Argument: ICC can try servicemen only if domestic courts do not
Wes Rist. "The Conservative Case for the International Criminal Court Six Years In". Jurist. 10 Dec. 2008 - The possibility that American servicemen and women and political and military leaders could be held up to scrutiny for their actions is not a new one. It has been enshrined in American law from the foundation of the country under the Articles of War and later the Uniform Code of Military Justice. The ICC merely adds the opportunity for the prosecution of individuals who might have escaped the domestic system of justice. If there is enough evidence that the prosecutor for the ICC could even consider an investigation of a US political or military official for the crimes set out in the Rome Statute, then American conservatives should already have been at the forefront of the call for a domestic investigation. Since the principle of complementarity in Article 17 of the Rome Statute prohibits the ICC from initiating an investigation when a domestic judicial system has already addressed the issue, an American investigation into our own “dirty laundry” would prevent any ICC jurisdiction.
Reassuringly, the Office of the Prosecutor for the ICC has already demonstrated a strong “backbone” when it comes to resisting international pressure for a politically expedient investigation or trial. In February of 2006, the ICC Prosecutor announced that after reviewing hundreds of complaints concerning US and Coalition actions in Iraq, none of the cases rose to the level of the crimes detailed in the Rome Statute. While I obviously do not have access to the original complaints, I do know what the elements of the crimes detailed in the Rome Statute are and the refusal of Luis Moreno-Ocampo to initiate even an investigation against Coalition forces indicates that the ICC will take very seriously its statutory obligation to take on only the most serious of international crimes rising to the levels set out in the Rome Statute. There is simply nothing to suggest that the ICC, after six years in existence, is the politically motivated tool of the enemies of the United States.