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Dear Mr. President,
The administration is currently conducting a high-level policy review of the International Criminal Court, and opinions on the subject are presented across a wide spectrum. Options range from a do-nothing (status quo) choice on one end to a global anti-ratification campaign alternative on the other. I am writing you today to express my opinion on this important matter.
While much of the international community believes the International Criminal Court will be an important advance for the cause of international justice, many American officials have expressed that the Rome Statute lacks sufficient safeguards to protect U.S. servicemen and women from superfluous prosecutions. Although the former President Clinton ratified the statute before leaving office, this administration could withdraw the signature with a letter of request to the UN’s Security General. Surely withdrawal is possible, but is it beneficial?
US negotiators have made and continue to make great strides in improving various aspects of the statute. Although there are still areas of legitimate concern, I would hardly call them flaws. As a signatory to the treaty, the US is bound not to work against the purposes and objectives of the treaty, General Powell confirmed. The US signature however does not bind us to support the existing standards, but requires us to improve upon them. Withdrawing the US signature is voiding American concerns, influence, and right to participate in the ICC’s construction.
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The Court will be made with or without US consent. The final four signatures required for ratification have been acquired on April 11, 00. Over 140 nations have signed the Treaty, including at least 17 of our NATO allies, South Korea, Japan, and Israel. Efforts to prevent other countries from ratifying will likely fail. A global anti-ratification campaign could furthermore provoke resentment amongst our close allies and complicate other important international relations.
American critics to the ICC have a number of concerns. Many claim that the ICC is ‘significantly flawed,’ and feel the US should seek a complete exclusion from the ICC jurisdiction at the negotiations. Another important concern with the ICC regards the numerous American soldiers deployed across the world. Since US military and civilian personnel and officials may be subject to ‘frivolous or politically motivated charges’ by the ICC, many believe the US would be unjustly targeted. The institution of the ICC may therefore dampen US military participation in peacekeeping and humanitarian missions. Finally, to some the ICC simply seems unconstitutional and infringes on American sovereignty. For most critics, these reasons justify immediate withdrawal from the committee and all negotiations.
Currently, US citizens and soldiers who commit crimes abroad are subject to the jurisdiction of the territorial state in which the crime is committed. When enforced, the ICC will only have jurisdiction over the personnel of non-Party States when these individuals commit crimes under the jurisdiction of the ICC in the territory of a State Party or state that has chosen to accept the ICC jurisdiction. Until the US ratifies the treaty, the court can only try Americans if they commit crimes in countries that have accepted the ICC. Furthermore, the crime committed by an American would have to constitute a core crime under the ICC (genocide, crimes against humanity, or war crimes) and would require some sort of governmental or militaristic plan. The thresholds are high, and US personnel could never under US law engage in such systematic crimes.
The ICC would create a fair and consistent system of international law that would serve to deter future war crimes and crimes against humanity and eliminate the time and money invested to set up ad-hoc tribunals. Consequently, the ICC would lessen the necessity for US interventions such as Kosovo and the Sierra Leone. Furthermore, participating in the ICC allows the US to address concerns and safeguard US credibility, as well as permit US cooperation in prosecuting criminals accused of war crimes against Americans.
Even as a non-Party State, it is imperative that the US continues to participate in negotiations constructing the court. The US will inevitably have to deal with the ICC and its broad national support. It is our choice now as to whether we act constructively or obstructively to the creation of the ICC. I believe it is in US national security interests to remain positively engaged in the process of creating the court, as many important decisions on financial regulations and privileges will be made with or without US consent.
US efforts for exemption are alienating our closest allies, for whom the creation of a fair and effective ICC is a high foreign policy priority. Obstruction of the creation of the ICC could cause irreparable damage to US human rights efforts and credibility, and forfeit the right to negotiate protection for any American citizen or service member. Opposition only promises international isolation and may lead to the creation of a court that is hostile to the US, the concern feared by the critics of the Statute.
The US will be in a far better position to protect the rights of our citizens if we do not take an antagonistic approach to the Court. We should seize, not squander, the opportunity to work with our friends in ongoing negotiations of an international law system. In the twentieth century, we sacrificed American lives to defeat several ruthless tyrants on the field of battle. The twenty-first century should be a time to join with the other members of the international community in developing procedures to prevail over the role of war and bloodshed. If there is risk in this process, it is a risk we can afford to take, for our strongest allies in the world stand firmly for the ICC.
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