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Saturday, June 11, 2005

US Threats to the International Criminal Court

The United States of America is the only state that is actively opposed to the new International Criminal Court. US opposition to the Court can be traced back to the adoption of the Rome Statute of the International Criminal Court (Rome Statute) in 1998, where the USA was one of only 7 states to vote against adoption of the Statute. Reportedly a major reason for not supporting adoption of the Statute stems from the refusal of the international community to grant the United Nations Security Council (of which the USA is a veto holding permanent member) control over which cases the Court considered, instead favouring an independent Prosecutor who - subject to safeguards and fair trial guarantees - would make such decisions.

On 31 December 2000, however, President Clinton signed the Rome Statute, which was a positive step in favour of the Court. However, the US position has changed dramatically since the new administration under President Bush took office in 2001. On 6 May 2002, the US government took the unprecedented step of repudiating its signature of the Rome Statute and began a worldwide campaign to weaken the Court and to obtain impunity for all US nationals from the jurisdiction of the Court.

Amnesty International believes that the US concerns that the ICC will be used to bring politically motivated prosecutions against US nationals are wholly unfounded. The substantial safeguards and fair trial guarantees in the Rome Statute will ensure that such a situation would never arise.

This page provides information on two parts of the current US campaign against the ICC: impunity agreements and Security Council Resolution 1422. For further information on the USA and the ICC, please see the AI USA website, the AMICC website, the CICC website, or the Washington Working Group on the ICC website.

US Impunity Agreements

The USA is currently approaching governments around the world and asking them to enter into illegal impunity agreements. These agreements provide that a government will not surrender or transfer US nationals accused of genocide, crimes against humanity or war crimes to the ICC, if requested by the Court. The agreements do not require the USA or the other state concerned to investigate and, if there is sufficient evidence, to prosecute such a person in US Courts. Indeed in many cases it would be impossible for US courts to do so, as US law does not include many of the crimes under the Rome Statute.

On 1 July 2003 the USA announced the withdrawal of military assistance to 35 states who are parties to the Rome Statute and have refused to sign an impunity agreement with the USA. On 8 December 2004, the USA went even further, withdrawing economic support from states that still refuse to sign impunity agreements. The withdrawal of this economic funding threatens to undermine counter-terrorism efforts, peace process programs, anti-drug trafficking initiatives, truth and reconciliation commissions and HIV/Aids education, and threatens states such as Jordan, Ireland, Cyprus, Peru, Ecuador, Venezuela and South Africa.

The USA claims that these agreements are legal and in conformity with Article 98 of the Statute. However, Amnesty International has conducted a legal analysis which demonstrates that US Impunity Agreements do not fall under Article 98, and states that enter into such agreements with the USA are in breach of their obligations under international law. This legal analysis (International Criminal Court: US efforts to obtain impunity for genocide, crimes against humanity and war crimes, IOR 40/025/2002) is available in Arabic, English, French and Spanish.

The European Union's legal experts have also analysed the agreements, and have reached the same conclusion "[e]ntering into US agreements - as presently drafted - would be inconsistent with ICC States Parties' obligations with regard to the ICC Statute ... ". The EU has issued guiding principles which Amnesty International analyses in International Criminal Court: The need for the European Union to take more effective steps to prevent members from signing US impunity agreements (IOR 40/030/2002). This paper is available in Arabic, English, French and Spanish.


Security Council Resolution 1422 and 1487

Another strategy being pursued by the USA is to obtain impunity for US nationals through the United Nations Security Council. In July 2002, the Security Council, under immense pressure from the USA, passed Resolution 1422. This resolution seeks to give perpetual impunity from investigation or prosecution by the ICC to nationals of states that have not ratified the Rome Statute, when such persons are involved in operations established or authorized by the United Nations. In June 2003, the Security Council renewed this resolution for another year in a vote of 12-0 (Resolution 1487). Many states made strong statements against the resolution and in support of the ICC in a public debate before the adoption. Three Security Council members abstained from voting - France, Germany and Syria.

Amnesty International has published a legal analysis of this resolution, which concludes that the resolution is contrary to the Rome Statute, and also to the United Nations Charter (International Criminal Court: The unlawful attempt by the Security Council to give US citizens permanent impunity from international justice, IOR 40/006/2003). Amnesty International is calling on the Security Council not to renew this resolution again when it expires on 30 June 2004.

A summary of this legal analysis is available in Arabic, English, French and Spanish (International Criminal Court: Security Council must refuse to renew unlawful Resolution 1422, IOR 40/008/2003).

On 23 June 2004, the USA withdrew its attempt to renew Resolution 1487 for a further year. In the light of the revelations of prisoner abuse in Iraq and the public opposition to the renewal by UN Secretary General Kofi Annan, at least eight members of the Security Council refused to support the renewal of the resolution. Resolution 1487 expired on 30 June 2004, ending the blanket impunity enjoyed by nationals of non-states parties when involved in peacekeeping operations established or authorized by the UN. However, the USA has warned that it will continue its efforts to conclude impunity agreements with individual states. There is also the risk that the USA may try to seek similar exemptions from ICC jurisdiction on an individual basis by blocking any peacekeeping missions that do not contain such protections for nationals of non-states parties. For Amnesty International's press release on the USA's withdrawal, please click here.

© AMNESTY INTERNATIONAL

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