Note: This is part of a series of reviews for Blueprint for Action. The introduction and table of contents are also available.
“Rome Statute of the International Criminal Court,” copyright United Nations, last updated 21 February 2001, http://www.un.org/law/icc/statute/romefra.htm.
It features in his sixth stage of “successfully processing politically bankrupt states”
6. The final step in the process would involve the criminal prosecution of the indicted / apprehended parties in the International Criminal Court (ICC) located in The Hague, Netherlands (52)
And while Barnett argues for American, and International Peacekeeper, immunity from ICC prosecution
My prediction is this: While the U.S. Leviathan [blitzkrieg] force will never come under the purview of the ICC — because it will remain deeply embedded in military law — the far more internationalized SysAdmin [peacekeeper] force, including U.S. components, must reach some blanket-clause protection regarding its activities in the Gap. The reality is that the ICC was not set up to prosecute the “crimes” of peacekeepers and Core military personnel intervening inside the Gap, but rather to extend the Core’s principles of war crimes into the Gap and, in this way, provide some sense of international consequence for what in these chronic civil wars, long-running terrorist campaigns, and brutal dictatorships. (68)
He assures us the ICC won’t be complicated by entanglements with the United Nations:
Moving on to the last of the six pieces in this A-Z system, I personally place a strong emphasis on funneling any “suspects” we pick up in this process toward the International Criminal Court, an institution that is both free and independent of the UN system as was recently set up specifically to target individuals for prosecution of genocide, crimes against humanity, and related war crimes. (67)
To make sure his point is clear, Barnett later reiterates his suggestion
As for the trials, prisoners will need to be funneled toward the International Criminal Court, which is perfect for this sort of thing. But again, the Untied States, plus the Core group as a whole, would need to reach some direct modus vivendi with the court, and if that didn’t work, the group would simply need to set up its own. But my guess is that the ICC would jump at the chance to be accredited in this additional manner, because so long as the United States considers it more of a threat to its ruling making than avenue for rule sharing with the rest of the Core, the ICC will remain vastly underutilized. And no, that wouldn’t get us in bed uncomfortably with the UN, because the ICC is independent of the UN. (132)
Hmmm… regular readers of tdaxp may recall a note from International Law & Organization which seems to contradict this…
UNSC can vote to delay ICC proceedings for 1 year, renewable
So what does the Rome Statue of the International Criminal Court say about this? What does the ICC say about its relationship with the UN?
The States Parties to this Statute, … Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole, (Preamble)
Hmmm… that’s a little vague… and it does say “permanent”
The United Nations can refer cases to the International Criminal Court:
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: … A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations (Article XIII(b)).
And, like my notes said, can delay prosecutions… indefinitely
No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions. (Article XVI)
The treaty also mentions special roles for the Secretary–General, the General Assembly, and other UN organs, but the Security Council’s power to start and stop prosecution hardly makes the ICC “free and independent of the UN system” or even just “independent of the UN.”
Except maybe in UN speech.
I am disappointed in Barnett’s misleading statements. Perhaps he did not read the ICC treaty and has not read any good summaries of it. Or he very selectively used one word in the (non-binding) Preamble, “independent,” while ignoring the substantial dependency of the ICC outlined in the treaty itself.