On April 11 ten nations assented to the Treaty of Rome establishing the International Criminal Court (ICC). The action by these nations, among which the United States was not counted, moved the total ratifications well beyond the sixty required for the treaty to come into force on July 1, 2002.
Although President Clinton signed the treaty, the U.S. Senate has not ratified it. Among the other major world powers, all European Union countries have ratified the treaty while Russia and China have not. Moreover, the Bush administration reportedly is seeking a way to nullify Clinton's action.
Failure to ratify, let alone the apparent attempt to reverse the signing of the treaty, has already proven to be shortsighted. To appreciate why, two points must be understood.
First, the ICC will have jurisdiction only over individuals (as opposed to states) that commit war crimes, crimes against humanity, or genocide. Second, the court's authority does not come into play unless the country whose citizen is accused of one of these crimes is unwilling or unable to undertake a legal investigation - and if warranted, prosecution - of the charges.
Now consider what has transpired since September 11, 2001, when hijacked planes rammed the World Trade Center and the Pentagon and crashed in a Pennsylvania field. The U.S., with the support of a broad coalition, launched a war on terrorists and those who harbor or in anyway abet terrorism. U.S. forces, with assistance from key allies, helped indigenous anti-Taliban fighters topple an oppressive Afghanistan regime and put Osama bin Laden's al Qaida terrorist network on the defensive.
But the Bush administration came under heavy - and mission-distracting - foreign and domestic criticism when it announced it would create special military tribunals outside the well-established U.S. federal and military justice systems to try high-ranking Taliban and especially al Qaida figures. Some observers interpreted the creation of a new court system with rules that do not include all the judicial safeguards Americans receive as a way for the U.S. to "get even."
Without question, the Taliban and al Qaida leaders would be subject to the jurisdiction of the ICC had it been in place and functioning which it could have been had the U. S. not slowed the negotiations over the treaty's provisions. While the 19 perpetrators of September 11 died on impact, those who helped them would be guilty of crimes against humanity for the deaths of over 3,000 innocent civilians. Bin Laden himself is stateless - the Saudi government stripped him of his citizenship in the mid-1990s - so the ICC would be the proper, neutral forum for a trial if he is apprehended. Furthermore, detainees held by the U. S. who are accused of a war crime would be subject to the ICC because Afghanistan does not have a functioning judicial system - again freeing the U. S. from unnecessary distractions in the war against terror.
Why did the U. S. come to oppose the Treaty of Rome? Simply put, political leaders conjured scenarios in which U.S. military personnel might be frivolously accused of war crimes in carrying out their orders. But the very fact that the U. S. has a strong judicial system and has tried and convicted its own soldiers accused of violating the laws of war and international law precludes any action by the ICC. In fact, under the ICC treaty, U.S. military personnel have as many if not more protections against trial in non-U.S. courts than they do under bilateral status-of-forces agreements with countries where U.S. forces are stationed.
As it is, no terrorist of any stripe or no one who commits a war crime, a crime against humanity, or genocide before July 1, 2002, need fear the ICC; its writ does not begin until that date and is not retroactive. Thus the world must rely on the slow-moving special courts for the former Yugoslavia, Rwanda, and Sierra Leone to try cases involving these crimes. One is left to wonder whether the earlier existence of an ICC might have given pause to those who stand accused before these three special courts - and even whether September 11 itself might have happened.