Commentary: America must become member of International Criminal Court

For Holocaust Remembrance Day 2019, the United States should move to sign and ratify membership in the International Criminal Court (ICC). The ICC’s purpose is consistent with American traditions and values and its performance is consonant with other international bodies which the U.S. interacts with.

The history of the ICC dates to post-World War I events, when a Commission of Responsibilities investigated political leaders charged with international crimes. Later, a permanent international court to try acts of terrorism was proposed under the League of Nations, but the treaty was never ratified.

Dr. Samuel B. Hoff

Following World War II, international military tribunals prosecuted Axis political and military leaders accused of war crimes. The ICC proposal was dormant during much of the Cold War, but was revived in 1989 by a proposal for an international criminal court to deal with drug trade. During the early 1990s, the United Nations Security Council formed ad hoc tribunals to adjudicate charges against leaders of the former Yugoslavia and in Rwanda. After a 1998 conference, the treaty finalizing creation of the ICC was completed; it went into force in July 2002.

The ICC’s jurisdiction covers several categories of atrocities and abuses. For instance, there are five examples of genocide, 16 cases of crimes against humanity, 18 types of war crimes, 10 instances of crimes of aggression, and a category which deals with offenses against the administration of justice.

Issuing its first arrest warrants in 2005 and its first judgment in 2012, the ICC has 27 current investigations ongoing, of which 14 are taking place in African nations and 13 in other countries such as Columbia, Honduras, and Venezuela among others. In terms of actions already taken, the ICC has indicted 41 persons from 11 nations, of which 10 are African countries. Of the 12 persons formally tried by the ICC, nine were acquitted and three convicted.

In 2016, several African nations took action to withdraw from the ICC, accusing the organization of bias against countries on the continent. While Gambia and South Africa have reconsidered leaving the ICC, nations such as Kenya, Namibia, and Uganda as well as the African Union have issued statements against continued membership.

Criticism against the ICC comes from both extremes. On the one hand, some parts of the ICC — such as the Independent Office of Public Counsel for the Defence (OPCD) — have complained of insufficient budgets and lack of cooperation. On the other hand, American authorities have argued that the authority of the ICC prosecutors and judges is unchecked. Partly for that reason, the U.S. has not signed on to the ICC. Instead, the U.S. Congress passed the American Service Member Protection Act to prevent detention or imprisonment of American personnel by the ICC.

Clearly, American opposition to the ICC is off base. Just three weeks ago, ICC judges rejected a request by the court’s prosecutor to open an investigation into war crimes and crimes against humanity in Afghanistan involving U.S. troops. Like other successful international organizations, the ICC needs American backing to achieve maximum legitimacy and effectiveness.

Despite catcalls over its limitations and weaknesses, the ICC has fulfilled a vital function and has served as a warning to democratic and despotic leaders alike. If, as the Rev. Dr. Martin Luther King Jr. stated, “the arc of history bends toward justice,” then there must be global support for the group which is doing the bending.

Dr. Samuel B. Hoff is George Washington Distinguished Professor of History and Political Science and outgoing Law Studies Program Director at Delaware State University. Dr. Hoff is a previous board member of the United Nations Association of the United States of America—Delaware Division.

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