The 4th of July is sacred in the civic culture of Americans. On that day of 1776, their forefathers formally terminated allegiance to King George III. Prominent among their grievances against him was that he ‘made Judges dependent on his Will alone’ – by pulling the strings of term and pay. It is this judicial independence that lies at the heart of America’s idea of constitutional democracy; an enduring ideal, emulated around the world, wherever the rule of law truly matters.
We insist on this ideal with pride at the International Criminal Court (ICC). It is confusing then to behold an American official declare intent to unleash economic sanctions and malicious prosecution upon the ICC functionaries (judges notably included) for doing their job in accordance with the law – just because their work may not please those making that threat. Not even King George III would go that far.
Still, that profound paradox should not obscure the need to address underlying anxieties concerning the ICC. There are now 123 countries that are members of the ICC. They represent all regions of the world. They include France, Germany, Italy, Spain, Sweden, Norway, Denmark, Ireland, UK and all of America’s closest and traditional allies in Europe (old and new). We miss America’s leadership and presence at the ICC for it is a global project that represents America’s caring instincts for humanity. Its purpose is to ensure that our civilization no longer suffers millions of children, women and men to fall victim to unimaginable atrocities committed with impunity.
It was the Rwandan genocide in 1994 and the ‘ethnic cleansing’ in the former Yugoslavia in the early 1990s that gave the immediate impetus to the adoption of the ICC’s founding treaty in Rome in 1998, and the U.S. played a part in formulating its text in many important respects. Before 1998, the U.S. played a leading role in the international efforts to establish ad hoc international criminal courts to bring justice to the victims of the atrocities in Rwanda and the former Yugoslavia. Those courts were heavily influenced by American judicial ideals. But it was even earlier that the U.S. commenced its leading role in international efforts to use the law to mend tears in the fabric of civilization caused by rampant acts of inhumanity. At Nuremberg, the U.S. was uncompromising that Nazi criminals (however highly placed) must face trial: for the holocaust, for other crimes against humanity, and for sundry war crimes. Robert H. Jackson, the American Chief Prosecutor at Nuremberg, was at the spearhead, rightly insisting that an object of the proceedings was ‘to redress the blight on the record of our era.’
In 1998, the world felt a need for a permanent international court that will be on hand, both to try crimes of genocide, war crimes, crimes against humanity and the crime of aggression; and to serve as an urge of second-thought to the minds of those inclined to commit such crimes. The ICC is that permanent international court.
Current examples of the ICC’s investigations and cases include the alleged or – as the case may be – established atrocities committed in Darfur; by an insurgency group in Uganda; or by Al-Qaeda affiliates in Mali. The charges include crimes against humanity and war crimes. Their details comprise, among other things, rapes and other manners of sexual violence and murder, committed on a widespread or systematic basis. The charges in the Darfur situation include allegations of genocide. A Chamber of the Court has recently held that the Court may exercise jurisdiction over the plight of the Rohingya people, which a recent UN report alleges as possibly including genocide. It must be stressed, of course, that all the suspects and accused are presumed innocent until proven guilty. Precisely as in American courts, charges at the ICC must be proved beyond reasonable doubt and due process (including, most importantly, the right to defence) is fully respected.
An important question was asked about the meaning of ‘complementarity’ – which is a condition built into the ICC’s exercise of jurisdiction. Complementarity captures the idea that the ICC is only a court of last resort. As such, its jurisdiction serves only to complement the national jurisdiction. In both legal and functional terms, this means that the ICC does not usurp the sovereign jurisdiction of any country. The Court operates on the basic principle that every country has the primary obligation – indeed the sovereign right – to investigate and prosecute crimes committed by its citizens or on its territory. It is only when the country proves unable or unwilling to do so that the ICC steps in. To the victims, then, the ICC serves only as an insurance policy against injustice. So, when a country like the U.S., with its reputation for a competent and robust judicial system, is investigating or prosecuting genuinely a case falling within the American jurisdiction – or has done so already, – the ICC will not interfere. This is the law at the ICC.
I am confident that American interests and popular opinion do essentially unite with those of the world in creating and supporting the ICC. The prospect of the ‘death of the ICC’ would make the world a more horrid place for caring Americans, who cannot help but be confronted by the plight of victims of heinous crimes around the world: victims who may otherwise be without hope of justice. It is a modern legend of America to step up to the plate for the powerless. With military might she did so in the two world wars. But using the rule of law, she has also intervened with other countries to redress instances of gross atrocities around the world in modern times, when righteous might did not prevent them. That American instinct finds its place in the reality of the ICC. As with every other human institution, including the most exalted ones in America, the ICC is not perfect. But it is the only one of its kind that we have. Let us all work together to improve it – for humanity’s sake.
In the words of a great American patriot, Eleanor Roosevelt, ‘Our own land and our own flag cannot be replaced by any other land or any other flag. But you can join with other nations, under a joint flag, to accomplish something good for the world that you cannot accomplish alone.’ It is truly time for America to aim to fortify – not weaken or wreck – the ICC as the only seawall that now stands against the man-made tides of barbarity that frequently assault humanity in its weakest parts.
By: Chile Eboe-Osuji, the President of the International Criminal Court
