Diplomats from over 150 countries began
negotiations in Rome on June 15 to finalize the language and adopt
a convention to establish an International Criminal Court (ICC).
Supporters of this court, including the American Bar Association
and various human rights groups, claim that it is necessary to
bring despots and criminals to justice for crimes that are beyond
the jurisdiction of any one nation-state.
ICC would be empowered to investigate, try, and punish certain
crimes, such as war crimes and crimes against humanity. Currently,
nation-states have primary responsibility for prosecuting these
crimes. In exceptional cases, they have been addressed through ad
hoc tribunals set up by the United Nations (U.N.) Security Council.
Ad hoc tribunals are set up for specific crimes and given
prescribed authority, which prevents them from expanding their
original mandate. The ICC, by contrast, would have greater autonomy
and powers to investigate and prosecute suspected crimes. This
unprecedented power could affect profoundly the rights guaranteed
every American by the U.S. Constitution and threaten the ability of
the United States to engage in military action to protect its
national security interests. Because the ICC offers the United
States no tangible benefits to outweigh these egregious threats,
Congress and the Clinton Administration should strongly oppose
AND LEGAL CONCERNS
extremely complex, 167-page ICC draft statute contains over 1,500
disputed provisions. Many of these have serious implications for
national sovereignty, individual rights, and security. Vital
issues, such as which crimes will fall within the jurisdiction of
the ICC, the court's relationship with national judicial systems,
and how alleged crimes will be referred to the ICC, have not been
resolved. For example, the Clinton Administration thus far has
insisted that all ICC cases be referred to the court by the U.N.
Security Council, a position most countries oppose. This would make
it less likely that the court could prosecute Americans because of
the U.S. veto in the Security Council. Even this protection is
insufficient, however: Once a matter is referred to the ICC from
the Security Council, the United States would be unable to protect
its citizens from prosecution.
the undisputed text in the draft convention contains many problems.
For example, the current draft creates an independent international
court whose agents and judges would be empowered to investigate
crimes, prosecute, pass judgments, sentence, and even hear the
appeals of its decisions on an array of crimes from genocide to war
crimes to terrorism. This judicial omnipotence is fundamentally
inconsistent with American legal traditions, in which the functions
of investigation, prosecution, trial, and appeal are clearly
separated to ensure that the accused receives a fair trial and that
corruption and politicization are avoided.
United States also faces unique problems with the very nature of an
ICC. It is questionable, for example, whether the U.S. Constitution
allows the U.S. government to permit U.S. citizens to be tried for
alleged crimes committed on U.S. soil by a body that is not a court
of the United States. For example, if the United States agreed to
grant jurisdiction over international drug trafficking to the ICC,
this court legitimately could demand extradiction of an accused
U.S. citizen who never set foot outside the United States. Another
problem is that the ICC most likely would not provide many of the
basic legal rights of Americans, such as a trial by jury,
forbidding trials in absentia, and the right of the accused
to confront his accuser.
ICC also presents important policy concerns on U.S. national
security and the use of the U.S. military. For example, many
countries support placing the "crime of aggression" under the
jurisdiction of an ICC. Several definitions of "crime of
aggression" are being debated; all are variations of the phrasing
known as Option 1, which states that any individual in a position
of "exercising control or capable of directing, planning,
preparing, ordering, initiating, or carrying out an armed attack"
against another state, when this attack is in contravention of the
U.N. Charter, is subject to investigation, trial, conviction, and
punishment by the ICC. In effect, this would require the United
States to receive prior U.N. Security Council approval and ICC
confirmation of the legality of a proposed military action. If it
does not do so, every U.S. official involved in the operation, up
to and including the President, could be charged, tried, convicted,
and sentenced merely for protecting U.S. interests.
Former Justice Department lawyers Lee A.
Casey and David B. Rivkin provide an example of the possible impact
of the ICC on U.S. national security in the May 1998 issue of
Commentary. The Clinton Administration asserts that past U.N.
Security Council decisions legally justify U.S. military action
against Iraq if that country obstructs U.N. weapons inspectors. If
the United States did attack, however, it could be challenged
before the ICC. The reason: Other nation-states (including China,
France, and Russia) claim that any new strikes against Iraq would
require further Security Council approval, and that any attack
without that approval would violate international law.
Supporters of the ICC point to despots
like Pol Pot who have escaped punishment for their crimes because
of politics. There is no question that such heinous crimes should
be investigated and punished. But the answer is not a supranational
court that could violate the constitutional rights of Americans and
entangle legitimate U.S. military operations in U.N. legal
disputes; instead, the answer is that ad hoc tribunals be applied
with greater impartiality and, perhaps, frequency. The flaws in the
ad hoc system are correctable and are not sufficient reason to
abrogate U.S. sovereignty or to forfeit the ability of the United
States to protect its national security.
proposed International Criminal Court poses serious threats to U.S.
sovereignty and security. Congress and the Administration should
declare unequivocally that the United States will not participate
in an ICC that does not guarantee, at a minimum, the rights and
privileges contained in the U.S. Constitution and the American
judicial system--including trial by jury. Nor will the United
States participate in any international body that hinders the
ability of the United States to protect its national security.
Schaefer is Jay Kingham Fellow in International Regulatory
Affairs at The Heritage Foundation.