered any allegations or evidence that could support further investigation.

Accountability

The United States argues that the court does not have sufficient political accountability to ensure that its actions are in the public interest. The court lacks sufficient oversight mechanisms for confirmation of officials, and their impeachment where necessary. Nominations for officials are unduly influenced by "quota systems and back room deals". Particularly, it is not subject to sufficient oversight by the United Nations Security Council. Although the council is able to defer a prosecution by a year, this can only be done with an affirmative vote, which may be vetoed. A prosecution does not require a positive referral from the Security Council, as it did with, for example, the International Criminal Tribunal for the former Yugoslavia, and can be started on the prosecutor's own initiative, overseen only by the court's own judges. Therefore the United States, on its own, could not prevent a prosecution taking place by using its Security Council veto powers.

Separation of powers

The United States argues that the court's authority is excessively vague, that many of the crimes are not well defined and do not have extensive case law. As definitions are subject to interpretation only by the court itself, it could choose to extend its remit by reinterpreting its statute, which the United States argues are essentially political and legislative functions. The courts do not include a jury, so that determinations of guilt and sentence are both made by the same judges. The member-countries can, at any later date, extend the range of crimes that are tryable by the court.

The ICC has significantly redefined what constitutes crimes, for example, it has broadened the definition of what a "crime against humanity" means.

Undermining the UN Security Council

The United States argues that the court could undermine the work of the United Nations Security Council, which is charged with maintaining peace and security between nations. The prosecutor is able to initiate prosecutions and issue indictments which can disrupt local processes of peace and reconciliation. This has also been the complaint of some in Uganda with regard to the court's investigation there.

Non-jury trials

Americans have criticised the court for not protecting defendants' rights, particularly:

• Absence of jury trials
• Retrials allowed for errors of fact
• Hearsay evidence allowed
• No right to a speedy trial, a public trial or reasonable bail

Ratification by the United States of the Rome Statute would require a constitutional amendment, as it did in other countries such as Ireland.

The Skeptical Left, the ICC, and the United Nations

In 2002 the United States began to undertake measures to exempt U.S. nationals from the Court's extradition without legal jurisdiction, or where it has jurisdiction, by bi-lateral diplomatic agreements under article 98 of the Rome Statute.

The Skeptical Left and the Crimes of the Bush Administration

Skeptics say there may be other reasons than those advanced by the Bush administration for frustrating the International Criminal Court. One might think of the role the U.S. administration or U.S. citizens have played in conflicts around the world in the past, i.e. Gulf of Tonkin Incident, My Lai Massacre, aid to Operation Condor through the School of the Americas. Continuing these policies today, under the ICC Statute, could be grounds for prosecution. There is great hope articulated by those of the skeptical left that the ICC will develop into an activist court that will prosecute Americans for political crimes that presently are committed with impunity. Skeptics look forward to the day when the ICC will indict, convict, and imprison American leaders for their numerous and infamous political crimes.

In addition, they point to the possible legal challenges, under the command responsibility principle, as a result of the "war on terror" regarding the memos refuting the Geneva Convention, the use of unlawful combatant status, extraordinary rendition and the invasion of Iraq. Critics of the U.S. administration view these as war crimes. The ICC might force a new "universal morality", and might even eliminate the crime of forced pregnancy. .

The Skeptical Left and the United Nations

The Skeptical Left and the Skeptical Right have increasingly common ground in opposition to the United Nations, particularly for the UN Security Council. Both have been deeply disappointed by it. The United Nations has the authority and jurisdiction to review any of these claims of crimes - and to take legal and military action against the United States if the claims were found to have merit. Some claims have been reviewed by the United Nations, and no action was taken. It is incorrectly stated that only the Security Council might take such an action, but under the UN Charter, the General Assembly might act as well, but it too has regularly declined to act. Such an action by the General Assembly, while possible, has only happened once, almost fifty years ago. For the skeptical left, the ICC offers hope that the leadership of the US can finally be convicted of their many egrigious political crimes by the ICC, they no longer have confidence that the UN will ever act upon their agenda. The report of the ICC Prosecutor, Luis Moreno-Ocampo that there were no known crimes (not handled by national authorities)related to the Iraq war disapointed the skeptical left - as did his statement ""The death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime".

The Skeptical Left hold great hope for the International Criminal Court, no less than that it will usher in a "new moral order of world society". .

American Servicemembers Protection Act

In 2002, the U.S. Congress passed the American Servicemembers' Protection Act (ASPA), which contained a number of provisions, including prohibitions on the United States providing military aid to countries which had ratified the treaty establishing the court; however, there were a number of exceptions to this, including NATO members, major non-NATO allies, and countries which entered into an agreement with the United States not to hand over U.S. nationals to the Court (see Article 98 agreements below). ASPA also excluded any military aid that the U.S. President certified to be in the U.S. national interest.

In addition, ASPA contained provisions prohibiting U.S. co-operation with the Court, and permitting the President to authorize military force to free any U.S. military personnel held by the court, leading opponents to dub it "The Hague Invasion Act." The act was later modified to permit U.S. cooperation with the ICC when dealing with U.S. enemies.

In addition, the Nethercutt Amendment to the Foreign Appropriations Bill suspends Economic Support Fund assistance to ICC States Parties who have not signed bilateral immunity agreements (BIAs) with the United States. The funds affected support initiatives including peacekeeping, anti-terrorism measures, democracy-building and drug interdiction. The omnibus appropriations bill containing the controversial amendment was signed by President Bush on December 7, 2004.

United Nations Security Council Resolutions

In July 2002, the United States threatened to use its Security Council veto to block renewal of the mandates of several United Nations peacekeeping operations, unless the Security Council agreed to permanently exempt U.S. nationals from the Court's jurisdiction.

Initially, the United States had sought to prevent personnel on UN missions being tried by any country except that of their nationality. When the other members of the Security Council rejected that approach, the United States made use of a provision of the Rome Statute, which permits the Security Council to direct that the ICC may not to exercise its jurisdiction over a certain matter for up to one year. The United States sought the Security Council to convey such a request to the ICC concerning personnel on United Nations peacekeeping and enforcement operations, and to have that request renewed automatically each year. (If renewed automatically each year, then another Security Council resolution would be required to cease the request, which the United States could then veto—which would effectively make the request permanent.) Court supporters argued that the Rome Statute requires the request to be valid to be voted upon anew each year in the Security Council, and hence that an automatically renewing request would violate the Statute. By international law, questions regarding the interpretation of the UN Charter may only be interpreted by the UN Security Council. The UN Charter requires that all UN members support the decisions of the Security Council, so only ICC members who are not also UN members are free to dissent.

Members of the Security Council opposed this United States request. However, they were increasingly concerned about the future of peacekeeping operations. The United Kingdom eventually negotiated a compromise, whereby the United States would be granted its request, but only for a period of one year, and a new Security Council vote would be required in July each year for the exclusion of peacekeepers from ICC jurisdiction to be continued. All members of the Security Council eventually endorsed resolution 1422.

NGO supporters of the Court, along with several countries not on the Security Council (including Canada and New Zealand), protested the legality of the resolution. The resolution was made under Chapter VII of the UN Charter, which requires a "threat to international peace or security" for the Security Council to act; ICC supporters have argued that a U.S. threat to veto peacekeeping operations does not constitute a threat to international peace or security. In such a case the UN Charter states that the Security Council will determine if the Security Council's actions conformed with the UN Charter.

A resolution to exempt citizens of the United States from jurisdiction of the ICC was renewed in 2003 by Resolution 1487, but after the abuse of prisoners in Iraq, the United States withdrew its second proposed renewal of the resolution.

Article 98" Agreements

As part of the U.S. campaign to exclude its citizens and military personnel from extradition by the ICC, the U.S. Bush administration has been approaching countries around the world seeking to conclude Bilateral Immunity Agreements, or “Article 98” agreements.

No American is immune to prosecution by any nation that they may choose to travel to. Article 98 Agreements offer absolutely no protection to those who have committed crimes abroad. Nations that sign such agreements remain entirely free to enforce their national laws against Americans. These agreements prohibit the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and U.S. employees (including non-national contractors) and nationals, but do not prevent them from being tried for crimes. These agreements, which in some cases are reciprocal, do not always include an obligation by the United States to subject those suspected persons to investigation and/or prosecution, the nation where the offense occurred is expected to try an accused American in their legal system. In fact, it is usually impractical (if not illegal) to try an American in an American court for a violation of a law that occurred in Brazil. If the ICC wanted to try an American for an offense that was legal in the US and also in the other nation, only then would an Article 98 agreement bar their surrender. Americans who violate the laws of other nations are not protected by Article 98 agreements.

The United States has used bi-lateral diplomacy to persuade many nations to sign these agreements. The US has a law requiring the suspension of military assistance and U.S. Economic Support Fund (ESF) aid to those States Parties which do not sign these agreements. The granting of such special favors is of course always subject to diplomacy. ESF funding entails a wide range of governance programs including international counter-terrorism efforts, peace process programs, anti-drug trafficking initiatives, truth and reconciliation commissions, wheelchair distribution and HIV/AIDS education, among others. In 2003, the United States stopped military aid for 35 countries (among them nine European countries). U.S. law requires the cessation of such aid payments if a state is unwilling to sign the bilateral agreement (there are exceptions for NATO-members and allies such as Israel, Egypt, Australia and South Korea). In March of 2006, Condoleezza Rice admitted that the United States' position on Article 98 agreements was "sort of the same as shooting ourselves in the foot".

Article 98 of the Rome Statute provides that a country need not hand over a foreign national to the Court if it is prohibited from doing so by an agreement with that national's country. The United States has used this measure to exempt its nationals from the Court's extradition.

Amnesty International and the European Commission Legal Service, along with several other groups supporting the ICC, have claimed that these agreements the United States is attempting to negotiate are not valid under Article 98. They argue that the language in Article 98 is normally used in international law to refer to Status of Forces Agreements (SOFA), mission agreements and extradition treaties; hence they claim that Article 98 can only be used for these purposes, and not to create a general exclusion for other states' nationals from being handed over to the ICC. While such concerns are relevant to the member-nations of the ICC who legally must observe it's rules, the US is not a member and properly need not observe these.

Romania and Israel (even though the latter is not a party to the Statute) were the first to sign Article 98 agreements with the United States In response to Romania's action, the European Union requested that candidate countries not sign Article 98 agreements with the United States until the EU ministers had met to agree upon a common position. ICC supporters described this US bi-lateral diplomacy as "bullying" other countries. Finally, in October 2002, the Council of the European Union adopted a common position, permitting member states to enter into Article 98 agreements with the United States, but only concerning U.S. military personnel, U.S. diplomatic or consular officials, and persons extradited, sent to their territories by the United States with their permission; not the general protection of U.S. nationals that the United States sought; furthermore the common position provided that any person protected from ICC prosecution by such agreements would have to be prosecuted by the United States. This was in agreement with the original position of the EU, that Article 98 agreements were allowed to cover these restricted classes of persons but could not cover all the citizens of a state. This EU position only covers EU members and does not restrict US diplomacy or make it illegal for bi-lateral diplomacy to proceed.

On May 2, 2005, Angola became the 100th country to sign a bilateral agreement with the United States under Article 98. Since then, no additional signings have been listed on the State Department's website.

By June 2005 around 100 states had signed a bilateral agreement with the United States, including at least seven of them that signed the agreement secretly. Many of these agreements are with non-States Parties to the Court.. 58 of the 100 countries have not signed these bilateral agreements, despite U.S. pressure. At least 54 governments (including Brazil, Canada, Estonia, Peru, South Africa, and Trinidad and Tobago) and several intergovernmental bodies have publicly opposed these agreements and have encouraged other states to resist signing such agreements. Less than 30% of these agreements have actually been ratified by national parliaments. It is unclear how the majority of these agreements have been entered into, though at least 18 of them are known to have been secured through “executive agreements" which many legal experts argue are unconstitutional and require the approval of parliament.

The United States has cut aid and development funding for many countries in retaliation for not signing bi-lateral Article 98 agreements. Countries who have so declined aid include Barbados, Brazil, Costa Rica, Peru, Venezuela, Ecuador, Saint Vincent and the Grenadines, South Africa, and several other Caribbean, Latin American and African countries.

Future Visions for the ICC and the US

The ICC Will Protect the US from Terrorism

Luis Moreno-Ocampo, the ICC Chief Prosecutor "National States alone cannot offer individuals the protection they need and deserve, as the attacks on the Twin Towers in Manhattan show. The protection offered by national States is not sufficient to guarantee the life and freedom of their citizens if the international community, too, is not based on the rule of law. Only the existence of mechanisms for the protection of all persons in all countries can bring lasting, omprehensive peace."

The ICC Expects to "Align" Corporate Values

Luis Moreno-Ocampo, the ICC Chief Prosecutor "The issue of corporate responsibility is central to our vision of ensuring the observance of the law in the long term. We need to align values, economic interests and decisions of national States."

Supporters

The court has been supported by former Senator and the Democratic Party's Vice-Presidential Candidate in 2004, John Edwards, who called for America to be part of the court when campaigning for the 2008 Democratic Nomination. Edwards said that:

We should be the natural leader in ... these areas ... when America doesn't engage in these international institutions, when we show disrespect for international agreements, it makes it extraordinarily difficult when we need the world community to rally around us ... we didn't used to be the country of Guantanamo and Abu Ghraib. We were the great light for the rest of the world, and America needs to be that light again.

Bill Richardson, the Governor of New Mexico and another candidate for the 2008 Democratic Nomination said in 2007, as part of his nomination campaign:

We must repair our alliances...renew our commitment to International Law and multilateral cooperation...this means joining the International Criminal Court

See also

• Human rights in the United States
• AMICC (American NGO Coalition for the International Criminal Court)

References

1. The United States and the International Criminal Court
2. see Madeline Morris, High crimes and misconceptions: the ICC and non-party states, Law and Contemporary Problems, Winter 2001 vol. 64 no. 1 p. 13ff.
3. http://www.globalpolicy.org/intljustice/general/2001/07kiss.htm
4. * Luis Moreno-Ocampo Letter:Public reply with his conclusions allagationsof war crimes during the invasion of Iraq in March 2003(PDF) 9 February 2006
5. http://www.icc-cpi.int/organs/otp.html
6. Cherif Bassiouni. "Crimes Against Humanity". Retrieved 2007-09-14.
7. The International Criminal Court's antagonism toward our Constitution, Renew America, 2006-09-09.
8. 2006 Steven C. Roach, Politicising the International Criminal Court: The Convergence of Politics ISBN: 0742541045 page 100.
9. http://www.globalpolicy.org/intljustice/icc/2006/0614warm.htm
10. 2006 Steven C. Roach, Politicising the International Criminal Court: The Convergence of Politics ISBN: 0742541045 page 81.
11. http://www.nytimes.com/2006/07/23/world/africa/23terror.html?ei=5090&en=35a292390b54141e&ex=1311307200&partner=rssuserland&emc=rss&pagewanted=print]
12. http://listserv.aaas.org/pipermail/tjnetwork/Week-of-Mon-20030818/000237.html
13. http://listserv.aaas.org/pipermail/tjnetwork/Week-of-Mon-20030818/000237.html
14. Edwards Seeks to Make 2nd Time a Charm, The Times and Democrat, 2006-12-28.
15. John Edwards Announces Bid for 2008 Democratic Presidential Nomination, Washington Post, 2006-12-28.
16. A New Realism in Foreign Policy, Bill Richardson for President, 2007, accessed on 2007-08-05

External links

• Article 98: Cooperation with respect to waiver of immunity and consent to surrender
• Objections to the ICC under the U.S. Constitution and International Law
• The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny by Henry Kissinger
  • A reply to Henry Kissinger's paper by Benjamin B. Ferencz, a former Prosecutor at the Subsequent Nuremberg Trials
• Why Bilateral Agreements with the U.S. are not valid under Art.98 of ICC Statute by Derechos.org
• American Justice and the International Criminal Court Remarks by John R. Bolton, Under Secretary for Arms Control and International Security, at the American Enterprise Institute in Washington, D.C. on November 3, 2003
• U.S. Policy Regarding the International Criminal Court Congressional Research Service Report for Congress, Updated April 26, 2006

v t e International Criminal Court (ICC)
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