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> A Universal Court with Global Support > USA and the ICC

United States President Bill Clinton signed the Rome Statute of the International Criminal Court (‘Rome Statute’) on December 31 December 2000, the last day that the Rome Statute was open for signature. Shortly after the Bush Administration entered office and just before the 1 July 2002 entry into force of the Rome Statute, US President George W. Bush “nullified” the Clinton signature on 6 May 2002. Since 2002, the United States has launched a full-scale multi-pronged campaign against the International Criminal Court, claiming that the ICC may initiate politically-motivated prosecutions against US nationals.

For an overview of the United States’ opposition toward the ICC, please consult our factsheet on this issue.

This section provides information, analysis and documents on these US efforts to undermine the Court, including:

Bilateral Immunity Agreements (BIAs)
As part of its efforts, the Bush administration has been approaching countries around the world seeking to conclude Bilateral Immunity Agreements, purportedly based on Article 98 of the Rome Statute, excluding its citizens and military personnel from the jurisdiction of the Court. These agreements prohibit the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and US employees (including contractors) and nationals. These agreements, which in some cases are reciprocal, do not include an obligation by the US to subject those persons to investigation and/or prosecution.

Many governmental, legal and non-governmental experts have concluded that the bilateral agreements being sought by the US government are contrary to international law and the Rome Statute. This section provides legal analyses, a list of signatories of these agreements, and other useful documents on BIAs.

US Legislation Prohibiting Foreign Aid
Another facet of the US crusade against the Court is the adoption of two legislation known as the American Servicemembers' Protection Act and the Nethercutt Amendment.

The American Servicemembers' Protection Act (ASPA), passed by Congress in August 2002, contains provisions restricting US cooperation with the ICC; making US support of peacekeeping missions largely contingent on achieving impunity for all US personnel; and even granting the President permission to use “any means necessary” to free US citizens and allies from ICC custody (prompting the nickname “The Hague Invasion Act”). The legislation also contains waivers that make all of these provisions non-binding, however, the Bush administration has been using these waivers as bargaining chips to pressure countries around the world into concluding bilateral immunity agreements – or otherwise lose essential US military assistance.

On July 15, 2004, the US House of Representatives attached an anti-ICC amendment to the Foreign Operations appropriations bill. The amendment, offered by Rep. George Nethercutt (a Republican from Washington State), cut aid from the Economic Support Fund to all countries which have ratified the ICC treaty but have not signed a bilateral immunity agreement with the US. The amendment - which became known as the Nethercutt Amendment - was passed by the Senate and then signed into law by President Bush on 8 December 2004.

On 2 October 2006, President Bush waived International Military and Education Training (IMET) aid prohibitions to 21 ICC States Parties that have refused to conclude a BIA. Additionally, the Defense Authorization Act for FY 2007, which was signed by President Bush on 17 October, restores IMET funding previously denied under ASPA. One month later, on 28 November 2006, President Bush waived ESF aid prohibitions to 14 State Parties that had lost ESF aid under the Nethercutt Amendment. These developments, however, did not reinstate Foreign Military Financing (FMF) aid threatened by ASPA and three of the countries that also receive ESF aid – Ireland, Brazil, and Venezuela – were not given Nethercutt Amendment waivers, meaning that their ESF aid - totaling almost $15 million - still remains threatened.

More information on ASPA and the Nethercutt Amendment is also contained in this section, including analyses, presidential waivers, and press releases.

ICC Immunity Resolutions in the Security Council
As part of the US campaign to get blanket immunity for US peacekeepers, the US advocated for Security Council Resolution 1422 (first passed in July 2002 and renewed as Resolution 1487 in June 2003), which granted immunity to personnel from ICC non-States Parties involved in United Nations established or authorized missions for a renewable twelve-month period. Despite US efforts to renew this resolution again in 2004, the US withdrew the resolution once they could not secure enough votes in the Security Council.

For more information on the USA and the ICC, please contact Francesca Varda at varda@coalitionfortheicc.org.