Argument: ICC can second-guess national prosecution terminations/denials

Issue Report: International Criminal Court


“Frequently Asked Questions About the U.S. Government’s Policy Regarding the International Criminal Court (ICC)”. State Department. 30 July 2003 – Why are the protections provided for under the Rome Statute insufficient to meet U.S. concerns?

  • Under the Rome Statute, the ICC claims the authority to second guess the actions taken and the results reached by sovereign states with respect to the investigation and prosecution of crimes.
  • Even in cases in which the United States has appropriately exercised its responsibilities to investigate and/or prosecute in a particular case, the ICC prosecutor, with the approval of two judges from a three-judge panel, could still decide to initiate an ICC investigation or prosecution.
  • Such a decision by the ICC prosecutor would not be inconceivable. Features of the U.S. common law system, U.S. constitutional protections for criminal defendants, and the U.S. jury system are different than those that apply in most other countries. ICC prosecutors may not understand, or may disagree with the operation of these aspects of our system in particular cases. This could lead the ICC to deem actions taken by the U.S. to be inadequate and to prosecution of U.S. persons by the ICC.
  • We are also concerned that there are insufficient checks and balances on the authority of the ICC prosecutor and judges.
  • The Rome Statute creates a self-initiating prosecutor, answerable to no state or institution other than the Court itself. Without such an external check on the prosecutor, there is insufficient protection against politicized prosecutions or other abuses.

Gary T. Dempsey. “Reasonable Doubt: The Case Against the Proposed International Criminal Court”. CATO Institute. 16 July 1998 – Complementarity and Diminished Sovereignty Proponents of the ICC also argue that the court is meant to complement, not replace, national criminal justice systems. The court theoretically would take action only when national courts fail to fulfill their legal responsibilities. In fact, the preamble to the ICC draft statute states that the court “is intended to be complementary to national criminal justice systems in cases where such trial procedures may not be available or may be ineffective.” The
determination of a domestic system’s “ineffectiveness,” however, is one of the areas where the rationale for the ICC breaks down. If the ICC cannot readily supersede national courts, a state that wants to avoid having its soldiers prosecuted for war crimes by the ICC need only organize a national trial or pass a law that makes it virtually certain that they will be acquitted.11 If states can get away with that, however, the whole point of the ICC is defeated; that is, war crimes will continue to go unpunished. On the otherhand, if the ICC gets to invalidate national trials by deciding what constitutes an “effective” or “ineffective” trial, the international court will exercise a kind of judicial review power over national criminal justice systems. In other words, the ICC will have de facto supreme judicial oversight.

The ICC will also become an unavoidable participant in the national legal process. Indeed, because it will set precedents regarding what it considers “effective” and “ineffective” domestic criminal trials, the ICC will indirectly force states to adopt those precedents or risk having cases called up before the international court. That constitutes an unprecedented change in the sources of national lawmaking, one that diminishes the traditional notion of state sovereignty.