CommentaryJURIST Guest Columnist Wes Rist of the University of Pittsburgh School of Law says that while the International Criminal Court and its founding Rome Statute are far from perfect, the operation of Court since the Statute entered into force in July 2002 provides ample evidence that many fears of American conservatives relating to the Court's operation were and are unfounded…..
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The United States has always had an "on again"/"off again" relationship with the International Criminal Court.
Shortly after his inauguration, President George W. Bush “unsigned” the Rome Statute agreed to by the Clinton Administration [a process graphically described by Clinton war crimes ambassador David Scheffer in a recent JURIST Forum op-ed] and undertook an active opposition to not only US participation in the ICC, but also to the Court’s actual existence. Since then, the US has undertaken significant steps to promote its negative view of the ICC. Using what can at best be termed political manipulation, and at worst strong-arm tactics, the Bush White House began collecting an alphabetical list of Article 98 immunity agreements that would prevent ICC prosecutions against US military personnel in various countries. Congress also passed the American Servicemember’s Protection Act 2002, which legislated restrictions on US support for countries actively supporting the Court, including the withdraw of military support and possible economic aid to ICC states party under the “Nethercutt Amendment.”
US opposition to the ICC has been strongly supported by the conservative elements of the American political spectrum on many grounds, though the most notable objections usually center around concerns of infringement on national sovereignty, "unfair" (read "political") targeting of US military personnel, and due process and US Constitutional issues.
A careful review of these concerns demonstrates, however, that traditional American conservatives should actually be among the strongest supporters of the Court. And while the ICC and the Rome Statute are far from perfect, the six years of the Court's operation since the July 2002 entering into force of the Statute gives provides material evidence that these fears lack foundation in the reality of the Court’s actions.
The issue of the political motivation of possible ICC prosecutions against US military and political leaders is one that will never be put to rest. Unless America reverts to early 20th century isolationism, she will always have detractors and opponents who either simply disagree with American responses to international problems or actively seek to oppose American interests. But the fact that US leaders might be targeted for their actions is nothing new, and conservatives are actually one of the strongest supporters of the principle that drives the personal responsibility at the heart of ICC jurisdiction: that no one, not even the political and military leaders of a country, is above the law.
Going back to the foundation of the United States, the cry against the British t3
reatment of the colonies was not one seeking special treatment. It was simply a demand that the King and Parliament must act in accordance with their own laws and did not have the right to ignore them. The ICC represents the first real attempt to turn that principle into an international norm that says that no one, not even the leader of a sovereign nation, can escape the rule of the law.
The possibility that American servicemen and women and political and military leaders could be held up to scrutiny for their actions is not a new one. It has been enshrined in American law from the foundation of the country under the Articles of War and later the Uniform Code of Military Justice. The ICC merely adds the opportunity for the prosecution of individuals who might have escaped the domestic system of justice. If there is enough evidence that the prosecutor for the ICC could even consider an investigation of a US political or military official for the crimes set out in the Rome Statute, then American conservatives should already have been at the forefront of the call for a domestic investigation. Since the principle of complementarity in Article 17 of the Rome Statute prohibits the ICC from initiating an investigation when a domestic judicial system has already addressed the issue, an American investigation into our own “dirty laundry” would prevent any ICC jurisdiction.
Reassuringly, the Office of the Prosecutor for the ICC has already demonstrated a strong “backbone” when it comes to resisting international pressure for a politically expedient investigation or trial. In February of 2006, the ICC Prosecutor announced that after reviewing hundreds of complaints concerning US and Coalition actions in Iraq, none of the cases rose to the level of the crimes detailed in the Rome Statute. While I obviously do not have access to the original complaints, I do know what the elements of the crimes detailed in the Rome Statute are and the refusal of Luis Moreno-Ocampo to initiate even an investigation against Coalition forces indicates that the ICC will take very seriously its statutory obligation to take on only the most serious of international crimes rising to the levels set out in the Rome Statute. There is simply nothing to suggest that the ICC, after six years in existence, is the politically motivated tool of the enemies of the United States.
Traditional conservative opposition to the Court on the grounds of national sovereignty usually centers around Article 17 of the Rome Statute, which provides that the ICC may not proceed with an investigation when a state party has already conducted an investigation or prosecution “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” 17 (2) provides the specific instances of what would constitute the “genuineness” of a state party’s investigation or prosecution and how the Court should make that determination. Former US Ambassador to the UN John Bolton charged that the ICC opposed “fundamental American notions of sovereignty, checks and balances, and national independence,” an apparent reference to the ICC’s power to review the legitimacy of a domestic investigation or trial of a possible target of the ICC prosecutor. The alleged challenge to “sovereignty, checks and balances, and national independence” apparently comes from having someone who can review US judicial proceedings and declare on their “genuineness.”
While this issue may very well be of concern in many nations around the world, the United States is not a country that should have to worry about the “genuineness” of its judicial proceedings. One of the many foundational concepts of American conservatism is that power should never be absolute in the hands of the government. The War for Independence came about in large part because of the unchecked use of power by the British Parliament in the name of King George III. This concern gave rise to the separation of powers and the system of checks and balances that we enjoy under the American Constitution. The Rome Statute’s review of “genuineness” of judicial proceedings is not an abridgment of checks and balances, but rather another, albeit international, check on domestic governments. Given the strong heritage of an independent judiciary in this country and the inability of the executive branch to exercise any permanent control over federal judges, the only instance where the ICC could step in and take up a case where an American investigation or trial ha
d already occurred would be if the executive branch exercised undue influence over the investigation or trial and prejudiced the result. Should that event occur, not only should American conservatives be supportive of the ICC’s ruling, but they should also be at the head of the crowd protesting the abuse of power by the executive branch. That kind of unchecked authority is exactly what the American experiment was designed to eliminate.
Finally, there are some valid due process concerns relating to the operation of the Rome Statute. While the process provisions of the Rome Statute (Article 67, among others) are not exact copies of US constitutional protections, they hardly create the possibility of an unfair or impartial trial. In fact, the rights spelled out for defendants throughout the entirety of the Rome Statute are some of the strongest criminal defendant protections put in place for any international tribunal and they certainly rise to the level of meeting the judicial guarantees provided for by the Geneva Conventions and international human rights laws such as the International Covenant on Civil and Political Rights.
Ultimately, should the US government or conservatives in general have any specific concerns about the due process or Constitutional protections (or lack thereof) afforded by the Rome Statute, the solution is simple: conduct an investigation or trial domestically so that there is no reason for the ICC to become involved. In fact, as mentioned previously, a proactive investigation by the US creates a statutory bar to involvement by the ICC Office of the Prosecutor.
For conservatives, this should be the preferred response anyway. First, when our own military or political leaders undertake an action that could even remotely be construed as rising to a criminal violation of the ICC, they reflect poorly upon us, the citizens of the United States. As conservatives, we hold that identification dear and when any leader, regardless of how much we approve of their other actions, ideas, or political views, exposes Americans to that kind of criticism, they have forfeited the trust of the people and must be held accountable. Second, as conservatives, we have an unabashed tendency to view the US Constitution as the best example of the balance between effective government and the protection of personal liberties in existence. If we really believe that, then the only proper response for a conservative when faced with the possibility of actions by our own leaders that might rise to the level of Rome Statute crimes is to insist upon an investigation or trial under domestic law; especially if we believe that leader to be innocent of the charges. The concept of the Rule of Law is deeply ingrained into the conservative ideology and if we as conservatives wish to continue to hold the US Constitution up as an example of how this concept can be effectively implemented, then we must be willing to apply it to our own.
While the political wind in conservative circles seems to be blowing against international cooperation these days, the principles and goals of the ICC are ones that we as conservative Americans are not only familiar with, but have espoused strongly as our own in the past. From the first experiment in international criminal law at Nuremberg, American conservatives have been able to point at the core concepts held within those proceedings as the very essence of the principles we feel most strongly about. We who regard ourselves as politically conservative should take a step back, look at the Rome Statute and the ICC objectively, and then ask seriously why we should not be the loudest voices in America calling for our government to not only join, but spearhead the charge for worldwide ratification of the Rome Statute and a push for justice on an international level.
Wes Rist is an Adjunct Professor and Assistant Director of the Center for International Legal Education at the University of Pittsburgh School of Law. He was a member of JURIST's student staff from 2004-2006, and served as JURIST's International Law editor from 2005-2006.
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