Breaking the ICC Impasse

COMMENTARY Crime and Justice

Breaking the ICC Impasse

Jul 11th, 2002 3 min read
Brett D. Schaefer

Senior Research Fellow in International Regulatory Affairs

Brett D. Schaefer is the Jay Kingham Fellow in International Regulatory Affairs at Heritage's Margaret Thatcher Center for Freedom.

Our colleagues in the United Nations are growing restless. What, they ask, will it take to get America to sign on to the International Criminal Court (ICC)?

Consider the protections included in the treaty, its backers say. The ICC's charter requires the tribunal to complement national courts, not supersede them. "Retrospective" prosecutions -- for actions that took place before July 2002 -- would not be permitted. The U.N. Security Council can block prosecutions for fixed periods.

Unfortunately, these protections aren't as substantial as they may seem. The court remains vulnerable to politically motivated prosecutions of American soldiers, including those who participate in U.N. peacekeeping operations. That's why the United States has been using its veto power in the Security Council to try and block renewal of the U.N. mission in Bosnia and Herzegovina.

This move should not have shocked anyone. In fact, until a compromise can be forged that ensures the treaty can't be used as a political weapon, the United States should withhold its support for all future U.N. peacekeeping operations.

Rather than have the Security Council vote on whether to block a prosecution -- and then only for a limited period of time -- why not require the Council to approve a prosecution? This way, the United States' one vote against would be enough to stop a case from going forward.

Under the ICC treaty's current terms, the United States must secure a favorable vote in the Security Council to stop an investigation -- which means we'd have to convince eight of the other 14 Council members to vote with us to stop illegitimate prosecutions of U.S. soldiers. And we'd have to persuade the other permanent members of the Security Council (Britain, France, Russia and China) not to veto our efforts.

The treaty provision on this matter, as currently constructed, presents an unacceptable danger to U.S. nationals and violates international law. Only the Security Council can authorize U.N. missions, so only the Security Council should be able to decide when prosecution of U.N. peacekeepers by the ICC is appropriate. The present treaty also would effectively force us to adhere to a treaty we didn't ratify -- another violation of international law.

ICC supporters say the United States has nothing to fear from this court. U.S. soldiers virtually always display exemplary conduct in the field, and when the few exceptions to this do arise, America has proven quite capable of meting out justice and admitting wrongdoing. And on most common criminal matters, they say, such as the U.S. soldiers on Okinawa accused of sexual assaults against locals, the ICC wouldn't be involved anyway.

But Americans harbor this peculiar notion that power derives from the governed, that national sovereignty -- driven by democratic accountability -- trumps unaccountable and opaque international bureaucracies with no direct democratic link to those they purport to govern. They also know that America's military activities don't always enjoy broad support and that there's no shortage of people and nations who seek to undermine American interests.

To overcome this impasse, President Bush proposes a 12-month immunity from ICC prosecution for soldiers on U.N. peacekeeping missions who represent countries that are not part of the Rome Statute that established the ICC. The president wants to use this period to forge a compromise that would have the Security Council deciding which potential cases involving U.N. peacekeepers can go forward. Such a move, which would allow for U.S. vetoes, would provide ample protection for Americans involved in U.N. peacekeeping.

An impasse serves neither the interests of the United States nor of the United Nations. And the Bush compromise seems a reasonable way to address American concerns and those of the United Nations. If other countries truly expect the international community to enforce justice through the ICC, and not simply establish another venue for anti-American venting, they shouldn't object to giving the final say over which cases move forward to the very institution charged with protecting international peace in the first place.


John Hulsman is a research fellow specializing in European issues at The Heritage Foundation, where Brett Schaefer is the Jay Kingham fellow in international regulatory affairs.

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