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This house would recognise the International Criminal Court
This house would recognise the International Criminal Court
On 18 July 1998, the Rome Statute establishing the International Criminal Court was signed. Pursuant to several decades of drafting and negotiation, the conference at Rome settled the creation of a court with jurisdiction over the most heinous crimes ; namely, genocide, crimes against humanity, war crimes and aggression. The ICC builds on the precedent of the ad hoc tribunals established by UN Security Council resolutions in the 1990s. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are currently investigating and prosecuting those responsible for commission of some of the most grave violations of human rights in the twentieth century. The establishment of the permanent and standing institution of the ICC at the Hague removed this complex process of negotiation; the difficulty of obtaining Security Council assent; and the perennial problem of securing funding.
The objections raised, by the US specifically, concern the potential for political prosecution, the excessive jurisdiction, and the capacity for crippling costs to any State, whether already a signatory or a current opponent. However, the proponents of the Court maintain it is necessary to ensure war criminals are brought to justice and, in so doing, offer justice to their victims.
|Points For||Points Against|
|The ICC allows for the prosecution of war criminals.||The ICC generates crippling expenses.|
|The ICC offers justice to victims of war crimes.||It may be in the best interests of victims and their state for war criminals not to be brought to trial.|
|The deterrent effect of the Court ensures wide-spread and equal adherence to international law.||The ICC has too much authority.|
|The novel crime of aggression leads to the prosecution of those seeking to protect human rights.|
|The ICC fails to prevent atrocities.|
Remember to choose a winning argument!
The ICC allows for the prosecution of war criminals.
Law-abiding states like the United States that have yet to ratify the ICC should have nothing to fear if they behave lawfully. The Prosecutor of the ICC is only concerned with the most grave offences and it defies belief that the US would approve a strategy of genocide or systematic mass violations of human rights that could attract the jurisdiction of the ICC. Further, the discretion of the Prosecutor is not unchecked. The Statute requires that the approval of three judges sitting in a pre-trial chamber be obtained before an arrest warrant can be issued or proceedings initiated. Moreover, there is no harm to the interests of the US in being subjected to a mere preliminary investigation. In fact, it is preferable that spurious accusations are briefly examined and shown to be baseless, than that these accusations be allowed to raise doubts about the credibility of a State's actions and the impartiality of the Tribunal in question. The US acceptance of the jurisdiction of the Prosecutor of the ICTY is evident ; the US troops forming part of the KFOR peacekeeping force in Kosovo could equally be subject to investigation and prosecution by the ICTY. The US is prepared for its forces to operate under the scrutiny of the ICTY since it reasonably does not expect its members to commit the very crimes they are deployed to prevent.Improve this
The ICC's ability to prosecute war criminals is both overstated and simplistic. It has no force of its own, and must rely on its member states to hand over criminals wanted for prosecution. This leads to cases like that of Serbia, where wanted war criminals like Ratko Mladic are believed to have been hidden with the complicity of the regime until finally handed over in 2011. The absence of a force or any coercive means to bring suspects to trial also leads to situations like that in Libya, whereby Colonel Gaddafi is wanted by the ICC but the prosecution's case is germane if he manages his grip on power. Furthermore, it relies on external funding to operate, and can only sustain cases so long as financial support exists to see them through.Improve this
The ICC offers justice to victims of war crimes.
The ICC offers a multilateral means by which international law can be brought to bear on the perpetrators of war crimes. As Amnesty International argues, 'the ICC ensures that those who commit serious human rights violations are held accountable. Justice helps promote lasting peace, enables victims to rebuild their lives and sends a strong message that perpetrators of serious international crimes will not go unpunished'. Furthermore, and for the first time, the ICC has the power to order a criminal to pay reparations to a victim who has suffered as a result of their crimes. Such reparations may include restitution, indemnification and rehabilitation. Judges are able to order such reparations whether the victims have been able to apply for them or not. Though reparations will often not be sufficient on their own for lasting peace, they are a step in the right direction and only made possible by the establishment of the ICC.Improve this
The ICC does not offer lasting peace to victims, but can instead re-open old wounds. 'It is by no means clear that 'justice' as defined by the Court and Prosecutor is always consistent with the attainable political resolution of serious political and military disputes' argues John Bolton. The ICC deals with individual criminals and specific crimes in a vacuum, it is unable to appreciate the, albeit paradoxical, notion that it may be in the best interests of the resolution of conflict for the perpetrators to go unpunished and victims to forego reparations. 'Circumstances differ, and circumstances matter'1 the ICC in offering lasting peace to victims of war crimes is unable to weigh the circumstances in the manner of an ad hoc tribunal tailored to the specific conflict.Improve this
The deterrent effect of the Court ensures wide-spread and equal adherence to international law.
Upon signing the Rome Statute in 1996, U.N. Secretary General Kofi Annan stated that 'the establishment of the Court is still a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law'1. Such statements demonstrate the impact the Court could potentially have, as a body that simultaneously cherishes sovereignty and protects national courts whilst offering a means by which criminals in states unable or unwilling to prosecute will still be brought to justice. As the natural and permanent heir to the process started at Nuremberg in the wake of World War II2, the ICC ensures that the reach of law is now universal; war criminals, either in national or international courts, will be forced to trial as a result of the principle of universal jurisdiction1. The deterrent effect of such a court is obvious and a warning to those who felt they were operating in anarchic legal environments.Improve this
The US holds a unique position in the fabric of the protection of international peace and security. Whilst it might be appropriate for other States to consent to the jurisdiction of the ICC, these States do not bear the responsibilities and attendant risks beholden to the 200,000 US troops in continuous forward deployment. The armed forces of the US that have responded to three hundred per cent more contingency situations during the previous decade than during the whole of the Cold War. It is clear that the world more than ever looks to the US for its safety. Furthermore, the military dominance of the US increases the likelihood of prosecution. When rogue regimes are incapable of defeating the US by any military means, they are likely to resort to 'asymmetric challenges' to their forces. Challenging the authority of the US in the ICC will be more damaging to US interests and willingness to intervene than any conventional military opposition. The indispensable nation must therefore be permitted to dispense with the ICC.Improve this
The ICC generates crippling expenses.
Cautious estimates suggest an operating budget of $100 million per year1. The costs of the ICTY and ICTR have already spiralled out of control, and the latter tribunal has a legacy of maladministration and internal corruption. The US contributes 25% of the budget for both the tribunals, which amounted to $58 million in the fiscal year 20002. It is dubious whether the ICC could survive without US financial support. The UN as a whole is obligated only to fund investigations and prosecutions initiated at the request of the Security Council. Every other investigation must be funded by assessed contributions from the States that have ratified the Rome Statute. Although the UN could authorise the transfer of additional funds, the procedure would require a UN Security Council resolution that would of course be subject to the US veto. Alternatively, it is accepted that State Parties to the Statute could directly contribute funds or personnel to the ICC. However, the possibility of partiality or even corruption is manifest where States with their individual political interests are deploying and directing their own staff within the Office of the Prosecutor of the ICC.Improve this
The budget of the ICC is not particularly excessive and can be maintained without US finance. The withholding of US funds from the UN budget is a familiar tactic for expressing disapproval. In 1998, the total US arrears on assessed contributions that had been approved by the Security Council amounted to over $1.3 billion1. Whilst the operation of UN institutions and operations, in particular peacekeeping, might have suffered, the UN was still able to function. Likewise, there is no reason to suggest that the refusal of the US, or even Japan, to ratify the Rome Statute, would preclude the operation of the ICC. The Statute allows the donation of additional funds and resources from other State Parties. With regard to the ICTY, the EU has consistently contributed personnel, in addition to the payment of the assessed contribution of each of the 15 States. $100 million might seem a significant expense. However, it is both trite and true that no price should be put on justice. Not least justice for thousands of victims of some of the most heinous crimes imaginable.Improve this
It may be in the best interests of victims and their state for war criminals not to be brought to trial.
The ICC may well lead to the political prosecution of war criminals, but that is not necessarily the most effective means to peace, or lasting peace for victims. As U.S. policy papers have pointed out, despots like Pol Pot and Saddam Hussein did not consult lawyers over potential legal ramifications before they committed their respective human rights violations1. Furthermore, the impact on an oppressed population of a long, protracted trial of their fallen dictator is not always therapeutic for it can dredge up events of particularly melancholic qualities and grants the dictator a platform to continue his psychological control over his population.
1 Elsea, J. K. (2006). U.S. Policy Regarding the International Criminal Court. Congressional Research Service, p. 22.Improve this
It is always in the best interest of victims for war criminals to be brought to justice, even if in the intermediate period there is a great deal of stress and suppressed grief. The ICC has the power not only to punish war criminals with incarceration, but order reparations to be paid to victims. Though financial reward cannot cover the loss of life or injury, it is a start and could not directly come from the criminal themselves without the influence and power of the ICC. Furthermore, it establishes a precedent that demonstrates to the wider public that victims will, however long it takes and however hard the ICC must work, get justice for their suffering.Improve this
The ICC has too much authority.
The ICC will lead to political prosecution. American service members and senior military and political strategists will be subject to charges for legitimate military action. Any State has the power to refer an issue for investigation to the Prosecutor and the Prosecutor also has the power to commence an investigation ex proprio motu. There is no UN Security Council veto over the discretion of the Prosecutor. Moreover, the phantom of political prosecution has already materialised in the preliminary investigation mounted by the Office of the Prosecutor of the ICTY into the NATO bombing of Kosovo and the Federal Republic of Yugoslavia in the course of 'Operation Allied Force'. The Prosecutor chose to investigate a campaign that had been undertaken with clinical precision, that had received the ex post facto support of the Security Council, and that had been directed against a military infrastructure effecting a brutal policy of ethnic cleansing. This grim precedent suggests that a Prosecutor will not hesitate to investigate any other good faith and successful military actions across the globe.Improve this
The ICC does not have too much authority, merely the necessary authority to be useful as an institution. It is the very pre-eminence of the US that demands it adhere to the international rule of law, the ICC's existence will not alter that nor lead to charges for legitimate actions. It is perfectly possible to conduct a campaign for bona fide reasons of saving lives and protecting human rights that involves the commission of war crimes. The ICC can reasonably demand that the US, or any other State, pursue their lawful ends by lawful means. Moreover, it matters not to the victim of a gross human rights violation whether the perpetrator was the regime of a rogue state or the service member of a State seeking to protect the population. Further, other States with significant military commitments overseas, such as the UK and France, have ratified the Rome Statute without equivocation. These States accept that intervening in other States to uphold international human rights demands respect for these same norms.Improve this
The novel crime of aggression leads to the prosecution of those seeking to protect human rights.
The likelihood of political prosecution is only augmented by the creation of the novel crime of 'aggression' under the Rome Statute. Any intervention in a State for the protection of human rights of some or all of its people might constitute a crime. The US or any NATO State could be prosecuted, at the request of the genocidaires, for successfully preventing genocide. Moreover, by a quirk of the drafting of the Statute, States that refuse to accept the jurisdiction of the ICC can nevertheless request the prosecution of individuals of other States for crimes alleged committed on its territory. Thus Milosevic could have demanded the investigation of NATO forces for the events of Operation Allied Force, but have precluded any investigation of the actions of the Bosnian Serb army on the same territory.Improve this
The crime of aggression is not remarkably novel. Intervening in the domestic affairs of a sovereign State is contrary to norms of conventional and customary law. The UN Charter prohibits both the unauthorised use of force against another State and any intervention in its domestic jurisdiction. Moreover, the fact that the crime of aggression has not yet been defined means that this objection to the ICC is purely hypothetical. The US should in fact be encouraged to ratify the Rome Statute in order to allow its negotiators to play an active role in the Assembly of State Parties. The Assembly is currently responsible for drafting the definition of this crime.Improve this
The ICC fails to prevent atrocities.
The ICC will not deter the commission of war crimes or genocide. The Third Reich augmented the crimes of the Holocaust when it became clear that the Allies would defeat them in Europe. The only expectation of the Nazi leadership was immediate execution, rather than trial in a judicial forum. Similarly, Slobodan Milosevic and the Bosnian Serb army conducted a campaign of ethnic cleansing in Kosovo whilst the International Criminal Tribunal for the Former Yugoslavia (ICTY) was sitting in the Hague. The calculation of whether to commit gross human rights violations is not that of the reasonable and rational individual. The existence of a court, however well intentioned, will have no effect on the commission of these crimes.Improve this
It is ludicrous to claim that the ICC will fail to deter atrocities when such an international institution has never before existed. Moreover, the ICC is not designed to be a prophylactic ; for the victims of these terrible crimes it is crucial that these offenders are apprehended, tried and punished. Retribution and protection of society are objectives not only for the domestic criminal justice system but also for the new international version. Therefore, even if the ICC failed to prevent the atrocities in the first place, a mechanism is now in place to punish those responsible. Justice is not sufficient where war crimes are concerned, but it is a start.Improve this
Elsea, J. K. (2006). U.S. Policy Regarding the International Criminal Court. Congressional Research Service.
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