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
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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