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Kony 2012: The United States and the International Criminal Court

March 22, 2012

The video produced by the NGO Invisible Children, released earlier this month, about Ugandan rebel warlord Joseph Kony is now the most viral video in the history of the internet. The goal of the video is to make Kony, accused of kidnapping and indoctrinating children into his rebel force, the Lord’s Resistance Army, “famous,” in the hope that fame will lead to calls to bring him to justice as a war criminal.

However, making Kony “famous” may not be enough.

The world has been attempting to address what to do about war crimes and war criminals for over 500 years. In 1474, an international tribunal was convened to prosecute Sir Peter von Hagenbach for crimes against “God and man” during his military occupation of a civilian community in Austria.

Until the establishment of the International Criminal Court in 2002, no court existed to prosecute states, leaders of states, or individuals for crimes committed against citizens in times of war and peace.

The crime Kony is most “famous” for is the forcible recruitment of child soldiers into his Lord’s Resistance Army. Under Article 8(2)(b)(xxvi) of the Rome Statute of the International Criminal Court (ICC), “Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities” is a war crime. An arrest warrant was issued by the International Criminal Court for Kony on July 8, 2005. Kony was named in 12 counts for crimes against humanity and 21 counts for war crimes, alleged crimes include rape, murder, enslavement, sexual enslavement, and forced enlisting of children. This warrant was issued after the President of Uganda referred the situation to the ICC.

However, no matter how “famous” Kony is or becomes, someone still has to apprehend Kony and hand him over to the ICC. Although the Bush and Obama administrations sent military advisors to assist the Ugandan government in its counter-insurgency efforts, don’t count on it being the United States that grabs him just yet.

The United States’ relationship with the ICC has been turbulent at best. Although the United States signed the Rome Treaty, which established the ICC, it was never ratified by the Senate as required under the Constitution. In 2002, the Service Members Protection Act was passed, which prohibits the United States from participating in peacekeeping missions in countries that have ratified the Rome Treaty, makes most countries that are members of the court ineligible for military aid unless they guarantee that they will not hand over U.S. citizens to the ICC, and gives the President the authority to use force to liberate U.S. military personnel in the ICC’s custody.

Fears over national sovereignty, the prosecution of American soldiers and incompatibility with the Constitution have kept the U.S. largely on the sideline regarding the apprehension and prosecution of individuals for war crimes by the ICC. However, for the apprehension and prosecution of Kony, and others like him, is far less likely without U.S. involvement in the ICC. It is unlikely that the ICC can ever be truly effective in carrying out its mandate without the financial, investigative and political resources of the United States behind it.