The United States and the International Criminal Court

While the United States is not a State Party to the ICC, its policy toward the Court and international justice in general is complex and ever changing. The US actively participated in the Rome negotiations and many compromises in the powers and jurisdiction of the Court were made to appease the American position and ensure its signature.  But under the Bush administration the US sought to both oppose and undermine the ICC. The selected parts of the Schiff reading detail this policy background and the basis of US opposition.  The Obama administration’s position on the ICC is not one of ideological opposition, but rather constructive engagement while still staunchly remaining outside the reach of it’s jurisdiction.For more information, see the following resources:

USA and the ICC from the Coalition on the International Criminal Court

Info about the US & ICC from the American NGO Coalition for the ICC

Here are a few questions for us to think about and discuss:

1) What is the basis of US opposition to the ICC? Is it justified in terms of ensuring that the world’s superpower is not frivolously prosecuted and can provide for global security? Or is it inexcusable as a case of American exceptionalism?

2) Does it matter if the US is a State Party? How would the ICC be helped or hindered by greater US support?

3) What exactly IS current US policy and public opinion on the ICC?

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17 responses to “The United States and the International Criminal Court

  1. cbilgrie February 16, 2011 at 1:38 pm

    In responding to the questions, particularly about the United States’ open opposition to the ICC, I see no reason why the United States should be penalized or even looked down on for not wanting to ratify the ICC treaty. The amiicc.org article says that the Obama administration is supporting the ICC, but not announcing any official position and not jumping on board to sign the Rome Statue. This seems to be the best policy as it supports the progress of the ICC, yet doesn’t allow the ICC to have any control over the U.S. I don’t think the ICC should have any control over the United States, and if anyone from the U.S. was ever indicted, we should refuse to turn them over. Our criminals should be tried in our own courts and the international community should have an opinion on it, but not direct control of how the U.S. treats its judicial proceedings. The ICC can certainly be aided by American support primarily because of all the leverage that the U.S. carries. The U.S. is the most powerful nation in the world and certainly one of the only ones that can mobilize their military to quick and efficient action. Without the support of the U.S., the ICC loses a lot of power and legitimacy but that doesn’t mean we should jump head first into joining, but rather give open support to the ICC. As far as American exceptionalism goes, I think that realistically out nation is different and that we should realize that. Our nation allows freedoms that many nations take away and this sense of exceptionalism needs to be maintained. Having said this, we can still openly support the ICC, but we should necessarily cooperate with the U.N. or the ICC just because they say so. When aiding the ICC we need to do so for the benefit of the United States, not for the benefit of the ICC.

  2. ejpleasant February 17, 2011 at 1:06 am

    This is mostly speculation, but I think the United States’ biggest motive for backing out of and unsigning the Rome Statute is that President Bush most likely did not see any tangible benefit for the U.S. to be a part of the International Criminal Court. As the world hegemon, the U.S. has become accustomed to leading the world in international affairs. Joining the ICC would only dilute the power the U.S. has on the global scene. Also, ratifying the Rome Statute and joining the ICC could be viewed as creating the potential to have our sovereignty violated. As the leader of the world’s largest economy and the possessor of the most powerful standing army the U.S. could lose it’s recognition as superior if it were to put itself on the same level as the other signatories. If the U.S. was to join the ICC I think it would prove to have more symbolic worth than judicial. If the U.S. as the world hegemon was to join the ICC it may give the court more credibility. The most powerful nation has deemed it as an effective mode of international justice therefore it’s decisions may be seen to hold more weight. However, as I previously stated there is no reason that appeals to the U.S’s self interest as a superpower to join. The U.S. has a choice to make, promote a system of international judicial equality or remain the tough guy the rules don’t apply to.

    -EJP

  3. ejbrewster February 17, 2011 at 3:19 pm

    The United States not signing onto the ICC is a politically strong move. While it may be morally questionable our current position allows us to support the court, and the work that it does but gives security to all future US administrations that may misstep. This also enables the United States to act in the manner that we have all grown accustom and comply with our constitution being the highest form of law for all of its citizens. As it stands when actions are being questioned we ultimately look to our constitution and the acceptance of the ICC would require us to report to an even higher power, that being the international community. The US joining the ICC would also take away a lot of their political power, they, for the same reasons as many other larger nations shy away from signing into things that can give many small nations a voice. In the ICC all of the smaller nation’s who need a collective international voice have the power to essentially gang up on the previously untouchable powerful nations. The United States strictly political reasons for not joining the ICC puts them in a position to be able to control the goings on of the court and not have to be held up to the same standards. This being said from a moral standpoint this is holding our country to a Massive double standard shedding them in a very bad light.

  4. chrisumass February 17, 2011 at 4:23 pm

    In the Schiff reading the idea that joining the ICC would put our constitution in some conflict is a reasonable concern, and I believe that to an extent. I mostly believe that America has many political ties to states that are opposed to the ICC and wishes to remain neutral on the subject by not throwing in its support. I agree with cbilgrie that American exceptionalism is not an inexcusable offense, and that America is fully within its own ability to prosecute its own perpetrators. If America was a state party to the ICC I feel perpetrators would be gotten quicker but trials would still run slowly. With the addition of America, procedures would run slower since American judicial systems run a little differently than european ones and arguements over decision making processes would have to be ironed out. Based on http://www.amicc.org/info.html our current policy is not being detrimental but not being a member. We will provide support in “spirit.”

  5. julespc February 18, 2011 at 11:51 am

    I see the issues of the US joining the ICC as partly a case of American Exceptionalism, but more importantly it is an indication of our governments fear of having our leaders prosecuted. This is a concern because it implies that our leaders have committed crimes (crimes against humanity or war crimes). The ICC only prosecutes individuals who have committed atrocious crimes and as indicated in the ICC video in class they are only successful when their is regional support of the prosecution (Darfur). So what is the US hiding. This is obviously a political issue for the US, but I think the whole constitutional dilemma is a basic cover-up. The US government never tells it citizens that real motivations behind its decision. There is no transparency, just concealment. The ICC represents transparency and thruthfulness, something the US government is not going to risk. Russia and China have not signed for the same reasons, and only small less powerful states have signed for protection.

  6. ayingling February 19, 2011 at 4:21 pm

    I agree with many of the comments above. I think the Obama administration should not resign the Rome Statute, or take any steps that would undermine the Bush administration’s efforts in separating ourselves from the ICC’s jurisdiction. It is simply not in the United States interest to give the ICC authority over our sovereignty in anyway, while the court has so many serious flaws. The ICC has a very noble cause, but without greater support from the United States and a signature, the court lacks credibility. When it comes to providing support for the court, the U.S. should always keep its national interest as the top priority.

  7. myongha February 19, 2011 at 9:00 pm

    Unlike all the realistic point of views on this matter, my opinion is somewhat more idealistic, and I believe that the United States, as a global hegemon, should ratify the ICC treaty. Since the United States have played a hegemonic role for a long time, it seems like we cannot stand anything that has the potential to dilute our authority and control over the world. Joining the ICC, however, does not necessarily undermine our sovereignty. Rather, it would help us to enhance our prestige, which has been declining as new rising powers have been emerging. We need to think how we can make ourselves distinct from other rising powers. What enabled us to maintain a hegemonic role was our gigantic economic power and projective military power, but what made us different from other powers was the fact that we tried to uphold our principles: democracy, liberty, human rights, and so forth. Therefore, singing the ICC is associated with our national interest, and by contributing our effort to eradicate impunity in the world, we can make ourselves a respected and just leader.

  8. Hunter February 19, 2011 at 9:25 pm

    The United States is undoubtedly one of the most politically conservative developed countries, therefore it is somewhat fitting that there should be opposition to becoming a member of an international institution that has the ability to override state sovereignty in making arrests. However, I think that there is a significant chance that the US will sign on to the ICC again in the near future. As others have said, the power and legitimacy of the ICC would greatly increase if the US signed on as the US has strong international clout. The fact that the current administration is much friendlier to the ICC’s existence than the previous one is already a good sign. The ICC is also still relatively young, and with time I feel that the growing spirit of international cooperation amongst developed nations and increased globalization will eventually bring the US back into the fold of the ICC.

    • ejpleasant February 19, 2011 at 10:32 pm

      An idea that I don’t think has been sufficiently explored on this post is why the United States SHOULD ratify and re-sign the Rome Statute, effectively joining the International Criminal Court. Yes, there are possible sovereignty violations that the United States has reason to be hesitant about, but do they outweigh the moral obligations of joining the ICC? As many people above have said the U.S. is the world superpower with the largest economy and the greatest amount of global influence. This should not be a reason to avoid the court however. The U.S. has the opportunity to strengthen the power of the ICC exponentially. The ICC rulings would be more credible with the U.S.’s presence on the bench, sending a message to international human rights criminals that their crimes will not go unpunished. With the help of the most powerful nation on the Earth, the ICC will bring about the justice it preaches each victim of such inexcusable abuse deserves. Those who have suffered through such atrocities will know their pain will not be left forgotten. That they will receive the justice they are entitled to as human beings. The U.S. may have sovereignty to lose if it joins the ICC, but the world as a united front has more to gain. The reason the U.S. should join the ICC is mainly symbolic, a symbol of “justice equality” for all, a promise made by Barack Obama on the campaign trail, “Yes we can, repair this world.”

      -EJP

  9. taramariekelly February 20, 2011 at 1:46 pm

    The ICC would greatly benefit from the U.S signing onto the Rome Statue, and becoming a state party. While I understand the U.S hesitation towards this fear of being indited, I do not feel that the U.S should be exempt from being punished for severe crimes committed. If the ICC, or the Security Council believes that the U.S is at fault for specific atrocities and if the U.S is unwilling or unable then they should not be exempt. It is situations such as this that create the illusion of western states attacking the non-western states. The cases currently in the ICC are mainly from African countries. This may be because these are where the major atrocities are, but by the U.S signing to be a state party it demonstrates that they too can be punished from crimes against humanity etc. The U.S for many decades has been looked to for help around the world, but has also proved itself to be some sort of a world police, and while signing the ICC would relinquish some of its control and dominance it would be accomplishing a greater goal of universal justice. The Rome Statue clauses that were incorporated to appease the U.S, I believe would protect the U.S from being frivolously prosecuted. The ICC would gain a important legitimacy to other superpowers if they were to sign the statue, however the ICC faces challenges already with gaining support from certain countries and victims for example in Uganda. I think having the U.S part of the ICC would further hinder its efforts to gain support in these countries.

  10. umassastick February 20, 2011 at 2:34 pm

    Personally, I feel that the US should definitely join the ICC on the mere fact that by not joining, they are sending the world the message that justice isn’t all that important after all. As a number of people have mentioned in this blog, the US has historically asserted itself as the world police and so it would only make sense for it to support something like the ICC just based on consistency. That being said, I doubt the US ever actually will join the ICC. Joining the ICC would put US elites in an extremely vulnerable position and as much as the US says it supports justice, the fact of the matter is that domestic security is the #1 goal for the US. Unless there is an ICC case that is a direct threat to US security, it won’t make anywhere close to the top of the agenda– that’s just US policy. Until that attitude changes, we won’t see the US join the ICC.

  11. mara.m February 20, 2011 at 7:25 pm

    Even though I personally think that the United States should join the ICC, morals aside, it’s understandable as to why there are those who believe the United States should have nothing to do with it. I think that as a world super power, the United States should use its influence in the ICC to encourage justice. It seems slightly hypocritical to me that the US has no problem giving astronomical amounts of financial aid to countries’ leaders or militaries that may not be worthy; the United States gave Mubarak just over $2 billion every year since 1979 while he was in power, even though his “presidency” was more of a dictatorship and the country slid into depression. Why support dictators with financial aid when we can be giving financial aid to a court which aims to bring elitist perpetrators to justice? However, like I said, it is understandable that the US does not want to be part of the ICC, due to the conflict of sovereignty, not to mention the fear of US citizens being presented before the court for crimes against humanity. I don’t think the US should be above International Law, and it seems that if we’re going to be a super power, then we might as well take on the responsibilities of such, providing a “good example” (for lack of a better term) for developing nations, or any nation for that matter. I don’t think the US will ever resign the Rome Statute, but I personally think we should participate in the ICC.

  12. jennaumass February 20, 2011 at 11:37 pm

    The Obama Administration has been more open minded about the ICC than President Bush but I don’t think anyone in Washington is in a rush to sign anything. The Obama Administration has been trying to improve the U.S image but the fact that we are still engaged in conflicts in the Middle East makes the U.S a potential target of the court. The preemptive war strategy used to justify invasion of Iraq in 2003 could lead to many problems for the U.S due to its global unpopularity. The power of the ICC interferes with the U.S’s ever-important national interest, regardless of U.S role in the Security Council and creation of the Court itself.

  13. efpolsci February 21, 2011 at 2:58 pm

    I find myself supporting the idea to develop a new ICC policy embracing some different elements, however I am not so sure about the ratification of the Rome Statute at this point in time. It would not even be realistic to expect the ratification to happen quite yet, however making steps towards it is necessary for the United States on a global level. Even before the court was a full-functioning judicial body in 2002, Bush decided the Court was going to be an anti-American campaign and was imposing anti-ICC policies and forcing BIAs supporting American impunity in dozens of nations around the world. During his second term, when it became clear that the ICC was, in fact, a responsibile legislative body, some of the anti-ICC rhetoric faded away. The US has stayed and continues to stay at a standstill. If the United States backed the ICC more, and made more of an effort to be included with the International Community without having to sign the Rome Statute, that would be a start. Taking part in ICC meetings would be an obvious first step towards this, as well as sharing intelligence and providing resources. The United States would benefit the ICC on such a large scale if they were to share resources, much more than just verbally stating that they support the actions that the ICC is taking.

    I feel, however, that currently the United States remains isolated from the International Community with regards to the ICC and impunity. At this day and age, if the US was to ratify the legislation for the ICC, many anti-American groups would use this against the United States. With the War on Terror and the rise of American interventionalism, I find it difficult to say that the United States would not be treated unfairly by angry nations party to the ICC and extremely opposed to the United States. We must move forward towards supporting the ICC on a greater scale, however, we must take our time doing so.

  14. alaael February 21, 2011 at 7:51 pm

    Most people responding who are in favor of the US remaining outside the ICC argue something along the lines of defending American exceptionalism, or that being part of the court somehow prevents America from defending its interests abroad.
    Perhaps these people need to consider a couple of points. First, America is not exceptional. America is responsible for a humanitarian crisis in Iraq (including a cancer epidemic from the use of uranium depleted shells in southern Iraq), supports regimes that have committed genocide (Indonesia’s Suharto), engaged in ‘quiet diplomacy’ with Apartheid South Africa, financed the brutal dictatorship of Hosni Mubarak and refused to recognize the Rwandan Genocide for a year. Additionally, Americans have consistently voiced their support for joining the ICC in polls, which show overwhelming support reaching up to 70%. If this were truly a special democracy, then perhaps the population’s wishes would have been translated into action by now. http://www.amicc.org/docs/WICC_USpublicOp.pdf
    Secondly, I believe that Americans should be held to the same standards as everyone else. The fact that they are not infuriates the outside world. Joining the court would not hinder American interests, on the contrary it would signal to the world that America is taking international laws seriously, giving others incentive to follow the rules as well. Just ask yourself, if somehow the American army commits genocide somewhere, do you really think the commander in chief should remain above the law?

  15. lniederp February 21, 2011 at 10:06 pm

    United States initial complaints about the ICC were directed at the 2nd and 3rd “trigger” mechanisms of investigation which were, the referral of a case from a member state, and an investigation originating from the Office of the Prosecutor (propio motu). The United States maintained that the only mechanism for referral should be the unanimous vote from the United Nations security council, essentially, the ICC would be a permanent ad hoc tribunal, operating in similar fashion to the ICTY and ICTR. This would ensure United States foreign policy positions to be reflected in indictments issued by the ICC. The second and third “trigger” mechanisms loosened this strangle of power the United States held over the ICC and disseminated power internationally and back to the court itself. The United States does not have friends it has interests, and under the last two administrations (Clinton & Bush) the United States has been interested in stagnantly supporting but not ratifying the court, and making a concerted effort to undermine the court, respectively. In both administrations, regardless of whether our President was left or right of center, ratifying the treaty did not reveal itself as a large enough interest for the United States, stemming from the broadening of power under the second and third trigger mechanisms. I truly believe the United States opposition of the court does not stem from concerns about protecting state sovereignty, I think opposition stems from the fact other nation’s interests are to well preserved under the current “trigger” mechanisms of referral, that the U.S does not see substantial gain from ratification.

  16. marinagans February 23, 2011 at 5:17 pm

    For me the United State’ lack of support for the ICC does not make sense. Under Bush the United States chose to undermine the court and some representatives even made statements saying that the ICC is not a concern to them, or a legitimate source of authority and that if any U.S. official or citizen was ever arrested and brought the the Hague the U.S. would do everything in their power to break that person out of jail. My interest is the question of sovereignty. The United States will not become supporting members of the ICC because it may question their sovereignty and may prosecute Americans for the crimes they have committed. I do not see this as a bad thing, if the U.S fears the ICC checking into things like the war in Iraq and other wars that the United States has participated in then they should not be fearful but do what is right, if atrocities against humanity have been committed in these countries by the U.S. then the ICC should be investigating them. No country no matter how prosperous or powerful has the right to undermine human rights and get away with it. I feel like more countries should be referred to the ICC by the UN security council and that at some point the ICC membership should be enforced on all states so that equality can apply to the entire world including the U.S. and not just less powerful countries.

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