The International Criminal Court: a American view

Abstract

The international community has been chastened by the recent record of brutal civil wars. Violation of humanitarian standards has become a tactic of war. The attempt to strengthen enforcement of the law of war through a permanent international criminal court is thus a signal event. The negotiations conducted in Rome in 1998 did not solve all the difficulties that attend a permanent court. These include the problem of amnesties in democratic transitions, the necessary role of the Security Council in UN security architecture, the conflict between broad jurisdiction and developing the law, the role of consent as a treaty principle and third party jurisdiction, the handling of treaty amendments, and the inclusion of ‘aggression’ as a crime with no agreement on its definition. The necessary role of the United States in providing effective enforcement of ICC judgments warrants continued negotiation to overcome these differences. The achievement in Rome in July 1998, framing a treaty for a permanent international criminal court,1 is a millennial event. The twentieth century has been a bloody epoch; its close is best marked with a promise to act against those who disregard the fundamental laws of war and humanity. Cambodia, Bosnia, Rwanda, the Congo, Sierra Leone, and now Kosovo, show that political and military leaders often prefer the intimidation of terror to any reputation for decency. Though only an army can interrupt genocide, the forms of justice are a means to strengthen the norms against indiscriminate violence, integral to the honour of the profession of arms. The awe and finality of trial can help teach respect for humanitarian standards, showing that the safeguard of civilians and non-combatants is a demand of the law, and not a matter of arbitrage.