Clea Kaske 06/05/03
Graduating Senior
Final EDGE Paper
The US, the ICC
and the future: A suggestion on how to convince the US that signing and
ratifying the ICC would be to its benefit
Introduction
Throughout the 20th century, the world has experienced some of the greatest wars and catastrophes for human life. Simultaneously the world has achieved some of the greatest advances in codifying human rights and enhancing the understanding that we are all citizens of this world and invariably connected. Whatever human crisis occurs in one part of the world will in the short or long term influence the other parts of the world and nobody is immune to this fact. Especially the United States seems to have understood in the 20th century that interaction between states and individuals is vital, and that the rule of law has to be established on a national and international level. Arguable after the civil rights struggle and eventually the end of the Cold War the US was able to take action in order to criticize human rights violations across the globe. The civil rights movement indicated the US slowly growing willingness to accept the equality of all its citizens, while the fall of the Berlin Wall gave the US (and arguably other countries too), the freedom to care and openly criticize human rights violations wherever they happened to occur.
However, despite the US strong involvement in codifying human rights and international criminal law through treaties, conventions and institutions, the US has already recently been accused of maintain an isolationist and even hegemonic stance across the globe. The US, through its omnipresent stance in the international media, international political arena, military capacity etc. is able to be unilateralist and not care about human rights violations while at the same time impact everybody's life across the globe if America wishes to. As Thomas Friedman says, the US has gained so much influence in people's lives across the globe that people across the world wish they could influence US behavior more than they are allowed to now[1]. It is not possible for the US to have a say in how people lead their lives across the globe while not having to listen to international concerns and wishes.
The US tendency towards "profitable unilateralism/isolationism" or "selective multilateralism" does not correlate well with the enforcement of international human rights, which has to occur everywhere, regardless of politics and national interests. Clearly, one cannot argue that the US is "evil" for its lack of involvement, however, a certain system of checks and balances would enable better control of the world's sole superpower. Various countries might wish to control and have a say in the way world politics and human rights are enacted. While the use of force is definitely not a good solution, international institutions, organizations and conventions can be the means to solve problems on an international scene.
Thesis statement
There exist non-peaceful and peaceful venues in which countries can attempt to influence the behavior of a superpower, or in this case, the US. War has been used in the past quite often in order to restore power imbalances between states, and terrorism seems to be a new version of violent uprising and protest against a superpower. Needless to say, war, terrorism and other violent ways in which states try to enforce their wishes have horrible results for everybody involved. In order for countries to proactively and positively influence US behavior, they try to use the help of international organizations, institutions and agreement for example. Using such non-violent means of communication in an interconnected world can create a checks and balance system that might actively enhance communication between the superpower/s and the rest of the world. This paper will analyze how the International Criminal Court (ICC) could influence US behavior towards international institutions and the human rights movement specifically, and what the most likely future relationship between the US and the ICC will be. Furthermore, I argue that not only will the interaction and law between international organizations/institutions and states define the future of international relations, but also the interaction of individuals that represent these organizations or governments will be vital.
Three
ways in which global diplomacy/communication can occur
One needs to outline three main,
non-violent, venues through which countries try to influence each other's
decisions and shape world politics in general. International economic measures
trade agreements, international health policy institutions seem to promote
global well being and aim at ensuring fiscal stability. Organizations and trade
agreements such as the WorldBank, IMF, NAFTA, WHO are just but a few of the
famous international organizations and agreements that qualify for this group.
For example, one of the stated goals of the WTO clearly indicates the
institutions wish to further international diplomacy and communication, as a
representative says that "One of the aims of the
agreements was to create a stable and predictable environment for global market
participants, in addition to securing a level playing field for all parties.[2]"While
this description analyzes the goals of the WTO, other scholars have noted this
movement as part of an unstoppable part of globalization, and allude to its
benefits and also dangers. Thus it is noted that "but cross-national
convergence of laws and regulations, and the globalization of various sectors,
is not proceeding evenly across the globe.[3]"
These quotes and examples of various organizations and institutions briefly
pinpoint the importance, and difficulties, that they face in determining world
politics.
The second venue that has enabled cross-cultural communication and, to a certain extend, international diplomacy are the media. Specifically TV, radio and recently the Internet have enabled millions of people to communicate with each other, to receive news updates and most of all to realize that they live in an interconnected world. The fact that many of the recent civil wars, for example, were broadcasted on TV created public outrage and prompted governments to take action. While the monopolization of the media, and especially a perceived US control of information and the media, could be a threat to international peace one has to admit that open and fair media have been one of the greatest advances in the 20th century and have changed policy making. Just as an example one can pin point to the events in Peru where Fujimori’s corrupt practices created outrage not only amongst Peruvians, but through the internet were also shown to people across the globe. As a Transparency International report on the internet says, “Public outrage is calling governments to account and forcing corrupt leaders out of office[4]”. Truly, one cannot neglect to note the importance of the global media as a non-violent means of influencing policy making and giving smaller states and independent actors a way to influence superpowers, such as the US. As is noted, public opinion pressures on governments, whether or not these governments are democratic, have greatly increased due to the increasing “media exposition” of mass atrocities, killings etc. across the globe which have galvanized public opinion[5].
The enforcement and maintenance of the rule of law on an international level constitutes the third way in which countries can try to ensure a fair playing field between less and more powerful countries. Furthermore, it is very important to note that international law is divided into different sub-sections, some of which specifically regard relations between states while others regard relations between individuals on an international level.
Three Courts: Jurisdiction and Goals
The International
Court of Justice (ICJ) is located in The Hague, the Netherlands and was set up
in 1945 by the main Charter of the United Nations. As the main site of the ICJ
states: “The International Court of Justice (ICJ), which has its seat in The
Hague, is the principal judicial organ of the United Nations[6]”.
Thus the ICJ deals with cases that involve states and not individuals and uses
international law in order to reach decisions. The international law is not
international criminal law, but rather law based on international treaties,
customary law, advisory opinions etc. One should not be surprised to see cases
regarding maritime law, territorial disputes and such issues appearing in front
of the ICJ. Nevertheless, on an occasional basis the ICJ does deal with cases
of genocide, human rights and criminal responsibility, however, always dealing
with a state and not with an individual. The role of the ICJ is thus dual; “to
settle in accordance with international law the legal disputes submitted to it
by States, and to give advisory opinions on legal questions referred to it
by duly authorized international organs and agencies[7]”.
Furthermore, as the ICJ web site specifically explains, the Court consists of
15 judges, who each are 9 years in office and have to come always from 15
different nations.
Some of the most important cases of the
ICJ constitute times when countries such as the US where accused of illegally
intervening and “meddling” in other countries, such as Nicaragua and the
Islamic Republic of Iran. States that are traditionally less powerful that have
an open and legal forum to express their complaints and bring actions against
other states, even if those countries are powerful such as the US and/or
western European nations. Thus states have a venue to solve their differences
and receive opinions from respected legal experts.
Ad-hoc criminal tribunals are another way
in which states have been dealing with prosecuting individuals for human rights
violations. The first such court was
the Nuremberg tribunal, which prosecuted individuals from Nazi Germany for
crimes against peace, war crimes and genocide. The Tokyo tribunal, although
more criticized for its biased decisions and alleged ‘victors’ justice’ was
responsible for prosecuting individuals who had committed human rights violations
in the far east. Then, during the long years of the Cold War and the opposition
of the two nuclear superpowers, nothing happened in the creation of the ad-hoc
tribunals. After the fall of the Berlin Wall, however, and due to the horrible
atrocities committed in the territories of the former Yugoslavia it was decided
to create an ad-hoc tribunal for the former Yugoslavia (ICTY). A tribunal that
was established for Rwanda soon followed (ICTR). Basically these courts stand for the idea that the enforcement of
the rule of law on an international level constitute great ways in order to
regulate conduct between individuals and also states, and to protect people’s
dignity and basic human rights. Violations of human rights, as established by
the Universal Declaration of Human Rights and by various other conventions can
thus lead to punishment and indictment. As is noted in the foreword to
Beigbeder’s book, the author believes that court signal “international
co-operation” which are “a means of creating conditions that foster the
progressive development, the acceptance and the enforcement of elementary
justice[8]”.
The ICTY has been in recent spotlight for indicting the former president of
Yugoslavia, Slobodan Milosevic. While observing some of his trials in The Hague
I was able to see the international attention surrounding this trial but also
hear critiques of the trials. The fact that leaders of states and high ranking
officials can now be prosecuted for actions that they took while in duty has
sparked many legal debates and created concerns for some people.
Finally, the movement towards global
human rights has culminated in the creation of the International Criminal Court
(ICC) in The Hague.
The
ICC
As Kofi Annan has remarked, the Rome
Statute that created the International Criminal Court and was adopted on 17
July 1998 in Rome, Italy constitutes "a gift for future generations."
He said, "its creation represents a giant step forward in the march
towards universal human rights and the rule of law[9]".
Many have seen the creation of the ICC as the culmination of a human rights
effort during the 20th century, that aimed at holding those
individuals responsible who had committed the worst atrocities. Articles 5 to
10 of the Rome Statute set out the crimes that are under the jurisdiction of
the Court. These crimes are crimes against humanity, genocide and war crimes.
Furthermore, once a definition of the crime against aggression will be agreed
upon, it is also going to be included as a crime under the jurisdiction of the
ICC. Specifically it is noted that the question about the role of the Security
Council with regards to the crime of aggression as well as certain other
problems with the definition of the crime did not enable it to be included
immediately in the Rome Statute[10].
The important factor to note about the
ICC is that it will prosecute individuals and not states. Currently 90
countries have signed and ratified the Rome Statute, and some countries even
have adapted their national law in order to go along with the ICC law.
Furthermore, it is quite noteworthy that subject to the ICC will be individuals
who come from countries who have signed and ratified the Rome Statute, but also
individuals who have allegedly committed crimes in a country that signed and
ratified the Rome Statute (even if those individuals are citizens of a country
that has not signed and/or ratified the Rome Statute). The ICC will not be
dealing with small-scale crimes, but rather only with the largest and most
horrible ones. These crimes will be such horrible in their scale that
theoretically it is the moral duty of humans to prosecute and bring to justice
individuals who committed those crimes.
The
US and the ICC: a long and turbulent relationship
The US has had a strong involvement in
human rights issues throughout the 20th century, often apparently
guided by the belief that the rule of law, not only on a national but also
international level, could strongly contribute to world peace and global
development. The US sent a strong delegation to the Rome Negotiations of 1998
and participated in the development of the Rome Statute. While the US currently
views the Rome Statute as "flawed" it never seems to have totally
supported its nullification and abandonment. A common claim also is that with
the exception of the non-existence of the jury and the fact that there exist
multiple judges at the ICC, ICC law is very similar to American law.
Former President Clinton signed the Rome
Statute the day before he left office. He said: "We
do so to reaffirm our strong support for international accountability and for
bringing to justice perpetrators of genocide, war crimes, and
crimes against humanity. We do so as well because we wish to remain engaged in
making the ICC an instrument of impartial and effective justice in the years to
come[11]".
An interesting factor in President Clinton's speech is that he talks about the
future and the many years to come; indicating a US interest to maintain a
positive and productive relationship with the ICC. Nevertheless, the Bush
administration viewed the ICC as not representing American policy and thus
President Bush decided to "unsign" the Rome Statute. Thus, the
Secretary-General of the United Nations received a letter outlining the US
decision to not become a member of the Rome Statute, and also that it had no
legal obligations from the previous signature. Specifically, it said
that:"This is to inform you, in connection with the Rome Statute of the
International Criminal Court adopted on July 17, 1998, that the United States does
not intend to become a party to the treaty. Accordingly, the United States has
no legal obligations arising from its signature on December 31, 2000[12]".
The decision to 'unsign' the Rome Statute prompted widespread international
criticism and even American political analysts pointed out that this did not
constitute a strategically smart move of the US. Together with the unsigning of
the Kyoto Protocol, the US exiting the non-proliferation treaty and finally the
unsigning of the Rome Statute, the US seemed to be taking a clearly
unilateralist and even isolationist stance.
US reasons for opposing the ICC
It is important
to note the US reasons for opposing the ICC. First of all, the US claims that
the ICC could infringe US sovereignty and furthermore go against the US
constitution. The US as a sovereign nation does not want other countries and/or
people to tell it what to do. Furthermore, as John Bolton claims, the ICC fails
due to "the power purportedly vested in the ICC to create authority
outside of (and superior to) the U.S. Constitution and thereby to inhibit the
full constitutional autonomy of all three branches of the U.S. government[13]".
For an American, the common view is that there should be nothing above American
law and the threat exists that the ICC considers itself to have a higher law
than America.
Another big
problem for America was the supposed vagueness of the definition of the crimes.
Due to the nature of war crimes, crimes against humanity, genocide and
especially the crime of aggression it is extremely hard to create a definition
for these crimes. After all, how many dead people does one need to have
genocide, under what circumstances, 1000, 10000 or more? John Bolton
specifically criticizes that "vagueness" in the definition of crimes
under the jurisdiction of the ICC.
This fear of the
vagueness of the crimes of the ICC also correlates with the idea that no
America citizen should ever be prosecuted by an international court, and
especially not by a court that according to Bolton could weaken American civil
liberties. He says "it is my clear duty not to allow that shield to be
weakened by the encroachment of international agreements that abridge our
constitutional safeguards[14]".
Furthermore, the question of interpretation of certain crimes and actions of
the US will lead to more problems for the US.
Specifically, due
to the strong US presence around the globe, economically, militarily and
through the media creates the perfect grounds for people to harbor resentment,
jealousy and ultimately anger towards the US. The ICC could provide a venue for
these people to express their anger towards the US and potentially harm
American citizens quite strongly.
Furthermore, the
ICC prosecutor has far too power according to American critics of the ICC. Bolton
says that he fears that the ICC prosecutor will target high-ranking American
civilian and military leaders, and that they are "the real potential
targets of the ICC's politically unaccountable prosecutor[15]".
The Prosecutor has too much independence and owes to little accountability to
anybody to be able to do a good job, according to American critics. Especially
since international pressure is going to be quite strong to indict people from
Western countries too, Americans are afraid of the prosecutor.
Recommendations and Conclusion
However, other
countries and individuals should point out to the US that by joining
multilateral institutions and treaties the US could profit quite a lot. Often
by giving in a little, or making concessions on certain things, one can make
far bigger gains on other more important issues. Thus one could point out to
the US that by signing and ratifying the ICC the US would make a strong
symbolic stance. It would indicate to the rest of the world that America cares
about the rule of law everywhere and will not allow horrible crimes wherever
they may happen. America, having special powers and abilities, would therefore
seem to take charge of its special responsibilities too. The ICC, also, has
numerous safeguards in-build, which would most likely prevent Americans from
being prosecuted at all. The principle of complementarity and "ne bis in
idem" could help ensure the protection of Americans. The ICC will most
likely prosecute individuals from so-called failed and rogue states and not
citizens of countries where the rule of law already exists. Joining the ICC in
general could enhance US policy and set a significant step forward in creating
a world with less world criminals and less terrorists.
Other countries
can try to take different stances in order to persuade the US to join the ICC.
Thus countries could aim at using various forms of pressure (economic
sanctions, trade boycotts etc.) to indicate their unhappiness with the US
decision not to join the ICC. Often economic pressure can impact a country such
as the US to a very high degree. Also other countries should prevent believable
reasons to American critics about why the ICC is not a court designed to
prosecute Americans but rather complement national law and sometimes ameliorate
international law. Countries need to engage in "productive"
diplomacy, which also entails understanding America' s unique position in the
world due to is unprecedented power and working on making the Rome Statute
adapt to some of the US concerns.
The ICC in its first years of function should work as productively and with as little biases as possible to show how great it can work and what its progress in international criminal law already has been. Furthermore, the countries that already represent the ICC could indicate to the US that by joining it the US would be able to gain partners in its global war against terrorism. In general, the US ought to understand how it could have more wins than losses by joining the ICC. World relations seem to work through maintenance of power theory, where strong countries to keep power while smaller countries aim at gaining in power, often through multilateral organizations and institutions. The ICC constitutes a great way for countries to achieve power balance and to represent a medium for the global enforcement of human rights law.
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2. (Apr., 1997)
Remark: Since I, Clea Kaske, wrote
a final honors thesis on the ICTY and the ICC it might be that some word
choices and knowledge in this paper overlap with some of the information
provided in my honors thesis. However, there has been no willful correlation
between the works.
[2] ASSESSMENT OF INTERNATIONAL TRADE
AGREEMENTS
Presentation by Counselor Tore Halvorsen, Statistics Norway, www.wto.org/english/tratop_e/serv_e/ symp_mar02_norway_e.doc
[3] Richard Steinberg: Trade Environment Negotiations in the EU, NAFTA and WTO: Regional Trajectories of Rule Development. The American Journal of International Law, Vol. 91, No. 2. (Apr., 1997)
[4] http://www.transparency.org/pressreleases_archive/2001/2001.10.15.gcr.html
[5] xiii. Yves Beigbeder. Judging War Criminals
[6] http://www.icj-cij.org/icjwww/icj002.htm
[7] ibid.
[8] ix. Yves Beigbeder. Judging War Criminals
[9] ix. Kofi Annan. Secretary General of the United Nations. The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results
[10] 81. Herman von Hebel and Darryl Robinson. The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results
[11] Statement by US President Bill Clinton,
authorizing the US signing of the Rome Statute of
the International Criminal Court, 31 December 2000, Camp David, Maryland, United States
[12] UNDER SECRETARY OF STATE FOR
ARMS CONTROL AND INTERNATIONAL SECURITY
WASHINGTON, John R. Bolton. http://www.newsmax.com/archives/articles/2002/5/6/114156.shtml
[13] P. 38. John Bolton. Toward an International Criminal Court? A Council Policy Initiative.
[14] 39. John R. Bolton. Toward an International Criminal court? A Council Policy Initiative
[15] 43. Ibid.