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The US and the ICC, Part 1: The Bush years

by Eric K. Leonard, Ph.D. on 04 Oct 2011 | Comments

Exclusive blog series on the ever-changing relationship between the United States and the International Criminal Court (part 1 of 3).

I have been watching the Obama administration’s approach to the International Criminal Court with skeptical optimism.  Many have claimed that a shift from what critics refer to as the belligerent Bush administration days of invade-The-Hague-acts and cutting off foreign aid to countries supporting the ICC, to the perceived multilateral, peace-oriented Obama administration would signal a dramatic shift in US-ICC relations.  Some even claimed the possibility of ICC ratification of the Rome Statute!  Now most observers of the Court realize that this step is not in the offing, but a transformation from belligerency to cooperation seems plausible.  But this observation begs three primary questions—first, was the Bush administration that belligerent? Second, has Obama initiated a friendly relationship with the Court that may result in actual political cooperation?  And third, and most importantly, how does a friendly relationship with the ICC benefit US foreign policy? In this post I will engage the first of these questions, with a specific examination of the Bush administration policies and their so-called belligerent approach. Future posts will engage the latter two questions along with other issues pertaining to the influence of the ICC.

So, was the Bush administration fundamentally opposed to the ICC and did it act to undermine the Court’s mandate?  The answer is a surprising yes and no.  Yes, the Bush administration acted to cripple the Court on many occasions; however, the Bush administration did not act alone within the US foreign policy-making community.  The most notorious of acts passed during the Bush administration’s tenure was the American Servicemembers Protection Act of 2002 (sometimes referred to as the Hague Invasion Act). The American Service Members Protection Act (ASPA) stipulates that the United States government views the ICC as an institution that exposes US military personnel and governmental officials to prosecution that is not pursuant with the US Constitution.  As a result, the ASPA authorizes the President:

to use all means necessary and appropriate to bring about the release from captivity of any person described in subsection (b) who is being detained or imprisoned against that person’s will by or on behalf of the International Criminal Court.

This act also allows the United States to terminate military assistance to ICC party states, limits the availability of US peacekeepers to UN mandated missions, prohibits the transfer of classified national security information to the ICC, and generally prohibits any cooperative arrangements between the United States and the Court.  Clearly this is a legislative attempt to distance the United States from the ICC and may be perceived as an attempt to cripple the Court as an institution of global justice.  But what is often forgotten in discussions of this legislative act is exactly that—this was a legislative act, not an executive order or other Presidential action.  And the Congressional vote was not exactly close or partisan.  In the Senate, the vote was 75 in favor and 19 opposed.  Of the 75 affirmative votes, Democrats cast 29.  The House vote was similar—280 yeas, with 84 from Democrats, and 138 opposed.  The point being that this act, along with other anti-ICC legislation like the Nethercutt Amendment, was not simply the act of President Bush and his cabinet.  The anti-ICC sentiment extended beyond the White House and included large portions of Capital Hill—both on the right and the left.

It should also be noted that many of the more accepting actions concerning the ICC began during the final years of the Bush administration.  The most prominent of these actions was the United States abstention from the United Nations Security Council vote on ICC jurisdiction within Sudan. Although not full scale acceptance of the Court (we should not forget that the resolution exempts US personnel from ICC jurisdiction in Sudan), the decision not to invoke their veto power provides some evidence of acceptance. 

The other ICC-friendly area of change concerns the Bilateral Immunity Agreements (BIAs).  On a diplomatic mission trip, Secretary of State Condoleeza Rice alluded to the notion that the United States may not want to follow through on some of the BIAs they have signed.  In her words, cutting off aid to allies and/or important counterterrorism or counter drug countries is “the same as shooting ourselves in the foot.”  Further action on this issue was undertaken in September of 2006 (prior to the take-over of Congress by the Democrats) when the House and Senate approved amendments to the ASPA that now allows International Military Educational and Training (IMET) funding to states that have not yet signed a BIA.

So does this type of analysis lead to the conclusion that ICC policy during the Bush years was not belligerent and was in fact ICC-friendly?  No, certainly not.  The Bush administration did remove their legal obligations to the ICC that existed as a result of President Clinton’s signature.  They did use Article 98 agreements to exempt US forces from ICC jurisdiction.  And they did approve the ASPA and the Nethercutt Amendment, among other undermining policies and statements. 

What this analysis does tell us about the Bush administration is two things—first, the belligerent attitude towards the ICC was not simply executive branch driven or primarily partisan.  During the first term of the administration there appeared to be wide spread political opposition to the Court and a desire to protect the sovereignty of the United States from this “politicized” institution.  Second, the Bush administration began to realize, some may say learn, that the ICC is not an evil institution and might actually be useful in the protection of American national interests.  It is here that the Obama administration enters the fray with many ICC advocates hoping for substantive change in policy towards the Court.  But it is important to remember that such change was already in the offing, so it is more about what the Obama administration would do with these small steps of acceptance as the audacity of hope takes control of the White House.


Eric K. Leonard currently holds the Henkel Family Endowed Chair in International Affairs at Shenandoah University.  He has written and presented extensively on the International Criminal Court including journal articles, encyclopedia entries, case studies and a book entitled, The Onset of Global Governance: International Relations Theory and the International Criminal Court.