U.S. non-participation in the International Criminal Court

United States and the International Criminal Court

i request writer "jonsmom2" topic: "The United States International Criminal Court." paper reflect research explain U.S. association ICC. Also briefly examine goals ICC, review U.S. attitude joining outline problems U.

The United States and the International Criminal Court

The ICC (International Criminal Court) was founded in July of the year 2002 on the day that the Rome Statute which is the founding treaty of the ICC came into force. The ICC was therefore established to only prosecute those crimes that are committed after that particular date. The official seat of the court is located in The Hague, Netherlands. However, the proceedings of the court can take place anywhere. It can try individuals for crimes against humanity, genocide and war crimes. The court also has jurisdiction over crimes of aggression though it cannot try for these crimes until the year 2017. It was founded to "bring to justice the perpetrators of the worst crimes known to humankind - war crimes, crimes against humanity, and genocide," Elewa Badar & Karsten, 2008.

As of February of 2011, there are 120 countries which are members of the ICC and 32 countries have signed the Rome Statute but not ratified it Fairlie, 2011.

The major reason why the U.S. has not joined the ICC is because of conflict between the Rome Statute and the U.S. constitution and until this conflict is resolved the U.S. will never join the ICC.

Position of the U.S. On the ICC

The U.S. is not a participant in the ICC. The U.S. On the 6th of May, 2002 signed the Rome Statute but it officially withdrew its intention to ratify it. This is the same position that was shared with Israel and Sudan. This was done during the time of the Clinton administration. The Bush administration which succeeded Clinton stated that they had no intention of joining the ICC at the time when it was being founded. The Obama administration which succeeded Bush has been working hard to re-establish a working relationship with the ICC.

ADDIN EN.CITE

(Bogdan, 2008)

The reason why the then President Bill Clinton refused to submit the Rome Statute to the Senate for ratification was because he felt that the U.S. government still needed to perform an in-depth assessment of the functioning of the court

ADDIN EN.CITE

(Bogdan, 2008)

Bill Clinton then sent in a note to the Secretary General of the UN which purported that the U.S. would suspend their signature and informed the Secretary General that the U.S. did not have any obligations towards the Rome Statute. As the provisions of the statute go, the U.S. can reengage with the court by simply reactivating their signature to the Rome Statute through writing to the Secretary General of the UN

ADDIN EN.CITE

(Bogdan, 2008)

. However, the U.S. would still need to ratify the statute despite reactivating their signature.

The U.S. constitution give the president the power to negotiate treaties but the president must then submit the treaty to the U.S. Senate for advice and consent which constitutes ratification. This needs a two-thirds simple majority vote. The senate may submit amendments, reservations and other explanations to the president regarding the treaty before ratification Martinez, 2011.

However, once the treaty is ratified, it becomes self-executing meaning it becomes fully binding.

The Bush administration did this since they were protecting American citizens from being unfairly treated for any political reasons. However, the Obama Administration stated that it intended to start co-operations with the ICC, this was stated in the year 2009 when the Secretary of State, Hillary Clinton stated that the U.S. would end its hostility towards the ICC. Susan Rice who is the U.S. Ambassador to the UN expressed that the U.S. would support the court's investigations in Sudan Bohien, 2010.

This meant that the U.S. is willing to turn their relationship with the ICC from one of hostility to one of positive engagement. However, despite these intentions of improving the relationship between the ICC and the U.S., the U.S. has not stated that it would rejoin the Rome Statute and neither would it ratify the statute O'Keefe, 2011()

The U.S. has several reasons for not being party to the ICC. One is the lack of due process. This is where the U.S. criticizes the ICC for absence of jury trials as well as allegations of retrials which are allowed for errors of fact. Another criticism is that hearsay evidence is allowed and that there are allegations of no right to a speedy trial, reasonable bail or a public trial Admire, 2011.

The U.S. feels that these aspects of the ICC and contradictory to the U.S. constitution.

Another reason why the U.S. is not a member of the ICC is that the ICC would try American citizens for crimes which are committed in American soil and which are within the jurisdiction of the American courts. The Supreme Court of the U.S. has the jurisdiction to try such offenses Martinez, 2011.

This is in addition to the allegations above.

Additionally since the constitution of the U.S. only permits one Supreme Court to be created, the participation of the U.S. In the ICC would violate this statement of the constitution Martinez, 2011.

What the Bush administration failed to see here is that the ICC would not be a court created in the U.S., rather it would function internationally.

Problems should the U.S. join the ICC

As a result of the provisions of the U.S. constitution and the attitudes of the U.S. administration as earlier described, there are problems which are bound to arise should the U.S. decide to join the ICC. One is widespread resistance from the anti-ICC community. Second problem is that there is a conflict between the U.S. Supreme Court and the ICC regarding their jurisdiction. This is because the U.S. Supreme Court is the highest court in the land and can try on war crimes, genocide and crimes against humanity which is the same domain as for the ICC.

Conclusion

When the ICC was being established by the Rome Statute, the Clinton Administration agreed to sign the treaty. However, they refused to present it to the senate for ratification. When the Bush administration came in, they wrote a letter to the UN secretary general threatening to suspend their signature. The Obama administration on the other hand is trying to cooperate with the ICC toward helping other countries in the world. However, despite this cooperation, there is no intention to ratify the Rome Statute. The U.S. is not a member of the ICC because it feels that the statute, jurisdiction and accountability of the ICC is wanting and until this issue is ironed out. The U.S. will never become a member of the ICC.