Much of the media attention to the American negotiating position on
the ICC concentrated on the Pentagon's fears for American
peacekeepers stationed around the world. As real as those risks may
be, however, the main concern is not that the Prosecutor will indict
the isolated U.S. soldiers who may violate our own laws and values,
and their own military training and doctrine, by allegedly committing
a war crime. The main concern should be for the president, the
cabinet officers who comprise the National Security Council, and
other senior civilian and military leaders responsible for our
defense and foreign policy. They are the potential targets of the
politically unaccountable Prosecutor created in Rome.

The Statute of Rome's other two offenses (war crimes and crimes
against humanity) are even more vaguely defined, to the point that
an activist Court and Prosecutor can broaden the Statute's language
essentially without limit. For example, the ICC Statute's definition
of "war crimes" includes:

"intentionally directing attacks against the civilian population as
such or against individual civilians not taking direct part in
hostilities; [and]

intentionally launching an attack in the knowledge that such attack
will cause incidental loss of life or injury to civilians or damage
to civilian objects or widespread, long-term and severe damage to the
natural environment which would be clearly excessive in relation to
the concrete and direct overall military advantage anticipated. . . ."

A fair reading of these provisions leaves one unable to answer with
confidence whether the United States was guilty of war crimes for its
aerial bombing campaigns over Germany and Japan in World War II.
Indeed, if anything, a straightforward reading of the language
probably indicates that the Court would find the United States
guilty. A fortiori, these provisions seem to imply that the United
States would have been guilty of a war crime for dropping atomic
bombs on Hiroshima and Nagasaki.

It is precisely this kind of risk that has led the U.S. Supreme Court
to invalidate criminal statutes that fail to define exactly what they
prohibit under the "void for vagueness" doctrine. "Void for
vagueness" is a peculiarly American invention, which is unfortunate
because the ICC's list of ambiguities goes on and on. Perhaps the
most intriguing is the prohibition in subparagraph (p) against
"committing outrages upon personal dignity, in particular humiliating
and degrading treatment." Were the problems with the Statute of Rome
not so gravely serious, one could imagine this provision as the
subject of endless efforts at humor. The definition of "crimes
against humanity" includes the catch-all phrase "other inhumane acts
of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health." How will
this phrase be interpreted? Who will advise our president that he is
unambiguously safe from the retroactive imposition of criminal
liability if he guesses wrong on "inhumane acts"? Is even a defensive
use of nuclear weapons an "inhumane act"?

We are nowhere near the end of the list of prospective "crimes" that
can be added to the Statute. Many were suggested at Rome and
commanded wide support from participating nations. Most popular was
the crime of "aggression", which, as noted, was included in the
Statute but not defined. Although frequently easy to identify,
"aggression" can at times be something in the eye of the beholder.
Thus, Israel justifiably feared in Rome that its pre-emptive strike
in the Six-Day War almost certainly would have provoked a proceeding
against top Israeli officials had the Statute been in effect in June
1967. Moreover, there is no doubt that Israel will be the target of
complaint concerning conditions and practices by the Israeli military
in the West Bank and Gaza. The United States, with continuous
bipartisan support for many years, has attempted to minimize the
disruptive role that the United Nations has all too often played in
the Middle East peace process. As if that were not difficult enough,
we now face the prospect of the Prosecutor and the Court interjecting
themselves into extremely delicate matters at inappropriate times.
Israel, therefore, was one of the few governments that voted with the
United States against the Statute.

Coincidentally, the United States has had its own considerable
experience in the past two decades with the concept of "independent
counsels." It is an experience that strongly argues against
repetition in an international treaty. Simply launching massive
criminal investigations can have an enormous political impact.
Although subsequent indictments and convictions are unquestionably
more serious still, a zealous independent prosecutor can have a
dramatic impact just by calling witnesses and gathering documents,
without ever bringing formal charges.

The fundamental problem, however, with the latitude of the Court's
interpretative authority stems from the decentralized and
unaccountable way in which "international law", and particularly
customary international law, evolves. Thus, Japan's Permanent UN
Representative said approvingly,

The war crimes which are considered to have become part of customary
international law should also be included, while crimes which cannot
be considered as having been crystallized into part of customary
international law should be outside the scope of the Court.

This statement expresses cogently the notion that customary
international law evolves, or "crystallizes." It is another of those
international law phenomena that just happens "out there", among
academics and ngo activists. While the historical understanding of
customary international law was that it evolved from the practices of
nation-states over long years of development, today theorists write
approvingly of "spontaneous customary international law" that the
cognoscenti discover almost overnight. If this is where the ICC moves
us, there is serious danger ahead.

But even beyond this risk is the larger agenda of many ICC
supporters, invoking the nearly endless articulation of
"international law" that continues inexorably to reduce the
international discretion and flexibility of nation-states, and the
United States in particular. In judging the Statute of Rome, we
should not be misled by examining simply the substantive crimes
contained in the final document. We have been put on very clear
notice that this list is illustrative only, and just a start.

As troubling as the ICC's substantive and jurisdictional problems
are, the problems raised by the Statute's main structures--the Court
and the Prosecutor--are still worse. We are not considering a
relatively passive court such as the ICJ, which can adjudicate only
with the consent of the parties, or when the Security Council or the
General Assembly asks for an advisory opinion. The Prosecutor is a
powerful element of executive power, namely, the power of law
enforcement. Never before has the United States been asked to place
any of that power outside of the complete control of our national
government.

Indeed, the supposed "independence" of the Prosecutor and the Court
from "political" pressures (such as the Security Council) should be
more a source of concern for the United States than an element of
protection. "Independent" bodies in the UN system have often
demonstrated themselves to be more highly politicized than some of
the explicitly political organs, UNESCO and the ILO being cases in
point. Political accountability, by contrast, which is almost totally
absent from the ICC scheme, would have been a real protection.
Instead, we now face the prospect, as "public choice" analysis would
predict, that the ICC will be "captured" not by governments but by
NGOs and others with narrow special interests, and the time to pursue
them.

The American concept of the separation of powers reflects the settled
belief that liberty is best protected when, to the maximum extent
possible, the various authorities legitimately exercised by
government are 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 their prerogative, and substantially explains why
they are more comfortable with the ICC's structure, which so closely
melds prosecutorial and judicial functions. They may be able to
support such an approach, but we should not.

In addition, our Constitution provides that the exercise of executive
power is rendered accountable to the citizenry in two ways. First,
the law enforcement power is exercised only through an elected
president. The president is constitutionally charged (Article II,
Section 3) 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, exercises significant influence and oversight, both through
its statute-making authority and through the appropriations process.

In European parliamentary systems, these sorts of political checks
are either greatly attenuated or entirely absent, just as with
structures such as the Court and Prosecutor created in Rome. They are
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, and his or her as yet undefined investigatory, arresting,
and detaining apparatus, is answerable only to the Court, and then
only partially. The Europeans may be comfortable with such a system,
but that is one reason why they are Europeans and we are not.