The International Criminal Court Jurisdiction

Introduction

The international criminal court is an international platform in legal action against the perpetrators of crimes involving genocide crimes of wars, crimes against humankind, and assault took according to its founding decree (the Rome statute of 2002). The tribunal is also mandated to carry out investigations upon the alleged commission of such crimes. However, the latter has not been enforced due to a lack of clear guidelines on the same. The ICC was established in 1998 but started its work on the 1^st of July 2002 when its founding treaty, the Rome statute of the international criminal courts was fully put in place. The court was therefore mandated to look into cases, within its jurisdiction, committed at and from 1^st July 2002 onwards. The international criminal courts have it’s headquarter in Hague, Holland, which forms its official sittings. However, it can hold its proceedings elsewhere as it may be allowed by the founding treaty. Membership to the international criminal court is however not automatic. Instead, it is subject to such a country signing the Rome statute, and the subsequent endorsement of the same. According to the statistics, the ICC had 108 member states, with 40 more having signed and not yet ratified the Rome statute. Ideally, therefore, the United States of America is not a member state of the international criminal court

The ICC influence

Initially, there were proposals that the international criminal courts be allowed to exercise common mandate worldwide. However, this proposal was not adopted. Alternatively, it was agreed that the ICC jurisdiction is limited only to those states who are signatories to the Rome statute. The United States of America notably led the pact that voted against the proposal and was probably the main force behind its failure. According to the agreement, the tribunal’s mandate was limited to those situations that were consistent with the Rome decree. Ideally, the accused has to be a citizen of the party signatory to the statute. In addition, the alleged must have been committed within the territories of a country party to the tribunal. However, the international criminal court is mandated to probe and try a case if requested to do so by the United Nation’s Security Council. In addition, the statute gave the court mandate to investigate and prosecute as the court of the last resort thus it can only come in when the judicial system of the member state was not in a position to or shows a sign of reluctance in undertaking such investigation and prosecutions.

ICC influence in the United States of America

To begin with, evidence shows that the international criminal court has no explicit jurisdiction in the United States of America. Although the then US president Bill Clinton had signed the Rome statute of the international criminal courts in the year 2000, he declined to submit it to the senate so that they could approve it citing that the government needed humble time to assess the functioning of the courts as the reason for this. He further advised his successor not to present the treaty to the Senate for advice and consent until and unless the United States of America’s concerns on the ICC were fully satisfied. In honor of this directive, the then United States president George W. Bush unsigned the Rome statute after it had reached the mandatory 60 requests for the US to do so. This took United States’ progress of being party to the international criminal court back to the drawing board.

The position held by the United States of America concerning the ICC varies greatly, with the current position being set by the immediate former US government, that is, the GeoBush administration, which made it clear that the United States intended never to join the ICC. The United States government stated that acceptance to join the ICC would infringe the sovereigntythe of USA as an independent country. The view taken by the United State government department is indeed a clear manifestation for this. In fact it raises concerns that the international criminal court could interfere with the decisions of an independent state in relation to probes and prosecutions. According to Bolton, the under secretary for arms and international securities in the Bush administration ICC had for a number of reasons unacceptable consequences on the United States of America as well as their interests in other nations. Bolton also held that ICC had vague, excessive and unaccounted for powers saying that it was also a court of limited jurisdiction. Bolton also raised concerns that subjecting the United States under the powers of ICC was inconsistent with American constitutionalism standards, saying that the accord gave the court unaccountable and extrajudicial powers. Another reasons cited for not joining the ICC was that the court could provide the way to politically aggravated prosecutions. The Bush administration also had several attempts to prevent ICC jurisdiction in the United States of America. Examples of these attempts include; the article 98 agreements which was part of the US campaign to exclude the military from ICC prosecutions, the criticism of the ASPA by the defense department, the Nethercutt amendments and massive opposition by people outside the government.

Although the present position of US towards joining the international criminal courts remains negative, there are prospects that it may change with the new administration, that is, the current administration under President Ballack Obama and the congress. Answering a question on whether United States will join the International Criminal Courts during the 2008 US presidential election campaigns, Obama (then senator) admitted the United States willingness to cooperate but insisted that this was subject to respect of United States independence a sentiment that was also held by other candidates in the United States’ 2008 presidential election campaigns. This only presents a possibility of USA joining the international criminal courts but for now it is not a member. ICC has therefore no jurisdiction whatsoever in the United States of America

References

1. A chronology of bush administration and actions against the ICC.
2. Madeline, M. ed. (2001). The United States and the International Criminal Courts,
3. The law and contemporary problems. Winter 2001, Vol. 64. No. 1. 
4. United States and the International Criminal courts.