The United States Reluctance to abide by International Law

JUSRISDICTION OF THE ICC

        The court exercises jurisdiction over genocide, crimes against humanity and war crimes which are detailed under the Rome Statute and a supplementary material entitled "Elements of Crime". A Triggering Mechanism has been put in place which outlines when the ICC may act. There are three scenarios which can trigger the exercise of the ICC's jurisdiction. The first, is referral to the ICC's Prosecutor by the Security Council acting pursuant to its powers set out in Chapter VII under the Charter of the United Nations; Second, is referral to the ICC's Prosecutor by a State Party to the Statute[24];Third, referral by the ICC's Prosecutor, acting on proprio motu(on their own initiative), following an independent investigation.

         The court has jurisdiction over individuals accused of the crimes under the Rome Statute. It extends not only to those directly responsible for committing the crimes, but also those who are found to have contributed to them. For example, a person who aids or abets, in the commission of the crime(s) under the Rome Statute, may come under the jurisdiction of the ICC. The court may only exercise jurisdiction if; Firstly, the accused is a national to a State Party who has accepted the jurisdiction of the court (a nation does so by ratifying the Rome Statute); Secondly, the crime took place on the territory of a State Party who has accepted the jurisdiction of the court;Thirdly, the United Nations Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of where the crime took place.

        The jurisdiction of the ICC is not applied retroactively, or "after the fact". Therefore, the court is unable to try cases where the alleged crime(s) took place before the creation of the Rome Statute, on July 1st, 2002. Furthermore, if a state joins the jurisdiction of the ICC after that date, the court will only have jurisdiction over that nation from the date that the Rome Statute comes into application in said state. The state can pass over jurisdiction to the court for matters which occurred prior to the commencement of the Rome Statute, but not matters which extend past the date of July 1st, 2002.

EVALUATION AND LIMITATIONS OF THE ICC

The court has a wide-ranging jurisdiction, and as a result, it has the potential to cover many criminal matters. It will not act in every situation where it is eligible, as this would be impractical due to the size and resources of the court. Generally, a case to the ICC will be inadmissible if the matter is already being dealt with by a state with jurisdiction.However, a case may be held to be admissible when 'the investigating or prosecuting state is unwilling or unable to genuinely carry out the investigation or prosecution'. For example, if a state was attempting to protect the accused from criminal liability and was unwilling to act, the ICC may interfere.

        The drafting of the Rome Statute for the International Criminal Court was a difficult task. Many countries were involved in negotiating the jurisdiction of the ICC, and as a result, the process was tedious. The jurisdiction of the ICC has been limited in certain situations in order to reach an agreement, which may affect its overall impact. Limitations were a practicality of the drafting of the ICC, as without compromise, the Rome Statute may never have been drafted.

Kofi Annan made the following statement at the ceremony celebrating the adoption of the Statute of the International Criminal Court on 18 July 1998:

No doubt many of us would have liked a court with even more far reaching powers, but that should not lead us to minimise the breakthrough you have achieved. The establishment of the court is still a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law.

Some of the limitations or lack of 'far reaching powers' of the ICC, which Kofi Annan may be referring to, include Article 31 of the Rome Statute, which outlines the grounds available to the defence to avoid criminal responsibility. The defences listed are insanity, intoxication, duress, and self-defence.These defences enable the accused to defend their actions in committing the most heinous crimes. Some may argue that it is absurd for the accused to have avenues such as these that enable them to defend their actions. However, the defences set out in Article 31, which gives grounds to exclude criminal responsibility, are not concerned with producing a loophole for criminals to escape conviction, rather, are concerned with the principles of crime; namely mens' rea(intent). For example, duress involves the suppression of one's freedom of choice, and therefore, the intent of the accused becomes a big question when hearing a case where the accused has come under duress. There appears to be justification for Article 31 to have been included in the Rome Statute. Without it, it would be unfair to the accused, and every defendant, no matter how heinous the crime, deserves basic human rights which include the ability to defend their actions. Article 31 provides the necessary balance 'required for human justice'. These provisions are unlikely to impact on the effectiveness of the ICC, as the accused would have to show mitigating factors in order to be found non-culpable for their actions. 

        The ICC is a jurisdiction which does not act retroactively, and therefore, any atrocities which took place prior to the commencement of the Rome Statute (July 1st, 2002) can't be dealt with by the ICC. This restricts the ICC from dealing with any matters occurring before July of 2002. Although it presents a limitation to the ICC, it can be construed positively, as it looks toward the future and deals with present cases rather than past atrocities. Furthermore, it's a legal necessity for statutes not to act 'after the fact'. If statutes were to act retroactively, a person may be charged with a crime for an act which, at the time it was committed, was perfectly legal.

        A weakness of the ICC is the listing of prohibited weapons under its "War Crimes" jurisdiction. It is an area under Article 8 of the Rome Statute, which, according to some, is 'inconsistently and inadequately covered'. It only includes the use of poison and poisonous weapons as prohibited weapons. It also fails to recognize the use of nuclear weapons as a war crime, and makes no reference to chemical or biological weapons. This is an area of the ICC which imposes significant limitations on its ability to hear cases involving the use of weapons, due to its lack-defining statute.

        A further weakness to the ICC is Article 124 of the Rome Statute, which enables a State Party to elect to exclude the court from dealing with a war crime that is alleged to have occurred on its territory or by one of its nationals. It is an 'opting out' provision that acts as an exception to the general rule of the ICC having an automatic jurisdiction of the States Parties. This exception only applies to war crimes. In the case of genocide and crimes against humanity, the ICC withholds its jurisdiction over the States Parties. The 'opting out' provision may affect the ICC's ability to hear a war crime case.

         The ICC only has jurisdiction to hear cases related to war crimes, crimes against humanity, and the yet-to-be-defined crime of aggression. This may be seen as a restriction to the ICC, as it doesn't include other serious crimes such as terrorism. Having a limited jurisdiction can be justified, as it prevents the court from being overburdened with too many matters. In addition, terrorism was not included in the Rome Statute, as there is not yet an agreed definition of the crime. It may be a positive move in the future for terrorism to be incorporated into the Rome Statute, as it is a crime capable of causing widespread and systematic violence.

AMERICAN OPPOSITION TO THE ICC

        Of the 139 countries that have signed the ICC Statute, 96 had ratified or acceded to it. Some of the existing members of the ICC are the E.U. and the North Atlantic Treaty Organization (NATO). The United States was one of only seven nations to domestically vote against the statute, and therefore did not join the ICC. The USA is also one of only two members of NATO -the other being Turkey- not to sign the treaty, as well as being the only democratic state to oppose it. However, this was not always the case. Former US President Bill Clinton signed the Rome Statute of the ICC on December 31st, 2000, which was the last day that the treaty was open for signature. The Bush administration, which came directly after the Clinton administration, then 'nullified' the US signature by sending a letter to then-UN Secretary General Kofi Annan on May 6th, 2002, expressing its intention not to be bound by the treaty.

        At the signing of the Roman Treaty of the International Criminal Court, the foreign policy of the US toward international justice stated: "the USA supports the advancement of the rule of law and justice". The accused who commit crimes against humanity must be punished. It's the responsibility of the state to promote justice in the international system, but not international institutions like the ICC. It is suggested by the USA that, in preventing such crimes from happening, it's best for nations to support and actively promote democracy and human rights. This is much like the role of the New Partnership for Africa's Development, which strives to reform governments of affiliated states to be larger economic players in Africa, and to promote democracy. Although the government of the USA seems to promote the idea of peace, democracy, and justice for all, they continue to oppose joining the ICC, an institution created to dispense justice to criminals who assail the human race.

        By the same token, the Bush administration participated in a large campaign to set-aside and undermine the ICC to prevent it from becoming an effective way of obtaining justice. After 'unsigning' the Rome Statute on May 6th, 2002, they threatened the future of UN peacekeeping missions and negotiated a Security Council resolution that provides a single-year exemption for citizens of non-State Parties to the Rome Statute, including American personnel, that are participating in said UN peacekeeping missions. After this debasement of the Security Council, the Bush administration then set forth an international campaign to negotiate 'bilateral immunity agreements that would exempt U.S. nationals from ICC jurisdiction". Said bilateral agreements would entail states to send a U.S. national, requested by the ICC, back to the U.S.A. instead of giving them directly to the ICC.

        The concern of the U.S. government came about because of their belief that the ICC may use its jurisdiction to conduct politically-motivated investigations and prosecutions of U.S. military, personnel, and political figures. In order to expand their opposition and resistance to the ICC, the Congress of the U.S. passed the American Service Members' Protection Act, which was signed into law by former President Bush on August 3rd, 2002. The American Service Members' Protection Act gave the following points: a prohibition on American co-operation with the ICC; an "invasion of the Hague", which is a provision which authorizes the President to "use all means necessary and appropriate" to set free any detained or imprisoned American personnel by the ICC; punishment for states that join the ICC; refusing military aid to States Parties to the treaty (except for huge American allies); a prohibition on U.S. involvement in peacekeeping missions, unless immunity from the ICC can be granted for American personnel. This strong U.S. opposition has sparked protests and has resulted in the signing of a petition by 84,598 people worldwide in September of 2003, which was sent to Amnesty International and governments, pleading them not to enter into any immunity agreements with the U.S.

        The opposition to the ICC by the United States comes from their belief that the ICC's independence from the United Nations would allow it to abuse its power. The government of the U.S. contends that the ICC has far too much power, and they fear that its Prosecutor will be unchecked. The United States also contends that the ICC can't be answered for by any particular nation or figure of authority, such as the United Nations. Therefore, the judges and prosecutors are only held responsible by the ICC themselves. The main fear of the U.S. is that the ICC's power will be taken advantage of, and the organization will become somewhat of a totalitarian entity. Additionally, they argue that the ICC is contradictory to U.S. foreign policy. Considering the ICC's independence, the United States also disputes that the ICC threatens their sovereignty, because obliging to the statute would give the ICC the authority to intervene in American domestic affairs wherever the ICC wanted.  The U.S. government further contends that the ICC may be politically motivated against the leaders of the country and it’s military. For example, ratifying and complying with the ICC would entail the ICC, instead of the U.S., of having the job of investigating the case against the soldiers accused of abusing Iraqi prisoners at Guantanamo Bay. This would've resulted in a deeper investigation, and possibly even more punishments for those soldiers who were found guilty.

CONCLUSION

        Upon evaluation of the ICC's jurisdiction and function, there appear to be areas which could be improved by implementing more "far reaching powers". However, the jurisdiction of the ICC reflects the reality of political compromise and it should be congratulated on its ability to combine varying nations' rules of law in the creation of a universal court. Yet, it is such vehement opposition from nations such as the U.S. which undermine international law. It seems that such opposition is in fact contradictory, as the U.S. is opposed to the ICC, yet they themselves are acting and intervening where the ICC naturally would. U.S. opposition to the ICC, it seems, is based merely on the fact that signing and ratifying the Roman Treaty would prevent them from continuing crimes of their own, such as the invasion of Iraq, hence putting their own national interests ahead of international harmony. Although there is a change of treatment and perception of the ICC by the Obama government, the international community is yet to witness actual changes from negative to positive. In order for international law to be truly effective on a worldwide scale, it requires both the support and the co-operation of states and governments alike.

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