*EPF513 09/13/2002
Byliner: Ass¡¦t. Sec. of State on U.S. Concerns About Int¡¦l. Criminal Court
(Otto Reich says Bush Administration believes ICC is "seriously flawed") (770)

(The following byliner, by Assistant Secretary of State for Western Hemisphere Affairs Otto J. Reich, is in the public domain. No republication restrictions.)

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"The U.S. and the ICC"
By Otto J. Reich

The United States takes pride in its democratic values and its republican government based on the rule of law. Since World War II, the United States has championed international law and order among sovereign nations as a founder of the United Nations and by establishing with our allies the first international courts to judge cases of crimes against humanity. As a nation, we are deeply committed to justice. We believe in accountability for war crimes and genocide. We vigorously pursue justice between men and states, and many times in recent memory, we have sacrificed American blood and treasure for it. Our military's discipline is world-renowned, and lapses of discipline in it meet with sure and swift punishment. Recently, however, the United States has been criticized by some in the international media for refusing to allow American citizens to be subject to the new International Criminal Court (ICC). Our objection to the ICC is simply that, despite the best of intentions, we believe it is seriously flawed and may become an impediment to justice or even an instrument of injustice.

Significant Concerns

First, the Rome Statute chartering the new court contradicts the basic principles of national sovereignty in asserting jurisdiction over the nationals of states not party to the agreement. We strongly object to the ICC's claims of jurisdiction over offenses committed by nationals of non-party states, including government officials and members of the armed forces. We are also concerned that the ICC would usurp the authority of sovereign states insofar as it pretends to be the final arbiter of whether any state's investigations or trials were "genuine."

Second, the Rome statute does not provide appropriate oversight of the court and the ICC prosecutor. Neither the court nor the prosecutor is adequately accountable to the U.N. Security Council or any democratically elected body. Moreover, the Rome statute lacks fundamental checks and balances. The treaty created a prosecutor who may make any accusation but is answerable to no state or institution other than the Court itself. This lack of accountability leaves open the possibility, even likelihood, of baseless, politically motivated investigations and prosecutions.

Third, the Rome Statute's provisions that empower the ICC to investigate and prosecute the as-yet-to-be-defined "crime of aggression" threaten to undermine the unique role and responsibilities of the U.N. Security Council. In doing so, it brings the ICC into potential conflict with the U.N. Charter. We believe that the U.N. Security Council ought to remain the institution that decides these important questions.

The U.S. View

We believe international efforts should promote national accountability and encourage states to pursue credible justice within their own institutions. But when domestic justice is not possible for war crimes due to a failed state or a seriously dysfunctional judicial system, then the international community must be prepared to step in. In those cases, we support the establishment of creative ad-hoc means such as the International Criminal Tribunals for the former Yugoslavia and Rwanda and alternative justice mechanisms such as Truth and Reconciliation Commissions.

We respect the right of other nations to become parties to the treaty, but ask that other countries respect our right not to do so. The United States has many global security responsibilities. The ICC might constrain the will and the ability of the United States and other nations to use military forces to meet those obligations. That would be unfortunate for all of us.

To address our concerns, we are seeking bilateral agreements, provided for under the very same the Rome Statute, with as many countries as possible. These agreements will allow the United States and its friends and allies to continue to work together for national and global security and to champion cause of justice between nations and men.

Our Common Aim

The United States will continue to be a forceful advocate for the principle that there must be accountability for war crimes, genocide and crimes against humanity. Our policy on the ICC is consistent with other long-standing policies on human rights, the rule of law and the validity of democratic institutions. It also prudently safeguards our ability to translate the good intentions of those policies into good deeds. While we may have honest disagreements with other nations on the means, building sovereign institutions to strengthen the rule of law is our common aim.

(Otto J. Reich is assistant secretary of state for Western Hemisphere affairs.)

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(Distributed by the Office of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)

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