Editorial | Consensus on International Criminal Court

In the coming months, Caribbean countries will probably find themselves pressured on another front in their relationship with the United States – over the International Criminal Court (ICC).
Jamaica may believe that it has dodged this bullet. While it signed the Rome statute, Kingston hasn’t ratified the treaty for accession to the court. So, apart from The Bahamas, Jamaica is the only independent member of the Caribbean Community (CARICOM) that isn’t a party to the ICC.
Their seeming status as outsiders may appear to insulate Kingston and Nassau from Washington’s threat to dismantle the court, including potentially applying sanctions against those who resist its efforts.  But, as small states, Jamaica and The Bahamas must know that they have more to lose from actions that diminish the rule of law, elevate impunity and, ultimately, undermine democracy. No one is safe in those circumstances.
That is why these two CARICOM partners, Jamaica especially, given its status as a political leader in the Caribbean, mustn’t merely fold in the face of the muscle-flexing by the US secretary of state, Marco Rubio. CARICOM should urgently seek to craft a common regional position on the ICC, in whose creation the region, especially Trinidad and Tobago, played a crucial role. Moreover, the region has loaned its intellectual and legal expertise to international tribunals that dispensed the kind of justice codified in the ICC.
With over 120 current members, the ICC, based in The Hague, prosecutes people accused of genocide, crimes against humanity, and war crimes, when national courts are either unwilling or unable to prosecute such crimes; or if such cases are referred to it by the UN Security Council.
The concept that some crimes are so heinous that international justice may be necessary to prevent the perpetrators from escaping punishment is not new. Indeed, it is what the victors, led by the United States, applied to the political leaders and generals of Nazi Germany at the Nuremberg trials after the second World War.

KEY ROLES
In more recent decades, prior to the launch of the ICC, eminent Caribbean jurists, with support from regional governments, have played key roles in international criminal tribunals modelled off Nuremberg.
For instance, the Kittian judge, Sir Dennis Byron, who later became president of the Caribbean Court of Justice (CCJ), presided over the International Criminal Tribunal on Rwanda that tried perpetrators of that country’s 1990s genocide. Jamaica’s Patrick Robinson, who later became a judge of the International Court of Justice or the World Court, prior to that served on International Criminal Tribunal for the former Yugoslavia, which heard cases of war crimes and genocide out of the Balkans wars of the 1990s.  
Justice Robinson presided over the war crimes and genocide case of the former Serbian President Slobodan Milosevic, who died in the midst of the trial.
The ICC, in its current form, can be traced substantially to the efforts of the former Trinidad and Tobago prime minister, A N R Robinson. It was Mr Robinson, in a 1989 speech at the United Nations, who reprised the concept of a standing international court to prosecute the world’s worst crimes, especially those perpetrated by unaccountable international leaders. Mr Robinson’s work culminated with the launch of the Rome Statute a decade later.
While the United States signed the Rome Statute, it, like Jamaica,  never ratified the treaty. Washington has consistently made it clear that not only is it not a party to the treaty, its nationals, under no circumstances, would be bound by its statutes, even for crimes committed in other jurisdictions.
Jamaica has offered no such reservation. The current Andrew Holness administration has been quiet on the court. But the predecessor People’s National Party (PNP) government twice committed to ratifying the treaty, and did so again in opposition, during the campaign for last year’s general election.

BACK ON CARIBBEAN’S AGENDA
The matter of the court has been placed firmly back on the Caribbean’s agenda with this week’s announcement by Mr Rubio of a “sweeping campaign to dismantle the threat posed by the International Criminal Court to US sovereignty”. 
This follows sanctions by the United States on some of the ICC’s prosecutors and judges for ordering, in 2024, the arrest of Israel’s prime minister, Benjamin Netanyahu, and his former Defence Minister Yoav Gallant for “crimes against humanity and war crimes” for their bombing of Gaza.  Those warrants haven’t been executed.
Claiming that the ICC was attempting to become “the unaccountable global arbiter …  empowered to persecute American servicemen and officials at will”, Mr Rubio said “no diplomatic option will be off-limits in the campaign to dismantle the threat posed by the ICC to Americans”.
There is no evidence that any American faces, or has faced, the threats Mr Rubio attributes to the ICC. Indeed, the complaints of most critics of the ICC, particularly those countries that have withdrawn from the court, is that it has, until the moves against Messrs Nethanyahu and Yoav, primarily targeted people of colour and from developing countries or leaders with whom the West has fallen out.
Clearly, Mr Rubio’s muscle-flexing, in the context of Washington reassertion of the Monroe Doctrine, poses a difficulty for the Caribbean. The region’s default, though, shouldn’t be meek surrender, but strategic thinking and consensus building around a response.  
Institutions like the ICC are important to the region’s protection.