US Lets Down World Justice

13 June 2002

The statute of the International Criminal Court was adopted on July 17 1998 by an overwhelming majority of the states attending the Rome conference. To date, the Rome statute has been signed by 139 states, and 67 states have ratified it. One significant absentee as a ratifier is the US, but happily it has not followed through on the reported threat to remove its signature from the statute.

Within just four years, the treaty has achieved the 60 required ratifications - far sooner than was generally expected. The statute will become operative on July 1, when the court's jurisdiction over genocide, war crimes and crimes against humanity will take effect.

The second half of the 20th century saw the strengthening of human rights and a growing sense that because individuals live under the international legal system, they must necessarily have rights and obligations flowing from it. The fact that delegates at Rome were able to finalize the ICC statute is evidence of the existence of a social system built on universal respect for the idea of human rights - a system which denounces the most serious war crimes and crimes against humanity because of a recognition that tolerating such atrocities diminishes and threatens everyone.

The prospects for the ICC as a protector of the ideals of the international community as a whole become difficult to imagine, however, when some states elect to exclude themselves from that vision. This is particularly true when those states are powerful, and strikingly so when such powerful states, like the US, are traditionally associated with the very values the ICC seeks to endorse.

From its beginnings, an important element of the US conception of its own national interest has been the development and maintenance of an international rule of law. The importance the framers gave to international law is reflected in the constitution itself, whereby Congress is given power to "define and punish piracies and felonies committed on the high seas, and offences against the law of nations".

In the last century the US was a leading force in the establishment of the Permanent Court of Arbitration; a chief architect of the United Nations, the IMF and the World Bank; a leading sponsor of the ad hoc tribunals on Rwanda and the former Yugoslavia; and a vocal endorser of the idea of an International Criminal Court. Indeed, President Clinton called for a permanent war crimes tribunal shortly before the Rome conference when addressing genocide survivors in Rwanda.

The impact of the US failure to support the ICC may be symbolically important - a high-profile rejection of a major initiative for the rule of law in international affairs. But it will also be a lost opportunity if a state with a long-standing commitment to human rights does not take a lead in shaping the work of the world's first international criminal court.

The ICC statute has principles central to American conceptions of justice all over it, reflecting ideas such as due process, command responsibility and superior orders, to name but a few.

At the Rome conference in 1998, the US worked closely with the UK throughout long and difficult negotiations to ensure that the statute of the ICC contained adequate safeguards against politically motivated prosecutions of our citizens. It is plain that the UK was and remains satisfied that this was achieved.

Now, as then, the UK remains convinced that US and UK national interests in taking forward the court coincide; and that the overriding concern of the international community to bring an end to impunity for war crimes and crimes against humanity will be advanced significantly by the emergence of the ICC, with American participation. But not at any price.

The US claims that the Rome statute is flawed. Certainly it is not perfect. But while the statute is a reflection of wide agreement which inevitably involved some compromises, none of those compromises undermines the basic fact that the court will act only where national jurisdictions cannot.

In 1998 the UK concluded that the liberty and well- being of its citizens will not be threatened by malicious or politically motivated arrest and indictment in a foreign land by virtue of its commitment to the court. With time, it is to be hoped that the US will come to share that assessment with regard to its own people, and recognize that the concerns it has expressed, legitimate as they may now seem, are not well-founded.

Cherie Booth
Published in the Guardian © Guardian Newspapers Limited 2002

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