Speeches

International Criminal Court and the U.S.

The ICC and the Position of the USA
Speech by Mr. Albert G. Nahas Charge’ d’Affaires, a.i.
Embassy of the United States of America
Port of Spain
Human Rights Day, December 10, 2003
Convocation Hall, Hall of Justice
Port of Spain

It is an honor to address this distinguished audience, and somewhat daunting to face the eminent jurists that I see here. It is also an honor to heed the UN Secretary General’s request that we recall the late Sergio Viera de Mello for his dedication to the principles of international humanitarian law; further, I would like to add that for the same reasons we recall another great man who dedicated his life in support of those same principles, and again much of it in UN service, HH Sadruddin Aga Khan whom we all lost last year. I myself spent some proud years in UN service working under the direction, and learning so much from Prince Sadruddin. I also had the pleasure of working on many that projects that Sergio brought to fruition. On this Human Rights Day, it is also important to reflect with pride that, in this hemisphere, every nation, but one, has attained democracy, and general respect for the principles of human rights.

Let me start, by stating categorically that the U.S. has clearly demonstrated that it has been and continues to be among the most forceful advocates for the principle of accountability for war crimes, genocide and crimes against humanity.

· The U.S. has — historically — a strong record of support for the prosecution of war criminals, beginning with the post-World War II trials in Nuremberg. The United States played a major role in those trials and believes strongly in the principle of individual accountability.

· The U.S. strongly supports the UN International Criminal Tribunals for the Former Yugoslavia and Rwanda, is the largest financial contributor to both Tribunals, and provides significant support for the apprehension of persons indicted by the Tribunals, including through the U.S. Rewards for Justice campaign which offers up to $5 million for information leading to the arrest of indictees.

· The U.S. is encouraging states to pursue war criminals through their own criminal justice system. For example, the U.S. is a proponent of the special court in Sierra Leone, which combines strong domestic participation with international support and expertise to pursue accountability locally.

· The U.S. has reaffirmed the American commitment to appropriate investigation and prosecution of war crimes alleged to have been perpetrated by Americans, should such materialize. Such prosecutions would take place under the U.S. civilian or military code of justice, as applicable. Those codes and U.S. military personnel’s training to meet them set the highest standards in the world of respect for international humanitarian law.

However, The U.S. believes that in order to be bound by a treaty, a state must be party to that treaty. The ICC asserts jurisdiction over citizens of states that have not ratified the treaty. This threatens U.S. sovereignty and that of other nations.

· The U.S. particularly objects to the ICC’s power to disregard national court decisions. ICC prosecutors, with the approval of two judges on a three-judge panel, have the power to disregard the verdicts of national courts and to initiate investigations aimed at prosecutions.

· The U.S. believes in checks and balances. The Rome Statute creates a prosecutorial system that lacks appropriate checks.

· The U.S. believes the ICC undermines the role of the United Nations Security Council in maintaining international peace and security and which to date has initiated war crimes tribunals in particular cases.

· Because the ICC threatens national sovereignty, creates an unchecked prosecutorial system, and has the power to disregard national courts, and because of the potential conflict with the role of the U.N. Security Council, the U.S. believes that the ICC is built on a flawed foundation. Those flaws leave it open for exploitation and politically motivated persecutions.

· The U.S. believes its citizens are at special risk for prosecution by the ICC because of the unique U.S. role in global politics and U.S. participation in military operations and peacekeeping forces.

· Any American prosecuted by the ICC will, under the Rome Statute, be denied procedural protections to which all Americans would be entitled in a U.S. court under the Bill of Rights to the United States Constitution, such as the right to trial by jury.

At this point, the USG is pursuing, separate agreements, known as Article 98 agreements, with various ICC members, based on its belief that the ICC should not claim to have jurisdiction over the nationals, including government officials, of states not party to the Rome Statute. These are based on Article 98 of the satute.

· Supporters of the ICC have acknowledged the validity of Article 98 agreements entered into after the Rome Statute’s entry into force.

· During debates in the UN Security Council on a resolution to provide ICC protections in connection with peacekeeping operations, some states argued the U.S. could address its concerns by concluding a series of Article 98 agreements.

· The USG sees no conflict between the Article 98 agreements it is pursuing and the Rome Statute either legally, or with the spirit of the treaty.

In view of today’s venue, it is important to maintain the distinction between Human Rights, Humanitarian Law, Conduct of Forces and the Genocide Convention. After all, the ICC does not deal with Human Rights concerns as such, but rather with the handling of violators of various types international conduct.

U. S. Domestic Limitations to the ICC as It Now Stands

Congress stated, in the American Servicemembers’ Protection Act of 2002 (ASPA), signed into law by the President, that the United States will not recognize the jurisdiction of the ICC over United States nationals.

· In the ASPA, Congress enacted restrictions against members of the U.S. armed forces participating in peacekeeping operations, the creation of which is authorized by the United Nations Security Council on or after the Rome Statute enters into effect, unless the President has submitted the necessary certification to the appropriate congressional committees.

· The lack of Article 98 agreements is one of a number of factors the USG would need to consider when deciding on a peacekeeping role. However, even restricting U.S. involvement in peacekeeping operations to countries where the U.S. has an Article 98 agreement would not address USG concerns because USG peacekeepers travel and could be subject to surrender by a third country, with whom the U.S. does not have an Article 98 agreement.

· The ASPA restricts the provision of U.S. military assistance, effective one year after the date the Rome Statute enters into force, to any government that is party to the ICC, with the exception of NATO members, major non-NATO allies, and Taiwan. Military assistance is defined as assistance provided under relevantprovisions of the Foreign Assistance Act of 1961 and defense articles or defense services funded under the Foreign Military Financing Program.

· The President is authorized to waive this restriction with respect to a particular country if he determines that such a waiver is important to the national interest of the United States or if a particular country enters into an Article 98 agreement with the U.S.

· The ASPA restricts assistance to and cooperation with the ICC.

In short, the U.S. government considers the ICC to be fundamentally flawed. It lacks checks and balances that are essential to democratic institutions. The ICC prosecutors can disregard the verdicts of national courts if it concludes that the investigation or prosecution was not genuine and initiate investigations with the approval of only two judges. Moreover, prosecutions can be made against nationals of non-parties. Because of these and other major reservations the U.S. government has about the ICC, it is pursuing bilateral agreements under Article 98 of the Rome Statute, which authorized the establishment of the ICC. The agreements seek a pledge from co-signing governments that Americans would not be surrendered to the International Criminal Court (ICC) for prosecution or turned over to third countries for purposes of surrender to the ICC. Some have accused the U.S. of putting itself above the law and of undermining international law because of its pursuit of Article 98 agreements. However, we believe that this is a debate about means, not ends.

In that respect, the European Union’s recent decision to let member and candidate states negotiate these Article 98 agreements provides a way forward. The U.S. believes that its pursuit of bilateral agreements reflects a friendly approach toward the Treaty. It will seek the most effective way to create an environment that respects the rights of parties to the Rome Statute to be members of the ICC and respects its right not to be a party to the Rome Statute. There are some elements of the EU guidelines with which the U.S. does not agree. For example, the U.S. believes that the current U.S. draft of the agreement is fully consistent with the parties’ obligation under the Rome Statute.

Because of the reasons discussed above, on May 6, 2002, the U.S. formally notified the United Nations that the U.S. does not intend to become a party to The Rome Statute.

Although the United States remains a leader in its dedication to ensuring that perpetrators of war crimes are brought to justice, the U.S. voted against the adoption of The Rome Statute because it was seriously flawed.

Details on Significant Problems with the ICC Treaty

· Jurisdiction: The ICC purports to have jurisdiction over certain crimes committed in the territory of a state party, including by nationals of a non-party. Thus the Court would have jurisdiction for enumerated crimes alleged against U.S. nationals, including U.S. service members, in the territory of a party (Article 12), even though the U.S. is not a party.

· New Crimes: A state party to the Treaty can opt out of crimes added by amendment to the Statute, thereby exempting its nationals from the ICC's jurisdiction for these crimes. A non-party cannot opt out (Article 121).

· Aggression: The crime of aggression is included within the Court's jurisdiction, but has not been defined. The parties to the treaty will amend it to define this crime and specify the conditions for exercise of jurisdiction over it (Article 5). Only parties to the Treaty can opt out of the jurisdiction of the Court over the crime of aggression per Article 121. In addition, many states advocate conditions for the exercise of jurisdiction by the ICC that could bring the court into conflict with the Security Council and the UN charter.

· Prosecutor: The prosecutor can proceed with an investigation on his or her own initiative with the agreement of two judges of a three-judge panel (Article 15). The prosecutor is not responsible to an elected body or to the UN Security Council, and the Court lacks fundamental checks and balances.

· Reservations: In a serious departure from common practice, the Treaty does not permit states to take reservations (Article 120).

· Complementarity: The ICC is required to defer to the national prosecution unless the court finds that the state is unwilling or unable to carry out the investigation or prosecution (Article 17). By leaving this decision ultimately to the ICC, the Treaty would allow the ICC to review and possibly reject a sovereign State's decision not to prosecute, or a sovereign State's court decisions of not guilty or dismissal with prejudice in specific cases.

So, What is the Solution?

The U.S. continues to be a forceful advocate for accountability for perpetrators of war crimes, genocide and crimes against humanity. The U.S. is confident that there are more suitable alternatives to the ICC.

Alternate mechanisms include:

· States to pursue credible justice at home rather than abdicating responsibility to an international body.

· Where domestic legal institutions are lacking, but domestic will is present, the international community must be prepared to assist in creating the capacity to address the violations. This includes political, financial, legal, and logistical support.

· Where domestic will is non-existent, the international community can intervene through the UN Security Council, consistent with the UN charter.

· Ad hoc international mechanisms may be created under the auspices of the UN Security Council, as was done to establish the International Tribunals for the former Yugoslavia and Rwanda, or hybrid courts - consisting of international participants and the affected state participants - can be authorized, as in the case of Sierra Leone.

SUMMARY

The U.S. is emphatically committed to international accountability for war crimes, genocide, and crimes against humanity.

The U.S. strongly opposes the Rome Statute as seriously flawed, but will work together with other nations to avoid any disruptions that might be caused by the treaty. The treaty itself provides for this, specifically in Article 98. We intend to pursue Article 98 agreements worldwide.

Other mechanisms either already exist or may be established to ensure international accountability for war crimes, genocide, and crimes against humanity. The most fundamental mechanism is domestic state accountability. In the absence of state accountability, the International Community must act to assist the state, or in the most dire of circumstances, the UNSC may be required to establish situation-specific mechanisms to ensure justice.

This is consistent with the UN charter, which has been accepted by virtually all nations.

(Customary ending, including Season’s Greetings)