The
International Criminal Court ("ICC") faces its fair share
of critics and supporters. Plenty of today’s
social movements call for a less globalist approach to world affairs and a
return to national principles and protections. Even supporters of an open world
admit that the spurt of globalization following the Second World War came at a
cost to certain sectors of a society. The return of these nationalist trends
seems to place new scrutiny on the ICC as an effective solution to punish those
violators of international human rights. A careful look at the structural
aspects of the ICC reveal that the ICC is in a strong position to have a
continuous role in international affairs.
The ICC never
had the full support of the main international powers. Though the United States
played an active role in the formation of the Rome Treaty, ultimately it “unsigned”
from the treaty out of fear that United States nationals/soldiers would be
subject to prosecution. China never signed on, and Russia never ratified it. In
addition, there have been high profile withdrawals from the treaty such as
South Africa’s attempt and the
Philippines’ recent announcement. With each
withdrawal the international community fears an exodus of support and the
demise of the court. But the key fact is that the court does not require
consent for prosecutions.
The lasting
strength of the ICC is the fact that it can gain jurisdiction through the
Security Council of the UN. Certainly, by refusing to sign onto the treaty,
States can avoid having the special prosecutor open investigations or begin
proceedings, but States cannot completely insulate themselves from the ICC. The
fact remains that a binding UN Security Council resolution can legitimately
bring a case to the ICC. This means that the ICC serves the supplemental role
it always was supposed to have: the ICC by design is a court of last resort.
The subject matter jurisdiction requirements
and the gravity requirements keep many if not most of the human rights
violators out of the court. But as an international body it does a good job at
remaining supplemental to the domestic processes of a State, only stepping in
on referral and or unwilling/unable situations. Given this saving strength of
incorporating UN Security Council jurisdiction, I think the ICC can survive its
current critiques. The political limitations embodied in the Security Council
will be the only restricting factor of the ICC,
such as with Myanmar, should States continue the
pattern to abandon the treaty. But even should an exodus from the treaty occur,
the court stands on the strength of the UN itself, and has a good chance of
continuing survival because of it.
By: Matthew
Goepfrich
