Efforts to Establish an International Criminal Court
In July 1998 a special United Nations conference in Rome created a statute to establish a permanent international court to prosecute alleged perpetrators of genocide, war crimes and crimes against humanity. It marked the conclusion of a 50-year struggle by human rights advocates and proponents of international mediation.
On July 1, 2002â€”after a required minimum of 60 countries had agreed to be party to the treatyâ€”the Rome Statute went into force, creating the International Criminal Court at The Hague. The International Criminal Court, which presides over criminal prosecution of individuals committing human rights abuses, complements the International Court of Justice, which functions only in cases between countries.Â Â
Of a total of 139 signing countries, 95 to date have become party to the Rome Statute. Although the United States originally signed the statute, it later refused to ratify it. In May 2002 the United StatesÂ announced that it had no intention of being party to the treaty, effectively "unsigning" the agreement and withdrawing both money and any guarantee of cooperation. The court came to life on March 11, 2003, with the swearing-in of 18 judges. Although it is fully operational, it still lacks the vitally important endorsement of the United States. Other nations that have not signed or ratifiedÂ the treaty include Russia, China, Iraq and Israel.Â Â
The U.S. government has been an active backer of ad hoc international tribunals to prosecute violations of humanitarian law, such as the Nuremberg Trials for Nazi war criminals. However, it has yet to give unqualified support to any permanent international forum that might claim judicial sovereignty over individual U.S. citizens or groups of citizens. Conservative Republican policy makers, and many Democratic leaders, allege that the International Criminal Court poses a threat to U.S. sovereignty in general, to U.S. citizens and to military personnel abroad. This opposition exists in spite of the fact that the ICC is charged with prosecuting cases only when the country of a given suspect is "unwilling or unable" to prosecute on its own.Â Â
Under existing international law, any country can claim jurisdiction over cases of human rights violations if crimes occurred within their territory, in cases that threaten state security, or in cases involving either suspects or victims who are nationals of that particular country. The International Criminal Court goes beyond these existing powers in several ways. It allows countries to cede their authority to an international tribunal when prosecution is beyond their own means. It also provides a forum for appeal when a given state offers protection to, or fails to adequately prosecute, those accused of grievous crimes against humanity.Â Â
The ICCâ€™s jurisdiction, however, covers only crimes that represent a "policy or plan" carried out by the accused, and the court cannot act retroactively. Thus, the ICC will likely be utilized only when both systematic rights violations and systematic forms of judicial negligence or judicial foul play have occurred after July 1, 2002.Â The U.N. Security Council holds powers of postponement over the ICC, and prosecution initiated by the court is subject to initial judicial review.
In the minds of most human rights advocates, these limitations on the scope of the ICC are enough to ensure that its powers will be invoked only in extreme casesâ€”especially those involving collusion at the level of national governments or where internal conditions such as lack of funding or existence of political repression make prosecution untenable within national boundaries. However, these assurances have done little to assuage the fears of U.S. critics.Â
As the Rome Statute was about to go into force, Republican Sen. Jesse Helms put forth the American Servicemembersâ€™ Protection Act of 2002. Dubbed the â€œHague Invasion Actâ€ by critics, it proposed authorizing force for the purpose of freeing any U.S. soldier detained by order of the ICC. In August 2002, President Bush signed into law a revised version of this act authorizing the use of force to free troops and restricting U.S. cooperation with the court.Â
The act allows the United States to suspend military aid to countries that join the court but but fail to exempt from prosecution any U.S. citizen serving within their borders. Thus in June 2003, the Bush administration announced a halt in military aid to 35 countries, including Columbia, Ecuador and Croatia, for failing to sign an agreement giving U.S. nationals immunity from ICC prosecution. The Bush administration offered exemption to 22 other countries that have signed but not ratified immunity agreements.Â
In June 2002, a month before the Rome Statute was to take effect, the Bush administration threatened to withdraw from U.N. peacekeeping missions unless guarantees of immunity from the ICC were granted to U.S. participants. This threat eventually produced a one-year, renewable U.N. exemption from prosecution for peacekeepers from non-signing countries. In June 2003, a second one-year exemption was authorized. However, in June of 2004, in the wake of the Abu Ghraib prison abuse scandal, the United States withdrew its exemption renewal request.Â
Despite diplomatic pressure on U.N. Security Council members, the United States was unable to produce the support it needed to pass Resolution 1487, which would have extended the exemption.Â China had even threatened to use its veto power to block passage of the resolution.Â In addition, Secretary General Kofi Annan harshly criticized the resolution, calling it â€œof dubious judicial value.â€Â In a subsequent, symbolic move, the United States withdrew nine personnel from UN peacekeeping missions in Ethiopia, Eritrea and Kosovo, citing the fact that the three countries had not signed a bilateral immunity agreement with the United States.Â
The stakes of these skirmishes over the ICC are significant. A strong court might provide recourse to the many who are now at the mercy of either their own governments or foreign powers that collude with local officials in systematic human rights violations and genocide. The threat of legitimate court action against the United States might be the Bush administrationâ€™s greatest concern. What might have occurred if the ICC had existed at the time of the 1973 CIA-sponsored assassination of President Salvador Allende in Chile or the U.S.-trained and -equipped torture and murder of Honduran civilians in the early 1980s? How might the ICC hamstring questionable U.S. foreign policy in the future?
The International Court of Justice has been functioning admirably since 1946, and ad hoc rights tribunals from the Nuremberg Trials to the International Criminal Tribunal for the former Yugoslavia have been endorsed by the United States despite their kinship with the procedural structure of the ICC. Disregarding these precedents, the Bush administration claims the ICC could be used by other countries to prosecute frivolous or politically motivated charges against U.S. troops and has focused on the courtâ€™s shortcomings in relation to U.S. judicial norms.
Although protections against abuses of power by the ICC do fall short of those in U.S. lawâ€”such as absolute protection against double jeopardy within a single jurisdictionâ€”safeguards against groundless or malicious prosecution are ample. Basic legal responsibilities will continue to rest with the courts of individual nations, and the ICC will intervene only in the rare instance that a state has done nothing to curb the worst forms of human rights abuses or when a state invites the ICC to intervene.Â
In June 2004, ICC Prosecutor Luis Moreno Ocampo announced that the court would launch itsÂ first investigation in the Democratic Republic of Congo, in response to President Laurent Kabila's request forÂ the ICC's help in investigating and prosecuting atrocitiesÂ in his war-torn country.Â In July 2004, the ICC announced itsÂ second investigation, in response to Ugandan President Yoweri Museveniâ€™s referral to the court in December 2003.Â Both Uganda and the Democratic Republic of Congo are ICC members, and both countries are experiencing civil conflicts resulting in egregious human rights abuses including systematic rape, forced conscription of children as soldiers and sex slaves, massacres, and torture.Â
Despite the obvious utility and profound historical importance of the establishment of an international court for prosecution of crimes of genocide and human rights abuse, President Bush has vowed to "protect our military from international courts and committees with agendas of their own."Â Â
For more information
Web site for the U.N. Rome Statute of the International Criminal CourtÂ
Web site for the International Criminal CourtÂ
â€œNon-renewal of Security Council Resolution 1487.â€Â Washington Working Group on the ICC. June 2004.Â
â€œThe Democratic Republic of Congo and the ICC.â€Â USA for the International Criminal Court. June 23, 2004.
â€œUganda and the ICC.â€Â USA for the International Criminal Court.Â July 29, 2004.Â