On July 17, 1998, in Rome, a treaty was adopted
creating a permanent International Criminal Court (ICC) under the
auspices of the United Nations. If 60 countries ratify this treaty,
a court in the Netherlands will have the power to try and punish
individuals for violations of certain international humanitarian
norms. Some of these offenses are so broadly defined that
Americans--indeed, citizens of any nation--could be subject to
penalties of up to life imprisonment for actions never before
considered punishable on the international level.
powers of the ICC outlined in the Rome treaty are an open
invitation to abuse. Cases could be brought before the court based
upon the complaint of any country that ratified the treaty (an "ICC
States Party") or the initiative of the ICC's prosecutor--an
international independent counsel. Once indicted, the defendant(s)
would be tried by a bench of judges chosen by the States Parties.
As an institution, the ICC would act as police, prosecutor, judge,
jury, and jailer. These functions would all be performed by ICC
staff, or under their supervision, with only bureaucratic divisions
of authority. The ICC would be the sole judge of its own power, and
there would be no process to appeal its decisions, however
irrational or unjust those might be.
Rome, the Clinton Administration rightly refused to sign the ICC
treaty because it could not obtain even minimum safeguards to
prevent this court from being used as a political tool against the
United States. The Administration's decision, however, came late in
the process and apparently was motivated by fears that prosecutions
might be brought against U.S. peacekeepers overseas, not by the
belief that a permanent ICC is fundamentally flawed.
fact, the participation of the United States in this treaty regime
runs counter to U.S. national interests. Moreover, U.S.
participation would be unconstitutional because it would subject
individual Americans to trial and punishment in an
extra-constitutional court without affording them all of the rights
and protections the U.S. Constitution guarantees.
Unfortunately, merely refusing to join the
Rome treaty will not protect Americans from the ICC's reach. In an
astonishing break with the accepted norms of international law, the
Rome treaty would extend the ICC's jurisdiction to the nationals of
countries that do not sign and ratify the treaty. Because of this
unprecedented and unlawful attempt to assert power over the
citizens of non-party states, it is not sufficient for the U.S.
government merely to reject the treaty.
existence of such a supranational court is a threat to the security
of U.S. citizens both at home and overseas. The United States
should use all of its considerable resources to prevent the ICC
from being implemented. Specifically, Congress and the
Inform other countries
that ratifying the ICC treaty will negatively affect their
relations with the United States.
assistance to a country on its rejection of the ICC treaty.
Make plain that a
country's ratification of the ICC treaty will result in a
reassessment of U.S. troop deployments in that country.
and agreements governing the rights and responsibilities of U.S.
military personnel stationed overseas so that no host state may
surrender U.S. nationals to the ICC.
Demand that Americans
serving in multilateral peacekeeping operations, if accused of
criminal actions, be turned over to U.S. courts for trial and be
exempt from ICC jurisdiction.
extradition treaties to specify that individuals extradited from
the United States cannot, under any circumstances, be then
extradited or otherwise transferred by the requesting state to the
ICC for prosecution.
Prevent any U.S.
funding from going to support the ICC.
Prevent cases from
coming before the ICC that would establish precedents for
investigation, trial, and conviction--if necessary, by vetoing any
attempt by the U.N. Security Council to refer a matter to the
purpose of these steps is twofold. First, they would provide
American civilians and U.S. military personnel certain basic
protections against the possibility that they would be brought for
judgment before a court that does not meet the minimum due process
standards guaranteed in the U.S. Constitution. Second, they would
make it clear that, in the view of the United States, the ICC is an
illegal and illegitimate institution that violates the
principles of self-government and popular sovereignty, as well as
the accepted norms of international law.
fundamental rights secured by the Constitution--rights successfully
defended by Americans on battlefields around the world--can be
summed up as follows: The American people govern themselves, and
they have a right to be tried in accordance with the laws enacted
by their elected representatives and to be judged by their peers
and none other. The Rome ICC treaty, in concept and execution, is
utterly antithetical to these rights. It should be opposed by the
United States with all the vigor it has mustered, throughout its
history, to fight similar threats to the fundamental values of the
Lee A. Casey and David B. Rivkin, Jr.,
are attorneys in the Washington office of Hunton & Williams, a
major international law firm. Mr. Casey served during the Bush
Administration in the Department of Justice's Office of Legal
Counsel. Mr. Rivkin served in the Office of the Counsel to the
President in the Bush White House and in the Departments of Justice