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ICC advocacy in the US occurs on two levels: efforts to educate
and lobby congresspersons and administration officials in
Washington, D.C., and locally directed efforts to inform the
American public and create grassroots pressure for US cooperation
with the Court.
The Coalition supports and promotes grassroots activity in support of the Court, including the formation of local alliances of individuals and organizations whose interests will be served and advanced by the ICC and thus by the US relationship with it. Local ICC alliances combine their diverse constituencies to create local public awareness of and support for the importance of US cooperation in a strong ICC.
AMICC's partner coalition, the Washington
Working Group on the ICC (WICC) is the driving force behind
the Washington advocacy campaign. Due to the realization that,
while indispensable, efforts directed solely toward the Capital
are not enough to attract the level of government attention
and support needed to rebut the prevalent misinformation and
disinformation circulating among our leaders and move this
issue forward, AMICC was conceived to build a vocal ICC constituency
around the US.
Below find basic background on US opposition to the ICC:
Although the US Government signed the ICC Statute in December
2000, it now is opposed to and unwilling to join the ICC because:
The US claims that the ICC potentially
could investigate and try US citizens without US consent
even though the US is not a party to the ICC Statute.
Because the ICC Statute has jurisdiction to investigate
and prosecute only individuals, not governments, long standing
principles of criminal law influence how the Court will
work. One of those principles is that an individual of any
nationality who commits a crime on a state's territory can
be prosecuted by that state -- without the consent of his
or her respective government.
American citizens are frequently prosecuted in the courts
of foreign countries for crimes they are alleged to have
committed on foreign territory, without any requirement
to obtain US consent for those prosecutions. US courts
likewise prosecute foreign nationals who allegedly commit
crimes on US territory without seeking the consent of
their home state.
By ratifying the ICC Statute or signing a declaration
for ICC jurisdiction in a particular situation, a state
delegates to the ICC its existing and continuing right
under international law, and its own domestic law, to
investigate, and if warranted, prosecute, any individual
of any nationality who is alleged to have committed an
atrocity crime on its territory. This legal power over
the foreign national exists regardless of the consent
or interests of his or her government. Legal arguments
disputing this application of international criminal law
have not proven convincing to most governments.
The US says that the Court has
too much unchecked power and fears that its prosecutor will
be uncontrollable. However, the ICC has many checks
and balances in its Statute that limit the authority of
the prosecutor and judges. For example:
- The Prosecutor cannot pursue an investigation without
the approval of at least two judges.
- The judges, the Prosecutor, or an accused can ask
that either a judge or the prosecutor be disqualified
if there are doubts about his or her impartiality.
- An independent defense unit will be a watchdog against
prosecutorial and judicial abuse.
- No two judges may be from the same state, and, given
the pattern of ratification, most of the 18 judges will
continue to be from countries that are America's allies and friends.
- The Prosecutor must immediately notify a suspect's
state of nationality about an impending investigation.
- A state can decide to conduct its own investigation
of a citizen suspected of ICC crimes and thus stop the
Prosecutor from acting.
- The Assembly of States Parties, made up of member
states, has ultimate oversight authority over the Court.
For example, if a judge or the Prosecutor acts inappropriately,
the Assembly can remove him or her.
Additional safeguards include:
- The UN Security Council can prevent the Court from
proceeding with specified investigations or prosecutions
for a 12-month period, and can renew that request indefinitely.
- A state can withhold, or choose to negotiate protected
disclosure of, any information that it feels would prejudice
its national security interests.
The US says that the ICC could
investigate and prosecute US leaders for the "crime of aggression"
(that is, the unlawful use of force by one state against
another, for example, Iraq's invasion of Kuwait in 1990).
However, until the Assembly of States Parties can agree
on an actionable definition for this crime (which under
the terms of the ICC Statute cannot occur for at least seven
years) and the Statute is amended by seven-eighths of the
states parties to include this definition, the Court has
no authority to charge any individual with this crime. If
the US were to join the Court, it could permanently "opt
out" of the crime of aggression and thus shield its leaders
and indeed all of its citizens from being charged with aggression.
Click here
to read the Bush Administration's last statement in the
ICC negotiations, providing its views on the crime of aggression.
The US argues that the Court's
very existence threatens US sovereignty. However, the
Court will not judge the actions of states or governments,
but only persons. Moreover, like any other treaty, the ICC
Statute does not obligate or impose duties on any state
that is not a party to the treaty. States have no obligation
to cooperate with the Court unless they have chosen to exercise
their sovereign right to ratify the Court's Statute. Thus,
until the US chooses to ratify the ICC Statute, the Court
will not be able to gain custody of US citizens who remain
in the United States, and the US will have no obligation
to transfer them to the Court.
The US fears that the Court
will be politically motivated against US leaders and soldiers.
The Court can only investigate the designated types of very
serious crimes of high magnitude that fall within the Court's
jurisdiction -- crimes that would never conceivably be authorized
as part of any military strategy by the U.S. armed forces.
Nonetheless, Washington argues that there is always the
possibility of politically motivated charges being lodged
against US leaders and soldiers. However, the ICC Statute
has many safeguards, most introduced by US negotiators,
to thwart politically motivated charges and thus maintain
the integrity of the Court. One of the primary safeguards
is the power of the US, even as a non-party to the Court,
to pre-empt the Court with its own national investigation
of any such charges.
In spite of the safeguards, if the Court were to succumb
to politically motivated charges lacking any legal merit,
its own future, particularly its financial future, would
be at great jeopardy as states that are members of the
Court realize that they too could be subjected to such
unwarranted actions.
Further, states that have joined the ICC are in large
part America's allies
and friends. Aggressive and rogue regimes would be
at high risk of their leaders being prosecuted if they
were to join the ICC.
Finally, the ICC does not have a police force. Its power
will depend entirely on the willingness of its members
and the Security Council to enforce its decisions. The
ICC will quickly lose credibility if it acts illegitimately.
The US says that it prefers
to support trials in the country where the atrocity took
place. The founders of the ICC support this view, which
is why they made it a court of last resort. Significantly,
in joining the Court, many countries are adopting laws that
strengthen their ability to prosecute war criminals themselves.
The existence of the ICC also will help to strengthen states'
will to act domestically, because if they do not, the ICC
may have jurisdiction in a case and act on it.
History shows that national courts are frequently unable
or unwilling to prosecute these types of crimes. Often
atrocities arise out of the disintegration of states and
the institutions of law and order. And even states that
are capable of trying the accused themselves might occasionally
prefer to avoid domestic turmoil by delegating such high-profile
cases to an international court. For instance, Sierra
Leone has said that:
"The result of this request [for a Special Court
for Sierra Leone] is Resolution 1315 of the Security Council.
The point here is that if the International Criminal Court
had begun to function, Sierra Leone would not have requested
the setting up of a Special Court. The perpetrators of
those heinous crimes committed in my country, would have
been handed to the Jurisdiction of the Court." Read
the full text.
The US has constitutional concerns
about the ICC Statute, particularly with the due process
rights accorded defendants. However, the ICC
Statute contains the due process rights found in the US
Constitution and now well recognized in international
standards of due process, with the exception of the American
right to jury trial.
In the negotiations, the US accepted the absence of jury
trial because civil law systems, which formed the large
majority of states negotiating the ICC Statute, do not
have jury trials and because it actually is extremely
impractical to empanel a jury of peers from the international
community to pass judgment on the crimes and defendants
of the ICC. Indeed, just as the ad hoc tribunals for the
former Yugoslavia and for Rwanda rely on panels of experienced
judges, so too does the ICC require the expertise and
integrity of judges to examine these complex crimes. Any
potential American defendant, as unlikely as that might
be, would doubtless prefer expert judges to rule on his
or her conduct than a cross-section of foreign nationals
drawn from around the world. There is a real difference
between an international trial and a domestic trial for
these purposes.
In any event, US service members do not enjoy a constitutional
right to jury trial under US law. Also, pursuant to the
many extradition treaties to which the US is a party,
the US may, and occasionally does, extradite a US citizen
to foreign courts that lack the right to jury trial and
other due process rights. The ICC's procedures are more
analogous to US law than perhaps any other state's legal
system, so it would be more advantageous for an American
citizen to be tried before the ICC, if that unlikely event
ever were to occur, than in most foreign courts.
- On May 6, 2002, the Bush Administration announced that
the US does not intend to join the Court and does not recognize
any obligations arising from the December 31, 2000, US signature
on the ICC Statute. The US did not physically remove its
signature from the list; it essentially nullified its signature
by sending a letter to that effect to the treaty depository,
the UN Secretary General.
As a mere signatory to the ICC Statute, the US had no
obligation to cooperate with the ICC. The signature only
required the US not to actively defeat the object and
purpose of the ICC. Because the US has always supported
the basic principle that those who commit atrocity crimes
should be held accountable internationally, its signature
did not create a conflict with the US decision not to
join the Court. However, if the Bush Administration's
intention is to actively oppose the ICC and seek to undermine
its operations, then the US signature on the ICC Statute
arguably would thwart such an intended policy.
- The ICC is the legacy of more than 50 years of work, from
the Nuremberg and Tokyo trials after World War II to the
current Hague, Arusha, and Freetown international criminal
tribunals, spearheaded by the US to promote justice through
law.
- By turning its back on the ICC, the US has forfeited to
others a critical opportunity for international leadership
and influence in shaping the evolution of the laws of war
and international humanitarian law — a development
that potentially puts US servicemembers at grave risk of
being held accountable to legal standards the US has not
participated in creating.
- US contributions to the drafting of the ICC Statute ensure
the fair and effective operation of the Court. Continued
US involvement and cooperation with the Court would greatly
enhance the prospects that remaining US concerns about the
Court would be addressed with careful consideration as the
Court begins operations.
- If the US decided to cooperate with the Court it would
be in a better position to protect itself against political
attacks than if the US undermines its influence and credibility
through active hostility or arbitrary refusals to cooperate
with the ICC.
- The US can better protect its interests by continuing
to help shape the ICC as a strong and fair institution than
by attacking it or complaining about it from the sidelines.
Anti-ICC legislation and policies can prevent US cooperation
with the Court and indeed create a sanctuary for war criminals
in the United States, but they cannot prevent action by
the ICC. By being hostile to the Court, the United States
forfeits credibility, an opportunity for leadership, and
respect as a champion of human rights and the rule of law.
- The Court protects American service members by pressing
foreign military powers to uphold the same standard of conduct
the US has always imposed on itself — standards that
protect American service members in battle.
- By joining the Court, the US would be able to take advantage
of the many benefits for member states. For example, the
US could choose not to accept the Court's authority to try
Americans for war crimes for seven years. During that period,
the US could observe whether the Court acts inappropriately,
and, if it does, the US could withdraw from the Court. US
membership also would permit the US to "opt out" of being
subject to any future actionable crime of aggression —
an opportunity that profoundly affects US national security
-- and would enable the US to place a judge on the Court
and deeply influence the Court's overall administration.
- The ICC could help promote US foreign policy interests.
For example, the ICC could greatly support and promote future US efforts
to arrest and prosecute international terrorists charged
with heinous large-scale attacks against US targets.
All too often US policy toward the Court is framed as a debate
between those who want the US to join immediately and those
who want total disengagement, and it is forgotten that there
are many intermediate steps currently available to our government.
- End the high costs of the US anti-ICC campaign
to US credibility, leadership, and foreign relations. This
campaign is now so virulent and extreme, and these costs
have become so high, that many persons in Congress and elsewhere
concerned with American foreign policy (on both the left
and the right) have become seriously alarmed. They are ready
for an approach that recognizes the reality of the Court
and the need for pragmatic relations with it, but without
premature final commitments to it.
- Adopt a "constructive engagement" approach. In particular,
support US participation as an observer in the ICC Assembly
of States Parties and reestablish US authority in this
area:
- Influencing ASP proceedings through participation
in debates and negotiations.
- Reasserting US leadership among all major states currently
participating as State Parties or observers, including
China, India, Israel, Japan, and Russia.
- Gaining support from those liberals and conservatives
in US policy circles who view the current high-cost
campaign as a failure of US diplomacy.
- Cooperate with the ICC on a case-by-case basis when
it is in American interests. This is compatible with
the Dodd Amendment to the American Servicemembers' Protection
Act which says:
"Nothing in this title shall prohibit the United
States from rendering assistance to international efforts
to bring to justice Saddam Hussein, Slobodan Milosovic,
Osama bin Laden, other members of Al Queda, leaders of
Islamic Jihad, and other foreign nationals accused of
genocide, war crimes or crimes against humanity."
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