Op-Ed: Evaluating International Justice through the Relationship of the US, the ICC, and the UN
By Ceyda Guleryuz, Senior Research Assistant, and Raphael Piliero, Advocacy Fellow and SDG Research Assistant
In the wake of the Rwandan genocide of 1994, countries around the world identified the pressing need for an international tribunal to prosecute genocide, crimes against humanity, war crimes, and the crime of aggression beyond the normative. In 1995, the United States participated in the Ad-Hoc Committee on the Establishment of an International Criminal Court (ICC). In 1998 the ICC received the blessing of President Bill Clinton, who remarked that “Rwanda and the difficulties we have had with this special tribunal underscores the need for such a Court.” The United States thus grew heavily involved in the efforts to create the Rome Statute, which would create the ICC.
At the 1998 Rome Conference, the US issued a proposal that aimed to set out a precise definition for each of the core crimes that would fall under the purview of the ICC, with the exception of the crime of aggression. This conference created the Rome Statute, which established four international crimes — genocide, crimes against humanity, war crimes, and the crime of aggression — none of which were subject to any statute of limitations. One important thing to note is that the Rome Statute, despite including the crime of aggression when adopted, did not have a definition for it until a subsequent amendment in 2010. This was, in part, a result of US efforts during negotiations. The issue of defining crimes of aggression has proven critical in determining contemporary US-ICC relations.
On December 31, 2000, the United States signed the Rome Statute; in 2002, the Rome Statute went into effect. However, later in the same year the US informally termed its de-signing of the treaty and along with 7 other nations voted against the adoption of the Rome Statute. Decades later, the ICC meets most of the US requests, and its subsidiary three bodies — the ICC, the Assembly of States Parties (ASP), and the Trust Fund for Victims — supports several of the US’s pragmatic diplomatic needs. However, the US is still reluctant to renegotiate the Rome Statute and join the Court, which diminishes US commitments to international justice.
In understanding this commitment, we need to understand what prompted a reversal in the US position on ratification.
This piece argues in favor of US ratification of the Rome Statute. While the United States has remained outside the ICC for the past several decades, joining now would nonetheless send a vital signal, demonstrating US commitment to opposing international crime. Support for the ICC would also provide a stronger basis for ensuring the US does not skirt its international obligations.
U.S. Attitudes Towards the ICC
In establishing a permanent international criminal court to prosecute mass atrocity crimes, most countries sought to institutionalize that no country’s citizens who are accused of war crimes or genocide should be exempt from the jurisdiction of the court. Having one of the strongest militaries and economies in the world, the United States feared that US personnel — who are frequently involved in interventions relating to humanitarian catastrophes — would be potentially subject to politicized trials and disproportionate scrutiny. During negotiations at the Rome Conference, parties to the ICC would not guarantee the US a ‘unique position.’ President Clinton, following this development, announced that “the United States should have the chance to observe and assess the functioning of the court, over time before choosing to become subject to its jurisdiction.” Subsequently, in a 2002 letter to Secretary-General Kofi Annan, US Ambassador to the UN John Bolton announced that the US had“no legal obligations arising from its signature.” That same day, Defense Secretary Donald Rumsfeld claimed that the US took issue with the final arrangement of the ICC, arguing that there was “a lack of adequate checks and balances on powers of the Court’s prosecutor and judges; the dilution of the U.N. Security Council’s authority over international criminal prosecutions; and the lack of any effective mechanism to prevent politicized prosecutions of American service members and officials.”
One month after the establishment of the International Criminal Court, President Bush, fearing that the court would issue rulings disproportionately against the US military in conflict-zones, signed the American Servicemembers Protection Act of 2002 (ASPA). This act granted the executive branch the authority to “use all necessary means” to free members of the armed forces of the United States and allies ‘detained’ by the ICC while limiting US government support and assistance to the ICC as well as UN peacekeeping missions. The ASPA was built on a previous statute, the Foreign Relations Authorization Act (FRAA), which prohibited funds from the Foreign Relations Authorization Act “or any other act” from being used by or for the support of the ICC. The last section of ASPA, however, clarified that nothing in this act “shall prohibit the United States from rendering assistance to international efforts to bring to justice . . . foreign nationals accused of genocide, war crimes and crimes against humanity.” Through this act, the United States asserted that it would be exempt from the prosecution of the ICC and not obligated to support any of its investigations.
The United States has played a crucial role in advancing international criminal justice frameworks as one of the supporters of the UN War Crimes Commission, which “identified, classified, and assisted national governments trying war criminals in Europe and Asia.” However, the US refusal to ratify the Rome Statute prevents the United States from becoming a party to the only permanent international criminal tribunal with a mandate to investigate and prosecute the crimes of genocide, crimes against humanity, war crimes, and the crimes of aggression — though the US can be invited by the court participate in tribunals on an ad hoc basis. Since the creation of ICC, the United States has attempted to create an international coalition in favor of its hostile views on the court, pushing Latin American nations in 2005 to commit to opposing the prosecution of Americans in the court. The efforts failed in most parts of Latin America, with leaders expressing that existing treaties have provided protection to US soldiers, while Bilateral Immunity Agreements “go too far… by adding protections for ordinary Americans, like tourists, and non-American contractors who work for American companies.” Similarly, the United States urged Kenyan diplomats to sign onto a Bilateral Immunity Agreement to exempt US citizens and allied persons from prosecution — Kenya did not sign the agreement. Kenyan Assistant Minister for Foreign Affairs, Moses Wetangula, expressed that “there is no way Kenya can sign such an agreement because Kenya recently ratified the Rome Statute and all countries must submit to its jurisdiction irrespective of their peculiar circumstances”.
Under the Obama Administration, there appeared to be some signs of warming relations between the United States and the ICC. As a presidential candidate, then-Senator Obama emphasized cooperation with the ICC on cases related to Darfur and noted the importance of closer cooperation with the court. However, during his administration, congressional pressure mounted to avoid an overly conciliatory relationship with the ICC. Republicans pushed legislation in the summer of 2010 to stop the United States from participating in an ICC review conference; this was followed in 2011 by US Ambassador to the UN Susan Rice insinuating that the Libyan people should try Muammar-al-Gaddafi themselves, outside the confines of the ICC. Former Ambassador Rice stated that prosecution “is something that must be decided not by the United States or any other government, but by the people of Libya and by the interim transitional government that we expect will soon be constituted” despite the fact that the case was referred to the ICC by the UN Security Council (UNSC), where the United States holds permanent membership. With the UNSC vote indicating that the accused men cannot be fairly tried in Libya, Ambassador Rice’s statements were detrimental to the legitimacy of the decision of UNSC and the prosecution of the ICC; the comments signaled that the ICC was ill-suited to resolve a matter of human rights, limiting its jurisdiction implicitly.
The Executive Branch: Ruler of the Law
The importance of joining the ICC becomes even clearer when considering existing compliance with international law as it relates to war crimes. In the status quo, domestic law in the United States has had a deleterious effect on compliance with existing statutes. At the surface level, this is surprising considering the clear importance of international law in domestic constitutional interpretation. Indeed, Supreme Court precedent has found that international law is legally binding; most notably, the 1900 case Paquete Habana v. United States held that international law is applicable and binding for US domestic law. This was preceded by Murrary v. The Schooner Charming Betsy in 1804, where the Supreme Court urged that domestic laws be construed so as to not violate international law if at all possible (henceforth known as the “Charming Betsy” canon).
Despite the clear precedent, the executive branch has taken numerous steps to contravene international law. One powerful tool that the President has available is “signing statements.” With signing statements, presidents can include an addendum indicating how they will interpret the provisions in the bill that they have signed, functioning as a form of constitutional interpretation. As the President is tasked with executing the law, this form of interpretation is powerful, and Congress lacks any clearly-defined recourse. In fact, presidents can strategically use signing statements to undermine compliance with US treaty obligations. It was through these statements that the Bush administration was able to override a torture ban and establish that the statute against torture was not binding if they deemed it necessary for national security. Through signing statements, the President accesses a form of executive unilateralism where they can claim the United States is in alignment with international law but redefine what it means to achieve such consistency.
However, the powers of the President are not unlimited. As the Supreme Court established in the Youngstown Sheet & Tube Co. v. Sawyer, the executive branch does not have an unfettered ability to contravene the will of Congress. As Justice Jackson famously noted in his concurrence, the President can either act with the authorization of Congress, absent either authorization or prohibition, or against the will of Congress. The President’s power is greatest when acting with Congressional authorization, in a zone of twilight when Congress has not spoken, and lowest when acting against the will of Congress. To ensure the United States faithfully executes international law, Congress will need to make its requisites for interpreting compliance more clear. Statutory action to bring the United States into compliance with the ICC would be an important step toward defining the legal obligations of the United States with more clarity, making executive work-arounds more challenging.
American Exceptionalism
In March 2020, ICC prosecutor Fatou Bensoda opened an investigation into war crimes committed during the war in Afghanistan since May 1, 2003. Afghanistan is an ICC member, meaning that the ICC has jurisdiction over all crimes of aggression in Afghanistan, regardless of the national identity of a perpetrator. As such, the investigation is not an overextension of the ICC’s mandate. However, investigating crimes of aggression in Afghanistan also opens the possibility of finding US or allied military personnel guilty of atrocities. As a result, the Trump Administration issued a ban that prevented ICC judges from entering or accessing their assets in the United States. This obstructs the prosecutor’s independence, weakening any potential case. Although the ICC is not aiming to exclusively investigate the United States, there are allegations of illegally detained prisoners as well as reports of “torture, cruel treatment, outrages upon personal dignity, rape, and sexual violence against conflict-related detainees in Afghanistan” that involve the United States. If the United States were to allow the investigations to proceed, even if the US personnel were found guilty, it would demonstrate that the US values justice and respects human rights.
However, rather than ensuring justice, the administration granted clemency to US military service members who were facing military charges of war crimes in Afghanistan and restored their ranks. Allowing the ICC to continue their investigation opens the possibility of conviction of these service members of war crimes. As prosecutor Bensoda stated, “while the International Criminal Court is the only permanent international body with the mandate to pursue accountability for atrocity crimes, the Court cannot achieve this goal alone.” Pardoning and protecting service members who have committed war crimes weakens the United States’ respect for international law and the strength of international organizations altogether.
Ensuring justice for all–be it a service member bravely testifying against a commander who has committed a war crime or an Afghan civilian who lost his family in a brutal war at the hands of those who have committed crimes of aggression–demonstrates the strength of US commitment to democracy and the rule of law. Preventing investigations by an international court is not a position that a nation recognized for its strong sense of justice and respect for human rights embodies. This disjuncture between ideology and action only undermines US respect for international justice and rule of law.
International Peace as a National Security Interest
While the United States has exceptional military strength and an unparalleled ability to project power, this does not mean that such power should be used in all circumstances. As President Obama indicated in his speech at the National Defense University in 2013, the US “cannot use force everywhere that a radical ideology takes root; in the absence of a strategy that reduces the wellspring of extremism, a perpetual war — through drones or Special Forces or troop deployments — will prove self-defeating, and alter [the US] in troubling ways.” To ensure the eradication of extremism, there needs to be not only a national, but an international strategy. Instead of reliance on American military might, a humanitarian approach is superior — herein lies the greatest strength of the ICC.
Attitudes towards international organizations have a direct link to attitudes towards the US. As such, US support for the ICC is beneficial not only for international peace and cooperation, but also for national security purposes. The ICC enshrines justice. It directly supports the United Nations Sustainable Development Goals, which the US government helped to shape, and offers judicial support to states that are unable to prosecute suspects on their own accord. To this end, the United States’ efforts to halt international support to the ICC through banning US military assistance to countries that ratified the Rome Treaty through the American Service Members Protection Act — which remains in effect — prevents criminal justice internationally. Unrest around the world allows extremists to gain a foothold in countries that are unable to prosecute suspects. The US’s position against the ICC is, therefore, counterintuitive to both US national security interests and international peace and security.
The ICC’s position helps to bring justice to the victims of genocide, crimes against humanity, war crimes, and crimes of aggression. As the Former UN Secretary General Ban Ki Moon said in the Review Conference of the Rome Statute, the Rome Statute demonstrates that “collective determination that crimes against humanity cannot go unpunished, [will] better deter them in the future” and that through the ICC all criminals of aggression, “whether they are rank-and-file foot soldiers or military commanders, whether they are lowly civil servants following orders, or top political leaders, will be held accountable.” In short, the Court’s jurisdiction is critical to ensure international stability and peace.
Potential Objections
The US stance towards the court weakens global respect for international law and institutions. For some, abiding by international law is seen as a matter of policy and not a fundamental necessity for international security. This is sometimes justified by claiming that an international court would usurp power from sovereign nations. However, ratifying the statute does not necessarily allow the ICC to supersede national jurisdiction. On the contrary, the Rome Statute stresses “the principle of complementarity” of the Court. This requires the ICC to defer to domestic processes unless national authorities are unwilling or unable to exercise jurisdiction; the threshold to show a state is unwilling or unable is very high. As noted by The Office of the Prosecutor of the ICC, “[t]he principle of complementarity is based both on respect for the primary jurisdiction of States and on considerations of efficiency and effectiveness, since States will generally have the best access to evidence and witnesses and the resources to carry out proceedings.”
This theory of complementarity is rooted deeply in criminal law theory. If the value of the prosecutions is to restore public confidence and provide for a sense of justice for victims, preference is given to national prosecutions. Domestic courts are looked at favorably because they can bring justice within a societal context and demonstrate for victims and the injured community the importance of realizing individual rights. This is why the Rome Statute embraces the concept of complementarity as a core feature.
Another objection is that the ICC is a mere extension of existing organizations. However, the ICC can and should be treated as a standalone body with its own legitimacy, autonomous of other organizations. Although the Rome Statute was negotiated within the UN, it created a separate judicial body for the ICC and the UN recognizes the ICC as an independent judicial institution with international legal personality and capacity. The UN and the Court respect one another’s status and complementary mandates. They work together in inducing compliance with specific norms of international law and preventing mass violence; judicial justice can best be achieved in an environment of stability and security. When a state does not accept the court’s jurisdiction over a crime, the UN Security Council can refer the cases to the ICC under Chapter VII of the UN Charter, thus granting ICC the power to exercise jurisdiction.
Conclusion
With the inauguration of a new administration, we should ask — what happens now? How will the United States under the Biden Administration treat the ICC and indicate its support for human rights globally? Violating the most basic rights of other people cannot guarantee security, nor can partial commitment to the American values of justice and the rule of law. For the good of mankind, no nation alone ought to possess a moral authority to do as it pleases. Rather, the United States needs a historical reckoning over its actions, not only at home but also abroad. If, as President Biden said, “the scenes and chaos at the Capitol do not reflect a true America, do not represent who we are,” then we must reap the reality of American ideals — if we are on the side of democracy and the rule of law, let us commit to working together with other nations for the betterment of humanity and to respect institutions built to ensure justice internationally. Only through international cooperation can we achieve global justice, peace, and security. Per President Biden — “the world is watching.”
Editor’s note: This article was published as part of UNA-NCA’s Advocacy Fellowship program. The authors are affiliated with Georgetown University as a current undergraduate student and recent graduate, respectively. The viewpoints expressed in this article are solely the views of these students and do not reflect the views of the organization.
