A successful, permanent International Criminal Court ... "isn't it pretty to think so?" (Transatlantic Business Transactions: Choice of Law, Jurisdiction, and Judgments)

AuthorJeu, Cassandra
  1. INTRODUCTION

    On September 30, 2002, the European Union (E.U.) assured the United States that it would not prosecute American military personnel and government officials in the International Criminal Court (ICC). (2) The Bush Administration (3) continues to seek total immunity for all U.S. citizens through bilateral agreements with individual nations, (4) in accordance with Article 98 of the Rome Statute. (5) The Bush Administration is also attempting to revise current Status of Forces Agreements in order to obtain immunity of U.S. military personnel and officials from the ICC. (6)

    Although the E.U. as a whole remains dedicated to the ideals of the ICC, (7) its member nations vary in their agreeability to the idea of U.S. immunity. (8) Countries with conservative governments, such as the United Kingdom, Italy, and Spain, have been more receptive to the idea of U.S. immunity. (9) On the other hand, France, Germany, Belgium, and Sweden strongly oppose U.S. exemption from ICC jurisdiction. (10)

    The E.U. compromise followed President Bush's signing the American Servicemembers' Protection Act (ASMPA). (11) This legislation prohibits the United States from providing military assistance to ICC member states and United Nations (U.N.) peacekeeping missions unless U.S. personnel first acquire ICC immunity. (12) Although the ASMPA provides exceptions for North American Treaty Organization (NATO) member nations and key non-member allies, it does not address nations assisted by NATO's Stabilization Force (SFOR) Mission. (13) In July 2002, the United States used its U.N. Security Council status to stall an extension of U.N. peacekeeping forces in Bosnia and Herzegovina until its troops were granted a one-year immunity from ICC prosecution. (14)

    In Part I, this comment conducts a historical examination of the international community's attempt to enforce and codify humanitarian law from 1945 to the present. Part II examines the structure of the ICC established by the Rome Statute. Part III outlines U.S. substantive and procedural objections, while Part IV discusses counterarguments and safeguards provided in the Rome Statute. Part V examines the underlying problem of a permanent, international tribunal having widespread jurisdiction: inevitable conflict with national sovereignty. (15)

  2. TRACING THE HISTORY OF INTERNATIONAL CRIMINAL TRIBUNALS AND THE EVOLUTION OF CUSTOMARY INTERNATIONAL LAW FROM 1945 TO 1994

    1. The Emergence of Individual Accountability: The Nuremberg & Tokyo Tribunals

      Before 1945, the international community did not have a forum with jurisdiction to prosecute criminal offenses. (16) Moreover, customary international law held government regimes--not individual actors--responsible for violations of international law that occurred during wartime. (17) This allowed military personnel and most civilian leaders to defend themselves by saying that they were merely following orders when carrying out war crimes and other offenses. (18)

      After World War II, the United States, Great Britain, France, and the Soviet Union formed the International Military Tribunal at Nuremberg (Nuremberg Tribunal) in order to prosecute Nazi leaders for crimes against peace, war crimes, and crimes against humanity. (19) Acting on behalf of the Allies, General Douglas MacArthur created the International Military Tribunal for the Far East at Tokyo (Tokyo Tribunal). (20)

      Although Allied forces created and ran the Nuremburg Tribunal, nineteen countries concurred with its establishment and holdings, (21) thereby providing an additional air of international support. (22) Although defendants could be tried on charges of crimes against peace, aggression, war crimes, and crimes against humanity, (23) Nazi leaders could not be convicted of genocide. (24) In 1945, a formal definition of genocide did not yet exist within the context of international law. (25) The elements of genocide were eventually established by the Genocide Convention of 1948. (26)

      Allied nations had exclusive control over the Nuremberg and Tokyo Tribunals and created them following the Allied victories in Europe and Japan. (27) The Tokyo Tribunal was not even established by international treaty; General MacArthur was primarily responsible for its creation and direction. (28) As the Supreme Commander for the Allied Powers, he decided the Tribunal's substantive and jurisdictional law, chose its chief prosecutor, and even had the power to select its president and judges. (29) As a result of the way in which the tribunals were created and conducted, they have been criticized as being "fatally flawed from the beginning, from before the beginning; they were trials of the vanquished brought before the courts of the victors." (30)

      Although Nazi leaders were tried for war crimes, Allied actions taken during the war were never examined, much less prosecuted. (31) Arguably, the Allied bombings of Dresden and Tokyo, as well as the nuclear strikes against Hiroshima and Nagasaki, might fit under the Nuremberg Charter's definition of war crimes. (32) However, the Nuremberg Tribunal's jurisdiction was specifically limited to "German officers and men and members of the Nazi party" who had committed "atrocities in Occupied Europe." (33) The Tokyo Tribunal similarly focused on Japanese political and military leaders. (34)

      Even though the Nuremberg and Tokyo Tribunals have been criticized as being "'victors' justice," (35) justice occurred nonetheless. (36) Allied prosecutors were highly aware that any appearance of impropriety would taint the Tribunal's legitimacy. (37) Therefore, all defendants received full due process of law. (38) The twenty-four Nuremberg indictments resulted in twenty-two trials--nineteen guilty verdicts and three acquittals. (39)

      The Nuremberg and Tokyo Tribunals demonstrated the importance of enforcing and punishing violations of international law. (40) Following World War I, Allied leaders intended to prosecute the Ottoman-Turkish officials responsible for the 1915 genocide (41) of 500,000-600,000 domestic Armenians. (42) Not only did they fail to de so, but in the 1923 Treaty of Lausanne, Allied nations granted Turkish officials amnesty for genocide. (43) Years later, Albert Speer, a Hitler confidante, (44) stated that "it would have encouraged a sense of responsibility on the part of leading political figures if after the First World War the Allies had actually held the trials they had threatened...." (45) Indeed, while orchestrating the Holocaust in 1939, Adolf Hitler asked: "Who after all is today speaking of the destruction of the Armenians?" (46)

      The Nuremberg and Tokyo tribunals took great strides to make individuals accountable for violations of customary international law. (47) Defendants were not allowed to raise defenses of immunity based on national mandate or superior orders. (48) Otherwise, "practically everyone concerned in the really great crimes against peace and mankind" would be immune to prosecution. (49) The tribunals emphasized the proposition of "individual responsibility for ... crimes punishable under international law.... This principle of personal liability is a necessary as well as logical one if international law is to render real help to the maintenance of peace." (50) Moreover, if individuals either know or should know that atrocities such as genocide, war crimes, and crimes against humanity are taking place, they are charged to "take such steps as [are] within their power to prevent the commission of such crimes." (51) Indeed, they may even be held responsible for failing to act. (52) This idea of individual accountability is now accepted as a customary tenet of international law. (53)

    2. The Cold War's Numbing Effect on Establishing a Permanent, International Criminal Court

      Following the Nuremberg and Tokyo Tribunals, the focus of international law shifted toward multinational institutions. (54) The international community explored the possibility of creating a permanent court to address the types of crimes prosecuted at Nuremberg and Tokyo. (55) The United Nations codified the Nuremberg principle of individual responsibility for war crimes. (56) It also requested the International Law Commission (ILC) study the feasibility of creating an international criminal court. (57) While the International Court of Justice resolves only disputes between nations, (58) the proposed international criminal court would directly prosecute individuals. (59)

      The ILC commissioned studies from R.J. Alfaro and A.E.F. Sandstrom to assist in this effort. (60) In their reports, Alfaro and Sandstrom reached drastically different conclusions. (61) While Alfaro determined that an international criminal court was a beneficial, viable option, (62) Sandstrom concluded that such an institution was incompatible with national sovereignty, and that its failure would ultimately harm international law. (63)

      Specifically, Sandstrom indicated that both the authority and impact of an international criminal court would be limited due to enforcement and jurisdictional problems. (64) Additionally, countries that had not ratified the treaty creating the court would resist giving up national sovereignty. (65) As a result, an international criminal court would not have the ability to force individuals to appear before it. (66) If the only defendants appearing before the court were citizens of signatory nations or the signatories' prisoners of war (as was the case in the Nuremberg Tribunals), the court's jurisdiction would appear restricted and random. (67)

      Despite the reports' contradictory findings, the ILC overwhelmingly supported the Alfaro Report. (68) The U.N. General Assembly then formed the Committee on International Criminal Jurisdiction (CICJ) to draft an international criminal court statute. (69) Although it was presented in 1951 and revised in 1953, (70) the CICJ draft failed to adequately address which crimes would fall under the proposed court's jurisdiction...

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