The International Criminal Court: a American view

TLDR

Recent brutal civil wars and widespread violations of humanitarian standards have highlighted the challenges of establishing a permanent international criminal court, including issues of amnesty, Security Council involvement, jurisdictional conflicts, consent, treaty amendments, and defining aggression. The paper argues that establishing a permanent ICC is essential to enforce the law of war and that U.S. participation is crucial for effective enforcement, necessitating ongoing negotiations to resolve outstanding issues.

Abstract

The international community has been chastened by the recent record of brutal civil wars. Violation of humanitarian standards has become a tactic of war. The attempt to strengthen enforcement of the law of war through a permanent international criminal court is thus a signal event. The negotiations conducted in Rome in 1998 did not solve all the difficulties that attend a permanent court. These include the problem of amnesties in democratic transitions, the necessary role of the Security Council in UN security architecture, the conflict between broad jurisdiction and developing the law, the role of consent as a treaty principle and third party jurisdiction, the handling of treaty amendments, and the inclusion of 'aggression' as a crime with no agreement on its definition. The necessary role of the United States in providing effective enforcement of ICC judgments warrants continued negotiation to overcome these differences.