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

Table of content

I. Introduction

II. Discussion
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?

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 theprosecutorial powers, the question of immunity, the risk ofpolitically motivated prosecutions as well as the rights of the accused in trial procedureswill 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 ofState Sovereigntyof 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,

concept of state sovereignty is that the EU has accepted that national jurisdiction can be amended to some extent by delegating it to a supranational level like the ICC, legitimized by the treaty based convention contracted under elected governments of the participating states. Whereas the US cannot approve any delegation of national jurisdiction to a body, which is not directly elected by its sovereign, the American people. In this respect, taking this ideological difference for granted, the US rejection of the ICC Statute was foreseeable and a logical result of a gap, giving evidence that the ICC case is not the last precedence for upcoming conflicts in the Transatlantic Foreign Relations. The essay addresses this question and closes with policy recommendations for further steps in the ICC dispute.

II. Discussion

II.1. The ICC controversy – Latest Developments

The establishing process of the ICC ended finally in September 2002, when in the Headquarter of the United Nations, the Assembly of States supporting the ICC gathered together to welcome the new institution. Up to this point, “139 States have signed the Statute and 80 have ratified it” (Patten, 2002, p.2). But the road to that celebration was long, and it was accompanied by a permanent European-American dispute on the role, the constitution and the status of the new Court.

Shortly before this event, the U.S. Administration increased the political pressure on states that had not yet ratified the treaty. Even a complete withdrawal from any engagement in UN peacekeeping missions of American forces was in debate in Washington (Hirsh, 2002). Additionally, the American Congress adopted the “American Service Members Protection Act” which was signed by President Bush on August 2, 2002, mandating the US diplomatic body to negotiate bilateral agreements in order to grant US citizen even without public office immediate immunity before the ICC.

On the other side of the Atlantic, the European Parliament called its member states for a “speedy ratification” (Macpherson & Kaufman, 2002, p. 219) of the ICC Treaty. An action plan issued by the European Commission on 15th May 2002 called for a coordination of

activities of the EU and its member states, ensuring speedy operation ability of the ICC. To

date, all current EU member states and most of the new Eastern European member states have signed the ICC, but in respect to the ratification process some are delayed. While Italy was one of the very first to ratify the ICC Statute, even without the completion of the necessary domestic legislative changes, Great Britain remained slower in ratification, trying to solve domestic legislative problems first (Macpherson & Kaufman, 2002). But despite the differences in terms of ratification, the performance of the EU in the ICC negotiations was

streamlined and coordinated. The “Council Common Position on the International Criminal Court” adopted on the 11th June 2001 (Common Position 2001/443/CFSP) and later on revised (Common Position 2002/474/CFSP) proved this unity. The homogeneous performance of the

EU, as stated will justify the handling of the EU as one actor within this debate.

As to the editing of this paper, the EU presented a trade-off draft to the current US Administration. The consensus paper, issued on September 30, 2002 addresses the US demand of exemption of its national citizens from the ICC. The EU wants to see three conditions, in order to agree to bilateral treaties of its member states for a non-delivery of American citizens to the Court, so Danish Foreign Minister Per Stig Moeller. The European conditions are: First, general exemption of any individual is not possible. Otherwise, the principle of‘universality’, which means in this context AbsoluteUniversal Jurisdiction, would suffer damages. ‘Absolute Universal Jurisdiction’ means that a “State exercises jurisdiction over a crime whose nature affects the interests of all states and justifies its repression as a matter of international policy” (Strapatas, 2002, p. 5). It is the same understanding of state sovereignty as was used in the Nuremberg and Tokyo Tribunals, with the basic difference, that a permanent and multilateral Court replaces the temporary military tribunals under the authority

of the WWII allies. As a safeguard for the US, the EU is in favor of the principle of complementarity. This principle should guarantee the US that if the ICC should sentence any American, the U.S. jurisdiction will be encouraged to take over the case. Second, only Americans in charge for the American government, soldiers and diplomats, should gain immunity (Article 98/2) before the ICC. Third, states attempting to have bilateral agreements with the US are excluded from the right to protect their national citizens before the ICC, what means that EU member states restrict themselves from demanding exemptions. As these latest developments mark just the tip of an iceberg, we will first recall the history of the dispute that lead to the different views on the ICC on both sides of the Atlantic.

II.2. The History of the Dispute - From The Hague to Rome

When did the transatlantic conflict develop? Does it root in historical events? In order to address that question, we will introduce Leila Nadya Sadat’s Conceptualization of the ICC evolution. She observes four relevant periods for the ICC evolution: Conception, Emergence, Conflict and Resolution (Sewall, 2000) of the ICC. According to her terminology, the Conception period between 1899 and 1945 and the two ‘The Hague Conferences’ in 1899 and 1907 were milestones for the idea of international human rights jurisdiction. These conferences, initiated from Czar Nicholas II from Russia, brought up the “Convention Respecting the Laws and Customs of War on Land” (Sewall, 2000,p.31), a first multilateral agreement on Human Rights. The International Criminal Trials of Nuremberg and Tokyo marked the beginning of the second period, the Emergence. It was in this period, when the idea of International Legal Tribunals came into effect. The Tribunals of Nuremberg accepted that Nazi-Leaders could be held accountable for their Crimes against Humanity, it reaffirmed the primacy of international law over domestic laws, and it deemed aggression as illegal (Sewall, 2000,p.35). The US functioned within this period as a leading advocate for these

In the aftermath of WWII, the Universal Declaration on Human Rights (UDHR) was signed in 1948. Under the umbrella of the UN, a Genocide Convention was adopted very quickly that encouraged the creation of an ICC, but further steps were delayed. Although the UN General Assembly assigned an International Law Commission (ILC) to prepare drafts, the Cold War drew a curtain over the debates until its final end in 1989. After the end of the period of Conflict between East and West, the re-establishing of the ILC began, and a first draft statute of the ICC was issued in 1994. Again in this period, the US functioned as one of the discussion leaders, assisted by the - at this time - loose-coordinated members of the EU. The work of the ILC was finally taken over by a Preparatory Committee (PrepCom) in 1995. This was in Leila Nadya Sadat’s classification the period of Resolution. But in terms of the transatlantic conflict, it marked the occurrence of more and more differences on the subject. Whereas the EU was still in favor of the project, pushing further steps and a finalizing of the century old project, the US uttered more and more demurs about certain aspects of the possible upcoming convention. The PrepCom work culminated finally in the Diplomatic Conference of Rome in summer 1998, where the foundation of the ICC was implemented in the ‘Rome Statute’ (Sewall, 2000). It was during these negotiations, when most of the current US objections against the ICC appeared.

Looking at the development of the transatlantic dispute over the ICC, we can record that the objection of the US, and therefore the disagreement with the European Union has no deeply rooted historical foundations, but occurred in its current dimension in 1995 when the PrepCom started negotiating the draft resolutions leading to the Rome Conference. Both share the basic idea of promoting Human Rights, or in the words of American President Franklin D. Roosevelt “Freedom means the Supremacy of Human Rights Everywhere”. Several US administrations proved this commitment, not just through the installation of the Nuremberg and Tokyo Tribunals. The United States helped the International Human Rights Jurisdiction in the case of the Tribunal of Yugoslavia, revitalizing the Nuremberg-heritage in order to bring justice in the conflict on the Balkans. The ad hoc Tribunal was favored by the US, why not the permanent ICC? The EU in its recent history manifested this belief in the so-called ‘European Human Rights Charta’, the most binding multilateral commitment to Human Rights protection currently existing besides the Rome Statute. Taking this into consideration, where are the differences?

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