US Opposition to the International Criminal Court
By John Burroughs
June 2003
Reproduced with permission from Richard Falk and David Krieger, eds.,
International Law and the Quest for Security
(Santa Barbara: Nuclear Age Peace Foundation, 2003)
President Clinton signed the Rome Statute of the International Criminal Court (ICC) at the end of his term, on December 31, 2000, hours before the period for signature expired. But he also stated, “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.”
Clinton’s schizophrenic act reflected the US approach to the treaty’s negotiation. On the one hand, the State Department under Secretary Madeleine Albright strongly supported creation of the ICC. At the negotiations in Rome in the summer of 1998, the State Department delegation led by David Scheffer, Ambassador-at-large for War Crimes Issues, made numerous and important positive contributions to the Statute’s due process provisions and definitions of crimes. However, at the same time there was strong resistance from the Department of Defense to the possibility of US soldiers and policymakers being prosecuted by the Court under any circumstance. In the end, the United States was among seven countries to vote against adoption of the Statute, along with China, Libya, Iraq, Israel, Qatar and Yemen.
Under the Rome Statute as adopted,[1] individuals may be prosecuted for genocide, crimes against humanity, and war crimes, as well as the crime of aggression, if and when a definition of that crime is adopted, when: 1) the alleged crime occurred on the territory of a state party; 2) the alleged crime was committed by a national of a state party; or 3) the matter is referred to the Court by the UN Security Council. Article 5 provides that the Court’s jurisdiction is “limited to the most serious crimes of concern to the international community as a whole.” Article 8 reinforces this limitation, providing for “jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” Following ratification of the Statute by 60 states, in July 2002 it entered into force. Judges and a prosecutor were selected in the first half of 2003, and the Court is expected to be fully operational by the end of 2003.
Analysis of US Objections
The grounds for US criticism of the Court shifted over the years, but they were put sharply into focus on May 6, 2002 when the Bush administration notified the United Nations that the United States does not intend to ratify the Statute. By taking this unprecedented step, the administration sought to terminate the US obligation under customary international law not to engage in acts contrary to the Statute’s “object and purpose.” On the same date, Under Secretary of State for Political Affairs Marc Grossman outlined five reasons for US opposition, discussed below.[2]
1) The Rome Statute bestows unchecked power on the Court, especially on a self-initiating prosecutor, usurping the role of the Security Council.
The original plan for the ICC had been of a permanent institution handling matters referred by the Security Council and, subject to significant restrictions on the Court's jurisdiction, by states. The eventual acceptance of a relatively broad scope for the Court's jurisdiction diluted the importance of the Security Council in the ICC structure. Further, the inclusion, as the negotiations matured, of a power of the prosecutor to initiate cases on his or her own power gave added weight to the ICC as an institution independent of both the Security Council and states.
But it is also the case that the Statute contains numerous checks on the Court’s prosecutor and judges. Among them: Under the principle of complementarity, the Court has no jurisdiction when an alleged crime has been investigated or prosecuted in good faith within a national legal system. The prosecutor’s decision to investigate a case is subject to approval of a Pre-Trial Chamber of the Court. The prosecutor and judges are ultimately answerable to the Assembly of States Parties.
The Statute also gives a significant role to the Security Council. In addition to its power to refer situations to the Court, under Article 16 the Security Council has the power to postpone investigations or prosecution for 12-month periods based on its authority under the UN Charter to maintain international peace and security. The decision to go no further in giving the Security Council control over the Court's docket reflects an unwillingness to concentrate undue power in a highly unrepresentative body featuring the World War II victors as its five permanent, veto-wielding members.
2) The Court dilutes the authority of Security Council, especially with regard to the crime of aggression yet to be defined.
Given its doctrine of preemptive war, this is certainly a theoretical concern for the Bush administration. There was virtually unanimous opposition among UN General Assembly countries to the administration’s execution of that doctrine in the war on Iraq. Most states characterized the war as a violation of the UN Charter.
Practically speaking, though, the crime of aggression cannot be prosecuted unless and until the Statute is amended to set forth its elements. Moreover, Article 5 provides that the amendment “shall be consistent with the relevant provisions of the Charter of the United Nations.” In other words, the ICC must defer to the primary role of the Security Council in maintaining international peace and security, including its determination under Article 39 of the Charter as to whether an “act of aggression” has occurred. In addition, procedures to amend the Statute are onerous, requiring two-thirds of the treaty’s state parties to vote for an amendment to be adopted, after which seven-eighths must ratify the amendment before it comes into force. Further, a state party that does not ratify the amendment is not bound by it.
3) The Court threatens the sovereignty of the United States because it could try US nationals though the United States has not agreed to be bound by the Rome Statute. “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.”
This argument runs contrary to basic principles of international law. States can and do try anyone for crimes committed within their territory; why can they not delegate that right to an international court? There is no authority to say they cannot do so. Indeed, under the Lotus principle, traditionally a foundational element of international law, states may do as they wish unless they contravene an express prohibition.
4) The ICC undermines the principled use of force: “[T]he ICC could have a chilling effect on the willingness of states to project power in defense of their moral and security interests. This power must sometimes be projected. The principled projection of force by the world’s democracies is critical to protecting human rights – to stopping genocide or changing regimes like the Taliban, which abuse their people and promote terror against the world.”
Other states do not see the ICC as an obstacle to participating in what they regard as legitimate uses of force or in peacekeeping. Notably, the United Kingdom, which joined with the United States in military operations in Yugoslavia, Afghanistan, and Iraq, is a strong supporter of the ICC. A group of 60 or so “like-minded” states, including Canada, European and African countries, and many Latin American and Asian countries, were the engine for creation of the ICC. Along with civil society organizations, they envisioned the Court primarily as a permanent and global institutional capability to address mass atrocities – crimes against humanity, genocide, and large-scale war crimes - of the kind that occurred repeatedly in the 20th century, during World War II and then in Cambodia, Bosnia, Rwanda, Sierra Leone, etc. They did not see its central purpose as the fine-grained regulation of the conduct of warfare. On the other hand, they were not willing to undermine its legitimacy by restricting its potential application to all states.
It is true that the ICC could be a factor, not necessarily a decisive one, pushing the United States and other countries towards multilaterally approved uses of force. That would build legitimacy which in turn could make prosecutions less likely. Such an effect of the ICC would be welcome.
That the Statute represents an authoritative codification of existing legal constraints on the conduct of warfare could also conceivably affect US military operations. For example, it could encourage more use of ground troops and less bombing. Such a change would entail greater risk to US personnel but lower the risk to civilian populations.[3] Again, this would be a positive outcome.
The Bush administration’s determination to forestall any ICC effect on US military actions is demonstrated by its outrageous maneuver in the Security Council in July 2002. By threatening vetoes of peacekeeping operations, the United States forced adoption of resolution 1422 shielding personnel of non-ICC party states engaged in “UN authorized or established operations” from prosecution for a year. The resolution was widely characterized as applying to peacekeeping, for instance the mission in Bosnia, but by its terms it would also apply to UN approved military actions like the first Gulf War.
The ostensible basis for the resolution was Article 16 of the Statute: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the UN Charter, has requested the Court to that effect ….” However, in the context of the Statute, notably Article 13, Article 16 concerns specific investigations or prosecutions, not an entire category. The rationale for Article 16 was that the Security Council could request deferral of an investigation or prosecution if that would facilitate its resolution of a conflict or other threat to international peace and security. Resolution 1422 thus ignores the intent of Article 16, and was widely denounced by states and civil society groups for that and other reasons.
5) The ICC could complicate US military cooperation with friends and allies who will have a treaty obligation to hand over US nationals to the Court.
The United States is dealing with this “problem” by forging bilateral agreements in which individual states agree not to turn US nationals over to the Court. The United States claims that such agreements are allowed by Article 98 of the Statute, which provides in relevant part: “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 ….”
According to the American NGO Coalition for the ICC, the intent of Article 98 was to resolve the contradiction which could be faced by states which have a Status of Forces Agreement with the United States requiring soldiers or other official US personnel accused of certain crimes to be turned over to the United States.[4] However, the bilateral agreements proposed by the United States bar the surrender of any person, not only official personnel, to the ICC. More fundamentally, the agreements - which the United States is now seeking all over the world, not only with longtime military allies - are contrary to the intent of the Statute as a whole that persons accused of committing crimes in territories of states parties may be prosecuted by the ICC.[5]
The Broader Context
As noted above, the primary impetus for the establishment of the ICC was to institutionalize the capability to prosecute and deter atrocities of the kind that occurred in Bosnia, Rwanda and Cambodia. Along the way, though, resistance grew to mirroring in the ICC the existing structure of world power/governance centered on the Security Council. This development was somewhat of a surprise, and the Security Council still plays a significant role in ICC procedures, just not the predominant role originally envisaged by the United States and other countries.
The impulse to challenge the existing framework of global politics was also manifest in the effort to make employment of nuclear weapons a crime.[6] This initiative was pushed largely by the Non-Aligned Movement, not by the like-minded states shepherding the drafting of the Statute. Eventually only the 1925 Geneva Protocol prohibition of employment of poisonous gases and analogous materials was included, along with prohibitions on use of poison and poisoned weapons and expanding bullets.[7] Fortunately, the Geneva Protocol prohibition is understood to apply to all chemical weapons, and arguably also applies to biological weapons. Use of nuclear weapons and other weapons of mass or indiscriminate destruction, e.g. landmines, not expressly proscribed by the Statute remains subject to its general provisions, notably those criminalizing attacks on civilians and attacks on military objectives disproportionately causing civilian loss of life and injury.[8] The Statute also provides that inherently indiscriminate weapons which are the subject of a comprehensive prohibition may be added, by means of an amendment to the Statute, to the list of weapons whose use is expressly prohibited.[9] That points the way towards inclusion of nuclear weapons, landmines, and other weapons of mass or indiscriminate destruction at a later date.
The deemphasis of the role of the Security Council and the struggle over nuclear weapons manifested the interest of many countries, in varying degrees of intensity, in creating a Court that in part would serve as an institutional check on the world’s most powerful countries, especially the United States. Another indication of that interest was the drive to include aggression among the crimes over which the ICC will eventually have jurisdiction. The dynamic is also reflected in the pattern of support for the ICC. While European and other middle power countries and many developing countries have strongly backed the Court, the world’s most populous countries, China, India, the United States, Indonesia, and Russia, have not even become parties to the Statute (Russia has signed it).
Thus opposition to the ICC is not limited to the United States. Other countries similarly see potential for containment of their “projection of power.” Some facing the possibility of internal strife and instability are also concerned about interference in their domestic affairs. However, US opposition stands out, because it reflects an anti-multilateralist ideology dominant in no other major country. Increasing support for the ideal of an international rule of law system is found across the world, especially but not only in Europe, and the United States is allied with countries in Europe and Asia which are deeply committed to that ideal. Yet in the United States a school of thought has risen to the fore that is strongly and self-consciously opposed to global legal regimes. Multilateral agreements rejected in the last few years by the United States in addition to the Rome Statute include the Comprehensive Test Ban Treaty, the Kyoto Protocol, the Landmines Treaty, the verification protocol for the Biological Weapons Convention, and disarmament commitments under the Nuclear Nonproliferation Treaty.[10]
What is it about such regimes that key elements within the US government find objectionable? Most of the overt objections to the ICC are discussed above.,[11] They and others are either without merit or are not decisive. Regarding regimes controlling weapons of mass destruction, the stock answers come fast and furious: the regimes are violated by “rogue” states and compliance cannot be verified or enforced. As in the case of the ICC, the arguments do not withstand scrutiny, nor are they really expected to, because they are stand-ins for the real point applicable to all such regimes: that the United States should not sacrifice its sovereignty and its position as the world’s most powerful country by subjecting itself to regulation by global laws and institutions.
In a telling demonstration of its contempt for treaties, the Bush administration appointed John Bolton as the Under Secretary of State for Arms Control and International Security. Bolton believes that international law is not really law because it lacks an enforcement framework like that of national legal systems, with their courts and police. According to Bolton, “[T]here is no reason to consider treaties as ‘legally’ binding internationally, and certainly not as ‘law’ themselves.”[12]
Bolton's corrosively skeptical view was not accepted in the early days of the United States, when it relied upon international law as a shield against other, more powerful states. One of the leading framers, John Jay, criticized proponents of the position that treaties should not, as the Constitution provides, be part of the “supreme law of the land.” According to Jay: “These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it.”[13] Nor was Bolton’s position on international law the prevailing view in the aftermath of World War II, when the United States took the lead in the creation of an elaborate legal framework governing global politics and economics, from the UN Charter to the Bretton Woods Agreements.
Bolton’s analysis of the deficiencies of international law would seem to argue for acceptance of the ICC, to contribute to a more effective structure of international enforcement. However, his primary concern is preserving and expanding US power, not building a better international system.
Underlying the various arguments advanced to justify present-day US opposition to the Rome Statute and other treaties is a belief that the United States is an “honorable” country that does not “need treaty limits to do the right thing.”[14] This belief reflects and reinforces the United States' dominant position in the world: US actions are intrinsically right, and the United States should exercise its power accordingly. It recalls the ideology of "Manifest Destiny," and is at odds with the very notion that the rule of law is possible in global affairs.
If the United States remains on this path, the outcome will be a frightening international order based more on the rule of force than the rule of law, with the United States the primary wielder of force. Such an order in the end will prove incapable of addressing threats to US and global security. A far better course would be to seize the present opportunity to nurture an emergent international legal order, with the ICC as a central institution, that holds the promise of delivering both justice and security.
John Burroughs is executive director of the Lawyers’ Committee on Nuclear Policy and adjunct professor of international law at Rutgers Law School, Newark. He is author of The Legality of Threat or Use of Nuclear Weapons: A Guide to the Historic Opinion of the International Court of Justice (1998), and co-editor of Rule of Power or Rule of Law? An Assessment of U.S. Policies and Actions Regarding Security-Related Treaties (2003).
[1] July 17, 1998. Available online at www.iccnow.org/romearchive/documentsrome.html. See generally Pam Spees, “Rome Statute of the International Criminal Court,” in Nicole Deller, Arjun Makhijani, and John Burroughs, eds., Rule of Power or Rule of Law? An Assessment of U.S. Policies and Actions Regarding Security-Related Treaties (New York: Apex Press, 2003).
[2] Remarks at the Center for Strategic and International Studies, Washington, D.C., available online at www.amicc.org/usinfo/administration.html.
[3] See Andrew Lichterman and John Burroughs, “War Is Not the Path to Peace: The Need for Stronger International Legal Standards to Prevent War,” October 24, 2002, online at www.wslfweb.org/docs/iraqlaw2.htm.
[4] “Administration ICC Policy: Bilateral Immunity Agreements,” www.amicc.org/usinfo/administration_policy.html#NGO.
[5] See Human Rights Watch, “United States Efforts to Undermine the International Criminal Court: Article 98 Agreements,” August 2, 2002, online at www.amicc.org/docs/hrw20020802.pdf.
[6] See John Burroughs and Jacqueline Cabasso, "Confronting The Nuclear-Armed States In International Negotiating Forums: Lessons For NGOs," 4 International Negotiation (No. 3, 1999) 457-480, at 471-472.
[7] Article 8(2)(b)(xvii-xix).
[8] Article 8(2)(b)(i) and (iv).
[9] Article 8(2)(b)(xx).
[10] For a survey of this behavior, see Rule of Power or Rule of Law?, supra note 1.
[11] For analysis of other objections, including that the ICC does not have adequate due process protections and that “truth and reconciliation” processes may be preferable to prosecution of international crimes, see commentary by the American NGO Coalition for the ICC at www.amicc.org/usinfo/administration.html.
[12] John Bolton, “Is There Really ‘Law’ in International Affairs,” 10 Transnational Law and Contemporary Problems (Spring 2000) 1, at 4.
[13] Federalist no. 84.
[14] Senator Jon Kyl, “Why the Senate Rejected the CTBT and the Implications of Its Demise,” remarks at the Carnegie Endowment for International Peace, Washington, D.C., June 5, 2000.