US Withdrawal from ICC
Undermines Decades of American Leadership in International Justice

by Justice Richard J. Goldstone

International Criminal Court MONITOR, June 2002

On 11 April 2002, the ratifications necessary for entry into force of the Rome Statute of the ICC were deposited at the United Nations, opening the door to a new era in international justice. On this historic and long-awaited day, impunity was dealt a severe blow and the world took a giant step towards justice and accountability. At the time of adoption of the Rome Statute on 17 July 1998, few could have anticipated the rapid entry into force of this treaty representing every region of the world.

On 6 May 2002, in an act which shocked governments around the world, the United States formally renounced its signature of the Rome Statute of the ICC, authorized on 31 December 2000 under former President Bill Clinton. Speaking on behalf of the Bush Administration, Under Secretary for Political Affairs Marc Grossman described the Rome Statute as a "flawed outcome," built on a "flawed foundation." Mr. Grossman outlined, in considerable detail, the objections of the United States towards the Rome Statute, claiming these reservations were serious enough for the US to withdraw its participation in the process.

While reaffirming the commitment of the United States to justice and international law, Grossman expressed the Bush administration's disapproval of the ICC by raising a variety of unwarranted fears about the Court and its functioning. These concerns have often been raised by the United States in the past, but a closer look at the provisions of the Rome Statute and the progressive development of international criminal law would render these fears baseless.

One of United States' misconceptions is that the ICC would be an untamed animal, with unchecked prosecutorial power. In fact, the Assembly of States Parties, which is composed of many of the world's democracies and United States' allies, has the authority to oversee the work of the Court and to take action in the event of any suspicion of politically-motivated cases. In addition, the Security Council has the power to halt the prosecution or investigations of any case. Such order may be renewed indefinitely at one year intervals.

The Rome Statute contains built-in checks and balances and the treaty has strong mechanisms to ensure that the ICC is used as the court of last resort. An important principle enshrined in the ICC treaty is that of complementarity, which leaves States Parties with the jurisdiction to prosecute the crimes stipulated in the Statute. Only in the event that domestic judicial systems are not functioning, or national governments lack the political will to deal with such cases, will the ICC consider the matter. States Parties are required to enact implementation legislation, which may often involve positive reforms of existing domestic laws. This will strengthen the national judicial systems as well as the international legal order.

Second, the US claims that the ICC would undermine the Security Council. The ICC is not solely a tool of the Security Council. The Security Council may however refer cases to the Court. The ICC is therefore an important resource for the Security Council in its mission to preserve international peace and security. The Security Council will no longer have to pass resolutions to establish ad hoc ex post facto tribunals, nor will there be unchecked impunity for commissions of war crimes, crimes against humanity and genocide.

Furthermore, the hallmark of a fair and effective justice system is its independence from political influence. The Security Council is essentially a political body. The world could have little faith in a justice system where the Security Council is the last word, given that its permanent members are also among the most powerful in the world, and inevitably, would seek to influence the Court accordingly. Preservation of the independence of the Prosecutor is critical for maintaining a fair and impartial Court. So too, is the accountability of the Prosecutor whose decisions are subject to oversight by the judges.

Third, the US government argues that the ICC should not have jurisdiction over citizens of states who have not yet ratified the Rome Statute. However, the Court's jurisdiction arises from both the nationality and territory of States Parties. If a person allegedly commits a crime in another country, which is a State Party to the treaty, that country has the sovereign right to try the accused at whatever level it deems appropriate. The United States is not only refusing to support the Court, claiming that the ICC is a threat to US sovereignty, but is instead attacking an institution set up by other sovereign states.

This stance by the US government is disappointing, and in marked contrast to the long history of US cooperation with other nations in promoting the rule of law. From the Nuremberg trials in 1945 to the current ad hoc tribunals, the United States' leadership in the development of international justice

has been exemplary. US support of ad hoc tribunals and South Africa's Truth and Reconciliation Commission is admirable. In my long experience with a wide variety of international and domestic justice mechanisms, I whole-heartedly support creative solutions to attain lasting peace. However, the US must keep in mind that the ICC is one of several important pillars in the growing global movement for international justice.

As the sole superpower in a volatile and dangerous world, it is in the best interest of the United States to provide much needed moral leadership in the world, by fostering international cooperation and efforts to strengthen global institutional mechanisms to combat terror, armed conflict and other threats to human security and peace. By distancing itself from the ICC, the United States is only further alienating itself from its key allies, especially in Europe and the Americas.

The ICC is not a threat to US sovereignty, but, in fact, represents the strengthening of the international justice system. It is my earnest hope that the United States will reconsider its actions to weaken or oppose the ICC, and will instead allow the Court to prove itself as a professional judicial institution. As the painstakingly meticulous work of the prosecutors at the ad hoc tribunals have shown, the highest judicial standards of transparent and fair trials can and must be met.

Ultimately, the ICC is a tribute to the millions of innocent men, women and children who lost their lives as victims of some of the worst human rights violations in past centuries. Given its legal safeguards, the built-in principle of complementarity and the support from the United Nations, governments and civil society organizations from every region in the world, the ICC is certain to be an effective tool to end impunity in the 21st century.

Justice Richard Goldstone has served as Justice of the Constitutional Court of South Africa since 1994, and was recently appointed as the chairperson of the International Task Force on Terrorism by the International Bar Association.

Among his achievements, Justice Richard Goldstone served as the Chief Prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda from 1994-96.

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