Reasonable Doubt: The Case against the Proposed International Criminal Court

July 16, 1998 • Policy Analysis No. 311

In July 1998 representatives of governments and nongovernmental organizations will conclude a five‐​week international conference in Rome aimed at producing a treaty establishing the International Criminal Court. The stated mission of the proposed ICC is to prosecute persons charged with the most serious international crimes, such as war crimes, crimes against humanity, and genocide. With 116 articles and more than 200 wording options to be debated, however, the ICC’s draft statute is replete with unresolved issues and alarming possibilities.

Specifically, the court threatens to diminish America’s sovereignty, produce arbitrary and highly politicized “justice,” and grow into a jurisdictional leviathan. Already some supporters of the proposed court want to give it the authority to prosecute drug trafficking as well as such vague offenses as “serious threats to the environment” and “committing outrages on personal dignity.” Even if such expansive authority is not given to the ICC initially, the potential for jurisdictional creep is considerable and worrisome. Moreover, it appears that many of the legal safeguards American citizens enjoy under the U.S. Constitution would be suspended if they were brought before the court. Endangered constitutional protections include the prohibition against double jeopardy, the right to trial by an impartial jury, and the right of the accused to confront the witnesses against him.

For those and other reasons, the U.S. Senate and U.S. House of Representatives should have sufficient grounds to, respectively, refuse to ratify and to fund the International Criminal Court. If Congress goes ahead with the treaty, it could open a Pandora’s box of legal mischief and political folly.

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