ICC and America
Over the past few years, the International Criminal Court (ICC or the Court) has been igniting controversy the world over. As more countries rallied behind it, more objections have been made, particularly from Americans, regarding what many view as fundamental flaws. I have chosen two papers to compare and contrast the different viewpoints taken by the authors when reflecting upon Americas involvement with the ICC. One calls for total rejection of the ICC, the other weighs the risks and benefits and calls for revision but acceptance.
The first article, entitled National Constitutional Compatibility and the International Criminal Court, is written by Helen Duffy and published in the Duke Journal of Comparative and International Law. The second article, entitled Reasonable Doubt: The Case against the Proposed International Criminal Court, is written by Gary T. Dempsey and published online at the Cato Institute website. Duffys article was published late in 2001, a contrast to Dempseys article which was published in 1998, just one day prior to the International Rome conference on July 17th that resulted in the establishment of the ICC. Many of the incongruencies in the ICC treaty that troubled Americans three years ago have yet to be brought into balance with American values. These two papers give similar, although at times slightly different, viewpoints on the issue.
Dempsey criticizes the ICC before it has even been birthed into existence. Specifically, the court threatens to diminish Americas sovereignty, produce arbitrary and highly politicized justice, and grow into a jurisdictional leviathan. He expresses his lack of faith in the Courts ability to complement national governments and their respective judicial systems while refraining from infringing upon their sovereignty. He is explicitly clear in his position, stating in his paper that, For those and other reasons, the U.S. Senate and U.S. House of Representatives should have sufficient grounds torefuse to ratify and to fund the International Criminal Court.
Duffy brings the issue up, adding pertinent information concerning other governments constitutions and how some other nations have gone so far as to amend their own constitution to accommodate their acceptance of the ICCs regulations. A small number of states have decided to amend their constitutions, and there are variations as to the manner, timing and underlying rationale of amendment. Also, in many countries, initial concerns have given way to the view that the Rome Statute and the constitution can in fact be read harmoniously. Here we can see that Duffys view contrasts sharply with Dempseys, because she believes that using amendment and interpretative approaches to complying with the ICCs regulations will indeed ultimately result in harmony between it and the separate governments of the world. She suggests a combination of the two approaches.
Besides posing a threat to Americas sovereignty, some aspects of the ICC pose a threat to the rights of American citizens. Many legal protections that Americans are entitled to under our constitution have no place so far in the ICCs treaty. Dempsey points out that the prohibition against double jeopardy, the right to trial by an impartial jury, and the right of the accused to confront the witnesses against him are American legalities not present in the ICC, and by agreeing to hand over our nationals for trial in an internationally-regulated courtroom we are denying them these constitutional rights and participating in an unconstitutional act.
Duffy imparts to us that although there are numerous flaws still present in the ICC, only time will smooth them out, and until then we are in a position only to work with it. In an unprecedented move in international law, the ICC states that it will bind to the rules of its treaty all nations, not only those that have agreed to abide by its regulations. Because of this, Duffy feels that constitutions should have clauses through which they give superiority to the ICC in the event it intervenes, thereby eliminating the conflict between them.
As an institution, the ICC acts as police, prosecutor, judge, jury and jailer. These functions are all performed by ICC staff, or under their supervision, with only bureaucratic divisions of authority. Furthermore, the ICC is the sole judge of its own power, and no process exists to appeal its decisions, however irrational or unjust those might be. Dempsey is afraid that, besides undercutting our rights granted to us by the U.S. constitution, the ICC will become a leviathan if given this kind of power. Judgment is passed by a panel of judges and the lack of an appeal process is disturbing.
The Court cannot, for example, overrule a national investigation it deems unsatisfactory, unless the ICC Prosecutor can satisfy the Court that the national authorities can not or will not do justice in the particular situation or case. But Duffy finds that somewhat of a contradiction of terms. If the Court finds it unsatisfactory, doesnt that imply that the Court already believes the authorities are not doing justice? How much convincing would they need? Duffy again points out the need for revision in the treaty.
Both papers share a similar overview from remarkably different viewpoints. Many of the somewhat extremist views that Dempsey takes are tempered through Duffys call for consideration and revision. As the ICC moves forward with the trial of Slobodan Milosevic and others to come, it is important to cooperate harmoniously with the rest of the worlds nations, seeking justice and guidance. At the same time, we must not lose sight of those rights and responsibilities that make us one of the greatest nations on earth.
National Constitutional Compatibility and the International Criminal Court. Duke Journal of Comparative and International Law. Helen Duffy. 2001. http://www.law.duke.edu/shell/cite.pl?11+Duke+J.+Comp.+&+Int’l+L.+5
Reasonable Doubt: The Case against the Proposed International Criminal Court. Gary T. Dempsey. 16 July. 1998. http://www.cato.org/pubs/pas/pa-311.html