United States and International Criminal Law: Perpetual tale of opposite poles


The changing face of global adversity in the arena of international law has had a monumental impact on international legal jurisprudence. One of the branches that have predominantly developed is international criminal law albeit the involvement of global super powers has eluded the system.

The classical case of The ‘United States’ (hereinafter referred to as ‘U.S’) being reluctant to partake on international criminal law journey is highly deplorable. It is quiet ironical that the U.S seems to be hostile towards international criminal court on the one hand and on the other hand had played a pivotal role in drafting Rome Statute, what exactly is it about the international criminal court that seems to twist the tail of the State Department in U.S. whether its pentagon NSC senators or congressmen. The hostility of U.S is manifested through the perverse use of ‘Veto’. The idea of accountability for serious violations of international humanitarian law lies at the very heart of the U.S foreign policy which is why the nullification of criminal law jurisprudence by U.S seems perplexing. The bilateral treaties which the U.S assigned to shelter U.S nationals have taken precedence over threat of transfer to the court. The U.S was represented by Mr.David scheffer (U.S. Ambassador) in the course of drafting the ICC. The policy makers believed that U.S being a signatory wouldn’t hamper the independence of the prosecutor and the ‘principle of complementarity’ will ensure that American war criminals are adequately prosecuted by the domestic tribunals. Another aspect that seems paradoxical is the vociferous support of U.S for the adhoc criminal tribunal and its opposition to ICC.

Reflection of History towards ICC

Post World War I, U.S submitted a memorandum of reservations which urged a cautious approach to forge ahead with post war prosecution. This is the primary reason why a tribunal like Nuremberg did not exist after atrocities of World War I. A quarter century later, international criminal law resurfaced with extra vigor, the U.S being in the consortium of allied forces displayed keen support to hold the access enemies responsible for violation of laws and customs of war. The Nuremberg trials is widely regarded as a flash point in the growth of international criminal law jurisprudence for the first time individual where held liable for war crimes, crimes against humanity, crimes of aggression etc., the Nuremberg principle is regarded as the golden thread in the annals of international legal discourse, the poignant episode of world wars had brought international community to a brink of extinction. The lessons of war era had established The Unite Nation whose primary object was to save the succeeding the generations from the scourge of war. The initial phase of U.N was littered with many debates; the sixth committee of U.N which is the legal committee came to the forefront in development of various branches of International Law. In the same period the International Law Commission played a proactive role in developing of the subject to a new horizon. The period was ripe and it witnessed a tangential growth of criminal law jurisprudence, one such development was the drafting of the ‘Genocide Convention, 1948.’ The United States which actively participated the drafting of the convention denounced the convention citing domestic reasons. Genocide as a crime developed as a full-fledged crime post 1950’s and other developments the global relations had is repercussions in molding the jurisprudence of international criminal law. The U.S prosecutor in the Nuremberg trial Mr. Robert H. Jackson statement is a clear indicative of the stance advanced by the U.S  “unless it’s a war the U.S won’t interfere with the domestic affairs of some other Government” this was translated into crimes against humanity  which apparently could occur only during war time.

One of the challengers that remained unresolved during the drafting of the Genocide convention was the question of universal jurisdiction. The U.S was opposed to the very idea of universal jurisdiction this is quiet palpable in Art. 6 of the Genocide Convention, 1948. By the early 1980’s the law on universal jurisdiction had evolved considerably this is primarily because of certain milestone cases like Adolf Eichmann, Pinochet but in U.S with the verdict in the case of Demjanjuk vs. Petrovsky (6th cir 1985) Universal Jurisdiction was adopted in substance. In the early half of 1990’s George Bush and Margret Thatcher took a page from the book of Nuremberg trial and broached the idea of an international tribunal with jurisdiction over aggression and hostage taking, this was in the backdrop of the infamous hostage crisis in Iran and 1972 Munich disaster. In 1992, international prosecution reemerged with outbreak of the war in Bosnia and Herzegovina, U.S sponsored an resolution (Res.780) which enquired into violation of international humanitarian law and ethnic cleansing.

United States and Drafting of ICC

The United States actively participated the drafting of ICC, one instance is the debate on death penalty. The Arab and Islamic states, Caribbean states where staunchly for death penalty while certain other countries in favor of this.  The question remained a stumbling block for the survival of ICC. The debate was put to rest by the U.S Ambassador David Scheffer whose argument on ‘Complimentarity Principle’ insisting on a national judicial system to prosecute and punish crimes within its jurisdiction including death penalty played a significant role. This is projected under Art.80 of the Rome Statute.

The arguments against the Rome Statute by the United States, is riddled with controversy, the Rome Statute didn’t have Jurisdiction over the right of the citizen of the third state, and this is because question involves State Sovereignty. Another, angle which the U.S put to the forefront in not signing the ICC was the penchant of the U.S for reservation, declarations, proviso, ratification etc, which is proscribed under the Rome Statute courtesy Article. 120, which the United States affirmately believes would transgress the Constitution of U.S.