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A Critique of the Evolving US-ICC Relationship

After nine years of occupation by foreign forces, Iraq faces the devastating loss of over 400,000 civilians, 4 million displaced people, and the escalation of sectarian violence fueled from abroad. Responding to these gross injustices, Nobel Laureate and international human rights advocate Archbishop Desmond Tutu recently called for the trial of former U.S. President George W. Bush and former British Prime Minister Tony Blair for their part in instigating the Iraq War.  Tutu believes the two should stand trial in the International Criminal Court (ICC), the world’s first permanent tribunal established to prosecute individuals for the most heinous of crimes: genocide, crimes against humanity, war crimes, and crimes of aggression.  In theory, the ICC may prosecute individuals without impunity – even heads of state – however, there are various legal obstacles to overcome before Bush or Blair could ever be arraigned. (Even if the US were subject to the jurisdiction of the ICC, which it is not, the crime of aggression cannot be a lawful criterion for conviction until 2017, per the 2010 ICC Conference in Kampala.)

This article examines the power of the ICC both on paper and in practice from its inception, focusing on the fluctuating engagement of the United States, and concluding with remarks about the future of international justice, which is ultimately tied to the reconciliation of the ICC and US.

Background: The ICC and US in competition

The Rome Statute, drafted during a 5-week conference in Rome, established the International Criminal Court. Adopted in July of 1998, the treaty entered into legal force in April of 2012 when the minimum requirement of 60 signatories was fulfilled (Rome Statute, Article 126. Though the United States initially supported the Rome Conference, and led the lobby for the court’s creation, they–in addition to Iraq, Israel, Libya, China, Yemen, and Qatar–eventually voted in opposition to the adoption of the statute. In 2000, before the ICC came into force, the Clinton Administration symbolically signed the Rome Statute, but announced that it had no intention of submitting legislation to the Senate for ratification.

In May 2002, one month after the ICC attained enough signatories to come into legal force, the Bush Administration infamously “unsigned” the Rome Statute. President Bush made this move, entirely unprecedented in international law, directly after launching the Afghanistan invasion by submitting a note to then-UN Secretary General Kofi Annan. In the following months, the Bush Administration took great care to undermine the efforts of the Court, threatening in July 2002 to use its Security Council veto to block the renewal of UN peacekeeping mandates in order to leverage exemption from ICC jurisdiction. (As one of five permanent members of the Security Council, the United States possesses veto power over any potential Security Council resolution.)

The next indefensible act of American impunity before the court came one month later in August 2002, when the American Service-Members’ Protection Act (ASPA) was introduced by Republican Senator Jesse Helms and approved by George W. Bush. The law, nicknamed the “Hague Invasion Act,” authorizes the President to use “all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court. It further prohibits federal, state, and local agencies from assisting the Court in any way, including the extradition of any citizen or non-citizen from the States and the providing of relevant intelligence regarding ICC cases.

In December 2005, the US took additional measures to exempt itself from the jurisdiction of the Court in approving the Nethercutt Amendment to the Foreign Appropriations Bill. Employing a coercive “stick” or disincentive strategy, the amendment cut economic aid to any ICC state parties who refused to sign a bilateral agreement with the US, exempting US nationals from ICC jurisdiction. Considering that the Court has no jurisdiction over those states that have not ratified the Statute, the Nethercutt Amendment represented a legal redundancy, and further demonstrated the Bush administration’s desire to override and undercut the international system.

Turning Point: 2008 and the Evolution of US Multilateralism

Since the Obama Administration came into power in 2008, the US’s relationship with the ICC has been less strained. In 2009, Congress did not renew the Nethercutt Amendment, ending years of bilateral agreements with state parties to the Rome Statute. In the summer of 2010, the US attended both the June ICC Review Conference in Kampala, where a more precise definition for crimes of aggression was attained, and the 8th Assembly of States Parties in August to express an interest in facilitating court investigations, effectively renouncing ASPA’s doctrine of undermining the ICC’s efforts.

Making good on this promise, in October 2011, the US sent 100 non-combatant troops to Uganda in order to aid in the capture of Joseph Kony, a rebel leader indicted by the ICC for crimes against humanity. The US demonstrated further commitment to the ICC in its lobbying of Security Council members to refer the Libyan case to the Court. While this marks a more cooperative era than that of the Bush administration, actual ratification of the Rome Statute does not seem to be a priority on the Obama Administration’s agenda. Even if this were the case, given the polarization on foreign policy issues in both houses of Congress, approval would not come easily.

The ICC’s Credibility: US-American Perspectives and Perceptions

Despite drastic shifts in the US - ICC relationship from one presidential administration to the next, certain predominant stereotypes about the ICC permeate the American media, popular culture, and political rhetoric. These negative perceptions ‒the ICC's supposed Afrocentrism, fears about the Prosecutor’s power of proprio motu, and a belief in the impotency of multilateralism ‒have led many Americans and American institutions to question the credibility of the ICC. These three sets of perceptions will be analyzed in light of the facts of the Court’s last 12 years, concluding with recommended actions to rectify these common misunderstandings, which have strained US-ICC relations.

Perception #1: ICC Afrocentrism

"There is a wide perception in many African circles, political, legal and civil society, that the International Criminal Court was set up by Western countries to police African countries." - Richard J. Goldstone, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia

(Goldstone, Richard. “Is the International Criminal Court an Institution with an African Agenda?” Published by the International Judicial Academy, Washington, D.C., Winter 2012 Issue http://www.judicialmonitor.org/archive_winter2012/globaljudicialperspective.html)

The perception that the ICC's first decade has been focused almost exclusively on Africa is not a peculiarly American phenomenon, nor is it without factual basis. As of 2012, the seven open cases before the ICC all focused on African leaders from the following countries: Uganda, Liberia, the Democratic Republic of the Congo, Cote d’Ivoire, the Central African Republic, Libya, and Sudan. Serving to strengthen this perception is the vocal indignation and uncooperative behavior of the African Union. Since 2003, the Union has repeatedly refused to arrest Omar al-Bashir of Sudan and Muammar Qaddafi of Libya - both indicted by the ICC - on claims that the court is unfairly targeting African leaders. Ideologically speaking, American discontent with this supposed Afrocentrism is to some extent rooted in the early American revolutionary ideals of justice for the oppressed, and historic efforts to counterbalance perceived European neo-colonialism. For instance, America’s strong support for Bosnia-Herzegovina and Kosovo as independent states following their bloody struggles for autonomy in the Balkans can be explained by a values-based assessment of international politics and self-determination. This ideological position drives America, at times, to push back against forces and institutions perceived as neo-colonial, such as the ICC.

On balance, it should be noted that as of 2012 there are eight situations under investigation by the ICC's Office of the Prosecutor (OTP), including six of which are outside of Africa: Afghanistan, Colombia, Georgia, Honduras, the Republic of Korea, and Palestine. Furthermore, the OTP previously pursued crimes in Iraq and Venezuela that did not lead to any formal investigations. Arguably the strongest case for the charges of Afrocentrism described above is the simple fact that a high proportion of Rome Statute signatories are African states, almost all of which have ratified the Statute; the ICC lacks legal authority over many sites of recent egregious crimes, including Sri Lanka, Russia, China, the US, and Iran, which have not ratified it. In these cases, the ICC has no jurisdiction to try war criminals, even if the UN Security Council were to refer the cases.

Meanwhile, the June 2012 appointment of an African woman, Fatou Bensouda, the former Minister of Justice for Gambia and Deputy Chief Prosecutor of the ICC, to be the new ICC Chief Prosecutor reinforces perceptions of Afrocentrism, even while it counters African charges of exclusion from the ICC’s prosecutorial process.

Perception #2: the Prosecutor's power of proprio motu endangers national sovereignty

Since the ICC's inception in 2000, the independent power of the Office of the Prosecutor (OTP) to initiate his/her own investigations has been one of the most contested issues in international law. Articles 13(c), 15 and 53(1) of the Rome Statute define the prosecutorial power of proprio motu, which grants the OTP the independent ability to determine whether there is "reasonable basis to proceed" and "whether a crime within the jurisdiction of the Court has been committed, whether the case is admissible under Article 17 (complementarity and gravity) and whether an investigation would not be in the interests of justice" (Rome Statute, Article 15, paragraph 1 (a-c)).

Critics and supporters of proprio motu alike agree that this threshold for investigation is vague and subjective, opening the door to the possibility of the ICC's being wielded for individual political motives. Western powers have articulated fears that the OTP would investigate their citizens, effectively circumventing those countries' veto powers in the UN Security Council and their ability to recommend domestic cases themselves. Ultimately, proprio motu has only been used once in the history of the ICC, in the investigation of Kenyan officials inciting election violence in 2008. The Prosecutor at the time, Moreno Ocampo, cited the fact that the six officials were protected by government impunity and corruption rackets in Kenya, and would not likely be properly tried within Kenya. Regardless of its justification, the OTP's first exercise of proprio motu prompted worldwide backlash and revived debate about this substantial prosecutorial power.

Perception #3: Multilateralism

In the US, the perception of the ICC is irreversibly tied to beliefs regarding the latter's multilateralism, an increasingly politicized foreign policy doctrine. While President Clinton drove international peacekeeping efforts into Somalia, the Balkans and elsewhere, the Bush administration’s decision to engage neo-conservative policies of unilateral aggression and preemption in the name of national security directly reversed and undermined the emerging norm of multilateralism and shared global peace-building.

By 2008, the US government pendulum had swung back toward multilateralism, and the ICC regained support; since then, the Obama Administration has articulated and generally employed a multilateral approach to foreign conflicts and international justice. When the Court sought to indict Libya’s Muammar Qaddafi in 2005, the US abstained. Four years later, this renewed commitment to multilateralism was evidenced not only by the US's vote to indict Qaddafi, but by their active participation in the joint NATO mission in Libya. Furthermore, both the restraint of unilateral force in conflicts in Syria and Iran, and the favoring of regionally-led stabilization operations in countries like Uganda and Somalia, signal a new paradigm for American enforcement of international justice. While these actions under the Obama administration’s first term have not rendered the US a full and equal partner with ICC member states, the prioritization of a collaborative response to atrocities marks a shift in global perspective within the White House, and bodes well for the future of the US's relationship with the ICC.

Conclusions & Paths to US-ICC Cooperation

"It is not in the interests of international criminal justice that the ICC should have jurisdiction over the nationals of small and weak nations but not those of the large and powerful." - Richard J. Goldstone, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia

At present, negative perceptions regarding the ICC's legitimacy and accountability hamper constructive cooperation, as well as further ratification of the Rome Statute by the United States and other major world powers. In a vicious cycle, this disengagement or active resistance to ongoing investigations further weakens the legitimacy and accountability of the Court. Thus, the onus lies both on the Court itself, and major world powers like the US, Russia, and China, to legitimate and strengthen the international criminal justice system in bringing criminals guilty of the gravest atrocities to justice. The following recommendations are directed to both audiences:

1. The International Criminal Court must demonstrate its legitimacy, necessity, and restraint.

a) Deliberately avoid Afrocentric policies by pursuing investigations beyond that continent, including those by use of proprio motu.

b) Avoid unnecessarily protracted trials by bringing in more pro bono legal experts and researchers.

c) Demonstrate a symbiotic relationship with state parties; for example, by taking cases referred to the Court by states and stressing the complementarity principle of the court, whereby it will only pursue cases if they have not first been conducted domestically.

d) Exercise discretion with regard to the Prosecutor's proprio motu, and clearly articulate prosecutorial reasoning for the decision to act independently from a UN Security Council decision.

2. The United States must act and legislate its support for the International Criminhual Court.

a) Ratify the Rome Statute, signaling a more permanent, legal commitment to the Court that extends beyond election cycles.

b) Eliminate the Nethercutt Amendment, replacing its coercive approach and Article 98 agreements with symbiotic, bilateral, and multilateral approaches to enforcing justice.

c) Use UN Security Council veto of ICC investigations only in cases that lack “reasonable basis to proceed” as defined by Rome Statute Article 15, not for the purpose of political alliances.

Support ICC investigations of its own citizens when and if it is unwilling to prosecute them in US courts. This will demonstrate a full willingness for cooperation with the court.

3. Citizens must demand domestic prosecution of war criminals and their state’s cooperation with the ICC.

a) Citizens must lobby the US and other powerful nations currently abstaining from the ICC, including Russia and China, to ratify the Rome Statute.

b) Citizens must demonstrate their support for a multilateral approach to prosecution of crimes against humanity, especially when the arraigned criminals are from their own country.

The third and final recommendation is a call to action. State and international institutions face extreme bureaucratic inertia and will not be able to implement these changes rapidly, even if there is political will to do so. Human rights violators, meanwhile, will not wait for institutions to catch up; ongoing atrocities in Iraq, Syria, and the Congo, to name but a few crises, necessitate a swift, legitimate, and broadly-supported international criminal justice system. The onus is on states and the Court to collaborate effectively, but it is also on individuals - as citizens of democratic states ‒ to demand a system of justice that best protects all of us.

References

"American Service-Members' Protection Act." United States Congress. http://www.state.gov/t/pm/rls/othr/misc/23425.htm

Barnidge, Robert. “The ASPA and Article 98 Agreements” 2004.

Berkeley Int’l Law Journal; US and ICC post-Bush
http://www.boalt.org/bjil/documents/Fairlie_Macro2.pdf

"Courting History: The Landmark International Criminal Court's First Years." Human Rights Watch (July 2008). New York.

“Dutch still wincing at Hague Invasion Act” Christian Science Monitor. 2009. http://www.csmonitor.com/World/Europe/2009/0213/p05s01-woeu.html/(page)/2

Fairlie, Megan A. The United States and the International Criminal Court Post-Bush: A Beautiful Courtship but an Unlikely Marriage, 29 Berkeley J. Int'l Law. 528 (2011).  Available at: http://scholarship.law.berkeley.edu/bjil/vol29/iss2/3

HRW Suggestions for Obama Administration Concerning ICC: http://www.hrw.org/news/2009/03/02/eight-initiatives-obama-administration-should-take-international-justice#_Adopt_a_more

"Obama and the ICC," Foreign Policy Magazine. 2010.  http://foreignpolicyblogs.com/2010/02/03/obama-and-the-icc/

Ignatieff, Michael, “We’re So Exceptional”, The New York Review of Books, April 5, 2012 (on All the Missing Souls: A personal History of the War Crimes Tribunals by David Scheffer)

US Bill “Invade the Hague” still in force http://www.csmonitor.com/World/Europe/2009/0213/p05s01-woeu.html/%28page%29/2

“United States Unsigning Treaty on War Crimes Court,” Human Rights Watch. May 7, 2002. http://www.hrw.org/news/2002/05/06/united-states-unsigning-treaty-war-crimes-court

“U.S.: ‘Hague Invasion Act’ becomes Law,” Human Rights Watch. August 4, 2002. http://www.hrw.org/news/2002/08/03/us-hague-invasion-act-becomes-law

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