Forward and Introduction Paper

International Debate Series Paper
2002 - No.1

Should the United States Ratify the Treaty Establishing the International Criminal Court?  Inaugural Debate

FOREWORD

With this publication, the Whitney R. Harris Institute for Global Legal Studies is pleased to announce our new international debate series. We shall hold a series of debates on provocative international issues of practical contemporary importance. Each debate will feature two knowledgeable and articulate advocates of opposing points of view and a neutral moderator. The contents of each debate will be compiled and distributed both in printed form and electronically.

The first debate in this series was held on October 22, 2001. The issue was whether the United States should ratify the 1998 Rome Convention for the International Criminal Court. The debate was skillfully organized by Professor Leila Nadya Sadat, herself a highly respected authority on this subject, and expertly moderated by St. Louis Post-Dispatch reporter William Freivogel. We were fortunate to persuade Professor Michael P. Scharf, who has just joined the Case Western Reserve University School of Law, and Lee A. Casey, Esq., of the law firm of Baker and Hostetler, to present the opposing positions. Both invested substantial preparation and rendered thoughtful and powerful performances. They amply vindicated our expectations that debates on international law would attract considerable interest, educate our students and the broader community, and stimulate lively discussion. We are immensely grateful. Thanks are also due to Leslie Kerr and Linda McClain for their exceptional organizational work and to Darryl Barker, Aris Woodham, and Brian Ingram for their superb technical assistance.

The Whitney R. Harris Institute for Global Legal Studies officially opened its doors in November 2000, after a full year of intensive planning. Through a multipronged program of education, research, and public service, the Institute’s goals are to prepare our students for the global society in which they will live and work and to contribute actively to the solutions of the most vexing world problems. Our activities include international conferences; a speaker series; an international salon series in private homes; a cradle-to-grave advising program for prospective, current, and future students interested in international careers; an American Red Cross volunteer program that enables our law students to teach international humanitarian law to area high school students; a fellowship program for sending our students to the Hague Academy of International Law; various human rights externships; producing literature on ongoing issues and activities; and advising and supporting all the various other international operations of the School of Law. The International Debate Series is our newest initiative. We hope you will enjoy it.

For more information on the Whitney R. Harris Institute for Global Legal Studies, please visit our website, at /harris/

Stephen H. Legomsky
Nagel Professor of International and Comparative Law and Director of the Whitney R. Harris Institute for Global Legal Studies, Washington University

INTRODUCTION
Leila Nadya Sadat*

Just as this publication was going to press, the number of ratifications for the International Criminal Court Treaty reached the sixty Parties required for the Treaty’s entry into force. This long-hoped-for event has generated growing excitement in capitals around the world. After nearly a century of false starts, no longer will those committing atrocities that shock the conscience of humankind be able to assert their impunity from international justice. Instead, the principle of accountability for crimes against humanity, genocide and war crimes, so often declared, but so seldom applied, has acquired a permanent enforcement mechanism.

Among the countries that have ratified the Statute are the United States’ closest allies — Canada, France, and the United Kingdom, to name a few, and the European Union has declared its unqualified support for the Court. One hundred thirty-nine countries have signed the Statute, suggesting that many more ratifications will be garnered soon. The Netherlands, which will be the host State, has launched an international design competition for the ICC’s premises, and the United Nations’ Preparatory Commission, established to prepare the "implementing legislation" necessary for the Treaty’s entry into force, successfully concluded its last session having nearly completed its work.

In contrast, although the United States signed the statute on December 31, 2000, many in our government have either expressed hesitation at ratifying the Treaty, or have declared their opposition to the ICC Treaty in unqualified terms. Earlier this year the House of Representatives adopted the American Service Members Protection Act which, among other things, prohibits U.S. cooperation with the Court; cuts off U.S. military aid to non-NATO countries that ratified the treaty; prohibits U.S. participation in peacekeeping forces unless U.S. troops receive immunity from prosecution; and authorizes the use of force to free American service members brought before the Court. That bill has languished in the Senate, but opponents of the Court succeeded in attaching amendments to appropriations bills that express similar views, one of which will remain in force until next year.

Because of the importance of the International Criminal Court Treaty, both to the United States and the world, and the sharp difference of opinion between the United States and its allies, the Whitney R. Harris Institute for Global Legal Studies at Washington University School of Law organized a public debate, moderated by a well-known local media figure, William Freivogel of the St. Louis Post-Dispatch, on the question whether the United States should ratify the Treaty.

Presenting the case for the Treaty was Professor Michael P. Scharf, formerly of the New England School of Law and now a Professor at Case Western Reserve University School of Law. Professor Scharf is an expert in public international law and a prolific scholar in the field of international criminal law, who came to law teaching after a distinguished career at the United States Department of State. Professor Scharf’s remarks did not focus on the issue of ratification, per se, but instead on the question whether the United States should, in his words, support the Court as an "influential insider" rather than remaining a "hostile outsider." Professor Scharf concludes that it is in the United States’ self-interest to support the Treaty, and suggests that in the short-term, the United States should constructively engage with those who support the Court, attempt to shape it so that the Institution is consistent with American values and interests, and ultimately ratify the Statute if those initial steps proceed well.

Lee A. Casey, Esq., presented the case against ratification of the Statute. Mr. Casey is a distinguished Washington lawyer with the firm of Baker & Hostetler, who has also had a long career in government service and has argued the Blaskic case before the International Criminal Tribunal for the Former Yugoslavia. Rather than address Professor Scharf’s "realist" arguments directly, Mr. Casey asserted that subjecting Americans to the Court’s jurisdiction would be both unconstitutional and an undesirable cession of U.S. sovereignty.

It is now projected that the first judges of the Court will be elected sometime in 2003, and that the Court may be hearing cases later that year. The debate that took place on October 22, 2001, at Washington University is likely to be played out again and again in the halls of Congress, in discussions among the President’s advisors, and in international fora worldwide in the days and weeks to come. We hope that the views expressed by our two distinguished experts here will help to inform the public at large and our country’s leaders as they consider what path to take in regard to the Treaty.

* Professor of Law, Washington University in St. Louis, and Commissioner, United States Commission for International Religious Freedom. These remarks are made in the author’s personal capacity and are not attributable to any institution with which she is affiliated.  

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