Global Policy Forum

Bush Administration Ponders Position

International Enforcement Law Reporter
June 2001
Vol. 17, No. 6

As the Bush Administration continues to develop its foreign and criminal policy teams and articulate its policies, it will be forced to grapple with the emerging of the International Criminal Court. Already publicly opposing the ICC as infringing on the United States sovereignty and maneuverability in national security policies, the Bush Administration is faced with the likelihood that the ICC will be in force in approximately another year.

Once it comes into existence, the Preparatory Committee (PrepCom) negotiations will end. Thereafter, no ICC negotiating body will exist in which the U.S. can participate fully without ratifying the treaty. Unless it ratifies, the U.S. can participate in the Assembly of States Parties only as an observer.

During the last PrepCom meeting at the end of February and March, 2001, the Bush Administration only participated in the working group on aggression. The U.S. representative took the following brief: the U.S. does not support the ICC; the U.S. was participation only in the aggression discussion because of the role of the Security Council; prior efforts to meet the U.S. needs had proved futile; and the U.S. is undertaking a comprehensive review of the ICC issue.

The last PrepCom achieved good progress on substantive issue. Although the U.S. had hoped to use certain issues, such as the U.N./ICC relationship agreement as a vehicle for some of its approaches to obtaining an exemption, the PrepCom has progressed so far that the U.S. cannot achieve its goals of exemption. The last opportunity will completely close during the September-October PrepCom session.

The Bush Administration is conducting an internal review of the ICC. The review is already well in process and the Departments of Defense and State are exercising the lead in the review. The National Security Council is coordinating the review with Vice President Cheney's office also participating. The options that the Bush Administration will have in the review are: (1) whether to try to unsign or repudiate the Rome Convention; and (2) whether to support the reintroduction of the American Servicemen's Protection Act (ASPA), which contains sanctions against countries supporting the ICC. Because of the importance of the next PrepCom for the U.S., the Bush Administration must finish its review in advance of the next PrepCom.

Under the Vienna Convention on Treaties, a State that has signed but not ratified a treaty can send a letter of declaration not to ratify and ask to be removed from its obligations. The U.S. would then be able to undertake a full scale opposition.

On February 23, 2001, the European Union demarched Pierre Prosper, director of the U.S. War Crimes Office, Department of State, explaining the prioritization by the EU of the ICC issue. The communications are believed to have taken the Bush Administration by surprise and shown the U.S. that a policy of simple opposition may have political costs.

In the meantime, on April 10, 2001, in response to a request from Congressman Michael E. Capuano, the Congressional Research Service issued a memorandum on "Questions Concerning the International Criminal Court". In particular the memorandum discusses the process by which a U.S. service member or public official could be subject to the jurisdiction of the ICC even if the U.S. does not become a Party to the treaty, a description of the safeguards built into the statute that reduce that possibility, and whether additional safeguards would become available if the U.S. were to ratify the treaty. The memorandum also discusses the treaty's flaws according to the Clinton and Bush Administrations and what actions were taken during the negotiations to address U.S. concerns.

The next PrepCom will occur during the last week of September and first week of October. During this session of Congress opponents of the treaty are expected to mount a strong campaign for strong action against the ICC, including the reintroduction and enactment of the ASPA. Because of the importance of the U.S. in terms of leadership, funding, and other types of potential support for the ICC, the U.S.'s position bears watching.

The short-term consequences of the decision of the U.S. Government to reject the Rome Statute will be inability of the U.S. to become a member of the Assembly of State Parties and hence inability to participate in shaping the court in its early formative years, such as questions as approval of the Rules of Procedure and Evidence and the Elements of Crimes, the implementation of due-process protections for the accused, and the relationship of the court to the U.N. In addition, the U.S. will not be able to participate in the selection of the first group of judges and prosecutors for the ICC or be eligible to propose one of its nationals for a seat on the court. The assembly will also be the forum for determining the definition of aggression.

Another short-term consequence is that on May 3, the U.S. lost a seat on the U.N. Commission on Human Rights, which observers attributed partly to the U.S. opposition to creating an ICC. The loss of the seat diminishes the potential ability of the U.S. to influence the body to criticize and censure states whose laws and practices violate international human rights obligations. Despite U.S. opposition, the thirty countries ratified the Rome Statute, making it increasingly likely that by May 2002, the treaty will come into effect (the treaty takes effect on the 60th ratification).

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