Exclusive: Constitutionalism vs. Supranationalism - The U.S. and the International Criminal Court
by ADAM RAEZLER
June 3, 2010
“No aspect is more troubling … than the fact that it has been framed without any apparent respect for – and indeed in direct contravention of – the U.S. Constitution.”
– Former Senator John Ashcroft
On 31 May 2010, the Assembly of States Parties will gather in Kampala, Uganda to convene to first review conference of the International Criminal Court (ICC), since its inception. The purpose of the conference is for the Assembly of States Parties to both consider amendments to the Rome Statute and for the delegates to take stock of the Court’s activities. While the U.S. is not a State Party to the Rome Statute, the Obama Administration has taken several steps in an effort to expand U.S. engagement with the ICC. Since the court came into force in 2002, the U.S. has worked vigorously to defend American sovereignty from the court. Secretary of State Hillary Clinton stated, “It is a great regret that the U.S. has not yet joined the ICC.” [i] The Obama Administration has made it a priority for the U.S. to enter into a more harmonious relationship with the ICC and this move puts American sovereignty and U.S. Armed Forces in peril.
A History of The U.S. & The ICC
On 17 July 1998, 120 nations voted in favor to approve the text of the Rome Statute to establish a permanent ICC, at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. While the U.S. worked tirelessly during the five-week diplomatic conference to amend the Rome Statute in a manner that would preserve U.S. sovereignty, in the end the American delegation concluded that the Treaty, in its present form, contained flaws that rendered it unacceptable. The U.S. delegation, led by David J. Scheffer, went to Rome with the hope that a permanent International Criminal Court could be constructed under the authority of the United Nations Security Council, as the United Nations Charter has charged the Security Council with the task of maintaining international peace and security. [ii]
The U.S. Senate had also made their desires very clear in that the U.S. should not support a court that would infringe on U.S. sovereignty. By the end of the conference a court was constructed that lacked any form of credible checks and balances, as the ICC was to be an independent international institution. The U.S. believed that a court constructed in this manner could easily be used as a vehicle to subvert national sovereignty, impose its own transnationalist agenda and could be used to pursue politically motivated prosecution against American armed forces personnel and government officials, including the President of the U.S.
There are a number of reasons why the U.S. must be cautious about how ratification of the Rome Statute would affect U.S. sovereignty and how ICC action could impact politically precarious conditions around the world. Throughout history the U.S. has maintained that states, not international institutions are primarily responsible for ensuring justice in the international system and that the best way to combat these serious offenses is to build domestic judicial systems, strengthen political will and promote human freedom. [iii] Both Presidents Bill Clinton and George W. Bush have concluded that the ICC does not advance U.S. ideals. Both administrations believed that the ICC undermines the role of American national sovereignty and our role in maintaining international peace and security and that the Rome Statute constructs a prosecutorial system that lacks any form of checks and balances. The two administrations also believed that in order for a state to be bound by a treaty, a state must be a party to that treaty. The ICC asserts jurisdiction over citizens of states that have both ratified and not ratified the Rome Statute. This open ended and unchecked power is a direct threat to American sovereignty. [iv] Finally, the administrations believed that the ICC was built on a flawed foundation that leave the Court open for exploitation and politically motivated prosecutions. These beliefs serve as the primary reasons as to why both Presidents Clinton and Bush refused to send the Rome Statute to the U.S. Senate for ratification and the Obama Administration must remain opposed to U.S. ratification of the Rome Statute. On December 31, 2000 President Clinton signed the Rome Statute, despite what he called “significant flaws” in the Treaty. Mr. Clinton chose not to send the treaty to the Senate for advice and consent and he recommended that his predecessor also not submit the treaty until these significant flaws are addressed. [v] After extensive efforts to amend the statute to address the U.S.’s key concerns failed, President Bush felt it was necessary to un-sign the Rome Statute in an effort to protect American Armed Forces and government officials from the flawed court. On May6, 2002, President Bush sent a letter to the U.N. Secretary General, signed by Under Secretary John Bolton, stating, "This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty." [vi] By un-signing the treaty, President Bush formally notified the U.N. Secretary General that the U.S. did not intend to ratify the treaty and that we were no longer bound under international law to avoid actions that would run counter to the intent and purpose of the treaty. Given these concerns and the undefined crime of aggression the Obama administration should resist international demands for the U.S. to re-sign the Rome Statute. [vii] [viii]
American Dissatisfaction In Rome
The U.S. has long championed human rights and has supported the belief that those who commit serious human rights violations should be prosecuted. The U.S. supported the creation of international tribunals to prosecute the most heinous violators of human rights. The U.S. was a leading forced behind the establishment of the Nuremburg and Tokyo tribunals and since then were key supporters of establishing the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Building upon the U.S.’ long support for international justice they were willing to participate in the efforts of the early 1990’s to establish an International Criminal Court. [ix] However, once the negotiations on the final text were concluding, America’s support diminished because its concerns were disregarded or opposed outright at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. David Scheffer, the chief U.S. negotiator at the conference, noted:
“In Rome, we indicated our willingness to be flexible…. Unfortunately, a small group of countries, meeting behind closed doors in the final days of the Rome conference, produced a seriously flawed take-it-or-leave-it text, one that provides a recipe for politicization of the court and risks deterring responsible international action to promote peace and security.”
By the end of the five-week conference, despite continual efforts by the U.S. to amend the Rome Statute the final text of the Treaty was approved without U.S. support. The final text of the treaty was found to be so egregious and anti – American that even the Clinton Administration found it to be so offensive that they could not be persuaded to support its adoption. [x]
The ICC Come to Life
Since the approval of the Rome Statute in 1998 and the court entering into force in 2002, the U.S. policy towards the ICC has been consistent in that we have refused to join. It lacks necessary checks and balances, is susceptible to political manipulation, posses sweeping authority and it violates national sovereignty by claiming jurisdiction over national and military personnel of non States Parties in certain circumstances. The U.S. is not alone in these concerns. The Peoples Republic of China, The Russian Federation, India, Israel, Egypt, Turkey and Pakistan are among the 68 nations that have refused to ratify the Rome Statute out of concern that it infringes on their foreign and security policy decisions, which are justly reserved to sovereign governments and which the ICC should not claim authority. [xi] Currently the ICC has opened four cases involving situations in the Democratic Republic of the Congo, Uganda, the Central African Republic and Darfur, Sudan, where the Court has issued an arrest warrant for the current President of the Sudan, Omar Al – Bashir even though Sudan has not yet signed or ratified the Rome Statute. In addition to these four cases the Office of the Prosecutor is currently conducting a preliminary analysis of situations in Palestine, Georgia, Chad, Kenya, Columbia and NATO actions in Afghanistan, which could easily result in the indictment of American Armed Forces. [xii]
The ICC – Out With the Old & In With the New
The ICC breaks international precedent on how to prosecute the world’s most heinous criminals. In the past, the international community has established temporary criminal tribunals to prosecute the perpetrators. These tribunals derive their authority from the consent of the international community and are only permitted to move forward with prosecutions that relate to the specific circumstance, such as the ICTY and ICTR. The ICC is broader and more independent than these tribunals. The ICC’s authority is not limited to disputes between governments as is the case with the International Court of Justice. Rather, the ICC claims the authority to prosecute individuals, not states, for crimes against humanity, genocide and war crimes. The ICC’s jurisdiction extends to all citizens of states, regardless if the state has ratified the Rome Statute. [xiii] [xiv] Although the ICC is generally considered to be a branch of the U.N., the ICC is not explicitly a U.N. institution. An independent Treaty established the ICC and the court is overseen by the states that have ratified the Rome Statute. [xv]
When the court came into force in July 2002, upon receiving its required 60th ratification, which in turn is only one third of the worlds’ nations, the U.S. was forced to confront the reality that the ICC would begin to start functioning. Faced with the prospect of an operating ICC that could claim jurisdiction over American military personnel and government officials, the Bush administration and Congress implemented a variety of safeguards to ensure the protection of Americans from the court.
The first measure that Congress took was the passage of the American Servicemembers’ Protection Act (ASPA) and the Nethercutt Amendment. The ASPA continues to serve as a fundamental piece of legislation aimed at protecting American sovereignty from the court. The major provisions of the ASPA are as follows: [xvi] [xvii]
1) The ASPA prohibits the disbursement of military assistance and of economic support funds to countries that are party to the Rome Statute.
2) The ASPA also restricts cooperation with the ICC by any official U.S. entity, including providing support or funds to the ICC, extraditing or transferring U.S. citizens to the ICC or permitting ICC investigations on U.S. territory.
3) It forbids participation by U.S. military or officials in U.N. peacekeeping operations unless they are shielded from the ICC’s jurisdiction.
4) The ASPA bans the sharing of classified national security information or other law enforcement information sharing with the ICC. It also constrains military assistance to ICC States Parties, except NATO countries, Taiwan and major non-NATO allies unless they entered into an Article 98 agreement.
5) Finally the ASPA authorizes the President to use all means necessary and appropriate to free U.S. military personnel and officials detained by the ICC.
In order for a nation that is a State Party to the Rome Statute to receive military and economic aid they would have to sign an Article 98 agreement with the U.S. Article 98 agreements were the second step that Congress took to protecting Americans from prosecution by the ICC. Article 98 agreements are a bilateral agreement between the U.S. and a nation that is a State Party to the Rome Statute, that they will not apprehend any American citizen and turn them over to the ICC for prosecution without U.S. consent and since 2002 the U.S. has signed over 100 Article 98 Agreements. [xviii] [xix]
The third step that the U.S. took was within the U.N. Security Council. The U.S. pushed for the approval of resolutions that would protect Americans who are serving in U.N. peacekeeping missions, in states that are a part to the Rome Statute, from the courts jurisdiction. In July 2002, the United States threatened to use its Security Council veto to block renewal of the mandates of several United Nations peacekeeping missions, unless the Security Council agreed to permanently exempt U.S. nationals from the court's jurisdiction. In 2002 the Security Council adopted Resolution 1422, which exempted U.S. nationals from the court’s jurisdiction. The Security Council renewed this exemption in 2003 through its passage of Resolution 1487. However in 2004 the Security Council refused to renew these Resolutions due to the United States decision to pursue military action in Iraq. [xx]
The final step taken to protect American citizens was the Bush administration’s decision to un-sign the Rome Statute. The administration felt that since the Court was now a functioning international institution, that lacked any safeguards against political manipulation and prosecution, the U.S. had no choice but to remove its signature from the treaty if we wished to continue military assistance throughout the world. The Bush administration and Congress felt that it is insufficient for the U.S. to simply refuse to sign a treaty in the hopes of avoiding its adverse effects. That is why they felt it was necessary and appropriate to implement the ASPA, Article 98 Agreements and to un-sign the Treaty. As long as the court threatens American sovereignty these efforts to protect U.S. military personnel, officials and nationals from ICC prosecution are entirely justified. The Obama administration must continue to follow the precedent and legislative measures that have been implemented. [xxi] [xxii]
America Opposition To The ICC
When President Bush un-signed the Rome Statute, in 2002, he voiced five major concerns with the Treaty that jeopardize American sovereignty. These five grievances serve as primary barriers to why the U.S. has yet to ratify the Rome Statute. The fundamental flaws that President Clinton cited during the signing of the Rome Statute and the five concerns that President Bush cited during the un-signing of the treaty are as follows.
1) The Danger of Politically Motivated Prosecutions
The Rome Statute lacks robust safeguards to prevent purely political prosecutions, since there is no system of checks and balances. As an independent international institution, the ICC is not bound by decisions of the U.N. General Assembly or the Security Council, where the U.S. holds its veto voting rights. The ICC does not require the support of the U.N. or the Security Council to push forward with an investigation or prosecution. On the contrary, although the Security Council may defer an ICC investigation or prosecution for 12 months by passing a resolution under its Chapter VII authority, it cannot permanently prevent the ICC from launching an investigation or prosecution or permanently stop an ongoing investigation or prosecution. [xxiii] [xxiv] [xxv]
2) International Power Grab
Article 12 of the Rome Statute grants the ICC jurisdiction in the territory of any state party and the territory of non-states parties. This creates the possibility that the ICC could exercise jurisdiction over nationals of non–states parties without the consent of those states if the alleged crimes occurred in the territory of a state party or in the territory of a non-state party. David Scheffer called Article 12 “the single most problematic part of the Rome Treaty,” during his testimony before the Senate Foreign Relations Committee. He denounced it as being “… contrary to the most fundamental principles of Treaty law.” This provision violates recognized customary international law as well as Article 34 of the Vienna Convention on the Law of Treaties (1969) which states, “a Treaty does not create either obligations or rights for a third [non-ratifying] state without its consent.” [xxvi] [xxvii]
3) Double Jeopardy
Article 20 bestows upon the ICC the autonomous authority to review cases conducted by states parties and, in some circumstances, non-states parties and reopen them for a new trial if, in the judgment of the court, the decision was “inconsistent with an intent to bring the person concerned to justice” or not conducted independently and impartially or was conducted for the “purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the court.” The U.S. concern with Article 20 is coupled with our position that the court lacks any form of checks and balances. Since the ICC is an independent institution, the determination of whether a state has genuinely investigated or prosecuted an alleged offense ultimately rests with the ICC judges. The Rome Statute wishes to obligate the U.S. to extradite Americans for a new trial, even for crimes committed on American soil and even where the accused has been acquitted by an American jury or pardoned by the President. [xxviii]
4) Threat to U.S. Military Personnel
The Rome Statute fails to provide any form of protection or exemption for U.S. military personnel, even when they are serving on U.N. peacekeeping missions or under the orders of the U.N.’s responsibility to protect. The Rome Statute provides the court with the full ability to prosecute American service members if they believe that they may have committed genocide, crimes against humanity, war crimes and the undefined crime of aggression. [xxix] [xxx]
5) Threat to U.S. Foreign Policy
Leading military and State Department officials also expressed deep concerns about the U.S. ability to project force abroad in an era with a functioning ICC. The U.S. believes that by putting government officials and members of Armed Forces, their at the risk of politicalized prosecutions, the ICC will complicate U.S. military cooperation with many friends and allies who will now have a treaty obligation to hand over U.S. nationals to the court. The U.S. has a unique role and responsibility to help preserve international peace and security. [xxxi] [xxxii] [xxxiii]
American Constitutional Concerns
In addition to these concerns, the U.S. has expressed apprehension with the Rome Statute’s complete disregard for the Constitutional rights of Americans’. Under the current text of the Rome Statute American nationals would be subject to a judicial process that has no obligation to extend to the charged their Constitutional rights. The Rome Statute forces all state parties to accept an international judicial authority that supercedes their own national constitutions. The Constitutional concerns that American legal scholars and legislators have raised are as follows:
1) Rights, rules, and procedures of the ICC are not fully consistent with the U.S. Bill of Rights. Specifically, if the court were to take an American into custody they would be denied or, at least not assured, their protections under the 4th Amendment (protection from unreasonable search and seizure), the 5th Amendment (right to due process and protection from double jeopardy and self-incrimination), and the 6th Amendment (right to a jury trial and the right to confront the witnesses against him). [xxxiv] [xxxv] [xxxvi]
2) Article 27 of the Rome Statute allows the ICC to claim prosecutorial powers over elected U.S. officials for actions occurring in the conduct of their official duties and deemed lawful by the U.S., as it states, “No Head of State or Government elected representative or Government official shall [be] exempt ... from criminal responsibility under this statute.” A possible conflict could arise from the differing interpretation of detainee rights under the Geneva Conventions between the U.S. and other nations and, likely, the ICC. Article 27 conflicts with Article I of the U.S Constitution (providing the power to prosecute U.S. elected officials to the Congress) and Article III (granting original jurisdiction to the Supreme Court for all cases affecting U.S officials). [xxxvii] [xxxviii] [xxxix]
Ratification of the Rome Statue would require the U.S. Senate to determine if the Constitution permits the ceding of judicial power and authority to a foreign court such as the ICC. In short, an extra – constitutional body cannot exercise the judicial power of the U.S.
The Crime of Aggression & Complaints Against Americans
Since the adoption of the Rome Statute in 1998 and the court coming into force in 2002, the U.S. has also identified its concern with the amendment process of the Rome Statute, the undefined crime of aggression and the immense amount of complaints that have been submitted to the Office of the Prosecutor against President Bush and his Administration for alleged crimes in Iraq and Afghanistan. The text of the Rome Statute permits the court to prosecute individuals who have allegedly committed crimes against humanity, war crimes, genocide and aggression. While in Rome, in 1998, the delegates were unable to reach a consensus on how to define the crime of aggression. In an effort to not allow this impasse to hinder the adoption of the treaty the delegates agreed to postpone the defining of the crime of aggression until the Review Conference in 2010. [xl]
The ICC cannot prosecute any individual for the crime of aggression until the crime is defined and agreed upon by a super majority of the States Parties. The U.S. has always been adamantly opposed to the inclusion of the crime of aggression into the statute as they maintained that it is the duty of the Security Council to determine when aggression has occurred. [xli]
Another fundamental concern the U.S. has is the way in which amendments to the treaty, including the addition and defining of new crimes, are adopted and applied. In its present form, the amendment process for the addition of new crimes to the jurisdiction of the Court or for revisions to the definitions of existing crimes in the treaty will create an extraordinary and unacceptable consequence. The U.S. is concerned that should we ratify the Rome Statute and if future crimes and powers are added to the treaty we will be forced to accept these changes even if they run contrary to the national security and interests of the U.S. In order for a proposed amendment to be adopted 7/8 of the States Parties must approve the amendment. Once an amendment is adopted all States Parties will be bound to the new text, even though when they ratified the Treaty the new amendment was not present. [xlii]
Finally, the U.S. has expressed its apprehension to the Rome Statute due to the fact that arrest warrants have been sought or considered in foreign jurisdictions for former U.S. officials President George W. Bush, Dick Cheney, Donald Rumsfeld, George Tenet, Condoleezza Rice, and Alberto Gonzales for war crimes and crimes against humanity. Complaints were also filed with the Office of the Prosecutor against several Bush Administration officials in 2004, 2005, 2006 and 2009. [xliii] The Office of he Prosecutor has received more than 240 complaints alleging crimes related to the war in Iraq. In the fall of 2009 the Office of the Prosecutor for the ICC opened an investigation into war crimes and crimes against humanity in Afghanistan allegedly committed by U.S. and NATO forces that may result in the prosecution of U.S. policymakers or Armed Forces. These efforts underscore the need for the U.S. to protect itself and its citizens and soldiers from claims of jurisdiction under international law by the ICC. [xliv]
The Obama Administrations’ Relationship With the ICC
Step by step, the Obama Administration is aggressively pursuing a stronger alliance between the U.S. and the ICC, while there are no immediate plans for the White House to seek ratification of the Rome Statute that is its logical endpoint. In November 2009, the U.S. signaled a dramatic shift in its position towards the ICC. President Obama sent Stephen Rapp, U.S. Ambassador-at-Large for War Crimes Issues, to the 8th session of the Assembly of States Parties, in New York in 2009 and 2010, as his first step towards constructing a more positive relationship between the U.S. and the court. President Obama’s second step was his announcement that the U.S. would send a delegation to the courts review conference in Kampala, Uganda as an official observer. In March 2010, Ambassador Rapp declared that the U.S. is “prepared to listen and work with the ICC” and that the U.S. intends to “return to engagement with the ICC.” [xlv] This announcement combined with President Obama’s softening position on the court highlights the increasing need for Americans to remember that our sovereignty is not just threatened by forces from abroad but also from those within our own government.
The Rome Statute undermines the authority of national governments and their ability to protect their citizens and interests around the world. The nations that have chosen to ratify the Rome Statute have accepted that this treaty supersedes their constitutions. While the court lacks any enforcement mechanisms it claims superiority over the state, even though the court is powerless to protect and defend the state. Since the U.S. primary concerns have yet to be met by the court we must continue to choose constitutionalism over supranational governance. The risks that the Rome Statute present to American sovereignty is far too dangerous to take a chance in the hope that, the Court would act responsibly. Until the court and the Assembly of States Parties address the U.S. principal concerns we must continue to enforce the ASPA and Article 98 Agreements and the U.S. must resist pressure to surrender sovereignty to this supranational institution.
FamilySecurityMatters.org Contributing Editor Adam Raezler holds a Masters from Norwich University in Diplomacy and International Terrorism.
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