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American Criminal Justice
The United States and the International Criminal Court
Since July 2nd 2002, the much talked about International Criminal Court (ICC) has been in effect. ... Most of what was written or said focused on the refusal of the United States of America to join the ICC.
This paper will try to inform the reader about the pros and the cons of the ICC, list the reasons why the US refuse to join the court and show what other interest groups have to add to US arguments.
First off, though, a little bit of history, to find out where the origins for the ICC lay:
After the Second World War, the international community established both the Tokyo and Nuremberg tribunals to prosecute Japanese and German war criminals. ...
Only when the Cold War was over in the late 80´s did the UN return to the subject of the ICC. ...
Unlike a permanent ICC, there was no risk of US personnel being prosecuted before the ad-hoc tribunals since their subject matter, territorial and temporal jurisdiction were determined by the Security Council, which the US could control with its veto. ...
This led to the belief of other nations that a permanent ICC would be the best idea to ensure continuation of the ad-hoc approach.
The ICC received near unanimous support of the UN, only those states labeled by the US as “persistent human rights violators” and “terrorist supporting states” like Libya etc. opposed the establishment of the ICC.
In 1991, the International Law Commission produced a draft statute for an ICC, which was largely based on the statutes and rules of the popular ad-hoc tribunals. ...
The Conference of Rome revealed a tension between the US and nearly every other country in the world, concerning the ICC statutes.
The US had quite some problems with the statute that was supposed to become the groundwork for the ICC.
The following paragraphs will outline the jurisdictional basis of the ICC treaty to give the reader an overview on how the court is going to operate and to see the paragraphs that are problematic to US interests.
A very important article of the Rome Statute is Article 1, which states that the ICC “ shall be complementary to national criminal jurisdiction”, which means that the court will only start prosecution of a criminal if the national jurisdiction does not start prosecution itself to try the alleged criminal.
Article 5 states the crimes to which the jurisdiction of the ICC shall be limited:
a) the crime of genocide
b) crimes against humanity
c) war crimes ( grave breaches of the Geneva convention)
d) the crime of aggression
Before the ICC can act, the state of territory or nationality of the accused must be a party of the ICC treaty or accept the court´s jurisdiction, as stated in
Article 12. ... This unique position would render US personnel vulnerable to the potential jurisdiction of the ICC.
Unofficially, the word of an “international Ken Starr” to describe the role of the ICC prosecutor got around.
As a gesture towards the US, the court was designed as a two track system:
Track one would constitute situations referred to the court by the Security Council, the second one would see situations referred to the court by individual countries or the ICC Prosecutor. ...
Because of US concerns, protective mechanisms were built into the Court´s statute:
Article 18 added strength to the concept of the ICC as a “complimentary” court, in the way that the Prosecutor has to inform the states with a prosecutive interest in a case of his/her intention to commence investigation. ...
In the next paragraph, the arguments against the ICC will be lined out and it will be checked if they are valid and if US concerns are agreeable.
Approximate Word count = 3036
Approximate Pages = 12.1
(250 words per page double spaced)
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