James W. Pfister
The human rights tragedy in Ukraine has directed our attention to the International Criminal Court (herein ICC) with the hope of eventual justice for Putin and other Russians. International law normally deals with states, not with individuals per se. An exception is human rights, as they have developed after World War II with the Nuremburg and Tokyo war crimes tribunals. Along with human rights is the penetration of sovereignty of the state in the human rights inquiry. In the 1990s, the United Nations Security Council created war crimes courts regarding human rights crimes in the former Yugoslavia and Rwanda.
With the above courts, the United States retained its veto, first with the Allied powers and then within the Security Council. With the founding of the ICC in 1998, however, we lost our veto. In the negotiations to create the ICC in Rome, the states would not agree to a United States veto. We voted against the ICC (one of seven to do so).
We have harassed the ICC ever since. Even though President Bill Clinton signed the ICC statute, he did not submit it to the Senate for ratification. President George W. Bush withdrew that signing and worked to “persuade” about 100 states to conclude “Article 98” agreements where, in effect, a state would not turn over an American national to ICC jurisdiction without our consent. Then there was the Servicemembers’ Protection Act that barred cooperation with the ICC and foreign aid to states that failed to sign said Article 98 agreements. It even said the United States would take “necessary and appropriate action” to free Americans held in ICC custody; wags called this the “Hague Invasion Act.” (The Hague, Netherlands, is the seat of the ICC). You can just imagine how President Donald Trump treated the ICC; America first, don’t you know. President Joe Biden lifted Trump sanctions and visa restrictions, but still does not recognize ICC jurisdiction.
Will the United States act like a normal state in international law and not require special treatment by retaining its veto? We say we have more exposure than other states with armed forces all over the world and that we do not trust the ICC prosecutors. But, to lead in human rights we cannot expect to hold ourselves immune, to violate the principle of sovereign equality in international law. To advance human rights in the world, we must advance the international court that deals with the most important issues: genocide, crimes against humanity, war crimes and aggression. It is hypocrisy to advocate human rights and criticize others but escape scrutiny ourselves. We cannot with credibility lead in human rights but be unwilling to go to court ourselves.
We should recognize the jurisdictional authority of the ICC based on the principle of complementarity. This means the ICC would be the court of last resort. National courts would carry out the cases when they are able and willing to do so, according to Article 17 of the ICC statute. This is similar to the principle of subsidiarity in European Union law, that holds issues should be dealt with at the most immediate, local level when they can be. The preamble of the ICC statute states: “the Criminal Court established under this Statute shall be complementary to national criminal jurisdiction.” Article 1 says that the Court shall, “…exercise its jurisdiction over persons … and shall be complementary to national criminal jurisdictions.”
This means that if an American national is accused, he would normally be tried in an American court, if we join the ICC. As Oona Hathaway, Yale Law School, wrote: “To repair its image, the United States should, in future conflicts, be more transparent and aggressive about its own investigations into alleged crimes by its military personnel…” (Oona Hathaway, “The U.S. finally sees the point of the International Criminal Court,” The Washington Post, April 13, 2022).
The ICC statute contains a body of substantive criminal law in the war crimes area and a nice model of states of mind and defenses. It is stabilizing to have world agreement on criminal law basics as we move to a more integrated world of sovereign equality beyond the veto.
James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at [email protected].