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The Legacy of Nuremberg  |   UN Tribunal for Bosnia  |   Rwanda's Revolutionary Justice


Ask an Expert

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Are war crimes tribunals the solution for a world that's at war? The International Criminal Court was founded in July 2002 and aims to hold individuals accountable for war crimes and crimes against humanity in the international community. The Bush administration opposes the court, and says that no American soldier should ever face trial in anything but a U.S. court.

American RadioWorks asked for your questions about the ICC, its mandate, or U.S. involvement, and we've posed your questions to Ruth Wedgewood, Professor, Yale Law School. Answers to selected questions are posted below.


YOUR QUESTIONS ON THE INTERNATIONAL CRIMINAL COURT

If the U.S. invades Iraq, prior to Iraq committing any further aggressions beyond the Gulf War, what would constitute a war crime against President Bush et al? To me, it would seem that any Iraqi killed would during a USA, un-provoked, invasion would be a war crime. And would it matter if 1 or 10,000 is killed in such an invasion?

On a possible invasion of Iraq: International law judges the lawfulness of the resort to war separately from how force is used in a battle. If the techniques of war are lawful, they do not become war crimes because of the reason for the war. However, there is a separate crime of "aggression" that was charged against Nazi Germany in WWII.

This would not apply here, in my opinion. There is at least a colorable argument supporting the US use of force against Iraq -- namely, that Iraq has failed to comply with the ceasefire conditions of the Gulf War. The 1991 ceasefire required that Iraq disarm itself of all weapons of mass destruction, and permit wide ranging inspections. Iraq has consistently failed to comply with this, and so one can argue that the ceasefire is in suspension. Whether or not one agrees with the reasoning, it is a plausible enough argument to defeat any criminal suggestion.

By what process is the establishment and future operation of the ICC expected to discourage genocide?

Genocide is one of the crimes that the ICC can prosecute, but only for events occurring after July 1, 2002. Enforcement will depend on the efforts of member states.

I've heard concerns about the U.S. "being held accountable" with the ICC. Does the ICC recognize the U.S. Bill of Rights at all?

The ICC was not drafted with the Bill of Rights in mind, as such. The major difference is no jury trial. Supporters of the ICC argue that in an extradition to a foreign country, there is most often no jury trial either, and that the international status of the court should make no difference. But there are other worries, such as adequate prison conditions, appeals by the prosecutor, and the clarity of the law applied.

Even though 66 countries ratified the ICC, how can the ICC satisfy various cultural versions of justice? If someone is convicted of a war crime and imprisoned, but the cultural justice calls for execution, is the ICC failing the same people they are meant to serve?

The issue of capital punishment is an obstacle ... the Europeans are strongly opposed. Yet the Rwandans found it ironic that the leadership of the genocide was tried by the ICC with life imprisonment as the harshest punishment, while the lesser figures are tried locally and face capital punishment. Whether this is a "failure" is a matter of judgment ... it is certainly anomalous!




ABOUT RUTH WEDGEWOOD

Ruth Wedgwood has been a professor of international law at Yale Law School since 1986. She is also Senior Fellow for International Organizations and Law at the Council on Foreign Relations, and the Director of Studies at The Hague Academy for International Law in the Netherlands. Ms. Wedgwood has served on more than a dozen prestigious committees and boards, including the Hart-Rudman Commission on Security in the 21st Century, the Secretary of State's Advisory Committee on International Law, and the board of directors of the Lawyers Committee for Human Rights. She has written and edited several monographs on international law, including After Dayton: Lessons of the Bosnian Peace Process (1999) and American National Interest and the United Nations (1996). She is a frequent contributor to law journals and collected volumes on international law, as well as to the op-ed pages of major newspapers. She has appeared as a commentator on all major networks, including CNN and BBC. Wedgwood holds an A.B. from Harvard University and a J.D. from Yale University.