The world’s first permanent international court of criminal justice opened for business earlier this month when the first 18 judges were sworn in. While the establishment of the International Criminal Court, or ICC, is a milestone, attention on March 11 was focused as much on the parties who were absent from the proceedings as on those that were present. Three of the five permanent members of the United Nations Security Council — the United States, China and Russia — have opposed the establishment of the new tribunal. The war with Iraq shows how shortsighted and counterproductive that opposition is.
The ICC was established in 1998 by a treaty that has since been signed by 89 countries. Officially, the tribunal opened in July 2002 when 60 countries ratified the convention, but it has not had the key personnel required to conduct business. The 11 men and seven women who have joined the bench will hear cases involving genocide, crimes against humanity and war crimes. Anyone, from a head of state to an ordinary citizen, is potentially subject to its jurisdiction. More than 200 complaints have already been lodged with the court.
The court is not unprecedented. There have been ad hoc war crimes trials in the past, from the Nuremberg and Tokyo tribunals after World War II to existing courts that are trying cases arising from the Balkan conflicts of the 1990s and the 1994 genocide in Rwanda. Unlike the latter two tribunals, the new court will not be a U.N. body, which means, in principle, that it will be sheltered from the political considerations that all too often influence that institution’s actions.
Although opening ceremonies were historic, the court is not yet ready to do business. A prosecutor has yet to be appointed. That individual will investigate complaints and decide whether to bring a case before the tribunal with the approval of three judges. The position was expected to be filled by April, but thus far the selection process has been slow. The current chief U.N. prosecutor for the Yugoslav war crimes tribunal in The Hague, Ms. Carla Del Ponte, has expressed interest in the job, and the Swiss government has said it is ready to back her candidacy if it gets support from a majority of the other ICC members.
Among the countries that will not be conferring on that selection is the U.S. Washington’s refusal to participate in the ICC is one of the court’s biggest shortcomings. The U.S. originally backed the creation of the court, but fearing politically motivated prosecutions, the Bush administration withdrew its signature from the treaty establishing the tribunal.
Worse, the U.S. has pressured other countries to sign bilateral agreements that would exempt U.S. citizens from the ICC’s authority by reportedly threatening, among other things, to cut off military assistance to governments that do not grant U.S. citizens immunity from the court’s jurisdiction. Some two dozen countries have agreed to those deals.
U.S. opposition makes sense only in the supercharged atmosphere of Washington. The framers of the court’s enabling statutes bent over backward to accommodate U.S. concerns. For example, the ICC will have jurisdiction only when a country cannot, or will not, prosecute war-crime suspects on its own. A legitimate national investigation of a war-crime accusation would shelter a country from ICC scrutiny. By those standards, the U.S. should have nothing to fear — except the partisan attacks from within the U.S. against multilateralism in general and the notion of a supranational order and rule of law.
A government that wishes to be totally unrestrained might be expected to chafe against such restraints, but they represent little more than an attempt to put teeth into norms that have guided the international system since the end of World War II. The list of grievances against the Iraqi president, for example, would make an excellent indictment. An international tribunal with genuine authority would have made U.S. President George W. Bush’s case without triggering the backlash against U.S. unilateralism that is now sweeping the globe.
As it stands, refusal to acknowledge the authority of the ICC puts the U.S. in the same camp as Iraq, Zimbabwe, Libya, North Korea and Cuba — along with China and Russia, two other permanent members of the U.N. Security Council. It is undistinguished company.
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