The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy

Congressional research reportMar 16, 2010

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The International Criminal Court (ICC):

Jurisdiction, Extradition, and U.S. Policy

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The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy

Summary

The International Criminal Court (ICC) is the first permanent international court with jurisdiction

to prosecute individuals for “the most serious crimes of concern to the international community.”

Currently, 110 countries are States Parties to the ICC. Since its inception in 2002, the ICC has

received three referrals for investigations by States Parties and one referral from the United

Nations Security Council.

While the U.S. executive branch initially supported the idea of creating an international criminal

court, the United States ultimately voted against the Statute of the ICC (the “Rome Statute”) and

informed the United Nations that the United States did not intend to become a State Party to the

Rome Statute. The United States’ primary objection to the treaty has been the potential for the

ICC to assert jurisdiction over U.S. civilian policymakers and U.S. soldiers charged with “war

crimes.”

This concern has been highlighted with recent preliminary investigations by the ICC’s Prosecutor

into alleged war crimes in the Middle East and Afghanistan. In 2006, the ICC’s Office of the

Prosecutor completed a preliminary investigation into alleged war crimes in Iraq, finding that the

information did not establish sufficient grounds for the Prosecutor to launch a formal

investigation into the situation. In 2009, the Office of the Prosecutor confirmed that it was

conducting another preliminary investigation into possible war crimes committed by NATO

soldiers, U.S. soldiers, and both Taliban and al Qaeda insurgents in Afghanistan. That same year,

the Palestinian National Authority (PNA) sought the ICC’s jurisdiction over alleged crimes

committed during the Gaza conflict of December 2008/January 2009, and the United Nations

Commission of Inquiry on Gaza issued a report recommending that the Security Council refer the

situation to the ICC Prosecutor if Israel and the PNA did not undertake appropriate national level

investigations and prosecutions.

The United States has taken both diplomatic and domestic actions with the potential to affect the

ICC’s authority over U.S. citizens. On a diplomatic level, the United States has concluded

bilateral immunity agreements (BIAs) with many ICC States Parties to prevent other countries

from surrendering U.S. citizens to the ICC without U.S. consent under Article 98 of the Rome

Statute. These agreements have generated a vigorous debate over when and whether obligations

in international agreements preempt an ICC request to a State Party for the arrest and surrender of

a person in its territory. However, the ICC, in which the Rome Statute vests the sole responsibility

for interpreting the Statute’s text, has remained silent on the question, neither validating nor

refuting the U.S. position that BIAs or any agreement creating similar obligations preempt an ICC

request to surrender.

Although remaining opposed to U.S. ratification of the Rome Statute, the Bush Administration in

its second term took actions that suggested its support for some ICC activities. The Obama

Administration has also taken a more supportive stance toward the ICC and has begun to engage

directly with the Court. The Obama Administration is currently reviewing its ICC policy and is

expected to announce its conclusions sometime in 2010. Similarly, actions by Congress have

eliminated or chosen not to extend provisions affecting U.S. assistance for countries that are ICC

States Parties. Although these actions seem to soften Congress’s position on the ICC, the changes

might also be interpreted as a decision to reverse sanctions that were perceived as hurting U.S.

interests.

Congressional Research Service

The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy

Contents

Introduction ................................................................................................................................1

The History of U.S. Policy Toward the ICC.................................................................................2

U.S. Diplomatic Actions Affecting the ICC ...........................................................................3

The American Servicemembers’ Protection Act of 2002 ........................................................4

Current Attitudes...................................................................................................................5

The International Criminal Court’s Jurisdiction ...........................................................................5

Article 12: Preconditions to the Exercise of Jurisdiction ........................................................5

Article 17: Issues of Admissibility.........................................................................................5

The Office of the Prosecutor of the ICC ......................................................................................7

Article 98: Extradition to the ICC................................................................................................7

The Preliminary Investigation of a Situation.............................................................................. 10

Article 53 of the Rome Statute: Initiation of a Formal Investigation..................................... 10

Notable Examples of Preliminary Analyses by the Prosecutor.............................................. 12

Iraq............................................................................................................................... 12

Selected Situations Undergoing Preliminary Analysis by the Prosecutor .............................. 14

Afghanistan .................................................................................................................. 14

Gaza Strip ..................................................................................................................... 17

Developments in U.S. ICC Policy ............................................................................................. 19

Executive Branch Policy ..................................................................................................... 19

United States Engagement with the ICC ........................................................................ 20

U.S. Actions in the United Nations Concerning the ICC ................................................ 21

Obama Administration Statements Concerning the ICC................................................. 21

Bilateral Immunity Agreements..................................................................................... 24

Recent Congressional Action............................................................................................... 24

Section 2007 of the American Servicemembers’ Protection Act ..................................... 24

Nethercutt Amendment Provisions ................................................................................ 25

Modifications to the ASPA/Nethercutt Sanctions Policy ................................................ 26

Legislation Proposed in the 111th Congress.................................................................... 27

Contacts

Author Contact Information ...................................................................................................... 27

Congressional Research Service

The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy

Introduction

The International Criminal Court (“ICC” or “Court”) is the first permanent international court

with jurisdiction to prosecute individuals for “the most serious crimes of concern to the

international community.”1 It sits at The Hague in the Netherlands but may hold proceedings

anywhere in the world. It is funded primarily by States Parties. The Statute of the International

Criminal Court (the “Rome Statute” or “Statute”), which created the ICC, established ICC

jurisdiction over persons who, following the Statute’s entry into force on July 1, 2002, commit

certain offenses.2 One hundred and ten countries, not including the United States, are States

Parties to the ICC.

Since its inception, the ICC has received referrals for investigations from three States Parties 3 and

one referral from the United Nations Security Council. 4 After receiving referrals, the Chief

Prosecutor carries out a preliminary analysis to determine whether to initiate an investigation. The

Chief Prosecutor opened investigations into all four of these referred cases.5 Additionally, in

November 2009, the Prosecutor of the ICC requested authorization to investigate alleged postelection crimes in Kenya without a referral.6 This marked the first time that the ICC Prosecutor

has sought to open an investigation on his own initiative instead of by referral. To date, the Court

has issued 12 arrest warrants, four of which have resulted in actual arrests.7 The ICC currently has

nine cases before it, although some of the defendants in these cases remain at large. 8 The ICC

Prosecutor has also announced preliminary, but not formal, investigations into situations in

Palestine and Afghanistan, both of which were ongoing at the date of this report’s publication.

The Court may impose a period of imprisonment on persons convicted under the Rome Statute as

well as a fine and forfeiture of proceeds, property, and other assets derived from the crime. 9

See Rome Statute of the International Criminal Court, Preamble, U.N. Doc. A/CONF.183/9 (1998) (hereinafter

“Rome Statute”). These include genocide, crimes against humanity, war crimes, and potentially the crime of

aggression, if the Assembly of States Parties is able to reach an agreement defining it. Id. Art. 5(1).

Rome Statute, Art. 24(1). Because there is no retroactivity, a crime committed before that date can not be tried before

the ICC. Id.

See International Criminal Court, Situations and Cases, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases (last

visited Dec. 8, 2009). These referrals involved allegations of war crimes in three countries: the Republic of Uganda, the

Democratic Republic of Congo, and the Central African Republic. Each referral was submitted by the country seeking

investigation into possible war crimes committed within its territory.

SC Res. 1593, U.N. Doc. S/RES/1593 (2005).

Alina Ioana Apreotesei, International Court at Work: First Cases and Situations, 5 EYES ON THE ICC 1, 1 (2008).

Press Conference by the Prosecutor of the International Criminal Court, International Criminal Court (Nov. 26, 2009),

http://www.icc-cpi.int/Menus/ICC/Press+and+Media/Press+Releases (follow “Press conference by ICC Prosecutor

Luis Moreno-Ocampo related to the situation in Kenya”) (last visited Dec. 8, 2009).

Judge Phillippe Kirsch, President of the ICC, Address at the Rayburn House Office Building (Feb. 13, 2009),

http://globalsolutions.org/files/general/Philippe_Kirsch_2-13-09.pdf; American Non-Governmental Organizations

Coalition for the International Criminal Court (AMICC),Work of the Prosecutor, ICC Activities, http://www.amicc.org/

icc_activities.html#pstatements (last visited Dec. 8, 2009). One of the suspects accused of committing international

crimes in Uganda, Raska Lukwiya, died before he was taken into custody. International Criminal Court, Situations and

Cases, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases (last visited Dec. 8, 2009). The case against him has

since been terminated. International Criminal Court, Uganda, http://www.icc-cpi.int/Menus/ICC/

Situations+and+Cases/Situations/Situation+ICC+0204 (last visited Dec. 8, 2009).

Situations and Cases, International Criminal Court available at http://www.icc-cpi.int/Menus/ICC/

Situations+and+Cases (last visited Dec. 8, 2009).

Rome Statute, Art. 77. Typically imprisonment must be for no longer than thirty years unless a term of life

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Congressional Research Service

The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy

This report focuses first on the process by which the Office of the Prosecutor investigates

allegations of war crimes and second on U.S policy toward the ICC. In particular, this report

seeks to address the concern that the ICC might assert jurisdiction over U.S. nationals by

providing insight into (1) how the ICC and Prosecutor determine whether the ICC has jurisdiction

over the situations under preliminary investigation; (2) how the Prosecutor and ICC determine

whether a situation would be admissible as a case before the ICC; (3) the basis for concerns that

the ICC has the authority to request the surrender of a U.S. national; and (4) steps taken by the

United States to prevent or deter the ICC from exercising jurisdiction over U.S. nationals.

The History of U.S. Policy Toward the ICC

While the U.S. executive branch initially supported the idea of creating an international criminal

court10 and was a major participant at the United Nations Conference of Plenipotentiaries on the

Establishment of an International Criminal Court (“Rome Conference”), which produced the

Statute,11 the United States ultimately voted against the Statute.12 President Clinton signed the

treaty at the close of 2000 but declared that it contained “significant flaws” and would not be

submitted to the Senate for ratification “until our fundamental concerns are satisfied.”13 The

United States stated that its primary objection to the treaty is the potential for the ICC to assert

jurisdiction over both U.S. civilian policymakers and U.S. soldiers charged with “war crimes”

even if the United States does not ratify the Rome Statute.

Following the Rome Statute’s entry into force in 2002, both President George W. Bush’s

Administration and the U.S. Congress took several steps to weaken the ICC’s potential effect on

U.S. citizens. First, the Bush Administration “unsigned” the Rome Statute by informing the

United Nations that the United States did not intend to become a party to the Rome Statute.14 This

action released the United States from its treaty obligation to refrain from undermining the Rome

Statute and enabled both Congress and the executive branch to take actions that could be

perceived as undercutting the Rome Statute. Additionally, the United States secured a U.N.

Security Council resolution deferring any potential ICC prosecution of U.S. personnel involved in

(...continued)

imprisonment is justified by the extreme gravity of the crime and the circumstances of the convicted person. Id.

See Ruth Wedgwood et. al., The United States and the Statute of Rome, 95 AM. J. INT’L L. 124 (2001) (commenting

that the United States has “repeatedly and publicly declared its support in principle” for an international criminal court).

Congress expressed its support for the ICC on the condition that its operation would not infringe upon the rights of U.S.

citizens. See, e.g., Foreign Operations Appropriations Act § 599E, P.L. 101-513, 104 Stat. 2066-2067 (1990)

(expressing the sense of the Congress that “the United States should explore the need for the establishment of an

International Criminal Court” and that “the establishment of such a court or courts for the more effective prosecution of

international criminals should not derogate from established standards of due process, the rights of the accused to a fair

trial and the sovereignty of individual nations”).

See U.N. International Criminal Court: Hearings before the Subcomm. on International Operations of the Senate

Foreign Relations Committee, 105th Cong. (1998) (testimony of David J. Scheffer, Ambassador-at-Large for War

Crimes Issues).

See Wedgwood, supra note 10, at 124 (noting that the final vote for the Statute was 120 in favor to 7 against). For a

detailed history of the ICC and the negotiations of the Rome Statute, read CRS Report RL31437, International

Criminal Court: Overview and Selected Legal Issues, by (name redacted).

See Statement on the Rome Treaty on the International Criminal Court, 37 Weekly Comp. Pres Doc 4 (December 31,

2000).

Press Statement, International Criminal Court: Letter to U.N. Secretary General Kofi Annan (May 26, 2002);

International Criminal Law, 2002 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW, at 148.

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The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy

international peacekeeping missions; concluded bilateral immunity agreements to prevent the ICC

from being able to exercise jurisdiction over U.S. nationals; and enacted the American

Servicemembers’ Protection Act. A detailed explanation of each action is provided below.

U.S. Diplomatic Actions Affecting the ICC

Concerned that U.S. participation in international peacekeeping would be imperiled if U.S.

soldiers and employees were subject to ICC jurisdiction,15 the United States reportedly threatened

to veto a draft U.N. Security Council resolution to extend the peacekeeping mission in Bosnia and

Herzegovina unless U.S. personnel were granted full immunity from the jurisdiction of the ICC.16

Ultimately, the Security Council and the U.S. delegation compromised, adopting a resolution

asking the ICC to defer, for an initial period of one year, any prosecution of persons who are both

(1) participants in U.N.-established or authorized operations and (2) nationals of States not party

to the Rome Statute.17 The resulting resolution did not provide permanent immunity for U.S.

soldiers and officials from prosecution by the ICC, but, in conjunction with Article 16 of the

Rome Statute, it deferred potential prosecutions of U.S. soldiers and officials for one year.18 Some

criticized the resolution as a misapplication of Article 16, arguing that Article 16 was meant to

apply only to specific cases, not to permit a blanket waiver for citizens of specific countries.

Nevertheless, in a resolution adopted in 2003, the U.N. Security Council extended the deferral to

July 1, 2004.19 By 2005, however, sufficient opposition to the resolution had developed to deter

the Bush Administration from seeking another extension. Consequently, the resolution expired,

and the Security Council has not taken any action since to defer potential ICC prosecutions of

American soldiers engaged in U.N. established or authorized operations.

In the wake of “unsigning” of the Rome Statute, the United States also began concluding bilateral

immunity agreements (BIAs), which contain promises by one or both parties that no surrender of

citizens of the other signatory would be made to the ICC absent both parties’ consent.20 These

See Marc Grossman, Under Secretary for Political Affairs, Remarks to the Center for Strategic and International

Studies, Washington, D.C., (May 6, 2002), prepared remarks available at http://www.mtholyoke.edu/acad/intrel/bush/

rome.htm (last visited Dec. 31, 2009).

Bryan MacPherson, Authority of the Security Council to Exempt Peacekeepers from International Criminal Court

Proceedings, ASIL INSIGHTS (July 2002), available at http://www.asil.org/insigh89.cfm. See Colum Lynch, Dispute

Threatens U.N. Role in Bosnia; U.S. Wields Veto in Clash over War Crimes Court, WASH. POST, July 1, 2002, at A1.

SC Res. 1422, U.N. Doc. S/RES/1422 (2002). The resolution read, in part, “[C]onsistent with the provisions of

Article 16 of the Rome Statute, [] the ICC, if a case arises involving current or former officials or personnel from a

contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or

authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation

or prosecution of any such case, unless the Security Council decides otherwise.”

Article 16 reads: “No investigation or prosecution may be commenced or proceeded with under this Statute for a

period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United

Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”

SC Res. 1487, U.N. Doc. S/RES/1487 (2003).

E.g. Agreement Regarding the Surrender of Persons to the International Criminal Court, U.S.-Israel, Aug. 4, 2002,

Temp. State Dep’t No. 04-16, KAV 6368; Agreement Regarding the Surrender of Persons to the International Criminal

Court, U.S.-Pak., July 21, 2003, Temp. State. Dep’t No. 04-03, KAV 6356. Of particular interest given recent events is

the reciprocal Bilateral Immunity Agreement between the Transitional Islamic State of Afghanistan and the United

States. Agreement Regarding the Surrender of Persons to the International Criminal Court, U.S.-Afghanistan, Aug. 23,

2003, Temp. State Dep’t No. 03-119, KAV 6308. To read the text of many Article 98 Agreements, visit the

Georgetown Law Library’s Article 98 Agreements Research Guide at http://www.ll.georgetown.edu/guides/

article_98.cfm (last visited Dec. 19, 2009).

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The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy

agreements are intended to fall within the provisions of Article 98 of the Rome Statute, which

serve to limit the duty to surrender individuals to the ICC under circumstances where such

surrender would force a country to violate its obligations under (1) international law concerning

diplomatic immunity or (2) certain international agreements with another country. These BIAs

provide that a contracting country may not surrender U.S. military personnel, as well as a number

of other types of U.S. persons (including in many cases all U.S. nationals), to the ICC. The

provisions are intended to create an obligation under an international agreement that would

supersede the non-U.S. party’s obligations under the Rome Statute to hand over suspects to the

ICC, pursuant to Article 98.21 The United States has occasionally used sanctions to induce

countries to enter these BIAs.22

The American Servicemembers’ Protection Act of 2002

On August 2, 2002, President George W. Bush signed the American Servicemembers’ Protection

Act of 2002 (ASPA) into law (Title II of P.L. 107-206; 22 U.S.C. §§ 7421-7433). This act was

designed to provide protections for members of the U.S. armed forces and certain other persons

from ICC prosecution and detention or imprisonment arising therefrom. It generally prohibits

U.S. government cooperation with the ICC by (1) restricting the use of appropriated funds to

assist the ICC;23 (2) restricting U.S. participation in certain U.N. peacekeeping operations due to

possible ICC prosecution; and (3) authorizing the President to free members of the U.S. armed

forces and other individuals detained or imprisoned by or on behalf of the ICC. Section 2015 of

the act (22 U.S.C. § 7433) created an exception from the prohibition on assisting the ICC for

assistance to bring to justice foreign nationals accused of genocide, war crimes, or crimes against

humanity. 24 Until it was repealed under P.L. 110-181, Section 2007 of ASPA prohibited providing

U.S. military assistance to ICC States Parties. Provisions enacted in the 2005, 2006, and 2008

Foreign Operations Appropriations bills (so-called “Nethercutt Amendment” provisions)

contained similar funding prohibitions for Economic Support Fund (ESF) assistance to ICC States

Parties.25

See Rome Statute, Art. 98(2); Ambassador Pierre-Richard Prosper, Remarks on the Foreign Affairs Consequences of

America’s Absence (March 7, 2003) in 8 UCLA J. INT’L L. & FOR. AFF. 17, at 20. There are two opposite perspectives

on Article 98 agreements. The first is that these agreements are consistent with the spirit and text of the ICC because

they merely ensure that the right of the United States not to be treated as a party to the Rome Statute is respected. E.g.

id. at 20-21. The second is that these agreements are “at worst legally incompatible with, and at best a misuse of, article

98.” E.g., Max du Plessis, South Africa’s Response to American Hostility Towards the International Criminal Court, 30

S. AFR. Y.B. INT’L L. 112, 123 (2005).

See section VI(B), infra.

Congress also enacted certain provisions restricting the use of funds to assist the ICC prior to the creation of the

Court. Sections 705 and 706 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act,

Fiscal Years 2000 and 2001 (H.R. 3427 (106th Cong.), enacted by reference in Section 1000(a)(7) of P.L. 106-113; 22

U.S.C. §§ 7401, 7402) prohibit the use of appropriated funds to support the ICC unless the United States has joined the

Court pursuant to a treaty as set out in the U.S. Constitution, and prohibit the use of such funds to extradite or transfer

U.S. citizens to the ICC.

For a detailed discussion of ASPA, see CRS Report RL31495, U.S. Policy Regarding the International Criminal

Court (ICC), by (name redacted).

A detailed discussion of the Nethercutt Amendment provisions is provided in section VI(B), infra.

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The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy

Current Attitudes

Despite its early objections to the Rome State, the Bush Administration in its second term took

actions that seemed to show acceptance of some ICC activities. 26 The Obama Administration

seems to have continued this approach and has started engaging directly with the ICC.27

Similarly, recent actions by Congress have eliminated sanctions provisions affecting U.S.

assistance for countries that are ICC members.

The International Criminal Court’s Jurisdiction

Article 12: Preconditions to the Exercise of Jurisdiction

The ICC is a treaty-based court, which means countries can decide whether to become a party to

the Rome Statute.28 As a result, the Court does not have universal jurisdiction. 29 Instead, the ICC

can only exercise jurisdiction over crimes that were either (1) committed on the territory of a

country that has accepted the ICC’s jurisdiction; (2) committed by nationals of a country that has

accepted jurisdiction; or (3) referred to the ICC by the United Nations Security Council. 30 The

only exception to this rule permits ICC jurisdiction over situations when both (1) a non-State

Party has accepted the exercise of jurisdiction by the ICC with respect to the crime in question;

and (2) the alleged crime either took place in the consenting country’s territory or was committed

by a national of that country.31 To obtain the Court’s ad hoc jurisdiction, the country seeking it

must lodge a declaration with the ICC Registrar and cooperate with the Court accordingly.32

Article 17: Issues of Admissibility

Even if the ICC has jurisdiction over a case, it may be precluded from hearing it if the case is

inadmissible under Article 17, which states:

the Court shall determine that a case is inadmissible where: (a) The case is being investigated

or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable

genuinely to carry out the investigation or prosecution; (b) The case has been investigated by

a State which has jurisdiction over it and the State has decided not to prosecute the person

concerned, unless the decision resulted from the unwillingness or inability of the State

genuinely to prosecute; (c) The person concerned has already been tried for conduct which is

the subject of the complaint, and a trial by the Court is not permitted under article 20,

paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court.33

See U.S. Actions in the United Nations Concerning the ICC, infra.

See U.S. Engagement with the ICC, infra.

Kirsch, supra note 7.

See Rome Statute, Art. 12.

Rome Statute, Arts. 12(2), 13(b); Kirsch, supra note 7.

Rome Statute, Art. 12(3).

Id.

Id. at Art. 17. Notably, the ICC, like other judicial bodies, retains the power and duty to determine the boundaries of

its jurisdiction. The Prosecutor v. Joseph Kony et. al., Case No. ICC-02/04-01/05, Decision on the Admissibility of the

Case under Article 19(1) of the Statute, ¶ 45 (March 10, 2009) available at http://www.icc-cpi.int/Menus/ICC/

(continued...)

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The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy

Once the jurisdiction of the Court is triggered, the Court’s interpretation of the applicability of

Article 17 to a given case is considered dispositive, at least so far as States Parties are

concerned. 34

Under Article 17, a case is inadmissible if it concerns conduct that is the subject of genuine legal

proceedings brought by a country with jurisdiction. 35 The ICC’s subordination to the criminal

proceedings of sovereign nations is premised upon the principle of complementarity, which

enables the ICC to maintain its role as the court of last resort and thereby support State justice

systems. 36

In determining whether complementarity prevents a case from being admitted to the ICC, the

Court considers (1) the willingness of the investigating country to pursue “genuine” proceedings,

and (2) the ability of that country to effectively investigate and prosecute the suspects. If the ICC

feels that the country is either unwilling or unable to investigate, the principle of complementarity

does not apply and the case may proceed at the ICC.37

To assess a State Party’s willingness to investigate and prosecute an alleged crime, the Court

conducts a three-part analysis, asking whether (1) the proceedings are being undertaken for the

purpose of shielding the person concerned from criminal responsibility for crimes within the

jurisdiction of the Court; (2) there has been an unjustified delay in the proceedings which is

inconsistent with an intent to bring the person concerned to justice; and (3) the proceedings are

being conducted independently or impartially rather than in a manner that is inconsistent with an

intent to bring the person concerned to justice. 38 It appears from the case law that the key to this

analysis is whether the country acts with good faith in investigating and prosecuting suspected

war criminals.39 This intent can be proved by reference to a country’s express statement or,

alternatively, it can be “inferred from unambiguous facts.”40

As for the second factor in complementarity, whether a country has the ability to investigate and

prosecute in a particular situation, the Court employs an arguably simpler standard: whether, due

to a total or substantial collapse or unavailability of its national judicial system, the country is

unable to apprehend the accused, obtain the necessary evidence or testimony, or otherwise carry

out its proceedings. 41

(...continued)

Situations+and+Cases/Situations [follow hyperlinks for “Situation in Uganda” then “Related Cases,” “Court Records,”

and “Pre-Trial Chamber II”].

Id.

See Rome Statute, Art. 1.

See Kirsch, supra note 7.

The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, Reasons for the Oral

Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), ¶ 75 (June 16, 2009). The

Katanga case is an example of the necessary interaction between Articles 17 and 19 of the Rome Statute. The two

articles are meant to work in concert as Article 19(1) permits the Court to determine, sua sponte, whether Article 17

bars a particular case, and Article 19(2) sets guidelines for challenges raised under Article 17 by defendants or States.

Rome Statute, Art. 17(2).

See The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, Reasons for the

Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), ¶ 90 (June 16,

2009).

Id.

Rome Statute, Art. 17(3).

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The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy

The Office of the Prosecutor of the ICC

The ICC Office of the Prosecutor (the Office), which is headed by Prosecutor Luis MorenoOcampo, is composed of three divisions: the Prosecutions Division, the Jurisdiction

Complementarity and Cooperation Division, and the Investigations Division. The Prosecutor is

elected by secret ballot by an absolute majority of the members of the Assembly of States

Parties.42 The Prosecutor must have “high moral character,” competence and extensive practical

experience in prosecuting or trying criminal cases, and fluency in one of the six working

languages of the Court (Arabic, Chinese, English, French, Russian, and Spanish). 43 The

Prosecutor holds office for a term of nine years and is not eligible for re-election.44

The Office of the Prosecutor is required to act as an independent and separate organ of the

Court.45 It is responsible for (1) receiving referrals about alleged war crimes and any substantiated

information on crimes within the jurisdiction of the Court; (2) examining these referrals and

conducting investigations; and (3) conducting prosecutions before the Court.46 The Prosecutor

must not participate in any matter in which his impartiality might reasonably be doubted, and he

is disqualified from a case if he has previously been involved either in that case before the Court

or in a case at the national level involving the person being investigated or prosecuted.47

Article 98: Extradition to the ICC

If the ICC Prosecutor decides to prosecute someone, Article 89 of the Rome Statute permits the

Court to request the arrest and surrender of that person from any country where that person may

be found.48 However, a country that is not a party to the Rome Statute is not mandated to comply

with such a request.49 In addition, Article 98 precludes the ICC from making a request for the

surrender of a person when doing so would require the requested country to act inconsistently

with its obligations under international law or international agreements.50 Relying on this

language in Article 98, the United States has frequently entered into international agreements,

Rome Statute, Art. 42(4). The Assembly of States Parties is comprised of a representative of each State Party. Id. at

Art. 112. Non-Party States who have signed the Rome Statute may participate in the Assembly as observers but may

not vote. Id. The Assembly assists the administration of the ICC by, for example, adopting the budget. Id. In addition,

the Assembly may amend the Rome Statute if two-thirds of the Assembly vote in favor of the amendment. Id. at Art.

121. The Assembly convenes at least once a year at either The Hague or at the Headquarters of the United Nations in

New York City. Id. at Art. 112(6).

Rome Statute, Art. 42(3).

Rome Statute, Art. 42(4).

Rome Statute, Art. 42(1).

Id.

Rome Statute, Art. 42(7).

Rome Statute, Art. 89(1).

See id. Parties to the Rome Statute, on the other hand, must also ensure that there are procedures available under their

national law for this kind of cooperation. Rome Statute, Art. 89(1); Art. 88.

Rome Statute, Art. 98. See also International Criminal Court Rules of Procedure and Evidence, Rule 195.2 (“ The

Court may not proceed with a request for the surrender of a person without the consent of a sending State if, under

[A]rticle 98, paragraph 2, such a request would be inconsistent with obligations under an international agreement

pursuant to which the consent of a sending State is required prior to the surrender of a person of that State to the

Court.”)

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often referred to as bilateral immunity agreements (BIAs) or Article 98 Agreements, with States

Parties that create obligations designed to prevent the ICC from proceeding with a request to

those States Parties for the surrender of a U.S. citizen. The proliferation of Article 98 Agreements

has triggered a vigorous international debate over when and whether Article 98 prevents the ICC

from requesting that a State Party arrest and surrender a person in its territory. This section of the

report seeks to frame and explain that debate.

The Vienna Convention on the Law of Treaties (“VCLT” or “Vienna Convention”)51 states that a

treaty should be interpreted in accordance with the “ordinary meaning to be given to the terms of

the treaty in their context and in the light of its object and purpose.”52 However, the debate over

the meaning of Article 98 in the context of BIAs suggests that there are conflicting interpretations

of the “ordinary terms” of Article 98, and, more specifically, whether Article 98 permits ICC

States Parties to enter agreements that protect the citizens of a particular country from being

surrendered to the ICC.

According to some, the primary intention behind Article 98, and particularly its second paragraph,

which explicitly discusses international agreements,53 was to preserve certain prototypical

provisions of Status of Forces Agreements (SOFAs).54 SOFAs traditionally contain a guarantee

that a nation deploying military forces on foreign soil retains primary criminal jurisdiction over

its soldiers unless it consents to local prosecution. 55 Advancing that line of thought, the European

Union (EU) has argued that Article 98(2) only protects from ICC interference those international

treaty obligations that, like the obligations in traditional SOFAs, give immunity to persons who

are present on the territory of a requested State because they have been sent on official business.56

In addition to the negotiating history of Article 98, the EU also draws support from (1) the Vienna

Convention on the Law of Treaties, which obliges countries who have signed or otherwise

accepted an international agreement pending ratification or formal approval to refrain from acts

155 U.N.T.S. 331 (1969).

Vienna Convention on the Law of Treaties, Art. 31.1. Although the United States is not a party to the Vienna

Convention, it recognizes the VCLT as generally signifying customary international law. See e.g. Fujitsu Ltd. v. Fed’l

Exp. Corp., 247 F.3d 423 (2d. Cir. 2001) (describing U.S. recognition of the Vienna Convention “as, in large part, the

authoritative guide to current treaty law and practice.”).

Article 98(2) of the Rome Statute reads: “The Court may not proceed with a request for surrender which would

require the requested State to act inconsistently with its obligations under international agreements pursuant to which

the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first

obtain the cooperation of the sending State ...” The first paragraph of Article 98 reads largely the same but refers to

“obligations under international law” and “diplomatic immunity of a person or property” rather than to “international

agreements.”

du Plessis, South Africa’s Response to American Hostility Towards the ICC, 30 S. AFR. Y. B. INT’L L. 112, 117

(2005); Kimberly Prost & Claus Kreß, Article 98: Cooperation with Respect to Waiver of Immunity and Consent to

Surrender, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT : OBSERVERS’ NOTES,

ARTICLE BY ARTICLE 1615 (Otto Triffterer ed., Hart Publishing 2008) (1999) (writing that the negotiations on Article

98(2) were undertaken with a view toward preserving SOFAs, which confined the competence and jurisdiction of the

sending country to acts perpetrated by that state’s citizens in the performance of their official duty). See Mahnoush H.

Arsanjani, The Rome Statute of the International Criminal Court, 93 AM. J. INT’L L. 22, 41 (1999) (“[T]he main

concern in [Article 98] is to respect the obligations of host States under status-of-forces agreements. Under these

agreements, the forces of a sending state may remain under its jurisdiction for some or all matters, and not under that of

the host state.”).

For more on Status of Forces Agreements (SOFAs), read CRS Report RL34531, Status of Forces Agreement

(SOFA): What Is It, and How Has It Been Utilized?, by (name redacted).

Kimberly Prost & Claus Kreß, supra note 54, at 1616.

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that would defeat the object and purpose of that agreement; 57 and (2) the provisions in the Rome

Statute that require States Parties to cooperate with and assist the Court.58 Consequently, the EU

has argued that, in deciding whether compliance with a request for surrender would conflict with

a country’s treaty obligations, the ICC may ignore any international treaty obligations that would

prevent a member-country from surrendering a person who was not sent to the requested country

on official business.59 However, this position is potentially complicated by reports that, several

years after the Rome Conference, the head of the U.S. delegation claimed the United States had

contemplated the development of BIA-type agreements during negotiations on Article 98(2).60

A second position advanced by the EU and some scholars contends that Article 98 was only

intended to permit States Parties to continue to adhere to obligations imposed by agreements that

predated their entry into the ICC.61 The EU maintains that Article 98(2) does not extend to

agreements that the requested country entered into after signing the Rome Statute.62 The EU

Commission reached this conclusion largely on the grounds that the concern guiding the

negotiations on Article 98 was the elimination of any obstacle to ratification that could result

from already existing agreements. 63 Scholars who support this position have also pointed to

language in an earlier draft of the Rome Statute that refers only to existing treaty obligations in its

description of when an ICC request might be barred for conflicting with international

obligations.64 Critics of this position, on the other hand, argue that Article 98 applies to all

agreements, whether pre or post-dating the Rome Statute, because the actual ratified language of

Article 98(2) does not contain a limitation regarding the time of the conclusion of the

international agreements in question.65

The ICC has yet to request the surrender of a U.S. citizen from a State Party that has entered a

BIA with the United States. Accordingly, it is unclear whether the Court would interpret Article

98 of the Rome Statute as permitting the ICC to proceed with a request to surrender when the

sending State has entered an agreement that forbids it from honoring the request.66 Regardless of

Vienna Convention on the Law of Treaties, Art. 18 (“A State is obliged to refrain from acts which would defeat the

object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty

subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the

treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and

provided that such entry into force is not unduly delayed.”).

du Plessis, supra note 54, at 125 (2005). E.g. Rome Statute, Arts. 86, 87(7) (requiring parties to the Rome Statute to

cooperate with the ICC).

Prost & Kreß, supra note 54, at 1616.

Id. at 1603. Arguably, however, these contemplations should not be equated with the intent of the Article 98(2)

drafters because, if the U.S. delegation disclosed these contemplations to other participants in the negotiations, that

disclosure probably did not happen until very late in the day. Id.

Id. at 1616.

Id.

Id. at 1617.

United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court,

Report of the Preparatory Committee on the Establishment of an International Criminal Court 134 (1998), available at

http://www.un.org/law/n9810105.pdf. See Prost & Kreß, supra note 54, at 1617.

Prost & Kreß, supra note 54, at 1616.

See id. at 1603. See also Rome Statute, Arts. 4(1) (stating that the Court has “such legal capacity as may be necessary

for the exercise of its functions and the fulfillment of its purpose”), 19(1) (providing that “the Court shall satisfy itself

that it has jurisdiction in any case brought before it”); Joseph Kony, supra note 33, at ¶ 45 (referring to its previous

discussions of the “well-known and fundamental principle that any judicial body, including any international tribunal,

retains the power and the duty to determine the boundaries of its own jurisdiction and competence.”). This suggests that

(continued...)

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international and scholarly opinion as to the proper interpretation of Article 98, the Rome Statute

vests the ICC with the ultimate legal authority to interpret the requirements and obligations that

the Statute imposes on States Parties. 67 However, at least one commentator has suggested that the

Court’s decision making does not take place in a vacuum, but, rather, may be affected by

predictions about the implementation and practicality of its judgments. 68 If this is true, the Court

may consider not only the text and history of the Rome Statute, but also non-textual concerns,

such as whether a request to surrender in the context of a BIA would be worth the cost of

requiring the sending State to upset its relations with another country and the possibility that the

sending State might choose not to honor the ICC’s request. 69 If considered, these practicalities

could weigh in favor of the U.S. position on the purpose and effect of Article 98.

The Preliminary Investigation of a Situation

Article 53 of the Rome Statute: Initiation of a Formal Investigation

When the Office of the Prosecutor receives information about potential war crimes, it must take

several steps before prosecuting the persons alleged to have committed these offenses. The first is

a preliminary investigation, or preliminary analysis, in which the Prosecutor decides whether to

launch a formal investigation. The second step is the actual initiation of a formal investigation.

The Office of the Prosecutor must consider three factors before deciding to initiate a formal

investigation: (1) whether the available information provides a reasonable basis to believe that a

crime within the jurisdiction of the Court has been or is being committed;70 (2) whether a

resulting case would meet Article 17’s requirements for complementarity;71 and (3) whether,

given the gravity of the crime and the interests of the victims, there are substantial reasons to

believe that an investigation would serve the interests of justice. 72

In assessing the first factor, whether a reasonable basis exists to believe a crime occurred, the

Prosecutor may seek additional information from countries, organs of the United Nations,

intergovernmental or non-governmental organizations (NGOs), or other reliable sources that he or

she deems appropriate.73 The Prosecutor may also receive written or oral testimony on the

matter.74 To assess the second factor, whether a potential case satisfies Article 17’s

(...continued)

whether the ICC has the authority to issue a particular request for surrender will be determined by the Court, which

does not need to consider how the requested country interprets its potentially conflicting international obligations. Id.

Prost & Kreß, supra note 54, at 1616.

See id.

See id. As Prost and Kreß describe the issue, “[A]ny determination by the Court that no conflicting international

obligation exists will leave the requested State Party with the risk that the Court’s determination of the international

legal obligation is wrong.”

Rome Statute, Art. 53(1)(a).

Rome Statute, Art. 53(1)(b); Art. 17. For a discussion of the requirements for complementarity, see supra notes 3541 and accompanying text.

Rome Statute, Art. 53(1)(c).

Rome Statute, Art. 15(2).

Id.

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complementarity regime, the Prosecutor collects similar information on the initiation and progress

of national proceedings. 75

In assessing the third factor, the gravity of an alleged crime, the ICC has considered both whether

an alleged offense falls under the scope of its subject matter jurisdiction, and also whether it

satisfies an additional threshold of severity in comparison to the thousands of other crimes over

which the ICC may exercise jurisdiction. 76 A key consideration in this comparison is the number

of victims resulting from each crime. 77

Although the Office of the Prosecutor has received a significant number of communications

regarding alleged offenses, there have been relatively few occasions when the Office has

examined these communications and concluded that the basic requirements for even an intensive

preliminary examination have been satisfied.78 Only if the information provided leads the

Prosecutor to conclude that the three requirements (reasonable basis, complementarity, and

gravity) are satisfied may he submit a request for authorization of an investigation to the Pre-Trial

Chamber. 79 In turn, the Pre-Trial Chamber will grant the Prosecutor’s request only if it too

concludes that there is a reasonable basis to proceed with an investigation.80 Where the Prosecutor

believes the requirements for an investigation are not satisfied, the Prosecutor will inform those

who provided the information of his decision not to initiate an investigation. However, a decision

not to investigate a situation does not preclude the Prosecutor from considering further

information regarding the same situation in light of new facts or evidence.81

Over the course of 2009, the Office of the Prosecutor has publicly acknowledged considering

information concerning situations in the Republic of Georgia, Colombia, Afghanistan, Côte

D’Ivoire, Palestine, and Guinea.82 This kind of public acknowledgment is not necessarily the

norm: the Office of the Prosecutor does not always announce or even admit when a situation is

OFFICE OF THE PROSECUTOR, INTERNATIONAL CRIMINAL COURT, RESPONSE TO COMMUNICATIONS RECEIVED

CONCERNING IRAQ 9 (2006), available at http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/

Office+of+the+Prosecutor/Comm+and+Ref/Iraq/.

See id. at 8. The Rome Statute provides a little clarification on the meaning of grave in Article 8(1)’s definition of

war crimes, indicating that those that are committed “as part of a plan or policy or as part of a large-scale commission

of such crimes” are perhaps more grave for Article 17’s purposes than those that did not occur on a large-scale or as

part of a plan or policy. See Rome Statute, Art. 8(1).

See OFFICE OF THE PROSECUTOR, supra note 75, at 8-9. The Prosecutor has also hinted that some crimes, such as

“willful killing or rape,” are more serious than others, but has not elucidated a clear standard in that area. Id. at 9.

Id. at 1; OFFICE OF THE PROSECUTOR, INTERNATIONAL CRIMINAL COURT, VISIT OF THE MINISTER OF JUSTICE OF THE

PALESTINIAN NATIONAL AUTHORITY, MR. ALI KHASHAN, TO THE ICC (Feb. 6, 2009), http://www.icc-cpi.int/Menus/ICC/

Structure+of+the+Court/Office+of+the+Prosecutor/Comm+and+Ref/Palestine (follow “Visit of the Minister of Justice

of the Palestinian National Authority”). Between July of 2002 and February 2006, the Office of the Prosecutor received

1,732 communications on situations in 139 countries, but only 10 of those situations were subject to an intensive

preliminary examination, and even fewer resulted in a request for authority to investigate. OFFICE OF THE PROSECUTOR,

supra note 75, at 1.

Rome Statute, Art. 15(3).

Id. at Art. 15(4).

Id. at Art. 15(6).

OFFICE OF THE PROSECUTOR, supra note 78; Press Release, Office of the Prosecutor, International Criminal Court

(Oct. 14, 2009 http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor (follow

“Communications and Referrals” hyperlink and then “ICC Prosecutor confirms situation in Guinea under

examination”).

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under analysis.83 In general, the ICC’s Rules of Procedure and Evidence require the Prosecutor to

keep the analysis process confidential to preserve the privacy of the senders, the confidentiality of

submitted information, and the integrity of the analysis and any resulting investigation.84

However, Office policy permits the Prosecutor to publicly disclose the reasons for a decision to

request, or not to request, an investigation if (1) the situation has warranted intensive analysis; (2)

the situation has generated public interest and the fact of the analysis is in the public domain; and

(3) the reasons can be provided without risk to the safety, well-being, and privacy of senders.85

Notable Examples of Preliminary Analyses by the Prosecutor

The following examples of preliminary analyses undertaken by the Office of the Prosecutor are

notable for the interest they garnered in the Untied States. Although not all of these analyses have

been completed, to date, none of these analyses has resulted in the initiation of formal

investigations or trials.

Iraq

In 2006, the Office of the Prosecutor concluded its preliminary investigation into alleged offenses

committed in Iraq.86 The Prosecutor investigated two different categories of alleged crimes: (1)

war crimes and (2) willful killing and inhumane treatment of civilians. The Office of the

Prosecutor’s published discussion of its analysis is instructive on how the Prosecutor approaches

a preliminary analysis in light of the mandate to determine whether there is a reasonable basis to

believe the alleged crimes occurred, whether a resulting case would satisfy the complementarity

regime, and whether the crimes are sufficiently grave to warrant a case before the ICC.

Jurisdiction

The alleged crimes occurred in Iraq, which is not a State Party of the ICC.87 Therefore, the Court

lacked jurisdiction over offenses by nationals of non-ICC States Parties that were committed on

Iraq soil. 88 However, some communications submitted to the Prosecutor argued that nationals of

ICC States Parties were accessories to crimes committed by nationals of non-member countries.89

Consequently, the Office’s preliminary analysis focused on whether a formal investigation should

be launched into the involvement of States Parties’ citizens as accessories to either war crimes or

crimes against civilians. 90

See OFFICE OF THE PROSECUTOR, supra note 75, 4.

Id. See also International Criminal Court’s Rules of Procedure and Evidence, Rules 46, 49(1).

OFFICE OF THE PROSECUTOR, supra note 75, at 4. Pursuant to this policy, the Office of the Prosecutor has released,

and made available on its website, the reasons behind the Prosecutor’s decisions not to initiate investigations on

situations in Iraq and Venezuela. See id.

See generally id.

Id. at 3.

Id.

OFFICE OF THE PROSECUTOR, supra note 75, at 3.

Id.

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Allegations of War Crimes

In its analysis of war crimes allegedly committed by States Parties’ nationals, the Office of the

Prosecutor reviewed submitted communications, identified those containing substantiated

information, examined relevant documentation and video-records, and purportedly conducted an

exhaustive search of readily available open source information. 91 Some of the readily available

open source information used was from non-governmental organizations including Amnesty

International, Human Rights Watch, Iraq Body Count, and Spanish Brigades Against the War in

Iraq.92 The Office also stated that it sought and received additional information on the alleged

crimes from other relevant countries and entities. 93

The Office paid particularly close attention to allegations concerning the targeting of civilians or

“clearly excessive” attacks.94 In that context, a war crime, as defined by the Rome Statute, only

occurs if there is an intentional attack directed against civilians or an attack is launched on a

military objective with the knowledge that incidental civilian injuries would clearly be excessive

relative to the anticipated military advantage. 95 The Office found that the available information

established that a considerable number of civilians died or were injured during military

operations.96 However, it believed that the information failed to either sufficiently prove or

disprove that (1) there were any intentional attacks on civilians; (2) the attacks were clearly

excessive in relation to military objectives; and (3) nationals of States Parties were involved in

the attacks.97 These gaps in intelligence led the Office to seek out still more information about the

alleged crimes.98

Additional information provided by the United Kingdom stated that lists of potential targets were

identified in advance; commanders were aware of the need to comply with international

humanitarian law; detailed computer modeling was used in assessing targets; target approval was

subject to political and legal oversight; and collateral damage assessments were sent back to

headquarters.99 In addition, the United Kingdom claimed that nearly 85% of the weapons released

by U.K. aircraft were precision-guided, which, to the Prosecutor, evinced an intent to minimize

casualties. 100

The Office continued to examine several incidents in detail until it felt it had exhausted all

measures “appropriate during the analysis phase.” 101 Ultimately, the Prosecutor concluded that

the available information did not provide a reasonable basis to believe that a crime within the

Id. at 2.

Id.

Id. at 3.

See OFFICE OF THE PROSECUTOR, supra note 75, at 4. See also Rome Statute, Art. 8(2) (defining war crimes to include

“intentionally directing attacks against the civilian population” and “intentionally launching an attack with knowledge

that such attack will cause incidental loss ... which would be clearly excessive in relation to the concrete and direct

overall military advantage anticipated).

See id. See also Rome Statute, Arts. 8(2)(b)(i), 8(2)(b)(iv).

OFFICE OF THE PROSECUTOR, supra note 75, at 6.

Id.

100

Id. at 7.

101

OFFICE OF THE PROSECUTOR, supra note 75, at 7.

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jurisdiction of the Court had been committed.102 The Prosecutor noted, however, that many facts

remained undetermined and its conclusion could be reviewed in light of new facts or evidence. 103

Allegations of Willful Killing and Inhumane Treatment

After allegations came to light in media reports concerning incidents of mistreatment of detainees

and willful killing of civilians in Iraq, the Prosecutor began collecting information on these

incidents and on related criminal proceedings that were undertaken by the States Parties whose

nationals were allegedly responsible. 104

The Prosecutor concluded that, in light of the available information, there was a reasonable basis

to believe that crimes within the jurisdiction of the ICC had been committed. However, the

Prosecutor did not believe that these crimes satisfied the gravity prong of Article 53’s standard for

initiating a formal investigation. 105 Assessing the gravity of the offenses in light of the number of

victims resulting from each crime, the Prosecutor found that there were at most 12 victims of

willful killing and a “limited” number of victims of inhuman treatment within the jurisdiction of

the Court.106 Noting that the Office of the Prosecutor was investigating three other situations that

each involved thousands of willful killings as well as intentional and large-scale sexual violence

and abductions, the Prosecutor concluded that the incidents in Iraq reviewed by the Office did not

meet the required threshold of the Rome Statute.107

Because the situation did not meet the gravity threshold, the Prosecutor wrote that it was

“unnecessary” to assess whether the situation satisfied Article 53’s other two prongs, including

Article 17’s complementarity requirements.108

Selected Situations Undergoing Preliminary Analysis by the

Prosecutor

Afghanistan

Preliminary Analysis in Afghanistan

On September 9, 2009, Prosecutor Moreno-Ocampo confirmed that his office was gathering

information about possible war crimes committed by NATO soldiers, U.S. soldiers, and both

Taliban and al Qaeda insurgents in Afghanistan.109 The Prosecutor has declined since to provide

102

Id.

104

Id.

105

Id. at 9.

106

OFFICE OF THE PROSECUTOR, supra note 75, at 9.

107

Id.

108

Id.

103

109

Louis Charbonneau, ICC Prosecutor Eyes Possible Afghanistan War Crimes, REUTERS, Sept. 9, 2009,

http://www.reuters.com/article/idUSTRE58871K20090909; LUCIA DICICCO, THE AMERICAN NON-GOVERNMENTAL

ORGANIZATION, COMMUNICATIONS TO THE ICC REGARDING THE SITUATION IN AFGHANISTAN 1 (Sept. 14, 2009),

http://www.amicc.org/docs/Afghanistan.pdf. The Reuters article summarizes three sets of allegations that could be

(continued...)

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further details about the specific incidents or allegations that the ICC is considering.110 The

Prosecutor also has not made public any decision regarding whether he is inclined to seek the PreTrial Chamber’s permission to initiate a formal investigation.111

The United States has not officially supported or opposed the Chief Prosecutor’s statements or

information-gathering efforts regarding Afghanistan. Under questioning from Members of

Congress in December 2009, Karl Eikenberry, U.S. Ambassador to Afghanistan, and General

Stanley McChrystal, Commander of U.S. Forces Afghanistan and the International Security

Assistance Force (ISAF), did not specifically refute the ICC’s authority to investigate alleged

crimes committed by U.S. and other NATO troops in Afghanistan. Instead, they stated that the

U.S.-Afghanistan BIA and SOFA precluded the ICC from obtaining custody of members of the

U.S. armed forces. In addition, alluding to the ICC’s Article 17 on complementarity, they

explained that any alleged wrongdoing would be properly investigated and prosecuted, if

necessary, under the U.S. military justice system. General McChrystal and Ambassador

Eikenberry stated that they were opposed to any ICC arrest and prosecution of members of the

U.S. armed forces for actions taken in Afghanistan.112

ICC Jurisdiction over Alleged Crimes in Afghanistan

Unlike the Iraq situation discussed previously, the ICC has jurisdiction over alleged crimes that

occurred in Afghanistan, even in cases where those offenses were committed by nationals of

States that are not themselves States Parties to the ICC, because Afghanistan acceded to the Rome

Statute on February 10, 2003. Afghanistan could choose to lodge a declaration with the Court

accepting the Court’s ad hoc jurisdiction over a period of time prior to that date under Article

12(3), thus empowering the Prosecutor to investigate crimes committed on Afghan soil after the

Rome Statute entered force (July 1, 2002), but prior to Afghanistan’s May 2003 ratification of it.

However, as with other cases, the ICC must consider not only whether it has jurisdiction over a

situation, but also whether the situation meets the requirements described in Article 53 for a

formal investigation and whether it is admissible under the complementarity requirements under

Article 17. As a result, if the United States, for example, shows that it is willing and able to

conduct “genuine” investigations and, where appropriate, prosecutions of nationals allegedly

involved in criminal activities, those cases would become permanently inadmissible in the ICC.

In addition, both countries can always seek to have the U.N. Security Council adopt a resolution

(...continued)

under consideration, depending on the information the Prosecutor received: (1) Afghan officials’ allegations that

“unwarranted NATO air strikes” have caused “heavy civilian death tolls;” (2) NATO officials’ allegations that the

Taliban and al Qaeda are guilty of “attacking schools and kidnapping and murdering aid workers and other innocent

civilians;” and (3) rights groups’ accusations that the Bush Administration “authorized the use of torture in Afghan jails

...” Id.

110

Charbonneau, supra note 109.

111

Although it is not necessarily an indication of future behavior, the last time that the ICC considered allegations

against U.S. troops, the Prosecutor did make public his decision not to initiate a formal investigation. That investigation

would have looked into U.S. soldiers’ activities in Iraq. The Prosecutor’s decision and reasoning not to seek the PreTrial Chamber’s authority to investigate is available on the ICC Office of the Prosecutor website.

112

U.S. Congress, House Committee on Foreign Affairs, U.S. Strategy in Afghanistan – Part II, 111th Cong., 1st sess.,

Dec. 10, 2009.

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pursuant to Article 16 of the Rome Statute to defer an investigation or prosecution for one year,

with the option of renewal.113

Extradition of U.S. Nationals

Should the Prosecutor decide to proceed with a formal investigation and prosecution of crimes

allegedly committed by U.S. citizens, a predictable concern is whether a foreign government

could extradite U.S. suspects to the ICC. As always, a country’s ratification of the Rome Statute is

not a prerequisite for the ICC’s transmission of a request for the arrest and surrender of a suspect,

but only those countries that are States Parties to the Rome Statute are mandated to comply with

such a request. 114

Unlike the United States, Afghanistan is a party to the Rome Statute, having ratified it on

February 10, 2003. In theory this means that Afghanistan is mandated to comply with a request

from the ICC to surrender an American national. However, the United States and Afghanistan

have also entered two agreements, the U.S-Afghanistan Bilateral Immunity Agreement (BIA)115

and the U.S.-Afghanistan SOFA,116 which present the kind of international obligations that, under

Article 98, may preclude the ICC from requesting that Afghanistan surrender an American.117

These Article 98 Agreements do not bar the ICC from asking States Parties other than

Afghanistan to extradite the accused if the accused voluntarily enters their territory.118 However,

the effect that these two agreements would have on a similar request to Afghanistan is unclear

given the debate over the meaning and applicability of Article 98. Without guidance from the ICC

itself, it is impossible to know whether the Court would find that the BIA or the SOFA precludes

an ICC request that Afghanistan surrender a U.S. national. It is also not clear whether Afghanistan

would honor an extradition request from the ICC in light of any conflicting obligation imposed by

the BIA or SOFA.

As discussed, there are at least two potential approaches that the ICC might take on this question

in addition to the textualist reading of Article 98 on which the United States has relied in entering

bilateral immunity agreements.119 If the ICC agrees with the view that Article 98 preserves only

113

See Rome Statute, Art. 16. E.g. SC Res. 1422, U.N. Doc. S/RES/1422 (2002).

Rome Statute, Art. 89(1).

115

See Agreement Regarding the Surrender of Persons to the International Criminal Court, U.S.-Afg., Sept. 20, 2002,

Temp. State Dep’t No. 03-119, KAV 6308; Rome Statute, Art. 89.1 (indicating that only State Parties are required to

comply with a request to surrender).

116

Status of Military and Civilian Personnel, U.S.-Afg., Sept. 26, 2002–May 28, 2003 (entered into force May 28,

2003), Temp. State Dep’t No. 03-67, KAV 6192. For more on the United States-Afghanistan SOFA, read the relevant

portion of CRS Report RL34531, Status of Forces Agreement (SOFA): What Is It, and How Has It Been Utilized?, by

(name redacted).

117

See Article 98(2).

118

See Prost & Kreß, supra note 54, at 1614. However, these agreements would not block the ICC from requesting a

country without a BIA with the United States to extradite the American suspect if the suspect came on to its territory.

See Agreement Regarding the Surrender of Persons to the International Criminal Court, U.S.-Afg., Aug. 23, 2003,

Temp. State Dep’t No. 03-119, KAV 6308; Rome Statute, Art. 89.1 (indicating that only State Parties are required to

comply with a request to surrender).

119

See supra notes 55-65 and accompanying text. This discussion pointed to three common perspectives on what

agreements contained obligations that Article 98 was drafted to protect: (1) obligations contained in agreements that

protect persons present on the foreign territory because they were sent there on official business (the prototype of these

agreements are Status of Forces Agreements (SOFAs) like the one between the United States and Afghanistan), (2)

obligations contained in agreements that were entered into by the State Party before it signed the Rome Statute (which

(continued...)

114

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SOFA-like obligations contained in international agreements, the Court would most likely

interpret the U.S.-Afghanistan SOFA as preempting an ICC request that Afghanistan surrender

U.S. personnel, but conclude that the U.S.-Afghanistan BIA does not preempt an ICC request that

Afghanistan surrender any U.S. citizens present in Afghanistan who were not serving as U.S.

personnel. 120 If, on the other hand, the ICC interprets Article 98 pursuant to either of the other two

approaches discussed, namely (1) that Article 98 was intended to preempt requests to surrender

that conflict with international obligations predating the sending State’s entry into the ICC,121 or

(2) that Article 98 should be interpreted literally,122 then a request to Afghanistan for the surrender

of a U.S. citizen would most likely be deemed preempted by the BIA. While the ICC is the sole

arbiter of the meaning and applicability of Article 98, political realities could weigh in favor of

the U.S. position on the application of Article 98 to its BIA with Afghanistan.123

Gaza Strip

On January 22, 2009, the Palestinian National Authority (PNA) lodged a declaration pursuant to

Article 12(3) of the Rome Statute with the Registrar of the ICC, accepting ICC ad hoc jurisdiction

over alleged crimes committed during the December 2008/January 2009 conflict between Israeli

and Hamas forces in the Gaza strip.124 The ICC’s jurisdiction over any alleged crimes would

come solely from the PNA’s declaration as neither Israel nor the PNA are States Parties to the

Rome Statute.125 However, the PNA’s declaration is complicated by the fact that it has not been

(...continued)

may include the U.S.-Afghanistan BIA since it was signed before Afghanistan signed the Rome Statute), and (3)

obligations contained in any international agreement no matter its label or the date it entered force (a perspective that

would include both the United States-Afghanistan BIA and SOFA).

120

Under this approach, the key to having the ICC respect the U.S.-Afghanistan BIA would, arguably, be the scope of

its protection against extradition: only if its protection is limited to U.S citizens sent to Afghanistan on official business

would Article 98 permit the agreement to preempt a request to surrender. The BIA prohibits the United States and

Afghanistan from surrendering to the ICC the “persons” of either party, meaning any “current or former Government

officials, employees (including contractors), or military personnel or nationals of one Party.” Agreement Regarding the

Surrender of Persons to the International Criminal Court, U.S.-Afg., Sept. 20, 2002, Temp. State Dep’t No. 03-119,

KAV 6308 (emphasis added). Therefore, if the ICC adopted this approach, it might read the BIA as extending

protection against extradition to too broad a range of people to warrant preservation under Article 98. However, under

this same approach, the ICC might conclude that the SOFA preempts an ICC request to Afghanistan for the surrender of

U.S. personnel because it contains the type of obligations that proponents of this view believe Article 98 was intended

to preserve. See Status of Military and Civilian Personnel, U.S.-Afg., Sept. 26, 2002–May 28, 2003 (entered into force

May 28, 2003), Temp. State Dep’t No. 03-67, KAV 6192 (prohibiting Afghanistan from surrendering or otherwise

transferring “United States personnel” to the custody of an international tribunal, other entity, or other state without the

express consent of the U.S. government).

121

Under the approach that Article 98 preserves only those international obligations contained in agreements that

Afghanistan signed before it signed the Rome Statute on February 10, 2003, the BIA would most likely preempted an

ICC request for the surrender of a U.S. national because it was signed on September 20, 2002, several months before

Afghanistan signed the Rome Statute. See supra notes 61-65 and accompanying text.

122

Under the textualist approach on which United States has relied in creating BIAs, Article 98 preserves all BIAs,

regardless of the scope of their protection against extradition or date on which they were signed, because a State Party’s

compliance with an ICC request to surrender necessitates its non-compliance with a BIA.

123

See Prost & Kreß, supra note 54, at 1616. As Prost and Kreß describe the issue, “[A]ny determination by the Court

that no conflicting international obligation exists will leave the requested State Party with the risk that the Court’s

determination of the international legal obligation is wrong. It was felt, however, that this risk is a tolerable one to bear

in light of both the judicial expertise united on the bench and the persuasive authority that any relevant determination

by the Court is bound to carry with it.” Id.

124

OFFICE OF THE PROSECUTOR, supra note 78.

125

Palestine was not represented by a delegation at the Rome Conference but was able to send an observer delegation

(continued...)

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recognized as a State, and, absent this recognition, the PNA cannot confer on the Court ad hoc

jurisdiction over offenses on its territory under Article 12.126 This has raised concerns that the

contentious issue of Palestinian statehood could come before the ICC.127

When the PNA lodged its declaration seeking to confer on the ICC ad hoc jurisdiction, the Office

of the Prosecutor had received 213 communications from individuals and NGOs relating to the

situation between Israel and the Palestinian Territories.128 By February 13, 2009, less than a

month later, that number had jumped to 326.129 The Prosecutor has not released any further

information about the status of its preliminary analysis into the Gaza Conflict.130

In September 2009, the U.N. Human Rights Council-established U.N. Commission of Inquiry on

Gaza presented the Report of the U.N. Fact Finding Mission on the Gaza Conflict (“Goldstone

Report”),131 which found both war crimes and crimes against humanity had been committed in the

Gaza conflict.132 The report recommended that the U.N. Security Council (1) require Israel and

the PNA to carry out national level investigations and prosecutions against those responsible for

the crimes, and (2) if Israel and the PNA failed to conduct these proceedings within a six-month

period, refer the situation to the ICC Prosecutor.133 If the U.N. Security Council ultimately refers

the situation to the ICC, then, under Article 13(b), the ICC Prosecutor will have jurisdiction even

though neither Israel nor Palestine is a member of the ICC and the ICC may not deem Palestine a

“state” under the Rome Statute.134 The Security Council has referred only one situation to the ICC

(...continued)

to the talks. COALITION FOR THE INTERNATIONAL CRIMINAL COURT, THE ICC AND THE ARAB WORLD 1 (2009), available

at http://www.iccnow.org/documents/Arab_States_the_ICC_Factsheet__EN_.pdf.

126

See Rome Statute, Art. 4(2) (“The Court may exercise its functions and powers ... on the territory of any State Party

and, by special agreement, on the territory of any other State.” (emphasis added)). In light of this complication, the

Minister of Justice of the Palestinian National Authority (PNA), Dr. Ali Khashan, has also submitted legal arguments in

support of its declaration. Press Release, ICC, ICC Prosecutor Receives Palestinian Minister of Justice, Arab League,

and Independent Fact-Finding Committee (Oct. 16, 2009) available at http://www.icc-cpi.int/Menus/ICC/

Press+and+Media/Press+Releases/Press+Releases+%282009%29/ (last visited Mar. 5, 2010).

127

E.g. Joshua Rozenberg, ICC’s Credibility Hangs on Palestinian Statehood Decision, Law Soc’y Gazette, May 21,

2009. However, the question would evade being answered by either the Prosecutor or the ICC if the U.N. Security

Council referred the situation to the ICC. See Rome Statute, Art. 13(b); see also John Quigley, The Palestine

Declaration to the International Criminal Court: The Statehood Issue, 35 RUTGERS L. REC. 1, 9 (2009) (stating that,

other than conferral of jurisdiction by the PNA’s declaration, the only other potential bases for ICC jurisdiction over

these allegations would be the nationality of a particular offender or a referral by the Security Council).

128

OFFICE OF THE PROSECUTOR, supra note 78.

129

OFFICE OF THE PROSECUTOR, INTERNATIONAL CRIMINAL COURT, VISIT OF THE PALESTINIAN NATIONAL AUTHORITY

MINISTER OF FOREIGN AFFAIRS, MR. RIAD AL-MALKI, AND MINISTER OF JUSTICE, MR. ALI KHASHAN, TO THE

PROSECUTOR OF THE ICC (Feb. 13, 2009), http://www.icc-pi.int/Menus/ICC/Structure+of+the+Court/

Office+of+the+Prosecutor/Comm+and+Ref/Palestine (follow “Visit of the Minister of Justice of the Palestinian

National Authority”) (last visited Dec. 14, 2009).

130

For an in-depth discussion of the conflict, see CRS Report R40101, Israel and Hamas: Conflict in Gaza (20082009), coordinated by (name redacted).

131

The text is available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf.

132

COALITION FOR THE INTERNATIONAL CRIMINAL COURT, THE ICC AND THE ARAB WORLD 3 (2009), available at

http://www.iccnow.org/documents/Arab_States_the_ICC_Factsheet__EN_.pdf.

133

Id.

134

See Rome Statute, Art. 13(b). However, if the U.N. Security Council grants the ICC jurisdiction over the case, the

ICC Prosecutor will still be required to conduct a preliminary analysis and address any issues of admissibility.

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Prosecutor previously, and that referral resulted in the ICC Prosecutor opening a formal

investigation into alleged war crimes in Darfur.135

The United States has generally opposed ICC involvement in investigating alleged crimes

committed during the December 2008-January 2009 conflict between Israel and Hamas in the

Gaza Strip. U.S. representatives in the United Nations have disagreed with the conclusions of the

Goldstone Report, including the recommendation of a U.N. Security Council resolution to

authorize an ICC investigation of alleged crimes. The United States was one of six members to

vote against a resolution adopted by the U.N. Human Rights Council endorsing the findings of

the Goldstone Report.136 State Department spokesman Ian Kelly, in addition to disagreeing with

the report’s assessment of the actions taken by both sides to the conflict, also expressed the

department’s concern over calls in the report for the issue “to be taken up in international fora

outside the Human Rights Council and in national courts of countries not party to the conflict.”137

Other statements by U.S. representatives have indicated the Obama Administration’s preference

that the Gaza issue be dealt with in the Human Rights Council and not in the ICC or the Security

Council, where a vote on a resolution referring the alleged crimes to the ICC for investigation

might occur.138

Developments in U.S. ICC Policy

A shift in the overall U.S. government policy and treatment of the ICC is apparent from

legislative and executive branch actions in recent years. As discussed earlier, the United States

has based its opposition to the ICC on sovereignty concerns, the possibility for overreach by the

ICC prosecutor, and the desire to protect members of the U.S. armed forces from politically

motivated prosecutions before the Court. While these concerns do not seem to have abated, the

views of the U.S. government, beginning under the George W. Bush Administration and

continuing under the Obama Administration, appear to have shifted toward the conclusion that the

ICC may sometimes serve as a useful tool in bringing perpetrators of the worst atrocities to

justice. In addition, representatives of the Obama Administration have stated that despite

continuing concerns about the Court, the United States can best protect and promote its interests

through engaging with the ICC. Congress, after passing a number of pieces of legislation evincing

opposition to the ICC and any effect of the Court on U.S. individuals or interests, has recently

moved to roll back restrictions on U.S. foreign assistance to ICC States Parties.

Executive Branch Policy

Although remaining opposed to United States becoming a State Party to the Rome Statute, the

Bush Administration in its second term took actions that evidenced an acceptance of the work and

importance of the ICC in bringing perpetrators of atrocities to justice. In its first year, the Obama

135

SC Res. 1593, U.N. Doc S/RES/1593 (2005).

136

The text of the U.N.HRC resolution (Resolution S-12/1), dated October 16, 2009, is available at

http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf.

137

Remarks by State Department Spokesman Ian Kelly, September 19, 2008, http://www.state.gov/r/pa/prs/ps/2009/

sept/129371.htm.

138

See e.g. Remarks by Ambassador Alejandro Wolff, U.S. Deputy Permanent Representative to the United Nations,

on the Middle East, at the Security Council Stakeout, October 7, 2009, http://usun.state.gov/briefing/statements/2009/

130384.htm; Remarks by State Department Spokesman Ian Kelly, October 8, 2009.

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Administration was at times supportive of the ICC in its statements, and began to engage with the

ICC, but did not adopt a policy to join the Court. The Obama Administration has undertaken an

interagency review of its ICC policy and is expected to complete the review and make public its

conclusions sometime in 2010.

United States Engagement with the ICC

In November 2009, the United States participated as an observer in the ICC’s annual Assembly of

States Parties in The Hague. In announcing the decision, Stephen Rapp, the U.S. Ambassador-atLarge for War Crimes Issues, stated, “Our government has now made the decision that Americans

will return to engagement with the ICC.”139 He insisted, however, that the United States still does

not intend to become party to the Rome Statute at this time. 140 Ambassador Rapp specifically

mentioned continuing concerns over the possibility that U.S. service members “might be subject

to politically inspired prosecutions.”141

Both Ambassador Rapp and the State Department Legal Advisor, Harold Koh, attended the ICC

Assembly of States Parties. In his remarks to the Assembly, Ambassador Rapp asserted that while

not a State Party to the Rome Statute, the United States did not at any point abandon its

commitment to bringing perpetrators of atrocities to justice, including through international

criminal tribunals such as those created by the United Nations for crimes committed in the former

Yugoslavia and Rwanda.142 He stated that there are instances when only the international

community, working together, can ensure justice is done, and cited the U.S. support of and

cooperation in the ICC’s investigation into alleged crimes in Darfur.143 He also explained the U.S.

intention to gain a “better understanding of the issues being considered [by the ICC States

Parties] and the workings of the Court.”144 Ambassador Rosemary DiCarlo, U.S. Alternate

Representative to the United Nations for Special Political Affairs, stated in the Security Council

on December 4, 2009, “Although the United States is not a party to the Rome Statute, the United

States was pleased to participate last week for the first time as an observer to the Assembly of

States Parties to the Rome Statute. This decision reflected the U.S. commitment to engage with

the international community on issues that affect our foreign policy interests.”145

Ambassador Rapp has also stated that the United States will participate in the Review Conference

of the Rome Statute, to take place in Kampala, Uganda, in May-June 2010.146 At the Assembly, he

spoke about the possibility of amending the Rome Statute to include the crime of aggression

139

Quotation as reported by several news organizations. See e.g. Tom Maliti, Envoy says US to Attend War Crimes

Court Meeting, ASSOCIATED PRESS ONLINE, Nov. 16, 2009; US to Resume Engagement With ICC, BBC NEWS, Nov. 16,

2009, http://news.bbc.co.uk/2/hi/8363282.stm; Kenya Said to Give Shelter to Financier of Rwanda Genocide, VOICE OF

AMERICA, Nov. 16, 2009, http://www1.voanews.com/english/news/a-13-2009-11-16-voa52-70423427.html.

140

Colum Lynch, US to Attend, but Not Join, ICC Conference, WASH. POST, Nov. 17, 2009, p. A20.

141

Quotation as reported by several news organizations. See e.g, Maliti, supra note 120; David Clarke, U.S. to Attend

Hague Court Meeting as Observer, REUTERS, Nov. 16, 2009.

142

Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes Issues, Remarks to the 2009 ICC Assembly of States

Parties, Nov. 19, 2009.

143

Id.

144

Id.

145

Ambassador Rosemary A. DiCarlo, U.S. Alternate Representative to the United Nations for Special Political

Affairs, Remarks in the Security Council Chamber on Sudan and the ICC, Dec. 4, 2009.

146

Lynch, supra note 140.

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within the ICC’s jurisdiction, an issue that will be a topic of discussion at the 2010 Review

Conference. His remarks reflected the continuing U.S. opposition to inclusion of such a crime

within the Court’s purview, stating that determining and dealing with aggression is the

responsibility of the U.N. Security Council, and that decisions on ICC prosecution of aggression

could draw the ICC “into a political thicket that could threaten its perceived impartiality.”147

U.S. Actions in the United Nations Concerning the ICC

On March 31, 2005, the U.N. Security Council by a vote of 11 in favor with four Members

abstaining, including the United States, adopted Resolution 1593, which referred allegations of

crimes committed by President Omar Hassan Ahmad al-Bashir of Sudan to the ICC prosecutor.

On July 31, 2008, the United States abstained in a Council vote on Resolution 1828, which

contained language implying that the Security Council would consider an Article 16 deferral of

the Bashir prosecution under the Rome Statute.148 The Obama Administration has opposed an

Article 16 deferral of the prosecution of President Bashir.149 Upon the issuance of the arrest

warrant for President Bashir, Ambassador Susan Rice, U.S. Permanent Representative to the

United Nations, released a statement calling for restraint from all parties in Darfur, and

cooperation from the government of Sudan. 150 With regard to the enforcement of the warrant for

the arrest of the President of Sudan, Ambassador Rapp stated in his confirmation hearing that it is

the Obama Administration’s intent to support ICC efforts to enforce the arrest warrant.151

The Obama Administration has also reversed a Bush Administration policy to oppose language in

Security Council resolutions referring to the ICC.152 On September 30, 2009, the U.N. Security

Council, chaired by U.S. Secretary of State Hillary Clinton, unanimously adopted Resolution

1888, which contains a specific reference to sexual violence crimes listed in the Rome Statute.153

Obama Administration Statements Concerning the ICC

Although the Obama Administration has expressed general support for the ICC and has stated that

the ICC may sometimes service as a useful tool for prosecuting war crimes and other atrocities,

the Administration has not announced a policy to automatically back every proposed ICC

147

Rapp, supra note 142.

See David Scheffer, The Security Council’s Struggle Over Darfur and International Justice, JURIST, Aug. 20,

2008, http://jurist.law.pitt.edu/forumy/2008/08/security-councils-struggle-over-darfur.php.

149

James B. Warlick, Assistant Secretary of State for International Organization Affairs, U.S. Reengagement With the

U.N., U.S. Department of State Foreign Press Center Briefing, Mar. 30, 2009; National Public Radio, Interview With

Susan E. Rice, U.S. Ambassador to the United Nations, Mar. 6, 2009; Colum Lynch, Sudan Retains Clout While

Charges Loom, WASH. POST, Feb. 9, 2009.

148

150

Susan E. Rice, U.S. Ambassador to the United Nations, press release concerning issuance of ICC warrant for arrest

of President Omar Hassan Ahmad al-Bashir of Sudan, Mar. 4, 2009, http://www.usunnewyork.usmission.gov/

press_releases/20090304_039.html.

151

Ambassador Rapp, responding to a question concerning the arrest warrant for Sudanese President al-Bashir, stated

that “we will support efforts of the ICC to enforce its arrest warrant.” U.S. Congress, Senate Committee on Foreign

Relations, hearing to consider nominations, 111th Cong., 1st sess., July 22, 2009 (text from Federal News Service;

available from LexisNexis Congressional; accessed 3/10/2010).

152

U.S. Department of State, “U.S. “Ready to Lead Once More” at United Nations,” America.gov, Aug. 14, 2009;

Susan E. Rice, U.S. Ambassador to the United Nations, A New Course in the World, a New Approach at the U.N.,

remarks at New York University’s Center for Global Affairs and Center on International Cooperation, Aug. 12, 2009.

153

SC Res. 1888, U.N. Doc. S/RES/1888 (2009).

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investigation and prosecution. Instead, as Ambassador Rapp stated before the ICC Assembly of

States Parties, the United States will support international tribunals when they are necessary to

achieve justice, but will continue to place “greatest importance” on helping individual States set

up their own systems of justice to deal with the worst atrocities.154 The Obama Administration has

treated possible U.S. adherence to the ICC Statute as a separate issue from its willingness to

support the Court’s work, continuing to cite the security of U.S. armed forces as a stumbling

block to the United States joining as a State Party to the Rome Statute.

ICC’s Effectiveness and the United States as a Possible State Party

Indications that the Obama Administration would shift U.S. policy toward the ICC were apparent

early on, with Administration representatives characterizing the ICC as a body with potential to

provide justice for victims of atrocities. In response to written questions from Senator John Kerry

prior to her nomination hearing to become Secretary of State, Hillary Clinton stated that the

Obama Administration would end U.S. “hostility” to the ICC, and would support the work of the

ICC.155 She stated that the ICC had so far operated with “professionalism and fairness,” citing the

ICC’s work on cases in Darfur, Congo, and Uganda.156 She explained that the Obama

Administration would conduct a full review of the U.S. position on becoming a State Party to the

Rome Statute, citing the continuing concern about the security of members of the U.S. armed

forces deployed overseas. In January 2009, U.N. Ambassador Susan Rice stated that the ICC is

“look[ing] to become an important and credible instrument for trying to hold accountable the

senior leadership responsible for atrocities committed in the Congo, Uganda and Darfur.”157

In August 2009, Secretary of State Hillary Clinton spoke about the fact that the United States had

not become party to the Rome Statute. Responding to arguments regarding an apparent

contradiction between U.S. support for a possible ICC investigation into the massacres that

marked the 2007 elections in Kenya and the U.S. refusal to become party to the Rome Statute, she

stated it is “a great regret” that the United States is not a party to the Rome Statute, adding, “I

think we could have worked out some of the challenges that are raised concerning our

membership by our own government, but that has not yet come to pass.”158 She asserted,

however, that the United States will support the ICC in its investigations and prosecutions.

Continuing U.S. Preference for National Justice Systems and Special Tribunals

The Obama Administration has continued to adhere to a policy of encouraging local and national

justice systems to take up prosecutions of alleged atrocities, or to create special tribunals within

communities where the violence has occurred. Ambassador Rapp, during his nomination hearing,

154

Rapp, supra note 142.

See Hillary Clinton, written responses to questions for the record from Sen. John Kerry in advance of nomination

hearing to become Secretary of State, January 2009, p. 66, http://www.amicc.org/docs/KerryClintonQFRs.pdf.

156

Id. The ICC has thus far instituted proceedings for cases originating solely in sub-Saharan Africa (although it has

conducted an investigation of paramilitaries in Colombia). For a detailed discussion of the ICC cases in Africa, see

CRS Report RL34665, International Criminal Court Cases in Africa: Status and Policy Issues, by (name redacted), (name

redacted), and (name redacted).

157

Ambassador Susan E. Rice, U.S. Permanent Representative to the United Nations, statement before the U.N.

Security Council, Jan. 29, 2009.

158

Secretary of State Hillary Clinton, Remarks at “Townterview” Hosted by CNN and KTN, University of Nairobi,

Nairobi, Kenya, Aug. 6, 2009, http://www.state.gov/secretary/rm/2009a/08/126954.htm.

155

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stated that the Office for War Crimes Issues is committed to bringing individuals to account for

war crimes and other atrocities. He expressed the U.S. government’s continuing preference for

local and specialized forms of justice for such crimes, but acknowledged the need for

international efforts in some cases:

Our first preference should be for a process of accountability at the level that is closest to the

affected communities. However, peace and reconciliation can best be assured by a justice

system that is independent and has sufficient capacity to hold to account those bearing the

greatest responsibility for atrocities. Achieving accountability in different situations will

require varying levels of assistance and international participation.159

This statement seems to reflect the continuation of the view that the United States will cooperate

with the ICC when it believes it is a useful forum for bringing criminals to justice, but that it will

encourage other special courts or the use of national justice systems when feasible. 160 This

position is, arguably, consistent with the principle of complementarity that underlies the ICC

because it sees ICC involvement as limited to those situations when local justice systems lack the

capacity to effectively deal with alleged atrocities.

This approach has been reinforced in Obama Administration comments concerning specific ICC

investigations and other proceedings. With regard to the 2007 election violence in Kenya,

Secretary Clinton in August 2009 stated that it is the hope of the United States that Kenya can use

its own national justice system to bring alleged criminals to justice, therefore negating the need

for the ICC to conduct prosecutions.161 The United States has urged Kenya to create a special

tribunal to prosecute alleged perpetrators of the violence, but has also urged Kenyan officials to

cooperate fully with the ICC in its investigations into these criminal allegations.162 If Kenya

cannot set up a special tribunal, U.S. diplomatic officials have stated support for action by the

ICC.163

In the Democratic Republic of the Congo (DRC), the ICC has brought charges against certain

military commanders for war crimes, crimes against humanity, and sexual crimes. The United

States has not opposed these cases, but has stated that other mechanisms of justice and

accountability are needed in the DRC.164

ICC’s Effect on Peace Settlements

Some observers have criticized the ICC for effectively discouraging the settlement of armed

conflicts, arguing that alleged perpetrators of war crimes and other atrocities will lose any

incentive to bring hostilities to an end if an ICC warrant for their arrest is issued. In addition,

159

Nomination Hearing, supra note 151.

Ambassador Rapp served as a prosecutor for two special courts, namely the International Criminal Tribunal for

Rwanda and the Special Court for Sierra Leone.

161

Secretary of State Clinton Delivers Remarks with Kenyan Foreign Minister Moses Wetangula, CQ Transcripts,

August 5, 2009.

162

See Remarks of U.S. Ambassador Michael Ranneberger to the Law Society of Kenya, “The Reform Agenda and

Kenya’s Historic Opportunity,” October 30, 2009, http://nairobi.usembassy.gov/root/pdfs/reformag.pdf.

163

U.S. Embassy Nairobi, “Ambassador Ranneberger Discusses U.S.-Kenyan Relations,” CO.NX webchat transcript,

August 12, 2009, http://nairobi.usembassy.gov/root/pdfs/transcript090812.pdf.

164

Remarks by Ambassador Susan Rice on Women, Peace and Security, USU.N. Press Release, August 7, 2009,

http://www.america.gov/st/democracyhr-english/2009/August/20090807170949eaifas0.2164074.html.

160

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some have criticized the United States and others for negotiating with governments whose

representatives are currently wanted by the ICC for alleged crimes. Ambassador Rapp has

addressed these concerns, claiming that while the United States is currently working to achieve a

peace settlement with the Sudanese government and rebel groups in Darfur, for example, such

efforts are not “inconsistent with pressing for accountability for those responsible for serious

violations of international humanitarian law.”165 In addition, he stated that the indictments of

Charles Taylor by the Special Court for Sierra Leone and of Joseph Kony by the ICC enhanced,

rather than hindered, prospects for peace in Sierra Leone and Uganda, respectively. 166

Bilateral Immunity Agreements

As explained previously, the United States has executed BIAs with scores of countries, in the

hope of limiting the ICC’s ability to request that States Parties surrender U.S. nationals to the

ICC. The United States concluded the most recent BIA in 2007, with Montenegro. CRS has

located the texts of 96 BIAs, but there are six additional BIAs that were reported but not located.

A number of countries have concluded BIAs with the United States despite not being States

Parties to the Rome Statute. These agreements remain in effect, although, as discussed above,

their effectiveness under international law has been questioned.

Recent Congressional Action

Although several provisions in legislation opposing U.S. adherence to and support for the ICC

Statute remain in effect, recent Congresses have eliminated or refrained from renewing sanctions

provisions that affect U.S. assistance for countries that are ICC States Parties. Although these

actions could be interpreted as indicating a change in Congress’s position toward the ICC, the

changes might also be interpreted as being primarily rooted in a concern that sanctions may have

begun to hurt U.S. interests.

Section 2007 of the American Servicemembers’ Protection Act

Enacted in 2002, Section 2007167 of the American Servicemembers’ Protection Act (ASPA)

prohibited U.S. military assistance to ICC States Parties. Such assistance was defined in Section

2013(13) of the act as assistance provided under chapter 2 (Military Assistance) or 5

(International Military Education and Training, or IMET) of part II of the Foreign Assistance Act

of 1961, as amended (FAA, P.L. 87-195), as well as credit sales of defense articles or services

under Section 23 of the Arms Export Control Act, as amended (AECA, P.L. 90-629; 22 U.S.C. §

2463).

Section 2007 contained a general prohibition on assistance, two bases for presidential waivers of

that prohibition, and an exemption from the prohibition. Subsection (a) stated that effective one

year after the date on which the Rome Statute enters into force, no U.S. military assistance may

be provided to States Parties to the ICC. Subsection (b) provided that the President could waive,

without prior notice to Congress, the prohibition with regard to a country if he determines and

165

Nomination Hearing, supra note 151.

Id.

167

Formerly codified at 22 U.S.C. § 7426.

166

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reports to Congress that it is in the U.S. national interest to do so. Subsection (c) authorized the

President to waive, again without prior notice to Congress, the prohibition with regard to a

country if (1) the country entered into a BIA with the United States and (2) the President reported

the agreement to Congress. Subsection (d) exempted NATO members, designated major nonNATO allies (MNNAs), 168 and Taiwan from the prohibition.

Nethercutt Amendment Provisions

Provisions enacted in the 2005, 2006, and 2008 Foreign Operations Appropriations bills (socalled “Nethercutt Amendment” provisions169) contained similar funding prohibitions for

Economic Support Fund (ESF) assistance to ICC States Parties:

•

Section 574 of the Foreign Operations, Export Financing, and Related Programs

Appropriations Act, 2005 (FY2005 Appropriations Act; Division D of P.L. 108447; 118 Stat. 3027) prohibited Economic Support Fund (ESF) assistance to ICC

States Parties for funds available through September 30, 2006.

•

Section 574 of the Foreign Operations, Export Financing, and Related Programs

Appropriations Act, 2006 (FY2006 Appropriations Act; P.L. 109-102; 119 Stat.

2229) contained the same general ESF prohibition for funds available through

September 30, 2007.170

•

Section 671 of the Department of State, Foreign Operations, and Related

Programs Appropriations Act, 2008 (FY2008 Appropriations Act; Division J of

P.L. 110-161; 121 Stat. 2354) prohibited ESF assistance for ICC States Parties

with regard to funds available through September 30, 2009.

Each Nethercutt Amendment provision differed somewhat from the other two. Section 574 of the

FY2005 Appropriations Act contained a general prohibition on ESF assistance, two bases for a

Presidential waiver of the prohibition, and an exemption from the prohibition. Subsection (a)

prohibited the use of ESF funds to assist a country that is a party to the ICC and that has not

entered into an Article 98 agreement with the United States. Subsection (b) authorized the

President to waive, without prior notice to Congress, this prohibition for NATO members,

MNNAs, or Taiwan, if he determines and reports to Congress that it is important to U.S. national

security interests to do so (emphasis not in legislation).171 Subsection (c) allows the President to

waive, without prior notice to Congress, the prohibition with regard to a country if the country

entered into an agreement with the United States pursuant to Article 98 of the Rome Statute

preventing the ICC from proceeding against U.S. personnel in such country, and if the President

reports to Congress on the agreement. Subsection (d) provided that the prohibition does not apply

to countries otherwise eligible for assistance under the Millennium Challenge Act of 2003 (MCA,

Title VI of Division D of the Consolidated Appropriations Act, 2004; P.L. 108-199).

168

The current major non-NATO allies (MNNAs) are Argentina, Australia, Bahrain, Egypt, Israel, Japan, Jordan,

Kuwait, Morocco, New Zealand, Pakistan, the Philippines, Thailand, and the Republic of Korea. 22 C.F.R. § 120.32.

169

Former Representative George Nethercutt first proposed an amendment to the Foreign Operations, Export

Financing, and Related Programs Appropriations Act, 2005 containing the original provision prohibiting ESF

assistance to ICC States Parties.

170

This provision applied to continuing appropriations made in FY2008.

171

Compare Section 2007(b) of ASPA, which provided for a waiver under a determination of national interest, not

national security interest (emphasis not in legislation). In addition, under Section 574, NATO members, MNNAs, and

Taiwan may be eligible for waiver, but are not outright exempt from the prohibition.

Congressional Research Service

The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy

Section 574 of the FY2006 Appropriations Act contained the general prohibition on ESF

assistance, two bases for a Presidential waiver of the prohibition, an exemption from the

prohibition in that section, and an additional exemption from the prohibition contained in the

Nethercutt Amendment provision from the 2005 Act. Subsection (a) provided the identical

prohibition on ESF funds to ICC States Parties without an Article 98 agreement with the United

States. Subsection (b) also provided for a Presidential determination justifying a waiver of the

prohibition, but it required prior notice to Congress, included “such other country as he may

determine” along with NATO members, MNNAs, and Taiwan as eligible to receive the waiver,

and changed the standard from a determination of national security interest to one of national

interest. Subsection (c) of the FY2006 Act provision is similar to that of FY2005, allowing the

President to waive if a country entered an Article 98 agreement, except this waiver also became

dependent on prior notice to Congress. Subsection (d) contained the identical exemption from the

prohibition for MCA-eligible countries. Subsection (e) exempted democracy and rule of law

programs and activities from the FY2005 Nethercutt Amendment’s prohibition on ESF funds to

ICC States Parties.

Subsections (a) through (d) of Section 671 of the FY2008 Appropriations Act were identical to

those of Section 574 of the FY2006 Appropriations Act, with the same general prohibition;

national interest waiver eligibility for NATO, MNNAs, Taiwan, and “such other” countries as the

President may determine; Article 98 agreement waiver; and MCA-eligible country exemption.

There was no further subsection concerning previous Nethercutt Amendment provisions.

Modifications to the ASPA/Nethercutt Sanctions Policy

Although Section 2007 of ASPA and the Nethercutt Amendment provisions articulated a strong

policy of opposition to the ICC, in line with the U.S. policy toward the Court during much of the

Bush Administration, questions from within the executive branch on the costs and benefits of

such sanctions surfaced as early as 2006. Secretary of State Condoleezza Rice was quoted as

describing the sanctions as akin to “shooting ourselves in the foot” when they prohibited military

aid to key U.S. allies. The 2005 Quadrennial Defense Review characterized APSA’s restrictions

as a burden on the U.S. military in its efforts to combat terrorism. In addition, President Bush

granted nearly 90 waivers of ASPA or Nethercutt prohibitions during his Administration on

national interest grounds where no BIA was in place, revealing a substantial need to continue

military and ESF assistance to U.S. partners that were also ICC States Parties. A number of

Members of Congress shared the concerns of certain Bush Administration officials.

In 2006, Congress amended Section 2013(13)(A) of the ASPA to remove IMET funding from the

definition of U.S. military assistance (Section 1222 of Division A of the John Warner National

Defense Authorization Act for Fiscal Year 2007, P.L. 109-364). In 2007, Section 1212(a) of the

National Defense Authorization Act for Fiscal Year 2008 (P.L. 110-181; 122 Stat. 371) repealed

Section 2007 of ASPA altogether, thus ending the prohibition on FAA military assistance and

AECA military credit sales for States Parties to the ICC. After being included in the previous

three bills, Nethercutt Amendment language was not included in the most recent foreign

operations appropriations legislation (Department of State, Foreign Operations, and Related

Programs Appropriations Act, 2009; Division H of P.L. 111-8). At present, therefore, ICC-related

prohibitions on military and ESF assistance are no longer operative.

Congressional Research Service

The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy

Legislation Proposed in the 111th Congress

To date, no bills have been introduced in the current Congress relating to the ICC or U.S.

becoming party to the Rome Statute, or participating in or cooperating with the Court. Members

in the House have proposed non-binding resolutions concerning the ICC as it relates to alleged

atrocities.

H.Res. 867: This resolution characterizes the Goldstone Report concerning the 2008-2009

conflict in Gaza as biased and unbalanced in its criticism of Israel’s actions during that conflict. It

calls on President Obama to veto “any United Nations Security Council resolution that endorses

the contents of this report, seeks to act upon the recommendations contained in this report, or

calls on any other international body to take further action regarding this report.” The Goldstone

Report recommended that the Security Council refer the Gaza case to the ICC prosecutor to

investigate allegations of war crimes if no prosecutions by national justice systems are undertaken

within 6 months. It passed the House on November 3, 2009.

H.Res. 241: This resolution commends the ICC for issuing a warrant for the arrest of Omar

Hassan Ahmad al-Bashir, President of the Republic of the Sudan. It was referred to the House

Foreign Affairs Committee on March 12, 2009.

H.Con.Res. 97: This concurrent resolution calls on the President to (1) support U.N. Security

Council referrals of atrocities to the ICC; (2) state as U.S. policy a commitment to support the

Rome Statute and to reactivate the United States as signatory to the Statute; (3) cooperate with

ICC investigations unless it is not in the U.S. national interest; (4) participate as observer at the

annual ICC Assembly of States Parties; (5) and grant waivers, based on national interest, of

prohibitions against assistance and cooperation with the ICC. It was referred to the House Foreign

Affairs Committee on April 2, 2009.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

(name redacted)

Analyst in Foreign Policy Legislation

[redacted]@crs.loc.gov, 7-....

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