Commentary Magazine

The International Criminal Court

To the Editor:

In “Against an International Criminal Court” [May], Lee A. Casey and David B. Rivkin, Jr. present thoughtful grounds for doubting whether the United States should adhere to a proposed treaty to establish such a court. They argue that we should not enter into international obligations with which we do not intend to comply fully and that, if the UN-sponsored treaty to establish an International Criminal Court would put us in a situation of having to defy the treaty obligation in our national interest, then we should not enter into the treaty in the first place.

This kind of conflict is particularly likely to occur in the criminal area, as shown by Virginia’s recent execution of a Paraguayan national, despite a remarkable order by the International Court of Justice to stay the execution. Such episodes weaken the ability of the United States to rely upon international law.

Unfortunately, however, Messrs. Casey and Rivkin support their opposition with an almost absurd constitutional argument. Of course American tribunals are subject to the protections of our Constitution, and under our Constitution these protections cannot be impaired by treaty. But this does not mean that a foreign tribunal may not try an American.

Let us say that an American in the United States sends a letter bomb to France, killing the intended victim there. There is patently no constitutional difficulty with a proper extradition of the criminal to France for trial in France. This is so despite the lack of a jury trial and other U.S. constitutional protections in the French criminal system, not to mention the lack of judges in France who are appointed by a U.S. President.

Clearly, an American can be tried by a foreign court. The Supreme Court in the well-known 1913 case of Charlton v. Kelly upheld the extradition of an American citizen to be tried in Italy for murder. While that murder occurred in Italy, there is no constitutional basis for distinguishing that case from the letter-bomb example, where the victim suffers the intended injury in the foreign state.

The Constitution clearly permits treaties requiring the United States to hand up its citizens for trial abroad by foreign courts. Whether the United States should enter into the treaty for the International Criminal Court is—as Messrs. Casey and Rivkin point out—another matter.

John M. Rogers
College of Law
University of Kentucky
Lexington, Kentucky



To the Editor:

Lee A. Casey and David B. Rivkin, Jr. claim that the proposed International Criminal Court “will not, and cannot, work as advertised.”

The first argument they present is that the U.S. government cannot delegate its judicial authority

to put Americans on trial for offenses (like planning an allegedly illegal military action) that they have committed on American soil to an institution that is not a court of the United States.

I believe another word for such an offense is aggression, and the Pentagon does not have to worry. Even if the crime of aggression were included in the mandate of the International Criminal Court, as it was after World War II at Nuremberg, only the United Nations Security Council can declare a military action by a state to be aggression, and the U.S. has a veto over Security Council decisions.

The authors’ second argument is that the proposed court would be unconstitutional because it would “fail to provide American defendants the basic guarantees they enjoy under the Constitution’s Bill of Rights,” as decided by cases before the Supreme Court. In fact, the cases that the authors cite are from the Civil War era, the 1890’s, and World War II. They ignore developments in the law over the last 50 years. The U.S. Constitution specifically provides that treaties are the supreme law of the land, and it is the prevailing opinion of current legal authorities that this constitutional provision should be respected. Furthermore, the statute of the proposed court will incorporate the legal standards of the major legal systems of the world, including that of the United States, to be sure that every defendant has a fair trial. And if the United States government were to investigate in a fair way and either find insufficient evidence for a trial or itself try an American accused of war crimes, the international court would have no jurisdiction.

The authors’ third argument is that even if the proposed international court were constitutional, it should not be created to sit in judgment over despots and mass murderers because the U.S. and its allies would also fall under its jurisdiction and the court is likely to be politicized like other United Nations organs. But UN organs are by their very nature political bodies; the court would not be. Its officers would be chosen for their legal knowledge and integrity, and they would be subject to supervision, public scrutiny, budgetary control, and impeachment.

The best precedent we have is the War Crimes Tribunal for the Former Yugoslavia, on which the authors heap praise. It has been operating now for about four years. Its prosecutors, including Judge Richard Goldstone of South Africa, have acted beyond reproach. And the Tribunal has investigated and tried indicted war criminals with a growing degree of success. In the last year, the number of indicted war criminals in its custody has grown from seven to 26.

The fourth argument is that a U.S. decision to attack Saddam Hussein would leave the President and those exercising authority under his command vulnerable to investigation and prosecution. But as the authors admit in their next paragraph, “a scenario like this one . . . seems unlikely.”

In short, Messrs. Casey and Rivkin fail to make a case that the proposed court “will not, and cannot, work.” Following their advice would just make it easier for tyrants who commit war crimes and genocide to escape justice. And it would end the opportunity now offered to codify in international law the imperative of redress for victims of war crimes and genocide, including rehabilitation, restitution, or reparations.

Harris O. Schoenberg
Coordinating Board of Jewish
New York City



Lee A. Casey and David B. Rivkin, Jr. write:

Most of the points made in these letters have been rendered moot as a result of what happened at the UN Conference on the International Criminal Court held in Rome from June 15 to July 17. The final document that came out of that conference was so much worse than the advance proposals for the ICC on which we based our article that we would like to bring readers up to date.

Not only were all the fears expressed in our essay confirmed at the Rome conference, but the extreme nature of the final treaty alarmed even the Clinton administration, which had enthusiastically—and blindly—supported the creation of a permanent ICC. The modest mechanisms by which the U.S. sought to make the Court accountable to some institution other than itself—such as a requirement that matters be referred to it for investigation and prosecution by the UN Security Council—were resoundingly, indeed vengefully, rejected.

What became apparent at the conference was that the delegates, from more than 125 countries, seemed more interested in setting up a supranational organization capable of reining in American power than in creating an institution aimed at bringing international outlaws to justice. The final tally—with only seven other countries joining the U.S. in voting against the treaty—only confirmed this impression.

In our article, we pointed out that the ICC, as a law unto itself, entirely unaccountable for its actions to any other authority, could be used as a political tool against the United States and its allies. We also feared that the ICC, once established, would quickly become the world’s policeman—as well as its prosecutor, judge, jury, and jailer. Proof that our fears were well-grounded is to be found in the final document of the Rome conference. But what we did not anticipate was that, in violation of the accepted rules of international law, that document would include an unprecedented provision claiming jurisdiction for the ICC over states that have not signed and ratified the treaty.

What we now have is, in fact, an international Independent Counsel, capable of initiating prosecutions against American citizens. Moreover, the areas within the ICC’s jurisdiction—war crimes, crimes against humanity, genocide, and aggression—are either so broadly defined as to cover acts never before considered violations of international law or, even more disturbing, not defined at all. The crime of “aggression,” for example, is to be defined by the states that eventually join the treaty—and in any manner they choose. No finding by the Security Council that aggression has taken place, as suggested by our correspondent Harris O. Schoenberg (whom events have proved wrong on almost every point), is required.

In effect, the treaty subjects the leadership of any state that uses military force—whether acting in accordance with the provisions of the UN Charter, customary international law, or domestic law—to the review and judgment of the ICC prosecutor and judges. The argument of Mr. Schoenberg and other ICC supporters—namely, that the Court’s jurisdiction should not extend to American citizens who had been fairly investigated by the U.S. government—did not prevail at Rome. Under Article 17 of the final document, the ICC can pursue a case where the national government concerned “is unwilling or unable genuinely to carry out the investigation or prosecution.” It is entirely up to the ICC to determine whether a state has been “unwilling” to pursue a case, and specifically whether its proceedings have been conducted “independently or impartially.”

Under our system of government, even assuming the most impartial and judicious ICC, any decision not to prosecute is likely to fall short of this standard. With one narrow exception, decisions on whether to prosecute a crime on the federal level are made by executive-branch officials directly accountable to the President. But the individuals most likely to be accused of violations within the ICC’s jurisdiction—the military and civilian officials of the Defense Department—are themselves members of the executive branch, and hence also directly accountable to the President. There is here the appearance of a conflict of interest that could easily be taken by an ICC prosecutor as grounds for moving forward in any case the United States has declined to prosecute.

Nor, contrary to John M. Rogers’s understanding, would such cases necessarily be confined to crimes Americans are charged with having committed abroad. The Supreme Court has indeed long held (see Neely v. Henkel, 1901) that the Constitution’s protections “have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country” (emphasis added). But U.S. participation in the ICC would subject Americans to the ICC’s authority for crimes committed in the United States and within the jurisdiction of our courts—including crimes committed by Americans against other Americans. Therein lies the constitutional issue we raised in our article.

As all this suggests, Mr. Schoenberg’s confidence that the ICC, unlike other UN organizations, would not be “political” was betrayed at the very hour of its birth. And the politics of the court is aimed not only against the United States but against its allies. The most striking illustration is a provision, sponsored by Egypt and Syria and supported by the other Arab states, declaring as a “war crime”

[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.

That this wholly novel provision is aimed solely and specifically at Israel was well understood by all. In the words of the Secretary General of the Arab League, Esmat Abdel Meguid, the resolution creating the ICC “regards Israeli settlements in occupied lands as a war crime,” for which Israeli leaders can be subject to prosecution.

Originally we believed that the U.S. could avoid the dangers we foresaw in the ICC simply by refusing to sign and ratify the treaty. In light of the provision that citizens of non-signatory states will also be subject to prosedition, this is no longer sufficient. Already the Clinton administration has indicated that, because of what happened at Rome, it will need to reassess American troop deployments abroad, and that the treaties governing the status of our troops in ICC countries (including the other members of NATO) will have to be renegotiated to ensure that Americans are not illegally seized and delivered to the court.

But even this step will not guarantee the safety of American nationals from illegal prosecution by the ICC. The only certain way to prevent that is to prevent the treaty itself from coming into force, which it will do upon being ratified by a minimum of 60 nations. If we do not succeed in stopping the ICC now, we will find, to borrow Thomas Jefferson’s words regarding another indefensible institution, that we “have the wolf by the ears; and we can neither hold him, nor safely let him go.”


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