Johansen 2006 The Impact of US Policy

HUMAN RIGHTS QUARTERLY
The Impact of US Policy toward the

International Criminal Court on the
Prevention of Genocide, War Crimes,
and Crimes Against Humanity
Robert C. Johansen*
ABSTRACT
The United States has undermined the effectiveness of the International
Criminal Court by refusing to join or support the Court; by withholding support
for UN peacekeeping unless US citizens are exempted from international
enforcement arising out of such operations; by pressing other countries to
sign treaties exempting US citizens from Court proceedings; by cutting US
foreign assistance to selected countries unless they sign immunity agree-
ments with Washington; and by holding victims of war crimes and crimes
against humanity hostage to obtaining exemptions for US citizens. These
US policies make it more difficult to enforce the laws prohibiting genocide,
war crimes, and crimes against humanity.
I. Examining the Impact of US Policies on the International

Criminal Court ............................................................................. 302
A. Promising not to Undermine the Court.................................... 304
B. Exempting UN Peacekeepers from the Court’s Jurisdiction ...... 305
C. Pressing for Bilateral Immunity Agreements to exempt US
citizens .................................................................................... 311
* Robert C. Johansen is Professor of Political Science at the University of Notre Dame and Se-
nior Fellow at the Kroc Institute for International Peace Studies. He is author of The National
Interest and the Human Interest: An Analysis of U.S. Foreign Policy (Princeton University
Press) and numerous scholarly articles. Formerly Director of Research and then President of
the World Policy Institute, he also has held visiting appointments at Princeton and Harvard.
His current research focuses on efforts to increase compliance with the prohibitions of war
crimes, genocide, crimes against humanity, and crimes against the peace.
Dr. Johansen wishes to thank Xiaomao Min and Mari Ishibashi for research assistance,
as well as Richard Falk and Gerard Powers for their comments on an earlier draft of this
manuscript.
Human Rights Quarterly 28 (2006) 301–331 © 2006 by The Johns Hopkins University Press
302 HUMAN RIGHTS QUARTERLY Vol. 28
D. Punishing States Unwilling to Grant US Immunity .................. 313

E. Delaying Security Council Referral of Crimes to the Court ...... 320
II. Evaluating the Impact of US Policy ............................................... 323
A. Undermining the Enforcement of Humanitarian and Human
Rights Law ............................................................................... 323
B. Enhancing International Enforcement of Humanitarian and
Human Rights Law .................................................................. 328
C. Prospect ................................................................................... 330
I. EXAMINING THE IMPACT OF US POLICIES ON THE

INTERNATIONAL CRIMINAL COURT
Because key members of the new Bush administration arriving in Washington

in 2001 and Republican leaders of Congress had already made clear their
skepticism about the world’s first permanent International Criminal Court
(ICC, the Court), no one was surprised when the administration announced,
on 6 May 2002, that it would “unsign” the treaty to establish the Court.
However, very few could have known then the radical diplomatic strategy
that US officials would eventually embrace toward the Court, the intensity
with which they would pursue it, and the sweeping implementation efforts
that would shape US relations with most countries of the world, with the
United Nations and its peacekeeping1 operations, and with those receiv-
ing US foreign military assistance and development aid. Nor could most
observers have foreseen how US policies would undermine the ability of
the international community to enforce laws against genocide, war crimes,
and crimes against humanity. What are the real intentions of US officials in
their strategy toward the Court? What impact do US policies have on the
enforcement of international laws to prevent genocide, war crimes, and
crimes against humanity? This article answers these questions by examining
the nature and consequences of the four-pronged US diplomatic strategy
toward the International Criminal Court.2
1. Peacekeeping in this article refers to both traditional UN peacekeeping and UN enforce-

ment operations, whether authorized, respectively, under a Chapter VI or a Chapter VII
mandate.
2. For analysis of the reasons for US opposition to the court, see Jamie Mayerfeld, Who
Shall Be Judge?: The United States, the International Criminal Court, and the Global
Enforcement of Human Rights, 25 HUM. RTS. Q. 93 (2003); JENNIFER ELSEA, CONGRESSIONAL
RESEARCH SERVICE, REPORT FOR CONGRESS: U.S. POLICY REGARDING THE INTERNATIONAL CRIMINAL COURT
(2002), available at http://fpc.state.gov/documents/organization/13389.pdf; David P.
Forsythe, The United States and International Criminal Justice, 24 HUM. RTS. Q. 974
(2002); Marc Weller, Undoing the Global Constitution: UN Security Council Action on
the International Criminal Court, 78 INT’L AFF. 693 (2002).
2006 Impact of US Policy toward the International Criminal Court 303
This analysis explores the impact of US policies on international law

enforcement, regardless of whether US actions might be considered legal or
illegal. Clearly, many US actions against the Court are legal, even though they
undermine the Court. Other US proposals and actions could be considered
illegal. Both kinds of actions, of course, might negatively affect the ability
of the international community to enforce norms against criminal conduct.
In accord with international law governing treaties, the United States, as a
non-party to the Rome Statute, which established the Court, is not bound
by the provisions of the treaty unless such provisions incorporate custom-
ary international law or have the status of jus cogens norms. Much of the
substantive law that the ICC enforces does have such a foundation outside
the Rome Statute or in other treaties that the United States has ratified and
that do bind US citizens. These treaties include, for example, the Geneva
Conventions of 19493 and Protocols of 19774 and the Convention on the
Prevention and Punishment of the Crime of Genocide;5 they help to define
war crimes, genocide, and crimes against humanity. As a non-party to the
Rome Statute, the United States may not be required to submit its nationals
to ICC enforcement jurisdiction; but as a party to other treaties and a subject
of customary international law, its citizens are obligated to obey the law.
If the US government uses coercive means to induce parties to the
Rome Statute to violate its provisions, this would be regarded as a viola-
tion of international law, as well as an extreme expression of Washington’s
hostility toward international law, which goes well beyond its decision not
to take part in the Court. In short, a failure to join the ICC and to authorize
it to enforce international law on US nationals would be considered legal
3. See generally Geneva Convention (I) for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, 12 Aug. 1949, 6 U.S.T. 3114, 75
U.N.T.S. 31, (entered into force 21 Oct. 1950) (entered into force for U.S. 2 Feb. 1956);
Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, 12 Aug. 1949, 6 U.S.T. 3217, 75 U.N.T.S.
85 (entered into force 21 Oct. 1950) (entered into force for U.S. 2 Feb. 1956); Geneva
Convention (III) Relative to the Treatment of Prisoners of War, 12 Aug. 1949, 6 U.S.T.
3316, 75 U.N.T.S. 135 (entered into force 21 Oct. 1950) (entered into force for U.S.
2 Feb. 1956); Geneva Convention (IV) Relative to the Protection of Civilian Persons in
Time of War, 12 Aug. 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (entered into force 21 Oct.
1950) (entered into force for U.S. 2 Feb. 1956).
4. See generally Protocol (I) Additional to the Geneva Conventions of 12 Aug. 1949, and
Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8
June 1977, 1125 U.N.T.S. 3 (entered into force 7 Dec. 1978), reprinted in 16 I.L.M.
1391 (1977); Protocol (II) Additional to the Geneva Conventions of 12 Aug. 1949, and
Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II),
8 June 1977, 1125 U.N.T.S. 609 (entered into force 7 Dec. 1978), reprinted in 16 I.L.M.
1442 (1977).
5. See generally Convention on the Prevention and Punishment of the Crime of Genocide,
adopted 9 Dec. 1948, 78 U.N.T.S. 277 (entered into force 12 Jan. 1951) (entered into
force for U.S. 23 Feb. 1989).
(even if politically unwise). But efforts to exempt US nationals from obeying

the law or to coerce other nations to violate their treaty obligations would
not be legal.
A. Promising not to Undermine the Court
The Bush administration’s policies toward the Court began with promises not
to undermine it. When the US Ambassador-at-Large for War Crimes Issues,
Pierre-Richard Prosper, announced that the United States would withdraw its
signature from the Rome Statute, he promised that the United States was “not
going to war” with the Court.6 Marc Grossman, Under Secretary of State for
Political Affairs, promised that, despite disagreements with the Rome Statute,
the United States “respects the decision of those nations who have chosen
to join the ICC.” He declared that those countries “in turn must respect our
decision not to join the ICC.” Despite genuine differences, “we must work
together to promote real justice.”7 Assistant Secretary of State Bloomfield
pledged that “the U.S. does not seek to undermine the ICC, and asked in
return that our decision not to become a party be similarly respected.”8 At
many times and in many places, the United States promised that it would
not “take any action to undermine the ICC.”9
But immediately after promising not to work against the Court, the Bush
administration and Congress made law and developed policies that not only
prevented US cooperation with the Court but also aggressively undermined
the Court and aimed to destroy its legitimacy and effectiveness.10 The Bush
administration moved quickly to discourage other states from ratifying the
6. Human Rights Watch (HRW), U.S. Proposals to Undermine the International Criminal
Court Through a U.N. Security Council Resolution (25 June 2002), available at www.
hrw.org/campaigns/icc/usproposal.htm [hereinafter HRW, U.S. Proposals to Undermine
the ICC]. Senator Christopher Dodd said of the unsigning, “It is outrageous that the
United States has now put itself in a position of joining only a handful of rogue nations
that are frightened to death of the International Criminal Court as we enter the 21st
century.” Senator Christopher Dodd, Speech on the ICC on the Floor of the Senate (13
May 2002), available at www.globalsolutions.org/programs/law_justice/icc/statements/
Dodd_May_02.html.
7. Marc Grossman, Remarks to the Center for Strategic and International Studies (6 May
2002), available at www.state.gov/p/9949pf.htm.
8. Lincoln P. Bloomfield, Jr., The U.S. Government and the International Criminal Court,
Remarks to the Parliamentarians for Global Action, Consultative Assembly of Parliamen-
tarians for the International Criminal Court and the Rule of Law, United Nations, New
York (12 Sept. 2003), available at www.state.gov/t/pm/rls/rm/24137.htm.
9. ELSEA, supra note 2, at 1, citing Grossman, supra note 7.
10. In the assessment of one human rights observer, “US actions reflect a multi-pronged
attack on the Court and its supporters.” US Launches Global Campaign for Impunity,
INT’L CRIM. CT. MON., Sept. 2002, available at www.iccnow.org./publications/monitor/22/
Monitor22.200209.english.pdf [hereinafter US Launches Global Campaign].
Rome Statute, which would establish the Court after 60 ratifications had
been received.11 It asked other non-parties to help the United States prevent
the Court from apprehending some persons who might be indicted by the
Court. It pressed states that became parties to the Rome Statute not to fulfill
some of their legal obligations under the treaty. The US Congress asked US
officials to remove, through military force if necessary, US nationals and the
nationals of other countries that collaborated with the United States from
detention if they were being transferred to the ICC or held in custody by the
Court in the Hague or by other states pending investigations and trials.12
In addition to unsigning the treaty, refusing to cooperate with the
Court, and resisting efforts by those who sought to nurture its well-being,
the Bush administration and the Republican-controlled Congress adopted
a four-pronged strategy: (1) to hold UN peacekeeping and UN authorized
enforcement operations hostage to the US demand that all US citizens be
exempted from any Court effort to enforce international humanitarian law
during such operations; (2) to press all countries throughout the world to
sign bilateral treaties with the United States to exempt all US citizens and
other nationals employed by it from the ICC’s enforcement of international
humanitarian and human rights law; (3) to withdraw US security assistance
and, later on, humanitarian development aid from selected countries that
have become parties to the Court, unless they agree to sign bilateral agree-
ments with the United States to exempt US nationals from the reach of
the ICC; and (4) to hold victims of rape, genocide, war crimes, and other
crimes against humanity hostage to US insistence on exempting the United
States from international law enforcement on such crimes. This discussion
proceeds by examining, in turn, the four components of US strategy and
then analyzing the consequences of US policies.
B. Exempting UN Peacekeepers from the Court’s Jurisdiction
Even before the Rome Statute came into force on 1 July 2002, the United
States sought, through the United Nations Security Council, broad and
complete immunity from the Court for US nationals engaged in international
peacekeeping and enforcement. In May, the United States tried to exempt
UN peacekeepers from the Court’s jurisdiction and from legal responsibility
11. Rome Statute of the International Criminal Court, adopted 17 July 1998, 2187 U.N.T.S.
90, art. 126(1), U.N. Doc. A/CONF.183/9 (1998), reprinted in 37 I.L.M. 999 (1998)
(entered into force 1 July 2002) [hereinafter Rome Statute].
12. See American Servicemembers’ Protection Act of 2002, 22 U.S.C. § 7421 (2006) [herein-
after American Servicemembers’ Protection Act]. See also ELSEA, supra note 2, at 8–11.
for respecting human rights during UN operations in East Timor.13 Because

other states believed the conduct of UN peacekeepers should be held to at
least the same standards and international enforcement procedures as those
that are appropriate for non-UN soldiers, this US effort did not succeed. US
officials next applied more pressure on the Security Council when it met
in June, this time to renew the mandate for peacekeeping forces in Bosnia-
Herzegovina. The Bush administration pressed to exempt peacekeepers of
all nationalities, in all UN-mandated and UN-authorized operations, from
the jurisdiction of the ICC. The possible instances of peacekeeping miscon-
duct that Washington did not want the ICC to investigate were not minor
misdeeds, of course, but the crimes of genocide, war crimes, and crimes
against humanity.
To wield more leverage than it had in the East Timor debate, the United
States in June 2002 vetoed the UN resolution to extend the peacekeeping
mission in Bosnia because the resolution failed to guarantee US participants
(and others) immunity from the Court. The United States then threatened
to veto all future UN peacekeeping missions, which would have wreaked
havoc in many conflicts, unless US demands were met. Under enormous
pressure, the Security Council reluctantly agreed not to prosecute for one
year any participants in UN peacekeeping missions, or sub-contracted opera-
tions that it might authorize, from countries that had not ratified the Court’s
statute. The Council’s concession did not enable the Bush administration
to fulfill its original goal of permanent or more sweeping immunity, but it
opened the door to annual extensions of immunity for one year at a time.
It also demonstrated that the Security Council would bend to US will and
would play a role in making UN adjustments to facilitate US participation
in multilateral peacekeeping and enforcement operations in the future.14
Worldwide reactions to Washington’s request were deeply negative.
During various UN debates in 2002, more than 100 UN members spoke
against the US insistence upon its own immunity, with many claiming that
the US-sponsored resolutions undermined international law,15 primarily for
three reasons: First, the United States was asking the Security Council to
undertake a controversial step by amending a widely endorsed, multilateral
treaty that established an international court to enforce international criminal
law. Second, the United States was grossly distorting the meaning of Article
13. HRW, U.S. Proposals to Undermine the ICC, supra note 6.

14. ELSEA, supra note 2, at i.
15. Amnesty International (AI), Public Statement, International Criminal Court: Security Coun-
cil Renewal of Unlawful Resolution 1487 Providing Impunity for Peace-Keepers Would
Be a Further Set-Back for International Justice (20 May 2004), available at www.iccnow.
org/documents/declarationsresolutions/unbodies/AIPublicStatementRes1487_20May04.
pdf [hereinafter AI, Security Council Renewal of Unlawful Resolution 1487]. Amnesty
International said that “legal experts have now overwhelmingly concluded that Resolu-
tion 1422 was contrary to the UN Charter and other international law.”
16 of the Rome Statute. It allowed the Council to defer a specific Court

proceeding for twelve months, but clearly it was not intended to exempt
an entire class of people from a possible future investigation, without the
Council even having identified a threat to the peace to warrant a deferral.
Third, US proposals contradicted Article 27 of the Rome Statute, which
established the “irrelevance of official capacity” for any who might come
under ICC jurisdiction.16
Moreover, the United States had originally asked the Security Council
to agree that personnel from contributing countries in peacekeeping opera-
tions would have immunity within the territory of all UN member states
(except from the state of their own nationality), not simply the state in
which the UN operation was deployed. In addition, Washington wanted
the immunity to continue indefinitely after the end of their participation in
the peacekeeping operation.17 To ask for immunity for UN peacekeeping
forces for criminal acts in the state hosting a UN operation was an attack
on the Court’s jurisdiction and legitimacy as well as a denigration of UN
peacekeeping forces, suggesting that they were unwilling to be subject to
Court jurisdiction over their conduct regarding heinous crimes. In asking
for immunity in all UN member states, the United States proposed violating
a fundamental obligation of all parties to the Rome Statute to turn over an
accused person to the Court if his or her case was not being appropriately
adjudicated elsewhere.
The Court statute specifies that if crimes are committed on the territory
of a party to the treaty, the Court could have jurisdiction over the accused
regardless of his or her nationality—unless a national judicial proceeding
occurred and the principle of complementarity kept the case out of the ICC.18
This principle specifies that the ICC is a court of last resort, not first resort. It
cannot place any person on trial unless the relevant national judicial institu-
tions are “unable or unwilling” to function with fair investigations and, if
warranted, trials.19 In any case, every party to the statute has a legal obligation
to extradite the accused to the Court if national complementarity or other
extradition treaties do not apply.20 US proposals would have required states
to ignore their obligation to turn over the accused to the Court.
Careful scrutiny shows that US proposals were designed not merely to
exempt US citizens but also to mount an assault on the Court and on the
ability of the international community to bring people who might be ac-
cused of serious crimes under investigation and trial by the ICC. The United
States had not ratified the treaty, yet it sought to nullify treaty obligations
16. Rome Statute, supra note 11, art. 27

18. Rome Statute, supra note 11, art. 17.
19. Id. art. 17(1).
20. Id. arts. 89(1), 90(7).
for the states that had ratified it. Hostile intent is further suggested by the
US expectation that passage of the Security Council resolution would also
have led states either not to pass or to rescind national legislation to make
their national laws compatible with treaty obligations of the Court’s statute.
US actions aimed at unraveling other countries’ domestic legal fabric that
was intended to reduce impunity for criminal conduct.
If the Security Council had approved all these US demands, the Coun-
cil would have given the self-defeating impression that UN peacekeepers
need not ensure that their conduct is exemplary because they were outside
the realm of international legal enforcement. At the invitation of the Bush
administration, the Security Council would itself have contradicted Article
27 of the treaty, which prohibits any person from claiming special immunity
from Court jurisdiction.21
Although the Security Council did not approve this sweeping attack on
the Court, it did reluctantly pass Resolution 142222 to give a one-year im-
munity from investigation or prosecution to nationals of states that had not
ratified the Court’s statute if such persons served in UN peace operations.
John D. Negroponte, then US Ambassador to the United Nations, heralded its
passage as the “first step” in “a multifaceted approach” to gain immunity for
all US citizens from the reach of the Court.23 The following year, in Resolu-
tion 1487 of 12 June 2003, the Security Council renewed, for another year,
an exemption from the Court’s jurisdiction for any UN peacekeepers if they
were nationals of states that have not ratified the Court statute.24 Despite
Council approval under US pressure, UN members “were virtually unani-
mous in opposing the renewal” of the US exemption, because they believed
it subordinated the serious purposes of peacekeeping to US pettiness about
creating for itself an exception to norms that other countries accepted.25
France, Germany, and Syria abstained from the Council vote—rather than
voting “no”—to enable the resolution to pass and end the Security Council
deadlock with the United States.26
In 2004, the United States again sought to renew an exemption for all
US forces taking part in UN missions or in missions authorized by the UN,
such as the coalition forces in Iraq after 30 June 2004.27 The US pressed

22. S.C. Res. 1422, U.N. SCOR, 4572d mtg., U.N. Doc. S/RES/1422 (12 July 2002).
23. US Launches Global Campaign, supra note 10.
24 S.C. Res. 1487, U.N. SCOR, 4772d mtg., U.N. Doc. S/RES/1487 (12 June 2003).
25. Press Release, Citizens for Global Solutions (CGS), U.S. Seeks Renewal of Exemption
for Peacekeepers: Introduces Security Council Resolution Granting Immunity from ICC
(20 May 2004), available at www.iccnow.org/documents/declarationsresolutions/unbod-
ies/CGS1487_20May2004.pdf.
26. AI, US Threats to the International Criminal Court, available at www.web.amnesty.
org/pages/icc-US_threats-eng.
27. However, because neither the United States nor Iraq joined the Court, and because
the Court will not act on nationals from countries that prosecute crimes by their own
military personnel, the Iraqi operation would not come under Court’s jurisdiction.
insistently for passage of Resolution 1487, even though by that time several
independent legal analyses concluded that Resolutions 1422 and 1487 were
“contrary to the Rome Statute. . . , undermined the rule of law, violated the
UN Charter, and damaged the authority of the ICC as well as the Security
Council itself.”28 Moreover, in response to the US exemption campaign, UN
Secretary General Kofi Annan strongly cautioned Security Council members
against providing immunity for UN peacekeepers, saying the US request
was of “dubious judicial value.”29 Moreover, “given the prisoner abuse in
Iraq,” he said, “it would be unwise to press for an exemption, and it would
be even more unwise on the part of the Security Council to grant it.”30 To
renew the exemption “would discredit the Council and the United Nations
that stands for the rule of law and the primacy of the rule of law.”31 Repeated
renewals would harm the relationship between the UN and the ICC because
these resolutions contradicted the purpose of the Court by exempting some
people from international justice and by suggesting that the Security Coun-
cil wanted “to claim absolute and permanent immunity for people serving
in the operations it establishes or authorises.”32 In the end, the US request
for immunity was overwhelmed by mounting evidence that US forces had
certainly abused and probably tortured more than a few prisoners in Iraq,
Afghanistan, and Guantanamo. Because US forces, until the advent of the
Bush administration, had enjoyed a wide reputation for excellent military
discipline and humane treatment of prisoners of war, most governments
were stunned by the disclosure of Bush administration memos “approving
of interrogation techniques prohibited under international law.”33
Benin, Brazil, Chile, China, France, Germany, Spain, and Romania, all
members of the Security Council at the time, refused under US pressure to
modify their opposition to the renewal resolution.34 Although China had
28. See AI, US Threats to the International Criminal Court, supra note 26; Human Rights
First (HRF), In Victory for the Rule of Law, U.S. Withdraws Immunity Request (28 June
2004), available at www.iccnow.org/pressroom/membermediastatements/2004/HRFState-
mentWithdrawalUNRes1487_25Jun04.pdf [hereinafter HRF, In Victory for the Rule of
Law]; AI, Security Council Renewal of Unlawful Resolution 1487, supra note 15. The
unlawfulness of Resolution 1422 is documented at length in AI, INTERNATIONAL CRIMINAL
COURT: THE UNLAWFUL ATTEMPT BY THE SECURITY COUNCIL TO GIVE US CITIZENS PERMANENT IMPUNITY
FROM INTERNATIONAL JUSTICE (2003) (AI Index: IOR 40/006/2003), available at http://web.
amnesty.org/library/pdf/IOR400062003ENGLISH/$File/IOR4000603.pdf.
29. Warren Hoge, Annan Rebukes U.S. for Move to Give Its Troops Immunity, N.Y. TIMES,
18 June 2004, at A10.
30. Id.
31. Id.
32. Kofi Annan, Secretary-General’s Statement to the Security Council on the Renewal of
a Resolution Regarding the International Criminal Court and Peacekeeping (12 June
2003), available at http://www.iccnow.org/documents/statements/unbodies/KofiAnnan-
142212June03.pdf.
33. HRF, In Victory for the Rule of Law, supra note 28.
34. Gothom Arya, Security Council Defends Integrity of the International Criminal Court,
Asian Forum for Human Rights and Development, 24 June 2004, available at www.
supported similar US-sponsored resolutions in the two previous years, the

Chinese ambassador explained that to support the US resolution in 2004
would seem to provide legal cover for US forces responsible for prisoner
abuse, citing the US military’s “misbehavior, which is a violation of inter-
national and humanitarian law.”35 Only Britain, Russia, Angola, and the
Philippines supported the US proposal.36 Lacking a sufficient number to
pass the resolution, the United States withdrew it.37
After the Council refused to renew the US exemption, the Bush admin-
istration responded by withdrawing nine US soldiers from UN peacekeeping
missions in Ethiopia and Kosovo. Both were countries in which US military
personnel were present but the host governments had not signed bilateral
immunity agreements with the United States. Pentagon spokesman Larry Di
Rita said the United States would evaluate US participation in future UN
operations on a case-by-case basis in light of “the risks of U.S. exposure” to
prosecution by the Court.38 In the two particular cases above, “it was deter-
mined . . . that the risk was not appropriate to our forces.”39 That seems a
surprising conclusion because neither country had joined the Court; and for
that reason, the Court would lack jurisdiction. In addition, no US personnel
in these missions were facing any risk of prosecution.
When the United States at first insisted on exempting its nationals in
2002, the move seemed unnecessary because there was not an expectation
that US nationals would commit crimes of the seriousness that the ICC in-
vestigated. It seemed highly unlikely that US nationals would commit such
crimes or that any individual deviations from international norms, such as
those committed by William Calley in Vietnam,40 would fail to be handled
iccnow.org/pressroom/membermediastatements/2004/FrmAsia%20Stmt%20on%20US%
20Withdrawal%20of%201487.pdf.
35. Colum Lynch, China May Veto Resolution on Criminal Court, WASH. POST, 29 May 2004,
at A22.
36. China Won’t Support U.S. on Exemption from Court, WASH. POST, 19 June 2004, at
A13.
37. The effort to renew “became so costly for the United States that it had to withdraw its
attempt. . . .” Press Release, Asian Forum for Human Rights and Development, Security
Council Defends Integrity of the International Criminal Court (24 June 2004), available
at www.iccnow.org/pressroom/membermediastatements/2004/FrmAsia%20Stmt%20on
%20US%20Withdrawal%20of%201487.pdf.
38. Colum Lynch, U.S. to Pull 9 From U.N. Peacekeeping Missions, WASH. POST, 3 July 2004,
at A22.
39. Id.
40. Lieutenant William L. Calley, Jr., was convicted of murdering unarmed Vietnamese
civilians captured by his platoon in 1968, in My Lai, South Vietnam, during the war in
Vietnam. Because his crimes were investigated and adjudicated in US military judicial
processes, the principle of complementarity would prevent the ICC from taking any
action. See United States v. William L. Calley, Jr., U.S. Court of Military Appeals, 21
December 1973, in THE LAWS OF WAR: A COMPREHENSIVE COLLECTION OF PRIMARY DOCUMENTS
ON INTERNATIONAL LAW GOVERNING ARMED CONFLICT 362–71 (W. Michael Riesman & Chris T.
Antoniou eds., 1994).
sufficiently well in US judicial processes that the complementarity principle

would prevent any case from moving into the hands of the ICC. But as Hu-
man Rights First has written, “in light of recent abuses by U.S. forces . . . ,
this insistence [on exemption] has taken on a more sinister meaning.”41
C. Pressing for Bilateral Immunity Agreements to exempt US Citizens42
The second prong in the US strategy has been the Bush administration’s
vigorous campaign to press governments around the world to sign bilateral
treaties with the United States that obligate them never to transfer to the ICC
any US citizen or any citizen of other countries who the US government,
including the Department of Defense and the Central Intelligence Agency,
has employed. The agreements call for complete immunity for a person’s
conduct, in the past as well as the present and future.43 To grant immunity
to all US employees and contractors, regardless of nationality, is especially
sweeping, extreme, and pernicious. The United States could potentially
shield anyone in the world from ICC investigation or prosecution under this
proviso by simply putting him or her on a secret US payroll. Some bilateral
immunity treaties do not even stipulate that the United States or the other
party to the agreement is obligated to investigate charges or, if evidence
warrants, to prosecute the accused in their own national courts.44 Of course,
given the limitations on the ICC by the complementarity principle, US
citizens would never go to the ICC if US judicial processes were handling
the cases appropriately—even without any bilateral immunity treaty ever
being signed.
Driven by the Bush administration’s opposition to the ICC, the campaign
to exempt all US citizens and non-citizen employees from ICC enforce-
ment grew far beyond a simple request for bilateral immunity treaties into
a widespread effort to coerce other states into undermining the Court and
international law enforcement. US officials flexed both diplomatic and finan-
cial muscles on weaker, often vulnerable, states to force them to accept US
demands that the conduct of all US citizens and employees remain outside
the reach of any ICC proceedings.
To implement this strategy, US diplomats fanned out across the world.
“Our ultimate goal,” according to then-Under Secretary of State John Bolton,
“is to conclude Article 98 [bilateral immunity] agreements with every country
41. HRF, In Victory for the Rule of Law, supra note 28.
42. Amnesty International described these as illegal “impunity agreements.” AI, US Threats
to the International Criminal Court, supra note 26.
43. HRW, Bilateral Immunity Agreements (20 June 2003), available at http://hrw.org/cam-
paigns/icc/docs/bilateralagreements.pdf.
44. AI, US Threats to the International Criminal Court, supra note 26.
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.”45
US officials have claimed that the agreements they seek are legal because
they conform to the provisions of Article 98 of the statute. However, lawyers
for the European Union (EU), many other governments, and human rights
organizations have conducted legal analyses of the intent and purposes of
Article 98 and concluded that the US-sponsored immunity treaties violate
this article and that states that enter into such agreements “are in breach of
their obligations under international law.”46 Article 98 was designed to en-
able states that had already-existing status-of-forces agreements with other
countries to avoid violating those agreements with countries whose military
forces they were hosting. It clearly could not have been intended to grant
widespread immunity to entire populations of some states.47 In addition,
Article 98 certainly does not provide immunity from prosecution; it simply
does not obligate states to surrender certain persons that they have already
agreed not to prosecute in their country, while the Court continues to retain
oversight. Article 27 of the statute states that no one will have immunity
from the Court and “expressly prohibits making distinctions on the basis of
official capacity.”48 The US-sponsored agreements move outside the limits
of Article 98 in applying not simply to particular groups of US citizens in
a particular location or on a specific mission, but in asking for blanket im-
munity for all US nationals.
European Union members have refused to sign immunity treaties with
the United States on both legal and political grounds, claiming that to do so
would be a breach of the Rome Statute and undermine the ICC’s prospects for
upholding international law.49 A study by the European Union Commission’s
legal service concluded that signatories of the ICC that also sign bilateral
agreements granting immunity to US nationals violate the Rome Statute.50
45. John R. Bolton, American Justice and the International Criminal Court, Remarks at the American
Enterprise Institute (3 Nov. 2003), available at www.state.gov/t/us/rm/25818.htm.
46. See AI, US Threats to the International Criminal Court, supra note 26; AI, INTERNATIONAL
CRIMINAL COURT: US EFFORTS TO OBTAIN IMPUNITY FOR GENOCIDE, CRIMES AGAINST HUMANITY AND
WAR CRIMES (2002) (AI Index: IOR 40/025/2002), available at http://web.amnesty.org/li-
brary/index/engior400252002; The Human Rights Watch study concluded that the US
use of immunity agreements “violates the Rome Statute. . . . States Parties . . . have a
legal obligation not to sign such agreements.” HRW, United States Efforts to Undermine
the International Criminal Court: Article 98(2) Agreements (9 July 2002), available at
www.amicc.org/docs/HRW_Art98.pdf.
47. Geoffrey Bindman, Illegal U.S. Campaign Against International Justice, INT’L HERALD TRIB.,
16 July 2003.
48. HRW, The ICC and the Security Council: Resolution 1422: Legal and Policy Analysis
(2004), available at www.hrw.org/campaigns/icc/docs/1422legal.htm; US Launches
Global Campaign, supra note 10. See also Rome Statute, supra note 11, art. 27.
49. German Federal Government and Chancellor, EU Seeks Common Position Towards the
U.S.A. in Relation to the International Criminal Court, BUNDESREGIERUNG, 7 Oct. 2002.
50. Lisbeth Kirk, EU Legal Experts Warn Against Bilateral U.S. Pacts, EU OBSERVER, 28 Aug.
2002, available at www.euoberserver.com.
Legal advisers to the EU Ministry of Foreign Affairs came to the same con-
clusion. Chris Patten, the EU Commissioner for External Relations, declared
that “the ICC is the most important advance in international law since the
establishment of the UN and we are not going to allow anyone to water down
our commitment to principle.”51 Despite constant US diplomatic pressure,
members of the EU have remained unwilling to consider offering blanket
immunity for US citizens. They point out that the United States has never
explained, for example, why US corporate executives, journalists, and non-
governmental organizational personnel require immunity.52 Presumably the
case for their immunity is even weaker than the case for military exemption.
Although the Danish government has disliked being at odds with Washington,
Per Stig Moller, the Danish Foreign Minister said, “The message from here is
that the fundamental values of the Court must not be undermined. We will
work toward a global legal order, not towards disorder.”53
In addition to violating the obligation of States Parties to the Rome
Statute, the US-sponsored immunity agreements probably also violate the
Genocide Convention because they could enable accused persons to evade
justice rather than ensure the prosecution of those accused of violating
international human rights law,54 an obligation on all States Parties to the
Genocide Convention.55
Despite widespread rejection of the US legal claims, White House Press
Secretary Ari Fleischer promised, “There should be no misunderstanding that
the issue of protecting U.S. persons from the International Criminal Court will
be a significant and pressing matter in our relations with every state.”56
D. Punishing States Unwilling to Grant US Immunity
To press the issue with every state, the Bush administration has conducted
a worldwide campaign to punish many states that respect the Court’s pro-
51. Andrew Beatty, Court Row Continues to Strain EU-US Relations, EU OBSERVER, 9 July
2002, available at www.euobserver.com.
52. Judy Dempsey, US and EU Seek to Clear Air Over International Court, FINANCIAL TIMES,
18 July 2003.
53. Luise Hemmer Pihl, EU Turns Down U.S. Demand for ICC Opt-Outs, EU OBSERVER, 1
Sept. 2002, available at www.euobserver.com.
54. US Launches Global Campaign, supra note 10; Bindman, supra note 47.
55. The duty to prevent genocide anywhere in the world is clearly stated in the Genocide
Convention. Convention on the Prevention and Punishment of the Crime of Genocide,
adopted 9 Dec. 1948, 78 U.N.T.S. 277, art. 1 (entered into force 12 Jan. 1951) (entered
into force for U.S. 23 Feb. 1989).
56. US Decision not to Harm Relations, BALTIC TIMES, 10 July 2003. Washington has withheld
military assistance from more than 20 ICC states, totaling more than $20 million the
2003 fiscal year, including needy countries such as Benin, Croatia, Ecuador, and Mali.
cedures.57 The American Servicemembers’ Protection Act (ASPA) provided

the basis for the US campaign against international law enforcement.58 This
legislation, designed by former Senator Jesse Helms, prohibits military as-
sistance to countries that have ratified the Rome Statute unless they have
also signed an agreement to exempt US citizens and employees from Court
procedures. Some countries are explicitly exempted from this penalty by the
ASPA. The President may also waive the penalty for national security reasons.
Those explicitly exempted include all NATO countries, plus Argentina, Aus-
tralia, Bahrain, Egypt, Israel, Japan, Jordan, New Zealand, Philippines, The
Republic of Korea, Taiwan, and Thailand.59 The United States threatened to
withdraw military assistance from thirty-five states that had become parties
to the Court statute but had refused to sign an agreement with the United
States.60 Among those initially threatened with financial penalties were
Estonia, Latvia, Lithuania, Slovakia, and Slovenia, which were in line to
join the European Union, and Bulgaria and Croatia, which seek to join the
European Union in 2007. Fifty-four countries have publicly announced that
they will not sign an immunity agreement with the United States;61 fifty-seven
of 100 parties to the ICC have not signed, even though eighteen or more
of them were actually sanctioned with a reduction in military assistance by
Washington for their refusals.62 Approximately 100 countries have signed
bilateral agreements with Washington, including forty-two countries that are
members of the Court.63
57. HRW, U.S. Should Stop Sanctioning Allies Over ICC: High Political Price Tag for Anti-Court
Policy (10 Dec. 2003), available at www.hrw.org/english/docs/2003/12/10/usint6574.
htm.
58. David Scheffer, former US Ambassador-at-Large for War Crimes Issues and former head
of the US delegation to the International Criminal Court in the Clinton administration,
wrote that the American Servicemembers’ Protection Act is
a deceptively-labeled bill designed to scuttle the International Criminal Court Treaty with punitive
counterpunches against other governments and measures to insulate U.S. military personnel from the
court’s reach. Last year, the State, Defense and Justice Departments opposed the legislation because
of its unconstitutional infringement on executive authority and its isolationist provisions.
David Scheffer, Defense News, Don’t Forfeit the Global Criminal Court (Feb. 2001),
available at http://www.globalpolicy.org/intljustice/icc/2001/0529schef.htm. See American
Servicemembers’ Protection Act, supra note 12.
59. Id. §§ 7426, 7432.
60. AI, US Threats to the International Criminal Court, supra note 26.
61. Coalition for the International Criminal Court (CICC), Countries Opposed to Signing a US
Bilateral Immunity Agreement (BIA): US Aid Lost in FY04 & US Aid Threatened in FY05
(1 Oct. 2005), available at http://www.iccnow.org/documents/USandICC/CountriesOp-
posedBIA_AidLoss_01Oct05.pdf [hereinafter CICC, Countries Opposed to Signing a US
BIA].
62. CICC, Status of US Bilateral Immunity Agreements (BIAs) (8 Jan. 2006), available at
http://www.iccnow.org/documents/USandICC/2006/CICCFS_BIAstatus_08Jan06.pdf.
63. CICC, Status of US Bilateral Immunity Agreements (BIAs) (16 Dec. 2005), available at
http://www.iccnow.org/pressroom/factsheets/BIAsByRegion_current.pdf. See also CICC,
Status of US Bilateral Immunity Agreements (2004), available at http://www.iccnow.
org/documents/otherissues/impunityart98/BIAsByRegion_current.pdf; Press Release,
US pressures did not stop at cutting military aid. Pierre-Richard Prosper

warned countries seeking entry to NATO that they should sign agreements
allowing US immunity from the ICC.64 If they did not sign, US officials would
question their eligibility for NATO membership. In the Balkans, US Ambas-
sador Lawrence Rossin informed Croatia that it faced serious difficulties in
its entry into NATO if it failed to sign an agreement, while US diplomats
told Bosnia that it would be likely to receive more economic aid in return
for its decision to sign an immunity agreement for US citizens.65 US Under
Secretary of Defense Douglas Feith told the Bulgarian government that its
refusal to sign an agreement exempting US nationals would influence US
officials when they were deciding where to establish future US military
bases.66 The Bush administration also enlisted the services of members of
Congress in its diplomatic effort to ensure that US citizens would never be
investigated or prosecuted by the ICC. A Congressional delegation led by
Henry Hyde, a Republican leader in the US House of Representatives and
chair of the House International Relations Committee, for example, delivered
a message to Slovenia that linked its position on the ICC with the prospects
of gaining membership in NATO.67
Latvian Foreign Ministry State Secretary Maris Riekstins complained
that, on the one hand, the United States approached NATO candidate states
suggesting that they should sign agreements. And on the other hand, “there
are the EU requirements [not to sign], and we have found ourselves . . .
between a rock and a hard place.”68
In pressing for US immunity, US officials seemed to contradict US support
for prosecuting those accused of war crimes in the former Yugoslavia. The
United States pressed Serbia to sign an agreement committing itself never to
turn US citizens over to the permanent ICC while also expecting Serbia to
turn over Serbian citizens to the ad hoc International Criminal Tribunal for
the former Yugoslavia. As Serbian Prime Minister Zoran Zivkovic said, “We
would not be able to explain to the citizens that we have double standards
CGS, House Votes to Cut Funds to Key Allies in International Court: Over 50 Countries
Sanctioned (16 July 2004), available at http://www.globalsolutions.org/press_room/
press_releases/press_releases04/iccsanctions_july04.html. See also Joe Lauria, Kerry
Opposes Role in Tribunal, BOSTON GLOBE, 5 Oct. 2004, at A10. For an updated record of
US penalties, see CICC, Countries Opposed to Signing a US BIA, supra note 61.
64. Julian Borger & Ian Black, America Attacked for ICC Tactics, GUARDIAN, 27 Aug. 2002,
available at www.guardian.co.uk/usa/story/0,12271,00.html.
65. HRW, Letter to Secretary Powell on US Bully Tactics Against International Criminal Court
(30 June 2003), available at http://hrw.org/press/2003/07/usa070103.htm.
66. U.S. Defence Official Links Bases Relocation to Bulgaria With Position on ICC, BBC
MONITORING INT’L REPORTS & BTA WEBSITE SOFIA, 10 Dec. 2003.
67. Nicholas Kralev, NATO Candidates Aim to Please U.S., Europe, WASH. TIMES, 13 Sept.
2002, available at www.nicholaskralev.com/WT-nato-series.html.
68. Latvia Not to Make Hague Court Immunity Deal with US, BALTIC NEWS SERVICE, 26 June
2003.
in sending our citizens to the Hague, and then signing an agreement that
should protect the citizens of . . . the United States.”69
The United States placed Croatia in a similarly awkward position by ask-
ing Croatians to exempt the United States from the same kind of enforcement
that the United States insisted that Croatians must accept. Nonetheless, in
a speech in New York in September 2002, Croatian Justice Minister Ingrid
Anticevic Marinovic said that the establishment of the ICC was the most
important legal achievement of the century: “The international community
finally has a permanent, universal and non-discriminative court which would
try the perpetrators of war crimes, crimes against humanity and genocide,
irrespective of their status or nationality.”70
The Bush administration moved the new state of Macedonia to sign
an agreement with the United States for an extraneous reason, by offering
Macedonia the first international treaty since its independence in which
the name “Republic of Macedonia” was used explicitly.71 EU envoy Alexis
Brouhns criticized the agreement, saying that Macedonia “aspires to become
an EU member country and it should therefore refrain from signing the offered
bilateral agreement with the United States exempting U.S. citizens.”72 Further,
he said that the EU’s position was clear: “Not a single member country or
aspirant for EU membership should sign such an agreement.”73
Waivers of punitive action were allowed in cases in which US strategic
goals override the US intention to undermine the legal integrity and the
Court.74 To sway countries that remained on the fence or that needed more
time to reach an agreement with the United States, the Bush administra-
tion extended waivers of the punitive measures temporarily. For example,
President Bush granted Romania a temporary extension in 2003;75 and he
69. Serbian Prime Minister “To Beg” U.S.A. to Help Settle Kosovo Situation, National
Technical Information Service, U.S. Dept. of Commerce, 19 July 2003; Honor Mahony,
Balkans Caught Between Two Pressure Fronts, EU OBSERVER, 24 June 2003, available at
www.euobservor.com. In a public opinion poll in June 2003, just over 5 percent of
the public supported the signing of an agreement. See BBC MONITORING INT’L REPORTS, 10
June 2003; Serbia: Poll Shows Majority Siding with Old Europe, Denying U.S. Immunity
Request, GLAS JAVNOSTI (Belgrade), 9 June 2003, at 7. Many more people were opposed
to US exceptionalism than to an international criminal court, despite their dislike for
the latter.
70. Croatian Justice Minister Says ICC Legal Success of the Century, BBC MONITORING INT’L
REPORTS & HINA NEWS AGENCY ZAGREB, 10 Sept. 2002.
71. Macedonia Politicians Laud Ratification of Agreement with USA on ICC, BBC MONITORING
INT’L REPORTS, 16 Oct. 2003.
72. EU Envoy Warns Macedonia Not to Sign Immunity Agreement with U.S., BBC MONITORING
INT’L REPORTS & DNEVNIK (Macedonia), 16 May 2003.
73. Id.
74. Washington Working Group on the ICC, Status of the ICC and U.S. Policy: Update for
Fall 2003 (11 Dec. 2003), available at www.iccnow.org/pressroom/factsheets/FS-WICC-
USPolicyFall03.pdf [hereinafter WICC, Fall 2003 Update].
75. Romanian Parliament Awaits EU-US Compromise on ICC, GENERAL NEWS SERVICE, 5 Nov.
2003.
subsequently announced that some military aid would be allowed to go to

Bulgaria, Estonia, Latvia, Lithuania, Slovakia, and Slovenia, even though all
had refused to conclude an immunity agreement with the United States.76
Human rights organizations criticized the Bush administration for “pe-
nalizing emerging democracies trying hard to support the rule of law” after
later removing penalties against prospective NATO members.77 “Why,” asked
Richard Dicker of Human Rights Watch, “punish states like Mali, Benin, and
Ecuador that urgently need support? The United States is protecting itself from
a phantom threat, with a cure that’s worse than the imagined illness.”78
Soon after the reelection of President Bush in 2004 and expanded con-
trol by Republicans of both houses of Congress, Republican officeholders
intensified their efforts to undermine the ICC by amending the 2005 foreign
assistance budget with a provision nicknamed for Republican Congressman
George Nethercutt of Washington state—the Nethercutt amendment.79 Going
one step further than the American Servicemembers’ Protection Act’s penal-
ties regarding military assistance, the Nethercutt amendment threatened to
cut off economic development aid to countries that refused to sign bilateral
agreements with the United States. The amendment greatly increased the
size of monetary penalties and the number of countries affected, which
rose potentially to more than fifty.80 Congress thereby helped expand the
Bush administration’s policy of penalizing countries that abide by the Rome
Statute’s affirmation of the supremacy of justice and international judicial
processes over the commission of gross violations of human rights.81
This legislation threatens to cut from targeted countries hundreds of
millions of dollars in aid that is allocated within the US Economic Support
Fund of approximately $2.5 billion. The potential punishments include
76. WICC, Fall 2003 Update, supra note 74.

77. HRW, U.S. Should Stop Sanctioning, supra note 57.
78. Id.
79. Conference Report on H.R. 4818, Consolidated Appropriations Act, 2005 (19 Nov. 2004),
div. D, § 574, available at http://iccnow.org/documents/otherissues/nethercutt/Nethercut-
tAmendment_19Nov04.pdf.
80. Press Release, CGS, U.S. Sanctions Key Allies over ICC Participation (8 Dec. 2004),
available at www.iccnow.org/pressroom/membermediastatements/2004/CGS_Nether-
cutt_08Dec04.pdf [hereinafter CGS, U.S. Sanctions Key Allies]. Human Rights Watch
said that with this legislation “the United States intensified its assault on international
justice. . . .” Press Release, HRW, U.S.: Congress Tries to Undermine War Crimes Court
(8 Dec. 2004), available at www.iccnow.org/pressroom/membermediastatements/2004/
HRW_Nethercutt_08Dec04.pdf.
81. Press Release, No Peace Without Justice, International Criminal Court: As Washington
Retaliates, the European Union Should Reaffirm Its Support (10 Dec. 2004), available at
www.iccnow.org/documents/otherissues/impunityart98/2004/NPWJNethercutt_10DEC04.
pdf. The amendment allows the president to waive the restrictions for members of NATO
and major non-NATO allies; but because these waivers are not guaranteed, countries
could still be pressed by the United States to violate their obligations under the Court
treaty.
money for economic stabilization, antiterrorism activities, peace-building,

democratization, and counter-drug initiatives.82 A detailed examination of
the consequences of this legislation, which penalizes US friends and allies,
demonstrates both the depth of hostility toward international law enforce-
ment and the self-defeating implications of this legislation:
— Jordan could lose about $250 million in aid for governance reforms,
secular educational programs, and promotion of economic growth,
even though the Jordanian government has hosted numerous meet-
ings to help reconstruct and democratize Iraq and has trained much-
needed Iraqi police.83
— Peru could lose $8 million aimed at funding democratic reforms
and programs to curtail growing of coca, drug-trafficking, and ter-
rorism.84
— The Caribbean states of Barbados, St. Vincent, the Grenadines, and
Trinidad and Tobago could lose funds to improve procedures for
immigration and border security. Trinidad and Tobago was a leader
in creating the ICC, now has a judge on the Court, and has said that
it cannot legally do what the United States asks.85
— Cyprus could lose $13.5 million to promote reconciliation among
Turkish and Greek communities.86 The former President of the Cypriot
Supreme Court was selected as a judge for the ICC.
— Ecuador, Paraguay, Peru, Bolivia, and Venezuela are threatened with
the loss of $30 million earmarked to build democratic institutions,
to promote the rule of law, to fight corruption, to encourage respect
for human rights, and to improve economic growth.87
— Lebanon could lose $32 million, including money to promote eco-
nomic reforms, to strengthen good governance, and to support the
82. CGS, U.S. Sanctions Key Allies, supra note 80; Press Release, HRW, U.S. Tries to Get
Off the Hook on War Crimes (20 May 2004), available at www.iccnow.org/documents/
declarationsresolutions/unbodies/HRW1487_20May2004.pdf; HRW, U.S.: Congress Tries
to Undermine War Crimes Court, supra note 80.
83. Press Release, HRF, U.S. Threatens to Cut Aid to Countries That Support the ICC (7
Dec. 2004), available at www.iccnow.org/pressroom/membermediastatements/2004/
HRF_Nethercutt_07Dec04.pdf [hereinafter HRF, U.S. Threatens to Cut Aid]; HRW, U.S.:
Congress Tries to Undermine War Crimes Court, supra note 80. Jordan’s ambassador to
the United Nations is also the President of the ICC’s Assembly of States Parties. Jordan
believes that it cannot sign a bilateral immunity agreement with the United States without
putting it in breach of the Rome Statute. See CGS, U.S. Sanctions Key Allies, supra note
80.
84. HRW, U.S.: Congress Tries to Undermine War Crimes Court, supra note 80.
85. CGS, U.S. Sanctions Key Allies, supra note 80.
86. Id.
87. Id.; HRF, U.S. Threatens to Cut Aid, supra note 83.
four highly respected US educational institutions in Lebanon that

indirectly help to reduce future political extremism and violence.88
— The congressional action threatens approximately $150 million al-
located for the US Middle East Partnership Initiative, designed to
promote economic and political reform in the Middle East.89
— The encouragement of mutually beneficial cooperation between
experts from Israel and its Arab neighbors is threatened by the loss
of $7 million for Middle East regional cooperation.90
— South Africa, which had already forfeited $7.6 million in security
assistance because of support for the ICC, would lose millions more
that were intended for antiterrorism efforts and promotion of human
rights.91 South Africa currently has a judge on the Court.
— The Africa Regional Fund is threatened with the loss of $11 million
designed to strengthen African countries’ capabilities to impede the
flow of terrorist finances, to improve border and airport security, and
to upgrade judicial systems in Benin, Republic of Congo, Lesotho,
Mali, Namibia, Niger, South Africa, and Tanzania.92
— The “Safe Skies” program is threatened with the loss of $5 million
aimed at improving aviation safety and security in Namibia, Mali,
Tanzania, and Benin, with the goal of improving air-passenger safety
and reducing terrorism, drug-trafficking, and weapons smuggling.93
— Ireland is threatened with the loss of several million dollars for the
Walsh Visa Program, which brings youth from disadvantaged areas to
the United States to develop job skills, and the loss of another $8.5
million for the International Fund for Ireland, which fosters peace
and cross-community cooperation.94 Ireland has a judge on the ICC
and seeks to comply with the EU conclusion that “no European
Union country could legally sign a bilateral immunity agreement,”
as proposed by the United States, because it “would put them in
breach of their legal commitments” under the Court treaty.95
88. CGS, U.S. Sanctions Key Allies, supra note 80; Press Release, CGS, Economic Support
Funds in Jeopardy in FY2005 Budget (2 Dec. 2004), available at www.iccnow.org/docu-
ments/otherissues/impunityart98/2004/CGS_Nethercuttaidcuts_02Dec04.pdf [hereinafter
CGS, Economic Support Funds in Jeopardy].
90. CGS, Economic Support Funds in Jeopardy, supra note 88.
91. Id.; HRW, U.S.: Congress Tries to Undermine War Crimes Court, supra note 80.
92. CGS, Economic Support Funds in Jeopardy, supra note 88.
93. Id.
94. HRF, U.S. Threatens to Cut Aid, supra note 83.
The Nethercutt amendment seems especially short-sighted when one

recognizes that in the countries that already have status-of-forces agree-
ments with the United States, which govern US military personnel in those
countries, the newly sought immunity agreements would hardly affect the
status of military personnel. They would, presumably, extend immunity to
US civilian officials, other US citizens, and non-US employees; but if they
obeyed international law they should not need immunity.
E. Delaying Security Council Referral of Crimes to the Court
US reluctance in early 2005 to use the ICC to prosecute crimes committed

in the Darfur region of Sudan further clarifies US priorities. To their credit,
President Bush, the Department of State, and both houses of Congress had
all confirmed by 2004 that genocide was occurring in Sudan. The United
States urged the international community to stop the continuing campaign of
“ethnic cleansing” by the government of Sudan and the Janjaweed militia—a
campaign costing the lives of as many as 300,000 persons, forcing two mil-
lion to flee their communities, and burning thousands of homes and scores
of villages to the ground.96 After prodding by Washington and receiving the
Report of the International Commission of Inquiry on Darfur,97 the Security
Council passed two urgent enforcement measures: The first called for 10,000
more peacekeepers on the ground in Sudan, and the second authorized
economic sanctions against Sudanese individuals whom the Commission had
identified as complicit in the campaign.98 But the United States frustrated
the desire of a majority on the Security Council to take a third logical step
to refer the prosecution of the Sudanese persons accused of crimes to the
ICC in order to stop crimes and to deter future criminal conduct.
Most members of the Council articulated strong reasons for authorizing
the Court to proceed without delay: First, to allow continuing impunity for
those who had engaged in systematic rape, murder, and pillage would send
the wrong signal, suggesting that the international community would tolerate
continuing crimes despite its rhetoric against them. Second, to prosecute the
persons responsible for the most serious crimes in Darfur “would contribute
96. Warren Hoge, France Asking U.N. To Refer Darfur to International Court, N. Y. TIMES, 24
Mar. 2005, at A3.
97. Report of the International Commission of Inquiry on Darfur to the Secretary-General,
Submitted Pursuant to Security Council Resolution 1564 of 18 September 2004, U.N.
SCOR, U.N. Doc. S/2005/06 (31 Jan. 2005) [hereinafter Darfur Report].
98. See S.C. Res. 1590, U.N. SCOR, 5151st mtg., U.N. Doc. S/RES/1590 (25 Mar. 2005);
S.C. Res. 1591, U.N. SCOR, 5153d mtg., U.N. Doc. S/RES/1591 (29 Mar. 2005). See
also Warren Hoge, 10,000 Peacekeepers to be Sent to Sudan, UN Council Decides,
N.Y. TIMES, 25 Mar. 2005, at 8; Warren Hoge, UN Council Approves Penalties in Darfur,
N.Y. TIMES, 30 Mar. 2005, at 6.
to the restoration of peace in the region.”99 Third, the ICC already existed,
was nearby at work in three other African countries, and could more quickly
exert legal pressure against continuing crimes than any other judicial arrange-
ment. Moreover, the International Commission of Inquiry said that “action
must be taken urgently” because “attacks on villages, killing of civilians,
rape, pillaging and forced displacement have continued” even during the
Commission’s investigations.100 Fourth, the Commission of Inquiry “strongly”
recommended that the Security Council “immediately refer the situation of
Darfur to the International Criminal Court.”101 Finally, Security Council referral
of Darfur criminal prosecutions to the ICC would not contradict or negate
the main, long-standing objection voiced by the United States about the
Court—namely, that it could initiate prosecutions without Security Council
(and US) approval. In this particular case, the Security Council would be the
authorizing agent for ICC investigations, because Sudan was not a party to
the Court, and the Court had no jurisdiction there, absent an explicit Council
request. Referral would not lead to an ICC out of control, so to speak, be-
cause the Council would authorize only a single Court proceeding. It would
not mandate other ICC prosecutions, unless they too were authorized by
the Council, which the United States could block with its veto if it chose.
A referral policy was thus consistent with the Bush administration’s view of
the ideal arrangement for international criminal proceedings because they
would be triggered by the Security Council.
By the time the Commission reported in January 2005, enough mem-
bers of the Council favored referral to pass a resolution promptly. With the
exception of China, the United States, and Algeria (who preferred an African
Union proceeding), they saw the ICC as the logical place to investigate and
prosecute Darfur crimes. With more killings being committed each day, it
was never truer that justice delayed was justice denied.
But the United States forced delays, even though Council referral to an
ad hoc international court was the Bush administration’s preferred formula
for enforcement. Despite the Bush administration’s support for trying the ac-
cused, it refused to vote for referral of Darfur atrocities to the ICC because, as
Pierre-Richard Prosper explained, “We don’t want to be party to legitimizing
the ICC.”102 So the United States asked other countries to support its proposal
to create an ad hoc tribunal rather than to employ the disliked ICC. Yet, even
if enough diplomatic arms could have been twisted to gain Security Council
support for an ad hoc tribunal, it would still have been a poor idea. A new
99. Darfur Report, supra note 97, at 5.

100. Id. at 3.
101. Id. at 5.
102. Jonathan F. Fanton, U.S. Obstructs Global Justice, L.A. TIMES, 29 Mar. 2005, at B11;
Michael Kozak, On-the-Record Briefing on the Release of “Supporting Human Rights
and Democracy: The U.S. Record 2004–2005” (28 Mar. 2005), available at www.state.
gov/g/drl/rls/spbr/43931.htm.
tribunal would cost more than the existing ICC. It would take too long to
establish. An ad hoc tribunal also would be time-limited, which meant that
the accused, if shielded by an uncooperative Sudanese government, might
escape justice altogether by avoiding trial until a temporary tribunal would
shut down. In contrast, because the ICC was permanent, it would be able
to prosecute at any time because there is no statute of limitations for these
horrific crimes.
When other countries refused to create another temporary tribunal,
Washington faced the grim prospect of vetoing a resolution to place those
accused of atrocities on trial in the Hague. This would have damaged the
US reputation further and harmed President Bush’s second-term efforts to
mend fences with Europe, so the United States asked for provisions in the
proposed referral resolution to exempt US citizens and the citizens of other
non-parties, except Sudan, from ICC enforcement in Sudan. Because of the
US threat to veto a referral resolution, the other members of the Council had
no alternative, in the end, but to accept the US-dictated language. In return
for getting the exemptions it wanted, the Bush administration, after numerous
delays, agreed not to veto Security Council Resolution 1593.103 Most states
expressed grave reservations about adding US-requested provisions to the
resolution. The representative from Denmark, for example, made a clarifying
statement that the resolution “does not affect the universal jurisdiction of
member States in areas such as war crimes, torture and terrorism.”104 More-
over, in mentioning bilateral immunity agreements, “that reference is purely
factual; it is merely referring to the existence of such agreements. Thus the
reference in no way impinges on the integrity of the Rome Statute.”105
Statements such as the preceding one were designed to limit the cor-
rosive impact of US-proposed language aimed at eroding international law
enforcement by national courts as well as by the ICC. Going beyond the
exemptions sought in Resolution 1422106 for peacekeepers drawn from non-
parties to the Rome Statute, Resolution 1593 on Darfur not only prevents
ICC law enforcement on citizens of non-parties, but it also attempts to give
non-parties exclusive jurisdiction over their nationals on issues arising out of
these UN peacekeeping operations. If an accused person from a non-party
traveled to another state, including one that might be a party to the Rome
Statute, the accused person would be returned to the non-party of which
he or she was a citizen rather than face prosecution in the national courts
of states that might detain an indictee. The Security Council concessions to
the United States on Darfur seem to interfere with the ability of both par-
103. S.C. Res. 1593, U.N. SCOR, 5158th mtg., ¶2, U.N. Doc. S/RES/1593 (31 Mar. 2005).
104. Meeting Record, U.N. SCOR, 5158th mtg., at 6, U.N. Doc. S/PV.5158 (2005), available
at www.amicc.org/docs/SC%20Meeting%20Record%201593.pdf.
105. Id.
106. See S.C. Res. 1422, supra note 22.
ties and non-parties to the Rome Statute to prosecute crimes in accord with
traditional ideas about universal jurisdiction. The Council resolution seems
aimed at limiting the ability of national courts to prosecute the nationals of
other countries, even if the ICC were not involved at all.
The US abstention allowed the Council to refer the Darfur cases, includ-
ing the International Commission’s sealed list of fifty-one people accused
of crimes and voluminous information useful for prosecution, to the Inter-
national Criminal Court. Yet, the Bush administration’s priority had become
clear: It subordinated the protection of the innocent to the exemption of
the powerful.
Despite the delays and the concessions to US insistence on exempting
its nationals, the Security Council action represented an historic step forward
in limiting impunity. For the first time in world history, a permanent Court
has taken up cases referred to it by the Security Council, to investigate and
try officials accused of engaging in genocide, war crimes, and crimes against
humanity, even though that government had not explicitly ratified the Rome
Statute. At long last, a sustained, global legal process is at work to establish
individual accountability for mass murder and other atrocities.
II. EVALUATING THE IMPACT OF US POLICY
In evaluating the four-pronged US strategy toward the ICC, the available evi-
dence shows that US hostility toward the Court and toward international judi-
cial enforcement of humanitarian law on US citizens has shaped US policies.
Obstructing the work of the UN Security Council with delays, ultimatums,
and vetoes, both in UN peacekeeping operations and in Council referrals
of atrocities to the ICC, in order to exempt US citizens and employees from
international enforcement, reveals an intention to use the Security Council,
in which Washington has extraordinary power as a Permanent Member, for
purposes never intended in the UN Charter. The Bush administration has used
Chapter VII powers, intended for the purpose of keeping international peace
and security, to try to reshape the jurisdiction and constitution of the Court,
which the United States chose not to join. In its overall policy, the United
States has tried to control the conduct of some states joining the Court by
punishing them for their law-abiding behavior vis-à-vis the Court.
A. Undermining the Enforcement of Humanitarian and Human Rights

Law
Although there is no simple relationship between US policies and the inter-

national ability to enforce international humanitarian and human rights law
prohibiting egregious crimes, some general consequences seem clear:
1. US policy makes it more difficult, in general, to enforce the rules against

genocide, war crimes, and crimes against humanity.
By demanding exceptional treatment for themselves and others in the form

of immunity from the Court, US officials are seen by much of the interna-
tional community as practicing a law-evading form of exceptionalism and
unilateralism. The United States operates with a double standard in expect-
ing others to respect fundamental international laws, which Washington
has enforced on others through ad hoc tribunals created by the Security
Council, through a Council referral to the ICC, and through the use of its
own superior military power, while insisting on exemptions from interna-
tional accountability for US citizens.107 Double standards undermine law
enforcement and peoples’ willing compliance with the law, especially in a
decentralized international legal system. A legal fabric torn by exemptions
for a major actor is a weakened fabric, less able to deter future infractions
and more likely to instill hatred and outrage against the inequities imposed
by the United States. US denial of reciprocal rights for others also interferes
with building a strong worldwide coalition to increase compliance with
international norms against terrorism108 and to stop terrorist acts that are
crimes against humanity.
US refusal to cooperate with the Court and US pressures on other states
to refuse to cooperate with the Court make it harder, in general, for the
Court to achieve universal jurisdiction, to investigate and obtain evidence
of criminal conduct, and to apprehend the indicted for trials. US refusal
to support the Court also makes it more difficult to enforce, uphold, and
maintain Court decisions once rendered.
2. US hostility toward the Court makes it more difficult for the UN system to
enforce international law.
When the United States holds UN peacekeeping missions hostage to obtain-

ing immunity for its nationals, it obstructs or delays Security Council deci-
sions, which are essential for UN maintenance of peace and security and
curtailment of gross violations of human rights. US policies undermine UN
efforts to ensure the effectiveness of UN peacekeeping operations and the
lawful, exemplary conduct of all peacekeepers. US positions strain relations
with allies and with all who support or benefit from UN peacekeeping and
enforcement. These consequences also undermine US and global security
in some situations.
107. US insistence on “exclusive jurisdiction” of non-parties over their own nationals in Reso-
lution 1593 on Darfur also limits the authority of national courts, not only the authority
of the ICC, to exercise universal jurisdiction over a person indicted for international
crimes if he or she is a citizen of a non-party to the Rome Statute. This US initiative
could further undermine law enforcement.
108. See ELSEA, supra note 2, at 22.
3. By weakening the Court, the United States undermines the positive impact
of international law enforcement on the deterrence of future crimes.
US resistance to unconditional Security Council referral of cases of atrocious

conduct to the ICC, for example, has reduced the international community’s
ability to deter crimes. Although the Bush administration did not veto the
referral of Darfur atrocities, by continuing to insist on immunity for US and
other non-parties’ nationals as a precondition for ICC enforcement, the
United States impedes the growth of a culture of compliance with interna-
tional law enforcement.109
4. In insisting on immunity for US nationals and non-US employees, the United
States inadvertently helps those governments that cynically try to shield persons
indicted for heinous crimes against international prosecution.
US officials shield themselves and their nationals behind a wall of national

sovereignty, a wall against international responsibility that ruthless dictators
also welcome. As a result of such policies, the United States inadvertently
aids those who commit crimes.
5. Bush administration policies harm the US reputation for upholding human
rights and limit US capabilities for prosecuting, in an impartial way, those ac-
cused of heinous crimes.
Loss of reputation weakens US credibility in upholding human rights law.

Present policies make it difficult for the United States to add its good weight
effectively on the side of expanding the international rule of humanitarian
and human rights law and concomitant promotion of justice.
The United States has surrendered high moral ground and continued to
suffer loss of reputation in new developments following the US elections in
2004. Bush policy preferences were underscored by the elevation of Alberto
Gonzales to be US Attorney General, despite his effort to diminish full respect
for the Geneva conventions prohibiting war crimes, and in the nomination
of John Bolton to be US Ambassador to the United Nations, despite his deni-
gration of the United Nations and contempt for international enforcement
of humanitarian law. First and foremost, the US goal has been to shield US
officials, other US nationals, and non-US employees of the United States
from any international investigations or oversight about whether they will
obey the laws prohibiting war crimes, genocide, and crimes against human-
ity. US diplomatic efforts to curtail terrorism, to promote democracy, and to
conduct peacebuilding will be pursued, of course; but at times these have
109. On nurturing a culture of compliance, see Robert C. Johansen, Enforcing Norms and
Normalizing Enforcement for Humane Governance, in PRINCIPLED WORLD POLITICS: THE
CHALLENGE OF NORMATIVE INTERNATIONAL RELATIONS 209–29 (Paul Wapner & Edwin J. Ruiz eds.,
2000).
been subordinated to opposing the reach of the Court. Even bringing the
law efficiently to bear on murderers in Darfur was subordinated to exempt-
ing officials in Washington from international enforcement of the same law
that they expected Sudanese officials to respect. For example, US officials
have sought to evade the international transparency in their own conduct
that is mandated by law and by standard Red Cross procedures regarding
prisoners of war.110
Further evidence shows that US officials also were not comfortable
with constraints imposed on them by the Geneva Conventions on treat-
ment of prisoners, even though these had been well-established until the
Bush administration’s neoconservative ideology took hold in Washington.111
Although a presidential declaration denying the applicability of the Geneva
Conventions cannot in itself eliminate legal obligations that US officials carry
regarding their detainees, President Bush’s legal counsel, Alberto Gonzales,
advanced the following arguments to condone what many objective observers
consider to be denials of prisoners’ rights. Gonzales recommended trying
to evade the constraints of the Geneva Conventions, which he described
as “obsolete” and “quaint” when fighting the war on terrorism, in a confi-
dential memo to the president that became public during hearings on his
confirmation to become Attorney-General.112
Salient for clarifying the Bush administration’s value priorities, yet not
widely discussed, was Gonzales’ recommendation that the president should
declare that the Geneva Conventions did not apply to the war against ter-
rorism because a blanket presidential declaration “substantially reduces
the threat of domestic criminal prosecution under the War Crimes Act” of
US officials who might be charged with violating the Geneva Conventions,
perhaps for tolerating the abuse of prisoners.113 To claim at the outset of
incarcerating those who had fought against the United States that they were
not protected by the Geneva conventions would provide US officials with a
better legal defense if their own conduct came under scrutiny. Why might
they need legal defense? Because Geneva Convention III on the Treatment of
Prisoners of War contains “undefined” language, explained Gonzales, which
110. For example, the United States refused to allow normal Red Cross access to “ghost
prisoners” and some other detainees, and employed coercive interrogation. See Jerome
Bernard, CIA’s “Ghost Prisoners” Spark Rights, Legal Concerns, AGENCE FRANCE PRESSE, 28
Jan. 2005; Torture by Proxy, N.Y. TIMES, 8 Mar. 2005, at A22; Neil A. Lewis, Red Cross
Finds Detainee Abuse in Guantanamo, N.Y. TIMES, 30 Nov. 2004, at A1.
111. The Gonzales memo noted that during the Gulf War the previous Bush administration
had explicitly honored the Geneva conventions. Memorandum from Alberto R. Gonzales
to the President, Decision Re Application of the Geneva Convention on Prisoners of War
to the Conflict with Al Qaeda and the Taliban (25 Jan. 2002), available at www.slate.
com/features/whatistorture/pdfs/020125.pdf [hereinafter Gonzales Memorandum].
112. Id.
113. Id., citing War Crimes Act of 1996, 18 U.S.C. § 2441 (2006).
prohibits “outrages upon personal dignity” and “inhuman treatment.”114 If

the Geneva Conventions did not apply to the prisoners, Gonzales argued,
the Conventions’ constraints would not apply to US officials. Legal defense
of US officials might also be needed because “it is difficult to predict the
motives of prosecutors and independent counsels who may in the future
decide to pursue unwarranted charges based on Section 2441.”115 As a re-
sult, Gonzales advised the president, “Your determination [that the Geneva
conventions do not apply] would create a reasonable basis in law that
Section 2441 does not apply, which would provide a solid defense to any
future prosecution.”116
The priorities revealed in the conduct, if not the rhetoric, of the majority
of members of Congress also seem clear: They have threatened to cripple
law enforcement and foreign aid programs designed to meet humanitarian
needs and implement democratic values in struggling societies, rather than
to allow the international community, through the ICC, to develop effective
enforcement of international law, if international enforcement would apply
to US officials and citizens as it applies to other countries’ citizens when it
comes to stopping genocide, crimes against humanity, and war crimes. After
studying the programs that would be threatened by the Nethercutt amend-
ment, Brian Thompson, Program Manager for International Law and Justice
at Citizens for Global Solutions, concluded that this “sanction shows that
the President would rather allow drug trafficking and terrorism than support
[ICC] prosecution of war crimes and atrocities.”117 These value priorities also
seemed extreme to Jim Kolbe, a dissenting Republican Congressman from
Arizona, who opposed taking away economic assistance from desirable
programs: “At a time when we are fighting the war on terrorism, reducing
this tool of diplomatic influence is not a good idea.”118
To those who highly value international human rights and the rule of
law, both a part of the US democratic heritage, the US departure from re-
spect for impartial enforcement of laws aimed at stopping the most horrible
114. Id.
115. Id.
116. Id.
117. CGS, U.S. Sanctions Key Allies, supra note 80.
118. The full list of countries barred from receiving money from the Economic Support Fund
under this amendment, unless waivers were granted, includes: Andorra, Argentina,
Austria, Australia, Benin, Belgium, Brazil, Bulgaria, Canada, Republic of Congo, Costa
Rica, Croatia, Cyprus, Denmark, Estonia, Ecuador, Finland, France, Germany, Greece,
Hungary, Iceland, Ireland, Italy, Jordan, Latvia, Lesotho, Liechtenstein, Lithuania, Luxem-
burg, Mali, Malta, Namibia, New Zealand, Netherlands, Norway, Niger, Paraguay, Peru,
Poland, Portugal, Republic of Korea, San Marino, Samoa, Serbia, Slovakia, Slovenia,
South Africa, Spain, Sweden, Switzerland, Tanzania, Trinidad and Tobago, Uruguay,
United Kingdom, and Venezuela. See Press Release, CGS, House Votes to Cut Funds to
Key Allies in International Court, supra note 63; CGS, U.S. Sanctions Key Allies, supra
note 80; No Peace Without Justice, supra note 81.
crimes on earth is disappointing. Evidence that the departure seems to be

intentional is alarming. The laws over which Court enforcement has been
contested, after all, are laws prohibiting actions such as mass murder, mass
rape, and torture of untried people in captivity—crimes so egregious that
every single person on earth, the United States and the international com-
munity have agreed, is bound to obey the laws prohibiting them. The Bush
administration wants to use international institutions to enforce the law on
others of its choosing, but it rejects international enforcement that would
apply the law to all—including itself. Such a posture is demeaning to US
citizens—soldiers and civilians alike—who want their own conduct to be
above reproach when it comes to these horrific crimes and who are willing
and even eager to demonstrate before the world and before an impartial
international court, if need be, that their conduct does indeed measure up
to worldwide human rights standards. Instead, the former Under Secretary
of State and current US Ambassador to the United Nations has said that the
United States must not be held accountable to international enforcement.119
The US objective should be not to improve the Court but to make it “wither
and collapse.”120 These US decisions to abandon high moral ground by op-
posing the international community’s effort to expand equitable enforcement
of prohibitions of genocide, war crimes, and crimes against humanity are
legally dubious and likely to be politically and militarily self-defeating.
B. Enhancing International Enforcement of Humanitarian and Human

Rights Law
Despite the negative overall impact of US policies toward the ICC on the
enforcement of international humanitarian and human rights law, this analysis
also suggests some counter tendencies that can be noted but not fully discussed
here. The Security Council referral of Darfur atrocities to the ICC, in particular,
has confirmed four politico-legal realities that should inform future strategies
to increase compliance with human rights and humanitarian law.
First, the governments of many members of the international community,
including a majority of those now in the Security Council, have internal-
ized the norm that the international community has the right—and even the
duty—to stop genocide, war crimes, and crimes against humanity through
international legal processes that hold individuals accountable to the law.
Never again should would-be violators of these laws succeed in claiming
that they are entitled to hide behind a wall of sovereignty. The key question
119. John R. Bolton, supra note 45.

120. John R. Bolton, No, No, No to International Criminal Court, HUMAN EVENTS, 21 Aug.
1998, at 8.
is how to make international legal processes more effective, prompt, and

jurisprudentially sound.
Second, although the US government has internalized the norm that
international law prohibits people in other countries throughout the world
from committing these crimes, regardless of their government’s explicit ac-
ceptance of particular treaties or the ICC, it clearly has not accepted the
norm that the international community has the right to enforce these laws on
citizens of the United States. The unambiguous price that the United States
exacted for allowing the ICC to prosecute crimes in Sudan was exempting
US nationals. Significantly, the United States did not hesitate to enforce the
law on the Sudanese. US officials correctly noted that the obligatory content
of the law for Sudanese (and others), plus the requirement that Sudan ac-
cept ICC jurisdiction when instructed by the Security Council to do so, have
nothing to do with whether Sudan has ratified the Rome Statute.121
Third, the denial to others of exemptions that the United States claims
for itself betrays such a glaring denial of reciprocity that other governments
and human rights organizations will continue, correctly, to ask: How long
will we tolerate this double standard?122 Because of the tenuousness of the
US position, the trade-off of achieving Council referral of Darfur atrocities
in return for exempting US nationals has been a sensible political bargain
for the international community, particularly if the double standard is of
relatively short duration, because it reveals the US position for what it is:
an unacceptable double standard.123
The fourth reality is that the international laws against genocide,
war crimes, and crimes against humanity, when backed by human rights
organizations, the European Union, other progressive governments, and
UN agencies, are politically powerful. The United States presumably will
continue, for a time, to resist equitable ICC enforcement of these laws; but
Washington is not in control of the further internalization of these norms,
nor of the international community’s ways and means of enforcing them.
European governments, other like-minded states, civil societies throughout
the world, and the UN system are together stronger than US influence when
its position is widely recognized, even by a strong minority domestically, to
121. Jack Goldsmith, Support War Crimes Trials for Darfur, WASH. POST, 24 Jan. 2005, at A15;
Warren Hoge, France Asking UN to Refer Darfur to International Court, N.Y. TIMES, 24
Mar. 2005, at A3.
122. Even the frequently sympathetic voice of The Economist concluded: “The compromise
reached at the UN [on Darfur referral] . . . is an ugly one, with the immunity offered to
American citizens creating double standards. But it seems to have been the only way
forward.” After 300,000 Deaths, A Modicum of Justice, THE ECONOMIST, 1 Apr. 2005.
123. The position described here is also tenuous for two other Permanent Members of the
Security Council—China and Russia—which have not ratified the Rome Statute but
still may use the Security Council to prosecute others while wielding the veto to allow
impunity for themselves and their non-party friends.
be normatively deficient and hypocritical. In the end, one factor that pre-
vented the Bush administration from vetoing resolution 1593124 was simply
the enormous discrediting of the United States that would have occurred if
the United States had vetoed the idea that those accused of heinous crimes
should face internationally authorized due legal processes through the ICC.
After repeatedly rejecting the idea of Security Council referral to the ICC,
Washington found that the cost of a veto would be higher than the cost of
abstaining. The battle between the neoconservative agenda in the United
States and the ICC is far from over; and how the battle will evolve remains
dependent on many actors, domestic and international, as well as unfore-
seen events. But the strength of many people’s support for upholding norms
against mass murder and systematic rape at this stage of history should not
be underestimated, nor should the worldwide consequences of awareness
that the United States is hypocritical in its stance on these horrible crimes. If
the United States does not in the future do more than abstain on authorizing
legal proceedings to prosecute such crimes, and do more without insisting
first on obtaining immunity for US citizens, US officials will be accused of
holding the victims of rape and murder hostage to a US desire to assault the
Court and the law’s potential for deterring such crimes. Even a repeat of the
diplomatic delays of 2005 may seem unconscionable in a future crisis, given
the legally-binding duty of the United States and others in the Genocide
Convention to stop genocide, and the likelihood of future reminders that
“serious violations of international human rights law and humanitarian law
. . . are continuing”125 as the United States delays Security Council action.
C. Prospect
In sum, as more and more people become aware that US policy toward
the ICC has had a profoundly negative effect on the prospects for effective,
impartial enforcement of international humanitarian and human rights law,
they may work to change the present grim reality. At this moment in world
history, were it not for US obstruction, the international community could
have begun building far more reliable and even-handed instruments for
holding individuals accountable to human rights norms and could have
advanced the replacement of lawless violence with the rule of law applied
to individuals in world affairs. Whether the US failure to lead will cost
world civilization only a decade of progress or instead a century or more,
we may never know. But it is clear that opportunities unprecedented in
world history have been squandered because the United States has rejected
124. S.C. Res. 1593, supra note 103.

125. Darfur Report, supra note 97, at 5.
the application, through a world court, of international laws with which it

agrees, to its own nationals and employees. Because most US nationals
have no intention of violating the laws at issue and because the principle
of complementarity and other built-in safeguards mean that the Court will
be unlikely to act against US citizens anyway, it would be a small price for
Washington to pay to join the 100 other countries in the world that have
established the Court. Together, they could press other countries that are
reluctant to join the Court to do so in order to help enforce international
law against unconscionable atrocities. Because of changing power realities,
the day is likely to come when the United States will wish that it had taken
the rule-of-law path that it rejected in the early 21st century. For the sake of
their own safety, US citizens will wish that they had established, as early as
possible in history, the norm that every individual in all countries should be
held internationally accountable for violating fundamental norms of human
rights that protect all innocent people from violent attacks.

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Johansen 2006 The Impact of US Policy

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HUMAN RIGHTS QUARTERLY

The Impact of US Policy toward the

I. Examining the Impact of US Policies on the International

D. Punishing States Unwilling to Grant US Immunity .................. 313

I. EXAMINING THE IMPACT OF US POLICIES ON THE

Because key members of the new Bush administration arriving in Washington

1. Peacekeeping in this article refers to both traditional UN peacekeeping and UN enforce-

This analysis explores the impact of US policies on international law

(even if politically unwise). But efforts to exempt US nationals from obeying

A. Promising not to Undermine the Court

B. Exempting UN Peacekeepers from the Court’s Jurisdiction

for respecting human rights during UN operations in East Timor.13 Because

13. HRW, U.S. Proposals to Undermine the ICC, supra note 6.

16 of the Rome Statute. It allowed the Council to defer a specific Court

16. Rome Statute, supra note 11, art. 27

21. HRW, U.S. Proposals to Undermine the ICC, supra note 6.

supported similar US-sponsored resolutions in the two previous years, the

sufficiently well in US judicial processes that the complementarity principle

C. Pressing for Bilateral Immunity Agreements to exempt US Citizens42

D. Punishing States Unwilling to Grant US Immunity

cedures.57 The American Servicemembers’ Protection Act (ASPA) provided

US pressures did not stop at cutting military aid. Pierre-Richard Prosper

subsequently announced that some military aid would be allowed to go to

76. WICC, Fall 2003 Update, supra note 74.

money for economic stabilization, antiterrorism activities, peace-building,

four highly respected US educational institutions in Lebanon that

The Nethercutt amendment seems especially short-sighted when one

E. Delaying Security Council Referral of Crimes to the Court

US reluctance in early 2005 to use the ICC to prosecute crimes committed

99. Darfur Report, supra note 97, at 5.

II. EVALUATING THE IMPACT OF US POLICY

A. Undermining the Enforcement of Humanitarian and Human Rights

Although there is no simple relationship between US policies and the inter-

1. US policy makes it more difficult, in general, to enforce the rules against

By demanding exceptional treatment for themselves and others in the form

When the United States holds UN peacekeeping missions hostage to obtain-

US resistance to unconditional Security Council referral of cases of atrocious

US officials shield themselves and their nationals behind a wall of national

Loss of reputation weakens US credibility in upholding human rights law.

prohibits “outrages upon personal dignity” and “inhuman treatment.”114 If

crimes on earth is disappointing. Evidence that the departure seems to be

B. Enhancing International Enforcement of Humanitarian and Human

119. John R. Bolton, supra note 45.

is how to make international legal processes more effective, prompt, and

124. S.C. Res. 1593, supra note 103.

the application, through a world court, of international laws with which it

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