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International Criminal Court (ICC)

artist rendition of courthouse

The bizarre circumstances surrounding the ICC plus highlights

ICC highlights further below - updated May, 2014 (not the official docket and therefore incomplete)

When the International Criminal Court (ICC) became a reality in July 2003, the curious events associated with it during and after its creation were the hottest news stories circulating the globe... except, that is, within America. Oddly, perhaps to say 'suspiciously odd', the American media rarely mentioned the ICC nor did it cover those unfolding events, events of earthshaking import. Even today, Americans rarely hear a word.

In that Americans have been kept in the dark, we address this matter and include further below the highlights they most assuredly missed.

The biggest reason the ICC became such a hot news story was because the Bush administration had been frantically trying to undermine it. Is 'frantic' a fair depiction? It would seem so, if Bush was willing to burn every bridge America has built in the last 100 years in order to stop the ICC from having total jurisdiction in war-crime cases. What's was (or is) going on?

During the Clinton administration, the U.S. was one of 139 countries which signed the Rome Statue, a treaty to establish the ICC, but on May 6, 2002, the Bush administration refused to consider ratification and announced to the UN of the U.S. decision to nullify its signature and thus withdraw its support. The Bush administration then began threatening to cut-off military aid to any country in the process of ratifying the Rome Statue which did not exempt U.S. citizens and military personnel. In other words, give Americans immunity from prosecution (see the Sept 2003 article The U.S. Government Position on the ICC) - (external website)

As a result of this 'un-signing', America could then be counted along with the six countries who had voted against the Rome Statute originally... China, Iraq, Israel, Libya, Qatar and Yemen.

While the official reasons the U.S. withdrew are noted below, there is a greater reason which the administration won't (didn't) admit to... one which apparently the pundits have yet to recognize. It's all about establishing (or becoming) a single worldwide ruling authority... necessary before a 'one-world government' can become a reality.

However, it stands to reason that a country must first become 'the most influential' before any claims can be made. Insiders surely know this and that includes the Europeans but none of them will publicly admit to these goings-on either... that's because everyone is jockeying for position. Whether the Europeans are just trying to stop America from gaining too much ground or whether they wish world domination for themselves is unclear however. Anything other countries such as China or Russia might be doing is unknown.

The formation of the International Criminal Court

It shouldn't be necessary to elaborate on why the International Criminal Court was necessary. The world simply needed an institution outside the influence and control of powerful people who might be responsible for genocide and other horrendous war-crimes. Such an institution would be an international court with the jurisdiction to bring them to justice... from whatever country they may reside. We all know the history of war-crimes, and we all know who committed them, and we all know most of them got away scot-free.

1. From the 1948 Genocide Conventions, the long-running idea of an International Criminal Court was to undergo serious study
2. From the 1998 Rome Statute, an International Criminal Court was formally and legally described
3. After being ratified by the required number of states (60) the International Criminal Court became a reality in July, 2003 and is based in The Hague, Netherlands

Although the International Criminal Court was destined to become a reality since almost everyone agreed it was needed, it wasn't to be so easy. If anyone fought the idea, one might think, resistance would come from some rogue state with a guilty dictator. That's not who protested the idea however, guilty or not, it was George W. Bush and he did so vigorously and underhandedly, threatening to cut off military aid to any county (even allies) that ratified the accord without giving American military personnel and its citizens immunity.

In the name of justice, for such an unbelievable stance, there just has to be more to it. Just the same, many countries (45) refused to be intimidated by the Bush administration, went ahead and signed the accord anyway without the bilateral immunity agreement (BIA) and subsequently, at least 22 had their military aid cut-off. Their were exceptions of course, NATO allies primarily (waived for political reasons) leaving these independent-minded South American, Asian and African countries to pay the consequences.

The Bush administration had claimed the ICC would become a platform for filing unwarranted charges against American military personnel, frivolous charges, without foundation or merit. Those who supported the ICC claimed those concerns were unwarranted, that safeguards were in place, that it would automatically determine the merits of a case before proceeding.

This led to speculation as to Bush's real reasons because even if he has no confidence in the safeguards the ICC provides, do these concerns justify all that Bush did in trying to obtain immunity? Bush effectively destroyed our relationship with every country in the world in his failed attempt. It doesn't make sense that price would be worth it even if he had succeeded. While many countries (40) did sign the BIA, most were under pressure to do so because of their financial need. Because of this, sour feelings over the matter are sure to linger.

While the price wouldn't seem worth it, far from it, at least for awhile Bush's contention was right... over England's involvement in the Iraq war, war-crime charges were quickly filed against Tony Blair by the Athens and Istanbul Bar Associations. The charges filed were for 'illegal aggression'. While aggression was established as a war crime in 1974 (external website), the ICC States still need to agree on a definition which apparently may not occur until this year (2009).

Since nothing seems to have come of it, apparently the case was dropped or thrown out of court. Interestingly, if the Principle of Complementarity exists, that national jurisdictions would have primacy, is seemed strange the Athens and Istanbul Bar Associations got involved so quickly (or even at all).

While the spotlight on Tony Blair has dimmed, it's seemingly the case for George Bush as well since his reasoning for trying to undermine the ICC can only be speculation. Assuredly there are well-placed people around the world who know what Bush's real reasoning was, but doubtful the American people will soon know. For the sake of immunity, the price Bush paid just doesn't compute, until you consider the ramifications beyond simple immunity. One glaring greater reason would be 'jurisdiction'. Jurisdiction seems the only possible reason worthy of such a price a leader might be willing to pay to obtain or retain.

As a curious note, it would seem Bush would have been more effective if he hadn't strong-armed everyone. In any event, his outrageous tactics completed destroyed whatever confidence the world had left in America. Hopefully Obama can restore it.

Logic would also say this is about the inevitability of a one-world government. Having far-reaching consequences, effectively eternal, such jurisdiction will naturally be fought over, even amongst allies. It is also over its design is where the lines in the sand will be drawn. Importantly, as pointed our in our article Globalization and the Constitution of a One-World Government, this is an area where the various human-rights groups should quickly get involved.

America, of course, would want its say if not its way, while the EU probably has its designs as well. Could it be that George Bush believed the ICC would later serve as an instrument for the EU to undermine America's influence? The ICC, while necessary to handle war-crimes, it's not hard to imagine why it could be considered a threat... that it might try to expand its jurisdictional authority. While many would argue that the ICC has not the intention or authority to go beyond its current mandate of just prosecuting war criminals, it's not hard to imagine another Rome Statute could be created to do just that. Against this any American president would have support, as most Americans would be vehemently opposed to any 'external authority' beyond that for war-crimes.

Who knows what might be going on behind the scenes... or whether the price George Bush paid for that monkey-wrench was worth it? While it could be Bush was trying to force America's will upon the world, but in fairness, he may have had reasons to believe others were (are) trying to force their will instead by positioning themselves behind the ICC. And since we are talking about allies jockeying for position, neither would publicly accuse the other if they're both 'guilty' of trying to do the same thing. The EU is now a powerful world player and could, just like America could, become a de facto one-world government. Other governments surely have designs as well.

In that every single member of the European Union refused to sign a BIA with the U.S., a political anomaly being that a country's self-interests usually comes first, regardless of what their bordered neighbors might have done, the EU's unified action (as a bloc) should be suspicious.

Intriguing as it is, a developing affair bigger than anything Agent 007 (James Bond) ever saw, an 'official' one-world government probably won't happen for another 100-200 years, there's just too much that stands in the way. In the meantime however, it will be a matter of jurisdictional jockeying, and jurisdiction means control.

Sometime in the near future we probably shouldn't be surprised to see another Rome Statute put forth. This title is eerie... as if the Holy Roman Empire is trying to come back from the dead. Actually, considering the stakes, we can't be certain the Vatican isn't trying to revive its domineering past in some clandestine manner. One thing for sure, there will be no shortage of players and the game will be rough.

A.O. Kime

ICC HIGHLIGHTS (noteworthy news events)...

Note: For more comprehensive reporting, publications and for the very latest news on the International Criminal Court (ICC) see http://www.iccnow.org

July 1, 2003: The US Congress cut off military funding to 47 countries for refusing to sign an agreement with the US on exempting US citizens from prosecution at the International Criminal Court. Four US Congressmen later submitted an amendment to the decision, that the seven NATO candidate countries, including Latvia, should be taken off the list.

August 25, 2003: More war-crime charges are now pending against Tony Blair by the Istanbul (Turkey) Bar Association (atop the war-crime charges already filed against Tony Blair by the Athens Bar Association). Note: It looks like Bush was right, that the ICC would be used for political prosecutions. Bush isn't being charged because the United States didn't sign the treaty. England, on the other hand, did, placing Tony Blair under the jurisdiction of the ICC.

August 29, 2003: Contention seems to be growing over the ICC and opinions are surfacing about its down side. There's a great article written by David Davenport (research fellow at the Hoover Institution) called "ICC - New Threat to U.S. Sovereignty" at Newsmax.com

Noteworthy (Sept 22, 2003): In a Reuters article, U.N. Secretary-General Kofi Annan was quoted as saying "Terrorism will only be defeated if we act to solve the political dispute and long-standing conflicts which generate support for it," Also "If we do not, we shall find ourselves acting as a recruiting sergeant for the very terrorists we seek to suppress." In the same article, Reuters quoted Norwegian Prime Minister Kjell Magne Bondevik as saying "The rule of law and respect for human rights are the first and the best way to counter terrorism," the Norwegian said. "We must provide outlets for human ambitions, for hopes and beliefs, but also for anger and grief."

October 9, 2003: So far at least 50 member countries of the ICC have refused to sign immunity agreements with the U.S., as a result, the U.S. plans to cut off military aid to 32 of those countries. The number of counties losing military aid changes for various political reasons, in July it was to be 47. Conversely, 68 countries have signed these immunity agreements with the U.S..

October 22, 2003: The Panafrican News Agency (PANA) reported that at the ACP-EU Joint Parliamentary Assembly, which convened recently in Rome, adopted a resolution whereby those ACP (African-Caribbean-Pacific) countries which had their U.S. military aid cut-off will be compensated in some fashion by the EU.

November 3, 2003: The following 'presidential determination' is interesting enough to display (as an example)...

Memorandum for the Secretary of State

Presidential Determination

SUBJECT: Waiving Prohibition on United States Military Assistance to Parties to the Rome Statute Establishing the International Criminal Court

Consistent with the authority vested in me by section 2007 of the American Servicemembers' Protection Act of 2002 (the "Act"), title II of Public Law 107-206 (22 U.S.C. 7421 et seq.), I hereby determine that:

Antigua and Barbuda, Botswana, East Timor, Ghana, Malawi, Nigeria, and Uganda have each entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against U.S. personnel present in such countries, and waive the prohibition of section 2007(a) of the Act with respect to these countries for as long as such agreement remains in force; and;

It is important to the national interest of the United States to waive, for a period of 6 months from the date of this determination, the prohibition of section 2007(a) with respect to Romania, and waive that prohibition with respect to this country for that period.

You are authorized and directed to report this determination to the Congress, and to arrange for its publication in the Federal Register.


Noteworthy (Nov 6, 2003): In his speech today to the National Endowment for Democracy, George W. Bush said "Sixty years of Western nations excusing and accommodating the lack of freedom in the Middle East did nothing to make us safe, because in the long run stability cannot be purchased at the expense of liberty."

January 20, 2004: As of December, the U.S. has negotiated immunity agreements for American servicemen and citizens with 74 countries, 32 of those are of the 92 countries which have ratified the Rome Statute.

March 28, 2004: For a typical bashing the U.S. is getting over Bush's ICC policy, see Asia Times (external website) This isn't unique, much the same is being written in newspapers all over the world... except that is, curiously, in America. Only a few commentaries have surfaced. Such worldwide condemnation, on-going for months, remains center-stage as the ICC tries to gain legitimacy without the U.S. onboard.

April 30, 2004: Canada signed the Agreement on the Privileges and Immunities of the ICC (APIC) today, becoming the 50th signatory.

June 30, 2004: There is now 10 ratifications (countries), with 58 signatories

July 26, 2004: A speech made by Bill Clinton at the Democratic National Convention:

“Americans long to be united. After 9-11, we all just wanted to be one nation. Not a single American on September 12, 2001 cared who won the next presidential election. All we wanted to do was to be one country, strong in the fight against terror, helping to heal those who were wounded and the families of those who lost their loved ones, reaching out to the rest of the world so we could meet these new challenges and go on with our democratic way of life. The President had an amazing opportunity to bring the country together under his slogan of compassionate conservatism and to unite the world in the struggle against terror. Instead, he and his Congressional allies made a very different choice – they chose to use that moment of unity to push the country too far to the right and to walk away from our allies, not only in attacking Iraq before the weapons inspectors had finished their work, but in withdrawing American support for the climate change treaty and for the International Court on War Criminals, and from the antiballistic missile treaty and from the nuclear test ban treaty.” Bill Clinton

July 27, 2004: A great argument put forth about the ICC by John Shattuck, Former Assistant Secretary of State for Democracy, Human Rights and Labor in an interview with the Center for American Progress...

American Progress: It seems that there is a deeply entrenched sentiment of American exceptionalism, both among the general public and in high levels of government, with regard to binding the military to international norms. How can this sentiment be overcome?

Shattuck: The issue of exceptionalism, as you've described it, has been with us for a long time.. It's a long tradition in American foreign policy. It's also related to isolationism, and unilateralism for that matter. Those are the three great "ism's" that are really at the heart of historical American foreign policy. They have to do with where we are geographically, and now where we are in terms of the amount of power that we have.

The International Criminal Court is a complicated topic. I would be the first to say that. But [U.S. Ambassador at large for War Crimes in the Clinton administration] David Sheffer's point, and he's right, is that we ought to be at the table. We've got some strong interests to defend, including an interest in protecting our own troops against the possibility that some other country may end up trying to take them before the International Criminal Court and undermine our capacity to do the kinds of military operations that we need to do in the world.

But there are ways in which you can build protections into the International Criminal Court. And the Court now has a basic protection that it can't even take a case until the justice system in the country in question has fallen apart. So if the United States does anything to investigate or otherwise look into an allegation, that's enough to keep it off the Court's agenda.

These things, exceptionalism and all the others, have been with us for a long time and we're going to keep battling them. But it ought to be the role of progressive leadership in a world that is now so interconnected and international to try to find arguments to push back these longstanding tendencies in American foreign policy.

July 29, 2004: For its first case, the ICC will investigate alleged atrocities in Uganda. Among other crimes, the BBC reports that "The world court has begun an investigation into war crimes allegedly committed by Ugandan rebels. The Lord's Resistance Army (LRA) is accused of abducting some 20,000 children, forcing the boys to become fighters and the girls sex slaves. The investigation comes a day after Uganda's army said it had nearly captured LRA leader Joseph Kony."

August 5, 2004: A fact sheet from the U.S. State Department dated August 3, 2004 summarizes the new US-UK extradition treaty now before the US Senate for ratification. It specifically addresses the issue of ICC extradition thusly: Article 18(2) provides that a person extradited under the Treaty may not be the subject of onward extradition or surrender for any offense committed prior to the extradition to the Requesting State unless the Requested State consents. The Treaty's use of the term "surrender" (the operable term in the Rome Statute of the International Criminal Court) makes explicit that the United Kingdom will not surrender to the ICC any person extradited by the United States. The United Kingdom has recorded in a separate letter its understanding that the Treaty continues the protection implicit in the current treaty against surrender to the ICC of fugitives extradited by the United States and states in its letter that it will contest any request from the ICC for such surrender as being inconsistent with Article 98(2) of the Rome Statute. Also see UK-USA extradition (external website).

October 23, 2004: An unusual development... Bill Richardson of New Mexico was the first Governor to endorse the Court in his UN Day proclamation on October 8, 2004. It is remarkable because the U.S. federal government will not endorse the ICC, in fact, stands opposed. Also noteworthy, Gov. Richardson was once Clinton's representative to the UN and delivered the United States opening statement at the Rome diplomatic conference on the ICC in 1998. Whether New Mexico will be the only U.S. state to do this remains to be seen.

November 19, 2004: The common use of child soldiers is finally getting the publicity it deserves, perhaps destined to become a 'war-crime'. See the Christian Science Monitor article entitled New Push to Stop Child Soldiers (external website).

December 8, 2004: Of the nearly 140 countries which have signed the Rome Statute which established the court, 97 have ratified it. Of these 97 countries, 57 have not signed a BIA with the United States of which 45 have refused ... leaving 40 which have. Of the non-signers, at least 22 will lose American aid.

December 9, 2004: A milestone for the ICC was established when, on December 2, 2004, the UN General Assembly voted to adopt a resolution concerning the ICC. It provides that the ICC may submit reports to the General Assembly and will be on the agenda henceforth, with the Court invited to attend and participate.

April 1, 2005: For the first time, the UN Security Council approves a measure allowing the newly established ICC to prosecute war crimes in Sudan. It is believed the ongoing conflict in Sudan has claimed some 300,000 lives.

April 29, 2005: Top Sudanese officials including President Omar el-Bashir have stated Sudan will not deliver any national indicted for war crimes to the ICC in The Hague, Netherlands to stand trail. (Comment: As the ICC looks to establish a track record, the political atmosphere in both Sudan and Uganda may force the ICC to look elsewhere for its first prosecutable case. Perhaps the DRC [Democratic Republic of Congo]? What seems to be lacking is muscle behind the ICC... seemingly powerless without substantial UN or NATO forces on the ground)

May 17, 2005: As a result of their meeting in Tripoli, the presidents of Chad, Egypt, Eritrea, Gabon, Libya, Nigeria and Sudan have rejected any military, political and judicial intervention by non-African countries in the Darfur region (Sudan). They suggest instead an African solution. Comment: Such an influential joint statement further dampens the prospects the ICC will be able to successfully prosecute any Sudanese war criminal.

May 21, 2005: Comment: The U.S. and the pro-ICC camp are beginning to place more importance on the precise number of their alliances (and successes)... by handing out virtual scorecards. The U.S. now proudly claims to have 100 signed BIAs (but the ICC camp says only 30 are in force) while the ICC camp proudly claims 99 States parties (but 42 signed a BIA). Who's winning? It depends on which statistic is the real 'score' but if we're to consider 139 ICC treaty signatures versus 100 BIAs... then it means the ICC is leading the game by 39 points. While it may have a silly aspect to it, it also has a way of drawing the lines deeper in the sand. The future makeup of political alliances?

July 19, 2005: Comment: Mexico will soon be the 100th States party to the ICC... apparently lacking only to file the necessary papers with the court. It is not so much the milestone of being the 100th, but the interesting part is that America's southern neighbor is not planning to sign a BIA with the U.S. The question is... will the U.S. retaliate by withholding assistance as it has done with other countries who have refused to sign? What did the U.S. do with its northern neighbor, Canada, who also refused to sign a BIA? Since Canada is a NATO member, it is now exempt from any retaliatory action by the U.S. (as were all NATO members later exempted). Any retaliatory action against Mexico will surely be seen by the Mexicans as a U.S. double standard. Historically however, the U.S. has always had a double standard when it comes to its two neighbors as compared to the rest of the world. The U.S. invariably looks the other way when it comes to what Mexico does. Will Mexico again get special treatment or will this be a case that America's northern neighbor carries more weight than its southern neighbor?

October 30, 2005: On October 28, Mexico filed its ratification instrument with the ICC becoming 100th States party. Importantly, Mexico refused to sign a BIA with the U.S. which puts at risk its $11.5 million in economic and military aid. It is unknown to date whether the U.S. will cut off this aid.

March 17, 2006: The ICC makes its first arrest since its founding (July 2002) in the Democratic Republic of the Congo (DRC). Thomas Lubanga Dyilo, a Congolese national, accused of "conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities" was arrested and transferred to The Hague.

June 21, 2006: On June 20, former Liberian President Charles Taylor, having been in custody in Sierra Leone, was transferred to The Hague to face war crime charges. The ICC has offered the use of its facilities (but is not in charge of this case).

January 29, 2007: The International Criminal Court (ICC) has confirmed charges against Thomas Lubanga Dyilo who will now stand trial. It will be the very first case (against an individual) for the ICC since its inception in July 2003.

May 2, 2007: The ICC issued arrest warrants for the Sudanese citizens Ahmad Harun and Ali Kushayb over the situation in Darfur... although the Sudan government has rejected any ICC authority.

July 14, 2008: The ICC requested a warrant for the arrest of Sudan’s President Omar al-Bashir on charges of genocide, crimes against humanity and war crimes.

July 21, 2008: Radovan Karadzic, one of the leaders of the Bosnian Serbs in the 1992-95 Bosnia war, was arrested in Serbia. A fugitive for 11 years, he will stand trial in The Hague for war crimes.

March 4, 2009: An arrest warrant was issued for Sudanese President Omar Hassan al-Bashir for war crimes in Darfur, the first ever against a sitting head of state.

March 14, 2011: The ICC prosecutor to investigate Libyan strongman Gadhafi and his inner circle - including his sons - for crimes against humanity.

June 27, 2011: Arrest warrants were issued by the ICC for Moammar Gadhafi, his son Seth and his intelligent chief Abdullah al-Sanoussi for crimes against humanity

July 20, 2011: Goran Hadzic, the last remaining war crimes suspect from Croatia's 1991-1995 war, was arrested and will be transferred to The Hague for prosecution.

April 26, 2012: Former Liberian president Charles Taylor was convicted of aiding and abetting war crimes and crimes against humanity... the first head of state found guilty since the Nazi trials at Nuremberg.

May 23, 2014:  Congolese warlord Germain Katanga was sentenced to 12 years in prison for his part in an attack on a village in northeast Congo (2003) in which some 200 civilians were killed.

Note: These events are neither official or complete (we likely missed several)

Last modified: 03/06/16