The international criminal court (ICC) was established in July 2002. The idea came up in 1948 by the United Nations Assembly (UN). These lead to the 260th resolution of the UN that the history of genocide and crimes against humanity had brought forth significant loss to the human race. Act 1 of the resolution characterized genocide as a crime against humanity in international law. “Persons charged with genocide shall be tried by a competent tribunal of the State in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction” (Duffy, 2005), was the policy as stipulated in Act IV of the resolution. The ICC was officially established in 2002. After the resolve by the UN assembly in 1948, it took more than half a decade for the establishment of the international legal body. This was attributed to differences that arose on the definition of aggressions. Defining aggression such as terrorism was a major hindrance to the institution of the legal organization since the assembly would not come to an amicable definition and resulted excluding it from the ICC’s jurisdiction (Duffy, 2005).
Terrorism is not categorically included in the ICC’s jurisdictions, though some terrorist acts fall within the stipulated international crimes under the ICC’s jurisdiction. Such terrorism acts include those that are crimes against humanity. Terrorism acts such as the 9/11 bombing of the United States trade center twin towers and the pentagon, while a fourth jet was shot down in an open field in Pennsylvania, were certainly acts of terrorism (Duffy, 2005). These raises the question whether the attack qualifies as an international crime and if so should the ICC followed through to prosecute the culprits?
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Indeed September 11th, 2011 were crimes against humanity as they were deliberately intended to kill large numbers of civilians for political and consequent economic implications of the wreck. It was an offense to civilian’s constitutional rights and liberties and therefore qualify as a crime against humanity. 246 people and 18 terrorists on the four planes highjacked ended up dead. The total number of deaths from the destruction of the World trade center amounted to 2602. Later on, the Islamist terrorist group released white papers claiming responsibility for the attack. Al-Qaeda was based in Afghanistan (Duffy, 2005).
The acting president then, George W. Bush declared war on terrorism. This was a spin from the custom ways of handling terrorist acts, though their hand has never been one of such magnitude. Declaring war on terror meant, the aftermath had taken a militaristic and nationalistic turn. It meant the US government would go to war with the nations of the terrorists that were involved. The USA went forth to start a war in Afghanistan and oversaw the change in governance. The US emphasized on combative measures to see to it that the responsible parties were held accountable. In doing so, the government overlooked the constitutional provisions of the manner in which this case was supposed to follow through.
In taking the actions he did, President Bush implied that this was an attack by one country (Afghanistan) against another Nation (US). The United Nations declined his bid to label the bombings as an armed assault. International law professor Francis Boyle argues that “there is a magnitude of the difference between an ‘armed attack’ by one state against another state, which is an act of war, and a terrorist attack, which is not, terrorists are dealt with as criminals. He asserts that Terrorists are not treated like nation states. Terrorists are treated by means of international and domestic law enforcement. Terrorists are not given the dignity of special status under international law and practice.” (Ratcliffe, 2016). On the contrary, President Bush was treating the terrorist with similar dignity as a state.
On common sense and constitutional basis, the 9/11 attack was a crime against humanity and thus qualifies the ICC as an international legal body that would prosecute propagators of the heinous crime. However, for ICC to be involved in a case, the respective parties have to comply with the Rome Statute. The United States under the mentorship of Bill Clinton lead the dismissal of the commitment to the Rome statute after some of their (USA) concerns were not addressed. The Bush administration was opposed to remaining signatories to the ICC and concluded that the institution had critical issues such as political manipulation, possession of sweeping power without an oversight body (UN) regulation and finally the administration felt it would be in jeopardy with the ICC holding national sovereignty by claiming jurisdiction over the citizens and military personnel of non-member countries in some circumstances (Ratcliffe, 2016).
Opting to declare war on the country and carrying on with the attacks held the USA accountable for the causalities in the war on terror. Bush’s administration undermined the rule of law and the authority of the security board of the United Nations. Guided by the knowledge that the ICC has the mandate in a sovereign nation to arrest people who are facing indictments, the USA made policies protecting their military and the authorities who were exposed to the ICC charges. The government could overlook the ICC and the UN regulations on the course of conduct without fear of international litigations on individuals acting on behalf of the government (Ratcliffe, 2016).
The US being a super power would not cave to operate under the oversight of a legal body that they felt would be manipulated by political forces. The ICC was established with the primary objective of securing human rights and individual’s fundamental freedoms. 9/11 was a violation of this primary goal making it viable for the USA to seek justice in the ICC. However, it is only if the government had attempted to follow the legal channels accordingly, given the country’s political, economic and social status, it would have set examples that would have lived to dwindle the number of crimes against humanity (Ratcliffe, 2016). This would have provided a good platform for the USA government to pursue justice for the US families that were affected by 9/11 attack.
Ratcliffe (2016) asserts that indictment, prosecution, and sentencing of people in authority who assisted in the planning and the execution of the 9/11 would create a dread of committing similar atrocities. This, therefore, means that had the US government followed the right procedure in pursuing justice for 9/11 attack victims, its success in bringing the perpetrator and any other party that took part either directly or indirectly would have set a good precedence for the international criminalization of terrorism
Otherwise, as it stands, the ICC has limited authority in the jurisdiction over terrorism cases. Exclusion, despite being a crime against humanity limits the organization's ability to hold the person’s responsible for offenses such as 9/11 accountable and do justice to casualties and their families. Disagreement among nations and international organizations also acts as a hindrance to the process of trial of terrorists. Moreover, the court faces numerous challenges in the acquisition of evidence, witness protection and admissibility of the evidence collected since they are usually anonymous tips.
References
Duffy, H. (2005). The "war on terror" and the framework of international law . Cambridge: Cambridge University Press.
Ratcliffe, D. (2016). The 9-11 Bombings are not Acts of War: The 9-11 Bombings are Crimes against Humanity. In Introduction to Crimes against Humanity . Retrieved from https://ratical.org/ratville/CAH/intro2cah.html
