January 2, 2001

MEMORANDUM TO: OPINION LEADERS

FROM: GARY SCHMITT

SUBJECT: International Criminal Court

On the last day of 2000, President Clinton signed the International Criminal Court convention, a
treaty which the president himself admits is flawed and which he has no intention of submitting to
the Senate for its ratification. The president did so, he said, in order to put the U.S. in a position to
help correct the treaty’s imperfections. But the ICC accord is not just flawed -- it is fatally flawed --
and the best policy is for the U.S. to reject the treaty simply. Without America’s participation, the
ICC will die on the vine.

More than two years ago, at the conclusion of the conference in Rome which finalized the treaty’s
terms, we voiced our concern that the Clinton Administration would continue to try and fix the un-
fixable. As we argued then, whatever the respectable motives behind the creation of the
International Criminal Court, we should not let those blind us to the fact that the preservation of a
decent world order depends chiefly on the exercise of American leadership. For both geo-political
and constitutional reasons, we should not be in the business of delegating that leadership or
compounding the difficulties of its exercise by creating unaccountable, supra-national bodies.

We also circulated at the time a statement on the ICC made by John Bolton, vice president of the
American Enterprise Institute and a Project director, before the Senate Foreign Relations
Committee (July 23, 1998). No major, substantive change has been made to the treaty’s terms
since. Bolton’s statement still stands as a thorough and devastating critique of the proposed
court. An edited version of that statement follows.

Summary of Statement Before the Senate Foreign Relations Committee

Delegates to the recently concluded conference in Rome have created not only a court with
sweeping and poorly defined jurisdiction, but also a powerful and unaccountable prosecutor.
International support for the International Criminal Court (ICC) and the independent prosecutor is
based on emotional appeals to an abstract ideal of an international judicial system which
frequently run contrary to sound principles of international crisis resolution and is at odds with the
American standards of constitutional order. For some, faith in the ICC is motivated largely by an
unstated agenda of creating ever-more-comprehensive international organizations to bind nation
states in general, and this nation in particular. Regrettably, the Administration’s own naive support
for the concept of an ICC has now left the United States in a far weaker position internationally
than if we had simply declared our principled opposition to the concept in the first place.

The Nuremberg Analogy

A substantial part of the emotional appeal of an ICC is the mistaken notion that it traces its
intellectual lineage directly back to the Nuremberg (and Tokyo) war crimes trials after World War
II. But the success achieved by Nuremberg must be understood in its context. First, the
Nuremberg trials were conducted in the aftermath of a war that resulted in the complete military
and political victory of the winners, and the unconditional surrender of the losers. Second, the
principal managers of Nuremberg, the British and the Americans, shared political and juridical
norms. And, third, the Allies had a vision of what the post-Occupation governments of the
defeated states would be, and the trials were just one element, albeit an important one, in the
necessary transformation to a new society. Restating this history, even in summary fashion,
demonstrates the unique circumstances that permitted the successful prosecution of war crimes
at Nuremberg; it also explains why the ICC is almost certain to fail.

Deterrence and the Court

ICC proponents assert that Nuremberg was an inadequate, post-facto response to the crimes
committed by the Nazi regime. They argue instead for the deterrent value of having an on-the-
shelf Court and Prosecutor, contending that the absence of a permanent ICC is the real problem.
But history is unfortunately filled with cases where even strong military force or the threat of force
has failed to deter aggression or the commission of gross abuses of human rights. Why we
should believe that bewigged judges in The Hague will prevent what cold steel has failed to
prevent remains unexplained. The fact is, the ICC’s authority is likely to be far too attenuated to
make a difference either to the potential perpetrators of crimes against humanity or to the outside
world.

Post-Conflict Reconciliation

It is not clear that the international search for “justice” is always consistent with the attainable
political resolution of serious political and military disputes, whether between or within states.
Although Nuremberg seems to have accommodated both the search for justice and the
transformation and reconciliation of the defeated enemy states with the victors, other situations
may not. This suggests a case-by-case approach be taken rather than the artificially imposed
uniformity of the ICC.

Take, for example, South Africa’s Truth and Reconciliation Commission. Clearly, one option in
South Africa would have been widespread prosecutions against those who had perpetrated
human rights abuses under the guise of enforcing apartheid. The new government felt that while
so doing might have produced feelings of vindicated (if long-denied) justice among some
segments of the population, it would also have produced corresponding feelings of persecution
and unfairness among those targeted for prosecutions. This is not to argue that the South African
approach should be followed everywhere, or even necessarily that it is the correct solution for
South Africa. But it is not too early to conclude that the approach now being followed there is
radically different from that contemplated by the proposed ICC.

Moreover, it may be that, under some circumstances, neither exact retribution nor the whole truth
is the desired outcome of the parties to a dispute. In many former Communist countries, for
example, citizens are today wrestling with the question of how to handle the involvement of fellow
citizens in secret police activities of the prior regimes. These societies have chosen a kind of
national “amnesia,” at least for some time into the future.

One need not agree with the decisions made in South Africa and in some former communist
states to have at least some respect for the complexity of the moral and political problems they
must face. And one need not fully agree with those decisions to recognize that a permanent ICC
may actually hinder or prevent the comprehensive resolution of internal or international problems
in such complex cases.

The ICC and the UN Security Council

With virtually no debate in Rome, the ICC has been created as an organization outside of the
United Nations system. In so doing, the Rome Conference has substantially minimized, if not
effectively eliminated, the Security Council (and the veto power of the U.S. as one of the
Council’s five Permanent Members) from any role in its affairs. Since the Council is charged by
Article 24 of the UN Charter with “primary responsibility for the maintenance of international
peace and security,” it is incongruous that the Council and the ICC are to operate virtually
independent of one another. The Council, as a result, now risks having the ICC interfering in its
ongoing work and further confusing the appropriate roles of law, politics and power in settling
international disputes.

The Question of Jurisdiction

A key problem for Americans is that there is insufficient clarity or agreement over the substantive
jurisdiction of the ICC and the Prosecutor. This is not a court of limited jurisdiction. Even for
genocide, the oldest codified among the three crimes specified in the Statute of Rome, there is
not complete clarity in what it means. For the other two broadly defined crimes (war crimes and
crimes against humanity), the vagueness is even greater, as is the accompanying risk that an
activist Court and Prosecutor can broaden the Statute’s language in an essentially
unchallengeable fashion.

Much of the media attention to the American negotiating position on the ICC concentrated on the
risks perceived by the Pentagon to American peacekeepers stationed around the world. As real
as those risks may be, especially under the concept of “universal jurisdiction,” our real concern
should be for the President and his top advisers. The definition of “war crimes” includes, for
example: “intentionally directing attacks against the civilian population as such or against
individual civilians not taking direct part in hostilities.” A fair reading of this provision leaves one
unable to answer with confidence the question whether the United States was guilty of war crimes
for its aerial bombing campaigns over Germany and Japan in World War II. A fortiori, these
provisions seem to imply that the U.S. would have been guilty of a war crime for dropping atomic
bombs on Hiroshima and Nagasaki.

The Issue of Sovereignty

We are not considering here a relatively passive court, such as the International Court of Justice,
which can adjudicate only with the consent of the parties, or when the Security Council or the
General Assembly asks it for an advisory opinion. We are considering, in the guise of the ICC
Prosecutor, a powerful and legitimate element of executive power, the law-enforcement power.
Law-enforcement is a necessary element of national governments. To my knowledge, never
before has the U.S. been asked to seriously consider placing any law-enforcement power outside
of the complete control of our national government and done so in a way so at odds with our own
standards of constitutional order.

Briefly stated, the American concept of separation of powers, imperfect though it is, reflects the
settled belief that liberty is best protected when, to the maximum extent possible, the various
authorities legitimately exercised by government are placed in separate branches. In continental
European parliamentary systems, these sorts of checks are either greatly attenuated or even
entirely absent. Europeans may feel comfortable with such a system, but the U.S. should never
consciously accept such an approach. The Statute’s Prosecutor is vested with enormous law
enforcement powers but is accountable to no one. The Statute of Rome is, in fact, a stealth
approach to eroding constitutionalism. Americans should find this unacceptable.