The idea of establishing an international court to prosecute serious international crimes--war crimes, crimes against humanity, and genocide--has long held a special place in the hearts of human rights activists and those hoping to hold perpetrators of terrible crimes to account. In 1998, that idea became reality when the Rome Statute of the International Criminal Court was adopted at a diplomatic conference convened by the U.N. General Assembly. Formally established in 2002, the International Criminal Court (ICC) was created to prosecute war crimes, crimes against humanity, genocide, and the as yet undefined crime of aggression. Regrettably, a number of concerns remain about how ratification of the Rome Statute would affect U.S. sovereignty and what consequences ICC action could have on politically precarious situations around the world.
Past U.S. Administrations concluded that the Rome Statute created a seriously flawed institution that lacks prudent safeguards against political manipulation, possesses sweeping authority without accountability to the U.N. Security Council, and violates national sovereignty by claiming jurisdiction over the nationals and military personnel of non-party states in some circumstances. These concerns led President Bill Clinton to urge President George W. Bush not to submit the treaty to the Senate. After extensive efforts to change the statute to address key U.S. concerns failed, President Bush felt it necessary to "un-sign" the Rome Statute by formally notifying the U.N. Secretary-General that the U.S. did not intend to ratify the treaty and was no longer bound under international law to avoid actions that would run counter to the intent and purpose of the treaty. Subsequently, the U.S. took a number of steps to protect its military personnel, officials, and nationals from ICC claims of jurisdiction.
Limited cooperation with the ICC was pursued by the Bush Administration, notably in the case of Darfur. However, the Obama Administration has recently expressed a willingness to expand its cooperation with the ICC. Secretary of State Hillary Clinton stated that it was "a great regret but it is a fact that we are not yet a signatory [to the Rome Statute]. But we have supported the court and continue to do so."
What the U.S. Should Do. Increasing U.S. ties to the ICC before fully addressing its serious flaws would be premature. To protect U.S. military personnel and other U.S. persons and to encourage other member states to support reforms to the Rome Statute that would address U.S. concerns, the Obama Administration should:
- Not re-sign the Rome Statute. The Obama Administration is under pressure to "re-sign" the Rome Statute, reversing the Bush Administration's decision. With "aggression," a key crime within the ICC's jurisdiction, still undefined and with long-standing U.S. objections still not addressed, this would be tantamount to signing a blank check. The Obama Administration should use the possibility of U.S. membership as an incentive to encourage the state parties to remedy the key flaws in the Rome Statute.
- Maintain existing Article 98 agreements. The U.S. is militarily engaged in Iraq and Afghanistan, has troops stationed and in transit around the globe, and in all likelihood will be involved in global anti-terror activities for many years. Now is not the time to weaken the legal protections enjoyed by U.S. military personnel and officials deployed in foreign nations. Even if the U.S. joins the ICC at some future date, the U.S. should not terminate the Article 98 agreements because they are consistent with the Rome Statute and would serve as a useful protection if the court overreaches.
- Establish clear objectives for changes to the Rome Statute for the 2010 review conference that would help to reduce current and potential problems posed by the ICC. In 2010, the Assembly of States Parties is scheduled to hold the first review conference to consider amendments to the Rome Statute. Defining the crime of aggression is a key issue on the agenda. The U.S. should either seek an explicit, narrow definition to prevent politicization of this crime or, even better, seek to excise the crime from the Rome Statute entirely, on the grounds that it infringes on the Security Council's authority. Moreover, the conference should reverse the statute's violation of customary international law by explicitly limiting the ICC's jurisdiction only to nationals of those states that have ratified or acceded to the Rome Statute and to nationals of non-party states only when the U.N. Security Council has explicitly referred a situation to the ICC.
- Approach Security Council recommendations to the ICC on their merits and oppose those deemed detrimental to U.S. interests. The U.S. abstentions on Security Council resolutions on Darfur indicate only that it is not U.S. policy to block all mentions of the ICC. However, accepting the reality of the ICC does not mean that the U.S. should acquiesce on substantive issues when they may directly or indirectly affect U.S. interests, U.S. troops, U.S. officials, or other nationals. The U.S. should abstain if a resolution would advance issues critical to U.S. interests and would not directly or indirectly undermine the U.S. policy of opposing ICC claims of jurisdiction over U.S. military personnel and its nationals. The U.S. should insist that all resolutions include language protecting military and officials from non-ICC states participating in U.N. peacekeeping operations.
Conclusion. While the International Criminal Court represents an admirable desire to hold criminals accountable for their terrible crimes, the court is gravely flawed. Its broad autonomy and jurisdiction invite politically motivated indictments. Its inflexibility can impede political resolution of problems, and its insulation from political considerations can complicate diplomatic efforts. Efforts to use the court to apply pressure to inherently political issues and supersede the foreign policy prerogatives of sovereign nations undermine the court's credibility and threaten its future as a useful tool for holding accountable the perpetrators of genocide, war crimes, and crimes against humanity.
President Clinton considered the ICC's flaws serious enough to recommend against U.S. ratification of the Rome Statute, and President Bush concurred. These issues remain unresolved and continue to pose serious challenges to U.S. sovereignty and its national interests. Unless the serious flaws are addressed fully, President Obama should similarly hold the ICC at arm's length. To protect its own interests and to advance the notion of a properly instituted international criminal court, the U.S. should continue to insist that it is not bound by the Rome Statute and does not recognize the ICC's authority over U.S. persons and should exercise great care when deciding to support the court's actions.
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.