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HUMAN RIGHTS QUARTERLY

Human Rights Quarterly28 (2006) 301331 2006 by The Johns Hopkins University Press

The Impact of US Policy toward theInternational Criminal Court on thePrevention of Genocide, War Crimes,and Crimes Against Humanity

Robert C. Johansen*

ABSTRACT

The United States has undermined the effectiveness of the InternationalCriminal Court by refusing to join or support the Court; by withholding supportfor UN peacekeeping unless US citizens are exempted from internationalenforcement arising out of such operations; by pressing other countries tosign treaties exempting US citizens from Court proceedings; by cutting USforeign assistance to selected countries unless they sign immunity agree-ments with Washington; and by holding victims of war crimes and crimesagainst humanity hostage to obtaining exemptions for US citizens. TheseUS policies make it more difficult to enforce the laws prohibiting genocide,

war crimes, and crimes against humanity.

I. Examining the Impact of US Policies on the InternationalCriminal Court ............................................................................. 302A. Promising not to Undermine the Court .................................... 304B. Exempting UN Peacekeepers from the Courts Jurisdiction ...... 305C. Pressing for Bilateral Immunity Agreements to exempt US

citizens .................................................................................... 311

* Robert C. Johansen is Professor of Political Science at the University of Notre Dame and Se-nior Fellow at the Kroc Institute for International Peace Studies. He is author ofThe NationalInterest and the Human Interest: An Analysis of U.S. Foreign Policy (Princeton UniversityPress) and numerous scholarly articles. Formerly Director of Research and then President of

the World Policy Institute, he also has held visiting appointments at Princeton and Harvard.His current research focuses on efforts to increase compliance with the prohibitions of warcrimes, genocide, crimes against humanity, and crimes against the peace.

Dr. Johansen wishes to thank Xiaomao Min and Mari Ishibashi for research assistance,as well as Richard Falk and Gerard Powers for their comments on an earlier draft of thismanuscript.


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Vol. 28302 HUMAN RIGHTS QUARTERLY

D. Punishing States Unwilling to Grant US Immunity .................. 313

E. Delaying Security Council Referral of Crimes to the Court ...... 320II. Evaluating the Impact of US Policy ............................................... 323A. Undermining the Enforcement of Humanitarian and Human

Rights Law ............................................................................... 323B. Enhancing International Enforcement of Humanitarian and

Human Rights Law .................................................................. 328C. Prospect ................................................................................... 330

I. EXAMINING THE IMPACT OF US POLICIES ON THEINTERNATIONAL CRIMINAL COURT

Because key members of the new Bush administration arriving in Washington

in 2001 and Republican leaders of Congress had already made clear theirskepticism about the worlds first permanent International Criminal Court(ICC, the Court), no one was surprised when the administration announced,on 6 May 2002, that it would unsign the treaty to establish the Court.However, very few could have known then the radical diplomatic strategythat US officials would eventually embrace toward the Court, the intensitywith which they would pursue it, and the sweeping implementation effortsthat would shape US relations with most countries of the world, with theUnited Nations and its peacekeeping1 operations, and with those receiv-ing US foreign military assistance and development aid. Nor could mostobservers have foreseen how US policies would undermine the ability ofthe international community to enforce laws against genocide, war crimes,and crimes against humanity. What are the real intentions of US officials in

their strategy toward the Court? What impact do US policies have on theenforcement of international laws to prevent genocide, war crimes, andcrimes against humanity? This article answers these questions by examiningthe nature and consequences of the four-pronged US diplomatic strategytoward the International Criminal Court.2

1. Peacekeepingin this article refers to both traditional UN peacekeeping and UN enforce-ment operations, whether authorized, respectively, under a Chapter VI or a Chapter VIImandate.

2. For analysis of the reasons for US opposition to the court, see Jamie Mayerfeld, WhoShall Be Judge?: The United States, the International Criminal Court, and the GlobalEnforcement of Human Rights, 25 HUM. RTS. Q. 93 (2003);JENNIFER ELSEA, CONGRESSIONAL

RESEARCH SERVICE, REPORTFOR CONGRESS: U.S. POLICY REGARDINGTHE INTERNATIONAL CRIMINAL COURT(2002), available at http://fpc.state.gov/documents/organization/13389.pdf; David P.Forsythe, The United States and International Criminal Justice, 24 HUM. RTS. Q. 974(2002); Marc Weller, Undoing the Global Constitution: UN Security Council Action onthe International Criminal Court, 78 INTL AFF. 693 (2002).


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2006 Impact of US Policy toward the International Criminal Court 303

This analysis explores the impact of US policies on international law

enforcement, regardless of whether US actions might be considered legal orillegal. Clearly, many US actions against the Court are legal, even though theyundermine the Court. Other US proposals and actions could be consideredillegal. Both kinds of actions, of course, might negatively affect the abilityof the international community to enforce norms against criminal conduct.In accord with international law governing treaties, the United States, as anon-party to the Rome Statute, which established the Court, is not boundby the provisions of the treaty unless such provisions incorporate custom-ary international law or have the status ofjus cogensnorms. Much of thesubstantive law that the ICC enforces doeshave such a foundation outsidethe Rome Statute or in other treaties that the United States has ratified andthat do bind US citizens. These treaties include, for example, the GenevaConventions of 19493 and Protocols of 19774 and the Convention on the

Prevention and Punishment of the Crime of Genocide;5

they help to definewar crimes, genocide, and crimes against humanity. As a non-party to theRome Statute, the United States may not be required to submit its nationalsto ICC enforcement jurisdiction; but as a party to other treaties and a subjectof customary international law, its citizens are obligated to obey the law.

If the US government uses coercive means to induce parties to theRome Statute to violate its provisions, this would be regarded as a viola-tion of international law, as well as an extreme expression of Washingtonshostility toward international law, which goes well beyond its decision notto take part in the Court. In short, a failure to join the ICC and to authorizeit to enforce international law on US nationals would be considered legal

3. See generally Geneva Convention (I) for the Amelioration of the Condition of theWounded and Sick in Armed Forces in the Field, 12 Aug. 1949, 6 U.S.T. 3114, 75U.N.T.S. 31, (entered into force21 Oct. 1950) (entered into force for U.S. 2 Feb. 1956);Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick andShipwrecked Members of Armed Forces at Sea, 12 Aug. 1949, 6 U.S.T. 3217, 75 U.N.T.S.85 (entered into force21 Oct. 1950) (entered into force for U.S. 2 Feb. 1956); GenevaConvention (III) Relative to the Treatment of Prisoners of War, 12 Aug. 1949, 6 U.S.T.3316, 75 U.N.T.S. 135 (entered into force 21 Oct. 1950) (entered into force for U.S.2 Feb. 1956); Geneva Convention (IV) Relative to the Protection of Civilian Persons inTime of War, 12 Aug. 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (entered into force21 Oct.1950) (entered into force for U.S. 2 Feb. 1956).

4. See generallyProtocol (I) Additional to the Geneva Conventions of 12 Aug. 1949, andRelating to the Protection of Victims of International Armed Conflicts (Protocol I), 8

June 1977, 1125 U.N.T.S. 3 (entered into force7 Dec. 1978), reprinted in 16 I.L.M.1391 (1977); Protocol (II) Additional to the Geneva Conventions of 12 Aug. 1949, andRelating to the Protection of Victims of Non-International Armed Conflicts (Protocol II),

8 June 1977, 1125 U.N.T.S. 609 (entered into force7 Dec. 1978), reprinted in 16 I.L.M.1442 (1977).5. See generallyConvention on the Prevention and Punishment of the Crime of Genocide,

adopted9 Dec. 1948, 78 U.N.T.S. 277 (entered into force12 Jan. 1951) (entered intoforce for U.S. 23 Feb. 1989).


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(even if politically unwise). But efforts to exempt US nationals from obeying

the law or to coerce other nations to violate their treaty obligations wouldnot be legal.

A. Promising not to Undermine the Court

The Bush administrations policies toward the Court began with promises notto undermine it. When the US Ambassador-at-Large for War Crimes Issues,Pierre-Richard Prosper, announced that the United States would withdraw itssignature from the Rome Statute, he promised that the United States was notgoing to war with the Court.6 Marc Grossman, Under Secretary of State forPolitical Affairs, promised that, despite disagreements with the Rome Statute,the United States respects the decision of those nations who have chosen

to join the ICC. He declared that those countries in turn must respect ourdecision not to join the ICC. Despite genuine differences, we must worktogether to promote real justice.7 Assistant Secretary of State Bloomfieldpledged that the U.S. does not seek to undermine the ICC, and asked inreturn that our decision not to become a party be similarly respected.8 Atmany times and in many places, the United States promised that it wouldnot take any action to undermine the ICC.9

But immediately after promising not to work against the Court, the Bushadministration and Congress made law and developed policies that not onlyprevented US cooperation with the Court but also aggressively underminedthe Court and aimed to destroy its legitimacy and effectiveness.10 The Bushadministration moved quickly to discourage other states from ratifying the

6. Human Rights Watch (HRW), U.S. Proposals to Undermine the International CriminalCourt Through a U.N. Security Council Resolution (25 June 2002), available atwww.hrw.org/campaigns/icc/usproposal.htm [hereinafter HRW, U.S. Proposals to Underminethe ICC]. Senator Christopher Dodd said of the unsigning, It is outrageous that theUnited States has now put itself in a position of joining only a handful of rogue nationsthat are frightened to death of the International Criminal Court as we enter the 21stcentury. Senator Christopher Dodd, Speech on the ICC on the Floor of the Senate (13May 2002), available atwww.globalsolutions.org/programs/law_justice/icc/statements/Dodd_May_02.html.

7. Marc Grossman, Remarks to the Center for Strategic and International Studies (6 May2002), available atwww.state.gov/p/9949pf.htm.

8. Lincoln P. Bloomfield, Jr., The U.S. Government and the International Criminal Court,Remarks to the Parliamentarians for Global Action, Consultative Assembly of Parliamen-tarians for the International Criminal Court and the Rule of Law, United Nations, NewYork (12 Sept. 2003), available atwww.state.gov/t/pm/rls/rm/24137.htm.

9. ELSEA, supra note 2, at 1, citingGrossman, supra note 7.10. In the assessment of one human rights observer, US actions reflect a multi-prongedattack on the Court and its supporters. US Launches Global Campaign for Impunity,INTL CRIM. CT. MON., Sept. 2002, available atwww.iccnow.org./publications/monitor/22/Monitor22.200209.english.pdf [hereinafter US Launches Global Campaign].


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Rome Statute, which would establish the Court after 60 ratifications had

been received.11

It asked other non-parties to help the United States preventthe Court from apprehending some persons who might be indicted by theCourt. It pressed states that became parties to the Rome Statute not to fulfillsome of their legal obligations under the treaty. The US Congress asked USofficials to remove, through military force if necessary, US nationals and thenationals of other countries that collaborated with the United States fromdetention if they were being transferred to the ICC or held in custody by theCourt in the Hague or by other states pending investigations and trials.12

In addition to unsigning the treaty, refusing to cooperate with theCourt, and resisting efforts by those who sought to nurture its well-being,the Bush administration and the Republican-controlled Congress adopteda four-pronged strategy: (1) to hold UN peacekeeping and UN authorizedenforcement operations hostage to the US demand that all US citizens be

exempted from any Court effort to enforce international humanitarian lawduring such operations; (2) to press all countries throughout the world tosign bilateral treaties with the United States to exempt all US citizens andother nationals employed by it from the ICCs enforcement of internationalhumanitarian and human rights law; (3) to withdraw US security assistanceand, later on, humanitarian development aid from selected countries thathave become parties to the Court, unlessthey agree to sign bilateral agree-ments with the United States to exempt US nationals from the reach ofthe ICC; and (4) to hold victims of rape, genocide, war crimes, and othercrimes against humanity hostage to US insistence on exempting the UnitedStates from international law enforcement on such crimes. This discussionproceeds by examining, in turn, the four components of US strategy andthen analyzing the consequences of US policies.

B. Exempting UN Peacekeepers from the Courts Jurisdiction

Even before the Rome Statute came into force on 1 July 2002, the UnitedStates sought, through the United Nations Security Council, broad andcomplete immunity from the Court for US nationals engaged in internationalpeacekeeping and enforcement. In May, the United States tried to exemptUN peacekeepers from the Courts jurisdiction and from legal responsibility

11. Rome Statute of the International Criminal Court, adopted17 July 1998, 2187 U.N.T.S.90, art. 126(1), U.N. Doc. A/CONF.183/9 (1998), reprinted in 37 I.L.M. 999 (1998)(entered into force1 July 2002) [hereinafter Rome Statute].

12. SeeAmerican Servicemembers Protection Act of 2002, 22 U.S.C. 7421 (2006) [herein-after American Servicemembers Protection Act]. See alsoELSEA, supra note 2, at 811.


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for respecting human rights during UN operations in East Timor.13 Because

other states believed the conduct of UN peacekeepers should be held to atleast the same standards and international enforcement procedures as thosethat are appropriate for non-UN soldiers, this US effort did not succeed. USofficials next applied more pressure on the Security Council when it metin June, this time to renew the mandate for peacekeeping forces in Bosnia-Herzegovina. The Bush administration pressed to exempt peacekeepers ofall nationalities, in all UN-mandated and UN-authorized operations, fromthe jurisdiction of the ICC. The possible instances of peacekeeping miscon-duct that Washington did not want the ICC to investigate were not minormisdeeds, of course, but the crimes of genocide, war crimes, and crimesagainst humanity.

To wield more leverage than it had in the East Timor debate, the UnitedStates in June 2002 vetoed the UN resolution to extend the peacekeeping

mission in Bosnia because the resolution failed to guarantee US participants(and others) immunity from the Court. The United States then threatenedto veto all future UN peacekeeping missions, which would have wreakedhavoc in many conflicts, unless US demands were met. Under enormouspressure, the Security Council reluctantly agreed not to prosecute for oneyear any participants in UN peacekeeping missions, or sub-contracted opera-tions that it might authorize, from countries that had not ratified the Courtsstatute. The Councils concession did not enable the Bush administrationto fulfill its original goal of permanent or more sweeping immunity, but itopened the door to annual extensions of immunity for one year at a time.It also demonstrated that the Security Council would bend to US will andwould play a role in making UN adjustments to facilitate US participationin multilateral peacekeeping and enforcement operations in the future.14

Worldwide reactions to Washingtons request were deeply negative.During various UN debates in 2002, more than 100 UN members spokeagainst the US insistence upon its own immunity, with many claiming thatthe US-sponsored resolutions undermined international law,15 primarily forthree reasons: First, the United States was asking the Security Council toundertake a controversial step by amending a widely endorsed, multilateraltreaty that established an international court to enforce international criminallaw. Second, the United States was grossly distorting the meaning of Article

13. HRW, U.S. Proposals to Undermine the ICC, supra note 6.14. ELSEA, supra note 2, at i.15. Amnesty International (AI), Public Statement, International Criminal Court: Security Coun-

cil Renewal of Unlawful Resolution 1487 Providing Impunity for Peace-Keepers Would

Be a Further Set-Back for International Justice (20 May 2004), available atwww.iccnow.org/documents/declarationsresolutions/unbodies/AIPublicStatementRes1487_20May04.pdf [hereinafter AI, Security Council Renewal of Unlawful Resolution 1487]. AmnestyInternational said that legal experts have now overwhelmingly concluded that Resolu-tion 1422 was contrary to the UN Charter and other international law.


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16 of the Rome Statute. It allowed the Council to defer a specific Court

proceeding for twelve months, but clearly it was not intended to exemptan entire class of people from a possible future investigation, without theCouncil even having identified a threat to the peace to warrant a deferral.Third, US proposals contradicted Article 27 of the Rome Statute, whichestablished the irrelevance of official capacity for any who might comeunder ICC jurisdiction.16

Moreover, the United States had originally asked the Security Councilto agree that personnel from contributing countries in peacekeeping opera-tions would have immunity within the territory of all UN member states(except from the state of their own nationality), not simply the state inwhich the UN operation was deployed. In addition, Washington wantedthe immunity to continue indefinitely after the end of their participation inthe peacekeeping operation.17 To ask for immunity for UN peacekeeping

forces for criminal acts in the state hosting a UN operation was an attackon the Courts jurisdiction and legitimacy as well as a denigration of UNpeacekeeping forces, suggesting that they were unwilling to be subject toCourt jurisdiction over their conduct regarding heinous crimes. In askingfor immunity in all UN member states, the United States proposed violatinga fundamental obligation of all parties to the Rome Statute to turn over anaccused person to the Court if his or her case was not being appropriatelyadjudicated elsewhere.

The Court statute specifies that if crimes are committed on the territoryof a party to the treaty, the Court could have jurisdiction over the accusedregardless of his or her nationalityunless a national judicial proceedingoccurred and the principle of complementarity kept the case out of the ICC.18This principle specifies that the ICC is a court of last resort, not first resort. It

cannot place any person on trial unless the relevant national judicial institu-tions are unable or unwilling to function with fair investigations and, ifwarranted, trials.19 In any case, every party to the statute has a legal obligationto extradite the accused to the Court if national complementarity or otherextradition treaties do not apply.20 US proposals would have required statesto ignore their obligation to turn over the accused to the Court.

Careful scrutiny shows that US proposals were designed not merely toexempt US citizens but also to mount an assault on the Court and on theability of the international community to bring people who might be ac-cused of serious crimes under investigation and trial by the ICC. The UnitedStates had not ratified the treaty, yet it sought to nullify treaty obligations

16. Rome Statute, supra note 11, art. 2717. HRW, U.S. Proposals to Undermine the ICC, supra note 6.18. Rome Statute, supra note 11, art. 17.19. Id. art. 17(1).20. Id. arts. 89(1), 90(7).


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for the states that had ratified it. Hostile intent is further suggested by the

US expectation that passage of the Security Council resolution would alsohave led states either not to pass or to rescind national legislation to maketheir national laws compatible with treaty obligations of the Courts statute.US actions aimed at unraveling other countries domestic legal fabric thatwas intended to reduce impunity for criminal conduct.

If the Security Council had approved all these US demands, the Coun-cil would have given the self-defeating impression that UN peacekeepersneed not ensure that their conduct is exemplary because they were outsidethe realm of international legal enforcement. At the invitation of the Bushadministration, the Security Council would itself have contradicted Article27 of the treaty, which prohibits any person from claiming special immunityfrom Court jurisdiction.21

Although the Security Council did not approve this sweeping attack on

the Court, it did reluctantly pass Resolution 142222

to give a one-year im-munity from investigation or prosecution to nationals of states that had notratified the Courts statute if such persons served in UN peace operations.

John D. Negroponte, then US Ambassador to the United Nations, heralded itspassage as the first step in a multifaceted approach to gain immunity forall US citizens from the reach of the Court.23 The following year, in Resolu-tion 1487 of 12 June 2003, the Security Council renewed, for another year,an exemption from the Courts jurisdiction for any UN peacekeepers if theywere nationals of states that have not ratified the Court statute.24 DespiteCouncil approval under US pressure, UN members were virtually unani-mous in opposing the renewal of the US exemption, because they believedit subordinated the serious purposes of peacekeeping to US pettiness aboutcreating for itself an exception to norms that other countries accepted.25

France, Germany, and Syria abstained from the Council voterather thanvoting noto enable the resolution to pass and end the Security Councildeadlock with the United States.26

In 2004, the United States again sought to renew an exemption for allUS forces taking part in UN missions or in missions authorized by the UN,such as the coalition forces in Iraq after 30 June 2004.27 The US pressed

21. HRW, U.S. Proposals to Undermine the ICC, supra note 6.22. S.C. Res. 1422, U.N. SCOR, 4572d mtg., U.N. Doc. S/RES/1422 (12 July 2002).23. US Launches Global Campaign, supra note 10.24 S.C. Res. 1487, U.N. SCOR, 4772d mtg., U.N. Doc. S/RES/1487 (12 June 2003).25. Press Release, Citizens for Global Solutions (CGS), U.S. Seeks Renewal of Exemption

for Peacekeepers: Introduces Security Council Resolution Granting Immunity from ICC(20 May 2004), available atwww.iccnow.org/documents/declarationsresolutions/unbod-

ies/CGS1487_20May2004.pdf.26. AI, US Threats to the International Criminal Court, available at www.web.amnesty.org/pages/icc-US_threats-eng.

27. However, because neither the United States nor Iraq joined the Court, and becausethe Court will not act on nationals from countries that prosecute crimes by their ownmilitary personnel, the Iraqi operation would not come under Courts jurisdiction.


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insistently for passage of Resolution 1487, even though by that time several

independent legal analyses concluded that Resolutions 1422 and 1487 werecontrary to the Rome Statute. . . , undermined the rule of law, violated theUN Charter, and damaged the authority of the ICC as well as the SecurityCouncil itself.28 Moreover, in response to the US exemption campaign, UNSecretary General Kofi Annan strongly cautioned Security Council membersagainst providing immunity for UN peacekeepers, saying the US requestwas of dubious judicial value.29 Moreover, given the prisoner abuse inIraq, he said, it would be unwise to press for an exemption, and it wouldbe even more unwise on the part of the Security Council to grant it.30 Torenew the exemption would discredit the Council and the United Nationsthat stands for the rule of law and the primacy of the rule of law.31 Repeatedrenewals would harm the relationship between the UN and the ICC becausethese resolutions contradicted the purpose of the Court by exempting some

people from international justice and by suggesting that the Security Coun-cil wanted to claim absolute and permanent immunity for people servingin the operations it establishes or authorises.32 In the end, the US requestfor immunity was overwhelmed by mounting evidence that US forces hadcertainly abused and probably tortured more than a few prisoners in Iraq,Afghanistan, and Guantanamo. Because US forces, until the advent of theBush administration, had enjoyed a wide reputation for excellent militarydiscipline and humane treatment of prisoners of war, most governmentswere stunned by the disclosure of Bush administration memos approvingof interrogation techniques prohibited under international law.33

Benin, Brazil, Chile, China, France, Germany, Spain, and Romania, allmembers of the Security Council at the time, refused under US pressure tomodify their opposition to the renewal resolution.34 Although China had

28. SeeAI, US Threats to the International Criminal Court, supra note 26; Human RightsFirst (HRF), In Victory for the Rule of Law, U.S. Withdraws Immunity Request (28 June2004), available atwww.iccnow.org/pressroom/membermediastatements/2004/HRFState-mentWithdrawalUNRes1487_25Jun04.pdf [hereinafter HRF, In Victory for the Rule ofLaw]; AI, Security Council Renewal of Unlawful Resolution 1487, supra note 15. Theunlawfulness of Resolution 1422 is documented at length in AI, INTERNATIONAL CRIMINALCOURT: THE UNLAWFUL ATTEMPTBYTHE SECURITY COUNCILTO GIVE US CITIZENS PERMANENT IMPUNITYFROM INTERNATIONAL JUSTICE (2003) (AI Index: IOR 40/006/2003), available at http://web.amnesty.org/library/pdf/IOR400062003ENGLISH/$File/IOR4000603.pdf.

29. Warren Hoge, Annan Rebukes U.S. for Move to Give Its Troops Immunity, N.Y. TIMES,18 June 2004, at A10.

30. Id.31. Id.32. Kofi Annan, Secretary-Generals Statement to the Security Council on the Renewal of

a Resolution Regarding the International Criminal Court and Peacekeeping (12 June2003), available athttp://www.iccnow.org/documents/statements/unbodies/KofiAnnan-142212June03.pdf.

33. HRF, In Victory for the Rule of Law, supra note 28.34. Gothom Arya, Security Council Defends Integrity of the International Criminal Court,

Asian Forum for Human Rights and Development, 24 June 2004, available atwww.


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supported similar US-sponsored resolutions in the two previous years, the

Chinese ambassador explained that to support the US resolution in 2004would seem to provide legal cover for US forces responsible for prisonerabuse, citing the US militarys misbehavior, which is a violation of inter-national and humanitarian law.35 Only Britain, Russia, Angola, and thePhilippines supported the US proposal.36 Lacking a sufficient number topass the resolution, the United States withdrew it.37

After the Council refused to renew the US exemption, the Bush admin-istration responded by withdrawing nine US soldiers from UN peacekeepingmissions in Ethiopia and Kosovo. Both were countries in which US militarypersonnel were present but the host governments had not signed bilateralimmunity agreements with the United States. Pentagon spokesman Larry DiRita said the United States would evaluate US participation in future UNoperations on a case-by-case basis in light of the risks of U.S. exposure to

prosecution by the Court.38

In the two particular cases above, it was deter-mined . . . that the risk was not appropriate to our forces. 39 That seems asurprising conclusion because neither country had joined the Court; and forthat reason, the Court would lack jurisdiction. In addition, no US personnelin these missions were facing any risk of prosecution.

When the United States at first insisted on exempting its nationals in2002, the move seemed unnecessary because there was not an expectationthat US nationals would commit crimes of the seriousness that the ICC in-vestigated. It seemed highly unlikely that US nationals would commit suchcrimes or that any individual deviations from international norms, such asthose committed by William Calley in Vietnam,40 would fail to be handled

iccnow.org/pressroom/membermediastatements/2004/FrmAsia%20Stmt%20on%20US%20Withdrawal%20of%201487.pdf.35. Colum Lynch, China May Veto Resolution on Criminal Court, WASH. POST, 29 May 2004,

at A22.36. China Wont Support U.S. on Exemption from Court, WASH. POST, 19 June 2004, at

A13.37. The effort to renew became so costly for the United States that it had to withdraw its

attempt. . . . Press Release, Asian Forum for Human Rights and Development, SecurityCouncil Defends Integrity of the International Criminal Court (24 June 2004), availableat www.iccnow.org/pressroom/membermediastatements/2004/FrmAsia%20Stmt%20on%20US%20Withdrawal%20of%201487.pdf.

38. Colum Lynch, U.S. to Pull 9 From U.N. Peacekeeping Missions, WASH. POST, 3 July 2004,at A22.

39. Id.40. Lieutenant William L. Calley, Jr., was convicted of murdering unarmed Vietnamese

civilians captured by his platoon in 1968, in My Lai, South Vietnam, during the war inVietnam. Because his crimes were investigated and adjudicated in US military judicial

processes, the principle of complementarity would prevent the ICC from taking anyaction. See United States v. William L. Calley, Jr., U.S. Court of Military Appeals, 21December 1973, inTHE LAWS OF WAR: A COMPREHENSIVE COLLECTION OF PRIMARY DOCUMENTSON INTERNATIONAL LAW GOVERNING ARMED CONFLICT 36271 (W. Michael Riesman & Chris T.Antoniou eds., 1994).


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sufficiently well in US judicial processes that the complementarity principle

would prevent any case from moving into the hands of the ICC. But as Hu-man Rights First has written, in light of recent abuses by U.S. forces . . . ,this insistence [on exemption] has taken on a more sinister meaning.41

C. Pressing for Bilateral Immunity Agreements to exempt US Citizens42

The second prong in the US strategy has been the Bush administrationsvigorous campaign to press governments around the world to sign bilateraltreaties with the United States that obligate them never to transfer to the ICCany US citizen or any citizen of other countries who the US government,including the Department of Defense and the Central Intelligence Agency,has employed. The agreements call for complete immunity for a persons

conduct, in the past as well as the present and future.43

To grant immunityto all US employees and contractors, regardless of nationality, is especiallysweeping, extreme, and pernicious. The United States could potentiallyshield anyone in the world from ICC investigation or prosecution under thisproviso by simply putting him or her on a secret US payroll. Some bilateralimmunity treaties do not even stipulate that the United States or the otherparty to the agreement is obligated to investigate charges or, if evidencewarrants, to prosecute the accused in their own national courts.44 Of course,given the limitations on the ICC by the complementarity principle, UScitizens would never go to the ICC if US judicial processes were handlingthe cases appropriatelyeven without any bilateral immunity treaty everbeing signed.

Driven by the Bush administrations opposition to the ICC, the campaign

to exempt all US citizens and non-citizen employees from ICC enforce-ment grew far beyond a simple request for bilateral immunity treaties intoa widespread effort to coerce other states into undermining the Court andinternational law enforcement. US officials flexed both diplomatic and finan-cial muscles on weaker, often vulnerable, states to force them to accept USdemands that the conduct of all US citizens and employees remain outsidethe reach of any ICC proceedings.

To implement this strategy, US diplomats fanned out across the world.Our ultimate goal, according to then-Under Secretary of State John Bolton,is to conclude Article 98 [bilateral immunity] agreements with every country

41. HRF, In Victory for the Rule of Law, supra note 28.

42. Amnesty International described these as illegal impunity agreements. AI, US Threatsto the International Criminal Court, supra note 26.43. HRW, Bilateral Immunity Agreements (20 June 2003), available athttp://hrw.org/cam-

paigns/icc/docs/bilateralagreements.pdf.44. AI, US Threats to the International Criminal Court, supra note 26.


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in the world, regardless of whether they are a signatory or Party to the ICC,

or regardless of whether they intend to be in the future.45

US officials have claimed that the agreements they seek are legal becausethey conform to the provisions of Article 98 of the statute. However, lawyersfor the European Union (EU), many other governments, and human rightsorganizations have conducted legal analyses of the intent and purposes ofArticle 98 and concluded that the US-sponsored immunity treaties violatethis article and that states that enter into such agreements are in breach oftheir obligations under international law.46 Article 98 was designed to en-able states that had already-existing status-of-forces agreements with othercountries to avoid violating those agreements with countries whose militaryforces they were hosting. It clearly could not have been intended to grantwidespread immunity to entire populations of some states.47 In addition,Article 98 certainly does not provide immunity from prosecution; it simply

does not obligate states to surrender certain persons that they have alreadyagreed not to prosecute in their country, while the Court continues to retainoversight. Article 27 of the statute states that no one will have immunityfrom the Court and expressly prohibits making distinctions on the basis ofofficial capacity.48 The US-sponsored agreements move outside the limitsof Article 98 in applying not simply to particular groups of US citizens ina particular location or on a specific mission, but in asking for blanket im-munity for all US nationals.

European Union members have refused to sign immunity treaties withthe United States on both legal and political grounds, claiming that to do sowould be a breach of the Rome Statute and undermine the ICCs prospects forupholding international law.49 A study by the European Union Commissionslegal service concluded that signatories of the ICC that also sign bilateral

agreements granting immunity to US nationals violate the Rome Statute.50

45. John R. Bolton, American Justice and the International Criminal Court, Remarks at the AmericanEnterprise Institute (3 Nov. 2003), available atwww.state.gov/t/us/rm/25818.htm.

46. See AI, US Threats to the International Criminal Court, supra note 26; AI, INTERNATIONALCRIMINAL COURT: US EFFORTS TO OBTAIN IMPUNITY FOR GENOCIDE, CRIMES AGAINST HUMANITY ANDWAR CRIMES (2002) (AI Index: IOR 40/025/2002), available athttp://web.amnesty.org/li-brary/index/engior400252002; The Human Rights Watch study concluded that the USuse of immunity agreements violates the Rome Statute. . . . States Parties . . . have alegal obligation notto sign such agreements. HRW, United States Efforts to Underminethe International Criminal Court: Article 98(2) Agreements (9 July 2002), available atwww.amicc.org/docs/HRW_Art98.pdf.

47. Geoffrey Bindman, Illegal U.S. Campaign Against International Justice, INTL HERALD TRIB.,16 July 2003.

48. HRW, The ICC and the Security Council: Resolution 1422: Legal and Policy Analysis

(2004), available at www.hrw.org/campaigns/icc/docs/1422legal.htm; US LaunchesGlobal Campaign, supra note 10. See alsoRome Statute, supra note 11, art. 27.49. German Federal Government and Chancellor, EU Seeks Common Position Towards the

U.S.A. in Relation to the International Criminal Court, BUNDESREGIERUNG, 7 Oct. 2002.50. Lisbeth Kirk, EU Legal Experts Warn Against Bilateral U.S. Pacts, EU OBSERVER, 28 Aug.

2002, available atwww.euoberserver.com.


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Legal advisers to the EU Ministry of Foreign Affairs came to the same con-

clusion. Chris Patten, the EU Commissioner for External Relations, declaredthat the ICC is the most important advance in international law since theestablishment of the UN and we are not going to allow anyone to water downour commitment to principle.51 Despite constant US diplomatic pressure,members of the EU have remained unwilling to consider offering blanketimmunity for US citizens. They point out that the United States has neverexplained, for example, why US corporate executives, journalists, and non-governmental organizational personnel require immunity.52 Presumably thecase for their immunity is even weaker than the case for military exemption.Although the Danish government has disliked being at odds with Washington,Per Stig Moller, the Danish Foreign Minister said, The message from here isthat the fundamental values of the Court must not be undermined. We willwork toward a global legal order, not towards disorder.53

In addition to violating the obligation of States Parties to the RomeStatute, the US-sponsored immunity agreements probably also violate theGenocide Convention because they could enable accused persons to evade

justice rather than ensure the prosecution of those accused of violatinginternational human rights law,54 an obligation on all States Parties to theGenocide Convention.55

Despite widespread rejection of the US legal claims, White House PressSecretary Ari Fleischer promised, There should be no misunderstanding thatthe issue of protecting U.S. persons from the International Criminal Court willbe a significant and pressing matter in our relations with every state.56

D. Punishing States Unwilling to Grant US Immunity

To press the issue with every state, the Bush administration has conducteda worldwide campaign to punish many states that respect the Courts pro-

51. Andrew Beatty, Court Row Continues to Strain EU-US Relations, EU OBSERVER, 9 July2002, available atwww.euobserver.com.

52. Judy Dempsey, US and EU Seek to Clear Air Over International Court, FINANCIAL TIMES,18 July 2003.

53. Luise Hemmer Pihl, EU Turns Down U.S. Demand for ICC Opt-Outs, EU OBSERVER, 1Sept. 2002, available atwww.euobserver.com.

54. US Launches Global Campaign, supra note 10; Bindman, supra note 47.55. The dutyto prevent genocide anywhere in the world is clearly stated in the Genocide

Convention. Convention on the Prevention and Punishment of the Crime of Genocide,

adopted9 Dec. 1948, 78 U.N.T.S. 277, art. 1 (entered into force12 Jan. 1951) (enteredinto force for U.S. 23 Feb. 1989).56. US Decision not to Harm Relations, BALTIC TIMES, 10 July 2003. Washington has withheld

military assistance from more than 20 ICC states, totaling more than $20 million the2003 fiscal year, including needy countries such as Benin, Croatia, Ecuador, and Mali.


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cedures.57 The American Servicemembers Protection Act (ASPA) provided

the basis for the US campaign against international law enforcement.58

Thislegislation, designed by former Senator Jesse Helms, prohibits military as-sistance to countries that have ratified the Rome Statute unless they havealso signed an agreement to exempt US citizens and employees from Courtprocedures. Some countries are explicitly exempted from this penalty by theASPA. The President may also waive the penalty for national security reasons.Those explicitly exempted include all NATO countries, plus Argentina, Aus-tralia, Bahrain, Egypt, Israel, Japan, Jordan, New Zealand, Philippines, TheRepublic of Korea, Taiwan, and Thailand.59 The United States threatened towithdraw military assistance from thirty-five states that had become partiesto the Court statute but had refused to sign an agreement with the UnitedStates.60 Among those initially threatened with financial penalties wereEstonia, Latvia, Lithuania, Slovakia, and Slovenia, which were in line to

join the European Union, and Bulgaria and Croatia, which seek to join theEuropean Union in 2007. Fifty-four countries have publicly announced thatthey will not sign an immunity agreement with the United States;61 fifty-sevenof 100 parties to the ICC have not signed, even though eighteen or moreof them were actually sanctioned with a reduction in military assistance byWashington for their refusals.62 Approximately 100 countries have signedbilateral agreements with Washington, including forty-two countries that aremembers of the Court.63

57. HRW, U.S. Should Stop Sanctioning Allies Over ICC: High Political Price Tag for Anti-CourtPolicy (10 Dec. 2003), available at www.hrw.org/english/docs/2003/12/10/usint6574.htm.

58. David Scheffer, former US Ambassador-at-Large for War Crimes Issues and former headof the US delegation to the International Criminal Court in the Clinton administration,wrote that the American Servicemembers Protection Act is

a deceptively-labeled bill designed to scuttle the International Criminal Court Treaty with punitivecounterpunches against other governments and measures to insulate U.S. military personnel from thecourts reach. Last year, the State, Defense and Justice Departments opposed the legislation becauseof its unconstitutional infringement on executive authority and its isolationist provisions.

David Scheffer, Defense News, Dont Forfeit the Global Criminal Court (Feb. 2001),available athttp://www.globalpolicy.org/intljustice/icc/2001/0529schef.htm.SeeAmericanServicemembers Protection Act, supra note 12.

59. Id. 7426, 7432.60. AI, US Threats to the International Criminal Court, supra note 26.61. Coalition for the International Criminal Court (CICC), Countries Opposed to Signing a US

Bilateral Immunity Agreement (BIA): US Aid Lost in FY04 & US Aid Threatened in FY05(1 Oct. 2005), available athttp://www.iccnow.org/documents/USandICC/CountriesOp-posedBIA_AidLoss_01Oct05.pdf [hereinafter CICC, Countries Opposed to Signing a USBIA].

62. CICC, Status of US Bilateral Immunity Agreements (BIAs) (8 Jan. 2006), available at

http://www.iccnow.org/documents/USandICC/2006/CICCFS_BIAstatus_08Jan06.pdf.63. CICC, Status of US Bilateral Immunity Agreements (BIAs) (16 Dec. 2005), available athttp://www.iccnow.org/pressroom/factsheets/BIAsByRegion_current.pdf. See alsoCICC,Status of US Bilateral Immunity Agreements (2004), available at http://www.iccnow.org/documents/otherissues/impunityart98/BIAsByRegion_current.pdf; Press Release,


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US pressures did not stop at cutting military aid. Pierre-Richard Prosper

warned countries seeking entry to NATO that they should sign agreementsallowing US immunity from the ICC.64 If they did not sign, US officials wouldquestion their eligibility for NATO membership. In the Balkans, US Ambas-sador Lawrence Rossin informed Croatia that it faced serious difficulties inits entry into NATO if it failed to sign an agreement, while US diplomatstold Bosnia that it would be likely to receive more economic aid in returnfor its decision to sign an immunity agreement for US citizens. 65 US UnderSecretary of Defense Douglas Feith told the Bulgarian government that itsrefusal to sign an agreement exempting US nationals would influence USofficials when they were deciding where to establish future US militarybases.66 The Bush administration also enlisted the services of members ofCongress in its diplomatic effort to ensure that US citizens would never beinvestigated or prosecuted by the ICC. A Congressional delegation led by

Henry Hyde, a Republican leader in the US House of Representatives andchair of the House International Relations Committee, for example, delivereda message to Slovenia that linked its position on the ICC with the prospectsof gaining membership in NATO.67

Latvian Foreign Ministry State Secretary Maris Riekstins complainedthat, on the one hand, the United States approached NATO candidate statessuggesting that they should sign agreements. And on the other hand, thereare the EU requirements [not to sign], and we have found ourselves . . .between a rock and a hard place.68

In pressing for US immunity, US officials seemed to contradict US supportfor prosecuting those accused of war crimes in the former Yugoslavia. TheUnited States pressed Serbia to sign an agreement committing itself never toturn US citizens over to the permanent ICC while also expecting Serbia to

turn over Serbian citizens to the ad hocInternational Criminal Tribunal forthe former Yugoslavia. As Serbian Prime Minister Zoran Zivkovic said, Wewould not be able to explain to the citizens that we have double standards

CGS, House Votes to Cut Funds to Key Allies in International Court: Over 50 CountriesSanctioned (16 July 2004), available at http://www.globalsolutions.org/press_room/press_releases/press_releases04/iccsanctions_july04.html. See also Joe Lauria, KerryOpposes Role in Tribunal, BOSTON GLOBE, 5 Oct. 2004, at A10. For an updated record ofUS penalties, see CICC, Countries Opposed to Signing a US BIA, supra note 61.

64. Julian Borger & Ian Black, America Attacked for ICC Tactics, GUARDIAN, 27 Aug. 2002,available atwww.guardian.co.uk/usa/story/0,12271,00.html.

65. HRW, Letter to Secretary Powell on US Bully Tactics Against International Criminal Court(30 June 2003), available athttp://hrw.org/press/2003/07/usa070103.htm.

66. U.S. Defence Official Links Bases Relocation to Bulgaria With Position on ICC, BBC

MONITORING INTL REPORTS & BTA WEBSITE SOFIA, 10 Dec. 2003.67. Nicholas Kralev, NATO Candidates Aim to Please U.S., Europe, WASH. TIMES, 13 Sept.2002, available atwww.nicholaskralev.com/WT-nato-series.html.

68. Latvia Not to Make Hague Court Immunity Deal with US, BALTIC NEWS SERVICE, 26 June2003.


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in sending our citizens to the Hague, and then signing an agreement that

should protect the citizens of . . . the United States.69

The United States placed Croatia in a similarly awkward position by ask-ing Croatians to exempt the United States from the same kind of enforcementthat the United States insisted that Croatians must accept. Nonetheless, ina speech in New York in September 2002, Croatian Justice Minister IngridAnticevic Marinovic said that the establishment of the ICC was the mostimportant legal achievement of the century: The international communityfinally has a permanent, universal and non-discriminative court which wouldtry the perpetrators of war crimes, crimes against humanity and genocide,irrespective of their status or nationality.70

The Bush administration moved the new state of Macedonia to signan agreement with the United States for an extraneous reason, by offeringMacedonia the first international treaty since its independence in which

the name Republic of Macedonia was used explicitly.71

EU envoy AlexisBrouhns criticized the agreement, saying that Macedonia aspires to becomean EU member country and it should therefore refrain from signing the offeredbilateral agreement with the United States exempting U.S. citizens.72 Further,he said that the EUs position was clear: Not a single member country oraspirant for EU membership should sign such an agreement.73

Waivers of punitive action were allowed in cases in which US strategicgoals override the US intention to undermine the legal integrity and theCourt.74 To sway countries that remained on the fence or that needed moretime to reach an agreement with the United States, the Bush administra-tion extended waivers of the punitive measures temporarily. For example,President Bush granted Romania a temporary extension in 2003;75 and he

69. Serbian Prime Minister To Beg U.S.A. to Help Settle Kosovo Situation , NationalTechnical Information Service, U.S. Dept. of Commerce, 19 July 2003; Honor Mahony,Balkans Caught Between Two Pressure Fronts, EU OBSERVER, 24 June 2003, available atwww.euobservor.com. In a public opinion poll in June 2003, just over 5 percent ofthe public supported the signing of an agreement. SeeBBC MONITORING INTL REPORTS, 10

June 2003; Serbia: Poll Shows Majority Siding with Old Europe, Denying U.S. ImmunityRequest, GLASJAVNOSTI (Belgrade), 9 June 2003, at 7. Many more people were opposedto US exceptionalism than to an international criminal court, despite their dislike forthe latter.

70. Croatian Justice Minister Says ICC Legal Success of the Century, BBC MONITORING INTLREPORTS & HINA NEWS AGENCY ZAGREB, 10 Sept. 2002.

71. Macedonia Politicians Laud Ratification of Agreement with USA on ICC, BBC MONITORINGINTL REPORTS, 16 Oct. 2003.

72. EU Envoy Warns Macedonia Not to Sign Immunity Agreement with U.S., BBC MONITORINGINTL REPORTS & DNEVNIK(Macedonia), 16 May 2003.

73. Id.

74. Washington Working Group on the ICC, Status of the ICC and U.S. Policy: Update forFall 2003 (11 Dec. 2003), available atwww.iccnow.org/pressroom/factsheets/FS-WICC-USPolicyFall03.pdf [hereinafter WICC, Fall 2003 Update].

75. Romanian Parliament Awaits EU-US Compromise on ICC, GENERAL NEWS SERVICE, 5 Nov.2003.


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subsequently announced that some military aid would be allowed to go to

Bulgaria, Estonia, Latvia, Lithuania, Slovakia, and Slovenia, even though allhad refused to conclude an immunity agreement with the United States.76Human rights organizations criticized the Bush administration for pe-

nalizing emerging democracies trying hard to support the rule of law afterlater removing penalties against prospective NATO members.77 Why, askedRichard Dicker of Human Rights Watch, punish states like Mali, Benin, andEcuador that urgently need support? The United States is protecting itself froma phantom threat, with a cure thats worse than the imagined illness.78

Soon after the reelection of President Bush in 2004 and expanded con-trol by Republicans of both houses of Congress, Republican officeholdersintensified their efforts to undermine the ICC by amending the 2005 foreignassistance budget with a provision nicknamed for Republican CongressmanGeorge Nethercutt of Washington statethe Nethercutt amendment.79 Going

one step further than the American Servicemembers Protection Acts penal-ties regarding military assistance, the Nethercutt amendment threatened tocut off economic developmentaid to countries that refused to sign bilateralagreements with the United States. The amendment greatly increased thesize of monetary penalties and the number of countries affected, whichrose potentially to more than fifty.80 Congress thereby helped expand theBush administrations policy of penalizing countries that abide by the RomeStatutes affirmation of the supremacy of justice and international judicialprocesses over the commission of gross violations of human rights.81

This legislation threatens to cut from targeted countries hundreds ofmillions of dollars in aid that is allocated within the US Economic SupportFund of approximately $2.5 billion. The potential punishments include

76. WICC, Fall 2003 Update, supra note 74.77. HRW, U.S. Should Stop Sanctioning, supra note 57.78. Id.79. Conference Report on H.R. 4818, Consolidated Appropriations Act, 2005 (19 Nov. 2004),

div. D, 574, available athttp://iccnow.org/documents/otherissues/nethercutt/Nethercut-tAmendment_19Nov04.pdf.

80. Press Release, CGS, U.S. Sanctions Key Allies over ICC Participation (8 Dec. 2004),available at www.iccnow.org/pressroom/membermediastatements/2004/CGS_Nether-cutt_08Dec04.pdf [hereinafter CGS, U.S. Sanctions Key Allies]. Human Rights Watchsaid that with this legislation the United States intensified its assault on international

justice. . . . Press Release, HRW, U.S.: Congress Tries to Undermine War Crimes Court(8 Dec. 2004), available atwww.iccnow.org/pressroom/membermediastatements/2004/HRW_Nethercutt_08Dec04.pdf.

81. Press Release, No Peace Without Justice, International Criminal Court: As WashingtonRetaliates, the European Union Should Reaffirm Its Support (10 Dec. 2004), available at

www.iccnow.org/documents/otherissues/impunityart98/2004/NPWJNethercutt_10DEC04.pdf. The amendment allows the president to waive the restrictions for members of NATOand major non-NATO allies; but because these waivers are not guaranteed, countriescould still be pressed by the United States to violate their obligations under the Courttreaty.


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money for economic stabilization, antiterrorism activities, peace-building,

democratization, and counter-drug initiatives.82

A detailed examination ofthe consequences of this legislation, which penalizes US friends and allies,demonstrates both the depth of hostility toward international law enforce-ment and the self-defeating implications of this legislation:

Jordan could lose about $250 million in aid for governance reforms,secular educational programs, and promotion of economic growth,even though the Jordanian government has hosted numerous meet-ings to help reconstruct and democratize Iraq and has trained much-needed Iraqi police.83

Peru could lose $8 million aimed at funding democratic reformsand programs to curtail growing of coca, drug-trafficking, and ter-rorism.84

The Caribbean states of Barbados, St. Vincent, the Grenadines, andTrinidad and Tobago could lose funds to improve procedures forimmigration and border security. Trinidad and Tobago was a leaderin creating the ICC, now has a judge on the Court, and has said thatit cannot legally do what the United States asks.85

Cyprus could lose $13.5 million to promote reconciliation amongTurkish and Greek communities.86 The former President of the CypriotSupreme Court was selected as a judge for the ICC.

Ecuador, Paraguay, Peru, Bolivia, and Venezuela are threatened withthe loss of $30 million earmarked to build democratic institutions,to promote the rule of law, to fight corruption, to encourage respect

for human rights, and to improve economic growth.87

Lebanon could lose $32 million, including money to promote eco-nomic reforms, to strengthen good governance, and to support the

82. CGS, U.S. Sanctions Key Allies, supra note 80; Press Release, HRW, U.S. Tries to GetOff the Hook on War Crimes (20 May 2004), available atwww.iccnow.org/documents/declarationsresolutions/unbodies/HRW1487_20May2004.pdf; HRW, U.S.: Congress Triesto Undermine War Crimes Court, supra note 80.

83. Press Release, HRF, U.S. Threatens to Cut Aid to Countries That Support the ICC (7Dec. 2004), available at www.iccnow.org/pressroom/membermediastatements/2004/HRF_Nethercutt_07Dec04.pdf [hereinafter HRF, U.S. Threatens to Cut Aid]; HRW, U.S.:Congress Tries to Undermine War Crimes Court, supra note 80. Jordans ambassador tothe United Nations is also the President of the ICCs Assembly of States Parties. Jordanbelieves that it cannot sign a bilateral immunity agreement with the United States withoutputting it in breach of the Rome Statute. SeeCGS, U.S. Sanctions Key Allies, supra note

80.84. HRW, U.S.: Congress Tries to Undermine War Crimes Court, supra note 80.85. CGS, U.S. Sanctions Key Allies, supra note 80.86. Id.87. Id.; HRF, U.S. Threatens to Cut Aid, supra note 83.


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four highly respected US educational institutions in Lebanon that

indirectly help to reduce future political extremism and violence.88

The congressional action threatens approximately $150 million al-located for the US Middle East Partnership Initiative, designed topromote economic and political reform in the Middle East.89

The encouragement of mutually beneficial cooperation betweenexperts from Israel and its Arab neighbors is threatened by the lossof $7 million for Middle East regional cooperation.90

South Africa, which had already forfeited $7.6 million in securityassistance because of support for the ICC, would lose millions morethat were intended for antiterrorism efforts and promotion of humanrights.91 South Africa currently has a judge on the Court.

The Africa Regional Fund is threatened with the loss of $11 milliondesigned to strengthen African countries capabilities to impede theflow of terrorist finances, to improve border and airport security, andto upgrade judicial systems in Benin, Republic of Congo, Lesotho,Mali, Namibia, Niger, South Africa, and Tanzania.92

The Safe Skies program is threatened with the loss of $5 millionaimed at improving aviation safety and security in Namibia, Mali,Tanzania, and Benin, with the goal of improving air-passenger safetyand reducing terrorism, drug-trafficking, and weapons smuggling.93

Ireland is threatened with the loss of several million dollars for theWalsh Visa Program, which brings youth from disadvantaged areas tothe United States to develop job skills, and the loss of another $8.5

million for the International Fund for Ireland, which fosters peaceand cross-community cooperation.94 Ireland has a judge on the ICCand seeks to comply with the EU conclusion that no EuropeanUnion country could legally sign a bilateral immunity agreement,as proposed by the United States, because it would put them inbreach of their legal commitments under the Court treaty.95

88. CGS, U.S. Sanctions Key Allies, supra note 80; Press Release, CGS, Economic SupportFunds in Jeopardy in FY2005 Budget (2 Dec. 2004), available atwww.iccnow.org/docu-ments/otherissues/impunityart98/2004/CGS_Nethercuttaidcuts_02Dec04.pdf [hereinafterCGS, Economic Support Funds in Jeopardy].

89. HRW, U.S.: Congress Tries to Undermine War Crimes Court, supra note 80.90. CGS, Economic Support Funds in Jeopardy, supra note 88.

91. Id.; HRW, U.S.: Congress Tries to Undermine War Crimes Court, supra note 80.92. CGS, Economic Support Funds in Jeopardy, supra note 88.93. Id.94. HRF, U.S. Threatens to Cut Aid, supra note 83.95. HRW, U.S.: Congress Tries to Undermine War Crimes Court, supra note 80.


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The Nethercutt amendment seems especially short-sighted when one

recognizes that in the countries that already have status-of-forces agree-ments with the United States, which govern US military personnel in thosecountries, the newly sought immunity agreements would hardly affect thestatus of military personnel. They would, presumably, extend immunity toUS civilian officials, other US citizens, and non-US employees; but if theyobeyed international law they should not need immunity.

E. Delaying Security Council Referral of Crimes to the Court

US reluctance in early 2005 to use the ICC to prosecute crimes committedin the Darfur region of Sudan further clarifies US priorities. To their credit,President Bush, the Department of State, and both houses of Congress had

all confirmed by 2004 that genocide was occurring in Sudan. The UnitedStates urged the international community to stop the continuing campaign ofethnic cleansing by the government of Sudan and the Janjaweed militiaacampaign costing the lives of as many as 300,000 persons, forcing two mil-lion to flee their communities, and burning thousands of homes and scoresof villages to the ground.96 After prodding by Washington and receiving theReport of the International Commission of Inquiry on Darfur,97 the SecurityCouncil passed two urgent enforcement measures: The first called for 10,000more peacekeepers on the ground in Sudan, and the second authorizedeconomic sanctions against Sudanese individuals whom the Commission hadidentified as complicit in the campaign.98 But the United States frustratedthe desire of a majority on the Security Council to take a third logical stepto refer the prosecution of the Sudanese persons accused of crimes to the

ICC in order to stop crimes and to deter future criminal conduct.Most members of the Council articulated strong reasons for authorizing

the Court to proceed without delay: First, to allow continuing impunity forthose who had engaged in systematic rape, murder, and pillage would sendthe wrong signal, suggesting that the international community would toleratecontinuing crimes despite its rhetoric against them. Second, to prosecute thepersons responsible for the most serious crimes in Darfur would contribute

96. Warren Hoge, France Asking U.N. To Refer Darfur to International Court, N. Y. TIMES, 24Mar. 2005, at A3.

97. Report of the International Commission of Inquiry on Darfur to the Secretary-General,Submitted Pursuant to Security Council Resolution 1564 of 18 September 2004, U.N.

SCOR, U.N. Doc. S/2005/06 (31 Jan. 2005) [hereinafter Darfur Report].98. SeeS.C. Res. 1590, U.N. SCOR, 5151st mtg., U.N. Doc. S/RES/1590 (25 Mar. 2005);S.C. Res. 1591, U.N. SCOR, 5153d mtg., U.N. Doc. S/RES/1591 (29 Mar. 2005). SeealsoWarren Hoge, 10,000 Peacekeepers to be Sent to Sudan, UN Council Decides,N.Y. TIMES, 25 Mar. 2005, at 8; Warren Hoge, UN Council Approves Penalties in Darfur,N.Y. TIMES, 30 Mar. 2005, at 6.


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to the restoration of peace in the region.99 Third, the ICC already existed,

was nearby at work in three other African countries, and could more quicklyexert legal pressure against continuing crimes than any other judicial arrange-ment. Moreover, the International Commission of Inquiry said that actionmust be taken urgently because attacks on villages, killing of civilians,rape, pillaging and forced displacement have continued even during theCommissions investigations.100 Fourth, the Commission of Inquiry stronglyrecommended that the Security Council immediately refer the situation ofDarfur to the International Criminal Court.101 Finally, Security Council referralof Darfur criminal prosecutions to the ICC would not contradict or negatethe main, long-standing objection voiced by the United States about theCourtnamely, that it could initiate prosecutions without Security Council(and US) approval. In this particular case, the Security Council would be theauthorizing agent for ICC investigations, because Sudan was not a party to

the Court, and the Court had no jurisdiction there, absent an explicit Councilrequest. Referral would not lead to an ICC out of control, so to speak, be-cause the Council would authorize only a single Court proceeding. It wouldnot mandate other ICC prosecutions, unless they too were authorized bythe Council, which the United States could block with its veto if it chose.A referral policy was thus consistent with the Bush administrations view ofthe ideal arrangement for international criminal proceedings because theywould be triggered by the Security Council.

By the time the Commission reported in January 2005, enough mem-bers of the Council favored referral to pass a resolution promptly. With theexception of China, the United States, and Algeria (who preferred an AfricanUnion proceeding), they saw the ICC as the logical place to investigate andprosecute Darfur crimes. With more killings being committed each day, it

was never truer that justice delayed was justice denied.But the United States forced delays, even though Council referral to an

ad hocinternational court was the Bush administrations preferred formulafor enforcement. Despite the Bush administrations support for trying the ac-cused, it refused to vote for referral of Darfur atrocities to the ICC because, asPierre-Richard Prosper explained, We dont want to be party to legitimizingthe ICC.102 So the United States asked other countries to support its proposalto create an ad hoctribunal rather than to employ the disliked ICC. Yet, evenif enough diplomatic arms could have been twisted to gain Security Councilsupport for an ad hoctribunal, it would still have been a poor idea. A new

99. Darfur Report, supra note 97, at 5.

100. Id. at 3.101. Id. at 5.102. Jonathan F. Fanton, U.S. Obstructs Global Justice, L.A. TIMES, 29 Mar. 2005, at B11;

Michael Kozak, On-the-Record Briefing on the Release of Supporting Human Rightsand Democracy: The U.S. Record 20042005 (28 Mar. 2005), available atwww.state.gov/g/drl/rls/spbr/43931.htm.


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tribunal would cost more than the existing ICC. It would take too long to

establish. An ad hoctribunal also would be time-limited, which meant thatthe accused, if shielded by an uncooperative Sudanese government, mightescape justice altogether by avoiding trial until a temporary tribunal wouldshut down. In contrast, because the ICC was permanent, it would be ableto prosecute at any time because there is no statute of limitations for thesehorrific crimes.

When other countries refused to create another temporary tribunal,Washington faced the grim prospect of vetoing a resolution to place thoseaccused of atrocities on trial in the Hague. This would have damaged theUS reputation further and harmed President Bushs second-term efforts tomend fences with Europe, so the United States asked for provisions in theproposed referral resolution to exempt US citizens and the citizens of othernon-parties, except Sudan, from ICC enforcement in Sudan. Because of the

US threat to veto a referral resolution, the other members of the Council hadno alternative, in the end, but to accept the US-dictated language. In returnfor getting the exemptions it wanted, the Bush administration, after numerousdelays, agreed not to veto Security Council Resolution 1593.103 Most statesexpressed grave reservations about adding US-requested provisions to theresolution. The representative from Denmark, for example, made a clarifyingstatement that the resolution does not affect the universal jurisdiction ofmember States in areas such as war crimes, torture and terrorism.104 More-over, in mentioning bilateral immunity agreements, that reference is purelyfactual; it is merely referring to the existence of such agreements. Thus thereference in no way impinges on the integrity of the Rome Statute.105

Statements such as the preceding one were designed to limit the cor-rosive impact of US-proposed language aimed at eroding international law

enforcement by national courts as well as by the ICC. Going beyond theexemptions sought in Resolution 1422106 for peacekeepers drawn from non-parties to the Rome Statute, Resolution 1593 on Darfur not only preventsICC law enforcement on citizens of non-parties, but it also attempts to givenon-parties exclusivejurisdiction over their nationals on issues arising out ofthese UN peacekeeping operations. If an accused person from a non-partytraveled to another state, including one that might be a party to the RomeStatute, the accused person would be returned to the non-party of whichhe or she was a citizen rather than face prosecution in the national courtsof states that might detain an indictee. The Security Council concessions tothe United States on Darfur seem to interfere with the ability of both par-

103. S.C. Res. 1593, U.N. SCOR, 5158th mtg., 2, U.N. Doc. S/RES/1593 (31 Mar. 2005).104. Meeting Record, U.N. SCOR, 5158th mtg., at 6, U.N. Doc. S/PV.5158 (2005), availableatwww.amicc.org/docs/SC%20Meeting%20Record%201593.pdf.

105. Id.106. SeeS.C. Res. 1422, supra note 22.


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ties and non-parties to the Rome Statute to prosecute crimes in accord with

traditional ideas about universal jurisdiction. The Council resolution seemsaimed at limiting the ability of national courts to prosecute the nationals ofother countries, even if the ICC were not involved at all.

The US abstention allowed the Council to refer the Darfur cases, includ-ing the International Commissions sealed list of fifty-one people accusedof crimes and voluminous information useful for prosecution, to the Inter-national Criminal Court. Yet, the Bush administrations priority had becomeclear: It subordinated the protection of the innocent to the exemption ofthe powerful.

Despite the delays and the concessions to US insistence on exemptingits nationals, the Security Council action represented an historic step forwardin limiting impunity. For the first time in world history, a permanent Courthas taken up cases referred to it by the Security Council, to investigate and

try officials accused of engaging in genocide, war crimes, and crimes againsthumanity, even though that government had not explicitly ratified the RomeStatute. At long last, a sustained, global legal process is at work to establishindividual accountability for mass murder and other atrocities.

II. EVALUATING THE IMPACT OF US POLICY

In evaluating the four-pronged US strategy toward the ICC, the available evi-dence shows that US hostility toward the Court and toward international judi-cial enforcement of humanitarian law on US citizens has shaped US policies.Obstructing the work of the UN Security Council with delays, ultimatums,and vetoes, both in UN peacekeeping operations and in Council referrals

of atrocities to the ICC, in order to exempt US citizens and employees frominternational enforcement, reveals an intention to use the Security Council,in which Washington has extraordinary power as a Permanent Member, forpurposes never intended in the UN Charter. The Bush administration has usedChapter VII powers, intended for the purpose of keeping international peaceand security, to try to reshape the jurisdiction and constitution of the Court,which the United States chose not to join. In its overall policy, the UnitedStates has tried to control the conduct of some states joining the Court bypunishing them for their law-abiding behavior vis--vis the Court.

A. Undermining the Enforcement of Humanitarian and Human RightsLaw

Although there is no simple relationship between US policies and the inter-national ability to enforce international humanitarian and human rights lawprohibiting egregious crimes, some general consequences seem clear:


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1. US policy makes it more difficult, in general, to enforce the rules againstgenocide, war crimes, and crimes against humanity.

By demanding exceptional treatment for themselves and others in the formof immunity from the Court, US officials are seen by much of the interna-tional community as practicing a law-evading form of exceptionalism andunilateralism. The United States operates with a double standard in expect-ing others to respect fundamental international laws, which Washingtonhas enforced on others through ad hoc tribunals created by the SecurityCouncil, through a Council referral to the ICC, and through the use of itsown superior military power, while insisting on exemptions from interna-tional accountability for US citizens.107 Double standards undermine lawenforcement and peoples willing compliance with the law, especially in adecentralized international legal system. A legal fabric torn by exemptionsfor a major actor is a weakened fabric, less able to deter future infractions

and more likely to instill hatred and outrage against the inequities imposedby the United States. US denial of reciprocal rights for others also interfereswith building a strong worldwide coalition to increase compliance withinternational norms against terrorism108 and to stop terrorist acts that arecrimes against humanity.

US refusal to cooperate with the Court and US pressures on other statesto refuse to cooperate with the Court make it harder, in general, for theCourt to achieve universal jurisdiction, to investigate and obtain evidenceof criminal conduct, and to apprehend the indicted for trials. US refusalto support the Court also makes it more difficult to enforce, uphold, andmaintain Court decisions once rendered.

2. US hostility toward the Court makes it more difficult for the UN system to

enforce international law.

When the United States holds UN peacekeeping missions hostage to obtain-ing immunity for its nationals, it obstructs or delays Security Council deci-sions, which are essential for UN maintenance of peace and security andcurtailment of gross violations of human rights. US policies undermine UNefforts to ensure the effectiveness of UN peacekeeping operations and thelawful, exemplary conduct of all peacekeepers. US positions strain relationswith allies and with all who support or benefit from UN peacekeeping andenforcement. These consequences also undermine US and global securityin some situations.

107. US insistence on exclusive jurisdiction of non-parties over their own nationals in Reso-

lution 1593 on Darfur also limits the authority ofnationalcourts, not only the authorityof the ICC, to exercise universal jurisdiction over a person indicted for internationalcrimes if he or she is a citizen of a non-party to the Rome Statute. This US initiativecould further undermine law enforcement.

108. SeeELSEA, supra note 2, at 22.


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3. By weakening the Court, the United States undermines the positive impactof international law enforcement on the deterrence of future crimes.

US resistance to unconditional Security Council referral of cases of atrociousconduct to the ICC, for example, has reduced the international communitysability to deter crimes. Although the Bush administration did not veto thereferral of Darfur atrocities, by continuing to insist on immunity for US andother non-parties nationals as a precondition for ICC enforcement, theUnited States impedes the growth of a culture of compliance with interna-tional law enforcement.109

4. In insisting on immunity for US nationals and non-US employees, the UnitedStates inadvertently helps those governments that cynically try to shield personsindicted for heinous crimes against international prosecution.

US officials shield themselves and their nationals behind a wall of national

sovereignty, a wall against international responsibility that ruthless dictatorsalso welcome. As a result of such policies, the United States inadvertentlyaids those who commit crimes.

5. Bush administration policies harm the US reputation for upholding humanrights and limit US capabilities for prosecuting, in an impartial way, those ac-cused of heinous crimes.

Loss of reputation weakens US credibility in upholding human rights law.Present policies make it difficult for the United States to add its good weighteffectively on the side of expanding the international rule of humanitarianand human rights law and concomitant promotion of justice.

The United States has surrendered high moral ground and continued tosuffer loss of reputation in new developments following the US elections in

2004. Bush policy preferences were underscored by the elevation of AlbertoGonzales to be US Attorney General, despite his effort to diminish full respectfor the Geneva conventions prohibiting war crimes, and in the nominationof John Bolton to be US Ambassador to the United Nations, despite his deni-gration of the United Nations and contempt for international enforcementof humanitarian law. First and foremost, the US goal has been to shield USofficials, other US nationals, and non-US employees of the United Statesfrom any international investigations or oversight about whether they willobey the laws prohibiting war crimes, genocide, and crimes against human-ity. US diplomatic efforts to curtail terrorism, to promote democracy, and toconduct peacebuilding will be pursued, of course; but at times these have

109. On nurturing a culture of compliance, see Robert C. Johansen, Enforcing Norms andNormalizing Enforcement for Humane Governance, in PRINCIPLED WORLD POLITICS: THECHALLENGEOF NORMATIVE INTERNATIONAL RELATIONS20929 (Paul Wapner & Edwin J. Ruiz eds.,2000).


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been subordinated to opposing the reach of the Court. Even bringing the

law efficiently to bear on murderers in Darfur was subordinated to exempt-ing officials in Washington from international enforcement of the same lawthat they expected Sudanese officials to respect. For example, US officialshave sought to evade the international transparency in their own conductthat is mandated by law and by standard Red Cross procedures regardingprisoners of war.110

Further evidence shows that US officials also were not comfortablewith constraints imposed on them by the Geneva Conventions on treat-ment of prisoners, even though these had been well-established until theBush administrations neoconservative ideology took hold in Washington.111Although a presidential declaration denying the applicability of the GenevaConventions cannot in itself eliminate legal obligations that US officials carryregarding their detainees, President Bushs legal counsel, Alberto Gonzales,

advanced the following arguments to condone what many objective observersconsider to be denials of prisoners rights. Gonzales recommended tryingto evade the constraints of the Geneva Conventions, which he describedas obsolete and quaint when fighting the war on terrorism, in a confi-dential memo to the president that became public during hearings on hisconfirmation to become Attorney-General.112

Salient for clarifying the Bush administrations value priorities, yet notwidely discussed, was Gonzales recommendation that the president shoulddeclare that the Geneva Conventions did not apply to the war against ter-rorism because a blanket presidential declaration substantially reducesthe threat of domestic criminal prosecution under the War Crimes Act ofUS officials who might be charged with violating the Geneva Conventions,perhaps for tolerating the abuse of prisoners.113 To claim at the outset of

incarcerating those who had fought against the United States that they werenot protected by the Geneva conventions would provide US officials with abetter legal defense if their own conduct came under scrutiny. Why mightthey need legal defense? Because Geneva Convention III on the Treatment ofPrisoners of War contains undefined language, explained Gonzales, which

110. For example, the United States refused to allow normal Red Cross access to ghostprisoners and some other detainees, and employed coercive interrogation. SeeJeromeBernard, CIAs Ghost Prisoners Spark Rights, Legal Concerns, AGENCE FRANCE PRESSE, 28

Jan. 2005; Torture by Proxy, N.Y. TIMES, 8 Mar. 2005, at A22; Neil A. Lewis, Red CrossFinds Detainee Abuse in Guantanamo, N.Y. TIMES, 30 Nov. 2004, at A1.

111. The Gonzales memo noted that during the Gulf War the previous Bush administrationhad explicitly honored the Geneva conventions. Memorandum from Alberto R. Gonzales

to the President, Decision Re Application of the Geneva Convention on Prisoners of Warto the Conflict with Al Qaeda and the Taliban (25 Jan. 2002), available atwww.slate.com/features/whatistorture/pdfs/020125.pdf [hereinafter Gonzales Memorandum].

112. Id.113. Id., citingWar Crimes Act of 1996, 18 U.S.C. 2441 (2006).


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prohibits outrages upon personal dignity and inhuman treatment.114 If

the Geneva Conventions did not apply to the prisoners, Gonzales argued,the Conventions constraints would not apply to US officials. Legal defenseof US officials might also be needed because it is difficult to predict themotives of prosecutors and independent counsels who may in the futuredecide to pursue unwarranted charges based on Section 2441.115 As a re-sult, Gonzales advised the president, Your determination [that the Genevaconventions do not apply] would create a reasonable basis in law thatSection 2441 does not apply, which would provide a solid defense to anyfuture prosecution.116

The priorities revealed in the conduct, if not the rhetoric, of the majorityof members of Congress also seem clear: They have threatened to cripplelaw enforcement and foreign aid programs designed to meet humanitarianneeds and implement democratic values in struggling societies, rather than

to allow the international community, through the ICC, to develop effectiveenforcement of international law, ifinternational enforcement would applyto US officials and citizens as it applies to other countries citizens when itcomes to stopping genocide, crimes against humanity, and war crimes. Afterstudying the programs that would be threatened by the Nethercutt amend-ment, Brian Thompson, Program Manager for International Law and Justiceat Citizens for Global Solutions, concluded that this sanction shows thatthe President would rather allow drug trafficking and terrorism than support[ICC] prosecution of war crimes and atrocities.117 These value priorities alsoseemed extreme to Jim Kolbe, a dissenting Republican Congressman fromArizona, who opposed taking away economic assistance from desirableprograms: At a time when we are fighting the war on terrorism, reducingthis tool of diplomatic influence is not a good idea.118

To those who highly value international human rights and the rule oflaw, both a part of the US democratic heritage, the US departure from re-spect for impartial enforcement of laws aimed at stopping the most horrible

114. Id.115. Id.116. Id.117. CGS, U.S. Sanctions Key Allies, supra note 80.118. The full list of countries barred from receiving money from the Economic Support Fund

under this amendment, unless waivers were granted, includes: Andorra, Argentina,Austria, Australia, Benin, Belgium, Brazil, Bulgaria, Canada, Republic of Congo, CostaRica, Croatia, Cyprus, Denmark, Estonia, Ecuador, Finland, France, Germany, Greece,Hungary, Iceland, Ireland, Italy, Jordan, Latvia, Lesotho, Liechtenstein, Lithuania, Luxem-burg, Mali, Malta, Namibia, New Zealand, Netherlands, Norway, Niger, Paraguay, Peru,

Poland, Portugal, Republic of Korea, San Marino, Samoa, Serbia, Slovakia, Slovenia,South Africa, Spain, Sweden, Switzerland, Tanzania, Trinidad and Tobago, Uruguay,United Kingdom, and Venezuela. SeePress Release, CGS, House Votes to Cut Funds toKey Allies in International Court, supra note 63; CGS, U.S. Sanctions Key Allies, supranote 80; No Peace Without Justice, supra note 81.


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crimes on earth is disappointing. Evidence that the departure seems to be

intentional is alarming. The laws over which Court enforcement has beencontested, after all, are laws prohibiting actions such as mass murder, massrape, and torture of untried people in captivitycrimes so egregious thatevery single person on earth, the United States and the international com-munity have agreed, is bound to obey the laws prohibiting them. The Bushadministration wants to use international institutions to enforce the law onothers of its choosing, but it rejects international enforcement that wouldapply the law to allincluding itself. Such a posture is demeaning to UScitizenssoldiers and civilians alikewho want their own conduct to beabove reproach when it comes to these horrific crimes and who are willingand even eager to demonstrate before the world and before an impartialinternational court, if need be, that their conduct does indeed measure upto worldwide human rights standards. Instead, the former Under Secretary

of State and current US Ambassador to the United Nations has said that theUnited States must not be held accountable to international enforcement.119The US objective should be not to improve the Court but to make it witherand collapse.120 These US decisions to abandon high moral ground by op-posing the international communitys effort to expand equitable enforcementof prohibitions of genocide, war crimes, and crimes against humanity arelegally dubious and likely to be politically and militarily self-defeating.

B. Enhancing International Enforcement of Humanitarian and HumanRights Law

Despite the negative overall impact of US policies toward the ICC on the

enforcement of international humanitarian and human rights law, this analysisalso suggests some counter tendencies that can be noted but not fully discussedhere. The Security Council referral of Darfur atrocities to the ICC, in particular,has confirmed four politico-legal realities that should inform future strategiesto increase compliance with human rights and humanitarian law.

First, the governments of many members of the international community,including a majority of those now in the Security Council, have internal-ized the norm that the international community has the rightand even thedutyto stop genocide, war crimes, and crimes against humanity throughinternational legal processes that hold individuals accountable to the law.Never again should would-be violators of these laws succeed in claimingthat they are entitled to hide behind a wall of sovereignty. The key question

119. John R. Bolton, supra note 45.120. John R. Bolton, No, No, No to International Criminal Court, HUMAN EVENTS, 21 Aug.

1998, at 8.


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is how to make international legal processes more effective, prompt, and

jurisprudentially sound.Second, although the US government has internalized the norm thatinternational law prohibits people in other countries throughout the worldfrom committing these crimes, rega

johansen 2006 the impact of us policy

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