April 16th marked the 60th ratification to the Rome Statute. The treaty has acquired the requisite number of ratifications to realize the world's first permanent International Criminal Court (ICC). The path leading to this momentous occasion is more than 50 years old - beginning with the Nuremberg trials and more recently with ad hoc and temporary tribunals established in the past decade to deal with atrocities committed in Rwanda and the former Yugoslavia.
Over the past half century, human rights have gained substantial recognition and have acquired significant institutional backing. The commitment of states to treat their citizens in dignified ways is now codified in international law and those accused of betraying this commitment may be held responsible for their actions without the claim to sovereignty trumping calls for accountability. The ICC is the apex of the human rights movement.
Coming into effect this July 1st and to be housed in the Hague, the court prosecutes for crimes committed from that date. As a court of last resort, it will try cases that cannot or will not be tried domestically. Its jurisdiction extends to genocide, crimes against humanity, and war crimes as defined by the treaty. The particular significance of the court lies in the independence of the prosecutor and of the court from the political interests of states. The establishment of the ICC is, in part, a response to a general frustration with the effectiveness of the Security Council whose Permanent Five (P-5) members (the United States, China, France, England and Russia) enjoy veto powers and may therefore block actions necessary to uphold international justice, such as war crimes tribunals. Fears also exist that the P-5 may be hesitant to see cases brought against ally states. Furthermore, since states are often the perpetrators of the kinds of crimes the court deals with, doubt is expressed as to whether or not they may be trusted to undertake sufficient and thorough investigations. It is the need to place justice above political interests that requires the independence of the ICC.
There are, however, a number of weaknesses in the treaty. Some argue that the Rome Statute is a watered-down version of what could have been. Those who fought long and hard for a strong court are disappointed with compromises made, arguably, to gain sufficient support for the treaty to go ahead. Examples include the exclusion of the use of biological, chemical, and nuclear weapons from being considered criminal, the weakening of gender-related issues and a seven year opt-out clause for war crimes that may be invoked at the time of ratification. But especially pertinent at this moment is the matter of the court's jurisdiction. Universal jurisdiction was strongly supported by the "like minded" states such as Canada and Germany who were pushing for a strong court during the drafting of the Rome Statute. The principle would have allowed the court the authority to prosecute crimes referred to it without the consent of individual states. This point was hotly contested by the United States and is the reason behind unprecedented action taken by them on May 6th.
Immediately prior to leaving office and just in time for the Rome Statute's deadline to sign, Bill Clinton, in an effort to sustain the American "tradition of moral leadership," added the signature of the United States to the Statute. This move was significant because signing at this moment meant that the United States could continue to shape the development and management of the court without having to ratify, whereas signing beyond the deadline requires simultaneous ratification. However, having a signature on the document obliges the United States to do nothing to undermine the spirit of the treaty and makes it subject to the court's jurisdiction. On May 6th of this year, the United States "unsigned" the treaty - an action no state has previously taken. In so doing the United States is saying that it will not be bound by the court's jurisdiction and will in no way recognize the activity of the court.
Officially, the United States claims that it neutralized its signature on the treaty 1) for fear of "politically motivated," "capricious and mischievous" prosecutions [the high degree of American involvement of international security and peacekeeping operations, they argue, places the United States at an elevated risk of such a situation]; 2) because it violates due process as guaranteed by the American Constitution and 3) infringes upon state sovereignty.
THESE ARE MYTHS
A close look at the Statute reveals that these are myths. In the first place, the United States helped to draft, with detailed precision, how the crimes within the court's jurisdiction are defined. According to Monroe Leigh of the American Bar Association, "[t]he Treaty of Rome contains the most comprehensive list of due process protections which has so far been promulgated." Since the court is intended to be complementary in nature, it may not take up investigation and prosecution where a state has agreed to do so. The court only tries for war crimes, genocide, and crimes against humanity. Therefore, for actions to qualify under the court's definition, it must be established that the crimes are a component of a pattern of such abuses and that it was implemented as part of a larger plan or policy. The Rome Statute has been compared side by side with the American Constitution, only to reveal that the two documents are nearly identical in many respects.
The reality is that the ICC does not embody new characteristics in international law. To this end, there is nothing that should be deemed a realistic threat to those who abide by existing international law and within the confines of the Geneva Convention. Despite the Bush administration's retraction of it signatory status, the United States is not released from its responsibility to the international community. Other mechanisms to deal with such occurrences include the principle of universal jurisdiction. First explicitly articulated at the Nuremberg trials, the principle asserts that "all states have an interest in bringing to justice the perpetrators of the most serious crimes of international concern, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims."1 And in fact, a number of European countries have developed the institutional capacity to act on universal jurisdiction, most notably Belgium, which is quickly gaining fame as a centre of international justice. Other examples, of course, are Britain (for Pinochet), Austria, Germany, Denmark, and Switzerland.
Thus, the concerns of the United States that the treaty violates its sovereignty, its constitution, and will bring unjust prosecution against its personnel, are not valid. "Unsigning" the treaty not only implies the disappointing loss of the United States as a partner in the ICC but is unsettling for the dangerous precedent that it sets for others who may be tempted to mimic it and thereby undermine the international legal infrastructure. Most alarming of these recent developments are the series of unnecessary, hostile, and proactive steps taken beyond the unsigning of the treaty to impair the smooth functioning and existence of the court.
Three anti-ICC amendments were proposed before the House and Senate within the past year: the Helms American Service Member's Protection Act (ASPA), the Hyde Amendment and, the DeLay ASPA. The Helms ASPA was initially adopted by the Senate in early December of last year. Its central tenets included the prohibition of all levels of government from cooperating with the ICC (meaning that if the ICC were investigating Saddam Hussien or Omar al-Bashir, for example, the United States could not provide assistance) as well as the use of whatever means necessary, including force, to release American citizens from ICC detention. For this point the amendment has been dubbed "The Hague Invasion Act."
The Hyde Amendment was adopted by the House of Representatives and basically forbids the use of defence funding for cooperation with the ICC for the 2002 fiscal year and is subject to extension each year. At the end of last December, the two amendments were reconciled in favor of the less strict Hyde version.
However, the most severe of all amendments is the ASPA proposed by Majority Whip Republican Tom DeLay of Texas. It includes the same elements as the Helms ASPA but goes further, punishing states that are party to the treaty by denying military aid to non-NATO countries (and a select few others) and forbidding US participation in peacekeeping missions unless US personnel receive complete immunity from the ICC. In addition, this version does not allow for a presidential waiver, meaning the amendment cannot be disregarded. On May 10th, 2002, four days after withdrawing from the Rome Statute, the DeLay ASPA proposal was submitted to the floor. Given the December reconciliation of the Helms ASPA and the Hyde Amendment, the threat presented by the DeLay ASPA might seem less urgent. However, since May 10th, the United States has sought immunity for its peacekeepers in East Timor from the Security Council. The request was, of course, denied as it runs contrary to principles of international law but this conduct may indicate the seriousness with which the administration is considering the adoption of the DeLay ASPA.
The international community never doubted that the United States would not ratify this treaty but the extent they are going to undermine the court and discourage its supporters was less foreseeable. Not having the United States ratify is one thing but having them actively work against the institution, and more importantly, what the institution stands for, is indeed grave cause for concern. It has gone the way of the Kyoto Protocol, the ABM treaty, and an international convention to ban the use of land mines. Worse yet, the Bush administration hurls one insult after another at its allies and, just when it calls for solidarity in its fight against terror, it chooses to adopt unilateralist policies which actively repel friendly states. The United States is defining freedom very narrowly and is sending a clear and threatening message of non-cooperation to the rest of the world. Having "unsigned" the treaty places the United States in the company of other non-signatories: Iraq, China, North Korea an Indonesia - all noticeably undemocratic. This marks a significant departure from America's involvement in the roots of the movement for international justice some half century ago. The United States now stands starkly on the "wrong side of history" and is alienating itself from the "most important new institution for enforcing human rights in 50 years."2 The American stance is regrettable, for it will undoubtedly weaken the court and hinder its rapid development as an authoritative body in the international arena.
But it will not stop the court. The principles of international law remain unchanged. The court, despite notable and significant absences, enjoys a strong backing by important states. To date, there are 139 signatories with 67 ratifications. This is no small feat, and while it may be bitter-sweet, it is a human rights victory and a vital and necessary step toward a more just international society. Congratulations to the devoted states and NGOs behind this historical process.
Amber McNair is a PhD candidate at the University of Toronto.
More information can be found at:Human rights Watch, www.hrw.org
The Washington Working Groups on the ICC,www.wfa.org/issues/wicc.
1 "Human Rights Groups Support Belgium's Universal Jurisdiction Law." November 26, 2001. Human Rights Watch. www.hrw.org/press/2002/02/icj0215.htm.
2 Kenneth Roth as cited in "U.S. renounces obligations to international court" by Jonathon Wright. Reuters. Monday May 6th, 2002.