Kapok Tree Diplomacy

“The Last Word on Justice: The Impact of the International Criminal Court On the Future of International Justice and its Rocky Road to Legitimacy” by Kapok Tree Diplomacy

PREVIEW      Written in August 2010

Section One – History, Structure and Mandate of the ICC

Background.  The United States has supported bringing human rights violators to justice for many decades. After World War I, the Allies charged Kaiser Wilhelm II of Germany in the Versailles Treaty with “a supreme offense against international morality and the sanctity of treaties,” a first in holding a head of state accountable for his actions (Feinstein & Lindberg 23). The Nuremberg and Far East tribunals affirmed “individual culpability for crimes against peace” following World War II by indicting several senior officials in a multinational setting (Fletcher 235).  The UN General Assembly subsequently charged the International Law Commission (ILC) in 1948 with drafting a statute for an international criminal court (Murphy 4).

In 1974, the UN General Assembly finally defined and codified aggression in G.A. 3314 as “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations” (Fletcher 238). This definition includes a non-exhaustive list of aggressive acts and allows the UNSC to determine if an act does not have “sufficient gravity” to meet the definition (United Nations G.A.). This definition, although deemed “too political and legally imprecise” for the ILC, would become the foundation for the ICC definition of the crime of aggression (Fletcher 239 and “RC/Res.6”).

Following a request from Trinidad and Tobago to consider an international criminal court for drug trafficking issues, the General Assembly convened a diplomatic conference in 1994 to draft the treaty that was finally adopted on July 17, 1998 (Dunoff, Ratner, & Wippman 658). The Rome Statute of the International Criminal Court, hereinafter referred to as “Statute,” became law with 60 ratifications on July 1, 2002 and is now joined by 111 states (ICC “About”). The ICC negotiations were very contentious as states sparred over jurisdictional consent, the independence of the prosecutor, the role of the UNSC, and complementarity issues (Dunoff, Ratner, & Wippman 658-9). The chief U.S. negotiator, David J. Scheffer, acknowledged:

“In Rome, we indicated our willingness to be flexible … Unfortunately, a small group of countries, meeting behind closed doors in the final days of the Rome conference, produced a seriously flawed take-it-or-leave-it text, one that provides a recipe for the politicization of the court and risks deterring responsible international action to promote peace and security” (1998).

The United States’ opposition to the ICC would only intensify, with President Clinton signing the treaty on December 31, 2000, but noting its “significant flaws”  and recommending his predecessor not submit the treaty to the senate for advice and consent until the flaws were addressed (Feinstein & Lindberg 148). The Bush Administration effectively “unsigned” the Rome Statute on May 6, 2002, and enacted the American Service-Member’s Protection Act (ASPA), nicknamed the “Hague Invasion Act,” which authorizes the U.S. to use “all means necessary” to liberate U.S. citizens or officials from the Court’s jurisdiction if necessary  (Feinstein & Lindberg 51).  The U.S. also signed over 100 bilateral Article 98 agreeements with other nations, mainly to protect U.S. military and other government officials from being transferred into ICC custody while serving or travelling overseas (Scheffer & Cox 1001).

Although the U.S. has reassessed its hostility to the Court, taking part in the June 2010 ICC Review Conference in Kampala, Uganda, and removing some military financing and education training restrictions from ASPA that were costing some Latin American nations millions of dollars in military aid (Feinstein & Lindberg 51-53), the government remains concerned with the ICC’s many perceived flaws (Rapp).  Much of this skepticism has to do with the Court’s independence and broad level of authority and jurisdiction inherent in its structure.

Table of Contents

I.    History, Structure and Mandate of the ICC

A.  Background

B.  ICC Structure

C.  ICC Jurisdiction

II.   General Objections to the ICC

A.  No Checks and Balances

B.  Dangers to National Sovereignty

C.  Political Manipulation

D.  Lack of Judicial Neutrality

E.  Vulnerability of Military Personnel

F.  Inferiority to Local Institutions

G.  Delayed Justice

H.  Ineffectiveness

III.  Conceptual Challenges to the Court

A.  Legitimacy

B.  Consent

C.  Relevance

D.  Maintaining Neutrality and Impartiality

E.  Criminal Law as a Substitute for Self-Help

F.  Peace vs. Justice

IV.  Challenges to the UN Security Council

V.   Jurisdictional Issues

A.  Delegated Jurisdiction

B.  Territorial Jurisdiction

C.  Universal Jurisdiction

VI.   Prosecuting the Crime of Aggression

A.  Pursuing Clarity

B.. Unanswered Questions

VII.   Constructive Cooperation

VIII.  Conclusions