“For numerous reasons, the United States decided that the ICC had unacceptable consequences for our national sovereignty. Specifically, the ICC is an organization that runs contrary to fundamental American precepts and basic Constitutional principles of popular sovereignty, checks and balances, and national independence.”
John R. Bolton
The International Criminal Court (ICC) was created by the “Rome Statute” and establishes a court which claims universal jurisdiction over genocide, war crimes and crimes against humanity. Under it, any U.S. elected official, cabinet member, soldier or private citizen could be tried for alleged crimes regardless of where they were committed. And, the ICC’s definition of “crime” is vague and subject to political interpretations. These judges are not appointed or elected under U.S. law, and, therefore, are not bound to enforce U.S. law or limited by the U.S. Constitution. In truth, they are political judges who make political decisions. ICC membership would violate the principles of American national sovereignty and independence.
The Court is widely accepted by the international community. Based at The Hague in the Netherlands, the ICC says its expenses are funded primarily by members of the ‘Assembly of States Parties’ to the Rome Statute of the International Criminal Court; but it also receives voluntary contributions from governments, international organizations, individuals, corporations and other entities.
President Clinton signed the Rome Statute of the International Criminal Court in 2000, but President Bush “unsigned” it in 2002. As of December 31, 2011, 120 nations had become signatories. The total number of member nations has ebbed and flowed according to those countries that have signed and later unsigned the Rome Statute. It is entirely unclear what President Obama will do.
Rather disingenuously, the International Criminal Court attempts on its website to dismiss its association with the UN by claiming that it is “an independent international organization, and is not part of the United Nations system,” full stop. (Retrieved December 30, 2011). However, since its inception, the UN has sought the creation of a permanent international court. The ICC’s founding document, the Rome Statute of the International Criminal Court, includes the “Relationship of the Court with the United Nations.”
Yet, it was the UN Security Council, which, on May 25, 1993, at the behest of the Clinton Administration that took the “extraordinary and unprecedented step of deciding to establish the International Criminal Tribunal” for the former Yugoslavia. In fact, three such tribunals were created from 1993 through 2002, all precursors of the ICC.
Further, the ICC’s association with the UN is inherently close ranging from the submission of annual reports, the exchange of information, meetings utilizing UN facilities and a dues structure based on UN membership. Moreover, Article 127 requires a written notification of withdrawal be addressed to the Secretary General of the United Nations.
The United Nations wants the International Criminal Court to have the power to imprison Americans in foreign jails and prosecute our fellow citizens appearing before judges from terrorist and communist states, albeit members of the United Nations. President Obama may eventually decide to sign and send the ICC treaty to the Senate for ratification.
Once the U.S. Senate gives its consent to such a proposal, our Constitution will be, in effect, null-and-void in those cases covered by the Court. Never before in American history has such a blatantly unconstitutional proposal been officially promoted on a global level by the U.S. Government. The ICC subsumes American Exceptionalism and our system of ‘national courts’ to the evolving international criminal legal system and its global institutions rendering the Constitution’s protection of individual rights meaningless. Advocates of the UN’s ICC decry American Exceptionalism calling it “unsustainable in today’s world.”
Espousing and implementing a foreign policy of “assertive multilateralism” at the end of the Cold War, President Bill Clinton sought at the onset of his administration, in 1993, to initiate numerous multilateral policy initiatives, including the negotiation of the International Criminal Court, exhibiting an abiding faith in the United Nations.
Before leaving office, Clinton argued for continued engagement with the ICC. However, President Bush both “unsigned” the Rome Statute in an unprecedented move and pursued legally binding bilateral Article 98 immunity agreements with every country in the world to prevent our troops from being surrendered to the ICC or any other international tribunal. Congress passed the American Servicemembers Protection Act of 2002, which prohibits U.S. military assistance to ICC member countries that have not entered into Article 98 agreements. Title II of H.R. 4775 formed part of the 2002 Supplemental Appropriations Act for Further Recovery from and Response to Terrorist Attacks on the United States.
Americans have been led to believe that an International Criminal Court will be a great leap forward, following in the steps of the Nuremberg military tribunals that prosecuted Nazi and Japanese war criminals after the Second World War. But those tribunals were staged by victorious military powers and were temporary in nature. The ICC, a permanent court sponsored by the United Nations – a permanent multilateral international organization – could intervene against the leading military power in the world today – the United States – rather than those countries which are true threats to international peace and security and have among the worst human rights records in the world.
Occasionally, we hear and see reports about the ICC, or various ad hoc tribunals, going after notorious characters like Cambodian Maoist revolutionary Pol Pot, dictator Muammar Gaddafi of Libya and Slobodan Milosevic, for Serbian atrocities committed in Kosovo. Extradition proceedings have been sought against Chilean President Augusto Pinochet in London, Belgium, Senegal and elsewhere.
But Americans can also become targets.
Because the notion of “war crimes” has military significance, it is reasonable to believe the targets could include American soldiers carrying out the orders of the President of the United States in his capacity as Commander-in-Chief. But the targets could also include the Commander-in-Chief himself or the Joint Chiefs of Staff, depending on whether or not a particular U.S. military operation happens to be popular with the UN.
The great fear is that an ICC would be used to prosecute American civilian and military officials for conducting a war in the national interest of the United States. Indeed, it could be argued that the ICC is designed to inhibit the U.S. from conducting military operations, except under the authority of the UN.
In fact, top U.S. military officers are said to be extremely apprehensive about the ICC, which may also be able to prosecute crimes of military “aggression.”
In a Century Foundation report, “Strategy for U.S. Engagement with the International Criminal Court,” David Scheffer (who helped set up the ICC) and John Hutson (former U.S. Navy Judge Advocate General), wrote, “If the United States were to join the ICC, one would have to accept at least the theoretical possibility that American citizens (particularly political and military leaders) could be prosecuted before the ICC on charges of committing atrocity crimes.”
John Bolton, Senior Vice President at the American Enterprise Institute and former Assistant Secretary of State for International Organization Affairs, summed up the primary reason for U.S. opposition, when he wrote in the journal of the Duke Law School, Law and Contemporary Problems: “The ICC’s principal failing is that its components do not fit into a coherent ‘constitutional’ design that delineates clearly how laws are made, adjudicated, and enforced, subject to popular accountability and structured to protect liberty. Instead, the court and the prosecutor are simply ‘out there’ in the international system. This approach is clearly inconsistent with American standards of constitutional order, and is, in fact, a stealth approach to erode our constitutionalism.”
There is a great body of written work to support the conceptual framework of international criminal law, procedure and sentencing. Accordingly, the U.S. is under heavy international pressure to sign, ratify and implement the UN’s ICC treaty. Supporters of the ICC want a U.S. Administration to reinstate the U.S. signature as well as expand, deepen and further formalize the official channel of U.S. cooperation with the Court.
By contrast, advocates of American military power and sovereignty are resisting these schemes and are opposing plans to assign U.S. military personnel to UN-controlled military operations. Only a concerted effort by a vigilant American people will enable the U.S. to resist entanglement with yet another global institution preparing to ride roughshod over our rights, sovereignty and national security.
Entities of local, state or federal government shall be prohibited from cooperating with the ICC, in the event of ICC authorized arrest, detention, extradition, seizures, mutual assistance or investigation.
U.S. judges shall not make decisions based on ICC rulings nor incorporate ICC decisions into American Jurisprudence.
A constitutional amendment shall be proposed, whereby the judicial power of the United States shall not include the power to interpret the Constitution based on foreign or international law.
ON THE WEB
- International Criminal Court
- UN Treaty Collection
- Rome Statute of the International Criminal Court
- Duke University School of Law: Journal-Law and Contemporary Problems The U.S. and the International Criminal Court: Volume 64, No. 1 (Winter 2001)
- Federalist Society: Will the ICC Provide Adequate Procedural and Structural Safeguards (October 1, 2002)
- Federalist Society: International Law and the Use of Force (January 1, 2003)
- San Diego International Law and the Pre-emptive Use of Force: Afghanistan, Al Qaida, and Iraq (2003)
- Bolton: International Criminal Court Contrary to U.S. Principles (November 4, 2003)
- The U.S. and the International Criminal Court (ICC) Liberty University (January 14, 2006)
- ABA: Standing Committee on Law and National Security
- ABA: National Security Law Report (May/June 2009)
- Amending the American Servicemembers’ Protection Act of 2002 (June 26, 2003)
- H.R. 4775: 2002 Supplemental Appropriations Act for Further Recovery from and Response to Terrorist Attacks
- U.S. Department of State: American Service-Members’ Protection Act (June 30, 2003)