The U.S. Says It Is Not Its Goal to Undermine the ICC

At a recent panel discussion at the NYU Center for Global Affairs on the Challenges and Future of International Justice, Harold Hongju Koh, Legal Advisor to the Department of State (left) (photo credit) stated that it was not the policy of the United States to frustrate the object and purpose of the Rome Treaty.

Koh's statement came in response to a comment by Sang-Hyun Song, President of the ICC (below right), about the United States' "positive engagement" with the Court. In invoking President Barack Obama's national security strategy promoting the end of impunity and the promotion of justice as moral imperatives and stabilizing influences in international affairs, Koh stated:

What you quite explicitly do not see from this Administration is U.S. hostility towards the Court. You do not see what international lawyers might call a concerted effort to frustrate the “object and purpose” of the Rome Statute. That is explicitly not the policy of this Administration. Because although the United States is not a party to the Rome Statute, we share with the States Parties a deep and abiding interest in seeing the Court successfully complete the important prosecutions it has already begun.

In addition to explicitly renouncing any such policy to frustrate the object and purpose of the ICC Statute, Koh noted that the Obama Administration had "ended the hostility and the harsh rhetoric" vis-a-vis the Court and pledged support for the Court's ongoing prosecutions.

These comments raise the question of whether Koh has said the magic words necessary to essentially withdraw a 2002 letter by which a U.S. official purported to "unsign" the Rome Treaty. Although the impact of the United States' purported "unsigning" of the Rome Treaty establishing the ICC remains contested, there is little question that Koh's remarks address the most important implication that some have read into the Bolton letter: that it was the policy of the U.S. to engage in a concerted effort to frustrate the "object and purpose" of the Court.

By way of background, President William J. Clinton in the waning days of his Administration signed the Rome Treaty on December 31, 2000, the final day it was open for signature. At that time, President Clinton did not recommend that his successor submit the Treaty to the Senate for advice and consent until the United States’ fundamental concerns were addressed, most notably the ability of the Court via an unaccountable prosecutor to exercise jurisdiction over the nationals of non-states parties. The subsequent retraction of this signature purportedly was accomplished by a terse letter from John Bolton, when he was President George W. Bush’s Undersecretary for Arms Control and International Security, to Kofi Annan, then-Secretary-General of the United Nations. The letter stated:

This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the repositary's status lists relating to this treaty.

This indication of an intent not to ratify the treaty was said to be needed to remove any obligation of the United States to refrain from acting contrary to the object and purpose of the treaty as required by its signature of the treaty. Article 18 of the Vienna Convention on the Law of Treaties states:

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty...

(Although the United States has signed but not ratified the Vienna Convention, U.S. officials regularly indicate that they accept that much of the Convention reflects binding customary international law). Pierre Prosper, then U.S. Ambassador for War Crimes Issues, later indicated that the United States would not be in a position to assist the Court's investigations. See here and here for our prior discussions of efforts to "unsign" treaties, a common but inapt metaphor given the actual content of the Bolton letter and the terms of the Vienna Convention. (Incidentally, the U.N. website still lists the United States as a signatory to the Rome Treaty with a footnote reproducing the text of the Bolton letter.)

By formally indicating an intent not to ratify the Rome Treaty, the U.S. was thus free to take measures that might be interpreted as "acts which would defeat the object and purpose of the treaty" by undermining the treaty regime—such as the passage of the American Servicemembers Protection Act or the pursuit of Article 98 immunity agreements with other states—without running afoul of its Article 18 obligations. Although the U.S. has now renounced any intention or policy to undermine the Court, it is no doubt premature to assume the United States intends to ratify the treaty, and, of course, the statement does not imply that it will.

In addition, Koh's statement at NYU made other key points. Specifically, Koh:

► Outlined the Obama’s administration’s “integrated approach” to international criminal justice, which involves

• support for the ad hoc tribunals,


• providing "steadfast assistance" to rule of law initiatives around the world,


• engaging the Assembly of States Parties, and


• cooperating with the ICC in ways that are consistent with U.S. law (notably the American Servicemembers Protection Act), such as by public diplomacy.

► Restated the United States' support for all of the Court's prosecutions that are currently under way.
► Raised lingering and pressing concerns about the aggression amendments to the ICC and particularly the interaction between Article 121(5), which applies to the aggression amendments, and the opt-out provision adopted in Kampala, which allows states parties to opt out of the aggression amendments (See here and here for our prior posts on this).
► Highlighted several additional challenges facing the system of international justice:

• wrapping up the work of the ad hoc tribunals,


• the need for the ICC to deal with a growing case load, and


• arresting fugitives from all criminal tribunals.

For more on U.S. cooperation with the ICC, see prior posts here and here. The full text of Koh's statement at NYU is available here.

Another ICC unsigning

Among the Bush Administration's early post-9/11 acts -- an act taken fewer than 4 months after the opening of the detention camp at Guantánamo -- was to "unsign" the ICC treaty.
"Unsign" is a bit of a misnomer; in point of fact, what happened was that John R. Bolton, then U.S. Under Secretary of State for Arms Control and International Security, sent the following letter of repudiation to Kofi Annan, then U.N. Secretary-General:

This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty.

The unprecedented act stirred controversy, as our colleague Edward T. Swaine noted in his super 2003 article titled, simply, Unsigning. The act also stirred emulation: soon Israel also repudiated its ICC signature, in words virtually identical to Bolton's above.
And now there are 3.
At the end of August current Secretary-General Ban Ki-moon received Sudan's "unsigning," again lifted nearly verbatim from Bolton's May 6, 2002, letter:

I, Deng Alor Koul, Minister for Foreign Affairs of the Republic of Sudan, hereby notify the Secretary-General of the United Nations, as depositary of the Rome Statute of the Criminal Court[,] that Sudan does not intend to become a party to the Rome Statute. Accordingly, Sudan has no legal obligation arising from its signature on 8 September 2000.

What all 3 states seem to fear is the Vienna Convention on the Law of Treaties. It provides in Article 18:

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
(b) It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

This 1969 Treaty on Treaties, many provisions of which are deemed customary international law binding even upon nonparties like the United States, thus takes a midway position. It is more constraining than would be a no-effect-whatsoever position, yet far less constraining, as Swaine notes, than the civil law's culpa in contrahendo principle by "which liability may be imposed for bad faith conduct during negotiations." States that repudiate their signature, or unsign, endeavor to erase even the "interim obligation" of Article 18.
Let us assume arguendo that this practice has, or should, become a norm of international law. Even so the practice cannot liberate nonparty states from all concern.
As I've detailed here and here, in a few circumstances the Rome Statute permits ICC exercise of jurisdiction against nationals of a nonconsenting, nonparty state. Among those circumstances is referral of a matter by the U.N. Security Council pursuant to Article 13(b) of the Rome Statute. Such a referral -- Resolution 1593 (2005), adopted by a vote of 11-0, with Algeria, Brazil, China, and the United States abstaining -- launched the ICC investigation into atrocities in the Darfur region of Sudan. That investigation led Prosecutor Luis Moreno-Ocampo 2 months ago to seek an international arrest warrant against Sudan's President Omar al-Bashir. From that warrant's charges -- genocide and crimes against humanity in Darfur -- Sudan's "unsignature" affords Bashir no refuge.

(Coming Wednesday: The ICC, Sudan, and the Security Council)

Au revoir (presque) à Louise Arbour

Louise Arbour will step down from her position as U.N. Commissioner for Human Rights on June 30, thus concluding her 1st term in that position without seeking a 2d term.
Arbour (right) made the announcement yesterday, days after opening the current session in Geneva of of the Human Rights Council.
As did a recent predecessor in the position, former Irish President Mary Robinson (below), the Montreal-born Arbour (prior posts here) has called a number of countries on the carpet for pursuing policies that falls short of meeting international human rights obligations. They include China, Zimbabwe, and, the United States. Yesterday's N.Y. Times story wrote of her claim last year that

the so-called U.S. war on terror was eroding the worldwide ban on torture, noting reports of secret U.S. detention centers. John Bolton, the U.S. ambassador to the U.N. at the time, said it was 'inappropriate and illegitimate for an international civil servant to second-guess the conduct that we're engaged in the war on terror, with nothing more as evidence than what she reads in the newspapers.'

The same story said that Arbour -- who, as we've posted, was the Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia responsible for the indictment of Slobodan Milosevic and who also is a former Justice on Canada's Supreme Court -- said that family concerns and not criticism drove her decision:

She acknowledged that she found much of the criticism hurtful, but she said she was not quitting because of it. 'On the contrary, I have to resist the temptation to stay to confront it.'

Here's hoping her successor's another feisty steward of international human rights.