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American Opposition to the International Criminal Court: A Failure of Unilateralism.

American Opposition to the International Criminal Court: A Failure of Unilateralism.

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An analysis of US opposition to the International Criminal Court. Looks at Bush administration's efforts to avoid and undermine the ICC. The influence of domestic policy considerations, the situation in Sudan and future developments are also considered.
This essay was submitted 30th Nov 2007 and has not been updated to consider Barrack Obama's election, as yet.
An analysis of US opposition to the International Criminal Court. Looks at Bush administration's efforts to avoid and undermine the ICC. The influence of domestic policy considerations, the situation in Sudan and future developments are also considered.
This essay was submitted 30th Nov 2007 and has not been updated to consider Barrack Obama's election, as yet.

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Published by: Undergraduate Awards on Sep 01, 2012
Copyright:Attribution Non-commercial

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12/05/2014

 
John Quinn06760911 30
th
Nov 2007
American Opposition to the ICC:A Failure of Unilateralism
The year 2007 marks the nine-year anniversary of the signing of the Rome Statute andfive years since the establishment under Article 26 of the Statute of the InternationalCriminal Court.
1
In March 2008 the ICC will undertake its first trial after a process of negotiations and diplomatic diligence that can be said to have begun with theestablishment of the United Nations itself. Following World War II the world sworethat never again would states or individuals be subject to such open and terrifyingviolations of Human Rights. The Nuremberg Criminal Tribunal of Nazi perpetratorsof the holocaust saw individuals been prosecuted by an international tribunal for war crimes and crimes against humanity, for the first time. The allies in the Far East heldsimilar tribunals. However, though heinous and without question barbaric the crimes being prosecuted were, the post war tribunals were very much a case of the winners of the war prosecuting the losers. Following this there has been a return in recent timesto the international tribunal approach. The establishment of the international tribunalsfollowing grave human rights abuses in the former Yugoslavia, Rwanda and SierraLeone has re-energised the push for the establishment of an international body withcriminal jurisdiction over those
individuals
responsible for the gravest crimes againsthumanity.During the nineties there was a massive drive spearheaded by the UN GeneralAssembly to establish such a court. One of the principal documents and one that ismuch discussed with regard to the ICC was the International Law Commission’s draft
1
Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court on 17
th
July 1998 in Rome. Rome Statute of the International CriminalCourt, UN DOC. A/CONF.183/9 (Hereinafter referred to as the Rome Statute.
Page 1 of 14
 
John Quinn06760911 30
th
Nov 2007statute of an international criminal court, which was presented to the GeneralAssembly after a five year drafting process.
2
While International opinion is very much in favour of promoting human rightscertain states have refused to ratify the Rome Statute and become party to the ICC.Currently, by far the most vocal and proactive opponent of the ICC is the UnitedStates, a country that has been a strong supporter of international tribunals in the past.The ‘party line’ according to the Bush administration is that the ICC presents the possibility of US citizens and, perhaps more importantly, US military personnel maycome under the jurisdiction of a war crimes court as part of some kind of clandestine plot against US interests and international credibility. This essay will present ananalysis of US opposition to the ICC and what the US have done to undermine thecourt’s authority. It will also endeavour to show that US paranoia regarding the legalramifications of the ICC is completely unwarranted and that, whether the USgovernment likes it or not, the international community has embraced the ICC as oneof the central pillars of international criminal law. US policy on the ICC hasadmittedly softened particularly with regard to the situation in Darfur, which manyview as the first proving ground for the ICC. Though the US continue to pursue ananti-ICC policy, it may be contended that the US will have to soon come out of thecold and join the rest of the international community in eradicating crimes againsthumanity and impunity.
I.What are they Afraid of?
2
Crawford, ‘The ILC’s Draft Statute for the International Criminal Tribunal’, (1994) 88
American Journal of International Law
140; Report of the International Law Commission on the Work of itsForty-Sixth Session, 2 May-22 July 1994 UN DOC. A/49/10. This report was pursuant to UN GeneralAssembly Resolution 44/89.
Page 2 of 14
 
John Quinn06760911 30
th
Nov 2007The US Secretary for Defence, Donald Rumsfeld, issued a statement in May 2002
3
when it became clear that the ICC was about to be established.
4
The previousadministration, under President Bill Clinton, had in fact signed on the evening of the31
st
December 2000.
5
The US had expressed reservations during the negotiations particularly regarding the powers of the prosecutor and what they saw as a kind of universal jurisdiction. It was believed at the time by US chief negotiator and UNambassador, David Scheffer, that the US could reform the ICC from the inside.
6
Scheffer continues to campaign in favour of the ICC and has called on the USgovernment to ratify the Rome Statute, rather than pursue what he calls a ‘policy of destructive disengagement’.
7
The Bush administration, or the US Congress for thatmatter, did not share this view. Secretary Rumsfeld’s May 2002 statement states theclear objectives of the policy at the time. The following gives a list of US grievancesas enunciated by Secretary Rumsfeld:‘The ICC’s entry into force on July 1
st
means that our men and women inuniform – as well as current and future U.S. officials – could be at risk of  prosecution by the ICC. We intend to make clear, in several ways, that theUnited States rejects the jurisdictional claims of the ICC. The Unites Stateswill regard as illegitimate any attempt by the court or state parties to the treatyto assert the ICC’s jurisdiction over US citizens.The U.S. has a number of serious objections to the ICC – among them, thelack of adequate checks and balances on powers of the ICC prosecutors and judges; the dilution of the U.N. Security Council’s authority over internationalcriminal prosecutions; and the lack of an effective mechanism to prevent politicized prosecutions of American service members and officials.’
8
3
Secretary Rumsfeld Statement on the ICC Treaty, 6
th
May 2002, DOD Press Release No. 233-02,www.defencelink.mil/releases.aspx 
4
The Rome Statute came into effect on 1
st
July 2002 under Rome Statute Art 126(1). This provisionstates that the Statute will enter into force on the first day of the month after 60 countries have ratifiedthe treaty. www.icc-cpi.intis the official website of the ICC.
5
Schabas,
 An Introduction to the International Criminal Court 
, 2
nd
Ed. (Cambridge, 2004) p.21
6
Scheffer, ‘Staying the Course with the International Criminal Court’, (2002) 35
Cornell International  Law Journal 
47. This article outlines the former ambassador’s arguments in favour of US ratification.See also: Scheffer, ‘ICC and a Compromise that could Lessen Fears for Impunity for US’
 Financial Times, Europe Edition
, 15
th
June 2004, p.16; Scheffer, ‘Should the United States join the InternationalCriminal Court’, (2002) 9
University of California, Davis Journal of International Law and Policy
45.
7
Scheffer, ‘How to Turn the Tide Using Rome Statute’s Temporal Jurisdiction’, (2004) 2
 Journal of  International Criminal Justice
26 at 26.
8
Rumsfeld Statement
 supra
note 3.
Page 3 of 14

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