The International Criminal Court:|
Myths and Facts About the International Criminal Court
MYTH: The Court will take on politically motivated cases against U.S. citizens or soldiers.
FACT: Numerous safeguards in the ICC treaty will prevent frivolous or politically motivated cases. First, the ICC will cover only the most egregious international crimes, defined in ways corresponding closely to the U.S. Code of Military Justice. It will have no jurisdiction over crimes committed on U.S. soil unless the United States ratifies its treaty.
Second, the Prosecutor will not be able to begin an investigation without authorization from a Pre-Trial Chamber of Judges. At that point, if a U.S. citizen were accused of a crime, the court's judges would be obliged, upon request, to defer to U.S. justice, standing down for at least six months while the United States pursued its own investigation and, if appropriate, prosecution. After that period, the judges would be able to authorize investigations only if they decided that the U.S. judicial system was willfully obstructing justice - a very high threshold. Any indictment would also require confirmation by a Pre-Trial Chamber of judges.
Finally, the U.N. Security Council can adopt a resolution suspending the ICC from investigating or prosecuting any case.
MYTH: The Court will violate U.S. Constitutional protections of due process
FACT: The court is designed to be a fair, independent judicial body that respects the highest standards of justice. Indeed, the ICC has one of the most extensive lists of due process guarantees ever written, many secured through the efforts of U.S. negotiators.
The Rome Statute contains a comprehensive list of rights enjoyed by any accused person, including: presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; and protection against double jeopardy.
Former U.S. State Department Legal Advisor Monroe Leigh has said: "The list of due process rights guaranteed by the Rome Statute are, if anything, more detailed and comprehensive than those in the American Bill of Rights. . . . I can think of no right guaranteed to military personnel by the U.S. Constitution that is not also guaranteed in the Treaty of Rome."
Human Rights Watch would not support the treaty if it did not contain such due process protections.
Only the right to trial by jury is missing from the Rome Treaty because of the impracticality of impaneling a jury to hear a case against someone like Pol Pot or Slobodan Milosevic. But the United States has long accepted that its citizens (including U.S. service members) will not get jury trials when accused of crimes in countries like France or Japan, where juries are not used. The United States has signed extradition treaties with many countries that explicitly permit Americans to be tried without a jury.
MYTH: The Court threatens sovereignty because it claims jurisdiction over citizens of countries, like the United States, that haven't ratified its treaty.
FACT: The Court will have no jurisdiction over crimes committed on U.S. soil unless the United States ratifies its treaty.
American citizens accused of crimes overseas are already subject to foreign jurisdiction. This is a basic and well-established principle of international law. If an American citizen or service member is accused today of a serious crime in Japan or Germany, for example, Japan or Germany have the right to try him, even if the United States wants to prosecute the crime itself. Countries that ratify the Rome Treaty are simply exercising their sovereign right to allow an international court to prosecute certain crimes committed on their territory rather than conducting these trials themselves.
The ICC will provide defendants with greater due process rights and protections than many countries to which the United States extradites its own citizens. Moreover, unlike national courts that try Americans, it must defer to American justice when the United States is willing to investigate and prosecute an alleged crime itself.
MYTH: The Court will have jurisdiction over past crimes and will second-guess past U.S. foreign policy decisions
FACT: The ICC will not have any authority over past crimes: its jurisdiction began when the ICC Treaty entered into force, on July 1, 2002.
MYTH: The Court will deter the United States from taking military action around the world to protect its national interests.
FACT: The presence of international tribunals has never presented a barrier to military action. The United States used force in Bosnia and in Kosovo, and has deployed thousands of troops to both places, even though the area is under the jurisdiction of the International Criminal Tribunal for Yugoslavia (ICTY). The ICTY has operated responsibly with fewer safeguards than the ICC, and no requirement to defer to the decisions of national courts. When the ICTY was asked to review NATO actions in Kosovo, it decided there was no basis for proceeding with an investigation.
By deterring atrocities, the Court may also limit the need to deploy U.S. troops in dangerous situations.
MYTH: The Court will be accountable to a rogue's gallery of undemocratic states.
FACT: The Court will be governed exclusively by its Assembly of States Parties (ASP), consisting of countries that have ratified the Rome Treaty. Virtually every major U.S. ally, including all NATO members save Turkey, is expected to ratify the Rome Treaty and thus join this Assembly.
Because the Court only has jurisdiction over crimes committed on the territory of countries that have ratified its treaty, highly abusive governments have been reluctant to expose their leaders to prosecution by joining the Court. Thus far, countries such as China, Cuba, North Korea, Iraq, Libya, Burma, Pakistan, have refused to sign the ICC Treaty, which is being ratified primarily by established and emerging democracies all over the world.
MYTH: The ICC will override national jurisdictions.
FACT: The U.S. can avoid prosecution of its citizens by the ICC by using its own courts to prosecute genocide, crimes against humanity and war crimes. The ICC treaty preserves the primary right and duty to states to prosecute the most serious human rights crimes and can proceed only when the state with primary jurisdiction is unable or unwilling to proceed. The ICC won't even have jurisdiction over cases involving U.S. nationals if the U.S. itself investigates, and if appropriate, prosecutes the individual responsible. In addition, U.S. nationals can only be prosecuted if they commit one of the extremely and serious crimes under the jurisdiction of the Court.
Bona fide national efforts to investigate alleged crimes and, if appropriate, to prosecute will prevent the ICC from proceeding, even if national authorities concluded that the evidence does not warrant prosecution.
MYTH: ICC Judges will be partisan and/or incompetent
FACT: The ICC Treaty establishes strict criteria for the selection of the prosecutor and the judges, requiring experts whose reputation, moral character and independence are beyond reproach. They will be prohibited from any activity during their term in office that might jeopardize their independence, and will be excused from particular cases if there is any question of partiality. The judges will be accountable to an assembly of member states and can be removed by a simple vote of those countries in the unlikely event that they abuse their powers.
MYTH: The Court will be used to pursue politically motivated cases against Israel.
FACT: The ICC cannot prosecute any Israeli actions that took place before its entry into force on July 1, 2002. Future actions on Israeli or Palestinian territory will be covered only if the ICC treaty is ratified by Israel or by a broadly recognized Palestinian state. That probably would not happen until after an Israeli-Palestinian peace agreement, in which case the likelihood of Israeli military action against Palestinians will greatly diminish.