Navigating Law and Politics: The Prosecutor of the International Criminal Court and the Independent Counsel

By Danner, Allison Marston | Stanford Law Review, May 2003 | Go to article overview

Navigating Law and Politics: The Prosecutor of the International Criminal Court and the Independent Counsel


Danner, Allison Marston, Stanford Law Review


INTRODUCTION
I. HISTORY OF THE INDEPENDENT COUNSEL ACT AND THE INTERNATIONAL
CRIMINAL COURT
II. DIFFERENCES BETWEEN THE INDEPENDENT COUNSEL ACT AND THE
INTERNATIONAL CRIMINAL COURT
A.       Checks on Prosecutorial Discretion
  1.     The Independent Counsel Act
  2.     The International Criminal Court
B.       Prosecutorial Authority
  1.     The Independent Counsel Act
  2.     The International Criminal Court
C.       Breadth of Prosecutorial Mandate
  1.     The Independent Counsel Act.
  2.     The International Criminal Court
III. SIMILARITIES BETWEEN THE INDEPENDENT COUNSEL ACT AND THE
INTERNATIONAL CRIMINAL COURT
A.       The Charge of Politically Motivated Prosecutions
B.       The Fragility of Legitimacy
C.       Concerns About Transparency
D.       The Burden of Unrealistic Expectations
IV. THE IMPORTANCE OF INDEPENDENCE
CONCLUSION

INTRODUCTION

The Bush Administration has declared its opposition to the International Criminal Court (ICC) with a firestorm of international and domestic activity. Its campaign against the ICC began in earnest in May 2002 (1) after it repudiated the Clinton Administration's prior signing of the Rome Statute. (2) As noted by the current U.S. Ambassador-at-Large for War Crimes issues, with this gesture the United States "essentially filed for divorce from the court." (3) After announcing its intent to leave the ICC, the Bush Administration sought, in the United Nations Security Council (4) and in capitals around the world, (5) to limit the court's jurisdiction, particularly over U.S. nationals. In late 2002, Congress enacted legislation threatening a variety of measures against countries that cooperate with the ICC. (6) Many observers believe that the United States seeks nothing less than the total collapse of the court. (7)

United States officials voice a variety of concerns about the court. These include criticisms of the method by which the ICC will exert jurisdiction over nationals from states that have not ratified the treaty, the challenge the court poses to the Security Council's primacy over peace and security issues, and the Rome Statute's inclusion of the controversial crime of aggression. (8) Fundamentally, these objections reduce to a concern that U.S. nationals-whether troops serving as peacekeepers or senior officials involved in military planning--may be prosecuted by the court for conduct that the United States does not view as criminal. As President Bush has forthrightly stated, the United States will seek to ensure that its military operations "are not impaired by the potential for investigations, inquiry, or prosecution by the International Criminal Court (ICC), whose jurisdiction does not extend to Americans and which we do not accept." (9)

Because U.S. officials are primarily concerned with the vulnerability of U.S. nationals to prosecution by the court, it is unsurprising that they have reserved their most persistent criticism for the court's prosecutor. (10) The court's prosecutor has significant discretion to determine which situations and which individuals will be investigated and prosecuted by the ICC. (11) In light of this discretion, U.S. critics argue that the ICC prosecutor is fundamentally--and, from the U.S. perspective, fatally--unaccountable. (12)

The spectre of an unaccountable international prosecutor has led some U.S. officials to critique the ICC in terms inspired by the U.S. experience with the indepenent counsel system. They argue that the ICC's prosecutor will act as an "untethered international Kenneth Starr." (13) John Bolton, the United States Under Secretary of State for Arms Control and International Security, and a prominent critic of the ICC, states that "the United States has had considerable experience in the past two decades with domestic 'independent counsels,' and that history argues overwhelmingly against international repetition." (14) Similarly, the General Counsel of the Department of Defense contends that the ICC takes "the power of international criminal prosecution out of the hands of the Security Council and giv[es] it to an ICC prosecutor answerable to no one. …

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