Jeffrey Garofalo

Assignment #5

Background

As allied armies liberated German occupied territories in Poland, discovering the concentration camps at Dachau, Buchenwald and Auschwitz, they raised international awareness of the atrocities committed during the Second World War. Images from the camps spoke of the need for the creation of an international tribunal to safeguard human rights, preventing future crimes against humanity, war crimes and genocide. In resolution 260 of 9 December 1948, the General Assembly of the UN adopted the Convention on the Prevention and Punishment of the Crime of Genocide which invited the International Law commission to "study the desirability and possibility" of establishing such a court. While several drafts at establishing the court were prepared during the fifties, the seminal event which fostered an international commitment to the court's creation was the outbreak of war in the former Yugoslavia and the discovery of the brutal "ethnic cleansing" campaign pursued by Slobodan Milosevic. The UN Security Council established the ad hoc International Criminal Tribunal for the former Yugoslavia, moving beyond the Hague's handling of cases involving states, to hold "individuals accountable for crimes against humanity" and, by so doing, hoping to deter similar crimes in the future. Shortly thereafter, the International Law Commission completed its work on the draft statute and at its fifty-second session, the General Assembly convened an international conference, held in Rome, Italy from 15 June to 17 July 1998, to "finalize and adopt a convention" on the establishment of the court. On 17 July 1998, the Statute was adopted and opened for signatures by all states in Rome. Under Article 126, the Rome Statue of the International Court will enter into force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification. As of 2 October 2000, the Statute has been signed and ratified by 114 and 21states, respectively. Conspicuously, the U.S. was among the handful of nations, including China, Libya, Algeria, Qatar and Yemen, to oppose the creation of the International Criminal Court. The reasons for and against U.S. ratification of the court will be discussed below.

Reasons for U.S. Ratification

For a nation founded upon the proclamation of certain inalienable rights of life, liberty, and property, the protection of individuals from crimes against humanity is consistent with the American moral and political tradition. As the eminent historian Arthur M. Schlesinger Jr. explains "Americans have agreed since 1776 that the U.S. must be the beacon of human rights to an unregenerate world". During the 19th Century, statesman like Adams, Jefferson and later Gallatin attempted to project American ideals and principles of morality onto the world's stage, thereby safeguarding individuals from acts of terror committed by States, rulers and military juntas. During the bloody Austrian/Russian suppression of the Hungarian Revolution of 1848, it was Gallatin, demanding a break in diplomatic channels with Austria, who stated before Congress "We must exert a moral influence most beneficial to mankind". His call was later championed by the great statesman of the 20th Century like Wilson, FDR, Kennedy and Carter who believed that the protection of human rights was as important as the protection of natural rights by the U.S. Constitution. President Kennedy asked "Is not world peace, in the final analysis, basically a matter of human rights? Since human rights are divisible, we cannot stand outside when these rights are abused and neglected". In recent times, the United States has pursued vigorously the cause of justice by seeking to hold Pol Pot of Cambodia and Saddam Hussein of Iraq personally responsible for the atrocities carried out in their name.

Reasons against U.S. Ratification

Throughout periods in history, American ideals have often not translated into American actions. Despite the atrocities committed by the Nazi's during the Second World War, there were those in the United States who questioned the legitimacy of the Nuremberg Trials. Senator Robert Taft, a conservative strict constructionist from Ohio, argued that the trial "represented a serious departure from the fundamental principle of American law that a man cannot be tried under an ex post facto statute". Senator Taft was concerned that the court was substituting politics for the rule of law, while arguing that the politically charged atmosphere surrounding the trial would render a "tainted" verdict. While Taft was widely rebuked by his peers, his sentiments later resonated in American objections to the International Court of Justice and to the International Criminal Court. Regarding the ICJ, the Connally Amendment, enacted by Congress, stated that the "jurisdiction of the court would not apply to disputes with matters which are essentially within the domestic jurisdiction of the U.S., as determined by the U.S.". This reluctance was later exhibited in American reservations to the establishment of the ICC. The U.S. was loath to provide the court with unlimited and inimical powers to charge and prosecute its own citizens, "especially its soldiers, sailors and airmen who served in situations around the world", outside the American judicial system. U.S. representative to the UN, Bill Richardson, echoing Senator Taft, stated that "Soldiers deployed far from home need to do their jobs without exposure to politicized proceedings"; American soldiers could be subject to "frivolous or politically motivated prosecutions". To circumvent such proceedings, the U.S., joined by Russia, France and China, insisted upon provisions in the court's charter that would give the permanent five members of the Security Council veto power over any prosecution or action undertaken by the court. The veto was also necessary to prevent, as representative Bill Richardson states "The court from seeking to address every crime that goes unpunished thereby creating a court that will appear sound on paper but will collapse under the weight of its own mandate". With the defeat of the veto provision, the final U.S. decision on the ratification of the court is unknown.

Conclusion

While ratification of the International Criminal Court is consistent with American principles of the rule of law and morality, in the final analysis, a positive declaration may be inconsistent with the U.S. preference for charting its own course in foreign affairs. Separated from the rest of the world by a vast oceanic expanse, the U.S. has demonstrated a proclivity for turning its back on the world when the world looks to her for further commitment and leadership.