War Crimes and the ICC

A recent Jurist article Despite Claims, ICC Prosecution of Bush, Blair Would Be Illegal by Jesse Oppenheim, Brooklyn Law School Class of 2013, questions whether the International Criminal Court (ICC) has to file war crimes charges against former US President George W. Bush and former UK Prime Minister Tony Blair for invading Iraq. The article comes in response to Archbishop Desmond Tutu’s suggestion that the two former leaders "should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in The Hague." The ICC hears cases on genocide, crimes against humanity, and war crimes. It was established ten year ago in 2002 when the Rome Statute became a binding treaty with sixty signatories including the United States, the minimum number required to bring it into force. Since then, three states—Israel, Sudan and the United States—have informed the UN Secretary General that they no longer intend to become states parties and have no legal obligations arising from signing the Statute.

Since the establishment of the ICC in 2002, the Court has heard 16 cases with only one having been completed: that of rebel leader Thomas Lubanga from the Democratic Republic of the Congo who was sentenced earlier this year to 14 years in prison for his part in war crimes in his home country. The other cases all involve situations involving African nations. Oxford Reports on International Law has on its web site a module to view a list of the decisions of the ICC. The Brooklyn Law School Library has in its collection The Annotated Digest of the International Criminal Court (Call #KZ6316 .A48) in its International Collection.

Critics have argued that the Court applies “selective justice" to Africa and is "a pro-western, anti-African court." The newly appointed chief prosecutor, Fatou Bensouda, a Gambian national, says the ICC has sought justice for millions of victims in Africa. “Again and again we hear criticisms about our so-called focus on Africa and about the court being an African court, having an African bias. Anti-ICC elements have been working very hard to discredit the court and to lobby for non-support and they are doing this, unfortunately with complete disregard for legal arguments."

The article by Oppenheim, the Notes and Comments Editor of the Brooklyn Journal of International Law, points out the jurisdictional limitations of the ICC. Article 13 of the Rome Statute provides that only State Parties are subject to the ICC. Since the US has not ratified the Rome Statute and it is unlikely that the UN Security Council will refer the case to the ICC, former American officials will remain beyond the jurisdiction of the ICC. The BLS Library also has in its collection Hybrid and Internationalised Criminal Tribunals: Selected Jurisdictional Issues by Sarah Williams (Call #KZ7240 .W55 2012). For more on the pros and cons of whether the US should the US and other countries should join the ICC, see this Debatepedia webpage.