The United States and the International Criminal Court
John R. Bolton, Under Secretary for Arms Control and International Security

http://www.state.gov/t/us/rm/15158.htm

(Gold9472: Hmmm... do you think it was a good idea, specifically for the Bush Administration, not to adhere to international laws?)

Remarks to the Federalist Society
Washington, DC
November 14, 2002

I've been asked to open this 20th anniversary convention of the Federalist Society with some remarks about the pressures of national security on American government. With this in mind, I'd like to address the topic of the International Criminal Court and detail our reasons for opposing it. As I will explain, the problems inherent in the ICC are more than abstract legal issues -- they are matters that touch directly on our national security and our national interests.

For a number of reasons, the United States decided that the ICC had unacceptable consequences for our national sovereignty. Specifically, the ICC is an organization whose precepts go against fundamental American notions of sovereignty, checks and balances, and national independence. It is an agreement that is harmful to the national interests of the United States, and harmful to our presence abroad.

U.S. military forces and civilian personnel and private citizens are currently active in peacekeeping and humanitarian missions in almost 100 countries at any given time. It is essential that we remain steadfast in preserving the independence and flexibility that America needs to defend our national interests around the world. As President Bush said,

The United States cooperates with many other nations to keep the peace, but we will not submit American troops to prosecutors and judges whose jurisdiction we do not accept. Every person who serves under the American flag will answer to his or her own superiors and to military law, not to the rulings of an unaccountable International Criminal Court.

So in order to protect our citizens, we are in the process of negotiating bilateral agreements with the largest possible number of states, including non-Parties. These Article 98 agreements, as they are called, provide American citizens with essential protection against the Court's purported jurisdiction claims, and allow us to remain engaged internationally with our friends and allies. To date, 14 countries have signed Article 98 agreements with us. It is a misconception that the United States wants to use these Article 98 agreements to undermine the ICC. To the contrary, we are determined to work with States Parties, utilizing a mechanism prescribed within the Rome Statute itself, to find an acceptable solution to one of the main problems posed by the ICC.

In the eyes of its supporters, the ICC is simply an overdue addition to the family of international organizations, an evolutionary step ahead of the Nuremberg tribunal, and the next logical institutional development over the ad hoc war crimes courts for the Former Yugoslavia and Rwanda. The Statute of Rome establishes both substantive principles of international law and creates new institutions and procedures to adjudicate these principles. The Statute confers jurisdiction on the ICC over four crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. The Court's jurisdiction is "automatic," applicable to covered individuals accused of crimes under the Statute regardless of whether their governments have ratified it or consent to such jurisdiction. Particularly important is the independent Prosecutor, who is responsible for conducting investigations and prosecutions before the Court. The Prosecutor may initiate investigations based on referrals by States Parties, or on the basis of information that he or she otherwise obtains.

So described, one might assume that the ICC is simply a further step in the orderly march toward the peaceful settlement of international disputes, sought since time immemorial. But in several respects, the court is poised to assert authority over nation states, and to promote its prosecution over alternative methods for dealing with the worst criminal offenses.

The Court's flaws are basically two-fold, substantive, and structural. As to the former, the ICC's authority is vague and excessively elastic, and the Court's discretion ranges far beyond normal or acceptable judicial responsibilities, giving it broad and unacceptable powers of interpretation that are essentially political and legislative in nature. This is most emphatically not a Court of limited jurisdiction. Crimes can be added subsequently that go beyond those included in the Rome Statute. Parties to the Statute are subject to these subsequently-added crimes only if they affirmatively accept them, but the Statute purports automatically to bind non-parties, such as the United States, to any such new crimes. It is neither reasonable nor fair that these crimes would apply to a greater extent to states that have not agreed to the terms of the Rome Statute than to those that have.

Numerous prospective "crimes" were suggested at Rome and commanded wide support from participating nations, such as the crime of "aggression," which was included in the Statute, but not defined. Although frequently easy to identify, "aggression" can at times be something in the eye of the beholder. For example, Israel justifiably feared in Rome that certain actions, such as its initial use of force in the Six Day War, would be perceived as illegitimate preemptive strikes that almost certainly would have provoked proceedings against top Israeli officials. Moreover, there seems little doubt that Israel will be the target of a complaint in the ICC concerning conditions and practices by the Israeli military in the West Bank and Gaza. Israel recently decided to declare its intention not to become a party to the ICC or to be bound by the Statute's obligations.

A fair reading of the treaty leaves one unable to answer with confidence whether the United States would now be accused of war crimes for legitimate but controversial uses of force to protect world peace. No U.S. Presidents or their advisors could be assured that they would be unequivocally safe from politicized charges of criminal liability.

As troubling as the ICC's substantive and jurisdictional problems are, the problems raised by the Statute's main structures -- the Court and the Prosecutor -- are still worse. The ICC does not, and cannot, fit into a coherent, international structural "constitutional" design that delineates clearly how laws are made, adjudicated or enforced, subject to popular accountability and structured to protect liberty. There is no such design, nor should there be. Instead, the Court and the Prosecutor are simply "out there" in the international system. Requiring the United States to be bound by this treaty, with its unaccountable Prosecutor and its unchecked judicial power, is clearly inconsistent with American standards of constitutionalism. This is a macro-constitutional issue for us, not simply a narrow, technical point of law.

We are considering, in the Prosecutor, a powerful and necessary element of executive power, the power of law-enforcement. Never before has the United States been asked to place any of that power outside the complete control of our national government without our consent. Our concern goes beyond the possibility that the Prosecutor will target for indictment the isolated U.S. soldier who violates our own laws and values by allegedly committing a war crime. Our principal concern is for our country's top civilian and military leaders, those responsible for our defense and foreign policy. They are the ones potentially at risk at the hands of the ICC's politically unaccountable Prosecutor, as part of an agenda to restrain American discretion, even when our actions are legitimated by the operation of our own constitutional system.

Unfortunately, the United States has had considerable experience in the past two decades with domestic "independent counsels," and that history argues overwhelmingly against international repetition. Simply launching massive criminal investigations has an enormous political impact. Although subsequent indictments and convictions are unquestionably more serious, a zealous independent Prosecutor can make dramatic news just by calling witnesses and gathering documents, without ever bringing formal charges.

Indeed, the supposed "independence" of the Prosecutor and the Court from "political" pressures (such as the Security Council) is more a source of concern than an element of protection. "Independent" bodies in the UN system have often proven themselves more highly politicized than some of the explicitly political organs. True political accountability, by contrast, is almost totally absent from the ICC.

The American concept of separation of powers, imperfect though it is, reflects our settled belief that liberty is best protected when the various authorities legitimately exercised by government are, to the maximum extent possible, placed in separate branches. So structuring the national government, the Framers believed, would prevent the excessive accumulation of power in a limited number of hands, thus providing the greatest protection for individual liberty. Continental European constitutional structures do not, by and large, reflect a similar set of beliefs. They do not so thoroughly separate judicial from executive powers, just as their parliamentary systems do not so thoroughly separate executive from legislative powers. That, of course, is entirely Europe's prerogative, and may help to explain why Europeans appear to be more comfortable with the ICC's structure, which closely melds prosecutorial and judicial functions in the European fashion.

In addition, our Constitution provides that the discharge of executive authority will be rendered accountable to the citizenry in two ways. First, the law-enforcement power is exercised through an elected President. The President is constitutionally charged with the responsibility to "take Care that the Laws be faithfully executed," and the constitutional authority of the actual law-enforcers stems directly from the only elected executive official. Second, Congress, all of whose members are popularly elected, through its statute-making authority, its confirmation authority and through the appropriations process, exercises significant influence and oversight. When necessary, the congressional impeachment power serves as the ultimate safeguard.

In the ICC's central structures, the Court and Prosecutor, these sorts of political checks are either greatly attenuated or entirely absent. They are effectively accountable to no one. The Prosecutor will answer to no superior executive power, elected or unelected. Nor is there any legislature anywhere in sight, elected or unelected, in the Statute of Rome. The Prosecutor is answerable only to the Court, and then only partially, although the Prosecutor may be removed by the Assembly of States Parties. The Europeans may be comfortable with such a system, but Americans are not.

By long-standing American principles, the ICC's structure utterly fails to provide sufficient accountability to warrant vesting the Prosecutor with the Statute's enormous power of law enforcement. Political accountability is utterly different from "politicization," which we can all agree should form no part of the decisions of either Prosecutor or Court. Today, however, precisely contrary to the proper alignment, the ICC has almost no political accountability, and carries an enormous risk of politicization. Even at this early stage in the Court's existence, there are concerns that its judicial nomination process is being influenced by quota systems and back-room deals.

End Part I