The International Criminal Court
Why We Need It, How We Got It, Our Concern About It
Unavailable for order. Please Download Digital Copy.
Review This Book
I have been following the establishment of the permanent International Criminal Court (ICC) as called for in the Treaty of Rome since I first began teaching an elective, Morality and War: Implications for the War Fighter, here at the Air Command and Staff College (ACSC) in January 2000. I have found the process to be quite interesting. Almost from the beginning, my thoughts harkened back to what I believe Winston Churchill was warning us about the future. As I remember it, his words were something like, “Be ever mindful of the ghost of Nuremberg coming back to haunt us.” This notion haunts us today. According to author Bradley Smith, it was at America’s insistence that the victorious Allies conducted the trials at Nuremberg and in the Pacific as well. Stalin, who realized the value of “show” courts, was enthusiastic. Churchill was less so, fearing the implications, and Charles de Gaulle, well de Gaulle was de Gaulle. The Germans never accepted the results as legitimate. Since the conclusion of those trials over 50 years ago, the United States has been at the forefront, leading the fight for a permanent criminal tribunal, only to end up opposed to one when the details were penned to paper. It always is in the details, isn’t it? The Plenipotentiaries convened in Rome from 15 June until 17 July 1998 to negotiate and draft what became the Treaty of Rome, establishing the permanent ICC. The participants included 160 states, 33 intergovernmental organizations, and 236 nongovernmental organizations. When all was said and done, there were 120 states voting in favor of the treaty, seven against it, and 21 abstentions. There is no record about the 22 other states in attendance. Interestingly, the United States, which had been pushing for a permanent court, and which was instrumental in establishing the Criminal Tribunals for Yugoslavia and Rwanda, voted against the treaty. However, America’s allies—the French, British, and Russians—voted for the treaty on the last day of the conference. One of Pres. William “Bill” Clinton’s final official acts before leaving office was to sign the Treaty of Rome on behalf of the United States. But affixing his signature to the treaty only tended to add fuel to those who criticized his administration. However, in this instance, he did the right thing because if he had not signed the treaty, the United States would not have been allowed to participate in the rest of the formulation process— the details, if you will, of how the court functions. On 6 May 2002, Pres. George W. Bush announced that the United States withdrew its signatory status to the Treaty of Rome. Maj Steven D. Dubriske’s paper explains the nuances of the treaty quite well. This paper won the 2003 ACSC Commandant’s Award for Research Excellence. For quite some time now, Lt Col Tomislav Ruby and I have had some serious reservations about the ICC. We noted early on that many of the legal rights, we, as Americans, enjoy would be swept away by the court. For example, once selected, the prosecutor is not accountable to anyone. Also, if a defendant is found not guilty, the prosecutor can appeal the not guilty verdict. Finally, even though the defendant’s country has the right of first refusal, if the prosecutor does not like the verdict, he or she can haul the person before the ICC under the guise that the national court proceedings were a dodge. We were further concerned because we thought it not only possible, but quite likely, that an American would be brought before the court for political reasons. Although, later withdrawn, a complaint to try Gen Tommy Franks before a Belgian court for war crimes in Iraq was filed. Even so, the incident does, in my opinion, validate our concerns. In the future, if a similar complaint were filed with the ICC would it also be withdrawn? Hmmm. Thus, on our way home from a conference at the Army War College in April 2002, we began putting our thoughts down on paper. The third essay is the result of that discussion. Admittedly, the genre we selected was fiction all save a couple of the specific examples that actually occurred during Operation Allied Force. That essay is a well-researched and appropriately documented academic article. This article was recently adopted by the Georgetown University Institute for the Study of Diplomacy (GUISD) as a case study for graduate students studying International Relations and Diplomacy and for law students specializing in International and Human Rights Law. During the month of June 2002, I began developing my research topics for the Resident Program here at ACSC. I wrote one research topic focusing on the Treaty of Rome and the ICC. During the research open season, I had two students who showed an interest in the topic. Their essays constitute the first two in this anthology. Maj David Hater’s approach was to look at the history of war crimes that led up to the Treaty of Rome. As I mentioned previously, Major Dubriske discusses the specifics of the treaty as it stands today. There is a strong argument to be made for establishing a permanent criminal court to bring to justice individuals responsible for specific, well-defined violations of the rules and customs of war—genocide, crimes against humanity, war crimes (violation of the Hague and Geneva Conventions, etc.). Prof. Rudi Rummel, in his book, Death by Government, states that in the twentieth century over 170 million civilians have been victims of the aforementioned crimes. This should be appalling to everyone, and there ought to be an international forum of accountability for the perpetrators of such crimes. In my opinion, the ICC, as currently constituted, is not that forum for all the reasons cited. I want to take this opportunity to acknowledge several people who have made this anthology possible. I want to thank Dr. Shirley Laseter, director of Air University Library and Air University Press, for her kind assistance in the publication of this anthology. I also owe a special debt of gratitude to Mr. Darrell Phillips, chief, International and Operations Law Division, and Capt Shelly Schools, instructor, Military Justice Division, both of whom serve at the Air Force Judge Advocate General School, Maxwell Air Force Base, Alabama. They guided me in tying the loose ends together. Several international law specialists had reviewed the third essay and criticized those parts that were not precise. Mr. Phillips and Captain Schools helped me correct those legal imprecisions, and for that I am truly grateful. It is my hope that these three essays provide the reader with a better and more comprehensive understanding of the ICC, its development, and the reasons all Americans should be concerned. For the non-American reader, I hope that these essays provide a well-articulated explanation of our concerns about the ICC.
The author retains copyright on this material. It may not be reproduced without approval from the author.