A Real International Criminal Court Now Operating

By James Donahue

In what may perhaps be marked as a milestone in human history, a newly created International Criminal Court (ICC) is now in existence.

Some readers may think that such a court has already been in existence for a very long time. After all, many of us remember the Nuremberg and Tokyo Trials of international "war criminals" conducted immediately after World War II. Then there has been the trial of former Serbian President Milan Milutinovic and other so-called "war criminals" following the civil war in Kosovo.

The court that heard these cases in The Hague, Netherlands, was created as a result of meetings by leaders of the three allied nations in the midst of World War II, the United States, USSR and the United Kingdom. There was a general agreement during meetings in Tehran, Yalta and Potsdam that certain leaders of the axis nations needed to be tried and punished for war crimes. And this lead the the formation of a court that represented the winning nations emerging from that war.

Had Germany, Italy and Japan won the war, and such a court was created, we might have seen American leaders like President Harry S. Truman, General Douglas MacArthur, General Dwight D. Eisenhower, Stalin and Winston Churchill tried for war crimes as perceived by the enemy, and possibly hung or shot in the public square.

As idiotic as that seems to us today, it is exactly the kind of political stakes that we were playing when President Roosevelt, Churchill and Stalin established the concept of that court during the dark days of that war.

Notice that the court that tried Saddam Hussein for so-called "war crimes" and "crimes against humanity" was established with the help of the United States in Iraq, and conducted by Iraqi lawyers and judges. And there was some interesting politics at play behind the decision to conduct that trial in war-torn Baghdad, rather than move it to The Hague.

We believe it is because the machinery was already in place to establish this new International Criminal Court, which will also be centered in The Hague. But the new judicial system was not yet in place, the court was not quite prepared to hear its first case, and event though sanctioned by the United Nations, the United States has been standing opposed to its very existence.

Other nations voting against the treaty that established this court were Israel, China, Iraq, Qatar, Libya and Yemen. But the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. All that was required was 60 nations to ratify the treaty to create this court, and that has since happened. To date the court is sanctioned by 104 nations.

Thus the world has, for the first time in history, a real International Court in place to review international criminal cases such as war crimes and other types of international crimes against humanity and/or property.

It is interesting to note that both the United States and China have opposed this court for the same basic reason. They argue that it violates the sovereignty of nation states. They also stated concerns about "politically motivated prosecutions."

The United States has had a see-saw history when it comes to supporting and opposing this court. The original vote was against adoption of the Rome Statute in 1998, but then Democratic President Bill Clinton unexpectedly reversed his position on Dec. 31, 2000 and signed the treaty. At the same time, Clinton said he would not recommend that his successor, President George W. Bush, approve its ratification. And right on cue, the Bush Administration nullified the Clinton signature of the treaty in May, 2002.

It is interesting to note that US and British forces had been involved in an assault in Afghanistan for about seven months, and Pentagon and U.S. military leaders were planning an assault on Iraq to upset the regime of Saddam Hussein at the time the treaty was nullified. Were U.S. leaders concerned about someday being charged with war crimes by such a court?

Just to make sure, the US Congress that year passed the American Service Member's Protection Act, which prohibited military aid to nations that ratified the treaty and permitted the President to use military force to free any U.S. military personnel held by the court. The act later was modified to permit US cooperation with the ICC when it is dealing with "enemies" of the United States, but nobody else.

We suppose it will remain to be decided by the court itself whether any one nation has the power to exclude itself from international jurisdiction. If allowed, then there is nothing to stop all world nations from doing the same thing, and thus render such a court powerless.

In the meantime, the court opened in 2007 by examining evidence against Thomas Lubanga, a Congolese militant accused of using children as soldiers in a bloody war that raged in the heart of Africa. Some victims' groups were asking for additional charges that include murder, rape and torture.