Dab solver - United States and the International Criminal Court

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== Signing and ratification ==

Following years of negotiations aimed at establishing a permanent international tribunal to prosecute individuals accused of [[genocide]] and other serious , such as [[crime against humanity|crimes against humanity]], [[war crime]]s and the recently defined [[crime of aggression|crimes of aggression]], the [[United Nations General Assembly]] convened a five-week diplomatic conference in Rome in June 1998 "to finalize and adopt a convention on the establishment of an international criminal court".^ref^ref  On 17 July 1998, the [[Rome Statute of the International Criminal Court]] (Rome Statute) was adopted by a vote of 120 to 7, with 21 countries abstaining.^ref  The seven countries that voted against the treaty were [[Iraq]], [[Israel]], [[Libya]], the [[People's Republic of China]], [[Qatar]], [[Yemen]], and the [[United States]].^ref

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{{Use mdy dates|date=April 2012}}
The [[United States]] is not a participant in the [[International Criminal Court]] (ICC). The ICC is a permanent international [[criminal court]], founded in 2002 by the Rome Statute to "bring to justice the perpetrators of the worst crimes known to humankind – war crimes, crimes against humanity, and genocide", especially when national courts are unable or unwilling to do so.<ref>{{cite book|last=Human Rights Watch|title=Courting History: The Landmark International Criminal Court's First Years|year=July 2008|location=New York}}</ref>

As of September 2012, 121 states are members of the court and 32 countries have signed but not [[ratification|ratified]] the [[Rome Statute of the International Criminal Court|Rome Statute]].<ref name="Rome Statute">{{cite web|url=http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en|accessdate=October 19, 2010|title=UN Treaties: Chapter XVIII – Penal Matters – item 10. Rome Statute of the International Criminal Court}}</ref> Other countries that have not signed or ratified the Rome Statute include [[India]], Indonesia, and [[People's Republic of China|China]].<ref name="Rome Statute"/> On May 6, 2002, the United States, in a position shared with [[Israel]] and [[Sudan]], signed the Rome Statute but formally withdrew its intent of ratification.<ref name="Rome Statute"/>

Positions in the United States concerning the ICC vary widely.  The Clinton Administration signed the Rome Statute in 2000, but did not submit it for Senate ratification. The [[Presidency of George W. Bush|Bush Administration]], the US administration at the time of the ICC's founding, stated that it would not join the ICC.  The [[Presidency of Barack Obama|Obama Administration]] has subsequently re-established a working relationship with the court.<ref name="engagment">{{cite web|url=http://www.state.gov/j/gcj/us_releases/remarks/143178.htm|title= U.S. Engagement With The International Criminal Court and The Outcome Of The Recently Concluded Review Conference|date=June 15, 2010}}</ref>
[[File:Netherlands, The Hague, International Criminal Court.JPG|thumb|right|230px|The International Criminal Court in The Hague]]

==Signing and ratification==
Following years of negotiations aimed at establishing a permanent international tribunal to prosecute individuals accused of [[genocide]] and other serious <<link:0>>, such as [[crime against humanity|crimes against humanity]], [[war crime]]s and the recently defined [[crime of aggression|crimes of aggression]], the [[United Nations General Assembly]] convened a five-week diplomatic conference in Rome in June 1998 "to finalize and adopt a convention on the establishment of an international criminal court".<ref>United Nations (1999). ''[http://www.un.org/law/icc/general/overview.htm Rome Statute of the International Criminal Court — Overview]''.  Retrieved on 31 January 2008.</ref><ref name=rome-conf>Coalition for the International Criminal Court. [http://www.iccnow.org/?mod=rome ''Rome Conference — 1998''].  Retrieved on 31 January 2008.</ref>  On 17 July 1998, the [[Rome Statute of the International Criminal Court]] (Rome Statute) was adopted by a vote of 120 to 7, with 21 countries abstaining.<ref name=scharf/>  The seven countries that voted against the treaty were [[Iraq]], [[Israel]], [[Libya]], the [[People's Republic of China]], [[Qatar]], [[Yemen]], and the [[United States]].<ref name=scharf>Michael P. Scharf (August 1998). [http://www.asil.org/insights/insigh23.htm ''Results of the Rome Conference for an International Criminal Court'']. The American Society of International Law.  Retrieved on 31 January 2008.</ref>

U.S. President [[Bill Clinton]] originally signed the Rome Statute in 2000, but stated that he would not submit it to the Senate for advice and consent for [[ratification]] until the U.S. government had a chance to assess the functioning of the court. He nonetheless supported the proposed role of the ICC and its objectives:
{{quote|The United States should have the chance to observe and assess the functioning of the court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor, submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied.

Nonetheless, signature is the right action to take at this point. I believe that a properly constituted and structured International Criminal Court would make a profound contribution in deterring egregious human rights abuses worldwide, and that signature increases the chances for productive discussions with other governments to advance these goals in the months and years ahead.<ref>{{cite news|url=http://news.bbc.co.uk/2/hi/1095580.stm|title=Clinton's statement on war crimes court|publisher=BBC News|date=2000-12-31}}</ref>}} After the Rome Statute reached the requisite 60 ratifications in 2002, President [[George W. Bush]]'s Administration sent a note to the UN Secretary General on May 6, 2002. The note purports to suspend the US's signature and informed the Secretary General that the US recognized no obligation toward the Rome Statute. In addition, the US stated that its intention not to become a state party should be reflected in the UN depositry's list. This is because signatories have an obligation not to undermine the object and purpose of a treaty according to Article 18 of the [[Vienna Convention on the Law of Treaties]], also sometimes referred to as the good faith obligations. According to one authority the US could engage with the Court by reactivating its signature to the Rome Statute by submitting a letter to the UN Secretary General.<ref>{{cite web | title= Administration Update, Suspension of US Signature| url= http://amicc.org/usinfo/administration.html| publisher=The American Non-Governmental Organizations Coalition for the International Criminal Court | date= after January, 2009 | accessdate=June 9, 2009}}</ref>

A treaty that is not ratified is not legally binding. ‘Signature’ of a treaty provides a preliminary endorsement. Signing does not create a binding legal obligation but does demonstrate the State’s intention to examine the treaty domestically and consider ratifying it. It does oblige the State to refrain from acts that would counter or undermine the treaty’s objective and purpose.<ref>[http://www.unicef.org/crc/files/Definitions.pdf Definition of key terms used in the UN Treaty Collection]</ref>

==Particular U.S. ratification contingencies==

A treaty becomes part of the [[municipal law]] of a nation only when the treaty has been [[Ratification|ratified]]. In the US, the constitution gives the President power to negotiate treaties under Article II. The President must then submit a treaty to the Senate for advice and consent for ratification. The Senate must approve the treaty by a two-thirds majority before it can take effect. The Senate may submit amendments, reservations, or explanations to the President regarding the treaty. Once ratified, treaties are generally [[Foreign policy law of the United States#Congressional-executive agreements vs. treaties|self-executing]]—at least from the perspective of other nations—as the ratifying state fully binds itself to the treaty as a matter of the [[public international law]] and of national [[honor]] and [[good faith]]. In the US, however, a treaty does not immediately become effective as US domestic law upon entry into force, which occurs only if the treaty is self-executing. In ''Foster v. Neilson'' 27 U.S. 253 (1829), the US Supreme Court explained that treaties are self-executing if accompanying legislation is not necessary for implementation. A treaty requiring additional action is not self-executing; it would create an international obligation for the US, but would have no effect on domestic law. (''Id. 314-315'').

However, [[Entrenched legislation|entrenched]] provisions of municipal law—such as the constitution of a state party or other fundamental laws—may cause the treaty not to be fully executable in municipal law if it conflicts with those entrenched provisions. Article VI of the US Constitution contains the supremacy clause, which gives all treaties ratified in accordance with the constitution the effect of federal law. In the US, if a treaty is found to be self-executing it will preempt inconsistent state law and previous legislation. This issue was addressed by the US Supreme Court in ''Ware v. Hylton'' 3 U.S. 199 (1796), where it found that the treaty at issue was self-executing and struck down an inconsistent state law. (''Id''. 284). However, a treaty cannot preempt the Constitution itself (as held in the 1957 US Supreme Court case, ''[[Reid v. Covert]]''). Thus, in order for a treaty to be executable within the United States, it might be necessary for the [[Constitution of the United States|Constitution]] to be amended. Otherwise, treaty provisions could potentially be found unconstitutional and consequently struck down by the courts. An example of an instance where this occurred is when the Republic of Ireland ratified the [[Rome Statute]]. The Irish government's response was to hold a national referendum on the issue in 2001,<ref>{{cite web|url=http://www.refcom.ie/RefCom/RefComWebSite.nsf/0/56238BEB852B53D480256E970049F33C|title=Referendum Commission explanatory leaflet proposed changes to the Constitution in relation to ratification of the Rome Statute of the International Criminal Court|publisher=Referendum Commission of the Republic of Ireland}}</ref> after which the government amended their [[Constitution of the Republic of Ireland|Constitution]] to bring it into effect.<ref>{{cite web|url=http://www.irlgov.ie/committees-02/c-foreignaffairs/020327/Page1.htm|title=Ratification of the Rome Statute of the International Criminal Court|publisher=Select Committee of Foreign Affairs, Parliament of Ireland}}</ref>  The question of whether the [[Rome Statute]] would require amendments to the US Constitution to be brought into effect is a matter of debate within the United States. However, many scholars and experts believe that the Rome Statute is compatible with the US Constitution.<ref>Wejwood and Marquardt</ref>{{Citation broken|date=June 2011}}

==Bush Administration's approach to the ICC==
The position of the Bush Administration during its first term in office was to unalterably oppose US ratification of the Rome Statute, believing Americans would be unfairly treated for political reasons.<ref>[http://www.washingtonpost.com/wp-dyn/content/article/2011/03/02/AR2011030200163.html "US supports war crimes tribunal for first time"], Edith Lederer. Washington Post. March 2, 2011. Accessed March 9, 2011</ref>  Moreover, the Bush Administration actively pursued a policy of hostility towards the court in its international relations. In early May, the [[American Servicemembers' Protection Act]] of 2001 was introduced in both the House and the Senate. Essentially the same as the prior ASPA, the legislation would have prohibited any US government cooperation with the ICC unless the US ratified the Rome Treaty. Because the US has signed the statute, the legislation would have required actions counter to the normal obligation under the [[Vienna Convention on the Law of Treaties]], (1969), which the US has signed, but not ratified, according to which states that have signed but not ratified treaties are considered bound nonetheless not to contravene them. The act did not pass in 2001, although weaker legislation preventing cooperation with funding to the Court was approved.<ref name="Schiff">{{cite book|last=Schiff|first=Benjamin|title=Building the International Criminal Court|year=2008|publisher=Cambridge University Press}}</ref>

The Bush administration's policies toward the ICC exceeded merely staying out of the Statute, and actively began seeking to guarantee that US citizens be immune to the Court and to thwart other states from acceding to the Stature without taking US concerns into account. The US vigorously pressed states to conclude agreements with the US that would guarantee its citizens immunity from the Court's jurisdiction, threatening to cut off aid to states that refused to agree.{{citation needed|date=November 2011}}

However, Bush Administration officials tempered their previously strident opposition to the ICC in the Administration's second term (especially with the departure of [[John R. Bolton|John Bolton]] from the Bush Administration). The United States did not oppose using the ICC to prosecute atrocities in [[Darfur]], as evidenced by the U.S. abstention on [[United Nations Security Council Resolution 1593]] referring the Darfur situation to the ICC for prosecution. In a statement, the State Department's John Bellinger stated: “At least as a matter of policy, not only do we not oppose the ICC’s investigation and prosecutions in Sudan but we support its investigation and prosecution of those atrocities.”
<ref>{{cite web|title=Chronology of Bush Administration Statements and Actions Regarding the ICC|url=http://www.amicc.org/docs/US%20Chronology.pdf}}</ref>  In addition, the [[Congress of the United States]], in a resolution, acknowledged the ICC's authority to prosecute war crimes in Darfur.<ref>{{cite web | url=http://www.amicc.org/docs/HRes726FinalOctober292007.pdf | title=H.R. 726, 110th Congress, October 2007}}</ref>

==Obama Administration's approach to the ICC==
The Obama Administration has stated its intent to cooperate with the International Criminal Court. Cooperation with the Assembly of States Parties of the ICC is a key component of the Obama Administration's first National Security Strategy.<ref>National Security Strategy http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf</ref>  On November 16, 2009, Ambassador-at-Large for War Crimes Issues, Stephen Rapp, announced that he would lead the U.S. delegation to the ICC's annual meeting of the Assembly of States Parties in The Hague. He told journalists "Our government has now made the decision that Americans will return to engagement at the ICC." The U.S. participated as an observer. This was the first time the U.S.A. had a delegation attend the ICC's annual meeting of the Assembly.<ref>British Broadcasting System (BBC), “US to resume engagement with ICC.” http://news.bbc.co.uk/2/hi/8363282.stm</ref>

In response to a question from the Senate Foreign Relations Committee, Secretary of State [[Hillary Rodham Clinton]] remarked that the US will end its “hostility” towards the Court. In addition, Susan Rice, US Ambassador to the United Nations, in her first address to the Security Council, expressed US support for the Court’s investigation in Sudan. These statements coupled with the removal of sanctions to the Bilateral Immunity agreements (BIAs) signaled a positive shift in the US cooperation with the Court. The Obama Administration has made no formal policy decision yet on the ICC or the status of the BIAs.{{Citation needed|date=January 2010}}

Recently, the Administration sent a large delegation drawn from all of main participants in policymaking on the ICC within the American government to the Review Conference in Kampala, Uganda in May and June 2010. The final outcome from Kampala included a successful assessment of the Rome Statute system of international justice, the announcement of numerous formal pledges by countries to assist the Court, and the adoption of amendments on war crimes and the [[crime of aggression]]. The US co-sponsored a side event with Norway and the Democratic Republic of the Congo (DRC) on building the capacity of the DRC’s judicial system to address atrocity crimes.

The US announced two pledges at Kampala, and was the only non-State Party to make a pledge. The US formally committed to building the legal capacity of certain countries to prosecute atrocity crimes themselves, and to assisting the ICC in its investigation and prosecution of leaders of the Lord’s Resistance Army (LRA) now wanted by the ICC.

The conference adopted two sets of amendments. The Administration believes that the outcome on both is in accord with important US interests.<ref name="state.gov">State Department Press Conference with Legal Advisor Harold Koh and Ambassador-at-Large for War Crime Issues Stephen Rapp http://www.state.gov/s/wci/us_releases/remarks/143178.htm</ref>  The Conference adopted a definition for the crime of aggression, the conditions under which it would exercise jurisdiction, and a roadmap for the eventual activation of jurisdiction after January 1, 2017. The US initially raised concerns about the definition, but accepted it after other countries agreed to attach a set of detailed understandings to the resolution adopting the amendments.  Under the amendment the ICC will be, first, unable to prosecute individuals of a non-state party and second, state- parties   will have the opportunity to opt-out of aggression jurisdiction if they so wish.”<ref>U.S. Engagement With The International Criminal Court and The Outcome Of The Recently Concluded Review Conference http://www.state.gov/s/wci/us_releases/remarks/143178.htm</ref>

Speaking about the past and future of US-ICC relations in light of the Review Conference, Legal Adviser Koh recently declared: “After 12 years, I think we have reset the default on the U.S. relationship with the Court from hostility to positive engagement. In this case, principled engagement worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill.”<ref name="state.gov"/>

Despite the Obama Administration's commitment to working with the ICC on prosecution of certain matters such as crimes committed by leaders of the LRA, a rebel group originating from Uganda, it has not stated an intention to rejoin the Rome Statute or submit the treaty to Senate ratification.

==Allegations and criticisms==
===Lack of due process===
The ICC has been criticized for:<ref>{{cite web|url=http://www.renewamerica.us/columns/voigt/060909|title=The International Criminal Court's antagonism toward our Constitution|work=[[Renew America]]|date=September 9, 2006}}</ref> absence of [[jury trials]]; allegations of retrials allowed for [[errors of fact]]; allegations that [[hearsay]] evidence is allowed;  allegations of no right to a [[speedy trial]], a [[public trial]] or [[Eighth Amendment to the United States Constitution|reasonable bail]]. Supporters of the ICC say that the ICC Statute contains the due process rights found in the US Constitution and now well recognized in international standards of due process in Article 67 Rome Statute, with the exception of the American right to [[jury trial]].

====Jury trial====
The most common criticism is the lack of [[Sixth Amendment to the United States Constitution|Sixth Amendment]] jury trial, i.e. "by an impartial jury of the State and district wherein the crime shall have been committed".<ref>{{cite book|title=Implementation of International Law in the United States|first=Johan David|last=Van der Vyver|page=181|isbn=978-3-631-59880-1|url=http://books.google.com/books?id=WL_ECL6ORU8C&pg=PA181}}</ref>

====Military justice====
Former U.S. State Department Legal Advisor [[Monroe Leigh]] has said: {{quote|The list of due process rights guaranteed by the Rome Statute are, if anything, more detailed and comprehensive than those in the American Bill of Rights. . . . I can think of no right guaranteed to military personnel by the U.S. Constitution that is not also guaranteed in the Treaty of Rome.<ref>{{cite web|url=http://www.hrw.org/campaigns/icc/facts.htm|title=Myths and Facts About the International Criminal Court|publisher=[[Human Rights Watch]]}}</ref>}}

The US has adopted forms of war crimes and crimes against humanity within its military courts<ref>{{USC|18|2441(b)}}</ref> The military courts have jurisdiction over all military personnel abroad and any accompanying civilians. Further the US has adopted crimes of genocide within its domestic system<ref>Genocide Convention Implementation Act of 1987 (the Proxmire Act), {{USStatute|100|606|102|3045|1988|11|04}}, codified at {{USC|18|1091(d)}}</ref> and conscription of child soldiers.<ref>{{USPL|110|340}}</ref>

===Incompatibility with the U.S. Constitution===
The U.S. conservative group the [[Heritage Foundation]] claims that "United States participation in the ICC treaty regime would also be unconstitutional because it would allow the trial of American citizens for crimes committed on American soil, which are otherwise entirely within the judicial power of the United States. The Supreme Court has long held that only the courts of the United States, as established under the Constitution, can try such offenses."<ref>{{cite web|url=http://www.heritage.org/Research/InternationalOrganizations/BG1249.cfm|title=The International Criminal Court vs. the American People}}</ref>
This statement refers to several issues. The first is the trial of American citizens by the ICC and implies that the Court does not have the power to try Americans for crimes committed on U.S. territory. The second refers to due-process issues.

RenewAmerica claim that ratification by the United States of the [[Rome Statute]] would require a [[constitutional amendment]], as was the case in other countries such as Ireland.  According to RenewAmerica, "Because the ICC is inconsistent with fundamental constitutional protections, the federal government is without authority to ratify the treaty absent a constitutional amendment."<ref>http://www.renewamerica.us/columns/voigt/060909</ref>

Critics argue that because the US Constitution permits the creation of only one Supreme Court that participation with the International Criminal Court violates the US Constitution. However, the Court is not a creation of the US; instead, it functions internationally. Further, the US has participated in various international courts including the International Military Tribunals for the Far East, the Nuremberg Tribunal, and the tribunals for the former Yugoslavia and Rwanda.<ref>The United States and the International Criminal Court: National Security and International Law; edited by Sarah B. Sewall and Carl Kaysen (2000)</ref>

The [[Congressional Research Service]]'s Report for Congress states the ICC is not "an instrumentality of the U.S.".<ref>Nicholas S. Curabba, "The Rome Statute of the International Criminal Court: Selected Legal and Constitutional Issues," CRS Report for Congress, February 22, 1999.</ref>  Therefore, it does not threaten to supplant the Constitutional authority of the US Supreme Court.

==American Policies Towards the ICC==
The United States and many advocates for the International Criminal Court (ICC) have long been at odds over the court's statute, accountability, and jurisdiction. Although these differences have not been resolved, two recent actions have refocused international and domestic attention on America's policy toward the ICC. The first was enactment of the Nethercutt amendment, which extended prohibitions on assistance to ICC parties beyond those already in place under the American Servicemembers' Protection Act (ASPA). The second is the debate over whether or not the U.N. Security Council should refer the genocide in Sudan to the ICC for investigation.<ref name="heritagesite">{{cite web|url=http://www.heritage.org/research/reports/2005/03/the-bush-administrations-policy-on-the-international-criminal-court-is-correct|title=The Bush Administration’s Policy on the International Criminal Court is Correct|publisher=The Heritage Foundation|date=March 8, 2005|accessdate=April 23, 2011}}</ref>

===American Service Members Protection Act===
In 2002, the U.S. Congress passed the [[American Servicemembers' Protection Act]] (ASPA), which contained a number of provisions, including prohibitions on the United States providing military aid to countries which had ratified the treaty establishing the court; however, there were a number of exceptions to this, including [[NATO]] members, [[major non-NATO ally|major non-NATO allies]], and countries which entered into an agreement with the United States not to hand over U.S. nationals to the Court (see [[United States and the International Criminal Court#Article 98 Agreements|Article 98 agreements]] below). ASPA also excluded any military aid that the U.S. President certified to be in the U.S. national interest. Limits on military assistance have been repealed, as outlined below.

In addition, ASPA contained provisions prohibiting U.S. co-operation with the Court, and permitting the President to authorize military force to free any U.S. military personnel held by the court,<ref name="hrw-hague">{{cite web|url=http://www.hrw.org/press/2002/08/aspa080302.htm|title=U.S.: 'Hague Invasion Act' Becomes Law|publisher=Human Rights Watch|date=August 3, 2002|accessdate=December 23, 2007}}</ref> leading opponents to dub it "The Hague Invasion Act." The act was later modified to permit U.S. cooperation with the ICC when dealing with U.S. enemies. It has been argued that the act was a measure created to protect Americans from ICC jurisdiction or prosecution

On October 2, 2006 President Bush issued waivers of these same IMET prohibitions with respect to 21 nations. [[Foreign Military Funds]] (FMF) restricted under ASPA were not affected by the 2006 waivers or the ASPA amendment. On October 17, 2006 President Bush signed into law an amendment to ASPA as part of the [[John Warner]] National Defense Authorization Act for Fiscal Year 2007 removing [[International Military Education and Training]] (IMET) restrictions for all nations. On November 22, 2006 President George W. Bush issued ASPA waivers with respect to the [[Comoros]] and [[Saint Kitts and Nevis]], followed by a similar waiver with respect to [[Montenegro]] on August 31, 2007.

On January 28, 2008 President Bush signed into law an amendment to the American Servicemembers' Protection Act (ASPA) to eliminate restrictions on Foreign Military Financing (FMF) to nations unwilling to enter into Bilateral Immunity Agreements (BIAs) shielding US nationals from the jurisdiction of the ICC. Section 1212 of HR 4986 effectively gutted from ASPA all of the provisions which threaten nations with the loss of military assistance of any kind for refusing a BIA.

===Criticism of ASPA===
The effects of the American Service Members Protection Act (ASPA) were severely criticized by the Defense Department. While speaking before the [[United States Army]] [[Committee on House Armed Services]] regarding the FY 2006 Budget, US Army General [[Bantz J. Craddock]], Commander of the [[US Southern Command]], made strong statements<ref>Statement of General Bantz J. Craddock Commander, United States Army Committee On House Armed Services, March 9, 2005 http://www.amicc.org/docs/Craddock%20Statements%203-05.pdf</ref> on the impact of ASPA on military operations and cooperation in Latin America. He explains that ASPA is creating a void of contact that is being filled by other extra-hemispheric actors, including China. Vice Admiral Lowell Jacoby made similar statements<ref>Senator John Cornyn questioning Vice Admiral [[Lowell Jacoby]]  http://www.amicc.org/docs/Jacoby%20Statements%203-05.pdf</ref> during a hearing of the Senate Armed Services Committee. In addition, the [[Chairman of the Joint Chiefs of Staff]], Air Force General [[Richard Myers]]<ref>Defense News: New Rules May Hinder U.S. Training For Foreign Troops  http://www.amicc.org/docs/Defense%20News%205-9-05.pdf</ref> testified at the Senate Appropriations Defense Subcommittee on April 27, 2005 that ASPA has reduced foreign troop training opportunities and hurt the government's ability to fight terrorism abroad as an "unintended consequence."

===The Nethercutt Amendment===
Former Rep. [[George Nethercutt]]'s "Nethercutt Amendment"<ref>Limitation on economic support fund assistance for certain foreign governments that are parties to the International Criminal Court http://www.amicc.org/docs/Nethercutt%202006.pdf</ref> to the Foreign Operations, Export Financing, and Related Programs Appropriations Act suspends Economic Support Fund assistance to ICC States Parties who refused bilateral immunity agreements (BIAs) with the US or were not provided a Presidential waiver. The funds affected support initiatives including peacekeeping, anti-terrorism measures, democracy-building and drug interdiction. The language of the amendment allowed presidential exemptions for NATO, MNNA (major non-NATO allies), and [[Millennium Fund]] countries.

The Nethercutt Amendment differed from former anti-ICC provisions the American Servicemembers' Protection Act (ASPA) by imposing economic aid cuts instead of military aid cuts. Cutting economic assistance is far a more damaging act because in many countries, it intended to bolster local economies instead of national defense. In addition, existing [[Status of Forces Agreement|Status of Forces Agreements]] (SOFAs) and other bilateral agreements already provide full US jurisdiction over US personnel and officials serving abroad.

The appropriations bill containing the controversial amendments were adopted for FY 2005, FY 2006, and FY 2008. Congress did not pass a foreign operations appropriations bill or any other bill containing the Nethercutt provision for FY 2007. On December 17, 2007 the US Congress approved HR 2764,<ref>Consolidated Appropriations Act 2008 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h2764eah.txt.pdf</ref> a comprehensive Consolidated Appropriations Act which reinstates the so-called Nethercutt provision cutting off Economic Support Funds (ESF) to nations unwilling to enter into Bilateral Immunity Agreements (BIAs) or so-called Article 98 Agreements shielding US nationals from the jurisdiction of the ICC.

President Bush signed<ref>President Bush Signs H.R. 2764 into Law http://www.amicc.org/docs/White%20House%20Statement%2026%20December%202007.pdf</ref> the bill into law on December 26 and it became Public Law 110-161. However, by mid-2009 Congress had removed all the IMET and failed to renew the Nethercutt Amendment.

===United Nations Security Council Resolutions===
In July 2002, the United States threatened to use its Security Council veto to block renewal of the mandates of several United Nations peacekeeping operations, unless the Security Council agreed to permanently exempt U.S. nationals from the Court's jurisdiction.<ref>{{cite journal|url=http://www.ejil.org/journal/Vol14/No1/art1-01.html|title=The Ambiguities of Security Council Resolution 1422 (2002)|publisher=The European Journal of International Law}}</ref> The then Secretary General of the United Nations, [[Kofi Annan]], said that the US proposal "flies in the face of treaty law", risked undermining the Rome Treaty setting up the court, and warned that it could end up discrediting the Security Council.<ref>{{cite news|url=http://news.bbc.co.uk/1/hi/world/americas/2091832.stm|title=Annan condemns US Bosnia veto|publisher=BBC News|date=July 3, 2002}}</ref>

Initially, the United States sought to prevent prosecution of personnel on UN missions by any country except that of their nationality.<ref>{{cite journal|title=Efforts to Obtain Immunity from ICC for U.S. Peacekeepers|publisher=The American Journal of International Law, Vol. 96, No. 3 (Jul., 2002), pp. 725–729 | jstor=3062185}}</ref> The Security Council rejected that approach and the United States made use of a provision of the Rome Statute that allowed the Security Council to direct the ICC not exercise its jurisdiction over a certain matter for up to one year.<ref>{{cite web|url=http://www.hrw.org/campaigns/icc/us.htm|title=The United States and the International Criminal Court|publisher=Human Rights Watch}}</ref> The United States sought the Security Council to convey such a request to the ICC concerning personnel on United Nations peacekeeping and enforcement operations. Further, the US sought to have that request renewed automatically each year.<ref name="UNSC_immunity">{{cite web|url=http://www.un.org/News/Press/docs/2003/sc7789.doc.htm|title=SECURITY COUNCIL REQUESTS ONE-YEAR EXTENSION OF UN PEACEKEEPER IMMUNITY FROM INTERNATIONAL CRIMINAL COURT|publisher=Press Office of the United Nations Security Council}}</ref> (If renewed automatically each year, then another Security Council resolution would be required to cease the request, which the United States could then veto, which would effectively make the request permanent.<ref name="UNSC_immunity"/>) Court supporters argued that the Rome Statute requires the request to be valid it must be voted upon each year in the Security Council. Therefore,an automatically renewing request would violate the Statute.<ref name="UNSC_immunity"/> By international law, questions regarding the interpretation of the UN Charter may only be interpreted by the UN Security Council. The UN Charter requires that all UN members abide by the decisions of the Security Council, so only ICC members who are not also UN members are not bound.

Members of the Security Council opposed this request; however, they were increasingly concerned about the future of peacekeeping operations. The United Kingdom eventually negotiated a compromise, whereby the United States would be granted its request, but only for a period of one year. A new Security Council vote would be required in July each year for the exclusion of peacekeepers from ICC jurisdiction to be continued. All members of the Security Council eventually endorsed resolution [[United Nations Security Council Resolution 1422]].<ref>{{cite web|url=http://www.converge.org.nz/pma/cra0679.htm|title=ICC: UN Security Council Resolves Immunity Debate|author=Jim Wurst|publisher=UN Wire|date=July 15, 2002}}</ref>

NGO supporters of the Court, along with several countries not on the Security Council (including Canada and New Zealand), protested the legality of the resolution. The resolution was made under Chapter VII of the UN Charter, which requires a "threat to international peace or security" for the Security Council to act; ICC supporters have argued that a U.S. threat to veto peacekeeping operations does not constitute a threat to international peace or security. In such a case the UN Charter states that the Security Council will determine if the Security Council's actions conformed with the UN Charter.

A resolution to exempt citizens of the United States from jurisdiction of the ICC was renewed in 2003 by [[United Nations Security Council Resolution 1487]]. However, the Security Council refused to renew the exemption again in 2004 after pictures emerged of [[Abu Ghraib torture and prisoner abuse|US troops torturing and abusing Iraqi prisoners in Abu Ghraib]], and the US withdrew its demand.<ref>{{cite news|url=http://news.bbc.co.uk/2/hi/americas/3834237.stm|title= Q&A: International Criminal Court|publisher=BBC News|date=March 20, 2006|accessdate=March 3, 2008}}</ref>

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 unless the state or the third-party state waives the immunity or grants cooperation.<ref name="Schiff"/> The US 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 US prohibiting such a transfer, even if the state is a member of the Rome Statute. The US 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.  The Bush Administration claimed that the BIAs were drafted out of concern that existing agreements—particularly the Status of Forces or Status of Mission Agreements (SOFAs or SOMAs)--did not sufficiently protect Americans from the jurisdiction of the International Criminal Court (ICC). According to the [[Coalition for the International Criminal Court]], 54 countries "rejected US efforts to sign BIAs despite unrelenting US pressure and the threat and actual loss of military assistance under the ASPA".<ref>CICC, "Countries Opposed to Signing a US Bilateral Immunity Agreement (BIA): U.S. Aid Lost in FY04 & U.S. Aid Threatened in FY05"</ref>

To date, approximately 102 BIA's have been signed. It is unclear how many of these are legally binding. Article 98 agreements were intended to prevent prosecution of any American citizen by the ICC. [[Romania]] was one of the first countries to sign an Article 98 agreement with the United States.  In response to Romania's action, the European Union requested that candidate countries not sign Article 98 agreements with the United States until the EU ministers had met to agree upon a common position.

In October 2002, the Council of the European Union adopted a common position, permitting member states to enter into Article 98 agreements with the United States, but only concerning U.S. military personnel, U.S. diplomatic or consular officials, and persons extradited, sent to their territories by the United States with their permission; not the general protection of U.S. nationals that the United States sought; furthermore the common position provided that any person protected from ICC prosecution by such agreements would have to be prosecuted by the United States. This was in agreement with the original position of the EU, that Article 98 agreements were allowed to cover these restricted classes of persons but could not cover all the citizens of a state.<ref>{{cite web|url=http://ec.europa.eu/external_relations/human_rights/gac.htm#hr300902|title= The EU's Human rights & Democratisation Policy: September 30, 2002: International criminal court (ICC) – Council Conclusions|publisher=General Affairs and External Relations Council of the European Commission}}</ref>

Others argue that due to the patriation of the ICC into the territory of every state-party, the ICC has effectively become a domestic court of the sovereign state in question, and, as an internal affair of the state-party, exemption of Americans from the jurisdiction of the ICC would render U.S. citizens "above the law"--specifically the domestic law—of the state-party, giving them such rights as Europeans were once given under the "unequal treaties" with some developing countries. Still others believe that a State Party has simply given itself another option for the exercise of its sovereign right to deal legally as it wishes with persons who commit crimes on its territory.

The United States used bilateral diplomacy to persuade{{Citation needed|date=June 2008}} certain{{Quantify|date=June 2008}} nations to sign these agreements. US law requires the suspension of military assistance and U.S. Economic Support Fund (ESF) aid to those States Parties which do not sign these agreements. The granting of such special favors is of course always subject to diplomacy.

In 2002, the United States passed a law cutting off military aid for 35 countries (among them nine European countries), under the terms of an amendment to the [[American Service-Members' Protection Act]].<ref name="hrw-hague"/> ESF funding entails a wide range of governance programs including international counter-terrorism efforts, peace process programs, anti-drug trafficking initiatives, truth and reconciliation commissions, wheelchair distribution and HIV/AIDS education, among others.<ref>{{cite journal|url=http://www.thefreelibrary.com/Fiscal+year+2004+security+assistance+legislation+and+funding...-a0118742542|title=Fiscal year 2004 security assistance legislation and funding allocations|author=Kenneth W. Martin|publisher=DISAM Journal}}</ref>
On May 2, 2005, [[Angola]] became the 100th country to sign a bilateral agreement with the United States under Article 98.<ref>{{cite web|url=http://www.state.gov/r/pa/prs/ps/2005/45573.htm|title=U.S. Signs 100th Article 98 Agreement|publisher=U.S. State Department}}</ref> Since then, there have been no additional signings of these agreements<ref>{{cite web|url=http://www.ll.georgetown.edu/intl/guides/article_98.cfm|title=International Criminal Court – Article 98 Agreements Research Guide|date=2007-05|publisher=Georgetown University Law Library}}</ref>

In March 2006, [[Condoleezza Rice]] said that "blocking military assistance to nations seeking to combat terrorism sort of the same as shooting ourselves in the foot".<ref>{{cite news| url=http://www.nytimes.com/2006/07/23/world/africa/23terror.html?ei=5090&en=35a292390b54141e&ex=1311307200&partner=rssuserland&emc=rss&pagewanted=print | work=The New York Times | title=U.S. Cuts in Africa Aid Said to Hurt War on Terror | first=Mark | last=Mazzetti | date=July 23, 2006 | accessdate=May 26, 2010}}</ref>

Until 2008 U.S. law required the cessation of such aid payments if a state was unwilling to sign the bilateral agreement (there are exceptions for [[NATO]]-members and allies such as Israel, Egypt, Australia and South Korea). However, these decisions were repealed in October 2006 and January 2008.

The United States cut certain forms of military and economic funding for several countries that had not signed bilateral Article 98 agreements.  Countries who declined aid include Barbados, Bolivia, Brazil, Costa Rica, Ecuador, Mexico, Paraguay, Peru, Saint Vincent and the Grenadines, Trinidad and Tobago, Uruguay and Venezuela.<ref>{{cite web|url=http://ciponline.org/facts/art98.htm|title="Article 98" Agreements and the International Criminal Court|date=April 6, 2007|publisher= Latin America Working Group Education Fund}}</ref> Mali, Namibia, South Africa, Tanzania and Kenya publicly rejected signing Article 98 agreements in 2003, and subsequently saw their Overseas Development Aid funding cut by more than 89 million dollars.<ref>{{cite web|url=http://www.un-ngls.org/politics%20of%20poverty.pdf|title=The politics of poverty: Aid in the new Cold War|publisher=United Nations Non-Governmental Liaison Service}}</ref>

==American supporters and opponents of the ICC==
Some, such as The Heritage Foundation, believe that: <blockquote>The true measure of America's commitment to peace and justice and its opposition to genocide and war crimes lies not in its participation in international bureaucracies like the ICC, but in its actions. The United States has led the fight to free millions in Afghanistan and Iraq. It is a party to many human rights treaties and, unlike many other nations, abides by those treaty commitments. The U.S. has led the charge to hold violators of human rights to account, including fighting hard for imposing Security Council sanctions on the Sudanese government until it stops supporting the militia groups that are committing genocide in Darfur and helps to restore order to the region. The U.S. polices its military and punishes them when they commit crimes. In every practical way, the U.S. honors the beliefs and purposes underlying the ICC.</blockquote><ref name="heritagesite"/>

In a 2005 poll of 1,182 Americans by the Chicago Council on Foreign Relations and the Program on International Policy Attitudes at the University of Maryland, 69% favored US participation in the Court.<ref>{{cite web|url=http://www.worldpublicopinion.org/pipa/articles/btjusticehuman_rightsra/109.php?lb=bthr&pnt=109&nid=&id=|title=Americans on the Darfur crisis and ICC}}</ref><ref>{{cite web|url=http://www.thechicagocouncil.org/UserFiles/File/POS_Topline%20Reports/POS%202005_March/POS%20March%202005%20Press%20Release_Darfur.pdf|title=Large Bipartisan Majority of Americans Favors Referring Darfur War Crime Cases to International Criminal Court}}</ref>

Senator [[Barack Obama]], the current President of the United States of America, was asked the following question on a candidate questionnaire during the 2004 Senate race: "Should the United States ratify the ‘Rome Statute of the International Criminal Court’? If not, what concerns do you have that need to be resolved before you would support joining the court? Prior to ratification, what should the United States relationship with the Court be, particularly in regards to sharing intelligence, prosecuting war criminals, and referring cases to the UN Security Council?"

Senator Obama answered: {{quote|Yes[.] The United States should cooperate with ICC investigations in a way that reflects American sovereignty and promotes our national security interests.<ref name="obama">{{cite web|url=http://globalsolutions.org/politics/elections_and_candidates/questionnaire/2004?id=20|title= Candidate Questionnaire: 2004 | publisher=Global Solutions}}</ref>}}

Senator [[John McCain]], the Republican presidential candidate in the 2008 elections, said on January 28, 2005: {{quote|I want us in the ICC, but I’m not satisfied that there are enough safeguards.<ref name="mccain1">{{cite web|url=http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/01/02/MNLUU4LBH.DTL|title=Presidential candidates diverge on U.S. joining war crimes court|author=Bob Egelko|work=San Francisco Chronicle|date=2008-01-02}}</ref><ref name="mccain2">{{cite web|url=http://www.iccnow.org/documents/CGS_McCainpr_28Jan05.pdf|title=Citizens for Global Solutions Applauds Senator McCain’s Support of the International Criminal Court|publisher=Citizens for Global Solutions|date=January 28, 2005}}</ref>}}

McCain later added: {{quote|We should publicly remind [[Khartoum]] that the International Criminal Court has jurisdiction to prosecute war crimes in [[Darfur]] and that [[Sudan]]ese leaders will be held personally accountable for attacks on civilians<ref>{{cite news|url=http://www.washingtonpost.com/wp-dyn/content/article/2006/09/08/AR2006090801664.html|author=John McCain and Bob Dole|title=Rescue Darfur Now|work=The Washington Post | date=September 10, 2006 | accessdate=May 26, 2010}}</ref>}}

Senator [[Hillary Clinton]], said as a candidate in the 2008 Democratic presidential primaries on February 13, 2005: {{quote|Fourth, Europe must acknowledge that the United States has global responsibilities that create unique circumstances. For example, we are more vulnerable to the misuse of an international criminal court because of the international role we play and the resentments that flow from that ubiquitous presence around the world. That does not mean, in my opinion, that the United States should walk out of the International Criminal Court. But it does mean we have legitimate concerns that the world should address, and it is fair to ask that there be sensitivity to those concerns that are really focused on the fact that the United States is active on every continent in the world. As we look to the future, there are so many opportunities for us to renew our relationship and we need to because we face so many challenges.<ref name="hillaryclinton">{{cite web|url=http://clinton.senate.gov/~clinton/speeches/2005217C29.html|title=Excerpts from Remarks of Senator Hillary Rodham Clinton German Media Prize Dinner}}</ref>}}

Clinton later added: {{quote|Consistent with my overall policy of reintroducing the United States to the world, I will as President evaluate the record of Court, and reassess how we can best engage with this institution and hold the worst abusers of human rights to account.<ref>{{cite web|url=http://globalsolutions.org/08orbust/quotes/2007/11/27/quote615|date=2007-11-12|title= 08 or Bust!, Your Foreign Policy Road Map |publisher= Citizens for Global Solutions}}</ref>}}

Representative [[Ron Paul]], a Republican presidential candidate in the 2008 elections, said on April 8, 2002: {{quote|The United Nations and the ICC are inherently incompatible with national sovereignty. America must either remain a constitutional republic or submit to international law, because it cannot do both. The Constitution is the supreme law of the land, and the conflict between adhering to the rule of law and obeying globalist planners is now staring us in the face. At present we fortunately have a President who opposes the ICC, but ultimately it is up to Congress – and concerned citizens – to insure that no American ever stands trial before an international court.<ref>{{cite web|url=http://www.house.gov/paul/tst/tst2002/tst040802.htm|title=A Court of No Authority|author=Senator Ron Paul}}</ref>}}

[[Bill Richardson]], the [[Governor of New Mexico]] and another candidate for the [[Official and Potential 2008 United States presidential election Democratic candidates|2008 Democratic Nomination]] said in 2007, as part of his nomination campaign:
{{quote|We must repair our alliances...renew our commitment to International Law and multilateral cooperation...this means joining the International Criminal Court.<ref>{{cite web|url=http://www.richardsonforpresident.com/issues/page?id=0006|title= A New Realism in Foreign Policy|publisher=Bill Richardson for President|date=2007|accessdate=2007-08-05}}</ref>}}

[[Dennis Kucinich]], Democratic member of the [[United States House of Representatives]] and a presidential candidate in the 2004 and 2008 elections, said on April 26, 2007: {{quote|As president of the United States, I intend to take America in a different direction, rejecting war as an instrument of policy, reconnecting with the nations of the world, so that we can address the real issues that affect security all over the globe and affect our security at home: getting rid of all nuclear weapons, the United States participating in the chemical weapons convention, the biological weapons convention, the small arms treaty, the landmine treaty, joining the International Criminal Court, signing the Kyoto climate change treaty.<ref>{{cite web|url=http://www.msnbc.msn.com/id/18352397/page/16/|title=South Carolina Democratic debate transcript|publisher=MSNBC}}</ref>}}

[[John Edwards]] the former [[United States Senate|Senator]] and the [[Democratic Party (United States)|Democratic Party]]'s [[United States presidential election, 2004|Vice-Presidential candidate in 2004]] called for America to be part of the court when campaigning for the [[Official and Potential 2008 United States presidential election Democratic candidates|2008 Democratic Nomination]].<ref>[http://www.thetandd.com/articles/2006/12/28/ap/headlines/d8ma27gg0.txt Edwards Seeks to Make 2nd Time a Charm], ''[[The Times and Democrat]]'', December 28, 2006.</ref> Edwards said that: {{quote|We should be the natural leader in ... these areas ... when America doesn't engage in these international institutions, when we show disrespect for international agreements, it makes it extraordinarily difficult when we need the world community to rally around us ... we didn't used to be the country of [[Guantanamo Bay detainment camp|Guantanamo]] and [[Abu Ghraib torture and prisoner abuse|Abu Ghraib]]. We were the great light for the rest of the world, and America needs to be that light again.<ref>{{cite news|url=http://www.washingtonpost.com/wp-dyn/content/article/2006/12/28/AR2006122800457_pf.html|title= John Edwards Announces Bid for 2008 Democratic Presidential Nomination|work=Washington Post|date=2006-12-28 | accessdate=May 26, 2010}}</ref>}}

[[Benjamin B. Ferencz]], an investigator of [[Nazi war crime]]s after World War II and the Chief Prosecutor for the United States Army at the [[Einsatzgruppen Trial]], one of the twelve [[Subsequent Nuremberg Trials|military trials]] held by the U.S. authorities at [[Nuremberg]], later became a vocal advocate of the establishment of an international [[rule of law]] and of an International Criminal Court. In his first book published in 1975, entitled ''Defining International Aggression-The Search for World Peace'', he argued for the establishment of an international court.<ref>[http://www.benferencz.org/bio.html Benjamin B Ferencz, Biography]</ref>

==See also==
* [[AMICC (American NGO Coalition for the International Criminal Court)]]
*[[Benjamin B. Ferencz]]
*[[Command responsibility]]
* [[Human rights in the United States]]
*[[International Criminal Court]]
*[[List of War Crimes]]
*[[Nuremberg Principles]]
*[[Review Conference of the International Criminal Court Statute]]
*[[International Criminal Court and the 2003 invasion of Iraq]]
*[[War Crimes]]
*[[War crimes committed by the United States]]

==References==
{{Reflist|colwidth=30em}}

==Further reading==
* Paul D. Marquardt, “Law Without Borders: The Constitutionality of an International Criminal Court,” 33 Colum. J. Transnat'l. L. 74, 76 (1995).
* Roy S Lee, ed. (1999). ''The International Criminal Court: The Making of the Rome Statute''.  The Hague: Kluwer Law International. ISBN 90-411-1212-X
* Madeline Morris, ed. (2001). "[http://www.law.duke.edu/journals/journaltoc?journal=lcp&toc=lcptoc64winter2001.htm The United States and the International Criminal Court]", ''Law and Contemporary Problems'', Winter 2001, vol. 64, no. 1. Accessed January 2, 2008.
* Michael P. Scharf (1999). "The Politics behind U.S. Opposition to the International Criminal Court", ''Brown J. World Aff.'', Winter/Spring 1999, vol. VI, p.&nbsp;97.
* Jason Ralph (2007).'' Defending the Society of States.  Why America Opposes the International Criminal Court and its Vision of World Society'', Oxford University Press. ISBN 0-19-921431-X
* Rebecca Hamilton (2011). ''Fighting for Darfur: Public Action and the Struggle to Stop Genocide'', Palgrave Macmillan, Chs. 5, 11.

==External links==
* [http://www.globalpolitician.com/articles.asp?ID=84 Objections to the ICC under the U.S. Constitution and International Law]
* [http://www.globalpolicy.org/intljustice/general/2001/07kiss.htm The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny] by [[Henry Kissinger]]
** [http://www.derechos.org/nizkor/icc/ferencz4.html A reply to Henry Kissinger's paper] by [[Benjamin B. Ferencz]], a former Prosecutor at the [[Subsequent Nuremberg Trials]]
* [http://www.derechos.org/nizkor/icc/ciccart98.html Why Bilateral Agreements with the U.S. are not valid under Art.98 of ICC Statute] by Derechos.org
* [http://www.state.gov/t/us/rm/25818.htm American Justice and the International Criminal Court] Remarks by [[John R. Bolton]], Under Secretary for Arms Control and International Security, at the [[American Enterprise Institute]] in Washington, D.C. on November 3, 2003
* [http://www.fas.org/sgp/crs/misc/RL31495.pdf U.S. Policy Regarding the International Criminal Court] Congressional Research Service Report for Congress, Updated April 26, 2006
* [http://www.ictj.org/en/news/features/3625.html]

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