President Obama's Decision: Using the International Criminal Court to prosecute Guantanamo Detainees

By Milimo Moyo
President Barack Obama’s recent move to shut down the detention center at Guantanamo Bay, Cuba has been received positively by human rights activists in the US and around the world. As expected, Republican lawmakers have criticized the plan citing the dangers of bringing terrorists to US soil. Other critics have noted that the plan would terror suspects grounds to get off on legal technicalities.
Perhaps the biggest obstacle to the decision to close Guantanamo would be where to take the terror suspects afterwards. Various American states have indicated that they are not willing to house the detainees in US facilities. Some countries around the world have refused to accept these detainees or try them. The question on everybody’s mind is, where will these detainees go and which court is going to try them.
One institution that would be able to address this problem for the United States is the International Criminal Court (ICC), which was set up in 2002 to prosecute individuals accused of grave international crimes, specifically genocide, war crimes and crimes against humanity. The ICC acts as a court of last resort, acting only when countries are unwilling or unable to investigate and prosecute crimes within their jurisdictions (ACAMS Today, October 2007 edition). The shutting down of the Guantanamo Bay facility and the reluctance by US jurisdictions and other countries to prosecute the terror suspects presents the perfect opportunity for the ICC to play an important role on this matter.
Those detainees who are nationalities of countries that have ratified the Rome Statute for an ICC can be tried by the court. One problem though is that the United States of America is not a signatory of the Rome Statute. The ongoing debate about what to do with Guantanamo detainees highlights the need for the United States to become a party to this important statute. Not only would this send an important message to the world about President Obama and America’s commitment to peace and human rights, but it would encourage other non-parties to ratify the statute as well. More importantly, it would help resolve the question of what to do about the detainees at Guantanamo Bay once the detention center has been shut down.
It is important to note that the ICC is also unique in its ability to act during times of conflict when the crimes are ongoing. Since its inception, it has opened investigations into serious crimes in Uganda, the Democratic Republic of the Congo, Darfur (Sudan) and the Central African Republic. The court recently issued arrest warrants for Sudan’s Humanitarian Affairs minister, Ahmad Muhammad Harun, and a Janjaweed militia leader known as Ali Kushayb. Both are accused of crimes against humanity and war crimes for their role in the Darfur crisis. Evidently, the ICC is one institution that could play an important role in reconciling President Barack Obama’s commitment to fighting terror while restoring America’s image around the world.