International Criminal Court
Should the United States or any other State continue to reject the International Criminal Court (ICC)? Is the ICC both dangerous to democracy and doomed to fail?
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The ICC will lead to political prosecution. American servicemembers and senior military and politica...
The ICC will lead to political prosecution. American servicemembers and senior military and political strategists will be subject to charges for legitimate military action. Any State has the power to refer an issue for investigation to the Prosecutor and the Prosecutor also has the power to commence an investigation ex proprio motu. There is no UN Security Council veto over the discretion of the Prosecutor. Moreover, the phantom of political prosecution has already materialised in the preliminary investigation mounted by the Office of the Prosecutor of the ICTY into the NATO bombing of Kosovo and the Federal Republic of Yugoslavia in the course of ‘Operation Allied Force’. The Prosecutor chose to investigate a campaign that had been undertaken with clinical precision, that had received the ex post facto support of the Security Council, and that had been directed against a military infrastructure effecting a brutal policy of ethnic cleansing. This grim precedent suggests that a Prosecutor will not hesitate to investigate any other good faith and successful military actions across the globe.
The US should have nothing to fear if it behaves lawfully. Moreover, there should be little ambiguity as to whether the US has violated these norms of international law. The Prosecutor of the ICC is only concerned with the most grave offences and it defies belief that the US would approve a strategy of genocide or systematic mass violations of human rights that could attract the jurisdiction of the ICC. Further, the discretion of the Prosecutor is not unchecked. The Statute requires that the approval of three judges sitting in a pre-trial chamber be obtained before an arrest warrant can be issued or proceedings initiated. Moreover, there is no harm to the interests of the US in being subjected to a mere preliminary investigation. In fact, it is preferable that spurious accusations are briefly examined and shown to be baseless, than that these accusations be allowed to raise doubts about the credibility of a State’s actions and the impartiality of the Tribunal in question. The US acceptance of the jurisdiction of the Prosecutor of the ICTY is evident ; the US troops forming part of the KFOR peacekeeping force in Kosovo could equally be subject to investigation and prosecution by the ICTY. The US is prepared for its forces to operate under the scrutiny of the ICTY since it reasonably does not expect its members to commit the very crimes they are deployed to prevent.
The US holds a unique position in the fabric of the protection of international peace and security. ...
The US holds a unique position in the fabric of the protection of international peace and security. Whilst it might be appropriate for other States to consent to the jurisdiction of the ICC, these States do not bear the responsibilities and attendant risks beholden to the US. 200,000 US troops in continuous forward deployment. The armed forces of the US that have responded to three hundred per cent more contingency situations during the previous decade than during the whole of the Cold War. It is clear that the world more than ever looks to the US for its safety. Furthermore, the military dominance of the US increases the likelihood of prosecution. When rogue regimes are incapable of defeating the US by any military means, they are likely to resort to ‘asymmetric challenges’ to their forces. Challenging the authority of the US in the ICC will be more damaging to US interests and willingness to intervene than any conventional military opposition. The indispensable nation must therefore be permitted to dispense with the ICC.
It is the very pre-eminence of the US that demands it adhere to the international rule of law. It is perfectly possible to conduct a campaign for bona fide reasons of saving lives and protecting human rights that involves the commission of war crimes. The ICC can reasonably demand that the US, or any other State, pursue their lawful ends by lawful means.Moreover, it matters not to the victim of a gross human rights violation whether the perpetrator was the regime of a rogue state or the servicemember of a State seeking to protect the population.Further, other States with significant military commitments overseas, such as the UK and France, have ratified the Rome Statute without equivocation. These States accept that intervening in other States to uphold international human rights demands respect for these same norms.
The likelihood of political prosecution is only augmented by the creation of the novel crime of ‘agg...
The likelihood of political prosecution is only augmented by the creation of the novel crime of ‘aggression’ under the Rome Statute. Any intervention in a State for the protection of human rights of some or all of its people might constitute a crime. The US or any NATO State could be prosecuted, at the request of the genocidaires, for successfully preventing genocide. Moreover, by a quirk of the drafting of the Statute, States that refuse to accept the jurisdiction of the ICC can nevertheless request the prosecution of individuals of other States for crimes alleged committed on its territory. Thus Milosevic could have demanded the investigation of NATO forces for the events of Operation Allied Force, but have precluded any investigation of the actions of the Bosnian Serb army on the same territory.
The crime of aggression is not remarkably novel. Intervening in the domestic affairs of a sovereign State is contrary to norms of conventional and customary law. The UN Charter prohibits both the unauthorised use of force against another State and any intervention in its domestic jurisdiction. Moreover, the fact that the crime of aggression has not yet been defined means that this objection to the ICC is purely hypothetical. The US should in fact be encouraged to ratify the Rome Statute in order to allow its negotiators to play an active role in the Assembly of State Parties. The Assembly is currently responsible for drafting the definition of this crime.
The ICC will not deter the commission of war crimes or genocide. The Third Reich augmented the crime...
The ICC will not deter the commission of war crimes or genocide. The Third Reich augmented the crimes of the Holocaust when it became clear that the Allies would defeat them in Europe. The only expectation of the Nazi leadership was immediate execution, rather than trial in a judicial forum. Similarly, Slobodan Milosevic and the Bosnian Serb army conducted a campaign of ethnic cleansing in Kosovo whilst the International Criminal Tribunal for the Former Yugoslavia (ICTY) was sitting in the Hague.The calculation of whether to commit gross human rights violations is not that of the reasonable and rational individual. The existence of a court, however well intentioned, will have no effect on the commission of these crimes.
It is ludicrous to claim that the ICC will fail to deter atrocities when such an international institution has never before existed. Moreover, the ICC is not designed to be a prophylactic ; for the victims of these terrible crimes it is crucial that these offenders are apprehended, tried and punished. Retribution and protection of society are objectives not only for the domestic criminal justice system but also for the new international version.
The ICC will generate crippling expenses. Cautious estimates suggest an operating budget of $100 mil...
The ICC will generate crippling expenses. Cautious estimates suggest an operating budget of $100 million per year. The costs of the ICTY and ICTR have already spiralled out of control, and the latter tribunal has a legacy of maladministration and internal corruption. The US contributes 25% of the budget for both the tribunals, which amounted to $58 million in the fiscal year 2000. It is dubious whether the ICC could survive without US financial support. The UN as a whole is obligated only to fund investigations and prosecutions initiated at the request of the Security Council. Every other investigation must be funded by assessed contributions from the States that have ratified the Rome Statute. Although the UN could authorise the transfer of additional funds, the procedure would require a UN Security Council resolution that would of course be subject to the US veto. Alternatively, it is accepted that State Parties to the Statute could directly contribute funds or personnel to the ICC. However, the possibility of partiality or even corruption is manifest where States with their individual political interests are deploying and directing their own staff within the Office of the Prosecutor of the ICC.
The budget of the ICC is not particularly excessive and can be maintained without US finance. The withholding of US funds from the UN budget is a familiar tactic for expressing disapproval. In 1998, the total US arrears on assessed contributions that had been approved by the Security Council amounted to over $1.3 billion. Whilst the operation of UN institutions and operations, in particular peacekeeping, might have suffered, the UN was still able to function. Likewise, there is no reason to suggest that the refusal of the US, or even Japan, to ratify the Rome Statute, would preclude the operation of the ICC. The Statute allows the donation of additional funds and resources from other State Parties. With regard to the ICTY, the EU has consistently contributed personnel, in addition to the payment of the assessed contribution of each of the 15 States. $100 million might seem a significant expense. However, it is both trite and true that no price should be put on justice. Not least justice for thousands of victims of some of the most heinous crimes imaginable.
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