The Clinton Administration signed the Rome Statute in 2000, but did not submit it for Senate ratification. The George W. Bush Administration, the U.S. administration at the time of the ICC’s founding, stated that it would not join the ICC. The Obama Administration subsequently re-established a working relationship with the Court as an observer.
On 17 July 1998, the Rome Statute was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were Iraq, Israel, Libya, China, Qatar, Yemen, and the United States. India abstained.
U.S. President Bill Clinton originally signed the Rome Statute in 2000. Signature of a treaty provides a preliminary endorsement, but a treaty that is signed but not ratified is not legally binding. Signing does not create a binding legal obligation, but does demonstrate the State’s intention to examine the treaty domestically and consider ratifying it, and it obliges the State to refrain from acts that would counter or undermine the treaty’s objective and purpose.
Clinton stated that he would not submit it to the Senate for advice and consent for ratification until the U.S. government had a chance to assess the functioning of the Court.
After the Rome Statute reached the requisite 60 ratifications in 2002, President George W. Bush‘s Administration sent a note to the U.N. Secretary-General on May 6, 2002. The note informed the Secretary-General that the U.S. no longer intend to ratify the Rome Statute, and that it did not recognize any obligation toward the Rome Statute.
The Obama Administration stated its intent to cooperate with the ICC. Cooperation with the Assembly of States Parties of the ICC was a key component of the Obama Administration’s first National Security Strategy. On November 16, 2009, the Ambassador-at-Large for War Crimes Issues, Stephen Rapp, announced that he would lead the U.S. delegation to the ICC’s annual meeting of the Assembly of States Parties in The Hague. He told journalists “Our government has now made the decision that Americans will return to engagement at the ICC.” The U.S. participated as an observer. This was the first time the U.S. had a delegation attend the ICC’s annual meeting of the Assembly.
In 2002, the U.S. Congress passed the American Service-Members’ Protection Act (ASPA), which contained a number of provisions, including authorization of the President to “use all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained by, on behalf of, or at the request of the International Criminal Court”
United States participation in the ICC treaty regime would also be unconstitutional because it would allow the trial of American citizens for crimes committed on American soil, which are otherwise entirely within the judicial power of the United States. The Supreme Court has long held that only the courts of the United States, as established under the Constitution, can try such offences.
Bosnia and Herzegovina, Colombia, France, Gabon, Germany, Lebanon, Nigeria, Portugal, South Africa, United Kingdom of Great Britain and Northern Ireland and United States of America drafted UNSC resolution 1970 that recalled Article 16 of the Rome Statute under which it is mentioned that ‘no investigation or prosecution may be commenced or proceeded with by the International Criminal Court for a period of 12 months after a Security Council request to that effect’ and further established a mechanism for ICC Referral, as follows:
The ICC referral outcome:
4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;
5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;
6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;
7. Invites the Prosecutor to address the Security Council within two months of the adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;
8. Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily;
While it is to be noted that neither USA not Libya are State parties to the Rome Statute. The legal doctrine of pacta sunt servanda provides that all agreements entered into must be kept but with an exception of ‘command responsibility’ or the Yamashita standard which allows national laws and courts the primary in cases of arbitration and criminal offences. And as for USA is concerned, the non party status prevents it from being held accountable to the Rome Statute but it does not however disallow USA from using its provisions.
In March 2005, the United States agreed to allow the U.N. Security Council to ask the court to investigate the genocide in Darfur by abstaining on Security Council Resolution 1593 and later blocked efforts by China to defer the investigation. In March 2006, the United States encouraged the ICC to use its facilities for the trial of Charles Taylor by the Special Court for Sierra Leone, as well.
All instances considered prima facie(in the first appearance) are based ex post facto(in light of subsequent events) are ipso facto(by that very fact or act) within the domestic jurisdiction of the State and its courts provided that the ratio decidendi (reason for decision) is constitutional; however, ei incumbit probatio, qui dicit non qui negat (the burden of proof lies with the person making the claim not with the accused) and all such cases are sue generis (unique in its own manner) and must be treated that way.
In the above table, the six accused of crimes were sanctioned by the Sanctions Committee pursuant to the UNSC resolution 1970(further modified according to paragraph 4(a) of resolution 2174 (2014); paragraph 11(a) of resolution 2213 (2015)), first time since October 2014 when 22 listings were made under the Sanctions Committee including the Libyan Investment Authority and the Libyan Africa Investment Portfolio. The ICC has however not been involved since the modus operandi of ICC does not fit the trial of these accused. This is one such aspect that needs to be addressed by the ICC if it should act as the de facto legal alternative for the trial of such criminals.