United States rejection of the International Criminal Court

¶ … United States Accept/Reject International Criminal Court

Abstract the International Criminal Court has been empowered with the authority to prosecute crimes against humanity, war crimes, aggression, and genocide. The creation of the court as an international body instilled with powers to prosecute these crimes followed the extensively documented acts of genocide in the former nation-state of Yugoslavia, and Rwanda. While the Clinton Administration took the initial steps in 1998 by signing on to endorse what is the authorizing power of the court, the Rome Statute, President George W. Bush repudiated Clinton's signature on the basis that participation in an international court would circumvent U.S. courts, and would cause U.S. citizens to lose the rights afforded them under the Bill of Rights of the U.S. Constitution. While the premise upon which the court was created is a noble one, there are problems that the United States Congress must be made aware before signing an American commitment to the court. At this point there is a strong humanitarian interest in preventing crimes against humanity, and especially genocide; it remains unclear as to what would be the American public's response to surrendering the rights of its military personnel, or a president who takes the country into war following an act of aggression and terrorism as happened on September 11, 2001. Abu Ghraib stunned Americans, who saw their military sons and daughters more as peace makers and peace keepers than as brutal prison guards and torturers of human beings, regardless of their alleged offenses in a war zone. The mood of Americans, however, would not have lent itself to prosecuting the military personnel involved at Abu Ghraib in an international court. While Americans supported justice, they supported American military justice, and would not have responded favorably to surrendering that justice to an international court. Had that happened, and had America turned the Abu Ghraib military violators over to the ICC, it would have been the ICC's legitimizing case and would have served to establish the ICC as the unquestionable authority for the four elements it is empowered to prosecute.

Introduction

The idea of a world community is premised on the basis of a shared concept of humanity. That is, that all human beings have a right to life, and to achieve a quality of life reflective of mankind's advances in science, medical science, socioeconomic health, and justice. Justice is a key element in preventing chaos, and as the world community emerges, it must emerge with a judicial body responsible for meting out justice on a world scale.

Since 1996, when the idea of the court was proposed to member countries of the United Nations, many countries, including Britain, Italy, Canada and France have supported the initiative of an international criminal court, while the United States has rejected the role of an international criminal court in the lives of American citizens. Today, the United States is reconsidering its initial rejection of participation in an international criminal court. It is the goal of this paper to present for consideration both sides of the argument revolving around the idea of U.S. participation in an international criminal court from an American perspective.

This paper discusses the implications of the laws under which American citizens would be subjected to in an international criminal court. This paper will examine whether or not, too, subjecting Americans to the court of laws as represented by the notion of an international criminal court would be an infringement of the rights guaranteed Americans under the United States Constitution. Also, if the government, by agreeing to a U.S. participation in such a court, would stand in violation of the Constitution under which it operates as a government.

Problems with ICC that United States Might Consider

The Rome Statute of the ICC excises away from the independent nation-states their sovereign right in conducting the business of trying and prosecuting, or not prosecuting, their own citizens. A nation's rights over their citizens, soldiers, and, in the case of war, even the U.S. president, would be circumvented by the authority vested in ICC (McNerney, p. 181). For this reason, the Rome Statue of the ICC poses a concern to U.S. citizens and law makers (McNerney, p. 181).

Patricia McNerney in a 2001, Law and Contemporary Problems journal article, points out that the first problem with the Rome Statue of the ICC, is that it reflects non-governmental organizations (NGOs) representing the interests of sovereign nations (p. 181). This is a problem, because without official nation-state representation, because there little comfort in the need to be convinced or to feel good about the elements of an international treaty when interests are represented by NGOs. This is, as McNerney says, a problem that must be considered by the United States Congress before agreeing to endorse the ICC.

The four crimes that the ICC will deal with: crimes of genocide, crimes against humanity, war crimes, and aggression, are not defined (McNerney, p. 181). Immediately there emerges a problem, because, at this point in time, the President of the United States could, if the United States were signed on to the ICC Rome Statute, be prosecuted in the ICC for the actions stemming from Afghanistan and Iraq - probably more so Iraq. To sign on to the ICC in a way that allows American legislators or the president to become subordinate to the ICC, is to surrender the American sovereignty.

Another problem is that it transfers control over American soldiers to the ICC. What America recently experienced with its soldiers in Iraq, at Abu Ghraib, would, under the ICC, mean that American soldiers could be prosecuted and tried in the ICC, and that the American military would lose total control over the interpretation of evidence, the military court martial process, and the sentencing, and, as warranted, penalties such as carrying out the death penalty.

As pointed out by McNerney, is that the Rome Statute draws from other treaties, and it is at this point ambiguous as to the delineation of limits within which the ICC could prosecute and convict individuals on the four elements (p. 181). Allison Marston Danner (2003) points out that the ICC prosecutor is very much reminiscent of the role that Americans would recognize as having been performed by "special prosecutors," like Ken Star, whose investigation of the Clinton's alleged financial issues cost the American taxpayers $60 million dollars (Marston, p. 1633). It remains unclear as to how the cost of the ICC's investigatory, trial, and prosecution costs would be met (Marston, p. 1633).

In summary, the main problems with the Rome Statute are."..three asymmetric methods that could be used to exploit the Court: (1) misusing the Court's investigative processes, (2) filing questionable or fraudulent complaints, and (3) manipulating mass media (Austin, W. Chadwick, Kolenc and Anthony Barone, 2006, p. 291)."

Finally, the issue of how the court might deal with the problem of international terrorism is not well understood (Yarnold, Barbara, 1991). The court's authority to extradite and prosecute terrorists from third world countries needs to be better defined Yarnold, p. 1). The United States has not signed on to the Rome Statute, and understanding the U.S. role of protecting its own, should the U.S. continue to reject

The Rome Statute is becoming clouded by the strength and power of the international community and courts (Dietz, Jeffrey, 2004, p. 137). Under the powers of the ICC, any American prosecuted in the court would be denied the protections guaranteed Americans under the Bill of Rights to the Constitution of the United States (Dietz, p. 137).

Exemption from the International Criminal Court

Since the original 60 countries that endorsed the Rome Statute, another 34, the Congo being the most recent one, have endorsed the statute (Dietz, p. 137). The move towards endorsing the ICC seems one consistent with the idea of an emerging world community. There continue to be problems with the idea of an emerging world community, because, as much as the industrial nations would like to see that vision fulfilled, the model for the world community, the European Union, has failed to resolve issues that continue to prevent a full ratification of the European Union under the single auspices of the EU. The only successful union that represents the concept of the world community that has succeeded is the United Arab Emirates (Peck, Malcolmn, 1986, p. 1). This success story is not the appropriate model as envisioned by the world, because it is a model of a union of seven nation-states successfully coming together in a united way, but it is under Islamic governance, and that does not serve as the model per se for the world community. Islam is the driving force behind every aspect of Muslim life (Kelly, Marjorie, 1984). As such, it is Islam that enables the seven nation-states of the AUE to successfully come together, because they have the shared cultural beliefs. It is akin to seven individual states within the United States that are successfully inclusive of the United States because they have in common the U.S. Constitution.

If, however, the world is looking to the ICC to help prevent further occurrences of genocide, crimes against humanity, aggression, and war crimes, then that hope is perhaps lost when nations that are not signed on to the Rome Statute, including the United States, reject the Statute, and stand on their sovereignty. The ICC has no force, other than its statute authority, to force extradition, or to be able to prosecute a citizen of a non-signed nation.

If the world community is looking to the ICC to serve as peace keeping force, or deterrent to the four elements its Rome Statute instills in its authority; then the ICC must look to the International Court of Justice (ICJ) for its legal guidance at this point (Lissitzyn, Oliver, J., 1951, p. 25). The ICJ the body wherein lie the precedents that the ICC would need to conduct its judicial functions.

Right now, the ICC as an international body of justice is in too precarious of a position. It is not recognized by all the countries of the world, and its role as prosecutor of terrorism has not been successfully tested. It is not unreasonable to consider that Americans would want to see some measure of success in prosecuting terrorists who pose a threat to western nations before the American public could begin to develop a comfort level with the idea of surrendering their American guarantees under the Bill of Rights to the ICC with respect to the four elements the ICC is empowered to prosecute.