06 May 2002
Fact Sheet: The International Criminal Court
(U.S. will not become a party to the Rome statute) (940)
(This State Department Fact Sheet detailing the U.S. decision not to
become a party to the International Criminal Court was issued May 6,
2002.)
(begin fact sheet)
U.S. DEPARTMENT OF STATE
Washington, DC
Fact Sheet on The ICC
U.S. Decision
-- On May 6th, 2002, the U.S. formally notified the United Nations
that the U.S. does not intend to become a party to the Rome statute.
Background
-- In 1998, a UN diplomatic conference in Rome comprised of
representatives from 160 countries adopted a treaty, known as the
"Rome Statute," to create an international criminal court.
-- 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.
-- The United States signed the treaty on December 31, 2000. At that
time, then-President Clinton stated the treaty was fundamentally
flawed and that he would not forward the treaty to the Senate for
advice and consent to ratification. He also recommended that his
successor not forward the treaty to the Senate.
-- The Rome statute provides that it will enter into force on the
first day of the month after the 60th day following the date on which
the 60th country submits its instrument of ratification to the UN.
-- On April 11, 2002, the total number of ratified countries surpassed
60.
-- The treaty will enter into force on July 1, 2002.
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). This is unacceptable.
-- 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). This could lead to politically motivated
prosecutions.
-- 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).
However, by leaving this decision ultimately to the ICC, the treaty
would allow the ICC to review and possibly reject a sovereign state's
decisions not to prosecute or a sovereign state's court decisions not
to convict in specific cases.
Alternate Mechanisms
-- 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:
-- Domestic Accountability. Encourage 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, such 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 United States strongly opposes the ICC treaty because it is
seriously flawed.
-- The United States will work together with other nations to avoid
any disruptions that might be caused by the treaty.
-- 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.
(end fact sheet)
(Distributed by the Office of International Information Programs, U.S.
Department of State. Web site: http://usinfo.state.gov)
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