That was the question posed by the War Crimes Committee at the International Bar Association Conference in Washington D.C. this year

Katherine Duncan examines the question for the Circuiteer magazine

It is 70 years since the Nuremberg trials. The US has supported the ICC but has never ratified the treaty to become a member. The Committee held a mock trial, with the audience as the jury, to determine if the USA had failed international justice. The views expressed, were for the purposes of the debate.

The following is a report from the ‘international trial’.

The trial was presided over by Hon Justice Martin Daubney, Supreme Court of Queensland. Gregory Kehoe, Greenberg Traurig, counsel for the Prosecution opened his case that the “cause of justice dictates that we all come together”.

The first witness for the Prosecution was Colonel (ret.) James Schoettler, Georgetown University. He gave evidence in relation to the US’ concerns about jurisdiction.

The US has always taken a view that its domestic courts are sufficient to deal with war crimes. The US is concerned that if it ratifies the ICC Statute then its troops could be held accountable by the ICC – more often not for political purposes. However, the ICC is about addressing war crimes where national courts can’t deal with it themselves. The jurisdiction of the ICC can only be invoked when a country is unwilling or unable to deal with the case. Furthermore, Colonel Schoettler, took the view that resources at the ICC are such that the court is not interested in the actions of an individual soldier. The ICC remit is to deal with the most serious of crimes, unless the actions are part of a state policy, the ICC is unlikely to get involved.

The Colonel acknowledged that there is a risk of leaders being brought before the court – for example a crime of aggression. There is a concern that you are giving a non-state actor a role in judging a political question – ‘what is aggression?’

His evidence concluded that it is hard to address international crime outside of the ICC, and the US should join the ICC.

The second witness for the Prosecution was Benjamin Ferencz – the last living Prosecutor from the Nuremberg trial. He gave his evidence via video link.

Mr Ferencz stated that the US has failed to carry out its obligations from the second world war by not signing up to the ICC.

The US’ reputation on the world stage has been soiled because a small minority don’t trust anyone else. He encouraged the court to remember to “turn to the law, not war”.

Steven Kay QC, 9 Bedford Row, counsel for the Defence, opened the Defence case. He said that it is the duty of the US to preserve its sovereignty, and to not subject its citizens to a jurisdiction that may not be dispensing justice.

Caroline Buisman, ICC Defence Counsel, was the first witness for the Defence.

Her first concern was the Prosecutorial choices made by the ICC. Her evidence was that there is no transparency in the Prosecutor’s offence so it is not known how the office makes its choices on who to prosecute. The ICC has a reputation for going for easy targets, for example Katanga. Her next concern was the procedures of the institution. In her evidence she considered that Judges have their own political agenda. Any evidence can be admitted, and that includes anonymous triple hearsay. In Katanga all the evidence of the Prosecution was destroyed. The ‘child’ soldiers had all lied about their age and had not been in a militia. After waiting a year for the judgement, the judges decided to try him again, but for another charge, after all the evidence had been called and there was not an opportunity to mount for the defence to carry out its investigation. If this happened to an American citizen, the US would not be able to stop it.

Colonel Adam Oler, National War College, was the final witness for the defence. His evidence was that the US is involved in protecting international justice, but in other ways. The US gives money and support to bring war criminal to justice through its international reward programme. Other international tribunals are supported by the US financially, and with personnel. He also said that the US has passed legislation so that if the US gives arms to another country, the US can take steps if those arms are being misused.

In closing, the Prosecutor said that the US risks the development of international human rights law and armed conflict law, without being able to influence such development.

The defence, in closing, reminded the jury of the US’ concerns about the quality of justice at the ICC.

The jury took time to consider and to vote. The jury of the IBA considered that the US had failed international justice by failing to join the ICC.

Katherine is a barrister specialising in family law. Katherine has a busy practice in private and public children matters, international family law and financial proceedings.