The National Catholic Review
Brian R. Farrell

In yet another move toward isolationism and unilateralism, the Bush administration has withdrawn all American support for the International Criminal Court, which came into existence on July 1, 2002. The administration went so far as to declare on May 6 of this year that it had unsigned the statute (act of incorporation) of the I.C.C., an unprecedented and potentially destabilizing move. The recent threat to withhold U.S. troops from United Nations peace-keeping missions unless assurance is given that peacekeepers will not be subject to prosecution by the court, is evidence of the level of hostility toward the court.

The creation of the I.C.C., however, is one of the most important developments in international law, and has been compared in significance to the founding of the United Nations itself. Tribunals like the I.C.C. have contributed to the re-establishment of peace and security following horrific events in Rwanda and the former Yugoslavia. It offers hope for the promotion of peace and justice worldwide.

Unfortunately, many Americans are unfamiliar with the I.C.C., and even within government and legal circles much confusion exists about its purpose and authority. Misinformed concerns are thus passed off as legitimate arguments against the court. Better understanding is therefore critical to the debate on the American position.

First, the I.C.C. is not a court that will prosecute any and all crimes that happen to be of an international nature. Rather, it is designed to prosecute a limited number of very serious crimes. Only four crimes fall within the court’s jurisdiction: the crime of genocide, crimes against humanity, war crimes and the crime of aggression. These are the most serious crimes in international law, similar to the criminal charges levied against Nazi leaders following World War II. The court will not prosecute crimes simply because they have an international nexus, such as terrorism or drug trafficking. Nor will it prosecute ordinary crimes, such as an isolated murder or rape committed by a member of the armed forces stationed overseas.

The crimes defined by the I.C.C. statute are not new. Genocide, crimes against humanity, war crimes and aggression are well established in international law. They are prohibited by the terms of the four Geneva conventions and the Hague conventions and were clearly recognized by the post-World War II tribunals. Moreover, only crimes occurring after the July 1 founding date of the court can be prosecuted. There will therefore be no retroactive punishment of crimes.

The jurisdiction of the court contains both a territorial and a personal aspect. The court can prosecute an individual who commits a crime on the territory of a state that has ratified the statute of the I.C.C., or an individual who commits a crime who is a national of a state that has ratified. It is also important to note that the I.C.C. does not take the place of national courts. Instead, it will have jurisdiction to prosecute in only two circumstances: first, when domestic courts are unable to prosecute (because of a breakdown of the system, for example); or second, when they are unwilling to prosecute (for example, because they seek to provide safe harbor to war criminals).

The court is designed as a forum to bring to justice key figures who have perpetrated crimes. Thus, while rank-and-file soldiers could be prosecuted, the focus of the court will be on civilian and military leaders like Pol Pot and Slobodan Milosevic. In the past, the United States has supported the prosecution of crimes by people like these and the establishment of an international court. The United States was the primary force in establishing the Nuremburg and Tokyo tribunals following World War II. These tribunals set the precedent for the use of a judicial process to bring to trial persons who committed war crimes. The United States has since been active in the development of an international court, was fully involved in the creation of the I.C.C. and signed the treaty of the I.C.C. in 2000.

The main concern voiced by the Pentagon is that U.S. personnel could be targeted for politically motivated prosecutions. The threat of such politically motivated prosecutions, though, is not significant. There is no reason to believe that U.S. nationals, including peacekeepers, will be targeted by the court. The I.C.C. prosecutor will have some discretion in charging individuals, but regardless of the prosecutor’s motivation, the judges of the I.C.C. must rule on the admissibility of a case and confirm all charges.

Because the court has jurisdiction over only the most serious crimes known to civilization, it is difficult to conceive of situations in which a politically motivated prosecution could go forward with no basis in fact. In addition, one of the concessions the United States gained during the drafting of the statute was a provision that the court defer prosecution of a case when so directed by the U.N. Security Council, of which the United States is a permanent member. Finally, the I.C.C. will never gain jurisdiction over an American so long as the United States is willing and able to prosecute the individual itself.

The United States will notand should notderail the court. The I.C.C. is one of the most significant developments in international law. It is strongly supported by over 60 nations, including such U.S. allies as Canada and the United Kingdom. Although U.S. support is desirable, lack of support will not be fatal for the I.C.C. Rather, it will isolate the United States from the international community and hamper American efforts to bring peace and stability to the world.

Brian Farrell of West Branch, Iowa, was awarded a law degree by the University of Iowa College of Law and will receive a master of laws in International Human Rights Law from the National University of Ireland, Galway, in December.

Comments

William T. Hart<BR>United States District Judge | 1/29/2007 - 1:59pm
Regarding “An Isolationist View of the International Criminal Court,” by Brian Farrell (11/25): I am surprised that the editors would print such an unbalanced criticism of the Bush administration’s position with respect to the Rome Statute of the International Criminal Court of July 17, 1998.

The I.C.C. treaty was written at a conference attended by the Clinton administration. The United States voted against the treaty because provisions it sought were voted down. Quixotically, President Clinton both signed the treaty and said that his successor “should not” submit the treaty for Senate ratification in its present form—for good reasons.

The I.C.C. treaty extends worldwide jurisdiction over “war crimes,” “crimes against humanity” and the yet to be defined crime of “aggression.” Nationals of countries that do not ratify the treaty are, nevertheless, subject to the court. Countries that do ratify the treaty are obliged to surrender persons charged before the court found in their territories (which is why the United States sought an exemption from the Security Council for its peacekeeping forces dispatched to Bosnia and Herzegovina in July 2002).

The United States is now the world’s principal peacekeeper. American forces are being called upon to serve all over the world. American servicemen are subject to, and protected by, the Uniform Code of Military Justice, with final review by the United States Supreme Court. This would not be the case with the I.C.C., which will develop its own set of rules.

Because of international missions, American forces are more exposed to events of war than forces of any other country that is a party to the treaty. Most of the countries that have a vote in the treaty assembly equal to that of the United States are not as big as many of our cities and are unlikely to provide peacekeeping forces. The assembly will adopt procedures, elect judges and define what is meant by the amorphous term “aggression.” Many of the treaty countries do not share our understanding of criminal procedure or evidence, and many are not friendly to the United States. They, however, will elect the court and have a voice in the selection of, and the work of, the prosecutor.

The United States unsuccessfully asked at the treaty conference that at least at the outset, cases be sent to the court by the U.N. Security Council on a case by case basis. The United States did not know what the procedures would be, what investigative activity the prosecutor would undertake or who the judges would be.

There are other problems with the treaty, including the important question of whether it would be constitutional to subject Americans to a court not established under the United States Constitution.

Whether the United States should ratify the treaty is surely debatable, but any article about opposition should at least acknowledge the difficult questions involved.