The United States Anti-involvement with the ICC

Scotti ShaferDecember 5, 2003

Edge PaperBruce Lusignan

The United States Anti-involvement with the ICC

Introduction to the ICC

“In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you...to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate thus rights will be punished.”1

Kofi Annan, UN Secretary-General

The Twentieth Century was the bloodiest in record history

with over 174 million people killed in mass murders and

genocides; more often then not, victims’ cries went unanswered.2

Following World War II the United Nations realized the need to

take action in ending impunity from these horrible crimes against

humanity. With one of the primary objectives of the United

1 Establishment of an International Criminal Court – Overview. November 20, 2003. http://www.un.org/law/icc/general/overview.htm 2 www.USAforICC.org

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Nations being to secure “universal respect for human rights and

fundamental freedoms of individuals throughout the world,”3 the

United Nations recognized the need to establish an international

criminal court. In 1948, at the Convention on the Prevention and

Punishment of the Crime of Genocide, the General Assembly stated,

“Recognizing that at all periods of history genocide has

inflicted great losses on humanity; and being convinced that, in

order to liberate mankind from such an odious scourge,

international cooperation is required.”4 However, it was not

until 1994 that the International Law Commission, appointed by

the General Assembly, completed a draft statute for an

international criminal court. Finally, in July of 1998 the

international community met in Rome to finalize the draft

statute, which is now referred to as the Rome Statute of the ICC.

The primary goals of the International Criminal Court are to

achieve justice for all, to end impunity, to help end conflicts,

to remedy the deficiencies of ad hoc tribunals, to take over when

national criminal justice institutions are unwilling or unable to

act, and to deter future war criminals.

“For nearly half a century – almost as long as the United Nations has been in existence – the General Assembly has recognized the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought… that the horrors of the Second World War – the camps, the cruelty, the exterminations, the Holocaust – could never happen

3 ibid.4 ibid.

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again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time – this decade even – has shown us that man’s capacity for evil knows no limits. Genocide… is now a word of our time, too, a heinous reality that calls for a historic response.”5

Kofi Annan, UN Secretary-General

Statement of Purpose

This paper will clearly lay out the Unites States concerns

with the International Criminal Court and will attempt to resolve

them. I will then argue that no country has the right to be

above international law, including the United States and that it

is in the best interest of America and the world community for

the united states to join the efforts of the ICC and sign the

Rome Statute.

Overview of the United States Position

Is United States foreign policy more concerned about what is

in the best interest of the United States or about what is in the

best interest of our world community? The United Nations has

created an International Criminal Court to oversee the

preservation of world peace. The ICC’s specific agenda is “to

prosecute the most serious breaches of global humanitarian and

human rights law: crimes against humanity, war crimes and

5 ibid.

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genocide.”6 Though the Clinton administration supported the

efforts of the ICC and signed the Rome Treaty on December 31,

2002, the Bush administration has withdrawn the United States

from the ICC by unsigning the Rome Treaty on May 6, 2002. In

deciding not to participate, the United States has cited the

following reasons: the ICC would undermine America’s ability to

defend its military and participate in peacekeeping activities,

fear that a world court would be used as a political weapon,

concern that the ICC has not yet “defined crime of

‘aggression,’”7 a belief that the ICC “is an institution of

unchecked power,”8 and that the ICC would take away from domestic

judicial systems. In addition, an unstated concern of the United

States is that the ICC provides no benefit to the United States,

while at the same time threatening our sovereignty. Although the

United States puts forth some valid objections and concerns, no

country ought to be above international law - including the

United States.

6 Ushani, Agalawatta. “Politics: U.N. Members Say World Court No Threat To U.S.” Oct. 25, 2002. LexisNexis. Nov. 2, 2003. http://web.lexis-nexis.com/universe/document? 7 Zagaris, Bruce. “U.S. Announces that It Will Unsign and Take Action Against ICC.” July 2002. LexisNexis. November 3, 2003. http://web.lexis-nexis.com/universe/document? 8 Stated by Mark Grosman

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A Closer Look at the United States and the ICC:Seeing Both Sides

The U.S. fears that the ICC creates a political weapon

against the United States, especially for developing nations who

disapprove of United States policies. Since the United States is

the world’s only remaining superpower, it fears that by becoming

a member of the ICC, the United States would lose power. By

joining the ICC, the United States fears that American leaders

could be subject to trial by the ICC. The Undersecretary of

State, John Bolton stated, “The issue is one that directly

affects individual Americans and quite possibly the highest

decision-makers of our country, who could be hauled before this

court and be subject to criminal penalties.”

Along with this fear, the Bush Administration is concerned

that the ICC is full of unchecked powers. Marc Grossman, Under

Secretary for Political Affairs, explains that the Rome Treaty

“places enormous unchecked power in the hands of the ICC

prosecutor and judges, especially since the self-initiating

prosecutor is answerable to no state or institution other than

the Court itself.” The U.S. fears that by giving the ICC this

much power it is going to weaken the power of the U.N. Security

Council and of the United States government.

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Since the United States is such a powerful country, it is

understandable that it is concerned about politically motivated

ICC prosecutions; however, there have been adequate safeguards

against politically motivated accusations built into the Rome

Statute, “including thorough extensive United States input into

devising checks and balances, precisely in order to preclude

politically-motivated prosecutions.”9 One example of a safeguard

in the Rome Statute is in article 8 where the court focuses on

war crimes “committed as part of a plan or policy or as part of a

large-scale commission of such crimes.” It is articles like

these that offer the United States protection. Deborah Chatsis,

a member of the United Nations said, “The Rome Statute is a

carefully balanced instrument which fully respects the

sovereignty of law-abiding states willing and able to fulfill

their existing legal obligations to investigate and, where

necessary, prosecute those who commit the most heinous crimes.”

As long as the U.S. maintains the high law-abiding road they do

not have to fear prosecution from the ICC.

The United States also fears that the ICC will infringe on

the sovereignty of our nation by failing to promote domestic

judicial systems. The United States does not disagree with the

ICC in whether a person or group of people who commit serious

crimes in regard to the international community should be

9 Heinbecker, Paul. “U.S. Peacekeepers Not Above the Law.” August 2002. LexisNexis. November 3, 2003. http://web.lexis-nexis.com/universe/document?

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punished. The U.S. believes that an International Court could

and should develop a global strengthening of justice and rule of

law; however, the United States believes it is primarily the job

of the individual countries to ensure justice and secondarily the

responsibility of an international institution. Grossman stated,

“We [The United States] believe that the best way to combat

theses serious offenses is to build domestic judicial systems,

strengthen political will and promote human freedom.” This

individualist stance taken by the U.S. is primarily based on the

threat that the overarching powers of the ICC would have on

America. The United States fears that less powerful countries

are going to use the ICC to “proactively balance the economic,

military and diplomatic power of the United States.”10 By

signing the Rome Statute, the United States will be giving the

ICC final authority on judicial matters. American policy makers

fear this would not only take power away from the American

Supreme Court but also infringe upon the rights that every

American is guaranteed in the U.S. Constitution.

In contrast to the United States concerns, the ICC does not

take precedent over individual countries unless serous matters

were left ignored. The Rome Statute of the ICC states that it

places the primary job of investigation and prosecution with

domestic jurisdictions. Therefore, the ICC does not take the

10 Davenport, David. “Commentary: New Threat to U.S. Sovereignty. United Press International.” August, 2003. Lexis Nexis. http://web.lexis-nexis.com/universe/document?

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place of domestic jurisdiction. “The ICC will not replace

national courts, but will be complementary to national criminal

jurisdictions. The Court will only investigate and prosecute if a

State is unwilling or unable to genuinely prosecute.”11 In other

words, the ICC may only exercise jurisdiction where impunity

would otherwise result. This is a procedural safeguard that is

built into the ICC. Also under the ICC, the United States would

still hold their own troops accountable for their actions.

Because of this accountability clause, if the United States

feared having an American national tried by the ICC, then the

United States could investigate or try the suspect. Along the

same lines, if a state or prosecutor wants to refer a case to the

ICC regarding an American, they must first notify the United

States. The United States then has the decision to undertake its

own investigation, and the ICC has no jurisdiction to step in

unless the prosecutor proved the proceeding to be a sham. This

accountability clause guaranties the U.S. Supreme Court’s primary

jurisdiction over American citizens. While the ICC gives the

U.S. the primary responsibility of investigating and trying

Americans, the ICC is still a stable and constitutional

institution. In fact, the United States was heavily involved in

the negotiations of the Rome Statute, and consequentially, the

Statute almost mirrors the United States’ Constitution. The

11 The Roman Statute of the ICC: Jurisdiction. November 3, 2003. http://www.icc.int/en/ICC_jurisdiction.html

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Roman Statute “provides individuals accused of heinous crimes, as

well as victims, nearly all of the protections offered by the

U.S. Constitution.”12 Below is a chart comparing the United

States’ Constitution to the rules of the International Criminal

Court:13

ROME TREATY U.S. CONSTITUTION

Presumption of Innocence"Everyone shall be presumed to be innocent until proven guilty before the Court . . ."(Art. 66)

"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."Coffin v. United States, 156 U.S. 432, 453 (1895)

Speedy and Public Trial" . . .the accused shall be entitled to a public hearing . . .""the accused shall be entitled . . . to be tried without undue delay; . . ."(Arts. 67(1), 67(1)(c))

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, . . ."(Amendment VI)

Assistance of Counsel"…the accused shall be entitled…to communicate freely with counsel of accused's choosing…""…the accused shall be entitled… to have legal assistance assigned by the Court where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;…"(Arts. 67(1)(b), (d))

"In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense."(Amendment VI)

Right to Remain Silent"…the accused shall be entitled…not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;…"(Art. 67(1)(g))

"No person…shall be compelled in any criminal case to be a witness against himself…"(Amendment V)

12 www.USAforICC.org 13 ibid.

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Privilege Against Self-Incrimination"…the accused shall be entitled…not to be compelled to testify or to confess guilt…"(Arts. 54(1)(a), 67(1)(g))

"No person…shall be compelled in any criminal case to be a witness against himself…"(Amendment V)

Right to Written Statement of Charges"…the person shall be provided with a copy of the…charges…"(Art. 61(3))

"In all criminal prosecutions, the accused shall enjoy the right…to be informed of the nature and cause of the accusation;…"(Amendment VI)

Right to Examine or Have Examined Adverse Witnesses"…the accused shall be entitled…to examine, or to have examined…the witnesses against him or her…"(Art. 67(1)(e))

"In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him;…"(Amendment VI)

Right to Compulsory Process to Obtain Witnesses"…the accused shall be entitled…to obtain the attendance and examination of witnesses on his or her behalf…"(Art. 67(1)(e))

"In all criminal prosecutions, the accused shall enjoy the right…to have compulsory process for obtaining witnesses in his favor,…"(Amendment VI)

Prohibition against Ex Post Facto Crimes"A person shall not be criminally responsible…unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court."(Art. 22)

"No Bill of Attainder of ex post facto law shall be passed."(Art. I, sec. 9, cl. 3)

Protection against Double Jeopardy"No person who has been tried by another court…shall be tried by the Court with respect to the same conduct…"(Art. 20)

"…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;…"(Amendment V)

Freedom from Warrantless Arrest and Searches"…the Pre-Trial Chamber may…issue…warrants as may be required…""…if it [the Pre-Trial Chamber] is satisfied that there are reasonable grounds to believe that the person has committed a crime…and the arrest of the person appears necessary…"(Arts. 57 bis (3), (58))

"[N]o Warrants shall issue, but upon probable cause…"(Amendment IV)

Right to be Present at Trial"The accused shall be present during the trial."(Art. 63)

"one of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every

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stage of his trial."Illinois v. Allen, 397 U.S. 337, 338 (1970)(Citing Lewis v. United States, 146 U.S. 370 (1892))

Exclusion of Illegally Obtained Evidence"Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible…"(Art. 69(7))

When evidence is obtained in violation of the Fourth Amendment, the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure.Illinois v. Krull, 480 U.S. 340, 347 (1987)(Citing Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643 (1961))

Prohibition against Trials in absentia"The accused shall be present during the trial."(Art. 63)

When defendant knowingly absents himself from court during trial, court may "proceed with trial in like manner and with like effect as if he were present."Diaz v. United States, 223 U.S. 442, 455 (1912)The language, history, and logic of Rule 43 support a straightforward interpretation that prohibits the trial in absentia of a defendant who is not present at the beginning of trial.Crosby v. United States, 506 U.S. 255, 262 (1993)

This chart clearly shows the similarities between the U.S.

Constitution and the Rome Statute. The only right guaranteed by

the U.S. Constitution that is not guaranteed by the Rome Statute

is the right to a trial by jury. This right is missing from the

Rome Statute due to the impracticality of impaneling a jury to

try international cases. In view of this difference one must

keep in mind that “Far fewer due process protections are

guaranteed to American citizens accused of crimes abroad. They

are subject to trial in foreign justice systems, many of which do

not provide for a jury trial or other valued due process

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protections.”14 Also, “The United States has signed a number of

extradition treaties that specifically allow Americans to be

tried abroad in foreign courts without jury trials.”15 The Rome

Statute does not provide trials by jury; however, this, while it

may seem extreme, goes along with many of America’s current

foreign policy agreement.

The United States is also unwilling to join the ICC because

of its jurisdiction over crimes of aggression. The Court’s

jurisdiction over crimes of aggression is clearly stated in

Article 5 of the Rome Statute. It states, “The jurisdiction of

the Court shall be limited to the most serious crimes of concern

to the international community as a whole. The Court has

jurisdiction in accordance with this Statute with respect to the

following crimes: the crime of genocide, crimes against humanity,

war crimes, and the crime of aggression.” However, the ICC “will

not exercise such jurisdiction until the crime [of aggression]

has been further defined and conditions under which the Court

will exercise its jurisdiction have been agreed upon.”16 The

United States does not feel that the ICC should be in a position

to have jurisdiction over aggression because it gives them the

power to investigate and prosecute the “still to be defined crime

14 ibid.15 ibid.16 The Roman Statute of the ICC: Jurisdiction. November 3, 2003. http://www.icc.int/en/ICC_jurisdiction.html

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of ‘aggression.’”17 Since there is not yet universal definition

for the crime of aggression, the U.S. does not feel that the ICC

should be given the power to define this crime and then become

the prosecutor of crimes they have defined.

In deciding not to join the ICC, the United States is not

removing itself from ICC jurisdiction, but is isolating itself

from the rest of the world and may well be starting the decay of

their ability to shape world policy. ICC jurisdiction can be

given either by the territorial State (the State where the crime

took place), or the State of nationality. So whether or not the

U.S. signs the ICC, U.S. nationals could still be subject to ICC

jurisdiction. Thus, if an American national commits a war crime

on a territorial state, the case could be referred to the ICC

despite the fact the United States is not a member of the ICC.

This potential action may be the single most convincing reason

for the United States to join the ICC now. The unsigning of the

Rome Treaty does not guaranty the Unites States sovereignty; it

simply gives the rest of the world a negative image of our

country. For example:

No country has ever ‘unsigned’ a treaty in the history of the United Nations.

The unsigning has strained US relations with allies around the world.

17 Zagaris, Bruce. “U.S. Announces that It Will Unsign and Take Action Against ICC.” July 2002. LexisNexis. November 3, 2003. http://web.lexis-nexis.com/universe/document?

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Bush’s actions are viewed by European countries as an isolationist move on behalf of the United States, breaking away from its policy of human rights concerns.

This decision establishes a bad precedence, and would allow countries that have yet to ratify treaties that are important to United States policy to ‘unsign’ themselves.

Unsigning the treaty poses problems for the validity of future United States presidents.18

Contrastingly, by signing the Rome Treaty the United States would

have a say in important future decisions, such as the selection

of the 18 judges who will make up the ICC, and would allow the

U.S. a say in the interpretation and decision making on the crime

of “aggression.”

“The only way the US can protect its interests at the Court is by actively participating in the Assembly of States Parties so as to shape a strong and fair institution that will protect US interests. The US can have this kind of positive influence, as is shown by it past work on the Court. Throughout its strenuous participation in all the years of ICC negotiations, the US made extensive contributions to the Court’s present form. These include provisions giving strong deference to national courts, the inclusion of almost all of the US Bill of Rights, and definitions of crimes in complete conformity with the US Uniform Code of Military Justice. If the US continues to work actively with the Court as an observer, player and referee, it will have the position and authority to guard itself against perceived threats. This will be impossible if it undermines its influence and credibility through active hostility or arbitrary refusals to cooperate with the ICC.”19

18 www.USAforICC.org19 ibid.

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On top of this, by joining the ICC the United States would be

making a strong symbolic stance, indicating to the rest of the

world that America does care about the rule of law everywhere and

will under no circumstances allow horrible crimes against

humanity. Former president Bill Clinton stated, “[Signing the

Rome Treaty will] reaffirm our strong support for international

accountability and for bringing to justice perpetrators of

genocide, war crimes, and crimes against humanity.”20 Since the

United States has no choice but to be under the jurisdiction of

the ICC, it seems only logical that the U.S. should join and

become strongly involved in efforts to shape and form its

foundation to their own benefit.

Currently, the United States is undermining the efforts of

the ICC by making bilateral deals with other countries that will

exempt the United States from the Rome Statute of the ICC.

Article 98 of the Rome Statute provides immunity to both military

and civilian personnel by not allowing countries to surrender

individuals to the court for acts consistent with obligations

under another international treaty. The United States is

manipulating Article 98 to protect treaties they are making today

to evade the ICC. “The United States is interpreting Article

98(2) as allowing them to strong-arm other countries into

exempting the U.S. from the International Criminal Court’s

20 ibid.

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jurisdiction with threats of withholding military and economic

assistance,” states Heather Hamilton, the director of bilateral

agreements. Hamilton added that Article 98 was “in no way

intended to provide immunity for the nationals of one country

from international justice.” In their manipulation of Article 98

and by deciding not to sign the Rome Statute, the United States

is sending a message that one has to believe; the message that we

are above the law.

On top of this, U.S. policy makers have failed to listen to

their own citizen’s views toward the International Criminal

Court. “Within the Washington policymaking community, there is a

widespread assumption that the American public is very wary of

international cooperation and of the international institutions

that were built for that purpose,”21 such as the ICC. A study

taken by Market Strategies and Greenberg Research in April of

1993 shows that the majority of the American public is in support

of the ICC. Below is an example of a question from the study:22

83 Question: Some people think that the U.N. (United Nations) Charter should be changed so that top leaders, such as heads of state in different countries, could be arrested by the U.N. for certain serious crimes and then tried by an International Criminal Court, and if judged guilty would be punished. I am going to read you some things that leaders have done and ask if you approve or disapprove changing the U.N. Charter to permit the U.N., upon due process of law, to bring leaders accused of these things to stand trial by an International Criminal Court....[below]..Do you approve or disapprove bringing that leader to trial in an International Court? (If approve/disapprove, ask:) Would that be strongly or somewhat?

21 http://www.pipa.org/OnlineReports/Globalization/4.html 22 http://www.pipa.org/OnlineReports/Globalization/notes/allnotes_.html

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A leader who does serious damage to the global environment.

Strongly approve 68%

Somewhat approve 18

Somewhat disapprove 6

Strongly disapprove 6

Don't know 2

A leader who invades and occupies a neighboring country.

Strongly approve 69%

Somewhat approve 17

Somewhat disapprove 7

Strongly disapprove 6

Don't know 2

A leader who violates human rights, including making war on ethnic and other groups in that leader's country.

Strongly approve 71%

Somewhat approve 16

Somewhat disapprove 5

Strongly disapprove 7

Don't know 1

A leader who prevents a democratic election from taking place.

Strongly approve44%

Somewhat approve 24

Somewhat disapprove 18

Strongly disapprove 12

18

Don't know 2

A leader who acquires nuclear weapons.

Strongly approve 50%

Somewhat approve 17

Somewhat disapprove 17

Strongly disapprove 12

Don't know 4

This study along with many other similar ones is clear evidence

of the publics pro-stance toward the ICC. Another study taken in

March 2000 by the Program for International Policy Attitudes came

out with the same results.

19

All in all, the Bush Administration and Congress need to take

into consideration the views of their citizens with regard to the

ICC. As a democratic nation the actions of the United States

should be up to the people and not a small group of policy

makers.

Conclusion

The world is reeling from a century stained by unimaginable

carnage to humanity. Our parents and grandparents suffered from

the evils of Hitler and the Holocaust, they have been horrified

by the Rwandan genocide, the racial purification in former

Yugoslavia, and Pol Pot’s slaughter of millions of Cambodians.

Now a new generation has been traumatized by the recent terrorist

attacks at ground zero. From witnessing such atrocities, we have

learned a fundamental lesson; impunity from such grievous crimes

must end. It is these horrific crimes against humanity that

created a world in need of an international criminal court.

Nations must unite to send the strongest of statements against

impunity for the most serious crimes. The ICC “is an essential

contribution to the preservation of peace and the strengthening

of international security.”23 It is the humanitarian duty of the

23 Margrethe, Ellen. “U.S. Peacekeepers Integral and Prosecutable.” August 2002. LexisNexis. November 3, 2002. http://web.lexis-nexis.com/universe/document?

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United States to join the rest of the world in this struggle for

peace, justice, and universal human rights.

21

Work Cited

Establishment of an International Criminal Court – Overview. http://www.un.org/law/icc/general/overview.htm

USA for the International Criminal Court. December 1, 2003. http://www.USAforICC.org

Ushani, Agalawatta. “Politics: U.N. Members Say World Court No Threat To U.S.” Oct. 25, 2002. LexisNexis. November 2, 2003. http://web.lexis-nexis.com/universe/document?

Zagaris, Bruce. “U.S. Announces that It Will Unsign and Take Action Against ICC.” July 2002. LexisNexis. November 3, 2003. http://web.lexis-nexis.com/universe/document?

Heinbecker, Paul. “U.S. Peacekeepers Not Above the Law.” August 2002. LexisNexis. November 3, 2003. http://web.lexis-nexis.com/universe/document?

Davenport, David. “Commentary: New Threat to U.S. Sovereignty. United Press International.” August 2003. Lexis Nexis. December 3, 2003. http://web.lexis-nexis.com/universe/document?

The Roman Statute of the ICC: Jurisdiction. November 3, 2002. Internet. http://www.icc.int/en/ICC_jurisdiction.html

PIPA. Americas on Globalization: A Study of US Public Attitudes. International Cooperation. March 28, 2000. Internet. December 4, 2003. http://www.pipa.org/OnlineReports/Globalization/4.html

PIPA. Americans on Globalization. All Notes. Question 83. December 2, 2003. Internet. http://www.pipa.org/OnlineReports/Globalization/notes/allnotes_.html

Margrethe, Ellen. “U.S. Peacekeepers Integral and Prosecutable.” August 2002. LexisNexis. November 3, 2002. http://web.lexis-nexis.com/universe/document?

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