Undermining the International Criminal Court (“ICC”)
The International Criminal Court (“ICC”) was created by the Rome Statute,1 a multilateral treaty that went into effect on July 1, 2002. The treaty has been signed and ratified by at least 117 nations, a large majority. It begins with a global perspective: “The Parties to this Statute [are] conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that his delicate mosaic may be shattered at any time . . .” The core purpose of the treaty is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole. Those crimes are: genocide, crimes against humanity, war crimes and the crime of aggression. (The Rome Statute gives the ICC jurisdiction over all four types of crimes, but does not provide for the exercise of its jurisdiction over the crime of aggression until the treaty is amended to include a definition of that crime and the conditions for prosecution.)
President Clinton, near the end of his second term, directed that the United States sign the Rome Statute. However, he did not submit it to the Senate for ratification. His successor, George W. Bush, early in his first term, directed that the United States’ signature be withdrawn. The treaty has never been ratified by the U.S. Senate.
In addition to President Bush “unsigning” the Rome Statute, in 2002 Congress passed a law generally prohibiting U.S. local, state and federal courts, agencies and officials from cooperating with the ICC; prohibiting extradition for ICC prosecution; and, most strikingly, authorizing the President to use “all means necessary and appropriate” to free any U.S. or allied armed forces member or official who has been detained or imprisoned by the ICC. That law is given the “American Servicemembers’ Protection Act of 2002.” [22 USC 7421-7433.] Key provisions of that Act are as follows:
Section. 7423. Prohibition on cooperation with the International Criminal Court2
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(b) Prohibition on responding to requests for cooperation.
Notwithstanding . . . any other provision of law, no United States Court, and no agency or entity of any State or local government, including any court, may cooperate with the International Criminal Court in response to a request for cooperation . . .
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(d) Prohibition on extradition to the International Criminal Court
Notwithstanding any other provision of law, no agency or entity of the United States Government or of any State or local government may extradite any person from the United States to the International Criminal Court . . .
(e) Prohibition on provision of support to the International Criminal Court
Notwithstanding any other provision of law, no agency or entity of the United States Government or of any State or local government, including any court, may provide support to the International Criminal Court.
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(h) Prohibition on investigative activities of agents
No agent of the International Criminal Court may conduct, in the United States . . . , any investigative activity relating to a preliminary inquiry, investigation, prosecution, or other proceeding at the International Criminal Court.
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Section 7427. Authority to free members of the Armed Forces of the United States and certain other persons detained or imprisoned by or on behalf of the International Criminal Court.
The President is authorized to use all means necessary and appropriate to bring about the release of any person described in subsection (b) of this section who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.
(b) Persons authorized to be freed
The authority of subsection (a) . . . shall extend to:
(1) Covered United States persons.
(2) Covered allied persons.
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Section 7432, Definitions
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(3) Covered allied persons
The term “covered allied persons” means military personnel, elected or appointed officials, and other persons employed by or working on behalf of the government of a NATO member country, a major non-NATO ally (including Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea, and New Zealand), or Taiwan , for so long as that government is not a party to the International Criminal Court . . . ”
(4) Covered United States persons
The term “covered United States persons” means members of the Armed Forces of the United States, elected or appointed officials of the United States Government, and other persons employed by or working on behalf of the United States Government for so long as the United States is not a party to the International Criminal Court.
In addition, the “Findings” section of the American Servicemembers’ Protection Act, Section 7421, contains language that may explain why the Bush administration strongly advocated passage of the Act with its obstruction of the International Criminal Court: “[T]he Rome Statute creates a risk that the President and other senior elected and appointed officials of the United States Government may be prosecuted by the International Criminal Court. Particularly if the . . . Commission [tasked with drafting the Rome Statute] “agrees on a definition of the Crime of Aggression over United States objections, senior United States officials may be at risk of criminal prosecution for national security decisions involving such matters as responding to acts of terrorism, preventing the proliferation of weapons of mass destruction, and deterring aggression. . . [S]enior officials of the United States government should be free from the risk of prosecution by the International Criminal Court, especially with respect to official actions taken by them to protect the national interests of the United States.”
Note: The complete text of any section of the American Servicemembers’ Protection Act can be found by going to uscode.house.gov and in the “search” window typing in the title and section number, for example, 22 USC 7423. You can then go to “next” or “previous” to view other sections of the Act.
2 Section 7422 permits the President to waive the prohibition against cooperation with the ICC in a case of investigation or prosecution of a named individual if the President certifies to appropriate Congressional committees that cooperation is in the national interest and no United States or allied persons will be investigated, arrested or prosecuted in connection with the case.