U.S. Opposition to the International Criminal Court

Vol. 30 No. 1

By

Jennifer Trahan and Andrew Egan are, respectively, counsel and consultant with the International Justice Program, Human Rights Watch, in New York City. This article represents the position of Human Rights Watch.

The International Criminal Court (ICC) is a new, permanent court established by states through a multilateral agreement, the Rome Statute, which entered into force on July 1, 2002. The ICC, which will have jurisdiction over genocide, crimes against humanity, and war crimes, promises to be the most important international human rights institution since the United Nations. As of November 25, 2002, eighty-four states have ratified the Rome Statute. Seven states, including the United States, voted against the ICC Statute when it was overwhelmingly adopted in 1998 and have yet to become full members.

The ICC represents a commitment to ensure that when the worst international crimes are committed, the perpetrators will be prosecuted even if the national justice system is unable or unwilling to do so. It is designed to end impunity for the Pol Pots, Idi Amins, and Saddam Husseins of the future. The ICC will exercise jurisdiction if (a) the state of which the defendant is a national has ratified the Rome Statute, or (b) the crimes occurred in the territory of such a ratifying state, or (c) the UN Security Council refers the matter. The ICC’s jurisdiction is intended to be “complementary” to national courts, meaning that the ICC cannot exercise jurisdiction if the state with jurisdiction conducts a genuine investigation or prosecution—not a “show trial.”

U.S. Opposition to the Court

The U.S. opposition to the ICC ignores the treaty’s numerous safeguards. The major U.S. objections, and arguments against them, include the following:

1. The purported concern with frivolous and politically motivated investigations and prosecutions. The ICC crimes are rigorously defined, in ways corresponding closely to the U.S. Uniform Code of Military Justice.

If a case does not commence through Security Council referral or a state complaint, the prosecutor cannot begin an investigation without authorization from a pretrial chamber of judges. Regardless of how a case is initiated, if a U.S. citizen were accused, the court would be obliged to stand down for at least six months while the United States pursued its own investigation and, if appropriate, prosecution. Thereafter the judges would be able to authorize investigations only if they decided that the U.S. judicial system was willfully obstructing justice—a very high threshold. Any indictment would also require confirmation by a pretrial chamber of judges.

Finally, the UN Security Council can adopt a resolution suspending the ICC from investigating or prosecuting any case if the Security Council is acting under its Chapter VII powers. It is difficult to imagine a majority of the Council allowing a frivolous, politically biased case against a U.S. citizen in this context.

2. The fallacious argument that the court violates due process. The ICC has one of the most extensive lists of due process guarantees ever written. Protections include the presumption of innocence, right to counsel, right to present evidence and confront witnesses, right to remain silent, right to be present at trial, right to have charges proved beyond a reasonable doubt, and protection against double jeopardy.

3. The fallacious argument that the ICC threatens sovereignty because it claims jurisdiction over citizens of countries that have not ratified its treaty. U.S. citizens accused of crimes overseas already are subject to foreign jurisdiction. Countries that ratify the Rome Statute are simply exercising their sovereign right to allow an international court to prosecute certain crimes committed on their territory rather than conducting such trials themselves.

The Bush administration, which has rejected the court’s legitimacy outright, has engaged in a widespread campaign to undermine the ICC. In July 2002 the administration insisted on a Security Council resolution exempting from ICC jurisdiction citizens of non-state parties participating in UN peacekeeping missions. The administration is also pressuring states around the world to approve bilateral agreements prohibiting the surrender of Americans to the ICC. These agreements would create a two-tiered system of justice: one for U.S. citizens, and one for the rest of the world. Congress also has assisted the Bush administration by passing an anti-ICC law, that, among other things, authorizes the president to “use all means necessary and appropriate,” which would include the use of force, to free U.S. (and allied) personnel detained or imprisoned by the ICC. The law is called the American Servicemembers’ Protection Act; others have dubbed it the “Hague Invasion Act” because the court will be seated in The Hague.

Conclusion

U.S. efforts to undermine the ICC are profoundly disturbing. The ICC is an attempt to stem the commission of heinous crimes, especially in the context of armed conflict, where accountability is virtually nonexistent. It is unconscionable for the United States to actively undermine the court before it has had an opportunity to prove itself a truly independent and impartial arbiter of international justice. The Bush administration’s broader unilateralist agenda, evident in its anti-ICC policy, threatens to significantly weaken the rule of law.

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