On July 17, 1998, a treaty creating a permanent
International Criminal Court (ICC) to investigate, try, and punish
individuals who violate certain international human rights
norms was adopted at a United
Nations-sponsored conference in Rome. The treaty was adopted over
the objections of the U.S. delegation.
The
Clinton Administration rightly voted against the treaty after all
its efforts to obtain even the minimum safeguards to prevent this
court from being used as a political tool against the United States
had been defeated. 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 realization that the permanent ICC concept itself is
fundamentally flawed.
As
outlined in the Rome treaty, the ICC's powers are an open
invitation to abuse. The crimes under the jurisdiction of the ICC
are broadly defined and could subject individuals to penalties of
up to life imprisonment for actions that never were thought
punishable on the international level before. Cases could be
brought before the court based upon the complaint of any country
that ratifies the ICC treaty (an "ICC States Party") or the
initiative of the court's prosecutor--an international independent
counsel. Once indicted, individual defendants would be tried by a
bench of judges chosen by the ICC States Parties. As an
institution, the ICC would act as police, prosecutor, judge, jury,
and jailer. All of these functions would be performed by its staff,
or under its supervision, with only bureaucratic divisions of
authority. The court 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.
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 citizens of
countries that have not signed and ratified the treaty.
Consequently, if 60 other countries ratify this treaty, the ICC
will be established in the Netherlands with the power to try and
punish Americans, even if the United States does not sign or ratify
it. As a result, the United
States can protect its citizens only by actively opposing
ratification of the ICC treaty by 60 states; this would prevent the
ICC's establishment.
AMERICA'S DEFEAT IN ROME
The Clinton Administration was an early and vocal supporter of the
effort to create an international court and still favors the
notion. However, criticism from
Capitol Hill spurred the Administration to moderate its support and
propose solutions to the very serious public policy and
constitutional impediments to U.S. participation in any
international court that could prosecute and punish Americans. In
particular, to remedy these defects, and to make the treaty
acceptable to a skeptical Senate, the Administration proposed that
the ICC should be allowed to prosecute only matters referred to the
court by the U.N. Security Council.
This would have allowed the United States to protect its nationals
through a judicious use of its Security Council veto.
Even
before the Rome Conference opened in June 1998, however, the
Administration's plan was opposed by numerous non-governmental
organizations (NGOs) and a group of countries informally dubbed the
"Like-Minded Group." The Like-Minded Group
argued that only an entirely unfettered court would be able to
investigate the perpetrators of the worst violations of
international humanitarian norms, and it opposed any limitations on
the independence of the ICC and its prosecutor. Consequently, the
limits proposed by the United States were rejected.
Every attempt by the United States to
avoid the creation of an international independent counsel, capable
of second-guessing U.S. military decisions and punishing U.S.
troops and officials for those decisions, was rejected. In
addition, to assure that the United States could not exempt its
people from the ICC's reach, the Like-Minded Group countries were
successful in extending the treaty provisions over the nationals of
countries that have not signed and ratified the treaty. On the Rome
Conference's final day, the last U.S. proposals were voted down by
a vote of 113 to 17, and the conference
delegates burst into cheers.
By
that time, the fundamental divergence between the Clinton
Administration's original vision of the ICC as a permanent
international body capable of bringing to justice the world's worst
tyrants and the vision of the Like-Minded Group and the NGO
community was evident. After Rome, it is impossible not to conclude
that these groups see the ICC primarily as a check upon a United
States that has grown, in their view, too dominant in world
affairs.
WHY AMERICANS MUST OPPOSE THE
ICC
As adopted, the ICC treaty is an unchecked invitation to abuse and
use as a political tool to restrain America's ability to defend its
interests. Although the Clinton Administration refused to approve
the ICC treaty, it has indicated that it might change its position
if certain revisions were made. In fact, numerous NGOs and members
of the Like-Minded Group are pressing the Administration to move in
that direction.
However, even if the treaty were amended
to incorporate measures that protect U.S. troops on peacekeeping
missions from prosecution, it would remain both legally and
politically inimical to the interests of the United States.
Specifically:
- The ICC threatens American
self-government. The creation of a permanent,
supranational court with the independent power to judge and punish
elected officials for their official actions represents a decisive
break with fundamental American ideals of self-government and
popular sovereignty. It would constitute the transfer of the
ultimate authority to judge the acts of U.S. officials away from
the American people to an unelected and unaccountable international
bureaucracy. As Alexis de Tocqueville wrote in his Democracy in
America, "[h]e who punishes the criminal is . . .the real master of
society."
In this regard, the claims of ICC
supporters that the court is not directed at American citizens may
be dismissed. Suggestions that U.S. soldiers and civilians could
not be brought before the ICC because that court would be required
to defer to U.S. judicial processes--the concept of
"complementarity"--are disingenuous. Under the ICC treaty, the
court would be the absolute judge of its own jurisdiction and would
itself determine when, if ever, such a deferral was
appropriate.
- The ICC is fundamentally inconsistent
with American tradition and law. In its design and
operation, the ICC is fundamentally inconsistent with core American
political and legal values. Indeed, if Americans ever were
arraigned before the ICC, they would face a judicial process almost
entirely foreign to the traditions and standards of the United
States.
First and foremost, they would face a
civil law "inquisitorial" system where guilt would be determined by
judges (possibly from countries hostile to the United States)
alone. There would be no right to trial by jury, a right considered
so central by the Founders of the American Republic that it was
guaranteed twice in the U.S. Constitution (in Article III,
Section 2, and the Sixth Amendment).
Trial by jury is not, of course, the only
right guaranteed to Americans that would be unavailable in an ICC.
For example, an American surrendered to the ICC would not enjoy
rights to reasonable bail or a speedy trial, as those rights are
known and guaranteed in the United States. Although the ICC would
have to provide a trial "without undue delay," this could mean many
years in prison. For instance, mocking the presumption of
innocence, the prosecutor of the United Nations International
Criminal Tribunal for the Former Yugoslavia, a court widely viewed
as a model for the ICC, actually argued that up to five years would
not be too long to wait in prison for a trial.
In addition, the fundamental right of a
defendant to confront the witnesses against him and to challenge
their evidence would be fatally compromised in the ICC. The
"international" rule and practice is quite different. In the U.N.
Yugoslav Tribunal, both anonymous witnesses and extensive hearsay
evidence (where the witness cannot be challenged) have been allowed
at criminal trials. Moreover, the ICC
prosecutor would be able to appeal a verdict of acquittal,
effectively placing the accused in "double jeopardy." Such appeals
have been forbidden in the law of England and the United States
since the 17th century. If convicted, the defendant would be unable
to appeal the verdict beyond the ICC itself, and could be consigned
to a prison in any one of the States Parties to the treaty at the
ICC's pleasure and under its supervision.
- The ICC violates constitutional
principles. The failure of the ICC treaty to adopt the
minimum guarantees of the U.S. Constitution's Bill of Rights is, in
fact, one of the principal reasons why the United States could not,
even if it wanted to, join the ICC treaty regime.
As the U.S. Supreme Court recently
suggested in United States v. Balsys, the United States
cannot participate in or facilitate a criminal trial under its own
authority, even in part, unless the Constitution's guarantees are
preserved. If, however, the United States were to join the ICC
treaty regime, the prosecutions undertaken by the court, whether
involving the actions of Americans in the United States or
overseas, would be "as much on behalf of the United States as of"
any other State Party.
Since the guarantees of the Bill of Rights would not be available
in the ICC, the United States could not participate in, or
facilitate, any such court.
United States participation in the ICC
treaty regime would also be unconstitutional because it would allow
the trial of American citizens for crimes committed on American
soil, which are otherwise entirely within the judicial power of the
United States. The Supreme Court has long held that only the courts
of the United States, as established under the Constitution, can
try such offenses. The Supreme Court made this clear in the
landmark Civil War case of Ex parte Milligan. In that
case, the Court reversed a civilian's conviction in a military
tribunal, which did not provide the guarantees of the Bill of
Rights, holding that "[e]very trial involves the exercise of
judicial power," and that the military court in question could
exercise "no part of the judicial power of the country." This reasoning is
equally applicable to the ICC.
- The ICC contradicts the founding
principles of the American Republic. United States
participation in the ICC treaty regime would be fundamentally
inconsistent with the founding principles of this country. The
Declaration of Independence, which articulates the principles that
justify the American Republic's very existence, listed the offenses
of the King and Parliament that required separation from England,
revolution, and war. Prominent among those offenses were
accusations that Britain had (1) subjected Americans "to a
jurisdiction foreign to our constitution and unacknowledged by our
laws"; (2) "depriv[ed] us, in many cases, of the benefits of Trial
by Jury"; and (3) "transport[ed] us beyond [the] Seas to be tried
for pretended offences."
These provisions referred to the British
practice of prosecuting Americans in "vice-admiralty" courts for
criminal violations of the navigation and trade laws. Like the ICC,
these courts followed the civil law, "inquisitorial" system. Convictions, of course,
could be obtained far more easily from these tribunals than from
uncooperative colonial juries.
The U.S. Constitution's Framers sought to eliminate forever the
danger that Americans might again be surrendered to a foreign power
for trial by specifically requiring that criminal trials be by jury
and conducted in the state and district where the crime was
committed. This is the only right guaranteed by the Constitution to
be stated twice in the original document and its first ten
amendments. As Justice Joseph Story explained, the "object" of
these provisions was "to secure the party accused from being
dragged to a trial in some distant state, away from his friends,
and witnesses, and neighborhood; and thus subjected to the verdict
of mere strangers, who may feel no common sympathy, or who may even
cherish animosities, or prejudices against him."
Of course, if the United States were to
join the ICC treaty, Americans again would face transportation
beyond the seas for judgment, without the benefits of trial by
jury, in a tribunal that would not guarantee the other rights they
take so much for granted and where the judges may well "cherish
animosities, or prejudices against" them.
- The ICC threatens America's ability to
defend its interests through military action. The ICC
would be able to prosecute any individual American, including the
President, military and civilian officers and officials, enlisted
personnel, and even ordinary citizens who were involved in any
action it determined to be unlawful and within its
jurisdiction.
For example, if the ICC existed today, it
could investigate President Clinton's August 1998 attack on Osama
bin Laden's terrorist base in Afghanistan or the more recent
attacks on Iraq. Possible allegations would be that these attacks
constituted "aggression" or crimes against humanity based upon any
resultant damage to civilians or civilian property. If the ICC
determined that there was sufficient evidence to support an
indictment, the President, the Secretary of Defense, or any other
individual who took part in planning or executing the attacks could
be sought by the ICC to be tried for these actions, even though
they were entirely lawful under the Constitution and laws of the
United States.
WHY OTHER COUNTRIES SHOULD OPPOSE
THE ICC
Every other nation should share the concerns of the United States
over the threat the ICC poses to the rights of individual citizens,
the ability to protect national interests through military action,
and the irrevocable transfer of national sovereignty to an
unelected and unaccountable international institution. In addition,
they should also object to the ICC treaty because it is an outright
violation of international law.
Under the ICC treaty, the court can claim
the power to investigate and try citizens of any state-- even the
citizens of states that are not party to the treaty--based upon
events taking place in the territory of a member state. This
assertion of power is unprecedented and entirely unsupported in
international law.
A
treaty is a contract between sovereign states and, like private
contracts, cannot bind states that have not agreed to its terms.
This is one of the most basic and well-established rules of
international law. The ICC, of course, is
to be established by treaty and is entirely a creature of its
founding instrument. It has no other status in international law.
Consequently, as a legal matter, the ICC cannot exercise
jurisdiction over American citizens without the expressed consent
of the United States, which the United States has not given and
could not constitutionally give.
Claims made by ICC supporters that the
court may legally exercise a "universal jurisdiction" are
incorrect. The principle of "universal jurisdiction" is one of the
most misunderstood and abused concepts in international law. It is,
in fact, a narrow doctrine that allows states to extend their
domestic law to punish individuals guilty of certain criminal
activity taking place otherwise beyond the jurisdiction of any
state. Traditionally, it has been limited to piracy and the slave
trade, crimes occurring on the high seas, which may be otherwise
unreachable under the ordinary principles of territorial
jurisdiction.
More
recently, claims have been made that states may exercise universal
jurisdiction over "war crimes," punishing perpetrators even though
the crimes took place in the territory of another state. The actual
support for this proposition, however, is comparatively weak. As a
leading expert in the field, Alfred P. Rubin, distinguished
professor of international law at the Fletcher School of Law and
Diplomacy at Tufts University, wrote in late 1996:
the
extension of a national jurisdiction to make criminal the acts of
some foreigners outside the territory of the prescribing state has
been much exaggerated by scholars unfamiliar with the actual cases
and equally unaware of the dismal record of failed attempts to
codify the supposed international criminal law relating to "piracy"
or the international slave trade.
In
any case, whatever the authority of states to extend the criminal
jurisdiction of their domestic courts to the nationals of other
states on a universal jurisdiction theory, there is no support in
international law or practice for the proposition that states may
delegate that power to an international court created by treaty,
and thereby subject the nationals of other states to prosecution
and judgment in that court. In fact, any attempt to subject the
nationals of non-party states to the ICC's power would be
fundamentally inconsistent with the United Nations Charter, which
guarantees the sovereign equality of states. This sovereign equality
includes, among other things, the fundamental principles that "(a)
States are juridically equal; (b) Each State enjoys the rights
inherent in full sovereignty; (c) Each State has the duty to
respect the personality of other States."
The
Rome treaty violates these principles by asserting the jurisdiction
of the ICC, an institution that is entirely a creature of the ICC
treaty and has no foundation in customary international law.
Indeed, the Rome Conference that drafted and adopted the treaty
attempted to act as an international legislature, imposing legal
obligations and perils on the citizens of the United States without
their consent. This action is illegal. Consequently, any attempt by
the ICC to exercise its jurisdiction over the citizens or nationals
of the United States would constitute a grave violation of
international law, and a hostile act directed squarely at the
American people.
HOW THE U.S. MUST PROCEED
Because of the ICC treaty's unprecedented and unlawful assertion of
power over the nationals of states that have not joined the ICC
treaty regime, it is not sufficient for the United States merely to
reject the treaty. This will not serve to protect American citizens
from the ICC. The existence of a supranational court claiming
jurisdiction over Americans is a threat to the security of U.S.
nationals both in the United States and overseas, and the United
States should use all of its considerable resources to prevent this
treaty from ever taking effect.
Specifically, the U.S. should:
-
Inform other countries that
ratifying the ICC treaty will negatively affect their relations
with the United States. The United States can, and should,
inform both its allies and adversaries that ratification of the ICC
treaty, in view of that document's illegal jurisdictional claims,
will be considered an unfriendly act directed at the United States,
and that this act will adversely affect bilateral relations between
the United States and any state joining the ICC treaty regime. The
precise impact would, of course, be determined on a
country-by-country basis.
-
Condition non-military
assistance to a country on its rejection of the ICC
treaty. With respect to some states, Congress should
condition the disbursement of foreign assistance upon a recipient's
rejection of the ICC treaty. Obviously, the United States should
not undermine its security interests by halting military assistance
if a country threatens its relationship with the United States by
ratifying the ICC. However, halting technical and economic
assistance to countries that ratify the ICC treaty is reasonable
and would send an unmistakable message of America's adamant
opposition to the flawed ICC.
-
Make plain that a country's
ratification of the ICC treaty will result in a reassessment of
U.S. troop deployments in that country. The United States
should not contemplate a policy of isolation, nor should it
withdraw U.S. troops from strategically important deployments. Such
a policy would not be in its long-term interests. However, the
United States should inform countries in which U.S. troops are
stationed that ratification of the ICC would present a direct
threat to U.S. soldiers stationed within their borders and,
therefore, would require a reassessment of the terms and conditions
of its U.S. overseas troop deployments.
Tens of thousands American service men and
women are stationed overseas, principally in Western Europe, but
also in the Persian Gulf and Asia, and their presence is in the
interests of the United States and the host states as well. Many of
these hosts rely upon U.S. military power to guarantee their
security and stability. It should be made clear to these states
that part of the price they must pay for such protection, which
allows them to eschew much of the defense spending that otherwise
would be required to ensure their security, is the guarantee that
they will not subject U.S. nationals to the ICC's jurisdiction.
-
Renegotiate treaties and
agreements governing the rights and responsibilities of U.S.
military personnel stationed overseas. Currently, the
status of these men and women is governed by treaties between the
United States and the host governments, which are known as "status
of forces" agreements (SOFAS). As a general rule, these agreements
provide that U.S. service personnel accused of criminal conduct in
carrying out an official duty in the host country will, at least in
the first instance, be turned over to U.S. military judicial
processes for investigation and prosecution. New provisions must
now be inserted into each of these agreements specifically
forbidding the host state from surrendering U.S. nationals to the
ICC. Both Senate Foreign Relations Committee Chairman Jesse Helms
(R-NC) and the Clinton Administration have targeted these
agreements as needing attention in light of the Rome treaty. Such
attention should begin immediately.
-
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. Before U.S. troops are dispatched to
participate in "peacekeeping" missions, whether under the auspices
of the United Nations, NATO, or otherwise, agreements must be
secured that U.S. nationals participating in the operation will not
be surrendered to the ICC. Such agreements should be
unobjectionable to the parties concerned in such missions, be they
the United Nations, the receiving states, or other participating
countries, since they would not immunize U.S. nationals from
punishment for any crimes they might commit, but merely ensure that
Americans are tried in accordance with the laws and customs of the
United States. Indeed, if the assurances of the ICC's supporters
that the establishment of the court was not directed against the
United States are true, then such a request should be quickly
granted. Senator Helms has suggested this measure as well.
-
Renegotiate extradition
treaties. In order to ensure the protection of its
citizens, the United States should systematically renegotiate its
extradition treaties, adding provisions that make it clear that
individuals extradited from the United States cannot, under any
circumstances, then be extradited, or otherwise transferred, by the
requesting state to the ICC for prosecution.
-
Prevent any U.S. funding from
going to support the ICC. Washington should attach funding
limitations to all U.S. payments to the United Nations that forbid
the use of its monies to support the ICC or its work.
-
Prevent cases from coming
before the ICC. It is not in America's interest for the
ICC to establish precedents of investigation, trial, and
conviction. Although the United States cannot prevent all cases
from coming before the ICC, it can close one avenue. Washington
should instruct the U.S. representative to the U.N. Security
Council to veto any attempt by that body to refer a matter to the
ICC for investigation.
The
purpose of these measures 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 by the U.S. Constitution. Second, they make it
clear that, in the view of the United States, the ICC is an illegal
and illegitimate institution which violates the principles of
self-government and popular sovereignty, as well as accepted norms
of international law.
CONCLUSION
The fundamental rights secured by the American Revolution
and War for Independence--rights subsequently enshrined in the U.S.
Constitution and 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 its
conception 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 Republic.
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
and Energy.
Endnotes