United States and The International Criminal Court - Bush Administration's Approach To The ICC

Bush Administration's Approach To The ICC

The position of the Bush Administration during its first term in office was to unalterably oppose US ratification of the Rome Statute, believing Americans would be unfairly treated for political reasons. Moreover, the Bush Administration actively pursued a policy of hostility towards the court in its international relations. In early May, the American Servicemembers' Protection Act of 2001 was introduced in both the House and the Senate. Essentially the same as the prior ASPA, the legislation would have prohibited any US government cooperation with the ICC unless the US ratified the Rome Treaty. Because the US has signed the statute, the legislation would have required actions counter to the normal obligation under the Vienna Convention on the Law of Treaties, (1969), which the US has signed, but not ratified, according to which states that have signed but not ratified treaties are considered bound nonetheless not to contravene them. The act did not pass in 2001, although weaker legislation preventing cooperation with funding to the Court was approved.

The Bush administration's policies toward the ICC exceeded merely staying out of the Statute, and actively began seeking to guarantee that US citizens be immune to the Court and to thwart other states from acceding to the Stature without taking US concerns into account. The US vigorously pressed states to conclude agreements with the US that would guarantee its citizens immunity from the Court's jurisdiction, threatening to cut off aid to states that refused to agree.

However, Bush Administration officials tempered their previously strident opposition to the ICC in the Administration's second term (especially with the departure of John Bolton from the Bush Administration). The United States did not oppose using the ICC to prosecute atrocities in Darfur, as evidenced by the U.S. abstention on United Nations Security Council Resolution 1593 referring the Darfur situation to the ICC for prosecution. In a statement, the State Department's John Bellinger stated: “At least as a matter of policy, not only do we not oppose the ICC’s investigation and prosecutions in Sudan but we support its investigation and prosecution of those atrocities.” In addition, the Congress of the United States, in a resolution, acknowledged the ICC's authority to prosecute war crimes in Darfur.