The International Criminal Court was created in 2002 in an effort to prosecute war crimes committed during World War II. The idea was to prosecute leaders and other individuals for war crimes. Although many countries have ratified the agreement, other major powers including the United States have expressed hesitancy (Rothe, & Mullins, 2006). Although at first glance it seemed like a positive system, upon closer inspection one begins to see the many problems with the entire concept.
The hesitancy in joining, primarily arose from the fear of losing sovereignty, and the simple fact, that the definitions of justice are different in different countries (Rozeff, 2005) In recent years the International Criminal Court has been the subject of much discussion and controversy. The United States amongst others, during the term of Bill Clinton, signed the Rome Treaty; however, did not submit it to congress for ratification.
President Clinton stated, "The United States should have the chance to observe and assess the functioning of the court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor, submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied. " Due to the upcoming elections it is likely that either candidate would consider joining the ICC. As more countries are now rallying behind it, the issue of the ICC will continue to manifest itself.
Despite the imminence that the topic will present itself in the near future, we should be hesitant of joining the ICC. Although some major powers have joined and ratified the ICC, others such as China, Russia and India are still critical of the court due to what is perceived as fundamental flaws in its system. Consider some of the potential flaws in the system. To what extent will pre-emptive wars be viewed as legal? Could our leaders and country be tried in the international court due to the invasion of Iraq?
To understand why the United States did not wish to participate in the International Criminal court, based on the tenets of international law, could provoke the question if indeed the current conflict in Iraq could be viewed as a `war crime' or some other severe violation of international law (Bolton, 1998). One of the goals of the ICC is to try and prosecute for war crimes and genocide. However, the term genocide can be widely interpreted. The world originated with Raphael Lewkin in 1944.
Lewkin wanted to ensure that crimes made against specific people or groups were prosecuted. Genocide was to be set apart from crimes against humanity' since this was only to apply in the context of an international war. Today the term is generally understood to be separate from war crimes. In order to commit genocide there must be intent to destroy a national ethnic racial or religious group. However, the argument still remains if genocide is considered to be separate from war crimes.
The Nuremberg charter listed as a war crime the “murder or ill treatment of prisoners of war, the killing of hostages, the wanton destruction of cities, villages, or towns, and devastation not justified by military necessity,” among other activities (Rozeff, 2005) One of the areas that should be given strong consideration before choosing to ratify this treaty is the following. In analyzing the Nuremberg charter and its definition of a war crime, it would seem that the war in Iraq could be labeled by some as a war crime, since some of the activities up to now do satisfy these criteria.
The second area of concern would be that the atomic bombing of Hiroshima and Nagasaki could be classified as war crimes according to the Nuremberg charter. In reviewing some of the decisions and statements already made by the ICC, it serves as a precedent: literally anything could be called a war crime. It lies with the powers-that-be whether an action would be interpreted as a punishable war crime, or an irrefutable act of defense and retaliation (Bolton, 1998).
The ICC poses significant advantages with its goals being to achieve justice for all, end impunity, helping to end conflicts, remedy the deficiencies of ad hoc tribunals and deter future war criminals. However, its main problem is its system of jurisdiction. The creators of this court did not take the issue of sovereignty amongst countries, as their goal up to the present was to have a general scope and application of any such international group. The authority of this court lies on the voluntary agreement and participation of the countries who sign, to be subject to its authority (Schiff, 2008).
On the flip side, exclusion was made that would allow the individual countries the first chance to prosecute the crime. If the country was unable or unwilling to prosecute it is then that the ICC would take over. The best part of the International Criminal Court is its determination to punish individuals and not states, countries or abstract entities (Roberg , 2007). The term individuals would include military leaders who give orders to carry out war crimes. Disputes over the results between countries are then settled by the use of force. The victorious country then has no one to answer to for any heinous acts it committed.
Although as stated above the concept of the ICC does deserve the merit of our consideration, I do not believe that it would be in the best interest of the United States of America to join at this time. Being the world’s major power, our ability to act and carry out agendas in the best interest of Americans could be severely impaired. The implications of holding the heads of the country responsible for international crime simply pose too many implications. Trials in an international court may not be the best course of action against a state’s crime. References:
Bolton, R (1998) Courting Danger: What's Wrong with the International Court", The National Interest, No. 54, Winter 1998, at 60-71. Rothe, D & Mullins, C (2006) The International Criminal Court and United States opposition Kalamazoo, MI, University of Northern Iowa; Roberg, J (2007) The Importance of International Treaties. Washington D. C American Peace Society Rozeff, M (2005) To Back the International Criminal Court or Not? Retrieved Oct 24 from: http://www. lewrockwell. com/rozeff/rozeff43. html Schiff, B (2008) Building the International Criminal Court Cambridge University Press; 1 edition