There has been considerable debate in the United States about the International
Criminal Court (ICC), much of it in this very room. Rather than rehearse many
of those arguments, however, I thought it might be helpful to give you a report
from the front, describing current efforts by the United States to protect its
citizens from the illegitimate assertion of authority over them. As President
Bush has argued as far back as the 2000 campaign, the problems inherent in the
ICC are more than abstract legal issues; they are matters that touch directly
on our national interests and security, and therefore also affect the security
of our friends and allies worldwide. As a result, the United States is engaged
in a global campaign to conclude bilateral agreements that will ensure U.S.
persons are not subjected to the ICC s jurisdiction.
For numerous reasons, the United States decided that the ICC had unacceptable
consequences for our national sovereignty. Specifically, the ICC is an
organization that runs contrary to fundamental American precepts and basic
Constitutional principles of popular sovereignty, checks and balances, and
national independence.
U.S. military forces and civilian personnel and private citizens are currently
active in peacekeeping and humanitarian missions in almost 100 countries at
any
given time. It is essential that we remain steadfast in preserving the
independence and flexibility that America needs to defend our national
interests around the world. As President Bush said: The United States
cooperates with many other nations to keep the peace, but we will not submit
American troops to prosecutors and judges whose jurisdiction we do not accept.
Every person who serves under the American flag will answer to his or her own
superiors and to military law, not to the rulings of an unaccountable
International Criminal Court.
Accordingly, in order to protect all of our citizens, the United States is
engaged in a worldwide effort to conclude legally binding, bilateral agreements
that would prohibit the surrender of U.S. persons to the Court. These Article
98 agreements, so named because they are specifically contemplated under
Article 98 of the Rome Statute that created the ICC, provide U.S. persons with
essential protection against the Court s purported jurisdictional claims, and
allow us to remain engaged internationally with our friends and allies.
Thus far, the United States has concluded and signed Article 98 agreements
with
70 countries all over the globe, representing over 40 percent of the world s
population. Each Article 98 agreement meets our key objective -- ensuring that
all U.S. persons are covered by the terms of the agreement. This broad scope
of
coverage is essential to ensuring that the ICC will not become an impediment
to
U.S. activities around the world. We must guarantee the necessary protection
to
our media, delegations of public and private individuals traveling to
international meetings, private individuals accompanying official personnel,
contractors working alongside official personnel (particularly in the military
context), participants in exchange programs, former government officials, arms
control inspectors, people engaged in commerce and business abroad, students
in
government sponsored programs, to name just a few categories of persons. The
orderly conduct of news reporting, diplomatic relations, economic activity,
tourism, military operations, humanitarian programs, cultural and education
exchanges, and other contacts between peoples around the world depend upon
rules that are fair, well understood, and subject to appropriate due process.
Article 98 agreements serve to ensure that U.S. persons will have appropriate
protection from politically motivated criminal accusations, investigations,
and
prosecutions. These straightforward agreements require that our partners agree,
either reciprocally or non-reciprocally, not to surrender U.S. persons to the
International Criminal Court, not to retransfer persons extradited to a country
for prosecution, and not to assist other parties in their efforts to send U.S.
persons to the ICC. We have worked hard to find mechanisms and formulations
in
these agreements that meet our requirement of blanket coverage while also
responding to the needs of our bilateral partners.
Indeed, our current tally attests to the growing consensus worldwide that
Article 98 agreements that provide for coverage of all U.S. persons are
legitimate mechanisms provided for in the Rome Statute itself. Of the 70
countries that have signed Article 98 agreements with us, 50 are signatories
or
States Parties to the Rome Statute. Based on our extrapolations from
negotiations currently underway, not only do we anticipate a rising number of
total Article 98 agreements, but even more agreements from States Parties and
signatories to the Rome Statute. Our ultimate goal is to conclude Article 98
agreements with every country in the world, regardless of whether they are a
signatory or Party to the ICC, or regardless of whether they intend to be in
the future.
The U.S. decision to seek these bilateral agreements originated during the
open
debate in the U.N. Security Council on Resolution 1422. A number of ICC
proponents, including European Union members, encouraged us not to resolve
these issues in the Security Council, but rather to do so on a bilateral basis.
Following this advice from our European friends, we began in the late summer
of
2002 to seek Article 98 agreements as an arrangement that would satisfy our
concerns, but also fall within the Rome Statute provisions.
Ironically, the European Union (EU) subsequently rejected the advice of some
of
its own members, and established a coordinated position that has made it
difficult for its member states to conclude acceptable Article 98 agreements
with the United States. Moreover, the EU is also now putting pressure on EU
aspirant countries to apply restrictive conditions on such agreements with us.
Some EU officials have argued that the wording of Article 98 of the Rome
Statute limits the categories of persons that can be covered by bilateral
non-surrender agreements, and the EU has imposed guidelines to this effect.
On
the contrary, the Rome Statute does not impose any obligation on States Parties
to refrain from entering into non-surrender agreements that cover all their
persons, while those who insist upon a narrower interpretation must, in effect,
read language into Article 98 (2) that is not contained within the text of that
provision.
From our perspective, the EU is imposing an unfair choice upon our friends
and
allies, particularly those countries seeking to join the EU. It is difficult
to
see how our attempt to use provisions of the treaty to protect U.S. persons
would do unacceptable damage to the spirit of the treaty, when the treaty
itself provides for such agreements. Indeed, parties to the Rome Statute have
used Article 124 to exempt their nationals for a period of seven years from
the
Court s war crimes jurisdiction, yet there has been no suggestion that
triggering these treaty provisions will undermine the Court. One EU member,
France, has already invoked that exemption in order to protect its citizens
from accusations with respect to war crimes. We hope that senior EU officials
in Brussels will reconsider their insistence on attaching overly restrictive
conditions to Article 98 agreements, given the wide support we are receiving
on
this issue elsewhere in the world. We also continue to discuss, on a bilateral
basis with EU member states, our desire to conclude properly-crafted Article
98
agreements with them.
Increasingly, Article 98 agreements play an important role in U.S. bilateral
relationships regardless of whether a State is a Party to the Rome Statute.
Of
importance here is the decision by the Congress to ensure that these agreements
are a foundation for military cooperation relationships around the world. The
American Servicemembers Protection Act, which was enacted with strong
bipartisan support by both houses of the Congress, prohibits military
assistance to countries that have ratified the Rome Statute but not entered
into Article 98 agreements with the United States. Additionally, there are
strong reasons for entering into these agreements with States that are not
Party to the Rome Statute. First, a State not currently a Party to the Rome
Statute may become one at any time. Second, the ICC may request that a
non-Party arrest and surrender to the Court a U.S. person on its territory.
The
Rome Statute contains no requirement for the State to notify the United States,
or receive our consent, before such a surrender. Concluding an Article 98
agreement is thus important to future cooperation on a range of diplomatic,
military, and security initiatives. It also sends an important political signal
that American concerns are widely shared around the world.
It is a misconception that the United States wants to use these agreements
to
undermine the ICC. To the contrary, we are determined to be proper in our
relations with the Court, proceeding in a manner specifically contemplated by
the Rome Statute itself. Moreover, in each agreement, the United States makes
clear its intention to bring to justice those who commit genocide, crimes
against humanity and war crimes. This is the stated goal of ICC supporters,
and
a goal that the United States has and will maintain.
Proponents of the ICC refuse to concede that the Court poses any problems
for
the United States. One of the principal arguments of the ICC s supporters has
been that it will function, in effect, as a court of last resort. For
countries that have functioning judicial systems, they contend, there is no
reason to question the legitimacy of those countries investigating and
prosecuting their own nationals accused of crimes covered by the Rome Statute.
Indeed, this concept, given the name complementarity, was touted in the
debates leading up to the Rome Statute, and in the lobbying campaign in the
United States after the signing of the Statute, as perhaps the main reason the
United States had nothing to fear from the ICC.
This is certainly the view that most European governments hold. They tell
us in
our bilateral discussions with them about Article 98 agreements that the ICC
is
mostly for use in failed states, where there is no functioning judicial
system, and where, absent the ICC, there would be no capacity whatever to
administer justice, as defined in the Rome Statue. In many cases, these
governments have told us that they would envision investigating and prosecuting
their own citizens in their national courts, rather than resorting to the ICC
in the first instance, thus asserting their prerogatives under the doctrine
of complementarity. One major problem with this view, of course, is that the
doctrine itself is untested, and whether and under what circumstances the ICC
s Prosecutor will accept assertions of national jurisdiction remains
essentially unknown.
What the United States is basically seeking, through Article 98 agreements,
is
nothing more than what States Parties to the Rome Statute claim they already
have. If someone were to assert that the American judicial system was corrupt,
incompetent or tolerant of war crimes and crimes against humanity, and
therefore amounted to the kind of failed state for whose judicial system the
ICC was intended to substitute, that would be one thing. We would, I can assure
you, certainly be prepared to contest those assertions. Not surprisingly,
however, no one seriously makes this argument. No one contends, openly at
least, that the American judicial system would not, properly and diligently,
perform its function in appropriate circumstances. Nor could they. As Secretary
Powell has said: We have the highest standards of accountability of any nation
on the face of the earth.
Of course, since the United States is not even a party to the Rome Statute,
there is even less reason why we should be treated more harshly than States
Parties. It is neither reasonable nor fair that the crimes laid out in the Rome
Statute should apply to a greater extent to States that have not agreed to its
terms than to those that have. This aspect of the Rome Statute is, among other
things, a fundamentally unfair and highly dangerous break from the
long-established premise of the International Court of Justice that there is
no
jurisdiction without the consent of States Parties.
But let us return to the fundamental point that complementarity, one of the
supposed bedrocks of the ICC, is being denied the United States by those
countries that do not accept Article 98 agreements. Here, we can only conclude
that another agenda is at work, namely the continued determination of some ICC
supporters who hope to cajole the United States into adhering to the Rome
Statute, ironically under the rubric of better protecting its own citizens.
This is an interesting approach, and one that is doomed to failure. We will
not
join the ICC, and we will continue to press for Article 98 agreements.
Subjecting U.S. persons to this treaty, with its unaccountable Prosecutor
and
its unchecked judicial power, is clearly inconsistent with American standards
of constitutionalism. This is a macro-constitutional issue for us, not simply
a
narrow, technical point of law. Our concerns about politically motivated
charges against U.S. persons are not just hypothetical. Recently in Belgium,
allegations of war crimes were brought against the President, the Vice
President, the Secretaries of State and Defense, and former President Bush
under that country s notorious and far-reaching universal competence statute.
That problem was brought closer to home when senior Belgian officials
themselves were charged under the statute, and the law was subsequently amended
to limit its scope. Without sufficient protection against such frivolous
charges, responsible officials may be deterred from carrying out a wide range
of legitimate functions across the spectrum, from actions integral to our
national defense to peacekeeping missions or interventions in humanitarian
crises or civil wars, such as in Liberia. Simply launching criminal
investigations has an enormous political impact. Although subsequent
indictments and convictions are unquestionably more serious, a zealous
independent Prosecutor can make dramatic news just by calling witnesses and
gathering documents, without ever bringing formal charges.
Accumulated experience strongly favors a case-by-case approach to resolving
serious political and military disputes, rather than the inevitable resort to
adjudication. One alternative to the ICC is the kind of Truth and
Reconciliation Commission created in South Africa. This approach was intended
to make public more of the truth of the apartheid regime in the most credible
fashion, to elicit admissions of guilt, and then to permit society to move
ahead without the prolonged opening of old wounds that trials, appeals, and
endless recriminations might bring.
Another alternative, of course, is for the parties themselves to try their
own
alleged war criminals, as the doctrine of complementarity supposedly
contemplates. In fact, the fullest cathartic effect of the prosecutorial
approach to war crimes occurs when the responsible population itself comes to
grips with its past and administers appropriate justice. The international
effort should encourage warring parties to resolve questions of criminality
within national judicial systems, as part of a comprehensive solution to their
disagreements. Removing key elements of the dispute to a distant forum,
especially the emotional and contentious issues of war crimes and crimes
against humanity, undercuts the very progress that these peoples, victims and
perpetrators alike, must make if they are ever to live peacefully together.
We strongly support states fulfilling their sovereign responsibility to hold
perpetrators of war crimes accountable rather than abdicating that
responsibility to the international community. For this reason, the United
States has been a major proponent of the special court in Sierra Leone because
it is grounded in sovereign consent, combines domestic and international
participation in a manner that will generate a lasting benefit to the rule of
law within Sierra Leone and its regional environs, and interfaces with the
truth and reconciliation commission of that country to address accountability
for a wide range of perpetrators.
In the past, the United States has supported the establishment of ad hoc
tribunals, such as those for Yugoslavia and Rwanda, which, unlike the ICC, are
created and overseen by the U.N. Security Council, under a U.N. Charter to
which virtually all nations have agreed. But we are now moving beyond that.
The
international community can help equip local governments to try cases
domestically in a credible manner. We are doing this in the Balkans and in
Rwanda. On October 30, the United States pledged $10 million at a donors
conference in The Hague to support domestic war crimes trials in Bosnia and
Herzegovina. We are supporting preparations for war crimes trials in Croatia
and Serbia and Montenegro, something that would have been unthinkable a few
years ago. We are also supporting such efforts in Rwanda. Now, the Security
Council tribunals are beginning to look at transferring cases under their
jurisdictions to domestic courts.
In matters of international justice, the United States has many foreign policy
instruments to utilize that are fully consistent with our values and interests.
We will continue to play a worldwide leadership role in strengthening domestic
judicial systems and promoting freedom, transparency and the rule of law. We
seek no immunity for our citizens, but only a simple, non-surrender agreement
as contemplated in the Rome Statute. We fully commit ourselves, where
appropriate, to investigate and prosecute serious, credible accusations of war
crimes, crimes against humanity and genocide that have been made against any
of
our people.
We respect the decision of states to become parties to the Rome Statute, but
they in turn must respect our decision not to be bound by jurisdictional claims
to which we have not consented. As President Bush stated in his National
Security Strategy, We will take the actions necessary to ensure that our
efforts to meet our global security commitments and protect Americans are not
impaired by the potential for investigations, inquiry, or prosecution by the
International Criminal Court, whose jurisdiction does not extend to Americans
and which we do not accept. States Parties to the Rome Statute have created
an
ICC to their liking, and they should live with it. The United States did not
agree to be bound, and must not be held to its terms.
[End]
Released on November 3, 2003
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