Navigating law and politics: the prosecutor of the International Criminal Court and the independent counsel.

• Author: Danner, Allison Marston
• Position: Symposium on Treaties, Enforcement, and U.S. Sovereignty

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. This is the Independent Counsel writ global." (15)

In light of the persistence of this refrain, it is, perhaps, not a coincidence that the Rome Statute was negotiated in 1998, at the height of independent counsel Kenneth Starr's investigation into President Clinton's activities. (16) More substantively, the temptation to equate these enforcement regimes springs from their obvious similarities. Both function outside the purview of ordinary domestic criminal law enforcement and consequently are vulnerable to the charge that they lack political and legal legitimacy. Moreover, the independence of the office is an integral feature of both institutions, necessary to accomplish the difficult task of investigating allegations of crime against those of the highest political stature. The very independence that enables a prosecutor to pursue such high-stakes charges also provides him with little institutional shelter to weather the storm generated by unpopular prosecutions. Nevertheless, it remains to be seen whether this shared vulnerability portends a common fate: whether the ICC, like the independent counsel scheme, will ultimately be abandoned. (17)

In this Article, I argue that the comparison between the ICC prosecutor and the U.S. independent counsel is overstated and the fears unwarranted. The Rome Statute places far more checks and restraints on its prosecutor than the Independent Counsel Act (ICA) (18) imposed on the independent counsel. Furthermore, the ICA granted independent counsels large budgets and limited mandates, which many argue led independent counsels to overprosecute their cases. (19) The ICC prosecutor, by contrast, will consider cases arising from atrocities committed all over the world. This wide-angle lens stands in stark contrast to the relentlessly myopic focus that characterized the U.S. model. The broad scope of the ICC's jurisdiction and the concomitant restraint imposed by limited financial and other prosecutorial resources will provide a potent brake on an overzealous prosecutor.

Even if the U.S. experience with the independent counsel scheme does not counsel rejection of the ICC, however, it does provide a useful cautionary tale for the court's prosecutor. In particular, it reveals the difficulty of investigating criminal allegations against powerful political leaders and illustrates the importance of the wise use of prosecutorial discretion. Perhaps the principal lesson of the fate of the independent counsel regime is that an independent prosecutor's fragile legitimacy can be irretrievably lost if squandered on investigations and prosecutions focused on relatively trivial offenses.

After comparing the ICC to the independent counsel scheme, this Article concludes with a discussion of prosecutorial independence. The United States finds the ICC to be illegitimate, precisely because of its independence from the permanent members of the Security Council. Despite U.S. protestations, however, the independent counsel experience lends more support to ICC supporters than to its critics. To the extent that the United States draws from its experience with independent counsels in assessing the ICC, it should look to Archibald Cox--not Kenneth Starr. President Nixon's instigation of the "Saturday Night Massacre" (20) led to public disillusionment with the ability of the executive branch to investigate presidential wrongdoing fairly and objectively. (21) Likewise, total domestic control over international criminal law has historically led to impunity for alleged wrongdoers, and exclusive control by the Security Council over prosecution results in inconsistent enforcement.

Both the Rome Statute and the ICA create complex institutions, whose strengths and weaknesses have been extensively debated by scholars, policymakers, and other interested observers. (22) This Article does not purport to provide a definitive account of either institution, nor does it pretend to exhaust the subtleties of the comparison between them. Instead, I seek to demonstrate that, notwithstanding the similarities between the two institutions, the critics are wrong simply to equate them, and hence that dislike of the independent counsel scheme should not reflexively lead to condemnation of the ICC. The appropriate lesson to draw from the U.S. experience with the independent counsel is not to abandon the fundamental aspiration of holding leaders accountable to law through politically independent mechanisms. Rather, that experience underscores the need for some way to enforce laws against the politically powerful, with adequate judicial and political limits to ensure that the enforcement scheme does not permit the prosecution to run off the rails.

1. HISTORY OF THE INDEPENDENT COUNSEL ACT AND THE INTERNATIONAL CRIMINAL COURT

   In the aftermath of the Watergate scandal, the United States Congress enacted the Ethics in Government Act of 1978, which provided for a temporary special prosecutor to be appointed by a three-judge panel upon application of the Attorney General. (23) From 1978 until its demise in 1999, the Act underwent numerous revisions, including changing the name of the special prosecutor to the "independent counsel." (24) Although the Act lapsed in 1992, Congress renewed it in 1994 in the face of charges that President Clinton had violated the law with his Whitewater land speculation. (25) After Kenneth Starr's controversial investigation into Clinton's activities and six other independent counsel investigations of other members of Clinton's cabinet, (26) Congress allowed the Act to lapse on June 30, 1999. (27)

   In its final version, the Act required the Attorney General to conduct a preliminary investigation when she received allegations of federal criminal conduct by high-ranking executive branch officials. (28) If she found the information "specific and credible" she was directed to determine whether there were "reasonable...