Court to prosecute an individual crime of aggression, the stakes will rise.
Because of the need for legal expertise to deal with ICC matters, states‚Ä™
representatives to the ICC in The Hague tend to be people with back-
grounds in law, often seconded to foreign ministries from justice ministries
and sometimes with some background in criminal law.1 Many of them are
168 Building the International Criminal Court
responsible as well for other legal institutions in The Hague such as the
ICTR, the ICJ, and the International Court of Arbitration: The Court may
be important, but it commands only the limited attention of most foreign
ministries and diplomatic representations. Since the Court opened in 2002,
a congenial group has developed in The Hague among the personnel of
international organizations such as the ICTR, International Court of Justice
(ICJ), International Court of Arbitration, ICC, NGOs, and the academic
community that shares an enthusiasm for international institutions and
international law. With encouragement from the Dutch government and
The Hague municipal authorities, frequent seminars, conferences, brieÔ¬Āngs,
and workshops bring the community together, but it is a group whose interests
are tangential to the main focus of most of their countries‚Ä™ diplomatic
For states unengaged with the ICC or opposed to it, contact with the
community is limited. U.S. representatives were largely prohibited by
Washington from getting too close to ICC events and ofÔ¬Ācials for the Ô¬Ārst
few years of the Court‚Ä™s existence. Russian and Chinese representations in
The Hague have had limited contact with the Court. Japanese contact
increased in 2006 as parliamentary interest in completing legislative
requirements for joining the Statute moved forward, and the government
stated its intention eventually to join. On April 27, 2007, the Japanese Diet
approved accession to the Statute, and ofÔ¬Ācials indicated that Ô¬Ānal steps to
pass relevant legislation and to deposit ratiÔ¬Ācation with the UN were
expected by October 1.2
There is a curious mixture of limited state attention and support, great
personal interest among those involved with the Court, and a propensity to
defer to ICC ofÔ¬Ācials for directing the development of new organization.
According to people involved with the Court, states‚Ä™ representatives to the
Court are often more reluctant for states to become involved in the Court‚Ä™s
policy decisions than some of the Court‚Ä™s ofÔ¬Ācials are. In its formative years,
the ICC has had plenty of latitude.
Normative Commitments and the Court
Because the parties to the Statute support the Court, opposition is exter-
nalized. Internationally, only the United States has pursued vigorous
opposition to the ICC, according to one Court ofÔ¬Ācial, thereby paying more
respect to the powers of the Court than the many countries that view it as
Leopold, ‚Ä˜‚Ä˜Japan Expects to Join New Criminal Court in Oct‚Ä™‚Ä™ (2007).
benign and generally weak. The United States‚Ä™ Security Council colleagues
Britain and France joined the Statute along with the rest of the European
Union states, but nonsignatory UN Security Council permanent members
China and Russia expressed cautious support for the Court‚Ä™s objectives.
Russia signed the Rome Statute in September 2000 and by 2003 had
engaged cabinet ministries in a discussion of its compatibility with the
Russian Constitution, with the stated intention of moving toward ratiÔ¬Āca-
tion. Russian sources indicated that President Vladimir Putin would decide
sometime in 2004 whether to move a ratiÔ¬Ācation bill into the Duma;3
however, by the end of 2006, ratiÔ¬Ācation had still not come up for con-
sideration. In the Security Council, Russia voted in favor of the Sudan
referral, asserting that the referral ‚Ä˜‚Ä˜would promote an effective solution to
the Ô¬Āght against impunity.‚Ä™‚Ä™4
Publicly, China is more negative.5 China abstained on the Darfur referral. It
declared its support for a political solution to the conÔ¬‚ict, ‚Ä˜‚Ä˜deplored deeply the
violations of international humanitarian law and human rights law and
believed that the perpetrators must be brought to justice,‚Ä™‚Ä™ but believed that
‚Ä˜‚Ä˜the question before the Council was what was the most appropriate way to
do so.‚Ä™‚Ä™ The Chinese representatives said that China would prefer trial before
Sudanese courts and did not favor a referral without Sudanese acceptance of
the Court‚Ä™s jurisdiction. It noted, as a nonsignatory of the Rome Statute, that
China ‚Ä˜‚Ä˜had major reservations about some of its provisions.‚Ä™‚Ä™6 Nonetheless,
there is considerable interest in China among academics and legal specialists
about the Court, shown by frequent invitations to Court ofÔ¬Ācials to participate
in seminars and conferences there.
No Peace Without Justice, ‚Ä˜‚Ä˜Kremlin Int‚Ä™l News Broadcast-Press Conference with Kirsch and
Kolodkin‚Ä™‚Ä™ (2004), 224.
UN Press Release SC/8351, ‚Ä˜‚Ä˜Security Council Refers Situation in Darfur, Sudan, to
Prosecutor of International Criminal Court‚Ä™‚Ä™ (2005).
China‚Ä™s Foreign Ministry Web site states: ‚Ä˜‚Ä˜Though it is hard to anticipate the operation of
the Court, if the Court can get the general support and cooperation by its effective operation,
it will be undoubtedly positive and useful to the international community and is also what
China wants to see. As to the question of acceding to the Statute, the Chinese Government
adopts an open attitude and the actual performance of the Court is undoubtedly an
important factor for consideration. We do not exclude the possibility of considering the
accession to the Statute at an appropriate time. In future, the Chinese Government will, as an
observer state, continue to adopt a serious and responsible attitude to follow carefully the
progress and operation or the International Criminal Court. China is willing to make due
contributions to the realization of the rule of law in the international community.‚Ä™‚Ä™ People‚Ä™s
Republic of China, Ministry of Foreign Affairs, ‚Ä˜‚Ä˜China and the International Criminal
UN Press Release SC/8351, op cit.
170 Building the International Criminal Court
States that support the ICC vary considerably in their enthusiasm. For
example, even though the European Union as an organization has been very
supportive of the ICC and holds out the prospect of deepening cooperation
in areas of investigation and arrests of suspects, by mid-2007, nine of the
twenty-Ô¬Āve EU countries, including France, hade not yet passed legislation
necessary to bring their domestic penal codes into conformity with the
Statute.7 At the fourth ASP, a Working Group on RatiÔ¬Ācation and Imple-
mentation of the Rome Statute was established. At the Ô¬Āfth ASP, in the fall
of 2006, the Working Group‚Ä™s Plan of Action was adopted, but no
resources were allocated to the (tiny) ASP Secretariat to implement it.8
The United Kingdom was very active at the Rome Conference and sought
to intermediate between the like-minded states and the United States in the
treaty negotiations (see Chapter 3). The degree of U.K. support for the
Court in operation, however, is less clear. Foreign Secretary (2001‚Ä“6) Jack
Straw was reportedly less enthusiastic about the ICC than his predecessor,
Robin Cook, and U.K. ofÔ¬Ācials were concerned about what they considered
slow progress toward trials.9
The U.S. Position
The United States endorses the objective of ending impunity. According to
Ambassador David Scheffer, former U.S. Ambassador at Large for War
Crimes Issues (1997‚Ä“2001), the Clinton administration ‚Ä˜‚Ä˜strongly supported
the establishment of an international criminal court.‚Ä™‚Ä™10 U.S. experts were
heavily involved in the Statute discussions as legal experts and sought to
protect U.S. interests. The United States appeared willing to support the
Court as long as it remained subordinated to the UN Security Council, as it
was in the original ILC proposal. Once it became clear that the ICC would
be independent of UNSC permanent members‚Ä™ veto powers, however, the
United States found increasing fault with the Court. Negotiators sought
compromises in the hopes that the United States would join, but their efforts
ultimately failed. At the end of the Rome Statute Conference, the United
States rejected the Statute on pragmatic grounds as well as principled and
Chicon and Bibas, ‚Ä˜‚Ä˜Europe Supports the ICC without Fail and without Zeal‚Ä™‚Ä™ (2007), 4.
Amnesty International, ‚Ä˜‚Ä˜International Criminal Court: Implementing the Assembly‚Ä™s Plan of
Action for Achieving Universality and Full Implementation of the Rome Statute‚Ä™‚Ä™ (2007), 2.
Waugaman, ‚Ä˜‚Ä˜London‚Ä™s ConÔ¬Ādent Realism‚Ä™‚Ä™ (2006), 3‚Ä“4; interviews, spring 2006.
Scheffer, ‚Ä˜‚Ä˜The Future U.S. Relationship with the International Criminal Court‚Ä™‚Ä™ (2005), 163.
Elsea, ‚Ä˜‚Ä˜U.S. Policy Regarding the International Criminal Court‚Ä™‚Ä™ (2002), 4‚Ä“7.
The U.S. government argued that U.S. ofÔ¬Ācials and military forces should
be exempted from the Court‚Ä™s jurisdiction because the country‚Ä™s military
activities were crucial to international peace and security. U.S. global
involvement would expose its ofÔ¬Ācials more to others‚Ä™ accusations than
those of other states, and its adversaries might try to thwart it by lodging
spurious charges against it. The consequent dampening effect on U.S.
actions would be bad for international peace and security. Although the
United States thus claimed that immunity for its ofÔ¬Ācials would therefore be
of general beneÔ¬Āt, opponents argued that this was mere hypocrisy. They
argued that adequate protections had been built into the Court to prevent
baseless charges, particularly in the form of the complex series of actions
necessary for the Prosecutor to proceed with investigations proprio motu or
in pursuit of state referrals. Furthermore, since the Court would be intent on
preserving its own legitimacy, the Prosecutor and pretrial judges would
screen out frivolous charges.
U.S. representatives argued that the Statute threatened to violate inter-
national law by subjecting nonsignatory states to the Court‚Ä™s jurisdiction
(that is, individuals from a state that hadn‚Ä™t joined the ICC could still be
subject to it if arrested under the Court‚Ä™s territorial jurisdiction). Court
proponents countered that the ICC has jurisdiction over individuals, not
states. People worldwide are subject to arrest and trial in countries other
than their own under local laws, and the United States does not view this as
a challenge to sovereignty. Similarly, transfer of a U.S. citizen to the ICC by
another country would not challenge U.S. sovereignty.
On constitutional grounds, U.S. negotiators argued that U.S. constitu-
tional protections would not be available to U.S. citizens should they
become subject to Court proceedings, and the Court as designed would lack
the democratic ‚Ä˜‚Ä˜checks and balances‚Ä™‚Ä™ fundamental to U.S. values. The
counterargument stressed the heavy involvement of U.S. legal experts in
drafting the ICC Statute and rules.
All the U.S. objections were the subject of negotiation and measures in
the Statute that sought to ameliorate them. The objections have all been
disputed by international legal experts, including experts of high standing in
the United States. Ambassador Scheffer, who negotiated at Rome and was
instructed to vote against the Statute, later argued that in order to assuage
U.S. concerns, changes in the Rules and Procedures, even short of Statute
amendments, could reduce U.S. opposition to ratiÔ¬Ācation,12 but he urged
U.S. accession to the Treaty in its existing form.
Scheffer, op cit.
172 Building the International Criminal Court
Objections to the Statute were strongest among the civilian leadership of
the Pentagon and among right-wing U.S. politicians and thinkers. Given the
broad interpretive latitude possible over constitutional and international
legal matters, had U.S. politicians, policy makers, and decision makers
wanted to accede to the Treaty, principled and constitutional justiÔ¬Ācations
could readily have been found.
Invade The Hague!
When the Statute passed and was opened for signature, its U.S. opponents
in Congress acted to thwart signature. Testimony before Jesse Helms‚Ä™s
Senate Foreign Affairs Committee featured, among other speakers, the
American Enterprise Institute‚Ä™s John R. Bolton, who castigated the nascent
Court as an international organizational threat to U.S. sovereignty. Helms
declared that should the Statute be submitted to his committee, it would be
‚Ä˜‚Ä˜dead on arrival.‚Ä™‚Ä™13
The Clinton administration managed to prevent legislation attacking the
ICC from being passed by Congress, but the strength of congressional
opposition to the Court deterred Clinton from bringing the Statute to the
Senate for ratiÔ¬Ācation. On June 29, 1999, the ‚Ä˜‚Ä˜Protection of United States
Troops from Foreign Prosecution Act of 1999‚Ä™‚Ä™14 was submitted to the House
of Representatives. Vigorously opposed by the Clinton administration, the
bill did not pass, but its advocates kept trying. In June 2000, the similar
American Servicemembers Protection Act (ASPA) of 200015 was introduced
in the House. The bill would have outlawed cooperation with the Court and
authorized the President to use all means necessary to release from the cus-
tody of the Court U.S. military personnel or elected or appointed ofÔ¬Ācials of
the U.S. government. The new version of the bill proposed preventing par-
ticipation by U.S. personnel in peacekeeping operations unless they were
immunized from Court jurisdiction. Again, the bill failed.
Despite U.S. congressional opposition to the Court, lawyers from the
Justice and State Departments continued to participate in developing the
Court‚Ä™s Rules of Procedure and Evidence. According to Ambassador Scheffer,
‚Ä˜‚Ä˜we worked very hard . . . in 1999 and 2000 to address our remaining
concerns about the Rome Statute, and the U.S. voted in favor of the Rules of
Procedure and Evidence and the Elements of Crimes‚Ä™‚Ä™ in June 2000.16 Under
Cited in Bolton, ‚Ä˜‚Ä˜No, No, No to International Criminal Court‚Ä™‚Ä™ (1998).
106th Congress, 1st Session, H.R. 2381.
106th Congress, 2nd Session, H.R. 4654.
Scheffer, op cit., 163.
the Statute, states could sign the Treaty without ratifying it until December
31, 2000. Thereafter, signature and ratiÔ¬Ācation had to be accomplished in
one step, constituting accession to the Treaty. States that had participated in
the Rome Conference were welcome to participate in the Preparatory
Commission meetings even if they hadn‚Ä™t signed, until December 31, 2000;
thereafter, participation was limited to signatory states, but states signing
thereafter had to go all the way and ratify.
Because President Clinton basically supported the idea of the Court and
sought to continue U.S. participation in the preparatory process in the hopes
that further compromises might be reached that would ease U.S. entry, the
United States signed the Statute on December 31, 2000. Nonetheless, in
January 2001, the Bush administration entered ofÔ¬Āce unalterably opposed to
the Court, with its policy spearheaded by newly appointed Under Secretary of
State for Arms Control and International Security John R. Bolton.
In early May, the ASPA of 200117 was introduced in both the House and
the Senate. Essentially the same as the ASPA of 2000, the legislation would
have prohibited any U.S. government cooperation with the ICC unless the
United States ratiÔ¬Āed the Rome Treaty. Now that the United States had
signed the Statute, the legislation would have required actions counter to
the normal obligation under the Vienna Convention on the Law of Treaties
(1969), according to which states that have signed but not ratiÔ¬Āed treaties
are considered bound nonetheless not to contravene them.18 The act did
not pass in 2001, although weaker legislation preventing cooperation with
or funding to the Court was approved.19
On May 6, 2002, shortly after the required 60 ratiÔ¬Ācations for the