Argument: ICC lacks separation of powers and checks and balances

Issue Report: International Criminal Court


John R. Bolton, Under Secretary for Arms Control and International Security. “The United States and the International Criminal Court”. Remarks to the Federalist Society. 14 Nov. 2002 – The American concept of separation of powers, imperfect though it is, reflects our settled belief that liberty is best protected when the various authorities legitimately exercised by government are, to the maximum extent possible, placed in separate branches. So structuring the national government, the Framers believed, would prevent the excessive accumulation of power in a limited number of hands, thus providing the greatest protection for individual liberty. Continental European constitutional structures do not, by and large, reflect a similar set of beliefs. They do not so thoroughly separate judicial from executive powers, just as their parliamentary systems do not so thoroughly separate executive from legislative powers. That, of course, is entirely Europe’s prerogative, and may help to explain why Europeans appear to be more comfortable with the ICC’s structure, which closely melds prosecutorial and judicial functions in the European fashion.

In addition, our Constitution provides that the discharge of executive authority will be rendered accountable to the citizenry in two ways. First, the law-enforcement power is exercised through an elected President. The President is constitutionally charged with the responsibility to “take Care that the Laws be faithfully executed,” and the constitutional authority of the actual law-enforcers stems directly from the only elected executive official. Second, Congress, all of whose members are popularly elected, through its statute-making authority, its confirmation authority and through the appropriations process, exercises significant influence and oversight. When necessary, the congressional impeachment power serves as the ultimate safeguard.

In the ICC’s central structures, the Court and Prosecutor, these sorts of political checks are either greatly attenuated or entirely absent. They are effectively accountable to no one. The Prosecutor will answer to no superior executive power, elected or unelected. Nor is there any legislature anywhere in sight, elected or unelected, in the Statute of Rome. The Prosecutor is answerable only to the Court, and then only partially, although the Prosecutor may be removed by the Assembly of States Parties. The Europeans may be comfortable with such a system, but Americans are not.

By long-standing American principles, the ICC’s structure utterly fails to provide sufficient accountability to warrant vesting the Prosecutor with the Statute’s enormous power of law enforcement. Political accountability is utterly different from “politicization,” which we can all agree should form no part of the decisions of either Prosecutor or Court. Today, however, precisely contrary to the proper alignment, the ICC has almost no political accountability, and carries an enormous risk of politicization. Even at this early stage in the Court’s existence, there are concerns that its judicial nomination process is being influenced by quota systems and back-room deals.