Policy Brief #7 - U.S. Opposition to the ICC

The Joan B. Kroc Institute for International Peace Studies at the University of 
Notre Dame announces the publication of:
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U.S. Opposition to the International Criminal Court: Unfounded Fears
Policy Brief #7, June 2001

By Robert C. Johansen
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available on the web at <http://www.nd.edu/~krocinst/polbriefs/pbrief7.html>


In Brief
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U.S. opposition to creating a permanent international criminal court arises 
from unwarranted fears that U.S. officials might be wrongly prosecuted.  
Opposition also rests on a mistaken belief that the United States can protect 
legitimate national sovereignty only by rejecting international legal 
constraints on criminal abuses of sovereignty.  However, the proposed court 
would serve U.S. interests by investigating the world’s worst international 
crimes and assigning individual responsibility for them, reducing collective 
blame for the criminal acts of individuals,  discouraging atrocities, and 
upholding international law while protecting against politically motivated 
prosecutions.
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The creation of a permanent international criminal court, designed to hold 
individuals (rather than states) accountable for failing to obey international 
humanitarian law, promises to become the single most important international 
institutional advance since the founding of the United Nations more than a half 
century ago.  Although nearly all of the world's democracies support the court, 
the United States opposes it. Why?

Once established, the world's first permanent criminal court will stand ready 
to investigate the worst international crimes known to humanity whenever and 
wherever they occur.  It will help deter crimes by confronting lawbreakers with 
the possibility of investigation, trial, and punishment.  Its deterring impact 
is less likely to be weakened by the charges of politically motivated 
investigations and selective justice that have undermined the four previous ad 
hoc tribunals (Nuremberg and Tokyo after World War II and the former Yugoslavia 
and Rwanda more recently). Unlike the temporary tribunals, the new court will 
have the greater efficiencies and impact of permanency, with the authority to 
build respected precedents over time.  The court can contribute to 
reconciliation by replacing the stigma of collective guilt, which often 
condemns an entire society for the sins of a minority, with individual 
accountability.  These achievements can help discourage future cycles of 
violence.

As of June 18, 2001, 34 of the 60 countries required to establish the court 
have ratified the Rome treaty, including allies like France, Italy, Belgium, 
Norway, Canada, and Germany.  The United Kingdom and other European states are 
expected to ratify the treaty soon. In opposing the court, the United States 
voted with Iraq, Libya, and China, well known for indifference to honoring 
human rights law.

U.S. Opposition to the Court
The reason for U. S. opposition is simple.  All the temporary tribunals that 
the United States has supported were limited to investigating others; they 
could not hold U.S. citizens accountable. Expecting that the new court would 
not be allowed to take any action until after a U.N. Security Council decision 
had referred a case to the court, U.S. officials at first also supported the 
proposed permanent court. Within the Security Council, Washington could use its 
veto power to prevent any investigation of itself or its friends. The United 
States wanted a court in which the prosecutor could never bring charges against 
anyone from the United States, although the United States could, through a 
Security Council decision, bring charges against others.  This position so 
flagrantly violated principles of equal justice that eventually the rest of the 
world rejected the U.S. position in order to establish a court with independent 
authority.

Why does the United States persist in refusing to accept the jurisdiction of an 
impartial court over the conduct of its own law-abiding citizens, if by 
accepting the court Washington could in return gain reciprocal legal 
constraints on others?  Why does the United States not want international laws 
against war crimes and genocide, with which it agrees, applied to itself?

First, U.S. officials fear that the mere existence of an independent court 
might limit U.S. uses of military power.  To have a court ready to investigate 
U.S. officials for war crimes or crimes against humanity might inhibit 
officials from sending forces into combat and using aerial bombardment that 
might kill many civilians. Yet the law governing international military conduct 
is not changed by the establishment of the proposed court. If U.S. military 
actions are legal, it has nothing to fear from the court.

Second, U.S. leaders fear that an international prosecutor might bring 
politically motivated charges against U.S. officials.  The concern about 
politically motivated prosecutions of U.S. (or other) nationals is 
understandable, but the treaty contains four important safeguards to address 
this concern.

- The court's jurisdiction will be limited to the most serious international 
crimes, like genocide and crimes against humanity, and their commission must 
have been authorized policy by the state for the prosecution to proceed.  The 
United States was closely involved in defining the relevant crimes and in 
establishing high thresholds to limit the court's role.

- The proposed court is a court of only last resort. Under the principle of 
complementarity, the court will not be allowed to act when national judicial 
systems are available and willing to prosecute suspects. If a state carries out 
its obligation to investigate a suspected crime, even if it decides there is no 
reason to prosecute a suspect, the international court cannot intercede.  The 
only exception allowing independent court action is when a state intentionally 
tries to avoid its international obligation by shielding a criminal from 
responsibility, as has been the case in Serbia.  Because the international 
court is not designed to supplant effective national judicial systems such as 
U.S. military and civilian courts, it is extremely unlikely U.S. nationals 
would ever come before the international court.

- The prosecutor will be accountable to oversight by a panel of judges who will 
ensure that investigation by the prosecutor is warranted.

- Safeguards exist in the procedures for electing judges, who are to be highly 
respected justices of impeccable credentials, and for selecting the prosecutor, 
as well as for his or her removal if the prosecutor engages in politically 
motivated investigations.

These four safeguards should ensure that the United States would not be 
subjected to unwarranted charges.

Third, the United States claims that the court's prosecutor has too much 
independence to launch investigations, because he or she could do so without a 
Security Council decision.  But if the draft treaty had stipulated instead that 
the prosecutor could act only with a Security Council referral, then the 
Council role would surely have politicized the court, treating permanent 
members like kings, and putting them, as well as all those they would shield 
with their veto, outside the law.  Again, this would be such an extreme 
violation of fair legal practice that France and Britain, although permanent 
members enjoying the veto power, both parted company from the United States on 
this question.

Fourth, the United States now actively opposes the court, even as a nonparty to 
the treaty, claiming that it will exercise unjustified jurisdiction over U.S. 
nationals by binding nonparties.  Even if the United States does not ratify the 
treaty, the argument goes, U.S. citizens could be accused of a crime.  The 
overreach argument, frequently voiced by Senator Jesse Helms and other 
Congressional critics, is a gross mischaracterization of the court.  No new 
laws for human conduct are created by the court statute; existing laws will 
simply be better enforced.  Of course the treaty permits the court to exercise 
jurisdiction over the nationals of nonparties where they have committed serious 
crimes, but there is nothing novel in this.  The core crimes in the treaty are 
crimes of universal jurisdiction ­ that is, they are so universally condemned 
that every nation in the world now has a duty to exercise jurisdiction over 
suspects even without the proposed court and without the consen!
t of the accused's own national government.

All nations are already obligated to prosecute or extradite for prosecution 
anyone who commits genocide or crimes against humanity.   And the United States 
already participates in many treaties that permit U.S. citizens to be held 
accountable for criminal actions in foreign jurisdictions without special 
permission for prosecutions, including the treaty banning genocide, the Geneva 
conventions on war crimes, and the long-standing international laws against 
piracy and slave trade. In short, the treaty does not impose any obligation on 
nonparties that they are not already bound to fulfill, but is needed to enforce 
existing laws more effectively.  In addition, the proposed court enhances 
protection for U.S. nationals by ensuring rights of defense and other due 
process guarantees that cannot be ensured in every national prosecution around 
the world.

The continued U.S. insistence that no person should be tried without the 
consent of his or her national government seems a self-defeating condition, 
which if established, would enable any world-class criminal to stay out of 
court.  It is difficult to imagine the governments of Saddam Hussein or 
Slobodan Milosevic consenting to the prosecution of their own crimes.

The Benefits of U.S. Ratification
Although President Clinton belatedly signed the statute, he did so with the 
goal of drastically revising the treaty already agreed upon by 120 countries at 
the Rome conference. Both the Clinton and Bush administrations have recommended 
that the Senate not ratify the treaty, with vociferous, unyielding opposition 
coming from former Senator (now Attorney General) John Ashcroft, Senator Jesse 
Helms, who chairs the Senate committee that would need to approve the treaty 
for U.S. ratification, and Majority Leader Tom Delay in the House.

Yet, 66% of U.S. citizens support ratification, even after hearing U.S. 
arguments against it, according to a 1999 Roper poll.  More than 1000 
professional associations have joined the NGO (Non-Governmental Organization) 
Coalition for the International Criminal Court, including the Red Cross, 
American Bar Association, Amnesty International, Human Rights Watch, Lawyers 
Committee for Human Rights, and International Commission of Jurists. Members of 
these organizations and most Europeans, Latin Americans, and people in other 
democracies understand that the benefits of the treaty will far outweigh the 
costs.

First, the costs of ratification are extremely low.   The existing treaty meets 
the dual U.S. interests in an effective court and in protecting itself against 
inappropriate prosecutions.

Second, although the court will not deter all crimes, its permanent presence 
and international stature will likely deter at least some atrocities and 
perhaps a few genocides, and this will serve U.S. interests.  If such crimes 
are not deterred by law, the United States may feel compelled to impose 
economic sanctions or send soldiers into dangerous contexts, resulting in loss 
of lives.  If the court can thus save the lives of even a small number of U.S. 
service men and women, as well as the lives of other victims, it is worth it.

Third, the court is a cost-effective institution for addressing violations of 
international humanitarian law because it will avoid the recurring need to 
devote time, energy, and money to establishing less effective ad hoc tribunals. 
 To the extent that it does deter, it will also save the money that otherwise 
would go into costly U.S. or UN deployments.

For the world's only democratic superpower to encourage other countries to 
reject law enforcement and to keep themselves outside the law is a disastrous 
policy that will boomerang, haunting us and our grandchildren grievously in the 
future, and on many more legal issues than the criminal court itself.  In 
refusing to participate constructively in international law enforcement, U.S. 
officials seem to confirm the claim by Milosevic, Hussein, Qadafi and others 
that international trials are not impartial and are politically motivated, 
because the law does not apply equally to all.

The issue is not whether it is good to give up U.S. sovereignty to a new global 
institution.  Instead, it is how can we shape all countries' sovereignty, 
including U.S. sovereignty, so that legal instruments will bridle the misuse of 
sovereignty.

Human brutality is not produced simply by the evil that lies within some other 
men and women.  It can arise also from our failure to build on the Nuremberg 
precedent and to ensure that mass murderers are indicted, that law is enforced 
equally throughout the world, that the content of that law is taught in every 
village and town on this planet, and that the norms of acceptable conduct are 
repeatedly affirmed by a legal process made robust because it represents the 
entire world community.

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ROBERT C. JOHANSEN is professor of government and international studies and a 
senior fellow at the Kroc Institute. He is currently conducting research on the 
role of nongovernmental organizations in promoting compliance with 
international humanitarian law and the establishment of permanent International 
Criminal Court, under a grant from the Aspen Institute.  He may be contacted at 
Johansen.2@nd.edu.


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Joan B. Kroc Institute for International Peace Studies
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