Why do you believe the United States has decided against submitting to the international criminal court’s jurisdiction?
What is the International Criminal Court?
The International Criminal Court (ICC) is an intergovernmental organization and international tribunal that “investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity, and the crime of aggression.”
What Is the Purpose of the ICC?
While the ICC is not without its shortcomings, it introduces global accountability and strives to achieve justice for victims in situations where domestic courts cannot do so.
The ICC strives to uphold the promise of universal justice by investigating, prosecuting, and trying individuals accused of the most serious crimes of concern to the international community on condition that the crime(s) occurred after the Rome Statute took effect in 2002.
The ICC and the United States
Not only has the United States decided against submitting to the International Criminal Court (ICC), but national leaders have vocally opposed the ICC. Perhaps the most poignant reason is the perceived threat the ICC presents to the state's sovereignty (BBC News, 2018), as the ICC asserts itself when a state refuses (or fails) to use the domestic criminal justice system to bring justice to the perpetrator(s) of egregious crimes.
There is also the concern of the US military becoming vulnerable to prosecution for war crimes worldwide, possibly as the target of politically-motivated attacks (Krcmaric, 2022). The effectiveness, efficiency, and reliability of the ICC have also been the topic of criticism, often without considering the significant challenges that the ICC faces, which includes a difficult relationship with the world’s great powers, such as the United States and Russia.
I disagree with the United States’ decision, which can be considered short-sighted and aggressive. For example, the United States has threatened tough action against the ICC if it attempts to prosecute Americans for alleged war crimes in Afghanistan (BBC News, 2018).
In another example, Donald Trump’s attack on the ICC highlighted his contempt for the global rule of law (Evenson, 2020). As a former powerful leader, this sends a very dangerous message.
The United State’s disregard for the ICC does not appear to focus on the alleged lack of efficiency or results but on self-preservation. This siloed approach to global justice is concerning and seemingly unfounded, especially considering that the ICC is a last resort for crimes that can not (or will not) be addressed in domestic courts.
The Need for State Collaboration
Without a police force or army, the ICC relies on state cooperation to detain alleged perpetrators. Essentially, this means that the United States still has control over managing criminal allegations before it is presented to the ICC unless an extradition treaty muddies the waters (IntlCriminalCourt, 2021).
Legally, the ICC’s jurisdiction limits its power. The intergovernmental organization does not develop new international law but only seeks to consolidate established rules of customary international law that cover crimes against humanity, genocide, war crimes, and crimes against humanity (Schloenhardt, 2005).
The ICC process involves lengthy and thorough investigations. When an alleged perpetrator is summoned, there is surmountable evidence and a strong belief that they have committed a crime that shocks the conscience of humanity (IntlCriminalCourt, 2021). If finding justice for egregious crimes is considered a threat, then it suggests something sinister at play. As Schoenhardt continues to point out, countries are quicker to put their sovereignty ahead of criminal justice (2005).
Even with the processes mentioned above and safeguards, it’s not uncommon for powerful international and intergovernmental organizations to be accused of threatening a state's sovereignty. For example, legal scholars tend to view Interpol’s increasing cooperation in police matters as an assault on the sovereignty of states (Calcara, 2021). Unfortunately, the misuse and abuse of tools and processes is an unavoidable risk to global cooperation — but what is the alternative aside from improved accountability?
A Step Toward Global Justice?
Collaboration and solutions are key to managing global problems, and trust and accountability are needed to ensure smooth processes. The ICC is tackling a mammoth task, and there are bound to be teething issues along the way.
However, systems of accountability and fairness are incorporated within the organization. Consider Ohansen’s description of the ICC’s use of its direct, physical power with the Detention Center, which prioritizes different channels for accessibility, participation, and neutrality (2020). The United States’ aggressive opposition to the ICC appears to be founded in an attempt to avoid responsibility for alleged war crimes and hold onto power when it best suits them.
- BBC News. (2018, October 3). Why is the International Criminal Court under attack? - BBC News. [Video]. YouTube. https://youtu.be/CxfHYjg6MOU
- Calcara, G. (2021). Balancing International Police Cooperation: INTERPOL and the Undesirable Trade-off Between Rights of Individuals and Global Security. Liverpool Law Review, 42(2), 111-142.
- Evenson, E. (2020, October 28). Donald Trump's attack on the ICC shows his contempt for the global rule of law. Human Rights Watch. Retrieved March 5, 2023, from https://www.hrw.org/news/2020/07/06/donald-trumps-attack-icc-shows-his-contempt-global-rule-law
- IntlCriminalCourt. (2021, January 27). The ICC Process. [Video]. YouTube. https://youtu.be/ydtgSB9jROw.
- Krcmaric, D. (2022, May 16). Does the International Criminal Court target the American military?: American Political Science Review. Cambridge Core. Retrieved March 5, 2023, from https://www.cambridge.org/core/journals/american-political-science-review/article/does-the-international-criminal-court-target-the-american-military/C05172E34444A01BFEC7BD09436D2B9D
- Ohansen, S. (2020). Case Study: The ICC Detention Centre. In The Human Rights Accountability Mechanisms of International Organizations (pp. 232-284). Cambridge: Cambridge University Press.
- Schloenhardt, A. (2005). Transnational organized crime and the International Criminal Court developments and debates. University of Queensland Law Journal, 24(1), 93-122.