Stephen Rapp, the American Ambassador-at-large for War Crimes Issues

Remember President Obama’s trip to Copenhagen last year? Not the failed Chicago Olympics bid, but the Climate Change Conference where he attempted to place America under a cooperative international climate treaty. Now, the President has turned his attention to other avenues of global entente, and the frustrated momentum of the climate treaty has been replaced with a move towards closer cooperation with the International Criminal Court. Committing the U.S. to international accords that threaten to undermine our nation’s sovereignty appears to be a temptation the current administration cannot resist. The ICC is just another example of this infatuation with global governance.

In November 2009, Stephen Rapp, the American Ambassador-at-large for War Crimes Issues announced that the “[U.S.] government has now made the decision that Americans will return to engagement at the ICC.” At first glance this may appear as a great opportunity for America to shed its big-bully persona and embrace an agreeable multi-lateral approach. However, as Marion Smith of the Heritage Foundation argues in a recent Backgrounder, An Inconvenient Founding: America’s Principles Applied to the ICC, American involvement in the ICC would represent nothing short of ceding America’s sovereignty to an unaccountable international legal body.

ICC membership would represent an important break from our First Principles. Citing historical examples dating back to the Founding, Smith argues that the U.S. has always been wary of international agreements that may supersede the power of the Constitution and consequently threaten the sovereignty of the U.S. The continued independence of the U.S. remains crucial to the maintenance of America’s democratic institutions. Despite mounting global pressure to the contrary, America must remain true to its constitutional obligations and continue to defend the sovereignty of our nation.

Founded in 2002, the ICC derives its authority from the Rome Statute. With some 110 countries party to it, the Rome Statute claims jurisdictional authority to prosecute alleged human rights crimes committed within any of the member countries. As Smith’s paper highlights, there are myriad issues in the Rome Statue that directly contradict American political and constitutional principles.

• With regard to the ICC’s jurisdictional power, the Rome Statute states that it “shall satisfy itself that it has jurisdiction in any case brought before it.” If the U.S. ratified the Rome Statute, the ICC could investigate, review and judge crimes committed by Americans against Americans in America that have already been adjudicated in American courts

• The ICC could claim jurisdiction over American citizens even without the ratification of the Rome Statute if American are accused of alleged crimes committed in member countries. An appalling example of this can be seen in an ongoing ICC investigation into conduct of American and NATO soldiers in Afghanistan. As the Heritage Foundation’s Brett Schaefer and Steven Groves discuss in The ICC Investigation in Afghanistan Vindicates U.S. Policy Toward the ICC, such proceedings set a dangerous precedent of ICC power over ongoing war efforts.

• The ICC’s system of due process is distinctly different from that guaranteed by the U.S. Constitution and Bill of Rights: the Rome Statute recognizes no right to trial by jury and contains no right to a speedy trial.

• Finally, the ICC places prosecutorial power in an independent and therefore unaccountable, Chief Prosecutor. The potential for politically motivated investigations without the consent of the governments involved are limitless.

Some proponents of global governance criticize America for not signing on to international agreements, such as the Rome Statute and claim that America has a disdain for the rule of law. But this is not the case. It is precisely America’s dedication to the rule of law that causes us to assess critically treaties such as the Rome Statute.

It is highly ironic that the Obama Administration is warming up to the ICC, a court that does not guarantee American due process rights to American citizens, while at the same time insisting that terrorist suspects should have access to American civil courts, Miranda rights, and the right to trial by jury.

David Ehrlich currently is a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit: