A response to the American view as presented by Ruth Wedgwood

Abstract

In her article in this issue Ruth Wedgwood identifies several features of the Statute of the International Criminal Court that raise American concerns. Although these concerns may have political bearing, the Statute provisions are widely within the scope of existing international law. Explicitly allowing amnesties as a ground for denying surrender of a person to the Court would run counter to the need to avoid impunity for the crimes in question, given their nature, the international concern they merit and their existing legal status. The Statute includes clauses that allow the Court to discontinue prosecution in the general interest of justice. Amnesties may be a relevant factor in such a decision. The Security Council has a significant right to refer cases to the Court, as well as the power to suspend a prosecution. The Statute allows for indefinite renewal of the suspension period. The ICC does not exercise universal jurisdiction. Its jurisdiction is based squarely on traditional modes of jurisdiction exercised by states. There is no principle in international law that prohibits states from conferring their sovereign jurisdiction to an international entity. Problems of pacta tertiis do not arise, since the Statute does not impose legal obligations on non-state parties. The language in the Statute regarding direct and indirect transfer is a valid interpretation of the Geneva Conventions. Additionally, the Statute must be interpreted according to governing provisions of international law, including the Geneva Conventions themselves. There are several provisions in the Statute which deal with non-compliance with requests of the ICC for cooperation. Further provisions will be elaborated by the Assembly of States Parties.