The United States and its influence on Rome statute

This article on ‘The United States and its influence on Rome statute’ is written by Nilanjana Banerjee and aims to discuss what Rome Statute is, how did it grow, what is the role of the US in its growth. It will also analyse how the relationship between the US and International Criminal Court is.

I. Introduction

Every nation identifies certain acts as criminal offences but crimes know no boundaries. There can be such criminal activities too which are spread internationally and linked like a chain or there can be such cases where two different nations are parties to any criminal act.

To address such situations, there was a need for an international court which was established by Rome Statute. The US had played a major role in the birth, growth of the United Nations and thereafter the Rome Statute and the influence of the US at the UN, its councils was immense which was reflected in the Rome statute. But the US did not become a state party to it and here was a time when the US was against it.

The International Criminal Court (hereinafter mentioned as ICC) was a must to prosecute those who are guilty of the world’s worst crimes. It proves to be of great help in offering justice to the victims of atrocities, bolsters rule of law.

The treaty establishing the ICC i.e. Rome Statute was negotiated within the UN but it is a separate body distinct from the UN. It was a result of a long drawn process considering the need for ICC. US played a key role in different branches of the UN and therefore it was a very significant part of the Rome Statute. Its role is immense in establishing ICC but the US did not ratify the Rome Statute. Since then, the relation between the US and ICC has been good and bad too.

II. What is the Rome statute?

There can be situations where two different nations are parties of crime done. In such cases, there is a need for an international court that will hear these matters and give decisions. Until 1^st July 2002, there was no such international court but by virtue of the Rome Statute, an International Criminal Court was established and it began its sittings on 1^st July 2002. At that time, there were 60 countries that had ratified the statute but now there are 123 states.

“The most serious crimes of concern to the international community as a whole must not go unpunished”[1]

The Rome Statute is the founding treaty for ICC. It was adopted on 17^th July 1998 but came into force on 15^th July 2002. It aimed at establishing ICC which would bring justice to the perpetrators of the worst crimes i.e. war crimes, genocides, crimes against humanity. It was after a year of negotiations that a permanent international tribunal was established.

The United Nations General Assembly convened a five-week conference in Rome in June 1998, which would finalise and thereafter establish ICC. It was adopted by a vote of 120 to 7, while 21 countries abstained. It was for the first time that so many states decided to abide by and accept the jurisdiction of a permanent international court, thereafter prosecute the offenders of serious crimes which was committed in their territory.

The ICC is not any substitute to the courts of each country. The ICC steps in only where the state is unable to or unwilling to carry investigation and then prosecute the offenders. While the negotiations for the establishment of ICC was going on, there were a lot of heinous crimes committed, then it was a phase of the cold war which threatened the peace of smaller- weaker nations.

All these events had significant contributions in taking the decision of organising the conference in Rome. It was a conference of 160 states, out of which 120 states are parties to the Rome Statute. The Rome statute established the first treaty based on the international court, which now functions with the fund of its state parties or the voluntary contributions. It is a permanent autonomous court which is different from the International Court of Justice (ICJ). ICJ is a part of the UN.

ICC does not need any special mandate from the UN to try for crimes and has jurisdiction over those states which become a party to the Rome Statute. By becoming so, they submit themselves to the jurisdiction of ICC. The mandate of the ICC is to try for the most serious crimes namely genocide, war crimes, crimes against humanity, crimes of aggression.[2]

III. Influence of US

The idea of an international court was first raised while peace negotiations were going on post-world war I. The post-world war II conference in London established IMT i.e. International Military Tribunal, which somewhat took the responsibility of the court. It was established by Allied Control Council and the US was one of the key members.

US General Douglas Mac Arthur created IMT for Far Eat in 1946. Mac Arthur appointed the members of the concerned tribunal. It was the establishment of IMT which planted the seed for the Rome Statute. In response to a request by United Nations General Assembly, the ICC statute was drafted.

After the conclusion of the cold war, the US and weaker coalition parties began to set out their position. Then in 1989, the US House of Representatives passed a resolution for the creation of ICC. It recognises the jurisdiction of this court over crimes terrorism, genocide, narcotics trafficking.

In 1991 and 1992, the US had played a predominant role at the Security Council and the peacekeeping forces were also laid by the US. It was the US, which envisaged an international tribunal for conflict resolution, other permanent members were quite apprehensive about the tribunal. Then international criminal tribunal for Rwanda was able to reinforce human rights there only with proper aid which shows that the US had a significant influence over almost every UN program, every council and new international tribunals.

There was controversy among the member states over the jurisdiction of the international criminal court. The weaker states tried their best to accommodate crimes of aggression. Moreover, there was controversy in conceding primacy to the court as the major powerful states including the US-made way for retaining primacy.

Then in 1994, a new draft was prepared and in response to that, United Nations General Assembly established an Ad Hoc committee and preparatory committee for consideration of the text of the preparatory committee at the Rome Conference.

The text was exhaustive, had a multitude of options and there was the independence of case selection and it got adopted and came to be known as Rome Statute. US had employed its close allies in Rome who successfully shaped the approach towards ICC, they concealed a lot of offences from ICC jurisdiction. US alliances had Latin America, GRULAC, UK and Canada. Thus, since the inception of the idea of constituting ICC, the US has played a very firm role and influenced a lot.

The US under President Bill Clinton signed the Rome Statute in 2002 but did not ratify it. Mere signing does not create any legal binding. There is a need for ratification for a legally binding effect. Clinton had said that he would send it to advice and ratification only after he gets a chance to assess the functioning of the court. After there were 60 ratifications for Rome Statute, President Bush informed the UN Secretary-General that the US no longer intends to ratify the Rome Statute and does not recognise any obligation.

IV. Timeline of developments[3]

1. 20^th October 1943– UN war Crime Commission was established in London and the US was heavily involved.
2. 20^th December 1945 – IMT (International Military Tribunal) formed by the US, UK, Soviet Union, France to try the German Leaders.
3. 19^th January 1946– IMT for the Far East established under US general Douglas Mac Arthur
4. 25^th May 1993– International Criminal Tribunal Yugoslavia established. The US was an avid supporter.
5. 8^th November 1994– International Crime Tribunal for Rwanda established with the support of US.
6. 1^st February 1995– US sends delegation for Ad Hoc Committee (established for ICC)
7. March 1996– April 1998 – US participates in preparatory committee for ICC.
8. June – July 1998– Final negotiations of Rome Statute and US actively participated.
9. 17^th July 1998 – US voting against Rome Statute.
10. June 2000– US help in drafting rules for ICC prosecution and evidence.
11. 31^st December 2000– US sign Rome Statute
12. April – July 2002– ICC began operating after the 60^th ratification of the Rome Statute.
13. 6^th May 2002– the US formally announced its intention to not ratify Rome Statute.
14. August 2002– US passed the American Services Member Protection Act which prohibits and complicate US assistance to ICC.
15. May 2010– the US officially initiated relations with ICC by attending ICC assembly on State parties meeting.
16. June 2010– US sent delegates to ICC review conference.
17. January 2015– US aided ICC in the transfer of an LRA commander.
18. September 2018– US announced a new policy which degraded the relations and threatened ICC officers.
19. March 2019– US revokes visa of ICC prosecutor
20. June 2020– US imposes newer restrictions on ICC members and staffs
21. April 2021– US revoked the previous sanction on ICC personnel.

V. US & ICC relationship[4]

The US has been an ardent supporter of ICJ and played a crucial role in its operation of several tribunals. At present, 123 members have ratified the Rome Statute. The US, despite playing a central role in its establishment, did not ratify it and therefore the US is not a state party to it. During Obama’s administration, the relation progressed with the US providing full support to ICC, however, during the administration of Trump, the relationship got quite complicated.

In the early year after the establishment of ICC, the US was under the administration of G.W. Bush. The relation at that time was quite hostile as Bush pressurised governments across the world to get into agreements by virtue of which they are not to surrender US nationals to ICC. But this eroded the US credibility on international justice.

But during Obama’s reign, there was positive growth, Stephens Lapp, ambassador at large for War Crimes Issues announced that he will lead the US in ICC annual meeting. He even said that the US would end its hostility towards ICC. At Kampala, in 2010, US was the only non-state party to make a pledge and promise to assist ICC in its work.

The situation turned complicated again during Trump’s rule as he criticised the court before the UN and declared the United States withdrawal from the human rights council. He added that ICC has no jurisdiction, no authority concerning the US and in 2019, the US had even revoked the visa of the prosecutor of ICC, Faton Bensouda.

Other than these, the American Service Member’s protection act has refocused on the relation of America with ICC. Additionally, the Nethercutt Amendment extended the prohibition based on assistance to ICC.

The relationship between the US and ICC has once again become hostile and degraded.

VI. Conclusion

Since the inception of the UN, the US has been an integral part and being an economically and politically stable country, it has always influenced UN policies, councils, programs etc. Therefore the US has been a part of the clan which insisted on creating an international court. These were several steps to reach the final result i.e. the ICC as we see today.

Everything started with the establishment of IMT, then a new draft was prepared for ICC. Several conflicts occurred over the issues of jurisdiction, independence of cases etc. but the US tactfully handled all of these and finally, the Rome conference was organised.

In the Rome conference, the draft for ICC was finally signed by around 60 countries, but the US chose not to ratify it. G.W. Bush, during his reign, made it clear that the US has no intention to ratify the Rome Statute. However, there were positive developments seen during Obama, which was then damaged by Trump. Thus, with changing times relation between the US and ICC has been changing.

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References

[1] Preamble, Rome Statute.

[2] Understanding the International Criminal Court, Available Here.

[3] International Criminal Court Project, Available Here, (last visited Aug 27, 2021)

[4] Q&A: The International Criminal Court and the United States, HUMAN RIGHTS WATCH ( Sep. 2, 2020 12:00 AM EDT), Available Here, (last visited Aug 27, 2021)

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