Toward U.S. Acceptance of the International Criminal Court

Abstract

BRUCE BROOMHALL [*] I INTRODUCTION Since the Rome Diplomatic Conference was concluded in July 1998 with the adoption of the Rome Statute of the International Criminal Court (the ICC), [1] the United States has been seeking accommodation of what it calls fundamental with the final text. [2] This effort has most recently taken place through the meetings of the ICC Preparatory Commission (PrepCom). [3] The endeavor has been frustrating one for the United States. Unable to offer credible carrots, decisive sticks, or viable legal arguments, the United States finds itself on a lonely legal ledge, [4] able neither to go forward nor to step back. Asking for concessions it cannot win in process it can neither leave nor oppose, the United States has so far resisted coming to terms with the limits of its ability to control the ICC process. It has also resisted the recognition that its reasons to support the ICC far outweigh its reasons to oppose it. That its eventual support for the ICC (if only as non-party) is nonetheless highly likely is argued below. II THE U.S. NEGOTIATING AIM AND FLAWS IN THE ROME STATUTE When it refers to flaws in the Rome Statute, [5] the United States refers to the ICC's ability to exercise jurisdiction over the nationals of non-party states to the statute without the consent of those states. [6] The U.S. government sees in this the possibility of U.S. personnel being investigated for war crimes by an international tribunal. That the court would be able to do so only when the national of the non-party state is suspected on reasonable grounds of committing genocide, crimes against humanity, or war crimes on the territory of state party, [7] and where the state of nationality (among others) is found unwilling or unable to proceed genuinely against the individual, [8] has not so far been considered sufficiently reassuring. For the states that have ratified or that are moving toward ratification of the Rome Statute, the jurisdictional scheme is simply delegation to the ICC of the territorial and national jurisdiction that states undoubtedly enjoy under international law: The ICC will do nothing more than what these states have the right to do, and only when they are unwilling or unable to do it. [9] The United States argues that the possible investigation and prosecution of its nationals without its consent is tantamount to the imposition of treaty obligations on third state--something expressly disallowed by the Vienna Convention on the Law of Treaties. [10] For others, to allow the state of nationality of the accused to decide whether its nationals would be prosecuted would be retreat from the Nuremberg principle that an individual cannot find immunity behind the veil of the state. [11] The U.S. legal argument arises from deeper concerns. At least some (particularly military) decisionmakers are concerned that the ability of the United States to project force abroad will be constrained by possible ICC investigation into the actions of U.S. personnel on the territory either of party to the statute or of state consenting ad hoc to the ICC's jurisdiction. The U.S. government, in the context of an overall aim of entrenching post-Cold War U.S. preeminence in international affairs, is seeking to prevent the emergence of possible curb on the latitude available to the U.S. military in acting as an arm of U.S. foreign policy. That such latitude might encompass actions in at least the grey zone of legality could only exacerbate this concern. [12] The aim of post-Rome U.S. efforts has been to raise the comfort level of ICC skeptics within the U.S. government, in particular by limiting the court's effective powers with respect to non-party states. In its extreme (and currently favored) form, this exercise seeks fix in the form of magic bullet proposal that would resolve concerns through de facto or de lege amendment to the Rome Statute. …