In 1995, during the 50th anniversary of the Nuremberg Trials, U.S. President Bill Clinton endorsed the creation of an International Criminal Court, the first U.S. president to do so. Despite his sup port, however, the United States joined China, Iraq, Libya, Israel, Qatar and Yemen in voting against the treaty establishing that court in Rome in 1998. The main purpose of the ICC is the prosecution of those accused of genocide, crimes against humanity and war crimes. Because its role is critical to the success of the ICC, the U.S. should support its creation and join the 98 countries that so far have signed the treaty.
There are several reasons why such a court is needed. After the Holocaust, when the world thought it had seen the end of heinous crimes against humanity, similar crimes continued to be perpetrated. Although the U.N. Security Council had established ad hoc tribunals for war crimes committed in Yugoslavia and Rwanda, no such tribunal was established for the trial of Pol Pot in Cambodia, the creation of which was adamantly opposed by China. In addition, although the ad hoc tribunals have proved useful for punishing crimes after the fact, a permanent tribunal is needed to deter crimes before they are committed.
Nations rarely prosecute their own officials responsible for human-rights abuses. In several instances, national judiciaries have proven incapable of administering justice when crimes against humanity were committed. And when the perpetrators are military personnel the possibility of their being tried fairly by military tribunals is considerably diminished. This is what happened in Argentina following the so-called dirty war in which an estimated 30,000 civilians were murdered. Only civilian courts were able to prosecute and punish the Argentine military leaders who committed serious human-rights abuses. And this is what is happening with Chile’s former strongman Gen. Augusto Pinochet: The chance of him receiving a fair prosecution also rests only with civilian courts. As French politician Georges Clemenceau once remarked, “Military justice is to justice what military music is to music.”
Prosecution by third-party countries has proven unreliable. Although murder and torture violate the Nuremberg Charter and the U.N. Torture and Genocide Conventions, the leading industrialized countries were unwilling to try Pol Pot. And the confused judicial rulings and eventual release of Pinochet by Britain showed the shortcomings of involving third-party countries, despite the unusual and courageous initiative in that case of a Spanish magistrate.
The lifting of sovereign immunity for torture and murder in the case of former government officials has become customary in international law, and has been stated explicitly in the statutes creating the Yugoslav and Rwandan international tribunals. Those tribunals, however, are temporary courts, with a limited mandate. In addition, important as these tribunals are, the complex issues involved in their establishment led soon to “tribunal fatigue,” and China and other members of the U.N. Security Council indicated that Rwanda would probably be the last ad hoc tribunal convened.
An important concern of U.S. opponents to the ICC is that the court represents a threat to national sovereignty. For example, an independent ICC prosecutor may pursue the indictment of U.S. soldiers operating abroad. However, the ICC statute clearly establishes the primacy of national prosecutions in those cases. It is only when national prosecutions don’t take place or when they fail to be carried out in good faith that the crimes may fall under the jurisdiction of the ICC. The relationship of the ICC to national courts, which has been characterized as “complementary,” is the cornerstone of the ICC structure. This principle clearly establishes that the ICC will not usurp the right of states to investigate and prosecute serious international crimes. The preamble of the court’s statute unequivocally affirms that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”
To go into effect, the treaty must be ratified by 60 countries. As of July 17, only 14 countries had done so. If the most serious human-rights abuses are to be prosecuted, nothing short of this tribunal is required. And U.S. support is critical to its success, since many countries may refuse to ratify the creation of an ICC that U.S. refuses to endorse. The ICC has the potential to become the most significant international institution in this new century. Its creation and effective functioning represent a challenge and an opportunity that the U.S. cannot afford to miss.