The U.S. Should Ratify the Rome Statute

July 17, 1998 was a milestone in the history of International Law. It was the day 120 states voted to adopt the Rome Statute, the treaty that created the International Criminal Court. At the conference in Rome where the statute was created, only seven states voted against it and 21 abstained from voting. The United States was among the seven states that voted against adoption, joining the company of states such as Yemen, Iraq, China, and Lybia.

According to Article 126 of the statute, the statute would enter into force 60 days after the 60th state ratified the treaty and deposited their ratification with the Secretary General of the UN. On April 11th 2002 ten countries ratified at the same time, and the treaty went into effect three months later. Article 11 of the Rome Statute provided that the court only had jurisdiction over crimes committed after the statute entered into force.

Today 109 countries have ratified the treaty. At one point the Clinton Administration signed the treaty, a move which indicates a state’s intent to pursue ratification in good faith. The Bush Administration, represented by UN Ambassador John Bolton reneged on the signing and effectively “unsigned” the treaty, removing any U.S. obligation to pursue ratification. Congress has been fairly hostile to the ICC. The American Service-Members Protection Act, authored by U.S. Senator Jesse Helms passed in August 2002 only a few days after the Rome Statute went into effect. This legislation serves to “protect” American military from prosecution by the ICC. It also authorizes the President to use “all means necessary” to recover any military serviceman detained by the court. Perhaps most surprisingly, it also prohibits any U.S. Foreign Aid to countries that are parties to the Rome Statute, with a lengthy list of exceptions.

Why all the worry about the existence of an International Criminal Court? The court has jurisdiction over four areas of international Criminal Law, War Crimes, Genocide, Crimes Against Humanity, and Aggression. The definitions of all four areas are still developing and the definition of Aggression is still so poorly developed that it has never been prosecuted by the court. The reach of its jurisdiction goes to individuals who are citizens of a state that has ratified the treaty, individuals who commit their alleged crime on the territory of a state party, and when a case is referred to the ICC by a demand of the UN Security Council. So, theoretically, if a U.S. Citizen, such as a member of the U.S. Military were accused of having committed a war crime in the territory of a member state, say Brazil, or Germany, they could be prosecuted by the ICC. During the debate in which the jurisdiction of the court was being defined, the United States ardently opposed Universal Jurisdiction, and they got their way.

My take:

Barack Obama might just take us full circle on the U.S. stance toward the ICC. He has indicated in the past that he is open to joining the ICC, but the chances are that the Senate still would not ratify. I have no delusion that the U.S. will really significantly change its position, especially anytime soon. But I take issue with the rationale, even if it is entrenched.

First: The ICC handles the biggest of crimes. We’re talking massacres of the largest scale. War Crimes, Genocide, and Crimes Against Humanity. What are we afraid of? Shouldn’t we be held accountable if anyone DID commit those crimes? Shouldn’t we have an interest in others being held accountable for the same crimes? Does American exceptionalism extend to such major crimes? Are our heads that big? If the concern is more about whether the U.S. would be a target of prosecution, then the worriers certainly have some merit to their argument. Many claims have been made against the U.S. invasion of Iraq, and the ICC Prosecutor has said that one of the main reasons he hasn’t brought acted on those claims is that he believes the jurisdictional issue is too messy as neither Iraq nor the U.S. are parties to the treaty. We could very well be prosecuted if we later became a member state. But what would the result of the prosecution be? Wouldn’t it be a great place to finally make our case that the invasion was legal, and therefore rebuild some legitimacy for our actions? With the possible exception of the home invasions and killings in Haditha, there aren’t many sound claims that the U.S. has committed war crimes. And the U.S. already admits its failure in Haditha.

Second: We need a comprehensive body of law for these new crimes. The ICC provides a mechanism for creating and developing our definitions of the crimes that spawned from Nuremburg. The U.S. has sat idly by and watched as genocide took place in Darfur and Rwanda. The UN peacekeeping missions in the Bosnian Conflict were not a great success. The U.S. mission on Somalia was a disaster. The U.S. invasion of Iraq was a dismal failure. We have entered an age where nobody, not even the United States, can effectively play the world’s policeman. A court, however, might play a better and more legitimate role. Imagine how much more effective it would have been to simply try and convict Saddam Hussein for Crimes Against Humanity than it would have been to invade Iraq and quell an insurgency. We set up criminal tribunals for Yugoslavia, and for Rwanda, and they have worked. The whole idea of the ICC was so that we could avoid setting up ad-hoc tribunals all over the place and just have one place where they could all be tried. It’s elegantly simple, its cleaner and easier than war, and it appeals to our highest ideals as a civilized society.

Third: The U.S. can no longer assert its will around the world through the threat of force, and thus our influence is declining. We need to shift out of the “carrot and stick” foreign policy mentality, into something more akin to what Secretary of State Hillary Clinton calls “smart power.” If we play nice, and subject ourselves to the same rules, treaties, and obligations as the rest of the modern international community there will be less of a stigma attached to our international dealings. The vote on the Rome Statute was 120 to 7, and we were one of the seven. We also failed to join the Convention on the Rights of the Child. Guess who the only other state who failed to join was: Somalia. I for one am sick and tired of being in the company of states like Somalia.