The United States and the
International Criminal Court

After repeatedly expressing support for establishing a permanent court to try those responsible for the worst international crimes, the United States voted against the adoption of the Rome Statute of the International Criminal Court (ICC) at the close of the Rome Diplomatic Conference on July 17, 1998.

The United States had participated actively in the Rome Conference, contributing most notably to the protections for due process and rights of the accused. But in the end it joined six others – including China, Iraq, and Sudan – in an attempt to defeat the establishment of the Court. These countries were in a minority: 120 nations, including all of the U.S.’s leading allies, voted in favor of the Court.

The concerns of the United States government focus on three key points. Each point has a basis in fact, but upon closer examination, reveals serious flaws.

Sections The International Criminal Court will not become a forum for politically motivated investigations and prosecutions of American citizens. The International Criminal Court may prosecute Americans only if they are accused of a crime in a country that has ratified the ICC treaty, and U.S. authorities do not genuinely investigate the case. The International Criminal Court will not unduly interfere with United States' ability to conduct overseas military operations.

1. The International Criminal Court will not become a forum for politically motivated investigations and prosecutions of American citizens.

With the establishment of the International Criminal Court, some in the U.S. have expressed concern that this new international forum could be abused by anti-American powers for political purposes.

President Slobodan Milosevic’s petition to the International Court of Justice during the Kosovo air campaign, and Belgrade show trials of NATO leaders prior to the Yugoslav presidential elections, are evidence of how governments hostile to the U.S. may attempt to use domestic and international legal mechanisms to embarrass the United States government and military.

The International Criminal Court, however, is likely to be a more reliable and credible judicial body than the national courts of many countries. The qualifications of the officials of the Court, including the judges and the Prosecutor, are measured by the highest standards. Operating outside of any domestic political setting, and staffed by international personnel representing a greater diversity of voices than is to be found in any single legal system, the ICC is less susceptible to political pressure than individual countries. Court officials are elected to non-renewable terms by a majority of those countries that have ratified the ICC treaty (including all but one of the United States’ NATO allies), and may be removed from office for specified misconduct by these same countries.

As lone voices in an international forum with defined processes, irresponsible states will not be able to monopolize this process, nor will the elected officials be held hostage by their political whims.

The jurisdiction of the Court is circumscribed and subject to numerous safeguards. Countries are given ample opportunity to assert their right to try a case themselves. The Court may only investigate or prosecute a case if it finds that a country is unwilling or unable to do so itself. As a result, a judicial system as solid as the United States’ will have primacy in all cases – even if officials decide the evidence does not warrant prosecution – provided the investigation or prosecution is genuine. In addition, the judges of the Court must endorse any decision of the ICC Prosecutor to initiate an investigation or prosecution, and countries can appeal the decisions of the Court. Furthermore, the United Nations Security Council has the authority to suspend an investigation or prosecution for renewable 12-month periods where the interests of peace and security so demand.

Should a case in fact go to trial before the International Criminal Court, the due process rights guaranteed by the ICC treaty (negotiated in no small part by the United States itself) ensure that proceedings will not be subject to political machinations. The rights accorded the accused are set out in greater detail than in any national judicial system, including that of the United States. In fact, the Rome Statute goes farther to safeguard constitutional protections than do many national courts to which the United States frequently extradites individuals.

Other countries with long-standing, fair, and reliable judicial systems have endorsed the ICC treaty, confident that the probability of political abuse is minimal. Americans need not fear the ICC any more than they need to fear American courts.

“The International Criminal Court will act only where national courts have failed to offer a remedy,” said former British Foreign Secretary Robin Cook. “Therefore I think the concern about the U.S. Servicemen is misplaced. We in Britain would not be exposing our servicemen to vexatious prosecution. We have signed up to the International Criminal Court because we are confident there is no risk of that.”

2. The International Criminal Court may prosecute Americans only if they are accused of a crime in a country that has ratified the ICC treaty, and U.S. authorities do not genuinely investigate the case.

In limited circumstances, the Rome Statute would allow the ICC to exercise jurisdiction over American citizens if they stand accused on reasonable grounds of committing crimes in countries that have ratified the ICC treaty. The United States argues that citizens of countries with solid judicial systems, such as the United States, should be shielded from the jurisdiction of the International Criminal Court, in particular when the suspects in question are acting in an official capacity (a defense argument that was rejected at the Nuremberg trials). The U.S. has gone so far as to suggest that countries do not have the right to delegate their national jurisdiction to an international court, and that all cases not involving citizens of countries that have ratified the ICC treaty should be tried only in national courts.

The International Criminal Court was created by the nations of the world as an internationally sanctioned forum in which countries agree to try cases if their national courts are unable or unwilling to do so. If an American citizen commits a crime in a foreign country, whether in an official or unofficial capacity, basic international law already allows that country to try him or her. Similarly, that country may, by ratifying the ICC treaty, designate the International Criminal Court as a supplementary forum for trying the same case when it is unable or unwilling to do so itself. Of course, a nation’s sovereign right to try those accused of committing crimes on their territory is always subject to their other international agreements and the law of immunities. The Rome Statute makes allowance for these.

The International Criminal Court will always defer to national courts if they are willing and able to investigate or prosecute the crime. Since solid judicial systems are as a rule genuinely willing and able to do so, they need not fear that the ICC will inappropriately strip them of jurisdiction. The jurisdictional scope of the ICC may indeed restrict the ability of the United States to shield its citizens from foreign prosecution. But in the place of the current potential for any given nation to put an American citizen on trial, the International Criminal Court offers a highly respected and widely supported set of legal standards equal at least to those of the United States. The principle underlying the International Criminal Court is that no one, regardless of nationality, is beyond the rule of law.

3. The International Criminal Court will not unduly interfere with United States' ability to conduct overseas military operations.

United States armed forces engage in more military operations around the world than those of any other country, including a wide range of humanitarian and other interventions.

These operations are often highly complex and involve difficult judgment calls. In some situations, hundreds or even thousands of targeting decisions are made each day. An international court with jurisdiction over genocide, crimes against humanity, and in particular war crimes, is certain to remind anyone planning such complex military operations of the need to maintain vigilant adherence to the international laws of war. As a general rule, however, United States military personnel are not known to commit war crimes – much less genocide or crimes against humanity – particularly not with the intent and knowledge that are key elements of the ICC’s definition of these crimes.

The ICC does not impose new international law on U.S. military action. Each military targeting decision made by the U.S. armed forces is already subject to strict legal scrutiny by international lawyers in the employ of the U.S. military. Although U.S. law could be improved, existing procedures are broadly sufficient to meet the standards of the International Criminal Court.

The Court has no authority to determine whether or not a military operation can be conducted; it only has authority to adjudicate whether internationally recognized crimes are committed in the course of the operation. The knowledge that an independent, international body has the authority to adjudicate war crimes, crimes against humanity, and genocide certainly provides an added incentive for forces of all nations to act responsibly, an incentive clearly in the interest of the United States itself.

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