Documents reveal US-UK longstanding clash over the International Criminal Court

The United Kingdom resisted intense US efforts to weaken the International Criminal Court (ICC) before and after the Rome Statute entered into force, newly declassified British Cabinet Office documents reveal.

The release of the records from the British National Archives comes amid renewed concerns over the UK’s commitment to international criminal justice, following allegations that British officials threatened to defund the ICC and withdraw from the Rome Statute in response to the court’s decision to seek arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant for alleged war crimes and crimes against humanity in Palestine.

In early June 2002, the US sought to request a UN Security Council resolution exempting US personnel participating in UN peacekeeping missions from investigation or prosecution by the ICC.

The UK embassy in Washington reported that US officials were seeking British support, which they believed would be “key to securing sufficient backing from other Security Council members if the draft is put to a vote”.

The Foreign and Commonwealth Office (FCO) described the proposal as a “sensitive political issue”. In correspondence with Sir David Manning, Prime Minister Tony Blair’s foreign policy adviser, senior officials stressed that the UK was “committed to supporting the ICC under the legally binding EU Common Position”.

They also warned against granting blanket immunity to peacekeepers, noting “the indiscipline shown by some national contingents in the past”.

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While FCO legal advisers examined the legality of the US request, Mark Sedwill, the Foreign Secretary’s private secretary, cautioned that any concession “would likely provoke strong criticism from EU partners, states party to the Rome Statute, and civil society”.

British officials suggested that Washington explore Article 98 of the Rome Statute, which allows bilateral agreements limiting ICC jurisdiction. The US rejected the idea, arguing such agreements would not offer sufficient immunity as it “would not provide the protection beyond” the territories of participating states.

The Rome Statute, which established the ICC, was adopted on 17^th July 1998. The US voted against it in the Security Council, alongside Israel, Iran, Iraq, Libya, Sudan, and China. Although the Clinton administration signed the treaty on last day of its term on 31^st December 2000, the Bush administration formally withdrew the US signature in May 2002, shortly before the statute entered into force on 1^st July 2002.

The documents also reveal US efforts to dissuade Australia from ratifying the Rome Statute. A report from the UK High Commission in Canberra noted that Prime Minister John Howard was “wavering” following a visit to Washington, where senior US officials had pressed him against early ratification. UKHC warned that Howard “has described US arguments as very powerful”. It also noted there have been “differences of opinion” within the Australian Cabinet.

Although Australia had been a strong supporter of the ICC, FCO officials warned that failure to ratify would send “an unhelpful message” and could undermine the court’s credibility at its inception “not least because Australia would be seen to have acted under US pressure”.

Blair eventually wrote directly to Howard, arguing that delaying or refusing ratification would damage the ICC and discourage other states. He emphasised that the court would only act where national judicial systems were unwilling or unable to prosecute, adding that “responsible” democratic states that respect the rule of law “have nothing to fear” from the ICC.

Australia ratified the Rome Statute in July 2002.

At the UN, the US continued to push for a resolution granting its personnel immunity from ICC jurisdiction, citing fears of politically motivated prosecutions for its peacekeeping personnel. British officials worried that Washington might veto the renewal of NATO-led peacekeeping operations in Bosnia and Herzegovina if its demands were rejected.

However, while the FCO admitted that the UK has a “strong interest” in US involvement in UN peacekeeping, it warned that the US draft resolution “causes serious difficulties”, would seriously undermine the ICC at the moment of its creation and damage the UK’s credibility as an independent and principled Security Council member.

Manning, Blair’s Foreign Policy adviser, was told clearly that the British officials “have already tried to persuade the Americans that their concerns were “unfounded” since the ICC should not intervene where national jurisdictions were able and willing to conduct their own investigations. But Washington “refused to be convinced that they have nothing to fear”.

Attorney General Peter Goldsmith cautioned that any UK-backed measures must comply with EU obligations not to undermine the ICC. British legal advisers ultimately rejected a revised US draft, warning it would override obligations not only under the ICC, but also under other international conventions, including those on torture and genocide to which the US are a party.

Christopher Meyer, then UK ambassador to the US, phoned Manning advising to take a “very firm” stance with the Americans, describing their behavior as “indefensible over the ICC”.  Meyer also argued that resisting US pressure would ultimately benefit the bilateral relationship.

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Condoleezza Rice, then US National Security Adviser, warned British officials that President George W. Bush faced intense domestic political pressure over the immunity of the US personnel, noting that Congress was even more hostile to the ICC than the administration itself. In a conversation with Manning, She recounted comments in a Congress debate suggesting “the possible need to storm The Hague”, (the headquarters of the ICC) a remark met with “bemusement” by Manning.

The US Department of Defense also stressed to British officials that the immunity of US personnel and officials was “front and centre of mind” for Donald Rumsfeld, then the US Secretary of Defense, and that it “enjoyed  profile and priority within the Pentagon”.

While the UK adviser expressed his government’s understanding of the “head of political steam” in Washington, he stressed “the same was true in the UK” as the Parliamentary opinion “was strongly behind the (IC) Court”. He promised the UK Prime Minister and Foreign Secretary were keen to find a “satisfactory compromise”.

A compromise was eventually reached: immunity would apply only to personnel from states not party to the ICC, and without asserting exclusive national jurisdiction. In 2002, the Security Council adopted a one-year immunity resolution, later extended in 2003.

Following the Abu Ghraib prisoner abuse scandal in 2004, the US sought another extension. The UK and other EU members opposed the move, and UN Secretary-General Kofi Annan publicly warned that the resolution was legally dubious and unnecessary. Unable to secure sufficient votes, the US withdrew its proposal.

The documents also show that in April 2004 the UK rejected a Croatian request to decouple EU accession talks from cooperation with the International Criminal Justice system, particularly the arrest of General Ante Gotovina, who was indicted by the court for war crimes and crimes against humanity during a military operation against the Serbs in Croatia in 1995.

Blair told Croatian Prime Minister Ivica Račan that resolving the Gotovina case by extraditing him to the International Criminal Tribunal for the former Yugoslavia (ICTY) was essential to Croatia’s European aspirations.

The historical record contrasts sharply with recent allegations made by ICC Chief Prosecutor Karim Khan, who claimed in December that the UK government threatened to defund the court and withdraw from the Rome Statute if arrest warrants for Netanyahu and Gallant proceeded.

According to reports, former Foreign Secretary David Cameron made the alleged threats during a heated phone call with Khan in April 2024, following the prosecutor’s announcement that he was seeking warrants for Israeli and Hamas leaders.

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