International Relations Copyright © 2003 SAGE Publications (.docx

International Relations Copyright © 2003 SAGE Publications
(London, Thousand Oaks, CA and New Delhi), Vol 17(2): 195–
212
[0047–1178 (200306) 17:2; 195–212; 033133]
Between Cosmopolitan and American Democracy:
Understanding US Opposition to the International
Criminal Court
By Jason Ralph, University of Leeds, UK
Abstract
The International Criminal Court can be seen as a cosmopolitan
response to the problems
of global democracy. This article demonstrates how opponents
of the Court use a concern
for international order to disguise a policy motivated by a
narrow conception of the
national interest. US opposition reveals the extent to which it
fears being held
accountable for the way America uses the great power veto on
the UN Security Council.
America’s opposition to the Court has also succeeded in
bringing to the surface the extent
to which American foreign policy is driven by communitarian
conceptions of democracy
and international society. Despite promising to hold power
accountable for egregious
human rights violations, the Court is considered a threat to
American sovereignty and

dismissed as undemocratic. The article argues that this
communitarian understanding of
democracy promotion will be increasingly problematic as the
processes of globalization
undermine the capacity of states to guarantee human rights.
Keywords: America, cosmopolitan, democracy, International
Criminal Court,
international society
Introduction
America’s opposition to the International Criminal Court (ICC)
can be interpreted
as a further example of the Bush administration’s unilateralist
foreign policy.1 The
1998 Treaty of Rome, which established the Court, was the
product of multilateral
negotiations that involved 140 states. The administration’s
decision to ‘unsign’
that Treaty in May 2002 clearly demonstrated that it would not
be bound by the
results of those negotiations. It would be a mistake, however, to
suggest that
America’s continuing opposition to the Court is limited to those
unilateralists who
wish to maximize America’s room for manoeuvre by avoiding
unnecessary
commitments. Opposition to the Court is expressed in many
places beyond the
White House. Congress, for instance, has passed anti-ICC
legislation in the form
of the American Servicemembers Protection Act (ASPA), and
those unwilling to
vote for such legislation have only expressed qualified support
for the Court. Even

the Clinton administration, which supported the Court in
principle, initially
refused to sign the Rome Treaty. It waited until the last possible
moment to do so
and even then recommended that the incoming administration
seek amendments
before sending it to the Senate for ratification. Opposition to
the Court stretches
beyond the political elite with newspaper editorials consistently
reflecting support
ri
www.sagepblications.com
for Bush’s stance, and while American activists work hard to
change policy it is
clear that they are up against a strong tide of opinion that is
generally suspicious
of the ICC.
It is argued in this article that the ICC should not be seen as a
multilateral
institution that aims to manage American hegemony by limiting
‘the returns to
power’.2 This is certainly a consequence of the Court but it is
by no means its
main purpose. Rather the ICC should be seen as part of an
institutional solution to
the problems of democracy in global politics and in this regard
US opposition to it
reveals something much more fundamental about America’s
relationship with the
world. As institutions that promise to hold unchecked power
accountable for

human rights violations, one would expect the United States and
the ICC to be
mutually reinforcing. America’s founding documents declare
individual rights to
be universal and its founding fathers clearly understood the
need for political
institutions to reform as circumstances change. Yet the ICC has
succeeded in
bringing to the surface the extent to which American foreign
policy is dependent
on communitarian conceptions of justice and international
society, and this has
major implications for those eager to promote cosmopolitan
forms of democracy.3
Despite its cosmopolitan rhetoric, the fundamental purpose of
the American
Revolution was to establish an American state and this has
conditioned an
understanding of international society and democracy itself. In
fact, democracy in
America was not only the means through which a government of
the people, for
the people and by the people was created; it actually defined
who ‘the people’
were. In other words, it played a key cultural role in
constituting the American
nation and fulfilling the need to separate that community from
the rest of the
world. In this respect, the ICC may promise to hold power to
account and is
welcomed by some democrats for that reason. Yet it also
promises to hold citizens
of one state accountable to foreign judges and is therefore
considered a threat to
America and its democracy. The strength of opposition to the

ICC suggests that it
is the cultural value of democracy, rather than the idea itself,
which drives
American foreign policy.
It is instructive in this regard to note that all of America’s
significant foreign
policy traditions (including the Wilsonian tradition) have
assumed that world
society is naturally divided into nation-states. Successive
American admin-
istrations have, at least rhetorically, supported democracy
promotion.4 Yet
America’s reaction to the ICC has clearly demonstrated that
such support is
limited to the promotion of democratic states. It has also
demonstrated how
America is dependent on an understanding of ‘international
society’ that is limited
to ‘a society of states’.5 This is not only because the USA is
able, through
institutions like the UN Security Council, to more easily wield
its power in such a
society. It is also a reflection of the fact that its identity as an
independent
sovereign state, which shoulders exceptional international
responsibilities and
provides a unique example of good democratic governance, is
also dependent on
this understanding of international society. Such a worldview,
however, will
become increasingly problematic as the processes of
globalization further
196 INTERNATIONAL RELATIONS 17(2)

undermine the capacity of states to respond to the needs of their
citizens and the
USA continues to oppose efforts to democratize global society.
Cosmopolitan democracy and the ICC
By prosecuting so called ‘core crimes’ – genocide, crimes
against humanity and
war crimes6 – the ICC promises to shape a new normative
foundation for the
society of states. As of 1 July 2002 when the Court assumed
non-retrospective
jurisdiction, any individual planning such a crime could not
necessarily rely on the
failure of states to protect them from justice. Nor could they
necessarily rely on
the UN Security Council to protect them. The ICC is permanent
and independent.
Justice will not have to wait, as it had done so in the past, for
the Security Council
to set up an ad hoc international tribunal. Indeed, the fact that
the Independent
Prosecutor can launch his or her own investigation and
prosecute an individual
based on information provided by non-governmental
organizations (NGOs),7
means justice can pursue a path separate from that determined
by the ‘society of
states’. Through the Independent Prosecutor the Rome Statute
has empowered
what Bull called ‘world society’ or the ‘society of humankind’.8
This does not mean that the ICC replaces state sovereignty and

the Security
Council as the focus of international governance, although it
does require certain
concessions from these institutions. The ICC does – to use
Held’s description of
cosmopolitan democracy – provide groups and individuals with
effective means of
suing political authorities for the enactment and enforcement of
key rights and
obligations, which those individuals would not otherwise have.9
It will, however,
only assume jurisdiction where states are ‘unwilling or unable
genuinely to carry
out the investigation or prosecution’ into an alleged core
crime.10 Known as the
principle of complimentarity, this ensures that the ICC will, in
effect, be an
extension of national courts and not their replacement. The
Court will always
defer to states that are able and willing to conduct their own
investigation. Yet if
there was an unjustified delay in national proceedings or if
those proceedings were
not conducted independently or impartially, or deemed to have
been ‘for the
purpose of shielding the person concerned from criminal
responsibility’, the Court
would resume jurisdiction over a case.11
In order to gain sufficient political support the Court had to be
seen to be
impartial. The Court’s basic principles, therefore, had to be
applied equally to all
states. Even though the successful functioning of the national
laws of most
democracies would be enough to satisfy the Court, leading it to

drop its interest in
a particular case, democratic states could not be exempt from
the Court’s
oversight. In order to create a Court that sought to hold ‘core
criminals’12 to
account where states were unwilling or unable to do so, most
democratic states
were willing to tolerate this additional oversight. Most had
confidence that the
Court would be satisfied with their national procedures. They
argued that the
compromise was a small price to pay for a Court that would
democratize global
BETWEEN COSMOPOLITAN AND AMERICAN
DEMOCRACY 197
politics by holding to account those who committed the most
serious abuses of
human rights.
Thus by the beginning of December 2002, 139 states had
accepted this
compromise by signing the Rome Treaty and 76 of those states
had ratified it. One
state, the United States, had signed on 31 December 2000 (the
last day that the
Treaty remained open for signature), declared that it had no
intention of seeking
ratification and then, after a change of administration,
‘unsigned’ the Treaty on 6
May 2002. On that day Undersecretary of State for Arms
Control and Inter-
national Security, John Bolton, put into effect a policy he had

advocated nearly 18
months previously.13 Authorized by Secretary of State Colin
Powell, he delivered
a letter to the UN Secretary-General which stated that the USA
did not intend to
become a party to the Rome Treaty and that it had no legal
obligations arising
from President Clinton’s signature of that treaty.14
As noted below, opponents of the Court claimed the Rome
Statute violated
Article 34 of the Vienna Convention on the Law of Treaties,
which stated that a
Treaty would not be legally binding on non-party states.15 In
his public statements
Bolton had argued that unsigning the Treaty was necessary
because Article 18 of
that Treaty obligated signatories, before ratification, not to
pursue a course of
action that would work against the purpose of the Treaty. The
administration, it
seemed, was clearing the way for a policy that embraced the
anti-ICC legislation
sponsored by Senator Helms and Rep. DeLay which prohibited
any co-operation
with the Court unless the President determined it to be in
America’s national
interest. What is more, by relying on the Vienna Convention it
was arguing that its
actions were justified in terms of the law that governed the
society of sovereign
states. The administration’s allies on Capitol Hill also adopted
this approach. They
argued that President Clinton’s statement not to recommend
ratification was itself
a violation of international law. ‘Champions of international

law’, noted the
Chairman of the International Relations Committee, Henry
Hyde, ‘should focus
their fire on the Clinton Administration for the dubious way in
which they signed
the Treaty’. He argued that international law provides that
‘signature [of a treaty]
. . . is deemed to represent political approval and at least a
moral obligation to seek
ratification’. In contrast to the furore surrounding ‘unsigning’,
he argued that
President Clinton’s decision to sign and not seek ratification
was unprecedented
and ill-considered.16
On the same day as Bolton’s letter was sent to the UN,
Undersecretary of State
for Political Affairs, Marc Grossman, publicly stressed
America’s commitment to
the rule of law. He also restated America’s commitment to
ending the culture of
impunity for human rights abuses.17 Yet he argued that it was
inappropriate to try
to prevent these serious offences and promote justice through
new international
institutions. He gave four reasons why the ICC did not advance
these principles:
1. The Rome Statute creates a prosecutorial system that is an
unchecked power.
2. The ICC asserts jurisdiction over citizens of states that have
not ratified the
Treaty. This threatens US sovereignty.

3. The ICC is . . . open for exploitation and politically
motivated prosecutions.
4. The ICC undermines the role of the United Nations Security
Council in
maintaining international peace and security.
The following sections offer an assessment of these complaints
alongside the
safeguards built into the Rome Statute. While the points made
by the
administration are not incorrect, it is argued that they
underestimate the strength of
these safeguards and exaggerate the threat posed to American
democracy. Other
democratic states are reassured by the safeguards in the Rome
Statute and are able
to live with the remote possibility that a panel of international
judges might
overrule national judges on a case involving core crimes. Yet
the political
significance of that remote possibility is magnified by a
political culture that relies
on democratic theory to define a nation. It is perplexing to
many observers why
the USA should so strongly oppose the ICC when the Court
merely reflects the
universal values on which America was supposedly founded.
Understanding the
exceptional role that democracy plays in defining a particular
identity, however,
makes it easier to comprehend the nature of American
opposition.

Unchecked power and the Bill of Rights
The argument that the ICC is ‘an unchecked power’ and does
not afford
individuals the same rights that American citizens expect from
the Bill of Rights,
is central to the concerns of those democrats who argue they
have no option but to
oppose the Court. Grossman elaborated on the first of his points
by citing the
Founding Father John Adams who warned that ‘power must
never be trusted
without a check’. This argument underestimates the safeguards
in the Rome
Treaty that do check the power of the Prosecutor. For instance,
as a complaint is
lodged with the Court, the Prosecutor must first satisfy him or
herself that a prima
facie case against an individual exists and that the alleged crime
fitted the
definition of a core crime. The diplomatic follow-up to the
Rome Conference (the
PrepCom) defined these crimes in unprecedented detail. The so-
called ‘Elements
of Crimes’ defines clearly the kind of actions the Court has
jurisdiction over. It
will not, as some irresponsible commentators claim, allow the
Prosecutor to indict
a Texas governor for the use of the death penalty.18 Moreover,
before proceeding
with an investigation the Prosecutor would have to submit
details of the complaint
to a pre-trial chamber.19 This chamber is made up of not less
than six judges20 and
makes sure that any decision to proceed is taken in a collective

manner, ‘thus
preventing possible abuse of power but also shielding the
Prosecutor from
external influence’.21 As noted below, the principle of
complimentarity means that
a state can avoid investigation by the Prosecutor by announcing
within one month
of being told of the case that it is conducting its own
investigation.22 Furthermore
it can appeal against the pre-trial ruling at the Appeals
Chamber.23
In addition to these safeguards, all Court officials are ultimately
accountable to
DEMOCRACY 199
the Assembly of State Parties.24 This does not reassure
American democrats. For
instance, as Lee Casey notes, the Rome Statute is open to all
states, regardless of
their form of government. ‘Given these facts’, he concludes,
‘the claims made by
the Court’s supporters that it will embody “American values”,
or that democratic
accountability will be preserved through U.S. representation in
the Assembly of
States, are nothing short of fantastic’.25 To illustrate this, the
Court’s political
opponents seized upon the May 2001 vote that removed the
USA from the UN
Commission on Human Rights.26 For instance, when he
introduced ASPA to the

House of Representatives later that month, Rep. DeLay used the
vote to illustrate
how ‘fickle’ international institutions were. His colleague Rep.
Hyde also argued
that the vote illustrated the dangers of a criminal justice system
that could be
influenced by the likes of China.27 Senator Helms, also used
the example of the
United Nation’s conference on racism in Durban to argue that
the ICC would ‘not
merely prosecute, but persecute our soldiers and sailors for
alleged war crimes as
they risk their lives fighting the scourge of terrorism’.28
This ‘persecution’ would be made easier, opponents claim,
because the Court
does not afford suspects the same protections as the American
Bill of Rights. As
Mark Leonard notes, however, these arguments are somewhat of
a ‘red herring’.29
The Bill of Rights does not travel with Americans when they go
abroad and so
there is nothing new about Americans being subject to laws that
had not been
approved by the American people. In the specific case of
American service-
members, moreover, the right to a trial by jury does not apply.
As Ruth
Wedgewood notes, ‘When activities have occurred abroad and
would otherwise
fall within foreign national jurisdiction or when the actors are
military, the basis
for comparison is not the ordinary trial procedure of a common
law court’.30

Proponents of the Court, however, are on stronger ground when
they identify
the rights that the Statute does provide, not least because the
American delegation
was instrumental in demanding standards of due process.31
Indeed, the process is
considered so thorough that some have argued that it would be
in America’s
interests to see its citizens tried there rather than in a foreign
state. For instance,
Rep. Delahunt noted that the Statute ‘contains perhaps the most
extensive list of
due process rights ever codified’. On that basis he argued that
‘our soldiers are at
risk today without this treaty. Today they can be prosecuted by
any nation within
its borders. The treaty corrects this by giving primary
jurisdiction over American
soldiers to American courts’. Delahunt concluded that ‘We have
nothing to fear
from this treaty and everything to gain’.32
Jurisdiction
Grossman argued that ‘The ICC asserts jurisdiction over
citizens of states that
have not ratified the treaty’. Although, for reasons described
below, this is not
inaccurate, his follow-up statement that ‘this threatens US
sovereignty’, could be
considered a misrepresentation. Fundamental to the Rome
Statute is the principle

of complimentarity. With the passage of the 1996 War Crimes
Act and the 1997
Genocide Convention Implementation Act by the US Congress,
the principle
of complimentarity makes it highly unlikely that an American
charged with any of
the core crimes would appear before the Court.33 The proper
prosecution
of American law in other words would be enough to persuade
the Court to drop its
interest in a particular case. Yet the fact that Court officials,
who are not directly
accountable to the American people, are allowed to interpret
American law and
conceivably overrule the judgement of those officials that are
accountable to the
American people is too much for ‘sovereigntists’ to tolerate.34
The theoretical
possibility that the Court could continue to pursue a case after
dismissing the
American investigation into that same case as implausible, is
enough for them to
reject the Court out of hand. As Lee Casey argues, the ICC’s
power to investigate
and prosecute government officials:
transfers the ultimate authority to judge the policies adopted
and implemented
by the elected officials of the United States . . . away from the
American people
and to the ICC’s prosecutor and judicial bench. This would
violate the first
principle of democracy – that the American people have an
inherent right to
choose, directly and indirectly, the men and women who will

exercise power
over them, and to hold those individuals accountable for the
exercise of power.35
US opponents of the Court, therefore, are not only motivated by
the fact that the
Assembly of States contains non-democratic states that may be
able to influence
the Independent Prosecutor. Should the Assembly of States be
dominated by
democracies, American sovereigntists would still complain that
the ICC threatens
American democracy by placing it within the jurisdiction of
officials that are not
accountable to the American ‘people’.
Realizing that this kind of argument would heavily influence
America’s
relationship with the Court and probably rule out any hope of
ratification, the
USA has sought to exempt non-signatories from the Court’s
jurisdiction. In this
regard the US delegation at the 1998 Rome Conference found
itself in a para-
doxical position. It needed protections for non-party states in
order to persuade
Congress that the USA should become party to the Treaty by
ratifying it. They
argued for a Statute that would limit the Court’s jurisdiction to
nationals of state
parties. If the USA did not ratify the treaty, in other words, then
its citizens could
not be investigated or prosecuted by the ICC. Yet this proposal
put the USA in the
strange position of defending the tyrants who were the probable
targets of the

Court. As the Korean delegate at Rome put it, ‘what applies to
America also
applies to [Saddam] Hussein; and simply by not signing, he
could buy himself a
pass’. He went on:
In order to protect against the less-than-one-percent chance of
American
peacekeepers becoming exposed, the U.S. would cut off Court
access to well
over ninety percent of the cases it would otherwise need to be
pursuing.
Because what tyrant in his right mind would sign such a
treaty?36
DEMOCRACY 201
The Korean delegation had tabled the broadest proposal
regarding jurisdiction. In
order for the Prosecutor to claim jurisdiction over any given
case, at least one of
the following four states would have to be party to the Treaty or
accept its
jurisdiction on an ad hoc basis: the state where the crime took
place; the state of
nationality of the accused; the state that had custody of the
accused; the state of
nationality of the victim. As a compromise it was agreed that
the Prosecutor’s
jurisdiction extended only to those cases where the state of the
territory on which
the alleged crime took place or the state of the nationality of the
accused were

parties to the Treaty.37 In this situation, even if the USA was
not a party to the
Treaty, the ICC could pursue American soldiers if they were
alleged to have
committed a core crime on the territory of a state party, and the
USA itself had
failed to genuinely pursue its own investigation or prosecution.
Bilateral agree-
ments between a state hosting American servicemembers and
the USA could
clarify the status of forces to further minimize the likelihood of
an American being
unduly surrendered to the Court.38 Yet the theoretical
possibility of this happening
was enough for the Clinton administration to describe the Rome
Statute as
significantly flawed and the Bush administration to unsign the
Treaty.
Opponents of the Court argued that by not signing the Rome
Treaty the USA
should be free of ICC oversight and its citizens free from the
Court’s jurisdiction.
They argued that the jurisdiction claimed by the ICC violated
Article 34 of the
Vienna Convention on the Law of Treaties, which states that
treaties cannot bind
non-party members. It is interesting to note, however, that the
United States has
claimed jurisdiction over the nationals of states not party to a
specific treaty when
it has suited its particular interests. For instance, Professor
Scharf notes that in
1998 the USA signed the International Convention for the
Suppression of
Terrorist Bombings without seeking to limit its application to

offences committed
by nationals of parties to the Convention. It is now unthinkable,
particularly as it
conducts a global war on terrorism, that the USA would stop
criminal proceedings
against a terrorist from a state that was not party to this
convention. Yet that is
exactly what its position on the ICC, by demanding that
nationals of those states
not party to a particular treaty be exempt from universal
jurisdiction, is arguing
should be the basis of international law.39
In response to this kind of argument David Scheffer, who
headed the American
delegation at the Rome Conferences notes that the USA had
always argued that
universal jurisdiction exercised by states, was not equivalent to
universal
jurisdiction exercised by an international court.40 Indeed
Grossman repeated this
line when he stated that ‘sovereign nations have the authority to
try non-citizens
who have committed crimes against their citizens or in their
territory’. The USA,
he argued, had never recognized the right of an international
organization to try
and convict individuals in the absence of state consent or a UN
Security Council
mandate.41
Ultimately, Grossman argued, the rule of law could only have
‘true meaning’
when national societies can ‘accept their responsibilities and be
able to direct their
future and come to terms with their past. An unchecked

international body should
not be able to interfere in this delicate process’. Where states
failed, America and
the society of states would work harder to make them succeed.
Thus, in ‘situations
where violations are grave and the political will of the
sovereign state is weak’ the
USA would work ‘to strengthen that will’.42 The idea that the
Bush administration
was now committing itself to ‘nation-building’ and
democratization reflected a
major turnaround in its worldview. While concessions to that
agenda had been
made during the military campaign in Afghanistan, the previous
opposition to
Somalia-type operations clearly casts doubt on America’s
commitment to assisting
weak states that are unable to try core criminals. It is more
likely that the
Wilsonian agenda is merely a rhetorical device to stave off
criticism that America
is not being true to its own democratic identity by opposing the
ICC.
Understanding American opposition to the ICC: the cultural role
of American
democracy
For many Americans nothing has done more to constitute a
sense of national
identity and separate the United States from the rest of the

world than a particular
understanding of ‘democracy’. In a country lacking the cohesion
provided by
ethnic, religious or even linguistic bonds, democracy provided
the ‘nation’ with a
civic identity around which it could unite. When considering
‘American
democracy’ from this perspective, the adjective is prioritized
over the noun.
America was not considered a realization of the enlightenment
and the promise of
liberal democracy, rather the enlightenment and liberal
democracy was what
enabled America to realize itself. Democracy defined the
national community and
it was the elected government’s task to use its power to defend
that community
from the corrupting influences of outsiders. Democracy not only
had an
instrumental role in ensuring accountability, therefore; it also
acted as a cultural
symbol, a rallying cry for national consensus and patriotic
zeal.43 While the
former could, at least theoretically, be applied universally, the
latter was unique to
America.
The cultural role that ‘democracy’ plays in defining the
American nation has
conditioned the way the USA responds to advocates of
cosmopolitan democracy
and institutions like the ICC. Where other democracies
recognize that the
compromise in the Rome Treaty is worthwhile because it does
not threaten their
own self-image and by contributing to the possible

democratization of global
politics actually reinforces it, the USA makes a different
calculation. The ICC
may promise to punish otherwise unaccountable elites for the
most egregious
abuses of inalienable rights, but the USA cannot support it,
because to do so
would be an attack on the very idea of ‘America’. Where other
states see
themselves as part of a global community and are willing to
compromise their
sovereignty and identity in order to promote justice and
accountability in that
wider community, the United States cannot make a similar
commitment. As Foley
puts it, America’s relationship with the world has always ‘been
coloured by its
DEMOCRACY 203
conviction that whilst it is self-evidently in the world, it
remains convinced that it
is not of the world’.44 To compromise its own democracy, even
for the sake of
those in failed states and dictatorships who wish to see core
criminals held
accountable for their actions, would be to threaten its own
separate identity. Such
a cultural trait often requires the construction of an ‘other’ for
America to secure
its own sense of community.45 It is clear from the arguments
advanced in
opposition to the ICC that proponents of global democracy,

despite their
commitment to universal human rights, are being cast as
America’s ‘other’.
Indeed they are portrayed by some as being impulsively
‘dictatorial’.46
There is nothing new in arguing that US foreign policy
prioritizes the interests
of the American community over democracy abroad and even at
home. What is
new, however, is the claim that this communitarianism is the
foundation on which
all significant American foreign policy traditions rest. The
Jacksonian and
Hamiltonian traditions have informed a Realist approach to the
world which one
might expect to oppose the ICC. They may differ on whether to
prioritize defence
spending or trade policy and pursue a unilateralist or
multilateralist approach, but
they are both motivated by promoting America’s particular
interests. The
exceptional nature of America’s revolution, however, also
created a ‘national’
identity that proclaimed a right and duty to promote democracy.
Here the
Jeffersonian and Wilsonian traditions have informed a Liberal
approach to the
world. In contrast to those Jeffersonians who saw America as a
‘vindicator only of
her own’,47 Wilsonians urged America to ‘move beyond
example and undertake
active measures to vindicate the right’. If it failed to ‘bring the
world up to their
own standard’, they warned, ‘the world would bring Americans
down to its’.48 In

contrast to Realists, these Liberals considered the American
Revolution to be
unfinished.49
Yet even from this Liberal perspective US foreign policy should
not put at risk
American democracy and only promote the kind of democracy
that is based on the
nation-state. Thomas Jefferson, for instance, may have declared
the universal
relevance of the American Revolution but he was unwilling to
risk the fragile
American democracy in order to support those abroad fighting
to realize their
rights. Indeed America’s neutrality towards the French
Revolution and its trade
agreement with the British was motivated by concern for its
own revolution rather
than the fate of liberal democracy per se. As William
McDougall notes, American
exceptionalism was defined by what America was at home, not
what it did abroad.
‘Foreign policy existed to defend, not define, what America was
. . . [and] all sorts
of tactics might be expedient save only one that defeated its
purpose of eroding
domestic unity and liberty’.50 The implication for those who
considered the
American Revolution to have universal applicability was that
the American state
would only contribute to that cause by tending to the example
American
democracy set other states.
Moreover, Woodrow Wilson might have seen a key role for
international

institutions, yet they were not envisaged as a means by which
power could be held
accountable for egregious violations of human values. Rather
they were to make
the world safe for democratic states. Grossman’s pledge to
strengthen the political
will of the society of states in order to rebuild failed states is
more than likely a
rhetorical device to avoid the criticism that America is reneging
on its duty to
promote democracy. Yet it is clear that the administration need
not distort the
Wilsonian tradition in order to oppose the ICC. The point here
is not that support
for the Court and cosmopolitan democracy is beyond
Wilsonianism or American
democracy. Senator Dodd, for instance, has used the
Declaration of Independence
to support the ICC in the same way President Lincoln used it to
oppose slavery:51
Our Founding Fathers did not only talk about those in the
United States when
they talked about inalienable rights; they wisely wrote about all
people, not
only those who lived within the borders of the then Thirteen
Colonies of what
would constitute the United States. They spoke to the
aspirations and hopes of
other people as well.52

Rather it is to note that despite the universalist rhetoric that
accompanies
America’s commitment to democracy, its policy is firmly based
on a commun-
itarian worldview.
International society and America’s perception of its
responsibilities
The cultural power of the communitarian discourse has also
conditioned
America’s view of international society. In order to defend a
fundamentalist
interpretation of American sovereignty and the cultural role of
democracy, the
Bush administration has essentially adopted the language of the
‘society of states’.
It argues that international law can only govern relations
between states and
cannot be allowed to interfere with relations between the state
and its citizens. It
prioritizes a strict interpretation of the Vienna Convention and
interprets
‘universal jurisdiction’ in a way that prioritizes the interests of
strong states rather
than the victims of core crimes. Indeed, Grossman’s third point,
that the
unchecked power of the Independent Prosecutor would be used
to pursue an anti-
American political agenda, reveals a mistrust of ‘world society’
and an
unwillingness to empower it in ways that cannot be controlled
by Washington.
Yet, as Grossman’s fourth point reveals, it seeks to legitimize
this position by
evoking the unique responsibility that it and the UN Security

Council have in
maintaining ‘international peace and security’.
At the Rome Conference the USA sought to restrain the power
of the
Independent Prosecutor by making investigations conditional on
Security Council
approval. For many other delegations, however, the Court had to
remain
independent. The legitimacy of the UN-mandated ad hoc Courts
in Rwanda and
the former Yugoslavia was not doubted. It was clear, however,
that justice for the
victims of core crimes would always be selective if it was
dependent on a Security
Council mandate. Many delegations could recall times when
human rights abusers
had been able to hide behind the veto that their great power
patron exercised on
DEMOCRACY 205
the Security Council. As Lawrence Weschler put it, ‘Pol Pot had
the Chinese [and]
the Argentine generals had the Americans’.53
Thus, while the Security Council’s power to initiate Court
proceedings under
Chapter VII of the UN Charter54 was recognized by all, not all
agreed that it
should be the only means of referring a case to the Court. To
break this monopoly
it was proposed that state parties55 and, more controversially,

the Independent
Prosecutor could refer cases to the Court if it appeared that a
crime within the
jurisdiction of the Court would otherwise not be investigated.56
As noted at the
outset, this proposal had the effect of opening up international
justice to a society
beyond that dominated by powerful states. As the Independent
Prosecutor could
launch an investigation and indictment on information provided
by non-
governmental organizations, justice would no longer be the sole
preserve of the
society of states. For this reason, human rights organizations
led a strong
campaign in favour of conferring such powers on an
Independent Prosecutor. The
‘like-minded’ group of states, which favoured the establishment
of a strong and
impartial Court, joined them.57
At the Rome Conference the USA strongly opposed the idea of
an Independent
Prosecutor. Ironically they also argued that the Court should not
be politicized but,
unlike those who saw the Independent Prosecutor as a way to
address this, the
USA argued that such a position would lead to politically
motivated prosecutions.
They argued that the Prosecutor’s office would be so
overwhelmed by cases that
the decision on which cases to prioritize amounted to the kind
of selectivity that
would be open to political abuse. The USA preferred that the
Security Council act
as a filter by providing authorization before the Prosecutor

could proceed. In
effect, both supporters and opponents of the Independent
Prosecutor were
claiming that their proposal was best able to guarantee the
Court’s impartiality.
Yet for some the US position was not only isolated; it was
unreasonable. As
Samantha Power notes:
In saying that it wants to protect itself from a political ICC, the
United States is
seeking more than reasonable assurances about the Court’s
responsible
execution of its mandate. The United States is reserving the
right to define the
term political in the context of the Court’s actions. Of the 180
UN members
who do not hold a veto on the Security Council, only some will
share
America’s definition. Many deem the Security Council as the
epitome of a
politically motivated institution and want an independent ICC
precisely
because they believe it will not be driven strictly by great power
politics.58
For American opponents of the Court, however, this was exactly
the point. Not all
did share America’s definition of ‘political’. Moreover, they did
not understand
the unique responsibilities that America shouldered. Ultimately
the use of force
was necessary either to deter or prevent genocide in the first
place, or to bring the
accused into custody. As the ‘indispensable nation’ the USA
was in a unique

position to conduct such operations, but a failure to exempt US
forces from the
Court’s jurisdiction would only deter these kind of humanitarian
actions.59 This
argument, of course, ignored the extent to which such a ‘chill
factor’ existed
without the ICC. Presumably US military planners could not
ignore the War
Crimes Act, which the US Congress passed in 1996, even if they
were unwilling
to submit to the ICC. Thus, when US officials argued that the
ICC could indirectly
restrain US foreign policy they were not only arguing against
international
oversight. They were, in effect, also arguing against any form of
oversight
including that passed by the US Congress.
As a permanent member of the Security Council, America has
the responsi-
bility to balance the demands of international justice with a
responsibility to
maintain ‘international peace and security’. American
perceptions of this
responsibility have led it to reserve the right to define the term
‘political’. An
overzealous Prosecutor, it has insisted, must not be allowed to
threaten
international peace and security. Prudence inevitably has to
condition the judicial
process, and the Security Council has to determine when such

conditions applied.
While these concerns are clearly very important, America’s
continuing opposition
to the Court fails to recognize the extent to which this issue was
addressed by the
Rome process.
At the July 1998 Conference, in an effort to break the deadlock
on this issue,
Singapore proposed the UN be allowed to postpone Court
proceedings with an
affirmative majority vote of Security Council members. This
made a concession to
the argument that concern for international order may
sometimes require issues of
justice to be forestalled. Yet it also increased the burden of
proof on those who
wished to make such an argument.60 For many delegations
recognized, to use Ken
Booth’s words, that ‘the rhetoric of prudence can often cloak a
conception of
human duty, which is stunted for a relatively wealthy and
civilised country’.61
Clearly prudence is a virtue that one would expect a great power
to have, but those
exercising prudence on behalf of the international community
also need to be able
to demonstrate that ‘international peace and security’ is their
foremost priority
when they act. In this context, advocates of a strong ICC needed
the permanent
members of the Security Council to be able to demonstrate that
they were not
using their veto in a way that protected the particular interests
of a single state. A

professed loyalty to ‘international peace and security’ could not
be allowed to
disguise a policy that was motivated by a selfish interest that
came at the expense
of international justice. Raising the threshold at which the
Security Council could
stop a prosecution, and to make it impossible for any one state
to veto an
investigation, was considered an appropriate way to do this.
Despite its permanent position on the Security Council, the
British delegation
at Rome, mindful of the new Labour government’s ‘ethical
foreign policy’,
recognized this logic. In contrast to the United States, it voted
for the Singapore
proposal,62 which eventually gained enough support to be
included in the
Statute.63 Such was the US commitment to the Security Council
veto, however, it
chose to join China, Libya, Israel, Iraq, Qatar, and the Yemen,
and vote against the
final version of the Rome Treaty.64 Clearly one cannot compare
the USA to such
DEMOCRACY 207
regimes. On this particular issue, however, it would be fair to
argue that the USA
does wish to maintain sufficient flexibility in its foreign policy
to be able to
prevent ‘core criminals’ from being brought to justice. The
demands of inter-

national order may require that such actions be postponed, but it
is equally clear
that the USA fears being held accountable for the way it uses
the Security Council
veto in the name of international peace and security. If
American officials were
certain that the USA would only wish to stop the Court’s
proceedings when there
was a clear threat to international peace and security, then it
would have
confidence in its ability to marshal the majority in the Security
Council that is
required by the Rome Statute. The fact that the USA is unable
to accept such a
system strongly suggests that it wishes to maintain the veto to
protect ‘core
criminals’ when the threat is not to international peace and
security, but to
America’s particular interests. The relationship between the
Security Council and
the Independent Prosecutor, as asserted in the Rome Statute, has
exposed the
instrumental way in which American foreign policy hides
behind the claim that it
shoulders exceptional responsibilities. Quite clearly a
superpower does have
unique responsibilities. When it claims to act for the common
good of inter-
national society, however, it also has a democratic duty to be
accountable to
international society for the way it fulfils those responsibilities.
Yet the issues confronting America’s relationship with the
global community
go beyond even this. It is not merely a question of America
using its position in

the society of states to pursue particular interests at the expense
of the common
good, and then co-opting the language of ‘good international
citizenship’ in an
attempt to legitimize that.65 It is also a question of whether the
USA is willing to
negotiate a conception of democracy based on the nation-state
and the society of
states. America’s national identity has always been flexible
enough to serve
humanity’s purpose by assimilating those desperate individuals
fleeing tyrannical
regimes. However, it now seems that a fundamentalist
interpretation of America’s
democratic identity is, by refusing to tolerate the most minimal
of intrusions on its
sovereignty and opposing the ICC, sending a very different
message to the victims
of tyranny.
Conclusion
The question of accountability is at the heart of this analysis of
America’s
opposition to the ICC. Both opponents and proponents of the
Court consider that
their arguments are motivated by the need to strengthen
accountability and thus
both claim to be democrats. The critical question that
distinguishes their position
of course is: accountable to whom? Supporters of a strong Court
seek to
strengthen accountability in the community of humankind. This
community is
constituted by the international and global consensus that gave
specificity to the

definition of core crimes. These crimes deny the basic rights
that all persons can
claim by virtue of their human identity. Should this society
allow core criminals to
go unpunished, it weakens the protection that the norm of
‘humanity’ offers
everyone. Justice for the victims of these crimes, therefore, is in
the universal
interest. Yet those who are persuaded by this argument also
recognize that the
society of states has failed to protect that norm. As certain
states have been unable
or unwilling to prosecute such cases, and because ‘international
society’ has not
always been reasonable in allowing ‘international peace and
security’ to override
international justice, a new international Court needed to be not
only permanent
but also independent of the society of states. By having these
attributes, the ICC
represents the hopes of those who seek to democratize global
politics by holding
to account those who violate its most fundamental values.
America’s opponents of the ICC, on the other hand, see the
Court’s
independence and the potential institutional influence of NGOs
‘as part of the
accountability problem rather than part of the solution’.66
America’s commitment
to global democracy is quite clearly limited by its commitment

to statehood. It
will seek to spread democracy, and certain foreign policy
traditions will even
support international institutions to make the world safe for
democratic states.
International institutions, however, cannot directly promote
democracy because,
according to this view, there is not a single and identifiable
community that can
hold them accountable. This is a common element across all of
America’s main
foreign policy traditions. It is not limited to the nationalist
traditions that is best
typified by what Mead calls the Jacksonian tradition although
clearly some of the
inward-looking patriotism that celebrates a warrior culture
ahead of the rule of law
accompanies much of the debate.67 As noted above, even the
Wilsonian tradition
seeks to promote the kind of democracy that is limited to the
nation-state. What
we have seen with the Bush administration’s rejection of the
ICC is as much a
Wilsonian and Jeffersonian reaction – it claims, to repeat
Grossman, to be
committed to promoting democracy by building domestic
judicial systems – as it
is Jacksonian.
One can conclude from this that American foreign policy starts
from a
communitarian basis and is dependent on the society of states to
confer the
leadership role that is demanded by the powerful exceptionalist
discourse in
American society. Yet as the processes of globalization

continue to undermine the
strength of states to respond to the needs of their citizens, this
communitarian
view of democracy will become increasingly problematic. Until
the political and
intellectual elite begin to engage the literature on cosmopolitan
democracy and
introduce it into mainstream thinking on international affairs,
American foreign
policy will continue to find itself on the wrong side of those
calling for the
democratization of global politics.
Notes
1 Bartram S. Brown, ‘Unilateralism, Multilateralism, and the
International Criminal Court’, in
Stewart Patrick and Shepard Forman (ed.) (2002)
Multilateralism and U.S. Foreign Policy.
Ambivalent Engagement, pp.323–44. Boulder Co: Lynne
Reinner.
DEMOCRACY 209
2 G. John Ikenberry (2001) After Victory. Institutions, Strategic
Restraint and the Rebuilding of
Order After Major Wars. Princeton and Oxford: Princeton
University Press.
3 David Held (1995) Democracy and the Global Order. From the
Modern State to Cosmopolitan
Governance. Oxford: Polity Press. For a direct link to the ICC,
see Daniele Archibugi (2000)

‘Cosmopolitical Democracy’ New Left Review 4: 146; and
(2002) ‘Demos and Cosmopolis’ New
Left Review 13: 36.
4 Michael Cox, G. John Ikenberry and Takashi Inoguchi (eds)
(2000) American Democracy
Promotion. Impulses, Strategies, and Impacts. Oxford: Oxford
University Press.
5 Hedley Bull (1977) The Anarchical Society: A Study of Order
in World Politics. London:
Macmillan.
6 Rome Statute of the International Criminal Court (1998) Arts
5–8, at [http://www.un.org/law/icc/
statute/romefra.htm].
7 Rome Statute, Art.15.
8 Bull, note 5, 269–70.
9 Held, note 3, 272.
11 Rome Statute, Art.17. See John T. Holmes, ‘The Principle of
Complimentarity’, in Roy Lee (ed.)
(1999) The International Criminal Court. The Making of the
Rome Statute. Issues, Negotiations,
Results, pp.41–78. The Hague, Kluwer Law International.
12 This phrase is used to denote those accused of committing
core crimes.
13 John R. Bolton, (2001) ‘Unsign That Treaty’, The
Washington Post, January 4.
14 Letter available at
[http://www.wfa.org/issues/wicc/bolton_ICC_unsign.pdf].
15 Available at [http://www.un.org/law/ilc/texts/treaties.htm].

Although the USA has never ratified
the Vienna Convention, it has clearly conducted a foreign
policy that was consistent with its content.
16 ‘Hyde Praises Decision by Bush Administration to Unsign
Treaty Establishing International
Criminal Court’, Committee of International Relations, US
House of Representatives, at
[http://www.house.gov/international_relations].
17 Marc Grossman, ‘American Foreign Policy and the
International Criminal Court’, Remarks to the
Center for Strategic and International Studies, Washington, DC,
6 May 2002. Found at:
[http://www.state.gov/p/9949.htm].
18 Senator Larry Craig (2001) ‘Under the U.N. Gavel’,
Washington Post, August 22.
21 Silvia A. Fernandez de Gurmendi, ‘The Role of the
International Prosecutor’ in Lee note 11,
p.184.
22 Rome Statute, Preamble, Art.1 and Art.17.
25 Lee A. Casey (2002) ‘The Case Against the International
Criminal Court’, Fordham
International Law Journal 25: 843–4.
26 Barabara Crossette (2001) ‘For First Time, U.S. Is Excluded
From U.N. Human Rights Panel’,
New York Times, May 4.

27 Congressional Record, 8 May 2001, p.H2124. See also,
Marc A. Thiessen (2001) ‘When Worlds
Collide’, Foreign Policy 123: 66.
28 Congressional Record, 26 September 2001, p.S9856.
29 Mark Leonard (2001) ‘When Worlds Collide’, Foreign Policy
123: 72.
30 Ruth Wedgewood, ‘The Constitution and the ICC’, in Sarah
B. Sewall and Carl Kaysen (eds)
(2000) The United States and the International Criminal Court,
p.126. London: Rowman and
Littlefield.
31 Wedgewood, note 30, p.123.
32 Congressional Record, 10 May 2001, p.H.2097.
33 Wedgewood, note 30, p.129.
34 Peter J. Spiro (2000) ‘The New Sovereigntists. American
Exceptionalism and Its False Prophets’,
Foreign Affairs,79: 9–15.
35 Casey, note 25, pp.843–4.
36 Cited by Lawrence Weschler, ‘Exceptional Cases in Rome:
The United States and the Struggle
for an ICC’, in Sewall and Kaysen (eds), note 30, p.101.
37 Rome Statute, Art.12. See Elizabeth Wilmshurst,
‘Jurisdiction of the Court’, in Lee (ed.) note 11,
pp.127–42.
38 On the use of Status of Forces Agreements (SOFAs) see

Robinson O. Everett, ‘American
Servicemembers and the ICC’, in Sewall and Kaysen, note 30,
pp.137–9.
39 Michael P. Scharf, ‘The ICC’s Jurisdiction over the
Nationals of Non-Party States’, in Sewall and
Kaysen (ed.), note 30, pp.220–22.
40 David J. Scheffer (2001–02) ‘Staying the Course with the
International Criminal Court’, Cornell
International Law Journal, 47: p.65.
41 For a response see Marc Weller (2002) ‘Undoing the global
constitution: UN Security Council
action on the International Criminal Court’, International
Affairs 78: 702–3.
42 Grossman, note 17.
43 Michael Foley (1994) ‘The Democratic Imperative’, in
Anthony McGrew (ed.) Empire. The
United States in the Twentieth Century. London: Hodder and
Stoughton in association with Open
University Press, p.196.
44 Foley, note 42, p.166.
45 David Campbell (1992) Writing Security. United States
Foreign Policy. Manchester: Manchester
University Press.
46 Thiessen, note 27, p.65.
47 Walter Russell Mead (2001) Special providence: American
Foreign Policy and How it Changed
the World, pp.174–217. New York: Knopf.
48 H.W. Brands (1998) What America Owes the World. The

Struggle for the Soul of Foreign Policy
pp.viii-ix. Cambridge, Cambridge University Press.
49 Mead, note 47, p.178.
50 Walter McDougall (1997) Promised Land, Crusader States:
The American Encounter with the
World Since 1776, p.37. Boston: Houghton Mifflin.
51 Gary Wills (1978) Inventing America. Jefferson’s
Declaration of Independence, pp.xiv-xviii.
New York: Doubleday and Company Inc.
52 Congressional Record, 26 September 2001, p.S.9861.
53 Weschler, note 36, pp.92–93.
57 Fernandez de Gurmendi, note 21.
58 Samantha Power, ‘The United States and Genocide Law’, in
Sewall and Kaysen, note 30, p.171.
59 Weschler, note 36, pp.102–3.
60 Lionel Yee, ‘The International Criminal Court and the
Security Council’, in Lee, note 11
pp.143–52.
61 Ken Booth (1994) ‘Military Intervention: Duty and
Prudence’, in Lawrence Freedman (ed.)
Military intervention in European conflicts, pp.56–75. Oxford:
Blackwell.
62 Weschler, note 36, 93.
64 Bartram S. Brown, ‘The Statute of the ICC: Past, Present and
Future’, in Sewall and Kaysen, note
30, p.66.

65 Andrew Linklater (1992) ‘What is a good international
citizen?’, in Paul Keal (ed.) Ethics and
Foreign Policy, pp.21–41. Canberra: Allen and Unwin.
66 Spiro, note 34, p.12.
67 Mead, note 47, pp.218–63.
DEMOCRACY 211
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DIANE MARIE AMANN
M.N.S. SELLERS
The United States of America and the
International Criminal Court
The United States of America has not ratified the treaty estab-
lishing a permanent international criminal court, and it is highly
un-
likely to do so. This is not simply a question of delay caused by
cumbersome ratification procedures; rather, it reflects deep-
seated
opposition by the U.S. executive branch and by many members
of
Congress. The United States voted against the Rome Statute of
the
International Criminal Court1 when it was adopted on July 17,
1998,
at the U.N. Diplomatic Conference of Plenipotentiaries.
President
William J. Clinton approved signature of the statute on the last
day

that a state, by signing, could continue to take part in
discussions on
ICC matters. 2 But he stressed that he did so largely to remain
"in a
position to influence the evolution of the court," adding that "I
will
not, and do not recommend that my successor submit the treaty
to
the Senate for advice and consent until our fundamental
concerns are
satisfied."3 Senator Jesse Helms, chairman of the Committee on
For-
eign Relations, labeled the U.S. signature "as outrageous as it is
inex-
plicable." He promised, "This decision will not stand."
4
DIANE iMARIE AmANN is Professor of Law, University of
California, Davis, School of
Law; 2001-02, Professeur invite, Universitd de Paris 1
(Panthdon-Sorbonne). B.S.,
1979, University of Illinois; M.A., 1981, University of
California, Los Angeles; J.D.,
1986, Northwestern University. With thanks to Madeline
Morris, Leila Nadya Sadat,
Ruth Wedgwood, and Tobias Barrington Wolff, who took time
to mull issues raised in
this report, and to Gwen K. Young for research assistance.
M.N.S. SELLERS is Professor and Director, Center for
International & Comparative
Law, University of Baltimore School of Law, Maryland.
Harvard College, A.B., 1980;
Oxford University, D.Phil., 1986, B.C.L., 1988; Harvard
University, J.D., 1988.

1. U.N. Doc. A/CONF.183/9 (1998), reprinted in 37 LL.M. 999
(1998) [hereinafter
ICC Statute].
2. See Steven Lee Myers, "U.S. Signs Treaty for World Court to
Try Atrocities,"
N.Y Times, Jan. 1, 2001, at Al.
3. William J. Clinton, "Statement on the Rome Treaty on the
International
Criminal Court," 37 Weekly Comp. Pres. Doc. 4 (Dec. 31,
2000), available at 2001 WL
14297016.
4. Jesse Helms, "Helms on Clinton Signature: This Decision
Will Not Stand,"
Cong. Press Releases, Dec. 31, 2000, available at LEXIS, News
Library, News Group
File [hereinafter Helms, Decision]; see Letter of John R Bolton,
Under Secretary of
State for Arms Control and International Security, to U.N.
Secretary General Kofi
Annan, May 6, 2002, available at
http://www.state.gov/r/pa/prs/ps/2002/9968.htm
(visited May 7, 2002) [hereinafter Bolton letter] (stating "that
the United States does
HeinOnline -- 50 Am. J. Comp. L. Supp. 381 2002
tstriepe
Text Box
Originally Published in American Journal of Comparative Law
Supplement
Vol. 50, pp. 381-404, 2002

THE AMERICAN JOURNAL OF COMPARATIVE LAW
This report will explore political and constitutional concerns
un-
derlying the U.S. position regarding the ICC. First it will
review the
history of U.S. involvement in the development of international
crim-
inal adjudication, before and after adoption of the ICC treaty. It
then
will present objections that U.S. opponents have voiced
regarding the
ICC Statute. Next it will examine areas in which that statute
may
conflict with the U.S. Constitution, among them prosecutorial
power,
immunity, rights of the accused, fugitive transfer, and
imprisonment.
Finally, it will discuss prospects for ratification of the ICC
Statute.
Legal obstacles to ratification may be surmountable, but not
without
significant political will to ratify, and that does not exist. The
report
thus concludes that the United States will neither ratify the ICC
Statute, nor support the court, in the foreseeable future.
I. HISTORY OF U.S. INVOLVEMENT IN INTERNATIONAL
CRIMINAL ADJUDICATION
In the post-World War II era, the United States was a leader in
the development of international criminal adjudication. On the
In-
ternational Military Tribunals at Niirnberg and Tokyo, judges
and

prosecutors from the United States worked alongside their
counter-
parts from other countries. U.S. military tribunals conducted
addi-
tional trials. Thousands of individuals were tried for crimes
against
peace, crimes against humanity, and war crimes - offenses that,
along with genocide, constitute the core crimes within the
jurisdiction
of the ICC.
5
Even as the postwar trials were under way, there was a call to
establish a permanent international criminal court within the
frame-
work of the nascent United Nations.6 That proposal languished
until
1989, when a representative of Trinidad and Tobago sought
reconsid-
eration.7 The administration of Republican President George
H.W.
Bush expressed reservations, though it continued to push for
trans-
national cooperation to combat drug-trafficking and terrorism.8
In
not intend to become a party" to the ICC treaty and that it thus
"has no legal obliga-
tions arising from its signature").
5. See ICC Statute, supra n.1, arts. 5-8. On the postwar trials
and the U.S. role,
see generally Gary Jonathan Bass, Stay the Hand of Vengeance
(2000); Telford Tay-
lor, The Anatomy of the Nuremberg Trials (1993).

6. See Draft Proposal for the Establishment of an International
Court of Crimi-
nal Jurisdiction, U.N. Doc. A/AC.10/21 (1947) (submitted by
Henri Donnedieu de
Vabres, French delegate to the General Assembly's Committee
on the Progressive De-
velopment of International Law and its Codification, and
formerly the French judge
on the International Military Tribunal at Nirnberg).
7. See Letter from the Permanent Representative of Trinidad
and Tobago to the
United Nations addressed to the Secretary-General, U.N.
GAOR, 44th Sess., U.N.
Doc. A/44/195 (1989).
8. See Scharf, "Getting Serious about an International Criminal
Court," 6 Pace
Int'l L. Rev. 103, 103-05 (1994) (discussing views of first Bush
Administration on
ICC); Paul Lewis, "2 Big Powers Back World Court Role," N.Y
Times, Aug. 7, 1989, at
382 [Vol. 50
INTERNATIONAL CRIMINAL COURT
1993, the administration of President Clinton, a Democrat, pro-
claimed the United States' "significant and positive interest" in
an
ICC.9 Thereafter, U.S. representatives helped to draft the

statute
that would be considered at a diplomatic conference in 1998 in
Rome.
The United States simultaneously assisted in drafting the
statutes of
the International Criminal Tribunal for the former Yugoslavia
and
the International Criminal Tribunal for Rwanda, 10 and
provided
funds and staff once those ad hoc tribunals began operation.1 1
Then,
at Rome, the United States joined six other states in voting
against
the ICC treaty.
After Rome, the Clinton Administration continued to negotiate
at ICC preparatory sessions, but with the aim of insulating the
United States from the effects of the treaty. Thus the U.S.
delegation
pushed for Elements of Crimes that narrowed the scope of the
ICC
Statute, and it lobbied in vain for a provision that would place
U.S.
nationals out of the reach of the court.
12
Not everyone in the United States opposed the court. Some U.S.
academics wrote favorably about the ICC Statute, 13 and many
U.S.
nongovernmental organizations worked for ratification of the
ICC
treaty. 14 Even the U.S. government offered a modicum of
grudging
A5 (reporting on U.S.-Soviet agreement to accept binding

arbitration of International
Court of Justice in disputes over terrorism and drug-trafficking
treaties and to try to
persuade others to do same).
9. U.S. Mission to the United Nations, Statement by the
Honorable Conrad K.
Harper, United States Special Advisor to the United Nations
General Assembly in the
Sixth Committee, USUN Press Release #171-(93) (Oct. 27,
1993), quoted in Scharf,
supra n. 8, at 109.
10. See Statute of the International Tribunal for Rwanda, S.C.
Res. 955, U.N.
SCOR, 49th Sess., 3453d mtg., Annex, U.N. Doc. S/RES/955
(1994), reprinted in 33
I.L.M. 1598 (1994) [hereinafter ICTY Statute]; Statute of the
International Criminal
Tribunal for the Former Yugoslavia, S.C. Res. 827, U.N. SCOR,
48th Sess., 3217th
mtg., Annex, U.N. Doc. S/RES/827 (1993), reprinted in 32
I.L.M. 1159 (1993) [herein-
after ICTR Statute].
11. See Wedgwood, "Improve the International Criminal Court,"
in Toward an
International Criminal Court 53 (Alton Frye ed., 1999).
12. See Leigh, "The United States and the Statute of Rome," 95
Am. J. Int'l L.
124, 126-27 (2001) (discussing efforts to exempt U.S.
nationals); Hall, "The First Five
Sessions of the UN Preparatory Commission for the
International Criminal Court," 94
Am. J. Int'l L. 773, 775-80 (2000) (discussing U.S. proposals on

Elements).
13. See generally, e.g., Association of American Law Schools
Panel on the Inter-
national Criminal Court, 36 Am. Crim. L. Rev. 223, 238-43
(1999) (remarks of Dorean
Marguerite Koenig); Bassiouni, "Negotiating the Treaty of
Rome on the Establish-
ment of an International Criminal Court," 32 Cornell Int'l L.J.
443 (1999); Meron,
War Crimes Law Comes of Age, 92 Am. J. Int'l L. 462 (1998);
Orentlicher, "Politics by
Other Means: The Law of the International Criminal Court," 32
Cornell Int'l L.J. 489
(1999); Paust, "The Reach of ICC Jurisdiction Over Non-
Signatory Nationals," 33
Vand. J. Transnat'l L. 1 (2000); Sadat & Carden, "The New
Court: An Uneasy Revolution," 88 Geo. L.J. 381 (2000); Scharf,
"The United States
and the International Criminal Court: The ICC's Jurisdiction
over the Nationals of
Non-Party States: A Critique of the U.S. Position," 64 L. &
Contemp. Probs. 67 (2001);
Diane Marie Amann, "A New International Spirit," S.F. Chron.,
Oct. 12, 2001, at A23.
14. See, e.g., Amnesty International USA, International
Criminal Court, http:l!
www.amnestyusa.orgicc/ (visited Sept. 15, 2001); Human
Rights Watch, Interna-
20021

support, signing the ICC treaty on Dec. 31, 2000, for the
express pur-
pose of maintaining influence over the court's development.
Days
later, President George W. Bush, a Republican, took office. His
ad-
ministration stepped up criticism of the ICC, and in May 2002 it
car-
ried out a plan for the United States to "unsign" the treaty. 15
Earlier,
Pierre-Richard Prosper, ambassador-at-large for war crimes
issues,
had said that the new administration did "support pursuing
account-
ability for atrocities and war crimes as they occur around the
world, 16 but not by means of a permanent international court.
He
advocated instead the establishment of additional temporary
tribunals.
1 7
Legislative initiatives illustrated the enduring and widespread
opposition to the ICC within Congress. A law passed in 1999
prohib-
its use of U.S. funds to assist the ICC.18 An even harsher bill,
called
the American Servicemembers Protection Act of 2001, would
bar any
U.S. governmental entity from cooperating with the ICC; enjoin
transfer to the ICC of "classified national security information";
deny

military aid to many countries that join the ICC; forbid the use
of
U.S. troops in peacekeeping missions absent a grant of
immunity by
the U.N. Security Council; and allow the President to use "all
means
necessary and appropriate" to free U.S. soldiers arrested by the
ICC.' 9 The bill has been approved in a number of bipartisan
House
votes, but has not cleared the Senate. 20 The Bush
Administration
had opposed an effort to link the bill to U.S. payment of U.N.
back
dues; however, in late September 2001 it announced support for
at-
taching the bill to "appropriate" legislation.
21
tional Criminal Court, http://www.hrw.org/campaigns/icc/
(visited Sept. 15, 2001);
Lawyers Committee for Human Rights, International Criminal
Court: The Architec-
ture of Global Justice, http://www.lchr.org/IJP/icc.htm (visited
Sept. 15, 2001).
15. See Bolton letter, supra n. 4; Steven Mufson & Alan
Sipress, "U.N. Funds In
Crossfire Over Court," Wash. Post, Aug. 16, 2001, at Al.
16. Pierre Prosper discusses the position of the US in
prosecuting atrocities
around the world (National Public Radio broadcast, All Things
Considered, Aug. 2,
2001).

17. Norman Kempster, "U.S. May Back Creation of Special
Atrocity Tribunals,"
L.A. Times, Aug. 2, 2001, at Al. See also Henry A. Kissinger,
"The Pitfalls of Univer-
sal Jurisdiction," Foreign Affairs, July/Aug. 2001, at 86, 91
(calling for continued use
of temporary tribunals until ICC Statute can be
"renegotiate[d]").
18. Admiral James W. Nance and Meg Donovan Foreign
Relations Authorization
Act, Fiscal Years 2000 and 2001, §§ 705-06, app. to Pub. L.
106-113 [H.R. 3427], 113
Stat. 1501 (1999).
19. American Servicemembers' Protection Act of 2001, H.R.
1794, 107th Cong.
(2001).
20. In August 2001, 76 Democrats and 206 Republicans in the
House of Repre-
sentatives voted in favor of linking the bill to legislation that
would authorize pay-
ment of $582 million in back dues to the United Nations.
Mufson & Sipress, supra n.
15. A similar mix of representatives had approved the bill in
May 2001, as part of the
Foreign Relations Authorization Act for the 2002-03 fiscal year.
21. See Evelyn Leopold, "Bush Supports Helms Curbs on U.N.
Criminal Court,"
Reuters Eng. News Serv., Sept. 28, 2001, available at Westlaw,
allnewsplus. Earlier
in the month the House sponsor of the bill had announced that
he would delink it

384 [Vol. 50
Also pending was the American Citizens' Protection and War
Criminal Prosecution Act of 2001, which described a plan for
"[c]ontinued United States engagement" with the ICC. 2 2 This
bill
would authorize the United States, even as a nonparty, to give
finan-
cial aid, legal assistance, and other support to the ICC "as
appropri-
ate, on a case-by-case basis," though it too would bar sharing of
classified data. 23 The United States would endeavor to
investigate
and prosecute all U.S. citizens and servicemembers suspected of
crimes within the ICC's jurisdiction, and would not hand over to
the
ICC anyone who had been subjected to such proceedings. The
bill
also called for studies comparing the ICC Statute and U.S. laws,
and
conditioned ratification of the treaty on Presidential
certification that
the ICC is fair. Perhaps most significant is the fact that, though
more moderate than the Servicemembers Protection Act, this
bill also
assumed that the United States ought not to join the ICC any
time
soon.
II. U.S. OPPOSITION TO THE ICC STATUTE

The primary U.S. objections to the ICC Statute crystallized as
early as a week after the Rome Conference, in hearings before a
sub-
committee of the Senate's Foreign Relations Committee. Senator
Rod
Grams opened the hearings by labeling the ICC treaty as not
only
"bad," but "dangerous," and declared "that the United States
will not
cede its sovereignty to an institution which claims to have the
power
to override the US legal system and pass judgment on our
foreign
policy actions."24 Strong words have characterized opposition
ever
since; examples include Senator Helms' description of the ICC
as
"this international kangaroo court;" 25 Clinton Administration
Am-
bassador David J. Scheffer's claim that one provision is
"contrary to
the most fundamental principles of treaty law;"2 6 and Senator
Larry
from U.N. funding. See "DeLay to Drop His Opposition to
Payment of U.N. Back
Dues," Cong. Daily, Sept. 13, 2001, available at 2001 WL
2489053.
22. American Citizens' Protection and War Criminal Prosecution
Act of 2001, S.
1296, 107th Cong., § 2(10) (2001). For support for this
approach outside Congress, see
Bill Richardson, "America's Interest in an International Court,"
N.Y. Times, Aug. 12,

2001, at A17 (comment by former U.S. ambassador to the
United Nations); "Interna-
tional Criminal Court, Hearing of the Senate Foreign Relations
Comm.," Fed. News
Serv., June 14, 2000 (statement of Yale Law Professor Ruth
Wedgwood), available at
2000 WL 19305017 [hereinafter Wedgwood statement].
23. American Citizens' Protection and War Criminal Prosecution
Act of 2001,
supra n. 23, §§ 7, 8.
24. Is a U.N. International Criminal Court in the National
Interest?, Hearing on
the International Criminal Court before the International
Operations Subcomm. of
the U.S. Senate Foreign Relations Comm. (July 23, 1998)
(statement of Senator Rod
Grams), available at 1998 WL 12762521 [hereinafter Grams
statement].
25. Helms, Decision, supra n. 3.
26. See U.N. International Criminal Court, Hearing on the
International Crimi-
nal Court before the International Operations Subcomm. of the
U.S. Senate Foreign
Relations Comm. (July 23, 1998) (statement of David J.
Scheffer, ambassador-at-large
2002]

E. Craig's insistence that the ICC poses "a fundamental threat to
American sovereignty."2 7
Though details may vary, specific U.S. objections cluster
around
a few themes. First, opponents 28 assert that the ability of the
ICC to
bypass the Security Council would undermine the settled system
of
international governance and the U.S. role in that system.
Second,
they complain that the ICC prosecutor and judges, to be chosen
in a
manner U.S. opponents consider nondemocratic, would have
undue
authority to determine the ICC's jurisdiction, and thus may be
tempted to launch politically motivated prosecutions. Third,
oppo-
nents argue that the ICC Statute poses the risks of unfair trial
pro-
ceedings. Taken as a whole, opponents contend, operation of the
ICC
as now structured is a menace to the sovereignty of the United
States.
A. The Security Council, the United States, and the ICC
Like most countries, the United States is party to the half-cen-
tury-old Charter of the United Nations, which imposes
obligations
that "shall prevail" over those under any other international
agree-
ment. 29 The Charter establishes the Security Council as a
"principal

organ," with "primary responsibility for the maintenance of
interna-
tional peace and security .... ,,30 To that end, the Charter
provides
that the Council "shall determine the existence of any threat to
the
peace, breach of the peace, or act of aggression and shall..,
decide
what measures shall be taken .... -131 The United States plays a
key
role, as one of five permanent members whose veto can thwart
Secur-
ity Council action.
3 2
The proposed International Criminal Court would bypass this
framework. Like the Security Council, the ICC would be
interested
for war crimes issues and head of U.S. delegation at Rome),
available at 1998 WL
12762512 [hereinafter Scheffer statement].
27. Larry E. Craig, "Under the U.N. Gavel," Wash. Post, Aug.
22, 2001, at A19.
See also Grams statement, supra n. 24 ("I hope that now the
Administration will ac-
tively oppose this Court to make sure that it shares the same
fate as the League of
Nations - and collapses without US support. For this Court truly
is a monster, and it
is a monster that must be slain.").
28. Although this report speaks collectively of "opponents" or
"critics," of course

not all of them share all stated concerns or all tactics for
blocking the ICC. For in-
stance, one commentator questioned the ICC Statute, Michael J.
Glennon, "There's a
Point to Going It Alone," Wash. Post, Aug. 12, 2001, at B02,
yet also argued that total
noncooperation with the ICC, as would be required by the
American Servicemembers'
Protection Act, supra n. 19, could work against U.S. interests.
See Mufson & Sipress,
supra n. 15 (quoting Glennon as saying, "Ve should make it
easier, not harder, for
other nations to investigate and arrest thugs who commit crimes
against
Americans.").
29. U.N. Charter, art. 103.
30. Id., arts. 7(1), 24(1).
31. Id., art. 39.
32. Id., arts. 23(1), 27(3).
[Vol. 50
20021 INTERNATIONAL CRIMINAL COURT
in matters affecting international peace and security - initially,
war
crimes, genocide, and crimes against humanity; eventually,
aggres-
sion and perhaps even terrorism and drug-trafficking. 3 3 It
could look
into such matters even without a Security Council request.3 4

The
Council could postpone investigations, but only if all permanent
members, and a majority of the nonpermanent members, agreed.
35
Pointing to these provisions, U.S. opponents argue that all mat-
ters of interest to the ICC fall within the jurisdiction of the
Security
Council; therefore, the Council should have prior review before
a mat-
ter is referred to a judicial process. 36 Without such review,
opponents
maintain, the ICC would deprive permanent members of their
veto
and could trespass on the Security Council's domain.3 7
Furthermore,
the ICC Statute extends jurisdiction to nationals of nonparty
states
who are accused of crimes committed on the territory of states
par-
ties. 38 Opponents predict that this state of affairs will pose a
signifi-
cant deterrent to military action, including U.N. peacekeeping
operations, that are necessary to protect international peace and
se-
33. The statute lists the crime of aggression as within the ICC's
jurisdiction,
though it may not be prosecuted until after the Assembly of
States Parties formulates
a definition of aggression. ICC Statute, supra n. 1, arts. 5, 121,
123. On the possible
addition of drug-trafficking and terrorism, see Final Act of the
United Nations Diplo-
matic Conference of Plenipotentiaries on the Establishment of

an International Crim-
inal Court, U.N. Doc. AICONF.183/10* (July 17, 1998), annex
I, discussed in
McConville, "Note, A Global War on Drugs: Why the United
States Should Support
the Prosecution of Drug Traffickers in the International
Criminal Court," 37 Am.
Crim. L. Rev. 75, 93-94 & n. 138 (2000).
34. See ICC Statute, supra n. 1, arts. 13-15 (permitting exercise
of jurisdiction not
only on Security Council referral, but also on request of a state
party or on prosecu-
tor's own initiative).
35. ICC Statute, supra n.1, art. 16 (allowing twelve-month
deferral of investiga-
tion or prosecution, renewable indefinitely, pursuant to Security
Council resolution).
As it stands, the veto power could work to the disadvantage of
the United States. If
another permanent member - say, China - wished, it could
permit ICC investigation
of a U.S. national simply by vetoing any resolution for deferral.
36. See Scheffer statement, supra n. 26 ("There will necessarily
be cases where
the international court cannot and should not have jurisdiction
unless the Security
Council decides otherwise."). This position also had been raised
at the outset of the
Rome Conference. See Ruth Wedgwood, "The Pitfalls of Global
Justice," N.Y. Times,
June 10, 1998, at A29.
37. See Grams statement, supra n. 24 (stating that today

"international law re-
garding peace and security is . . . whatever the Security Council
says that it is," but
expressing concern that "[w]ith the creation of the International
Criminal Court, that
will no longer be the case" because of reversal of veto power);
U.N. International
Criminal Court, Hearing on the International Criminal Court
before the Interna-
tional Operations Subcomm. of the U.S. Senate Foreign
Relations Comm. (July 23,
1998) (statement of Sen. Jesse Helms), available at 1998 WL
12762482 [hereinafter
Helms statement] (declaring that ICC statute "represents a
massive dilution of the
UN Security Council's powers - and of the United States' veto
power within the Se-
curity Council").
38. See ICC Statute, supra n. 1, art. 2(a). Among those who has
criticized this
provision, a form of universal jurisdiction, is a former U.S.
Secretary of State whom
individuals in some countries have attempted to subject to
criminal process based on
this same universality principle. See generally Kissinger, supra
n. 17.
curity. 39 Pending legislation, which would restrict U.S.
participation

in peacekeeping, circumscribe U.S. military aid to ICC member
states, and authorize the use of force to release U.S. nationals
held in
ICC custody, reflects these concerns.
40
B. ICC Jurisdiction and Risk of Politically Motivated
Prosecution
Fueling objections to the diminished authority of the Security
Council are some opponents' fears that nondemocratic
governments
could control the personnel and activities of the ICC. Each state
party to the ICC is to have one vote in the Assembly of States
Par-
ties,4 1 the body empowered to choose and to remove the
prosecutor
and judges;4 2 to adopt Elements of Crimes and Rules of
Procedure
and Evidence; 4 3 and to amend the ICC Statute. 44 At the post-
Rome
congressional hearings, Senator Grams argued that because of
this
governance structure, ICC decision-making "will not be
confined to
those from democratic countries with the rule of law."
45
This argument gives rise to the oft-repeated concern that the
ICC
will pursue politically motivated prosecutions. 46 Any state
party
would be able to ask for investigation into a matter, or the
prosecutor

may open an investigation on her or his own initiative; that is,
39. See Grams statement, supra n. 24 (maintaining arguing that
the "most effec-
tive deterrent" to international crimes "is the threat of military
action - and this
Court is undermining the ability of the United States to do that
very thing"); Scheffer
statement, supra n. 26 (stating that possible application of the
statute to U.S. soldiers
regardless of ratification could "inhibit the ability of the United
States to use its mili-
tary to meet alliance obligations and participate in multinational
operations, includ-
ing humanitarian interventions to save civilian lives").
40. American Servicemembers' Protection Act of 2001, supra n.
19.
41. ICC Statute, supra n. 1, art. 112.
42. See id., art. 36(6)(a) (providing that Assembly may choose
judges by a two-
thirds majority of present, voting members); id., art. 46(2)(a)
(allowing removal of
judges by two-thirds majority of states parties, on
recommendation by two-thirds of
other judges); id., art. 42(4) (providing for choice of prosecutor
by vote of "absolute
majority" of members); id., art. 46(2)(b) (permitting removal of
prosecutor by "absolute
majority" of states parties).
43. Id., art. 9(1) (permitting adoption of Elements of Crimes by
a two-thirds ma-
jority of members); id., art. 51(1) (authorizing adoption of
procedural rules by same

margin).
44. See id., arts. 121, 122 (providing for amendment by two-
thirds majority of
states parties); id., art. 5(2) (authorizing eventual addition of
crime of aggression pur-
suant to statute's amendment procedures).
45. Grams statement, supra n. 24 (speaking specifically of ICC
judges). Cf. U.N.
International Criminal Court, Hearing on the International
Criminal Court before
the International Operations Subcomm. of the U.S. Senate
Foreign Relations Comm.
(July 23, 1998) (written statement of Lee A. Casey & David B.
Rivkin, Jr.), available
at 1998 WL 12762551 [hereinafter Casey & Rivkin statement]
(contending that ICC
would be unaccountable to U.S. citizens even if United States
joined).
46. See Grams statement, supra n. 24; U.N. International
Criminal Court, Hear-
ing on the International Criminal Court before the International
Operations Sub-
comm. of the U.S. Senate Foreign Relations Comm. (July 23,
1998) (statement of John
R. Bolton), available at 1998 WL 12763220 [hereinafter Bolton
statement].
[Vol. 50

2002] INTERNATIONAL CRIMINAL COURT 389
proprio motu. 47 Opponents have maintained that because a
majority
of the Assembly of States Parties will select and may fire the
prosecu-
tor, the character and motivations of the prosecutor will reflect
the
character and motivations of a majority of states parties. 48
They
feared the possibility that one day the prosecutor, without prior
Se-
curity Council review, might be allowed to pursue charges of
aggres-
sion, as defined not by the Council but by the Assembly of
States
Parties. 49 The breadth of prosecutorial power, coupled with the
as-
serted fear that the prosecutor will be subordinated to the states
par-
ties, are pivotal to the politicization objection.
50
Safeguards against such abuse appear in the ICC Statute. A
proprio motu investigation could be stopped by vote of two
judges in
the ICC's Pre-Trial Chamber. 5 1 According to the principle of
comple-
mentarity, moreover, ICC judges could not deem a case
admissible as
long as a state was "willing" or able "genuinely to prosecute"
the
case. 5 2 "Unwillingness" is to be measured by "unjustified
delay" or
lack of sufficient "impartiality" or "independence" in the

proceed-
ings. 53 The United States thus should be able to shield its
nationals
from the ICC by undertaking a good-faith investigation and, if
appro-
priate, prosecution. These safeguards have not assuaged U.S.
critics,
who have argued that the judges themselves will be subject to
selec-
tion and removal by the governments of nondemocratic states
parties.
The ICC Statute permits each member state to put forward one
candidate to compete for eighteen ICC judgeships. Candidates
must
47. ICC Statute, supra n.1, arts. 13(a), (c), 14, 15. The third
method for opening a
matter is by Security Council referral, discussed supra § II(A).
48. See Casey & Rivkin statement, supra n. 45 ("The United
States has interests
and responsibilities around the world and the possibility that a
prosecutor and bench
staffed by individuals hostile to the United States or its interests
is quite real. The
Cold War is over, but the United States still has enemies and
competitors. Indeed, as
the World's only superpower, it is viewed with suspicion by
many states, and with
outright hostility by more than a few. All would have an equal
vote in selecting the
ICC's personnel if they choose to ratify the treaty.").
49. Helms statement, supra n. 37 ("I think I can anticipate what
will constitute a

crime of aggression in the eyes of this Court. It will be an act of
aggression whenever
the United States of America takes any military action to defend
the national interest
of the American people unless the United States first seeks and
receives the permis-
sion of the United Nations."); Scheffer statement, supra n. 26
(arguing that prosecu-
tion for aggression ought to require a previous determination of
aggression by the
Security Council).
50. See Grams statement, supra n. 24 (stating that ICC Statute
provides "no ef-
fective screen against politically motivated prosecutions");
Scheffer statement, supra
n. 26 (asserting that authorizing prosecutor to self-initiate
investigations threatens to
mire ICC in political controversy); Helms statement, supra n. 37
(complaining that
prosecutor would be "accountable to no state or institution for
his actions"); Kissinger,
supra n. 17, at 90-91 (criticizing extent of prosecutorial
discretion).
51. ICC Statute, supra n. 1, art. 15(3).
52. Id., art. 17. For proclamations of the principle of
complementarity, see id.,
pmbl., art. 1.
53. Id., art. 17(2)(c).

be "persons of high moral character, impartiality and integrity
who
possess the qualifications required in their respective States for
ap-
pointment to the highest judicial offices." 5 4 In the view of
some U.S.
opponents, relying on standards within states, especially those
that
are nondemocratic, sets too low a threshold. 5 5 Out of this
mistrust of
the independence and competence of those who would become
ICC
judges arise, not surprisingly, complaints that the statute gives
final
say on the extent of the ICC's jurisdiction 56 and on the
propriety of
the prosecutor's actions to these same judges.
57
C. Due Process Concerns
ICC institutions - the judiciary, the prosecutor, and the Assem-
bly of States Parties - also have final say regarding the
procedures
the court will follow. To a large extent the ICC Statute
comprehends
the rights of the accused that are honored in the United States;
in-
deed, a representative of the American Bar Association has told
Con-
gress that "the Treaty of Rome contains the most comprehensive
list
of due process protections which has so far been promulgated."

5 8
Still, there are differences, most notably, the absence of any
right to
trial by jury. These have prompted opponents to argue that ICC
tri-
als would violate U.S. standards. 5
9
D. State Sovereignty and the ICC
Underlying all these objections is the claim that the ICC struc-
ture is less democratic, and so less independent, than U.S.
domestic
54. Id., art. 36(1), (3)(a), (4)(b).
55. See Grams statement, supra n.24.
56. See Craig, supra n.27 (stating that "the court's stated
mission is dealing with
war crimes and crimes against humanity - which, because there
is no appeal from its
decisions, only the court will have the right to define"); see also
ICC Statute, supra
n.1, art. 119 ("Any dispute concerning the judicial functions of
the Court shall be
settled by the decision of the Court.").
57. See Grams statement, supra n. 24.
58. House Comm. on Int'l Relations, July 25, 2000 (prepared
testimony of Monroe
Leigh), available in Fed. News Serv., July 25, 2000 [hereinafter
Leigh testimony]. See

infra § III(D) (analyzing rights of accused before ICC).
59. See U.N. International Criminal Court, Hearing on the
International Crimi-
nal Court before the International Operations Subcomm. of the
U.S. Senate Foreign
Relations Comm. (July 23, 1998) (statement of then-Sen. John
Ashcroft, now U.S.
Attorney General), available at 1998 WL 12762510 ("[N]o
aspect of this Court is more
troubling than the fact that it has been framed without any
apparent respect for -
indeed, in. direct contravention of - the United States
Constitution."); Helms state-
ment, supra n. 37 (stating that treaty would undermine
guarantees of U.S. Bill of
Rights); Craig, supra n. 27. See also American Servicemembers'
Protection Act of
2001, supra n. 19, § 2(6) ("Any American prosecuted by the
Court will, under the Rome Statute, be denied procedural
protections to which all
Americans are entitled under the Bill of Rights to the United
States Constitution,
such as the trial by jury.").
[Vol. 50
political and judicial institutions.60 In the past the United
States has

bridged differences between an international arrangement and
inter-
nal practice by various means. A favored method has been to
ratify a
treaty subject to reservations that conformed U.S. treaty
obligations
to the constraints of the U.S. Constitution. 6 1 The United
States
sought the same leeway at Rome; nonetheless, the treaty
contains an
explicit ban on reservations. 62 Likewise, it failed to persuade
confer-
ees to permit states parties to avoid ICC prosecution for some
crimes
during a so-called opt-out period. 6 3 Finally, of course, the
United
States lost the considerable influence it might have had if the
ICC
had been subordinated to the Security Council. These losses,
oppo-
nents argue, forebode an ICC that could work to the detriment
of U.S.
soldiers and U.S. sovereignty.
III. THE U.S. CONSTITUTION AND THE ICC STATUTE
Opponents' objections to the International Criminal Court inter-
mingle basic questions about the court's assertedly
undemocratic
foundations with concerns about specific legal and
constitutional re-
straints. This report now focuses on these latter concerns,
consider-
ing whether U.S. law clashes with the ICC Statute, in the
discrete
areas of prosecutorial power, immunity and other legal barriers

to
prosecution, defense rights, surrender of fugitives, and
imprison-
ment.64 It then examines whether the U.S. constitutional
framework
would allow reconciliation with the ICC Statute.
60. See Bolton statement, supra n. 46 (arguing that ICC Statute
lacks checks and
balances to be expected in a constitutive document).
61. See, e.g., U.S. Reservations, Understandings, and
Declarations, International
Covenant on Civil and Political Rights, nos. 1(1-3), II(1),
111(2), IV, 138 Cong. Rec.
8068 (1992). The U.S. practice of conditioning membership in
treaty regimes has pro-
voked controversy. See generally Schabas, "Invalid
Reservations to the ICCPR: Is the
United States Still a Party?," 21 Brooklyn J. Int'l L. 227 (1995).
62. ICC Statute, supra n. 1, art. 120; see Scheffer statement,
supra note 26 (ob-
jecting to the ban on reservations). Cf. Bolton statement, supra
n. 46 (stating that
approval of the ICC Statute would undercut reservations U.S.
made when ratifying
Genocide Convention).
63. See Scheffer statement, supra n. 26 (describing unsuccessful
U.S. bid for "10-
year transitional period" when states parties could choose to
shield their nationals
from prosecution for crimes against humanity or war crimes).
The ICC Statute does
provide a seven-year opt-out period for war crimes. See ICC

Statute, supra n. 1, art.
124; Amann, "Harmonic Convergence? Constitutional Criminal
Procedure in an Inter-
national Context," 75 Ind. L.J. 809, 863 (2000) (explaining how
this provision satis-
fied French demands) [hereinafter Amann, Convergence].
64. This article looks only at the ICC Statute itself. It does not
review any defini-
tion of aggression nor proposed Elements of Crimes or Rules of
Procedure and Evi-
dence, all of which await consideration and approval of at least
two-thirds of the
Assembly of States Parties. See ICC Statute, supra n.1, arts.
9(1), 51(1), 121, 122.
2002]
A. Prosecutorial Power
Aiming to "put an end to impunity" for those who commit "the
most serious crimes of concern to the international community,"
65 the
ICC Statute confers on the prosecutor significant powers. In
addition
to being able to self-initiate an investigation, 6 6 in some
circum-
stances, the prosecutor would be permitted to gather evidence
inside
a state's territory yet outside the presence of authorities of that

state.67 The Constitution authorizes Congress to enact laws,
includ-
ing those that "define and punish . . . Offences against the Law
of
Nations," and the President to execute those laws.68 It gives the
President and the Senate joint responsibility for concluding
trea-
ties. 69 Nothing in the Constitution forbids conclusion of a
treaty or
other agreement that cedes some investigative authority. 70 In
point
of fact, the United States has spearheaded joint ventures in law
en-
forcement that share investigation with authorities in other
nation-
states.
71
B. Official Immunity
Article 27 of the ICC Statute deprives officials of any immunity
they may enjoy "under national or international law." 72 Thus,
the
ICC may exercise jurisdiction over a person regardless of
"official ca-
pacity as a Head of State or Government, a member of a
Government
or parliament, an elected representative or a government
official,"
and such status alone does not justify a lesser sentence. 73 The
provi-
sion builds on less detailed but similar ones in the laws that
governed
the trials at Nuirnberg and Tokyo, 74 in the Genocide
Convention, 75

65. Id., pmbl.
66. See id., art. 15.
67. See id., art. 99(4).
68. U.S. Const., arts. I, § 8, II.
69. Id., art. II, § 2 (stating that the President "shall have Power,
by and with the
Advice and Consent of the Senate, to make Treaties").
70. Accord Benison, "International Criminal Tribunals: Is There
a Substantive
Limitation on the Treaty Power?," 37 Stan. JInt'l L. 75, 107-11
(2001) (drawing anal-
ogy between ICC prosecutor and independent prosecutor within
United States, con-
cludes that Constitution does not forbid ceding authority to ICC
prosecutor).
71. See Amann, Convergence, supra n. 63, at 820-21 (describing
U.S. role in inter-
national law enforcement cooperation); Amann, "A Whipsaw
Cuts Both Ways: The
Privilege Against Self-Incrimination in an International
Context," 45 UCLA L. Rev.
1201, 1261-65 (1998) (same) [hereinafter Amann, Whipsaw].
72. ICC Statute, supra n. 1, art. 27.
73. Id.
74. Agreement for the Prosecution and Punishment of the Major
War Criminals
of the European Axis Powers and Charter of the International
Military Tribunal, Aug.
8, 1945, art. 7, 59 Stat. 1544, 82 U.N.T.S. 279 ("The official
position of defendants,

whether as Heads of State or responsible officials in
Government Departments, shall
not be considered as freeing from responsibility or mitigating
punishment."); Allied
Control Council Law No. 10: Punishment of Persons Guilty of
War Crimes, Crimes
Against Peace and Against Humanity, art. II(4)(a), Dec. 20,
1945, 3 Official Gazette of
the Control Council of Germany 50 (1946) (similar regarding
guilt, but permitting as
[Vol. 50392
and in the statutes of the ad hoc tribunals. 76 Nonetheless, the
strip-
ping of official immunity runs counter to the plain text of
numerous
national constitutions.
77
The U.S. Constitution contains no express grant of official
immu-
nity. The U.S. Supreme Court, however, has interpreted the
Consti-
tution to confer on the President and other governmental
representatives certain immunities from legal process. 78 The
Presi-
dent enjoys "absolute immunity from civil damage actions
arising out

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