International Criminal Court (ICC) Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

During a five-week period in the summer of 1998, the world’s nation-states, along with a large contingent of nongovernmental organizations, came together in Rome to deliberate over the establishment of a permanent International Criminal Court (ICC). At the final plenary session of the conference, the state delegates voted on the proposed Rome Statute of the International Criminal Court. After the United States called for one final unrecorded vote on the proposed Rome Statute, as a means to measure which nation-states would support it in its opposition to the statute, the official vote occurred. The final vote was 120 in favor, 7 against (including the United States), and 21 abstentions. The Rome Conference had achieved its ultimate goal, and on the following morning, the Rome Statute of the International Criminal Court was open for signatures.

On April 11, 2002, the statute received its 60th ratification, thus allowing the ICC to enter into force on July 1, 2002. Currently the Rome Statute has 139 signatories and 110 ratifications. One of the major exceptions to the list of ratifying countries is the United States, which initially signed the statute under President Clinton but then withdrew from any obligation to the court after the election of President Bush. The Obama administration does not appear to be moving in a radically different direction. Although the Obama administration seems more accepting of the ICC and its mandate, it still appears doubtful that this cordial relationship will ever result in ratification of the Rome Statute. The United States’s primary objection concerns the sanctity of the state sovereignty rule and the ICC’s ability to prosecute individuals from nonmember states. Despite this opposition, the ICC continues to receive widespread support and is currently investigating four cases: the Central African Republic, the Darfur region of Sudan, the Democratic Republic of Congo, and Uganda.

Jurisdiction

Part 2 of the Rome Statute discusses the jurisdiction of the ICC. As stated in article 5, the ICC has jurisdiction over the following four crimes: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The court has jurisdiction over these crimes from the time the statute enters into force; therefore, the ICC is temporally bound to the point of its ratification. No crimes committed before that date are within the court’s jurisdiction.

Scholars often refer to the crimes themselves as the “core crimes” of international humanitarian law. Definitions of the crime of genocide, crimes against humanity, and war crimes are all predicated on established international law. The foundations for defining these crimes include the Genocide Convention, the Hague Conventions, the Geneva Conventions, the post–World War II military tribunals, and the ad hoc tribunals of the former Yugoslavia and Rwanda.

The crime of aggression is included in the list of crimes within the jurisdiction of the court, but its definition has yet to be determined. Even after this crime is defined, the definition must then pass through the procedures of an amendment to the statute, as laid down in articles 121 and 123. In September 2002, the Assembly of States Parties to the ICC established the Special Working Group on the Crime of Aggression. This group is currently working on a draft text concerning the definition of crimes of aggression. Upon completion, the text will be forwarded to the assembly for review, and in a subsequent review conference the parties to the ICC will decide whether to adopt this text.

Trigger Mechanisms

The court may initiate an investigation if a state party, the United Nations Security Council, or the prosecutor refers a situation to the court. If any of these actors determines that any of the crimes defined in article 5 have been committed, they may refer the case to the prosecutor for further investigation. The case is then in the hands of the prosecutor, who must decide whether there is sufficient evidence to proceed.

Although this appears to be an approval of universal jurisdiction, it is not. Certain preconditions must exist before the court can exercise its jurisdiction. These preconditions establish the territorial jurisdiction of the court and limit the application of its power. In other words, article 13 does not give the court universal jurisdiction; it provides certain spatial considerations that determine where and when the court may exercise its power.

According to article 12, the court has jurisdiction within the territory of a state that is party to the statute. Therefore, if one or more of the crimes defined in article 5 were committed on a state’s territory that is party to the statute, then the ICC has jurisdiction. The ICC also has jurisdiction if the crime was committed on board a vessel or aircraft that is registered by a state that is party to the statute. The ICC’s jurisdiction also extends to a situation in which the perpetrator of the crime is a national of a state that is party to the statute. Finally, the ICC has jurisdiction over a nonparty state if that state voluntarily accepts the court’s jurisdiction.

The only exceptions to these trigger mechanisms are if a nonparty state consents to the investigation and subsequent prosecution and if the Security Council referred the case to the court. If the latter, then and only then does the court have universal jurisdiction.

Along with the aforementioned trigger mechanisms, the court must also adhere to the principle of complementarity when considering whether it has legal jurisdiction. The principle of complementarity concerns the relationship that the ICC has with the national authorities and domestic courts of an accused perpetrator. In short, the relationship of the ICC with national judicial systems is a complementary one, meaning that the domestic judicial system of the accused has the right of first prosecution. The ICC can act if, and only if, the domestic judicial system cannot properly investigate or prosecute the alleged crime. Such a situation would most likely occur because of a lack of national infrastructure or a collapse of the state’s domestic judicial system. The ICC may also act if the state is unwilling to prosecute. Unwillingness to investigate or prosecute is not as easy to identify but is ultimately determined by a panel of ICC judges.

Future Of The ICC

As stated earlier, the ICC is currently engaged in four cases. Three of these cases—the Central African Republic, the Democratic Republic of Congo, and Uganda—were referred by state parties. The fourth case, Sudan, was referred by the Security Council. The primary obstacle that the ICC has to overcome is enforcement of its rulings, indictments, and arrest warrants. Because the ICC lacks any centralized form of enforcement, it must rely on member states to enforce its rulings. This is particularly problematic in the case of arrest warrants where the home state of the accused is typically less than cooperative in executing these rulings. However, proponents of the ICC point to the increased support given to the court and the decline in U.S. hostility toward the ICC (as exemplified in its abstention on the Security Council vote concerning Sudan) as reasons to be hopeful for a successful and permanent form of international justice.

Bibliography:

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Ralph, Jason. Defending the Society of States:Why America Opposes the International Criminal Court and Its Vision of World Society. Oxford, UK: Oxford University Press, 2007.
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Sewall, Sarah B., and Carl Kaysen, eds. The United States and the International Criminal Court: National Security and International Law. Lanham, Md.: Rowman and Littlefield, 2000.

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