The International Criminal Court; When Does IT Step Up?

(noon. – promoted by ek hornbeck)

I’m sure everyone here has read this wonderful essay by tahoebasha3.  To follow up on it, I think we must examine the role the International Criminal Court plays.

This excellent article brings out a very interesting point:

The move may give some wider latitude to the relatively young International Criminal Court (ICC) in The Hague, legal experts say, though this is disputed. Currently the ICC indictments and trials are drawn mostly from cases of genocide or war crimes in Africa.

And there, to be precise, is the problem…

The International Criminal Court (ICC):

The International Criminal Court (ICC), governed by the Rome Statute, is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.

The ICC is an independent international organisation, and is not part of the United Nations system. Its seat is at The Hague in the Netherlands. Although the Court’s expenses are funded primarily by States Parties, it also receives voluntary contributions from governments, international organisations, individuals, corporations and other entities.

Sounds good, so far, or, does it?  

On 17 July 1998, the international community reached an historic milestone when 120 States adopted the Rome Statute, the legal basis for establishing the permanent International Criminal Court.

What is “The Rome Statute” (.pdf)?  It is, simply, an agreement, a treaty entered into by states.

The Court may exercise its functions and powers, as provided in this Statute, on

the territory of any State Party and, by special agreement, on the territory of any

other State.

In practice, it  has no jurisdiction to prosecute crimes unless the state in question is party to the agreement.  It is, frankly, why George W. Bush withdrew from the ICC prior to invading Iraq and, in doing so, immunized himself from prosecution by the ICC unless there was `special agreement` by other states.  This is why he also blackmailed numerous countries, who were part of the ICC, to sign bi-lateral immunity agreements that they would not bring charges upon him and the United States prior to the invasion of Iraq.

In capitals around the world, US government representatives have been seeking bilateral non-surrender agreements, or so-called “Article 98” agreements, in an effort to shield US citizens from the jurisdiction of the newly created International Criminal Court (ICC or Court). Many government, NGO and other international law experts argue that the US is misusing Article 98 of the Rome Statute, the provision of the ICC’s governing treaty that the US is using to justify seeking these agreements. Legal experts furthermore contend that such agreements constitute a breach of international law if signed by ICC States Parties (countries to have ratified or acceded to the ICC treaty). ICC advocates condemn the US BIAs as an inexcusable attempt to gain impunity from the crimes defined in the Rome Statute of the ICC, namely: genocide, crimes against humanity and war crimes.

In fact, many scholars, and even governments, viewed the BIA’s as illegal and contrary to the Rome Statute’s intentions:

Many governmental, legal and non-governmental experts have concluded that the bilateral agreements being sought by the US government are contrary to international law and the Rome Statute for the following reasons:

– The US bilateral immunity agreements are contrary to the intention of the Rome Statute’s drafters. Delegates involved in the negotiation of Article 98 of the Statute indicate that this article was not intended to allow for new agreements based on Article 98. Rather, Article 98 was designed to prevent legal conflicts which might arise because of existing agreements or renewals of previous agreements, such as Status of Forces Agreements (SOFAs). Article 98 was not intended to allow agreements that would preclude the possibility of a trial by the ICC when the “sending state” did not exercise jurisdiction over its own nationals. Indeed, Article 27 of the Rome Statute provides that no one is immune from the crimes under the Court’s jurisdiction.

– The US bilateral immunity agreements are contrary to the language of Article 98 itself. The proposed agreements seek to amend the terms of the ICC treaty by effectively deleting the concept of the “sending state” from Article 98(2); this term indicates that the language of Article 98(2) is intended to cover only SOFAs, Status of Mission Agreements (SOMAs) and other similar agreements. SOFAs and SOMAs reflect a division of responsibility for a limited class of persons deliberately sent from one country to another and carefully outline how any crimes they may commit should be addressed.

Yet, the United States, and those of the Bush administration including Bush and Cheney, remain uncharged with a crime, whether it be against humanity, invading the sovereign nation of Iraq on false pretense, or the slaughter of hundreds of thousands of Iraqi’s by the International Criminal Court.  It is this very fact that prompted prosecutor’s to file charges in Spanish court under the universal jurisdiction that Spain exercised in the past.  It is also this very power that Spain exercised, and is in the process of exercising against Bush lawyers, that prompted the Obama administration to pressure the change in Spanish law.

The Obama administration has been chary in support of efforts to prosecute previous White House officials in what could devolve into very ugly partisan fights. Human rights groups indirectly charged Spain with bending to US pressure. A joint press release from Amnesty International, Human Rights Watch, and the UGT trade union stated, “Spain is more concerned with not offending some powerful governments than with ending the impunity that criminals benefit from.”

Mark Ellis, executive director of the International Bar Association in London, says the application of “universal jurisdiction” is shifting from an absolute concept personified by Spain, to a more conditional reading. He argues it may be a needed adjustment, given the hard political dynamics in and around nations that argue for state sovereignty. But in the long run the change may be salutary.

“I saw this coming,” Mr. Ellis says. “This doesn’t eliminate the concept of universal jurisdiction, required under the Geneva Convention, but it is evolving with provisions. If every state fully pursued absolute universal jurisdiction this would be very chaotic, bring unintended consequences, and might weaken international law, including the role of the ICC.”

In fact, since universal jurisdiction was required by the Geneva Conventions, there has been no chaos, no “unintended consequences”, as Mr. Ellis claims could happen.  The only cases brought forth under universal jurisdiction were just and forthright.  And, to be exact, President Obama has yet to rejoin the ICC despite a 2004 interview where he stated it was a mistake for the U.S. to reject the ICC.

CC: But would you agree that by doing what the Bush administration is doing we are fomenting…

BO: We are exacerbating it! Our adventures in Iraq are appealing to some of the worst impulses in the Arab and Muslim world rather than the best impulses of those cultures. I think it’s emblematic of a general arrogance of this administration that was on display before Iraq – it was true with our unilateral rejection of the Kyoto Protocol, we could have done something about greenhouse gases, it was true of our unilateral rejection of the international criminal court which, had we been a signatory, could have actually dealt with Saddam Hussein in an appropriate setting. It was true with our unilateral rejection of the landmines treaty. This administration has repeatedly shown disregard for other countries and world opinion. That is fundamentally a mistake…I think that has made us less secure.

Yet, now that torture allegations are proven against the Bush and Cheney administration, President Obama is still not embracing the ICC.  This is why Italy is prosecuting CIA agents in absentia.  This is why charges were brought in Spain against Bush lawyers.  Had President Obama rejoined the ICC, charges could have been brought there, and, not under universal jurisdiction.  But, he hasn’t.

NAIROBI, Kenya – U.S. Secretary of State Hillary Rodham Clinton says it is a “great regret” that the United States is not a member of the International Criminal Court.

Why is it a regret?  It is signing a paper.  One stroke of the pen.  And, yet, we know why — he is still covering for the abuses perpetrated by the Bush administration.  It is this fact, in its entirety, that makes the Nobel Peace Prize just awarded him a sham and shame.  Glenn Greenwald, who if you don’t read you should, takes the award to task in his latest article.

Beyond Afghanistan, Obama continues to preside over another war — in Iraq:  remember that? — where no meaningful withdrawal has occurred.  He uttered not a peep of opposition to the Israeli massacre of Gazan civilians at the beginning of this year (using American weapons), one which a U.N. investigator just found constituted war crimes and possibly crimes against humanity.  The changed tone to Iran notwithstanding, his administration frequently emphasizes that it is preserving the option to bomb that country, too — which could be a third war against a Muslim country fought simultaneously under his watch.  He’s worked tirelessly to protect his country not only from accountability — but also transparency — for the last eight years of war crimes, almost certainly violating America’s treaty obligations in the process.  And he is currently presiding over an expansion of the legal black hole at Bagram while aggressively demanding the right to abduct people from around the world, ship them there, and then imprison them indefinitely with no rights of any kind.

So, with Spain limiting its prosecutions under universal jurisdiction, will the ICC step up to the plate?  Hardly.  It can’t until President Obama rejoins it.  At the moment, that isn’t likely to occur, and, in fact, he has worked to limit other state’s abilities, ie Spains, to prosecute Bush and Cheney, or, their officials.


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  1. Why should the ICC be any different than the Nobel committee?

  2. Deeper into the dark side than cheney/bush?

    Very, very possible, just better camo!

  3. This is quite good and a good representation of our positions.  See also: States Parties to the Rome Statute of the International Criminal Court

    But, bear in mind, as I stated in the very first paragraph of “Trying to Catch My Breath . . . . ,” the law limiting prosecutions under universal jurisdiction went into effect AFTER the lawsuit by the Iraqis, et al. was filed.  So, on that basis, I’m not sure that that law can apply to a suit filed BEFORE its enactment.

    Thanks for the nice words!  🙂

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