scene from Nuremberg

The United States has long exercised leadership in promoting accountability for international crimes. The global movement to establish international judicial processes to help ensure that perpetrators are held to account and that victims experience a sense of justice largely originated in the Nuremberg and Tokyo Tribunals. The United States was instrumental in the establishment of these institutions, which were created in large part due to the U.S. admonition that—in the famous words of Supreme Court Justice Robert H. Jackson—even those responsible for crimes “so calculated, so malignant and so devastating” as those committed by the Nazis “had the right to a fair trial on the facts and law” and should not (as some, including Winston Churchill, had suggested) be simply identified and summarily executed.  U.S. lawyers played key roles in the prosecution of the major war criminals before the tribunals, including Justice Jackson, who helped draft the Nuremberg Charter, shaped the charges, and served as U.S. Chief Prosecutor in the main trial of the major war criminals; Brigadier General Telford Taylor, who served as prosecutor in the High Command Case and Chief Counsel following Jackson’s return to the United States; and Benjamin Ferencz, who served as chief prosecutor for the Einsatzgruppen Case and remains a staunch advocate for international justice to this day. The eight “Nürnberg Principles,” which sought to encapsulate the Tribunal’s most important contributions to international law, still serve as an indelible testament to the precepts for which these great efforts have come to stand. 

“The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their bring ignored, because it cannot survive them being repeated. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of law is one of the most significant tributes that Power has ever paid to reason.”

Excerpt from Opening Statement by Justice Jackson to the Nuremberg Tribunal (Nov. 21, 1945)

The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their bring ignored, because it cannot survive them being repeated. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of law is one of the most significant tributes that Power has ever paid to reason.

The United States also played a decisive role reviving international justice efforts after the Cold War. During the George H. W. Bush Administration, as unspeakable war crimes engulfed the former Yugoslavia, Secretary of State Lawrence Eagleburger called for “a second Nuremberg.”  In the face of those atrocities, and the genocide that subsequently swept Rwanda in the spring of 1994, President Bill Clinton embraced the “obligation to carry forward the lessons of Nuremberg” as the reason that “we strongly support the United Nations War Crimes Tribunals for the former Yugoslavia and for Rwanda” —the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). Following the creation of these two ad hoc tribunals, U.S. backing continued, prompting the first Prosecutor of both tribunals, Justice Richard Goldstone, to reflect that “neither [the ICTY nor the ICTR] would have been set up and neither of them would have got off the ground without the support from the United States administration."  This included diplomatic support in the UN Security Council and through intercessions with other states;  financial support amounting to more than $1 billion over the life of the Tribunals;  the issuance of rewards for information leading to the capture of fugitives;  secondments of experienced lawyers from the Department of Justice and elsewhere;  operational support in the form of assistance in the capture, detention, and transfer of fugitives, including essential contributions to the May 2020 arrest of long-time ICTR fugitive Félicien Kabuga;  a steady stream of intelligence (notably including satellite imagery that identified the mass graves of victims of the Srebrenica massacre as well as forensic examination of ballistics evidence);  and legal support, such as amicus curiae briefs and the adoption of domestic legislation to facilitate the transfer of persons wanted by the tribunals, notwithstanding the absence of an extradition agreement. 

Recognizing that ”the end of impunity and the promotion of justice…are stabilizing forces in international affairs,” U.S. support to global justice efforts has not been limited to these two tribunals.  While no country has a perfect record on accountability, the United States has provided substantial assistance to a range of other hybrid, regional, internationalized, and domestic mechanisms to ensure accountability to perpetrators and justice for victims of international crimes. This includes backing the establishment of, and helping to ensure adequate funding for, the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Tribunal for Lebanon (STL), the Kosovo Specialist Chambers, and the Extraordinary African Chambers, as well as specialized chambers, mobile courts, and a new breed of dedicated investigative mechanisms at the international level  and domestically.  Many of these institutions benefited not only from strong institutional support from the United States but also from the contributions of U.S. lawyers and judges in key leadership positions. 

When the international community turned its attention to creating a permanent international criminal court, the United States was an active participant in the negotiations during the Preparatory Committee meetings and the Diplomatic Conference that led to the adoption of the Rome Statute. Indeed, the Rome Statute—together with related instruments adopted in the aftermath of Rome—reflect pervasive U.S. contributions, including on the definitions of the three atrocity crimes (genocide, war crimes—in both international and non-international armed conflicts—and crimes against humanity), with which the United States expressed general satisfaction.  However, the final jurisdictional framework contained elements that were problematic for the United States. With the inclusion of provisions allowing assertion of jurisdiction over nationals of states that were not parties to the Rome Statute, the United States faced the prospect of an international criminal tribunal with jurisdiction over its personnel, which brought competing U.S. interests to the fore. These and other U.S. concerns, which a previous ASIL Task Force considered in detail in its 2009 Report,  prompted the United States, together with only six other nations, to vote against adoption of the Statute at the conclusion of the Rome Conference. And while the Administration cited reservations about several elements of the final treaty text, it was concerns with the Court’s territorial jurisdiction that proved to be the most acute and enduring. Thus, when asked at a Senate Foreign Relations Committee hearing immediately following the Rome Conference about which flaw made it impossible for the United States to approve the final text of the treaty, the lead U.S. negotiator, Ambassador David Scheffer, pointed specifically to the provisions under which U.S. persons would be exposed to the Court’s jurisdiction even if the United States did not become a party. 

Nonetheless, the United States ultimately signed the Rome Statute on December 31, 2000, the last day permitted. Even then, President Clinton underscored that “we are not abandoning our concerns about significant flaws in the treaty,” pointed “in particular” to its “claim [of] jurisdiction over personnel of states that have not” ratified the treaty, and said that he would not recommend its submission to the Senate for advice and consent “until our fundamental concerns are satisfied.”  U.S. engagement with the Court did not end, however. President Clinton also indicated that the point of signing the Rome Statute was to be in a position “to influence the evolution of the court.”  In the period following the adoption of the text of the Statute, the United States participated constructively in the Preparatory Commission negotiations around the Rules of Procedure and Evidence and the Elements of Crimes. U.S. participation was critical in shaping these instruments—including in working to ensure that the elements of each crime were clearly delineated —and the United States joined consensus on the adoption of these key texts.

Subsequently, during the administration of President George W. Bush and as the Court came closer to becoming operational (the Rome Statute ultimately entered into force on July 1, 2002), the United States took a number of steps to distance and insulate itself from the Court, discussed in more detail below (see Sections on ICC-Specific Legislation and on U.S. Engagement with the ICC). This included informing the UN Secretary General on May 6, 2002, that the United States did not intend to become a party to the ICC Statute (and thus incurred no obligations arising out of its earlier signature of the treaty); enacting the American Servicemembers' Protection Act of 2002 (ASPA) and related statutory restrictions; concluding bilateral agreements obliging foreign states not to surrender U.S. persons to the ICC (so-called “Article 98 agreements”); and declining to participate in ICC fora, including the annual meetings of the Assembly of States Parties (ASP) as an observer or the Special Working Group on the Crime of Aggression. The full views of the Bush Administration were set out in considerable length in a speech by then-Undersecretary of State for Political Affairs Marc Grossman. The speech underscored the United States' opposition to the ICC, asserting that the Court was an institution of “unchecked power,” diluted the authority of the UN Security Council, threatened U.S. sovereignty, undermined the democratic rights of U.S. citizens, and put U.S. personnel at risk of politicized prosecutions.  Notwithstanding the substance and overall tone of the speech, Grossman pledged that the United States would continue to lead on justice and rule of law issues, and enumerated an expansive list of actions in this regard that he maintained the United States would take (See Text Box).

READ Under Secretary of State Marc Grossman’s list of how the United States would continue to work towards accountability, despite the Bush Administration’s concerns about the ICC

Excerpt from Speech by Under Secretary of State Marc Grossman (May 6, 2002)

“The existence of a functioning ICC will not cause the United States to retreat from its leadership role in the promotion of international justice and the rule of law. The United States will:

  • Work together with countries to avoid any disruptions caused by the Treaty, particularly those complications in US military cooperation with friends and allies that are parties to the treaty.
  • Continue our longstanding role as an advocate for the principle that there must be accountability for war crimes and other serious violations of international humanitarian law.
  • Continue to play a leadership role to right these wrongs.
  • The armed forces of the United States will obey the law of war, while our international policies are and will remain completely consistent with these norms.
  • Continue to discipline our own when appropriate.
  • We will remain committed to promoting the rule of law and helping to bring violators of humanitarian law to justice, wherever the violations may occur.
  • We will support politically, financially, technically, and logistically any post-conflict state that seeks to credibly pursue domestic humanitarian law.
  • We will support creative ad-hoc mechanisms such as the hybrid process in Sierra Leone – where there is a division of labor between the sovereign state and the international community–as well as alternative justice mechanisms such as truth and reconciliation commissions.
  • We will work with Congress to obtain the necessary resources to support this global effort.
  • We will seek to mobilize the private sector to see how and where they can contribute.
  • We will seek to create a pool of experienced judges and prosecutors who would be willing to work on these projects on short-notice…
  • We will take steps to ensure that gaps in United States' law do not allow persons wanted or indicted for genocide, war crimes, or crimes against humanity to seek safe haven on our soil in hopes of evading justice.

And when violations occur that are so grave and that they breach international peace and security, the United States will use its position in the UN Security Council to act in support of justice.”

Grossman also emphasized that “the United States respects the decision of those nations who have chosen to join the ICC; but they in turn must respect our decision not to join the ICC or place our citizens under the jurisdiction of the court."

A focus on delegitimizing the Court gave way in the second term of the Bush Administration to what former State Department Legal Adviser John Bellinger III termed a “modus vivendi” with the Court, in which “even if [the United States] disagree[s] over the means chosen by the Rome Statute…we do not disagree over the Statute’s end goals, and we are prepared to work with those who support the Court in appropriate circumstances,”  or what the 2009 ASIL Task Force Report described as “a more nuanced and pragmatic approach to the ICC.”  A watershed moment came with rising concerns over the atrocities unfolding in Darfur, Sudan, which ultimately led the United States to acquiesce to the Security Council referring the situation in Darfur to the ICC Prosecutor (see Section on Referral of Situations to the ICC Prosecutor).  The rationale was plain: the tangible need for “the international community to work together in order to end the climate of impunity in the Sudan” simply outweighed the United States' conceptual objections to the ICC.  The changes in approach to the ICC during the second term of President Bush were not limited to this referral. The Bush Administration further came to believe that ASPA restrictions on military aid to states that had not signed “Article 98 agreements” were counterproductive,  leading Congress to repeal some provisions of ASPA (described below). Over time, the United States indicated a growing openness to supporting specific activities of the ICC when it considered them to be consistent with U.S. interests.  This was reflected in a comprehensive 2008 speech about ICC policy at a conference celebrating the tenth anniversary of the Rome Statute in which Legal Adviser Bellinger spoke about the interests of the United States in facilitating the Court’s investigations and prosecutions in appropriate cases and in “finding practical and constructive ways to cooperate in advancing our common goals.”  More generally, there was recognition that the Court had a “valuable role to play” in appropriate cases. 

It was in this context that the earlier ASIL-convened Task Force issued its recommendations in 2009. The 2009 Report observed that U.S. policy toward the Court had begun to evolve into what that Task Force considered to be an “increasingly positive attitude toward the Court, in particular supporting its efforts in Darfur.” The Report thus set out thirteen recommendations in this vein (ten for the President and three for Congress) to articulate and consolidate a continued policy of positive engagement with the Court, but did not recommend that the United States ratify the Rome Statute. 

In the end, many of the Report’s concrete suggestions were, in fact, eventually reflected in the Obama Administration’s “case by case” policy for providing support to the ICC. Among notable examples of the key support it provided during this era, the United States played an instrumental role in the surrender to the ICC of two suspects who had evaded capture for many years: Bosco Ntaganda, a DRC militia leader who turned himself in to the U.S. embassy in Kigali, Rwanda; and Dominic Ongwen, a senior commander of the Lord’s Resistance Army who came into the custody of U.S. special forces in the Central African Republic (see Section on Support in the Arrest and Surrender of Fugitives). In addition, the United States voted in favor of the UN Security Council referring Libya to the Court in 2011;  resisted efforts by Sudan and Kenya to seek an Article 16 deferral from the Security Council (see Section on Proposals to Defer ICC Investigations or Cases); and expanded the War Crimes Rewards Program to include ICC indictees (see Section on War Crimes Rewards Program). Toward the end of the Obama Administration, however, concerns that the OTP would open formal investigations into the situation in Afghanistan were making it more difficult for the United States to maintain its previous supportive stance. 

The Trump Administration pursued a very different policy. At first, there was little public manifestation of the Administration’s stance toward the Court except its statement at the 16th Session of the ASP, which articulated familiar concerns untempered by the usual recitation of the way in which the Court and the United States had worked together in the past.  As described in more detail below, the situation deteriorated with the appointment of John Bolton as National Security Advisor in March 2018 and culminated in unprecedented sanctions imposed under a June 2020 Executive Order that deemed the ICC to be an “unusual and extraordinary threat” to national security. Criticism from members of the ASP (including U.S. friends and allies), civil society organizations, former U.S. Ambassadors-at-Large for War Crimes Issues, some members of Congress, and academics was sharp.  Even non-party states such as China used the opportunity to criticize the U.S. approach. 

The United States is now emerging from a period during which its actions have caused many to question its commitment not only to accountability for atrocity crimes but also to constructive and respectful engagement in international and multilateral affairs. The reaction by the Trump administration to the ICC has been seen by longstanding allies as extreme and as emboldening autocrats in their own attacks on the rule of law and judicial institutions.  Meanwhile, the rhetoric and circumstances surrounding the pardons issued to U.S. servicemembers and private military contractors who were accused or convicted of war crimes have marred perceptions of the commitment of the United States to hold to account Americans who commit heinous international crimes.  Numerous interlocutors with whom we spoke maintained that these outcomes also undermine the credibility of statements from senior U.S. Government officials that “[w]hen our personnel are accused of a crime, they face justice in our country." 

The Task Force undertook its work as these events were unfolding. It has consulted widely and this Report has been informed by discussions, individually or in small focus groups, between members of the Task Force and over one hundred current and former U.S. Government officials, foreign diplomats, members of civil society, academics, and practitioners. This includes U.S. and foreign ambassadors and other diplomatic staff who have served in ICC situation countries or in countries where indictees have traveled; other U.S. Government officials who serve or have served in a range of roles, working on issues relevant to the U.S. relationship with the ICC from varying perspectives and under both Republican and Democratic administrations; national prosecutors and other state authorities managing complementarity processes in their home jurisdictions; individuals involved in the military justice system; ICC personnel, including current and former judges, defense counsel, victims' counsel, and prosecutors; former Presidents of the ASP, Presidents and Registrars of the Court, and candidates for the position of ICC Chief Prosecutor; victim representatives and organizations of lawyers and physicians working with survivors, including within the ICC; practitioners of all stripes, including individuals pressing for accountability for those who stand accused of committing abuses and those defending individuals who might be deemed responsible; representatives of non-governmental organizations (NGOs), U.S. and foreign, working in ICC situation countries, including in Afghanistan; and individuals who worked directly on ICC-related legislation, including ASPA and the War Crimes Rewards Program. Many of these individuals have held multiple relevant roles, and so have observed the U.S.-ICC relationship from varied perspectives; indeed, a number of Task Force and Advisory Group members have themselves engaged on these policy issues while serving in the U.S. Government. We also attended academic and other convenings devoted to the U.S.-ICC relationship and the situations under consideration before the Court and reviewed contemporary and historical scholarship on the U.S.-ICC relationship.

The analysis and recommendations that follow are drawn from these rich interactions. In this Report, the Task Force has endeavored to reflect the multifaceted views of our many interlocutors on these issues and hopes that it will be a useful resource to a wide range of international and non-governmental actors in understanding the U.S. approach to, and relations with, the Court. That said, the primary mandate of the Task Force has been to recommend to the U.S. Government, including the Executive branch and Congress, a set of options for engagement with the ICC that will be viewed as pragmatic in light of the current climate and the many constraints under which it will inevitably be making relevant decisions. By design, this has necessitated balancing numerous considerations, including U.S. bilateral policy vis-à-vis ICC situation countries, competing equities within Executive branch agencies, longstanding congressional positions and commitments, the priorities of U.S. constituencies and civil society actors, and the history of U.S. engagement with the project of global justice writ large, including the ICC. These factors, which are often in tension with each other, have shaped our recommendations but have also led us to assume that certain options are effectively “off the table.” With these political realities in mind, the next sections will outline the legal and political backdrop for the U.S.-ICC relationship and then address key developments involving the Court that will bear on pragmatic options going forward.