Governors State University ICC Compartive International Law Discussion

Governors State University

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Human Rights Brief Volume 8 | Issue 1 Article 6 2000 A Global Court? U.S. Objections to the International Criminal Court and Obstacles to Ratification Teresa Young Reeves American University Washington College of Law Follow this and additional works at: Part of the Criminal Law Commons, Human Rights Law Commons, and the International Law Commons Recommended Citation Reeves, Teresa Young. "A Global Court? U.S. Objections to the International Criminal Court and Obstacles to Ratification." Human Rights Brief 8, no. 1 (2000): 15-16, 18, 30. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Human Rights Brief by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact Reeves: A Global Court? U.S. Objections to the International Criminal Cou A Global Court? U.S. Objections to the International Criminal Court and Obstacles to Ratification by Teresa Young Reeves* ifications of this principle of individual accountability that have n July 17, 1998, 120 nations voted to adopt the Rome fueled the United States’ opposition to the Rome Statute. Statute of the International Criminal Court (Rome Statute), establishing the world’s first permanent triGenocide, Crimes Against Humanity and War Crimes bunal for the crime of genocide, crimes against humanity, and The Rome Statute provides the Court with jurisdiction over war crimes. The adoption of the Rome Statute marked the end genocide, which occurs when a perpetrator intends “to destroy, of a four-year, multinational negotiating marathon. It also sigin whole or in part, a national, ethnical, racial or religious naled the end of the contentious, five-week “United Nations group” (Article 6). The U.S. delegation to the Rome Conference, Diplomatic Conference of Plenipotentiaries” (Rome Conferled by David Scheffer, former U.S. ambassador-at-large for war ence) at which 21 nations abstained from voting, and seven crimes, was not concerned that one of its citizens acting in an nations, including the United States, Israel, and China, opposed official capacity as a soldier or government representative would adoption of the Rome Statute. The United States opposed the commit the crime of genocide. Rather, the team was concerned Rome Statute because of its concern that it might one day have that, under the language of the Rome Statute, the ICC could misto surrender a citizen, particularly a construe a peacekeeping, pre-empmember of its government or armed tive defense, or other military action forces, to the jurisdiction of the InterThe United States opposed the Rome by a U.S. citizen as a commission by national Criminal Court (ICC). The that citizen of either a crime against Statute because of its concern that it might United States also feared, and conhumanity or a war crime. tinues to fear, that the ICC will deny one day have to surrender a citizen, Under the Rome Statute, a crime U.S. citizens the procedural due particularly a member of its government or against humanity includes, inter alia, process rights guaranteed to them murder, enslavement, torture, in the U.S. Constitution. Under the armed forces, to the jurisdiction of the apartheid, rape, sexual slavery, Rome Statute, it is possible that the International Criminal Court. enforced prostitution, forced pregICC could subject a U.S. citizen to its nancy, enforced sterilization, or any jurisdiction. In reality, however, the other form of sexual violence of narrow definition of the crimes, coupled with the Court’s funcomparable gravity (Article 7). Further, the individual must damental principle of deferring to national judicial systems, vircommit the act as “part of a widespread or systematic attack tually negate that possibility. If, however, the remote possibildirected against any civilian population . . . pursuant to or in furity of a U.S. citizen being indicted by the Court were to arise, therance of a State or organizational policy to commit such an it is important for the United States to note the congruency of attack” (Articles 7(1), (2)(a)). A war crime is defined under the the Rome Statute with the U.S. Constitution. Rome Statute as a crime committed during an international or internal conflict “as part of a plan or policy or as part of a The International Criminal Court large-scale commission of such crimes” (Articles 8(1), (2)(b), Pursuant to the Rome Statute, the ICC will be an indepen(2)(c)). Thus, in order for the ICC to charge an individual with dent and permanent criminal tribunal, headquartered in The a crime against humanity or a war crime, the individual also must Hague, The Netherlands (Article 3(1)). The Court will officially be found guilty of having a policy or plan to intentionally kill come into existence once 60 nations have ratified the treaty (Articivilians. Therefore, under the language of the Rome Statute, cle 126). The nations that ratify the treaty constitute the Assemunintentional civilian casualties would not constitute either bly of States Parties (Assembly) (Article 112). After the Court the commission of a crime against humanity or a war crime. is created, the Assembly will elect, by a two-thirds majority vote, Assuming, however, that the ICC considers indicting a U.S. cit18 judges to nine-year nonrenewable terms (Articles 36(6), izen for a crime against humanity or a war crime, the ICC’s prin(9)). The Assembly also will elect, by an absolute majority vote, ciple of complementarity to national judicial systems further safeone prosecutor and one or more deputy prosecutors to nineguards any such U.S. citizen from coming under a direct year non-renewable terms (Article 42(4)). As of November investigation or prosecution by the Court. 2000, 115 states have signed the Rome Statute and 22 nations have ratified it. Observers of the ICC expect the Court will The Principle of Complementarity come into existence as early as 2002. One of the founding principles of the ICC is its creation as Once established, the Court will have jurisdiction over the a court that will act to complement, rather than to substitute, crime of genocide, crimes against humanity, and war crimes national judicial systems (Preamble). The ICC’s function is not (Article 5). While ad hoc tribunals are formed only after the comto displace the criminal jurisdiction of any state, but rather to mission of such crimes, the ICC aims to prevent these crimes serve as an alternative judicial forum for states that are either from occurring in the first place. Unlike the United Nations “unwilling or unable genuinely” to prosecute a suspect on its own International Court of Justice, which deals only with disputes accord (Article 17). A determination by a panel of ICC judges among states, the ICC will have jurisdiction over individuals, that a state is “unable” to carry out an investigation or proseincluding heads of state and other government representacution requires either a literal inability by the state to prosecute tives. The ICC thus embodies the principle of individual accountthe perpetrator, or “a total or substantial collapse or unavailability ability that the justices at Nuremberg defined more than half of [the state’s] national judicial system” (Article 17(3)). It is a century ago: “crimes against international law are committed unlikely the United States would not be able to conduct a sufby men, not by abstract entities, and only by punishing indificient judicial proceeding to satisfy the requirements of the viduals who commit such crimes can the provisions of internaRome Statute. Moreover, the likelihood of the U.S. judicial tional law be enforced.” The ICC’s strength thus lies in its capacity to hold individuals responsible for committing the continued on next page most serious crimes of international concern. Yet it is the ram- O Published by Digital Commons @ American University Washington College of Law, 2000 15 1 Human Rights Brief, Vol. 8, Iss. 1 [2000], Art. 6 The Global Court, continued from previous page system suffering a total collapse at any time in the foreseeable future is remote. Thus, the U.S. concern for its citizens appears to turn on the definition of “unwillingness.” Under the Rome Statute, a panel of ICC judges is empowered to determine that a state is unwilling to investigate or prosecute a perpetrator only in three circumstances: when it appears the proceedings are designed to shield the perpetrator from criminal responsibility; when the proceedings have been unjustifiably delayed so as not to bring the perpetrator to justice; or when the proceedings lack independence and impartiality or are being conducted in a manner inconsistent with the state’s intent to bring the perpetrator to justice (Article 17(2)). Therefore, the ICC would directly prosecute a U.S. citizen only if it ruled that the U.S. judicial process was so biased that it was unwilling to carry out a valid investigation and prosecution of an individual suspected of committing a crime of genocide, a crime against humanity, or a war crime. Congressional Opposition to the Rome Statute During the Rome Conference, Senator Jesse Helms (R-NC), chair of the Senate Foreign Relations Committee, declared that the Rome Statute would be “dead on arrival” in Congress unless the ICC incorporated a provision exempting all U.S. citizens from its jurisdiction. Further, on June 14, 2000, the senator introduced a bill that would threaten the effect of the ICC. Senate bill S. 2726, the American Servicemembers’ Protection Act of 2000 (Protection Act), grants U.S. military personnel, and many categories of elected and appointed officials of the U.S. government, protection from investigation or prosecution by the ICC. Also on June 14, Representative Tom DeLay (R-TX) introduced a similar bill, H.R. 4654, in the House. The Protection Act prohibits all U.S. federal and state government entities, agencies, and courts from cooperating with the ICC. Under the Protection Act, cooperation includes any type of assistance relating to the investigation, arrest, extradition, or transit of suspects. In addition, the Protection Act prohibits the U.S. president from sending U.S. troops to participate in select UN peacekeeping operations occurring on territories of states that have ratified the Rome Statute. The Protection Act One of the founding principles of the ICC is its creation as a court that will act to complement, rather than to substitute, national judicial systems. prohibits such U.S. military assistance because of the danger that a U.S. servicemember could be found by the ICC to have engaged in an activity that might render him or her accountable before the ICC. Further, the Protection Act explicitly states that, under the Rome Statute, U.S. citizens will “be denied many of the procedural protections to which all U.S. citizens are entitled under the Bill of Rights to the United States Constitution, including, among others, the right to trial by jury, the right not to be compelled to provide self-incriminating testimony, and the right to confront and cross-examine all witnesses for the prosecution.” This statement, however, is not wholly accurate. Contrary to the Protection Act’s assertion, the Rome Statute is consistent with the U.S. Constitution. Constitutionality of the Rome Statute The Rome Statute does not deny U.S. citizens their rights under the U.S. Constitution. According to Yale Law School Professor Ruth Wedgwood’s extensive study, there “is no forbidding constitutional obstacle to U.S. participation in the treaty.” Wedgwood cites five reasons for this conclusion, three of which will be addressed here. First, historically the United States has signed treaties allowing U.S. participation in international tribunals that could affect the lives and property of U.S. citizens. For example, the North American Free Trade Agreement and the World Trade Organization subject U.S. businesses to judicial processes that do not mirror those found in an American courtroom, i.e., fact-finding by a panel of judges rather than by a jury. Even before the U.S. delegation team headed to Rome during the summer of 1998, the U.S. State Department issued a statement signaling an impending U.S. opposition to the ICC. Second, the ICC does not offend U.S. constitutional notions of due process because the Rome Statute, as carefully negotiated by Scheffer and his team at the Rome Conference, comports with the procedural protections and safeguards provided to U.S. citizens under the U.S. Constitution. Wedgwood and Monroe Leigh, a member of the American Bar Association, have compiled lists citing articles of the Rome Statute that both address and guarantee due process rights. Their lists include, inter alia, the right of the suspect: to have timely notice of charges filed against him (Article 60(1)); to a presumption of innocence (Articles 66(1), (2)); to the privilege against self-incrimination (Articles 55(1)(a), (1)(b), 67(1)(g)); to the assistance of counsel (Articles 55(2)(c), 67(1)(b), (1)(d)); to a speedy trial (Article 67(1)(c)); to cross-examine adverse witnesses (Article 67(1)(e)); to innocence unless the prosecutor has proved guilt “beyond reasonable doubt” (Article 66(3)); and to be present at the trial (Article 63). Third, the crimes within the ICC’s jurisdiction under which a U.S. citizen could be indicted are generally those that would ordinarily be administered through the U.S. military courtsmartial system or through extradition of the U.S. suspect to the foreign nation where the criminal violation occurred. Specifically in response to H.R. 4654, on July 25, 2000, Leigh submitted a statement to the House Committee on International Relations in which he asserted the constitutionality of any potential criminal proceedings by the ICC against a U.S. citizen. Leigh’s statement emphasizes that members of the U.S. armed forces are precluded the right to jury trials under the Fifth Amendment of the Constitution, which states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” Moreover, the language of the Sixth Amendment, which concerns criminal trials, extends the guarantee of a jury trial only to the state and district where the crime was committed: “In all criminal proceedings, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. . . .” Therefore, a person who commits a crime in a foreign country risks extradition to that foreign country and, accordingly, has no constitutional guarantee of a jury trial. In arguing that the Rome Statute does not offend U.S. constitutional notions of due process, Wedgwood cites three continued on page 18 16 2 Reeves: A Global Court? U.S. Objections to the International Criminal Cou Inter-American System, continued from previous page commutation from the Jamaican Privy Council violated their right to apply for amnesty, pardon, or commutation of their sentence under Article 4(6) of the American Convention. The Jamaican Privy Council may pardon or commute a death sentence under Articles 90 and 91 of the Constitution of Jamaica, but prisoners have no procedural guarantees. Decision: On April 13, 2000, the Commission ruled Jamaica had violated Articles 4(1), 5(1), 5(2), 8(1), and 4(6) of the Con- The Commission criticized the Peruvian Intelligence Service’s (SIN) use of wiretapping, espionage, and physical surveillance to harass and intimidate opposition presidential candidates. vention by disallowing the petitioners to present mitigating evidence at an individualized sentencing hearing before imposing the death penalty. The Commission found the Jamaican Privy Council’s power to grant a pardon or commute a death sentence does not serve as a form of judicial review because under Jamaican law the petitioners have no effective right to apply for this form of discretionary relief. The Commission recommended the State commute the death sentences and offer the petitioners compensation. Additionally, the Commission recommended Jamaica adopt domestic legislation requiring the death penalty be imposed only in accordance with the American Convention and pass legislation allowing criminal defendants to apply for amnesty, pardon, or commutation of the death penalty. The “Second Report on the Situation of Human Rights in Peru” On June 2, 2000, the Commission issued the “Second Report on the Situation of Human Rights in Peru” (Report), following 18 an on-site visit in November 1998. The Report described measures implemented by the executive, legislative and judicial branches of government, restricting the right of political participation of its citizens, as guaranteed by Article 23 of the Convention. The Commission criticized the Peruvian Intelligence Service’s (SIN) use of wiretapping, espionage and physical surveillance to harass and intimidate opposition presidential candidates. In documenting the State’s interference in citizens’ participation in the political process, the Commission referred to contentious cases from Peru currently under review, previously decided, or already submitted to the Inter-American Court of Human Rights. These included the Case of Mariela Barreto Riofano, the Case of Susana Higuchi Miyagawa, and the Case of Baruch Ivcher Bronstein. The Commission also reviewed reports by the Organization of American States Electoral Observation Mission, the Commission’s Rapporteur for Freedom of Expression, the Peruvian Human Rights Ombudsman, and non-governmental organizations within Peru that observed the April 9, 2000, presidential and legislative elections. These reports documented serious abnormalities and persistent inequities in the voting process, including the tallying of the votes. Consequently, the Electoral Observation Mission and other election monitoring organizations decided against observing the second round of elections on May 28, 2000, which ultimately declared Fujimori the winner of the presidency. The Commission concluded the 2000 elections were not free and fair in light of international standards enshrining the right of political participation. The Commission further held that Peru should hold another election, guaranteed to be free and fair, within a reasonable time period, to uphold the rule of law and guarantee the right of political participation. As of November 27, 2000, Fujimori has resigned the presidency and been replaced by former congressman Valentin Paniagua.  * Terri J. Harris is a J.D. candidate at the Washington College of Law. The Global Court, continued from page 16 Ratifications of the ICC Statute as of November 2000. procedural provisions of the Rome Statute that distinguish the ICC from U.S. common law procedures. First, the Rome Statute provides for the use of a fact-finding panel of judges rather than a jury (Articles 34, 39(2)(b)(ii), 74). As discussed above, historic U.S. treaty participation already subjects U.S. citizens to this procedure. Second, verdicts rendered by the ICC are by a vote of at least two judges (Article 74(3)). Finally, the ICC prosecutor may file an appeal based on errors of fact, law, and procedure (Article 81(1)(a)). Because U.S. citizens who commit crimes abroad are generally subject to the rules either of foreign courts or of the U.S. military courts-martial system, it is safe to assume ...
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