Pete’s blog

Critically examine the United States’ hesitancy to join the International Criminal Court

“A person stands a better chance of being tried and judged for killing one human being than for killing 100,000.” José Ayala Lasso, former United Nations High Commissioner for Human Rights.

Most crimes against humanity have either gone unprosecuted or have required temporary courts to be set-up solely for the prosecution of that crime. The International Criminal Court is an attempt by the international community to rectify this situation, by providing a permanent institution with the authority to try crimes that cannot or will not be prosecuted at a state level. But the largest power in the world has withdrawn its signature from the treaty and has raised several objections against the Court. What is the reason for their reluctancy to join an organisation with such a noble and lofty goal?

America’s five key objections to the International Criminal Court (ICC) are outlined by Marc Grossman, the Under Secretary for Political Affairs[1]:

1. The ICC is an institute of unchecked power
2. The ICC dilutes the authority of the UN Security Council
3. The treaty threatens the sovereignty of the United States
4. The ICC could erode the right to self-defence
5. The ICC may put US citizens at risk of politicised prosecutions.

Regarding the first point, the United States is concerned that the court does not have enough checks and balances to control its powers. Their concern is that “the treaty created a self-initiating prosecutor answerable to no state or institution other than the Court itself.[2]” I do not believe that this is a valid concern. The Court does have several checks and balances, and the selection of the prosecutor follows a very long and careful process. The concern that the Court does not answer to any one state, or any one institution is perhaps a valid concern, but this is fundamental to the very nature of the Court. The Court in the course of its duties may have to go against the wishes of a state. However, although the Court may not be answerable to one state, it is answerable to all states. The Court is established by treaty and requires the participation of states in order to function. The trials will also take place in the full view of the international community and will therefore be subject to its judgement. America may ask who the Court will be answerable to, but the same question could be asked of America – who are they answerable to?

In his second point, Grossman argues that the authority of the Security Council is diluted. This is perhaps a selfish argument aimed at increasing America’s power over the Court. If America could tie the Court to the Security Council, they would be able to use their veto powers of the Security Council to dilute the authority of the Court. I would argue that the Court will in fact strengthen the authority of the Security Council. The Security Council’s role is to promote international peace and security, the Court’s role is to prosecute international crimes against humanity. I see this as a supportive role – if you cannot bring to trial those responsible for breaking down international peace and security, how can you effectively promote it? Grossman’s reference to the crime of “aggression” probably highlights America’s main concern. America has a very poor record in aggressive acts – the most recent being the invasion of Iraq. Since Iraq was a very unilateral act and did not in fact have the Security Council’s blessing, it may be considered an act of aggression. I do not believe that an action fully supported by the Security Council could ever be considered an act of aggression, since the Security Council’s mandate is to promote peace and security.

The third point regarding sovereignty is only relevant if America does not sign the treaty. If America ratifies the treaty, not only will its sovereignty be uncompromised, but also its citizens will enjoy added protection against hostile acts whilst operating in foreign countries. The loss of states’ sovereignty is a key aspect of the Court – it is an international organisation designed to operate above and outside of states, and the loss of some of their sovereignty is necessary. However the Court will only be called to act “when national criminal justice institutions are unwilling or unable to act[3]”, and so states will still retain some sovereignty. Grossman does raise one relevant question: if a country chooses in the interests of reconciliation not to prosecute (as in the case of South Africa), would the Court respect that?

The fourth point regarding self-defence speaks for itself when Grossman refers to the needs of “States to project power in defense of their moral and security interests[4].” This immediately calls to mind the invasion of Iraq. A true act of defence should not be prosecuted by the Court, however a questionable act such as Iraq may be prosecuted. Perhaps an effective Court may have caused America to think a bit more carefully about acting against Iraq, and may have prevented the current situation. This point is clearly the concern of a powerful and aggressive state; smaller states may instead find comfort in the activities of the Court. Smaller states may not be able to defend themselves against an aggressive act using conventional means, let alone by “projecting power.” The Court would provide them another form of defence, by making an aggressor answerable to the Court. How different would the outcome of the 1991 Gulf War have been if Saddam Hussein had been arrested and brought before the Court?

Grossman’s last point regarding politicised prosecutions is a very valid concern. America has a very poor record of activities around the world – political assassinations, “regime changes” and potential human rights abuses. As previously mentioned, their activities in Iraq have been questionable; Bush has signed an order for the “assassination” of Osama Bin Laden (an extra-judicial act and potentially a war crime); and there is much debate about the rights of the Afghani prisoners at Guantanamo Bay, who have now been held without trial for almost 2 years. There is much anger currently in the world regarding America’s hegemony and activities around the world. Many people around the world would cheer the arrest of George Bush. However, the arrest of their president would not be in the interests of America, whether he was found guilty or not. From a global perspective, maybe America should be called to task for their actions, maybe their powers and actions should be subject to more checks and balances. But it would be a balance between making America think more carefully about their decisions, and not allowing hostile countries to break-down American government by constantly calling their president before the Court for any questionable action.

The world desperately needs an organisation such as the International Criminal Court, even if it is a little imperfect. America should be supporting the Court if it truly believes “in justice and the promotion of the rule of law[5].” Its objections bring it into the same category as some of the world’s ‘rogue states’ – Russia, China, India, Iraq and Israel. The Court is an idealist’s dream and a realist’s worst nightmare. Why should America care about an international court? It has enough power and influence to ensure that anyone it declares a criminal will be brought to justice one way or the other. Why should they join an organisation that would take such power away from them? The world has reached a point where the interests of humanity and the entire world are becoming more important than the interest of one state. America should accept this and join the efforts to formalise this, otherwise it will face condemnation and alienation. Some of America’s concerns are valid, but are they enough to warrant exclusion from such an important organisation that has now been ratified and called into existence?

 [1] Grossman M., American Foreign Policy and the International Criminal Court: Remarks to the Center for Strategic and International Studies, http://www.state.gov/p/9949.htm, Washington, 6 May 2002

 [2] Ibid

 [3] “Establishment of an International Criminal Court – Overview”, http://www.un.org/law/icc/general/overview.htm

 [4] Grossman M., Ibid

 [5] Ibid.