The USA and the International Criminal Court

11 November 2007

Until recently, the United States of America has strongly opposed the International Criminal Court citing fears that it could bring politically-motivated prosecutions against US nationals.

US Opposition to the International Criminal Court

During the drafting of the Rome Statute, the US demanded that the work of the Court should be controlled by the United Nations Security Council (of which it is a permanent veto-holding member), which would decide which cases the Court could and could not prosecute.

The Rome Conference, however, decided to establish an independent Prosecutor and limited Security Council control to being able to defer a case for 12 months in the interest of international peace and security. To ensure that the Court could never be involved in politically-motivated prosecutions, the drafters included substantial safeguards and fair trial guarantees into the Rome Statute.

Despite these safeguards, the US was one of only seven states to vote against the adoption of the Rome Statute.

Less than two years later, there was a remarkable change in position when, on 31 December 2000, President Clinton demonstrated US support for the Court by signing the Rome Statute. Five months later, however, in May 2001, the new Bush administration revoked the US signature and commenced a worldwide campaign against the Court.
  • The administration demanded that a number of United Nations Security Council peace-keeping resolutions include text purporting to exempt nationals of countries that had not ratified the Rome Statute accused of genocide, crimes against humanity and war crimes from the jurisdiction of the International Criminal Court.
  • It launched a worldwide campaign for other countries to enter into illegal impunity agreements committing them not to surrender US nationals accused of genocide, crimes against humanity and war crimes to the Court. US laws were enacted, including the American Servicemembers Protection Act and the Nethercutt Amendment, requiring the government to withdraw military and other assistance from countries that refused to sign agreements.
  • In some cases, the United States lobbied governments supporting the Court not to ratify the Rome Statute.
Amnesty International campaigned actively against these initiatives to undermine the International Criminal Court.

The US campaign against the International Criminal Court fails

The campaign failed and has now been largely abandoned. In June 2004, the United States withdrew a United Nations Security Council resolution seeking to renew previously enacted resolutions purporting to grant exemptions to nationals of non-states parties to the Rome Statute involved in peacekeeping missions.

In the light of the revelations of prisoner abuse in Iraq, the public opposition to the renewal by UN Secretary General Kofi Annan, and sustained campaigning by civil society, including Amnesty International, at least eight members of the Security Council refused to support the renewal of the resolution.

The worldwide campaign for impunity agreements also failed. Although it is reported that more approximately 100 states signed agreements with the US, most agreements have not been ratified and have not entered into force.

Many states refused to sign agreements upholding their commitment to international justice, even when US military and other assistance was withdrawn. Amnesty International’s members in countries around the world lobbied their governments not to enter into agreements.

In March 2006, US Secretary of State Condoleezza Rice announced that the campaign to secure impunity agreements was under review. Since then, many countries that refused to sign agreements have been granted waivers so that they will not be sanctioned. Reports of initiatives to sign agreements with other states have decreased significantly.

Moreover, while the campaign against the Court has failed, the US government has even supported some of its work. In March 2005, the US decided not to oppose a UN Security Council resolution referring the situation in Darfur to the Prosecutor of the International Criminal Court. There have also been indications that the US government may be willing to cooperate with the Court in its investigations.

Amnesty International is campaigning to build on these positive developments by promoting US cooperation with the International Criminal Court as a first step towards future ratification of the Rome Statute.

 

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