EXECUTIVE SUMMARY “Law cannot persuade where it cannot punish” — Thomas Fuller, 1732
As we approach the new millennium, international human rights law stands poised to move to a whole new level. After 50 years of contemplation, discussion and negotiation, the world is on the brink of creating an international criminal court (ICC) capable of punishing individuals for perpetrating gross violations of international human rights law. The relationship between the proposed ICC and the U.N. Security Council will be pivotal in creating a credible and effective institution able to punish those who commit crimes that shock the conscience of humanity. The capacity to punish will be critical if international human rights law is going to evolve beyond its current de facto status as a voluntary code of conduct, enforced by peer pressure. This report is concerned with the policy the U.S. administration should adopt regarding the relationship between the ICC and the U.N. Security Council. In line with its responsibilities to the people of the United States, the policy pursued by the U.S. administration should be the one which best serves U.S. interests and advances U.S. foreign policy goals and objectives. The primary U.S. foreign policy goal is the maintenance of international peace and stability; the United States should pursue a policy that creates an ICC that advance this goal. In order to do so, the ICC will need to be credible and effective. The U.S. administration should also work to ensure that the final treaty establishing an ICC is politically feasible, i.e. it can achieve ratification through the U.S. system. This means the ICC treaty will have to get the advice and consent of the U.S. Senate. History shows that an international institution cannot be effective and credible without the support of the United States. To get the support of the U.S. Senate, the U.S. administration will have to ensure that the proposed ICC does not detract from current U.S. powers and privileges internationally, especially regarding the United States’ veto in the Security Council. Thus effectiveness, credibility and political feasibility are the benchmarks by which the U.S. administration should judge policies governing the relationship between the ICC and the Security Council. There are three policy alternatives available regarding this relationship; the status quo option, the Singapore proposal and the traditional model. The status quo option — contained in Article 23 of the draft ICC treaty — stipulates that only the Security Council and states that are party to the treaty can trigger the ICC’s jurisdiction by referring situations to the ICC’s prosecutor for investigation. The ICC’s prosecutor would have no independent capacity to initiate proceedings. Furthermore, the status quo option precludes the ICC from proceeding on a matter if it is on the Security Council’s active agenda, unless the Security Council specifically says that it can. Permission for the ICC to proceed on a matter could always be vetoed by one of the veto-holding permanent members of the Security Council. The Singapore proposal — so-called because it was initially put forth by the Singaporean government — subtly alters the balance of power between the Security Council and the proposed ICC. The Singapore proposal does not alter the mechanisms by which situations are channeled to the ICC. However, if a case is referred to the ICC that is on the Security Council’s active agenda, the ICC is free to initiate proceedings on that matter unless the Security Council specifically forbids it to. This means that an attempt to halt the ICC from taking action in a situation could always be scuttled by the veto of any one of the permanent Security Council members. The traditional model recreates the situation that prevails in most effective national judiciaries at the international level. According to the traditional model, the ICC prosecutor would be empowered to initiate proceeding unfettered by any outside authority. This would create a new international institution