America’s Absence in the International Criminal Court

A Lack of Checks & Balances for the U.S. Abroad

WTF Is Going On? | Daphne Schermer | April 21, 2016

  • Copied

What do you think should happen to Nazi-war criminals? Should they be tried in a court of law or should they be killed without question? What about those who committed genocide in Rwanda’s bloody civil war in the ’90s?

These are complicated questions and even if the answer is “yes”, that individuals who committed war crimes should be brought to justice in a court, who would gain jurisdiction in these cases? Often the countries where crimes against humanity occur are corrupt and those in power may not agree with such an action. In the case of arresting Nazis, most fled Germany to different countries.

These are some of the reasons why the International Criminal Court was founded. The ICC is an “independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity, and war crimes”. Effective June 1, the ICC will be based on a treaty joined by 124 countries.

In 1948-following the end of WWII- the United Nations recognized the need for “a permanent international court to deal with the kinds of atrocities that had just been perpetrated”, after the Convention on the Prevention and Punishment of Crime of Genocide was adopted.

The globalization of the world has tied nations and continents together. A crime committed in East Africa, affects individuals in East Asia. War crimes and acts of terrorism, increasingly no longer stay within the borders of a particular country. Allowing genocides in ‘far-flung’, isolated parts of the world is no longer acceptable.

A court leading these efforts acts a figure-head to the world’s fight against these injustices. It is different than the UN sending in troops to physically stop or attempt to stop a genocide. The ICC stands as a legal framework that treats genocide as an act that cannot be forgotten.

The ICC was founded in Rome during the summer of 1998, partially because of crimes that were being committed in the former Yugoslavia and Rwanda. The United National Security Council had established tribunals for these particular cases. These events played a strong role in the ultimate founding of the ICC.

National courts are given priority, however, the ICC steps in when a nation’s criminal system cannot or will not investigate and prosecute warranted individuals.  The ICC’s website has definitions for exactly what constitutes a genocide, a crime against humanity, a war crime, and a crime of aggression.

Then the question that remains, is how successful has the ICC been in trying and prosecuting individuals according to the Rome Statute?

Currently there are investigations of alleged crimes in 9 countries: Sudan (the Darfur situation), the Democratic Republic of the Congo, Uganda, the Central African Republic, the Central African Republic II, Kenya, Libya, Cote d’Ivoire, and Mali. The Office of the Prosecutor is also conducting preliminary analysis in 9 other countries: Afghanistan, Georgia, Nigeria, Palestine, Colombia, Honduras, Guinea, Iraq, and Ukraine.

An important difference between warrants issued by the ICC compared to other courts, is that they are “lifetime orders” with no “statute of limitations”.

The United States is notably absent as a member of the ICC. As the world’s foremost and largest democracy this is surprising.

Under the Obama administration, the State Department cites that the U.S. will engage “on issues of concern and are supporting the I.C.C.’s prosecution of those cases that advance U.S. interests and values, and are consistent with the requirement of U.S. law”.

One of the main reasons the U.S. is not a signatory to the Rome Statute, which ratified the ICC, stems from the idea that the U.S. “has been shielding its citizens from the Court’s jurisdiction”.

This perspective was legislated under the Bush administration. In 2002 Bush signed the American Servicemembers’ Protection Act into law. The ASPA had a number of sections including:


These provisions were put in place because:

Members of the Armed Forces of the United States should be free from the risk of international criminal persecution by the International Criminal Court, especially when they are stationed or deployed around the world to protect the vital national interests of the United States.

Although through the ASPA the U.S. actively posits itself against the ICC in favor of protecting America’s right to make military decisions in its “national interests”, the ASPA notes at the end:

Nothing in this title shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden, other members of Al Queda, leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity.

Thus, the ASPA promises that the U.S. Armed Forces shall not be hindered from apprehending and fighting enemies of America, but they shall be free from the jurisdiction of the ICC.

Under the Obama Administration, the U.S. government has since softened its relationship with the ICC. Among these decisions, was in 2011 the U.S.’s referral of the Libya situation to the ICC. Also the U.S. has given in-kind support to the ICC, including intelligence information on fugitives being sought by the court and expanded the War Crimes Rewards Program, which offers rewards up to $5 million to individuals who have information that lead to the arrest, conviction, or transfer of war criminals.

This leaves a question for the incoming administration in 2017: Will the U.S., according to law, continue to hold our citizens to different standards than the majority of nations across the world?

Perhaps if an international criminal court believes that U.S. officials have committed a war crime or crimes of aggression this should be met with due process rather than exemption.