Presentation & discussion of the ASIL Task Force report on U.S. policy towards the International Criminal Court.

Position:American Society of International Law - Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 1:00 p.m., Friday, March 27, by its moderator, Elizabeth Andersen of the American Society of International Law, who introduced the panelists: Michael Newton of Vanderbilt University Law School; William Taft of Stanford University School of Law; David Tolbert of the United States Institute of Peace; and Patricia Wald of the International Criminal Tribunal for the former Yugoslavia (formerly).

Below is the executive summary of the official ASIL Task Force Report on U.S. Policy towards the International Criminal Court, which was presented and discussed during this panel session. The Task Force was chaired by William Taft and Patricia Wald. Task Force Members included: Mickey Edwards; Michael Newton; Sandra Day O'Conner; Stephen Schwebel; David Tolbert; and Ruth Wedgwood.

EXECUTIVE SUMMARY

The United States has long promoted justice and the rule of law, as demonstrated by its critical role in the creation of the international military tribunals at Nuremberg and in Japan, as well as the modem-day International Criminal Tribunals for the former Yugoslavia and Rwanda. Holding accountable persons who commit the most serious crimes of concern to the international community is a longstanding policy priority of the United States. Seven years after the Rome Statute entered into force, the International Criminal Court (ICC or Court) is emerging as the leading forum in this sphere. Today, 108 States are members of the ICC, and, although the United States has not joined the Court, it has in recent years assumed an increasingly positive attitude toward the Court, in particular supporting its efforts in Darfur. The United States will necessarily continue to evaluate the Court and explore ways in which it can support and shape the development of this institution.

The Court is in the early stage of development, now convening its first trial. And yet, it has an emerging track record of engagement in situations of great interest to the United States. In 2010, the Assembly of States Parties to the Rome Statute will convene its first Review Conference

to consider the future direction of the Court. Among the issues to be addressed at the Review Conference is defining the crime of aggression and setting out the conditions under which the Court shall exercise jurisdiction over allegations of aggression-steps that inevitably implicate U.S. interests. The time is ripe for a review of U.S. policy toward the Court, to assess its performance to date and identify ways in which the United States might, in its own interests as well as those of the international community, more effectively contribute to the development of the Court.

This Task Force has undertaken such a review, hearing from more than a dozen experts and officials representing a variety of perspectives on the ICC. Our conclusion--detailed in the recommendations in this report--is that the United States should announce a policy of positive engagement with the Court, and that this policy should be reflected in concrete support for the Court' s efforts and the elimination of legal and other obstacles to such support. The Task Force does not recommend U.S. ratification of the Rome Statute at this time. But it urges engagement with the ICC and the Assembly of States Parties in a manner that enables the United States to help further shape the Court into an effective accountability mechanism. The Task Force believes that such engagement will also facilitate future consideration of whether the United States should join the Court.

THE UNITED STATES AND THE ROME STATUTE: FROM 1998 TO TODAY

On entering the negotiations of the Rome Conference in June 1998, the United States had various important objectives, and, at the end of negotiations in Rome, the United States had achieved many of them. The United States was, however, less successful with regard to some of its critical concerns, including the Court's assertion of jurisdiction over nationals of non-party States, a prosecutor with proprio motu powers, and inclusion of the crime of aggression.

Despite voting against the adoption of the treaty creating the Court, the Rome Statute, and despite concerns in some quarters regarding the manner and atmosphere in which the Rome negotiations were conducted, the United States remained engaged with the ICC throughout the post-Rome negotiating process in 1999 and 2000 and, on June 30, 2000, joined consensus on the Court's Draft Elements of Crimes and the Draft Rules of Evidence and Procedure. Through these negotiations the United States was able to address some of its key concerns, including by placing constraints on the prosecutor and strengthening the application of complementarity--the principle that the Court is a court of last resort, whose jurisdiction is complementary and secondary to national jurisdiction. However, nothing directly addressed the U.S.'s most serious concern--the exposure of non-party States' nationals to ICC jurisdiction.

On December 31, 2000, when the United States signed the treaty, President Clinton made clear that the United States retained reservations about the Rome Statute, stating that he would "not recommend that my successor submit the treaty to the Senate for ratification until our fundamental concerns are satisfied, "I but also noting that the United States had signed the treaty "to reaffirm [its] strong support for international accountability" (2) as well as to increase U.S. influence in ongoing negotiations, to influence appropriately the attitudes of judges and prosecutors, and improve relations with ICC member States with whom the United States would be seeking "Article 98 non-surrender agreements." These efforts aimed to shape the Court in a manner that would alleviate U.S. concerns. Thus, the United States prepared to continue negotiations in 2001, with the aim, inter alia, of playing a part in the definition of the crime of aggression.

By early 2002, as the Rome Statute garnered the requisite number of ratifications and the Court prepared to come into existence in mid-2002, U.S. officials' concern about the Court had grown. Believing the ICC to be built on a flawed foundation, President Bush concluded "that the United States can no longer be a party to this process. In order to make [U.S.] objections clear, both in principle and philosophy, and so as not to create unwarranted expectations of U.S. involvement in the Court, [he] believe[d] that he bald] no choice but to inform the United Nations ... of [the U.S.] intention not to become a party to the Rome Statute...." (3) In May 2002, the United States sent a letter to the U.N. Secretary General, stating "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." (4) The United States participated no further in the multilateral discussions on the ICC and did not assume observer status within the Assembly of States Parties.

Congress also approved legislation designed to insulate U.S. military personnel and others from ICC jurisdiction, the American Service-Members' Protection Act of 2002 (ASPA). ASPA placed numerous restrictions on U.S. interaction with the ICC and its States Parties, including prohibiting military assistance to certain States co-operating with it. Consistent with ASPA, the United States began pursuing conclusion of the so-called "Article 98 agreements" with the aim of insulating all U.S. nationals from ICC proceedings. These agreements generated the criticism, from some quarters, of being inconsistent with a State Party's obligations under the Rome Statute. Also in 2002, the United States sought a Security Council resolution to insulate permanently the U.S. troops and officials involved in U.N. peacekeeping or peace-enforcement missions from ICC jurisdiction. This resolution was required by ASPA if the United States were to participate in such operations where no exemption arrangement existed with the host government. Opponents objected that such a resolution would "rewrite" an international treaty--the Rome Statute--and argued that, despite Articles 25 and 103 of the U.N. Charter, the Security Council does not possess such authority. While the United States failed to get permanent exemption for all its peacekeepers, it did obtain such an exemption in country-specific U.N. resolutions. Additional legislative action in 2004 further stimulated the U.S. Government's pursuit of so-called "Article 98 agreements." For fiscal year 2005, Congress approved the "Nethercutt Amendment," prohibiting assistance funds, with limited exceptions, to any State party to the Rome Statute. Similar to the waiver...

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