Scotti Shafer - Stanford University



The United States Anti-involvement with the ICC

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Scotti Shafer

December 5, 2003

Edge Paper

Bruce Lusignan

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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. CONSTITUTION |

|Presumption of Innocence | |

|"Everyone shall be presumed to be innocent until proven guilty before |"The principle that there is a presumption of innocence in favor of |

|the Court . . ."(Art. 66) |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 |"In all criminal prosecutions, the accused shall enjoy the right to a |

|accused shall be entitled . . . to be tried without undue delay; . . |speedy and public trial, . . ."(Amendment VI) |

|."(Arts. 67(1), 67(1)(c)) | |

|Assistance of Counsel | |

|"…the accused shall be entitled…to communicate freely with counsel of |"In all criminal prosecutions, the accused shall enjoy the right…to |

|accused's choosing…""…the accused shall be entitled… to have legal |have the Assistance of Counsel for his defense."(Amendment VI) |

|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)) | |

|Right to Remain Silent | |

|"…the accused shall be entitled…not to be compelled to testify or to |"No person…shall be compelled in any criminal case to be a witness |

|confess guilt and to remain silent, without such silence being a |against himself…"(Amendment V) |

|consideration in the determination of guilt or innocence;…"(Art. | |

|67(1)(g)) | |

|Privilege Against Self-Incrimination | |

|"…the accused shall be entitled…not to be compelled to testify or to |"No person…shall be compelled in any criminal case to be a witness |

|confess guilt…"(Arts. 54(1)(a), 67(1)(g)) |against himself…"(Amendment V) |

|Right to Written Statement of Charges | |

|"…the person shall be provided with a copy of the…charges…"(Art. |"In all criminal prosecutions, the accused shall enjoy the right…to be|

|61(3)) |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 |"In all criminal prosecutions, the accused shall enjoy the right…to be|

|witnesses against him or her…"(Art. 67(1)(e)) |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 |"In all criminal prosecutions, the accused shall enjoy the right…to |

|examination of witnesses on his or her behalf…"(Art. 67(1)(e)) |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 |"No Bill of Attainder of ex post facto law shall be passed."(Art. I, |

|question constitutes, at the time it takes place, a crime within the |sec. 9, cl. 3) |

|jurisdiction of the Court."(Art. 22) | |

|Protection against Double Jeopardy | |

|"No person who has been tried by another court…shall be tried by the |"…nor shall any person be subject for the same offence to be twice put|

|Court with respect to the same conduct…"(Art. 20) |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|"[N]o Warrants shall issue, but upon probable cause…"(Amendment IV) |

|[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)) | |

|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 |When evidence is obtained in violation of the Fourth Amendment, the |

|internationally recognized human rights shall not be admissible…"(Art.|judicially developed exclusionary rule usually precludes its use in a |

|69(7)) |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.

The United States is also unwilling to join the ICC because of its jurisdiction over crimes of aggression. The Court’s jurisdiction over crimes of aggression is clearly stated in Article 5 of the Rome Statute. It states, “The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.” However, the ICC “will not exercise such jurisdiction until the crime [of aggression] has been further defined and conditions under which the Court will exercise its jurisdiction have been agreed upon.”[16] The United States does not feel that the ICC should be in a position to have jurisdiction over aggression because it gives them the power to investigate and prosecute the “still to be defined crime of ‘aggression.’”[17] Since there is not yet universal definition for the crime of aggression, the U.S. does not feel that the ICC should be given the power to define this crime and then become the prosecutor of crimes they have defined.

In deciding not to join the ICC, the United States is not removing itself from ICC jurisdiction, but is isolating itself from the rest of the world and may well be starting the decay of their ability to shape world policy. ICC jurisdiction can be given either by the territorial State (the State where the crime took place), or the State of nationality. So whether or not the U.S. signs the ICC, U.S. nationals could still be subject to ICC jurisdiction. Thus, if an American national commits a war crime on a territorial state, the case could be referred to the ICC despite the fact the United States is not a member of the ICC. This potential action may be the single most convincing reason for the United States to join the ICC now. The unsigning of the Rome Treaty does not guaranty the Unites States sovereignty; it simply gives the rest of the world a negative image of our country. For example:

• No country has ever ‘unsigned’ a treaty in the history of the United Nations.

• The unsigning has strained US relations with allies around the world.

• Bush’s actions are viewed by European countries as an isolationist move on behalf of the United States, breaking away from its policy of human rights concerns.

• This decision establishes a bad precedence, and would allow countries that have yet to ratify treaties that are important to United States policy to ‘unsign’ themselves.

• Unsigning the treaty poses problems for the validity of future United States presidents.[18]

Contrastingly, by signing the Rome Treaty the United States would have a say in important future decisions, such as the selection of the 18 judges who will make up the ICC, and would allow the U.S. a say in the interpretation and decision making on the crime of “aggression.”

“The only way the US can protect its interests at the Court is by actively participating in the Assembly of States Parties so as to shape a strong and fair institution that will protect US interests. The US can have this kind of positive influence, as is shown by it past work on the Court. Throughout its strenuous participation in all the years of ICC negotiations, the US made extensive contributions to the Court’s present form. These include provisions giving strong deference to national courts, the inclusion of almost all of the US Bill of Rights, and definitions of crimes in complete conformity with the US Uniform Code of Military Justice. If the US continues to work actively with the Court as an observer, player and referee, it will have the position and authority to guard itself against perceived threats. This will be impossible if it undermines its influence and credibility through active hostility or arbitrary refusals to cooperate with the ICC.”[19]

On top of this, by joining the ICC the United States would be making a strong symbolic stance, indicating to the rest of the world that America does care about the rule of law everywhere and will under no circumstances allow horrible crimes against humanity. Former president Bill Clinton stated, “[Signing the Rome Treaty will] reaffirm our strong support for international accountability and for bringing to justice perpetrators of genocide, war crimes, and crimes against humanity.”[20] Since the United States has no choice but to be under the jurisdiction of the ICC, it seems only logical that the U.S. should join and become strongly involved in efforts to shape and form its foundation to their own benefit.

Currently, the United States is undermining the efforts of the ICC by making bilateral deals with other countries that will exempt the United States from the Rome Statute of the ICC. Article 98 of the Rome Statute provides immunity to both military and civilian personnel by not allowing countries to surrender individuals to the court for acts consistent with obligations under another international treaty. The United States is manipulating Article 98 to protect treaties they are making today to evade the ICC. “The United States is interpreting Article 98(2) as allowing them to strong-arm other countries into exempting the U.S. from the International Criminal Court’s jurisdiction with threats of withholding military and economic assistance,” states Heather Hamilton, the director of bilateral agreements. Hamilton added that Article 98 was “in no way intended to provide immunity for the nationals of one country from international justice.” In their manipulation of Article 98 and by deciding not to sign the Rome Statute, the United States is sending a message that one has to believe; the message that we are above the law.

On top of this, U.S. policy makers have failed to listen to their own citizen’s views toward the International Criminal Court. “Within the Washington policymaking community, there is a widespread assumption that the American public is very wary of international cooperation and of the international institutions that were built for that purpose,”[21] such as the ICC. A study taken by Market Strategies and Greenberg Research in April of 1993 shows that the majority of the American public is in support of the ICC. Below is an example of a question from the study:[22]

|83 Question: Some people think that the U.N. (United Nations) Charter should be changed so that top leaders, such as heads of state in |

|different countries, could be arrested by the U.N. for certain serious crimes and then tried by an International Criminal Court, and if |

|judged guilty would be punished. I am going to read you some things that leaders have done and ask if you approve or disapprove changing the|

|U.N. Charter to permit the U.N., upon due process of law, to bring leaders accused of these things to stand trial by an International |

|Criminal Court....[below]..Do you approve or disapprove bringing that leader to trial in an International Court? (If approve/disapprove, |

|ask:) Would that be strongly or somewhat? |

|A leader who does serious damage to the global environment. |

|Strongly approve |68% |

|Somewhat approve |18 |

|Somewhat disapprove |6 |

|Strongly disapprove |6 |

|Don't know |2 |

|A leader who invades and occupies a neighboring country. |

|Strongly approve |69% |

|Somewhat approve |17 |

|Somewhat disapprove |7 |

|Strongly disapprove |6 |

|Don't know |2 |

|A leader who violates human rights, including making war on ethnic and other groups in that leader's country. |

|Strongly approve |71% |

|Somewhat approve |16 |

|Somewhat disapprove |5 |

|Strongly disapprove |7 |

|Don't know |1 |

|A leader who prevents a democratic election from taking place. |

|Strongly approve |44% |

|Somewhat approve |24 |

|Somewhat disapprove |18 |

|Strongly disapprove |12 |

|Don't know |2 |

|A leader who acquires nuclear weapons. |

|Strongly approve |50% |

|Somewhat approve |17 |

|Somewhat disapprove |17 |

|Strongly disapprove |12 |

|Don't know |4 |

| |

This study along with many other similar ones is clear evidence of the publics pro-stance toward the ICC. Another study taken in March 2000 by the Program for International Policy Attitudes came out with the same results.

All in all, the Bush Administration and Congress need to take into consideration the views of their citizens with regard to the ICC. As a democratic nation the actions of the United States should be up to the people and not a small group of policy makers.

Conclusion

The world is reeling from a century stained by unimaginable carnage to humanity. Our parents and grandparents suffered from the evils of Hitler and the Holocaust, they have been horrified by the Rwandan genocide, the racial purification in former Yugoslavia, and Pol Pot’s slaughter of millions of Cambodians. Now a new generation has been traumatized by the recent terrorist attacks at ground zero. From witnessing such atrocities, we have learned a fundamental lesson; impunity from such grievous crimes must end. It is these horrific crimes against humanity that created a world in need of an international criminal court. Nations must unite to send the strongest of statements against impunity for the most serious crimes. The ICC “is an essential contribution to the preservation of peace and the strengthening of international security.”[23] It is the humanitarian duty of the United States to join the rest of the world in this struggle for peace, justice, and universal human rights.

Work Cited

Establishment of an International Criminal Court – Overview.

USA for the International Criminal Court. December 1, 2003.

Ushani, Agalawatta. “Politics: U.N. Members Say World Court No Threat To U.S.” Oct. 25, 2002. LexisNexis. November 2, 2003. ?

Zagaris, Bruce. “U.S. Announces that It Will Unsign and Take Action Against ICC.” July 2002. LexisNexis. November 3, 2003. ?

Heinbecker, Paul. “U.S. Peacekeepers Not Above the Law.” August 2002. LexisNexis. November 3, 2003. ?

Davenport, David. “Commentary: New Threat to U.S. Sovereignty. United Press International.” August 2003. Lexis Nexis. December 3, 2003. ?

The Roman Statute of the ICC: Jurisdiction. November 3, 2002. Internet.

PIPA. Americas on Globalization: A Study of US Public Attitudes. International Cooperation. March 28, 2000. Internet. December 4, 2003.

PIPA. Americans on Globalization. All Notes. Question 83. December 2, 2003. Internet.

Margrethe, Ellen. “U.S. Peacekeepers Integral and Prosecutable.” August 2002. LexisNexis. November 3, 2002. ?

-----------------------

[1] Establishment of an International Criminal Court – Overview. November 20, 2003.

[2]

[3] ibid.

[4] ibid.

[5] ibid.

[6] Ushani, Agalawatta. “Politics: U.N. Members Say World Court No Threat To U.S.” Oct. 25, 2002. LexisNexis. Nov. 2, 2003. ?

[7] Zagaris, Bruce. “U.S. Announces that It Will Unsign and Take Action Against ICC.” July 2002. LexisNexis. November 3, 2003. ?

[8] Stated by Mark Grosman

[9] Heinbecker, Paul. “U.S. Peacekeepers Not Above the Law.” August 2002. LexisNexis. November 3, 2003. ?

[10] Davenport, David. “Commentary: New Threat to U.S. Sovereignty. United Press International.” August, 2003. Lexis Nexis. ?

[11] The Roman Statute of the ICC: Jurisdiction. November 3, 2003.

[12]

[13] ibid.

[14] ibid.

[15] ibid.

[16] The Roman Statute of the ICC: Jurisdiction. November 3, 2003.

[17] Zagaris, Bruce. “U.S. Announces that It Will Unsign and Take Action Against ICC.” July 2002. LexisNexis. November 3, 2003. ?

[18]

[19] ibid.

[20] ibid.

[21]

[22]

[23] Margrethe, Ellen. “U.S. Peacekeepers Integral and Prosecutable.” August 2002. LexisNexis. November 3, 2002. ?

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