United States and the International Criminal Court

Positions in the United States concerning the International Criminal Court (ICC) vary widely. The current U.S. administration does not intend to join the ICC, which was established in 2002 as a permanent criminal court to investigate and prosecute genocide, crimes against humanity, and war crimes. Although the position of the Bush administration has been made clear, the Rome Statute is subject to intense debate within the United States, and the U.S. position will likely be revisited, at least, to a certain extent, by the next President and Congress, as the presumptive nominees of the two largest political parties for the Presidential election (as of June 2008) have expressed interest in joining, or at least cooperating, to a larger extent, with the ICC.cite web|url=http://globalsolutions.org/politics/elections_and_candidates/questionnaire/2004?id=20|title= Candidate Questionnaire: 2004 | publisher=Global Solutions] cite web|url=http://clinton.senate.gov/~clinton/speeches/2005217C29.html|title=Excerpts from Remarks of Senator Hillary Rodham Clinton German Media Prize Dinner] cite web|url=http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/01/02/MNLUU4LBH.DTL|title=Presidential candidates diverge on U.S. joining war crimes court|author=Bob Egelko|publisher=San Francisco Chronicle|date=2008-01-02] cite web|url=http://www.iccnow.org/documents/CGS_McCainpr_28Jan05.pdf|title=Citizens for Global Solutions Applauds Senator McCain’s Support of the International Criminal Court|publisher=Citizens for Global Solutions|date=2005-01-28]

igning and ratification

Although the then U.S. President, Bill Clinton, signed the Rome Statute of the International Criminal Court in 2000, he stated that although he would not submit it to the Senate for ratification until the U.S. government had a chance to assess the functioning of the court, he nonetheless supported the proposed role of the ICC and its aims: quote|The United States should have the chance to observe and assess the functioning of the court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor, submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied.

Nonetheless, signature is the right action to take at this point. I believe that a properly constituted and structured International Criminal Court would make a profound contribution in deterring egregious human rights abuses worldwide, and that signature increases the chances for productive discussions with other governments to advance these goals in the months and years ahead. [cite web|url=http://news.bbc.co.uk/2/hi/1095580.stm|title=Clinton's statement on war crimes court|publisher=BBC News|date=2000-12-31] After the Rome Statute reached the requisite 60 ratifications in 2002, President George W. Bush "unsigned" the Rome Statute on May 6, 2002. [ [http://www.state.gov/r/pa/prs/ps/2002/9968.htm International Criminal Court: Letter to UN Secretary General Kofi Annan] ]

A treaty that is not ratified is not legally binding. [ [http://www.unicef.org/crc/files/Definitions.pdf Definition of key terms used in the UN Treaty Collection ] ]

Particular U.S. Ratification Contingencies

A treaty is only patriated, that is, made part of, the municipal law of a nation, when the treaty has been ratified; treaties are generally self-executing, once ratification is made, at least from the point of view of other nations--as the ratifying state fully binds itself by the treaty in the international sphere at the point that the treaty is ratified, as a matter of the public international law, and in terms of national honor and good faith. However, entrenched provisions of municipal law--such as the constitution of a state party or other fundamental laws, may cause the treaty to not be fully executable in municipal law if it conflicts with those entrenched provisions. For the purposes of the United States, the Constitution of the United States may have to be modified so as to bring a treaty into force internally, when a treaty conflicts with said Constitution. The question of whether the Rome Statute would require amendments to the Constitution of the United States to be brought into full force and effect, is, however, a matter of debate within the United States. (A similar situation happened when the Republic of Ireland ratified the Rome Statute: the Irish government's response was to hold a national referendum on the issue in 2001 [cite web|url=http://www.refcom.ie/RefCom/RefComWebSite.nsf/0/56238BEB852B53D480256E970049F33C|title=Referendum Commission explanatory leaflet proposed changes to the Constitution in relation to ratification of the Rome Statute of the International Criminal Court|publisher=Referendum Commission of the Republic of Ireland] , after which the government amended their Constitution to bring it into effect [cite web|url=http://www.irlgov.ie/committees-02/c-foreignaffairs/020327/Page1.htm|title=Ratification of the Rome Statute of the International Criminal Court|publisher=Select Committee of Foreign Affairs, Parliament of Ireland] .)

Arguing for the potential necessity of such an amendment to the U.S. Constitution does not in itself constitute opposition to the ICC; such an amendment can be passed through specified constitutional procedures, and ratified by the several states of the Republic. Indeed, it can be argued that the ICC has due process safeguards that are broadly comparable to those of the U.S. Constitution (if not technically compatible with them). It can also be argued that such an amendment would be keeping with--and not repugnant to the letter or the spirit of that same Constitution, whose Framers explicitly acknowledged "offenses against the law of nations" [Article I, Section 8, Clause 10 of the United States Constitution] (or what we now know as the public international law) as being crimes subject to punishment under the domestic law of the United States, and with the historical role of the United States--a nation whose own Declaration of Independence notes a "decent respect to the opinions of Mankind"--as an advocate for much of the present system of international law, ranging from the issuance of the Lieber Code, to the key role the U.S. played in the Nuremberg Tribunal, to the chartering of the United Nations, to the ICTY, and the ICTR.

Bush administration's official and unofficial objections to the court

The position of the Bush Administration is in opposition to ratifying the Rome Statute and joining the ICC. However, Bush Administration officials have toned down their previously strident opposition to the ICC, to a certain degree (especially with the departure of John Bolton from the Bush Administration). The United States took no action to oppose using the ICC to prosecute atrocities in Darfur, as evidenced by the U.S. abstention on United Nations Security Council Resolution 1593 referring the Darfur situation to the ICC for prosecution. In a statement, the State Department's John Bellinger stated: “At least as a matter of policy, not only do we not oppose the ICC’s investigation and prosecutions in Sudan but we support its investigation and prosecution of those atrocities.” [cite web|title=Chronology of Bush Administration Statements and Actions Regarding the ICC|url=http://www.amicc.org/docs/US%20Chronology.pdf]

In addition, the Congress of the United States, in a resolution, acknowledged the ICC's authority to prosecute war crimes in Darfur. [cite web | url=http://www.amicc.org/docs/HRes726FinalOctober292007.pdf | title=H.R. 726, 110th Congress, October 2007]

The U.S. State Department has published a list of US objections to the Court [cite web | url=http://www.state.gov/t/pm/rls/fs/23428.htm|title=Frequently Asked Questions About the U.S. Government's Policy Regarding the International Criminal Court] .

Claimed infringement of national sovereignty

The State Department remarks that under the Rome Statute, the ICC claims the authority to second-guess the actions taken and the results reached by sovereign states with respect to the investigation and prosecution of crimescite web|url=http://www.state.gov/www/policy_remarks/1998/980723_scheffer_icc.html|title=Testimony Before the Senate Foreign Relations Committee, Washington, DC|author=David J. Scheffer, Ambassador-at-Large for War Crimes Issues and Head of the U.S. Delegation to the UN Diplomatic Conference on the Establishment of a Permanent International Criminal Court, U.S. Department of State|date=1998-07-23] .

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

Claimed vague, broad, and unaccountable powers

Bolton also stated:

In 2000, the conservative Republican Senator Jesse Helms, Chairman of the U.S. Senate Committee on Foreign Relations stated: "There is only one source of legitimacy of the American government's policies - and that is the consent of the American people." [Address by Senator Jesse Helms, Chairman, U.S. Senate Committee on Foreign Relations before The United Nations Security Council. January 20, 2000]

Claimed possibility of politically motivated prosecutions

Bolton further claimed:

Claimed effects on peacekeeping and humanitarian missions

In 1998 David Scheffer, Ambassador-at-Large for War Crimes Issues and Head of the U.S. Delegation to the UN Diplomatic Conference on the Establishment of a Permanent International Criminal Court, argued before the U.S. Senate Committee on Foreign Relations that while:

Claimed unreasonable powers for prosecutors

Scheffer further claimed:

Opposition to inclusion of terrorism and drug crimes in the jurisdiction

Scheffer further claimed:

Claimed alternate mechanisms

A "Frequently Asked Questions" page on the US State Department website claims that: quote|The U.S. continues to be a forceful advocate for accountability for perpetrators of war crimes, genocide and crimes against humanity. The U.S. is confident that there are more suitable alternatives to the ICC. Alternate mechanisms include:
* States to pursue credible justice at home rather than abdicating responsibility to an international body.
* Where domestic legal institutions are lacking, but domestic will is present, the international community must be prepared to assist in creating the capacity to address the violations. This includes political, financial, legal, and logistical support.
* Where domestic will is non-existent, the international community can intervene through the UN Security Council, consistent with the UN charter.
* Ad hoc international mechanisms may be created under the auspices of the UN Security Council, as was done to establish the International Tribunals for the former Yugoslavia and Rwanda, or hybrid courts -- consisting of international participants and the affected state participants -- can be authorized, as in the case of Sierra Leone. [cite web|url=http://www.state.gov/t/pm/rls/fs/23426.htm|title=Frequently Asked Questions About the U.S. Government's Policy Regarding the International Criminal Court (ICC)|publisher=U.S. State Department]

Opposition from political groups outside of government

Claimed lack of due process

The Republican activist group "RenewAmerica", run by supporters of U.S. Presidential candidate Alan Keyes, has accused the court of not protecting defendants' human rights, particularly: [ cite web|url=http://www.renewamerica.us/columns/voigt/060909|title=The International Criminal Court's antagonism toward our Constitution|publisher="Renew America"|date=2006-09-09]
* allegations of absence of jury trials
* allegations of retrials allowed for errors of fact
* allegations that hearsay evidence is allowed
* allegations of no right to a speedy trial, a public trial or reasonable bail

Supporters of the ICC say that the ICC Statute contains the due process rights found in the US Constitution and now well recognized in international standards of due process in Article 67 Rome Statute, with the exception of the American right to jury trial, which US negotiators agreed with since it is not practical to have an international jury of one’s peers. Former U.S. State Department Legal Advisor Monroe Leigh has said: quote|The list of due process rights guaranteed by the Rome Statute are, if anything, more detailed and comprehensive than those in the American Bill of Rights. . . . I can think of no right guaranteed to military personnel by the U.S. Constitution that is not also guaranteed in the Treaty of Rome [cite web|url=http://www.hrw.org/campaigns/icc/facts.htm|title=Myths and Facts About the International Criminal Court|publisher=Human Rights Watch] .

Claimed incompatibility with the U.S. Constitution

The U.S. conservative group the Heritage Foundation claims 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." [cite web|url=http://www.heritage.org/Research/InternationalOrganizations/BG1249.cfm|title=The International Criminal Court vs. the American People] This statement refers to several issues. The first is the trial of American citizens by the ICC and implies that the Court does not have the power to try Americans for crimes committed on U.S. territory. The second refers to due-process issues.

RenewAmerica claim that ratification by the United States of the Rome Statute would require a constitutional amendment, as was the case in other countries such as Ireland. According to RenewAmerica, "Because the ICC is inconsistent with fundamental constitutional protections, the federal government is without authority to ratify the treaty absent a constitutional amendment." [http://www.renewamerica.us/columns/voigt/060909]

As pointed out in the Congressional Research Service's Report for Congress, the ICC is not "an instrumentality of the U.S." [Nicholas S. Curabba, "The Rome Statute of the International Criminal Court: Selected Legal and Constitutional Issues," CRS Report for Congress, February 22, 1999.] .

Efforts to shield Americans from ICC jurisdiction

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. Limits on military assistance have been repealed, as outlined below.

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,cite web|url=http://www.hrw.org/press/2002/08/aspa080302.htm|title=U.S.: 'Hague Invasion Act' Becomes Law|publisher=Human Rights Watch|date=2002-08-03|accessdate=2007-12-23] 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.

On October 17, 2006 President Bush signed into law an amendment to ASPA as part of the John Warner National Defense Authorization Act for Fiscal Year 2007 removing International Military Education and Training (IMET) restrictions for all nations. Previously, on October 2, 2006 President Bush had issued a waiver of these same IMET prohibitions with respect to 21 nations. Foreign Military Funds (FMF) restricted under ASPA were not affected by the 2006 waivers or the ASPA amendment. On November 22, 2006 President Bush issued ASPA waivers with respect to the Comoros and Saint Kitts and Nevis, followed by a similar waiver with respect to Montenegro on August 31, 2007.

On January 28, 2008 President Bush signed into law an amendment to the American Servicemembers' Protection Act (ASPA) to eliminate restrictions on Foreign Military Financing (FMF) to nations unwilling to enter into Bilateral Immunity Agreements (BIAs) shielding US nationals from the jurisdiction of the ICC. Section 1212 of HR 4986 effectively guts from ASPA all of the provisions which threaten nations with the loss of military assistance of any kind for refusing a BIA. In October 2006, Congress lifted International Military and Education Training (IMET) restrictions provided for in ASPA. ASPA will still place restrictions on US cooperation to the ICC, subject to the Dodd Amendment which essentially reverses the effect of ASPA by authorizing the US government to participate in a wide-range of international justice efforts, as well as US participation in peacekeeping missions, and authorize military force to free US nationals from the custody of the ICC.

Criticism of ASPA

The effects of ASPA have been severely criticized by the Defense Department. While speaking before the United States Army Committee on House Armed Services regarding the Fiscal 2006 Budget, US Army General Bantz J. Craddock, Commander of the US Southern Command, made strong statements [Statement of General Bantz J. Craddock Commander, United States Army Committee On House Armed Services, 9 March 2005 http://www.amicc.org/docs/Craddock%20Statements%203-05.pdf] on the impact of ASPA on military operations and cooperation in Latin America. He explains that ASPA is creating a void of contact that is being filled by other extra-hemispheric actors, including China. Vice Admiral Lowell Jacoby made similar statements [Senator John Cornyn questioning Vice Admiral Lowell Jacoby http://www.amicc.org/docs/Jacoby%20Statements%203-05.pdf] during a hearing of the Senate Armed Services Committee. In addition, the Chairman of the Joint Chiefs of Staff, Air Force General Richard Myers [Defense News: New Rules May Hinder U.S. Training For Foreign Troops http://www.amicc.org/docs/Defense%20News%205-9-05.pdf] testified at the Senate Appropriations Defense Subcommittee on April 27, 2005 that ASPA has reduced foreign troop training opportunities and hurt the government's ability to fight terrorism abroad as an "unintended consequence."

The Nethercutt Amendment

Former Rep. George Nethercutt's so-called "Nethercutt Amendment" [Limitation on economic support fund assistance for certain foreign governments that are parties to the International Criminal Court http://www.amicc.org/docs/Nethercutt%202006.pdf] to the Foreign Operations, Export Financing, and Related Programs Appropriations Act suspends Economic Support Fund assistance to ICC States Parties who refuse bilateral immunity agreements (BIAs) with the US or have not been provided a Presidential waiver. The funds affected support initiatives including peacekeeping, anti-terrorism measures, democracy-building and drug interdiction. The language of the amendment allows presidential exemptions for NATO, MNNA (major non-NATO allies), and Millennium Fund countries.

The appropriations bill containing the controversial amendment was adopted two years in a row, for FY 2005 and FY 2006. Congress did not pass a foreign operations appropriations bill or any other bill containing the Nethercutt provision for FY 2007. On December 17, 2007 the US Congress approved HR 2764 [Consolidated Appropriations Act 2008 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h2764eah.txt.pdf] , a comprehensive Consolidated Appropriations Act which reinstates the so-called Nethercutt provision cutting off Economic Support Funds (ESF) to nations unwilling to enter into Bilateral Immunity Agreements (BIAs) or so-called Article 98 Agreements shielding US nationals from the jurisdiction of the ICC.

President Bush signed [President Bush Signs H.R. 2764 into Law http://www.amicc.org/docs/White%20House%20Statement%2026%20December%202007.pdf] the bill into law on December 26 and it became Public Law 110-161. As a result, dozens of nations, many of which are allies of the US, may lose millions of dollars in economic assistance for FY 2008 and further alienate the US in the world community.The Nethercutt Amendment differs from former anti-ICC provisions the American Servicemembers' Protection Act (ASPA) by imposing economic aid cuts instead of military aid cuts. Cutting economic assistance is far a more damaging act because in many countries, it intended to bolster local economies instead of national defense. In addition, existing Status of Forces Agreements (SOFAs) and other bilateral agreements already provide full US jurisdiction over US personnel and officials serving abroad.

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 [cite web|url=http://www.ejil.org/journal/Vol14/No1/art1-01.html|title=The Ambiguities of Security Council Resolution 1422 (2002)|publisher=The European Journal of International Law] . The then Secretary General of the United Nations, Kofi Annan, said at the time that the US proposal "flies in the face of treaty law", risked undermining the Rome Treaty setting up the court, and warned that it could end up discrediting the Security Council [cite web|url=http://news.bbc.co.uk/1/hi/world/americas/2091832.stm|title=Annan condemns US Bosnia veto|publisher=BBC News|date=2002-07-03] .

Initially, the United States had sought to prevent personnel on UN missions being tried by any country except that of their nationality [cite web|url=http://links.jstor.org/sici?sici=0002-9300(200207)96%3A3%3C725%3AETOIFI%3E2.0.CO%3B2-W|title=Efforts to Obtain Immunity from ICC for U.S. Peacekeepers|publisher=The American Journal of International Law, Vol. 96, No. 3 (Jul., 2002), pp. 725-729] . 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 exercise its jurisdiction over a certain matter for up to one year [cite web|url=http://www.hrw.org/campaigns/icc/us.htm|title=The United States and the International Criminal Court|publisher=Human Rights Watch] . 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 yearcite web|url=http://www.un.org/News/Press/docs/2003/sc7789.doc.htm|title=SECURITY COUNCIL REQUESTS ONE-YEAR EXTENSION OF UN PEACEKEEPER IMMUNITY FROM INTERNATIONAL CRIMINAL COURT|publisher=Press Office of the United Nations Security Council] . (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 lawwhich|date=June 2008, questions regarding the interpretation of the UN Charter may only be interpreted by the UN Security Council.Fact|date=June 2008 The UN Charter requires that all UN members abide by the decisionswhich|date=June 2008 of the Security Council, so only ICC members who are not also UN members are free to dissent.Fact|date=June 2008

Memberswhich|date=June 2008 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 United Nations Security Council Resolution 1422 [cite web|url=http://www.converge.org.nz/pma/cra0679.htm|title=ICC: UN Security Council Resolves Immunity Debate|author=Jim Wurst|publisher=UN Wire|date=2002-07-15] .

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.Fact|date=June 2008 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.Fact|date=June 2008

A resolution to exempt citizens of the United States from jurisdiction of the ICC was renewed in 2003 by United Nations Security Council Resolution 1487. However, the Security Council refused to renew the exemption again in 2004 after pictures emerged of US troops torturing and abusing Iraqi prisoners in Abu Ghraib, and the US withdrew its demand. [cite web|url=http://news.bbc.co.uk/2/hi/americas/3834237.stm|title= Q&A: International Criminal Court|publisher=BBC News|date=2006-03-20|accessdate=2008-03-03] .

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. Article 98 agreements do not offer Americans impunityfact|date=June 2008, nor do they protect Americans from prosecution by any nation where they may commit any offensefact|date=June 2008.

Others argue that due to the patriation of the ICC into the territory of every state-party, the ICC has effectively become an domestic court of the sovereign state in question, and, as an internal affair of the state-party, exemption of Americans from the jurisdiction of the ICC would render U.S. citizens "above the law"--specifically the domestic law--of the state-party, giving them such rights as Europeans were once given under the "unequal treaties" with China.

The United States has used bilateral diplomacy (or various forms of coercion) to persuadefact|date=June 2008 certainhow many|date = June 2008 nations to sign these agreements. US law requires 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. In 2002, the United States passed a law cutting off military aid for 35 countries (among them nine European countries), under the terms of an amendment to the American Service-Members' Protection Act. 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 [cite web|url=http://www.thefreelibrary.com/Fiscal+year+2004+security+assistance+legislation+and+funding...-a0118742542|title=Fiscal year 2004 security assistance legislation and funding allocations|author=Kenneth W. Martin|publisher=DISAM Journal] . Until 2008 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). However, these decisions were repealed in October 2006 and January 2008. In March 2006, Condoleezza Rice admitted that the United States' position on Article 98 agreements was "sort of the same as shooting ourselves in the foot". [ [http://www.nytimes.com/2006/07/23/world/africa/23terror.html?ei=5090&en=35a292390b54141e&ex=1311307200&partner=rssuserland&emc=rss&pagewanted=print U.S. Cuts in Africa Aid Said to Hurt War on Terror - New York Times ] ]

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 [cite web|url=http://ec.europa.eu/external_relations/human_rights/gac.htm#hr300902|title= The EU's Human rights & Democratisation Policy: 30 September 2002: International criminal court (ICC) - Council Conclusions|publisher=General Affairs and External Relations Council of the European Commission] .

On May 2, 2005, Angola became the 100th country to sign a bilateral agreement with the United States under Article 98. [cite web|url=http://www.state.gov/r/pa/prs/ps/2005/45573.htm|title=U.S. Signs 100th Article 98 Agreement|publisher=U.S. State Department] Since then, there have been no additional signings of these agreements [cite web|url=http://www.ll.georgetown.edu/intl/guides/article_98.cfm|title=International Criminal Court - Article 98 Agreements Research Guide|date=2007-05|publisher=Georgetown University Law Library]

The United States has cut certain forms of military and economic funding for several countries that have not signed bilateral Article 98 agreements. Countries who have so declined aid include Barbados, Bolivia, Brazil, Costa Rica, Ecuador, Mexico, Paraguay, Peru, Saint Vincent and the Grenadines, Trinidad and Tobago, Uruguay and Venezuela [cite web|url=http://ciponline.org/facts/art98.htm|title="Article 98" Agreements and the International Criminal Court|date=2007-04-06|publisher= Latin America Working Group Education Fund] . Mali, Namibia, South Africa, Tanzania and Kenya publicly rejected signing Article 98 agreements in 2003, and subsequently saw their Overseas Development Aid funding cut by more than 89 million dollars [cite web|url=http://www.un-ngls.org/politics%20of%20poverty.pdf|title=The politics of poverty: Aid in the new Cold War|publisher=United Nations Non-Governmental Liaison Service] .

American supporters and opponents of the ICC

In a 2005 poll of 1,182 Americans by the Chicago Council on Foreign Relations and the Program on International Policy Attitudes at the University of Maryland, 69% favored US participation in the Court. However, knowledge of the Court was limited with only half of the Republicans knowing that the Court was opposed by the US. Levels of support among Republicans were lower after the interviewees learned that the Court was opposed by the Bush administration. [cite web|url=http://www.worldpublicopinion.org/pipa/articles/btjusticehuman_rightsra/109.php?lb=bthr&pnt=109&nid=&id=|title=Americans on the Darfur crisis and ICC] [cite web|url=http://www.thechicagocouncil.org/UserFiles/File/POS_Topline%20Reports/POS%202005_March/POS%20March%202005%20Press%20Release_Darfur.pdf|title=Large Bipartisan Majority of Americans Favors Referring Darfur War Crime Cases to International Criminal Court]

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. [ [http://www.thetandd.com/articles/2006/12/28/ap/headlines/d8ma27gg0.txt Edwards Seeks to Make 2nd Time a Charm] , "The Times and Democrat", 2006-12-28.] Edwards said that: quote|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. [cite web|url=http://www.washingtonpost.com/wp-dyn/content/article/2006/12/28/AR2006122800457_pf.html|title= John Edwards Announces Bid for 2008 Democratic Presidential Nomination|publisher=Washington Post|date=2006-12-28]

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

Dennis Kucinich, Democratic member of the United States House of Representatives and a presidential candidate in the 2004 and 2008 elections, said on April 26, 2007: quote|As president of the United States, I intend to take America in a different direction, rejecting war as an instrument of policy, reconnecting with the nations of the world, so that we can address the real issues that affect security all over the globe and affect our security at home: getting rid of all nuclear weapons, the United States participating in the chemical weapons convention, the biological weapons convention, the small arms treaty, the landmine treaty, joining the International Criminal Court, signing the Kyoto climate change treaty. [cite web|url=http://www.msnbc.msn.com/id/18352397/page/16/|title=South Carolina Democratic debate transcript|publisher=MSNBC.com]

Senator Hillary Clinton, a Democratic presidential candidate in the 2008 elections, said on February 13, 2005: quote|Fourth, Europe must acknowledge that the United States has global responsibilities that create unique circumstances. For example, we are more vulnerable to the misuse of an international criminal court because of the international role we play and the resentments that flow from that ubiquitous presence around the world. That does not mean, in my opinion, that the United States should walk out of the International Criminal Court. But it does mean we have legitimate concerns that the world should address, and it is fair to ask that there be sensitivity to those concerns that are really focused on the fact that the United States is active on every continent in the world. As we look to the future, there are so many opportunities for us to renew our relationship and we need to because we face so many challenges.

Clinton later added: quote|Consistent with my overall policy of reintroducing the United States to the world, I will as President evaluate the record of Court, and reassess how we can best engage with this institution and hold the worst abusers of human rights to account. [cite web|url=http://globalsolutions.org/08orbust/quotes/2007/11/27/quote615|date=2007-11-12|title= 08 or Bust!, Your Foreign Policy Road Map |publisher= Citizens for Global Solutions]

Senator John McCain, a Republican presidential candidate in the 2008 elections, said on January 28, 2005: quote|I want us in the ICC, but I’m not satisfied that there are enough safeguards.

McCain later added: quote|We should publicly remind Khartoum that the International Criminal Court has jurisdiction to prosecute war crimes in Darfur and that Sudanese leaders will be held personally accountable for attacks on civilians [cite web|url=http://www.washingtonpost.com/wp-dyn/content/article/2006/09/08/AR2006090801664.html|author=John McCain and Bob Dole|title=Rescue Darfur Now|publisher=The Washington Post]

Senator Barack Obama, the Democratic presidential candidate in the 2008 elections, was asked the following question on a candidate questionnaire during the 2004 Senate race: "Should the United States ratify the ‘Rome Statute of the International Criminal Court’? If not, what concerns do you have that need to be resolved before you would support joining the court? Prior to ratification, what should the United States relationship with the Court be, particularly in regards to sharing intelligence, prosecuting war criminals, and referring cases to the UN Security Council?"

Senator Obama answered: quote|Yes [.] The United States should cooperate with ICC investigations in a way that reflects American sovereignty and promotes our national security interests.

Representative Ron Paul, a Republican presidential candidate in the 2008 elections, said on April 8, 2002: quote|The United Nations and the ICC are inherently incompatible with national sovereignty. America must either remain a constitutional republic or submit to international law, because it cannot do both. The Constitution is the supreme law of the land, and the conflict between adhering to the rule of law and obeying globalist planners is now staring us in the face. At present we fortunately have a President who opposes the ICC, but ultimately it is up to Congress – and concerned citizens – to insure that no American ever stands trial before an international court [cite web|url=http://www.house.gov/paul/tst/tst2002/tst040802.htm|title=A Court of No Authority|author=Senator Ron Paul] .

ee also

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

References

Further reading

* Paul D. Marquardt, “Law Without Borders: The Constitutionality of an International Criminal Court,” 33 Colum. J. Trans. L. 74, 76 (1995).
* Roy S Lee, ed. (1999). "The International Criminal Court: The Making of the Rome Statute". The Hague: Kluwer Law International. ISBN 90-411-1212-X
* Madeline Morris, ed. (2001). " [http://www.law.duke.edu/journals/journaltoc?journal=lcp&toc=lcptoc64winter2001.htm The United States and the International Criminal Court] ", "Law and Contemporary Problems", Winter 2001, vol. 64, no. 1. Accessed 2 January 2008.
* Michael P. Scharf (1999). "The Politics behind U.S. Opposition to the International Criminal Court", "Brown J. World Aff.", Winter/Spring 1999, vol. VI, p. 97.
* Jason Ralph (2007)." Defending the Society of States. Why America Opposes the International Criminal Court and its Vision of World Society", Oxford University Press. ISBN 10: 019921431X

External links

* [http://www.globalpolitician.com/articles.asp?ID=84 Objections to the ICC under the U.S. Constitution and International Law]
* [http://www.globalpolicy.org/intljustice/general/2001/07kiss.htm The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny] by Henry Kissinger
** [http://www.derechos.org/nizkor/icc/ferencz4.html A reply to Henry Kissinger's paper] by Benjamin B. Ferencz, a former Prosecutor at the Subsequent Nuremberg Trials
* [http://www.derechos.org/nizkor/icc/ciccart98.html Why Bilateral Agreements with the U.S. are not valid under Art.98 of ICC Statute] by Derechos.org
* [http://www.state.gov/t/us/rm/25818.htm 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
* [http://www.fas.org/sgp/crs/misc/RL31495.pdf U.S. Policy Regarding the International Criminal Court] Congressional Research Service Report for Congress, Updated April 26, 2006