President George W. Bush
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
Dear President Bush:
On April 11th, the 60th ratification of the Rome Treaty on the International Criminal Court (ICC) was deposited at the United Nations. By early next year, the first permanent international court designed to prosecute the world's most terrible crimes will begin its work. Virtually every major U.S. ally is joining this institution without reservation. Their embrace of the ICC is rooted in the lessons of a century scarred by genocide, from the Holocaust to Cambodia, from Rwanda to Iraq. At long last, there will be a place where the victims of such evil crimes will be heard and the perpetrators held accountable.
We know that your administration opposes ratifying the ICC Treaty. Yet the United States still faces a stark choice. Even as a non-state party to the ICC, it can engage constructively with its allies to ensure a fair and impartial tribunal. Or it can disengage entirely, throwing away its influence for absolutely no gain. It can uphold its legacy of leadership in bringing war criminals to justice. Or it can needlessly undermine that legacy in the eyes of the world.
Ever since September 11th, the United States has been leading a global effort against the perpetrators of a massive crime that targeted innocent civilians. To strengthen respect for human rights and extend the rule of law, we urge you not to withdraw U.S. signature from the ICC Treaty. This is an unprecedented step - in 225 years the United States has never removed its signature from an international treaty. Such a step will not derail the ICC or deter a single country from joining it. "Unsigning" the treaty or actively opposing the court will only isolate the United States from friends and allies committed to the rule of law and undercut America's standing as a country committed to international justice.
We recognize your administration's concern that the ICC could be misused to launch politically motivated legal attacks against American citizens. But the ICC contains more safeguards against such prosecutions than any international court yet established. Unlike the International Criminal Tribunal for Yugoslavia, for example, the ICC will have no jurisdiction over alleged crimes investigated in a good faith manner by governments, something the United States is committed to do as a matter of course when credible charges are brought against its citizens. The ICC can act only when countries willfully obstruct justice - a very high bar.
The ICC will have authority to try only the worst international crimes, defined in ways that correspond to the U.S. Uniform Code of Military Justice. Suspects will enjoy due process rights as comprehensive as those guaranteed by the U.S. Bill of Rights - indeed, stronger than those afforded by many countries to which the United States extradites its nationals. American service members will gain added protection from Status of Forces agreements negotiated with countries where they are based, which take precedence over obligations to the ICC. If a potential adversary ever tried to bring a case against an American before the court, he would automatically expose himself to prosecution as well for any crime related to the same conflict.
These are strong protections, written into the ICC Treaty in large part at the insistence of American negotiators. If the court's judges were ever to ignore them, they would have to answer to an Assembly of States Parties composed mostly of American allies.
For all these reasons, it is hard to imagine a frivolous case involving an American citizen being taken seriously, much less prosecuted, by the ICC. That said, the court's potential jurisdiction over crimes committed by Americans on the territory of its member states is nothing extraordinary. Americans, including American service members, who commit crimes overseas are routinely tried in foreign courts. Those nations ratifying the Rome Treaty are simply exercising their right to transfer to an international court cases arising on their territory. This is not a threat to sovereignty, but an assertion of sovereignty.
Of course, the strength of the protections contained in the ICC Treaty will ultimately depend on their application by the court's judges and prosecutor. The first few years of the ICC's operation will be critical to shaping its culture. Its first judges and prosecutor will soon be named. Critical decisions, such as defining the crime of aggression, must still be made. Constructive engagement with the ICC will enable the United States to consult with its allies on these issues.
It will also allow your administration to cooperate with the court on a case-by-case basis when it takes up cases the United States has an interest in pursuing. Please keep in mind that once the ICC is established, the Security Council will not approve any additional ad hoc war crimes tribunals. The ICC will be the only available international mechanism for bringing future war criminals to justice. It would make little sense for the United States to oppose Security Council referrals of egregious crimes to the court, or to refuse to provide evidence when a perpetrator of genocide is brought before it.
Unsigning the ICC Treaty, on the other hand, would have no practical impact on the court and it would not gain a single additional protection for U.S. nationals. The cost would be felt almost entirely by the United States, which would lose all remaining standing in a process that clearly affects its interests.
Unsigning would also set a new international precedent that could come back to haunt the United States. It is not uncommon for governments to sign treaties even when there is no political consensus in their countries to ratify them - the United States often urges governments to do just that. It took Russia seven years and a change of leadership to ratify the START II nuclear arms treaty after Presidents Bush and Yeltsin signed it in 1993. It took Colombia six years to ratify the UN Convention Against Illicit Traffic in Narcotic Drugs. It took the United States forty years to ratify the Genocide Convention - from the time of President Truman, who signed it, to the time of President Reagan. Had the option of unsigning occurred to domestic opponents of these treaties, national leaders would have come under extraordinary pressure to repudiate the signatures of their predecessors. If you set this precedent today, you and other heads of state and government will be pressed to apply it to a host of other unratified treaties.
Ultimately, when the ICC has a proven track record of fair and impartial prosecutions against the Pol Pots and Saddams of the future, we are confident that the United States will want to reevaluate its hostility towards the court. In the meantime, the Unites States should neither burn its bridges nor foreclose its options. Engagement with this historically important institution is the one way for America to protect its interests while staying true to its values. We hope that is the choice you will make.
cc: Colin Powell, Secretary of State
Donald Rumsfeld, Secretary of Defense
Condoleezza Rice, National Security Advisor