…. I speak to you not as a candidate for President, but as a citizen — a proud citizen of the United States, and a fellow citizen of the world…the burdens of global citizenship continue to bind us together.
So spoke then-presidential candidate Barack Obama before an adoring crowd last July in Berlin, Germany. Since then, President Obama has affirmed that the hope and change on which he campaigned amounts, in foreign policy terms, to making a decent showing in a global popularity contest at the expense of vital American national interests.
Indeed, the global citizenship “burdens” the President has in mind are significant and numerous, judging by the nature of the various treaties he and his representatives are seeking to advance. For instance, the Law of the Sea Treaty would severely constrain America’s ability to protect its security and economic interests by establishing a new global bureaucracy to oversee territorial disputes, free passage, and exploitation of seabed resources. The Comprehensive Nuclear Test Ban Treaty would effectively cripple our nuclear deterrent capability by prohibiting any explosive nuclear testing. And the yet-to-be-named post-Kyoto agreement on climate change would likely hinder our economic development through regulation of greenhouse gas emissions.
The depth of the President’s sense of global civic duty is also evident in the recent move to engage with the United Nations Human Rights Council, whose membership includes some of the world’s most egregious human rights violators and other undemocratic countries that use their position to launch hyper-politicized attacks on democratic Israel. The administration is simultaneously dismantling the Guantanamo Bay detention facility, a move that will better position hardened terrorists to harm us and our allies. All of this is being done in the name of securing the coveted approval of European and Middle Eastern capitals.
Among the global initiatives being warmly embraced by the new administration is the Rome Statute of the International Criminal Court that could, literally, put the United States on trial, one American at a time.
Created by the 1998 treaty and formally established in 2002, the ICC was designed to investigate and prosecute those accused of genocide, war crimes, and crimes against humanity. Most recently, the Court handed down its first arrest warrant against a sitting head of state: Omar al-Bashir, President of Sudan, accused of committing crimes against humanity and war crimes against the people of Darfur.
The Rome Statute outlines the preconditions for the ICC’s assertion of jurisdiction, stating that the Court theoretically may assert jurisdiction when the accused is a national of a State party, or the alleged crimes were committed on the territory of a State party. The Rome Statute goes on to explain that, assuming either of these preconditions is met, the Court’s jurisdiction may be officially triggered by either a State party referring the matter to the Prosecutor, or the Prosecutor initiating his/her own investigation.
Additionally, the Rome Statute identifies two scenarios where the questions of whether the accused is a State party national or the crime was allegedly committed on the soil of a State party are irrelevant. First, the matter may be referred to the Court by the U.N. Security Council, as was the case with al-Bashir. Second, a State that is not party to the Rome Statute may choose to accept the Court’s jurisdiction for the specific crime in question — in other words, a non-party alleging a crime was committed on its soil may invoke the Court’s jurisdiction for purposes of addressing that specific crime.
The United States is not currently a party to the Rome Statute, but this does not necessarily protect it from the Court’s jurisdiction. President Clinton signed the treaty towards the end of his administration but noted his own concerns at the time about the treaty’s “significant flaws,” specifically that the Court “will not only exercise authority over personnel of states that have ratified the treaty, but also claim jurisdiction over personnel of states that have not…9 D In fact, President Clinton was so concerned about the treaty that he specifically stated he “did not recommend that my successor submit the Treaty to the Senate for advice and consent until our fundamental concerns are satisfied.” President Bush subsequently “un-signed” President Clinton’s signature, out of concern that the ICC would act as a politically driven forum for the prosecution of American officials and soldiers. Although President Bush did allow the Security Council to refer the situation in Darfur to the ICC in 2005 — at one point even offering to assist the ICC in its investigation of possible war crimes in Sudan — his administration was clear in maintaining American reservations about the Court itself.
As a presidential candidate, Obama indicated with respect to the ICC that he would “consult thoroughly with our military commanders and also examine the track record of the court before reaching a decision on whether the U.S. should become a party to the ICC.” He has since indicated that he would continue to support the ICC’s investigation regarding Darfur, but has yet to comment directly as President on whether he will commit the United States to the Rome Statute.
Now that he is the Commander-in-Chief, Mr. Obama is obligated to take a much harder look at the nature of the ICC, and the extent to which it is capable of being used in service to a political agenda, to the detriment of American national security. Consider the following:
* The Rome Statute already allows the ICC to assert jurisdiction even over countries that are not party to the treaty. The most likely scenario for a referral to the ICC — crimes are committed on the territory of a State party — does not require that the accused be a national of a State party. In other words, even under the present formulation of the treaty, the ICC can assert jurisdiction over a U.S. citizen even though the United States is not a party to the treaty by alleging that American military commanders or government officials committed war crimes on the soil of an ICC party. Moreover, as demonstrated by the Ivory Coast in 2005, even a non-ICC party can invite the Court’s jurisdiction to investigate specific crimes.
* Recent reports indicate that the ICC’s chief prosecutor, Argentine national Luis Moreno Ocampo, is actively exploring a request by the Palestinian Authority that the ICC investigate Israel — also a non-party to the Rome Statute — for war crimes allegedly committed by Israeli forces during the recent defensive action in Gaza. Not only is Israel not a party, but the Palestinian Authority is of course not a state. Ocampo’s response: “It’s very complicated. It’s a different kind of analysis I am doing. It may take a long time but I will make a decision [about asserting jurisdiction over Israel based on a referral from the Palestinian Authority] according to law.”
“Complicated” is one way to put it, although the Israelis are probably using other adjectives to describe this exercise.
* The ability of the ICC prosecutor to initiate an investigation without an express referral is an invitation to mischief. If the U.S. joins the ICC, since the temporal jurisdiction of the Court goes back to 2002, one can envision a situation where the ICC prosecutor initiates an investigation of American soldiers or officials relating to actions taken in Iraq, Afghanistan, or Pakistan, to name just a few possibilities — irrespective of whether such countries are themselves State parties to the Rome Statute.
* Proponents of the treaty sometimes identify as a safeguard the ICC’s “complementarity” rule. The Rome Statute states that a case is inadmissible to the ICC if a State having jurisdiction is already handling the matter, unless it is clear that the State is “unwilling or unable genuinely to carry out the investigation or prosecution.” Some therefore will argue that the United States need not fear a referral to the ICC provided it is “genuinely” pursuing justice with respect to any of its citizens accused of war crimes. This language may be better understood, however, as giving the ICC the last word on the matter. Indeed, the ICC may very well have the last word, given that the U.S. legal system provides various protections, such as the right to a trial by jury, which may be deemed inconsistent with ICC rules and procedures.
The above concerns should give the Obama administration pause as it considers signing the Rome Statute. It is far from guaranteed that joining the ICC in order to have a “seat at the table” will in any way allow the United States to guard against the pitfalls associated with membership. With the exception of specific instances whereby a situation might be referred to the ICC via the Security Council, the United States will not have a veto. A seat at the table will not give us the opportunity to fix what is wrong with this treaty, but rather will trap us within the confines of a legal framework ripe with potential for abuse.
Moreover, there is much more at stake here for the United States than the legal risks that come with signing this treaty. The very act of signature and ratification will not only elevate the Court’s legal authority over the United States, but also the Court’s moral authority in its dealings with America and even its allies. As non-parties, we remain free to dismiss the ICC’s investigation or prosecution of American citizens as illegitimate. Once we are a party to the ICC, however, it will become much more difficult to make a serious argument against the Court’s authority should it initiate proceedings against American citizens or engage in other unacceptable behavior. Our assent to the Rome Statute would likely also have the effect of providing the ICC with that same moral cloaking as it goes after valued allies: Israel for its defensive actions in Gaza; Colombia for actions taken to protect its own citizens from FARC forces; perhaps every NATO country with troops in Afghanistan.
It may be that given the rhetoric thus far, President Obama is quite comfortable with the notion of using the ICC as one of several means to bring America out of the global wilderness he perceives, despite the legal and political risks involved in such a move. The Court’s issuance of an arrest warrant for Sudan’s al-Bashir — a ruthless dictator deserving of punishment for his actions by all civilized standards — may further provide such comfort to the Obama administration by reinforcing the flawed notion that the U.S. has nothing to fear from the ICC, that it will only go after world’s “obvious” thugs. President Obama would be well-advised, however, truly to consult with his defense and national security advisors about the legal and political ramifications of American officials being made citizen-defendants of the world. He might find that they — not to mention vast quarters of the American public — are less than comfortable with that arrangement.