Argument against and for US ratification of the International Criminal Court.
10/21/2000
Prepared For Professor Ahmad Kamal
Class: International Organizations and Their Management: The United Nations System
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What is the International Criminal Court?
After the atrocities committed during World War II, the General Assembly worked to establish an international court to try persons charged with genocide or other grave crime (1951). The work was suspended for several years and resumed only in 1989. The establishment of International Criminal Tribunals for the horrors committed in Yugoslavia (1993) and in Rwanda (1994) contributed to an international agreement on the need for the ICC. In July 1998, the convention on the ICC was finalized. 120 nations voted in favor, 20 abstained and 7 nations voted against it, including Iraq, South Africa, Israel, China, and the United States.
What is the jurisdiction field of the ICC?
The jurisdictions of the ICC are genocide, war crimes and crimes against humanity1. Cases can be referred to the Court by states in which the crimes are committed or by the UN Security Council. If the individuals are from a non-signatory country, the Court is competent only if the case has not been tried in the country. But an important point is that the court�s prosecutor can decide to initiate an investigation into any crime fitting the ICC jurisdiction and committed in countries which are parties to the Statute of the Convention.
Present situation:
So far 97 countries have signed the treaty and 12 have ratified it, including France, a permanent member of the Security Council. The United States is clearly against the establishment of the actual form of the ICC; it has of course not signed the treaty. It has tried to undermine this new institution by different means (attempts to establish new amendments, attempts to postpone the signatory of the convention, and intimidation of signatory and non-signatory nations).
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Reasons why the US does not want to ratify
The main objection to ratification is that the United States wants to be able to exempt its military and political officials and personnel from the jurisdiction of the Court. Considering only the national interests in the short-term, the US will gain nothing from the treaty. On the contrary, their political autonomy will be diminished since it would be accountable for its military actions in an international Court. Actually, it is more a question of interventionist unilateralism than a question of isolationism. For example, the US has shifted decision-making on international actions out of the hands of the UN in favor of an illegal reliance on the NATO as an authorizing power. (The intervention of NATO in Kosovo was clearly a violation of the UN charter). The US does not want to be accountable even in the human right arena.
The reasons against US ratification
1. The ICC is a clear challenge to the sovereignty of countries. Nations constituted the foundation of the UN. Undermining nations is undermining the UN itself. The ICC will legitimize the too- frequent violations of the sovereignty of a country. With the existence of ICC, separatists, rebels and others will be encouraged to challenge the present states since the statesmen would be accountable for their actions in an international court.
2. US ratification will be a major step toward the establishment of the ICC. However can we really envision how such a court would be useful? Justice comes after wars and massacres, and therefore legal action is not the main tool in the achievement of peace and security. We don�t want to heal, we want to prevent. How can the distant specter of a trial prevent hate and violence between ethnic groups? Of course we need justice but US ratification and therefore the legitimization of the ICC will divert the international community from this real mission: preventing the wars. Do we want a UN that punishes or a UN that prevents through social and economic development and the promotion of Human Rights?
3. At the International level, justice without political considerations can be dangerous. In some cases, we have seen that the attempt to seek justice has worsened the situation. In East Timor for example, it was Western pressure that led to the referendum and the mayhem. The case of South Africa is even more relevant: thanks to the Truth and Reconciliation Commission, South Africa avoids the dangerous path of revenge. In that case, justice has not been rendered, but it is precisely that fact that enables the countries to establish peace and move on. US ratification of the convention will legitimize the fact that the power is shifted from politics to the hands of judges who don�t and mustn�t care about the political consequences of their decisions.
The reasons for US ratification:
1. The United States can not stop the process: the ICC has the support of too many countries to be stopped. Non-ratification would only cast a shadow of shame on the United States. Moreover, by not ratifying the treaty, the US turns its back upon the civil society (represented by NGOs, most of them being America-based). With the defiance of political institutions and the lack of involvement and faith in them, civil society will play a growing role in Western countries.
2. There have been too many unpunished massacres and violations of Human Rights (Cambodia, Algeria, Mozambique�etc). The ICC will be the �missing link� in the international judiciary system: it will try individuals (the ICJ does not) and it will be permanent (the International Criminal Tribunals are of course temporary). It will enable the world to render a more efficient and swift justice.
3. The creation of the ICC responds to the reality of new conflicts: With civil wars and ethnic conflicts, the UN has had to send more and more peace-keeping troops into the field, sometimes creating hostility within the defended population. The ICC will try soldiers or civilian who endanger the lives of UN personnel. The ICC will protect UN personnel�s life and the credibility of the UN system.
4. Finally, to the long-term, the ICC can play a key role in peace and security. If the court is powerful enough it will be a deterrent to future war crimes. Thus, the ICC is not only about justice but also about peace and security.
Conclusion
The arguments against US ratification raise real questions that can not be ignored. But analyzed closely, they appear to reflect the interest of powerful countries, the fear of the pessimists and the cold conclusions of cynical eyes. In terms of US interests, ratifying the convention is questionable. But for the long-term interest of all the individuals of the planet, we can conclude that the arguments for US ratification are overwhelming.
Some sources:
All for a World Court? Donald Devine. Washington Times. December 07 1999.
The Case Against an International Court. Douglas Hund. Financial Times 09/20/ /2000
Law of Empire. The US undermines International Law. Phyllis Bennis. December 1999. Le monde diplomatique