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Statute to come into effect were obtained, Under Secretary of State for Arms
Control and International Security Bolton sent a letter to UN Secretary-
General Ko¬ Annan, in the latter™s role as the depositary for the Rome
Statute, announcing that the United States did not intend to become a party
to the Treaty, thus had no legal obligations arising from its signature,
and requesting ˜˜that its intention not to become a party . . . be re¬‚ected in
the depositary™s status lists relating to this treaty.™™20 Later in the month,


17
H.R. 1794/S. 857 (2001).
18
Vienna Convention on the Law of Treaties, May 23, 1969 (entered into force January 27,
1980), Article 18. The United States has not signed the Convention, but its provisions are
generally considered to be customary international law, even by the United States.
19
NGO CICC, CICC Web site, ˜˜Updates on the United States through December 2005.™™
20
U.S. Department of State, Press Statement, Richard Boucher, Spokesman, Letter to UN
Secretary General Ko¬ Annan from Under Secretary of State for Arms Control and
International Security John R. Bolton (2002).
174 Building the International Criminal Court

the ASPA of 2002 was introduced with strong support from the Bush
administration, and it passed in August as part of an appropriations bill
dealing with terrorism.21 Since its original introduction in 1999, the bill had
expanded in coverage, and waivers had been added so that, should the
President so decide, its requirements could be suspended in the interests of
national security. It is known colloquially by its detractors as the ˜˜Invade
The Hague Act™™ because it calls upon the President to use any necessary
means to free U.S. personnel from the custody of the Court.

U.S. Bilateral Agreements for Immunity
The new administration™s objectives for policy toward the ICC went beyond
staying out of the Statute to actively seeking to guarantee that U.S. citizens
would be immune to the Court and to thwart other states from acceding to
the Statute without taking U.S. concerns into account. The United States
vigorously pressed states to conclude agreements with the United States that
would guarantee its citizens immunity from the Court™s jurisdiction,
threatening to cut off aid to states that refused to agree.
Article 98 of the Rome Statute prohibits the Court from requesting
assistance or the surrender of a person to the Court if to do so would require
the state to ˜˜act inconsistently™™ with its obligations under international law
or international agreements either regarding its own or third-party states
unless the state or the third-party state waives the immunity or grants
cooperation. The United States has interpreted this article to mean that its
citizens cannot be transferred to the ICC by any state that has signed a
bilateral agreement with the United States prohibiting such a transfer, even
if the state is a member of the Rome Statute. The United States actively
pressures states to conclude such so-called Article 98 or bilateral immunity
agreements (BIAs). By spring 2006, such agreements had been accepted by
approximately one hundred governments and were under consideration by
approximately eighteen more.22 According to the CICC, ¬fty-four countries
˜˜rejected U.S. efforts to sign BIAs despite unrelenting U.S. pressure and the
threat and actual loss of military assistance™™ under the ASPA.23 Under the
ASPA, unless a state party to the Rome Treaty agreed to a BIA, it would

21
U.S. Public Law No. 107-206, 116 Stat. 820, ˜˜American Servicemembers Protection Act of
2002.™™ Title II of ˜˜2002 Supplemental Appropriations Act for Further Recovery from and
Response to Terrorist Attacks on the United States.™™
22
NGO CICC, ˜˜Summary of Information on Bilateral Immunity Agreements (BIAs) or so-Called
˜Article 98™ Agreements as of April, 2006.™™
23
NGO CICC, ˜˜Countries Opposed to Signing a U.S. Bilateral Immunity Agreement (BIA):
U.S. Aid Lost in FY04 & U.S. Aid Threatened in FY05.™™
175
ICC“State Relations

become ineligible for military assistance (unless the President waived
application of the law or the country was a NATO member or a ˜˜major
non-NATO ally™™). In addition, under a later piece of legislation “ the 2005
and 2006 Nethercutt Amendment to the Omnibus Appropriations Bill24 “
no Economic Support Fund assistance could go to countries party to the
Rome Treaty that had not concluded a BIA (subject to the same waivers as
the ASPA). EU and South American Common Market (MERCOSUR)
members collectively rejected the U.S. interpretation of Article 98, and most
of them individually refused to sign BIAs.25
The U.S. stance on the ICC is a consistent irritant in relations with its
European allies as well as with the countries potentially subject to the
cutoffs of aid prescribed by the ASPA. Along with its refusal to participate
in the Kyoto accords on global climate change, its strident position on
the ICC is a symbol of its rejection of principled multilateralism (as the
Europeans see them) in favor of unilateralist hegemonism.

Signs of a Change in U.S. Policy
By 2005“6, evidence emerged of divisions within the administration™s position
on the ICC. On September 9, 2004, then“U.S. Secretary of State Colin Powell
stated in testimony to the U.S. Senate Committee on Foreign Relations that
genocide was taking place in the western Sudan region of Darfur.26 The United
States pushed for UN Security Council economic sanctions against Sudan and
the creation of a commission to investigate the situation. When the commis-
sion reported back to the Secretary-General in January 2005,27 it concluded
that a ¬nding of genocide could not be made because there was no evidence of
government intent, a government policy, to commit genocide. ˜˜No genocidal
policy has been pursued and implemented in Darfur by the Government
authorities,™™ the commission stated, but this did not in any way detract from
˜˜the gravity of the crimes perpetrated in that region. International offences
such as the crimes against humanity and war crimes that have been committed
in Darfur may be no less serious and heinous then genocide.™™28


24
H.R. 4818 (2005); H.R. 3057 (2006).
25
Under the ASPA and Nethercutt Amendment waivers, the effect of the legislation is to target
U.S. pressure on weak and poor countries. NATO and ˜˜major non-NATO™™ allies are
automatically exempted from sanctions, and the President can waive their application on an
annual basis to other states on national security grounds.
26
BBC, ˜˜Powell Declares Genocide in Sudan™™ (2004).
27
UN, ˜˜Report of the International Commission of Inquiry on Darfur to the United Nations
Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004.™™
28
Ibid., 4.
176 Building the International Criminal Court

Because of its antipathy to the ICC, the United States argued that the
Sudan situation should be assigned to the Rwanda tribunal, or that another
new ad hoc tribunal under either UN or African Union auspices should be
established to pursue the Sudan situation. Other Security Council states
argued that the ICC was already established to deal with just such a situ-
ation. In a move generally attributed to the relative pragmatism of newly
appointed Secretary of State Condoleeza Rice, over the objections of
ideologically ¬red opposition from Ambassador Bolton, in March 2005, the
United States abstained from the Security Council vote that referred the
Darfur situation to the ICC. The United States made sure that the costs of
involvement of the ICC would be borne by the ICC or by voluntary con-
tributions, not by the UN regular budget (so U.S. funds would not ¬nd their
way to the ICC). Upon adoption of the resolution, the United States reite-
rated its objections to the ICC, said the United States would have preferred
a hybrid tribunal, noted that the resolution would prevent the ICC from
acting against citizens of states that were not party to the Statute (such as U.S.
citizens), and tacitly threatened that the United States would withhold its
dues to the UN if the UN furnished funds to the ICC.29 The United States had
nonetheless tacitly recognized that the Court might be useful and that there
were diplomatic and practical costs to opposing it.30
Other evidence accumulated that the U.S. position toward the ICC was
under pressure. Military and diplomatic of¬cials publicly stated that the
anti-ICC policy “ particularly the BIAs “ might be damaging U.S. relations
with other countries and causing them to turn to U.S. rivals for assistance.
U.S. Army Southern Command Commander General Bantz Craddock tes-
ti¬ed to the House Armed Services Committee in March 2005 that the
ASPA had the unintended consequence of ˜˜restricting our access to and
interaction with many important partner nations.™™ He said that of the
twenty-two nations worldwide affected by ASPA sanctions prohibiting
international military education and training (IMET) funds from going to
some Rome Statute parties,
11 of them are in Latin America, hampering the engagement and professional
contact that is an essential element of our regional security cooperation strategy. . . .
Extra-hemispheric actors are ¬lling the void left by restricted U.S. military engagement



29
UN Press Release SC/8351, op cit.
30
Cryer, ˜˜Sudan, Resolution 1593, and International Criminal Justice™™ (2006), 195“222,
argues inter alia that some of the Resolution™s paragraphs that re¬‚ect U.S. demands may not
be legal.
177
ICC“State Relations

with partner nations. We now risk losing contact and interoperability with a generation
of military classmates in many nations of the region, including several leading
countries.31

While the military realities of opposition to the ICC began to sink in,
Ambassador to the UN Bolton still pressed strident diplomatic opposition to
the Court. In fall 2005, the United States forced deletion of references to
the ICC in the documents of the 2005 United Nations Reform Summit at the
General Assembly.32 Similarly, in negotiations at the end of 2005 and the
beginning of 2006, the United States insisted on expunging references to
the ICC from the draft Security Council Resolution on the Protection of
Civilians in Armed Con¬‚ict.33
On February 2, 2006, the Pentagon released its Quadrennial Defense
Review. In the interest of improving the United States™ ability to cooperate
with other countries in pursuing national security goals, it declared that the
Department of Defense would ˜˜consider whether the restrictions on the
ASPA on IMET and other foreign assistance programs pertaining to security
and the war on terror necessitate adjustment as we continue to advance the
aims of the ASPA.™™34
In March, a Pentagon of¬cial argued that the costs of the ASPA might be
overwhelming its value. ˜˜One has to weigh the hypothetical bene¬ts of this
policy in the future against the very real damage it is in¬‚icting on our
important relationships in the region.™™ He was particularly concerned
about Mexico˜s recent rati¬cation of the Statute and its refusal to sign a
BIA. ˜˜In the case of Mexico, which is one of our most important rela-
tionships, there™s no question this is a setback. Suddenly we ¬nd we are in
this glass box where we can™t reach out to them.™™35
Secretary of State Rice appeared to agree with the Pentagon view. On
March 10, on her way to the inauguration of Chile˜s new President Michelle
Bachelet, she was asked about whether ASPA cutoff provisions might come
up during discussions with Chilean authorities, and she seemed to indicate
an understanding that the policy might be counterproductive. She said:

31
Craddock, Testimony, ˜˜Fiscal Year 2006 National Defense Authorization Budget Request™™
(2005).
32
NGO CICC, ˜˜International Criminal Court Must Remain in Final U.N. Reform
Document™™ (2005).
33
UN Security Council Report, ˜˜Update Report No. 4: Protection of Civilians in Armed
Con¬‚ict™™ (2006).
34
U.S. Department of Defense, ˜˜Quadrennial Defense Review Report™™ (2006), 91.
35
Robert Pardo-Maurer, the Deputy Assistant Secretary of Defense for Western Hemisphere
Affairs, quoted in Diehl, ˜˜A Losing Latin Policy: Are We about to Punish Democratic
Allies?™™ (2006).
178 Building the International Criminal Court

As to Chile and the ICC, we do have certain statutory requirements concerning the
ICC. I think you™re probably aware of, as I testi¬ed yesterday, that we™re looking at
the issues concerning those situations in which we may have, in a sense, sort of the
same as shooting ourselves in the foot, which is, I guess, what we mean. By having to
put off aid to countries with which we have important counterterrorism or counter
drug or in some cases, in some of our allies, it™s even been cooperation in places like
Afghanistan and Iraq. And so I think we just have to look at it. And we™re certainly
reviewing it and we™ll consult with Congress about it. But I think it™s important from
time [sic] that we take a look to make sure that we™re not having a negative effect on
the relationships that are really important to us from the point of view of getting our
security environment “ improving the security environment.36

Two further incidents showed that the United States was factoring the ICC
into its policies as a potentially useful instrument. In April, Nigerian
of¬cials delivered former President of Liberia Charles Taylor to the Special
Court for Sierra Leone in Freetown in connection with an arrest warrant
issued by the Court in 2003. The operation was carried out with the
consent of Liberia™s new President, Ellen Sirleaf Johnson, who according
to observers sought assurances from the United States and other countries
that Taylor would be removed from the region and tried elsewhere, pos-
sibly in The Hague. The United States played an important behind-the-
scenes role in negotiations to transfer Taylor to The Hague for a trial to be
conducted by the Sierra Leone Court, but on the premises of the ICC.37
Taylor arrived in The Hague on June 20, 2006. The United States accepted
the idea that ICC facilities could be used and paid for by the Sierra Leone
court and directly discussed the details with ICC personnel. In addition, in
May, Assistant Secretary of State for African Affairs Jendayi Frazer,
asserting the United States™ dedication to ending the Lord™s Resistance
Army™s depredations in Northern Uganda, declared in a speech to the
Royal Institute of International Affairs in London, ˜˜And as I say, as ICC
indicted war criminals, they need to be captured and turned over to the
Court.™™38
Perhaps most tellingly, in spring 2006, having had its proposals for
contacts with the ICC repeatedly rebuffed by Washington, the U.S. Embassy
in The Hague was permitted for the ¬rst time to send a representative to an

36
U.S. Department of State, Trip Brie¬ng, Secretary Condoleezza Rice (2006).
37
Negotiations over Taylor™s trial location grew increasingly complicated when Dutch
authorities sought guarantees that after the trial Taylor would become the responsibility of
some other state and as a rising chorus of civil society organizations in Sierra Leone
objected that Taylor should be tried in the region where he committed his crimes “ at the
Special Court.
38
Clarke, ˜˜U.S. Wants to Rid Uganda of LRA Rebels This Year™™ (2006).
179
ICC“State Relations

ICC diplomatic brie¬ng and to invite ICC of¬cials to its annual July 4,
Independence Day, celebration.39
In September, the House and Senate approved amendments to the ASPA,
repealing the ban on IMET funding to ICC state parties that had failed to sign
a BIA, and in October the White House announced that the President had
issued waivers on prohibitions to IMET aid to twenty-one states. Foreign

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