Courts and Justice in International Law: The Post-World War II Military Tribunals
The International Criminal Court (ICC)
All of the tribunals discussed so far have been temporary and ad hoc, meaning they were constituted to prosecute a specific set of crimes, occurring within a specific geographical territory and a specific timeframe. As genocides continued to occur in the postwar period, a movement developed to found a permanent, standing court that would be available could try cases involving war crimes, crimes against humanity, and genocide that had been committed anywhere in the world at any time. The Rome Statute of the International Criminal Court was adopted by the United Nations in July of 1998 and entered into force in July of 2002. The Court is located in The Hague, Netherlands. As of July 2012, 121 countries have ratified the statute. The ICC, like many of its predecessor tribunals, seeks to prosecute individuals rather than states. Its jurisdiction is both broad and limited. It is broad in the sense that it can take cases from any country in the world, but it is limited by the principle of complementarities. This principle holds that the ICC “can only act in cases where states are unwilling or unable to do so.” Thus, the ICC is designed to respect state sovereignty in situations where states are willing to act responsibly to fulfill their obligations to international justice. States that are party to the Statute and accept the standing of the Court can refer cases to the ICC for investigation, as can the UN Security Council. ICC prosecutors can initiate their own investigations when approached by victims or NGOs, as long as the principle of complementarities is respected. The ICC is also limited in that it can only review crimes that have been committed subsequent to its establishment in July 2002. A few countries, most notably the US, voted against the Rome Statute and have not supported the creation of the ICC (the others being China, Iraq, Libya, Yemen, Qatar, and Israel). The Bush administration worried that “the ICC may exercise its jurisdiction to conduct politically motivated investigations and prosecutions of U.S. military and political officials and personnel.” The U.S. has aggressively tried to secure exemptions from prosecution for American citizens, both in the UN Security Council and on a bilateral basis with other countries through bilateral immunity agreements (BIAs), also called “impunity agreements.” Many advocates of human rights fear that this policy will produce a “two-tiered rule of law for the most serious international crimes: one that applies to U.S. nationals; another that applies to the rest of the world’s citizens.” Supporters of the ICC argue that the U.S. has little to fear. As a general principle, any cases brought against the U.S. would face strict scrutiny before reaching the Court, and the U.S. judicial system would have an opportunity to prosecute the case first if it merited legal action. American citizens who might be accused of the types of crimes covered by the ICC’s mandate would already be subject to prosecution in the countries in which those crimes had been committed, regardless of the existence of the ICC. The main contribution of the Rome Statute is that it allows countries to “exercise[e] their sovereign right to allow an international court to prosecute certain crimes committed on their territory rather than conducting these trials themselves.” Opponents of the Court continue to maintain that politically motivated prosecutions against the U.S. would be inevitable, and that provisions for due process are insufficient to meet American legal standards. To date, the Obama administration has seemed fairly open to ratifying the Rome Statue, yet it has not taken any significant steps towards that end. The U.S may be preparing to shift away from the stance they held concerning the ICC under the Bush Administration. In 2009, U.S. Ambassador Susan Rice, in a Security...
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