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Revision as of 05:51, 31 December 2007 by JCO312 (talk | contribs) (removing speculation)(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 does not intend to ratify the Rome Statute of the International Criminal Court, which established the court as a body to investigate and prosecute genocide, crimes against humanity, and war crimes, all of which are primary responsibilities of the United Nations. US Senators have suggested that the treaty could not be ratified without a constitutional amendment. Others have commented that it violates international law, that it is a political court without appeal, that it denies fundamental American human rights, denies the authority of the United Nations, and denies US national sovereignty.
US objections to the court
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The Government of the United States Lacks Constitutional Authority to Ratify the Statute
The Heritage Foundation asserts that
"United States participation in the ICC treaty regime would also be unconstitutional because it would allow the trial of American citizens for crimes committed on American soil, which are otherwise entirely within the judicial power of the United States. The Supreme Court has long held that only the courts of the United States, as established under the Constitution, can try such offenses."
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."
A Political Court
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.
Lack of 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.
Undermining the United Nations
The United States argues that the court does undermine the work of the United Nations, which is charged with maintaining peace and security between nations. The Heritage Foundation asserts that the Rome Statute violates the UN Charter when it defines and limits the role of the UN within the ICC because only the United Nations Security Council has this authority.
Lack of respect for human rights (due process)
Americans have criticised the court for not protecting defendants' human rights, particularly: would not observe such basic rights as trial by a jury of one's peers, protection from double jeopardy, and the right to confront one's accusers.
- 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
Some argue that ratification by the United States of the Rome Statute would require a United States Constitution amendment. This has happened in other countries such as Ireland, but in those cases no fundamental human rights were forfeited. RenewAmerica articulates this: "Because the ICC is inconsistent with fundamental constitutional protections, the federal government is without authority to ratify the treaty absent a constitutional amendment." If the US Government were to ratify an ICC treaty, there almost certainly would be an immediate legal challenge to the authority of the government to forfeit any constitutional right except by a constitutional amendment.
The Vienna Convention on the Law of Treaties
The Heritage Foundation asserts that "...the ICC is actually hostile to international law. Proclaiming jurisdiction over all nations -- even those that have not signed the agreement -- is in direct contrast to the Vienna Convention on the Law of Treaties, which declares that no state is subject to an international agreement to which it does not consent. Hence the ICC is illegal when measured by long-standing international law."
Efforts to shield Americans from ICC prosecution
The Heritage Foundation" asserts "A bedrock principle of the international system is that treaties and treaty organizations cannot be imposed on states without their consent. The statute violates international law by claiming that the ICC has authority to prosecute and punish the nationals of countries that are not party to it." Members of the United Nations have agreed to the UN Charter by treaty, so all UN members are bound by it. In 2002 the United States began to undertake measures to shield U.S. nationals from prosecution by the ICC.
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. 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." Article 98 agreements only preclude nations from referring people to other nations or entities (like the ICC).
The United States has used bilateral 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".
Romania was one of the first countries to sign an Article 98 agreement 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. 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.
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.
The United States has cut aid and development funding for many countries in retaliation for not signing bilateral 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.
Rationale behind the U.S. objections according to skeptics
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Skeptics have argued there may be other reasons than those advanced by the Bush administration for not joining the International Criminal Court. They point to 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. Engaging in such 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, ] and Iraq. Critics of the U.S. administration view these as war crimes and therefore allege that high level officials and the administration itself might be liable for criminal prosecution. The International Criminal Court investigated all allegations for war crimes and crimes against humanity and found that all such claims were without merit except those already being prosecuted by national authorities. No member of the United Nations has brought such claims to the Security Council for review and no member of the International Criminal Court has brought them before the ICC.
American supporters of the ICC
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 International Criminal Court vs. the American People
- The United States and the International Criminal Court
- http://www.heritage.org/Research/InternationalOrganizations/EM822.cfm
- Breaking the ICC Impasse. John C. Hulsman and Brett D. Schaefer. July 11, 2002. http://www.heritage.org/Press/Commentary/ed071102.cfm
- The International Criminal Court's antagonism toward our Constitution, Renew America, 2006-09-09.
- http://www.heritage.org/Research/InternationalOrganizations/EM822.cfm
- http://www.renewamerica.us/columns/voigt/060909
- http://www.heritage.org/Research/InternationalOrganizations/wm310.cfm
- http://www.heritage.org/Research/InternationalOrganizations/EM822.cfm
- Human Rights Watch, “U.S.: 'Hague Invasion Act' Becomes Law”. 3 August 2002. Accessed 23 December 2007.
- http://www.nytimes.com/2006/07/23/world/africa/23terror.html?ei=5090&en=35a292390b54141e&ex=1311307200&partner=rssuserland&emc=rss&pagewanted=print]
- 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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