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The International Criminal Court was created by the Rome Statute in 1998, entered into force in 2002 and is currently ratified by 124 nations. This is the court par excellence, for prosecuting crimes against humanity and associated crimes such as apartheid, genocide and so on.

Public accusations have been made against Henry Kissinger, for example, by Christopher Hitchens in his book, The Trial of Henry Kissinger, published in 2001; however, no official prosecution against him has ever been mounted. If the ICC were so inclined, would it be able to prosecute Henry Kissinger for his alleged crimes? If so, what political factors currently prevent it from filing charges against him?

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According to the original text of the Rome Statute the ICC can not do that for two reasons.

  1. The Rome Statute is ratified by 124 nations, but the United States isn't one of them. While the United States did originally sign, they withdrew their signature on May 6th 2002, two month before the treaty got into force. It was also never ratified by the US Senate, which is a requirement for the US to legally enter international treaties. That means the United States are under no obligation to extradite one of their citizens to the ICC.

    In theory, ICC could prosecute an US citizen for purely symbolic reasons even if they know it would be impossible for them to get a hold of that person. According to Article 12 of the Rome Statute, they can also prosecute if "The State on the territory of which the conduct in question occurred" is a member. But this might not be a good idea. The US government did cooperate with the ICC voluntarily when it came to the prosecution of war criminals from other countries. Alienating the US government with a prosecution which has no chance to succeed might hurt that cooperation and might reduce the chance that the US might join the Rome Statute in the future.

  2. According to Article 11 of the Rome Statute, the ICC "has jurisdiction only with respect to crimes committed after the entry into force of this Statute". The Rome Statute entered into force on July 1st 2002. Hitchens published his book in 2001. So anything Hitches mentions in this book are events which were not yet subject to the ICC.

  • Although these factors are more than sufficient to prevent any prosecution, it might be a good idea to present possible political factors that would render the court less willing to prosecute a US functionary, if they exist, since they'd be relevant to the broader issue of who is and isn't prosecuted. – Obie 2.0 Mar 13 at 16:36
  • @Obie2.0 I added another paragraph about that under point 1. – Philipp Mar 13 at 16:37
  • Further, this establishes why he couldn't be charged by the ICC. The question doesn't really seem to care about which court is involved though. Why not an ICT, say, under which the former president of Serbia was charged in 1999? Or, speaking more generally, any of the other special criminal tribunals convoked before then to punish war crimes? That needs to be in the answer, and I think it will be a political reason, not a legal one. – Obie 2.0 Mar 13 at 16:41
  • Given that you were the one who edited the question to ask about the ICC specifically. – Obie 2.0 Mar 13 at 17:15
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    @Obie2.0 The question was specifically about the court "which was created by the Treaty of Rome in 1998, entered into force in 2002 and is currently ratified by 124 nations". That description makes it obvious that the author actually means the ICC, even though the original version used the wrong court (the ICJ only deals with disputes between states, not with private people) and the wrong treaty (Treaty of Rome was the founding of the EEC, but the Rome Statute matches the 2002 date). The ICTY which tried Milosevic was specifically for crimes during the Yugoslavia war and is disbanded now. – Philipp Mar 13 at 17:22

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