Argument: ICC acts only if national courts cannot; preserves sovereignty

Issue Report: International Criminal Court


Wes Rist, Adjunct Professor at the University of Pittsburgh School of Law. “The Conservative Case for the International Criminal Court Six Years In”. Jurist. 10 Dec. 2008 – Traditional conservative opposition to the Court on the grounds of national sovereignty usually centers around Article 17 of the Rome Statute, which provides that the ICC may not proceed with an investigation when a state party has already conducted an investigation or prosecution “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” 17 (2) provides the specific instances of what would constitute the “genuineness” of a state party’s investigation or prosecution and how the Court should make that determination. Former US Ambassador to the UN John Bolton charged that the ICC opposed “fundamental American notions of sovereignty, checks and balances, and national independence,” an apparent reference to the ICC’s power to review the legitimacy of a domestic investigation or trial of a possible target of the ICC prosecutor. The alleged challenge to “sovereignty, checks and balances, and national independence” apparently comes from having someone who can review US judicial proceedings and declare on their “genuineness.”

While this issue may very well be of concern in many nations around the world, the United States is not a country that should have to worry about the “genuineness” of its judicial proceedings. One of the many foundational concepts of American conservatism is that power should never be absolute in the hands of the government. The War for Independence came about in large part because of the unchecked use of power by the British Parliament in the name of King George III. This concern gave rise to the separation of powers and the system of checks and balances that we enjoy under the American Constitution. The Rome Statute’s review of “genuineness” of judicial proceedings is not an abridgment of checks and balances, but rather another, albeit international, check on domestic governments. Given the strong heritage of an independent judiciary in this country and the inability of the executive branch to exercise any permanent control over federal judges, the only instance where the ICC could step in and take up a case where an American investigation or trial had already occurred would be if the executive branch exercised undue influence over the investigation or trial and prejudiced the result. Should that event occur, not only should American conservatives be supportive of the ICC’s ruling, but they should also be at the head of the crowd protesting the abuse of power by the executive branch. That kind of unchecked authority is exactly what the American experiment was designed to eliminate.