The International Criminal Court: A Concept Whose Time Has Not Come

By Terry, James P. | Joint Force Quarterly, January 2008 | Go to article overview

The International Criminal Court: A Concept Whose Time Has Not Come


Terry, James P., Joint Force Quarterly


In this issue of JFQ, Commander Brian Hoyt, USN, presents a thoughtful argument that U.S. policy on the International Criminal Court (ICC), established in 2002, should be changed. He maintains that since the attacks on the World Trade Center and Pentagon on September 11, 2001, U.S. national security policy requires a more integrated approach with the Nation's strategic partners, including judicial cooperation, to ensure success in managing the war on terror and to guarantee that our principles and national interests are not in conflict. He further urges that our current stance with respect to the ICC will have the strategic consequence of fostering the decline of U.S. image and influence in the world community.

I respectfully disagree. Just as in 1937, (1) when discussions focused on similar development of an international tribunal, the concern today relates to guaranteed constitutional rights of American citizens and military personnel and whether those rights can be recognized under international law--in this case, the Rome Statute--independent of U.S. domestic law and constitutional guarantees. Despite these differences, the U.S. Government shares the commitment of parties to the Rome Statute to bring to justice those who perpetrate genocide, war crimes, and crimes against humanity. While the United States and other nations may have honest differences over how accountability is best achieved, this nation has always worked closely with other states to make sure that perpetrators of these atrocities are held accountable for their actions.

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This discussion focuses not only on the legal requirements and policy reasons for our separate approach but also on our respect for the rights of other nations to become parties to the Rome Statute.

The Rome statute

When the representatives of more than 130 nations gathered in Rome in 1998 for negotiations to create a permanent International Criminal Court, the U.S. representatives arrived with the firm belief that those who perpetrate genocide, crimes against humanity, and war crimes must be held accountable. In fact, the United States has traditionally been the world leader in promoting the rule of law and ensuring the effective prosecution of these offenses. Following World War II, it was American leadership that responded to the worst tyranny on record and supported, through funding and personnel, the tribunals at Nuremberg and in the Far East. More recently, it was U.S. support that ensured the success of the International Criminal Tribunals in the former Yugoslavia and Rwanda.

Without question, it has been the United States that has been in the forefront of promoting human rights, ensuring international justice, and demanding accountability of the world's worst criminal offenders. But as worthy as the precepts underlying the Rome negotiations are, the statute that emerged establishing the ICC, which began functioning on July 1, 2002, did not effectively advance them with respect to the constitutional protections guaranteed to American Servicemembers and citizens.

Colonel James P. Terry, USMC (Ret.), is the Chairman of the Board of Veterans Appeals in the Department of Veterans Affairs. He previously served as Principal Deputy Assistant Secretary and Deputy Assistant Secretary in the Department of State and as Legal Counsel to the Chairman of the Joint Chiefs of Staff.

After 5 years, we do not find that our posture on the ICC has precluded the effectiveness of our relations with other national states in any meaningful way. We do, however, continue to believe that without significant changes in the ICC and Rome Statute, we can never become full partners in the court's operation. The problems identified by U.S. negotiators from 1998 onward are well known and much publicized, but are nevertheless worth reciting here so the debate can be joined.

U.S. concerns with the Rome Statute fall into three main categories. …

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