Political Science 498
International Human Rights Law

Europe and the United States,
and in-between the International Criminal Court (ICC)

- A comparative Analysis

by

Richard Anton Fuchs

Freedom means the Supremacy of Human Rights Everywhere.
Our support goes to those who struggle
to gain those rights or to keep them.
Our strength is our unity of purpose.

- President Franklin D. Roosevelt

I. Introduction  ….1

II. Discussion  …5

II.1 The ICC controversy – Latest Developments
II.2 The History of the Dispute - From The Hague to Rome
II.3 One Treaty, Different Views - The ‘Rome Statute’
II.4. Comparative Analysis of the different views on the ICC

III. Conclusion - An ideological gap to bridge?   24

Introduction

„Signatories of the Statute of Rome have
created an ICC to their liking, and they
should live with it. The United States did not
agree to be bound, and must not be held to
its terms.“- Bolton, John R.

(Bolton 2002, p. 5)

The International Criminal Court (ICC) came officially to birth on July 17, 1998 by adoption of the ‘Rome Statute’, a binding multilateral convention creating the first Transnational Legal Body intended to hold individuals accountable for committing Genocide, War Crimes and Crimes against Humanity. It is the last great International Organization to be created in the twentieth century, although the issue was addressed for the first time almost a hundred years ago. But in order to come into force and start working, the ICC treaty needed to be ratified by at least 60 signatory states of the Statute. Despite the strong objection of the current U.S. Administration, this number was reached in April 2002. Shortly before, the Bush Administration had announced on May 6th, 2002 that it did not intend to ratify the Statute. Moreover, it considered itself as released from any obligation arising from the American signature of the Rome Statute, given by former President Bill Clinton on December 31, 2000. This withdrawal, unique in the history of International Relations and treaty-making, provoked harsh criticism from the member states of the European Union, because it was they within the so-called “group of like-minded” states (Sewall, 2000, p.32), who were the most active supporters of a strong ICC Statute, independent of the UN Security Council.

The fundamental gap between the European and the American position over the ICC issue has caused an aggravated transatlantic conflict. The question, whether the ‘Universal Human Rights Jurisdiction’ constitutes an infringement to American national sovereignty, is answered on both sides of the Atlantic differently. The paper attempts to make this transatlantic conflict more transparent through a comparative analysis of U.S. and EU responses to the ICC. It provides historical knowledge about the ICC development from an unsettled idea to its final implementation, and it clarifies American and European National Interests behind the scenes. Within the analysis, American objections will be outlined and set in context with the European counter-arguments. The most controversial issues between the transatlantic partners including the prosecutorial powers, the question of immunity, the risk of politically motivated prosecutions as well as the rights of the accused in trial procedures will be at the heart of the debate.

The paper works with the hypothesis that the ICC case constitutes a transatlantic clash of ideologies centering on a fundamentally different interpretation of national sovereignty. Whereas the European Union considers the ICC as an expansion of its national sovereignty and its sphere of influence, the U.S. views the same issue as an infringement of its Constitutional Rights (Macpherson & Kaufman, 2002, p. 220). Whereas the EU is in fear of a possible ‘double standard’ in International Human Rights Law, the U.S opposes ‘automatism’ in ICC jurisdiction as a result of its universality. For the EU, a ‘double standard’ in International Human Rights Law would occur, if American citizen were granted immunity without specification of time and conditions. For the US, the rejected ‘automatism’ is the Court’s right to step in and take over a case under ICC jurisdiction if a trial is not preceded after the Rome Statute ‘Rules of Procedure’. For the purpose of our research, the paper will start with the definition of State Sovereignty of Langley, which defines the multifaceted term as “a fundamental concept of international law, defining the supreme authority of each state to make and enforce laws with respect to all property, events, institutions and persons within its borders” (Langley, 1999).

I conclude that that we indeed can see in the ICC case study urgent evidence for an ideological gap between the EU and the US, because the main arguments on both sides can all be traced back to the underlying question, how national sovereignty is defined under the current Rome Statute, so that we have to redefine the above mentioned definition for the US, respectively for the EU.

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