Hello
I’ll try and answer as neutrally as I can. You must be aware that
tensions are running high on this matter, and it’s hard to sit on the
fence. If it’s a dissenting answer you’re after, you’ll find all the
fuel on the "Other links" I’ve added below, and if it’s a "For"
answer, you’ll find plenty of support in the Amnesty International
links.
The Rome Statute of the International Criminal Court was adopted at a
diplomatic conference in Rome, Italy, on July 17, 1998. This event
culminated a decades-long effort to establish a permanent judicial
body to prosecute international crimes, and represents a dynamic shift
in international politics. The Statute’s purpose is to create a
judicial mechanism with jurisdiction potentially reaching every
individual on the face of the earth, whether or not that individual
resides in (or is a citizen of) a country that has ratified the
statute.
Such a wide ranging system was never going to be easy to implement,
and there are several major challenges that are going to have to be
overcome, and big decisions that will have to be made. Let’s look at
some of the big challenges.
1. The "Sovereignty" question.
Proponents of the ICC argue that the court will complement, not
replace, national criminal justice systems. The court theoretically
would take action only when national courts fail to fulfil their legal
responsibilities. In fact, the Statute states that the court "is
intended to be complementary to national criminal justice systems in
cases where such trial procedures may not be available or may be
ineffective."
The determination of a domestic system's "ineffectiveness," however,
is one of the areas where the rationale for the ICC needs clarifying.
Take, for example, a state that wants to avoid having its soldiers or
politicians prosecuted for war crimes. It could organize a national
trial (or pass a law that makes it virtually certain that they will be
acquitted) And if they can do that, the whole point of the ICC is
defeated; that is, war crimes will continue to go unpunished.
On the other hand, if the ICC gets to overturn or bypass national
trials by deciding what constitutes an "effective" or "ineffective"
trial, the international court will exercise a kind of judicial review
power over national criminal justice systems. In other words, the ICC
will have de facto supreme judicial oversight. Many countries will
refuse to sign up if such power is given to the ICC.
To quote from Ramifications of The International Criminal Court for
War, Peace And Social Change by Richard G. Wilkins, Professor of Law,
Brigham Young University
"Reason and prudence dictate against disregarding the established
boundaries of international law. The Court's expansive jurisdiction
seriously endangers the right of the people residing in nation-states
throughout the world to govern and order their own affairs and to
respect and/or alter their own cultural and religious traditions. This
threat to national self-determination should not be dismissed lightly.
"
And the ICC will not only impinge on sovereignty in special cases…it
will become an unavoidable participant in the national legal process
because it will set precedents regarding what it considers "effective"
and "ineffective" domestic criminal trials, and will make nation
states adopt those precedents or risk having cases called up before
the international court. That constitutes an unprecedented change in
the sources of national lawmaking, one that diminishes the traditional
notion of state sovereignty. Again, many countries are wary of
signing up to something which they perceive will diminish their own
powers of decision making in issues covered by the courts
jurisdiction.
Some proponents of the ICC have taken an opposite viewpoint. Legal
scholar Sandra Jamison, for example, argues that the United States and
other nations must be prepared to cede some of their traditional
sovereignty in pursuit of a potent international criminal court. "The
absolute doctrine that a state is supreme in its own authority, and
need not take into account the affairs of other nations," she says,
"is no longer tenable."
Finally, Judge Gabrielle Kirk McDonald, an American judge sitting on
the Yugoslavia tribunal, admitted that the ICC would create tension
between "state sovereignty and world order," but insisted that it must
be able to employ "an element of compulsion" in order "to redress
gross violations of human rights and international law."
Until the boundaries of the ICC’s jurisdiction in the area of Nation
state sovereignty have been defined and ratified, there are always
going to be tensions between members and non-members, and many
countries, including the USA, will refuse to consider joining.
2. The perceived threat of future expansion of legislative powers
The statute states that the "court is intended to exercise
jurisdiction only over the most serious crimes of concern to the
international community as a whole,"
However many of the ICCs advocates do not want to limit its scope to
the core offences of war crimes, crimes against humanity, and
genocide. Some supporters of the ICC have been trying to transfer
human rights violations and violations of other international
prohibitions to the domain of the court.
Amnesty International, stated that the scope of the ICCs powers needed
to be widened so that "perpetrators of human rights violations must be
brought to justice" .
In fact, the statute contains wording that would elevate unlawful
imprisonment and political incarceration to the status of
international crimes. Many countries are worried that this would give
the ICC power over matters of domestic law enforcement and internal
security.
A number of countries also want to have the crime of "aggression"
included in the final ICC statute. Libya has even argued that the
crime of "aggression" should be defined to include confiscation of
property and establishment of settlements in occupied territories.
Under that wording the United States, which continues to freeze Libyan
assets, and Israel, which continues to build settlements on the West
Bank, could both be prosecuted for "war crimes"
Naturally, the USA is loath to sign up to such an agreement.
Here’s a quote from a US libertine report: Reasonable Doubt: The Case
against the Proposed International Criminal Court
(http://www.cato.org/pubs/pas/pa-311.html )
"According to the proposed wording of Article 5 of the ICC draft
statute, the term "aggression" could also include such things as the
"bombardment by the armed forces of a State against the territory of
another State" and "the blockade of the ports or coasts of a State by
the armed forces of another State." Including those actions under
"aggression" will reduce the military options available to the United
States by outlawing preemptive strikes and the kind of naval blockade
President Kennedy employed during the Cuban Missile Crisis. That could
effectively tie the hands of U.S. policymakers. As Department of
Defense spokesman Kenneth Bacon explains, "What we're concerned about
is that the court not be set up in a way that gives it very broad
authority to pursue a vague definition of aggression that could be
confused with legitimate defensive action to protect our national
security interests or the national security interests of other
countries who back the idea of setting up an international criminal
court."
This area is seen by the opponents of the ICC as of prime concern, and
many countries will not sign up until the ICC makes it’s position
clear. Proponents of the ICC are pushing hard for more power, and
pressure groups, like Amnesty International, are fighting hard to stop
what they see as the dilution of the court’s responsibilities.
Reaching some common ground on which all parties can agree is one of
the biggest challenges the ICC will have to face.
To quote from Professor Wilkins again:
"The Rome Statute can (and will) be used to re-engineer social
policies throughout the world. I have been a lawyer (and a law
professor) long enough to know that vague language can be used to
achieve almost any goal if the lawyers (and judges) engaged in the
task are infused with enthusiasm and ingenuity. The NGO and legal
communities that support adoption of the Rome Statute have plenty of
both - and to spare. "
3. The Potential for a Jurisdictional Leviathan becoming the "World’s
Policeman"
Here’s another quote from Wilkin’s analysis :-
"The Rome Statute, according to its terms, is designed to be
"complementary to national criminal jurisdictions." As such, the Court
is designed to take jurisdiction only when a nation is "unwilling or
unable" to act. This language appears to protect national sovereignty,
and is invoked by proponents of the Court to calm concerns that the
Court might seriously intrude upon questions (such as culture and
religious practice) that, according to the UN Charter, are "within the
domestic jurisdiction" of a nation-state.18 But, while it sounds
reassuring, the notion of "complementarity" is a legal shadow. Rather
than protecting national sovereignty and local democratic
self-determination, the concept of "complementarity" operates much
like an international supremacy clause. In essence, it is a back-hand
way of saying "the Court's laws govern" because any time a nation
departs from the Court's laws, that nation could be found "unwilling"
or "unable" to follow the Court's laws, th! ereby triggering
complementary jurisdiction. The Court's law and national law are
"complementary" only as long as national law does not conflict with
the Court. Under the Rome Statute, if a conflict exists national law
must recede. "
In other words, the ICC takes precedence over all else. This is a
frightening thing for some countries to consider. For example, some of
the ICC members want "terrorism" and "international drug trafficking"
to be added to the court's responsibilities. But the U.S. Department
of Justice worries that that could end up interfering with the
crime-fighting operations of the FBI and DEA, especially if the ICC's
investigators unknowingly conduct competing investigations.
Some members in the ICC also want the final statute to contain wording
that would give the court jurisdiction over a host of new "crimes,"
including "committing outrages upon personal dignity" and causing
"serious threats to the environment . In other examples the crime of
"persecution," as set out in the Statute condemns the "severe
deprivation" of a group's "fundamental rights." The crime of "inhumane
acts" criminalizes the infliction of "great suffering, or serious
injury to body or to mental or physical health, by means of an
inhumane act."
However the act has not defined these terms, and indeed, they are open
to a wide variety of interpretations It is clear that there is
potential to expand the court's domain to include those and other
crimes, but many states are wary of having their leaders called before
an international court for crimes that are, at best, vaguely
specified.
The challenge for the ICC is to reach agreement on the way forward,
without stifling it’s own flexibility, while reassuring members and
possible members that they will not be overrun by a monolithic
"policeman" who will deprive nation states of sovereign powers.
4. Financing the Court
Just meeting the courts running costs is going to be a huge challenge.
It is difficult to estimate the overall costs of running the ICC,
sceptics are assuming the worst. Again, th quote from Reasonable
Doubt: The Case against the Proposed International Criminal Court
"DePaul University published a study in 1997 estimating the cost of
the court at $60 million to $115 million annually ….and as the
registrar for the Rwanda tribunal, Agwu Ukiwe Okali, pointed out in a
speech before the UN Preparatory Committee on the Establishment of an
International Criminal Court, international tribunals are a lot larger
than most people realize….a staffing strength of over 600 and an
annual budget of nearly 60 million dollars.
And the sceptics point out that the ICC is always negotiating huge
pension and travel entitlements, installation and education
allowances, and disability and survivor's benefits and all the
perceived "perks" of a large organisation.
To counter this, the ICC will have to instigate strict financial
controls, and will have to be seen as "whiter than white" in all it’s
financial dealings, ( although financial probity has never been seen
as a feature of large, multinational, organisations. )
The skeptics are not convinced the ICC will be able to overcome the
public perception of mismanagement given the ICC’s close ties to the
UN
Here’s more from "Reasonable Doubt: The Case against the Proposed
International Criminal Court "
"Then there are the unforeseen costs of possible UN mismanagement of
the court. The track record with regard to the special tribunals is
not encouraging. 1998 Paschke released a report describing widespread
corruption and cronyism among UN purchasing officers in Angola that
wasted millions of dollars. "The audits disclosed serious management
deficiencies and apparent breaches of financial regulations and rules
as well as improprieties and irregularities in the procurement
process," explained Paschke. Among his findings:
· UN officials tried to issue more than $15 million in unnecessary
purchase orders to middlemen who would have reaped huge commissions.
· Several unnecessary "rush" buying trips to South Africa cost more
than $1 million each.
· UN buyers paid nearly $7 million for substandard equipment and then
had to pay an additional $1 million to make it usable
Tied in to the court costs are vast potential obligations as a result
of its decisions associated with Article 73 of the ICC draft statute.
According to that article, the court would not only try and convict
international criminals but also "recommend that States grant an
appropriate form of . . . rehabilitation" to the victims and witnesses
of war crimes. Because that could involve hundreds of thousands of
people in the future, the costs of Article 73 could prove staggering.
Pressure groups such as Human Rights Watch support this measure and
are fighting hard for its ratification (4)
"The ICC must be empowered to provide support . . . to victims and
witnesses. Evidence from the International Criminal Tribunals for the
Former Yugoslavia and Rwanda overwhelmingly indicates that witnesses
face serious security, psychological, and medical concerns. Victims of
gender-based crimes who testify may experience profound stigma and
shame. For these reasons, HRW supports the creation of a Witness
Support and Protection Unit within the Registrar's Office to protect
the physical and psychological well-being of witnesses--particularly
victims--and their family members, before, during, and after trial
proceedings."
But such expensive goals have to be funded, and the ICC will have to
find a way to do this while overcoming the perception that it is just
another UN drain for rich countries to throw money down.
There has been some discussion of making state contributions to the
ICC voluntary, but if ICC funding is not voluntary, and historical
contribution rates apply, 25 percent of the court's cost will likely
be passed on to the United States, which the UN says already owes $1.6
billion in unpaid back contributions.(1)
5. Interference with Peacekeeping Operations
Many members of the ICC want to extend the power of the court to give
it power in awarding reparations. For example, Amnesty International
maintains,
"The court must have the power to award victims and their families
reparations, including restitution [and] compensation. . . . The court
itself should have the power to award such reparations since it is
unlikely that national courts, which were unable or unwilling to bring
the person responsible to justice, will be able or willing to award
reparations or to enforce the award" (2)
Again, the sceptics take issue with this. Here’s more from
Reasonable Doubt: The Case against the Proposed International Criminal
Court
"Giving the ICC power to award reparations could easily destabilize
peacekeeping operations. For instance, if the court decides that one
formerly warring faction must pay reparations or return conquered
territory to another, peacekeeping troops could find themselves in the
messy situation of either carrying out or refusing to carry out the
court's judgment. Either way, one faction will be upset and the
peacekeepers will be caught in the middle."
There is also concern that charging a nation's political and military
leaders with war crimes will undermine efforts to resolve
international conflicts, and could lead to increased tensions in
already volatile regions.
However, when the US tried to pass a UN resolution exempting
peace-keepers from the treaty, Amnesty International made it’s views
known very vociferously (3)
"The United States put much pressure on the other members of the
Security Council to do what the majority of UN member states
unequivocally oppose. Investigations and prosecutions for the gravest
crimes should never be obstructed, nor should double standards ever be
created for peacekeepers or anyone else. "
Obviously the ICC must ensure that if it is to have power of
reparations, such reparations have to be strictly controlled, and done
in such a way as to minimise disruption on existing UN operations.
This could prove to be tricky, as unscrupulous countries could use
reptriation situations for their own ends.
6. Lost Rights?
The USA in particular is very concerned at a perceived loss of rights,
and carry the view that the ICC is riding roughshod over its
constitution, being concerned that many of the legal safeguards
Americans enjoy under the Bill of Rights, particularly Fifth and Sixth
Amendment protections, would be unavailable if Americans were brought
before the International Criminal Court. More specifically, the
Supreme Court has said that the federal government cannot enter into
treaties that relinquish the constitutional rights of American
citizens
To quote again from Reasonable Doubt: The Case against the Proposed
International Criminal Court,
" Any ICC judgment against an American who committed an offense in the
United States will likely be judged unconstitutional because the ICC
is clearly not an Article III court of the United States. "
And the view is shared by Professor Wilkins:
"The United Nations was not designed to possess, let alone exercise,
sovereign powers. The United Nations Charter does not give it the
power to "enforce" human rights ideas upon sovereign nations. Rather,
the Charter calls upon the United Nations merely to "promot[e] and
encourag[e] respect for human rights." It would be a tragic irony if,
in the name of "human rights," the nations of the world give
potentially despotic power to a court that will be remote from the
individual people of the world, but that will have the power to
prosecute and punish them for "social crimes."
Amnesty International, naturally, take an opposing view to the USA’s
problems with the treaty, and issued the following statements:
· "instead of being subject to the ICC, "the USA expresses its
intention to investigate and prosecute only "where appropriate", thus,
indicating that the decision to investigate or prosecute is a matter
solely within the discretion of the USA and not a matter of law."
· To effectively undermine the ICC in some circumstances, U.S
nationals and the nation in the agreement cannot be witnesses before
any ICC investigation: "the US impunity agreement is designed to
prevent US nationals and associated persons, as well as nationals and
associated persons of the second state, from appearing as witnesses,
including as expert witnesses, before the International Criminal
Court."
7. Recent events
The American President George Bush recently announced that the USA was
"unsigning" the ICC treaty.
The rest of the world has regarded this action as unilateral rejection
of engagement by the United States except when narrow U.S. interests
are involved, and sees it as a desire on the USA’s part to act
unilaterally in it’s "War on Terror" with no respect for the human
rights of anybody who gets in the way.
Human Rights Watch said
" U.S. objections reflect a fear that the Court will be used
politically against U.S. citizens. A close look at the safeguards and
the checks and balances in the treaty make clear that the Court will
be fair and impartial." (4)
The USA on the other hand sees itself on a rightful quest to rid the
world of terrorism and it does not believe that the ICC is "fair and
impartial"
The matter appears to be at an impasse
The ICC must come to a decision, and soon, as to how it handles the
USA’s withdrawal, and how this is handled will have a long-reaching
effect on the future of the whole process. Many legal and
constitutional areas will have to be ironed out before the USA will
even consider signing up for the ICC. And if the USA will not sign, is
there a future for the ICC? Only time will tell.
Some people have begun to have a look at that possible future. Here’s
a quote from the American Policy Center’s look at one possibility. (5)
"A stunned former President George W. Bush sat in the docket of the
United Nation's International Criminal Court listening to the charges
brought against him. The year is 2009 and, among the charges, is
genocide against the Iraqi people, when the US invaded Iraq to replace
its leadership in 2002."
Is it really beyond the bounds of possibility?
Hope that’s what you were looking for
Willie-ga
(`1) "The United Nations Debt: Who Owes Whom?" Cato Institute Policy
Analysis no. 304, April 23, 1998.
http://www.cato.org/pubs/pas/pa-304es.html
(2) Amnesty International, "The International Criminal Court: 16
Fundamental Principles for a Just, Fair and Effective International
Criminal Court," Report IOR 40/12/98, May 1998,
www.amnesty.org/ailib/aipub/1998/IOR/I4001298.htm.
(3) International Criminal Court: Immunity for peace-keepers is a set
back for international justice: Amnesty International Press Release
http://web.amnesty.org/ai.nsf/recent/IOR510072002!Open
(4)The Human Rights Watch FAW about the ICC and the USA
http://www.hrw.org/campaigns/icc/usqna.htm
(5) 2009: UN's International Criminal Court Indicts Bush
http://www.americanpolicy.org/un/2009uncrimcourt.htm
Other links of note:
Reasonable Doubt: The Case against the Proposed International Criminal
Court http://www.cato.org/pubs/pas/pa-311.html
Ramifications of The International Criminal Court for War, Peace And
Social Change by Richard G. Wilkins, Professor of Law, Brigham Young
University
http://www.lifesite.net/ldn/2002/feb/020212a.html
Google search terms used
"International Criminal Court" objectives future
"International Criminal Court" challenges future
"International Criminal Court" "Amnesty International"
"International Criminal Court" "George Bush" |
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