Last Friday, the United Nations took a step towards creating a third international court–the International Criminal Court. Sixty member states must ratify the proposal before it is instituted, which could take years. But why create a new international court when the U.N. has two types already?
The reason is that no existing court is set up to punish individual war criminals. (For a refresher on the history and definition of war crimes, click here.) The International Court of Justice presides only over disputes between states. It can order a nation whose soldiers have committed atrocities to pay reparations and apologize, for instance, but it cannot try the soldiers themselves, nor can it try the politicians who gave the orders. The U.N. may prosecute individuals by convening ad-hoc tribunals modeled on the post-World War II courts in Nuremberg and Tokyo. But ad hoc tribunals are costly and must be approved by all five permanent members of the U.N. Security Council. Thus isolated war crimes are unlikely to trigger one, and systematic crimes by a permanent member’s ally are likely to be blocked. (Russia could block a tribunal for Chechnya, and China for Cambodia.)
The International Criminal Court would have jurisdiction to punish individuals, not states, for war crimes, genocide, and crimes against humanity (including rape). Unlike ad-hoc tribunals, the International Criminal Court would be a permanent institution, located in the Hague. Most important, the court will not be beholden to the five permanent members of the U.N. Security Council. The court’s prosecutor would be free to pursue whatever case she wishes (although the Security Council can interrupt the court’s pursuit of a case for a renewable one-year period).
The United States voted against creation of the International Criminal Court. (Because this was in the General Assembly, not the Security Council, the U.S. could not veto it.) The stated reason was concern that an anti-American prosecutor might bring unjust charges against American soldiers involved in some future action abroad.
This item was written by Kate Galbraith. Explainer thanks Paul Williams of the Carnegie Endowment for International Peace.
