Nuremberg: The Next Generation 

Professors express concern that International Criminal Court’s
influence is too far-reaching

by Linda Hailman

Professor Ronald Rychlak presented his paper on the International Criminal Court during an international conference at Assumption University in Bangkok, Thailand. Above, delegates from across the world leave the building where the conference was held.

Ronald Rychlak, associate dean and professor of law, presented a paper titled “ The International Criminal Court: In Opposition to the Common Good?,” which he and fellow law professor John Czarnetzky co-authored.

Established in 2002, the ICC is an independent, permanent global court designed to try cases on serious international crimes such as genocide. Derived from the concept of the Nuremberg trials after World War II, the ICC is based on a treaty signed by 100 countries. However, such powerful nations as the United States and China have not embraced the ICC because of military and political concerns.

Former U.S. President Bill Clinton did sign the statute that established the ICC, Rychlak and Czarnetzky explained in their paper. However, Clinton expressed concerns about flaws in the ICC and added: “I will not and do not recommend that my successor submit the treaty to the Senate for advice and consent until fundamental concerns are satisfied.” President George W. Bush later took the unprecedented step of declaring that the United States was “unsigning” the statute.

The court is considered controversial by some because of its far-reaching jurisdiction and independence from government. Rychlak is concerned that the ICC could prolong difficulties in countries such as Uganda, where a rebel-group leader was granted amnesty by the Ugandan authorities but has been indicted by the ICC.

“While there is obviously a place for criminal prosecutions in meting out justice to tyrants who violate international criminal law, this is only one tool among several in the search for justice,” stated the paper by Rychlak and Czarnetzky. “The problem with the ICC is that it favors criminal prosecution in every situation, or at least the documents can easily be interpreted that way. At Nuremberg, this model made sense. When bad guys have been defeated by outside force, there is no threat of civil war, and the defendants have already been captured, trials are very logical. In other cases, however, they may only prolong the suffering.”

According to Rychlak, another problem is that the ICC is an independent entity without a legislative or executive branch to hold it in check, and it does not have constitutional safeguards to protect those being prosecuted.

The ICC currently has jurisdiction over genocide, war crimes, crimes against humanity and aggression. Further defined, these crimes include serious injury to mental health, outrages upon personal dignity and forced pregnancy. Rychlak, Czarnetzky and others are concerned that the ICC could expand its jurisdiction to create universal rights to abortion, euthanasia or same-sex marriage that would trample on the sovereignty of many nations.

“Considering the lack of effective political checks and balances, the difficulty that the court could pose to negotiating resolutions of conflict, the impact that it may have on national sovereignty and the inability of the court to serve as an effective deterrent, there is little reason to think that the ICC will put a significant dent in international crime and tyranny,” the paper concluded. “In fact, its restrictive procedures narrow our options for supporting transitional societies. Moreover, since international trials are slow and expensive, they draw resources from other initiatives that might do more good.”

Rychlak presented the paper during the 22nd annual General Assembly of the International Federation of Catholic Universities. The conference, held at Assumption University in Bangkok, Thailand, brought together academic scholars and diplomats from around the world.

Rychlak has significant international experience that contributes to his expertise on global issues. A member of the UM law faculty since 1987, he has worked periodically at the United Nations since 2000, along with Czarnetzky. The two professors were advisers to the Vatican delegation on the establishment of the ICC. In 2004, the Bush administration sent Rychlak to Paris to address the Organization for Security and Cooperation in Europe.

“Ron has become an international expert on the International Criminal Court,” said School of Law Dean Samuel Davis. “In fact, he is a member of the bar of the court. He represents the law school well around the globe on this and other subjects of international interest, and all of us are indebted to him for his service.”

Czarnetzky and Rychlak now are developing a course on terrorism and law, which they will begin teaching this spring. Czarnetzky said that he and Rychlak should share their valuable international experience with UM law students.

“I think it’s good to introduce students to questions of international law,” Czarnetzky said. “Students now are more interested in international law. They sense that law practice is becoming more international, more transnational.”

—Lydia Hailman is a writer in UM’s Department of Media and Public Relations.

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