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Revision as of 11:46, 13 September 2007 by Mrzaius (talk | contribs) (→Politically motivated prosecutions: no longer unreferenced)(diff) ← Previous revision | Latest revision (diff) | Newer revision → (diff)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, as it creates a court of appeal above the U.S. Supreme Court, which may act if it decides that the United States is unable or unwilling to prosecute any alleged crimes.
Objections to the court
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National sovereignty
"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 cannot, under international law, delegate the enforcement of those laws to a supra-national court without the consent of the home state. Therefore the indictment by the court of any American citizen for a crime committed in the territory of a state party would be a breach of American sovereignty.
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. There is no mechanism within the court for the United States to be treated fairly a byn independent prosecutor who pursued such a political agenda.
The ICC Prosecutor, Mr. Luis Moreno-Ocampo appears to have done just this because he recently issued a report of his investigation regarding alleged crimes during the invasion of Iraq. In this report he admits that no nation asked him to do this investigation. He also states that there was no evidence for any crime that was not already being handled by national authorities. He did not cite any legal issue or evidence whatever, he only cited the political pressure as his motivation. The three political appointees acting as judges have no checks or balances upon them beyond their own interpretation of law. The ICC 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 invasion investigation the prosecutor admits in is own report that no state party referred the issue. Clearly he then exceeded his authority.
The Heritage Foundtion states "the current draft creates an independent international court whose agents and judges would be empowered to investigate crimes, prosecute, pass judgments, sentence, and even hear the appeals of its decisions on an array of crimes from genocide to war crimes to terrorism. This judicial omnipotence is fundamentally inconsistent with American legal traditions, in which the functions of investigation, prosecution, trial, and appeal are clearly separated to ensure that the accused receives a fair trial and that corruption and politicization are avoided."
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.
"Americans who appear before the court would be denied such basic constitutional rights as trial by a jury of one's peers, protection from double jeopardy, and the right to confront one's accusers".
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.
In general there are insufficient structures to separate the functions of defining, adjudicating and enforcing laws, subject to popular accountability and protection of liberty. This separation of powers is more clearly established in the United States than in Europe, which is why Europeans are generally more supportive of the court.
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.
By insisting on a universal principle that certain crimes should always be punished, the court is restricting the flexibility available to the international community in dealing with future circumstances, where a Truth and Reconciliation Commission, for example, may be more effective.
Non-jury trials
Many in the United States 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
They point out that any ratification by the United States would require a constitutional amendment, as it did in other countries such as Ireland.
Reactions to the court
When it became clear in 2002 that the treaty creating the ICC would receive the requisite number of ratifications to enter into force, the United States began to undertake a number of measures to exempt U.S. nationals from the Court's jurisdiction.
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.
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.
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 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 then sought to make use of a provision of the Rome Statute, which permits the Security Council to request the ICC not to exercise its jurisdiction over a certain matter for up to one year at a time. 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.
Other members of the Security Council opposed this United States request also. 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 endorsed this resolution, although many did so reluctantly. The result was UN Security Council 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.
A resolution to exempt citizens of the United States from jurisdiction of the court was renewed in 2003 by Resolution 1487, but after the abuse of prisoners in Iraq it became clear that there was no majority for it, 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 the jurisdiction of the ICC, the U.S. Bush administration has been approaching countries around the world seeking to conclude Bilateral Immunity Agreements, or so-called “Article 98” agreements. Bilateral diplomacy to advance national interests have ben a standard of international diplomacy for millenia, and these represent routine bi-lateral diplomacy.
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. 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 occured is expected to try an accused American in their legal system. 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. There is no impunity involved, every nation that signs such agreements may of course continue to prosecute Americans for any violation of their law.
The United States has attempted to pressure states into signing these bilateral agreements with it by adopting legislation 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). There is no doubt that these measures are fully legal and that the US has a right to exert such diplomatic and economic pressure, or that every nation grants special favors by diplomacy to advance its interests.
Article 98 of the Rome Statute provides that a country need not surrender any 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 diplomacy to remove its nationals from the Court's jurisdiction, by negotiating agreements with State Parties making use of Article 98.
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. Arguments about the legality of such agreements do not imply that the use of diplomacy by the US is in any way illegal, as nothing in the Statute applies to the United States. Members of the ICC however need to interpret their own treaties and laws, including the Statute.
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. The U.S. State Department called this action inappropriate. ICC supporters countered that the United States was attempting to use issues of military aid and NATO membership to "bully" other countries into signing. Of course by "bully", they mean bi-lateral diplomacy to advance national interests, something that every nation routinely does.
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 position however, only covers EU members and does not restrict US diplomacy or make it illegal for bi-lateral diplomacy to proced.
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 (at their own request) 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. Instead, 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 cooperating with the ICC. Countries who have lost 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.
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".
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
- The United States and the International Criminal Court
- 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.
- http://www.icc-cpi.int/organs/otp.html
- http://www.heritage.org/Research/InternationalOrganizations/EM537.cfm
- http://www.heritage.org/Research/InternationalOrganizations/EM708.cfm
- The International Criminal Court's antagonism toward our Constitution, Renew America, 2006-09-09.
- Edwards Seeks to Make 2nd Time a Charm, The Times and Democrat, 2006-12-28.
- John Edwards Announces Bid for 2008 Democratic Presidential Nomination, Washington Post, 2006-12-28.
- 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
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