The United States of America was one of only 7 nations (joining China, Iraq, Libya, Yemen, Qatar and Israel) to vote against the Rome Statute of the International Criminal Court in 1998.
The Bush administration's hostility to the ICC has increased dramatically in 2002. The crux of the U.S. concern relates to the prospect that the ICC may exercise its jurisdiction to conduct politically motivated investigations and prosecutions of U.S. military and political officials and personnel. The U.S. opposition to the ICC is in stark contrast to the strong support for the Court by most of America's closest allies.
In an unprecedented diplomatic maneuver on 6 May, the Bush administration effectively withdrew the U.S. signature on the treaty. At the time, the Ambassador-at-large for War Crimes Issues Pierre-Richard Prosper stated that the administration was "not going to war" with the Court. This has proved false; the renunciation of the treaty has paved the way for a comprehensive U.S. campaign to undermine the ICC.
First, the Bush administration negotiated a Security Council resolution to provide an exemption for U.S. personnel operating in U.N. peacekeeping operations. The administration failed in May to obtain an exemption for peacekeepers in East Timor. In June the Bush administration vetoed an extension of the UN peacekeeping mission for Bosnia-Herzegovina unless the Security Council granted a complete exemption. Ultimately, the U.S. failed in its bid for an iron-clad exemption, although the Security Council approved a limited, one year exemption for U.S. personnel participating in UN peacekeeping missions or UN authorized operations. The Security Council has expressed its intention to renew this exemption on 30 June next year.
Second, the Bush administration is requesting states around the world to approve bilateral agreements requiring them not to surrender American nationals to the ICC. The goal of these agreements ("impunity agreements" or so-called "Article 98 agreements") is to exempt U.S. nationals from ICC jurisdiction. They also lead to a two-tiered rule of law for the most serious international crimes: one that applies to U.S. nationals; another that applies to the rest of the world's citizens. Human Rights Watch urges states not to sign impunity agreements with the United States.
Thirdly, the U.S Congress has assisted the Bush administration's effort to obtain bilateral impunity agreements. The Congress passed the American Servicemembers' Protection Act (ASPA), which was signed into law by President Bush on 3 August. The major anti-ICC provisions in ASPA are:
- a prohibition on U.S. cooperation with the ICC;
- an "invasion of the Hague" provision: authorizing the President to "use all means necessary and appropriate" to free U.S. personnel (and certain allied personnel) detained or imprisoned by the ICC;
- punishment for States that join the ICC treaty: refusing military aid to States' Parties to the treaty (except major U.S. allies);
- a prohibition on U.S. participation in peacekeeping activities unless immunity from the ICC is guaranteed for U.S. personnel.
However, all of these provisions are off-set by waiver provisions that allow the president to override the effects of ASPA when "in the national interest". The waiver provisions effectively render ASPA meaningless.
Position of Human Rights Watch
Human Rights Watch strongly opposes the Bush administration's approach to the ICC. In any event, the Court is now a reality. Anti-ICC laws and impunity agreements only serve to align the U.S. with pariah states of the international criminal justice system (for example, Libya). HRW considers that the major impact of the Bush administration's anti-ICC campaign is to diminish the credibility of U.S. efforts to forge coalitions against human rights abusers and to undermine future U.S. efforts to advance international justice in discrete cases, such as leading NATO in arrests of war criminals in the Balkans, or bringing war crimes charges against Saddam Hussein.