The U.S. And the ICC: No More Excuses
12 Washington University Global Studies Law Review 563 (2013)
19 Pages Posted: 8 Jan 2014
Date Written: January 6, 2014
More than fourteen years after its creation and twelve years after it began to function, the International Criminal Court (ICC) still does not have direct support from the United States as a party to its constitutive instrument. There had been prior excuses for the U.S. not becoming a party to the Rome Statute. Whatever the degree of validity of prior excuses for not ratifying the Rome Statute of the ICC, with the articulation of core crimes prosecutable before the ICC in Articles 6-8 of the Rome Statute and creation of the Elements of Crimes, the ten-year record of ICC practice, the creation of the Kampala definition of aggression that requires a manifest violation of the U.N. Charter, and creation of an opt out provision with respect to the crime of aggression that the U.S. can take advantage of, the prior excuses have become unfounded. The fact that there are now 121 parties to the treaty and that Article 12(2)(a) of the treaty assures that there is no immunity of U.S. nationals from ICC jurisdiction over crimes covered in Articles 6-8 that occur at least partly in the territory of one or more of 121 countries underscores the fact that a desire to protect U.S. nationals from ICC prosecution is not a viable reason for not becoming a party to the treaty. In reality, there are no longer any meaningful excuses.
Keywords: Afghanistan, aggression, Bush Administration, complimentarity, crimes against humanity, due process, genocide, Kampala, ICC, impunity, jurisdiction, nonimmunity, opt out, prosecute, Rome Statute, U.S. nationals, U.N. Charter, universal jurisdiction, unwilling, war crimes
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