In Rome on July 17, 1998, 120 nations voted to create a permanent International Criminal Court (ICC) to try war crimes, crimes against humanity, crime of aggression, and genocide. Only seven nations opposed the measure, including Iraq, China, Israel and the United States.

On 11 April 2002, the ratifications necessary for entry into force of the Rome Statute of the ICC were deposited at the United Nations, opening the door to a new era in international justice. On this historic and long-awaited day, impunity was dealt a severe blow and the world took a giant step towards justice and accountability. At the time of adoption of the Rome Statute, few could have anticipated the rapid entry into force of this treaty representing every region of the world.

On 6 May 2002, in an act which shocked governments around the world, the United States formally renounced its signature of the Rome Statute of the ICC, authorized on 31 December 2000 under former President Bill Clinton. Speaking on behalf of the Bush Administration, Under Secretary for Political Affairs Marc Grossman described the Rome Statute as a “flawed outcome,” built on a “flawed foundation.” Mr. Grossman outlined, in considerable detail, the objections of the United States towards the Rome Statute, claiming these reservations were serious enough for the US to withdraw its participation in the process.

What are some of these “flaws”? According to Grossman:

1. The ICC undermines the role of the United Nations Security Council in maintaining international peace and security.
2. The Rome Statute creates a prosecutorial system that is an unchecked power.
3. The ICC asserts jurisdiction over citizens of states that have not ratified the treaty, thus threatens U.S. sovereignty.

In summary, the U.S. will not subordinate to any system of international law to which it does not control.

Case and point:

On September 10, 2018, National Security Adviser John Bolton called the court “illegitimate” and a threat to “American sovereignty and US national security”.

Bolton continued:

“We will not co-operate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.“

Such is the hatred for international law, that the U.S. National Security Adviser also threatened to directly target judges and anyone that aids the ICC:

“We will respond against the ICC and its personnel to the extent permitted by U.S. law. We will ban its judges and prosecutors from entering the United States, we will sanction their funds in the U.S. financial system and we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.“

Secretary of State Mike Pompeo announced on March 15, 2019:

“Since 1998, the United States has declined to join the ICC because of its broad, unaccountable prosecutorial powers and the threat it poses to American national sovereignty. We are determined to protect the American and allied military and civilian personnel from living in fear of unjust prosecution for actions taken to defend our great nation. We feared that the court could eventually pursue politically motivated prosecutions of Americans, and our fears were warranted.“

Can you feel hate?

This isn’t just modern “Trump-ian talk”. For years, Washington has actively lobbied against the ICC and any nation that engages with them. In response to concerns that the Court would try US soldiers or officials, Washington approached countries around the world seeking to conclude Bilateral Impunity Agreements (BIAs), or so called “Article 98” agreements. These agreements prohibit the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and US employees (including contractors) and nationals. These agreements, which in some cases are reciprocal, do not include an obligation by the US to subject those persons to investigation and/or prosecution.

The reason for all this animosity against the attempt at international justice and accountability?

Simply put: the U.S. is “the greatest purveyor of violence in the world today” (MLK, Beyond Vietnam, 1967)

By omitting itself from the ICC, the U.S. is indirectly confirming to the world that:

1. Washington wants a two-tier justice system: one for the rest of the world and one for itself.
2. Washington is keenly aware of the role it plays in sponsoring terrorism across the world.

Here’s is the official language from the American Service-Members’ Protection Act (ASPA) which was signed into law in response to the creation of the ICC:

“Prohibits U.S. cooperation with the International Criminal Court. Specifies restrictions on: (1) participation by covered U.S. persons in United Nations (UN) peacekeeping and peace enforcement operations; (2) transfer to the Court of U.S. classified national security and law enforcement information; and (3) the provision of U.S. military assistance, with specified exceptions, to the government of a country that is a party to the Court. (H.R. 4775)

The President to use all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.“

This has led to the nickname The Hague Invasion Act, since such freeing of US citizens by force might only be possible through an invasion of The Hague, Netherlands, the seat of several international criminal courts and the seat of the Dutch government.

The Act prohibits federal, state and local governments and agencies (including courts and law enforcement agencies) from assisting the Court. For example, it prohibits the extradition of any person from the United States to the Court; it prohibits the transfer of classified national security information and law enforcement information to the Court; and it prohibits agents of the Court from conducting investigations in the United States.

Not surprisingly, the Act also prohibits U.S. military aid to countries that are party to the Court with exceptions for NATO members and countries which have signed the BIA’s.

It’s key to remember that the ICC is not a threat to US sovereignty. The real threat is that the ICC represents the strengthening of the international justice system which has the potential to challenge the US as an unabashed hegemonic super power.

And there lays the rub!

Thanks for reading,

Notes,

The United States’ Isolated Struggle against the ICC
https://www.globalpolicy.org/component/content/article/164/28438.html

Why the Security Council Failed:
http://www.nytimes.com/cfr/international/20030422faessayv82n3_glennon.html?pagewanted=8&_r=0

Slaying the Monster: Why the United Sates Should Not Support the Rome Treaty: https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1325&context=auilr