It cannot be overemphasized how historic the negotiations to establish a permanent International Criminal Court (ICC) have been. Over 120 states have participated in the process and not one of them questions the need for a permanent ICC to try individuals accused of the most serious international crimes of genocide, crimes against humanity or serious violations of the laws and customs of war (war crimes)

Gerber, Steven J.

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ESTABLISHMENT OF AN INTERNATIONALCRIMINAL COURTSteven J. GerberIt cannot be overemphasized how historic the negotiations toestablish a permanent International Criminal Court (ICC) have been. Over120 states have participated in the process and not one of them questionsthe need for a permanent ICC to try individuals accused of the mostserious international crimes of genocide, crimes against humanity orserious violations of the laws and customs of war (war crimes). Inaddition, hundreds of non-governmental organizations (NGOs) participatein the NGO Coalition for an International Criminal Court (CICC).'Over the last several months, some of the most supportivegovernments, known among themselves as the like-minded,2 and many ofthe NGOs have become increasingly dissatisfied with several positionstaken by the United States government in the negotiations to establish anICC. These positions include the role of the United Nations SecurityCouncil in the Court's jurisdiction, and whether the Court will have anIndependent Prosecutor authorized to initiate investigations andprosecutions on his or her own initiative.In fact, there have been comparisons between the ICC negotiationsand the campaign to ban landmines. In the case of the landmine treaty, theNGO coalition and the states pushing for the treaty made a strategicdecision to get what they considered to be the best treaty, even if theUnited States would not sign. A similar strategy, to push for the mosteffective and fair court even if the United States will not join, has beendiscussed as a possible route if the United States does not change itspositions on several key issues.Unfortunately, an ICC without United States participation isunlikely to succeed. It will not have a police force of its own to enforce itsdecisions and apprehend indicted individuals. The court will depend on theJ.D., M.A., Director of the International Criminal Court Project of the WorldFederalist Association and Coordinator of the Washington Working Group on the ICC.1. For more information on the Coalition for an ICC, see http://www.igc.apc.orglicc,call (212)599-1320 or write CICC, 777 U.N. Plaza, New York, NY 10017.2. The like-minded countries are a group of approximately forty countries that havepushed ICC negotiations forward and include many United States allies, such as Canada,Australia, Germany, Italy and other countries located in Europe, Latin America and Africa.ILSA Journal of Int'l & Comparative Lawcooperation of states party to the treaty establishing the Court. Thenegotiating states have still not determined what to do when a state fails tocooperate with the Court.The ICC will be effective only if the political will of theinternational community is behind it. One of the most important methodsto enforce compliance will be for other states to pressure the non-complying state to meet its treaty obligations. If the United Statesgovernment does not participate in the ICC, who will apply politicalpressure to cooperate with the Court?After all, it is the United States that has done the most to arrestindicted war criminals in the former Yugoslavia. The European states whoare pushing for the best possible treaty, regardless of United Statesparticipation, have done little to force the states of the former Yugoslaviato cooperate with the International Criminal Tribunal for the FormerYugoslavia.The United States has also provided more financial support,seconded personnel, and equipment for the two ad hoc tribunals for theformer Yugoslavia and Rwanda than any other country.3 If the UnitedStates does not participate in the ICC, which countries will provideadequate resources?Of course, some have argued that even if the United States doesnot ratify the treaty establishing the ICC, it could still support the work ofthe court -' that it would still be in the interest of the United States tosupport the ICC. Unfortunately, the United States Senate has alreadyindicated on several occasions that it would consider any effort tocooperate with the court without the Senate's advice and consent toratification as an attempt to bypass the Senate's constitutional role andwould oppose this.4It is true that an effective court, as defined by NGOs, could becreated without United States involvement, but such a court is unlikely tobe effective. If such a court were created and failed because of lack ofUnited States participation, it would be even worse than if the court had3. In 1994 and 1995 the:Several states have contributed assistance to the Tribunal in the form of a loan ofpersonnel to the Office of the Prosecutor. As of 29 May 1995, the Tribunal wasreceiving seconded personnel from the following states: United States (21 personnel);United Kingdom (5); Netherlands (3); Denmark (2); Norway (2); Sweden (2). . . . Inaddition, the United States made a contribution of computer systems and relatedservices for the Office of the Prosecutor valued at up to $2,300,000. The UnitedKingdom has also made a contribution of equipment valued at approximately $30,500.4. 1997 State Department Authorization bill (not passed).[Vol. 4:4231998] Gerber 425never been created. It would set back the attempt to enforce internationalhumanitarian law.

Establishment Of An International Criminal Court

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Establishment Of An International Criminal Court

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