Posted by Howard S. Schiffman on May 12, 2002 at 16:24:23:
In Reply to: International Criminal Court posted by Dee on May 11, 2002 at 01:57:46:
As the International Criminal Court (ICC) prepares to come into existence on July 1, 2002, the issue of its future role in international affairs will continue to be discussed with great vigor. Much of the world regards it as a major step forward by providing a standing forum to punish major violations of international law. The United States, on the other hand, sees it as an unwelcome institution which will sooner or latter stage politically motivated prosecutions against US nationals.
The idea of a standing tribunal to try serious violations of international law has been around since the end of World War II. After WWII, the Nuremberg and Tokyo tribunals were set up ad hoc by the Allies, the victors of WWII, to try the principals of the losing Axis powers. While Nuremberg was regarded as more successful and significant than the Tokyo tribunal the time for a permanent tribunal was not yet ripe. During the years of the Cold War, the idea for a future international criminal court largely occupied the back burner of international affairs.
With the fall of the Soviet Union in the early 1990's various tribal and internecine conflicts broke out in the world. Most notably, after the break-up of Yugoslavia and the modern Balkan wars, it was clear war crimes, crimes against humanity and genocide were occurring on a mass scale. Similarly, tribal warfare between Hutus and Tutsis in several African countries including Rwanda and Burundi lead to enormous human rights abuses and the death and torture of hundreds of thousands of people.
In response, the United Nations Security Council established ad hoc tribunals to address the international crimes arising from these crises. Although these tribunals were set up specifically for the purpose of these local conflicts, they revived interest in the need to establish a permanent global criminal court. In 1998, the Rome Statute was drafted which set forth the legal framework for a standing tribunal to address war crimes, genocide, crimes against humanity and aggression. The Rome Statute (available on the ICC Website) required ratification by 60 states. This was achieved in April 2002; the ICC will formally come into existence on July 1, 2002.
Although the US participated in the negotiations of the Rome Statute, it was never satisfied with safeguards built into the Court to prevent frivolous prosecutions. President Bill Clinton signed the Rome Statute in December 2000 to continue negotiations on the establishment of the ICC but US support was never strong. In fact, it has largely been overtly hostile.
Most recently, the Bush administration has indicated in early May 2002, that it will "unsign" the Rome Statute which is rather unprecedented in international law. Further underscoring US discomfort, the House Appropriations Committee voted authorization for the US military to use force to extricate any US national that would be in the custody of the ICC. The House measure also limits arms aid to any nation that ratifies the Rome Statute (See May 2002 Reports).
Offering little more than my own opinion, I see the utility of a standing tribunal for these egregious international crimes, especially with the likes of Saddam Hussein, Yasir Arafat and Osama Bin Laden in the world. My reservation, however, is that the ICC ultimately would not prosecute international criminals such as these but rather be used as an instrument of political antagonism. The provisions of the Rome Statute do not instill enough confidence to preclude this possibility.
I believe the US concern for the exposure of US servicemen and women is probably well-founded. Under the Rome Statute (Article 13) a prosecution may be initiated by referral to the Prosecutor by: (a) a state party; (b) the Security Council; or (c) the Prosecutor acting independently in his/her official capacity. The ICC has jurisdiction over crimes allegedly committed on the territory of a state party and by the nationals of state parties (Article 12(2)).
While the state of nationality of the accused may render inadmissible a case against its national by genuinely investigating or prosecuting the matter itself (Article 17), this safeguard is understandably not persuasive to the US. Considering the element of discretion and interpretation involved with applying this provision one can foresee a politically motivated or vindictive decision against a state party that may conclude, even in good faith, that its national committed no crime.
Given the large number of US military personnel deployed in various capacities around the world, US nationals would indeed be highly exposed before the ICC, so long as they are on the territory of state parties. This is so regardless of whether or not the US is a party to the ICC. In addition, it would depend, at least in part, in some measure on the good faith of the prosecutor. Can this be guaranteed 20 years into the future? Fifty years into the future? Will the obvious bias of the UN toward Third World states carry over to the new ICC? The US may be wise to oppose the new Court now and not find out for certain later.
Thank you for participating in the InternationalLawHelp.com Forum.
Howard S. Schiffman, Esq.
Co-Founder and Administrator
www.InternationalLawHelp.com
: I would be incredibly grateful if anyone could e-mail me their perspective on the advantages and disadvantages of having an International Criminal Court.
: I would love to hear from you. Thanking you in advance!