Brett D. Schaefer and Anthony B. Kim
The Heritage Foundation
"Crimes Need to be Punished, But is the ICC the Right Means?"
The International Criminal Court (ICC) — formally established in 2003 to prosecute war crimes, crimes against humanity, genocide, and the as-of-yet-undefined crime of aggression — has long held a special place in the hearts of human rights activists and those hoping to hold perpetrators of terrible crimes to account.
Although supporters of the court have a noble purpose, there are a number of reasons to be cautious and concerned about the effect the ICC could have on national sovereignty and politically precarious situations the world over.
One of the most basic principles of international law is that a state cannot be bound by a treaty to which it is not a party. Further, long-standing international legal norms hold that a state cannot be bound to legal assertions that it has specifically rejected. The ICC, however, directly contravenes these norms and precedents of international law; it claims jurisdiction to prosecute and imprison citizens of countries that are not party to the Rome Statute and, more shockingly, over those who have specifically rejected the court's jurisdiction.
Seeking to impose international legal requirements and jurisdiction on unwilling sovereign states is unsupportable, and a clear contravention of international law. It also has significant implications for states that are unable or unwilling to ratify the Rome Statue establishing the ICC.
For instance, both the Clinton administration and the Bush administration concluded that the ICC is a seriously flawed institution that the United States should not join. However, because of the ICC's unprecedented claims of jurisdiction, the United States has had to take unusual steps to protect its citizens and military personnel, including negotiating a network of non-surrender agreements (or Article 98 agreements, after the section of the Rome Statute that permits such arrangements) with as many countries as possible. Countries that sign such agreements with the United States promise, in effect, not to surrender U.S. nationals to the ICC without the consent of the U.S. government.
America pursued Article 98 agreements out of concern that the ICC could be used as a tool by those opposed to its foreign policy to make political statements through ICC prosecutions. Supporters of the ICC disparage this as unnecessary. They claim there are protections in the ICC treaty to prevent abuse of the court -- after all, the court can only intervene in cases committed within the territory or involving a citizen of an ICC party, and then only if that country proves unwilling or unable, in the judgment of the court, to investigate and prosecute alleged crimes.
This is cold comfort. Unscrupulous individuals and groups will seek to misuse the ICC for politically motivated attacks, as demonstrated by those urging the court to indict Bush administration officials for alleged crimes in Iraq and Afghanistan. In the first two years of the ICC, more than 100 charges against U.S. citizens were submitted to the court. While the ICC chief prosecutor declined to pursue these cases, there is no assurance that future cases will be similarly resolved.
Because of its relative lack of checks to prevent it from being misused, the ICC represents a dangerous temptation for those with political axes to grind. This is a lesson currently being learned by Israel. Despite the fact that Israel is not a party to the Rome Statute, the ICC prosecutor is reportedly exploring ways to prosecute Israeli commanders for alleged war crimes committed during the recent actions in Gaza.
Palestinian lawyers argue that Palestine can request ICC jurisdiction as the de facto sovereign even though it is not an internationally recognized state. This is a political twofer for the Palestinians: Pressure is applied to Israel over alleged war crimes while excluding Hamas's incitement of the military action (as well as its war crimes against Israeli civilians) and, at the same time, momentum is increased for Palestinian statehood without the need to make compromises with Israel.
The current situation in Sudan raises other issues. Although the UN Security Council has been largely deadlocked on possible sanctions against the government of Sudan for its role in supporting Janjaweed militia groups that have committed terrible crimes in Darfur, it did pass a resolution in 2005 referring the situation in Darfur to the ICC. Last summer, the ICC announced that it would seek an indictment against Sudanese President Omar al-Bashir for his alleged involvement in crimes committed in Darfur.
Indicting the sitting head of state of Sudan, no matter how awful his role in the Darfur atrocities may have been, could aggravate the situation in Darfur and put more people at risk. Al-Bashir may decide he has nothing to lose, increase his support of the Janjaweed, and encourage an escalation of their attacks to, possibly, include aid workers and UN and African Union peacekeepers serving in UN mission in Darfur.
If it destabilizes the government, it could also rekindle the north-south conflict that saw roughly 2 million people killed in a 22-year civil war ended by a 2005 peace agreement. These dangers spurred African countries, which would bear the most immediate consequences of a more chaotic Sudan, to call on the UN Security Council to defer the al-Bashir prosecution.
Moreover, since the Office of the Prosecutor is largely autonomous, once a case is brought to the ICC, there is little opportunity to resolve disputes, conflicts, or sensitive political issues diplomatically. For instance, Sudan's neighbors may be faced with the choice of arresting al-Bashir, which could spark conflict with Sudan, or ignoring the court's warrant. If Uganda could resolve its long-festering conflict with the Lord's Resistance Army by agreeing not to prosecute its leader, it would have no ability to call off the ICC prosecution.
It is unlikely the ICC prosecutor or its judges will be held to account if its decisions lead to greater carnage in Darfur, or advancing politically motivated charges in Gaza, or prolonging the conflict in Uganda. They are free to act without considering the potential consequences. Those having to deal with the consequences are not so lucky.
For these reasons and others, the United States has declined to join the ICC. It is not alone in its concerns as demonstrated by the many states that are not ICC parties. Major countries like China, India, and Russia have refused to ratify the Rome Statute out of concern that it unduly infringes on their foreign- and security-policy decisions — issues rightly reserved to sovereign governments.
Even the Obama administration has expressed the need to make sure U.S. troops have "maximum protection" from politically motivated indictments by the ICC and has not rushed to support ratification of the treaty. Do not look for the United States to abandon the Article 98 agreements Washington has signed with some 100 countries around the world anytime soon.
While the ICC embodies an admirable desire to hold criminals accountable for their crimes, the court is flawed notionally and operationally. The more ICC advocates seek to use the court to press political agendas and supersede the prerogatives of government in foreign policy, the more they undermine the credibility of the court and threaten its future as a useful tool for justice.
To protect its own interests and to advance the overarching intent of building a credible international criminal court, the United States should continue to insist that it is not bound by the Rome Statute because it has not ratified the treaty; that will not recognize the authority of the ICC over U.S. citizens or consider joining the court without significant changes to the treaty; and that will exercise great care over decisions that support actions of the court in cases like Darfur.