Tuesday, July 7, 2009

Leading by Example: A Case for the International Criminal Court

In July 1998, world leaders convened to adopt the Rome Statute, the Treaty to create the first permanent International Criminal Court (ICC). The ICC would provide a forum to prosecute individuals responsible for the gravest violations of international law: genocide, crimes against humanity, and war crimes. When the final votes were tallied, the numbers reflected overwhelming international support -- 120 countries voted in favor of the Treaty, with just 7 in opposition. [1] The United States, along with China, Israel, Libya, Qatar, Yemen and Iraq, were the seven who voted “No.”

In the last eleven years, the United States has remained either staunchly opposed or profoundly skeptical of the ICC. This blog post takes a brief look at the United States government's apparently uneasy relationship with the ICC, followed by a discussion of three common misunderstandings of the nature of the Court. In short, the ICC allows individuals to assert their human rights against the power of the State, and the Court has had tremendous success in ending impunity for some of the 21st Century’s most serious abuses (click here for Chief Prosecutor Luis Moreno-Ocampo’s reflection). But even as other countries continue to ratify the Treaty (this week, Chile became the 109th State Party), the United States' resistance threatens both the legitimacy and effectiveness of the ICC. Unpacking the myths about the ICC reveals what membership to the Court really means for the United States, and why America’s support is so critical.

A History of Resistance

In the drafting stages of the Treaty, the US supported an arrangement under which the United Nations (UN) Security Council (of which the US is a permanent veto-holding member) would maintain control over the cases that the ICC pursued. Instead, the final form of the Treaty provides for an independent prosecutor and the UN Security Council has the ability to defer – not forego – an investigation. [2] However, the Treaty contains numerous mechanisms to guard against malicious prosecutions and other unwarranted investigations. Despite these safeguards, which are described in more detail below, the United States was unsatisfied with the final version of the Treaty. Thus, many were surprised when President Clinton signed the Treaty on the last possible day, December 31, 2000, in what is known as a midnight action.

The decision to sign demonstrated symbolic support, but, as Clinton simultaneously announced that he would not forward the Treaty to the Senate for ratification, his signing is remembered essentially as an empty political move. On April 11, 2002, the day that the Treaty reached the necessary sixty ratifications to enter into force, the Bush administration “unsigned” the United States, and thus removed any lingering indication of potential support. However, with President Obama indicating legitimate interest in the ICC, it is possible that the US government may be shifting its stance.

Susan E. Rice, U.S. Ambassador to the UN, noted in her first appearance before the UN Security Council that the ICC "looks to become an important and credible instrument for trying to hold accountable the senior leadership responsible for atrocities committed in the Congo, Uganda, and Darfur." Below we’ll discuss why an overt engagement by the United States in this “instrument of accountability” will only strengthen the global response to atrocities, and heighten respect for human rights around the world.

Myth #1 – If the US signed the Treaty, the ICC would prosecute Americans for politically-motivated reasons.

A chief public concern is that if the United States became a signatory to the Rome Statute, other countries would use the ICC as a tool to conduct politically-motivated investigations that would embarrass or undermine the authority of U.S. military and political officials. However, the Rome Statute has numerous safeguards to prevent frivolous or malicious prosecution.

First, before initiating an investigation, the Prosecutor needs the approval of a panel of impartial judges. These judges are nominated by State Parties to the ICC and elected by a 2/3 majority of the parties present (provided that an absolute majority of States Parties constitutes the quorum for voting) [3] and are chosen “from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.” [4] If judges or prosecutors do not live up to these high standards, the Rome Statute includes procedures for removal for abuse of authority or where impartiality is reasonably doubted. [5]

Second, the ICC can only investigate and prosecute cases of genocide, crimes against humanity and war crimes. Each of these three grounds for prosecution has very demanding standards (for example, genocide requires a specific intent to destroy a particular group, crimes against humanity must be “widespread” and “systematic,” and war crimes have very stringent contextual requirements). [6] The Office of the Prosecutor has received over 8137 communications since July 2002 from more than 130 countries, and yet has only proceeded with 4 investigations, dismissing the rest for failing to have “a reasonable basis to proceed.”

Finally, the UN Security Council – on which the United States plays a powerful role – has the ability to adopt a resolution that will defer a prosecution indefinitely. [7] The combination of these three factors informed the Chief Prosecutor’s decision not to move forward with an investigation of the highly political and controversial war in Iraq. The ICC would not have been able to prosecute U.S. or Iraqi officials, as those countries are not State Parties, but could have proceeded with an investigation of the UK, the United States' closest ally with a substantial presence in Iraq, and party to the ICC.

However, in response to the over 240 communications received regarding the situation, the Chief Prosecutor offered a thorough and reasoned analysis of why the case fell outside of the Court’s jurisdiction. (Read Chief Prosecutor Luis Moreno Ocampo’s letter here.) The ICC’s management of the situation in Iraq, one of the most contentious armed conflicts in the history of the Court, seems to speak directly the fear of wrongful prosecution. The decision taken by Prosecutor Ocampo reflects the efficacy of the safeguards within the Treaty, the respect of the Prosecutor for the rule of the law, and the substantial limits of the ICC’s authority.

Myth #2 – The ICC could bypass the American judicial system and haul our leaders and our soldiers off to the Netherlands.
Even if a case involving the United States did fall within the jurisdiction of the ICC – i.e., the US was a party to the ICC and the crime alleged was genocide, crime against humanity, or war crime -- the Court still does not have immediate authority to investigate and prosecute. It is important to remember that the ICC is a court of complementarity, or a court of last resort. That means that the ICC cannot consider prosecution until the State concerned has exhausted all of its judicial and legal resources.

Under the Rome Statute, in order for the ICC to act, the State’s national system must be unwilling or unable carry out its own genuine investigation and/or prosecution. [8] The threshold for ‘unwillingness’ and ‘inability’ is extremely high. To be ‘unable’ requires nothing less than massive disruption of a legal system (i.e., a natural disaster, debilitating civil war, or complete lack of unqualified or impartial judges). And to be ‘unwilling’ requires that a country take active steps to shield someone from responsibility for ICC crimes or otherwise obstruct justice. Making a good-faith decision not to prosecute does not mean that a country is unwilling to prosecute, and such a decision must be respected by the ICC. [9]

Myth #3 – There is nothing in it for the United States.

Given the unlikelihood of a case involving the United States - a stable democratic government with an established and well-respected judiciary - coming before the international tribunal, it may seem easy to dismiss the need for American participation in and support of the ICC. Some may question whether involvement in the ICC would be of any use to the United States. We must recognize that the United States' rejection of the Court has seriously weakened the ability of the international community to take an effective stand against the gravest of human rights abuses.

While the Court can function without the United States, the lack of backing (as a signatory or donor) undermines the credibility and sustainability of the institution, especially as rejection by the world’s hegemony discourages other states from both signing and financially supporting similar international judicial institutions. The Chief Prosecutor in the case against former Liberian President Charles Taylor for atrocities committed in West Africa, noted rightfully that, no matter how good his case, "if we run out of money, I lose." The United States, and indeed the world, cannot afford to release those accused of the gravest abuses of human rights due to failure to provide adequate resources to tribunals.

As the United States takes seemingly hypocritical stances on the ICC intervention in certain crises (for example, abstaining from (thus, arguably implicitly supporting) the UN Security Council vote to indict President Omar al-Bashir of Sudan), many have noted “[t]he United States wants to create a world of universal values, rules and institutions. But [they] can't abide the fact that they might apply to [them].” Though the United States continues to be viewed as a leader in the realms of law and justice, resistance to international standards projects a dangerous double standard. Joining the ICC is an opportunity for the United States to make an overt commitment to human rights – a move that will have an instrumental impact in the promotion and protection of human rights throughout the world.

-Nadia Ben-Youssef, International Justice Project Legal Intern

[1] Van Schaack & Slye, International Criminal Law and Its Enforcement (Foundation Press 2007)
[2] Rome Statute, Art. 16
[3] Rome Statute (Art. 112 (7)(a))
[4] Rome Statute (Art. 36(3)(a))
[5] Rome Statute (Arts. 41 and 42)
[6] Rome Statute (Art. 15)
[7] Rome Statute (Art. 16)
[8] Rome Statute (Art. 17)
[9] Rome State (Art. 17(1)(b))


  1. Sorry Couldnt HelpitJuly 15, 2009 at 1:26 AM

    A very thoughtful piece, but a dissent, a quibble, and a question.

    The Dissent: The limits on the ICC's power are said to be well-circumscribed, with ample safeguards against malicious prosecution, stringent standards on what constitutes the three crimes it can prosecute, and strong mechanisms to ensure that it is indeed the court of last resort. Fair enough. But the history of legal systems tells us that, over time, it is very likely that lawyers and judges will find ways to get around those limits. Imagine a smart creative attorney, like the author of the blog posting, who realized that she might be able to use the ICC to go after a real bad guy. I bet she could make a good start on getting around some of those limits if they got in her way. Or look at the power of the U.S. Supreme Court at its origin compared to today. So I'd argue that it is disingenuous to look at the current theoretical limits of the ICC and imply that they are fixed, effective, and permanent.

    The Quibble: It is said that the ICC relies on "a panel of impartial judges." That's like saying it relies on unicorns - no such beasts exist. And the more political and complex a case (i.e., the kind the ICC deals with), the greater the role of bias. The U.S. Supreme Court has provided some pretty clear examples of this. And if there were impartial judges, could we maybe find some for that court?

    The Question: How many of the people at the "point of the spear" (or machete or AK-47) in human rights abuses are even aware of the ICC or whether the U.S. has signed on to it? In other words, imagine the U.S. had ratified the Rome Statue in 2000. How would that have changed the work of the ICC? From the blog post, it seems the only difference would be that the U.S. would have been eligible for prosecution (along with the UK) had the ICC decided to pursue the Iraq war case. Certainly more funds would help the ICC, but funding the ICC is a different argument than signing up for it. I'd support just funding it. But realistically, if the U.S. blows off its UN dues, what are the odds that it would come through for the ICC even if it did sign on? Bottom line: Would U.S. ratification of the Rome Statue in 2000 have saved any lives? I doubt it. It's mostly something to just argue about.

  2. Sorry Couldnt HelpitJuly 15, 2009 at 1:35 AM

    Oh, and I just noticed that Human Rights USA states that it is pursuing its mission "through innovative litigation in U.S. courts." That's exactly what I meant in my comment, above, about attorneys extending the limits of a particular legal system. So isn't it just a matter of time before other groups, perhaps with not-so-good-motives, start pursuing their ends via "innovative litigation" in the ICC?