February 13, 2009
By Brett D. Schaefer
The International Criminal Court (ICC) -- which was formally
established in 2003 to prosecute war crimes, crimes against
humanity, genocide, and the as-of-yet-undefined crime of aggression
-- has long held a special place in the hearts of human rights
activists and those hoping to hold perpetrators of terrible crimes
Although supporters of the court have a noble purpose, there are
a number of reasons to be cautious and concerned about the effect
the ICC could have on national sovereignty and politically
precarious situations the world over.
One of the most basic principles of international law is that a
state cannot be bound by a treaty to which it is not a party.
Further, long-standing international legal norms hold that a state
cannot be bound to legal assertions that it has specifically
rejected. The ICC, however, directly contravenes these norms and
precedents of international law; it claims jurisdiction to
prosecute and imprison citizens of countries that are not party to
the Rome Statute and, more shockingly, over those who have
specifically rejected the court's jurisdiction.
Seeking to impose international legal requirements and
jurisdiction on unwilling sovereign states is unsupportable, and a
clear contravention of international law. It also has significant
implications for states that are unable or unwilling to ratify the
Rome Statue establishing the ICC.
For instance, both the Clinton administration and the Bush
administration concluded that the ICC is a seriously flawed
institution that the United States should not join. However,
because of the ICC's unprecedented claims of jurisdiction, the
United States has had to take unusual steps to protect its citizens
and military personnel, including negotiating a network of
nonsurrender agreements (or Article 98 agreements, after the
section of the Rome Statute that permits such arrangements) with as
many countries as possible. Countries that sign such agreements
with the United States promise, in effect, not to surrender U.S.
nationals to the ICC without the consent of the U.S.
America pursued Article 98 agreements out of concern that the
ICC could be used as a tool by those opposed to its foreign policy
to make political statements through ICC prosecutions. Supporters
of the ICC disparage this as unnecessary. They claim there are
protections in the ICC treaty to prevent abuse of the court --
after all, the court can only intervene in cases committed within
the territory or involving a citizen of an ICC party, and then only
if that country proves unwilling or unable, in the judgment of the
court, to investigate and prosecute alleged crimes.
This is cold comfort. Unscrupulous individuals and groups will
seek to misuse the ICC for politically motivated attacks, as
demonstrated by those urging the court to indict Bush
administration officials for alleged crimes in Iraq and
Afghanistan. In the first two years of the ICC, more than 100
charges against U.S. citizens were submitted to the court. While
the ICC chief prosecutor declined to pursue these cases, there is
no assurance that future cases will be similarly resolved.
Because of its relative lack of checks to prevent it from being
misused, the ICC represents a dangerous temptation for those with
political axes to grind. This is a lesson currently being learned
by Israel. Despite the fact that Israel is not a party to the Rome
Statute, the ICC prosecutor is reportedly exploring ways to
prosecute Israeli commanders for alleged war crimes committed
during the recent actions in Gaza.
Palestinian lawyers argue that Palestine can request ICC
jurisdiction as the de facto sovereign even though it is not an
internationally recognized state. This is a political twofer for
the Palestinians: Pressure is applied to Israel over alleged war
crimes while excluding Hamas's incitement of the military action
(as well as its war crimes against Israeli civilians) and, at the
same time, momentum is increased for Palestinian statehood without
the need to make compromises with Israel.
The current situation in Sudan raises other issues. Although the
UN Security Council has been largely deadlocked on possible
sanctions against the government of Sudan for its role in
supporting Janjaweed militia groups that have committed terrible
crimes in Darfur, it did pass a resolution in 2005 referring the
situation in Darfur to the ICC. This past summer, the ICC announced
that it would seek an indictment against Sudanese President Omar
al-Bashir for his alleged involvement in crimes committed in
Indicting the sitting head of state of Sudan, no matter how
awful his role in the Darfur atrocities may have been, could
aggravate the situation in Darfur and put more people at risk.
Al-Bashir may decide he has nothing to lose, increase his support
of the Janjaweed, and encourage an escalation of their attacks to,
possibly, include aid workers and UN and African Union peacekeepers
serving in UN mission in Darfur.
If it destabilizes the government, it could also rekindle the
north-south conflict that saw roughly 2 million people killed in a
22-year civil war ended by a 2005 peace agreement. These dangers
spurred African countries, which would bear the most immediate
consequences of a more chaotic Sudan, to call on the UN Security
Council to defer the al-Bashir prosecution.
Moreover, since the Office of the Prosecutor is largely
autonomous, once a case is brought to the ICC, there is little
opportunity to resolve disputes, conflicts, or sensitive political
issues diplomatically. For instance, Sudan's neighbors may be faced
with the choice of arresting al-Bashir, which could spark conflict
with Sudan, or ignoring the court's warrant. If Uganda could
resolve its long-festering conflict with the Lord's Resistance Army
by agreeing not to prosecute its leader, it would have no ability
to call off the ICC prosecution.
It is unlikely the ICC prosecutor or its judges will be held to
account if its decisions lead to greater carnage in Darfur, or
advancing politically motivated charges in Gaza, or prolonging the
conflict in Uganda. They are free to act without considering the
potential consequences. Those having to deal with the consequences
are not so lucky.
A Credible Court
For these reasons and others, the United States has declined to
join the ICC. It is not alone in its concerns as demonstrated by
the many states that are not ICC parties. Major countries like
China, India, and Russia have refused to ratify the Rome Statute
out of concern that it unduly infringes on their foreign- and
security-policy decisions -- issues rightly reserved to sovereign
Even the Obama administration has expressed the need to make
sure U.S. troops have "maximum protection" from politically
motivated indictments by the ICC and has not rushed to support
ratification of the treaty. Do not look for the United States to
abandon the Article 98 agreements Washington has signed with some
100 countries around the world anytime soon.
While the ICC embodies an admirable desire to hold criminals
accountable for their crimes, the court is flawed notionally and
operationally. The more ICC advocates seek to use the court to
press political agendas and supersede the prerogatives of
government in foreign policy, the more they undermine the
credibility of the court and threaten its future as a useful tool
To protect its own interests and to advance the overarching
intent of building a credible international criminal court, the
United States should continue to insist that it: is not bound by
the Rome Statute because it has not ratified the treaty; will not
recognize the authority of the ICC over U.S. citizens or consider
joining the court without significant changes to the treaty; and
will exercise great care over decisions that support actions of the
court in cases like Darfur.
Schaefer is a research fellow and Anthony B. Kim a policy
analyst at the Heritage Foundation.
First Appeared on Radio Free Europe/Radio Liberty
The International Criminal Court (ICC) -- which was formally established in 2003 to prosecute war crimes, crimes against humanity, genocide, and the as-of-yet-undefined crime of aggression -- has long held a special place in the hearts of human rights activists and those hoping to hold perpetrators of terrible crimes to account.
Brett D. Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
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