With globalism setting the pace for the 21st century, the need to strengthen the rule of law is growing. From this perspective, the creation of the International Criminal Court as the world’s first permanent war-crimes tribunal is of historic significance. A treaty establishing the court came into force last month. It is to start functioning next year.
The United States, however, is trying to make itself an exception to the rule; it is pressing other countries to conclude bilateral agreements excluding American soldiers from any chance of prosecution. That amounts to a denial of the ICC. As the world’s most powerful nation, the U.S. should demonstrate leadership within the framework of the court, not outside of it.
The ICC, the embodiment of more than 50 years of U.N. debates, is different from the Nuremberg and Tokyo tribunals held after World War II. Those tribunals were established only temporarily to bring selected war criminals to justice. The international criminal tribunals for the former Yugoslavia and others, established under U.N. Security Council resolutions, are also ad hoc bodies. The ICC is designed to solve the problems ascribed to these bodies. Critics of the Tokyo tribunal, for instance, have questioned whether “fairness” prevailed, saying it was a trial of the vanquished by the victor.
Located permanently in The Hague, the ICC will try specified major crimes according to specified legal procedures. Hopefully, it will also help prevent the resurgence of more Hitlers and their ilk. Unlike the International Court of Justice (located also in The Hague), which deals with cases involving conflicts between states, the ICC will handle only crimes committed by individuals.
Article 5 of the ICC charter mentions four types of crime: massacre, crime against humanity, war crime and aggression — although agreement has yet to be reached on how to define aggression. Prosecutors will be selected at a general meeting of signatory nations. Eighteen judges will be chosen according to strict standards based on experience and a demonstrated sense of morality, decorum and fairness. A criminal convicted of the gravest of crimes may be imprisoned for life. Others may be jailed for up to 30 years.
Thus far the ICC treaty has been signed by 139 nations and ratified by 77 — more than the 60 required to put it into effect. China and North Korea, among others, have not signed. Japan has yet to sign, the official explanation being that related domestic legislation is not yet ready.
The U.S. administration of former President Bill Clinton signed the pact at the end of 2000, but President George W. Bush’s administration withdrew the U.S. signature in May in a letter to U.N. Secretary General Koffi Annan. The Bush administration said American soldiers might be indicted for politically motivated reasons and that the sovereignty of the U.S. — which assumes unique roles and responsibilities in maintaining international peace and security — might be jeopardized.
The U.S. has troops deployed in about 100 nations around the globe. Washington’s primary concern is that anti-U.S. nations with ulterior motives might bring unfounded criminal charges against some American soldiers fighting abroad. Earlier this year, the U.S. asked the U.N. Security Council to give U.S. personnel on peacekeeping missions indefinite immunity from prosecution by the ICC. In response, the UNSC last month adopted a resolution calling for a one-year moratorium on the ICC investigation and prosecution of U.S. peacekeepers.
Moreover, the U.S. began negotiations with various countries to conclude bilateral agreements to prevent the extradition of U.S. citizens to the ICC. Washington has also asked Japan to sign a similar accord. Reportedly the U.S. has threatened to halt military assistance to some countries if they reject its request. So far Romania and Israel have concluded such a compact with the U.S. However, the Netherlands and Yugoslavia have refused to do so. Member states of the European Union have reacted critically.
The U.S. attempt to bend international law contradicts the image of a law-abiding superpower that wields overwhelming political and military influence while promoting its national interests in a globalizing world. Also contradictory is the U.S. request to China, touted as a “superpower of the 21st century,” to adhere to “international norms.”
Indeed, it strikes us as odd that the U.S., along with China, has rejected the ICC, a universal court of law. If there is any problem with the ICC, it should be resolved by reforming the court itself, not by rejecting its very existence. The new international court cannot be expected to function effectively if the world’s only superpower stays outside of it.
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