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China, the US, and the International Criminal Court

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A colleague asked in response to China reverses a half-century on diplomatic non-intervention, what is the statute of limitations before the court and what jurisdiction would the Hague court have over alleged human rights abuses within China?

I'll expand the reply to include the US. The 1998 Rome Statute that established the International Criminal Court (ICC) has a long reach as Article 29, Non-applicability of statute of limitations, states that "crimes within the jurisdiction of the Court shall not be subject to any statute of limitations." There is no wiggle room.

The ICC will initially have jurisdiction over "war crimes, genocide, and crimes against humanity" and will add "the crime of aggression" as agreement is reached on its definition. The ICC invokes the principle of complementarity which allows jurisdiction when the states that would normally have national jurisdiction are unable, or unwilling, to exercise it. It's principles of criminal law are drawn from different legal systems in an attempt to insure due process. While there is no retroactivity, i.e., no jurisdiction over acts committed prior to the statute’s entry into force, it does recognize the principle of "individual criminal responsibility" so as to prosecute individuals for serious violations of international law and hold them responsible for the actions of subordinates. The death penalty is excluded, leaving the ICC with term imprisonment, life imprisonment, and fines.

The US is attempting to sign bilateral agreements, using Article 98, Bilateral Immunity Agreements (BIAs), with countries where US forces are serving to ensure that American personnel won’t be subject to ICC prosecution. Some accuse the US of using the Article 98 as a trapdoor out of the Rome Statute whereas the US insists that the article permits it to engage in agreements over the conditions of surrendering, more precisely the consent of the sending state -- the US in this instance -- is required before an individual is transferred to the court.

I'm not alone in reading an implied threat in US comments that, while it will 'not shy away' from its global responsibilities, failure to achieve US satisfaction will force it to 'reevaluate' all significant deployments of US personnel and thus deflate the UN's ability to respond as even when US forces are not the significant boots on the ground, they are often the primary transporter.

Pierre-Richard Prosper, US Ambassador-at-Large for War Crimes Issues, said: "We believe that the court is a noble idea but it’s just flawed in it’s implementation. Therefore, we respect the rights of states to be a party to the court, we just ask that they respect our right NOT to be a party to the court and we decide to take this (inaudible) divorce and detach ourselves from the process so it’s not a source of tension or conflict between the United States and the Court and the United States and its allies who are parties to the court."

This kind of language is a source of tension and has branded the US as arrogant, above the law and open to acting with impunity, especially as the US wants blanket protection for all (present, former, and future) US officials and US personnel, but not all US citizens. The US takes issue with the ICC's ability to not only review a domestic prosecution but to disagree with it and reassert jurisdiction, even over what is a good faith prosecution in the US with which the ICC has made a subjective opinion that it wasn’t genuine. The ICC could also disagree with admissibility of evidence, pro or con.

Many Europeans and others are mystified over the huge expenditure of US political capital to address potential cases which many find hypothetical in the extreme. The US counters that it does not see this as remote or hypothetical, believing that there is the genuine possibility that someone will use the ICC "for political purposes, exploit the process, in order to use it as a weapon or a tool to attack the United States personnel and/or its policies" and that there are insufficient safeguards as yet in place to address that.

All that is very likely true but it is increasingly robbing us of allies and support on a wide spectrum of issues. The Chinese, on the other hand, will finesse the matter, agree to jurisdiction (of sorts) as they have in trade agreements, negotiate their way out of a future contretemps, and ultimately sacrifice individuals should it prove to politically expedient. I would imagine that the guilty would likely not reach the embarrassment of an ICC trial. We are talking about a nation that still executes some seven to nine thousand common criminals a year and harvests organs on-site for resale. I am not making a value judgment, but pointing to the firmness that China can exert when it feels it in its interests to do so.

The Chinese routinely take immediate umbrage at anything they interpret as intrusion into their internal affairs. Witness their actions in Tibet, Mongolia, Tiananmen, and the Falun Gong and their responses to foreign criticism. I do not see a condition in which the PRC would allow an internal reach whatever documents it signs. My original reference was to serving Chinese official and military engaged in a peace keeping operation.

The Rome Statute has been ratified by 97 states while 16 have ratified the Agreement on Privileges and Immunities (APIC) which extends "certain privileges and immunities" to officials and staff of the court. I do see the need to protect the court from reprisals, especially as members, staff, and investigators travel and transport evidence, but it is fodder for the conspiracy theorists that the ICC is protected while US and other officials are not.

COMPILATION OF CORE DOCUMENTS OF THE INTERNATIONAL CRIMINAL COURT

Gordon Housworth



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