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"ICC for You and Me: A Colorful Children's Primer for the Statutes, Progress,
and Prospects of the International Criminal Court" by Yancey Slide
----- GwD: The American Dream with a Twist -- of Lime ***** Issue #99 -----
----- release date: 01-03-01 ***** ISSN 1523-1585 -----
- Background of the Court -
The roots of the International Criminal Court extend to October of 1946,
when an international congress meeting in Paris recommended the creation of an
international body devoted to prosecuting and preventing crimes against
humanity. Only two years later, in 1948, the United Nations General Assembly
adopted the _Convention on the Prevention and Punishment of the Crime of
Genocide_ and referred the question of an International Criminal Court to the
International Law Commission. While the Commission eventually produced
proposals and a draft statute for an ICC, in the cold war climate it was
impossible to establish an international legal body whose jurisdiction would be
unclear.
It was not until 1989 that the movement to create a new permanent
international court gained momentum, when Trinidad and Tobago, desiring an
instrument to help combat the transnational drug trade, resubmitted the proposal
for an ICC to the General Assembly. The proposal was again referred to the ILC
in 1992, which began work on draft statutes (1). As the United Nations moved to
take action on the proposal, war crimes in the Balkans and the difficulty of
prosecuting those accused of war crimes there gave the movement towards an ICC
welcome publicity and international attention.
Six years later, on July 17, 1998 the member states of the United Nations
voted by great majority in favor of the Rome Statute, one hundred and twenty-
eight articles detailing the establishment and operations of an International
Court of Justice (2). With one hundred and twenty votes for the Statute and
only twenty-one abstentions and seven nations voting to reject the document, a
clear mandate exists for the establishment of the Court. Support for the Court
stemmed in part from international experience with difficult and ineffectual war
crimes tribunals in the decade leading up to the Rome Statute, but also clearly
reflects an international desire to see a permanent multilateral court tasked
with identifying, prosecuting, and punishing gross violations of human rights.
The ICC was designed from the first stroke of the pen to give teeth to
enforcement of human rights violations. While the International Court of
Justice exists to mediate between states and has attempted to address individual
human rights violations, the vast majority of enforcement has landed on
temporary tribunals and ad hoc courts with limited authority and questionable
international standing. The inability of a temporary commission to keep up with
the outpouring of complaints of human rights violations in the Philippines and
the lack of any effective multinational tribunal in Cambodia following the Khmer
Rouge period are substantive examples of the limitations of temporary courts or
commissions (3).
Unclear international standing and jurisdiction, as evinced by the unsteady
pace of prosecution of war criminals in the Balkans, also often challenge
temporary bodies. When sovereign states reject the jurisdiction of the court,
the legal proceedings acquire a taint of partiality that can affect the legal
standing of the outcome. In addition, when human rights violations are
addressed chiefly by ad hoc courts, the application of the legal principle of
stare decisis, letting the previous decisions of prior courts stand, becomes
muddied by the same questions of jurisdiction and legality.
The need for a permanent International Criminal Court of Justice is
therefore apparent. A clear mandate for the establishment of the court exists
in the overwhelming majority of UN member states that voted in favor of the Rome
Statute. A strong sentiment of opposition exists, however, in a minority of
states with influence out of proportion with their numbers. The United States,
as well as China and assorted smaller nations, stands opposed to the ICC for
reasons of sovereignty and preferential domestic jurisdiction. This opposition
has the potential to arrest the formation of the ICC and stymie its development
into a self-sustaining body. By examining the structure of the Court as
established by the Rome Statute, examining its proposed jurisdiction and
analyzing opposition from the United States and other states, it will become
clear that the ICC has the potential to transcend these difficulties and
establish itself as a permanent and self-sustaining organ of transnational
justice.
- Structure of the Court -
The structure of the International Criminal Court is carefully laid out in
the Rome Statute. In broad strokes, the ICC will be seated at The Hague,
Netherlands, although it has the freedom to reseat itself temporarily for issues
of efficiency and convenience. The court will be comprised of six separate
bodies: the Presidency, the Prosecutor, the Registry, and the Appeals, Trial,
and Pretrial Divisions. In addition to the President, the Prosecutor, and the
Registrar, the personnel of the court will include eighteen judges, although the
Assembly of State Parties may increase this number after the entry into force of
the Rome Statute.
The Assembly is a regulatory body composed of one delegate from each of the
State Parties to the Court (those nations that have signed and ratified the Rome
Statute). The Assembly is tasked with overseeing the evolution and amending of
structural provisions of the Rome Statute, which becomes amendable seven years
after receiving the necessary sixty ratifications and enters into force. The
Assembly also elects the Prosecutor and the judges. The body of judges will be
tasked with electing the President, First Vice President, and Second Vice
President of the Court. The President and his staff will be responsible for the
administration of the Court, as well as sundry other duties laid out by the
Statute. Administration is also the purview of the Registry, overseen by the
Registrar, an official elected by the judges for a five-year term. The
Prosecutor, rather than being elected by the judges along with the President and
Registrar, will be elected by an absolute majority of the Assembly of State
Parties.
Any member of the Assembly of State Parties may nominate a candidate for the
position of judge. While a State Party may nominate a candidate who is not a
national of the nominating party, each candidate must be a national of a state
that is party to the Statute. The human rights focus of the Court has resulted
in an interesting stipulation in the Statute regarding the selection of judges.
Paragraph 3 of Article 36 of the Rome Statute specifies that:
Every candidate for election to the Court shall:
(i) Have established competence in criminal law and procedure, and the
necessary relevant experience, whether as judge, prosecutor, advocate
or in other similar capacity, in criminal proceedings; or
(ii) Have established competence in relevant areas of international law
such as international humanitarian law and the law of human rights, and
extensive experience in a professional legal capacity which is of
relevance to the judicial work of the Court. (4)
A candidate must be nominated under either (i) or (ii); when the Court's first
judges are elected, nine will be selected from the first proviso and five from
the second. Subsequent elections will maintain this ratio. The effect of this proportional
representation of specialties will be to ensure a structural focus on the
practical advancement of human rights concerns while still maintaining an
efficient and effective court.
The Rome Statute specifies that the selection of judges will be made with
equality in mind. Specifically, the Statute indicates that judges must
represent a broad spectrum of nationalities, including representatives of a
spread of geographic regions and even disparate legal systems. This helps to
ensure the impartiality of the court; a representative sampling of judges will
help the Court avoid accusations of bias either in nationality or in adhering
solely to Western standards of jurisprudence. Bearing in mind the Court's
inclusion of gender issues in its self-proclaimed jurisdiction, the Statute also
stipulates that the body of judges should represent both sexes equally. Again,
this requirement will serve the Court well. Human Rights Watch, a nongovern-
mental organization that has paid careful attention to the developing ICC and
made concrete recommendations as to its structure, explicitly applauds the
representative nature of the staff of the ICC.
The ICC will be better equipped to effectively discharge its mandate if its
composition reflects gender balance. Judges will need to incorporate the
perspectives of women when making critical decisions regarding the
evaluation of evidence and the procedures for examining witnesses. The
effective prosecution of gender-related crimes is an important challenge
facing this Court. The possibility of successfully meeting this challenge
will be greatly enhanced if women are included in the prosecutor's office,
the Victim and Witness Unit, and the judiciary. (5)
A diverse judicial body will allow the Court to deal with a broad range of
issues, as well as promoting the United Nations' stated goals of gender
equality.
Judges elected by the Assembly of State Parties will theoretically serve a
nine-year term, according to the Rome Statute. The Statute imposes unusual
restrictions on this, however. One third of the judicial body, chosen by lot,
will serve for only three years, while a second third of the overall body will
serve for only six years. While judges are nominally not re-electable, those
who are designated to serve three-year terms will be allowed to stand for re-
election. These requirements will ensure a brisk turnover in judges, while
allowing the judicial body to maintain experience and seniority. It will also
allow nations becoming party to the Statute after its entry into force a chance
to nominate and vote for candidates in a reasonable timeframe, rather than
waiting for the full nine-year cycle to repeat.
The workings of the Court will be divided into Appeals, Trial, and Pretrial
chambers. Each is administered in a different manner, to protect the rights of
the accused and to ensure an efficient process. The proceedings of the Pretrial
Chamber will be conducted either by three judges assigned to the Pretrial
Division or by a single judge (as the Statute explicitly allows multiple
Pretrial and Trial chambers to be established simultaneously). The Pretrial
Chamber is responsible, among other things, for overseeing the actions of the
Prosecutor in bringing cases to trial. In this sense, it acts much like the
Grand Jury in the American justice system. The Trial Chamber is similarly
constructed, although no provision is made for its affairs being conducted by
less than the stipulated three judges. The only major deviation is the Appeals
Chamber, which is specially designed to protect the rights of the accused.
A common complaint of states objecting to the ICC is that it acts literally
as judge, jury, and enforcement with no strict external oversight. In light of
these objections, the Rome Statute establishes an independent Appeals Chamber.
While the Pretrial and Trial Chambers are composed of judges who sit three-year
terms in each chamber, judges appointed to the Appeals Chamber serve there for
their entire tenure on the bench. In addition, rather than subdividing the
Appeals Division into multiple chambers as was done with the Trial and Pretrial
Divisions, the entire Appeals Division sits on the Appeals Chamber. This
ensures that any case brought to the Appeals Chamber receives the full and
complete attention of the Division, and is insulated from judicial figures that
may have taken part in the pretrial or trial proceedings.
Similarly, while the Statute allows for judges in the Pretrial and Trial
Divisions to be reassigned to another Division to maintain an efficient
processing of the workload, it is expressly forbidden for a judge who sat on the
Pretrial Chamber of a case to be associated with the Trial Chamber of that case.
Objecting parties, who are quick to attack the ICC for its monolithic nature,
often overlook these elementary protections.
The Rome Statute was written with these issues in mind, however, and the
often-Byzantine nature of the document is riddled with exemptions and exceptions
designed to protect the rights of the accused. While this summary is only a
cursory examination of the extremely complicated structure of the ICC, it is
also the foundation of assessing the nature and weight of objections to the
Court by dissenting states. Further background examination is necessary,
however. No understanding of the International Criminal Court could even begin
to cover the salient issues without addressing the jurisdiction of the court and
its impact on national sovereignty.
- Jurisdiction of the Court -
The International Criminal Court has assigned itself jurisdiction over a
relatively limited scope of crimes. Specifically, the ICC addresses war crimes,
crimes against humanity, genocide, and aggression. While the first three
categories are exhaustively defined in the Statute, it is important to note that
the basic document does not even attempt to define aggression. While the Court
declares its jurisdiction over crimes of aggression, it defers the exercise of
that jurisdiction until "a provision is adopted in accordance with articles 121
and 123 defining the crime and setting out the conditions under which the Court
shall exercise jurisdiction with respect to this crime" (6). This is a partial
compromise; many nations, especially smaller and lesser-developed ones, wanted
the ICC to claim jurisdiction over crimes of aggression. This would represent a
huge impact on the principle of sovereignty, however, and enough states rejected
the proposal that it was effectively tabled. Since the fiat for jurisdiction
was left in the Statute, however, the only way for nations to ensure that the
ICC does not eventually amend the Statute to include enforceable and practical
jurisdiction is to become States Parties and use their influence in the Assembly
to maintain the status quo.
The crime of aggression, therefore, is a poor cousin to the other areas
blocked by the authority of the Rome Statute. The Statute goes into great
detail listing specific crimes and violations of basic human rights in the
stated categories of war crimes, crimes against humanity, and genocide. The
document does not purport to be an exhaustive catalog of punishable offenses,
however. The Statute establishes its grounding in law by drawing from several
sources:
1. The Court shall apply:
(a) In the first place, this Statute, Elements of Crimes and its Rules
of Procedure and Evidence;
(b) In the second place, where appropriate, applicable treaties and the
principles and rules of international law, including the established
principles of the international law of armed conflict;
(c) Failing that, general principles of law derived by the Court from
national laws of legal systems of the world including, as
appropriate, the national laws of States that would normally
exercise jurisdiction over the crime, provided that those principles
are not inconsistent with this Statute and with international law
and internationally recognized norms and standards.
2. The Court may apply principles and rules of law as interpreted in its
previous decisions.
3. The application and interpretation of law pursuant to this article must
be consistent with internationally recognized human rights, and be
without any adverse distinction founded on grounds such as gender, as
defined in article 7, paragraph 3, age, race, color, language, religion
or belief, political or other opinion, national, ethnic or social origin,
wealth, birth or other status. (7)
The ICC incorporates in its own way the principle of _stare decisis_, the legal
principle that prior decisions of courts in good standing are applicable in
future proceedings. While _stare decisis_ is often taken to be binding in its
true meaning, the Rome Statute leaves its application to the discretion of the
Court. This allows flexibility in decisions that may draw principles from
several different areas of international law, when prior decisions may be useful
but would be overly restrictive if binding (8).
The applicability of treaty law, combined with the freedom of the Court to
use its own case history, implies (though it is not expressly stated) that prior
decisions of the International Court of Justice. Since these prior decisions
are primarily based on treaty and domestic law, the ICC has a relatively firm
grounding for its jurisprudence. A large body of precedent exists in the work,
decisions, and judgments of ad hoc war crimes tribunals and regional courts.
The ICC will find implementation of this precedent problematic, however, as the
standing of these decisions in international law is anything but certain.
"Several tribunals being at work in a non-hierarchical situation, there is force
in the argument that a new rule adopted in a particular decision...does not
immediately become part of international law" (9). In the long run, one effect
of the ICC will be to lend hierarchical structure to international law, which
will obviate the problem. In the short run, however, especially in the early
years of a functioning ICC, the application of tribunal precedent will be
problematic at best.
The experiences of tribunals have impacted the ICC in a more fundamental
way. In an effort to ameliorate the difficulties of earlier courts in parsing
responsibility for serious crimes, the Rome Statute makes several key
distinctions regarding the chain of ultimate responsibility for violations of
human rights. The archetypical defense for violations committed by soldiers is
that of orders from a superior officer. Since the Nuremberg trials, those
accused of violating human rights have pointed to explicit orders from
commanders in order to shift responsibility. The response of the Nuremberg and
Tokyo tribunals was that following orders was not a viable defense; the commonly
accepted standard is that no soldier is under an obligation to follow an order
that is clearly illegal.
The Statute makes this understanding a matter of law. A soldier is relieved
of responsibility for his actions *only* if "The person was under a legal
obligation to obey orders of the Government or superior in question...the person
did not know that the order was unlawful...and the order was not manifestly
unlawful" (10). This establishes a high standard for the abrogation of personal
responsibility. It is not sufficient for a sworn soldier, having been given an
order, to not suspect that the order is illegal. The ICC holds that each
soldier should have the capacity to understand which orders are 'manifestly
unlawful,' even outside of the domestic legal system. The Rome Statute defines
"orders to commit genocide or crimes against humanity" (11) to be manifestly
unlawful. Given the full and flexible definitions of these crimes in the
Statute, the ICC has given itself a large suite of tools to use in claiming
jurisdiction against those who carry out orders that violate basic human rights.
It should not be assumed that the ICC shies from assigning equal
responsibility to those who give the orders, however. Paragraph 1 of Article 28
of the Rome statute states:
A military commander or person effectively acting as a military commander
shall be criminally responsible for crimes within the jurisdiction of the
Court committed by forces under his or her effective command and control, or
effective authority and control as the case may be, as a result of his or
her failure to exercise control properly over such forces, where:
(a) That military commander or person either knew or, owing to the
circumstances at the time, should have known that the forces were
committing or about to commit such crimes; and
(b) That military commander or person failed to take all necessary and
reasonable measures within his or her power to prevent or repress
their commission or to submit the matter to the competent
authorities for investigation and prosecution. (12)
In addition, the article stipulates that commanders are to be held criminally
responsible for the acts of subordinates who were obeying orders issued through
the chain of command. This allows the Court to attack the source of human
rights violations, and remove the implied immunity that often shields those who
instigate crimes against humanity.
It should be noted that these articles are among the chief objections of the
United States to the Rome Statute. American politicians and military
commanders, aware of the fact that the United States supplies a highly
disproportionate amount of military aid to regions all over the globe, would be
vulnerable to accusations of human rights violations committed by individual
soldiers. These accusations could eventually ripple up through the chain of
command, making the American military subject to the jurisdiction of a foreign
court. The potential for United States commanders to be held responsible for
the actions of foreign troops in multinational peacekeeping units under American
command only adds to the apprehension.
- Opposition to the Court -
The United States of America do not stand alone in their opposition to the
International Criminal Court. Seven nations voted against the Rome Statute; the
United States stand in the august company of China, Libya, and Iraq in its
dissent with the course of the United Nations (13). The lack of the support of
some of the largest and most influential nations in the sphere of human rights
is a troubling development in the growth of the ICC. Opposition to the Court
tends to be centered in the desires of dissenter nations to protect the absolute
sovereignty and jurisdiction of their own domestic courts. The two most
important dissenters, China and the United States, have incongruously similar
motives in rejecting the mandate of the ICC; both nations share concerns about
nationals becoming subject to the jurisdiction of the court.
The People's Republic of China has a long history of rejecting any
interventionist international policies. The proposal of a multinational court
with the stated goal of extraditing and trying nationals for violations of human
rights is understandably of grave concern to a nation with widely divergent
ideas of the nature and value of human rights. China's history in the United
Nations reflects their strident opposition to giving any ground in their
sovereignty. Although it is tempting to simply say that China's opposition
stems from self-interest in light of the recurrent accusations leveled against
the state by other nations and human rights watchdogs, Chinese opposition seems
to predate its current status as a rights pariah. "Of all member states, the
People's Republic of China has had one of the most consistently 'anti-
interventionist' voting records on human rights questions, even before China
itself became the subject of a UN resolution" (14). China's dissent, therefore,
has an internally consistent validity that makes their opposition difficult to
explain away and even more difficult to rectify with the mandate of the ICC.
The United States also holds an ideological opposition to the ICC mandate.
In particular, the official American stance is that the Rome Statute is
unconstitutional, as it differs from the Bill of Rights in its protection of the
rights of individuals. Senator John Ashcroft, of the Senate Committee on
Foreign Relations, illustrated the American complaint:
The proposed Court negotiated in Rome neither reflects nor guarantees the
protections of the Bill of Rights. The Administration was right to reject
the Court and must remain steadfast in its refusal to join a court that
stands as a rejection of American constitutional values. (15)
The legal position of the United States Senate, therefore, is that the Rome
Statute conflicts with normal American Constitutional guarantees and is
therefore insupportable under United States law. In practice, however, the main
protections of the Bill or Rights are also present under the Rome Statute.
Accused persons are protected from double jeopardy and enjoy immunity in cases
of deficient mental capacity, minor status, or other mitigating factors. Some
rights present in the Bill of Rights (such as the right to face one's accuser)
are not present, but defenders of the Rome Statute reply that such rights are
unnecessary and even dangerous in the specialized context of the ICC.
Aside from rhetoric about the Constitution and international sovereignty,
more practical objections prevented the United States from signing the Rome
Statute. The United States originally was willing to support an International
Criminal Court, and lobbied hard to deflect the course of the Rome Statute to
create a document more amenable to the US position. David J. Scheffer,
Ambassador-at-Large for War Crimes Issues for the United States, reported to the
Senate Committee on Foreign Relations regarding American progress in influencing
the state of the Rome Statute. His report enumerated several key areas in which
he felt that the US contribution had positively impacted the progress of the
document:
* An improved regime of complimentary, meaning deferral to national
jurisdictions, that provides significant protection, although not as
much as we had sought;
* A role preserved for the U.N. Security Council, including the
affirmation of the Security Council's power to intervene to halt the
Court's work;
* Sovereign protection of national security information that might be
sought by the Court;
* Broad recognition of national judicial procedures as a predicate for
cooperation with the Court;
* Coverage of internal conflicts, which comprise the vast majority of
armed conflicts today;
* Important due process protections for defendants and suspects;
* Viable definitions of war crimes and crimes against humanity, including
the incorporation in the statute of elements of offenses;
* Some progress on recognition of gender issues;
* Acceptable provisions based on command responsibility and superior
orders;
* Rigorous qualifications for judges;
* Acceptance of the basic principle of state party funding;
* An Assembly of States Parties to oversee the management of the Court;
* Reasonable amendment procedures;
* A sufficient number of ratifying states before the treaty can enter into
force, namely 60 governments have to ratify the treaty. (16)
In terms of the final efficacy of the Rome Statute, the progress of the United
States on these issues is a mixed blessing. American pressure did lead to
progress on the recognition of gender issues, but it also weakened the Court's
ability to contest jurisdictional issues with sovereign governments.
Given the eventual US rejection of the final document, it is apparent that
not enough progress was made to make the Statute agreeable to the United States.
Ambassador Scheffer continued before the Senate Committee to discuss the
specific areas which the United States felt were unsupportable in the final
document. The chief objection is the main question of jurisdiction. When can
the ICC become involved in prosecuting a human rights abuse? According to the
Rome Statute, either the nation in which the crime is committed must be a State
Party, or the offender must be a national of a State Party. The United States
wanted both of these to be necessary conditions simultaneously; currently, only
one condition must be met for the ICC to claim jurisdiction. Ambassador
Scheffer's comments on this conflict are illuminating, and can be taken as
representing the official and public stance of the government of the United
States.
We are left with consequences that do not serve the cause of international
justice. Since most atrocities are committed internally and most internal
conflicts are between warring parties of the same nationality, the worst
offenders of international humanitarian law can choose never to join the
treaty and be fully insulated from its reach absent a Security Council
referral. Yet multinational peacekeeping forces operating in a country that
has joined the treaty can be exposed to the Court's jurisdiction even if the
country of the individual peacekeeper has not joined the treaty. Thus, the
treaty purports to establish an arrangement whereby U.S. armed forces
operating overseas could be conceivably prosecuted by the international
court even if the United States has not agreed to be bound by the treaty.
(17)
It is not inconceivable that the International Criminal Court could construe
actions routinely taken by US peacekeeping troops as prosecutable. The forced
transfer of population is a war crime under Article 8 of the Rome Statute; the
vague wording of the text could possibly be interpreted as covering such actions
as the transfer of Kosovar refugees by UN Peacekeeper (including American)
troops during Operation Allied Force.
Actions taken during Operation Allied Force would certainly not be
prosecuted under the ICC (18), not least because the actions were sanctioned by
the United Nations. Some United States peacekeeping efforts are unilateral,
however, and the establishment of an ICC potentially opens an avenue of
retaliation for nations that object to US actions. Adding to this concern is
Article 28, which explicitly states that commanders are legally responsible for
the actions of their subordinates. The United States perspective is that this
could make law-abiding commanders liable for the actions of troops acting beyond
the scope of their orders; the greater fear is that American commanders could be
held accountable for the actions of foreign troops in multinational peacekeeping
battalions under overall US command.
The fear of such prosecution ignores the structural flexibility of the Rome
Statute and the International Criminal Court and its mandate to find the truth
of rights violations rather than a scapegoat. American opposition, however, is
based at least partially on a longstanding tradition of insulation from external
authority in human rights and legal matters. Beginning with strident opposition
to the first postwar human rights treaties put forth in the 1940s and 1950s and
peaking with the proposed Bricker amendment, a powerful element of American
political leadership has vociferously countered any attempt to tie the United
States to international definitions or enforcement of human rights. An
anonymous staff member in the Senate Foreign Relations Committee indicated that
what matters most to the Committee is "the perception of a given treaty...Every-
thing gets categorized" and that anything categorized as a human rights treaty
is seen as controversial at best and shelved as soon as possible (19).
Where does this opposition come from? Specific sentiments range from the
threat of binding international influences to the federal system (specifically,
where treaty obligations impinge on the rights of states) to seemingly paranoiac
fears of a belligerent and all-powerful international bugbear. Representative
John Ashbrook is cited in the Congressional record as having accused the United
Nations of moving towards "world domination" (20). As ridiculous as these fears
sound [Ridiculous? - Ed.], they represent a very real sentiment that poses a
significant threat to the growth and development of the International Criminal
Court, as well as its potential for effective action once it is entered into
force.
- Outlook for the Court -
The International Criminal Court faces a great deal of difficulty in
fulfilling its promise of protecting human rights on an international scale.
The opposition of states such as the United States and China means that the
Court will have to progress without the support of one of the strongest
champions of human rights or jurisdiction over one of the greatest violators.
Even so, there is the possibility that American objections will not keep the
United States out of the State Parties Assembly forever.
The United States would almost certainly have agreed to be a party to the
Rome Statute and perhaps even ratified it if it had been allowed to sign with
reservations, which would have allowed it to benefit from the powers and rights
granted to States Parties (such as a vote in the Assembly and nominating
privileges). In return, however, reservations would have allowed the US to
exempt itself from provisions it disagrees with, in this instance certainly
including the responsibility of command and jurisdiction based on the either the
nationality of the offender or the location of the crime.
Many signatory nations felt that allowing any nation to sign with
reservations would pull the teeth from the Court, as its most important powers
and obligations are also the most difficult for many nations to accept. The
Rome Statute therefore does not allow any party to sign with reservations. This
obviously discomfited the United States, which has a long history of reserving
rights from international obligations. "For all of the treaties that have been
considered, reservations were recommended by either the executive or members of
the legislative branch. The [American Bar Association] has always approved
ratification only on the condition that reservations be attached." Given the
choice of signing the entire package or rejecting it completely, no observers
were surprised that the United States declined. Once the ICC has established
itself, however, it is likely that it will record a case history that will allay
many of the concerns of the United States. If the Court can operate without
becoming a tool of international ire and build a sufficient record of
impartiality, it is entirely conceivable that the United States will eventually
become party to the Court.
While the door is not entirely shut on American participation on the Court,
it is important to note that the ICC has excellent prospects in its own right
without the support of the United States. It is obvious that many of the issues
that the ICC was crafted to deal with will be difficult to say the least;
questions of jurisdiction, criminality, and personal responsibility will attach
themselves in all likelihood to every case the Court tries once it is entered
into force. These questions will be answered by the Court, however, and given
the large majority mandate that supported the Rome Statute, the international
community will support those answers. The production of case law and a history
of well-prosecuted cases will bolster the enforcement of human rights, and help
make the ICC a self-sustaining entity.
Given the extremely large mandate of the Rome Statute, why has ratification
been slow? One hundred and fifteen nations have signed the Rome Statute, but
only twenty-two have ratified it in the two years since the document was
approved. While the pace of ratification is increasing, it is likely to be
another two years at least before the treaty is entered into force, and another
seven years before it becomes amendable and is considered stable and self-
sustaining. This slow pace is the product of Byzantine international procedures
and weighty legislative processes in signatory nations. Each nation must deal
with the salient questions of jurisdiction and sovereignty before ratification
can begin, and the process (while different for each state) is laborious. As
more states ratify the document, however, its mandate becomes clearer and
international opposition weakens. While it may be two to three years before the
treaty gains the requisite sixty ratifications, all indications are that this
will happen. Once it does, the international community will have an effective
and flexible tool for defending human rights and prosecuting offenders, and the
process begun by the Nuremberg courts will have passed a new milestone.
-----
-=[Footnotes]=-
1. Timeline. 2000. World Wide Web. Coalition for an International Criminal
Court. Available: http://www.iccnow.org/html/timeline.htm. November 15,
2000.
2. The Rome Statute will be entered into force and the Court officially
constituted once it receives sixty ratifications; twenty-two nations have
ratified it at present.
3. Naomi Roht-Arriaza, Impunity and Human Rights in International Law and
Practice (Oxford: Oxford University Press, 1995) 233-245.
4. Rome Statute of the International Criminal Court. 1998. World Wide Web.
United Nations. Available: http://www.un.org/icc/romestat.htm. November
15, 2000.
5. Justice in the Balance: Recommendations for an Independent and Effective
International Criminal Court. 1998. World Wide Web. Human Rights Watch.
Available: http://www.hrw.org/reports98/icc/. November 15, 2000.
6. Rome Statute Article 5 para. 2.
7. Rome Statute Article 21.
8. Mohamed Shahabuddeen, Precedent in the World Court (Cambridge: Cambridge
University Press, 1996) 107.
9. Shahabuddeen 92.
10. Rome Statute Article 33.
11. Rome Statute Article 33.
12. Rome Statute
14. Yemen, Israel, and Qatar also voted to reject the Rome Statute.
15. Menno T. Kamminga, Inter-State Accountability for Violations of Human
Rights (Philadelphia: University of Pennsylvania Press, 1992) 109.
16. "Is a UN International Criminal Court in the US National Interest?"
Hearing Before the Subcommittee on International Operations of the
Committee on Foreign Relations (United States Senate, 105th Congress,
Second Session, 1998).
17. Ibid.
18. Ibid.
19. If for no other reason, the ICC has no jurisdiction over crimes committed
before the Rome Statute is entered in force.
20. Natalie Hevener Kaufman, Human Rights Treaties and the Senate (Chapel Hill:
University of North Carolina Press, 1990) 180.
21. Kaufman 175.
22. Kaufman 149.
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