The United States, the Security Council and the International Criminal Court: will international criminal justice prevail despite US recalcitrance

Abstract

Since 1945 when international criminal justice first became a reality the US has been its greatest champion and supporter. As part of the allied movement, the US played a central role in the creation of the Nuremberg International Military Tribunal.1 Its support for the process continued through the Tokyo trial, and the various successor trials of Nazi doctors, lawyers, military leaders, political leaders among others.2 The adoption of the convention on the prevention and punishment of the Crime of Genocide also highlights the importance of US support. Unlike the reticent Britain, the US was at the front line pushing for adoption of the convention. Additionally, in 1992 when proposals for international prosecution resurfaced following the outbreak of war in Bosnia-Herzegovina, the US took the initiative on a Security Council resolution to establish a commission of inquiry into reports of widespread violations of international humanitarian law.3 Interestingly enough, the US actively participated in the drafting process that led to the adoption of the Rome Statute. The International Law Commission’s draft text was refined through a series of preparatory conferences in which the US played an active role, and even after the adoption of the Statute the US has supported international courts for Sierra Leone and Cambodia. More importantly, the ICC signifies the same values of global justice, human rights and the rule of law that the US is committed to.4 Why then did the US withdraw its support for the ICC at the eleventh hour? What impact has this had on the Security Council’s power to act when National authorities are unable and unwilling? In order to fully understand this question we must delve into the complex relationship between the US and the Security Council.