Most people can give you a pretty good guess about what the UN is, or the WTO, or NATO; but from my experience, not as many know about the ICC. The International Criminal Court (ICC) is often considered to be one of the major successes of the international community. It is a vital piece to the international system and to human rights. A permanent international criminal tribunal has been in the works since the end of WWI and the Paris Peace Conference. The need of an ICC came up again with the Nuremberg and Tokyo trials. Finally after gross human rights violations within the Former Yugoslavia and Rwanda, the International community decided enough was enough. The UN set up two temporary tribunals to deal with crimes committed in Former Yugoslavia and Rwanda, but even this would not be sufficient to deal with the ever-growing number of gross human rights violations.
In 1998, at a conference in Rome, 120 countries voted in favor of establishing the ICC. The charter document, known as the Rome Statute, went into force in 2002, after 60 countries ratified the treaty. A mere four years is all it took for the international community to realize the desperate need for an international crime tribunal. Today, 122 countries are party to the treaty, including all of Latin America, much of Western Europe, and parts of Africa and SE Asia. It is phenomenal that so many countries are party to the treaty, but I find it much more interesting as to who is missing from the treaty. 3/5 of the United Nations Security Council’s P-5 is not party to the treaty; China, Russia, and the USA have all refused to ratify. The legitimacy of the ICC is critical to its overall presentation. While it is an international and widely accepted judicial body, it lacks some very important supporters, which calls its international clout into question.
The technicalities of the ICC constitute a very long list. I will attempt to outline some of the more important structural features of the ICC here, so that you can develop a general understanding of how the court works. (For more information, I strongly recommend Wikipedia, the ICC Homepage, or for the really devout scholars, the Rome Statute). The ICC jurisdiction has 3 critical pieces. The first of them is “temporal jurisdiction,” meaning that it can only try cases with infractions occurring after July 1, 2002 after the Rome Statute entered into force. Secondly, the court has territorial limitations; the ICC can only try perpetrators if they are from state parties to the treaty, if crimes occur in a state party to the treaty or by a recommendation from the UNSC. Lastly, the court must be “complimentary to national judicial systems,” meaning that the ICC can only act if the national judicial system in a state is unable or unwilling to prosecute the perpetrator. Notice the phrase “a perpetrator,” the ICC only tries individuals for crimes, not states or groups; this is an important development for the international justice system. Also vital is the fact that the ICC is a permanent unbiased and independent court. Although these qualities have been questioned by international critics, they are the pillars by which the ICC operates.
What would land you in the defendant’s box at the ICC? The Rome Statute decrees that genocide, crimes against humanity, war crimes, and acts of aggression will result in the ability for the ICC to issue a warrant for the arrest of an individual. Unfortunately, the court has been slow to respond to its duty of prosecuting these horrendous crimes. In 12 years, the ICC has only completed one case, and all of the ICC’s cases have been filed in Africa. Where is the hold up? Why isn’t anything getting done? This weakness is found in the procedure outlined by the charter. It is good that the steps are clearly outlined for everything in court proceedings; this has resulted in a snail-like pace for the ICC. The critics are quick to jump on the inadequacies of the court, but the fact of the matter is that the court is doing good for the global community. The ICC acts as a global deterrent, a place where punitive justice is a reality, and for the first time in international law, a place for victims to testify and receive retribution. Most importantly, in my opinion, the ICC has created an international Rule of Law, as even sitting heads of state are not immune to the law, such as the case of Sudanese President Omar Al-Bashir for his acts in the Darfur Genocide.
Now that you have some background on what the ICC is, what it does, and its function, I would like to focus upon the lack of US membership. It is obvious why China and Russia would not sign on to the treaty but the USA is a pillar of progressive human rights. A land of Justice and Equality. As an American citizen, I find it almost hypocritical that the USA would not sign on to the ICC treaty. Clinton signed the treaty, Bush removed the signature, Obama has demonstrated support for the treaty, and never has the treaty been put to a vote in the Senate. Politics have prevented the United States form fulfilling on its duty as a world leader. Among other reasons, the US is nervous to give up its judicial sovereignty to the ICC, claiming that the US Constitution is direct conflict with the Rome Statue as there can only be “one supreme court.” The USA also claims that the ICC would cause the US to be unable to fulfill its obligations as a global military force. Even though these legitimate reasons exist, I find a darker reason is that the ICC may have indicted sitting President George W. Bush and other military officials over human rights violations post 9/11. The USA calls itself a government by the people, yet this is not so true in reference to the ICC. According to the American Global Views Survey (2012), a solid 70% of Americans believe that the USA should be a party to the ICC (Question 140/2). This is more than a 2/3 majority of the country, which is what is necessary in the senate. The Senate is once again failing to listen to the people, due to political factors.
The ICC is one of most important developments in International human rights in the past few decades. With it, human rights violators are no longer allowed to run free. Finally, there is an international system that will hold violators accountable to their actions, and bring some sort of justice to the victims of human rights violations. The ICC needs your support and the support of nations around the world to be effective and bring about an end to unpunished human rights violators. We are in a new era of internationalism and the ICC must become a major facet of that landscape. The institution of the International Criminal Court may be new, but the concept of Justice is old. I believe, along with 70% of Americans, and 122 countries around the world that the ICC is the next and proper step in the never ending human quest to find justice.
Disclaimer: The views and opinions expressed in this blog are those of the author and do not necessarily reflect those of the Reiff Center For Human Rights and Conflict Resolution or Christopher Newport University.