If you weren’t watching closely, you might have missed it, but the Trump administration just scored a big victory for national sovereignty by revealing an enormous problem with a global organization, the International Criminal Court (ICC).
The ICC came into being in April 2002, when the 60th ratification of the Rome Statute of the International Criminal Court (the Rome Statute) was submitted at the preparatory meeting held at the United Nations building in New York City. The 122 nations that have ratified the Rome Statute are considered “state parties,” and they provide oversight of the court.
Unlike the International Court of Justice, which was established to resolve disputes between nations, the ICC has jurisdiction over individuals. For now, the Rome Statute asserts jurisdiction over defendants only if either the “State on the territory of which” a crime was committed or “[t]he State of which the person accused of the crime is a national” has ratified the Rome Statute. The idea, however, is that the ICC eventually will shape international law so that its rules will become internationally binding.
The stated objective of the ICC is to bring an end to impunity for individuals who have committed horrific crimes on a large scale. In other words, really bad people (think Hitler, Stalin, Mussolini, etc.) should not be able to negotiate their way out of punishment once they are removed from power. The specific crimes that fall under the ICC’s jurisdiction are crimes against humanity, genocide, war crimes, and crimes of aggression (essentially, waging an unjust war).
The ICC’s jurisdiction is said to be “complementary to national criminal jurisdictions.” As such, the court is designed to assert jurisdiction only when the affected nation is “unwilling or unable” to act. This language appears to protect national sovereignty and to assure that the court does not intrude upon questions such as cultural and religious practices that, according to the U.N. charter, are “within the domestic jurisdiction” of a nation-state. However, the ICC itself determines whether the nation is “unwilling or unable,” so a nation that decides not to prosecute might nevertheless see its citizens hailed before this international tribunal.
The ICC can exercise its jurisdiction in three situations: (1) when a state party refers a situation to the prosecutor, (2) when the U.N. Security Council refers a situation to the prosecutor, or (3) when the prosecutor initiates an investigation under his or her own power. In theory, a private party can petition the court to open an investigation, but that has not yet proved fruitful despite thousands of such petitions.
The Rome Statute does not provide for trials held in absentia. Therefore, before the ICC can have any impact, the defendants have to be brought before the court. This requires some sort of police or military action. The ICC, however, does not have its own force; it relies on state cooperation. According to the Rome Statute, state parties are obligated to cooperate by surrendering the accused, taking evidence, questioning witnesses, and freezing property and assets. Many state parties, however, are not meeting their obligations.
In some countries, the tyrants are in charge of the military forces that protect them. So there is no cooperation. In other cases, state parties have had opportunities to cooperate but have failed to act. For instance, prior to being toppled from within just last month, Sudanese President Omar al-Bashir visited at least seven state parties after the ICC had issued arrest warrants for him. Under the Rome Statute, they were supposed to arrest him. None of them did.
In fact, due to a perceived bias against African nations, many African nations have pledged not to cooperate with the court. Burundi, the Gambia, and South Africa have all signaled their intention to leave the ICC over such concerns. The Philippines left earlier this year, helping President Rodrigo Duterte avoid an investigation into whether he committed crimes against humanity.
By the way, despite demands from Amnesty International that al-Bashir is to be sent to the ICC, the people in Sudan who toppled him have no interest in that. They want to provide justice locally. Similarly, the Iraqis did not want to surrender Saddam Hussein, nor did Libyans hand over Muammar Gaddafi. Affected nations usually want to administer their own justice.
Even if defendants are handed over to the ICC, that does not assure that the legal process will yield justice. Kenya’s President Uhuru Kenyatta was indicted by the ICC in connection with ethnic violence in which 1,200 people died. The case against him collapsed when the Kenyan government failed to produce evidence vital to the case. President Kenyatta said he was “excited” and “relieved,” when the charges were dropped. Many others, however, saw this as a fatal flaw in the structure of the court.
US and the ICC
President Bill Clinton signed the Rome Statute on Dec. 31, 2000. That was after the “hanging chads” had been counted in South Florida, and Clinton knew that he would be succeeded by George W. Bush. In signing the agreement, Clinton expressed concerns about its “serious flaws.” He declined to send it to the Senate for ratification and even suggested that his successor also should refrain from submitting it.
Bush actually went further than Clinton suggested; he announced that the United States was “unsigning” the Rome Statute. This permitted him to work against ratification in other nations in an unsuccessful effort to keep the court from reaching the necessary 60 ratifications to come into being. Israel also announced an “unsigning.” Some of the other significant nations that never joined the ICC include Russia, China, India, Pakistan, and Turkey. Leaders of these powerful nations saw the membership in the ICC as a surrender of national sovereignty.
Perhaps motivated by the desire to find more cases outside of Africa, in November 2017, Fatou Bensouda, the ICC’s chief prosecutor, asked for authorization to open a formal inquiry into alleged war crimes committed during the Afghanistan war, including possibly by U.S. forces and the CIA. Some saw this as a brave step toward global justice, but in the end, it revealed the weakness of the court.
This March, the U.S. State Department began denying visas to any ICC staff members involved in investigations of Americans. Then in April, the administration withdrew Bensouda’s visa. Within a week, the ICC called off the investigation. The difficulty of obtaining evidence and interviewing witnesses made an ultimate prosecution seem unlikely, so court resources would be better allocated to other investigations, the ICC said.
Some human rights advocates assailed the action of the administration as nothing more than interference with a valid investigation into alleged war crimes. It was, however, more than that. It was an assertion of national sovereignty. The United States isn’t a state party to the ICC, and has no legal obligation to cooperate with such investigations. Moreover, this nation has a strong history of investigating and prosecuting crime while also according rights to the suspects. The ICC does not accord all of the rights that Americans have come to expect.
The United States traditionally has held our troops and our agencies to high standards, but Americans have set those standards and judged those actions. That is as it should be. The Trump administration just took a significant step to ensure that is how it will continue to be.
Ronald J. Rychlak is the Jamie L. Whitten chair in law and government at the University of Mississippi. He is the author of several books, including “Hitler, the War, and the Pope,” “Disinformation” (co-authored with Ion Mihai Pacepa), and “The Persecution and Genocide of Christians in the Middle East” (co-edited with Jane Adolphe).
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.