U.S. Affirms that It Adheres to Rome Statute Signatory Obligations: It Should Put This In Writing

[Jennifer Trahan is associate clinical professor at NYU’s Center for Global Affairs (NYU-SCPS). She is also chair of the American Branch of the International Law Association International Criminal Court Committee and was a member of the American Bar Association’s 2010 International Criminal Court Task Force.]

A little-noticed event has taken place.  Before he returned to Yale Law School, top State Department Legal Advisor Harold H. Koh has made it clear in three speeches that the U.S. (despite an earlier writing to the contrary made under the Bush Administration), does respect the “object and purpose” of the International Criminal Court’s Rome Statute.  In other words, the U.S. considers itself a signatory to the treaty.  Koh’s words—which reaffirm only a lose commitment to support the Court—are nonetheless a significant step in the right direction, continuing the U.S.’s policy (under the Obama Administration) of positive engagement with the ICC.

On December 31, 2000, then-U.S. War Crimes Ambassador David Scheffer signed the Rome Statute on behalf of the U.S.  Under article 18 of the Vienna Convention on the Law of Treaties, a signatory is obligated not to do anything that would undermine the “object and purpose” of a treaty.  (The U.S., which is not a party to the Vienna Convention, does recognize it as customary international law.)  However, by note dated May 6, 2002, the Bush Administration stated that the U.S. was no longer bound by the obligations of a signatory. Specifically, the note from John R. Bolton stated that “the United States does not intend to become a party to the treaty.  Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000.”

Koh has now orally negated the Bolton note by remarks he made that the Administration’s policy is not to defeat the object and purpose of the Rome Statute.  He stated this at N.Y.U.’s Center for Global Affairs on October 27, 2010, the Grotius Center of Leiden University on November 16, 2012, and the New York City Bar Association on November 26, 2012.

The Bolton 2002 note did not in fact withdraw the U.S.’s signature because there is no provision in the Vienna Convention for removing a signature to a treaty.  Yet, it was nonetheless a dispiriting low-point that the Bush Administration chose not to adhere to even the very minimal obligations of a signatory to the treaty—not to undermine the “object and purpose” of the ICC.

While various NGOs and others—including the American Branch of the International Law Association’s International Criminal Court Committee (which this author chairs)—have urged the Obama Administration to send a new note negating the Bush Administration’s note, Koh’s oral statements are nonetheless welcome.  While the statements do not necessarily have the weight of a counter-note, hopefully, support will galvanize to send such a counter-note.  Koh has taken the position that Bolton’s note is merely a piece of “graffiti” and no further action is required; yet, the U.N., in its listing of Rome Statute States Parties and signatories has a footnote by the U.S.’s name still reflecting the Bolton note as the official position of the U.S. government.

Being a signatory only creates a loose commitment for a state to support a treaty, and is in no way akin to joining the treaty—done through the process of ratification or accession.  The U.S.—which now supports the ICC’s work on a case-by-case basis—should have no problem in supporting the “object and purpose” of a court designed to prosecute the worst instances of genocide, war crimes and crimes against humanity.

UPDATE: See also Dianne Marie Amann’s post here.