Criminal justice degree

Introduction

Globalization has been called nothing more than the compression of time and space. (1) People, things, and information can now move around the globe so fast that the world is essentially becoming, a smaller place. Because of this constant and rapid movement in all directions, the peoples of the world, like so many tectonic plates, are constantly bumping into one another and creating impacts on one another, intended or not. In this environment, with this ever-increasing interaction between states, governments, and their peoples, the Westphalian concepts of state sovereignty (2) are more frequently being put to the test. In the United Nations Security Council, the world community has created a coercive body, which has the power to tell sovereign states what to do, and the power to enforce those orders. While it cannot yet truly be called a "world government," the United Nations is certainly a step in that direction, or at least, as an organization, is moving in that direction. Because the free peoples of the world have accepted that their governments must be of laws and not of men, not of whims or caprices, but of set standards fairly applied, it stands to reason that the United Nations would at some point need legal institutions to help it as it takes steps toward being a part of a world government.

The International Court of Justice is one such legal institution, which is available to resolve disputes between states. The effectiveness of this institution has been called into question, however, because its jurisdiction is limited to cases in which all state parties consent, and because states have other means which they have preferred for settling international disputes. (3) The rule limiting jurisdiction to consenting state parties was a reflection of the customary international law concept, later embodied in the Vienna Convention on the Law of Treaties, that sovereign states can only be bound with their consent. (4) While states could agree to create a court with jurisdiction over them even in the absence of a case-by-case consent, they have not yet done so.

In the area of individual criminal jurisdiction, the international community has not been so reluctant to create courts with non-consensual jurisdiction. The ad hoc International Criminal Tribunals for the Former Yugoslavia and for Rwanda imposed jurisdiction over accused criminals, regardless of state consent, by the coercive power of the Security Council. (5) The new International Criminal Court concept, following in the footsteps of these tribunals, is yet a further move away from the traditional rules of international law, in that it purports to impose jurisdiction over some accused criminals from non-consenting states, even when those states are not parties to the treaty that created the Court.

The United States finds itself in an awkward position in this debate. As much as the Security Council may have set a precedent for coercive action without the consent of the sovereign states involved, it has always had to take that action with the consent of the United States and the other four permanent members of the Council, all of whom have the ability to exercise a veto. (6) Now, after the United States has spent much time and effort advocating the International Criminal Court concept and helping to shape its structure and procedures, the United States has been out-maneuvered in the international negotiations. The result is an agreement on a Court that is independent of the Security Council to a large degree and purports to have its own coercive power which can be exercised even without the consent of the permanent members of the Council. (7)

While the United States certainly has been an advocate of the International Criminal Court concept as a useful tool to help maintain basic standards of human decency in this increasingly globalized world, surely it had also envisioned a Court which would operate within the control of the Security Council and subject to similar constraints on its powers as were the ad hoc tribunals. The danger of a Court so unchecked by Security Council control has led to a host of visions of worst-case scenarios of rogue prosecutors or judges applying unfair standards to innocent U.S. peacekeepers in an effort to make a political statement against the hegemonic super-power. While it is easy to say these dangers are insignificant, a good lawyer must always protect the interests of the client, and any lawyer who did not point out these dangers would be committing malpractice.

It can also be argued this is but a small issue, since the International Criminal Court will be dealing with individuals (as opposed to states) charged with a relatively narrow spectrum of crimes, and the chances of this impacting on U.S. national power are very slim. On the other hand, if this Court is allowed to come into being with U.S. consent and with the power to act coercively independent of the Security Council, it will surely be a crack in the dam, which though small initially, will grow ever-larger. This can only lead to pressure for more international institutions that operate in the same manner and, ultimately, may signal the beginning of the end for the supreme power of the Security Council and, in particular, of its permanent members.

This is a huge concern for the United States. For as much as the United States wants world order, it does not want to fall victim to a world order that might not be representative of its values. Any student of U.S. history cannot doubt that the United States would react this way. It was, after all, our ancestors' desire to throw off the tyranny of unrepresentative government that led to our Revolutionary War. Surely our current crop of lawmakers will not want to go down in history as the people who returned our country to a state of imposed domination from outside our borders. For this debate to progress, the international community needs to understand the United States concerns. Through greater understanding, compromises may be reached which will allow the Court to carry out its proper function, but at the same time will allay the U.S. fears that its power will be abused for a more sinister purpose.

This article examines the history and mechanics of the International Criminal Court. Part I reviews the history of the International Criminal Court concept. (8) Part II relates the significant events that occurred during the development of the Rome Statute of the International Criminal Court. (9) Part III provides a somewhat detailed look at the mechanics of the proposed Court, to include the Court structure and the Court procedures. (10) Finally, Part IV addresses the remaining concerns with the Statute and how they might be addressed in such a way that the Court can become the instrument of international justice that the world community needs in this day and age. (11)

Part I: History of the International Criminal Court Concept

The concept of international crimes is not new. As early as the sixteenth century, piracy was recognized as an international crime with universal jurisdiction. By the end of the nineteenth century, slavery was also widely recognized as an international crime. (12) Over the years, a number of other types of crimes have been added to the body of international law by various treaties and conventions. But while internationally recognized crimes have existed for centuries, and the concept of some sort of international tribunal to sanction these crimes has been discussed for almost as long, the realistic possibility of creating a permanent international criminal court is relatively new. (13)

Historically, these international crimes were crimes of universal jurisdiction, which meant that any nation that found itself in possession of a perpetrator of such a crime would have jurisdiction to try the accused person in its own national courts. (14) Conceptually, the main potential weakness of this approach might lie in the inability of an accused person's national courts to try the case fairly and objectively. This could create at least a perception in the international community that war criminals were enjoying what might be called a "home field advantage," or even worse, immunity. (15)

This weakness manifested itself clearly in the aftermath of World War I. Although the Treaty of Versailles specified that an international court would try the German Kaiser, this never occurred. (16) The treaty also provided that Allied tribunals would try other suspected German war criminals, but ultimately the Germans could not agree to the list of people the Allies requested for extradition. The German government was concerned that to appear overly submissive would undermine its already weak political standing with the German people. (17)