The Model of the International Criminal Court Essay


The ICC is a permanent, independent court with the mandate to of very serious crimes of global concern, namely war crimes, crimes against humanity, and genocide. The basis of this court is a treaty by 108 countries (18th July 2008). The breakdown indicates thirty African states, fourteen Asian, sixteen from Eastern Europe twenty-three from the Caribbean and Latin America, and twenty-five from the Western part of Europe as well as other states. Nevertheless, cases are forwarded to the ICC only as a last resort. Thus it will not exercise its authority in cases either prosecuted or investigated by any national judicial process unless the proceedings instituted are not just and genuine. The ICC observes only the highest fairness standards as well as due process. The basis of the functioning and jurisdiction of the ICC is the Rome Statute.

The Position of the United States

To a discernible extent, the US feels threatened, yet as stated above, the Rome Statute wholly protects self-policing and self-regulation in a mature democracy. Time and again, the government of the United States has opposed an international judicial system that could subject the US political and military leaders to a global, uniform justice standard. This is reminiscent of the negotiations between the ICC treaty and the Clinton administration fighting for Security Council case screening. The adoption of this clause would have allowed the United States to veto dockets it was against. When other nations disagreed with this unequal judicial standard, the United States began a campaign to weaken as well as undermine the ICC. The Bush administration then stepped up its discontent with very strong opposition. Negotiation of bilateral agreements between Washington and other countries began, to secure immunity to US nationals when taken to the ICC. As leverage, the US administration threatened to terminate economic aid, along with the withdrawal of its significant military assistance. The painful fact is that these exclusionary and painful measures endanger the , seriously weakening its effectiveness and credibility.

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By extension, the United States seems to exempt itself from rules it believes must apply to other nations. The clamor for special status seriously undermines the principle of rule of law as one, a principled normative structure that binds all. Worse still, it undermines the intense international effort carried through from the last few decades to subject the application of force to the rule of law. The irony of the matter is that in comparison to other modern states, the United States has considered itself as not only constituted by but also committed to the rule of law. (Kahn, 2003).

Defenders of this position argue that no country pours resources into defense structures the way the US does. The US funds its military for use as a national instrument policy. The cases of Kosovo, Iraq, and Afghanistan depict this. Naturally, with the deployment of armies, follows large-scale aggression charges as well as humanitarian law violations. This resonates with the argument on political psychology. The US suffers from some form of political paranoia or said differently, a latent inclination to xenophobia. The view here is that opposition is essentially the product of right-wing hallucinations and solutions to problems relating to the Old World have no bearing on American life.

The United States is facing a symbolic threat, rather than a practical one. If the US were really against the Court, withdrawing its consent would have made a greater statement. In any case, an agreement to the treaty does not translate to a state giving up its need or capacity to exercise future political judgment. The symbolism of the International Criminal Court displaces the link between rule of law and popular sovereignty. It replaces it with the notion of law based on universal perceptions of reason. (Chayes and Chayes, 2005).

When it comes to funding, complete reliance on a single party is detrimental to the sense of equity. As discussed elsewhere in this paper, withdrawal of funds from the US spells doom for the Court. Otherworld leaders must play a part in the sustenance of this institution. Support goes across the board from funding, investigation, advice, and posting technocrats to the relevant position in the court. This would give a stronger sense of ownership and accountability to the countries involved. With the reality of globalization, national politics may take a backseat, giving rise to that support trade, capital, information, productive capacities, culture, and even the flow of population.

Experience suggests that in areas of exhaustion and frustration with politics, there is a strong appeal to the idea of universal rule, premised on reason. (Koskenniemi, 2002). The European Union employs this mode of thinking, doing away with faith in peoples trans-historical myths. Through this, its structures are sustainable, even though there are a few rough edges. Reason produces a rule of law that is framed by a thorough understanding and knowledge of justice as well as administrative expertise. The ICC strongly embodies this ideal. That said, faith in reason is no substitute for political ideology but another political position. This is what goes against collective American sentiment, giving the nation its opposition to the ICC. (Kahn 2003) In essence, herein lies the USs dispute against the Rome Statute.

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The real debate seems to be a law against politics. Politics is indeed the genesis of the problems the ICC is to adjudicate. The United States has the means and the machinery, not only to fund the ICC but also to conduct any necessary changes to the existing structures via extensive research. After all, the United States has reputable justice institutions that the ICC can use as models for its development. The reality that most countries either forget or fail to see is that in no case will the ICC be stronger than the commitment of the countries involved to stick to the treaty.

For countries that lack solid institutions to deal with the caliber of crimes discussed, the ICC is vital. Apart from bringing the perpetrators to book, it gives nations a sense of closure and in some instances, the victims get some form of compensation. The US should actively participate in the sponsorship of the International Criminal Court, but as pointed out earlier, one of a large pool of partners.

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