American resistance to the International Criminal Court
Created | Updated Jul 31, 2005
The purpose of this entry is to analyse the role of the International Criminal Court (ICC) and to examine the nature of American resistance to the ICC as an example to investigate the effectiveness of international law.
For the purpose of this entry, 'international law' is defined as the system of law that exists as a facility to govern the relationship between different states. The International Criminal Court was created by the Rome Statute of the International Criminal Court on 17 July 1998, and entered into force on 1 July 2002 after over 60 states had ratified or acceded to it. The Purpose of the ICC is to prosecute individuals for the most serious crimes of concern to the international community. These crimes include; the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. Genocide is defined in the statute as acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. These acts include; murdering members of a group, causing serious bodily or mental harm to members of the group, creating conditions of life in group calculated to bring about its physical destruction in whole or in part, imposing measures intended for the prevention of childbirth in the group, and the forced removal of children from one group to another group.
Crimes against humanity are defined as murder, extermination, enslavement, forcible transfer of population, persecution, torture, rape, the crime of apartheid, and imprisonment in contravention of international law.
War crimes are defined as grave breaches of the Geneva Convention of 12 August 1949.
The crime of aggression has not yet been defined, and as such the court can not yet exercise jurisdiction over this crime.
The United States has five major objections to the ICC, these are:
1) the “unchecked power” of the ICC
2) the ICC undermines the role of the Security Council in the United Nations (UN)
3) the ICC threatens US sovereignty
4) the ICC will be politically motivated against the US
5) joining the ICC is not in the national interest of the United States.
The United States assert that the power of the ICC is not restrained, and as such is liable to abuse its power. In reality this is not the case, the ICC has very limited jurisdiction; the ICC only has jurisdiction in a case if either the state of the accused or the state in which the crimes are committed is a signatory to the Rome Statute, and is unable or unwilling to try the accused domestically. The court is also limited to the most serious of crimes of concern to the international community as a whole. This means that the criminal act must have occurred on a large scale, must shock the international community, and must be the result of deliberate plans or policies by a state or an organization The ICC is also ultimately responsible to the Assembly of States Parties, who have the power to remove judges who are prejudiced and enforce fairness.
The US argues that the ICC violates the UN charter by undermining the Security Council’s responsibility for the maintenance of peace and security . The United States emphasizes that the UN Security Council was not given the authority to stop the ICC from prosecuting an individual. The ICC does not undermine the Security Council, as they perform different functions. The Security Council is a political instrument; it does not have a judicial role. The Security Council cannot be given power over the court because that would effectively grant the permanent member states of the Security Council more immunity to prosecution by the court than other states.
The US has accused the ICC of threatening it’s sovereignty by having the power to try Americans in other countries. The ICC is not a threat to sovereignty, as it is merely an extension of the universally accepted international law that “states have the right to legislate and enforce law in their own territories”. The ICC has no more authority to try US citizens than states do currently.
The US has claimed that the ICC is politically motivated against the US. This cannot be true, as according to the Rome Statute, “the ICC must defer to domestic investigations and courts whenever a state has a functioning legal system and acts in good faith” Thus the US has the right to take over any investigations of American citizens.
The United States believes that the ICC will not act in its national interests, and the best course of action is to undermine and ignore the court. The ICC’s role is to bring to justice those individuals accused of gross human rights abuses. Thus the ICC could be seen to strengthen the United States campaign against human right abuse, not undermine it. Surely it is in the United States best interests to remain involved in the ICC and play a role in shaping its policy.
The United States has taken several steps to weaken and undermine the ICC. The Bush administration has taken the unprecedented act of nullifying the US signature on the Rome Statute on 6 May 2002.The American Servicemembers Protection Act (ASPA) prevents the US from co-operating with the ICC. The ASPA authorizes the US to use any necessary means to free US citizens detained by the court. The ASPA also mandates the withdrawal of military training and assistance from countries (except major allies) that join the ICC, and requires the U.S. to withdraw from major peacekeeping operations unless U.S. personnel receive immunity from the ICC. The United States has also embarked on a campaign to pressure states into making bilateral agreements not to surrender US nationals to the ICC by threatening to cut off military support and other funding. This agreement is illegal under international law if the agreement is made with a state that has ratified the Statute of Rome, as it contravenes article 18 of the Vienna Convention on the Law of Treaties, which prevents countries from entering into agreements that undermine treaties which they have already ratified. America has also threatened that it will not send troops on peacekeeping operations unless they are granted unconditional immunity from the ICC.
The international community has responded with shock to the ASPA, and has dubbed it the “Hague Invasion Bill”. The Government of the Netherlands is treating the ASPA as a threat to its sovereignty and has issued a formal complaint at the United Nations General Assembly. America’s policy towards the ICC has contributed significantly to negative sentiment worldwide towards the US, and implies disrespect for the international community as a whole.
The United States has objected to the ICC for several reasons, the “unchecked power” of the ICC, the ICC undermining the role of the Security Council, the ICC threat to US sovereignty, the ICC’s politically motivation against the US, and the fact that the ICC does not represent the national interests of the United States. All of these objections have been proven unfounded. However due to the enormous role that America plays in the international system, and the policy of the US government to undermine the ICC, the court is unlikely to succeed in it’s objective of ridding the world of genocide and gross human rights abuses. This situation is indicative of the shortcomings of international law. The lack of any form of enforcement of this law means that more powerful states will always be able to use their power to avoid being held accountable for their actions. The formation of the ICC as an international judiciary is however a “step in the right direction”, and will possibly pave the way for more powerful international law enforcement in the future.
