[*PG159]ESCAPE OUT THE BACK DOOR OR CHARGE IN THE FRONT DOOR:U.S. REACTIONS TO THE INTERNATIONAL CRIMINAL COURT

Roseann M. Latore*

Abstract:  In the last days of his administration, former President Clinton made the United States a signatory to the Rome Treaty for the International Criminal Court, an unexpected move that allowed the United States to continue to participate in the shaping of the court. However, the signature neither indicated approval of the court nor the United States’ willingness to be a full participant in it. Instead, many arguments against the participation of the United States exist, and the chances of ratification by the Congress are slim. This Note analyzes the United States’ attempts to exempt itself from the Rome Treaty and the arguments against the United States’ participation. The Note argues that the United States’ participation in the ICC is necessary and appropriate to its position in the international community and supports the United States’ full participation through ratification of the Treaty.

Introduction

In February 1999, United Nations (U.N.) Secretary-General Kofi Annan told delegates assembled from countries throughout the world, “[t]he best chance humankind had ever had to end the culture of impunity was within grasp . . . We must not let it fall.”1 Annan made his statement during the first meeting of the U.N. Preparatory Commission for the International Criminal Court (PrepCom) in order to urge nations to sign the treaty establishing the International Criminal Court (ICC or the Court).2 Surely no country could take issue with the establishment of a permanent, impartial, international court to try those accused of genocide, war crimes, crimes of aggression, and [*PG160]crimes against humanity.3 In particular, a country with a history of commitment to trying war criminals, a country whose own legislative body voted in 1994 “to encourage the establishment of an International Criminal Court within the United Nations system,” would seem especially disposed towards supporting such a court.4 Despite the U.S. Senate’s vote in support of the ICC,5 and President Clinton’s call in 1997 for the establishment of such a court,6 the United States refused to sign the Rome Statute for the International Criminal Court (RSICC or the Treaty) in 1998.7 This refusal put the United States in the company of states such as Iraq and China, other countries that refused to sign the Treaty at the Rome meeting.8 Former President Clinton did sign the Treaty at the eleventh hour, allowing the United States to continue to influence the development of the court.9 Clinton vowed not to send the Treaty to Congress for ratification, however, without major revisions, and recommended that his successor follow the same course of action.10

One of the United States’ main arguments against becoming a full participant in the ICC is that an overzealous prosecutor who disagrees with U.S. policies could bring U.S. military personnel before the court.11 The United States’ desire to protect U.S. service members from ICC prosecution is so strong that the House of Representatives passed, and the Senate is considering, the American Service Member’s Protection Act of 2001 (ASPA), which would withhold aid to [*PG161]countries that are parties to the ICC.12 This bill could cripple, if not effectively destroy, the ICC.13

This Note discusses the current status of the ICC and the United States’ attempts to be exempted from it, both before and after the United States became a signatory to the Treaty. Part I discusses the background that led to the convening of U.N. delegates in Rome in 1998. Part II explains the U.S. position on the ICC and its desire for exemption, including its efforts at the June, 2000 meeting of PrepCom. It also examines the ASPA and its effect on the ICC. Part III argues that the United States should ratify the Treaty and that the ASPA should not pass Congress. Finally, this Note argues that the United States must heed the will of the international community, abandon its policy of unilateral action in international affairs, and participate fully in the ICC.

I.  History of the International Criminal Court

A.  Early Attempts to Create an International Criminal Court

Attempts to create an international criminal court have been made for centuries.14 One of the first cited international courts tried Peter Von Hagenbush in 1474 for crimes against “God and man” during his military occupation of a civilian community in Austria.15

The attempts were more focused in the years between the First and Second World Wars. The 1919 Treaty of Versailles called for the prosecution of war criminals, permitting ad hoc tribunals to adjudicate alleged war crimes.16 While no international tribunals were established pursuant to the Treaty of Versailles, there were some national prosecutions in German courts.17 Article 277 of the Treaty of Versailles specifically called for the prosecution of William II of Hohenzollern, the Emperor of Germany.18 Other articles allowed for expanded prosecution of other individuals who shared responsibility for [*PG162]the war.19 Out of a list of 896 drawn up by the Allies, however, Germany only tried twelve.20 The German Kaiser escaped prosecution by fleeing to the Netherlands, where the Dutch refused to extradite him.21

The Treaty of Sevres, ending the war with Turkey in 1920, also called for the prosecution of war criminals, but no trials ever took place.22 National prosecutions were held in other countries, such as Canada, France, and Israel.23 The League of Nations also tried to establish an international court to enforce the 1937 Terrorism Convention, but the eruption of several world crises prevented it from doing so.24

B.  Post-World War II Developments

Efforts to establish an international criminal court became more widespread in scope in the years following World War II.25 After World War II, the Allies advocated the punishment of individuals responsible for war crimes.26 The International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East in Tokyo prosecuted German and Japanese individuals for “crimes against peace,” “crimes against humanity,” and “war crimes.”27 There were questions, however, about the impartiality of the judges, who were drawn from Allied countries, and about the fairness of these tribunals’ retroactive jurisdiction.28 While these trials began the process of applying international law to protect fundamental human rights,29 they also demonstrated the need for a more permanent, authoritative body of laws to facilitate effective and systematic prosecution of war criminals.30

[*PG163] The creation of the International Criminal Tribunal for the former Yugoslavia at the Hague and the International Criminal Tribunal for Rwanda at Arusha (the Tribunals) reflected the desire of the international community to use international tribunals to prosecute those responsible for violating the laws of war.31 The Tribunals were undermined, however, by the fact that they had difficulty arresting those indicted.32 This ineffectiveness resulted in decreased public confidence in the Tribunals, and prevented them from serving as a deterrent to other offenders.33 The U.N. Security Counsel reached a point of “tribunal fatigue,” as the time and effort required to support the Tribunals in order to ensure their credibility and effectiveness strained the resources of the U.N.34

The idea of an international criminal court had been discussed in the U.N. throughout the years between World War II and the 1998 Rome Convention.35 Between 1947 and 1989, General Assembly-mandated committees sought to formulate the principles of international law developed at Nuremberg and prepare a draft code of offenses against “the peace and security of mankind.”36 Another committee was charged with developing a draft statute for the establishment of an international criminal court.37 These initiatives failed to coalesce, however, until 1989, when Trinidad and Tobago suggested the formation of an international criminal court to address drug trafficking problems.38 At that point, work on the project intensified, leading to a conference in Rome from June 15 through July 17, 1998, which resulted in the adoption of the RSICC.39

The RSICC, which was adopted by 120 signatories,40 provides that the ICC, headquartered in the Netherlands, is to prosecute four core crimes: genocide, war crimes, crimes against humanity, and crimes of aggression.41 Unlike the International Court of Justice (ICJ) in the Hague, which has jurisdiction only over disputes between nations, the [*PG164]ICC would have jurisdiction over individuals.42 The Treaty remained open for signatures until December 31, 2000, and enters into force after sixty nations have ratified it.43 Before December 31, states were able to sign the Treaty without ratifying it; after December 31, ratification is required in order to sign.44 In the three years since the RSICC was signed, over forty nations have ratified it.45 The United States was one of seven nations at the conference in Rome that voted against the RSICC.46

II.  U.S. Fears and Reactions to the ICC

The international community created the ICC because the continuing practice of establishing temporary ad hoc tribunals was viewed as an ineffective method of assuring universal justice.47 Judging from the problems of the Tribunals for Yugoslavia and Rwanda, it became clear that a permanent, effective court with arrest power was needed in order to provide notice of the law and to deter international crimes.48 The ICC can be effective, however, only if the type of individuals it seeks to prosecute, such as the former president of Serbia, Slobodan Milosevic,49 believe that they can be caught and brought to trial.50

A.  U.S. Efforts in ICC Development

The opinion of the international community is that, without the participation of the United States, the ICC will be “maimed at birth.”51 [*PG165]Most nations desire the inclusion of the United States because it alone has the ability to ensure that criminals sought by the ICC are brought to trial.52 The United States’ participation in the ICC, therefore, would provide the credibility and the strength the ICC needs to be effective.53

The United States, however, did not sign the Treaty until December 31, 2000,54 and now threatens not to ratify and to withdraw its signature.55 The U.S. delegation at Rome offered to sign if U.S. military personnel could be indicted only with the permission of the United States, a proposition that was rejected by the other nations.56 What concerns the United States is the possibility of U.S. or NATO peacekeepers being brought before the court if a particular prosecutor does not agree with U.S. policy or motives.57

To ensure that this type of prosecution does not occur, the United States sought, unsuccessfully, to require that all ICC cases be referred by the U.N. Security Council, of which the United States is a member and, therefore, has veto power.58 With this power, it would be less likely that U.S. nationals would be prosecuted.59 According to the United States, Security Council initiation would ensure that only the most heinous crimes, such as those committed in Nazi Germany and by Saddam Hussein, would be indicted.60 These crimes are of such a magnitude, however, that it would be highly unlikely that a U.S. service member could be charged.61

The RSICC allows an ICC prosecutor to start investigations on his own initiative, subject to a pre-trial conference with the judges of the court.62 The Security Council then can interrupt the process by seek[*PG166]ing a one-year, non-renewable period of deferment.63 The Security Council also has the right to quash any indictment, subject to the veto of any permanent Security Council member.64

Concessions were made in the Treaty’s development so as to allay U.S. fears of unrestricted prosecution of its nationals.65 The ICC was given automatic jurisdiction over genocide and crimes against humanity, but not over war crimes.66 Since war crimes are the most likely category under which U.S. nationals might be charged, this provision would ensure that the United States would have the ability to prosecute its own citizens without fear that these nationals, specifically service members stationed abroad, would be brought first before the ICC.67

Despite these concessions, the United States has not changed its position.68 Instead, the United States began to fight a “rearguard action” to exempt itself and other non-signatories, including Iraq and China, from the jurisdiction of the ICC.69 It did so by trying to manipulate provisions in the emerging court rules, particularly Article 98 of the Rules of Procedure of the RSICC.70

During the three-week meeting of PrepCom held in June 2000, debate focused on a U.S. proposal to rewrite Article 98 in order to lay the groundwork to “[expand] exemption from prosecutions by way of unspecified ‘international agreements.’”71 The language proposed by the United States for Article 98 read, “[t]he [c]ourt shall proceed with a request for surrender or an acceptance of a person into the custody of the [c]ourt only in a manner consistent with international agreement applicable to the surrender of the person.”72

[*PG167] Thirty-nine of the forty-five delegates felt that this language was incompatible with the objects and purposes of the Treaty.73 Compromise was reached, and the Treaty was amended to read as follows:

2. The [c]ourt may not proceed with a request for the surrender of a person without the consent of a sending [s]tate if, under [A]rticle 98, paragraph 2, such a request would be inconsistent with obligations under an international agreement pursuant to which the consent of a sending [s]tate is required prior to the surrender of a person of the [s]tate to the [c]ourt.74

While the United States claimed victory in this rewording, opponents of U.S. exemption stated that the United States achieved not a road to exemption, but “a winding alley that will lead back to the original meaning of the Statute.”75

According to the United States, the proposal was not an amendment or a modification of the RSICC, but instead was a “procedural fix,” consistent with the Treaty, which would allow the United States to be a “good neighbor” to the court.76 While the United States would not be a member of the ICC, it could assist the court as it assisted the Yugoslav and Rwanda Tribunals.77 The U.S. proposal would allow it and other non-signatory nations to continue to fulfill their international responsibilities.78 However, the proposal also would ensure that the nationals of U.S.-dubbed “irresponsible nations,” those rogue nations for which the ICC was created, still would be subject to the court’s jurisdiction, presumably because the court would not enter into any sort of “international agreement” with those nations.79

[*PG168] The second prong of the U.S. attempt at exemption dealt with those international agreements, and was introduced at the November meeting of PrepCom,80 held from November 27 to December 8, 2000.81 This meeting was the last in which nations that had not signed the Treaty were able to participate; in effect, it was the United States’ last opportunity to get its nationals exempted through the language of the Treaty itself.82

At this meeting, the committee considered the Relationship Agreement between the court and the U.N. (Relationship Agreement).83 The Relationship Agreement will deal with the requirements on U.N. aid workers, peacekeepers, and officials to share information and evidence with the ICC.84 The Relationship Agreement was not finalized at that session, however, a finalized draft was agreed on during the next meeting of PrepCom in September and October of 2001.85

The U.S. proposals for this agreement read as follows:

The United Nations and the International Criminal Court agree that the Court may seek the surrender or accept custody of a national who acts within the overall direction of a U.N. Member State, and such directing State has so acknowledged, only the event (a) the directing State is a State Party to the Statute or the Court obtains the consent of the directing State, or (b) measures have been authorized pursuant to Chapter VII of the U.N. Charter against the directing State in relation to the situation or actions giving rise to the alleged crime or crimes, provided that in connection with such authorization the Security Council has determined that this subsection shall apply.86

However, despite its commitment to exemption at the February/March 2001 PrepCom, the United States did not pursue exemp[*PG169]tion in the development of the Relationship Agreement, choosing only to take part in the working group on aggression.87 Regarding its involvement, the U.S. representative stated only that “the U.S. [did] not support the ICC; the U.S. was participat[ing] only in the aggression discussion because of the role of the Security Council; prior efforts to meet the U.S. needs had proved futile; and the U.S. is undertaking a comprehensive review of the ICC issue.”88

B.  U.S. Legislation

In anticipation of the U.S. delegation’s failure to exempt U.S. nationals from the jurisdiction of the ICC, Congress prepared a back-door escape. In June, 2000, the ASPA was introduced into both houses of Congress.89 While Congress took no action at that time, the House of Representatives passed the ASPA in March 2001 as an amendment to the Foreign Relations Authorization Act, Fiscal Years 2002 and 2003.90

The ASPA would keep U.S. nationals from ICC jurisdiction essentially by killing the ICC.91 The ASPA has several provisions to ensure U.S. exemption.92 U.S. courts are prohibited from aiding efforts to extradite any U.S. national to the ICC, and U.S. intelligence is prohibited from sharing information with the ICC93 that either would help to exonerate U.S. nationals or to prosecute other war criminals.94 The ASPA also cuts off all military and financial aid to any country that ratifies the RSICC, except for NATO and other unnamed major allies.95 The President is authorized in advance to use “all means necessary and appropriate” to secure the release of any U.S. national being held for trial by the ICC.96 The bill authorizes the rescue service for NATO and other major allies as well.97 This provision has led to the ASPA being nicknamed the “Netherlands Invasion Act,” as it practi[*PG170]cally authorizes the United States to send troops to the Hague to rescue U.S. nationals awaiting trial there.98

III.  Evaluation of U.S. Proposals

The United States has striven for a world based on a balance between military strength and international cooperation through democracy and the rule of law.99 In accordance with that goal, it appears that U.S. opposition to the ICC draws its justification from an idea that the United States is above international law because of its myriad responsibilities in the world.100 While the United States does have military responsibilities to the international community, these responsibilities do not justify its opposition to and refusal to participate in the ICC. U.S. opposition to both the RSICC, in the form of its proposals for exemption and refusal to ratify, and the ASPA is misplaced and has resulted in damage to the United States’ reputation as protector of the world, as well as to its ability to protect itself.

A.  U.S. Proposals for Exemption from ICC Jurisdiction

Since the RSICC gives countries the option of trying their citizens in their own courts, legal experts are puzzled over U.S. opposition to the ICC.101 The United States has court-martialed its own soldiers in the past for criminal activities, and there is no reason to believe it would not continue to do so.102 The United States can try almost all war crimes committed by U.S. nationals in its own courts, and even could enact a law requiring courts to hear cases of nationals who allegedly have violated the law of nations as stated in the RSICC.103 If U.S. citizens acting as peacekeepers were ever to commit indictable crimes, as did peacekeepers in Ghana,104 and the United States did not try them, the United States would suffer a major affront to its [*PG171]status as a nation committed to justice, thus making it unlikely that such an omission would occur.105

The RSICC supports domestic prosecution of war criminals.106 It contains a provision allowing signatory countries to keep their nationals from prosecution for war crimes for seven years, allowing them sufficient time to conduct those trials domestically.107 Countries that do not sign the Treaty do not receive the benefit of this privilege.108

Finally, the ICC is not retroactive. Rather, it can deal only with events that happen after the RSICC comes into force, 109 estimated to be sometime in 2002.110 Therefore, any past activity by the U.S. military that concerns the U.S. government would not fall under the jurisdiction of the ICC. 111 Thus forewarned, the U.S. military could develop future assignments with an eye towards the ICC.112 Again, the probability of a U.S. service member being involved in a crime of the magnitude required for an ICC investigation is not very high.113 For these reasons, the U.S. proposals for exemption through Article 98 and the Relationship Agreement were unwarranted.

In addition to being unwarranted, the proposals for exemption put forth by the United States at the PrepCom meetings were inconsistent with the purpose of the Treaty.114 While the new Article 98 comes with an understanding that it “should not be interpreted as requiring new negotiations,”115 the very language of this Article could suggest otherwise.116 In referring to the ICC’s obligations as being consistent with “international agreement[s],” the language now in the Treaty opens the door for the possibility of exemption agreements between the ICC and states, and provides a basis “for future negotiations between individual States and the ICC for exclusions under Article 98(2).”117 This type of continuing negotiation is not what the [*PG172]Treaty drafters intended, and in fact amounts to an amendment of the RSICC.118

Furthermore, the U.S. proposal for the Relationship Agreement would have limited the ICC’s jurisdiction to requests for surrender, making the ICC’s ability to try alleged criminals contingent on the consent of the state of nationality of the accused or on that of the Security Council.119 The drafters of the RSICC did not intend for the court to be restricted in this manner, therefore, U.S. efforts at exemption through the ICC language are likely finished.120 In trying to gain an exemption through “international agreement[s],” the United States was providing the means for citizens of rogue countries, whom the drafters of the RSICC had in mind when they created the ICC, to escape prosecution.121

B.  U.S. Circumvention of the ICC Through the ASPA

The ASPA would do more harm than good. First, its very existence will surely hurt the U.S. position at the ICC negotiations.122 Second, the ASPA effects U.S. national policy objectives by making foreign policy and security hostage to the ICC treaty.123 Finally, the ASPA is an unnecessary measure that only would endanger any potential future cooperation between the United States and the ICC, cooperation ultimately in U.S. national and security interests.124

For the U.S. negotiators to the RSICC who participated in developing the rules and procedures of the ICC, the existence of the ASPA, even before its passage in the House of Representatives, was damaging. Richard Dicker, counsel for Human Rights Watch, called the Act “a very ugly face on U.S. diplomacy.”125 The harshness of this bill weakened the U.S. negotiating position for the November 2000 PrepCom meeting.126 It sent a signal to the ICC that the United States [*PG173]would not cooperate, thus making the ICC less inclined to work with the United States to protect its nationals.127

In addition, the ASPA could harm national and foreign policy objectives.128 The U.S. Department of Defense recognized this problem, calling the bill “legislative overkill.”129 Since the ASPA requires the Security Council to grant ICC immunity to the U.S. military in order for the U.S. military to participate in U.N. military activity,130 a refusal of such a grant could prevent the United States from using its military for international issues which affect its national security.131 Moreover, the ASPA would hamper the President’s powers because his ability to send U.S. military forces to participate in peacekeeping efforts, which are often in U.S. security interests, would be restrained by the need for a grant of immunity.132

Opponents of the bill further argue that above all, the ASPA is unnecessary because the ICC deals only with crimes for which U.S. service members are unlikely to be indicted.133 The mandate of the ICC is to be a court of last resort, stepping in to prosecute the most heinous crimes only when a country is unwilling or unable to prosecute its nationals.134 The ICC will deal only with the most “egregious, planned[,] and large-scale crimes,” not “allegations of isolated atrocities.”135 The ICC is intended to deal with actions comparable to those of the Nazis in World War II, of Pol Pot and Saddam Hussein, or of military governments such as those of the 1980’s and 1990’s in El Salvador, Argentina, Burma, and Indonesia.136 Thus, it is highly unlikely that a U.S. service member ever could be involved in a crime of the magnitude necessary to trigger ICC attention.137 Even if a U.S. national were to commit this type of crime, the United States would not hesitate to prosecute him, as shown by the prosecutions for My Lai,138 [*PG174]and the current investigation into possible crimes committed during the Korean War.139

In addition, there are extensive safeguards in the ICC system, mostly due to U.S. insistence at the original negotiations in Rome.140 For example, there are strict guidelines for selecting judges and prosecutors, as well as an internal system of checks and balances to ensure that frivolous cases will not be pursued.141 The court is intended to deal with countries that lack the ability to mete out justice to their nationals, rather than those with complex legal systems like the United States.142 The ASPA, therefore, is an unnecessary piece of legislation, which will harm not only U.S. relationships with the international community through the ICC, but also will handicap U.S. national security and foreign policy decisions.143

C.  Immediate Ramifications of U.S. Opposition

U.S. opposition to the ICC has already had consequences. On May 3, 2001, the United States lost a seat on the U.N. Commission on Human Rights.144 Commentators state that this expulsion was the result of increasing international frustration over U.S. opposition to the ICC.145

Should the United States decide to withdraw its signature or repudiate the Treaty, as President Bush did with the Kyoto Protocol on global warming,146 U.S. signatures on all international treaties would be suspect.147 In terms of the ICC, repudiation would cause the United States to lose any ability to shape the ICC in its early years.148 [*PG175]The United States would not be able to influence the approval of the rules of procedure and evidence, or the elements of crimes, nor the final language on the relationship of the court to the U.N.149 Perhaps even more importantly, the United States would be unable to participate in the selection of judges, and would not be allowed to nominate a U.S. national for a position.150 Clearly, if the United States should decide it is not to be a party to the ICC, the United States would lose its chance to participate in the development of “a system of justice built not to settle scores, but to affirm the humanity of victims who too often are forgotten.”151

Conclusion

In a speech at Harvard University, U.N. Secretary-General Kofi Annan called on jurists to better educate themselves and their fellow citizens about the benefits of the ICC.152 He stated that he did not believe that U.S. opposition to the ICC stemmed from an opposition to punishing those guilty of atrocious crimes against humanity.153 The Secretary-General went on to say that all states must live by international law, for if they do not, “they are condemned to live by the law of the jungle.”154 The United States, as the “greatest power on earth,” could not possibly desire this.155

The United States may be the world’s greatest superpower, but this status does not give it an excuse to hold itself above the will of all others in the application of international law. U.S. unilateralism no longer serves U.S. national interests.156 Instead, by refusing to be bound by rules that the international community supports and by liberally sanctioning nations that have offended it, the United States is isolating itself from the international community.157 The United States [*PG176]hypocritically believes it has “a right to legislate for the world, but the world has no right to legislate for the U.S.”158

The ICC is designed to eliminate international war-related atrocities. The United States shares those goals and, therefore, has little reason to withhold its support for the ICC. To do so would make a mockery of justice and the idea that no one is above the law.159 The United States cannot use its current status to unilaterally veto that which the majority of the world’s nations support, and expect that it will not be harmed by the result.

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