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Diplomacy in Action

14. Address by William H. Taft, IV, Legal Adviser of the Department of State, to the Judicial Conference of the U.S. Court of Appeals for the Armed Forces, concerning the International Criminal Court (May 13, 2003)


The United States
and the International Criminal Court:
One Year Out

Speech By William H. Taft IV
To the Judicial Conference of the US Court of Appeals for the Armed Forces
May 13, 2003


  • It's a pleasure to be with you today as we consider the U.S. approach to the ICC nearly one year after the entry into force of the Rome Statute.
  • I intend to discuss the reasons why the USG is concerned about the ICC, the ways in which the USG has sought to limit any potential disruptions that the entry into force of the Rome Statute might entail, and some thoughts about alternative mechanisms for ensuring international accountability for perpetrators of war crimes, crimes against humanity and genocide.

Why Are We Concerned About the ICC?

  • By now, U.S. concern about the ICC is well known. In May of 2002, the Department of State notified the United Nations, as depository of the Rome Statute, that the United States does not intend to become a party. This had the effect of removing any doubts about legal or political commitments that might be associated with the previous Administration's signature of the Statute.
  • What has motivated the United States' concerns?
  • Let me make one thing clear: Our disagreement is not with the principle of accountability. The United States remains a leader in its dedication to ensuring that such perpetrators are brought to justice, and we are committed to investigating and, if appropriate, prosecuting those who are alleged to have committed these most serious crimes.
  • Our disagreement is with the way that the Rome Statute purports to achieve accountability. It is marred by serious flaws:

-- The ICC is an institution of unchecked power. The Court's authority is not constrained by adequate checks or balances. For example, the treaty creates a self-initiating prosecutor, answerable to no state or institution other than two judges on a three-judge panel of the Court itself. Final judgments are exempt from any clemency review by a political authority.

-- The ICC seeks to supplant the appropriate role of the UN Security Council in determining threats to international peace and security, by including within its jurisdiction (and planning to define) the crime of "aggression". This is a serious departure from the framework set out in the UN Charter, which allocates the power to decide when a state has committed an act of aggression to the Security Council. Judicialization reflects a mistrust of the deliberative process of the United Nations.

-- The treaty purports to create a new and objectionable form of jurisdiction over the nationals of non-Party states, even where their democratically elected representatives have not agreed to become bound by the treaty. The United States has never recognized the right of an international court to try its citizens absent its consent or a UN Security Council mandate. But the ICC has been given the authority by the parties to the Rome statute to do so today.

What Have We Been Doing About It?

  • The United States has responded to the flaws in the Rome Statute through a coordinated international effort to work with other countries to avoid any disruptions that the Rome Statute might cause. There are two initiatives that I thought would be particularly useful to describe:

-- So-called "article 98 agreements," which guard against the risk that U.S. persons will be surrendered to the ICC.

-- And actions within the Security Council to ensure that the ICC's claims of jurisdiction do not undermine support for and involvement in multilateral operations. We have done this by working to ensure that peacekeeping and other UN-mandated operations are established with appropriate safeguards for U.S. military and civilian personnel who may participate in them.

Article 98 Agreements

  • Article 98 agreements derive their name from Article 98(2) of the Rome Statute, which states, in part, that "the Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the court."
  • There has been a great deal of debate over the meaning of this provision, but let me clear up a few misconceptions about the Article 98 agreements we have now signed with a number of countries.
  • First, as a technical matter, these agreements are not designed to "deny" the ICC jurisdiction over crimes. The agreements speak to the physical transfer of a person, and are silent on the ICC's jurisdiction or lack thereof.
  • Second, these agreements do not grant "immunity" to U.S. persons. They simply contain a promise by the countries involved not to send persons to the ICC. They do not in any way affect the status quo with regard to the ability of either party to the agreement to prosecute individuals in accordance with domestic law.
  • Third, the United States continues to be committed to investigating and prosecuting crimes of the type listed in the Rome Statute, in accordance with our pre-existing legal obligations. We are a party to the 1948 Genocide Convention, the 1984 Torture Convention, the 1949 Geneva Conventions, the 1907 Hague Conventions, and numerous other human rights instruments. These agreements helped form the basis for the crimes listed in the Rome Statute. We are already obligated under these treaties to prosecute offenses under these conventions, and we are committed to doing so.
  • Fourth, these agreements are not intended to "undermine" the ICC. We respect the rights of countries that wish to join the ICC, we only ask that they respect our right not to join and not to be subject to the authority of an international organization we have not joined. An Article 98 agreement allows countries to participate without causing U.S. personnel to be subjected to the court.
  • There has been considerable discussion over whether our Article 98 agreements are consistent with the Rome Statute. Specifically, there are some who object to the scope of persons covered in our agreements: All U.S. nationals, in addition to all present and former government officials, employees, contractors and military servicemembers. They feel the scope should be restricted to those who are only present in a country that receives a surrender request from the ICC because they have been sent there by our government.
  • Of the [31] countries that have signed Article 98 agreements with us, [17] are parties or signatories to the Rome Statute, so there are those who have concluded, as we have, that there is no inconsistency. But rather than try to settle this debate, let me explain to you why the scope of coverage we are seeking is so important to us.
  • Our primary concern about the ICC is that U.S. citizens could be subjected to politically motivated prosecutions for doing their jobs. Because the Rome Statute has no statute of limitations, moreover, our personnel continue to be at risk of prosecution even after they complete their government service, for the rest of their lives.
  • We don't want to see our citizens forced to live in fear of ever traveling outside the United States, lest they be made the subject of an ICC proceeding based, for example, on their past service to our country.
  • Let me also briefly describe the American Servicemembers' Protection Act, or ASPA, and how ASPA fits in with our Article 98 negotiating strategy. There has been a lot of discussion in the media about ASPA and the connection the U.S. Government is making between Article 98 agreements and military assistance.

-- The granting of U.S. military assistance to a foreign government is and always has been an instrument and facet of foreign policy. We grant military assistance to express support for particular governments, and we withhold it to express disapproval of particular types of conduct or particular governments. Sometimes, Congress provides us with additional foreign policy guidance in the form of legislation. In that respect, ASPA is no different from the wide variety of laws that already govern U.S. military assistance.

-- Section 2007 of ASPA provides that, after July 1, certain forms of grant-based military assistance will no longer be provided to any country that is a party to the ICC, and is not either a member of NATO or a Major Non-NATO Ally, unless the President waives this restriction.

-- There are two grounds on which the President can waive this restriction: Either because the country has entered into an Article 98 agreement with us, or because it is otherwise in the national interest for us to continue furnishing military assistance.

-- Thus, ASPA does not affect our major alliances, and it also does not punish countries for joining the ICC. It only withholds certain forms of military assistance for those countries that refuse to take measures to protect our personnel from the court.

UNSC Peacekeeping Resolutions

  • With respect to UN peacekeeping and other operations, the USG undertook an intense diplomatic effort last year, prior to the entry into force of the Rome Statute, to protect U.S. troops and other personnel involved in such operations from exposure to the ICC.
  • The United States has been a major contributor to operations that maintain peace and security around the globe. We contribute approximately 6000 troops and civilian police to UN-established or UN-authorized peacekeeping operations, in addition to the 37,000 troops we have deployed in the Republic of Korea with UN authorization.
  • Contributing U.S. personnel to these efforts demonstrates a commitment to international peace and security. It can also involve significant danger to those personnel. Having accepted those risks in the service of promoting peace and stability, the United States is unwilling to accept the additional risk of exposing them to politicized prosecutions before a court whose jurisdiction we have not accepted.
  • For that reason, when it became clear that the Rome Statute would enter into force last year, we pushed hard for a Security Council resolution that would protect U.S. personnel from jeopardy before the ICC as a result of their participation in peacekeeping missions. Those negotiations were contentious, even though we took great care to respect the obligations of those states that had ratified the Rome Statute. In June of 2002, following unsatisfactory treatment of this important issue, the United States reluctantly vetoed a resolution to renew the mandate of the UN peacekeeping mission in Bosnia.
  • In the end, however, we secured last July a Security Council resolution under Chapter VII that triggers a mechanism under article 16 of the Rome Statute providing for a renewable one-year deferral of ICC investigations or prosecutions with respect to relevant nationals of non-Parties to the Rome Statute.
  • UNSC Resolution 1422 invokes that mechanism and asks the ICC not to proceed "if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts and omissions relating to a United Nations established or authorized operation." The Security Council further decided that Member States shall take no action inconsistent with that request to the ICC.
  • As I said, the article 16 mechanism in the Rome Statute contemplates a maximum deferral period of one year, which can be renewed. Resolution 1422 covers only the one-year period starting July 1, 2002. But the resolution also expresses the Security Council's intention to renew the request annually for as long as may be necessary. It is clear that future renewals of this deferral mechanism are necessary, and we fully expect the Security Council to renew its request to the ICC this summer.
  • While I'm on the subject of the Security Council, it is worth noting that the American Servicemember Protection Act also speaks to the participation of U.S. military personnel in peacekeeping operations authorized by the Security Council:

-- ASPA provides that U.S. military personnel may not participate in newly created peacekeeping operations unless the President submits a certification to Congress that either (1) the Security Council has permanently exempted U.S. military personnel from ICC jurisdiction for actions in connection with the peacekeeping operation; or (2) the host country of the peacekeeping mission has entered into an Article 98 agreement with us; or (3) the national interests of the United States justify U.S. participation.

Looking Ahead Now:

  • The USG will of course continue its efforts to avoid disruptions that might be caused by the Rome Statute.
  • At the same time, however, we will continue to pursue our leadership role as an advocate for accountability for perpetrators of war crimes, genocide and crimes against humanity. We believe that there are suitable alternatives to the ICC. These include:

-- At the most fundamental level, the pursuit of justice through credible national judicial systems.

-- Where domestic institutions are lacking but domestic will exists, the international community must be prepared to assist through political, financial, legal and logistical support.

-- Where domestic will is non-existent, the international community can intervene through the UN Security Council. This includes ad hoc mechanisms such as those for the former Yugoslavia and Rwanda. Or hybrid courts can be authorized, with a mixture of international and affected state participation, as in the case of the Special Court for Sierra Leone. The United States has played a key role in these initiatives.

-- We were instrumental in establishing these courts and tribunals, and we remain the largest financial contributor to the UN Tribunals, having provided over $300 million to the Rwanda and Yugoslav Tribunals to date.

  • In this context, it is only natural that our attention turns to Iraq as we learn more every day about the atrocities committed by the former regime in Iraq. The United States has been a leader in pursing justice for serious violations of the laws of war and other atrocities, from Nuremberg through the international tribunals I have just mentioned. Iraq will be no different. There must be accountability in Iraq. The question is what forums are available for accountability.

-- Neither the United States nor Iraq is a party to the Rome Statute, and it's our view that war crimes cases should be handled by the United States or other states whose citizens were the victims of the crimes, or by the Iraqi people with international support.

-- We are cataloging and documenting the reports of war crimes and other atrocities, both past and present. Our troops have been given the additional mission to help secure and preserve evidence of war crimes and atrocities.

-- For crimes committed against U.S. personnel, we will investigate and prosecute. We will also seek and prosecute those who committed or ordered war crimes against U.S. personnel during the Gulf War of 1991.

-- For the regime's crimes committed against other countries' nationals, both in the present and in the past, the governments of those nationals may also have a sovereign interest in seeking justice.

-- For the regimes' crimes committed against Iraqis, we believe that those responsible should be brought before an Iraqi-led process, possibly ranging from tribunals to truth and reconciliation commissions. The United States, together with others in the international community, intends to help ensure that a strong and credible process is created to bring the perpetrators to justice. This process will be part of the Iraqi movement toward democracy, the rule of law and legitimate international judicial institutions. This approach is consistent with the U.S. view that international practice should support sovereign states seeking justice domestically when it is feasible and would be credible. Because justice and the administration of justice are a cornerstone of any democracy, pursuing accountability while respecting the rule of law by a sovereign state must be encouraged at all times.

Doc. #111034 v.6
May 5, 2003

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