Question and Answers

The 1998 Rome Conference.

1.) Will the accused get a fair trial at the ICC?
2.) Does the treaty threaten the sovereignty of individual states?
3.) Does the Rome Statute create a prosecutorial system that is an unchecked power?
4.) Who has ratified the treaty?
5.) What happens if a country does not ratify the treaty?
6.) How can politically motivated cases be avoided?
7.) Will the ICC have a chilling effect on the willingness of States to project power in defense of their moral and security interests?

1.) Will the accused get a fair trial at the ICC?

The ICC has one of the most extensive lists of due process guarantees ever written. The treaty contains a detailed list of rights enjoyed by any accused person that is as comprehensive as the US Bill of Rights; including the presumption of innocence, the right to counsel, to present evidence and to confront witnesses, the right to remain silent, the right to be present at trial, the right to have charges proved beyond a reasonable doubt and protection against double jeopardy.

2.) Does the treaty threaten the sovereignty of individual states?

The ICC treaty principle of complementarity preserves the primary right and duty of States to prosecute the most serious human rights crimes and can proceed only when the state with primary jurisdiction is unable or unwilling to proceed. Any country can avoid prosecution of its citizens by the ICC by using its own courts to prosecute genocide, crimes against humanity and war crimes. The ICC will not even have jurisdiction over cases involving nationals if the state itself investigates, and if appropriate, prosecutes the individual responsible.

In addition, nationals can only be prosecuted if they commit one of the extremely serious crimes under the jurisdiction of the Court and national efforts to investigate such crimes and, if appropriate, to prosecute will prevent the ICC from proceeding, even if national authorities concluded that the evidence does not warrant prosecution. So, unlike foreign courts that today are allowed to try Americans, the ICC must defer to American justice when the US is willing to investigate and prosecute an alleged crime itself. Thus, the Statute is well-balanced. It considers the interests of States as well as the demands of international justice.

3.) Does the Rome Statute create a prosecutorial system that is an unchecked power?

Numerous safeguards in the ICC treaty will prevent frivolous or politically motivated cases. First, the ICC will cover only the most egregious international crimes, defined in ways corresponding closely to the US Code of Military Justice. Second, the prosecutor will not be able to begin an investigation without authorization from a Pre-Trial Chamber of Judges. All indictments require confirmation by the Pre-Trial Chamber, which will examine the evidence supporting the indictment before issuing it. The accused and any concerned countries will have an opportunity to challenge the indictment during confirmation hearings before the Pre-Trial Chamber.

The Court will be located in The Hague.

4.) Who has ratified the treaty?

Virtually every major US ally, including all EU members, have ratified the ICC Treaty and thus joined this Assembly. Because the Court has jurisdiction over crimes committed on the territory of countries that have ratified its treaty, highly abusive governments have been reluctant to expose these leaders to prosecution by joining the Court.

5.) What happens if a country does not ratify the treaty?

Rather their concern relates to the prosecution of non-State Parties nationals without its consent, wrongly characterized as "binding" the state in question. This possibility already exists as part of general international law and corresponds with established state practice. Universal jurisdiction means that anybody can be prosecuted anywhere for the most serious crimes ('erga-omnes-rule'). Moreover, the State on whose territory a crime has been committed has always been held to have jurisdiction to prosecute and try the perpetrators. This means that citizens accused of crimes may be subject to foreign jurisdiction even if one leaves aside the ICC Statute. This is a basic and well established principle of international law. If, for example, an American citizen is accused today of a serious crime in Germany, for example, Germany has the right to try him, even if the US wants to prosecute the crime itself. Furthermore the Rome Statute provides for the principle of complementarity, which is a progress in international law. The principle of complementarity provides that a case which is brought before the Court is only admissible if a state has not properly exercised its jurisdiction over the accused person.

Before the ICC can act, the state of territory or nationality of the accused must be a party to the ICC treaty or accept the Court's jurisdiction (Art. 12 of the Statute). The claim that the Statute is "overreaching" because it supposedly binds states that have not ratified the treaty through the exercise of jurisdiction over their nationals is a gross distortion. The ICC Treaty does not "bind" non-State Parties or impose upon them any obligations towards the Court. Part 9 of the ICC Statute dealing with state cooperation with the Court, specifically obliges only State Parties to cooperate fully and without undue delay: a clear distinction is drawn in a number of provisions between State Parties and non-State Parties. Those who have put forward these concerns would not dispute this.

6.) How can politically motivated cases be avoided?

The Court will be governed exclusively by its Assembly of State Parties (which is an assembly of all member states), consisting of countries that have ratified the ICC Treaty.

That Treaty establishes strict criteria for the selection of the prosecutor and the judges, requiring experts whose reputation, moral character and independence are beyond reproach. They will be prohibited from any activity during their term in office that might jeopardize their independence, and will be excused from particular cases if there is any question of partiality. The judges will be accountable to the Assembly of State Parties and can be removed by a simple vote of those countries in the unlikely event that they abuse their powers. Ultimately, they can be impeached.

Finally, as described above, the UN Security Council can adopt a resolution suspending the ICC from investigating or prosecuting any case.

7.) Will the ICC have a chilling effect on the willingness of States to project power in defense of their moral and security interests?

The presence of international tribunals has never presented a barrier to military action. For example NATO-countries used force in Bosnia and in Kosovo, and have deployed thousands of troops to both places, even though the area is under the jurisdiction of the International Criminal Tribunal for the former Yugoslavia (ICTY). The ICTY has operated responsibly with fewer safeguards than the ICC, and with no requirement to defer to the decisions of national courts. When, for example, the ICTY was asked to review NATO actions in Kosovo, it decided there was no basis for proceeding with an investigation. By deterring atrocities, the Court may also limit the need to deploy US troops in dangerous situations.

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