Frequently Asked Questions About the U.S. Government's Policy Regarding the International Criminal Court (ICC)

• Why does the U.S. think its people should be above the law?
• Why are the protections provided for under the Rome Statute insufficient to meet U.S. concerns?
• How can the United States oppose prosecuting war criminals?
• The U.S. Government (USG) proposed agreement undercuts/attacks the ICC.
• There is the perception that the USG is focused only on protecting its own citizens while foreign citizens in the U.S. are subject to a harsh U.S. domestic penal code.
• How would an unsuccessful bid to sign Article 98 agreements affect USG decisions regarding international peacekeeping operations?
• What impact will Article 98 agreements have on existing Status of Forces Agreements (SOFAs)?
• Why aren't existing SOFAs sufficient to provide the protections the U.S. seeks?

Why does the U.S. think its people should be above the law?

• The U.S. does not seek to put its people "above the law," rather we want to ensure that our nationals are dealt with by our system of laws and due process.
  
  
• We as a nation believe in justice and the rule of law, and in accountability for war crimes, crimes against humanity, and genocide, and have vigorously pursued the highest standards in this regard.
  
  
• We accept the responsibility to investigate and prosecute our own citizens for such offenses should they occur. Our policy is to encourage states to pursue credible justice within their own institutions, consistent with their responsibilities as sovereign states.
  
  
• We object, however, to the investigation or prosecution of our citizens by the ICC, whose jurisdiction we have not consented to and which lacks necessary safeguards to ensure against politically motivated investigations and prosecutions.

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Why are the protections provided for under the Rome Statute insufficient to meet U.S. concerns?

• Under the Rome Statute, the ICC claims the authority to second guess the actions taken and the results reached by sovereign states with respect to the investigation and prosecution of crimes.
  
  
• Even in cases in which the United States has appropriately exercised its responsibilities to investigate and/or prosecute in a particular case, the ICC prosecutor, with the approval of two judges from a three-judge panel, could still decide to initiate an ICC investigation or prosecution.
  
  
• Such a decision by the ICC prosecutor would not be inconceivable. Features of the U.S. common law system, U.S. constitutional protections for criminal defendants, and the U.S. jury system are different than those that apply in most other countries. ICC prosecutors may not understand, or may disagree with the operation of these aspects of our system in particular cases. This could lead the ICC to deem actions taken by the U.S. to be inadequate and to prosecution of U.S. persons by the ICC.
  
  
• We are also concerned that there are insufficient checks and balances on the authority of the ICC prosecutor and judges.
  
  
• The Rome Statute creates a self-initiating prosecutor, answerable to no state or institution other than the Court itself. Without such an external check on the prosecutor, there is insufficient protection against politicized prosecutions or other abuses.

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How can the United States oppose prosecuting war criminals?

• We do not oppose prosecuting war criminals. We have consistently led the effort to strengthen international justice and accountability.
  
  
• The United States played a key role in the establishment of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court in Sierra Leone.
  
  
• Slobodan Milosevic is on trial for his crimes because a coalition of countries, led by the United States, not only gave political support to the work of the International Criminal Tribunal for the former Yugoslavia, but also supplemented that support in practical ways, in cooperation with the new leadership in Belgrade.
  
  
• Foday Sankoh and his followers will be brought to justice for their crimes in Sierra Leone because the United States sponsored a Security Council resolution requesting the establishment of a Special Court of which we are a key supporter and the largest financial contributor.
  
  
• We continue to hope that the United Nations and the Government of Cambodia can agree on a reliable, independent, and impartial structure for trial of the Khmer Rouge leaders.
  
  
• We support the International Criminal Tribunal in Rwanda request for additional judges in order to speed the important work of the Tribunal. We recently announced a Rewards for Justice program on Central Africa with the goal of bringing to Arusha the authors of the Rwandan genocide who are still at large.
  
  
• We believe that accountability is obtainable by primarily relying on national judicial systems and international tribunals established where appropriate by the Security Council within the framework of the UN Charter.

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The U.S. Government (USG) proposed agreement undercuts/attacks the ICC.

• Our draft agreement is fully consistent with the Rome Statute. Article 98 of the Statute expressly contemplates such agreements.
  
  
• During the UN Security Council debate on protections for peacekeepers from the ICC, countries that are leading proponents of the court urged us to make use of Article 98 agreements as a means of addressing our concerns about the court.

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There is the perception that the USG is focused only on protecting its own citizens while foreign citizens in the U.S. are subject to a harsh U.S. domestic penal code.

• The U.S. is not seeking to exempt U.S. citizens who have been charged with a heinous crime. We simply believe that the national authorities should be responsible for handling these types of offenses. Appropriate punishment will be imposed on those U.S. citizens convicted of war crimes and crimes against humanity.

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How would an unsuccessful bid to sign Article 98 agreements affect USG decisions regarding international peacekeeping operations?

• The lack of Article 98 agreements would be factored into USG decision-making, and is one of a number of factors the USG would need to consider when deciding on a peacekeeping role. However, even restricting U.S. involvement in peacekeeping operations to countries where we have an Article 98 agreement would not address USG concerns because USG peacekeepers travel and could be subject to arrest in a third country, with whom we do not have an Article 98 agreement.

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What impact will Article 98 agreements have on existing Status of Forces Agreements (SOFAs)?

• None, because Article 98 solely concerns the surrender of individuals to the ICC. SOFAs govern the status of forces in a particular country. While criminal jurisdiction issues within the context of the host nation's laws are dealt with in SOFAs, there is no inherent conflict in signing an Article 98 agreement. Moreover, the Article 98 agreements we are seeking are not limited to protecting U.S. military and civilian employees of the Department of Defense and their dependents, as most SOFAs are, but will protect all US nationals. Therefore, the USG does not envision re-opening SOFAs solely for the purpose of obtaining protection from the ICC since U.S. military and civilian employees of the DOD and their dependents will be covered by the Article 98 agreements. However, if a SOFA is up for renewal, the USG might seek to incorporate language in the new SOFA to provide protection from the ICC, but the two types of agreements should not be confused.

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Why aren't existing SOFAs sufficient to provide the protections the U.S. seeks?

• SOFAs generally cover only specified personnel, and do not cover all U.S. nationals. Because we aim to ensure that no U.S. nationals will be surrendered to the ICC, existing SOFAs do not provide sufficient protection.

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