U.S. Foreign Policy Regarding the ICC
Introduction
The International Criminal Court investigates and tries individuals charged with grave crimes concerning the international community in situations where it has a warranty for that. These crimes revolve around crimes of war, genocide killings, aggressive crimes, and crimes against humanity. The ICC is involved in a global attempt to eradicate impunity. Through its criminal justice, it aims at holding criminal culprits accountable for their actions and preventing these crimes from occurring once again. The ICC acts as a complement of the national courts of member countries. It resorted as the last option; thus, it cannot work towards its goals by itself. The ICC serves as the first permanent international criminal court acting on the Roman Statute international agreement.
Human rights organizations, the United Nations, and most of the democratic nations supported the ICC. The USA, however, made opposition to the ICC in May 2002 and gave up any USA commitment to the agreement. The opposition led to President Bush signing the American Servicemembers’ Protection Act into law to prevent the cooperation of the government with the ICC (Forsythe 981). The USA was initially in support of the formation of the ICC, but in the end, it opted to vote against the Rome Statute. President Clinton signed the treaty but remembered to state that it had defects, and he would not give way for its approval by the senate until the fundamental concerns are met. The main issue was with the USA soldiers, and the USA administration wanted the treaty to exempt its troops and employees from the jurisdiction of the ICC based on the greater position the country has in worldwide peacekeeping processes.
Reasons for initiating changes to existing policy
The United States had many reasons to object and change the relations they had with the ICC. The main reason for objection was the potential of the ICC to assert jurisdiction over the USA troops accused of war crimes because of the use of force, and its declaration of jurisdiction over American officials charged for conduct related to foreign policy initiatives. The ICC threats of prosecution could prevent the country from taking part in military peacekeeping activities, affecting the USA’s sovereignty.
One reason why the USA objected to the treaty was the ICC nature of jurisdiction over non-partisan countries. It was stated that only countries which gave formal consent to the treaty were due to observing the policies. The court, however, claimed subject to its jurisdiction citizens of non-party nations, leading to the binding of these countries. ICC adherents claimed that the court has power over individuals, not a country. Non-members, however, feel that they are not obligated to do anything regarding the treaty. The fear of prosecution could limit the actions of USA administrators in implementing foreign policies. Member countries, however, felt like the Rome Statute’s crimes are also stated in international law, and hence, all countries can affirm the power to judge people for these crimes. Opposition from ICC, therefore, believe that exercise of universal power does not offer enough support to the idea as most ICC supporters claim.
The second reason that brought about attempts for changes was the politicized prosecutions. The problems within the ICC may provide a chance for it to be used by other states to formulate charges against American citizens. Americans believe the part they are involved in world affairs and foreign policies would make them prone to such charges than other countries’ citizens. ICC adherents stated that the complementarity principle would guarantee the court does not take power over a case with a citizen from the USA unless it is not willing to investigate the issue within their jurisdiction (Elsea 87). Some people also argued out that the Americans could be highly targeted for prosecution even though many nations involved in peacekeeping initiatives are willing to cooperate with the ICC. States against the International Criminal Court raised concerns about this court’s ability to rethink a valid determination by the USA prosecutors to end an investigation of refuse to prosecute an individual. Most unfriendly countries view American foreign policies as being criminal, making them an easy target if they accept the Statute’s treaty.
The third reason why the Americans objected to the foreign policy with the ICC was the unaccountability of prosecutors. Any separate political authority does not control the prosecutor’s office at the ICC. Because of the lack of political authority influence, it has unfettered discretion to begin cases, leading to politicized prosecutions. Supporters of the ICC would claim that the prosecutor’s office is regulated with a rule that the prosecutor must attain a go-ahead from a pre-trial chamber to perform a self-initiated prosecution and the dismissal of the prosecutor through a ballot of the states’ party assembly. Many represented countries at Rome’s conference had the idea that the U.N. Security Council, with its structural and permanent members, would bring more danger to the politicization of ICC prosecutions. This kind of nature in the court will encourage impunity.
The fourth reason for the United States’ objection was the trespass nature of the United Nation’s Security Council role. The roman Statute provided the court with the right to punish aggression crimes. Aggression is the sole power of the United Nation’s Security Council under their charter. The Roman Statute supporters would say that all state parties will be able to vote on a specification of aggression after the agreement has been in play for seven years. The definition should, however, be following the U.N. charter to maintain the role of the United Nations Security Council. Those against will also state that when countries do not agree on the aggression definition, it means that any resorted definition by few countries may not be recognized in the international law.
The fifth reason for objection was the lack of due process guarantees. The International Criminal Court was not going to give accused Americans the procedural rights, as stated in the American constitution, for example, the right to a jury trial. The Statute supporters claim it has a detailed set of procedural securities that bring substantial security to the American constitution. Some of them also argue that the American constitution similarly does not offer its citizens similar procedural rights. For instance, an American can be arraigned in other nations’ courts, where foreign governments have no jurisdiction to observe their constitution. However, cases tied to the armed services are bound to the court-martial, which does not go the jury trial. The present USA policy on the use of military tribunals in terrorism wars could bring the ideas of a two-sided United States on matters concerning procedural criminal trials.
Alternative policy options
America is also in search of bilateral options to protect the USA military in or outside the United Nations peacekeeping agreements. The USA signed 100 bilateral agreements where all promise not to give up citizens of the other signatory to the ICC unless there is a mutual agreement to surrender. These agreements take note of Article 98 of the Rome Statute, which provides cooperation with the provision of immunity and consent of surrender (Henry & Theodore 35). The first option is that the court may not continue with a request for surrender or assistance, which would need the requested country to act as per the international law according to the state immunity of an individual.
The second option will be the court might continue with a request for surrender. This option would need the respective country to act inconsistently with its obligations as given in international treaty according to which the consent of a sending nation is required to surrender a nation citizen to the International Criminal Court. This option would hold unless the court can first determine the cooperation of the sending state for consenting to the surrender.
The third option would be for them to constitute a law for investigating, and if warranted, prosecuting all the crimes done under the ICC jurisdiction alleged to be done by a United States individual. This option would be as a complementary action principle while pre-empting the ICC. It could be achieved by the USA, improving its reputation in conduction credible and fair investigations and judgments regarding criminal war culprits and perpetrators of war against humanity or genocide. The fourth option would be for the USA to cooperate with the ICC in cases where the USA agrees to the most severe crimes of concern in the world.
Advantages and disadvantages of the alternative options
The first option preventing the court from continuing the request for surrender is significantly advantageous because it aims at maintaining diplomatic immunity and heads of state immunity. The disadvantage of this is that it might bring a sense of impunity to the country in involving in foreign policies. For example, the 19 member International Security Assistance Force, which is authorized by the U.N. Security Council to aid the interim government in Afghanistan are given an immunity clause for the participants. This clause is per the ICC Rome Statute, and in case any activity against humanity is done in the line of duty, they are not going to be charged, making the first option disadvantageous.
The second option has an advantage because the ICC can request for surrender with the consent of the sending state. Because of this, people will be charged accordingly for their actions. The disadvantage of this is that the term sending state indicates that it only covers people who are sent to accomplish government business and not citizens present in the country, making them exposed and not protected by this option.
The third option would be efficient since it will enable the United States to charge their citizens within their jurisdiction in cases where they perform crime against humanity. The country has been against the ICC because it feels it is a superpower country. That position would make it a target for other nations to take advantage of reporting unrealistic crimes to the court. The United States will thus be able to charge the cases even though it won’t be a part of the ICC. The disadvantage of this option is that some crimes could go uncovered because of inadequate information that could be available with the jurisdiction ICC offers with the rights to attain victims and use them as witnesses in assistance for criminal investigations.
The fourth option for the USA to cooperate with the ICC in cases where it consents to the crime a citizen has performed has the advantage of providing the rule of law to withstand regardless of the country not being part of the Rome Statute. It would also increase the reputation of the United States as a human right and the rule of law promoter. The disadvantage, however, is that the cooperative act concerning the ICC in the case of foreigners while providing immunity to the USA citizens would bring the perception of double standards.
The best option
The best alternative the United States can consider is for them to constitute a policy for investigating and prosecution of individuals who perform crimes against humanity within its jurisdiction and accordance to the ICC statute laws. This policy is effective because it serves the interests of both parties. The United States will feel that its citizens are protected while the ICC policies concerning crimes against humanity are also going to be upheld. This option will, however, be acceptable and effective if the USA proves that it can act in a free and fair manner in dealing with such cases to make culprits get charged with the criminal offenses they perform.
Conclusion
The International Criminal Court has proven its fight against crimes against humanity with several cases it dealt with in the past. However, many countries have been unpleasant with the court, and recently many countries, mostly from Africa, have filed requests to exit the ICC Statute. The United States was against joining the Rome Statute court because of the interests it had in protecting its citizens from such prosecutions. It also stated that its position as a superpower country would make it an easy target for other countries. The United States, however, supports the fight of crimes against humanity as it continues with its world peacekeeping activities.
Works Cited
Elsea, Jennifer. U.S. Policy Regarding the International Criminal Court. 2006.83-101
Forsythe, David P. “The United States and international criminal justice.” Human Rights Quarterly 24.4 (2002): 974-991.
King, Henry T., and Theodore C. Theofrastous. “From Nuremberg to Rome: a step backward for U.S. foreign policy.” Case W. Res. J. Int’l L. 31 (1999): 20-47.