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Updates on the United States
31 Dec 2005
The US government is actively seeking bilateral agreements with as many countries as possible, evoking Article 98 of the Rome Statute, in order to exempt US officials from prosecution by the ICC. The Bush administration is reportedly threatening economic sanctions such as the termination of military aid if countries do not comply with US demands.
As of 21 December 2004, the United States State Department reported over 90 BIAs. Nevertheless, roughly two-thirds of the States Parties to the ICC still have not signed BIAs, and 45 states have publicly refused to sign these agreements on the basis of their obligations under international law and the Rome Statute and their commitment to ending impunity.
On 8 December 2004, the US made an even stronger statement against the ICC when the US Congres adopted an amendment (known as the “Nethercutt Amendment”) to the Foreign Operations Appropriation Bill. This amendment provides that US allies that support the ICC could lose additional assistance under the Economic Support Fund, unless they have signed a BIA. While the President has the authority to waive the provisions of the Amendment, it poses the threat of US financial penalties against several States Parties to the ICC that receive these funds and have not signed BIAs with the US.
On 19 May 2004, the US introduced Resolution 1487 for renewal without modifying the text and requested a vote within 48 hours. Facing limited support for the renewal and in an attempt to garner the necessary support, the US proposed a compromise text on 22 June 2004, whereby the resolution would be extended for a final 12 month period.
On 23 June 2004, during informal discussions, it became clear that the compromise text was still not acceptable to most Security Council members. The US decided to withdraw the resolution, announcing to the press: “The United States has decided not to proceed with further consideration and action on the draft at this time to avoid a prolonged and divisive debate.” Following the US announcement, UN Secretary-General Kofi Annan issued a statement expressing his belief that “the decision by the United States not to pursue a resolution on this matter will help maintain the unity of the Security Council at a time when it faces difficult challenges.”
The American Servicemembers' Protection Act (ASPA) deadline, which coincided with the one year anniversary of the entry into force of the Rome Statute of the ICC on 1 July 2003, resulted in the loss of US military assistance to 35 ICC States Parties, in a combined total withdrawal of $46 million in military assistance. Major programs affected by cuts in US military assistance are International Military Education and Training (IMET), Foreign Military Assistance (FMF), and funding provided under the Arms Export Control Act. Countries which had previously denounced the BIAs as unnecessary entered into an immunity agreement under threat of loss of significant financial aid.
On 2 August 2002, President George W. Bush signed the supplemental appropriations bill, making the American Servicemembers' Protection Act (ASPA) binding US national law. This act includes a provision that authorizes the use of military force to free any citizen of the US or ally country being held by the Court in The Hague. In addition, the law provides for the withdrawal of U.S. military assistance from countries ratifying the ICC treaty, and restricts U.S. participation in United Nations peacekeeping unless the U.S. obtains immunity from prosecution. There is a clause, however, that allows the President to waive these provisions on basis of "national interest."
On 12 June 2003, at a public meeting of the Security Council, statements were made on behalf of over 70 UN member states that voiced their support for the ICC, and their opposition to the automatic renewal of Resolution 1422 as proposed by the US. At the time of the Security Council vote on Resolution 1422, three Council members abstained: France, Germany and Syria. The remaining votes were sufficient to renew the Resolution, which was adopted for an additional 12 months as Resolution 1487.
On 12 July 2002, after on-going debates in the Security Council and a range of proposed resolutions and amendments, the Security Council unanimously voted on a resolution granting peacekeepers from non-State Parties a one-year immunity from prosecution by the ICC. Previously, on 30 June 2002, the United States used its veto in the Security Council to deny the extension of the Bosnia peacekeeping operation unless US peacekeepers were exempt from the Court.
On 6 June 2002, the Senate passed a version of the American Servicemembers' Protection Act as an amendment to the Supplemental Appropriations bill. However, the amendment's sponsor, Senator John Warner, made clear in his comments that the Act was carefully drafted to permit cooperation with the ICC and the bill includes broad Presidential waivers. The Senate also included, by unanimous consent, a provision offered by Senator Christopher Dodd that explicitly permits the United States to render assistance to international efforts to bring to justice foreign nationals accused of genocide, war crimes or crimes against humanity.
In mid-May 2002, when the Security Council was considering a resolution on a peacekeeping operation in East Timor, the Bush administration sought assurances from the United Nations that all peacekeepers would be shielded from prosecution by an international tribunal. While this was unsuccesful, similar attempts were made when the Bosnia peacekeeping mission was up for extension by the UN Security Council on 1 July 2002.
In addition, the Bush administration has tried to exempt former US ambassador to the UN Richard Holbrooke from testifying before an open session of the International Criminal Tribunal for the former Yugoslavia in the trial of Slobodan Milosevic. Sources report that the Bush administration is wary of setting any precedent of senior US officials testifying before international courts, particularly with regard to the International Criminal Court.
On 6 May 2002, in a letter from John Bolton sent to UN Secretary General Kofi Annan, the Bush adminstration formally declared its intention not to ratify the Rome Statute, and renounced any legal obligations arising from its signature of the treaty. A UN spokesman said, "the effect of the notification is a matter for parties to the Statute to decide."
In March 2002, the US Ambassador-at-large for War Crimes, Pierre Prosper, testified before the House International Relations Committee, criticizing the professionalism and effectiveness of international criminal tribunals and calling for an end to the war crimes tribunals in The Hague and Arusha by 2008.
On 20 December 2001, the United States House and Senate agreed in conference committee to reject the Senate's American Servicemembers' Protection Act (ASPA), a bill introduced by Senator Jesse Helms as an amendment to the Defense Department Appropriations Bill for 2002. This anti-ICC legislation had passed the Senate on 7 December 2001 by a vote of 78 to 21, after an alternative amendment by Senator Chris Dodd failed by 48 to 51. Instead, the Congress passed the House version (Henry Hyde's amendment), a weaker piece of legislation intended to undermine U.S. cooperation with the future ICC by barring use of Defense Department funds for any related activities.
In a parallel effort to restrict cooperation with the Court, on 28 November 2001, President Bush signed into law H.R. 2500, the Departments of Commerce, Justice, State, the Judiciary, and Related Agencies Appropriations Act. This legislation contains an amendment, Section 630 proposed by Senator Larry Craig (the "Craig Amendment"), that prohibits the use of appropriated funds for cooperation with, or assistance or other support to, the International Criminal Court or its Preparatory Commission. However, the provision restricting the use of funds for the ICC or the Preparatory Commission applies solely to a particular allocation of funds, approved for a particular fiscal year. It must be adopted again next year to continue to have a further effect.
Upon signing, President Bush issued a signing statement which contained the following paragraphs on Section 630 (the Craig Amendment) and on other sections of the act: "While section 630 clearly reflects that the Congress agrees with my Administration that it is not in the interests of the United States to become a party to the ICC treaty, I must note that this provision must be applied consistent with my constitutional authority in the area of foreign affairs, which, among other things, will enable me to take actions to protect U.S. nationals from the purported jurisdiction of the treaty. In addition, several other provisions of the Act unconstitutionally constrain my authority regarding the conduct of diplomacy and my authority as Commander in Chief. I will apply these provisions consistent with my constitutional responsibilities."
The Craig Amendment to the Commerce, Justice, State and the Judiciary Appropriations Bill was passed on 10 September 2001 by the Senate. The joint conference committee of the U.S. Congress recommended this amendment to the Commerce, Justice, State and the Judiciary Appropriations bill on 8 November 2001.
On 26 September 2001, an amended version of the American Servicemembers' Protection Act (ASPA) was reintroduced to the Senate by Jesse Helms as an amendment to the Department of Defence Authorization bill. On 2 October 2001, a "cloture" motion succeeded in closing the debate on the amendment.
On 8 May 2001, House Representative Tom DeLay submitted the ASPA as an amendment to the Foreign Relations Authorization Act. The following day, Senator Jesse Helms introduced an identical version as a free-standing bill in the Senate. Both versions of the bill are similar to the bill introduced in 2000. The debate and vote occurred on the House floor on 10 May 2001 and the amendment passed in the House by a vote of 282-137.
To provide an alternative to the anti-ICC ASPA, ICC advocates within Congress introduced "The American Citizens' Protection and War Criminals Prosecution Act of 2001" in both Houses of Congress on 1 August 2001. This contained positive provisions on the ICC.
A small, low level US delegation attended only the debates on the crime of aggression at the seventh session of the PrepCom (March 2001). It gave as its reason for absence that previous efforts to satisfy US concerns in UN negotiations on the ICC had been futile. Nevertheless, at the eighth session (24 September - 5 October 2001), the delegation was larger, included higher level officials, and followed both the crime of aggression and discussions on the Court's financing.
The Clinton administration also had certain specific concerns regarding the Rome Statute. The first issue, concerning the war crime of the transfer of an occupying power's population into a territory it occupies (Article 8, Sect. 2, paragraph (a), sub paragraph (xiii)), was largely resolved. Language agreed to in the third Preparatory Commission and adopted at the fifth session makes it clear that this provision is in accordance with the current state of international law on this crime. Several other states shared concern over this issue with the United States.
The second issue concerned the possibility that Article 12, Section 3 (acceptance of jurisdiction by non-state parties) could permit a non-state party to refer single crimes, rather than an entire situation, to the Court. It was agreed that this could permit a leader implicated in some of a series of war crimes to have the Court charge other parties involved but not himself/herself. The Preparatory Commission agreed that a state not party to the Statute must accept the entire jurisdiction of the Court.
The fundamental objections of the United States to the Rome Statute were therefore reduced to a single key concern. The United States wanted its military and political officials and personnel to be exempt from the jurisdiction of the Court until the United States has ratified the treaty. Attempts to obtain such an exemption were a priority for the previous administration at the Preparatory Commission for the ICC; nevertheless, former President Bill Clinton signed the Statute just before the 31 December 2000 deadline. Upon signing, former President Clinton said the treaty was "signficantly flawed", by which he was referring to this ongoing concern about the Court's jurisdiction. He recommended to his successor that the treaty not be ratified by the Senate and stated that the U.S. concern could best be addressed from inside the process (ie. through participation in the Preparatory Commission).