U.S. Government Efforts to Undermine the International Criminal Court (ICC) Treaty

May 25, 2000

The United States Government is, once again, engaged in an all-out effort to undermine the Treaty establishing the permanent International Criminal Court (ICC). The ICC Treaty was approved by 120 states at a Diplomatic Conference in Rome in July 1998. The United States joined Iraq, Yemen, Qatar, the People's Republic of China, Israel and one other state in opposing it.

The E.U. has been the driving force behind an effective and independent ICC. In recent weeks Washington has been conducting an intensive lobbying campaign aimed at cracking European Union commitment to the Treaty's fundamental principles. The timing is no coincidence. Next month negotiators will finish drafting the Court's Rules of Procedure and Evidence and the U.S. is seeking to use these rules as a back door route to amending and weakening the ICC Statute. The American efforts, if successful, will cripple the ICC's effectiveness and taint its impartiality.

Last month U. S. Secretary of State Madeleine Albright wrote to E.U. and other foreign ministers pressing for substantial changes to the ICC Treaty. The amendments, first proposed by Washington in March 2000, would bar ICC prosecution of a national of a state that is not a party to the Treaty except when that state or the U.N. Security Council consents. This would mean that Permanent Members of the Security Council who have not ratified the ICC Treaty, like the U.S., could use their veto power to ensure that their nationals enjoyed absolute immunity from prosecution. These restrictions were firmly and overwhelmingly rejected by the Treaty's drafters in Rome. In addition, high-level U.S. officials have told their E.U. counterparts that Washington's demands would have to be satisfied for the U.S. to adopt a "good neighbor policy" towards the Court.

Human Rights Watch has learned that the Pentagon will soon renew its lobbying efforts at European Ministries of Defense. This signals the intensification of a concerted campaign against the Court. Before the Diplomatic Conference the Pentagon convened a meeting for military attaches in Washington to fan opposition to the Court. During Rome Conference the U.S. Department of Defense threatened to withdraw U.S. military personnel from European territory if the negotiators did not agree to U.S. terms.

In response to the U.S. proposal, the E.U. is formulating a firm, common position. The European Union has characterized the U.S. proposal as "unacceptable." While urging continued American participation in the ICC negotiations and indicating an ongoing willingness to consider proposals that are consistent with the integrity of the Treaty, the E.U. is planning to reject Washington's initiative. In pursuit of an exemption for American citizens, Washington is intent on cracking European resolve and undercutting international justice.

On the eve of the May 31 E.U.-U.S. Summit in Portugal, Human Rights Watch urges European Union Member States to remain firmly opposed to the insertion of any consent requirement for non-state parties as a pre-condition to the trial of their nationals by the ICC. This restriction is antithetical to the fundamental principles of the Treaty.

In Addition, Human Rights Watch asks the European Union to refrain from introducing any counter-proposal to the U.S. initiative. Making a counter-offer would only legitimize U.S.efforts to weaken the Court. Human Rights Watch suggests that E.U. states highlight for U.S. officials the many effective assurances that Washington obtained at the Rome Diplomatic Conference and susbsequently at the Preparatory Commission negotiations on Rules of Procedure and Evidence and the Elements of Crimes. During the negotiations U.S. representatives have themselves acknowledged that these assurances are important guarantees against the possible unjustified prosecution of Americans.

By providing an independent and impartial judicial forum to hold the Augusto Pinochets and Foday Sankohs of the future to account, the International Criminal Court will limit the impunity for genocide, crimes against humanity and war crimes. Its early establishment is urgently needed to ensure justice to prospective victims, to strengthen the enforcement of international humanitarian law and deter the commission of these crimes in the twenty-first century.