International Criminal Law after Rome: Concerns from a U.S. Military Perspective
Lietzau, William K., Law and Contemporary Problems
WILLIAM K. LIETZAU [*]
On July 17, 1998, a United Nations Convention room in Rome filled with cheers as the text for the Statute to Establish an International Criminal Court (the "ICC") was adopted by a vote of 120 to seven, with twenty-one abstentions. At times, it appeared that the cheers were as much to celebrate the defeat of the United States, which had demanded the vote, as they were to applaud the adoption of the text. While many have praised U.S. proposals and contributions to the ICC treaty, there are also numerous detractors of its refusal to join. No one argues that the absence of the United States from the community of ICC proponents is ideal, especially since the United States has consistently supported the concept of an ICC for many years,  but the question remains as to whether this means the United States is wrong not to join the treaty.
Perhaps equally disturbing, the United States has received criticism for the broader foreign policy pattern that seems to be emerging in which it is increasingly isolated and maligned as a black sheep during multilateral negotiations. Frequently, this isolation appears to be associated with a conservative attitude on the part of the U.S. armed forces with respect to recent developments in the law of war. Only nine months prior to the vote on the ICC, the U.S. delegation to an international negotiation in Oslo walked out of the conference hall the day before voting for a treaty to ban landmines was scheduled, thus precluding the need to break consensus and demand a vote. In both instances, the Ottawa Convention  and the Rome Treaty,  the United States was largely isolated internationally--opposed not only by historic "adversaries," but also by many of its closest traditional allies.  Again, few would argue that these are happy circumstances, but does that mean the remedy is to capitulate and more rea dily join the majority in negotiations that produce results contrary to the interests of the United States?
The answer to both questions is no. The specific decision to remain outside the Rome Treaty as currently formulated is the right one, and so is the more general willingness of the United States to stand firm in the minority. The emerging multi-polar, post-Cold War negotiating dynamic may call for some policy adjustments, but capitulation is not the answer--neither in the decision regarding whether to sign the ICC Statute, nor as a broader negotiating posture in future fora. 
The United States has stated that it has no present or future intention to sign the current formulation of the Rome Treaty.  This is consistent with its posture throughout the ICC negotiation process. At the Rome Conference, the U.S. delegation clearly stated that it would be forced to oppose any treaty that claimed jurisdiction over non-party nationals. The ICC contemplated by a plain reading of the Rome Treaty is unacceptably flawed in this respect. So, too, is the "fast-track" treaty-making process that created it. As currently postured, neither text nor process deserve U.S. support.
U.S. CONCERNS LEADING UP TO ROME
Prior to the Rome negotiations, the U.S. military identified a number of substantive concerns with the draft treaty text. Foremost among these were the following: jurisdiction or the "trigger mechanism," definitions and elements of crimes, state cooperation obligations in light of national security requirements, and rules of evidence and procedure. These concerns stemmed from a belief that an ICC lacking appropriate checks and balances would be vulnerable to political manipulation and, in turn, would detract from the rule of law. Well-intentioned calls for more ready and unimpaired enforcement of the laws of war must be tempered and balanced by the human rights of an accused, a commitment to fairness, acknowledgment of legitimate national security interests, and respect for the rule of law itself. …