THE U.S. ADMINISTRATION'S efforts to get all its citizens exempted from the jurisdiction of the International Criminal Court continues apace. A senior official is travelling to Europe to convince Governments there that they must make general the limited exemption from the jurisdiction of the Court that they have thus far agreed to grant U.S. citizens. While Washington desires that all its citizens be exempted from the Court's jurisdiction, the Europeans had decided that only U.S. military personnel and diplomats would be exempt from the jurisdiction of the Court. Although the U.S. has refused to ratify the Rome Statute that established the Court, it is a signatory to the instrument and as such should have been fully aware of how this new system of international criminal justice is to work. The Court has been established to try those responsible for widespread and systematic crimes against humanity and as such would take cognisance of cases of genocide or ethnic cleansing akin to those perpetrated in the former Yugoslavia and Rwanda in the not-so-distant past. It will not take cognisance of random acts of violence by the soldiers or civilians of any nation and thereby the Court's constituting statute meets one of Washington's stated concerns that soldiers participating in the ongoing operations in Afghanistan or future operations in Iraq could be brought for trial before this international judicial body. Neither will the Court take cognisance of crimes committed before it was constituted and therefore there does not appear to be any basis for Washington's concern that its citizens, who might have been complicit in atrocities committed in Chile or Indonesia or Vietnam, would be tried outside the ambit of the U.S. judicial system.
Washington's reservations in respect of the Court become even more difficult to understand in view of the principle of complementarity on which the Court is based. As per this principle, the Court will take cognisance of a case only when the judiciaries of the nations concerned are unwilling or unable to proceed against those ultimately responsible for the alleged crime against humanity because the accused are serving or former heads of Government or otherwise. Washington's expressed fear is that frivolous proceedings might be instituted against its officials especially in an international climate where there are people readily willing to accuse the U.S. of all manner of atrocities. Since the U.S. takes such pride in the independence and efficiency of its criminal justice system, it contradicts itself when it states that its own judiciary will not seriously consider evidence of the quality necessary for a successful action before the Court. Neither does it appear very likely that victims, who can trace their injuries to a U.S.-based source, would prefer to approach the Court before they have exhausted all the avenues provided by the U.S. judicial system. While an action in tort is qualitatively different from a criminal proceeding, there are not likely to be very many victims of a U.S.-originated action who would forego the opportunities to obtain the notoriously heavy damages that are fairly routinely handed out by the U.S. judiciary.
With the Europeans very keen on getting the Court up and running, the signs of U.S. intransigence on the matter are likely to further aggravate the strains between these traditional allies. As it is, the decision to exempt U.S. military personnel and diplomats was an intra-European compromise and they will not be pleased that Washington still presses for total immunity. Supporters of the Court point out that its founding principle is universal jurisdiction—that anyone irrespective of his position can be charged for crimes against humanity—and that if some nations, especially the hyper-power, were to exempt themselves this principle would be undermined.
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