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

by Jennifer Trahan

[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.


5 Responses

  1. First of all, Article 18 of the VCLT only applies to a treaty prior to it entering into force, which the Rome Statute did back in 2002.
    Secondarily, I’m not sure that the US really does accept the VCLT as CIL, considering that it disregards Articles 19 and 20 quite actively.
    It seems quite a stretch to me to say Koh’s words have any significance at all, save an expression of his own opinion.

  2. It is clear that the Obama Administration is thwarting the manifest object and purpose of the Rome Statue — consider the fact that no one has been prosecuted for genocide, crimes against humanity, or war crimes in U.S. federal district courts despite the fact that several foreign accused have been served process here and sued for such international criminal activity (either as direct perpetrators who authorized such or who engaged in such directly, or as complicitors, etc.).  The preamble to the Rome Statute reaffirms the customary obligation of all states aut dedere aut judicare and declares a primary purpose to “end impunity”!  With all of the present revelations concerning what President Bush admitted was his “program” of secret detention (i.e., crimes against humanity and war crimes), transfer of non-pows out of occupied territory (i.e., a patent violation of GC art. 49, a war crime and grave breach), and waterboarding and other tough interrogation tactics (i.e., torture and cruel and inhumane treatment — war crimes, violations of the CAT, etc.), he is beyond a reasonable doubt reasonably accused. Cheney has admitted his complicitous role, as did Rice. And there are so many others who are reasonably accused, including memo writers who knew or were aware that their conduct can or will facilitate waterboarding, the cold cell, etc. Ignorance of the law, of course, is no excuse and one does not have to know that waterboarding is torture (as 29 U.S. cases, 7 US Dep’t of State HR Country Reports, and decisions of international tribunals had demonstrated — and if it isn’t torture, war crime include cruel treatment as well as inhumane treatment).
    “Adheres” to Rome Statute’s object and purpose?  Not yet!

  3. All Koh said was “What you quite explicitly do not see from this Administration is U.S. hostility towards the Court. You do not see what international lawyers might call a concerted effort to frustrate the object and purpose of the Rome Statute. That is explicitly not the policy of this administration. Because although the United States is not a party to the Rome Statute, we share with the States parties a deep and abiding interest in seeing the Court successfully complete the important prosecutions it has already begun.”
    That’s not quite the equivalent of “the U.S. considers itself a signatory to the treaty” no matter how you read between the lines. Obama hasn’t withdrawn from a single Art. 98 agreement, hasn’t sought repeal of the ASPA, etc. In other words … not gonna happen.

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  1. […] given two years earlier, on which IntLawGrrls then had posted. (And see Jennifer Trahan’s OJ post.) Koh quoted the 2010 statement in his speech last November, as […]

  2. […] Prof. Jennifer Trahan’s op-ed “U.S. Affirms That it Adheres To Rome Statute Signatory Obligations: It Should Put This in Writing” has been posted on Opinio Juris. […]