What Is the ICC and Why Is the US Opposed to It - Essay Example

What is the ICC and why is the U.S. Opposed to it? Law and International Systems Djibrine Hamon Madi May 10, Introduction Although there had been a need for it for quite some time, The International Criminal Court (ICC) did not come into existence until July 17, 1998, with the implementation of the Rome Statute of the International Criminal Court. (Schabas, 2007, p.9) The Court however did not come to a functional stage, which required the acquiring the necessary signatures from 60 different nations throughout the world, until finally in July of 2002. (Schabas, 2007, p.11) From the beginning President Clinton endorsed the concept of such an entity however he signed the agreement endorsing the furtherance of order and control of international criminals. Notwithstanding his signature, he knew that the Senate would not ratify it the way that it was written at that time because of the fundamental concerns that they would have with the denial of liberty and the seemingly endless arbitrary power that such an entity could and would potentially wield. Subsequently, the next president after Clinton, Bush, undid Clinton’s actions by sending a letter to the ICC withdrawing the signature as a party to this treaty. (Anonymous, ND) The primary impetus for the creation of such a court was the ever increasing numbers of heinous crimes that were being committed against humanity and the country responsible for bringing the criminals to justice were not executing on that duty. This then creates the purpose for this court being to bring to justice those criminals guilty of committing heinous crimes against humanity who had escaped such justice to this point. Basis for U.S. Opposition to ICC While the Tribunal was entitled to collaborate with the national courts, it could have the priority as well, which is inconsistent with the system in place in the United States. In other words, a case tried in a national court can be transferred to the international court upon request. The International Criminal Court “stipulated by the prepared Statute is capable of conducting trials for three categories of crimes, war crimes, crimes against humanity, and genocide. Since the Court is a criminal one, those to be prosecuted for these crimes are individuals. States are not included in the jurisdiction of the Court as legal subjects.” (Schabas, 2000, p. 69) The Court is “entitled to try the crimes committed after the date of Courts establishment and the date of signing of the Statute by the relevant state. Older cases and the relevant states are not included in the jurisdiction of the Court.” (Schabas, 2000, p. 70) In other words, only the crimes committed by applicable individuals or applicable locations from or within a given state, after the treaty has been signed, will be subject to the jurisdiction of the ICC. In early 1993, shortly after the start of the Clinton administration, a process of review was begun with respect to the proposal for a permanent international criminal court, which had been under consideration by the International Law Commission (ILC) since 1992. As they followed the deliberations of the ILC, they hoped that the draft statute for an ICC would reflect enough of the views taken by the United States such that the United States could actively begin to work toward establishment of the court. The Administration lawyers subjected the ILC drafts to exhaustive internal review and analysis. One of the main objectives of the U.S. included allowing for a significant role on the part of the United Nations Security Council in the referral of cases to the court. The particular types of cases that were acceptable would be “specific and properly defined war crimes in the statute of the court, with an exclusion of drug trafficking and the crime of aggression from the statute. There was a need for further study concerning whether or not to include crimes of international terrorism in the statute.” (Scheffer, 1999) Even though the ILCs final draft statute for the ICC addressed many of the U.S. objectives and constituted, what was considered, a good starting point for much more comprehensive discussions, they were not identical to U.S. position. The draft issued by the ILC acknowledged that the Security Council should determine whether cases that pertain to its functions under Chapter VII of the UN Charter should be considered by the ICC. Further, they found that the Security Council “must act before any alleged crime of aggression could be prosecuted against an individual, and that the prosecutor should act only in cases referred either by a state party to the treaty or by the Council.” (Scheffer, 1999) The ILC draft also “enabled a state party to ‘opt out’ of one or more categories of crimes when ratifying the treaty, an act that would limit the courts jurisdiction over that countrys nationals for these particular offenses.” (Scheffer, 1999) It is this “opt out” provision that President Bush took advantage of when he took office as an act of being safe rather than sorry. The United States pursued three main objectives during this process. First, the United States wanted to work toward a successful conference that resulted in a treaty. Second, their responsibilities for international peace and security-shared with many others-had to be factored into the functioning of the court. Third, the United States believed that the court would not be well served by a prosecutor with the power to initiate investigations and prosecutions of crimes falling within the jurisdiction of the court, in the absence of a referral of an overall situation by either a state party to the treaty or the Security Council (Senate Hearing, 1998) As long as the prosecutor for the ICC has the power to initiate investigations and prosecution of crimes falling within the jurisdiction of the court, in the absence of a referral by a state party to the treaty or the Security Council, the liberty interests that all of the citizens of the United States enjoy is going to be in jeopardy. It is this very sort of power and the potential for abuse that goes hand in hand with it that the United States citizens that formed the Constitution of the U.S. had the specific intent to avoid, when it created a balance between the legislative, judicial, and executive power structures within the Constitution. No one element of this power structure has absolute power. There is always the capacity of another of the elements or branches to bring into check an attempt at or a realized abuse of their individual scopes of power. With a prosecutor with this cart blanch power there is no one in the U.S. that would necessarily be safe from an arbitrary action being commenced by the ICC’s prosecutor. Until this issue has a clear and unequivocal remedy, the U.S. will not be a party signatory to the ICC. ICC’s Restriction on Presidential or Executive Power The main concern that the U.S. had was that “in the prosecutor is the power of law enforcement, a powerful and necessary element of executive power. The United States has never been expected to place any of that power outside the complete control of our national government. The primary concern should be for our countrys top civilian and military leaders, those responsible for our defense and foreign policy. They are the real potential targets of the ICCs politically unaccountable prosecutor.” (Scheffer, 1999) The ‘Constitution provides that the discharge of executive authority will be rendered accountable to the citizenry in two ways. “First, the law-enforcement power is exercised only through an elected President. The President is constitutionally charged with the responsibility to ‘take Care that the Laws be faithfully executed,’ and the constitutional authority of the actual law-enforcers stems directly from the only elected executive official. Second, Congress, all of whose members are popularly elected, both through its statute-making authority and through the appropriations process, exercises significant influence and oversight. When necessary, the congressional impeachment power serves as the ultimate safeguard.” (U.S. Const., art. II, Damrosch, 1991) Power of the ICC The International Criminal Court has been as a rule perceived favorably in the context of universality and international law. But “it is a development restricting national sovereignty when looked at from the perspective of the Realist Theory. Although the state continues to use the jurisdiction which it exercises for everyone within its country, it shares jurisdiction with the International Criminal Law for the defined crimes of genocide, crimes against humanity and war crimes and abandons a part of its sovereign rights. Punishing a citizen of a state in an international court is exercising the jurisdiction of that nation state. Despite the nation-state is still possessing its jurisdiction, the International Criminal Court is able to exercise jurisdiction in case of delay or lack of trials, so that the case will be tried. Furthermore, a second trial is also possible, if an opinion is concluded about the lack of justice at the end of the prosecution process. This means that the International Criminal Court is an institution over the jurisdiction, and hence the sovereignty of the state.” (Ball, 1999) Limitation on States To the extent that the ICC has the power to instigate a proceeding against a given individual who lives in a given state, which can override the jurisdiction of the give State, there is a very real limitation on the power or jurisdiction of that State. This is the reality of the subjugation that takes place when a state signs as being a party to the Treaty establishing the jurisdiction particulars of the ICC. The Role of the Prosecutor in the ICC The role of the prosecutor in the International Criminal Court is especially critical and the “prosecutor is expected to act as an independent organ of the Court. The prosecutor is elected by the vote of majority of the state parties. The prosecutor is appointed to conduct the investigations and prosecutions and does not take orders from anywhere. The prosecutor may initiate any investigation on the recommendation of the States parties, raised by the Security Council, or on his/her own. The power of the Security Council to veto an investigation of the prosecutor is limited. The Council and the Court is expected to act independently of each other, thus the political role of the Security Council in the International Criminal Court has been intended to be reduced.” (Bolton, 1999, p. 66-70) This is troublesome to the United States because it puts them in a position of powerlessness as a practical matter. Political power is especially important to the manner in which the United States is accustomed to operating, so it puts a considerable cramp in the style of operating for the United States. More important and applicable than the political powerlessness is the actual powerlessness that the United States feels concerning the position that they are put in with the approach used by the ICC. It flies in the face of the fundamental premise of the entire system that exists within the United States in that it eliminates any check on the abuse of power that is always a potential with any one individual, more especially an individual that wields as much power as a prosecutor for the ICC would wield. By American principles long held dear, the ICCs structure completely fails to provide sufficient accountability to warrant vesting the prosecutor with the statutes enormous power of law enforcement. “Political accountability is completely different from ‘politicization,’ which most can agree should form no part of the decisions of either the prosecutor or the court. Today the ICC has almost no political accountability, and carries an enormous risk of politicization. The fundamental fear involved here is that concerned with the unchecked, unaccountable power vested in the sole prosecutor.” (Coban-Ozturk, 2014) Territorial Jurisdiction of ICC When we look at the territorial jurisdiction, we see that the ICC has jurisdiction for three types of crimes committed within the territories of the countries that are the parties of the Statute. “The nationality of an individual alleged to have committed crimes in the territory of a state party is not important, because the territory where the action took place belongs to one of the state parties and the Court has jurisdiction here. An individual, who is a citizen of a state party, committed a crime within the territory of a state, which is not a party of the Statute, may also be tried. This means that the court is entitled to exercise jurisdiction based on citizenship and before state parties.” (Coban-Ozturk, 2014) If there is a situation where neither the state where the crime was committed within, nor the state where the offender is a citizen, is a party of the statute, the jurisdiction of the court can then present potential problems. For example, an individual who is a citizen of Iran which has not signed the Statute commits a crime within the territory of Iran, which has not signed the Statute either, then it could be initially thought that the Court has no jurisdiction. However this does not necessarily have to be the case as there are still some possible ways to invoke jurisdiction. Based on the “13th article, the Security Council is entitled to request from the prosecutor to open an investigation for the state not accepting the jurisdiction of the Court (The Rome Statute, Article 13 (b)). In cases where the Court has jurisdiction, both the Security Council and any other state party are entitled to request investigation from the prosecutor (The Rome Statute, Articles 13, 14). In this case, jurisdiction may be used by the Court despite the state, where the crime were committed or which the individual is a citizen of, is not a party of the Statute. Initiating an investigation under these circumstances is not a mandatory jurisdiction, but is left to the discretion of the Security Council. “The Security Council is entitled to bring a case to the Court or to request abandoning an investigation (The Rome Statute, Article 16). But it shall not be effective on the functions of the Court since they are separate organs.” (Coban-Ozturk, 2014) The “first example of this provision is experienced after the incidents in the Darfur region of Sudan wherein The Security Council requested the prosecutor to initiate an investigation because of the conflict and increasing chaos in the Darfur region of Sudan at the beginning of the 2000s. The person alleged to have committed the defined crimes against the people of Sudan was the president and a citizen of Sudan. In other words, Sudan, which is the country where the actions took place and president was a citizen of, was not a party of the Statute. An investigation was initiated by the prosecutor based on a Security Council Resolution and the cases began to be proceeded. The trials of individuals who have been accused in Darfur events of 2005 are still continuing (The International Criminal Court and Cases). In addition, some cases have been completed at the International Criminal Court for some citizens of three African countries (Central African Republic, Democratic Republic of Congo, and Uganda), which are the parties of the Statute, for the actions executed within the territories of these countries during the conflicts. Furthermore, some investigations have been initiated in Libya with Security Council regulations and Libya is not a party of the Statute. Most of the proceedings related to the citizens of the current countries are still continuing.” (Coban-Ozturk, 2014) Benefits Provided by ICC Tribunals Just like anything that is in its nature bad, it is never too late to start to do whatever can be done to eliminate even part of that bad. Such is the argument that can and should be made concerning the tribunals that have been established pursuant to the ICC jurisdiction for the sake of eliminating even one future act of abuse of power and crimes against humanity generally. The specific benefits from these tribunals include but are not limited to “the improvement of the existing national systems; training the existing personnel; raising new judges, prosecutors, and lawyers; starting new education institutions to this end; improving the existing court buildings and constructing new ones; opening new prisons; and, improving the conditions of the existing ones can be considered within this context as well.” (Coban-Ozturk, Ebru, (2014(a)) The International Criminal Tribunal for the Former Yugoslavia has been established by “Security Council Resolution, No. 808 based on 41st and 42nd articles of the 7th Chapter of the United Nations Charter. The 7th Chapter of the Charter entitles the Security Council to impose economic sanctions, engage in diplomatic initiatives, and to rebuild the peace on behalf of the international community in case of threat to peace, breach of the peace, and act of aggression.” (Bodley, 1999, p. 438) Specific Applications of Jurisdiction of ICC One of the most recent and poignant examples of the applications of jurisdiction of the ICC took place in Rwanda. The Tribunal was “founded for the events that occurred only in Rwanda and only within the period between January 1st and December 31st, 1994. The offenders, who are the citizens of Rwanda both live in the Rwandan territories and escaped to neighboring countries, are under this jurisdiction. The seat of the Tribunal, in Arusha, is composed of the chambers and the prosecution. There are four chambers; one of them functions as an appeal court with sixteen permanent judges and nine ad litem judges. Seven of the permanent judges serve on the appeal court” (The Statute of the ICTR, 2010). The Prosecutor is a competent person recommended by the UN Secretary-General and appointed by the Security Council for a four-year term of office. Prosecutors are allowed to be nominated again (The Statute of the ICTR, 2010). Only individuals are prosecuted and as of January 2014, “forty-seven cases have been completed by the International Criminal Tribunal for Rwanda and sixteen cases have been sent to appeal. Twelve prisoners in custody have been released. Two prisoners have been released without prosecution. Another two prisoners have been released due to lack of evidence. Ten cases have been transferred to the national jurisdiction of Rwanda. There are also fugitive offenders that were not brought before the Tribunal.” (The cases of the ICTR, 2014) Residual Powers Residual Mechanism for Criminal Tribunals is a court having the same functions and jurisdiction with ICTR and International Criminal Tribunal for the Former Yugoslavia (ICTY) which has been founded one year earlier than the Rwandan Tribunal. It has two separate branches for ICTR and ICTY. “Its mission is to undertake and conclude the cases which could not be completed by these two Tribunals. Besides, it has a similar structure with these tribunals. It is also composed of prosecutions and chambers and it has a single appointed prosecutor (The Statute of the International Residual Mechanism for Criminal Tribunals, 2010). The ICTR branch and the ICTY branch have begun to work on July 1st, 2012 and July 1st, 2013, respectively. Both tribunals are obliged to contribute to this new mechanism. The cases remained from these two tribunals will be able to be completed by fewer staff and a smaller budget under a single roof. Furthermore, the missions of these tribunals will be completed and the cases may be transferred to national courts.” (Coban-Ozturk, Ebru, (2014(a)) Defensive Steps Taken by the United States to Protect against the ICC Congress also “approved legislation designed to insulate U.S. military personnel and others from ICC jurisdiction, the American Service-Members’ Protection Act of 2002 (ASPA). ASPA placed numerous restrictions on U.S. interaction with the ICC and its States Parties, including prohibiting military assistance to certain States co-operating with it. Consistent with ASPA, the United States began pursuing conclusion of the so-called ‘Article 98 agreements’ with the aim of insulating all U.S. nationals from ICC proceedings.” (Taft, et al, 2009) Although the United States failed to get permanent exemption for all of its peacekeepers, it was able to obtain such an exemption in various country-specific U.N. resolutions. Additional legislative action in 2004 further stimulated the U.S. Government’s pursuit of ‘Article 98 agreements.’ For fiscal year 2005, Congress approved the ‘Nethercutt Amendment,’ prohibiting assistance funds, with limited exceptions, to any State party to the Rome Statute. Similar to the waiver provisions included in ASPA, the Nethercutt Amendment permitted the President to waive this prohibition for those States that concluded ‘Article 98 agreements’ with the United States. By May 23, 2005, the U.S. State Department reported that one hundred States had signed ‘Article 98 agreements’ with the United States.” (Taft, et al, 2009) Thus, it is clear that the United States is serious about its concern for those individuals that represent the United States in various parts of the world, who could potentially be pulled into an action commenced by the ICC, as accessories to purported crimes, if nothing else. The United States has gone to considerable lengths to be sure that their representatives that have to function in different locations are protected from the abuse of the ICC prosecutor, as possible. This has not been without considerable objection from various sources. There is a fundamental inability to see the potential for abuse that exists with many states, in that they are already dealing with such abuses from different sources, that they are unconcerned about the potential for abused from the very party that is supposed to be in existence for the sole purpose of prosecuting those that have already or in the process of abusing their power in other forms. In part due to the continued misunderstanding and continued challenge to the position that the United States was taking, more particularly from within the State Department, In 2006, the conclusion of additional ‘Article 98 agreements’ slowed. In that same year as well as in 2008, Congress amended sections of ASPA; eliminating prohibitions on providing military assistance to ICC States Parties that had not signed an ‘Article 98 agreement.’ The Nethercutt Amendment was modified for fiscal year 2006, extending the available waiver beyond the few listed countries to other countries as determined by the President. President Bush made numerous waivers under ASPA and the Nethercutt Amendment to permit funding to ICC States Parties that had not signed an ‘Article 98 agreement.’ Today, the United States no longer actively pursues ‘Article 98 agreements.’ In addition to changes in domestic legislation, the U.S. approach of resisting references to the Court in U.N. resolutions altered. On March 31, 2005, the United States decided not to block a crucial Security Council resolution referring the situation in the Darfur region of Sudan to the ICC prosecutor. Instead, the United States abstained on the resolution. It was a significant landmark in the evolution of U.S. attitudes toward the ICC. Further, on July 31, 2008, the United States opposed the efforts of various countries to invoke Article 16 of the Rome Statute to defer the investigation and prosecution of Sudanese President Al Bashir. Then State Department Spokesperson, Sean McCormick also publicly acknowledged U.S. receipt of a request of assistance from the ICC and indicated that the United States would review that request. The United States also supported the use by the Special Court of Sierra Leone of the ICC facilities in The Hague in the prosecution of Charles Taylor. (Taft, et al, 2009) There have been a number of meetings between the United States representatives and the ICC demonstrating a more liberal view of the ICC and the actions that it has taken, which can be seen as a good thing, in that it will eliminate some of the negative attitudes that have existed on the part of various states and entities concerning the apparent attitude opposed to protecting the world at large from heinous crimes. Customary Parole Practices of ICC There have been a number of individuals that have been paroled by the ICC after serving only two-thirds of the sentence that was originally imposed. Part of this is due to the inconsistencies that exist among the various domestic jurisdictions wherein these convicted criminals were being housed and pressure that they have brought to bear on the ICC. Rather than attempt to accommodate all of the various positions taken by the various jurisdictions, the ICC has opted to stick with what the average jurisdiction does as a matter of course. That is, release prisoners after they have served two-thirds of the sentence that was originally imposed. This practice has not set too well with some of the victims of the crimes that have been committed by these individual contemptible individuals. In fact some of the victims or their relatives have seen this practice as a slap in the face, showing a blatant disregard for the fact that these criminals are treated with such regard when some of the victims are still unearthing their victims who were dumped in mass graves, for example. The United States is not interested in associating itself with this level of arbitrary actions that result in damaging the very ones that the Court was established to protect. This is yet another reason that the United States would be and is hesitant to sign as a party signatory to this Treaty that gives that power to the ICC such as it is. Conclusion Thus, it has been demonstrated that there are in fact a number of reasons that the United States is opposed to the ICC. First, in an attempt to formulate or have influence on the formulation of the groundwork or infrastructure of the ICC the United States has received opposition from others who blindly in a hurry to establish an entity with their power, pushed for the creation of the ICC notwithstanding troubling attitudes of wanting power that no other entity on earth has, in the form of one individual. How many times must we repeat this foolish sort of actions in our respective histories, before we realize the danger that exists with putting full control or total power in the hands of one person? Have we so soon forgotten Hitler and his ilk? It is this gross imbalance of power and authority that the United States has fought long and hard against, since its inception. It was this that motivated the formulation of the greatest document that has ever been formed in the history of man, the United States Constitution. It is this that motivates to this day the citizens of the United States to at all costs keep itself free from such tyranny. After the creation of the ICC then there was the continuing concern on the part of the presidents of this country, to protect all of its citizens from being subject to the whims of this power structure known as the ICC. The position that the United States has taken, which was always that of cautious assistance to the ICC, has been criticized from many fronts, and the United States has been accused of not having the rights of all of the citizens of the world as their concern, when they have consistently refused to be a party signatory to the Treaty or Statute that grants the ICC its power. We have discussed the limitations that the ICC puts on individual states, when it has the power and in fact has used the power to override a decision issued by the courts of a given state. Further, it continues to have the potential power to initiate an action against an individual whether the state where the individual resides or the state where the individual supposedly committed the crime agrees to such prosecution or not. We have considered the power that the prosecutor for the ICC has and it is in essence this power to initiate an action against a person whether the state of that person’s residence or the state where the crime was committed is in agreement with this action or not. Directly connected with this power the ICC has, is the concomitant limitation of power that is imposed be definition on the power of the Executive of the United States, which is the only entity in the United States that is supposed to have this level of decision making power, which has been granted him under the Article II of the United States Constitution. The resulting limitation on the power of the President of the United States ought to be more than sufficient reason to reject being a member of the ICC signatories. As if this limitation was not enough, we looked at the excessive territorial jurisdiction that the ICC has and saw that the ICC has the power to bring an action against an individual, whether the individual is a resident of a particular jurisdiction or whether a crime was committed in a particular jurisdiction, as long as there is permission obtained from the powers that be in that particular location. So insidious is this power that the United States senate felt compelled to pass several acts of legislation that were calculated to protect its military peacekeeping individuals located in various places throughout the world, by granting them this freedom through legislation. The United States even felt compelled to pass legislation imposing economic sanctions on jurisdictions that did not sign onto such protection agreement for the United States military representatives existing for peace keeping purposes in their jurisdictions. Next we considered the purported benefits to be obtained from the ICC, and even though there have been some positive results from the various tribunals that were established through its power, there is still not sufficient basis to just give up the internal integrity that exists within the infrastructure of the United States. Finally we consider the residual powers that the ICC has to continue and follow through on prosecuting those individuals that have escaped justice to date as well as the practices that the ICC engages in concerning the paroling or freeing of defendants that have taken place in the recent years, which is inconsistently liberal when considering the purpose for the ICC to begin with. Notwithstanding all of these factors, the United States especially in more recent years has put forth an effort to communicate with the ICC and assist them in ways that they are able without compromising the rights that the citizens of the United States have. There is no reason to think that this position will be changing any time soon. References Anonymous, (ND), “U.S. Policy on the ICC”, retrieved from http://www.globalsolutions.org/programs/law_justice/icc/resources/uspolicy.html, May 10, 2014. 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