http://www.cato.org/pubs/pas/pa-311.html

REASONABLE DOUBT

The Case against the Proposed International Criminal Court

by Gary T. Dempsey

Gary T. Dempsey is a foreign policy analyst at the Cato Institute.

Executive Summary

In July 1998 representatives of governments and nongovernmental organizations will conclude a five-week international conference in Rome aimed at producing a treaty establishing the International Criminal Court. The stated mission of the proposed ICC is to prosecute persons charged with the most serious international crimes, such as war crimes, crimes against humanity, and genocide. With 116 articles and more than 200 wording options to be debated, however, the ICC's draft statute is replete with unresolved issues and alarming possibilities.

Specifically, the court threatens to diminish America's sovereignty, produce arbitrary and highly politicized "justice," and grow into a jurisdictional leviathan. Already some supporters of the proposed court want to give it the authority to prosecute drug trafficking as well as such vague offenses as "serious threats to the environment" and "committing outrages on personal dignity." Even if such expansive authority is not given to the ICC initially, the potential for jurisdictional creep is considerable and worrisome. Moreover, it appears that many of the legal safeguards American citizens enjoy under the U.S. Constitution would be suspended if they were brought before the court. Endangered constitutional protections include the prohibition against double jeopardy, the right to trial by an impartial jury, and the right of the accused to confront the witnesses against him.

For those and other reasons, the U.S. Senate and U.S. House of Representatives should have sufficient grounds to, respectively, refuse to ratify and to fund the International Criminal Court. If Congress goes ahead with the treaty, it could open a Pandora's box of legal mischief and political folly.

Introduction

On July 17, 1998, government officials and delegates from nongovernmental organizations from around the world will conclude a five-week conference in Rome aimed at finalizing a treaty establishing the International Criminal Court. According to the ICC draft statute completed at the United Nations earlier this year, the proposed court will be empowered to prosecute persons charged with "the most serious crimes of concern to the international community," including war crimes, crimes against humanity, and genocide.(1) But with 116 articles and 200 wording options to be debated by more than 100 countries and organizations, the Rome conference will likely sew together a legal monstrosity.

Serious discussion about creating a permanent international criminal court began following the creation of the Nuremberg and Tokyo tribunals after World War II. In tandem with the drafting of the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and the various Geneva Conventions (1949), the United Nations General Assembly asked the International Law Commission--the body in charge of codifying international law--to examine the possibility of creating a permanent international criminal court. By the early 1950s the International Law Commission had produced two draft statutes, but the project was shelved when it became apparent that the political climate of the Cold War made such a court impracticable.

In 1989 the UN delegation from Trinidad and Tobago revived the idea of establishing an international criminal court, proposing the creation of a world judicial body capable of dealing with crimes related to international drug trafficking. While the International Law Commission resumed work drafting an ICC statute, the UN established temporary international criminal tribunals to adjudicate cases of war crimes, crimes against humanity, and genocide committed during the recent conflicts in the former Yugoslavia and Rwanda.

The International Law Commission submitted an ICC draft statute to the UN General Assembly in 1994, recommending that an international conference be convened to finalize a treaty. Two years later, the UN General Assembly convened the Preparatory Committee on the Establishment of an International Criminal Court, which allowed UN member states and nongovernmental organizations to begin preliminary negotiations on the text of the statute. The Preparatory Committee held six sessions over more than two years and completed an amended draft statute on April 3, 1998. The Rome conference that concludes on July 17 is intended to work out the draft statute's many remaining unresolved issues.

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Conclusion

Given the foregoing discussion, it is clear that the ICC conference in Rome will probably produce a treaty of dubious merit and unconstitutional content. Specifically, the proposed International Criminal Court threatens to diminish national sovereignty, interfere with peacekeeping operations, produce selective and politicized justice, and grow into a jurisdictional leviathan. Perhaps most worrisome, it appears that American defendants brought before the court will not have many of the crucial protections enumerated in the Bill of Rights.

The long list of problems that are likely to emerge with the formation of the ICC--in any conceivable incarnation--creates reasonable doubt about the wisdom of establishing the court in the first place. The Clinton administration ought to change course and decline to support the treaty that emerges from the Rome conference. If the administration proves unwilling to defend American sovereignty and the constitutional rights of the American people, the U.S. Senate and the U.S. House of Representatives will likely have sufficient grounds to, respectively, refuse to ratify and to fund the ICC. If Congress goes ahead with the treaty, however, it could open a Pandora's box of legal mischief and political folly.