Issue Report: International Criminal Court

What are the pros and cons of the ICC? Should the US and other countries join?

The International Criminal Court (ICC or ICCt) was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression, although it cannot currently exercise jurisdiction over the crime of aggression.
The Court came into being on 1 July 2002 — the date that its founding treaty, the Rome Statute of the International Criminal Court, entered into force — and it can only prosecute crimes committed on or after that date. As of November 2008, 108 states are members of the Court; A further 40 countries have signed but not ratified the Rome Statute. However, a number of states, including China, Russia, India and the United States, are critical of the Court and have not joined. The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council. The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states. This debate asks whether the International Criminal Court is a good idea. The debate received renewed attention in the United States, during the 2008 elections, as president Barack Obama has indicated that he may engage the United States in the ICC.

Stability: Is the ICC a valuable tool in ensuring stability?

Cooperation in ICC and rule of law is best overall for stability

Dennis Kucinich. "The US Administration and the ICC". Common Dreams. 9 Dec. 2004

“There are many in our United States government who do understand that Peace can only be obtained through international cooperation and adherence by all nations to high principles. We know that, as a matter of the survival of the human race, unilateralism must yield to multilateralism. […] Each of us has the responsibility and the gift to work within our sphere to construct a world where all may survive and thrive in peace and justice. […] We must work tirelessly for ratification or accession to the Rome Statute.”

ICC can balance need for justice and practical peace

"Justice or expediency in Sudan?; The International Criminal Court". The Economist. 19 July 2008

“Only this week Indonesia and Timor-Leste published a report blaming the Indonesian army for the atrocities committed in the former East Timor. But, to keep the peace, there is no hint of bringing anyone to trial. None of the big shots who oversaw apartheid ever faced serious punishment. Till recently, dictators who ordered thousands of “disappearances” in Latin America’s dirty wars were allowed to slip into easeful retirement. Terrorists in Northern Ireland and Palestine have been forgiven their crimes in return for desisting. Such decisions are never easy: just ask the victims. But the hunger for peace will occasionally trump the appetite for justice if forgiveness and amnesty are the only way to end wars or move societies from dictatorship to democracy […] Where does that leave the high hopes that accompanied the creation of the ICC ten years ago? Still strong, we believe. Examples of justice denied do not mean that this noble enterprise is doomed to fail […] A court on its own cannot bring either peace or justice.”

UN SC can block ICC prosecutions for security reasons

Benjamin B. Ferencz, J.D. Harvard 1943 and a Former Nuremberg War Crimes Prosecutor. "Response to Henry Kissinger's essay 'The Pitfalls of Universal Jurisdiction'." 2 July 2001

“The Security Council can block prosecutions indefinitely if needed for reconciliation or peace.”

ICC justice offers more lasting peace than ad hoc courts

Amnesty International. The International Criminal Court, Fact Sheet

“The ICC ensures that those who commit serious human rights violations are held accountable. Justice helps promote lasting peace, enables victims to rebuild their lives and sends a strong message that perpetrators of serious international crimes will not go unpunished.”

ICC needed for new global problems

Benjamin B. Ferencz, J.D. Harvard 1943 and a Former Nuremberg War Crimes Prosecutor. "Response to Henry Kissinger's essay 'The Pitfalls of Universal Jurisdiction'." 2 July 2001

“Opponents of the ICC refuse to recognize that in today’s interdependent world all major problems are global and require global solutions. Binding international rules have become necessary and are accepted universally to protect the common interest. The prevention of massive crimes against humanity deserves equal protection of universal law.”

Case-by-case approach is superior to ICC in crises

John R. Bolton. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002

“it is by no means clear that “justice” as defined by the Court and Prosecutor is always consistent with the attainable political resolution of serious political and military disputes. It may be, or it may not be. Human conflict teaches that, much to the dismay of moralists and legal theoreticians, mortal policy makers often must make tradeoffs among inconsistent objectives. This can be a painful and unpleasant realization, confronting us as it does with the irritating facts of human complexity, contradiction, and imperfection […] Accumulated experience strongly favors a case-by-case approach, politically and legally, rather than the inevitable resort to adjudication. Circumstances differ, and circumstances matter. Atrocities, whether in international wars or in domestic contexts, are by definition uniquely horrible in their own times and places.”

ICC may interfere with the work of the UN Security Council

John R. Bolton. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002

“Under the UN Charter, the Security Council has primary responsibility for the maintenance of international peace and security. The ICC’s efforts could easily conflict with the Council’s work. Indeed, the Statute of Rome substantially minimized the Security Council’s role in ICC affairs. While the Security Council may refer matters to the ICC, or order it to refrain from commencing or proceeding with an investigation or prosecution , the Council is precluded from a meaningful role in the ICC’s work. In requiring an affirmative Council vote to stop a case, the Statute shifts the balance of authority from the Council to the ICC.”

ICC causes tyrants to cling to power to avoid prosecution

"U.S. Policy Regarding the International Criminal Court". Congressional Research Service. 29 Aug. 2006

“[Some] argue that the perception of U.S. commitment to the rule of law has little effect on countries where human rights abuses are most rampant. Despots like Cambodia’s Pol Pot or Iraq’s Saddam Hussein have not weighed possible future legal ramifications before committing massive crimes.98 Under this view, the establishment of the ICC might have the unintended effect of hardening the resolve of ruthless tyrants who may feel they have nothing to gain by giving up their power.”

ICC rules of war make war more tolerable and likely

Gary T. Dempsey. "Reasonable Doubt: The Case Against the Proposed International Criminal Court". CATO Institute. 16 July 1998

“there is no evidence that holding war crimes trials reduces the number of threats to international peace and security. If anything, the opposite is true: making war less atrocious makes it more likely. The creation of war crimes courts, he concludes, seems really ‘to have been aimed at making lawyers the ‘guardians’ of a violent society, in which war is all right as long as it is played by rules to which the concerned lawyers can agree.”

War crimes: Does the ICC help fight genocide and war crimes?

ICC is the best tool for fighting genocide and war crimes

Roger Cohen. "A Court for a New America". New York Times. 3 Dec. 2008

“After the terrible decade of the 1990s, with its genocides in Bosnia and Rwanda and the loss there of a million lives while the United States and its allies dithered, it is unconscionable that America not stand with the institution that constitutes the most effective legal deterrent to such crimes […] The International Criminal Court has filed charges against alleged war criminals in Congo, Central African Republic, Uganda and Sudan since it started work in 2002. The first trial, involving a Congolese warlord, Thomas Lubanga, is set to begin in January.”

ICC and rule of law help deter war crimes and genocide

Amnesty International. The International Criminal Court, Fact Sheet

“[The ICC] will serve as a permanent deterrent to people considering these crimes. In most cases in the last 50 years, international mechanisms to prosecute people accused of these crimes have been set up only after the crimes were committed”

The ICC has proven very effective

"Let the child live; International Criminal Court". The Economist. 27 Jan. 2007

“Aged four-and-a-half, the tribunal is proving a lustier infant than many predicted. Its prosecutors have delved deeply into horrible wars in Congo, Sudan and Uganda. The court’s first trial—of Thomas Lubanga, a Congolese warlord, accused of using children as soldiers—is due to start later this year. The first indictments for the mass killings in Sudan’s Darfur region are expected next month. Five leaders of Uganda’s rebel Lord’s Resistance Army have already been indicted. One has since been killed, but the other four face trial when caught. An investigation into atrocities in a fourth, as yet unnamed, country is due to be announced soon.”

The ICC is less effective due to US opposition

"U.S. Policy Regarding the International Criminal Court". Congressional Research Service. 29 Aug. 2006

“The perceived U.S. willingness to hold U.N. peacekeeping missions hostage to U.S. demands for immunity from the ICC may deepen the rift between the United States and allies that support the ICC. The withholding of military assistance and other economic aid to members of the ICC may also be seen as an effort to coerce countries to refuse to ratify the Rome Statute or to sign an Article 98 agreement, which could appear to some as undermining the ICC and negating the Administration’s stated intent to respect the decisions of other countries to join the ICC.”

Deterrence theory untenable; ICC will not deter

John R. Bolton, Under Secretary for Arms Control and International Security. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002

“ICC will not help deter the danger of the ICC may lie in its potential weakness rather than its potential strength. The most basic error is the belief that the ICC will have a substantial deterrent effect against the perpetration of crimes against humanity. Behind their optimistic rhetoric, ICC proponents have not a shred of evidence supporting their deterrence theories. In fact, they fundamentally confuse the appropriate roles of political and economic power, diplomatic efforts, military force, and legal procedures. Recent history is filled with cases where even strong military force or the threat of force failed to deter aggression or gross abuses of human rights. ICC proponents concede as much when they cite cases where the “world community” has failed to pay adequate attention, or failed to intervene in time to prevent genocide or other crimes against humanity. The new Court and Prosecutor, it is said, will now guarantee against similar failures.”

ICC is too ineffective to deter war crimes

John R. Bolton. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002

“deterrence ultimately depends on perceived effectiveness, and the ICC fails badly on that point. The ICC’s authority is far too attenuated to make the slightest bit of difference either to the war criminals or to the outside world. In cases where the West in particular has been unwilling to intervene militarily to prevent crimes against humanity as they were happening, why will a potential perpetrator feel deterred by the mere possibility of future legal action? A weak and distant Court will have no deterrent effect on the hard men like Pol Pot most likely to commit crimes against humanity. Why should anyone imagine that bewigged judges in The Hague will succeed where cold steel has failed? Holding out the prospect of ICC deterrence to the weak and vulnerable amounts to a cruel joke.”

ICC is only a tool for protecting interests of powerful states.

The ICC like the UN security council will become only a tool for protecting the rights and deeds of a few countries. Genocide in many regions is a problem indeed but the war crimes in Iraq and Afghanistan were never discussed in an international forum. Can this ICC actually check war crime in those countries? Obviously no! How can the US, for instance, join a court that will point out its own crimes? Even before attacking Iraq, the UN was made a tool to attack and not a place to have discussions and to avert war. Since its useless to create such a court in which propaganda, lobbying and influence of power will have the major role, the plan should be abandoned.

International law: Does the ICC advance international law? Is this good?

ICC advances universal rights and international law

Kofi Annan, Former U.N. Secretary-General at the signing of the Rome Statute of the International Criminal Court – “The establishment of the Court is still a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law.”[1]

Crimes under ICC are already prohibited by international law

"U.S. Policy Regarding the International Criminal Court". Congressional Research Service. 29 Aug. 2006

“Some ICC supporters have asserted that the crimes covered by the Rome Statute are already prohibited under international law either by treaty or under the concept of “universal jurisdiction” or both; therefore, all nations may assert jurisdiction to try persons for these crimes. The ICC, they argue, would merely be exercising the collective jurisdiction of its members, any of which could independently assert jurisdiction over the accused persons under a theory of ‘universal jurisdiction'”

ICC courts uphold individual rights and due process

Wes Rist. "The Conservative Case for the International Criminal Court Six Years In". Jurist. 10 Dec. 2008

“Finally, there are some valid due process concerns relating to the operation of the Rome Statute. While the process provisions of the Rome Statute (Article 67, among others) are not exact copies of US constitutional protections, they hardly create the possibility of an unfair or impartial trial. In fact, the rights spelled out for defendants throughout the entirety of the Rome Statute are some of the strongest criminal defendant protections put in place for any international tribunal and they certainly rise to the level of meeting the judicial guarantees provided for by the Geneva Conventions and international human rights laws such as the International Covenant on Civil and Political Rights.”

ICC acts only if nat. courts can't; preserves const. rights

Wes Rist. "The Conservative Case for the International Criminal Court Six Years In". Jurist. 10 Dec. 2008

“Ultimately, should the US government or conservatives in general have any specific concerns about the due process or Constitutional protections (or lack thereof) afforded by the Rome Statute, the solution is simple: conduct an investigation or trial domestically so that there is no reason for the ICC to become involved. In fact, as mentioned previously, a proactive investigation by the US creates a statutory bar to involvement by the ICC Office of the Prosecutor.”

ICC acts only if national courts cannot; preserves sovereignty

National courts have priority over ICC courts on all matters, including war crimes. Only if they fail can the ICC step in. This means that the ICC hardly impedes on national sovereignty at all, serving, rather, and role of “complementarity”.

Without a constitution, ICC cannot adequately protect rights

John R. Bolton. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002

“The ICC does not, and cannot, fit into a coherent, international structural “constitutional” design that delineates clearly how laws are made, adjudicated or enforced, subject to popular accountability and structured to protect liberty. There is no such design, nor should there be. Instead, the Court and the Prosecutor are simply “out there” in the international system. Requiring the United States to be bound by this treaty, with its unaccountable Prosecutor and its unchecked judicial power, is clearly inconsistent with American standards of constitutionalism. This is a macro-constitutional issue for us, not simply a narrow, technical point of law.”

ICC can second-guess national prosecution terminations/denials

"U.S. Policy Regarding the International Criminal Court". Congressional Research Service. 29 Aug. 2006

“Many U.S. opponents of the ICC express concern that the ICC will be able to second-guess a valid determination by U.S. prosecutors to terminate an investigation or decline to prosecute a person. It is not uncommon for unfriendly countries to characterize U.S. foreign policy decisions as ‘criminal.’ The ICC could provide a forum for such charges.”

The ICC lacks democratic accountability to voters

John R. Bolton. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002

“Never before has the United States been asked to place any of that power outside the complete control of our national government without our consent […] In the ICC’s central structures, the Court and Prosecutor, these sorts of political checks are either greatly attenuated or entirely absent. They are effectively accountable to no one. The Prosecutor will answer to no superior executive power, elected or unelected. Nor is there any legislature anywhere in sight, elected or unelected, in the Statute of Rome. The Prosecutor is answerable only to the Court, and then only partially, although the Prosecutor may be removed by the Assembly of States Parties.”

ICC authority impedes foreign policy flexibility

"U.S. Policy Regarding the International Criminal Court". Congressional Research Service. 29 Aug. 2006

“ICC opponents, however, may point out that if individuals are charged for conduct related to carrying out official policy, the difference between asserting jurisdiction over individuals and over the nation itself becomes less clear. After all, it is arguably the policy decision and not the individual conduct that is actually at issue. The threat of prosecution, however, could inhibit the conduct of U.S. officials in implementing U.S. foreign policy. In this way, it is argued, the ICC may be seen to infringe U.S. sovereignty.”

Historical roots: Does the ICC complete the process initiated at Nuremberg?

ICC completes historic process starting with Nuremberg Trials

Rebecca Roe. "The U.S. should embrace the international justice system". Seattle Times. 20 Sept 2007

“The ICC, established in 2002, has a distinguished history. The permanent court arose from several temporary or ad hoc courts including Nuremberg (1945-1949), International Criminal Tribunal Yugoslavia (ICTY, 1995 to present), ICT-Rwanda (ongoing in Arusha, Tanzania) and Special Court Sierra Leone (SCSL, 1994-ongoing). The international courts prosecute genocide, ethnic cleansing, crimes against humanity, systematic rape, child soldiering and similar atrocities.”

Judge Philippe Kirsch, President of the International Criminal Court. "Applying the Principles of Nuremberg in the ICC". Keynote Address at the Conference "Judgment at Nuremberg" held on the 60th Anniversary of the Nuremberg Judgment. 30 Sept. 2006

“I have emphasised how the International Criminal Court is the continuation of the Nuremberg trials. It took nearly fifty years for the Nuremberg participants’ vision of a permanent successor to their efforts to be established. Now, we have that permanent court. The establishment of the ICC is the natural continuation of the Nuremberg legacy.”

ICC is not historically comparable to the Nuremberg tribunal

Gary T. Dempsey. "Reasonable Doubt: The Case Against the Proposed International Criminal Court". CATO Institute. 16 July 1998

“It is common for proponents of the ICC to argue that it will function like a permanent Nuremberg tribunal.2 In fact, the city of Nuremberg, where 21 Nazis stood trial for their role in the deaths of more than 20 million people, is mounting a serious campaign to be the permanent home of the proposed court.3 Yet according to John R. Bolton, former assistant secretary of state for international organization affairs, the Nuremberg comparison does not withstand close inspection: “Whenever the idea of a war crimes tribunal is raised, Nuremberg is the model invariably cited. But an international criminal court [will be] nothing like Nuremberg.”4 Consider how the Nuremberg trials actually worked. They followed the unconditional military and political surrender of the Axis powers. Prospective defendants were already in custody, and extensive documentary and physical evidence was readily available. Moreover, the Allies shared a common vision of what the postoccupation government should look like, and the defeated peoples endorsed the legitimacy of the war crimes process. Simply reciting that history shows how different Germany and the Nuremberg tribunal were from contemporary cases, like Bosnia and the Yugoslavia tribunal.”

Checks and balances: Does the ICC have sufficient checks and balances?

UN Security Council can check/veto ICC prosecutions

Benjamin B. Ferencz, J.D. Harvard 1943 and a Former Nuremberg War Crimes Prosecutor. "Response to Henry Kissinger's essay 'The Pitfalls of Universal Jurisdiction'." 2 July 2001

“Administrative and budgetary controls are clearly defined. Without its own police force, the court must depend upon the Security Council to enforce its decisions. Enforcement can be vetoed by any of the five privileged Permanent Members, including the U.S. Kissinger’s reference to the ‘unlimited discretion’ of the prosecutor is unfounded. Many safeguards are written into the statute. A court that acts arbitrarily or seeks to abuse its limited powers will soon cease to exist.”

Potential judicial mistakes don't justify opposing ICC

Benjamin B. Ferencz, J.D. Harvard 1943 and a Former Nuremberg War Crimes Prosecutor. "Response to Henry Kissinger's essay 'The Pitfalls of Universal Jurisdiction'." 2 July 2001

“In every democratic society it is unavoidable that some unjustified complaints may be lodged for political or other nefarious purposes. It is also inevitable that some judgments may go awry and some judges may be incompetent or worse. That is no reason to abolish courts or to refuse to accept new courts where needed.”

ICC lacks separation of powers and checks and balances

John R. Bolton. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002

“The American concept of separation of powers, imperfect though it is, reflects our settled belief that liberty is best protected when the various authorities legitimately exercised by government are, to the maximum extent possible, placed in separate branches. So structuring the national government, the Framers believed, would prevent the excessive accumulation of power in a limited number of hands, thus providing the greatest protection for individual liberty. Continental European constitutional structures do not, by and large, reflect a similar set of beliefs. They do not so thoroughly separate judicial from executive powers, just as their parliamentary systems do not so thoroughly separate executive from legislative powers. That, of course, is entirely Europe’s prerogative, and may help to explain why Europeans appear to be more comfortable with the ICC’s structure, which closely melds prosecutorial and judicial functions in the European fashion.”

ICC prosecutors are given too much power in deciding cases

Henry Kissinger. "The Pitfalls of Universal Jurisdiction: Risking Judicial Tryanny". Foreign Affairs. Aug. 2001

“The independent prosecutor of the ICC has the power to issue indictments, subject to review only by a panel of three judges. According to the Rome statute, the Security Council has the right to quash any indictment. But since revoking an indictment is subject to the veto of any permanent Security Council member, and since the prosecutor is unlikely to issue an indictment without the backing of at least one permanent member of the Security Council, he or she has virtually unlimited discretion in practice.”

Universal jurisdiction: Is this ICC principle legitimate?

ICC advances principal universal jurisdiction on war crimes

Amnesty International. "The Globalization of Justice"

“Universal jurisdiction is the principle that every country has an interest in bringing to justice the perpetrators of the most grave crimes, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims. The Pinochet case is the most well-known universal jurisdiction case.”

Universal Jurisdiction was never a legal principle

Henry Kissinger. "The Pitfalls of Universal Jurisdiction: Risking Judicial Tryanny". Foreign Affairs. Aug. 2001

“The doctrine of universal jurisdiction asserts that some crimes are so heinous that their perpetrators should not escape justice by invoking doctrines of sovereign immunity or the sacrosanct nature of national frontiers […] The very concept of universal jurisdiction is of recent vintage. […] It is unlikely that any of the signatories of either the U.N. conventions or the Helsinki Final Act thought it possible that national judges would use them as a basis for extradition requests regarding alleged crimes committed outside their jurisdictions. The drafters almost certainly believed that they were stating general principles, not laws that would be enforced by national courts.”

Jurisdiction: Does the ICC have the right amount of authority/jurisdiction?

ICC brings order to a past of ad hoc tribunals

Amnesty International. The International Criminal Court, Fact Sheet

“it will have a much wider jurisdiction than existing ad hoc tribunals. For example, the work of the International Criminal Tribunals for the former Yugoslavia and Rwanda have been limited to crimes committed in a particular territory, while crimes committed in other territories have not been addressed”

ICC has advanced provision for reparations and non-repetition

Amnesty International. The International Criminal Court, Fact Sheet

“the Statute [of the ICC] contains advanced provisions for the protection of victims from retraumatization, and the Court may order a convicted person to provide reparation, in the form of compensation, restitution, rehabilitation, satisfaction, guarantees of non-repetition and any other type of reparation the Court deems appropriate.”

ICC will not have retroactive jurisdiction over past war crimes

Ian Williams. "Immune from prosecution". Salon. 16 June 2000

“The ICC won’t have retroactive effect, so it will only be able to try future criminals, and only after 60 countries have ratified it.”

The ICC has gained widespread acceptance globally

The ICC's authority is vague and over-reaching

John R. Bolton. "The United States and the International Criminal Court". Remarks to the Federalist Society. 14 Nov. 2002

“As to the former, the ICC’s authority is vague and excessively elastic, and the Court’s discretion ranges far beyond normal or acceptable judicial responsibilities, giving it broad and unacceptable powers of interpretation that are essentially political and legislative in nature. This is most emphatically not a Court of limited jurisdiction. Crimes can be added subsequently that go beyond those included in the Rome Statute. Parties to the Statute are subject to these subsequently-added crimes only if they affirmatively accept them, but the Statute purports automatically to bind non-parties, such as the United States, to any such new crimes. It is neither reasonable nor fair that these crimes would apply to a greater extent to states that have not agreed to the terms of the Rome Statute than to those that have.”

ICC will continually expand jurisdiction over national sovereignty

Gary T. Dempsey. "Reasonable Doubt: The Case Against the Proposed International Criminal Court". CATO Institute.

“the court threatens to diminish America’s sovereignty, produce arbitrary and highly politicized “justice,” and grow into a jurisdictional leviathan. Already some supporters of the proposed court want to give it the authority to prosecute drug trafficking as well as such vague offenses as “serious threats to the environment” and “committing outrages on personal dignity.” Even if such expansive authority is not given to the ICC initially, the potential for jurisdictional creep is considerable and worrisome.”

The ICC is a large and expensive bureaucracy

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