The International Criminal Court:|
Questions and Answers about the ICC and the United States
What is the International Criminal Court (ICC)?
A permanent international criminal tribunal that will try individuals responsible for the most serious international crimes: war crimes, crimes against humanity (torture, enforced disappearance, rape) and genocide.
Why was the ICC created?
After a century that witnessed the Holocaust, Pol Pot's mass slaughter in Cambodia, genocide in Rwanda, ethnic cleansing in the Balkans, and countless other terrible crimes against civilians, nations came together to create a court where victims of future crimes could find some measure of justice. If leaders know there is a place where they can be held accountable for such atrocities, they may be less likely to commit them.
Isn't the Court still years away from getting set up?
No, preparations are well underway to set up the Court. The triggering event was the 60th ratification of the ICC Treaty, which is the treaty that will govern the Court. As of May 14, 2003, 90 countries have ratified the statute. The tribunal came into force on July 1, 2002.
Will the United States be a leader in the creation of this Court?
No, despite U.S. President Bill Clinton's signing of the treaty, the United States does not now support the Court. In fact, along with Turkey, it is the only NATO member that is not expected to join the Court and the only democratic country in the world that actively opposes it.
If the U.S. is against it, doesn't it have good reason to be?
Many of the stated U.S. objections are simply not based on the facts. (Please see ICC: Myths & Facts). Other U.S. objections reflect a fear that the Court will be used politically against U.S. citizens. A close look at the safeguards and the checks and balances in the treaty make clear that the Court will be fair and impartial. Moreover, the ICC won't even be able to investigate cases involving U.S. nationals if the U.S. itself investigates and, if appropriate, prosecutes the individual responsible.
But what about cases that the U.S. might not have investigated, say, from Vietnam?
The ICC can't take cases from the past. Its jurisdiction began on July 1, 2002 when the ICC Treaty entered into force.
So Kissinger can't be tried?
What about future American presidents or policy makers?
There may be people who would want to bring a politically motivated case against a U.S. leader, but they're not likely to make the ICC their instrument. The Court's Prosecutor won't even be able to begin an investigation against an American without the approval of a panel of judges. The judges and the prosecutor will know that if they abuse their authority, they can be removed by a simple vote of the ICC's member nations, which include virtually every U.S. ally. What's more, the United Nations Security Council can adopt a resolution to stop any ICC investigation - it's hard to imagine that a majority of its members would allow a frivolous case against a U.S. leader to go forward.
How do we know the ICC won't treat a U.S. service member unfairly?
No U.S. service member could be brought before the ICC so long as the United States launched a good faith investigation of its own, which it's committed to do as a matter of policy. But if an investigation were to happen, the ICC Treaty contains a list of rights enjoyed by any accused person that is as comprehensive as the U.S. Bill of Rights, including: presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; and right to have charges proved beyond a reasonable doubt. There is every reason to believe that trials before the Court will be fair. Indeed, an American citizen would enjoy more due process before the ICC than before the courts of most countries to which the United States extradites its citizens.
Will the ICC be able to work without the U.S.?
Yes. The Court enjoys the support of countries all over the world including all members of the EU and many politically important regional players. Human Rights Watch would certainly like the U.S. to join the Court, but the Court will begin its work, with or without the U.S..
Why should the U.S. change its view on the Court?
The ICC is potentially the most important human rights institution of the last 50 years. The continued opposition of the United States, a long-time champion of international justice, will cast a long shadow over America's credibility as a champion of human rights and justice worldwide. Even if the United States continues to have doubts about the Court, it will be better off working with its allies to address its concerns, rather than isolating itself from them.
Can't each country just be in charge of prosecuting crimes themselves?
The sad reality in many cases is no. Many times when atrocities have been committed, the justice system at the national level has failed to hold those responsible accountable. Once the ICC is set up, the Court will step in as a last resort only if a country's national courts fail to perform their duty to prosecute.
Who can be brought to trial before the ICC?
Any individual, regardless of his or her civilian or military status or official position can be brought to trial.
Who will be the judges and Prosecutor of the Court?
Judges will be elected from a list of nominees by parties to the Court. A U.S. national can't serve as a judge unless the U.S. ratifies the ICC Treaty.
How will the ICC protect victims and witnesses?
The ICC will have a Victims and Witnesses Unit designed especially to provide the necessary support and protection to victims and witnesses. The ICC Treaty contains comprehensive provisions for the protection of victims and witnesses participating in the work of the Court.
How is the ICC different from the International Court of Justice (World Court) and other existing international tribunals?
The International Court of Justice (ICJ or World Court) is an organ of the UN and hears disputes between states. The ICC will not be an organ of the UN and will try individuals only.
The existing ad-hoc tribunals, the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for Yugoslavia (ICTY) were created by the UN Security Council. Although they also try individuals for genocide, crimes against humanity and war crimes, their mandate is limited Ð in the case of the ICTY to the region of the Former Yugoslavia, and in the case of the ICTR to crimes committed in Rwanda between April and June 1994. Setting up such ad-hoc courts is expensive and time consuming and because they are established after the fact, they are often criticized as victor's justice.
Why is the ICC important?
The ICC will ensure that those who commit the most serious human rights crimes are punished even if national courts are unable or unwilling to do so. This will help promote lasting peace and security, enable members of communities victimized by these crimes to rebuild their lives and will send a resounding message to all would-be tyrants that their crimes will not go unpunished.