NEW YORK — After the Treaty of Rome was signed in 1998, laying out the foundations for the International Criminal Court, many believed that this organ of justice would never materialize. There were already indications that the United States would not support such a court in all its aspects. Rejection of the ICC became evident during the Bush administration, which repudiated the U.S. signature of the treaty.
Yet, in spite of the U.S. opposition, the Rome Statute has now been ratified by 97 countries, and the ICC has been in official existence since July 1, 2002.
During the first and second presidential debates, President George W. Bush referred to the ICC and his refusal to ratify that treaty. He called the ICC “a body based in The Hague where unaccountable judges and prosecutors can pull our troops or diplomats up for trial.” That was an unfortunate and misleading statement.
The ICC exercises only complementary jurisdiction — and only over member states. This is the main difference from other international courts, such as the ones concerning ex-Yugoslavia and Rwanda, which have primacy over national tribunals. This means that the ICC will act only when the related member state is unwilling or unable to investigate or prosecute the case itself.
Additionally, the case is accepted, it should first be regarded as admissible by the prosecutor and by the so-called “pretrial chamber.” If a U.S. citizen is accused of a crime, the court’s judges are obliged to defer to the U.S. justice system, standing down for at least six months while the U.S. conducts its own investigation.
The ICC judges would be able to authorize investigations only if they decided that the U.S. judicial system was deliberately obstructing justice. Such a premise establishes, in practice, a very high threshold of protection from politically motivated prosecutions.
ICC jurisdiction will be limited to the most serious crimes of genocide, crimes against humanity, war crimes and crimes of aggression (in cases of the latter, only if a definition of such crimes is obtained in 2009).
As for the judges and the prosecutor, they will be accountable to an assembly of member states that may remove them in case of serious misconduct or breach of their duties.
The U.S. is a country were freedom and democracy are paramount and where everybody is supposedly equal before the law and where impunity is not tolerated. So it is hard to believe that the American public, if it knew that a hideous crime had been perpetrated by an American citizen, would prefer that no investigation be carried out followed by a prosecution if needed.
The Abu Ghraib case is paradigmatic in this regard. When the facts were known, a prosecution began and nobody seriously could sustain the view that nothing would be done about it. Soldiers who participated in torture have already been prosecuted, indicted and convicted. Why should we presume that something different would happen if the U.S. became a member of the ICC?
According to Human Rights Watch, the ICC will provide defendants more rights and protections than many countries to which the U.S. extradites its own citizens. The White House has recently endorsed a proposed bill that would make it legal for U.S. intelligence officials to deport individuals to countries known to use torture to obtain information.
Monroe Leigh, a former U.S. State Department legal adviser has stated, “The list of due process rights guaranteed by the Rome Statute are, if anything, more detailed and comprehensive than those in the American Bill of Rights . . . I can think of no right guaranteed to military personnel by the U.S. Constitution that is not also guaranteed in the Treaty of Rome.”
Being part of the U.N. and then being criticized by rogue nations is indeed undesirable. But that is the same forum that gave the U.S. several occasions to affirm a position, to criticize an opponent and to lead the world.
Not ratifying the Rome Treaty puts the U.S. in the same unenviable company as Cuba, Pakistan, North Korea, Libya, Iraq, Iran, Sudan, Syria and Myanmar, which have refused to sign the ICC treaty while all major and emerging democracies have decided to do so.
It is true that from a realistic point of view no government is inclined to accept the prosecution of its own leaders by an international organ. But it is not a question of popularity to abide by the law. The U.S. should take its irreplaceable and unchallenged role in the ICC, and thus strengthen its role in today’s complex world.
More than any other country’s participation, U.S. support for the ICC could help establish the rule of law and convince tyrants and despots worldwide that they cannot act with impunity anymore.