Abstract

The United States of America has not ratified the treaty establishing a permanent international criminal court, and it is highly un-likely to do so. This is not simply a question of delay caused by cumbersome ratification procedures; rather, it reflects deep-seated opposition by the U.S. executive branch and by many members of Congress. The United States voted against the Rome Statute of the International Criminal Court when it was adopted on July 17, 1998, at the U.N. Diplomatic Conference of Plenipotentiaries. President William J. Clinton approved signature of the statute on the last day that a state, by signing, could continue to take part in discussions on ICC matters. But he stressed that he did so largely to remain "in a position to influence the evolution of the court," adding that "I will not, and do not recommend that my successor submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied." Senator Jesse Helms, chairman of the Committee on Foreign Relations, labeled the U.S. signature "as outrageous as it is inexplicable." He promised, "This decision will not stand.”

This report will explore political and constitutional concerns underlying the U.S. position regarding the ICC. First it will review the history of U.S. involvement in the development of international criminal adjudication, before and after adoption of the ICC treaty. It then will present objections that U.S. opponents have voiced regarding the ICC Statute. Next it will examine areas in which that statute may conflict with the U.S. Constitution, among them prosecutorial power, immunity, rights of the accused, fugitive transfer, and imprisonment. Finally, it will discuss prospects for ratification of the ICC Statute. Legal obstacles to ratification may be surmountable, but not without significant political will to ratify, and that does not exist. The report thus concludes that the United States will neither ratify the ICC Statute, nor support the court, in the foreseeable future.

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