United States and The International Criminal Court - Signing and Ratification

Signing and Ratification

Following years of negotiations aimed at establishing a permanent international tribunal to prosecute individuals accused of genocide and other serious international crimes, such as crimes against humanity, war crimes and the recently defined crimes of aggression, the United Nations General Assembly convened a five-week diplomatic conference in Rome in June 1998 "to finalize and adopt a convention on the establishment of an international criminal court". On 17 July 1998, the Rome Statute of the International Criminal Court (Rome Statute) was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were Iraq, Israel, Libya, the People's Republic of China, Qatar, Yemen, and the United States.

U.S. President Bill Clinton originally signed the Rome Statute in 2000, but stated that he would not submit it to the Senate for advice and consent for ratification until the U.S. government had a chance to assess the functioning of the court. He nonetheless supported the proposed role of the ICC and its objectives:

The United States should have the chance to observe and assess the functioning of the court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor, submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied. Nonetheless, signature is the right action to take at this point. I believe that a properly constituted and structured International Criminal Court would make a profound contribution in deterring egregious human rights abuses worldwide, and that signature increases the chances for productive discussions with other governments to advance these goals in the months and years ahead.

After the Rome Statute reached the requisite 60 ratifications in 2002, President George W. Bush's Administration sent a note to the UN Secretary General on May 6, 2002. The note purports to suspend the US's signature and informed the Secretary General that the US recognized no obligation toward the Rome Statute. In addition, the US stated that its intention not to become a state party should be reflected in the UN depositry's list. This is because signatories have an obligation not to undermine the object and purpose of a treaty according to Article 16 of the Vienna Convention on the Law of Treaties, also sometimes referred to as the good faith obligations. According to one authority the US could engage with the Court by reactivating its signature to the Rome Statute by submitting a letter to the UN Secretary General.

A treaty that is not ratified is not legally binding. ‘Signature’ of a treaty provides a preliminary endorsement. Signing does not create a binding legal obligation but does demonstrate the State’s intention to examine the treaty domestically and consider ratifying it. It does oblige the State to refrain from acts that would counter or undermine the treaty’s objective and purpose.