In April 2002 at the United Nations, ten countries simultaneously submitted their ratifications to the “Rome Statute” of the International Criminal Court (ICC). That brought the total number of ratifications above the magic number of sixty, which brought the court—designed to prosecute the perpetrators of crimes against humanity, genocide, war crimes, and crimes of aggression—into being.
Many nations have not yet ratified the Rome Statute (so called because, unlike normal treaties, it purports to be binding on non-signatory nations). The most notorious and outspoken holdout, however, has been the United States. The Bush Administration has taken most of the heat for this position, but when former President Clinton signed the Statute on December 31, 2000, less than a month before the end of his administration and after it was known that he would be succeeded by Bush, he expressed concerns about its “significant flaws,” adding: “I will not, and do not, recommend that my successor submit the treaty to the Senate for advice and consent until fundamental concerns are satisfied.”
The principal objection to the ICC is that it might well subject American soldiers (including peace-keeping forces) to criminal prosecution for minor infractions while on patrol in foreign nations. To a lesser extent, commentators and politicians have expressed concern about American leaders being subjected to prosecution after they leave office. Henry Kissinger is often noted as a potential subject of such a prosecution, but this could apply to any former President or other military advisor.
While such arguments should be taken seriously, they skirt over more fundamental concerns regarding the ICC, such as the source of its authority and the limits of the justice that it may administer. Thinking through these concerns leads one to the conclusion that the ICC may actually do more harm than good.
The theory behind the ICC is that it will deter future tyrants by holding out the threat of criminal prosecution. In the normal course of events, by punishing the guilty and not punishing the innocent, a system of criminal law affirms shared values and supports social cohesion. It might even be said that in most cases society owes an obligation to the citizens to punish those who have committed bad acts.
There are cases, however, in which punishment of even a clearly guilty person may not promote social cohesion. At these times, prosecutorial discretion, executive clemency, amnesty, and even jury nullification can do more to serve the common good than would punishment of the guilty.
At the end of the American Civil War, for example, President Lincoln forgave many crimes that might legitimately have been prosecuted. He did this in order to preserve social cohesion. In a different example, Sammie “the Bull” Gravano was freed (briefly as it turns out) after a light sentence even though he had admitted to participating in numerous murders. Convicting (the late) John Gotti was deemed so important that the government made a deal with a multiple murderer. In cases like this, law-abiding members of society are willing to trade the benefit that they might experience from punishment in exchange for a larger benefit to the common good.
Will the ICC make such judgments wisely? We have reason to doubt it. For one thing, the ICC has introduced a new principle in international law: “complementarity.” That is, the ICC’s jurisdiction will be “complementary” to national jurisdictions, meaning that the new court will prosecute wrongdoers where the appropriate national jurisdiction is either unwilling or unable to prosecute. Importantly, the ICC will not recognize amnesties granted by national jurisdictions, since that could mean that a wrongdoer would escape justice. The ICC is designed to make certain that all tyrants who commit crimes that fall under its jurisdiction are prosecuted.
There may, of course, be difficulty in determining whether a state actually is “unwilling or unable” to prosecute a tyrant. Suppose that the affected nation makes a political compromise to remove the tyrant from office or for some other purpose that serves the nation’s common good. Is that nation “unwilling or unable” to prosecute? The judges of the ICC will be empowered to answer that question for themselves.
Consider the example of Chile under Augusto Pinochet. The Pinochet regime regularly violated human rights as a means of consolidating power and imposing its will on the nation. When a free vote revealed the high level of hostility toward that regime, Pinochet agreed to leave office, but only after securing a lifetime appointment to the nation’s senate and the promise of amnesty from prosecution. In light of this amnesty, could it be said that Chile was unwilling or unable to prosecute Pinochet? If the ICC had been in existence, its judges might well have so determined. Of course, if Pinochet had been facing a potential prosecution in the ICC, he might never have left office.
As with the situation in Chile, South Africa’s transition from apartheid to democracy was accomplished through negotiation. The Truth and Reconciliation Commission process must receive credit for South Africa’s bloodless transition, even though it permitted notorious wrongdoers to escape criminal punishment. Archbishop Desmond Tutu has often spoken of the need to forgo retributive justice in order to balance truth, justice, and reconciliation. Sometimes those values compete with one another.
These examples and many others lead to the inescapable conclusion that, while there is obviously a place for criminal prosecutions in meting out justice to tyrants who violate international criminal law, this is only one tool among several in the search for justice. The problem with the ICC is that it favors criminal prosecution in every situation. At Nuremberg, this model made sense. When the bad guys have been defeated by an outside force, there is no threat of civil war, and the defendants have already been captured, trials make sense. In some cases, however, they may only prolong the suffering.
Students of social science explain that deterrence depends on certainty and severity of punishment. Certainty of punishment from a practical standpoint is not always attainable, particularly when the wrongdoer is a national leader supported by military power. Moreover, by offering a form of due process and legal counsel to the defendant, the ICC may well decrease even the likelihood of punishment. In addition, since judges of the ICC do not have authority to impose the death penalty, tyrants need not fear the fate that befell Mussolini and others. As such, the ICC may actually decrease both the certainty and the severity of punishment.
Then there’s the problem that the ICC is an independent entity with no legislative or executive branch to check its power. What is to stop ICC judges from inventing new crimes, new rights, or otherwise trampling on national sovereignty? There have already been calls to expand the ICC’s jurisdiction. Following the attack of September 11, 2001, representatives from the nation of Turkey proposed adding the crime of terrorism to the ICC’s jurisdiction. (One of the great ironies of the ICC is that a terrorist attack like the one that took place on September 11 would not be actionable, but an overly broad retaliation by the U.S. could be.) There have also been proposals to add international drug transactions to the list of ICC crimes.
With eighteen judges (balanced in terms of gender, geography, and legal systems) and a potentially slow docket (there have been less than a handful of tribunals to handle cases like this in the past sixty years), there is every reason to think that ICC judges will start looking for something to do. Suppose they conclude that the death penalty constitutes a violation of human rights? Or that a society must offer socialized medicine? Or women the right to an abortion? There is, as yet, no institutional mechanism to put checks on such potential judicial activism.
If the U.S. were to ratify the Rome Statute, it would be necessary to amend many state and federal statutes, and probably the federal Constitution and many state constitutions as well. The Lawyers Committee for Human Rights has already predicted that rules established by the ICC “will have a significant impact on domestic criminal procedure . . . because it will be legally and politically difficult to justify a two-tiered system of rights, one for ICC and another for purely domestic purposes.” In other words, we will have to reduce our domestic rights until we meet the much lower international standard.
The ad hoc tribunal system that has been used in recent years in such cases as Rwanda and the former Yugoslavia is not ideal, but it does have the advantage of being flexible enough to adjust to specific local concerns. Over time, the cost of these tribunals can be reduced and procedural concerns minimized. Most importantly, this system does not foreclose negotiated settlements in those situations where they may be helpful.
Considering the lack of flexibility in the ICC structure, the lack of effective political checks and balances, the difficulty that the court could pose to negotiating resolutions of conflicts, the impact that it may have on national sovereignty, and the inability of the court to serve as an effective deterrent to future crime, the U.S. should not ratify the ICC.
Ronald J. Rychlak is MDLA Professor of Law and Associate Dean for Academic Affairs and John M. Czarnetzky is Associate Professor and Mitchell McNutt Lecturer in Law at the University of Mississippi School of Law. They are both advisors to the Holy See’s mission to the United Nations and members of the Holy See’s delegation to the International Criminal Court. The opinions expressed herein, however, are solely their own.
Optat ephippia bos, piger optat arare caballus.