The United States and the International Criminal Court: Achieving a Wider Consensus Through the “Ithaca Package”

Abstract

The debate over the International Criminal Court (ICC) has reached a crucial juncture. The ICC has been a long-standing project, actively underway since the 1980s. Originally, the ICC was designed to meet the concerns of Caribbean countries about extraterritorial national criminal jurisdiction. The war in the former Yugoslavia and the massacres in Rwanda made it plain that additional forms of deterrence were necessary to address genocide, systematic war crimes, and crimes against humanity. In 1994, the International Law Commission proposed a draft statute for a permanent international criminal court worked over and debated during three additional years of preparatory work, and then brought forward in July 1998 by the Rome Conference, after five weeks of intense negotiations, in a proposed treaty package to establish the ICC. The Rome Conference achieved several important goals. The Rome Treaty established that the Court's jurisdiction should extend to internal as well as international conflicts. Although the Geneva Conventions of 1949 restrict their jurisdiction to interstate war and many States remain equivocal about international intervention, the Bosnian and Rwandan examples are too shocking, and the development of international human rights law too far along, to permit the claim that abuse of a national population is of no concern to other international actors. The Rome Treaty also applied the modern definition of crimes against humanity, recognizing that constraints on gross abuse of a population should not be limited to events in a state of war. Rather, systematic and extreme mistreatment of a local population, through torture, disappearances, and extrajudicial executions, can be charged as a crime against humanity even if war has not been declared. A broad definition of crimes against humanity warns all governments of the possible consequences of violence directed towards their own people.