Originally published April 21, 2008 in the San Diego Union Tribune, MacArthur President Jonathan Fanton says the International Criminal Court offers an opportunity to engage in an effective international institution.
Sen. John McCain recently spoke of the need for the United States to work more closely with other nations in addressing the world's challenges. Both Democratic presidential candidates, Sens. Hillary Rodham Clinton and Barack Obama, have expressed similar sentiments. A good place to start to strengthen collective action is support for the International Criminal Court.
The International Criminal Court seeks to bring justice to individuals accused of the most horrific charges imaginable – genocide, war crimes and crimes against humanity. The so-called “court of last resort” is not meant to replace national courts but to have jurisdiction only when nations are unable or unwilling to act.
Since the court began operating in 2002, it has made significant progress in bringing justice to some of Africa's most horrific criminals. An agreement signed recently clears the way for domestic prosecution of rebels with the Lord's Resistance Army, which is known to have savagely attacked civilians and abducted children, forcing them to fight in Uganda's long-running war. In February, a third rebel leader from the neighboring Democratic Republic of Congo was arrested and appeared before the International Criminal Court, where he faces charges of crimes against humanity and war crimes for murder and sexual slavery.
These are hopeful signs that an international system of justice is emerging and the age of impunity is coming to an end. Yet the United States has not joined the 105 nations that have ratified the treaty establishing the court. President Clinton signed the treaty creating the court, but he did not submit it to the Senate for ratification. President Bush has made clear his opposition to the court. Still, according to a survey by the Chicago Council on Global Affairs, a large majority of Americans, 71 percent, supports U.S. participation in the court.
It is time to reopen the debate on whether the United States should join with the United Kingdom, Canada, Japan and other countries that are members of the court. But the presidential candidates have been largely silent on this question at a time when America's voice in support of a system of international justice is sorely needed.
Opponents of the court claim it violates American sovereignty and would subject Americans to frivolous prosecution. These criticisms are simply not accurate. The court's mandate could not be clearer: it tries only those accused of the most serious crimes against humanity, and it does so only when states themselves cannot or will not act. There are specific and adequate safeguards against frivolous prosecutions. During the conference that led to creation of the court, the United States successfully argued for a provision that requires the court to defer to genuine national investigations and prosecutions.
Even without the United States' participation, the court is off to a strong start. Its first warrants were issued in 2005 against Joseph Kony, leader of the Lord's Resistance Army in Uganda, and four of his subordinates, and later against Thomas Lubanga Dyilo of the Union of Congolese Patriots, Germain Katanga of the Forces of Patriotic Resistance, and now Mathieu Ngudjolo Chui of the National Integrationist Front in the Democratic Republic of Congo. All are implicated in numerous atrocities, including the murder and torture of civilians and the use of child soldiers.
In April 2007, the court issued arrest warrants for a leader of the Janjaweed militia and Ahmad Muhammed Harun, Sudan's minister of state for the interior, who are accused of collaborating in forced displacements in the Darfur region and of a mass campaign of terror that included aerial bombing, abduction, rape and murder.
While Lubanga will become the first person to be tried by the court in June of this year, warrants for others remain unexecuted. To realize the court's promise as a permanent institution for punishing crimes against humanity and a strong deterrent of future evildoers, the outstanding warrants must be enforced.
Even as we debate whether to join the court, there are other steps the United States could take to help see justice done through the court. They include encouraging other nations to enforce arrest warrants issued by the court, sharing intelligence with prosecutors and participating in meetings of the states that are members of the court to have a voice in its affairs.
The last few years have established that the United States cannot achieve its foreign policy goals acting alone. We must look ahead to a new era in which America's international leadership requires American engagement with the world and active participation in effective multilateral organizations. Cooperation with our international partners should reflect our shared values – human rights, the rule of law and international justice. The International Criminal Court is the right place to start.