United States'' Opposition to the International Criminal Court. Analysis of Legal and Political-Culture


Dedication This Book is dedicated to my parents (Late Haji Mohummad Bachal Palh and Ms. Zainab) whose love and emotional support afforded me to complete my work.



I am heartily thankful to my all faculties, friends, and colleagues whose support, encouragement and guidance from the initial level to the final level enabled me to complete this book on my favorite subject. I offer my sincere regards and blessings to all of those who supported me in any respect during the completion of the project.





Edifice of Law


CHAPTER 2 THE INTERNATIONAL CRIMINAL COURT: HISTORICAL DEVELOPMENTS AND THE UNITED STATES’ OPPOSITION Historical Developments Brief chronology of crimes since Nuremberg Making of ICC Adoption of the Rome Statute Role of United States’ in the establishment of ICC and It’s results US Opposition to the ICC Revoking a prior president’s signature US legislation to thwart the ICC Prohibition and requirements of the American Service members Protection Act (ASPA) 9 11 12 12 13 6 7 7 8


CHAPTER 3 UNITED STATES’ OBJECTIONS TO THE INTERNATIONAL CRIMINAL COURT United States’ objections to the ICC Jurisdiction of the Court over non-consenting non-party state Unaccountable Prosecutor of the ICC Limited Role of Security Council in the Rome Statute Lack of due Process Guarantees 19 19 27 34 41

CHAPTER 4 POLITICAL CULTURAL ANALYSIS OF BASIS OF US OBJECTIONS TO INTERNATIONAL HUMAN RIGHTS LAW AMERICAN EXCEPTIONALISM Features of American Exceptionalism and their Relevance with US Human Rights Policy American Exceptionalism: its attitude towards International Human Rights Treaties 48 48 49

Convention on Civil and Political Rights And US Reservations Convention on Women Rights and US Objections Convention on Child Rights and US Objections American Exceptionalism: Noncompliance of International Law US avoid International Scrutiny US use Force and Pre-emptive Doctrine

51 52 53

54 55 57

US Double Standard Policy and International Human Rights Law



Promoting democracy while supporting dictators abroad


US Policy Judging Itself and Its Friends by More Permissive Criteria Than It Does Its Enemies 61 US Concept of Sovereignty and Constitutionalism US concepts of sovereignty and its foreign policy Challenges to concept of sovereignty and demands of realities US’s Preemptive doctrine, use of force and Sovereignty US Bilateral Immunity Agreements and Sovereignty US’s concept of Constitutional Patriotism Explanation For US Exceptionalism United States: Hegemonic Power: Distinctive nature of American Institutions US Federal System US Senate Role of Senate’s Foreign Relation Committee in the ratification of a Treaty Domestic Democratic Stability Messianic Belief Role of Conservatives in US Human Rights Policy 64 64 65 66

67 69 69 72 72 72 74 76 77 78 79


CHAPTER 5 ICC: Achievements, Developments, Challenges CHAPTER 6 Conclusion BIBLIOGRAPHY

83 87 90


“There can be no global justice unless the worst of crimes-crimes against humanity are subject to the law. In this age, more than we recognize that crime of genocide against one people truly is an assault on us all—crime against humanity. The establishment of an international criminal court will ensure that humanity’s response will be swift and will be just.” Kofi Annan UN Secretary General, Rome Conference, 17 July, 1998


The edifice of international law was not completed in one swift turn; it has reached its present stage through a building block process, each stage was achieved through careful planning like placing one stone upon another. However, the International Court of Justice (ICJ) which deals with cases between states was already in existence (Cassel 1999, p.1); but there is a need for an international mechanism which could hold individuals accountable who committed serious crimes against humanity. Stalin was never charged for millions of killings. Pol Pot never saw jail, even though he slaughtered hundreds of thousands people. Idi Amin escaped justice and Raoul Cedras comfortably retired (Cassel 1999, p.1). This need was also highlighted in the judgment of the Nuremberg Tribunal that, "crimes against international law are committed by men, not by abstract entities, and only by punishing individuals, who commit such crimes can the provisions of international law be enforced” (Reeves 2000). Later, this short arm of the law was identified by José Ayala Lasso, former United Nations High Commissioner for Human Rights, who once said, "A person stands a better chance of being tried and judged for killing one human being than for killing 100,000 (Overview: Rome Statute 1998).” Establishment of the International Criminal Court stated aforementioned gap as a missing link in international law, whose absence always provided an opportunity for individuals to get away with such heinous crimes. However, these legal developments, made the world smaller for such criminals but still. There are some safe heavens which shelter them on earth, where


they can commit these crimes with impunity. History witnessed about the death of approximately forty million people both military and civilians in the Second World War (WII) and besides, many other internal conflicts cost millions of lives which “shocked the conscience” of the World (Ferencz 2003, p.1). Kofi Anan, Secretary General United Nations quoted a centuries old statement of Marcus Tullius Cicero, son of Rome, on the eve of adoption of the Rome Statute, and said, “in the midst of arms, law stands mute” (UN Press Release L/ROM/23 1998). He showed the hope that what was said above will be less true in the future than it has been in the past. His hope was based on the creation of International Criminal Court (ICC), Antonio Cassese called it a “revolutionary step” (Cassese 2003, p.1), the first ever permanent, international treaty based court with jurisdiction over four crimes; known as Genocide, crime against humanity, war crimes and crime of aggression.1 However, the movement for the creation of International Court to deal with the problem of heinous crimes against humanity successfully gained momentum after the Nuremberg trials2 but that demand was century old so was further reinforced by internal conflicts apparent around the world. The hope which started with the establishment of Nuremberg and Tokyo tribunals was dashed for sometime during the Cold War, but revived again with the end of that ideological war between the two major powers, again the role of international law increased and accountability for gross violations became a dominant theme on the world scene (Hajjar 2006, p.3). The establishment of the International Criminal Court further strengthened the theme of accountability. Its establishment converted the punishment mechanism of naming and shaming (which human rights relied on for so long) into prosecution. The trend started with


Aggression: the fourth crime under the jurisdiction of International criminal court (ICC) but

it will exercise its jurisdiction only when its definition will be decided in accordance with articles 121 & 123, this crime is also mentioned in the Rome Statute in Article 5.


Tribunals set up to try Nazi criminals who committed genocide and war crimes during



the creation of ad hoc UN tribunals. The International Tribunal for Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) which were to prosecute the perpetrators of crimes of genocide and crimes against humanity are to name but a few. These developments continued along with other major developments including when the former Chilean dictator Augusto Pinochet was indicted for the crimes he committed in Chile during his dictatorial reign, when Milosevic was sentenced at Hague and when Belgium passed a national universal jurisdictional law, which would enable its courts to prosecute the people accused of crimes when they fall under their jurisdiction (Hajjar 2006, p.1). Meanwhile, another success reflecting humanity which has not being linked with individual crimes was the adoption of the Mine Ban Treaty in 1997 this put an end to human suffering (Mine Ban Treaty 1997), this treaty illustrates the success of law over politics. These developments were later followed by the adoption of the Rome Treaty, the last achievement of humanity in the 20th century, which consequently established the ICC. All these hopes were threatened to be dashed when the United States, the strongest country in the world opposed the ICC, withdrew from previous efforts to establish the Court (Ferencz 2003, p.4). This development surprised the world beyond measure because the United States was involved in the process of establishing the international criminal court (ICC) from the start but when it felt that the respective court was not going to take the form that the U.S. intended, it with drew its support. The United States had long hoped and lobbied that the court could be controlled by the UN Security Council, similar to that of ad hoc tribunals. How ever, The Court was different from the ad hoc tribunals on two grounds: Firstly, it is a permanent feature of international law and secondly the court would represent a new and more ambitious approach to the promotion and protection of human rights as an independent and impartial entity able to prosecute on its own initiatives without waiting for the Security Council’s approval. Unlike the US wishes, the role of Security Council was limited to that of a triggering mechanism as outlined in the final text of the Rome Statute, whilst the International Criminal Court was created as a separate court, neither of which was to be derived from a UN organ. The United States opposed the court and raised many objections to it whilst the majority of other states supported the court. Currently, Court is working as a full functional court with following structure.


Structure of the Court The Court has four organs...

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