Send to a Friend <% dim printurl printurl = Request.ServerVariables("URL")%> " target="_blank">Print Version

April 16, 2002, 9:15 a.m. When in the Rome Treaty . . . . . . get out: and get out now. By Lee A. Casey & David B. Rivkin Jr.

EDITOR’S NOTE: This article appeared in the March 25, 2002, issue of National Review, before the International Criminal Court was a reality. The treaty establishing the ICC was was ratified last week by the U.N.

ill Clinton admitted that it had "significant flaws," and knew that the Senate would never approve it. But in the final weeks of his presidency, he went ahead and signed the 1998 Rome Treaty anyway — and now it's up to President Bush to correct his mistake.

The Rome Treaty seeks to create a permanent International Criminal Court, or ICC. Participation in this new regime would be inconsistent with our national interests, with the Constitution, and with democratic principles. The president should withdraw the Clinton signature and make clear that the United States will neither support the ICC nor permit that court to mistreat our citizens or compromise our interests overseas. A debate is underway inside the administration regarding whether, how, and when to do so; there are abundant policy and legal justifications for taking this action immediately.

The new ICC would be a first: For the first time in history, an independent international institution would be capable of punishing individual Americans for actions it considers to be violations of international law. It would be unlike the United Nations, in that the U.S. would not have veto power over its actions. Its prosecutors and judges would have the legal right to demand the extradition of any American citizen — from the president himself down to John Q. Public — they believe may have violated the laws of war, or committed any of the other offenses identified in the court's statute. These include "crimes against humanity," "genocide," and "aggression" — horrific offenses, to be sure, but defined broadly enough in the ICC treaty to include such ambiguous items as "outrages against personal dignity" and "serious injury to mental health." How these terms are interpreted and applied will be entirely within the discretion of the ICC, whose personnel are unlikely to be sympathetic to the U.S.

Although a number of our allies have signed the treaty, the ICC also has been embraced by states such as Algeria, Cambodia, Haiti, Iran, Nigeria, Sudan, and Syria — all of which have been implicated in the use of torture, extrajudicial killings, or both. Yet once their instruments of ratification are presented, each would have a full and equal voice in selecting the ICC's judges and prosecutors. Moreover, leaving aside the "outlaw" states, if the U.S. were itself to ratify the Rome Treaty, it would have precisely as much say — one vote — in how the court is run as, for example, the tiny states of Liechtenstein, Luxembourg, San Marino, and Nauru (a Pacific atoll). Such arrangements were unacceptable to the U.S. when it joined the United Nations (where it obtained veto power in the Security Council), and they remain equally unacceptable today.

There is little doubt that the European states that have joined the ICC treaty regime — at least those that maintain more than a police force for national-defense purposes — assume that they will be in charge at the court. Indeed, since 1997, London, Paris, and Berlin have offered the sweetest of assurances that the U.S., its elected officials, and its armed forces would never be the targets of this institution. Rather, they claim that the ICC would only pursue the worst offenses by the very worst of people: Saddam Hussein is frequently mentioned.

But this is wishful thinking. In fact, the myth of a court for despots was exploded in 1999, when the Canadian prosecutor of the International Criminal Tribunal for the Former Yugoslavia — the ICC's recognized model — investigated the U.S. and its NATO allies for alleged war crimes during their air campaign against Serbia. No indictments were brought, but this was only because the prosecutor concluded that she would not be able to obtain enough evidence to convict sufficiently high-level officials, such as the president of the United States and the prime minister of Great Britain.

Since then, the fallback position of ICC supporters has been that the principle of "complementarity" will protect the U.S. and its citizens from politically motivated ICC prosecutions. Complementarity, which is indeed written into the Rome Treaty, suggests that national authorities have the primary right to prosecute their own nationals for offenses within the ICC's jurisdiction, and that only if a state is "unwilling or unable genuinely to carry out the investigation or prosecution" would the ICC itself act. But this guarantee is just as illusory as faith in the prosecutors' goodwill. Application of the complementarity principle is entirely within the unreviewable discretion of the ICC itself, which alone would decide when a national prosecution, or lack thereof, was "adequate."

In any case, the flaws of the ICC run much deeper than the issues of its practical application. Joining this treaty regime would be inconsistent with the most fundamental principle of American republicanism — that those who exercise government authority, such as the right to prosecute and judge criminal offenses, must be elected by the American people, or, at a minimum, be appointed by their elected representatives and be accountable for their actions. The new court's officials would not be elected by the American people (or any people, for that matter) and would not be accountable to them. This is an undemocratic institution of which the U.S. should have no part.

Furthermore, U.S. ratification would be unconstitutional. The ICC would be able to investigate and prosecute alleged offenses taking place entirely within the U.S. Under the Constitution and the Supreme Court's relevant precedents, offenses committed by Americans within the U.S. must be tried in U.S. courts, with the full application of the Bill of Rights. Any such crime must be publicly tried by a jury in the place where the crime was committed, and the accused must be afforded the opportunity to confront all of the prosecution's witnesses. The ICC would not provide these rights, nor would it provide protection against "double jeopardy," as required by the Constitution.

Here's what it would permit: secret hearings, secret witnesses, conviction based on a simple majority vote of a judicial panel, and the opportunity for the prosecution to appeal any acquittal. All of these elements are, of course, entirely unacceptable under the Constitution and laws of the U.S. when applied to civilian defendants. Such extraordinary measures have been approved by the Supreme Court only for the narrow category of persons defined as "unlawful combatants." Individuals such as Osama bin Laden and his al Qaeda terrorists, who do not wear uniforms, do not carry arms openly, and do not fight in accordance with the laws of war, are subject to trial by "military commission" under the Supreme Court's ruling in Ex parte Quirin (1942). That case involved the trial of eight Nazi saboteurs, and reflects the only constitutionally permissible exception to the general rule; it provides the legal rationale for President Bush's order creating military commissions to try bin Laden and his accomplices. Adherence to the ICC treaty would transform this narrow exception, permitting reduced procedural rights for unlawful combatants during time of war, into a general rule, applicable at all times, without distinction among civilians, lawful combatants, and unlawful combatants. Such an arrogation of power has been specifically forbidden by the Supreme Court, in its landmark decision in Ex parte Milligan (1866), which held that a civilian could not be subjected to military justice.

For all of these reasons, President Bush should withdraw the American signature from the Rome Treaty, and make clear that the U.S. will not participate in the ICC regime. Both houses of Congress have already passed a bill called the American Service Members Protection Act, which would forbid U.S. cooperation with the ICC. The bill would also implement a number of protections necessary to ensure that the ICC does not, even though the U.S. has not ratified the Rome Treaty, attempt to exercise its jurisdiction over American troops overseas. When U.S. forces engage in U.N.-sponsored operations, our soldiers should not be accountable to ICC "justice."

All in all, the Rome Treaty offers the American people a remarkably bad deal, and President Clinton should never have signed it. But President Bush can undo the damage. The president should reassert America's rights and interests, and make clear that the United States will neither be bound to the ICC regime nor be intimidated by it.

— Messrs. Casey and Rivkin are partners in the Washington, D.C., office of Baker & Hostetler LLP. Both served in the Reagan and George H. W. Bush administrations.