Day of International Justice: The ICC and the Role of the U.S.

Today the International Criminal Court declared July 17 as the Day of International Justice. Recent news from the International Criminal Court (ICC) has Sudanese President Omar al-Bashir indicted for the crime of genocide and a Congolese militia chief Thomas Lubanga Dyilo awaiting confirmation on his release from prosecution. These two events in particular have led me to question the efficiency of the ICC and the United States role in the process.

The ICC was established July 1, 2002, following the 60th state ratification of the Rome Statute, and is conferred with the power to prosecute individuals for genocide, war crimes, and crimes against humanity. The map below displays the status of states compliance to the ICC Statutes with green signaling ratification, orange signaling signatory status only, and grey signaling neither signatory status nor ratification.

As of this year, 111 states have ratified the treaty, and 30 are signatory states. The United States has signed the Rome Statute but refused to ratify due to issues over jurisdiction of U.S. military and civilian personnel. Honestly, I do not believe American soldiers will be brought to trial in the ICC unless they have committed grave atrocities. If that is the case I support claims of justice over claims of citizenship. More so, I find it problematic the U.S. is seeking bilateral impunity agreements with other states, effectively undermining the ICC. If the U.S. is to seek impunity for its citizens, what stops other states from following suit? The answer is nothing.

Back to the two pressing cases at the ICC, President Bashir became the first sitting head of government to be indicted March 4, 2009 for crimes against humanity and war crimes. This year the charge of genocide was added to that list.  It is extremely discouraging to witness the brutalities perpetrated by Bashir yet international efforts have failed to end the violence. After the Rwandan genocide the United States said never again, not on our watch. Perhaps our watch is broken because as time continues to tick away it takes the lives of countless individuals in Darfur.

Thomas Lubanga Dyilo has the honor of being the first individual tried in the ICC for war crimes. Lubanga is charged with conscripting children under 15 as fighters in his militia during the war in the DRC from 2002-2003. The ICC asked for release of Lubanga following the Office of the Prosecutors failure to disclose the identity of a key witness. The OTP has five days to appeal the decision, and most likely it will. It appears the request for release was an attempt to force prosecutors to abide by the standards of the court, and does not imply the innocence of the accused.  It is amazing the amount of news coverage the story has generated, and is monumental in relaying the message that children are not to be preyed upon and used as soldiers.

The disparity between the DRC and Sudan cases is apparent, as the DRC conflict has ended while the fight is ongoing in Sudan. This has shifted the focus and created additional barriers to bringing Bashir to justice. A few critics argue justice should be put on hold until peace has been restored in Sudan. I disagree and believe seeking justice sends a strong message towards Bashir and can serve as a deterrent for other offenders. It also appears Bashir has been marginalized by isolation since indictments from the ICC. Sure it does not create a warm fuzzy feeling since he is still continuing his atrocities. However, he is slowly being isolated, even among members of the African Union, and the hope is he will eventually grow tired of the situation, or officials close to him will, and the pressure will result in the ending of violence and cooperation with the ICC.

It appears a little early to tell whether the ICC can effectively prosecute human rights offenders. The ICC’s move to release Lubanga Dyilo should not be seen as a failure on their part but rather evidence of their pursuit for justice, a justice achieved through proper following of the law. More will be known after the completion of the Lubanga Dyilo case yet I refuse to give up on the idea of international justice. Sure the court is plagued with problems and does not possess a means of arresting those indicted. This merely demonstrates the importance of universal acceptance of the Rome Statute, thereby isolating abusers within their own country, and signaling a worldwide commitment to upholding human rights principles.

The U.S. cannot always involve itself militarily or economically in the affairs of states accused of committing human rights abuses. Having the ICC, with the U.S. leadership behind it, as a model for prosecution would send a strong message to perpetrators. It is not as if the U.S. has never involved itself with international prosecution as it was a crucial player at the Nuremberg Trials. Nevertheless, the U.S. has not ratified the treaty and is missing a key opportunity to demonstrate its commitment to upholding human rights and bring perpetrators to justice. The U.S. should practice what it preaches and abide by the same human rights standards as many countries it hails as developing.  It is hypocritical to yell at other states for their human rights abuses when the United States is snubbing a vital instrument of international justice.

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