International Criminal Court for the US: An Unnecessary Risk

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KATE MAXWELL
GUEST CONTRIBUTION AT SAIS WASHINGTON

It is not in the interest of the United States to become party to the Rome Statute of the International Criminal Court (ICC). In the international system formed following the fall of the Soviet Union, the United States is the world’s leading power, and as such takes an active role in ensuring global peace and stability. It is easy for other states not content with US action, particularly in the cases of Iraq and Afghanistan, to utilize mechanisms such as the ICC as a political tool to express this discontent. If the ICC were to claim jurisdiction over American government employees, it would constitute a violation of American sovereignty, and the US has a duty to its personnel to protect them from such violations.

The goal of the ICC is to hold accountable perpetrators of horrendous atrocities. Thus, the Court has jurisdiction over the crimes of genocide, crimes against humanity, war crimes and aggression. The real question here is: why is the ICC necessary? Generally it is the responsibility of national court systems to prosecute criminal actions. As we know, however, there are many states with justice systems and law enforcement mechanisms lacking the required capacity to be able to deal with the sheer magnitude of the criminal activity in question. The value of the ICC lies in its promise to handle all cases of this nature when a sovereign state is unwilling or unable to do so. It is the hope of many advocates of the ICC that it will no longer be needed in the future; that legal systems globally will develop to such a level that no outside judicial body would be needed to take on those tough cases. The United States however, has a fully developed criminal justice system in addition to a fully developed military justice system. It has the full capacity, and has used this capacity, to investigate and prosecute the crimes of individuals who are in violation of international law. There is no need for the United States to be party to the Rome Statute, and joining would only make it vulnerable to political manipulation.

At the same time, the United States has and should continue to support the important work of the ICC. As a permanent member of the United Nations Security Council, the United States has a role in deciding whether the Security Council will refer cases to the ICC. It has also offered rewards for fugitives wanted by the Court, and assisted the Court in areas of technical capacity. The United States should continue to be a supportive ally to the Court without becoming party to the Rome Statute.