"The ICC could investigate and try US citizens without US consent even though the US is not a party to the ICC treaty."
Because the ICC has jurisdiction to investigate and prosecute only individuals, not governments, long-standing principles of criminal law influence how the Court works. 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's Rome Statute treaty or accepting the ICC's jurisdiction in a particular situation, a country includes the ICC within 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 the individual's government. Legal arguments disputing this application of international criminal law have not proven convincing to most governments.
"The Court has too much unchecked power and its Prosecutor cannot be controlled."
The ICC has many checks and balances in its Rome Statute that limit the authority of the Prosecutor and judges. For example:
The Prosecutor cannot pursue an investigation on his or her own initiative 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.
No two judges may be from the same state, and, given the pattern of ratification, most of the 18 judges will 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 if the investigation is genuine.
The Assembly of States Parties (ASP), made up of member states, has ultimate oversight authority over the Court. For example, if a judge or the Prosecutor acts inappropriately, the ASP 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 ICC could investigate and prosecute US leaders for the 'crime of aggression.'"
Until the Assembly of States Parties can agree on an actionable definition for this crime (that is, the unlawful use of force by one state against another, for example, Iraq's invasion of Kuwait in 1990) and the Statute is amended by 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 decide not to be bound by the crime of aggression provision and thus shield its leaders and indeed all of its citizens from being charged with aggression. [Note: this amendment was adopted at the Assembly 2010 Review Conference. The US expressed satisfaction at its outcome.]
"The Court's very existence threatens US sovereignty."
The Court does not judge the actions of states or governments, but only persons. Moreover, like any other treaty, the Rome 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 US or do not commit atrocities in other countries, and the US will have no obligation to transfer them to the Court.
"The Court could 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 US armed forces.
Nonetheless, the Bush administration argued that there would always be the possibility of politically motivated charges being lodged against US leaders and soldiers. However, the Rome Statute has the many safeguards mentioned above, 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 preempt the Court with its own national investigation of any such charges.
Further, many countries that have joined the ICC are America's allies and friends.
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 prevents trials from occurring in the country where the atrocity took place."
The founders of the ICC 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 stated:
"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."
"The ICC's Rome Statute does not meet US constitutional standards, particularly with the due process rights it accords to defendants."
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 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 UN ad hoc tribunals for the former Yugoslavia and for Rwanda rely on panels of experienced judges, so too would 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 servicemembers do not have a right to jury trials 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.