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THE ATTITUDE OF THE UNITED STATES TOWARD INTERNATIONAL LAW
participation would draw the United States into another European conflict. Many
senators were also apprehensive about subjecting U.S. sovereignty to an international
institution. Britain deferred to the United States to determine the constitutional
structure of the new organization, and the U.S. joined the United Nations only after
getting assurances that it would have a veto in the Security Council to prevent the
United Nations from taking measures against it.
35
The veto was therefore a necessary
pre-condition for Senate ratification.
36
The United States was instrumental in the development of the international
criminal law in the post Second World War era through the establishment of
the Nuremberg and Tokyo Tribunals. It was President Roosevelt who insisted on
creating a court to try Nazi war criminals over the objection of Prime Minister
Churchill. The tribunal’s legacy was an important factor for the creation of the
two
ad hoc
tribunals and eventually the International Criminal Court (ICC).
The United States strongly supported the creation of the two
ad hoc
tribunals,
the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the
International Criminal Tribunal for Rwanda (ICTR).
37
The United States was also
an early proponent of the establishment of a permanent international criminal
court. However, the United States was one of the sole dissenters at the Rome
Conference, where the Statute of the International Criminal Court was signed.
38
The United States subsequently signed the Rome Statute reluctantly, on the eve
of President Clinton’s departure from office. However, President Clinton advised
his successor not to submit the treaty to the Senate for ratification.
39
Congress
subsequently passed the American Service Members Protection Act (ASPA) to
limit U.S. support and assistance to the ICC. It also authorized the president to
use force to free any American citizen in the custody of the ICC.
40
The United
States concluded Article 98 agreements with a number of countries to secure
assurance that they would not extradite American citizens to the ICC.
41
The Bush
administration opposed the ICC, and in 2002 President Bush sent a letter to U.N.
Secretary General Kofi Annan informing him of the United States’ intention not
to ratify the Rome Statute.
42
35
Francis O. Wilcox,
II. The YaltaVoting Formula,
39The American. Political Science Review, (Oct. 1945),
p. 953.
36
See
Leland Goodrich,
The United Nations Security Council, pp. 16-63, in
James Barros, ed., The United
nations, (1972).
37
Bartram S. Brown,
Unilateralism, Multilateralism, and the International Criminal Court, p. 326,
in
Stewart Patrick & Shepard Forman, eds. Multilateralism & U.S. Foreign Policy, (2002).
38
Georg Nolte,
The United States and the International Criminal Court,
in United States Hegemony and U.S
Foreign Policy,
supra
, note 24, p. 71-93.
39
William J. Clinton,
Statement on the Rome Treaty on the International Criminal Court,
Weekly Comp.
Pres. Doc. 4 (Dec. 31, 2000).
40
Pub. Law No. 107-206 § 2008, 116 Stat. 899 (2003); Bradley, p. 24.
41
See
International Criminal Court-Article 98 Agreements Research Guide,
http://www.law.georgetown.
edu/library/research/guides/articles_98.cfm.
42
See
Letter of John R. Bolton, Under Secretary of State for Arms Control and International Security, to