MYTHS AND REALITIES
ABOUT THE
INTERNATIONAL CRIMINAL COURT
“Seldom in the course of public discussion of a great national issue have so many great and good former
officials been so misinformed about fundamental principles of international law.”
-- Letter urging acceptance of the Rome Treaty without changes in the text, signed by 10 former presidents of the
American Society of International Law, including Monroe Leigh, former State Department Legal Advisor to Henry
Kissinger.
MYTH: The ICC does not ensure due process for the accused.
REALITY: The Rome Statute establishing the International Criminal Court provides for almost all the same
due process protections as does the U.S. Constitution. Monroe Leigh, former President of the American Society
of International Law and former State Department legal advisor to Henry Kissinger, stated in testimony to the
House International Relations Committee (July 25, 2000) that “it cannot be denied that the Treaty of Rome
contains the most comprehensive list of due process protections which has so far been promulgated.”
Every due process protection provided for in the Constitution is guaranteed by the Rome Statute, with the
exception of a trial by jury. A chart comparing the Rome Statute and the U.S. Constitution may be found at
http://www.wfa.org/issues/wicc/usconst.html.
Those who point to the lack of jury trial as a weakness of the Court overlook the obvious impracticality
of impaneling a jury to try, for example, Pol Pot. In addition, they should remember that American citizens
accused of crimes abroad currently are guaranteed far fewer due process protections than they would receive
under the ICC. They are subject to trial in foreign justice systems, many of which do not provide for a jury trial,
or other valued due process protections. Moreover, the United States has signed a number of extradition treaties
that specifically allow Americans to be tried abroad in foreign courts without jury trials. Even in the United
States, American servicemembers are not guaranteed a jury trial under the Courts-Martial system. The Court,
despite its lack of a jury trial, has a long list of other due process protections for the accused. In fact, Robinson
O. Everett, former Chief Judge and current member of the U.S. Court of Military Appeals, stated that the
Rome Statute “assures a fair trial for any servicemember who is prosecuted before the International
Criminal Court.”
MYTH: The International Criminal Court could prosecute Israeli leaders for current violence in the
Occupied Territories.
REALITY: First, the Court only has jurisdiction over events that occur after its entry into force, and would not
be able to take up any events that occur before its creation. Moreover, it is nearly inconceivable that Israeli
leaders could be tried before the ICC in any case. The ICC only has jurisdiction if a covered crime is
committed by a national of a member state (one that has ratified the Rome Statute), if a crime has been
committed on the territory of a member state, or if a specific case is referred by the Security Council. To qualify
for the first category, Israel or an internationally-recognized Palestinian state would have to ratify the Rome
Statute. Given the current violence in the area and lack of support for an independent Palestinian state, neither of
these is likely to happen anytime soon. The other possible road to the Court, a Security Council referral, is
equally unlikely with the United States holding a veto power.
MYTH: That a global “Ken Starr” prosecutor, judges and staff will have broad-reaching powers and will be
unaccountable.
REALITY: The ICC will be accountable to the Assembly of States Parties, made up of all the countries that
have ratified the Statute. The Assembly will, among other things, establish an independent oversight
mechanism for inspection, evaluation and investigation of the Court; elect judges, prosecutors, and other court
officials; determine and pay for the budget of the Court, and be able to vote to dismiss judges, prosecutors and
other court officials. The Statute provides that judges will be of the highest qualifications and moral character,
be independent of outside influence in the performance of his or her functions, and will be subject to sanction or
removal by the Assembly if found to have committed serious misconduct or a serious breach of his or her duties.
Moreover, the Court will have internal checks and balances. Although they are all within the overall
framework of the Court, the Registrar (administrator), Prosecutor, judges and the appeals process are quite
distinct from each other. Their separate staff and responsibilities enable them to check and balance each other to
ensure that all departments and personnel are accountable. For example, if the prosecutor wishes to pursue a
case that is not referred by the Security Council, he or she must present the case to a three-judge panel. Finally,
the Security Council may vote to suspend a case for a period of twelve months, after which it has the power to
renew the suspension each year indefinitely.
MYTH: The definitions of crimes are vague, and the Court will claim jurisdiction for the vague crime of
"aggression," despite the fact that no clear definition for the crime exists.
REALITY: The 106-page Rome Statute and its fifty-page subsidiary document, The Elements of Crimes, give
clear and detailed definitions of genocide, war crimes and crimes against humanity. Negotiations on the
definition of aggression, among other important issues, are being conducted at the ongoing Preparatory
Commission meetings. The United States has played, and should continue to play, an important role of this
process at negotiations. However, The crime of aggression was not defined in the Statute and the Court will
have no jurisdiction over the crime of aggression until a detailed definition is adopted by a two-thirds
majority of the Assembly of States Parties. Amendments to the statute are not permissible until a review
conference is held seven years after the entry into force of the Statute.
MYTH: The US could be subject to prosecution by the ICC if it did not get the Security Council’s permission
before undertaking military action.
REALITY: This is a commonly held misconception that is simply not true. The ICC has no jurisdiction to
adjudicate state responsibility with respect to the lawfulness of use of force.
MYTH: The ICC will be manipulated by rogue countries that routinely violate human rights.
REALITY: The International Criminal Court will be composed of countries that are willing to open up
their human rights records not only to the scrutiny of the world, but also to the enforcement mechanisms
of the ICC. The International Criminal Court will be governed by the Assembly of State Parties, composed
only of countries that have ratified the Rome Statute. Ratification of the Rome Statute by a country obligates
that country to cooperate with the court and accept the Court’s jurisdiction over egregious crimes committed in
their territory that they choose not to investigate or try themselves. Countries such as Iraq, China, Libya and
Sudan will not ratify the Rome Statute and become a member of the Assembly of States Parties, because there is
a built-in disincentive for them to do so: accepting the jurisdiction of the ICC. This will ensure that the
members of the Assembly are those countries who value democracy and human rights.
For more information, please contact Heather B. Hamilton, World Federalist Association Director of Programs,
202-546-3950, hbhamilton@wfa.org