The International Criminal Court will be up and running next year. Although virtually every Western democracy has ratified the treaty under which the Court will operate, the United States will not participate. The Bush Administration's recent withdrawal from the Court is a significant mistake. On the macro level, it sends a message to the rest of the world that the United States will continue to renounce international obligations, as it has done in with the land mine ban treaty, Kyoto Protocol, biological weapons treaty, comprehensive test ban treaty and ABM treaty. This continuing pattern of unilateralist behaviour will interfere with U.S. efforts to maintain its anti-terrorism coalition. On a micro level, the U.S. will not have input into selection of the Court's judges and prosecutors.
Why did the Bush Administration pull out of the Court? The United States seeks to immunize its officials and soldiers from becoming defendants in war crimes prosecutions. Although many people in this country cannot imagine the Court would prosecute U.S. defendants, the Bush Administration knows there are reasons for concern. During the past 10 years, the United States has conducted intense bombing raids in Iraq, Yugoslavia and Afghanistan without United Nations approval. Many of the bombs dropped from U.S. warplanes contained depleted uranium warheads and cluster bombs, which killed large numbers of civilians, in direct violation of international law. Bush's likely attack on Iraq does not have support of the international community.
The United States should not fear involvement in the International Criminal Court. The Court's Statute contains checks and balances designed to ensure fairness. The eighteen judges will be elected by the member states. The powers of the prosecutor are well regulated. Cases can be referred to the Court by: (1) the United Nations Security Council, or (2) individual member countries or the Court's prosecutor. Referrals under the second track are subject to the principle of "complementarity" wherein the Court would be a last resort only when a state cannot or will not prosecute one of its nationals. The Court's prosecutor must notify a state with a prospective interest in a case of the prosecutor's intent to commence an investigation. If that state notifies the Court within one month that it is investigating the matter, the prosecutor must defer, unless the Pre-Trial Chamber decides the investigation is a sham. The decision of the Pre-Trial Chamber can be reviewed by interlocutory appeal to the Appeals Chamber. And, the Statute provides the Security Council with a collective veto over the Court, by allowing the Council to postpone an investigation or a case for up to twelve months, with provision for renewing that time period.
The United States government claims the Court doesn't contain the due process protections guaranteed in our Constitution. Yet, the Statute contains Miranda-type warnings, the rights to a speedy and public trial, defence counsel, reciprocal discovery, confrontation of witnesses, and protection against double jeopardy. Although the Statute does not provide for a jury trial, neither do the Bush's new military tribunals or the ad hoc tribunals spearheaded by the United States in Yugoslavia and Rwanda. And, unlike the military tribunals, there is provision for judicial appeal of convictions.
Washington further objects that the Court can take jurisdiction over nationals of a state that isn't party to the Statute if that person commits a crime in the territory of a state party. This is nothing new. The United States has taken jurisdiction of foreign nationals in anti-terrorism, anti-narcotic-trafficking, torture, and war crimes cases. And, the core crimes prosecuted by the Court - genocide, war crimes and crimes against humanity - are crimes of universal jurisdiction under well-established principles of international law. Nazi Adolph Eichmann was tried in Israel for crimes he committed during the Holocaust.
At Nuremberg, for the first time, individuals were held criminally accountable for the most heinous crimes. The United States vigorously supported the Nuremberg Tribunal. Ironically, however, the same day Secretary of State Colin Powell paid tribute to the memory of the victims of the Nazi Holocaust, the United States government renounced the International Criminal Court.
Washington's justification is based on a faulty premise, and opting out of the Court will ultimately harm the interests of the United States. Param Cumaraswamy, the United Nations special rapporteur on judicial independence, said "the U.S. government has effectively forfeited its leadership role in the search for justice and the promotion and the protection of the rule of law and human rights in the international sphere." By renouncing the International Criminal Court, the United States has cut off its nose to spite its face.
Professor Marjorie Cohn teaches at the Thomas Jefferson School of Law. Copyright © M. Cohn 2002. For fair use only
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