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The United States and the International Criminal Court: Is It Time to Reaffirm Our Signatory Status to the Rome Statute?

  • Published
  • By LTC Austin Goodrich
Wild Blue Yonder --  

“I believe that a properly constituted and structured International Criminal Court [ICC] 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.”1 With this 31 December 2000 statement, President Bill Clinton announced the United States’ decision to become a signatory to the Rome Statute establishing the ICC. However, the decision to sign the Rome Statute was not without a great deal of controversy due to legitimate national concerns about the proposed jurisdiction and operational framework of the court as contemplated by the Rome Statute itself. In fact, in signing the Rome Statute, the outgoing President Clinton expressly indicated his intent to advise the next President not to “submit the treaty to the Senate for advice and consent [i.e., ratification] until our fundamental concerns are satisfied.”2 From Clinton’s calculus, the US interest in promoting an international criminal justice body was worth the limited investment of a signature, which would further the US’ ability “to influence the evolution of the court” and address US concerns going forward.3

The question of Senate ratification was never reached, however, as on 6 May 2002, the Bush Administration notified the United Nations that it did “not intend to become a party to the treaty” and did not view itself as having any “legal obligations arising from its signature on December 31, 2000.”4 The effect of this action was to effectively “unsign” the Rome Statute. It appears that, technically, the United States remains a signatory to the Rome Statute and is recognized as such. Yet, because the Bush Administration’s 6 May 2002 notification to the United Nations announced that the United States did not intend to ratify the Rome Statute and that it had “no legal obligations arising from its signature,” the practical effect of the notification was to “unsign” the Rome Statute (i.e., withdraw its signatory status).5 Notably, the Bush Administration’s decision to “unsign” the Rome Statute was not the result of a disagreement in the underlying concept of an international court of justice that “could be a useful tool in promoting human rights and holding perpetrators of the worst violations accountable before the world,” rather the Administration unsigned the treaty “to make our objections clear … and so as to not create unwarranted expectations of U.S. involvement in the Court.”6

But what was it about the ICC as an institution that could lead the US to “unsign” the Rome Statute and create the international perception, walking away from its traditional leadership role in promoting the rule of law? And, more importantly, in light of its “shared common goal”7 with the international community regarding the need for an ICC, was the US decision to “unsign” the Rome Statute the best course of action as opposed to remaining a bona fide Rome Statute signatory and then using that perch to influence change within the organization? The answer to this question is straightforward. In light of the US’ superior ability to influence organizational change working closer to the inside of the ICC than the outside, its historical leadership role in promoting compliance with the laws of armed conflict and the creation of international institutions of justice, and the public support within the US for participation with the ICC, it is incumbent upon the US to reengage with the ICC as a bona fide signatory to the Rome Statute.

Yet, before it is possible to fully understand the problems at the root of the US’ discontent with the ICC, one must first understand the structure, jurisdiction, and procedural rules of the court itself. Pursuant to the requirements of the Rome Statute, the ICC became operational on 1 July 2002 in the Hague, Netherlands, after achieving its 60th nation-state ratification.8 There are now 123 State Parties to the Rome Statute, with the US being one of 31 countries who have signed, but not ratified the Rome Statute.9 Upon beginning operations, the ICC became the first permanent international judicial body with jurisdiction to prosecute individuals under international law for the offense of genocide, crimes against humanity, and war crimes.10 A fundamental underlying concept of the ICC is its application of the principle of complementarity.11 That is to say, the ICC is designed to operate as a court of last resort which will defer to the domestic court of a nation-state having primary jurisdiction, unless it is determined by the ICC that the nation-state at issue “is unwilling or unable” to carry out the prosecution.12 Yet, it is this “unwilling and unable” language that is at the root of one of the US’ primary objections to the Rome Statute. In particular, the “malleable” nature of the “unwilling and unable” language raises concerns within the US about the ICC’s “nearly unlimited authority to second-guess the prosecutorial discretion” of the US should it ultimately become a State Party to the Rome Statute.”13

Structurally, the ICC consists of four organs: The Presidency, the Office of the Prosecutor, the Registry, and the Judiciary (comprised of an Pre-Trial Division, a Trial Division, and an Appeals Division).14 Critically, the Rome Statute confers jurisdiction to the ICC over crimes committed not only by the nationals of State Parties but also to crimes committed within the territory of State Parties. This latter aspect of ICC jurisdiction is a particular objection point for the US as it creates the potential scenario for the ICC to assume jurisdiction over a national— a nonparty state—from the US for alleged criminality occurring within the territory of a party state; a scenario that is now playing itself out with the recent decision of the ICC Appeals Division to allow a continued formal investigation by the ICC Prosecutor into alleged international law violations committed by US armed forces in Afghanistan.15 Furthermore, cases can be brought before the ICC in one of three ways: a referral by a State Party to the Prosecutor, a referral by the United Nations Security Council to the Prosecutor, or via an investigation initiated sua sponte by the Prosecutor (with authorization from the Pre-Trial Chamber).16 Similar to its concerns about the ICC’s discretion to second-guess US prosecutorial discretion with respect to its own nationals, the US has deep concerns about the ICC Prosecutor’s significant authority under the Rome Statute to initiate investigations on her own initiative, which might “embroil the court in controversy, political decision-making, and confusion.”17

Yet even acknowledging the legitimacy of US concerns regarding the jurisdiction and structure of the ICC, the simple fact remains that the US is better served by reengaging with the ICC as a bona fide signatory, rather than continuing with the alternative approach of modus vivendi that characterized the period between 2002 and 2018,18 or the more hostile approach that is clearly taking shape in the aftermath of the ICC Prosecutor’s efforts to continue her pursuit of a sua sponte investigation into alleged American atrocities in Afghanistan.19 As has already been noted, the US maintains a significant foreign policy interest in the creation of an effective international court of justice that promotes the rule of law. In fact, even with its outspoken and substantial objections to the ICC as constituted, the US has continued to operate behind the scenes to promote the court’s mission in those instances, like the Darfur situation, where it can do so consistent with US law.20

Best of all, the US would seemingly have nothing to lose through reengagement as a signatory; a point best illustrated by US concerns over ICC jurisdiction referenced above. Specifically, in the aftermath of the Bush Administration’s decision to unsign the Rome Statute, Congress passed the American Service-member Protection Act (ASPA), which sought to insulate service-members from potential ICC jurisdiction by, among other things, authorizing “[t]he President … to use all means necessary… to bring about the release of any [service-member]… by, or on behalf of, or at the request of the [ICC].”21 The ongoing ICC Afghanistan investigation demonstrates the ICC’s commitment to potentially exercising its broad jurisdiction against nations from nonparty States like the US, and the ASPA bluntly demonstrates the US unwillingness to stand for such an outcome. Given these realities, the US has nothing to lose through reengagement as a signatory to the ICC, where it might just be able to use its resources and influence to attempt to alter ICC jurisdiction in a manner that alleviates US concerns. In the worst-case scenario, a failure to achieve this end will do nothing more than return the ICC and the US to their current status quo.

In addition, reengagement with the ICC as a bona fide signatory allows the US to continue to promote and advance the rule of law in the international community; a cause that is foundational to the heritage of the United States. In fact, history demonstrates that the United States has always “been in the forefront of bringing war criminals to justice.”22 From its early advocacy in ensuring that Nazi war criminals were tried at Nuremburg, to its push for the UN ad-hoc trials addressing atrocities in the former Yugoslavia, Rwanda, and Sierra Leone,23 and culminating most recently with its initial but unsuccessful efforts to shape the language of the Rome Statute, the US has consistently lead the international community in advancing the argument for an effective ICC, albeit one that ensures that its interests are adequately protected from cynical international politics. As John Bellinger has noted, “The U.S.-ICC dispute cries out for a diplomatic resolution.”24 By reaffirming its signatory status, the US could announce to the world its continued commitment to the ideals of human rights, international rule of law, fairness, and justice, and utilize its vast resources to achieve these ends all while “keeping its options open and avoiding actions that would undermine the court and imperil a future US relationship with the institution.”25

Finally, a US recommitment to the ICC in the form of a reaffirmation of its signatory status would be consistent with domestic popular opinion, the trends of recent Presidential administrations, and the more democratic international community. In particular, a 2016 Chicago Council poll of 2,061 Democrats, Republicans, and Independents on Global Affairs revealed that 72 percent of these individuals were in favor of a US approach towards participation in the ICC.26 Moreover, until 2016, although the US trend within Presidential administrations has never reached a level of outright commitment to the ICC due to the structural, procedural, and jurisdiction issues previously noted, prior Administrations nevertheless recognized the ultimate necessity of an effective ICC and were, thus, generally supportive of the ICC where possible.27 Finally, a recommitment to the ICC in the form of a reaffirmation of our signatory status would be in keeping with the views of other western democratic nations who have already signed and ratified the Rome Statute including, but not limited to, all of the member nations of the European Union,28 and two of the five UN Security Council nations (United Kingdom and France).29 Thus, each of these trends supports the conclusion that US reengagement with the ICC in the form of reaffirming our signatory status is consistent with national public opinion, the majority of recent Presidential administrations, and the international consensus of democratic nations.

Unfortunately, despite the growing evidence suggesting that the best course of action would be a renewed effort to promote US foreign policy efforts through a more formalized reengagement with the ICC, it appears that the current Administration is pursuing a much more confrontational approach to the ICC in light of the ICC Prosecutor’s decision to continue her pursuit of an investigation into alleged atrocities committed in Afghanistan (which might potentially involve ICC criminal action against American service-members). In fact, with the issuance of his 11 June 2020 “Executive Order on Blocking Property of Certain Persons Associated with the [ICC],” President Trump has now declared a “national emergency” related to threat of any such investigation and imposed sanctions against individuals associated with the ICC.30 However, even in taking this executive action, President Trump also reaffirmed that “[t]he United States remains committed to accountability and the peaceful cultivation of international order.”31 Although the current trend is clearly a movement away from any meaningful engagement with the ICC, perhaps the crack in the door left in President Trump’s executive order leaves hope that the US might reconsider its current approach to the ICC and, instead, reaffirm its signatory status in the future. Clearly, the US’ superior ability to influence organizational change working closer to the inside of the ICC than the outside, its historical leadership role in promoting compliance with the laws of armed conflict and the creation of international institutions of justice, and the public support within the US for participation with the ICC, make such an approach the best course of action for America future in the global community.

LTC Austin Goodrich
LTC Austin Goodrich is a Judge Advocate in the United States Army Reserve. He is currently assigned as the Group Judge Advocate for the 652d Regional Support Group, Fort Harrison, Montana, and is a 2021 graduate of the Air War College, Maxwell AFB, Alabama. During his military career, Lieutenant Colonel Goodrich has served as a Legal Operations Detachment Team Chief, Brigade Judge Advocate, Legal Advisor, and Prosecutor. He received his juris doctor from the University of Florida, Levin College of Law and is licensed to practice law in the State of Florida and the District of Columbia.

Notes

 1 William J. Clinton, “Statement on the Rome Treaty on the International Criminal Court,” Weekly Compilation of Presidential Documents 37, no. 1, (8 January 2001); 4, https://www.govinfo.gov/.
 
 2 Clinton, “Statement on the Rome Treaty on the International Criminal Court.”
 
 3 Clinton, “Statement on the Rome Treaty on the International Criminal Court.”
 
 4 US Department of State, “International Criminal Court: Letter to UN Secretary General Kofi Annan,” John R. Bolton, 6 May 2002, https://2001-2009.state.gov/.
 
 5 “State Parties to the ICC,” ABA-ICC Project, accessed 24 September 2020, https://www.aba-icc.org/. “Q&A: The International Criminal Court and the United States,” Human Rights Watch, accessed 24 September 2020, https://www.hrw.org/; Air Force Operations and the Law, 3d ed. (Alabama: AF Judge Advocate General’s School, 2014), 36 (“The United States has withdrawn its signature from the Rome Statute”).
 
 6 US Department of State, “American Foreign Policy and the International Criminal Court,” Marc Grossman, 6 May 2002, https://2001-2009.state.gov/.
 
 7 US Department of State, “American Foreign Policy and the International Criminal Court.”
 
 8 Rome Statute of the International Criminal Court, July 17, 1998, 2, art. 3 and art. 126, https://www.icc-cpi.int/.
 
 9 “The State Parties to the Rome Statute,” International criminal Court, accessed 24 September 2020, https://asp.icc-cpi.int/; “State Parties to the ICC.”
 
 10 Ron Synovitz, “Explainer: Why Does the U.S. Have It Out For The International Criminal Court,” Radio Free Europe Radio Liberty, 11 September 2018, https://www.rferl.org/; The ICC’s jurisdiction also extends to the crime of aggression as of 1 January 2017. Air Force Operations and the Law, 37.
 
 11 Rome Statute of the International Criminal Court, art. 1, https://www.icc-cpi.int/.
 
 12 Rome Statute of the International Criminal Court, art. 17; Eric P. Schwartz, “The United States and the International Criminal Court: The Case for ‘Dexterous Multilateralism,’” Chicago Journal of International Law 4, no. 1 (April 2003): 226, https://chicagounbound.uchicago.edu/; “What is Complementarity?,” ICTJ.org, accessed 24 September 2020, https://www.ictj.org/sites/.
 
 13 Steven Voight, “The International Criminal Court’s Antagonism Toward Our Constitution, and the need for President Bush to articulate an acceptable alternative,” RenewAmerica, 9 September 2006, https://web.archive.org/.
 
 14 Rome Statute of the International Criminal Court, art. 34.
 
 15 David J. Scheffer, “The ICC’s Probe Into Atrocities in Afghanistan: What to Know,” Council on Foreign Relations, 6 March 2020, https://www.cfr.org/.
 
 16 Rome Statute of the International Criminal Court, art. 13 and art. 15.
 
 17 Hearing before the Subcommittee on International Operations of the Committee on Foreign Relations, Is a U.N. International Criminal Court in the U.S. National Interest?, 105th Cong., 2d sess., 23 July 1998, 14.
 
 18 John Bellinger, “The Trump Administration Throws Down the Gauntlet to the ICC. The Court Should Decline the Challenge,” Lawfare (blog), 10 September 2018, https://www.lawfareblog.com/.
 
 19 Donald J. Trump, Executive Order 13928, “Blocking Property of Certain Persons Associated with the International Criminal Court,” Federal Register 85, no. 115 (15 June 2020): 36139, https://www.federalregister.gov/.
 
 20 US Department of State, “The United States and the International Criminal Court: Where We’ve Been and Where We’re Going,” John Bellinger, 25 April 2008, https://2001-2009.state.gov/.
 
 21 American Service-members’ Protection Act of 2002, US Code 22 (2020), §7427. (Emphasis added).
 
 22 Jim Garamone, “U.S. Withdraws from International Criminal Court Treaty,” DOD News, US Department of Defense, 7 May 2002, https://archive.defense.gov/.
 
 23 “US and the ICC, A History of Support for International Justice,” American NGO Coalition for the International Criminal Court, Columbia University Institute for the Study of Human Rights, https://www.amicc.org/.
 
 24 John Bellinger, “The Trump Administration Throws Down the Gauntlet to the ICC. The Court Should Decline the Challenge.”
 
 25 Eric P. Schwartz, “The United States and the International Criminal Court: The Case for ‘Dexterous Multilateralism,’” 235.
 
 26 Dina Smeltz et al., “America in the Age of Uncertainty- American Public Opinion and US Foreign Policy,” 31, (2016), The Chicago Council on Global Affairs, https://www.thechicagocouncil.org/.
 
 27 “US and the ICC, A History of Support for International Justice.”
 
 28 The European Union, Council Decision 2011/168/CFSP of 21 March 2011 on the International Criminal Court and repealing Common Position 2003/444/CFSP, Official Journal of the European Union, 22 March 2011. https://eur-lex.europa.eu/.
 
 29 “State Parties to the ICC.”
 
 30 Donald J. Trump, Executive Order 13928, “Blocking Property of Certain Persons Associated with the International Criminal Court.”
 
 31 Trump, Executive Order 13928, “Blocking Property of Certain Persons Associated with the International Criminal Court.”

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