13 September 2002
"The U.S. and the Int'l Criminal Court" by Ass't Sec. of State Otto Reich
(Otto Reich says Bush Administration believes ICC is "seriously
flawed") (770)
(The following byliner, by Assistant Secretary of State for Western
Hemisphere Affairs Otto J. Reich, is in the public domain. No
republication restrictions.)
(begin byliner)
"The U.S. and the ICC"
By Otto J. Reich
The United States takes pride in its democratic values and its
republican government based on the rule of law. Since World War II,
the United States has championed international law and order among
sovereign nations as a founder of the United Nations and by
establishing with our allies the first international courts to judge
cases of crimes against humanity. As a nation, we are deeply committed
to justice. We believe in accountability for war crimes and genocide.
We vigorously pursue justice between men and states, and many times in
recent memory, we have sacrificed American blood and treasure for it.
Our military's discipline is world-renowned, and lapses of discipline
in it meet with sure and swift punishment. Recently, however, the
United States has been criticized by some in the international media
for refusing to allow American citizens to be subject to the new
International Criminal Court (ICC). Our objection to the ICC is simply
that, despite the best of intentions, we believe it is seriously
flawed and may become an impediment to justice or even an instrument
of injustice.
Significant Concerns
First, the Rome Statute chartering the new court contradicts the basic
principles of national sovereignty in asserting jurisdiction over the
nationals of states not party to the agreement. We strongly object to
the ICC's claims of jurisdiction over offenses committed by nationals
of non-party states, including government officials and members of the
armed forces. We are also concerned that the ICC would usurp the
authority of sovereign states insofar as it pretends to be the final
arbiter of whether any state's investigations or trials were
"genuine."
Second, the Rome statute does not provide appropriate oversight of the
court and the ICC prosecutor. Neither the court nor the prosecutor is
adequately accountable to the U.N. Security Council or any
democratically elected body. Moreover, the Rome statute lacks
fundamental checks and balances. The treaty created a prosecutor who
may make any accusation but is answerable to no state or institution
other than the Court itself. This lack of accountability leaves open
the possibility, even likelihood, of baseless, politically motivated
investigations and prosecutions.
Third, the Rome Statute's provisions that empower the ICC to
investigate and prosecute the as-yet-to-be-defined "crime of
aggression" threaten to undermine the unique role and responsibilities
of the U.N. Security Council. In doing so, it brings the ICC into
potential conflict with the U.N. Charter. We believe that the U.N.
Security Council ought to remain the institution that decides these
important questions.
The U.S. View
We believe international efforts should promote national
accountability and encourage states to pursue credible justice within
their own institutions. But when domestic justice is not possible for
war crimes due to a failed state or a seriously dysfunctional judicial
system, then the international community must be prepared to step in.
In those cases, we support the establishment of creative ad-hoc means
such as the International Criminal Tribunals for the former Yugoslavia
and Rwanda and alternative justice mechanisms such as Truth and
Reconciliation Commissions.
We respect the right of other nations to become parties to the treaty,
but ask that other countries respect our right not to do so. The
United States has many global security responsibilities. The ICC might
constrain the will and the ability of the United States and other
nations to use military forces to meet those obligations. That would
be unfortunate for all of us.
To address our concerns, we are seeking bilateral agreements, provided
for under the very same the Rome Statute, with as many countries as
possible. These agreements will allow the United States and its
friends and allies to continue to work together for national and
global security and to champion cause of justice between nations and
men.
Our Common Aim
The United States will continue to be a forceful advocate for the
principle that there must be accountability for war crimes, genocide
and crimes against humanity. Our policy on the ICC is consistent with
other long-standing policies on human rights, the rule of law and the
validity of democratic institutions. It also prudently safeguards our
ability to translate the good intentions of those policies into good
deeds. While we may have honest disagreements with other nations on
the means, building sovereign institutions to strengthen the rule of
law is our common aim.
(Otto J. Reich is assistant secretary of state for Western Hemisphere
affairs.)
(end byliner)
(Distributed by the Office of International Information Programs, U.S.
Department of State. Web site: http://usinfo.state.gov)
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