Last week, the first official hearings began in the world's first International Criminal Court (ICC) case. This permanent, global court is designed to try individuals accused of genocide, war crimes and crimes against humanity when other countries can't.
A treaty creating the court was drafted in 1998 and required ratification from at least 60 nations to become international law. As of now, 102 countries have ratified the treaty and are therefore eligible to vote on the judges and court prosecutor.
This new court, based in The Netherlands, is much like the International Criminal Tribunal for the former Yugoslavia (ICTY) except that the ICTY is temporary. In future Rwandas, Cambodias, Serbias, or other failed states, the United Nations Security Council will not need to create ad hoc, temporary war crimes tribunals. They will instead refer cases to the ICC.
This is especially important in the post-September 11 world. One thing we have learned is that "failed states" can be an enormous threat to the world. Failed states are those with no court system and no legal claim to sovereign authority. And it is just these nations where genocide, war crimes, and crimes against humanity flourish. They are also the places which become home base for the world's terrorist and international crime operations.
The ICC is a new tool for dealing with this anarchy and a new thread in the international legal system which attempts to manage globalization. Like the United Nations or the World Trade Organization, the ICC is trans-national not supra-national. This means it is a voluntary association of countries -- no nation is forced to participate.
The ICC, however, can prosecute individuals regardless of their nationality. Even if Afghanistan or Saudi Arabia failed to ratify the ICC treaty, someone like Osama bin Laden could still be prosecuted by the ICC if no other legal authority (including the American courts) stepped forward to take care of it.
Surprisingly, this ability to prosecute war criminals of all stripes is what makes the United States Senate reluctant to ratify the ICC treaty. Some Senators fear U.S. soldiers operating in other countries may be slapped with frivolous charges and hauled to the ICC. But the ICC is designed only to work in the absence of other court systems. If a U.S. soldier in Afghanistan were to be charged with a war crime, the U.S. military justice system would deal with it. The ICC wouldn't want the case -- nor would it have any legal basis for pursuing the case.
This U.S. position leaves it isolated from nearly all of its allies. Canada and the big European powers have been instrumental in bringing the ICC to life. When the court treaty was voted on in 1998, only seven countries voted no. These included the United States, China, Iraq and Libya.
On December 31, 2000, outgoing President Bill Clinton signed the ICC treaty. But President George W. Bush "unsigned" the treaty shortly after taking office. Bush then began an aggressive effort to negotiate separate agreements with many countries guaranteeing none of them would help the ICC prosecute American citizens.
No doubt the ICC would be stronger with American participation, legal expertise, and money. But the court is proceeding even without U.S. involvement, and the future will soon be a little more bleak for the Hitlers, Milosevics and bin Ladens of tomorrow.
Update: An Associated Press story from December 28, 2006 says, "After years of criticizing and rejecting the International Criminal Court, the U.S. is showing signs of warming to the U.N.-mandated court."
Related Links:
- Landmark Hearing Opens in International Criminal Court's First Case, from the International Herald Tribune
- Official ICC Web site, from the United Nations
- The Coalition for an International Criminal Court
- Arguments against the ICC, from The New American and the John Birch Society