Is America’s opposition to the ICC an unjustifiable justification?

23 May 2009 at 03:40 | 1328 views

By Mohamed Kunowah-Tinu Kiellow, The Netherlands.

From the early nineties up to the present day, international criminal law has made major developments ‘unknown since Nuremberg Tribunal’: norms have been changed, refined or even expanded. Moreover, after the Cold War, institutions have been established and norm-creating judgments passed both domestically and internationally. The setting up of the Yugoslavia and Rwanda Tribunals is an example of such international institutions created. The Pinochet decision is an example of such norm-creating judgments. The adoption of the Rome Statute International Criminal Court, which came into force on 1 July 2002, crystallised all these developments. This day will be a red-letter day in the history of international criminal law. On this day, a permanent international criminal court came into existence. This Court has enjoyed broad and enthusiastic support from governments and non-governmental organisations around the globe.

However, not all states were happy about all provisions in the Rome Statute. One major country which refused to ratify this milestone treaty is America; an opposition which many termed as a blow dealt to the effectiveness of the Court. America sees itself as the sole remaining world super power which should be involved in promoting peace all around the world. It is of the conviction that its involvement in peace keeping processes is highly needed if they are to succeed. Scheffer, the former US Ambassador-at-large for War Crimes and Head of the US Delegation to the UN Conference remarked at a Press Conference in 1998 that the US “continues to have significant responsibility for peace and security. It is often called upon to execute a Security Council mandate.” It therefore has to protect its citizens who take part in bringing peace to the world. In recent years the US has been very instrumental in bringing human rights violators before the American and international courts. It played a pivotal role in bringing the alleged war criminal, Milosevic to The Hague. But in 2000, America became opposing to an international court that would try people like Saddam Hussein, and also Americans, who commit international Crimes.
This article will address the issue as to whether the American opposition to the statute can be clarified in the light of nationalism or hegemony. Are these arguments well-founded or are they nationalistically motivated or is it one of America’s hegemonic steps to shape international law which can suit its convenience?

The discussion on the establishment of a permanent international criminal jurisdiction gained momentum in 1989- the discussion actually started in 1937- when the Prime Minister of Trinidad and Tobago suggested to the UN General Assembly that an international tribunal be established to try individuals accused of serious drug trafficking offences. This suggestion renewed the international attention to the need for an international court. The General Assembly asked the International law Commission (ILC) to resume its consideration on the issue. That was the beginning of the ‘expert phase.’ The ILC spent four years to formulate the principles, institutional outlines, and draft texts. At the request of the General assembly, the International law Commission produced its final draft in 1994. In some respect, though, it was rudimentary, but the draft was based on principles that continue to underlie the Rome Statute. The establishment of the Court by treaty was proposed, and recognising that the widespread of support of States would be essential, a scheme was proposed based on respect for State consent, a complementary relationship between the ICC and the national justice systems, and cooperation between States and the Court. When the ILC completed the Draft Statute, it delivered it to the General Assembly.

The process of creating a permanent criminal Court entered its ‘diplomatic phase.’ The General Assembly handed the ILC Draft over to the ad hoc Committee in 1995. With more States and a number of non-governmental Organisation and academics joining the process, refinements, new options were proposed and procedural mechanisms elaborated. In March and April of 1998, the Preparatory Committee presented a consolidated text of its Draft Statute and Draft Final Act to the Diplomatic Conference. This Draft included new options: empowerment of the Prosecutor to initiate investigations ex officio, the possibilities to opt or opt out of the jurisdiction of the ICC were reduced, and extensive State obligations to cooperate.
On Monday 15 June 1998 the Secretary General Kofi Annan opened the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome. About 160 countries, hundreds of NGO’s, several inter-governmental Organisations were present to participate in the discussion. At the conference, the State participants fell into a number of significant groupings, which affected the course of negotiations.

The Like-Minded Group of countries promoted the early establishment of an effective ICC, and also its members sponsored some of the most progressive proposals to appear at the Preparatory Committee and the Diplomatic Conference (Dipcon). This State grouping supported not just an ICC but an independent and relatively effective one. There was also another of Southern African Development Community (SADC). They frequently spoke with one voice through the delegation of South Africa, and were also fervent supporters of an effective ICC. The EU countries issued joint statements on framework of the issue through Austria (president of the EU at that time). The Non-Aligned Movement and the Arab block also made their presence felt. The P-5, that is the Permanent Members of the SC shared key positions and held some common perspectives. However, they were not of one view and each took its own position in certain respects, with Britain, France, and The US being the most active. The impact of these three delegations on the proceedings could hardly be exaggerated, although the US occupied a category of its own. Its large and well prepared delegation, led by David Scheffer( former Ambassador at Large for War Crimes Issues) presented many and strongly held views, often in isolation from the other delegations. After five weeks of discussion, a proposed text was presented without options on an ‘all or nothing’ basis on the eve of 17 July, the last scheduled day of the Conference.

This package was voted on and supported by a majority of over two-thirds (120 States in favour, seven against, and twenty-one abstaining in an unrecorded vote, with the non-Aligned Movement and the P5 being, significantly, split. The Rome statute of the international was adopted. The Statute and Final Act of the conference were then open for signature. The following day, twenty-six States signed the treaty.

On April 11, 2002, ten different states ratified the Rome Statute bringing the number of ratifications from fifty-six to sixty-six. The required sixty ratifications having been attained, the International Criminal Court (ICC) will come into existence on July 1, 2002. Although this event made headlines around the world, it was critically mentioned, in view of the gravity of the occasion, in the American press. This reflects the hostility to the Rome Statute by the Bush administration.

Why does the US oppose the International Criminal so intensely? What is in the Rome Statute that made the Department of State, the Pentagon, the National Security Council, various senators and congressmen and a lot of other participants in Washington’s complex policy-making fearful? Before giving an answer to this question, I am, in the first place, going to give a picture of the role of America in international criminal justice.
At the outset of international justice in 1945, United States had been a greater friend and promoter of it. Apart from playing a pivotal role in the great post-war trials at Nuremberg and Tokyo, America’s military tribunals also held a series of thematic trials that set precedents followed today. United States took the initiative to promote the ad hoc tribunals for former Yugoslavia, Rwanda and Sierra Leone. Moreover, it has used its financial muscle to make these projects a reality. The United States more presidents of the International Criminal Tribunal for the Former Yugoslavia. David Crane, the prosecutor of the Special Court in Sierra Leone was a senior lawyer in the United States Department of Defence. United States government bodies like the Agency for International Development and think tanks like the United States Institute of Peace can be found around the globe in the midst of transitional justice and accountability initiatives.

The United States played a very important and active role in the process leading to the establishment of the international Criminal Court. It made many productive contributions to the final product. Some of these contributions are, to name but a few: the broadening of the complementarity regime to include a deferral to national jurisdictions at the outset of an overall situation to the ICC rather than only at the preliminary stage of the work on any particular case; crimes against humanity include crimes committed during an internal conflict and crimes happening outside any arm conflict, due process protection. I think that the notion of atonement for serious violations of international humanitarian law lies in very much at the heart of America. Yet, the United States rejected the ICC when it came into existence in July 2002. It makes the whole world start to doubt the role of the US as a champion of the protection of human rights. This step by the US will go long way to affect the prevention of violation of human rights and the bringing to book of the authors of serious international crimes

The United States gave several reasons for their opposition to the establishment of the Permanent Criminal Court. When the Bush came to power; he ‘unsigned’ the Treaty. In a letter to the United Nations, the US says it will not consider itself bound by the treaty - even though Bill Clinton signed up to it in 2000. Giving a statement on the ICC Treaty, Secretary Rumsfeld said that:
‘The ICC’s entry into force on July 1st means that our men and women in uniform — as well as current and future U.S. officials — could be at risk of prosecution by the ICC. We intend to make clear, in several ways, that the United States rejects the jurisdictional claims of the ICC. The United States will regard as illegitimate any attempt by the court or state parties to the treaty to assert the ICC’s jurisdiction over American citizens’.
He then went on to give the main reasons why the Americans are disgruntled with the Permanent Criminal Court:
“The U.S. has a number of serious objections to the ICC — among them, the lack of adequate checks and balances on powers of the ICC prosecutors and judges; the dilution of the U.N. Security Council’s authority over international criminal prosecutions; and the lack of an effective mechanism to prevent politicized prosecutions of American service-members and officials.”

One can gather from Secretary Rumsfeld’s statement on the ICC that there are three main concerns of the United States which led to it not ratifying the Treaty. First, the Permanent Criminal Court lacks adequate checks and balances on powers of Prosecutors and judges. By virtue of Article 13, a criminal investigation may be initiated with respect to a crime referred to in Article 5 in one of the three following ways:

1. The charged crime may be referred to the Prosecutor by State Party

2. The charged crime may be referred to the Prosecutor by the United Nations Security Council acting under Chapter V11 of the United Nations Charter,

3. The ICC Prosecutor may initiate investigation proprio motu.

It was argued at the Conference that the authorization of the Prosecutor to initiate criminal investigations would make firm his or her autonomy and independence, as well as independence and credibility of the Court. It was also argued that this authorization was accorded the Prosecutor of the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda. Proponents therefore saw no reason why the Prosecutor of the I CC should not get the same power. The US was vehemently against the vesting of the Prosecutor with ex officio powers. The US argued that the Prosecutor will abuse this power and there were no checks and balances on the powers of the prosecutor. According to the United States, a Prosecutor with the power to initiate criminal investigation would become a ‘human rights ombudsman’ and be flood gated with complaints. They also argue that practice is in violation of the American constitution. The underlying reason for America’s fear for an independent Prosecutor is that the Prosecutor might single out US military personnel and officials

In his Statement, Secretary Rumsfeld also mentioned that United State was against the fact that there was “no effective mechanism that will prevent politicized prosecutions of American service-members and officials.” Article 12 of the Statute exposes U.S service men to the jurisdiction of the ICC while the United States remains a non-State Party. According to this Article a State which becomes a Party to the Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in Article 5. A State Party to the Statute therefore has the right to refer a committed crime on his territory even if the State of the accused is a national of a non-State Party. For example, if an Iraqi soldier or official commits one of the crimes mentioned in article 5 on the Sierra Leonean territory, the latter will refer the case to the Prosecutor of the ICC, even though Iraq is a non-State Party.

However, if neither Sierra Leone or Iraq is a Party to the Statute, and the case is referred to the Prosecutor by a State Party, or the investigation has been caused to begin by the Prosecutor Proprio motu, the territorial State, in this case Sierra Leone, or the State of nationality, in this case Iraq, must consent to the jurisdiction of the ICC. The United States claims that this article will lead to politicized referral by State Party and non-State Party. This can make it possible for American Servicemen and officials to be tried by a court to which America is not a Party. This, they argue, is in contravention of a fundamental principle of international treaty law which states that only States that are party to a treaty should be bound by it. According to Scheffer, the Statute provision ‘could inhibit the ability of the United States to use its military to....participate in multinational operations. Other contributors to peacekeeping operations will be similarly exposed.’

Rumsfeld further argued in his Statement on the ICC that the Statute shows no respect for the Security Council of the United Nations. In other words, the Rome Statute gives no efffective power to The Security Council. The US was well-disposed to the proposal presented to the General Assembly by the ILC in 1994. The Draft provided for an international Court that fit neatly within the Charter of the United Nations. This ILC provision provided that the SC would initiate prosecution which would mean that Permanent Members would be able to exercise the veto under the normal voting procedures. At the Conference in Rome, it was firmly pleaded by the Permanent members of the Security Council that the Court should not undermine the power of the organ. In his Statement, Ambassador Richardson asserted that ‘(T)he Council must play an important role in the work of the permanent Court...(which) must operate in conjunction-not in conflict-with the Security Council and its role and powers under the UN Charter. However, this subordinate position was changed at the Conference. This was at the displeasure of The US which wanted a strong SC role in the referral of cases to the Prosecutor. Many academic commentators have also argued in favour of America’s point of view. Two of these people are Ruth Wedgwood and Jack Goldsmith. Article 16 of the Rome Statute provides that the Security Council is allowed to ‘defer’ prosecution.

The United States rejected the ICC because of the ‘flaws’ in the Rome Statute. The United States is afraid that the Court will prosecute his nationals even though it has not ratified the Treaty. In my opinion, the arguments given to justify the ‘flaws’ in the Rome Statute are in themselves flawed. The Statute gives adequate safeguards to US servicemen and officials with or without US ratification of the ICC Treaty.

First, the principle of complementarity-a brainchild of the US-offers an adequate safeguard to the US. Salient in this principle is that the primary responsibility for investigating, prosecuting and trying international crimes lies with the municipal courts. The ICC acts as a complement to the national court. Put in another way, the ICC comes into action when the domestic prosecutor fails to act. The case will be inadmissible if the national authorities of a state thoroughly investigate or prosecute, or if they have tangible reasons for not prosecuting. In contrast to the ICC, the ICTY and the ICTR have primacy over national court. It sounds paradoxical that America was a vanguard behind the setting up of these courts. America may argue that it supported these courts because they were based on Security Council Resolution. I think this should not play a role. These courts still have jurisdiction over Americans who might have committed international crimes in Rwanda or Former Yugoslavia. Moreover, these courts were still in tension with the American constitution. Yet, America supported them in all aspects.

It is very hard to believe that American is doing all its power to frustrate the effective operation of a court that respects its sovereignty by way of the principle of complementarity. In Article 17(1) of the Statute the most fundamental consequences of the principle of complementarity are laid down. Article 17(1) states that a case is inadmissible before the Court if the state acts by investigating and prosecuting the accused, or there are good grounds for not acting. If the state is unwilling or unable genuinely to carry out the investigation or prosecution, the Court will step in. According to the paragraph of this Article a state can be termed unwilling if the whole national procedure is a sham, or there has been an unjustified delay in the proceedings which in circumstances is inconsistence with intent to bring the person to trial, or the proceedings were not or are not being carried out impartially or independently. Further, Article 17(3) lays down the criteria for determining the incapability of a state: total or substantial collapse or availability of its national judicial system, the state is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. I think that American justice system functions efficiently, independently and impartially. This concludes that it would be an uphill task for an ICC prosecutor to term a US prosecution as sham, or incapable of investigating or prosecuting an American accused of committing international crimes.

Article 18 requires that before a case is taken up, the ICC Prosecutor has to notify all states parties as well as the states that would normally have jurisdiction. Cases referred by the SC under article 13(b) do not require this notification. The State Party or any other State, including non-State Party- may inform the Court that it is investigating or has investigated the case. The Prosecutor shall defer, at the request of the state, to that state, unless the Pre-Trial Chamber, on application of the Prosecutor, decides to authorize the investigation.
In my opinion, America’s opposition to article 12 is groundless. The Court does not have jurisdiction over or otherwise affect non-Party States. Rather, it has jurisdiction over nationals of non-Party States for crimes committed on the territory of a Party State. Above all, international law does not prohibit the prosecution of nationals of another who commit genocide, war crimes and crimes against humanity in the territory of another state. If an American commits an international crime on the territory of Saddam’s Iraq, or Fidel Castro’s Cuba, these countries can exercise jurisdiction over him, even though they are ‘rogue States’.

Moreover, the argument that the Rome Statute lacks checks and balance on the powers of the Prosecutor is based on an unfounded premise. There is a proprio motu Prosecutor. Before initiating investigations on the basis of information on crimes within the jurisdiction of the Court, the Prosecutor should in the first place analyse the seriousness of the information received. I do not think the Court will be flooded with complaints. There are a number of provisions in the Statute which make this assumption very unlikely. The Court and its Prosecution will concern themselves only with the most serious crimes as defined in the Statute. Secondly, the Pre-Trial Chamber must have to authorize the investigation by the prosecutor. The pre-Trial Chamber should determine if there is reasonable basis to continue the investigation, and that the case falls under its jurisdiction.
The US argues that the Statute does give much power to the Security Council. In my opinion, that is not necessary because that will jeopardize the proper functioning of the Court. Precedents in the past have made clear how the SC had not been able to function properly because of the Permanent members who have veto powers. However, the Statute gives the SC some power to defer cases for 12 month. I think that America can still use this power to deter imminent criminal investigation and prosecution.
Therefore, the arguments for not joining the ICC are not strong enough to justify rejection of such an important permanent Court which has been set up to try people who commit the gravest international crimes.

Why is America so bent on protecting its nationals from the jurisdiction of the Court, bearing in mind that it is a self-proclaimed champion of human rights? Do the reasons lie in nationalism or does America have a down on the Rome Treaty because it is a stumbling block to its hegemonic practices? I argue that both cases apply in this context.
Secretary Rumsfeld further stated in his Statement on the ICC that

“For a strong deterrent, it is critical that the U.S. be leaning forward, not back. We must be ready to defend our people, our interests, and our way of life. We have an obligation to protect our men and women in uniform from this court and to preserve America’s ability to remain engaged in the world. And we intend to do so.”

‘Unsigning’ the Treaty on 6 May 2002, Marc Grossman, the then |Under Secretary for Political Affairs, stated that ‘United States respects the decision of those nations who have chosen to join the ICC; but they in turn must respect our decision not to join the ICC or place our citizens under the jurisdiction of the court’.
In both statements it is abundantly clear that the two speakers do not want the court to have jurisdiction over their citizens. Moreover, Rumsfeld mentions that they ‘are ready to defend our people, our interests, and our way of life’. Americans believe that the US represents a new development in human history, a particularistic community of universal significance. In other words, the national identity of American is based on the conviction the nation is bigger, more inclusive, and more significantly purposeful than any individual or group who belongs to it and that its binding principles are rooted in qualities and capacities shared by men everywhere. The US campaigned seriously at the Conference to share its view on the ICC; the Court should serve the interest of America and their way of life. The Court should be divested of all the powers that allow US citizens to appear before it.

That was the reason it pleaded for a strong SC role. This would have allowed it to block any prosecution of American citizens. This is “American exceptionalism”, which refers to the strong belief that America is in many ways different from-and even better than-any other states in he world. Typical of exceptionalism, is the opinion of superiority that imparts to the US the right and capacity to lead others. The Court is an embodiment of a superior power which will encroach upon the sovereign right. Moreover, that phenomenon will be a severe threat to American nationalism. The Bush administration wisely thought that not ‘unsigning’the Treaty will be a blow dealt to their effort on war on terrorism. Consequently, that will jeopardize their interest and paving the way for a possible appearance of their citizens before the Court. It is clearly evident that the arguments were an attempt to protect Americans from trial on the same grounds as other citizens of other states.

America’s refusal to accept the ICC has hegemonic traits.’ In an article that appeared in Time, Charles Krauthammer asserted that ‘America is no mere international citizen. It is the dominant power in the world, more dominant than any since Rome. Accordingly, America is in a position to reshape norms, alter expectations and create new realities. How? By unapologetic and impeccable demonstration of will.’ I wholeheartedly agree with this writer. America has reshaped norms, alter expectations and create new ones. In the past it has rejected treaties which were against its interests. A hegemon can easily be irritated by treaties since they represent limitations at some level on unilateral action parties. America hates the ICC because it will amass a lot of power, which will hamper its unilateral actions. The Court will act as a barrier to its doctrine of pre-emptive strikes and this would pose a problem.

Moreover, a hegemon have strong aversion towards agreements that create ‘international regimes or organisations that might enable lesser powers to form coalitions that might frusatrate the hegemon.’ America thinks it has the sole ‘global duty’ of keeping peace in the world and fighting human rights violations. By creating the ICC, some of these powers would be lost and the court would be a threat to American soldiers scattered all over the world. It should therefore be exempted from prosecution by the court because of its role as a global police. To achieve this, it sought to convince the other states that the SC should be given more power to block cases from going to the Court. That is another characteristic of a hegemonic state. It can use an international organisation-in this case United Nations- ‘to magnify its authority by a judicious combination of voting power and leadership.’ The US wanted to use the United Nations to be able block cases against Americans from going to the Court.

In this article I have discussed the main reasons for America’s rejection of the ICC. An attempt was made to analyse the arguments given by the US. I argued that there are enough safeguards in the Statute that can prevent Americans coming before the ICC. Finally, I argued that the reasons for opposition of the US lie in nationalism and hegemony.

Mohamed Kunowah-Tinu Kiellow(photo) holds a combined LLM in International Law and Criminal Law, a certificate in French Language and Culture, a certificate in Criminology from Utrecht University, The Netherlands. He also holds a Postgraduate Associate certificate in Law from the University of East London. He works as a Project Legal Adviser. He recently returned from Sierra Leone after having worked there for five months as a Human Rights Expert/consultant.