7 May 2012
Dear Imad
Salam
The article by Gordon Duff is
oversimplification and slightly misleading. The matter of ratification of a
treaty in the USA is rather lengthy and significant. Just to remind you it took
the USA over forty years to ratify the Genocide Convention despite having been
one of the active and early member states which negotiated the Convention post
WWII.
The USA is reluctant to ratify a treaty which
subjects its international activity to the rule of law. The significance of
ratification of a treaty is the immediate effect of ratification under domestic
jurisdiction which means that national courts have jurisdiction to take legal
action under the ratified treaty.
In the case of the ICC the ratification of the
Statute of Rome would criminalize most of the USA military activities. Notable
among which is the crime of aggression which means most of the USA activities
in Iraq, Libya, Somali, Afghanistan, Pakistan Yemen etc..
are criminalized.
If the USA were to adopt, which I doubt very
much would happen, the Statute of Rome then any person can seek to
indict USA officials before a domestic court and many people stand to be indicted
even if difficult to convict. That, I am sure, is a nightmare no USA
administration would like to contemplate..On the other
had the USA s very active is setting up ad hoc tribunals wherever it chooses to
try international figures such as in the Yugoslavia and Lebanon because it
controls these tribunals through appointments of its judiciary and
drafting of its rules.
There are today 121 states which are party to
the Statute of Rome. The USA is not among them and whether or not Obama had
signed an order relevant to it makes no difference to the fact that the
USA is not a party to the ICC which requires Congress to pass a law ratifying
it.
Incidentally Tunisia is the only Arab state
among the 121 party states. The hooligans in Baghdad made an application, post
invasion, to join but then revoked it presumably under USA pressure or for
fear of being indicted themselves.
There are three points worthy of mention here
relating to the USA and its relation to the ICC.
1. The USA passed a law imposing sanctions on
any state cooperating with the ICC which effectively was a public denunciation
of an international treaty and a clear breach of intentional law.
2. The indictment of any USA official is not
dependent on whether or not USA ratifies the Statute of Rome. Any state
part to the Statute has inherent jurisdiction to indict any USA official who
breaches the Statute before its domestic courts. So the argument about the need
for the USA to ratify in order to indict its officials is superfluous.
3. Article 16 of the Statute of Rome gives the
Security Council the power to suspend any legal action taken against anybody
before the ICC without giving reasons. This Article rendered the whole Statute
of Rome a prisoner of the permanent members of the Security Council. It adds to
the whole bizarre state of the so-called international law which is basically a
tool at the hands of the powerful to discipline weaker disobedient states – the
new rule post Cold War.
Sincerely
Abdul-Haq Al-Ani