Seeking an international International Criminal Court — some reflections on the United States opposition to the ICC

JurisdictionSouth Africa
AuthorMax Du Plessis
Date24 May 2019
Published date24 May 2019
Pages301-320
Citation(2002) 15 SACJ 301
Seeking an international International
Criminal Court — Some reflections on
the United States opposition to the ICC
MAX DU PLESSIS*
Introduction
The Statute of the International Criminal Court was adopted on
17
of July
1998 by an overwhelming majority of the states attending the Rome
Conference.
1
At the time of writing, the Rome Statute has been signed by 139
states and 76 states have ratified it,
2
the most significant absentee being the
United States. It has been remarkable that within four years the treaty
achieved the 60 required ratifications.
3
The Statute entered into force on 1
July 2002, at which time the Court's jurisdiction over genocide, war crimes
and crimes against humanity took effect. It goes without saying that the
growing hostility to the court displayed by the United States — starting with
its decision to oppose the adoption of the Statute at Rome, and most recently
exemplified in its move to 'un-sign' the treaty
4
— has dampened the
* Muds (SA), LLB (Natal), LLM (Cambridge),
Senior Lecturer, University of Natal, Durban.
Advocate of the High Court of South Africa, Associate Member of the Natal Bar.
The main
body of research for this article was conducted in my capacity as a Research Associate at
Matrix Chambers, London in support of a speech delivered by Cherie Booth QC as part of the
Wiener Library/Matrix 'From Nuremberg to The Hague' lecture series in June 2002. I am
grateful to her and Matrix for allowing me to draw on that research in this article.
1
The Statute was finalised at the Rome Conference, attended by 160 states (including South
Africa), from 15 June to 17 July 1998. For an account of the negotiating process at the Rome
Conference, see P Kirsch and J Holmes 'The Rome Conference on an International Criminal
Court: The negotiating process' (1999) 93
AJIL
2.
2
For signature and ratification status, see
htp:/www.un.org/law/icc/index.html.
3 The Statute required sixty ratifications before it could enter into force (see Article 126 of the
Rome Statute).
4 On 6 May 2002 the United States government delivered a letter to the Secretary General of the
United Nations giving formal notice that the United States has no intention of becoming a party to
the Rome Statute. The letter also requested that the United States declaration be reflected in the
Rome treaty's official list— effectively cancelling out the United States signature to the treaty that
was entered by the Clinton administration on 31 December 2001. This measure — referred to as
'unsigning' — sets the United States in outright opposition to the court. While this is unfortunate
at the level of policy, the action of withdrawing from a treaty prior to ratification is explicitly
sanctioned by international law. Under a 18 of the 1969 Vienna Convention on the Law of
Treaties, a state that has signed but not ratified a treaty is obliged to 'refrain from acts which
would defeat the object and purpose of the treaty .. . until it shall have made its intention clear not
to become a party to the treaty'. Having made its intention clear by the afor
ementioned letter, the
United States now has a freer hand to act using diplomatic means to oppose the court and to
301
(2002) 15 SACJ 301
© Juta and Company (Pty) Ltd
302
SACJ •
(2002) 15 •
SAS
excitement that goes along with these developments. With or without the
involvement of the Americans, however, the court is expected to be up and
running in March 2003.
Aspirations to establish a permanent international criminal court can be
traced back to shortly after the Second World War and the adoption by the
newly created United Nations, on 9 December 1948, of a resolution mandating
the International Law Commission to begin work on the draft statute of an
international criminal court.
5
In the climate of the Cold War, little was done to
take the project forward, and the idea of an international criminal court was
revivified only in the 1980's with a proposal by Latin American States, led by
Trinidad and Tobago, who envisaged such a court as their last resort to
prosecute international drug-traffickers.
6
The International Law Commission
was thereafter directed by the General Assembly of the United Nations to
consider the drafting of a statute of an international criminal court. The early
1990's saw the Commission prepare a draft statute for such a court and by 1994
a formal Draft Statute for an International Criminal Tribunal was adopted by
the International Law Commission and forwarded to the General Assembly for
consideration.
?
During the time that the Commission was preparing the Draft
Statute, events compelled the creation of a court on an ad hoc basis to respond
to the atrocities that were being committed in the former Yugoslavia. That
tribunal, the International Criminal Tribunal for the former Yugoslavia (ICTY),
was established by the Security Council in 1993 and mandated to prosecute
persons responsible for serious violations of international humanitarian law
committed in the territory of the former Yugoslavia since 1991.
8
Then, in
November 1994, and acting on a request from Rwanda, the Security Council
voted to create a second ad hoc tribunal, charged with the prosecution of
genocide and other serious violations of international humanitarian law
committed in Rwanda and in neighbouring countries during the year 1994.
9
minimise the chances that United States military, governmental or other official personnel might
ever appear before the court. (See generally A Dworkin 'The United States and the International
Criminal Court: A briefing'
Crimes of War Project
15 May 2002 available at
ht
tp://www.crimesofwarorg/onnews/news-us-icc.html).
5
See W Schabas
An Introduction to the International Criminal Court
(2001) vii.
6
See K Kittichaisaree
International Criminal Law
(2001) 27.
See J Crawford 'The ILC's draft statute for an international criminal tribunal' (1994) 88
AJIL
140;
J Crawford 'The ILC adopts a statute for an international criminal court' (1995) 89
AJIL
404.
8
See United Nations Security Council Resolution 808 of 22 February 1993 and Resolution 827 of
25 May 1993. For detailed accounts of the creation of the ICTY, see MC Bassiouni and P
Manikas
The Law of the International Criminal Tribunal for the Former Yugoslavia
(1996)
chap 1-2. See too V Morris and M Scharf
An Insider's Guide to the International Criminal
Tribunal for the Former Yugoslavia: A Documentary History and Analysis
(1995).
9
See United Nations Security Council Resolution 955 of 8 November 1994. For detail see C
Scheltema and W van der Wolf (eds)
The International Tribunal for Rwanda: Facts, Cases,
Documents
(1999).
© Juta and Company (Pty) Ltd

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