The International Criminal Court or ICC is an organization that is supposed to investigate the crimes against humanity, such as genocide Its authority extends to those cases that have not been tried by national courts due to some reasons. Currently, 121 countries recognize the ICC as an international institution that has any authority to prosecute individuals for crimes against humanity (Schabas, 2011, p. 23). Yet, the United States is not among them. This paper will discuss the attitude of American policy-makers toward the ICC. In particular, it is vital to discuss the jurisdiction that it has in the country or over its citizens. Overall, one can argue that the United States can recognize the authority of the ICC, provided that this organization guarantees that the U.S nationals will have the rights that are offered by American courts. This step will reinforce the idea that the government of the United States is willing to protect human rights and prosecute those individuals who violate them.
At the very beginning, American policy-makers have been reluctant to work with the International Criminal Court. During the Bush administration, the government refused to sign or ratify the Rome Statute which is the treaty that gives authority to the ICC (Hamilton, 2008, p. 24). One of the main arguments was that this institution could affect the international policies of the country and that the ICC could be prejudiced against the country (Hamilton, 2008, p. 24). Apart from that, the ICC was criticized for not guaranteeing the rights of defendants, such as the right to a jury trial which is an important component of the U.S. legal system (Pati, 2009, p. 155). The ICC provisions were for lack of due process. The government even adopted legislation that protected American military personnel from the possible persecution by the ICC. In particular, one can speak about the American Service-Members’ Protection Action known as the ASPA. This legal act prohibits the extradition of U.S citizens to the ICC (Hamilton, 2008, p. 24). Moreover, this bill implies that the government should support those countries which shield American citizens from the ICC. Certainly, there are cases, when the ICC may have an opportunity to conduct a trial over an American national or national, especially when he/she is extradited by another country that has ratified the Rome Statute. Yet, one should take into account that the government of the United States has signed various treaties that oblige other countries to render U.S national to American authorities, rather than the ICC. Therefore, one can say that the jurisdiction of the International Criminal Court is very limited in the United States.
During the time of the Obama administration, the attitude toward this organization changed. In particular, a greater number of political leaders expressed the support for their efforts of the ICC to prosecute war criminals (Padmanabhan, 2010, p. 3). Nevertheless, the Rome Statute was not even considered by the U.S. Senate. This change of attitude did not actually result in the ratification of this international agreement. Thus, the question arises whether the country should acknowledge the authority of this international institution since this question continues to be debated by American politicians and legal scholars.
Overall, it is possible to argue that the jurisdiction of the ICC should be increased in the United States. The thing is that the government of the country is often very vocal about the protection of human rights. Moreover, the political leaders of the nation often condemn the states that violate the rights of their citizens or commit the crimes against humanity. To some degree, it acts as a global arbiter that attempts to instill democratic values in other countries. However, the refusal to cooperate with the ICC can mean that the country is not willing to bring international criminals to justice. This attitude toward the ICC can eventually undermine the international authority of the United States. The political leaders of other states can point out the United States does not have a right to intrude into the policies of other sovereign countries provided that it does not recognize the authority of the ICC and does not want to prosecute American military officials who may be guilty of war crimes. Therefore, the impartiality and integrity of the U.S. foreign policies can be questioned by other states. This is the danger that should not be overlooked.
Apart from that, one should note that this police can create a negative precedent. The problem is that other states some of which may be totalitarian can also guard themselves against the authority of the International Criminal Court. They may refuse to ratify the Rome Statute and sign a network of treaties that protect possible war criminals from the trial in the International Criminal Court. Again, it will be very difficult to condemn them because they may refer to the United States as a country that pursues similar policies. Therefore, the very idea of an international law may be dismissed. This is another point that should be taken into account by American policy-makers.
Another important issue that should be discussed is the alleged lack of due process in the International Criminal Court. The supporters of this organization believe that the Rome Statute incorporates a variety of safeguards that are supposed to eliminate the risk of a biased trial or investigation (Pati, 2009, p. 155). Besides, they point out that American soldiers do not have an opportunity to be tried by a civil jury (Pati, 2009, p. 155). Nevertheless, this problem is still a very serious one because the absence of jury trials can undermine the very idea of an impartial trial. It is not quite clear how this institution can remain unbiased against the defendants. This is the main risk that the International Criminal Court should consider. They have to make sure that those people, who may be accused of war crimes, are tried according to the highest democratic standards. In this way, they can prompt many states to join the Rome statute. These are the steps that this institution should take.
Overall, this discussion suggests that the disagreement existing between the United States and the ICC can be effectively solved. First, this organization will have to recognize and eliminate the limitation of its rules, in particular, the absence of jury trials. In turn, American government that tries to act as an international arbiter will have to accept the notion of international justice. Provided that this compromise is not reached, the reputation of both sides can suffer. In contrast, the partnership of the U.S. government and the ICC can be essential for prosecuting the crimes against humanity.
References
Hamilton, D. (2008). The United States: A Normative Power? London: CEPS.
Padmanabhan, V. (2010). From Rome to Kampala: The U. S. Approach to the 2010 International Criminal Court Review Conference. Washington: Council on Foreign Relations.
Pati, R. (2009). Due Process and International Terrorism. New York: Martinus Nijhoff Publishers.
Schabas, W. (2011). An Introduction to the International Criminal Court. Cambridge: Cambridge University Press.