Should the ICC Allow the United States to Become a State Party?

[Dr Caleb H Wheeler is a Lecturer in Law at Cardiff University.]

Introduction

The Rome Statute of the International Criminal Court (‘ICC’ or ‘the Court’) was agreed on 17 July 1998. The United States played a very active role in the arduous negotiation process, shaping significant portions of the Statute and occasionally threatening to derail the talks when decisions were made that it did not agree with. In the end, and despite their heavy involvement, the United States was one of seven states to vote against the Statute. The United States objected to the agreed Statute on several bases, the most significant being the ICC’s exercise of jurisdiction over nationals of non-state parties when their alleged criminality occurred in the territory of a state party or a state consenting ad hoc to the exercise of jurisdiction.  Due to these concerns the United States has resisted calls to join the ICC. 

There have been five US presidents in the years since the Statute was concluded, each of whom have seemingly engaged with the Court in different ways. Their approaches have ranged from condemning the ICC as a rogue organisation that threatens American sovereignty to a possible solution to the problem of how to punish Putin for the Russian invasion of Ukraine. However, the differences in how four of the five administrations engaged with the ICC are largely superficial and that position of each has largely been informed by the same motivations: to encourage and sometimes assist the Court when it is pursuing the arrest of individuals to whom the United States is either hostile or indifferent, and to condemn it when the Court’s activities may affect American citizens. This approach indicates that the United States is only interested in accountability when it is directed at individuals the United States thinks should be targeted, a position that is directly contradictory to the ICC’s mission statement of ending impunity. Therefore, the ICC needs to consider whether it wants a state as a party that is uninterested in furthering the Court’s mission.

The Clinton Administration’s Tepid Acceptance of the ICC

Bill Clinton may have been the American president who best understood the ICC. Clinton was in office when the Rome Statute was negotiated and he decided to sign the Statute prior to the signing deadline on 31 December 2000. In the statement accompanying the signing of the Statute, President Clinton identified the importance of holding accountable those individuals accused of committing crimes falling under the Rome Statute and the United States ‘tradition of moral leadership’ when it comes to those efforts. He also highlighted that the ICC is a Court of complementary jurisdiction, although his explanation of how complementarity works was somewhat lacking. Despite these positive aspects of the Statute, President Clinton also identified several negatives that he felt militated against the US signing the Statute. These included a fear that the Court would prosecute citizens of non-member states (i.e. the United States) and that trials at the Court could become politicized. He counselled caution and a need to see how the Court operated before the US made the decision to join.

Bush’s Protective Stance Against the ICC

His successor, George Bush doubled-down on Clinton’s concerns and established himself as a firm opponent of the ICC. Bush’s position on the ICC was largely influenced by John Bolton, who served in the Bush administration as the Under-Secretary of State for Arms Control and International Security and later as the Ambassador to the United Nations. Bolton has identified numerous criticisms of the ICC, chief amongst them being his perception that the Court’s Prosecutor is ‘politically unaccountable’ due to the fact that their power is unchecked by a legislative body. President Bush parroted this concern in a 2002 speech delivered to active members of the United States Army when he too referred to the ICC as ‘unaccountable.’

Bush’s position seems motivated by the concern that the ICC could be used as a tool to hold American citizens accountable for their actions, something he felt should remain the exclusive domain of the United States itself. In his statement, he specifically refered to the fact that American service members should be accountable only to their superior officers and military law. In an effort to protect against the prosecution of American citizens, the Bush administration entered into over 100 bilateral agreements with ICC states parties in which they guaranteed not to surrender Americans to the Court should an arrest warrant be issued against them.

President Bush was far more willing to support the ICC’s work when it was directed against countries other than the United States. This can be seen in his willingness not to oppose the Security Council’s referral of the situation in Darfur to the Court. His concerns about the ICC’s alleged lack of accountability, and the accompanying danger that they Court could be politicized, gave way when he saw the possibility of gaining a personal political advantage from the Court’s actions.

Obama’s Thawing Relationship with the Court

Soon after taking office, the Obama administration signalled its intent to work more closely with the ICC than had his predecessor. Within the first two years of Obama taking office the United States would attend the ICC’s Assembly of States Parties as an observer and participate in the Review Conference of the Rome Statute held in Kampala, Uganda. In subsequent years, the administration also helped to facilitate the transfer of Bosco Ntaganda and Dominic Ongwen into ICC custody. Both men were subsequently tried and convicted by the Court. The Obama Administration also voted in favour of the Security Council resolution referring the situation in Libya to the ICC. Despite these efforts to positively cooperate with the Court, the Obama administration did not always support the work of the ICC. In 2014, following the deployment of American troops as peacekeepers in Mali, President Obama issued a memorandum in which he asserted that those troops would not be subject to criminal prosecution or other assertions of the ICC’s jurisdiction due to an existing agreement between the USA and Mali. Like Bush, Obama was markedly more interested in supporting the ICC’s work when it could not result in Americans being held accountable by the Court.   

Trump’s Strident Opposition to ICC

The tide turned against the ICC following Donald Trump’s election as president in 2016. On 10 September 2018, John Bolton, in his role as National Security Adviser, attacked the Court as ‘illegitimate’ and claimed that ‘for all intents and purposes, the ICC is already dead to us.’ Trump reinforced those contentions in his address to the United Nations General Assembly two weeks later when he asserted that ‘the ICC has no jurisdiction, no legitimacy and no authority.’ Bolton and Trump’s criticisms are largely a replay of the Bush era allegations that the Court and its Prosecutor are ‘unaccountable’. Bolton elaborated on those assertions by also suggesting that the powers of the Prosecutor are ‘unchecked’. His reasoning behind this conclusion is somewhat convoluted, but it appears to reflect concerns about the process in place to remove the Prosecutor from office should they behave improperly. What makes his comments confusing is the fact that he recognises that a procedure does exist for removing the Prosecutor for misconduct, the existence of which suggests that they are accountable. What Bolton’s comments reveal is that he is not concerned about the Prosecutor’s lack of accountability, but rather that the United States does not have more control over when to hold the Prosecutor accountable.   

The Trump administration continued its attack on the ICC in 2020, when it introduced economic and travel sanctions against the Prosecutor, Fatou Bensouda and Phakiso Mochochoko, the Head of the Court’s Jurisdiction, Complementarity and Cooperation Division. The administration justified the sanctions on the basis that Bensouda and Mochochoko were engaging in the ‘politically motivated’ targeting of American soldiers who served in Afghanistan. The sanctions order called the investigation ‘unjust and illegitimate’ without elaborating as to either claim. However, an earlier Executive Order issued by Trump authorising the use of sanctions against ICC employees linked them to the ICC’s assertion of jurisdiction over possible criminality occurring in Afghanistan, a state party to the Rome Statute. Once again, the US position as to the ICC seems determined by its perception as a threat.

Biden Sees the ICC as a Possible Solution

Since his election, President Joe Biden has demonstrated a somewhat more favourable attitude towards the ICC. Following the Russian invasion of Ukraine, Biden very quickly engaged with the idea that Russian President Vladimir Putin was committing crimes for which he should be put on trial. Biden declared Putin a ‘war criminal’ within a month of the start of the invasion. He reiterated that claim several weeks later and also declared the need to gather evidence to be used during a ‘war crimes’ trial. He followed that statement with a declaration that Putin was committing a genocide in Ukraine, and that it would be up to international lawyers to work out whether Putin’s actions legally qualified as genocide. Despite using the terminology of the ICC when calling for Putin’s prosecution, Biden and his administration have been much more hesitant about turning to the ICC as a venue for that trial. One of Biden’s deputy national security advisers, Jon Finer, called holding trial at the ICC ‘a challenging option’, citing jurisdictional and membership issues as roadblocks.

Political Ideology Guides Presidential Policy on the ICC

A great deal of what each American president has said about the ICC is rhetoric directed at galvanising support amongst their political base. This is particularly true of the two republican presidents, Bush and Trump, whose position on the Court was largely formed by John Bolton. Bolton was a protégé of former republican Senator Jesse Helms, a leader of the conservative movement in the United States and vehement opponent of the ICC. Like Bolton, Helms also railed against unaccountable international prosecutors and judges and once stated during a meeting of the Senate Committee on Foreign Relations that any exercise of ICC jurisdiction over American citizens would be ‘nonsense’. He went on to say that the Court represents a threat to the national interests of the United States and that the country should actively oppose the ICC ever coming into being. During the same meeting, Senator Rod Grams referred to the Court as ‘a monster’ that needed to be slain. These views reflect the thinking of many American conservatives about the ICC, and the criticisms levelled against the Court during the Bush and Trump administrations were little more than the espousal of that long-standing position.

The war in Ukraine has at least temporarily broken down some of the pre-existing opposition to the ICC. On 15 March, the US Senate unanimously passed a resolution calling on the member states of the ICC to petition the Court to investigate war crimes and crimes against humanity being committed by and at the direction of Vladimir Putin. The resolution was sponsored by Senator Lindsey Graham, a self-described ‘conservative problem-solver’. Several weeks later, the House of Representatives passed a bill with overwhelming bi-partisan support that directed the President to report on efforts the United States was making to collect, analyse and preserve evidence of Russian crimes committed in Ukraine for use in any future domestic, foreign or international proceedings. While it did not refer directly to the International Criminal Court, one of the bills’ co-sponsors, Representative Ilhan Omar stated in a Press Release that the Bill would help support proceedings at the ICC.

Conclusion

The actions and statements of the last five presidential administrations suggest that they do not fully understand what the ICC actually does and that they are not particularly interested in finding out. They have only been interested in engaging with the Court as a tool to be used against others rather than as a real instrument designed to combat impunity. This was made clear in a recent statement by Linda Thomas-Greenfield, the US Ambassador to the United Nations. When asked about trying Putin at the ICC, she responded that it remained available as an option and that the United States has always been supportive of the Court taking action ‘when action is required.’ Implicit in this statement is the idea that holding Americans accountable is never required.

The problem with this approach is that the United States’ understanding of when action is required differs from that of the Court. The ICC was founded on the principle of ending the impunity of individuals committing genocide, war crimes, crimes against humanity and the crime of aggression regardless of their official position or national affiliation. From the Court’s perspective, action is required when it can help achieve that purpose. The United States takes a different approach to deciding when action is required. It only believes in action against its enemies or citizens of those countries that is does not really care about. When the United States or its friends are threatened with prosecution, even in the face of overwhelming evidence of criminality, it rejects that action as an impermissible infringement on sovereignty. In the end, these two approaches are incompatible.

That leaves the Court with a choice. It can either change its mission to secure American membership or stay the course and continue to pursue its goal ending impunity. The first path would likely result in the ICC receiving greater political, intelligence and financial support from the United States, making it easier for the Court to conduct investigations and prosecutions. In exchange, it would almost certainly need to institute a policy exempting American citizens from prosecution in at least some situations. This could lead other states, particularly those that also regularly participate in peacekeeping efforts, to seek similar protections for their own citizens. That would result in the development of a two-tiered jurisdictional structure at the ICC under which individual criminal responsibility would depend as much on the citizenship of the accused as the circumstances surrounding their alleged criminality. Such a change would fundamentally alter the Court’s mission by making full accountability for atrocity crimes an unattainable goal. Until the United States is willing to drop its objections to how the ICC exercises its jurisdiction, the Court is better off without the United States as state party and should resist any attempts it might make to join.