WAR CRIMES. Kailyn McGillicuddy Hilary Panfili. Issue. Should the United States join the International Criminal Court (ICC) to prosecute War Crimes?. International Humanitarian Law. Humanitarian law seeks to (i) protect persons who are not or are no longer taking part in the hostilities,
(i) protect persons who are not or are no longer taking part in the hostilities,
(ii) restrict the methods and means of warfare employed, and
(iii) resolve matters of humanitarian concern resulting from war.
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘’hors de combat” by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
International Military Tribunal took place between November 11, 1945- October 1, 1946
International Military Tribunal for the Far East 1946
1992-1995 Bosnian War
International Criminal Tribunal for the Former Yugoslavia (ICTY)
1 January 1994 and 31 December 1994
International Criminal Tribunal for Rwanda (ICTR)
Established by the Rome Statute in 2002
110 members (as of October 2009)
The United States is not currently a member
1. Jurisdiction over Nationals of Non-Parties
2. Politicized Prosecution
3. The Unaccountable Prosecutor
4. Usurpation of the Role of the U.N. Security Council
5. Lack of Due Process Guarantees
Only nations that ratify treaties are bound to observe them. The ICC purports to subject to its jurisdiction citizens of non-party nations, thus binding non-party nations.
The ICC’s flaws may allow it to be used by some countries to bring trumped-up charges against American citizens, who, due to the prominent role played by the United States in world affairs, may have greater exposure to such charges than citizens of other nations.
The Office of the Prosecutor, an organ of the ICC that is not controlled by any separate political authority, has unchecked discretion to initiate cases, which could lead to “politicized prosecutions.”
The ICC Statute gives the ICC the authority to define and punish the crime of “aggression,” which is solely the prerogative of the Security Council of the United Nations under the U.N. Charter.
The ICC will not offer accused Americans the due process rights guaranteed them under the U.S. Constitution, such as the right to a jury trial.
1. American Servicemembers’ Protection Act of 2002
2. The Nethercutt Amendment
3. National Defense Authorization Act for FY2007
The ASPA prohibits cooperation with the ICC by any agency or entity of the federal government, or any state or local government.
It prohibits agents of the ICC from conducting any investigative activity on U.S. soil related to matters of the ICC.
It does not prevent private citizens from providing testimony or evidence to the ICC.
An “Article 98” agreement is a bilateral pact wherein countries pledge not to seek the prosecution of U.S. citizens in the International Criminal Court.
This law prohibits U.S. military assistance to countries that have not signed “Article 98” agreements.
Named for former Rep. George Nethercutt and bundled in a 2004 appropriations bill -- cut economic support funds to nations that ratified the International Criminal Court without signing a Bilateral Immunity Agreement with the Bush administration.
Policy was reversed in March 2009 by Rep. Nita Lowey and Sen. Patrick Leahy.
The Senate version modified ASPA to end the ban on International Military Education and Training (IMET) assistance to countries that are members of the ICC and that have not implemented Article 98 agreements.
The House version did not contain such a provision; however, the House Armed Services Committee reported its view that the President’s authority to waive ASPA funding restrictions can and should be invoked where necessary.
Uganda: The Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen
Democratic Republic of the Congo (DRC): The Prosecutor v. Thomas Lubanga Dyilo
Sudan: The Prosecutor v. Ahmad Muhammad Harun and Ali Huhammad Ali Abd-al-Rahman
Central African Republic (CAR)
Secretary of State Clinton recently stated that one of her greatest regrets is that the US is not part of the ICC, which indicates a significant policy shift in favor of the court.
Under the new administration of President Barack Obama, there have been hints of greater U.S. cooperation with the ICC, although no formal shift in policy.
Some advocate caution, saying the president can afford not to rush membership and should wait to see how the ICC evolves.
The ICC ensures that those who commit serious human rights violations are held accountable.
Justice helps promote lasting peace, enables victims to rebuild their lives and sends a strong message that perpetrators of war crimes will not go unpunished.
Should the United States of America choose to join the ICC, its reputation as a promoter of human rights and the rule of law would be significantly enhanced in the eyes of the international community.