Universal jurisdiction of the International Criminal Court and the US national interest: An issue of incompatibility

Ifediora, John (2002): Universal jurisdiction of the International Criminal Court and the US national interest: An issue of incompatibility. Published in: Journal of Policy Perspective , Vol. Vol. 1, No. Issue 1 (5 November 2002): pp. 1-11.

Abstract

On July 17, 1998, one hundred and twenty countries adopted a treaty in Rome to establish a permanent International Criminal Court in The Hague, Netherlands.1 This treaty is the culmination of decades of advocacy by leading human rights advocates around the world to establish an international forum or mechanism by which nations can finally bring to justice individuals that engage in atrocities against humanity.2 Inspired, inter alia, by the Nuremberg trials, and the tribunals on war crimes for the former Yugoslavia, and Rwanda, the treaty to create this court is the product of the proceedings at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, or simply known as the “Rome Conference.”3 The beneficial attributes of such permanent legal institution are undeniable, but to date, several countries, including the United States, although signatories to the treaty, are reluctant to ratify on the grounds of constitutional incompatibility, or, in the case of the United States, adverse to national interest.

• Item Type: MPRA Paper
• Language: English
• Keywords: International Law, Human Rights Law, Economics
• Subjects: F - International Economics > F5 - International Relations, National Security, and International Political Economy

References

10 See U.N. Doc. A/CONF.183/10 (1998). 11 See letter from the Permanent Representative of Trinidad and Tobago to the Secretary General of the United Nations dated August 21, 1989; UN GAOR, 44th Session, Annex 44, Agenda Item 152, UN Doc. 12 See UN Press Release, L/ROM/22, 17 July, 1998 13 Ibid. 14 See U.N. Doc. A/CONF.183/10 (1998). 15 See Proposed Corrections to the Rome Statute of the International Criminal Court, UN Doc. C.N.502, 1998. Treaties-3(Annex.) 16 See M. Cherif Bassiouni, Negotiating the treaty on the Establishment of an International Criminal Court, 32 Cornell International Law Journal 443, 449-59 (1999). 17 See Zwanenburg, “The Statute for an International Criminal Court and the United States: Peace without Justice?”, 12 Leiden Journal of International Law (1999) 1-7.

18 Ibid. 19 See David J. Scheffer, “The United States and the International Criminal Court”, American Journal of International Law, Vol. 93, Issue 1(Jan., 1999), 12-22.

20 See Madeline Morris, “High Crimes and Misconceptions: The ICC and Non-Party States”, Law and Contemporary Problems, Wntr 2001 v64 il p 13, 17. 21 See U.N. Doc. A/CONF.183/10 (1998) 22 Ibid. 23 See U.N. Doc. A/CONF.183/10 (1998). 24 Ibid. 25 Ibid. 26 Ibid. 27 See U.N. Doc. A/CONF. 183/9 (1998).

28 See William K. Lietzau, “International Criminal Law After Rome: Concerns from A US Military Perspective”, Law and Contemporary Problems, Wntr 2001 v64 il p 119 29 See The Case for Universal Jurisdiction, Kenneth Roth; Foreign Affairs, Sep/Oct. 2001, Vol. 80 issue5, p150.

30 On the need for complementarity, David Scheffer, the leading US delegate to the Rome Conference remarked: “One of our major objectives was a strong complementarity regime. Article 18 is drawn from an American proposal submitted during the final session of the preparatory Committee. We considered it only logical that, when an investigation of an overall situation is initiated, relevant and capable national government be given the opportunity under the principle of complementarity to take the lead in investigating their own nationals or others within their jurisdiction. Otherwise, under the original provisions on complementarity (Articles 17 and 19), the need to wait until an individual case has been investigated would have meant that national efforts would always have to defer first to ICC – a delayed procedure that would undermine the willingness and ability of national judicial systems to enforce international humanitarian law.” See David J. Scheffer, “The United States and the International Criminal Court”, American Journal of International Law, Vol. 93, Issue 1(Jan., 1999), 12-22.

31 See Jonathan I. Charney, Progress in International Criminal Law?, 93 Am.J. INT’L. 452, 456 (1999).

32 See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 31(1), 1155 U.N.T.S. 331,340.

33 The US, understandably, sees this as a major constraint on her abilities to militarily effectuate her foreign policies, and worries that her personnel may be subject to the Court’s jurisdiction in any number of instances when she deploys the military arm of her foreign policy. The fact that the Court would only bring non-party State nationals to justice when the national of the non-party state is reasonably accused of committing war crimes, crimes against humanity or genocide in the territory of a party state, or if the state of the national so accused is either unable or unwilling to prosecute the case, has not provided the US enough reason to be comfortable with this possibility. States that have ratified the treaty view this provision as an extension of what every nation has the obligation to do under customary international law, for, the International Criminal Court cannot legally do more than what each of the states has the right to do.

34 See King and Theofrastous, “From Nuremberg to Rome: A Step backward for US Foreign Policy”, 31 Case Western Reserve Journal of International Law (1999) 47-106.

35 See Opinion and Judgment, International Military Tribunal at Nuremberg, reprinted in Jordan Paust et al, International Criminal Law: Cases and Materials, 744-761 (1996).

36 Ibid. 37 See G.A. Res. 3074, U.N. GAOR, 28th Sess. Supp. No.30, at 79, U.N. Doc. A/9326 (1973).

38 See U.N. Doc. A/CONF. 183/9 (1998). 39 See Jordan Paust, supra note 35, at 746. 40 See U.N. Doc. A/CONF.183/10 (1998). 41 Ibid. 42 Ibid. 43 See generally Chris Cillizza, “Passing The Treaty Ball”, National Journal, Jan. 27, 2001, v33 i4 p27. 44 See Peirce, Rachel, “Which of the Preparatory Commission’s Latest Proposals for the Definition of the Crime of Aggression and the Exercise of Jurisdiction should be Adopted into the Rome Statute?” , BYU Journal of Public Law, 2001, Vol. 15 Issue 2 p281. 45 See U.N. Doc. A/CONF. 183/9 (1998). 46 See David J. Scheffer, “Statement on the International Criminal Court Remarks before the 53rd Session of the UN General Assembly”, USUN Press Release No. 179 (Oct. 21, 1998) 47 Ibid. 48 See Peirce, Rachel, Supra at note 44, p284. 49 See David J. Scheffer, Supra at note 46. 50 See U.N. Doc. A/CONF.183/10 (1998).