• 5 Posts
  • 85 Comments
Joined 3 years ago
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Cake day: October 19th, 2023

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  • So far, in the cases which have actually run to completion in the ICC, they have been about crimes committed in countries with weak or non-functional judiciaries. This, I would assume, is the court’s primary purpose.

    Your assertion that the ICC Prosecutor is obligated to respect the decision of a state party’s procuratorial authority to not prosecute seems unsupported by the text of the Rome Statute. Article 20, Section 3 of the Statute only precludes the ICC from trying offences which have been fairly and impartially tried in another court. The key here, is that the accused must have actually been tried. A decision not to prosecute by local prosecutors does not prevent the ICC Prosecutor’s Office from pressing charges.

    I do, however, agree for the most part that the United States can avoid the issue with respect to its own citizens by simply prosecuting all the possible crimes domestically in American courts, which would remove the jurisdiction of the ICC, averting all the nasty due process violation concerns. The US can accede with a reservation that all crimes involving US citizens will instead first be referred to the US Department of Justice for local prosecution, and then domestic legislation can force the Department of Justice to at least put some effort into a prosecution to satisfy the requirements of Article 20, Section 3 and foreclose ICC jurisdiction.

    There are also some arguments about how the US being obligated to arrest visiting foreign heads of state or government with active warrants against them would be detrimental to the general peace-building process, but I don’t agree with this interpretation. Article 98 of the Rome Statute states that state parties are not required to extradite in violation of other obligations of international law, presumably including diplomatic immunity.

    So yes, I agree that it is a weak argument for not adopting the Rome Statute. To be clear, I think the real reason the US did not ratify the Rome Statute is because the US military has its fingers in so many pies that it’s inevitable that some criminal conduct has occurred somewhere, but having even a single US service member appear before an international war crimes tribunal would be geopolitically embarrassing, especially since neither of the two other contemporary world powers subject themselves to ICC jurisdiction.


  • I will be honest, the genuine reservations voiced about the ICC and the due process problems are legitimate. I don’t agree that they outweigh the benefits of joining the ICC, but I do understand that a reasonable person could conclude otherwise.

    For one, ICC proceedings take years and there is no right to a fast trial. Article 67 of the Rome Statute gives the defendant a right against “undue delay” but this clause is essentially toilet paper in reality. A defendant can spend years in detention awaiting a resolution to their case, even if they are later acquitted and released (which has happened).

    For comparison only, there is a right to a speedy trial in American law. If exercised, this usually results in a trial scheduled in mere weeks, at most a month or two for complex cases.








  • This is probably fine as long as they can suffer the shenanigans from the Board of Peace until 2029. The problem is that the UN gave an implementation mandate to the Board of Peace. This is extremely problematic as the Board of Peace lacks credibility and its leadership structure is completely centralised around its chairman for life, Donald Trump.

    After the next US president takes office, I think it’s highly likely that the United States will use the threat of withdrawing from the Board of Peace and freezing its bank accounts (the Board has an account at the World Bank which is empty; all funds are currently held in a private account under the control of Trump at JP Morgan, an American bank) to force Donald Trump out of the position of chairman, or try to get the Security Council to withdraw the mandate. If the US withdraws all support from the Board of Peace, it would probably crumble without access to American resources. This would provide a good reason to transfer the mandate away from the Board to the UN’s own Trusteeship Council. At least the Trusteeship Council has a reputation for mediocrity when it comes to overseeing its territories.