No Badges, No Bars: A Conspicuous Oversight in the Development of an International Criminal Court

Article I The Court An International Criminal Court (the Court) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdiction. The jurisdiction and functioning of the Court shall be governed by the provisions of this statute.1 I. INTRODUCTION In the summer months of 1998, the world community stood witness to an amazing and still unbelievable event: the creation-at least theoretically-of an international criminal court (ICC).2 The drafting and adoption of the Rome Statute,3 the principal instrument creating the forthcoming ICC, has already yielded unexpected fruits.4 Since its passage, there have been several international attempts to bring former dictators and war criminals to account for their past acts of indiscretion.5 The two most prominent attempts have included the arrest and attempted trial of the former Chilean General, Augusto Pinochet,6 and the long-awaited arrest, extradition, and ongoing trial of former Yugoslavian President, Slobodan Milosevic,7 at the International Criminal Tribunal for the Former Yugoslavia (ICTY) at The Hague.8 The Pinochet and Milosevic trials stand as a testament to the growing momentum for establishing an international system of criminal justice. Passage of the Rome Statute revived the belief, emanating forcefully following World War I, that humankind need not be subjected to the torturous and lasting scars of war.9 Wars, both domestic and international, could be deterred through the erection of a world criminal court capable of delivering justice to the worst enemies of humankind. And, with 139 signature countries lending support for the idea10 and the necessary sixty ratifications11 required to transform the Rome Statute into a fully operational court, there is restored hope that such justice may eventually eradicate the horrors of war and state-sanctioned crimes against humanity.12 It is difficult to calculate the effect that the surreal events of September 11, 2001, had on ratification of the Rome Statute. The Statute laid dormant for nearly four full years awaiting the requisite ratifications. This dogged pace, I believe, is primarily attributable to the fact that the United States has never fully embraced the idea of a permanent "world" criminal court.13 The United States was slow in signing the Statute,14 yet quick and decisive in pulling out.15 Further, although the crimes of the al Qaeda network may qualify conceptually for prosecution under the Rome Statute,16 the court remains a structural blueprint only, and crimes predating the sixtieth ratification on February 5, 2002, do not fall within its jurisdiction.17 Thus, this article will not attempt to tackle the unimaginable task of bringing those responsible for the September 11th violence to justice. Such task is far too monumental for this effort. Rather, this article will focus more narrowly on the ongoing need to establish a permanent and functional international system for prosecuting and punishing crimes against humanity. The events of September 11th merely underscore the need for an efficient and effective response to crimes committed at the international level. Conceptually, the ICC is the venue reserved for future versions of Hitler, Mussolini, Pol Pot, Pinochet, and Milosevic. Individuals who resort to campaigns of terror and genocide will have a court waiting eagerly to catalogue and judge their offenses. An international court, it is believed, will serve as a deterrent to such horrific crimes and a constant reminder that there will be tangible consequences for war crimes, crimes against humanity, and genocidal campaigns.18 This shifting attitude, as evidenced by the passage and ratification of the Rome Statute, and its attendant overt actions are a success worth celebrating. …