Recently a UN appointed commission has recommended strongly that heinous crimes of ethnic cleansing in Drafur which claimed thousands of life and made millions homeless, would be referred to the International Criminal Court (ICC). The Security Council, despite American hostility to the court, agreed to act. This is for the first time Security Council is referring a case to the court. 11 countries voted in favour and 4 abstained including the USA, which had earlier threatened to veto such a resolution. The UN Commission has drawn up a list of 51 prime suspects including some Sudanese officers and members of state-sponsored militias. The list has been handed over to ICC’s key prosecutor Louis Moreno Campo who plans to commence investigation soon.
The ICC is a permanent tribunal that will try individuals responsible for most heinous international crimes. 160 countries attended a UN sponsored conference in Rome in 1998 to draft the Rome treaty for the establishment of ICC. 120 countries voted to adopt the treaty, only 7 countries voted against it (including China, Israel, Iraq and US) and 21 abstained. Before the court can be set up 60 countries have to ratify the treaty. At present 90 countries including all the world’s major democracies have ratified the treaty but not the USA and this where the problem begins. The Canadian Ratification Bill known as Bill C-9 includes extensive commitments to the ICC.
The ICC will be a global judicial institution with an international jurisdiction complementing national judicial systems. There are three ways in which ICC can launch investigation:

1. A country where the crimes had taken place can ask ICC to look into the matter.
2. The Court’s Chief Prosecutor can take initiatives so long as the alleged crimes took place in one of the 98 countries, which have signed and ratified the treaty that created the court.
3. Security Council can make a referral regardless of where the crime took place.

Sudan has not ratified the treaty and so is not a member of ICC. It is challenging the legality of ICC’s intrusion on the ground that ICC’s statute allows it to pursue cases where the host country is neither able not willing to undertake it. Sudan is insisting that it will try and punish those who have committed crime in Drafur itself. It had also arrested a few suspects. However, in view of the support the killers received from the Sudan’s army and Air Force, it is doubtful if the investigations and trials staged by Khartoum will be fair and impartial. If the ICC feels that Sudan is trying to shield the suspects, it can unleash its own prosecutors. However, in return for not blocking the referral of Sudan’s case to ICC, United States has won the right for all states that has not joined the court to retain “exclusive jurisdiction” over any of their own nationals who might be accused of any crime in Sudan. Neither the ICC nor any other foreign court will have the right to investigate, prosecute or try them.
This brings to the fore America’s determined opposition to the ICC and the reasons behind it.
The crux of America’s concern relates to the prospect that the ICC may exercise its jurisdiction to conduct politically motivated, investigation and prosecution of US military and political officials and personnel. The American opposition to the ICC is in contrast to the strong support to it by America’s major democratic allies. Incidentally, US itself had played a leading role in the creation of ICC especially in the drafting of the ICC’s Rome statute. President Clinton signed the Rome statute on December 30, 2000 the last day the treaty was open for signature. But Bush administration sought to nullify the US signature by sending a letter to UN Secretary General expressing its intention not to be bound by the treaty.

IMPUNITY AGREEMENTS
The Bush administration is now negotiating bilateral impunity agreements with numerous countries around the globe. The goal of these agreements is to exempt US military and civilian personnel from the jurisdiction of ICC. America argues that such agreements are contemplated under Article 98 (2) of the statute. So far 82 countries had signed such agreements including 34 ICC members’ states. However, EU countries, Canada, Argentina, South Africa and other allies has refused to sign the agreement and argued that to do so would be to undermine Rome statute. Article 98 (2) provides that the ICC may not proceed with a request of surrender that would require the requested state to act inconsistently with its obligations under international agreement was included in the Rome statute to provide an orderly and rational process for the handling of suspects among states cooperating with the court. It was not intended to allow a state that has refused to co-operate with the court to negotiate agreements that secure exemption for its citizens or otherwise undermine the effective functioning of the court.
The Rome statute grants the court jurisdiction over the crimes of genocide, war crime, crimes against humanity if they occur in the territory of the state party or committed by its own nationals. While the statutes allow the state party to conduct its own investigation and prosecution, the court still holds authority to investigate or prosecute if a state party is unwilling to do so. This authority of the court acts as a guarantee against impunity.

SECURITY COUNCIL RESOLUTION 1422
When the Bush administration could not obtain an exemption from ICC jurisdiction for its officials and personnel involved in UN authorized missions it vetoed the extension of the Bosnian Peace Keeping Mission on June 30, 2002. But after long debates Security Council members conceded the US demand and adopted the resolution, which provides personnel and officials from non-ICC member states participating in UN authorized missions with one-year exemption from the ICC. Many countries felt that this was unnecessary and violative of the Rome Statute. Again in June, 2003, Security Council adopted another resolution renewing the exemption for UN Peace Keepers from the ICC jurisdiction for another year. However France, Germany, Syria abstained from voting and many Security Council members made it clear that this renewal would not be automatic in the coming years.
US Congress also assisted Bush administration to obtain bilateral impunity agreements. The Congress passed the American Service Members Protection Act (ASPA). The major anti-ICC provisions in the ASPA are:

(a) Prohibition on US cooperation with the ICC;
(b) Authorising US President to use all means “necessary or appropriate” to free US personnel detained or imprisoned by ICC;
(c) A prohibition on US participation in peacekeeping processes unless immunity for US personnel from ICC is guaranteed. However, there are waver provisions that allow the President to override the effects of ASPA in national interest.

The ICC is a court to prosecute horrendous crimes against humanity and comes into play only when the domestic courts have shown themselves unwilling or not able to prosecute the perpetrators. The idea of such a court dates back to the early days of the twentieth century. It has now gained special urgency against the backdrop of massacres in Rwanda, Cambodia and the Balkans. USA has exerted a positive influence in setting up of tribunals in dealing with allegations of war crimes in the former Yugoslavia and Rwanda. Indeed, US’s participation strengthens the ICC which cannot be effective in the face of steadfast US apposition. The fact remains that ICC will have to rely on security provided by U.N. Peacekeeping forces in the conflict zones. Many nations have worked hard for setting up of ICC and by remaining involved with it the USA will send the right message to the international community and will not be on the wrong side of history.

The views and facts stated above are entirely the responsibility of the author and do not reflect the views of this Association in any manner.