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
- 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
- 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
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.
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.