The War of Words over the International Criminal Court: American “Might” Versus International “Right”

Tasneem Jamal

Tara Ashtakala and Fergus Watt

The Ploughshares Monitor Winter 2002 Volume 23 Issue 4

Tara Ashtakala is an Ottawa lawyer specializing in International Humanitarian Law.

Fergus Watt is Executive Director of World Federalists of Canada. WFC coordinates the Canadian NGO Network for the ICC.

One of the more popular discussions in world politics these days contrasts the growing divide between “the rule of law vs. the rule of military force.” Do globalization, interdependence, proliferation of destructive weapons, and the unavoidable limits on humanity’s use of natural resources leave us no choice but to expand international law and deepen cooperation? Or are we, in this post-September 11 era, unavoidably required to increase military capacity and tighten borders because of challenges to national security from terrorists, “rogue states,” and other external threats?

A hawkish foreign policy on the part of the current US administration has cast this “law vs. force” dichotomy into sharper relief in recent years. Readers of these pages don’t need to be reminded of the many arms control agreements revoked or undermined by the Bush government. But the damage to international law and multilateralism is by no means limited to the field of arms control. There’s the Kyoto Protocol to the Climate Change Treaty. Trade protectionism. And an all-too-frequent disregard for the UN.

The International Criminal Court (ICC) offers perhaps the best illustration of this deepening divide between those in the international community seeking to expand the rule of law, and those who believe their interests and freedom of action would be constrained by this new institution. To the American right, the ICC has become like a red rag to a bull, a dangerous intrusion on American sovereignty brought about by “woolly one-worlders.”

For years, successive US administrations have been uncomfortable with the idea of an international court that could potentially try US nationals. The Clinton government’s signature of the ICC treaty, on December 31, 2000 just before an end-of-year deadline, included a promise that the US would never ratify the treaty unless its “major flaws” were amended. But this year, US opposition to the ICC has gone into overdrive. The Americans have made a huge diplomatic investment in undermining the Court.

All the while, the ICC’s proponents have determinedly carried on with the business of setting up the new institution, whose treaty came into force on July 1. As of mid-November, 84 states have ratified the ICC treaty. States Parties will elect the Court’s first Judges and Prosecutor in February. Canada, a leader in the effort to create the ICC, has nominated Philippe Kirsch to be one of the 18 ICC Judges. The Court is expected to start functioning at The Hague by early summer 2003.

The International Criminal Court will be a permanent judicial body to prosecute persons responsible for genocide, crimes against humanity, and war crimes, where national judicial systems fail to investigate or prosecute such individuals. A fourth category of crimes – the crime of aggression – is included within the jurisdiction of the ICC, subject to States Parties’ agreeing on a definition of aggression.

Whereas the International Court of Justice, which is also based at The Hague, is mandated to resolve disputes among states, the ICC will have jurisdiction over crimes committed by individuals, including military leaders and heads of government. The Statute explicitly provides that “official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility.” The ICC will therefore provide an important deterrent to commission of these crimes in the future and a vital new tool to promote peace and reconciliation.

As a treaty-based body, the ICC will not be an organ of the United Nations. It will, however, be closely linked to the UN by means of various formal agreements. The UN Security Council can refer matters to the ICC for investigation. But the court is by no means dependent on the Security Council. Cases can also come before the Court through referral by a State Party or through the independent initiative of the Court’s Prosecutor.

When the Security Council refers a situation to the Court, the fact that the authority of the Security Council is binding on all states means that the prosecutor may proceed against any individual, for any crime within the Court’s jurisdiction, in any country, without requiring the consent of any state. However, when a State Party to the Statute has referred a matter to the Court, or when the Prosecutor initiates an investigation, the ICC may exercise jurisdiction over crimes committed on the territory of any State Party, or by citizens of any State Party.

In the past five decades, more than 86 million civilians have died in over 250 armed conflicts around the world. Despite international laws forbidding genocide, crimes against humanity, and war crimes, there has not been a reliable system for enforcing these laws. Very few of the perpetrators of these crimes have been brought to justice. This climate of impunity has only encouraged others to disregard international humanitarian law.

Since the post-World War II trials at Nuremberg, the international community has been working toward the creation of a permanent criminal court. In 1948, the Convention on the Prevention and Punishment of the Crime of Genocide characterized genocide as “a crime under international law.” It provides that persons charged with genocide “shall be tried by a competent tribunal of the State in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction.” At the time, the UN called on the International Law Commission “to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide” Cold War tensions prevented progress on an ICC until the early 1990s. In 1994, the UN’s International Law Commission published a report on a proposed statute. Four years later, on 17 July 1998, treaty negotiations concluded with the adoption of the Rome Statute for the International Criminal Court.

US opposition

On 6 May 2002, in a letter from John Bolton sent to UN Secretary-General Kofi Annan, the Bush administration formally declared its intention not to ratify the Rome Statute, and renounced any legal obligations arising from its signature of the treaty. Since it is not technically possible to “un-sign” an international treaty, a UN spokesman said at the time, “the effect of this notification is a matter for parties to the Statute to decide.”

In June the US presented the UN Security Council with proposals designed to exempt its nationals from ICC jurisdiction when taking part in UN peace operations. The US proposals invoked the Council’s Chapter Seven enforcement provisions and would have provided an indefinite exemption for persons from any state participating in a UN peace operation. If it had been accepted, the US resolution would have had the unprecedented effect of amending an independently negotiated treaty through use of the UN Charter’s Chapter Seven provisions. Canada, one of the ICC’s strongest proponents, protested vehemently, with Ambassador Paul Heinbecker stating that the resolution would put Canada in the historic position of “having to consider the legality of a Security Council decision.” A compromise resolution provides for immunity from ICC prosecution for UN peacekeepers for a renewable one-year period.

In August the US launched a worldwide campaign to persuade states to enter into bilateral agreements which seek to prevent US nationals from being surrendered to the International Criminal Court. Every country in the world has been urged to sign these bilateral deals, dubbed “impunity agreements” by NGOs. Governmental officials gathered at the September meeting of the ICC Assembly of States Parties recognized the US bilateral agreements as contrary to the objects and purposes of the ICC treaty and a distortion of the intent of a key provision – article 98 – of the Rome Statute. Nevertheless, the US has made a considerable political investment in securing these agreements from as many countries as possible, putting pressure on governments to find compromise language.

On 30 September, the Council of Foreign Ministers of the European Union adopted compromise language that leaves open the possibility of EU states entering into modified versions of the US bilateral agreements. Foreign ministers of 14 states have so far signed such agreements with the USA: Afghanistan, the Dominican Republic, East Timor, Gambia, Honduras, Israel, the Marshall Islands, Mauritania, Micronesia, Palau, Romania, Tajikistan, Uzbekistan, and Djibouti.

To its credit, Canada announced in early November that it does not intend to sign a bilateral agreement with the US. The Canadian announcement came at the same time that Canada hosted a meeting of parliamentarians from around the world to form an informal “parliamentary assembly” for the ICC. Parliamentarians can play an important role in the years ahead. While 84 states have ratified, fewer than twenty have “implemented” the ICC treaty, in order to harmonize national laws with the Statute and enable cooperation with the Court.

For countries like Canada the expectation is that once the Court is up and running and has a chance to prove its worth, the criticisms of its opponents will lose some of their political steam. It is hoped that the Court will continue to win other nations over to the cause of international justice and that “right” will eventually succeed over the “might” of those who oppose it.

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