US Fear of the ICC: An Analysis

Tom Cooney

Faculty of Law, University College Dublin

The inter-governmental treaty comprising the Rome Statute of the International Criminal Court (ICC Statute) was adopted on 17 July 1998. Once the Statute has been ratified by 60 States, the International Criminal Court (ICC) will itself be created. The ICC will be a permanent Court, situated in The Hague, to try individuals alleged to have committed genocide, crimes against humanity and war crimes. It will end impunity for individuals who commit those crimes. 120 states have endorsed the ICC Statute in principle, and 37 states have ratified it so far. Even so, the United States (US) continues to oppose its creation. Why?

Jurisdictional Arguments

The US complains that the ICC has been granted excessive jurisdiction supposedly based on universal jurisdiction. The gravamen of this complaint is that the treaty has the potential to catch non-state parties within its sweep. This objection was deployed during negotiations to advance the proposal that an accused’s state of nationality should have the power to veto the ICC’s involvement in any case. This argument fails.

First, the argument distorts the actual jurisdiction of the ICC. The ICC will be able to investigate crimes committed by nationals, or on the territory, of states parties, or of non-state parties who have given consent (Art 12). The ICC Statute does not bind non-state parties. Indeed, the scheme of the ICC Statute distinguishes between state parties and non-state parties (e.g., ICC Statute, Part 9, covering state co-operation with the ICC). The ICC will also have jurisdiction over crimes, wherever committed, which are referred to the ICC by the UN Security Council, where the US has a power of veto.

Second, the veto device would fly in the face of settled jurisdictional principles. The principle of territoriality justifies a state, on whose territory crimes are perpetrated, to exercise jurisdiction to try the alleged offender, regardless of the accused’s nationality. Requiring the consent of the state of nationality to validate a prosecution would trench upon this elementary principle.

Third, the core crimes of the ICC Statute have already a special status in international law: any state is authorised to prosecute them as crimes of universal jurisdiction, without requiring any other state’s consent. The principle of universal jurisdiction empowers states to define and punish crimes recognised by international consensus as being of universal concern (e.g., piracy, slave trade, attacks or hijacking of aircraft, genocide, war crimes, and terrorism). US domestic law endorses this principle. But the ICC’s jurisdiction is subject to a limitation that does not bridle the exercise of universal jurisdiction by any state: Article 12 of the ICC Statute gives the ICC jurisdiction only where the state of territory or nationality has ratified the treaty or has afforded consent. Clearly, the ICC has not been entrusted with universal jurisdiction.

So what is the crux of US opposition to the ICC? It is the ICC’s power to try individuals from a non-state party without its consent. But this does not represent jurisdiction over the state of nationality. In fact, it embodies an exercise of jurisdiction that has a basis in existing international law and accords with state practice (e.g., under the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971)), which the US already accepts.

Political Arguments

The US opposition to the ICC is a gourmand’s salad of unsound legal arguments, but at the bottom of the heap is its real political objection: The ICC might inhibit the sovereign power of the US to use its military force in the international setting. The US makes this argument from sovereignty but adds to it a twist: The ICC might be manipulated by enemies, striving to use law as war by other means, to mount politicised prosecutions against US personnel.

For this reason, the US prefers now to establish criminal courts on an ad hoc basis as the Security Council sees fit. It would prefer all prosecution proposals to pass by its desk on the UN Security Council. But the idea that ad hoc international criminal tribunals can afford a firm bulwark against crimes against humanity is shallow. As a matter of principle, the administration of international criminal justice must respect the virtue of integrity. The present system offends integrity because it enables the UN Security Council to make selective decisions governed by expediency. The ICC would promote consistency in the application of core international criminal law. In any event, there are states on the UN Security Council (e.g., China) who have signalled their opposition to setting up new ad hoc criminal tribunals.

The claim that the ICC is likely to be tilted against the US is over-cooked. First, under the ICC Statute, an assembly of state parties will choose the ICC’s prosecutor and judges, under provisions intended to ensure proper legal calibre. The like-minded states (allies of the US) will be dominant in the assembly. This increases the probability that the ICC will show fidelity to the fundamental legal virtues of independence, objectivity, impartiality, and integrity. If US military interventions comport with international law, then its unease about the court is misplaced.

Second, the core crimes of the ICC Statute have a high threshold: they require proof of widespread or systematic abuses. A single mistake or accident in the field of battle or in a humanitarian intervention (e.g., when, in 1999, Nato bombed by mistake the Chinese embassy in the former Yugoslavia) would not meet the threshold.

Third, the ICC will be "complementary" to national courts. The relevant states will retain jurisdiction unless they are unable or unwilling genuinely to investigate and prosecute a crime. The Security Council may refer a situation to the ICC. Alternatively, a state party can refer a situation to the prosecutor or the prosecutor can initiate an investigation on his or her own motion. In those two cases, if the Prosecutor has determined that there is a reasonable basis to commence an investigation, he or she must inform all states parties and those states that would normally exercise jurisdiction over the alleged crime. Within one month, a state may inform the ICC that it is investigating, or has investigated, the alleged crimes.

Fourth, the prosecutor must defer to the state's investigation unless the ICC determines that the state is unwilling or unable genuinely to carry out the investigation or prosecution (Art 17). The prosecutor can proceed in such a case only if the prosecutor can convince the judges that the domestic proceedings were conducted in bad faith. Thus there are judicial safeguards against prosecutorial excess.

Fifth, the UN Security Council can vote to stop an ICC investigation or prosecution, provided all the Security Council members agree.

Sixth, the US can enter into agreements (e.g., Status of Forces Agreements) with other states that would prevent the handing over of US personnel to the ICC.

Moral Justification

Although most of the checks-and-balances built into the ICC Statute were designed to ease US concerns, the US still opposes the treaty. It has signed the treaty but only to afford it standing to press for debilitating revisions. It is crucial that the US shape a constructive coexistence with the ICC. The human rights benefits of the treaty are bound to be significant, and they harmonise with the moral ambition of all constitutional democracies.

First, the ICC Statute respects the principle of legality. That principle holds that to be answerable to criminal justice, offenders must have acted voluntarily and must have had fair notice of what behaviour will attract criminal punishment. The ICC Statute codifies and enhances the definition of genocide, crimes against humanity, and war crimes, including gender-based crimes. No offender will be able to argue persuasively that he or she is the object of victor’s justice.

Second, the ICC would vindicate the claims of victims and their families, and assist many of them to recover a sense of their intrinsic dignity. True, no punishment of a criminal against humanity could neutralise the evil endured by victims and their relatives. But it is vital that their account is acknowledged with respect and consideration, that the ‘radical evil’ they endured is witnessed, and that the offenders are punished.

Third, an independent ICC can expose the scope and nature of the atrocities in humanitarian catastrophes. Inevitably, barbaric regimes or groups try to mislead the public about the reality of their heinous crimes. The objective fact-eliciting process of the trial would enable the ICC to scrutinise the truth more closely, with the accused participating in the development of the record. Acknowledgement of the offenders’ evil may help people to free themselves from its death-grip.

Fourth, ICC trials would affirm the rule of law: scrupulous judicial concern for fairness, integrity of legal interpretation, due consideration of defence, conformity to evidential procedures, and respect for the principles of punishment should provide a sharp contrast with the brutal lawlessness of the offenders.

Fifth, the ICC could help to reduce the drive for private revenge in transitional societies. Once justice according to law is done (and is seen to be done) then victims and relatives may become more willing to control their desire for vengeance. In the absence of any recourse to legal justice, revenge is likely to produce more atrocities.

Sixth, the ICC’s work would help to promote public deliberation, domestically and internationally, about what factors produce criminals against humanity and their atrocities.

Conclusion

The ICC would serve US strategic self-interest: it would provide an impartial and independent, international judicial forum, deter some criminals against humanity, and save the costs involved in creating ad hoc tribunals. The American objections to the ICC are little more than rhetorical dressage. But US opposition is really unilateral exceptionalism coddled in flimsy legal analysis. That policy means in practice that the US reserves the right to judge in its own cause whether its use of military force in any case accords with principles of international law. Moreover, it prefers to remain outside an institution designed to curb the abuse of national sovereignty. In so doing, it transmits the message that it (unlike its allies) is above the law, encourages rogue states to do likewise, and reinforces the prejudice that the ICC is a biased institution. All of this is grist to the mill of those states that refuse to take the rule of law and human rights seriously.

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