The International Criminal Court: Out of the Blocks or on the Block?

First Quarter 2003

by Alaine Gherardi

Over the past year we have heard much about the United States withdrawing its support from the newly created International Criminal Court (ICC), which will be headquartered in The Hague. We have heard criticism from European allies of the Bush administration's decision and have followed subsequent U.S. efforts to ensure protection of American citizens, soldiers, and officials from the court's jurisdiction. Bush administration officials maintain that they are neither trying to render the ICC ineffective nor disagreeing in principle with the ideals and objectives of the court. Nevertheless, the U.S. has not proposed an alternative to the ICC, except perhaps the alternative of maintaining the prior pattern of setting up ad hoc international courts to try specific cases, as was done in the Nuremberg Trials of Nazi war criminals. Though America had been a leader in the creation of the ICC and is an ardent defender of human rights and justice globally, we are left to wonder, along with the rest of the international community, why the Bush administration has so suddenly made such a radical change in policy.

The crux of the matter is this: How far should the world's only remaining superpower go in yielding any of its judicial sovereignty to an authority beyond its borders and outside its Constitution? A closer look at U.S. objections to the ICC confirms President Bush's conviction that the ICC is a mistake, and apparently he has no intention of negotiating further to try to reach an accommodation.

Creation of the ICC

The statute signed in Rome that established the International Criminal Court entered into force on July 1, 2002 after acquiring the signatures of 60 countries, the minimum number needed for passage. While the idea of a permanent world criminal court arose nearly a century ago, it was only in the last five years that serious strides were taken toward its development. Presently, more than 80 countries have signed on and are making arrangements for the court to begin full operation by March 2003. The ICC, which consists of 18 international justices, will have an appointed prosecutor charged with the responsibility to bring cases before it. The ICC's jurisdiction reaches only to crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. The court will have authority to prosecute an individual who is a national of any state that has ratified the Rome statute. The court may also prosecute an individual who commits such a crime on the territory of a state that has ratified the statute, regardless of whether that individual is a national of any ICC member state. Finally, the ICC has been designed as a court of last resort and, therefore, must always defer to the prosecutorial action of the national government of the accused individual. However, the ICC prosecutor and justices have the final say in determining whether the government of the accused is willing and able to provide and conduct a fair investigation and trial.

The Controversy

The Bush administration contends that the ICC lacks an adequate system of checks and balances to keep it from pursuing politically motivated prosecutions. A consequence of that weakness, say American officials, is that American servicemen, military officials, and civilian leaders might be unjustly and disproportionately targeted for prosecution because of America's global military and peacekeeping reach. In order to avoid the prospect of such illegitimate accusations, American leaders might decide to act with undue constraint in choosing means of self-defense or in participating in peacekeeping and humanitarian missions worldwide. For these reasons, as movement toward final ratification of the ICC proceeded, the U.S. vetoed the renewal of a UN peacekeeping mission in Bosnia, of which it is a part. The purpose of the veto was to make the point that the ICC may keep the U.S. from participating in such missions in the future. The American decision came only after it had failed to obtain support from allies for its effort to include language in the ICC regulations that would have guaranteed peacekeepers immunity from the ICC's jurisdiction.

Wanting to keep the U.S. involved, ICC proponents tried to accommodate American concerns by promising that the Court would not, for a 12-month period, commence any investigation or prosecution of nationals of non-state parties (such as international peacekeeping missions). Moreover, the 12month period would be renewable. This and several other safeguards already built into the ICC to guard against unchecked power did not sufficiently allay U.S. fears, however. The Bush administration specifically objects to the ICC prosecutor and the court having jurisdiction over non-state parties. Consequently, when signatories to the Rome statute rejected a U.S. proposal to grant the UN Security Council sole authority to decide whether the court could take up a case, the United States unsigned the statute and withdrew all support.

Unwilling to pursue any possible compromise on the ICC, the U.S. has since taken several further aggressive steps to protect American citizens from the ICC's jurisdiction. Domestically, members of Congress have inserted a clause in the American Servicemen's Protection Act that would grant the U.S. the right to use force to remove an American accused by, and held in custody of, the ICC. Furthermore, Washington has actively approached ICC member states, urging them to sign bilateral agreements to prohibit the surrender of U.S. nationals to the ICC. This latter action has incited deep resentment among key European allies, including many powerful members of the European Union (EU), such as Germany and France.

Unfounded American Fears

The chief purpose of the ICC is to prosecute those who authorize or direct major war crimes, large-scale genocidal campaigns, or similar atrocities. In this regard, the ICC is not a new development in international law or a new invention designed to restrain the exercise of American power or peacekeeping efforts in the world. The idea of, and momentum behind, the court goes back nearly a century, and the ICC, as it stands today, represents the continuing commitment of many countries to the work of codifying the most positive developments in international criminal law in the past century.

The Bush administration claims that the ICC goes beyond any existing international covenant or treaty in requiring the sacrifice of national sovereignty, but this is simply not the case. The ICC does not have authority to define new crimes, but rather provides a permanent institution where these crimes can be adjudicated. In the Geneva conventions on war and the Hague peace conventions the international community has, for more than 100 years, prohibited the crimes of genocide, war crimes, and crimes against humanity as violations of international law. The United States is a member of both conventions. Furthermore, those crimes were clearly recognized as violations of international law by the post-World War II tribunals at Nuremberg and Tokyo and, more recently, by the ad hoc tribunals sponsored by the UN to try war criminals in Rwanda and the, former Yugoslavia. Again, these tribunals had the full support and backing of the United States. In addition, the court consists of four independent organs (the presidency; the pre-trial, trial and appeals divisions; the office of the prosecutor; and the registry) that have been assigned contrasting and sometimes competing institutional functions and objectives so that the ICC's powers are not unchecked. Finally, the most significant limitation of its power is that the court follows the principle of complementarity, requiring that it defer first to national courts and serve only as court of last resort to try only the gravest and most atrocious of crimes.

The ICC is the most recent expression of long-term international efforts to stop grave abuses of human rights and to develop a more sophisticated and permanent international legal order. Because of the principles of state sovereignty and nonintervention, enshrined in the UN Charter, the ICC is not without a system of checks and balances to guard against the abuse of its authority. In fact, the ICC does not differ significantly from other covenants and treaties to which the U.S. is a full party. One need only look at the administrative and governing structures of the World Trade Organization (WTO) to find the same, if not a greater measure of obligation by sovereign states to a supranational body. The difference in the case of the ICC appears to be that the Bush administration does not want to cede any authority to a permanent international organization in the area of criminal judgment.

Those countries that have joined in support of the ICC have succeeded in establishing a permanent body in which institutional memory can be built, best criminal-justice practices utilized, and international criminal justice pursued. The ICC could become a formidable means of promoting justice and contributing to the reestablishment of security and public confidence following grave crises such as those that occurred in Hitler's Germany and Milosevic's Yugoslavia. The ICC did not drop from out of thin air on an unsuspecting America, nor has its creation posed serious difficulties for the 80+ countries that have joined in its support. If the U.S. wants to continue to demonstrate its commitment to, and leadership in the development of, international human rights and justice, the Bush administration should reconsider the course it has taken of withdrawing its support and should once again become a strong and active participant in helping to shape the ICC in the future.

Ms. Gherardi is assistant to the director of the Civitas Program in Faith and Public Affairs. She holds the M.A. in international affairs and European studies from the University of Kent in England.