Reflection Paper III

Submitted to: Professor Silva Hamie

Submitted by: Sanmita Nepal
Date: 20th Nov, 2014

Why is United States not a member of International Criminal Court and how likely is it to
ratify the Rome statute in the future?
Ever since the establishment of International Criminal Court (ICC), it has always been in
the lights of criticism. ICC was established when United Nations (UN) could not stop the
atrocities in Rwanda and Yugoslavia and hence emerged as an independent organization to
punish the perpetrators. Initially, it existed as International Criminal Tribunal for Rwanda (ICTR)
and International Criminal Tribunal for Yugoslavia (ICTY). Later, it adopted the Roman Statute
resulting into the formation of ICC. Thus, the main criticism was that even though the
government established ICC, it was clearly not in its interest, as most of the democratic countries
like United States (US) would believe that it could cause harm to its interest and to the concern
of international court of peace and security, in general. The main concern of this reflection paper
is to clarify the objectives of ICC, the US objections to join ICC, possible solutions to it and the
future possibilities of the US to join the ICC. This paper incorporates various insights based on
the readings and class discussions on how US was the first one to come up with an idea creating
a body of international justice and how it has been misunderstanding the Roman Statute and its
implications.

US objections
Although Clinton signed the Rome Statute treaty in 2000, it hasnt yet been ratified. US
is still not a member of ICC and following describes the main reason why US has objections in
joining it: Firstly, there is the long standing traditional political and philosophical tradition in US
that has been preventing it from joining the ICC. The most important of these traditions include
the concept that US proponents think it could punish its own people and doesnt rely on an

international community to trial their nationals (Rapp, 2013). Second main reason for the
objection is the misinformation that ICC is a part of much criticized UN which has prevented
American policy makers from advancing the relationship between US and the ICC (Rapp, 2013).
Thirdly, there is a high concern in the American lawmakers that if US would join the court, the
individuals from global community would punish US for their aggressive foreign policy by using
the ICC to prosecute American soldiers and other military actors (Bulger, 2010).
Besides the above described reasons for objections, US also condemns ICC saying that
the power of the prosecutor is unsure and unchecked and they need the approval of only two of
his/her colleagues from trial chamber before moving up with any investigation (Dempsey, Casey
& Rivkin, 2008). Hence, all these reasons are of high concern to US and thus plays major
objection in joining the ICC.

Misconception
Even though there are objections by US to join the Rome Statute, there are also many
misconceptions on understanding the Statute properly. According to Sievert (2011), ICC is not
something imposed on the US, instead it is Americas creation. In history, largely the Americans
themselves made the code that first Hague conventions adopted (p.25). The US played very
active role in all the negotiations and were highly responsible for large sections of it.
US proponents argue that ICC is not well structured and would deprive citizens of the
right against self-incrimination, right not to be tried twice for the same offense, right to obtain
witness and right to indictment and trial by jury (Simmons & Danner, 2008). However, there are
various articles of the Rome Statute stating that the defendant has the right to remain silent and it
will not go against him, he can have a witness on his behalf and unless there has been an attempt

to shield a defendant with sham a trial, no person shall be tried for conduct for which he has been
tried in another court (Sievert, 2011). Also, according to Yale Professor Wedgwood (2005), ICC
is very cautiously structured with procedural protection and very carefully guarantees and
safeguards the American Bill of rights. These outlines that many misconceptions exist which if
looked into carefully would rule out and give ample space for US to ratify the Rome Statute.

Proposed Solution
Taking into account all the objections and misconception, measures should be taken to
solve the matter. Proposal should be put forward to US so that they could revisit the
consideration of joining the ICC. Following steps can be taken as a measure to solve the issue:
According to Sievert (2011), by educating the Congress and Public about the misconceptions
could be one of the main solutions to the issues in this regard. Secondly, insuring that the
Congress and the administration would keep the track of why the certain trails failed in the past
could be one of the learning lessons to the US. From this, US could figure out how system works
best and how they could work on clearing out all the misnomers. Third way could be by
modifying Rome Statutes and ICC procedures. Another solution could be by increasing the role
of the Security Council in the decision-making so that it could cause modification to the Rome
Statute (Sievert, 2011). The final solution could be by providing veto rights to US in ICC so that
they could have the power to control the actions they oppose and end up joining the ICC.
Hence, a day wont be far away when US would ratify Rome Statute if everybody agrees
to the common ground that ICC is focused to provide justice to the world. US should also
comply to the aim of ICC and channel the unified action against terrorist, aggressors and tyrants.
Also, the critiques of ICC in US should try to come into reconciliation and throw away all the

prevailing misconceptions. If they do it, very soon in the near future, US would not just ratify the
Rome Statue and be the member of ICC, instead it would emerge as its leader and greatest
supporter.

Personal Opinion
As we know, the main argument against the ICC is that it violates the US Constitution
and sovereignty by subjecting its nationals of a country to another court. They have the
perception that it would lead to breaching of the supreme law and make their citizens trial in
another court with improper jurisdiction. However, this criticism ignores one of the most basic
principles of Courts design i.e ICC is not intended to replace or override national courts. ICC is
in fact a complementary institution to the national courts and it has the jurisdiction only when
national courts are unable and unwilling to prosecute crimes.
I personally feel that US should work to clear out all the misconceptions it had on ICC
and Rome Statute and accept the ICC membership soon in the near future. As the world is
advancing in international law, US should help develop the court rather than work against it. The
fear of American nationals and military personals being held accountable for their options should
not limit US as most of these would be handled by the US national court themselves. ICC would
come to account only when US national court would be unable to solve it.
Thus, US should work efficiently to address this issue and ICC should also agree on
amending the articles of Rome Statute that would cause harm to the sovereignty and national
interest of the US and its other member countries.

Bibliography
Schaefer, D. B. & Groves, S. (2009). The U.S. should not join the International Criminal Court.
The Heritage Foundation. Retrieved from:
http://www.heritage.org/research/reports/2009/08/the-us-should-not-join-theinternational-criminal-court

Mckenney, S. (2013). The United States Need to Ratify the Rome Statute. Journal of
International Relations, Retrieved from http://www.e-ir.info/2013/05/17/the-united-.
states-need-to-ratify-the-rome-statute/

Sievert, R. (2011). A New Perspective on the International Criminal Court: Why the Right
should embrace the ICC and how America can use it. University of Pittsburgh Law
Review.

Simmons, B. & Danner. A. (2008). Credible Commitments and the International Criminal Court.
Weatherhead Center for Interntaional Affairs. 4(2): 43-50.

Rapp, S. (2013). The International Criminal Court: Why is the United States not a member?.
American Humanist Association, Retrieved from
http://americanhumanist.org/HNN/details/2013-06-the-international-criminal-court-whyis-the-united-s