According to William A. (Introduction to the International Criminal Court, 2004), the International Criminal Court (ICC) is an independent, permanent court that tries people accused of committing serious crimes against humanity. It tries people who are accused of committing genocide or involved in war crimes. It is a court that exists not to override the responsibilities and duties of the national judicial systems but rather it acts as a last alternative to try people accused of committing serious and heinous crimes. It can also be used in hearing cases and passing enforceable judgments should it be noted that trials involving serious crimes in the member states are being handled in a lacklustre manner and fairness is not being exercised.
The I.C.C was established in July 1998 in Rome by a treaty signed and ratified by 104 countries. They treaty is not universally binding but rather “only those states which formally express their consent are bound by its provisions” (International Criminal Court, n.d). Since its inception it has opened investigations in a number of countries in Africa: Uganda, Central African Republic, Darfur and also in Congo. Although its trials may be carried out in different countries its official headquarters are in Hague, Netherlands. It can only however, arbitrate or try crimes committed after the date its statute was incepted. The member states are committed to “refraining from acts which would defeat the object and purpose of the ICC treaty” (William A. 2004).
The ICC does not enjoy universal jurisdiction as was the original wish. A number of countries did not want to see this happen and they heavily objected. They include China, Qatar, Libya, Israel, Iraq, Yemen and the United States.
It only exercises jurisdiction where the below circumstances have occurred (Ascensio H. 2002):
- If the perpetrator of the crime belongs to a country which is a state party or that has accepted the ICC’s jurisdiction.
- If the acts were committed in a territory of a country that accepts jurisdiction.
- If the particular case has been referred to the ICC by the UN security counsel.
The United States is against the jurisdictional powers of the ICC evidenced by its refusal to ratify the statute in 2002. The US initially under Clinton administration had participated proactively in supporting the early plans of ICC but it voted against it in Rome 1998.
The reason behind this is in article 12 of the statute that confers the ICC with absolute jurisdiction “when either that state on whose territory a crime was committed is a part to the treaty, or when accused person’s state of nationality is a party” (international animal’s court, n.d).
This statute is a threat to the United States. It is a threat to both the president of US and its military forces as it will limit their ability to engage in wars in the name of protecting global (US) interest. This is the key factor behind the bone of contention. The US will not support the ICC as long as it does not accord special treatment to its military. It fails to exclude US military from falling within the ICC’s prosecution jurisdiction. There are claims also that the US fails to support the ICC due to its ambiguity and vagueness in its wording and structure and if the US was to ratify it, its inherent flaws would lead to the US changing its constitution to accommodate the ICC provisions.It wants immunity against all international laws and restrictions that would restrain its conduct in international affairs, or any provision that would allow any actions by US official to be put into question.
Although there are still some amendments that should be carried out as it awaits definition of some of its laws, the response to the ICC is overwhelming and USA is more or less alone in its stand to oppose its jurisdiction. This is quite surprising regarding the Americans vocalness in defending human rights and condemning violators. Observers say that US is doing this out of fear of losing its international supremacy as every deed committed in seeking to further the US interest will not go unpunished if it ratifies the ICC statute.
America is the leading superpower in the world and its support would have important in not in legitimising the court’s powers but also in providing the necessary legal and financial backing needed to carry out its operations effectively.Its decision to remove itself from the treaty is a big impendiment to the achievements of ICC goals.Efforts should be made to put into consideration the American’s proposals but caution should be excised not to compromise on the key visions of the court.
The customary law is the key source of the ICC laws. It emanates from general practices followed by various states in enforcing their legal obligations. These laws are codified in the Vienna convention on the law of treaties. Its laws are also sourced from general international agreements that outline how the member states conduct and obligations toward each other.
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