Dear Colleagues: We’d Like to Share Some Lies with You About the ICC

by Kevin Jon Heller

My UN Dispatch friend Mark Leon Goldberg notes today that a group of Representatives are circulating a “Dear Colleague” letter urging their colleagues to support a resolution “opposing the United States joining the Rome Statute or participating in the upcoming review conference.”  Reading the letter is an infuriating experience, not only for its ridiculously bad grammar — how does one “join” a statute? — but also because of its bald-faced lies about the ICC.  Here is the text of the letter:

Protect U.S. Troops and American Sovereignty from the International Criminal Court

Cosponsor H.Con.Res. 265, a Resolution Raising Concerns

Current Cosponsors: Ros-Lehtinen, L. Smith, Garrett, McCotter, Lamborn, W. Jones, Burton, Franks, Chaffetz, Latta, Bachmann, Pitts, Akin, Kingston, Gohmert, Conaway, S. King, McClintock, Gingrey, Burgess, Manzullo, Marchant, H.Brown, Wittman, Jordan, Poe, Posey, Souder

Dear Colleague,

We urge you to join us in expressing the sense of the Congress that the United States should neither become a signatory to the Rome Statute on the International Criminal Court nor attend the Review Conference of the Rome Statute in Kampala, Uganda in May 2010.

That American troops could face criminal indictments in a foreign court for actions taken in the defense of U.S. national security interests is abhorrent. Yet in September 2009 the Office of the Prosecutor for the International Criminal Court announced that it was investigating accusations of war crimes and crimes against humanity allegedly committed by U.S. and NATO forces fighting in Afghanistan. This presumably would implicate members of both the Bush and Obama Administration.  As such, today we are closer than ever before to a reality where American soldiers, Marines, and other military personnel could be brought before an international tribunal, without any of their constitutional rights, to face criminal charges.

The United States must not become a party to the treaty that makes such charges possible—the Rome Statute on the International Criminal Court. But in August 2009 Secretary of State Hillary Clinton stated that it was a “great regret that we are not a signatory” to the Rome Statute.

A major step on the road towards U.S. membership in the ICC is mere months away. From May 31 to June 11 an international conference will be held in Kampala, Uganda to consider proposals for amendments to the Rome Statute.  The Administration’s plan to participate in the Review Conference is in error. Engagement will do nothing to remedy the major defects of the Rome Statute, including:

  • That the ICC claims the power to exercise authority and jurisdiction over the citizens of nations—including the United States—that have not ratified the Rome Statute;
  • That the Rome Statute seeks to prohibit the “crime of aggression,” an offense that will inevitably be manipulated for political purposes to the detriment of U.S. national security interests, as the U.S. is regularly accused of “aggression” in places such as Iraq and Afghanistan, and;
  • The Rome Statute would revoke rights guaranteed by the Constitution to American military personnel and U.S. government officials charged with crimes, including the right to a jury trial by one’s peers, protection from double jeopardy, the right to confront one’s accusers, and the right to a speedy trial.

To cosponsor H. Con. Res. 265, a resolution opposing the United States joining the Rome Statute or participating in the upcoming review conference, please contact Kristine Michalson in Congressman Lamborn’s office by emailing Kristine [dot] Michalson [at] mail [dot] house [dot] gov.

Sincerely,

Doug Lamborn, Member of Congress
Thaddeus McCotter, Member of Congress
Scott Garrett, Member of Congress

In the words of the immortal Chris Rock, these people — which include those noted political theorists Steve King and Michele Bachmann — are just ign’ant.  Let’s start with the most obvious lies, concerning the Rome Statute’s “revocation” of constitutional rights.  The right of confrontation:

Article 67(1)(e):  In the determination of any charge, the accused shall be entitled to… examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.

The right to a speedy trial:

Article 67(1)(c):  In the determination of any charge, the accused shall be entitled to.. be tried without undue delay.

And double jeopardy:

Article 20

1. Except as provided in this Statute, no person shall be tried before the Court with respect to
conduct which formed the basis of crimes for which the person has been convicted or acquitted by
the Court.

2. No person shall be tried by another court for a crime referred to in article 5 for which that
person has already been convicted or acquitted by the Court.

It’s true, of course, that the ICC does not use juries.  But even that claim is misleading, because Americans who commit crimes in civil-law countries are tried without juries all the time — it’s called territorial jurisdiction, which the US has never challenged.  Indeed, if the sponsors of the legislation are really worried about those evil “foreign courts,” they should prefer ICC trials to trials in a civil-law country — after all, the former are far more adversarial than the latter.

I could go on, but what’s the point?  The sponsors of the legislation aren’t interested in facts or rational debate; if lying is the most effective strategy for whipping up opposition to the ICC, that’s fine with them.  Pathetic — but business as usual in American politics.

P.S.  Someone might want to let the various Representatives know that the US doesn’t have to “join” the Rome Statute for Americans soldiers and officials to be subject to ICC jurisdiction.  Because Afghanistan is a member of the Court, they already are…

http://opiniojuris.org/2010/04/27/dear-colleague-wed-like-to-share-some-lies-with-you-about-the-icc/

16 Responses

  1. It is true that Americans who commit crimes against the laws of a foreign country when abroad can be tried there without raising any constitutional issues. The obvious difference is that if the ICC could prosecute Americans for crimes committed entirely in the United States, a jurisdiction given to it solely by the treaty. Thus whether giving such jurisdiction would be constitutional seems to be a fair question.

    Imagine if the U.S. got frustrated with the slow pace of terror prosecutions and the difficult of closing Gitmo, and signed a treaty creating the U.S.-Afghan Terror Tribunal, that would try citizens of either country for various crimes in the absence of a jury. Surely anyone who cares about civil rights would be up in arms about submitting U.S. citizens to such a tribunal; but the ICC is simply a larger version of this hypothetical. If you can strip the jury trial right for international courts you like (ie, ones you trust and think are a good idea), you can also strip it for ones you don’t like.

  2. And of course the fact that the Court has a double jeopardy provision does not mean it has anything like the content of the US Constitutional norm. Presumably constitutional rights include judicial definitions and expansions of such rights. For example, in most civil law jurisdictions prosecutors can appeal an acquittal, which is unconstitutional here. Also, the Court’s rule allow a retrial for a defendant that has been acquired by US courts. Signing a treaty that allows for such subsequent prosecutions also seems to raise fair constitutional issues, and I’m actually quite surprised there has not been more concern by civil libertarians.

  3. Eugene,

    I’d like to think that most Americans would be okay with the ICC prosecuting government officials who committed genocide or crimes against humanity against Americans.  After all, the threshold for such purely internal crimes is extremely high. 

    As for the double-jeopardy comment, you are absolutely right that the ICC’s appeals system is based on the civil-law model, and that is indeed a relevant difference.  But the US has no problem with allowing civil-law prosecutors to appeal acquittals of Americans, so why is the ICC any different?  And, of course, there is absolutely no double-jeopardy provision that prevents different states from trying an American again and again for the same crime, while the same is not true of the ICC, which prohibits states from trying defendants convicted or acquitted by the Court and vice-versa.  To be sure, as you say, the ICC does not have to defer uncritically to a state prosecution (although states cannot second-guess an ICC prosecution), but that is necessary to prevent states from divesting the ICC of jurisdiction by engaging in sham prosecutions.

  4. Professor Heller,

    You’ve been very vocal in your past criticism of the ICTY with respect to its proceedings against Dr. Karadzic; is it so unreasonable to be concerned that the ICC might exercise its discretion in similarly abusive ways with respect to American military or civilian members if the United States became a signatory to the treaty? It seems that many of the same dangers would exist, though admittedly I haven’t examined the differences between the procedural and jurisdictional grants of the ICC and the ICTY.

    I don’t think that any objection to becoming a signatory should extend to nonparticipation in the Review Conference, however. Once we withdraw from the ongoing discussion, and take our ball and go home, as it were, then we risk losing any ability to affect, through persuasion and diplomacy, the outcome.

  5. The constitutional problem is that the ICC decides what constitutes a sham. As for prosecution by civil law countries or states, the difference is they already have jurisdiction over the crimes. Here, the U.S. is conferring jurisdiction on a  tribunal that would not otherwise have it.

  6. @Eugene Kontorovich: Wouldn’t that problem be fixed more appropriately by allowing for the possibility of an “as applied” challenge against a particular ICC case, where the Supreme Court decides that in that particular case extradition to the ICC would be unconnstitutional? After all, in the US the constitution is of higher rank than any treaty. I don’t see the need for declaring the entire treaty unconstitutional based on the small possibility that the ICC (meaning the OTP, the Trial Chamber and the Appeals Chamber all at the same time) would deliberately or inadvertently declare a US trial a sham when it is not.

  7. A minor point.  US military personnel are not charged in civilian court but rather in court martials under the UCMJ.  Althought he constitutionality of these courts has been consistently upheld and/or assumed, they are in important respects different from civilian courts and do not provide full constitutional guarantees.  For example, military defendants are not entitled to a trial by impartial jury.  It is a bit unfair, therefore, to criticize the ICC for not providing US servicemen and women rights they do not have in their own country.   

    If I were a US solider, I’d take the ICC system over a court martial.   The opposition to the ICC is largely, I suspect, out of a concern for policy makers. 

  8. I will not comment on the wisdom of the U.S. becoming party to the Rome Statute or of its participating in certain aspects or proceedings of the ICC.  However, in addition to (in some cases to clarify and emphasize) what Martin and Kevin said, let us also not forget:

    (1) that the gravity requirement of ICC jurisdiction will eliminate most cases involving U.S. soldiers;

    (2) that double jeopardy protection is not absolute even in the U.S., where separate sovereigns (state and federal or, as Kevin mentioned, different states) may try the same individual for the same conduct…all this without the need of determining the prior prosecution was a sham and even if it resulted in a conviction and sentence (just ask Terry Nichols, of Oklahoma City bombing fame, who twice faced the death penalty in federal then state courts);

    (3)  that the Rome Statute does not allow for ICC jurisdiction over crimes committed prior to its effective date for a party (without a declaration by that party);

    (4)  that the Axis powers were not party to the London Charter establishing the International Military Tribunal, or to the Constitution of the Tribunal (in other words, the U.S. helped to set the precedent for establishing an international tribunal to exercise jurisdiction over nationals of states not party the treaty creating the tribunal — unless one adopts the fiction that occupying powers may consent to that on behalf of the state(s) they occupy); and

    (5)  that the former Yugoslav republics were not (if memory serves) members of the UN at the time the UN Security Council created the ICTY to punish their “nationals” (another decision in which the U.S. played a key role).

    I could go on.  Again, I do not speak to the wisdom of any specific national policy toward the ICC.  I merely note that these objections are problematic given our prior approach to these issues.

  9. Response…
    Some additional points: First, the ICC, some ad hoc international criminal tribunal, and foreign courts — all exercising universal jurisdiction over genocide, CAH, and war crimes — are not bound by the U.S. Constitution and there is no constitutional problem posed per se by extraditing a U.S. national to any such forum for prosecution.  We extradite our nationals to foreign countries quite often, and even aliens such as Mr. Noriega (to France).
    Second, U.S. nationals can already be prosecuted before the ICC if relevant crimes were committed in the territory of a party to the treaty (such as Afghanistan), as long as a party to the treaty (such as Italy) renders the accused, the Prosecutor acts proprio motu to initiate an investigation, or the Security Council renders (not likely given the veto).
    See 33 Vand. J. Transnat’l L. 1 (2000).  And, yes, IF the U.S. ratifies the treaty it can take advantage of complimentarity and continue with a U.S. investigation in good faith or request the U.S. national to be rendered or extradited to the United States.  All of this is better, by the way, than a Syrian or Iranian military commission (with stinky prodecures) that exercises universal jurisdiction over a captured U.S. national.  And if we ratify the treaty, we could request that the U.S. accused be rendered to the ICC as an alternative to extradition to the U.S. (which neither country might prefer).
    Jordan

  10. @Milan:  You make an important point regarding jury trial rights for U.S. service members.  However, those intimately familiar with the U.S. court-martial system, including scholars and practitioners I’ve met from other countries, would in most cases prefer it to any other court or tribunal.  While defendants at courts-martial may not receive certain constitutional protections, other rights they are given (by statute and/or implementing rules) far exceed those of most (if not any other) U.S. or foreign court…and which in many cases surpass minimum constitutional requirements.

  11. John,

    I don’t disagree with you.  In fact, I have heard (anecdotally) that the reason that the Bush administration created new procedures for the military tribunals as opposed to adopting UCMJ procedures was that they were concerned about obtaining convictions under that system.  That being said, from the perspective of a defendant, the ICC may have certain advantages over a court-martial e.g., a non-military judge, no death penalty etc., 


  12. Professor Heller: “Americans who commit crimes in civil-law countries are tried without juries all the time — it’s called territorial jurisdiction, which the US has never challenged”
    Not for persons vacationing in the South of France…but that is one purpose of Status of Forces Agreements, isn’t it? To address how foreign jurisdiction should be applied to US personnel deployed under orders to serve in another country.
    As I understand it, when UN troops are loaned to the UN Secretariat by their respective national governments, those governments also explicitly reserve the right to prosecute and punish their own troops for any malfeasances irrespective of the local laws within their areas of operation.

  13. [T]here is no constitutional problem posed per se by extraditing a U.S. national to any such forum for prosecution.  We extradite our nationals to foreign countries quite often, and even aliens such as Mr. Noriega (to France).

    Indeed. I’d forgotten about that one. The US does not have a Soering-style ban on extraditing (or otherwise rendering) people to places where their rights will likely be violated.

  14. The troops are whitewash in this message – the operative phrase is

    “This presumably would implicate members of both the Bush and Obama Administration.”

    These persons are just hiding behind the troops to avoid any reckoning for their unilateralist ambitions.

    Best,
    Ben 

  15. The problem with the as applied approach is the treaty’s non-reservation clause, which means if you’re in for a penny, you’re in for a pound. 

    The court would have jurisdiction over U.S. civilians as well as servicemen. I presume most cases would be against civilians (political leaders).

    Obviously there is nothing unconstitutional about the ICC exercising jurisdiction over Americans that it gets custody/jurisdiction of through other countries, ie Afghanistan. But US accession would expand jurisdiction, and it is that margin that is unconstitutional problematic, the extra jurisdiction that would be given by the US joining.

  16. The problem with the as applied approach is the treaty’s non-reservation clause, which means if you’re in for a penny, you’re in for a pound. 

    That’s absolutely true. A SCOTUS ruling finding a particular extradition to the ICC unconstitutional would put the US in violation of the Rome Statute. But then, so did their ruling in Medellin v. Texas, and I don’t see anyone in the US worrying about that.

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