Are U.S. Concerns With the International Criminal Court Justified?

By
Justice Gavel
Are U.S. Concerns With the International Criminal Court Justified? - Richard C. Palermo, Jr.

Since its inception in 1998, the creation of the International Criminal Court (ICC) has been hailed as a landmark event for the development of international law. The court is the world's attempt to prosecute the perpetrators of crimes against humanity, the most promi­nent examples of such crimes being ethnic cleansing and genocide. From July to November 2002, discussions on how to structure the ICC culminated in its creation through the ratification of the Rome Treaty.

While the ICC in concept is a tremendous achievement, its execution in practice leaves some critical issues unresolved that could impact the court's future credibility and effectiveness. Key objec­tions from the United States have drawn the ire of the rest of the world, particularly in Europe. With memories of the Kyoto Protocol and the Anti-Ballistic Missile Treaty still fresh, many Europeans spite the U.S. refusal to ratify the Rome Treaty that created the ICC s yet another example of unilateral action from the arrogant global hegemon.

While admittedly the United States could execute its foreign policy in a more diplomatic fashion, the cries of unilateralism are overblown. Moreover, European criticisms ignore the fact that the Rome Treaty has some serious flaws that must be addressed or the court's future legitimacy may be questionable, at best. Several U.S. objections, such as the omission of amnesties in the reconstruction of democracies, are concerns all signatory states to the ICC should address, as the inclusion of such items could potentially threaten world peace and security.

Other issues specific to the United States relate to the country's status as the most visible, powerful nation on the planet. No other state negotiates more peace settlements, assists with more humani­tarian interventions and supports more peacekeeping operations. Thus, no other state is a more visible target for public criticism than the United States.

In the following pages, the key deficiencies of the Rome Treaty will be reviewed in light of the counter arguments currently in the public sphere of debate. The first section will provide a concise back­ground on the court and its accomplishments to date. The second section will cover three 'general' problems with the court-problems the United States has noted, but that the global community should be concerned with as well. Specifically, these issues include the fail­ure to provide a clear and direct link to the U.N. Security Council, the omission of national amnesties in the reconstruction of democra­cies and the issue of including aggression as a crime. The final part of the argument will deal with specific U.S. objections to the Rome Treaty; the most important of which concerns the ICC's universal jurisdiction. This section will also address U.S. concerns with the court's potential subjectivity, particularly related to peacekeeping op­erations, as well as the time period allotted for treaty amendments. Currently, there has been little movement on these issues with the rest of the world seemingly content to barrel ahead without the United States. The harsh reality is that the ICC requires U.S. participation far more than the United States requires the ICC, particularly regard­ing enforcement.

A review of these issues will uncover a painful truth: moving ahead without resolving the critical flaws of Rome is a tragic mis­take.

A Concise History of the ICC

The end of World War II heralded a new age for the promo­tion and protection of international human rights. The Nuremberg Trials, established to punish those responsible for the Holocaust, and the 1948 Covenant on Human Rights spawned a movement toward protecting the rights of all peoples and punishing those who violate international norms. At the same time, the seeds were planted for the establishment of a permanent court to oversee such cases. Accord­ingly, the United Nations General Assembly asked the International Law Commission (ILC) to assess the viability of a permanent crimi­nal court. Two draft statutes were written by 1953, but Cold War politics prevented any real progress toward that end.1

With the fall of communism in 1990 and the collapse of the Soviet Union shortly thereafter, a new window of opportunity for a permanent court began to emerge. However, it was the brutal ethnic civil wars of the 1990s that provided the key impetus for action. With the outbreak of ethnic civil wars in the former Yugoslavia, work began to make a permanent court a reality. The United Nations again requested the ILC to draft a statute in 1992.

The International Law Commission and the Preparatory Committee's work culminated in the Diplomatic Conference in Rome, where representatives from 150 states met to hammer out an agree­ment on a statute to create such a court.2 Negotiations ended in 1998 with the signing of the Treaty of Rome that established the ICC. The ICC's basic elements include 18 judges, elected by an ab­solute majority vote of the states parties to the treaty by secret ballot. These judges would hold office for a term of nine years and would not be eligible for reelection.3 It also includes executive organs, such as the presidency, Pre-Trial and Appeals Chambers, Office of the Prosecutor and Registry. Moreover, it allows for a prosecutor elected by secret ballot by an absolute majority of the members of the As­sembly of States Parties, as well as several deputy prosecutors, elected in the same fashion from a list of candidates provided by the pros­ecutor. The prosecutor and the deputy prosecutors hold office for a term of nine years and are not eligible for reelection.

The ICC has jurisdiction over all war crimes, both civil and international, genocide (as defined by the United Nations), crimes of aggression, crimes against humanity and crimes established un­der treaty provisions that may constitute "exceptionally serious crimes of international concern."4

The establishment of the ICC includes notable achievements. First, the elimination of Ad Hoc Tribunals is a significant advance­ment in the process for prosecuting war crimes such as genocide. The start-up process for an Ad Hoc tribunal is often cumbersome and slow and has limits on ratione tempore and materiae (limits on the period of time and material covered). The ICC will eliminate these start-up issues, as well as enable prosecutors to try cases of genocide that occur outside a state of war.5

Another advancement achieved at the Rome conference was the addition of sexual offenses to the list of eligible crimes. Born out of the brutal use of rape as a tool of terror in Bosnia and other parts of former Yugoslavia, the ICC has the ability to prosecute such crimes when used as a weapon of war.

Based on the Pinochet case, the culpability of military and civilian leaders was clearly defined and broadened such that leaders could not hide behind the actions of their subordinates. Under the new ICC statute, the military commanders will be responsible for controlling the actions of their soldiers out in the field. Further, civil­ian leaders may not disregard or ignore the actions of their military commanders.6

Lastly, the concept of "complementarity" defines the relation­ship between the ICC and national courts. The essence of complementarity is that the ICC should complement, rather than re­place or supercede national courts. Thus, the primary responsibility for enforcing the laws of war still resides with the national courts.7 This is a significant provision, as it allows national courts to investi­gate and prosecute crimes that occurred within their jurisdiction un­less the national court is unwilling or unable to handle the case ef­fectively -a key difference between the ICC and the Rwandan and Yugoslavian tribunals.8

Rome Treaty Concerns

While the Rome Statute could be characterized as a signifi­cant step forward from earlier attempts at international war crimes tribunals, a debate persists about a significant number of structural considerations.

Amnesties

The omission of amnesties is a critical point of debate, as the resolution of many civil wars results from agreements to protect former leaders from punishment. National reconciliation in Argen­tina, Chile, El Salvador, and South Africa all concluded with some form of amnesty arrangement for the past leadership. I. William Zartman, a pre-eminent scholar in the area of conflict management and resolution, refers to the issue as one of the six dilemmas of con­flict management: Justice vs. Peace. 9 In violent ethnic conflicts, it is often extremely difficult, if not impossible, to reach a lasting peace settlement without sacrificing justice. As Zartman so aptly puts it, "Peace is often the enemy of justice."10 Interveners are frequently faced with the choice of reaching peace agreements that, on one hand, end the violence and save lives, and on the other hand, prosecute those that may have committed particularly heinous crimes, such as systematic rape, torture and forced disappearances. Additionally, there may be risks of restarting the conflict, particularly in cases where a mutually hurting stalemate does not exist.11 As Ruth Wedgwood, director of the international law program at Johns Hopkins University's School of Advanced International Studies states: "One must recognize that militaries can still attempt confrontation, hold­ing local democracies hostage, making plain what the cost of any prosecution may be."12

Unfortunately, the negotiations in Rome failed to account for the difficult issue of justice vs. peace. One counter argument made by several authors states that the existing legal situation does not allow for the possibility of respecting amnesties and uses the Am­nesty International (AI) assessment of 1997 as a basis for their conclusion.13 The AI document states that "national amnesties and par­dons which prevent the emergence of the truth and accountability for serious violations of humanitarian law in international and non­international armed conflict are inconsistent with the duty to bring to justice those responsible for such crimes."14 This argument ap­pears to imply that it would be better for the killings, rapes, and torture to continue as long as, when it is over, those responsible are brought to justice, either within a national truth commission proce­dure or by the use of force through the ICC.

Authors such as Gerhard Hefner, a member of the Austrian delegation to the Rome Conference and a current member of the International Law Commission, go a step further. He suggests that the Pre-Trial Chamber will have the power to decide how to balance the individual victims' interests and the gravity of the crime against the more general interest of justice. From this perspective, the judges will be expected to decide "whether the interests in ensuring concili­ation and a smooth transition of power by not instituting proceed­ings will override the interests of those seeking justice without re­gard to (shortsighted) political necessities."15

Yet, it seems difficult to envision that the ICC can succeed where its predecessors and other international bodies have failed. One need only look at how the United Nations bungled the peace­keeping mission in Rwanda or the negotiation process for the brutal civil war in Burundi to have significant objections to the overly ide­alistic (from a legal perspective) and simplistic argument that law­yers know more about the inner workings and historical context of a given conflict than anyone else. (In the case of Burundi, for example, there were no fewer than nineteen different parties at the negotiating table. 16 The complexities involved in negotiating peace settlements such as Burundi's are immense. But the desire to make the peace settlement completely just makes the process nearly hopeless.)

Overall, the counter arguments put forth fail to acknowledge the lessons taught by the most bitterly fought ethnic conflicts of our time. As Zartman notes, "a conflict resolution that perfectly com­bines peace and justice is as rare as other moments of perfection in human action."17 However, Gerhard Hefner, Kristen Boon, Anne the decades of experience of Zartman and other conflict resolution experts indicate that justice must at some point be sacrificed to achieve the greater aim of halting violence and achieving a lasting peace. Moreover, no international body or court ought to then assess, post­agreement, whether or not that agreement achieves an adequate or acceptable level of justice. If the ICC started to review peace agree­ments for a proper balance of justice and peace, it could be extremely difficult for war-tom states to reach an acceptable peace accord in the first place. We should not, as the AI report suggests, pursue jus­tice at all costs, particularly if it sacrifices peace in the long run.

The Role of UN Security Council

Under the U.N. Charter, issues relating to international peace and security are the strict domain of the Security Council. Neither the General Assembly nor any other body may make recommenda­tions or take action on these matters when the issue at hand is on the Security Council's agenda. Moreover, the Security Council frequently acts in situations where international law is vague or still evolving. Curiously, there is hardly any role carved out for the Security Coun­cil in the Rome Statute.18 Proponents argue that the Security Coun­cil can refer cases to the ICC under Article 13 (b) of the Rome Statute and that the Security Council has the authority to suspend the activi­ties of the ICC. However, the statute requires that the Security Coun­cil renew its suspension of ICC actions every twelve months, even if a pending matter may have serious consequences on peace making efforts in a particular conflict.19 While this may appear like a mere formality, given that the Security Council's membership rotates ev­ery twelve months, it seems very likely that every time the Security Council needs to vote on the suspension, it could be dealing with ten new members. Noting the difficulty the United States had in con­vincing the Security Council that it should act to enforce its own resolutions regarding the disarmament of Iraq from September through October 2002, going through the process of renegotiation every year could jeopardize existing arrangements. The Rome Stat­ute also limits this authority by forbidding the suspension of a case for more than twenty-four months, further restricting the Security Council's role.20

A further complicating factor is the Security Council's abil­ity to vote down a motion to send a case to the ICC, even though the ICC prosecutor, with authority to act in complete independence, still can take action on the matter. 21 While the prosecutor may eventually be challenged and investigations blocked by the Pre-Trial Chamber, the actions of the prosecutor could disrupt a delicate negotiation pro­cess and damage an opportunity for a cease-fire or achievement of a peace accord. Marc Grossman, the U.S. Under Secretary for Politi­cal Affairs notes that the power given to the ICC prosecutor elimi­nates the existing system of checks and balances and essentially usurps the authority of the Security Council.22

A final point, noted by Wedgwood, addresses the question of the ICC's legal authority to limit the power of the Security Council. Wedgwood states that Article 103 of the U.N. Charter "gives pri­macy to the Charter over any other treaty obligations," and that a precedent has been set by past Security Council actions relating to matters of international peace and security.23 Therefore, it is pos­sible that the compromises reached in Rome may be in direct viola­tion of the U.N. Charter.

The creation of the ICC would have been a significantly more productive process if more thought had been given to the role of the Security Council before the treaty was signed. As Wedgwood notes, five weeks of debate (the length of the Rome Conference) hardly seems enough time to decide such a complex and critical issue.24 The large number of Security Council sponsored actions, particu­larly in peacekeeping operations, over the past ten years reflects the need to maintain the security apparatus established under the U.N. Charter. The current Iraqi crisis underscores the need for the cred­ibility of the Council to be preserved. If it is continually undermined, or its authority diminished, the risk of irrelevance will become very real.

Inclusion of Aggression as a Crime

There was considerable debate at the Rome Conference about the inclusion of aggression as a crime. Even well-known human rights groups, such as The Lawyers Committee on Human Rights, disagree with the inclusion of aggression as a crime. Their main argument is as follows: There is currently no legally binding definition of aggres­sion for the purposes of determining individual responsibility.25 While many point to the definition offered in United Nations General As­sembly (UNGA) Resolution 3314 from December 1974, this defini­tion of aggression is concerned with state actors, not with individu­als. 26 This fact supports the call for the Security Council's role to be more clearly defined, as the Security Council has the responsibility for dealing with matters of aggression between states.27 However, if one attempts to apply the U.N. definition to an individual or a terror­ist organization such as al Qaeda, the issue becomes more compli­cated. Attempting to prosecute individuals regarding a crime of ag­gression would be a highly political and subjective affair not exactly following the high moral and legal standard for a just and fair pros­ecution.

Moreover, according to the Lawyers Committee, "the mecha­nism for establishing accountability for aggression under the draft statute would undermine the independence of the court."28 Accord­ing to Article 10 (2) of the statute, the court cannot review a com­plaint unless the Security Council has determined that an act of ag­gression has been committed by the state involved in the complaint. This begs the question as to whether or not the ICC could find an individual 'not guilty' of aggression given the Council's determination.29 In other words, if the Security Council finds a state guilty of aggression, the court would be hard pressed not to find the indi­vidual or individuals responsible for the aggression guilty. The abil­ity of the accused individuals to receive a fair trial would thus be severely limited.

Wedgwood makes a more radical argument, suggesting that the crime of aggression was put in the final text merely to gain sup­port of Southern Hemisphere states and that the common belief is that it would be impossible to get seven-eighths of the Rome Treaty parties to agree on a common definition of aggression. Rather, she argues that it was simply a matter of goodwill and that the court will never hear complaints of aggression.30 If this is true - her cynicism aside - incorporating such a controversial crime into the statute calls into question the credibility of the treaty itself Such an important institution ought to be founded on more concrete principles than simply goodwill, especially given the principled and idealistic argu­ments put forth by many proponents of the court.

U.S. Objections

The objections of the United States to the ICC form a major part of the current academic debate on the court's viability. The most prominent issues address universal jurisdiction, potential abuse of the court and the length of the consideration period for treaty amend­ments.31

Universal Jurisdiction

One of the key U.S. objections concerns the concept of uni­versal jurisdiction. The ICC is the only international treaty or cov­enant that covers sovereign nations' citizens who have not ratified the treaty. The U.S. government argues that the ICC, or any interna­tional body, cannot legally create an international institution that "can exercise powers in relation to nationals of states that are not party to the artangement."32 This basic principle implies that states are not obligated to take part in any international body. From this perspec­tive, the ICC statute appears to run counter to this principle.

While several treaties have used universal jurisdiction for en­forcement purposes - such as those designed to combat terrorism - this provision has typically been reserved for national courts and between treaty parties. Wedgwood argues that the use of universal jurisdiction has been "measured," not only for criminals, but also in the operational law of war.33 She notes that neither the four proto­cols of the Geneva Conventions of 1949 nor the Hague regulations directly grant universal jurisdiction and therefore the ICC statute creates a form of universal jurisdiction that is entirely new.34 Inter­estingly, the European Court on Human Rights operates like other international bodies; its authority only covers states that are party to the treaty.

One could argue that the Ad Hoc tribunals, such as the spe­cial tribunals created for Yugoslavia and Rwanda, were international institutions established without the consent of either nation. How­ever, there is a critical difference. First, the special tribunals were created by the U.N. Security Council under the powers granted un­der Chapter 7 of the U.N. Charter.35 Since both nations were parties to the U. N. Charter, and decisions by the Security Council are bind­ing on member states, these states were subject to the tribunals, with or without their explicit consent.36

One could argue that the ICC was created by "an act of inter­national lawmaking by virtually all states."37 Yet many other treaties created by virtually all states are not legally binding, nor are those states' citizens subject to their jurisdiction. Even signing a treaty or covenant does not make a state legally bound to its stipulations. Only when a treaty is ratified does it become legally binding by the signa­tory, and only after it has been ratified by a minimum number of states. In the case of the ICC, there were sixty ratifying states. Chang­ing the treaty acceptance procedure sets a new and dangerous prece­dence.

The United State's most forceful objection to universality con­cerns the strain it may place on American military engagement around the world. The U.S. position as the world's policeman places it in a difficult position vis-a-vis the ICC. Take, for example, the 1999 NATO action in Kosovo and the recent action in Afghanistan, both of which highlight the complexities of modem warfare. As Wedgwood points out, whether a war is just or not is a separate issue from whether the means are just. 38 Thus, in a more unpopular war, accidents or the limits of the use of justifiable force may be turned into larger legal quarrels.

Thomas W. Smith recently elaborated this point in an article on the use of high-tech weapons and infrastructural violence. In the article, he points to the potential legal complications regarding mili­tary strategy in the 21st century. He questions the legitimacy of tar­geting infrastructure such as roads, bridges and electricity grids in warfare, as well as the limits of the destruction.39 The Kosovo action calls this out even more, as NATO had to limit types of munitions and fly at certain altitudes. Had the conflict been less popular, or wholly unpopular, could the U.S. military planners and NATO joint command have been brought before the ICC? These questions are not insignificant given the potential for future, more asymmetrical conflicts the United States may be involved in over the next two to three years. Thus, the existence of the ICC in its current form could actually act as a deterrent against humanitarian interventions that could save millions of lives.

Potential for Abuse

The U.S. objection regarding abuse is directly related to its objection to the court's universality. The United States takes issue with the lack of checks and balances to ensure that prosecutions are just. 40 Without such protections, for example, there exists a poten­tial for politicized prosecutions of U.S. soldiers participating in peace­keeping efforts. Normally, under U.N.-sponsored peacekeeping ac­tions, the United Nations establishes an agreement with the host state, known as a Status of Forces Agreement (SOFA) that exempts its peacekeepers from criminal jurisdiction. In other words, soldiers have basic immunity from prosecution in the court system of the host state. These arrangements are covered under the Convention of the Privileges and Immunities of the United Nations, which provides immunity from prosecution for U.N. officials and agents.41

In situations where these arrangements do not exist, the states contributing troops make agreements with the United Nations that stipulate the contributing states' jurisdiction over the troops they contribute.42 However, the ratification of the Rome Statute now ex­poses peacekeepers to potentially malicious prosecutions. The Stat­ute, in effect, conceptually creates a new universal jurisdiction as mentioned in the previous section.

While it would appear that the United States is no more sus­ceptible to this than other nations, the United States is currently the most powerful and visible actor in the international arena, thus ex­posing its citizens and soldiers to the jurisdiction of the court on a broader basis than most other states. The action in Kosovo is an excellent example of an incident in which the United States took action, along with its NATO allies, despite objections from several European nations, most notably Germany and Russia. Given the loose definition of 'aggression' mentioned earlier, could U.S. actions have been considered aggression under the Rome Statute? While most experts view the NATO action as justified in attempting to protect the Kosovar Albanians from ethnic cleansing and other atrocities, prosecutors under the Statute were granted the right to initiate their own investigations and indictments, propri motu.43 With ninety in­cidents of civilians being killed in the NATO bombing campaign, is it not possible, the United States argues, that an overzealous pros­ecutor might target American forces or individual officials?

Proponents of the Statute argue that this is an extremely un­likely scenario, first, because the court and its prosecutors will be focused on the most heinous of crimes as defined by the Statute. However, aggression is one of those crimes. With this vague defini­tion and anti-American sentiment on the rise, it appears that this scenario could be more likely than proponents care to admit.

Proponents also point to the fact that the prosecution must first be approved by the Pre-Trial Chamber of the Court, which con­sists of three judges.44 This plurality of opinions, coupled with the principle of complementarity, would prevent such cases from pro­ceeding and actually being heard by the court. While this may be true, damage could be done to the cohesiveness of public and politi­cal support for a humanitarian military intervention if cases investi­gated by a prosecutor were made public. In the Kosovo intervention, the NATO allies were often at odds over issues of targeting and the types of munitions to use, as well as civilian casualties, among oth­ers. Further, there were significant anti-NATO protests across Eu­rope, particularly in Germany.45 Had the ICC existed then and a pros­ecutor began an investigation, it could have effectively splintered the Allies' resolve and the intervention may have failed to achieve the success many claim it was today.46

The U.S. fears about this aspect of the Court's potential abuse were reinforced after the NATO air campaign in December )1999, when a group of Russian legislators and legal experts instigated an investigation of NATO allies committing war crimes in Yugoslavia under the International Criminal Tribunal for the former Yugoslavia (ICTY). While the case was not pursued, it indicated the potential for abusive prosecutions, particularly before a court not covered un­der the auspices of the U.N. Security Council.47

However, the United States has taken the step to negotiate individual immunity agreements for its soldiers with each European state. While the United States successfully convinced many states to agree on immunity arrangements, several states, such as Croatia, re­fused to sign any such arrangements. Additionally, the European Union threatened states that did not wish to enter into these arrange­ments with the possible delay of their chances at E. U. accession. This placed further pressure on the status of the immunity arrange­ments.48 At the time of this writing, the impact of these states' refus­als to sign immunity agreements remains unclear.

Treaty Amendments

The final objection to the Rome Statute is the fact that treaty amendments will not be considered or discussed for seven years. Moreover, while the statute stipulates that amendments to the treaty's scope of crimes will apply to signatories and non-signatories alike, if a state party who signed the treaty votes against the amendment, the changes will not apply. Non-signatories may then be held to a broader scope of crimes than the signatories themselves. While some argue that this is an incentive to sign the treaty, this logic fails to incorporate the practical political realities for nations where public support for the ICC is limited. It also ignores the impacts of overseas military commitments that may complicate the ratification process,49 notwithstanding the fact that no other treaty mechanism exists that works in the manner as the Rome Treaty.

The seven-year waiting period for any amendments is par­ticularly problematic for the still-undetermined definition of aggres­sion, as noted in the example of the NATO air campaign in the previ­ous section. The inability to make adjustments to the treaty will make it difficult, if not impossible to obtain U.S. acceptance and ratifica­tion of the Statute. While the United States continues to play a criti­cal role in the actual enforcement of ICC decisions, its acceptance or rejection of the ICC could determine the court's future.50 While this is not to say that the treaty should be changed at the whim of the United States, it does indicate that it should warrant further negotia­tion and flexibility to reach mutually agreeable compromises.

Furthermore, the proscription of possible amendments is baf­fling, given that even staunch supporters agree that the ICC is a work in progress and will evolve over time. Clarification of definitions, problems of enforcement - particularly if a state chooses to ignore the rulings of the court - among other issues, will be undoubtedly refined over time. To limit this process by time and/or by its applica­bility appears to make it more difficult for some states to join the ICC.

Interestingly, little has been written in response to such criti­cisms. In their response to Wedgwood's article on the American view of the ICC, Hafner and his colleagues fail to mention the question of amendments.

Conclusion

As stated at the outset, there are several significant challenges that confront the new ICC as it begins its first year of operation. These are real challenges that could affect the very future of the court. In particular, the issues regarding the role of the Security Council, the definition of aggression, and the potential for abusive prosecu­tions threaten not only the credibility of the court but the future of humanitarian interventions. While the world desperately wants to avoid another situation such as occurred in Rwanda in 1994, keep­ing the Rome Treaty in its current state could actually encourage more atrocities. World leaders may hesitate to intervene or avoid intervention altogether and allow the various types of heinous crimes to be committed that the court was created specifically to deter.

Unfortunately, there has been little progress recently in re­solving the inherent flaws of the ICC Statute. Worse, in the past few years it has become popular to marginalize U.S. policies or to char­acterize its actions as 'unilateral,' 'hegemonic,' and 'exceptionalist,' rather than actually listen to and internalize the U.S. objections and negotiate a compromise. To this author, it appears all too easy to label the United States as uncooperative and to publicly denounce its opposition to the ICC as a strand of unilateralism. These argu­ments may hold some merit, although not from the perspective of U.S. action, but through the manner in which it executes its policies.

Many critics point to the U.S. departure from the Kyoto Treaty on greenhouse gas emissions and the Anti-Ballistic Missile (ABM) Treaty as ammunition to support their case that the objections to the ICC are of the same nature. Yet this argument conflates radically different, highly politicized decisions in which the United States voiced valid concerns.51

Would it not be significantly more productive to engage in discussions and insert more flexibility into the amendment process to allow refinements to the treaty? It appears that tightening up the treaty's language would not only facilitate the ratification by mem­ber states who have yet to do so, but would also strengthen the agree­ment as a whole which in tum would bolster the credibility and en­forceability of the court's judgments. The treaty laid an excellent foundation from which to build. It is now time to finish the job prop­erly and to construct an ICC that will function properly within the current parameters of international law and the global security archi­tecture.

Notes