International Criminal Court: Introduction

by Anup Shah
This page last updated Saturday, June 26, 2004

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What is the International Criminal Court?

Even though there were various treaties in the 19th and 20th centuries on the laws of war, the 20th century was the bloodiest in history because people got away with it.

In recent years there was a considerable (and mostly successful) effort to set up an International Criminal Court (ICC) to promote the rule of law and ensure that the gravest international crimes do not go unpunished no matter who committed them.

When the ICC was eventually established, it was the first ever permanent, treaty based, international criminal court. Thus, the ICC has been set up to guarantee human rights, independently.

Quoting from the official International Criminal Court web site:

Based in The Hague, the International Criminal Court will have jurisdiction to prosecute individuals for the most horrific of crimes: genocide, crimes against humanity and war crimes.
The jurisdiction of the ICC will be complementary to national courts, which means that it will only act when countries are unable or unwilling to investigate or prosecute.
The ICC also has strong protections for due process, procedural safeguards to protect it from abuse, and furthers victims' rights and gender justice under international law.

Questions and Answers¹, International Criminal Court official Web Site

What is the current status of the ICC?

The ICC will take some time to come into full effect.

As the official site notes, as of May 3, 2004, 94 countries have ratified the treaty (and are known as State Parties). The breakdown (and updates) can be seen at the official ICC site's State Parties section². State Parties are able to have a say in how the ICC is shaped.

60 ratifications were needed to get the ICC off the ground. This was achieved³ April 11, 2002. This meant that from July 1, 2002 onwards, any acts of genocide, war crimes, and crimes against humanity committed after this date would be permissable for trial by the Court.

What is the position of the United States?

The road to the initial 60 ratifications had been full of controversy.

In Rome, during July 1998, the ICC was given the go-ahead with a vote of 120 to 7. The seven who voted against the ICC were USA, China, Iraq, Israel, Libya, Qatar and Yemen.

But it was the actions and stance of the United States that surprised most:

Almost all U.S. allies voted for the ICC.
The Unites States, however, was surprisingly very vocally against the ICC and found itself standing on par with a handful of countries, which included those that the U.S. itself has described as rogue.
Various human rights and social justice groups have long criticized the U.S. who continue to oppose the International Criminal Court, even as they dropped out in May 2002 (after initially signing up at the last minute in December 2000).
In addition, the U.S. has been applying pressure to many countries to agree not to surrender or transfer US nationals to the ICC in order to gain immunity for its citizens from the Court.

The U.S. and others have raised concerns that the ICC will undermine their sovereignty.

Will the ICC Undermine Sovereignty of Nations?

In short, no; the ICC is meant to be used when national systems do not, or are unable to function.

As quoted above by the official ICC site, the jurisdiction of the ICC will be complementary to national courts, which means that it will only act when countries are unable or unwilling to investigate or prosecute.

At the beginning of May, 2002, the Bush Administration in the United States announced that it had resolved to unsign the Rome Statute creating the ICC. The U.S. has long been afraid of an international body having jurisdiction over the United States and that cases will be brought against U.S. civilian and military authorities on political grounds.

Responding to that annoucement, Washington D.C-based Center for Defense Information (CDI) also pointed out that the concerns of the U.S. are not justified:

Bush administration officials argue that nullifying the U.S. signature means the United States will not be bound by the ICC's jurisdiction or have to follow any of its orders. But that was the case whether or not the U.S. remained a non-ratifying signatory. As already pointed out,
The United States would pre-empt ICC jurisdiction by investigating any charges against U.S. citizens.
Moreover, the treaty specifically limits the court's jurisdiction to the territory of any State Party and, by special agreement, on the territory of any other State (Article 4).

Colonel Daniel Smith, USA (Ret.), Dropping Out - American Style⁴, Center for Defense Information Weekly Defense Monitor, Volume 6, Issue #14, May 16, 2002 (Emphasis and list formatting added)

Human Rights Watch has also produced an FAQ⁵ (Frequently Answered Questions) section highlighting myths and facts about the ICC. Amongst other things it tries to address how the U.S. and any other state that is party to the ICC will not have their own constitutions or their sovereignty undermined. Included in the reasons is that the ICC must defer to American justice when the United States is willing to investigate and prosecute an alleged crime itself. See also their Questions and Answers about the ICC and the USA⁶ for particulars about the United States.

But an additional concern raised is one about how power and influence comes into the equation. Foreign policy critic Noam Chomsky sums this up well:

[The ICC] has the same flaw as all international institutions. In a world ruled by force, the rich and powerful do pretty much what they like. It's next to inconceivable that the ICC could try, even investigate, Western criminals. Simply look what happened to the World Court and the Security Council when they tried to get the US to call off its terrorist war against Nicaragua. The same was true of Nuremberg. The people sentenced there were some of the worst gangsters in human history, no doubt, but the operational definition of war crime was war crime that they committed and we did not.

Noam Chomsky, Chomsky responses in The ZNet Forum System⁷, June 30, 2002.

And talking of power, Stephen Shalom also notes concerns from history:

Following World War II, a war crimes tribunal was held in Tokyo to try Japanese political and military leaders. There is no doubt that the defendants were responsible for appalling atrocities, but, as the Indian judge on the tribunal wrote in his dissenting opinion, the victorious allies had themselves committed grave crimes, and the U.S. atomic bombings of Hiroshima and Nagasaki were the most horrific war crimes of the Pacific War. But only the atrocities committed by the Japanese were punished. In short, the war crimes trial represented victors justice.

Stephen R. Shalom, The Milosevic Indictment⁸, ZNet, September 20, 2001

The remainder pages in this section look at some of the events, obstacles, and controversies surrounding the ICC.

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