The International “Court of Last Resort”

On July 23 the Washington Working Group on the International Criminal Court (WICC) held a congressional briefing titled The International Criminal Court (ICC): Victories, Challenges and Opportunities. Estonian Diplomat Tiina Intelmann and American University Professor Diane Orentlicher hosted the event and did a phenomenal job explaining the work of the ICC and its relationship with the United States.

Intelmann is Estonia’s ambassador to Israel, ambassador-at-large for the ICC, and is the president of the Assembly of States Parties to the Rome Statute of the ICC, working with states and stakeholders around the world to promote and support the International Criminal Court. Professor Orentlicher teaches International Law and is an expert on human rights law and war crimes tribunals due to her extensive involvement with the ICC, the United Nations, and U.S. Department of State.

The idea for an international court was introduced as early as 1919, but the UN first recognized the true need for one after the inhumane crimes committed during World War II. Creation of the ICC was suspended around 1950 due to the Cold War, which had generated an unpredictable political landscape potentially hostile to an international court. Eventually, and after nine years of planning, on July 17, 1998, the Rome Statute of the International Criminal Court was adopted by the United Nations. There are currently 122 countries that have adopted the treaty—unfortunately, the United States is not one of them. Although we signed onto it in 2000, two years later John Bolton informed the UN Secretary General that the United States did not intend to become a state party to the ICC.

Considered a “court of last resort,” the ICC encourages countries to first investigate alleged crimes on their own. If these countries are unwilling or unable, the UN Security Council may or may not refer the cases to the ICC. There are strict guidelines and definitions for the types of crimes the court will look at, and rather than holding states accountable, the court tries individuals for the most heinous of crimes, namely genocide, war crimes, and crimes against humanity. Members of the ICC will vote in 2017 to also try the crime of aggression, defined as “the planning, preparation, initiation or execution of an act of using armed force by a state against the sovereignty, territorial integrity or political independence of another state.”

At this moment, the United States is unable to give any funds to the ICC, although the relationship between the two is better now than it was during the Bush administration. According to Intelmann, U.S. leadership made the decision early on to refrain from adopting the treaty because they didn’t want to be “bound by the ICC”—which many infer to mean the U.S. doesn’t want a magnifying glass raised on its actions around the world. According to Professor Orentlicher, the United States does want to see the ICC succeed, but hasn’t made steps to adopt the treaty.

This all struck me as odd and I rolled my eyes, thinking, “That’s the good old USA for you.” There may be several reasons for U.S. cold feet with regards to adopting the treaty, but to me there aren’t any good ones. I’m certain that in our history, this country has committed crimes against humanity that would fall under ICC jurisdiction, but what scares me the most is that U.S. leadership believes it should be above reproach. This is especially troublesome for anyone who holds the rights of other human beings in high regard.

Presently, the ICC is dealing with several cases spread throughout Africa. The top five members of the Lord’s Resistance Army (LRA) in Uganda, for example, have had arrest warrants issued by the ICC. In the Democratic Republic of the Congo, leaders have been arrested for crimes against humanity such as systematic rape and murder, while many more have yet to be issued arrest warrants. There is a case scheduled to be opened for trial regarding Darfur, Sudan, and the UN Security Council unanimously decided to refer the situation in Libya to the ICC, which issued three arrest warrants for Muammar Gaddafi (deceased), Saif al-Islam Gaddafi, and Abdullah al-Senussi for crimes against humanity (murder and persecution). Alleged crimes committed in Mali have been referred to the court and assigned to Pre-Trial Chamber II.

A consistent question asked during the briefing concerned Russia and Ukraine, neither of whom ever adopted the ICC treaty, which limits the power of the ICC in those countries. The ICC looks to the United States and other European countries for help in such cases, but funding is already lacking, which makes it all the more difficult to arrest criminals and bring them to trial.

Intelmann ended the briefing explaining that “every time is the court’s first time,” meaning that every case is uncharted territory and they have their work cut out for them. Hopefully the United States will continue to work with the ICC and do what it can as a world leader to help the court achieve its goals and ensure a safer, more humane world.