Argument: ICC will continually expand jurisdiction over national sovereignty

Issue Report: International Criminal Court


Gary T. Dempsey. “Reasonable Doubt: The Case Against the Proposed International Criminal Court”. CATO Institute. 16 July 1998 – Efforts to Expand the ICC’s Purview

For example, Amnesty International, a nongovernmental organization supporting the establishment of the ICC, says
not only that the court should handle war crimes, crimes against humanity, and genocide but that the “perpetrators of
human rights violations must be brought to justice” there as well.17 Embracing that view, the ICC draft statute contains
wording that would elevate unlawful imprisonment and political incarceration to the status of international crimes.
Although those activities are deplorable, including them in the final ICC statute will establish the precedent that the
international court exercises “complementary” jurisdiction not only over war crimes, crimes against humanity, and
genocide but over matters of domestic law enforcement and internal security as well.

A number of countries also want to have the crime of “aggression” included in the final ICC statute. For instance, Germany’s representative to the Preparatory Committee for the Establishment of an International Criminal Court, Rolf Welberts, says that his delegation is encouraged by the broad support for its initiative to include the crime of “aggression” in the future court’s statute and that the statute would be blatantly incomplete without the inclusion of that crime.18 Similarly, the Russian Federation’s representative, Aleksander Zmeevsky, says that his country believes that the court’s jurisdiction should cover acts
threatening the maintenance of international peace and security and that such crimes include planning, preparing, initiating, and carrying out a war of aggression.19 Libya is even arguing that the crime of “aggression” should be defined to include confiscation of property and establishment of settlements in occupied territories.20 That wording would have direct implications for the United States, which continues to freeze Libyan assets, and for Israel, which continues to build settlements on the West Bank.

[…]The Potential for a Jurisdictional Leviathan Some proponents of the ICC want “terrorism” and “international drug trafficking” to be added to the court’s purview. 24 But the U.S. Department of Justice worries that that could end up interfering with the crime-fighting operations of its Federal Bureau of Investigation and Drug Enforcement Agency, especially if the ICC’s investigators unknowingly conduct competing investigations. To avoid that problem, the FBI and the DEA could inform the ICC of their investigations, but letting an outside organization know about their sensitive work would increase the security risk that confidential information will be unintentionally leaked and investigations compromised. What is more, putting the
offense of “drug trafficking” under the court’s jurisdiction further entrenches the ill-conceived drug war and throws up
another obstacle to a long-overdue reconsideration of drug prohibition and its alternatives.

Other proponents of the ICC want to go even further and have the final ICC statute include “forced pregnancy” as an international crime.25 Typically, “forced pregnancy” has been understood to mean repeated rape for the purposes of impregnation, like those incidents reported during the war in Bosnia. But Brigham Young University law professor Richard Wilkins fears that the wording could be abused to bring lawsuits against countries that do not have liberalized abortion laws, noting that the lawyers opposing Utah’s abortion control laws argued that “requiring a woman to give a reason for a termination of her pregnancy constituted what they called a compelled or forced pregnancy.”26

Some proponents of the ICC even want the final statute to contain wording that would give the court jurisdiction over a host of new “crimes,” including “committing outrages upon personal dignity”27 and causing “serious threats to the environment . . . [such as] the Chernobyl and Bhopal disasters.” 28 Given that the definitions of those “crimes” are not settled as a matter of international law, they are not likely to be included in the final ICC statute, but a review clause will probably be included, allowing states to meet periodically to expand the court’s purview to include them. Some advocates of the ICC clearly want to expand the court’s domain to include those and other crimes, but they recognize that many states are wary of having their government officials and corporate leaders called before an international court. Accordingly, those groups have made a deliberate
decision not to push for adding noncore crimes to the court-‘s purview until after a treaty is ratified. Donald W. Shriver Jr. of the Faith-Based Caucus for an International Criminal Court, for example, explains that we will never have an ICC or any other effective world court if powerful nations . . . insist onalways being judge in their own cases. This resistance, shared by many other peoples, is itself an argument for keeping the list of crimes against humanity rather short at the beginning, if only to get national publics around the world to begin to distinguish between ordinary and extraordinary criminals.29 In other words, the treaty that comes out of the Rome conference is only the beginning.