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Is the International Criminal Court contravening international law?

Alex de Waal continues to provide the most thoughtful public commentary on the International Criminal Court (ICC).

The International Criminal Court faces political realities today that were not anticipated when the Rome Statute was so laboriously negotiated a decade ago. It’s commonly the case that an international institution develops in ways that its founders didn’t foresee—the UN itself is a prime example.

While the immediate challenge to the ICC derives from Chief Prosecutor Luis Moreno Ocampo’s public application for an arrest warrant against President Omar al Bashir, more fundamental issues are also surfacing.

The full post is worth reading. Especially interesting, I thought, was this point:

What is the jurisdiction of the Court over a country that has not ratified the Rome Statute? It is a fundamental tenet of international law that no state can be bound by a treaty to which it is not party. Sudan has not ratified the Rome Statute (and it’s unlikely that it will any time soon) and its rejection of the ICC is based on this.

3 Responses

  1. Yeah, I just asked an international law colleague, actually he’s a criminal defense attorney in San Diego but he knows a lot about international law too and he agrees with you 100%. ‘It is a fundamental tenet of international law that no state can be bound by a treaty to which it is not party.’
    Right on for bring this up.

  2. @Anonymous:

    I don’t think the ICC’s actions have been biased as much as proportionate and pragmatic. While one could potentially make a case for pursuing Rumsfeld, one would have to admit that his actions have been in violation of international law far less clearly than those of, say, Joseph Kony. And even if Rumsfeld did force-feed victims to each other, he would certainly have the good sense (or advisors’ input) to do so without leaving behind incriminating evidence. A case against Rumsfeld would surely flounder, regardless of America’s dislike of the ICC.

    And on a more emotional level, having been to Northern Uganda, I find it hard to compare any Western nations’ leaders (or terrorists, for that matter) with the dedicatedly malicious people on the Court’s short-list. This isn’t about “civilized people” and “barbarians”: this is about bringing justice in response to deliberately evil acts.

    Plus, from a purely legal standpoint, the ICC has no jurisdiction in the United States or in Iraq (whether or not Iraq’s decision to pull out was forced by the United States). I fully agree that the American position vis-a-vis the ICC has been hypocritical; but that does not, in my view, make the ICC itself or its past actions hypocritical. (Maybe biased or politically motivated, but even then within a healthy margin of doubt.)

  3. But don’t you think the icc is fundamentally hypocritical in that the only ones brought to justice have been (and likely will continue to be) people from poor countries, meanwhile the Rumsfelds and Bushs are running free? Frankly, i think the only thing that will give the icc any real legitimacy is a real and authentic effort on their part to bring emperialist powers to justice. Otherwise, it will always be seen as an arm of the emperialist machine or worse, the white man’s supremacist obsession to bring “civilization” to the “barbarians.”

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