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United States and the International Criminal Court: A Briefing On May 6 the United States government delivered a letter to the Secretary-General of the United Nations giving formal notice that the US has no intention of becoming a party to the Rome Statute of the International Criminal Court. The letter also requested that the US declaration be reflected in the Rome treaty’s official status list – effectively canceling out the US signature to the treaty that was entered by the Clinton administration on December 31, 2001. This measure – popularly referred to as "unsigning" – sets the United States in outright opposition to the court, which will come into existence on July 1 of this year. The move confirmed that the Bush administration will not submit the Rome treaty establishing the court to the Senate for ratification, and that it will refuse to cooperate with the court once it is up and running. The administration also announced that it would attempt to negotiate bilateral agreements with as many other countries as possible to prevent them from surrendering US agents to the court. In this document, we attempt to answer some of the questions raised by the administration’s action, and examine the substance of the charges that government officials have leveled at the court. What does ‘unsigning’ mean? The administration’s repudiation of the treaty has been condemned by many human rights groups and numerous foreign observers, including the European Union. Whatever one thinks of it as a policy matter, however, the action of withdrawing from a treaty prior to ratification is explicitly sanctioned by international law. Under Article 18 of the 1969 Vienna Convention on the Law of Treaties, a state that has signed but not ratified a treaty 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." According to James Crawford, Whewell Professor of International Law at Cambridge University, and Chairman of the International Law Commission working group that produced the first draft statute for the court in 1994, it was "probably appropriate, given their intentions toward the court" that the United States make a formal announcement that it was not going to become a party to the treaty. Crawford said that he thought it was "very unfortunate" that the United States took the attitude toward the court that it did, but that under those circumstances, it was entitled to say "We’re not going to be a party to this." For the United States, withdrawal from the treaty gives it a freer hand to launch a diplomatic offensive to minimize the chances that US military, governmental or other official personnel might ever appear before the court. On the same day that the withdrawal was announced, the government said that it was designating an official named Marisa Lino to negotiate bilateral agreements with countries to prevent them surrendering US agents to the court’s jurisdiction. Will the ICC be able to function without US support? The International Criminal Court will be funded entirely by states that are a party to it; United States non-participation means that the US will not contribute anything to meet the running costs of the institution. However Professor Crawford pointed out that "the court is not going to cost very much, because in the short term it’s not going to do very much." This is because (as discussed further below) the ICC will effectively be a court of last resort, and it can be assumed that most states that are party to it would, in the event that any of their citizens faced credible charges of committing war crimes, use their primary jurisdiction to try the case themselves. Of more concern for the Court may be the apparent determination of the United States not to provide any help to the prosecutor with regard to information, documents or testimony. According to Pierre-Richard Prosper, Ambassador for War Crimes Issues, on May 6: "If the prosecutor of the ICC seeks to build a case against an individual, the prosecutor should build the case on his or her own effort and not be dependent or reliant upon U.S. information or cooperation. We have detached ourselves from the process; we have divorced ourselves from the process and do not intend to contribute in that regard." Will United States personnel be liable to prosecution by the court? Under the Rome Statute for the ICC, the court has jurisdiction over cases where the suspect is a national of a state that is a party to the treaty, or where the crimes were committed on the territory of state that is a party to the treaty, or where the case is referred to the court by the United Nations Security Council. Because the US will not be a party to the treaty, US nationals would only fall within the jurisdiction of the court if they were accused of crimes committed on the territory of a state party. (As a permanent member of the UN Security Council, the United States would be able to veto any attempt to refer a case involving an American citizen to the court.) In its public statements, the United States has spoken in particular of its concern that US military personnel or government officials serving overseas should not be liable to prosecution by the court. During his press conference on May 6, Ambassador Prosper said, "Our primary concern is toward our US service members and officials acting in their official capacity." In a statement released on the same day, Defense Secretary Donald Rumsfeld stated, "Fortunately there may be mechanisms within the treaty by which we can work bilaterally with friends and allies, to the extent they are willing, to prevent the jurisdiction of the treaty and thus avoid complications in our military cooperation." According to Annalisa Ciampi, Researcher in International Law at the University of Florence, Rumsfeld was probably referring to Article 98 of the statute. This article states that 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 surrender." Ciampi said that this clause was primarily intended to cover existing "status of forces" agreements that require countries where US troops are serving to return them to the United States for trial if they are accused of war crimes. However she pointed out that there is nothing in the Statute that specifies that such agreements must already be in existence, or even that they must require trial in the United States for US personnel. In other words, if the United States can persuade another country to sign a bilateral agreement, promising not to hand over US personnel serving in that country in an official capacity to the ICC, then the court would not be able to ask the country to hand over the American officials. This will be the focus of Marisa Lino’s diplomatic efforts. (In what appears to be a related policy, the United States was reported on May 16 to be pressing the United Nations for a guarantee that peacekeepers of all nationalities serving with the UN in East Timor should be immune from prosecution by local or international courts.) Are there more effective mechanisms for promoting international justice? In a speech explaining the reasons for the US renunciation of the ICC, Marc Grossman, Under Secretary of State for Political Affairs, said that "states, not international institutions are primarily responsible for ensuring justice in the international system." He said that the US would continue to play in leading role in promoting the rule of law and accountability for violations of international humanitarian law, but that that should be done wherever possible through reinforcing the capability of domestic legal systems. Grossman referred to the newly-created hybrid tribunal for Sierra Leone as an example of how the international community could work constructively with domestic bodies. According to Horst Fischer, Academic Director of the Institute for International Law of Peace and Armed Conflict at Ruhr University in Germany, the argument that the ICC infringes the principle of domestic primacy represents the exact opposite of the court’s fundamental approach. "Under the principle of complementarity agreed in Rome," he said, "it’s the main task of the national courts to deal with all the crimes mentioned in the statute, not the ICC." The court will only exercise jurisdiction when national courts are unwilling or unable genuinely to prosecute. There is nothing in the court’s statute that would prevent domestic legal systems – with or without international assistance – from taking the main responsibility for prosecuting those charged with breaches of international law. The court is most likely to have a prominent role in situations like the former Yugoslavia or Rwanda, where those in power want to protect the perpetrators of crimes, or the country’s legal system is simply not capable of mounting effective prosecutions. It is under exactly these circumstances that the United States has supported international prosecutions in the past as a contribution to international peace, and the fact that the court is already in existence will mean it will be able to swing into action without the delay involved in setting up a legal body from scratch. For this reason, Professor Crawford predicted that at some point the United States would conclude that it was in its interest to become a party: "Sooner or later we’ll have another Yugoslavia or whatever, and the rest of the world will say, ‘This falls squarely within the jurisdiction of the ICC, we’ve created it, we’re not going to duplicate, we’ll just use the body we’ve set up.’ Any attempt by the Americans to set up a separate body through the Security Council, as they did with the International Criminal Tribunal for the former Yugoslavia, will fail. And the Americans are going to find out that they have no influence over the way things are happening." Will the Court interfere in domestic transitional justice? Marc Grossman said on May 6 that "when a society makes the transition from oppression to democracy", it should be allowed to choose its own method of confronting its past. He referred to the example of South Africa’s Truth and Reconciliation Committee as a "democratic decision" that might be threatened under the current framework of the Rome treaty. Article 17 of the Rome Statute sets out the criteria for determining when a state can be said to be unwilling to prosecute a suspected offender. The relevant test here is whether "the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility." According to Professor Crawford, this measure gives some latitude for countries to decide that national reconciliation would be served by some process other than full prosecution – since under those circumstances the decision would have been taken in the wider interests of the society, rather than merely to shield an offender from justice. However Crawford said this was an area which would require delicate judgment from the court: "I think there is a question about truth commissions, because you can’t say a priori which ones are a reasonable response to the situation, and which ones are a cover-up. It’s going to require extreme care by the prosecutor. There may be some problem there with the capacity to subvert those processes if they are reasonable, and we’ll just have to hope that the institutions within the court take a sensible view about it. But complementarity extends to covering internal processes which don’t necessarily involve prosecutions of individuals, so there’s no reason why the principle of complementarity ought not to cover an appropriately constituted truth commission." Crawford
added that he expected over time that there would develop "some
form of informal criteria for the adequacy of truth commissions".
He suggested that one possible test would be whether the procedure
in question had been freely ratified by the successor regime, "so
it’s not just a way that the generals can sign their amnesty
on the way out of the door." Aggression – or crimes against peace – was one of the crimes listed in the London Charter for the Nuremberg trials (largely through the initiative of the United States) and confirmed in the tribunal’s judgment. It was not included in the jurisdiction of the ad hoc tribunals for ex-Yugoslavia or Rwanda (which was in any case an internal conflict). In the Rome Statute, aggression is listed as a crime but with the proviso that the court will only exercise jurisdiction over it "once a provision is adopted…defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations." The Statute also says that no amendments may be made for seven years after the treaty comes into force. The statute’s treatment of aggression is one of the main reasons cited by the United States for its rejection of the court. Marc Grossman said the possibility that the prosecutor might be able to issue indictments for aggression "dilutes the authority of the UN Security Council" and warned that the ICC prosecutor and judges might be able to "sit in judgment on the security decisions of states without their assent." However Professor Crawford argued that the question of aggression was in "cold storage", and that it was likely to remain there. Amendments to the statute require the support of two-thirds of the states that are party to the statute, and he said it was unlikely that this number of countries would unite behind a definition that was problematical. It is also worth noting that the Rome Statute explicitly requires that any definition of aggression should be compatible with the Charter of the United Nations, which states in Chapter VII, Article 39: "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken…to maintain or restore international peace and security." This appears to require that any definition of aggression that the court might adopt should preserve a central role for the Security Council in determining that an act of aggression had taken place. Will the ICC be an "unchecked power"? According to Marc Grossman, the Rome Statute "places enormous unchecked power in the hands of the ICC prosecutor and judges" and opens the way for "controversy, politicized prosecutions and confusion". The United States objects to the ability of the prosecutor to launch investigations and prosecutions independently, without authorization by the Security Council or national governments. US officials also complain that the court’s judges are the final arbiters of the court’s jurisdiction – so that they can rule on such questions as whether national legal systems are making a genuine effort to prosecute offenders. Supporters of the court point out that, under the Rome Statute, there is an institutional check on the self-initiating actions of the prosecutor: any investigation or prosecution launched by the prosecutor must be approved by a three-person pre-trial chamber. Moreover, there is also an external safeguard: under Article 16 of the Statute, the Security Council can vote to suspend any investigation or prosecution for a renewable one-year period. According to Horst Fischer, the charge that the court will be unchecked represents a misunderstanding of the notion of the rule of law. "Checks and balances does not mean that the court should be politically controllable," he said. "That is the essence of what the rule of law is about, that you have an independent judiciary." Does the Rome Statute undermine the role of the Security Council? According to the State Department’s Marc Grossman, the Rome treaty "dilutes the authority of the UN Security Council", because it may give the court the right to decide when an act of aggression has taken place. Grossman also argued that the Security Council should have the right to check possible excesses of the prosecutor, by giving its approval before investigations initiated by the prosecutor could go ahead. However, as noted above, the Statute’s treatment of aggression explicitly states that the definition should be framed in such a way as to be consistent with the UN Charter and the special role that it gives the Security Council. Moreover, as also noted above, the Security Council retains the right to suspend prosecutions for a renewable period of one year, if the Council determines that such a suspension is necessary for the promotion of international peace and security. The difference between this provision, and the version that the administration would have preferred (i.e. that the Security Council should approve prosecutions in advance) appears to revolve around the contrast between an affirming and a blocking vote of the Security Council. If the Council had to approve all prosecutions, then any investigation could be halted through the veto of one of the Council’s permanent members (such as the United States). Under the current arrangement, it would take a positive vote of the Council to stop an investigation, and the United States would not be able to engineer this on its own. It is not the power of the Security Council that is being limited, it seems, but the power of a single permanent member to act independently as a block on the court’s actions. Professor Crawford characterized the United States’ apparent desire to retain an absolute veto on the prosecutor’s power to investigate American personnel as expressing the view, "International law is for others." Does the Statute infringe US sovereignty? In the words of Marc Grossman, "The court, as constituted today, claims the authority to detain and try American citizens, even though our democratically-elected representatives have agreed not to be bound by the treaty. 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 UN Security Council mandate." Grossman said this aspect of the court threatened the sovereignty of the United States. It is true that the court will (as discussed above) have jurisdiction over United States citizens, even though the US has not signed the treaty, but only if they are charged with crimes committed on the territory of a state that is party to the Statute. As Grossman acknowledged, under these circumstances the Americans involved would already be subject to the jurisdiction of national courts in the countries concerned. Horst Fischer argued that it was illogical to say that, by transferring their right to try such cases to an international body, countries were taking a step that altered American sovereignty in any way. He also pointed out that the United States has promoted and become a party to several treaties that create new international crimes over which national courts have jurisdiction (for instance, money laundering and drug trafficking), even if the accused is a citizen of a country that is not a party to the treaty, and even if the crimes were not committed in the country that proposes to try them. Related Links International
Criminal Court: Letter to UN Secretary General Kofi Annan U.S.
Announces Intent Not to Ratify International Criminal Court Treaty U.S.
Seeks Court Immunity for East Timor Peacekeepers Rome Statute of the International Criminal Court
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