Annual Survey of International & Comparative Law Volume 9 | Issue 1 Article 3 2003 United States Objection to the International Criminal Court: A Paradox Of "Operation Enduring Freedom" Remigius Chibueze Follow this and additional works at: http://digitalcommons.law.ggu.edu/annlsurvey Part of the Criminal Law Commons, and the International Law Commons Recommended Citation Chibueze, Remigius (2003) "United States Objection to the International Criminal Court: A Paradox Of "Operation Enduring Freedom"," Annual Survey of International & Comparative Law: Vol. 9: Iss. 1, Article 3. Available at: http://digitalcommons.law.ggu.edu/annlsurvey/vol9/iss1/3 This Article is brought to you for free and open access by the Academic Journals at GGU Law Digital Commons. It has been accepted for inclusion in Annual Survey of International & Comparative Law by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. Chibueze: U.S. Objection to the ICC UNITED STATES OBJECTION TO THE INTERNATIONAL CRIMINAL COURT: A PARADOX OF "OPERATION ENDURING FREEDOM" REMIGIUS CHIBUEZE* I. INTRODUCTION One of the most historic events of the last century was the establishment of a permanent International Criminal Court (ICC) after almost five decades of failed efforts. I About 160 countries and a wide representation of nongovernmental organizations converged at the UN Diplomatic Conference of Plenipotentiaries (held in Rome, Italy, from June 15 to July 17, 1998) to finalize and adopt a statute to establish an international criminal court. 2 At the end of the conference, on July 17, 1998 members * Attorney-at-Law, San Francisco; Solicitor & Advocate of the Supreme Court of Nigeria; SJ.D. Candidate, LL.M. (expected May 2003) Intellectual Property Law, Golden Gate University School of Law, San Francisco; LL.M., University of Alberta, Canada; LL.B (Hons.), University of Benin, Nigeria. This Paper was initially presented at the Twelfth Annual Fulbright Symposium and the Eleventh Regional Meeting of the American Society of International Law on Thursday, March 28. 2002 at Golden Gate University School of Law. San Francisco. I. See CHERIF BASSIOUNI. THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A DOCUMENTARY HISTORY 3 (1998). where he noted that "since the end of World War I (1919). the world community has sought to establish a permanent international criminal court." 2. For a complete list of states and organizations represented at the Conference. see Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Coun, July 17, 1998, U.N. Doc. NCONF.183/1O, Annex II, ill (1998) [hereinafter Diplomatic Conference]. 19 Published by GGU Law Digital Commons, 2003 1 Annual Survey of International & Comparative Law, Vol. 9 [2003], Iss. 1, Art. 3 20 ANNUAL SURVEY OF INT'L & COMPo LAW [Vol. 9:1 of the diplomatic conference voted 120 to 7 in favor of adopting the Rome Statute of the International Criminal Court (ICC Statute).3 There has been tremendous success in the signing and ratification of the ICC Statute. To date, 139 countries have signed and 89 countries, encompassing countries from all regions of the globe, have ratified the statute,4 which took effect on July 1, 2002 after being ratified by more than 66 countries.5 This remarkable support for the ICC demonstrates the direction of a new world order and the recognition that international justice and the fight against impunity require the cooperation and consensus of nations. The Court will exercise complementary jurisdiction with national courts over individuals accused of committing egregious international crimes of genocide, war crimes, and crimes against humanity. 6 The ICC is a permanent adjudicatory institution for the crimes contained in the Genocide and the four Geneva Conventions, and related international instruments as particularized in the ICC Statute.7 The Court's jurisdiction over the crime of aggression is suspended until an acceptable definition is agreed upon by member states.s Terrorism and drug-related crimes were adopted into the text in an annexed resolution and will become part of the crimes under the Court's jurisdiction once it is defined at a review conference in the future. 3. The Rome Statute o/the International Criminal Court, U.N. Doc. AlCONF. 183/9 (July 17, 1998), reprinted in 37 I.L.M. 999 (1998) [hereinafter ICC Statute). 4. The countries that have ratified the Statute are: Afghanistan, Albania, Andorra, Antigua & Barbuda, Argentina, Australia, Austria, Barbados, Belgium, Belize, Benin, Bolivia, Bosnia­ Herzegovina, Botswana, Brazil, Bulgaria, Cambodia, Canada, Central African Republic, Colombia, Costa Rica, Croatia, Cyprus, Democratic Republic of Congo, Denmark, Djibouti, Dominica, Ecuador, Estonia, Fiji, Finland, France, Gabon, Gambia, Germany, Ghana, Greece, Honduras, Hungary, Iceland, Ireland, Italy, Jordan, Latvia, Lesotho, Liechtenstein, Luxembourg, Malawi, Mali, Malta, Marshall Islands, Mauritius, Mongolia, Namibia, Nauru, Netherlands, New Zealand, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Poland, Portugal, Republic of Korea, Romania, Saint Vincent and the Grenadines, Samoa, San Marino, Senegal, Sierra Leone, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Tajikistan, The Former Yugoslav Republic of Macedonia, Timor-Leste, Trinidad and Tobago, Uganda, United Kingdom of Great Britain and Northern Ireland, United Republic of Tanzania, Uruguay, Venezuela, The Federal Republic of Yugoslavia, and Zambia. See Multilateral Treaties Deposited with the Secretary-General, available at http://untreaty.un.orglEnglishlbiblel englishinternetbiblelpartIlchapterXVIIIItreatylO.asp (visited Feb. 18,2003) [hereinafter Multilateral Treaties). 5. ICC Statute, supra note 3, art. 126, provides that the Statute shall come into force when ratified by 60 countries. 6. Id., art. I. 7. Id., art. 5(1). 8. Id., art. 5(2). http://digitalcommons.law.ggu.edu/annlsurvey/vol9/iss1/3 2 Chibueze: U.S. Objection to the ICC 2003] U.S. OBJECTION TO THE ICC 21 The ICC is built upon the principles enunciated in the Nuremberg,9 Yugoslavia,1O and Rwandan ad hoc tribunals. 11 The ICC is not expected to bring an automatic end to these abominable crimes, but will offer a permanent forum to prosecute those accused of gross international crimes when national systems are unable or unwilling to prosecute. Therefore, the ICC as a permanent institution will serve as a constant remainder to violators of international crimes that they will be held accountable for their actions. 12 While most countries declared their support for the ICC, the U.S. was not in favor of signing the statute and therefore voted against it, along with six other states, including China, Iran, Iraq, Israel, and Libya. 13 However, in his last days in office, former President Bill Clinton authorized U.S. signature on December 31, 2000 in order to reaffirm U.S. "strong support for international accountability and for bringing to justice perpetrators of genocide, war crimes, and crimes against humanity." 14 This reaffIrmation of strong support for international accountability was, however, not backed with a commitment to ratify the statute. The former president indicated that his administration had no intention of submitting the statute to the Senate for ratifIcation. IS Notwithstanding the President's assurance that he would not seek senate ratifIcation, Senator Jesse Helms (R-NC), who was the Senate Foreign Relations Committee Chairman at that time, was reported to have informed then Secretary of 9. See Judgment of the International Military Tribunal for the Trial of German Major War Criminals (Nuremberg, September 30 - October 1, 1946),41 AM. 1. INT'L L. 172 (1947) [hereinafter Nuremberg Judgment]. 10. See The Statute of the International Criminal Tribunal for the former Yugoslavia, 3217th mtg., U.N. Doc. S/25704 (1993), reprinted in 321.L.M. 1192 (1993) [hereinafter ICTY Statute]. The ICTY Statute was unanimously adopted by the Security Council at its 3217th meeting, May 25,1993, for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia. See also S.c. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. SIRES/827(l993), reprinted in 32 LL.M. 1203 (1993). 11. See Security Council Resolution Establishing the International Criminal Tribunal for Rwanda, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453,d mtg., U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598 (1194) [hereinafter ICTR Statute]. The ICTR was set up to prosecute those responsible for the genocidal war in Rwanda. 12. David J. Scheffer, Staying the Course with the International Criminal Coun, 35 CORNELL INT'L L.J. 47, 51-52 (2002). 13. Ruth Wedgwood, Harold K. Jacobson & Monroe Leigh, The United States and the Statute of Rome, 95 AM. J.INT'L L. 124 (2001). See also, Diplomatic Conference, supra note 2. 14. William Jefferson Clinton, Statement on the Signature of the International Criminal Court Treaty, Washington, D.C. 1 (Dec. 31, 2000), at http://www.state.gov/www/globaU swcilOO1231_c1inton_icc.html (visited Apr. 10,2002). 15. Id. Published by GGU Law Digital Commons, 2003 3 Annual Survey of International & Comparative Law, Vol. 9 [2003], Iss. 1, Art. 3 22 ANNUAL SURVEY OF INT'L & COMPo LAW [Vol. 9: 1 State Madeline Albright that the ICC treaty "will be dead on arrival."16 He boasted that "if I do nothing else this year, I will make certain that President Clinton's