The main constraints on what the ICC can do can be summarised as follows.
(a) It can only prosecute somebody for a limited range of offences which are set out in Articles 5 to 8 of the Rome Statute (which establishes and governs the ICC). Briefly, these are genocide, crimes against humanity, war crimes and agression. Genocide, crimes against humanity and war crimes are defined by reference to existing treaties to which the US is already a party (and in any event the US cannot and, I think, does not deny that these are crimes capable of prosecution, having taken part in the Nuremburg prosecutions for precisely these crimes). “Agression” remains to be defined and cannot be prosecuted until an amendment to the Statute defining the crime of agression has been adopted. Even then prosecutions will only be possible in cases involving those States which have accepted the amendment.
(b) It can only prosecute somebody who is a national of a State which has ratified the Rome Statute or has accepted the jurisdiction of the Court, or who is acccused in relation to acts committed on the territory of such a State.
© No prosecution can be mounted where a State is willing and able to mount a prosecution of its own, or where a State has investigated the matter and decided not to prosecute. That could be either the State of which the accused is a national or (if different) the State where the acts complained of were committed.
(d) No prosecution can be mounted where the individual concerned has already been tried for the same acts (whether he was convicted or acquitted).
(e) The UN Security Council can (in effect) delay a prosecution indefinitely.
It’s worth noting that, because of point © above, the concern raised by Netbrian above shouldn’t arise. As long as the US is willing to investigate and, if necessary, prosecute its own citizens (as it was in Lt Calley’s case) they cannot be prosecuted before the ICC.
This also addresses lucwarm’s concern. There’s no doubt that intentionally directing an attack against a civilian target would be a war crime under existing law. I don’t think the US would deny this. If Afghanistan has ratified the Rome Statute – and I don’t know if it has or not – the US personnel accused of involvement in such an attack could be prosecuted before the ICC, but only if the US were unwilling or unable to investigate the matter itself, which is unlikely to be the case.
Monty rejects the ICC because of his perception of the General Assembly. With respect, that’s a bit like saying that he rejects the jurisdiction of the US courts because he considers that congress is full of venal opportunistic politicians.
SenorBeef is concerned that, say, an arms deal which is lawful in the US might be capable of proscution before the ICC. Article 8, which defines war crimes, doesn’t attempt to bring arms dealing as such within the definition, but it does allow for prosecution for the use of certain kinds of weapons – poison, gas, dum-dum bullets, and so forth. If these are not already illegal in the US, obviously they should be. In any event it is using them, rather than dealing in them, which can be prosecuted. It is possible that something which is lawful in the US could be prosecuted before the ICC, but I don’t see any examples. And, it should be remembered, the things which can be prosecuted are things which are already forbidden by treaties which the US has ratified, such as the Geneva Conventions.
I don’t know what Brutus is referring to when he talks about “the ICC’s drooling over the prospect of getting Pinochet, but nary a peep for Castro”. It would concern me greatly if a court were expressing views about who ought to be prosecuted before it. Any cites, Brutus?
Go alien objects that the ICC is “answerable to no-one, not even the UN”. But this is as it must be. It’s a court. It should be independent, not subject to some executive body. The independence of the judicial system is a cardinal point of the US constitutional system, and they expect to see it reflected in international courts also. The (long-established) International Court of Justice is similarly independent, and the US, which has had its differences with that Court, has never objected to its independence. If the ICC were not independent, that would be a good ground for the US to object to ratification.
