The United States Anti-involvement with the ICC
Scotti Shafer
December 5, 2003
Edge Paper
Bruce Lusignan
The United States Anti-involvement with the ICC
Introduction to the ICC
“In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you...to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate thus rights will be punished.”[1]
Kofi Annan, UN Secretary-General
The Twentieth Century was the bloodiest in record history with over 174 million people killed in mass murders and genocides; more often then not, victims’ cries went unanswered.[2] Following World War II the United Nations realized the need to take action in ending impunity from these horrible crimes against humanity. With one of the primary objectives of the United Nations being to secure “universal respect for human rights and fundamental freedoms of individuals throughout the world,”[3] the United Nations recognized the need to establish an international criminal court. In 1948, at the Convention on the Prevention and Punishment of the Crime of Genocide, the General Assembly stated, “Recognizing that at all periods of history genocide has inflicted great losses on humanity; and being convinced that, in order to liberate mankind from such an odious scourge, international cooperation is required.”[4] However, it was not until 1994 that the International Law Commission, appointed by the General Assembly, completed a draft statute for an international criminal court. Finally, in July of 1998 the international community met in Rome to finalize the draft statute, which is now referred to as the Rome Statute of the ICC. The primary goals of the International Criminal Court are to achieve justice for all, to end impunity, to help end conflicts, to remedy the deficiencies of ad hoc tribunals, to take over when national criminal justice institutions are unwilling or unable to act, and to deter future war criminals.
“For nearly half a century – almost as long as the United Nations has been in existence – the General Assembly has recognized the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought… that the horrors of the Second World War – the camps, the cruelty, the exterminations, the Holocaust – could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time – this decade even – has shown us that man’s capacity for evil knows no limits. Genocide… is now a word of our time, too, a heinous reality that calls for a historic response.”[5]
Kofi Annan, UN Secretary-General
Statement of Purpose
This paper will clearly lay out the Unites States concerns with the International Criminal Court and will attempt to resolve them. I will then argue that no country has the right to be above international law, including the United States and that it is in the best interest of America and the world community for the united states to join the efforts of the ICC and sign the Rome Statute.
Overview of the United States Position
Is United States foreign policy more concerned about what is in the best interest of the United States or about what is in the best interest of our world community? The United Nations has created an International Criminal Court to oversee the preservation of world peace. The ICC’s specific agenda is “to prosecute the most serious breaches of global humanitarian and human rights law: crimes against humanity, war crimes and
genocide.”[6] Though the Clinton administration supported the efforts of the ICC and signed the Rome Treaty on December 31, 2002, the Bush administration has withdrawn the United States from the ICC by unsigning the Rome Treaty on May 6, 2002. In deciding not to participate, the United States has cited the following reasons: the ICC would undermine America’s ability to defend its military and participate in peacekeeping activities, fear that a world court would be used as a political weapon, concern that the ICC has not yet “defined crime of ‘aggression,’”[7] a belief that the ICC “is an institution of unchecked power,”[8] and that the ICC would take away from domestic judicial systems. In addition, an unstated concern of the United States is that the ICC provides no benefit to the United States, while at the same time threatening our sovereignty. Although the United States puts forth some valid objections and concerns, no country ought to be above international law - including the United States.
A Closer Look at the United States and the ICC:
Seeing Both Sides
The U.S. fears that the ICC creates a political weapon against the United States, especially for developing nations who disapprove of United States policies. Since the United States is the world’s only remaining superpower, it fears that by becoming a member of the ICC, the United States would lose power. By joining the ICC, the United States fears that American leaders could be subject to trial by the ICC. The Undersecretary of State, John Bolton stated, “The issue is one that directly affects individual Americans and quite possibly the highest decision-makers of our country, who could be hauled before this court and be subject to criminal penalties.”
Along with this fear, the Bush Administration is concerned that the ICC is full of unchecked powers. Marc Grossman, Under Secretary for Political Affairs, explains that the Rome Treaty “places enormous unchecked power in the hands of the ICC prosecutor and judges, especially since the self-initiating prosecutor is answerable to no state or institution other than the Court itself.” The U.S. fears that by giving the ICC this much power it is going to weaken the power of the U.N. Security Council and of the United States government.
Since the United States is such a powerful country, it is understandable that it is concerned about politically motivated ICC prosecutions; however, there have been adequate safeguards against politically motivated accusations built into the Rome Statute, “including thorough extensive United States input into devising checks and balances, precisely in order to preclude politically-motivated prosecutions.”[9] One example of a safeguard in the Rome Statute is in article 8 where the court focuses on war crimes “committed as part of a plan or policy or as part of a large-scale commission of such crimes.” It is articles like these that offer the United States protection. Deborah Chatsis, a member of the United Nations said, “The Rome Statute is a carefully balanced instrument which fully respects the sovereignty of law-abiding states willing and able to fulfill their existing legal obligations to investigate and, where necessary, prosecute those who commit the most heinous crimes.” As long as the U.S. maintains the high law-abiding road they do not have to fear prosecution from the ICC.
The United States also fears that the ICC will infringe on the sovereignty of our nation by failing to promote domestic judicial systems. The United States does not disagree with the ICC in whether a person or group of people who commit serious crimes in regard to the international community should be punished. The U.S. believes that an International Court could and should develop a global strengthening of justice and rule of law; however, the United States believes it is primarily the job of the individual countries to ensure justice and secondarily the responsibility of an international institution. Grossman stated, “We [The United States] believe that the best way to combat theses serious offenses is to build domestic judicial systems, strengthen political will and promote human freedom.” This individualist stance taken by the U.S. is primarily based on the threat that the overarching powers of the ICC would have on America. The United States fears that less powerful countries are going to use the ICC to “proactively balance the economic, military and diplomatic power of the United States.”[10] By signing the Rome Statute, the United States will be giving the ICC final authority on judicial matters. American policy makers fear this would not only take power away from the American Supreme Court but also infringe upon the rights that every American is guaranteed in the U.S. Constitution.
In contrast to the United States concerns, the ICC does not take precedent over individual countries unless serous matters were left ignored. The Rome Statute of the ICC states that it places the primary job of investigation and prosecution with domestic jurisdictions. Therefore, the ICC does not take the place of domestic jurisdiction. “The ICC will not replace national courts, but will be complementary to national criminal jurisdictions. The Court will only investigate and prosecute if a State is unwilling or unable to genuinely prosecute.”[11] In other words, the ICC may only exercise jurisdiction where impunity would otherwise result. This is a procedural safeguard that is built into the ICC. Also under the ICC, the United States would still hold their own troops accountable for their actions. Because of this accountability clause, if the United States feared having an American national tried by the ICC, then the United States could investigate or try the suspect. Along the same lines, if a state or prosecutor wants to refer a case to the ICC regarding an American, they must first notify the United States. The United States then has the decision to undertake its own investigation, and the ICC has no jurisdiction to step in unless the prosecutor proved the proceeding to be a sham. This accountability clause guaranties the U.S. Supreme Court’s primary jurisdiction over American citizens. While the ICC gives the U.S. the primary responsibility of investigating and trying Americans, the ICC is still a stable and constitutional institution. In fact, the United States was heavily involved in the negotiations of the Rome Statute, and consequentially, the Statute almost mirrors the United States’ Constitution. The Roman Statute “provides individuals accused of heinous crimes, as well as victims, nearly all of the protections offered by the U.S. Constitution.”[12] Below is a chart comparing the United States’ Constitution to the rules of the International Criminal Court:[13]
ROME TREATY / U.S. CONSTITUTIONPresumption of Innocence
"Everyone shall be presumed to be innocent until proven guilty before the Court . . ."(Art. 66) /
"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."Coffin v. United States, 156 U.S. 432, 453 (1895)
Speedy and Public Trial
" . . .the accused shall be entitled to a public hearing . . .""the accused shall be entitled . . . to be tried without undue delay; . . ."(Arts. 67(1), 67(1)(c)) /
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, . . ."(Amendment VI)
Assistance of Counsel
"…the accused shall be entitled…to communicate freely with counsel of accused's choosing…""…the accused shall be entitled… to have legal assistance assigned by the Court where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;…"(Arts. 67(1)(b), (d)) /
"In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense."(Amendment VI)
Right to Remain Silent
"…the accused shall be entitled…not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;…"(Art. 67(1)(g)) /
"No person…shall be compelled in any criminal case to be a witness against himself…"(Amendment V)
Privilege Against Self-Incrimination
"…the accused shall be entitled…not to be compelled to testify or to confess guilt…"(Arts. 54(1)(a), 67(1)(g)) /
"No person…shall be compelled in any criminal case to be a witness against himself…"(Amendment V)
Right to Written Statement of Charges
"…the person shall be provided with a copy of the…charges…"(Art. 61(3)) /
"In all criminal prosecutions, the accused shall enjoy the right…to be informed of the nature and cause of the accusation;…"(Amendment VI)
Right to Examine or Have Examined Adverse Witnesses
"…the accused shall be entitled…to examine, or to have examined…the witnesses against him or her…"(Art. 67(1)(e)) /
"In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him;…"(Amendment VI)
Right to Compulsory Process to Obtain Witnesses
"…the accused shall be entitled…to obtain the attendance and examination of witnesses on his or her behalf…"(Art. 67(1)(e)) /
"In all criminal prosecutions, the accused shall enjoy the right…to have compulsory process for obtaining witnesses in his favor,…"(Amendment VI)
Prohibition against Ex Post Facto Crimes
"A person shall not be criminally responsible…unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court."(Art. 22) /
"No Bill of Attainder of ex post facto law shall be passed."(Art. I, sec. 9, cl. 3)
Protection against Double Jeopardy
"No person who has been tried by another court…shall be tried by the Court with respect to the same conduct…"(Art. 20) /
"…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;…"(Amendment V)
Freedom from Warrantless Arrest and Searches
"…the Pre-Trial Chamber may…issue…warrants as may be required…""…if it [the Pre-Trial Chamber] is satisfied that there are reasonable grounds to believe that the person has committed a crime…and the arrest of the person appears necessary…"(Arts. 57 bis (3), (58)) /
"[N]o Warrants shall issue, but upon probable cause…"(Amendment IV)
Right to be Present at Trial
"The accused shall be present during the trial."(Art. 63) /
"one of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial."Illinois v. Allen, 397 U.S. 337, 338 (1970)(Citing Lewis v. United States, 146 U.S. 370 (1892))
Exclusion of Illegally Obtained Evidence
"Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible…"(Art. 69(7)) /
When evidence is obtained in violation of the Fourth Amendment, the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure.Illinois v. Krull, 480 U.S. 340, 347 (1987)(Citing Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643 (1961))
Prohibition against Trials in absentia
"The accused shall be present during the trial."(Art. 63) /
When defendant knowingly absents himself from court during trial, court may "proceed with trial in like manner and with like effect as if he were present."Diaz v. United States, 223 U.S. 442, 455 (1912)The language, history, and logic of Rule 43 support a straightforward interpretation that prohibits the trial in absentia of a defendant who is not present at the beginning of trial.Crosby v. United States, 506 U.S. 255, 262 (1993)
This chart clearly shows the similarities between the U.S. Constitution and the Rome Statute. The only right guaranteed by the U.S. Constitution that is not guaranteed by the Rome Statute is the right to a trial by jury. This right is missing from the Rome Statute due to the impracticality of impaneling a jury to try international cases. In view of this difference one must keep in mind that “Far fewer due process protections are guaranteed to American citizens accused of crimes abroad. They are subject to trial in foreign justice systems, many of which do not provide for a jury trial or other valued due process protections.”[14] Also, “The United States has signed a number of extradition treaties that specifically allow Americans to be tried abroad in foreign courts without jury trials.”[15] The Rome Statute does not provide trials by jury; however, this, while it may seem extreme, goes along with many of America’s current foreign policy agreement.