International Criminal Court: Overview and Selected Legal Issues
Congressional research reportJun 5, 2002
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International Criminal Court:
Overview and Selected Legal Issues
June 5, 2002
Jennifer Elsea
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
International Criminal Court:
Overview and Selected Legal Issues
Summary
On April 11, 2002, the Rome Statute of the International Criminal Court
received its sixtieth ratification, meaning it will come into effect July 1, 2002,
establishing the first global permanent international court with jurisdiction to
prosecute individuals for “the most serious crimes of concern to the international
community.” The United Nations, many human rights organizations, and most
democratic nations have expressed support for the new court. The Bush
Administration firmly opposes it and has formally renounced the U.S. obligations
under the treaty. At the same time, however, the Administration has stressed that the
United States shares the goal of the ICC’s supporters – promotion of the rule of law
– and does not intend to take any action to undermine the ICC.
The primary objection given by the United States in opposition to the treaty is
the ICC’s possible assertion of jurisdiction over U.S. soldiers charged with “war
crimes” resulting from legitimate uses of force. The main issue faced by the current
Congress is whether to adopt a policy aimed at preventing the ICC from becoming
effective or whether to continue contributing to the development of the ICC in order
to improve it.
This report provides an historical background of the negotiations for the Rome
Statute, outlines the structure of the ICC as contained in the final Statute, and
describes the jurisdiction of the ICC. The report identifies the specific crimes
enumerated in the Rome Statute as supplemented by the draft elements of crime. A
discussion of procedural safeguards follows, including reference to the draft
procedural rules. The report then discusses the implications for the United States as
a non-ratifying country when the ICC comes into being, and outlines some legislation
enacted and proposed to regulate U.S. relations with the ICC, including versions of
the American Servicemembers’ Protection Act (ASPA) contained in H.R. 1646 and
H.R. 4775, the American Servicemember and Citizen Protection Act, H.R. 4169, and
the American Citizens’ Protection and War Criminal Prosecution Act of 2001, S.
1296/H.R. 2699.
Contents
Introduction and Negotiating History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Structure of the ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Judges of the ICC: The Presidency and Trial Divisions . . . . . . . . . 8
Prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Assembly of States Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Subject Matter Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Crimes against Humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
War Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Jurisdiction over Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Triggering Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Referral by a State Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Initiation by Prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Referral by the U.N. Security Council . . . . . . . . . . . . . . . . . . . . . 24
ICC Jurisdiction over Citizens of Non-Parties . . . . . . . . . . . . . . . . . . . 25
Complementarity and Other Challenges to Jurisdiction . . . . . . . . . . . 26
Rules of Procedure and Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
The Right to a Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
The Presumption of Innocence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
The Privilege Against Compelled Self-incrimination . . . . . . . . . . . . . 31
The Right to Confront Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
The Protection Against Double Jeopardy . . . . . . . . . . . . . . . . . . . . . . 33
The Freedom from Unreasonable Searches and Seizures . . . . . . . . . . 34
The Right to Be Present at Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
The Right to Effective Assistance of Counsel . . . . . . . . . . . . . . . . . . . 35
The Right to a Speedy and Public Trial . . . . . . . . . . . . . . . . . . . . . . . . 36
Speedy Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Public Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Right to Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Freedom from Indefinite or Arbitrary Detention . . . . . . . . . . . . . . . . . 38
Implications for the United States as Non-member . . . . . . . . . . . . . . . . . . . 40
Observer Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Political Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Congressional Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
American Servicemembers’ Protection Act of 2001 . . . . . . . . . . . . . . 44
The American Servicemember and Citizen Protection Act of 2002 . . 47
The American Citizens’ Protection and War Criminal Prosecution Act of
2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
The International Criminal Court:
Overview and Selected Legal Issues
Introduction and Negotiating History
On April 11, 2002, the Rome Statute of the International Criminal Court1
received its sixtieth ratification, meaning it will come into effect July 1, 2002, years
earlier than had been predicted. The ICC will be the first global permanent
international court with jurisdiction to prosecute individuals for “the most serious
crimes of concern to the international community;”2 the United Nations, many human
rights organizations, and most democratic nations have expressed support for the
new court.3 The Bush Administration, however, firmly opposes it and has taken the
measure of formally renouncing any U.S. obligations under the treaty.4 Some critics
have remarked that the issue is causing a rift between the United States and its allies
in the war against terrorism.5 At the same time, the Administration has stressed that
the United States shares the goal of the ICC’s supporters – promotion of the rule of
1
U.N. Doc. A/CONF.183/9 (1988)(“Rome Statute”).
2
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.
Rome Statute art. 5(1). See infra text accompanying note 98.
3
See Barbara Crossette, World Criminal Court is Ratified – Praised by U.N., Opposed by
U.S., N.Y. TIMES Apr. 12, 2002, available at 2002 WL-NYT 0210200003. For the current
status of signatures, ratifications and reservations, visit http://untreaty.un.org/
ENGLISH/bible/englishinternetbible/ partI/chapterXVIII/treaty10.asp.
4
See Jonathon Wright, U.S. Renounces Obligations to International Court, REUTERS, May
6, 2002. Although some in the media have described the act as an “unsigning” of the treaty,
it may be more accurately described as a notification of intent not to ratify. The letter from
Under Secretary of State for Arms Control and International Security John R. Bolton
to the U.N. Secretary General stated:
This is to inform you, in connection with the Rome Statute of the International Criminal
Court adopted on July 17, 1998, that the United States does not intend to become a party
to the treaty. Accordingly, the United States has no legal obligations arising from its
signature on December 31, 2000. The United States requests that its intention not to
become a party, as expressed in this letter, be reflected in the depositary’s status lists
relating to this treaty.
Reprinted at http://www.state.gov/r/pa/prs/ps/2002/9968.htm.
5
See Give it a Welcome - The Coming World Criminal Court, ECONOMIST (London), Apr.
13, 2002, available at 2002 WL 7245784; James Bone, War Crimes Court Pits United
States Against the World, TIMES OF LONDON, Apr. 11, 2002, available at 2002 WL
4198476; Stuart Taylor Jr., Be Wary of the War Crimes Court, but Not Too Wary, NAT’L J.,
Apr. 6, 2002, available at 2002 WL 7094917.
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law – and does not intend to take any action to undermine the ICC.6 In a move that
may foreshadow the Administration’s strategy, the United States is also reportedly
seeking assurances from the United Nations that no U.N. personnel taking part in the
peacekeeping mission in East Timor will be subject to prosecution by any local or
international court for war crimes – a move that has met with resistance from U.S.
allies because they say it could undermine the principles of the ICC.7
While the United States initially supported the idea of creating an international
criminal court8 and was a major participant at the Rome Conference,9 in the end, the
United States — joined by Iran, Iraq, China, Israel, Sudan, and Libya — voted
6
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.state.gov/p/9949pf.htm). Secretary Grossman promised that:
Notwithstanding our disagreements with the Rome Treaty, the United States
respects the decision of those nations who have chosen to join the ICC; but they
in turn must respect our decision not to join the ICC or place our citizens under
the jurisdiction of the court.
So, despite this difference, we must work together to promote real justice after
July 1, when the Rome Statute enters into force.
The existence of a functioning ICC will not cause the United States to retreat
from its leadership role in the promotion of international justice and the rule of
law.
7
See Colum Lynch, U.S. Seeks Court Immunity for E. Timor Peacekeepers, WASH. POST
May 16, 2002 at A22, available at 2002 WL 20709611 (reporting there are currently no U.S.
troops serving in U.N. missions); Edith M. Lederer, U.S. Makes Int’l Court Demands, AP
May 20, 2002, available at 2002 WL 21234979 (reporting that France, Britain, Ireland,
Norway, and Colombia oppose the U.S. request).
8
See Ruth Wedgwood, Harold K. Jacobson and Monroe Leigh, 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 such a court, providing the rights of U.S. citizens
were recognized. 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”); Anti-Drug
Abuse Act of 1988 § 4108, P.L. 100-690, 102 Stat. 4181, 4266 (1988)(encouraging the
President to initiate discussions with foreign governments about the possibility of creating
an international court to try persons accused of having engaged in international drug
trafficking or having committed international crimes, providing constitutional guarantees
of U.S. citizens are recognized); P.L. 99-399, Sec. 1201 (1986) .
9
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).
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against the Statute.10 Nevertheless, President Clinton signed the treaty December 31,
2000 – the last day it was open for signature without simultaneous ratification, at the
same time declaring that the treaty contained “significant flaws” and that he would
not submit it to the Senate for its advice and consent “until our fundamental concerns
are satisfied.”11 The Bush Administration has likewise declined to submit the Rome
Statute to the Senate for ratification, and has notified the depositary of the United
Nations of the U.S. intent not to ratify the treaty.12 The primary objection given by
the United States in opposition to the treaty is the ICC’s possible assertion of
jurisdiction over U.S. soldiers charged with “war crimes” resulting from legitimate
uses of force, even if the United States does not ratify the Rome Statute. The United
States sought to exempt U.S. soldiers and employees from the jurisdiction of the ICC
based on the unique position the United States occupies with regard to international
peacekeeping.13 The main issue faced by the Congress is the level of cooperation to
allow between the United States and the ICC: to withhold all cooperation from the
ICC and its member nations in order to prevent the ICC from becoming effective,
to continue contributing to the development of the ICC in order to improve it, or to
adopt a pragmatic approach based solely on U.S. interests.14
This report provides an historical background of the negotiations for the Rome
Statute, outlines the structure of the ICC as contained in the final Statute, and
describes the jurisdiction of the ICC. The report identifies the specific crimes
enumerated in the Rome Statute as supplemented by the draft elements of crime
drawn up by the Preparatory Commission established by the Rome Conference. A
discussion of procedural safeguards follows, including reference to the draft
procedural rules. The report then discusses the implications for the United States, as
a non-ratifying country as the ICC comes into being, and outlines some legislation
enacted and proposed to regulate U.S. relations with the ICC.
10
See Wedgwood, et al., supra note 8, at 124 (noting that the final vote for the Statute was
120 in favor to seven against).
11
See Statement on the Rome Treaty on the International Criminal Court, Dec. 31, 2000,
37(1) Weekly Compilation of Presidential Documents 4 (2001).
12
Because the United States signed the Rome Statute, it had been obligated under
international law to refrain from conducting activity in contravention of the object and
purpose of the treaty. See Vienna Convention on the Law of Treaties, opened for signature
May 23, 1969, art. 18, 1155 U.N.T.S. 335. However, this obligation ends once a signatory
state has indicated an intent not to ratify the treaty. Id. Some press reports initially
indicated the Administration was also planning to renounce the Vienna Convention. See
Neil A. Lewis, U.S. to ‘Unsign’ Treaty, Disavow World Tribunal, SAN DIEGO UNION &
TRIB., May 5, 2002 at A1. The report was apparently based on a misunderstanding of the
Administration’s statement explaining the intent behind its action, which was reportedly to
avoid any obligations on the part of the United States that may have been incurred through
its signature of the Rome Statute, in accordance with article 18 of the Vienna Convention.
13
14
See Grossman, supra note 6.
See David J. Scheffer, Staying the Course with the International Criminal Court, 35
CORNELL INT’L L.J. 47 (2000) (arguing the United States could most effectively influence
the shape of the ICC through cooperating with it rather than impeding it).
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The creation of the ICC is the culmination of a decades-long effort to establish
an international court with the jurisdiction to try individuals for the commission of
crimes against humanity.15 The post-World War II tribunals to try Nazi and Japanese
war criminals established precedent for the ICC. The later International Criminal
Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda
(ICTR) built upon the Nuremberg legacy. However, all of these courts were created
ad hoc with limited jurisdiction. An international court with jurisdiction over all
crimes of the worst nature affecting mankind was urged in order to end impunity for
any and all perpetrators of large-scale atrocities. The U.N. General Assembly voted
to establish an Ad Hoc Committee on the Establishment of an International Criminal
Court16 and created a Preparatory Committee charged with “preparing a widely
acceptable consolidated text of a convention for an International Criminal Court as
a next step towards consideration by a conference of plenipotentiaries.”17
The Preparatory Committee held six sessions between March 1996 and April
1998 to prepare a text for consideration at the Rome Conference.18 The most
contentious issue at the Conference revolved around the level of independence the
ICC would have vis-à-vis national courts and the U.N. Security Council. The
Preparatory Commission considered two basic options for defining the jurisdiction
of the ICC: The ICC might assert jurisdiction over all relevant crimes, exercising
primacy over national courts, without regard to the nationality of the victims or
perpetrators. Under this option, “rogue” regimes would be unable to insulate
themselves from responsibility for crimes committed against opposing forces or
ethnic minorities, even during internal armed conflicts. Many countries, including
the United States, objected to the idea as an intrusion into the sovereignty of nations.
Second, the ICC’s power to try cases could be “complementary” to that of national
courts, where the ICC would exercise jurisdiction only when national courts of the
country in which the crime took place, or whose national was accused, were unable
or unwilling to prosecute. The second model, which the United States had supported,
was adopted in principle.19
The adoption of the complementarity model of jurisdiction led to the even more
intractable question of how and when the ICC would take a case. Possible options
included a recommendation by the U.N. Security Council, a recommendation by a
country with personal or subject matter jurisdiction over the crime or the accused, or
upon the initiative of the ICC itself. Taking the position that treaty regimes should
apply only to those states that choose to become parties and not to those that choose
to remain outside, the United States delegation offered amendments at Rome to
15
For a general background and discussion of the ICC, see The Rome Statute of the
International Criminal Court: Selected Legal and Constitutional Issues, CRS Report
RL30091, Feb. 22, 1999; The International Criminal Court Treaty: Description, Policy
Issues, and Congressional Concerns, CRS Report RL30020, Jan. 5, 1999.
16
GA Res. 49/53, U.N. GAOR, 49th Sess.,U.N. Doc. A/RES/49/53 (1994).
17
GA Res. 50/46, U.N. GAOR, 50th Sess.,U.N. Doc. A/RES/50/46 (1995).
18
See United Nations, “The Draft Statute of the International Criminal Court: Background
Information,” available at http://www.un.org/icc/statute.htm.
19
Rome Statute arts. 12-14.
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require the consent of both the State in which the crime was allegedly committed and
of the state of nationality of the alleged perpetrator, or, failing that, at least of the
state of nationality, to the jurisdiction of the Court.20 Under the U.S. proposals, the
ICC would have jurisdiction over citizens of non-consenting non-parties only in cases
referred or authorized by the U.N. Security Council, which would have allowed the
United States and other permanent members of the Council to veto any attempt to
prosecute their citizens, but would allow for the prosecution of state architects of
genocidal policies, for example, as long as the political support could be generated
in the Security Council.
The conferees rejected this proposal on the grounds that it would essentially
mirror the present application of ad hoc tribunals, bringing some perpetrators of
crimes against humanity to justice while allowing others to escape with impunity.21
Additionally, in their view, a treaty that subjects citizens of non-parties to an
international court’s jurisdiction does not bind the non-party state to do anything and
thus does not infringe on its sovereignty.22 Aliens who commit crimes are subject to
the jurisdiction of local courts in any event. Under this view, assuming that the
referring state would have the jurisdiction to try or extradite an alien accused of a
crime on its territory, the referring state could just as legitimately cede its jurisdiction
over the accused to an international court.23
The U.S. delegation also proposed to exempt from the Court’s jurisdiction
conduct that arises from the official actions of a non-party state acknowledged as
such by the non-party. The United States, it was argued, would willingly
acknowledge the official nature of conduct related to peacekeeping missions or other
foreign affairs activity and thus gain an exemption from the Court’s jurisdiction for
alleged crimes arising from such missions.24 This, it proposed, would eliminate the
disincentive for non-party States to participate in peacekeeping missions. Dictators,
it said, would be reluctant to admit responsibility for conduct that could be viewed
as criminal under the Rome Statute. The conference voted to take no action on the
20
See Johan D. van der Vyver, Personal and Territorial Jurisdiction of the International
Criminal Court, 14 EMORY INT’L L. REV. 1, 32 (2000).
21
See Wedgwood, et al., supra note 8, at 126 (commenting that the U.S. proposal would
“exempt not only U.S. nationals, but also the nationals of rogue states, which are most likely
to produce or to harbor war criminals in the future and which are the least likely to consent
to having their nationals tried by the ICC”).
22
See id. at 127 (arguing that “while a non-party state is not itself bound to accept an
assertion of jurisdiction over itself unless it has consented, the same is not true of its
nationals if they commit offenses in the territory of a state that is a party”).
23
This was the operational theory providing jurisdiction at the Nuremberg tribunals. See M.
Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives
and Contemporary Practice, 42 VA. J. INT’L L. 81, 91-92 (2001)(positing that sovereignty
does not limit the exercise of criminal jurisdiction to single states)(citing IMT Judgment,
Sept. 30, 1946, that signatory states to the London Charter “have done together what any one
of them might have done singly; for it is not to be doubted that any nation has the right thus
to set up special courts to administer law.”).
24
See van der Vyver, supra note 20, at 18 (describing U.S. position with regard to acceptable
regimes as an attempt to secure immunity for U.S. citizens).
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proposal.25 The final rule allows the ICC to take a case on the recommendation of one
of the countries with the appropriate jurisdiction, the U.N. Security Council, or the
ICC Prosecutor.
The U.S. delegation to Rome, led by David Scheffer, then Ambassador-at-Large
for War Crimes Issues, argued that allowing the Prosecutor to initiate cases would
potentially put U.S. military personnel in jeopardy of being summoned in front of the
ICC on groundless charges. The United States is in a unique position in the world,
Scheffer argued, in which it is frequently called upon to respond to international
crises, often by deploying U.S. troops and government officials to hostile countries.
If those countries could retaliate by accusing the United States and its officials or
military personnel of war crimes, for example, the United States could find itself
hamstrung in its peacekeeping efforts. The Rome delegates adopted four methods to
accommodate U.S. concerns regarding abuse of prosecutorial discretion: limiting the
power of the ICC Prosecutor, requiring the consent of a country which would have
jurisdiction over an alleged crime before initiating a prosecution, narrowly defining
the crimes for which a person may be prosecuted, and creating a role for the U.N.
Security Council,26 though not adopting the U.S. suggestion which would have
allowed any permanent member of the Security Council to veto any proposed
prosecution.
Instead, the Rome Conference adopted the so-called Singapore Proposal, which,
rather than requiring unanimity of the permanent members of the Security Council
to initiate a prosecution, would require unanimity in order to block prosecution
temporarily.27 Because the Permanent Five would have to cooperate in order to
authorize a peace-keeping mission in the first place, it was reasoned, all five could
be expected to agree to block any unwarranted ICC prosecutions that might arise.28
This proposal would not guarantee immunity in the case of a unilateral action on the
part of the United States, however, and failed to gain the support of the U.S.
delegation.
Although the United States voted against the Rome Statute to establish an ICC,
it did sign the Final Act of the Conference.29 As a consequence, it was able to
participate as a voting member of the Preparatory Commission created by the Rome
conference. The Preparatory Commission has developed draft rules of procedure and
evidence, the elements of crimes, a relationship agreement between the ICC and the
25
See id.
26
Rome Statute art. 16 (allowing the Security Council to delay any investigation or
prosecution indefinitely). The Security Council can also initiate prosecution under Article
13(b).
27
See Lawrence Weschler, The United States and the ICC, in THE UNITED STATES AND THE
INTERNATIONAL CRIMINAL COURT 85, 93 (Sarah B. Sewall and Carl Kaysen, eds. 2000)
[hereinafter “THE U.S. AND THE ICC”].
28
29
See id.
U.N. Doc. A/CONF.183/10. The Final Act is separate from the Rome Statute and consists
largely of a recitation of the events that led to the convening of the Conference and of the
proceedings and decisions at the Conference.
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U.N., financial regulations, an agreement on privileges and immunities, a budget, and
the rules of procedure to govern the Assembly of States Parties.30 It has not yet
completed its work on the definition of the crime of aggression.
Structure of the ICC
The Rome Statute establishes the Court’s structure and provides rules for its
limited governance by the states parties to the Statute. The ICC will consist of the
Presidency, three Trial Divisions, the Office of the Prosecutor, and the Registry.31 It
will have international legal personality to carry out its functions,32 and its
relationship to the United Nations will be established by agreement between the ICC
president and the U.N.33
The Rome Statute is designed to provide for the independence of the prosecutor
and judges. However, it also provides a system of checks and balances designed to
rein in overzealous prosecutors and prevent the ICC from falling under the control
of biased judges or states with an interest in the outcome. For example, for a
prosecutor to initiate a case, he must first get independent authorization from the
ICC’s Pre-Trial Chamber to continue an investigation.34 The statute’s requirements
for election of judges are designed to diminish the possibility that the pre-trial
chamber would be politicized, thereby increasing its ability to prevent prosecutors
from bringing unwarranted charges. The candidates for judge are required to be
competent in either criminal law or in relevant areas of international law,35 and no
two judges are permitted to be from the same state.36 The person being investigated
may request the disqualification of any judge when the judge’s “impartiality might
reasonably be doubted.”37 The trial and appellate chambers are kept separate to
enable parties to challenge both interlocutory and final decisions before different
judges. Finally, it provides mechanisms for checks by majority vote of the Assembly
of States Parties, a representative body of the member states.
30
These documents may be found at http://www.un.org/law/icc.
31
Rome Statute art. 34.
32
Id. art. 4.
33
Id. art. 2. The Preparatory Commission adopted a draft proposed agreement in the fall of
2000, which will require further action by the Assembly of States Parties once the treaty
enters into force in July 2002, in order to become finalized . See Draft Relationship
Agreement between the United Nations and the International Criminal Court, U.N. Doc.
PCNICC/2000/WGICC-UN/L.1 (2000), available at http://www.un.org/law/icc /prepcomm/
nov2000/english/ wgiccl1e.pdf.
34
Rome Statute art.15.
35
Id. art. 36(3)(b)(i)-(ii).
36
Id. art. 36(7).
37
See Matthew A. Barrett, Note, Ratify or Reject: Examining the United States’ Opposition
to the International Criminal Court, 28 GA. J. INT’L & COMP. L. 83, 97 (1999) (citing the
Rome Statute, art. 41(2)(a)-(b)).
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The Judges of the ICC: The Presidency and Trial Divisions.
A total of eighteen judges will be elected to serve staggered nine-year terms on
the ICC, subject to a possible increase in the number of judges upon recommendation
by the President and its approval by the Assembly of States Parties. States parties to
the ICC may nominate one qualified candidate for each election. Judicial candidates
must be nationals of states parties to the Rome Statute, although not necessarily of
the nominating state.38 The Assembly of States Parties may establish an advisory
committee on nominations as it deems appropriate.39 Judges will be selected by vote
of the Assembly of States Parties to be representative of the world’s population in
terms of legal systems, geography, legal specialties, and gender.40 Judges will not
be permitted to pursue outside occupations, and may be removed from office by a
vote of two-thirds majority of the Assembly of States Parties to affirm a
recommendation by two-thirds of the other judges that the judge be removed for
serious misconduct or inability to carry out the functions of the position.41
The Presidency consists of a President and two Vice-Presidents, who are to be
elected from the judge corps by an absolute majority of its members.42 The President
and Vice Presidents serve for three-year terms, unless their terms as judges expire
earlier, with one opportunity for re-election. The President will have overall
responsibility for the administration of the Court (with the exception of the Office of
the Prosecutor) and for other functions, such as deciding which judges will hear
which cases and whether to excuse a particular judge or prosecutor from any
particular case for reasons of possible conflict of interest.
The eighteen judges will be divided among the Pre-Trial Division, Trial
Division, and Appeals Division. Judges assigned to the Appeals Division remain
there throughout their tenure, while judges initially assigned to the Trial or Pre-Trial
Divisions serve three-year terms plus any time necessary to complete ongoing
hearings. Judges assigned to the Trial or Pre-Trial Divisions may be temporarily
shifted between the two divisions to accommodate the workload of the ICC, but
judges assigned to the Appeals Division, which will include the President, may not
be temporarily assigned to another division.43
The Pre-Trial Division, by majority vote of a three-judge chamber, decides
issues regarding admissibility of evidence and jurisdiction of the Court to hear a case,
authorizes the prosecutor to pursue self-initiated investigations, determines whether
sufficient evidence exists to support an indictment, and issues rulings regarding the
withholding of material held by a state that deems the disclosure of such information
38
Rome Statute art. 36.
39
Id. art. 36(5).
40
Id. art. 36(8).
41
Id. art. 46.
42
Id. art. 38.
43
Id. art. 39.
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to be prejudicial to the national security of that state.44 Other issues may be decided
by individual judges, including rulings necessary to ensure privacy and security of
witnesses and actions to seek the cooperation of a state in executing one of the
majority-issued orders.
The Trial Division consists of two chambers of three judges each and is
responsible for the fair and expeditious conduct of trials with proper regard for the
rights of the accused and security of witnesses. The Trial Chambers have the
authority to decide intermediary issues by majority decision or to refer such issues
to the Pre-Trial Division. They are responsible for confirming that the accused
understands the nature of the charges and that pleas are voluntary, and for providing
an accurate transcript of the proceedings. The Trial Division also sentences the
accused upon conviction, based on all relevant evidence supplemented by means of
additional hearings, when necessary.45
The Appeals Division consists of a single chamber of five judges, including the
ICC President, that hears appeals of convictions, sentences, and acquittals, as well
as interlocutory rulings on admissibility of evidence, jurisdiction, and the like. The
Appeals Chamber has powers comparable to those of the Trial Division, and may
reverse or amend a decision or sentence, or it may order a new trial before a different
chamber.46 A convicted person or his survivors or designee may bring an appeal any
time new evidence becomes available that could have changed the outcome of a case.
The Appeals Division may reject such an application it determines to be unfounded,
or it may order new proceedings before the original or a new Trial Chamber, or retain
jurisdiction over the matter.47 In cases of grave and manifest miscarriages of justice,
it may award compensation to an arrested or convicted person.48
Prosecutor.
The Prosecutor is selected by an absolute majority of the Assembly of States
Parties via secret ballot.49 The Assembly then votes, again in secret, to select Deputy
Prosecutors from a list of candidates provided by the Prosecutor. The Prosecutor and
Deputy Prosecutors are each eligible to hold office for one nine-year term, without
the possibility of re-election. During their terms in office, they may not engage in any
activities that might place their impartiality in doubt, and any of them may be
disqualified from a particular case by the Appeals Chamber if the person being
investigated or prosecuted so requests. If it is found that the Prosecutor has
committed serious misconduct, breached his or her duties, or is no longer able to
carry out his or her functions under the Statute, an absolute majority of the Assembly
may decide by secret ballot to disqualify him or her. A Deputy Prosecutor may be
44
Id. art. 57.
45
Id. art. 76.
46
Id. art. 83.
47
Id. art. 84.
48
Id. art. 85.
49
Id. art. 42.
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removed for like reasons by an absolute majority of the Assembly upon the
recommendation of the Prosecutor. In either proceeding, the Prosecutor or Deputy
Prosecutor is allowed to present and receive evidence in order to dispute the charges.
The Office of the Prosecutor receives referrals from the U.N. Security Council
and member states on possible crimes within the jurisdiction of the Court for
investigation to determine whether prosecution is warranted. The Rome Statute also
allows investigations to be initiated by the Prosecutor, subject to approval by the
majority of a Pre-Trial Chamber. The Prosecutor determines whether the information
available establishes a reasonable basis to conduct an investigation.50 If there is such
a basis, the Prosecutor shall “extend the investigation to cover all facts and evidence
relevant to an assessment of whether there is criminal responsibility under [the
Rome] Statute,” giving equal consideration to exonerating evidence as is given to
incriminating information, and taking care to respect the interests of victims and
witnesses, as well as the rights of the accused.51 The Prosecutor may conduct
investigations on the territory of a state that is a party to the Statute or agrees to
cooperate.52
The role of the ICC Prosecutor remains a point of contention for the United
States, which sought more limits on the power of the Prosecutor to launch cases on
his own initiative. The U.S. opposed granting this discretion to the Prosecutor on the
grounds it would “encourage overwhelming the Court with complaints and risk
diversion of its resources, as well as embroil the Court in controversy, political
decision making, and confusion.”53
Registry.
The Office of the Registry is responsible under the Rome Statute for the nonjudicial administration of the Court,54 including providing for witness protection and
assistance, as well as for receiving prisoners, arranging for the defense of indigents,
and surrendering convicted persons to the state of incarceration. The Registrar, who
will head the Registry as the chief administrative officer of the Court, is elected by
an absolute majority of the judges by secret ballot after considering the Assembly’s
recommendations. The Registrar serves on a full-time basis for up to two five-year
terms. Deputy registrars may serve shorter terms and need not serve full-time.
As part of its duties with regard to witnesses, the Registrar is responsible for the
creation of the Victims and Witnesses Unit (VWU), which will be charged with
recommending and providing protection, counseling, and assistance to witnesses and
50
Id. art. 53
51
Id. art. 54.
52
Id. arts. 54 and 87(5).
53
Developments at the Rome Treaty Conference: Hearings before the Senate Comm. on
Foreign Relations, 105th Cong. (1998) (statement of David Scheffer, Ambassador-at-Large
for War Crimes Issues). For more detail about the procedure for Prosecutor-initiated
investigations, see infra text accompanying notes 125 et seq.
54
Rome Statute art. 43.
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victims who appear before the Court, as well as others who may be placed at risk due
to testimony given by other witnesses, in order to prevent their suffering mental or
physical violence.55 VWU staff must have expertise in treating trauma victims,
including children and victims of sex crimes and violence.
The Rome Statute does not provide for a separate unit within the Registry to
provide its mandated support to the defense.56 However, draft Rules of Procedure and
Evidence, Rule 2057 requires the Registrar to organize the staff of the Registry “in a
manner that promotes the rights of the defense, consistent with the principle of fair
trial,” and to perform certain duties in order to ensure the independence of defense
counsel, providing the defense with support, facilities, and information; helping the
accused to obtain the assistance of competent legal counsel;58 and cooperating with
state defense and bar associations. The Registrar is responsible for drafting a list of
criteria for assigning defense counsel59 and a code of professional responsibility for
all counsel.60
Assembly of States Parties.
The Assembly of States Parties is not an organ of the ICC, but is comprised of
a representative of each ratifying state, with each state having one vote.61 Non-party
states who have signed the Rome Statute or its Final Act may participate as observers
but may not vote. The Assembly provides management and oversight to the
Presidency, the Prosecutor, and the Registrar regarding the administration of the ICC,
including the budget, the number of judges, and rules of procedure and evidence.
The Assembly also makes determinations in the event a state party fails to comply
with a request to cooperate, or refers the matter to the U.N. Security Council if the
case was referred to the ICC by that body. The Assembly also elects 21 persons to
serve three-year terms as members of the Bureau, and it may establish other
subsidiary bodies to carry out oversight functions.
55
Id. art. 43(6).
56
See Christopher Keith Hall, The First Five Sessions of the U.N. Preparatory Commission
for the International Criminal Court, 94 AM. J. INT’L L. 773, 783 (2000)(describing
initiative on the part of Canada, France, Germany, and the Netherlands to address the issue).
57
Draft Rule of Procedure and Evidence (RPE) Report of the Preparatory Commission for
the International Criminal Court; Addendum: Finalized Draft Text of the Rules of Procedure
and Evidence, U.N. Doc. PCNICC/2000/INF/3/Add.1 (2000), available at http://
www.iccnow.org/html/un.html [hereinafter Draft RPE].
58
Draft RPE 22 requires that counsel have “established competence in international or
criminal law and procedure, as well as the necessary relevant experience, whether as judge,
prosecutor, advocate or in other similar capacity, in criminal proceedings.”
59
See Draft RPE 21.
60
See Draft RPE 8.
61
See Rome Statute art. 112. The right to vote may be suspended if a state party falls in
arrears of its payments for more than two full years. Id. art. 112(8).
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The Assembly of States Parties may amend the Rome Statute in accordance with
art. 121. After seven years have passed since the Statute has entered into force, any
state party may propose an amendment, which will be adopted if a two-thirds
majority of the Assembly of States Parties votes in its favor. Amendments enter into
force for all states parties one year after seven-eighths of the states parties have
deposited their instruments of ratification or acceptance with the U.N. SecretaryGeneral. Any state party which has not accepted the amendment may withdraw from
the Statute with immediate effect by giving notice within one year after its entry into
force.
Critics of the Rome Statute question the future ability of the Assembly of States
Parties to exercise any real accountability over the operations of the ICC.62 They
predict that the one-vote-per-state rule could lend lopsided sway to tiny countries,63
and complain that the Statute does not provide for the democratic accountability of
a state’s representative at the Assembly to the citizens of the state. Critics also note
that representatives will be able to vote at the Assembly and influence the
development of the ICC even though they may represent non-democratic countries
with poor human rights records or who are proclaimed adversaries of the United
States.64
Jurisdiction
Subject Matter Jurisdiction.
Article 5 of the final Statute limits the jurisdiction of the ICC to the “most
serious crimes of concern to the international community as a whole,” namely,
genocide, crimes against humanity, war crimes and, potentially, aggression and
terrorism.65 Article 8 of the final Statute limits the ICC’s jurisdiction over “war
crimes” primarily to those committed as “part of a plan or policy or as part of a largescale commission of such crimes.”66
The ICC’s jurisdiction will extend only to crimes committed after its inception.
However, the Statute allows states parties to the Statute to opt out of the ICC’s
jurisdiction over war crimes for a period of seven years after becoming a party, as
well as its jurisdiction over any new crimes that may be added to the Statute in the
62
See Lee A. Casey, The Case Against the International Criminal Court, 25 FORDHAM INT’L
L.J. 840, 845-46(2002) (arguing that the Assembly of States Parties will be a “congress of
ambassadors from different and hostile interests” that can claim “no democratic legitimacy
even on a theory of virtual representation”).
63
See id. at 844.
64
See id. at 845.
65
Rome Statute art. 5. The preparatory committee was unable to reach a consensus on a
definition for the crime of “aggression.”
66
Id. art. 8.
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future.67 The United States had wanted an initial opt-out provision that would have
allowed states parties to assess the effectiveness and impartiality of the Court for a
longer period of time with respect to all of the covered crimes before deciding
whether to submit to the full jurisdiction of the Court. However, the proposal was
rejected, as was a U.S. proposal allowing non-states parties to opt out (or in) for the
ICC’s jurisdiction over specific crimes. Thus, the ICC appears initially to have
broader jurisdiction over war crimes allegedly committed by citizens of non-member
states than it will have over war crimes allegedly committed by citizens of states that
ratify the treaty.68
The elements of each of the crimes, drafted largely at the insistence of the U.S.
negotiating team,69 will likely be adopted once the ICC comes into existence and
should serve to check the discretion of the ICC judges and prosecutor.70 The draft
elements may also help to resolve any possible problems caused by vagueness,
inherent in international treaties due to the perceived elevated importance of
compromise over clarity, but seen as detrimental to fairness in enforcing criminal
law, which requires specificity.71 The Rome Statute provides for amendment of the
elements of crimes by two-thirds vote of the Assembly of State Parties. The crimes
and their draft elements are summarized below.
Genocide. The Preparatory Committee borrowed the language regarding the
crime of genocide used in the 1948 Genocide Convention,72 which prohibits a
number of acts when carried out “with intent to destroy, in whole or in part, a
67
Id. arts. 124 and 121.
68
The ICC’s jurisdiction may operate in a similar manner with respect to new crimes added
by the Assembly of States Parties under the amendment procedures of the Rome Statute.
Amendments to add new crimes or change the definitions of those already covered enter into
force only for those states parties which have accepted an amendment one year after the
deposit of their instruments of ratification or acceptance. The ICC may not exercise its
jurisdiction regarding such a crime when committed by nationals of or on the territory of a
state party which has not accepted the amendment. The ICC may assert jurisdiction over
such crimes committed on the territory of non-party states (or by their nationals) as soon
as the amendment enters into force, providing all of the preconditions for jurisdiction are
met. See Scheffer, supra note 14, at 87.
69
See Didier Pfirter, The Position of Switzerland with Respect to the ICC Statute and in
Particular the Elements of Crimes, 32 CORNELL INT’L L.J. 499, 502 (1999) (describing U.S.
proposal and initial resistence to the detailed definition of crimes, which is not standard
practice in most legal systems).
70
See generally William K. Lietzau, Checks and Balances and Elements of Proof: Structural
Pillars for the International Criminal Court, 32 CORNELL INT’L L.J. 477 (1999) (exploring
issues surrounding establishment of well-defined elements of crimes).
71
See id. at 487 (noting that the need for effective mechanisms to enforce criminal law
against individuals requires precision and specificity rather than ambiguity and nuance).
72
Convention on the Prevention and Punishment of Genocide, Dec. 9, 1948, 78 U.N.T.S.
277.
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national, ethnical, racial or religious group, as such,”73 whether carried out in war or
during peacetime. The definition is virtually identical to that adopted by Congress
in the Genocide Convention Implementation Act of 1987, except that the U.S. Code
covers only conduct committed by a U.S. national or conduct committed within the
United States.74
The victim of genocide is not the individual but the group itself, membership
in which is determined automatically by birth rather than by individual choice.75 The
aim must be physical destruction and not merely “cultural genocide,” or eliminating
the cultural attributes of specific groups, for example, through forced assimilation.76
To make out a case for genocide, the prosecutor must show that the victim or victims
were members of a particular national, ethnic, racial or religious group; the
perpetrator intended to destroy that group in whole or in part; and that the
perpetrator’s conduct (which might include failure to take certain actions77) took
place in the context of a manifest pattern of similar conduct directed against that
group or was conduct that could itself effect such destruction.78 It is the mens rea
element that separates genocide from other crimes against humanity: the intent to
destroy a group of people as a whole or in significant part.79
Crimes against Humanity. The London Charter creating the Nuremberg
tribunal was the first codification of the prohibition using the term “crimes against
humanity,” although the drafters did not treat it as a new concept.80 There exists no
treaty requiring states to prosecute crimes against humanity, but there is universal
jurisdiction under customary international law to punish as hostis humani generis –
73
Id. art. II. Rome Statute art. 6 lists the following acts:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
74
Genocide Convention Implementation Act of 1987, Pub. L. No. 100-606, 102 Stat. 3045
(codified at 18 U.S.C. §§ 1091-93).
75
See KRIANGSAK KITTICHAISAREE, INTERNATIONAL CRIMINAL LAW 69 (2001) (noting that
“mobile” groups, such as professions and political groups, are not covered, despite attempts
by some delegates at the Rome Conference to include them).
76
See id. at 70 (noting forcible transfer of children as a possible exception because the
ultimate result is the physical destruction of a named type of group).
77
Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-S, ICTR T. Ch., Sep. 4, 1998 (former
Prime Minister of Rwanda guilty of genocide for failing to take action to halt ongoing
massacres).
78
Report of the Preparatory Commission for the International Criminal Court, Part II,
Finalized draft text of the Elements of Crimes, U.N. Doc. PCNICC/2000/1/Add.2, Nov. 2,
2000 (hereinafter “Draft Elements”).
79
See KITTICHAISAREE, supra note 75, at 72-73.
80
See id. at 86.
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enemies of mankind – without regard to territorial jurisdiction over a crime or
criminal.81 These crimes include universally condemned acts such as murder,
extermination, enslavement, deportation, or religious or political persecution, when
carried out as part of a widespread or systematic attack against a civilian population.82
The distinction between these crimes and war crimes is that they may occur during
war or peace and may be perpetrated against stateless victims and persons of the
perpetrator’s own nationality or that of an allied state.83 Random crimes would not
amount to crimes against humanity; “widespread or systematic” plan or policy does
not necessarily connote an intent to destroy a group of people in whole or in part.
The last two elements for each of the crimes against humanity clarify the
requisite participation in and knowledge of the systematic plan or attack, but are not
intended to be interpreted as requiring proof that the perpetrator had knowledge of
all characteristics of the attack or the precise details of the plan or policy of the state
or organization.84 The mental element is satisfied in the case of an emerging attack
if the perpetrator intended to further such an attack by any means. The acts need not
constitute a military attack. An act perpetrated without constructive or actual
knowledge of the existence of the widespread policy or plan would lack the mens rea
for a crime against humanity. Motive is not relevant.85
Although there is no U.S. statute codifying crimes against humanity as such,
U.S. criminal law prohibits most of the crimes enumerated under the Rome Statute
as possible crimes against humanity, as long as they are committed within the United
States or by military personnel.86 Under current law, acts that could constitute crimes
81
See Michael P. Scharf, Justice Versus Peace, in THE U.S. AND THE ICC, supra note 27, at
179, 185.
82
Rome Statute art. 7 lists:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental
rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or
any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are
universally recognized as impermissible under international law, in connection with any act
referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious
injury to body or to mental or physical health.
83
See Scharf, supra note 81, at 87.
84
See Draft Elements, supra note 78, at 9.
85
See KITTICHAISAREE, supra note 75, at 92.
86
See Douglass Cassel, Empowering United States Courts to Hear Crimes Within the
(continued...)
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against humanity committed by U.S. civilians overseas generally are not triable in
U.S. civil or military courts unless they involve torture or certain acts of international
terrorism.87
War Crimes. War crimes are violations of the international law of war
committed during an armed conflict or military occupation,88 whenever a belligerent
“crosses the line” with respect to acceptable combat practices.89 The Rome statute
defines war crimes in art. 8, reiterating war crimes as they are defined in detail in the
Geneva90 and Hague Conventions,91 with emphasis on those crimes committed as part
of a plan or policy or as part of a large-scale commission of such crimes.92 States that
86
(...continued)
Jurisdiction of the International Court, 35 NEW ENG. L. REV. 421, 429 (2001).
87
See id. n.39 (listing relevant crimes over which U.S. courts have extraterritorial
jurisdiction). Additionally, U.S. courts have jurisdiction to try criminal offenses committed
by persons employed by or accompanying the armed forces overseas, or ex-servicemembers
who committed a crime overseas, if such crime would be punishable by imprisonment for
more than one year if it had committed within the territorial jurisdiction of the United States.
18 U.S.C. § 3261.
88
See Terrorism and the Law of War: Trying Terrorists as War Criminals before Military
Commissions, CRS Report RL31191(summary description of sources and contents of the
international law of war).
89
See JEAN PICTET, HUMANITARIAN LAW AND THE PROTECTION OF WAR VICTIMS 31 (1975)
(describing the principle that “belligerents shall not inflict on their adversaries harm out of
proportion to the object of warfare, which is to destroy or weaken the military strength of
the enemy”).
90
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, opened for signature Aug. 12, 1949, 6 U.S.T. 3114, T.I.A.S. No.
3362, 75 U.N.T.S. 31 (entered into force Oct. 21, 1950); Geneva Convention for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea, opened for signature Aug. 12, 1949, 6 U.S.T. 3217, T.I.A.S. No. 3363, 75
U.N.T.S. 85 (entered into force Oct. 21, 1950); Geneva Convention Relative to the
Treatment of Prisoners of War, opened for signature Aug. 12, 1949, 6 U.S.T. 3316, T.I.A.S.
No. 3364, 75 U.N.T.S. 135 (entered into force Oct. 21, 1950)[hereinafter “GPW”]; Geneva
Convention Relative to the Protection of Civilian Persons in Time of War, opened for
signature Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287 (entered into
force Oct. 21, 1950) [hereinafter referred to collectively as the “1949 (Conventions” or
“Conventions”].
91
Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,
1907, 36 Stat. 2277, 205 Consol. T.S. 277.
92
Rome Statute art. 8(1). Art. 8(2). enumerates the following as war crimes:
(a)...(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a
hostile Power;
(continued...)
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92
(...continued)
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair
and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b) Other serious violations of the laws and customs applicable in international armed
conflict, within the established framework of international law, namely, any of the following
acts:
(i) Intentionally directing attacks against the civilian population as such or against
individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian objects, that is, objects which are not
military objectives;
(iii) Intentionally directing attacks against personnel, installations, material, units or
vehicles involved in a humanitarian assistance or peacekeeping mission in accordance
with the Charter of the United Nations, as long as they are entitled to the protection
given to civilians or civilian objects under the international law of armed conflict;
(iv) Intentionally launching an attack in the knowledge that such attack will cause
incidental loss of life or injury to civilians or damage to civilian objects or widespread,
long-term and severe damage to the natural environment which would be clearly
excessive in relation to the concrete and direct overall military advantage anticipated;
(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings
which are undefended and which are not military objectives;
(vi) Killing or wounding a combatant who, having laid down his arms or having no
longer means of defense, has surrendered at discretion;
(vii) Making improper use of a flag of truce, of the flag or of the military insignia and
uniform of the enemy or of the United Nations, as well as of the distinctive emblems of
the Geneva Conventions, resulting in death or serious personal injury;
(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own
civilian population into the territory it occupies, or the deportation or transfer of all or
parts of the population of the occupied territory within or outside this territory;
(ix) Intentionally directing attacks against buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments, hospitals and places where the sick
and wounded are collected, provided they are not military objectives;
(x) Subjecting persons who are in the power of an adverse party to physical mutilation
or to medical or scientific experiments of any kind which are neither justified by the
medical, dental or hospital treatment of the person concerned nor carried out in his or
her interest, and which cause death to or seriously endanger the health of such person
or persons;
(xi) Killing or wounding treacherously individuals belonging to the hostile nation or
army;
(xii) Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be
imperatively demanded by the necessities of war;
(xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and
actions of the nationals of the hostile party;
(xv) Compelling the nationals of the hostile party to take part in the operations of war
directed against their own country, even if they were in the belligerent’s service before
the commencement of the war;
(xvi) Pillaging a town or place, even when taken by assault;
(xvii) Employing poison or poisoned weapons;
(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids,
materials or devices;
(xix) Employing bullets which expand or flatten easily in the human body, such as
bullets with a hard envelope which does not entirely cover the core or is pierced with
incisions;
(xx) Employing weapons, projectiles and material and methods of warfare which are of
a nature to cause superfluous injury or unnecessary suffering or which are inherently
(continued...)
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92
(...continued)
indiscriminate in violation of the international law of armed conflict, provided that such
weapons, projectiles and material and methods of warfare are the subject of a
comprehensive prohibition and are included in an annex to this Statute, by an
amendment in accordance with the relevant provisions set forth in articles 121 and 123;
(xxi) Committing outrages upon personal dignity, in particular humiliating and
degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution,
forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any
other form of sexual violence also constituting a grave breach of the Geneva
Conventions;
(xxiii) Utilizing the presence of a civilian or other protected person to render certain
points, areas or military forces immune from military operations;
(xxiv) Intentionally directing attacks against buildings, material, medical units and
transport, and personnel using the distinctive emblems of the Geneva Conventions in
conformity with international law;
(xxv) Intentionally using starvation of civilians as a method of warfare by depriving
them of objects indispensable to their survival, including wilfully impeding relief
supplies as provided for under the Geneva Conventions;
(xxvi) Conscripting or enlisting children under the age of fifteen years into the national
armed forces or using them to participate actively in hostilities.
(c) In the case of an armed conflict not of an international character, serious violations of
article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the
following acts committed against persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those placed hors de combat
by sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and degrading
treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of executions without previous
judgement pronounced by a regularly constituted court, affording all judicial guarantees
which are generally recognized as indispensable.
(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does
not apply to situations of internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a similar nature.
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an
international character, within the established framework of international law, namely, any
of the following acts:
(i) Intentionally directing attacks against the civilian population as such or against
individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against buildings, material, medical units and
transport, and personnel using the distinctive emblems of the Geneva Conventions in
conformity with international law;
(iii) Intentionally directing attacks against personnel, installations, material, units or
vehicles involved in a humanitarian assistance or peacekeeping mission in accordance
with the Charter of the United Nations, as long as they are entitled to the protection
given to civilians or civilian objects under the law of armed conflict;
(iv) Intentionally directing attacks against buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments, hospitals and places where the sick
and wounded are collected, provided they are not military objectives;
(v) Pillaging a town or place, even when taken by assault;
(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined
in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence
also constituting a serious violation of article 3 common to the four Geneva
Conventions;
(vii) Conscripting or enlisting children under the age of fifteen years into armed forces
(continued...)
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are parties to the treaty have the right under Article 124 to opt out of the ICC’s
jurisdiction with respect to war crimes for a period of seven years.
The prosecutor must show that the crimes took place in the context of an armed
conflict, that the perpetrator was aware of those circumstances, and that the
perpetrator was aware that the victim had protected status under the Geneva
Conventions or Protocols.93 There is no need to show that the act was committed as
part of a widespread series of violations.94
The War Crimes Act of 199695 establishes U.S. federal jurisdiction to punish
war crimes, as defined in international treaties to which the United States is a party,
when perpetrated by or against U.S. nationals. U.S. service members and others may
also be tried by courts-martial or military commission for acts in violation of the law
92
(...continued)
or groups or using them to participate actively in hostilities;
(viii) Ordering the displacement of the civilian population for reasons related to the
conflict, unless the security of the civilians involved or imperative military reasons so
demand;
(ix) Killing or wounding treacherously a combatant adversary;
(x) Declaring that no quarter will be given;
(xi) Subjecting persons who are in the power of another party to the conflict to physical
mutilation or to medical or scientific experiments of any kind which are neither justified
by the medical, dental or hospital treatment of the person concerned nor carried out in
his or her interest, and which cause death to or seriously endanger the health of such
person or persons;
(xii) Destroying or seizing the property of an adversary unless such destruction or
seizure be imperatively demanded by the necessities of the conflict;
(f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does
not apply to situations of internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that
take place in the territory of a State when there is protracted armed conflict between
governmental authorities and organized armed groups or between such groups.
93
See Draft Elements, supra note 78, at 18.
94
Rome Statute art. 8(1)([The ICC has jurisdiction over war crimes] “in particular when
committed as a part of a plan or policy or as part of a large-scale commission of such
crimes.”(emphasis added)). According to the Draft Elements, “elements for war crimes
under ... [the Rome] Statute shall be interpreted within the established framework of the
international law of armed conflict....” See Draft Elements, supra note 78, at 18.
International law does not appear to require proof of the existence of any policy, official or
unofficial, to commit a war crime. See Kriangsak Kittichaisaree, The NATO Military Action
and the Potential Impact of the International Criminal Court, 4 SING. J. INT’L & COMP. L.
498, 517 (2000). The “in particular” language is meant to serve as a jurisdictional threshold
to prevent the ICC from taking up relatively insignificant cases. See id. Critics have argued,
however, that this threshold is still too low, increasing the likelihood of prosecution of
members of the armed forces. See Jimmy Gurulé, United States Opposition to the 1998
Rome Statute Establishing an International Criminal Court: Is the Court’s Jurisdiction
Truly Complementary to National Criminal Jurisdictions?, 35 CORNELL INT’L L.J. 1, 30-31
(2002).
95
18 U.S.C. § 2441.
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of war;96 ordinarily, U.S. practice is to try U.S. service members by court-martial
rather than in federal court for offenses against the law of war.97
Aggression. The Rome Conference Delegates included “aggression” among
the crimes over which the ICC would have jurisdiction, but were unable to reach an
agreement to adopt a definition.98 Instead, the Conferees agreed to work toward
establishing a definition after the Rome Statute enters into force. The ICC will be
able to exercise jurisdiction over the crime of aggression only after such a provision
has been adopted and entered into force for the relevant state party.
Although there were trials for aggression at Nuremberg,99 an acceptable
definition for its elements has long eluded the international community, impeding
earlier attempts to establish an international criminal court.100 Article 39 of the U.N.
Charter leaves it to the Security Council to determine the existence of and take action
with respect to “any threat to the peace, breach of the peace, or act of aggression.”101
Aggression is not defined in the U.N. Charter, however, because it was reportedly
feared that advances in weapons and techniques of modern warfare would make the
definition impractical and subject to manipulation, and might cause the Security
Council to take premature action.102 The U.N. General Assembly adopted a
resolution in 1974103 addressing the definition of aggression, but it has only been
invoked once by the Security Council, to declare South Africa guilty of aggression
against Angola.104 The definition contains an enumeration of offenses included as
possible aggression, but leaves the determination to the Security Council.105
Any definition of aggression adopted for the ICC must “be consistent with the
relevant provisions of the Charter of the United Nations.”106 If this provision is
interpreted to include a determination by the Security Council that an act of
96
Article 18 of the UCMJ, 10 U.S.C. § 818, provides general court martial jurisdiction over
“any person who by the law of war is subject to trial by a military tribunal and may adjudge
any punishment permitted by the law of war.” UCMJ art. 21, 10 U.S.C. § 821, provides that
court-martial jurisdiction does not deprive military commissions of jurisdiction to try any
person for such crimes.
97
See Department of the Army, FM 27-10, THE LAW OF LAND WARFARE para. 507 (1956).
98
See generally Silvia A. Fernandez de Gurmendi, The Working Group on Aggression at the
Preparatory Commission for the International Criminal Court, 25 FORDHAM INT’L L.J. 589
(2002).
99
See id. at 592 (discussing World War II precedents for charging persons with aggression).
100
See Gurulé, supra note 94, at 2.
101
U.N. Charter art. 39.
102
See Kittichaisaree, supra note 94, at 504.
103
U.N. GAOR, Supp. No. 19, U.N. Doc A/9615 (1974).
104
See Kittichaisaree, supra note 94, at 505 (citing U.N. Security Council Resolution 418 of
4 Nov. 1977).
105
See id. at 504-05.
106
Rome Statute art. 5(2).
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aggression has been committed in the definition for aggression under the Rome
Statute, then the United States and NATO likely need not fear prosecution for acts
of aggression.107 On the other hand, some observers have expressed concern that the
Rome Statute can be used to divest the Security Council of its prerogative in
determining whether an act of aggression has occurred, allowing legitimate acts of
self-defense to be punished as aggression.108 Such a result could, they argue, curtail
the U.S.’ options for using military force for valid reasons.
Jurisdiction over Persons.
It is widely accepted that the above crimes enumerated in the Statute are subject
to universal jurisdiction under international law;109 that is, any nation may lawfully
try any individual accused of such crimes in its domestic court system without regard
to the nationality of the alleged perpetrator or the territory where the crime is alleged
to have taken place.110 In practice, however, political realities appear often to have
precluded nations from asserting jurisdiction over suspected war criminals,111
allowing many of them to enjoy impunity for their alleged crimes. The ICC is
intended to resolve the problem of impunity for perpetrators of atrocities,112 but has
led to a different concern, namely, that the ICC may be used by some countries to
make trumped-up allegations accusing other states’ policymakers, or even
107
See Kittichaisaree, supra note 94, at 506 (predicting that “NATO members who are also
Permanent Members of the Security Council would certainly veto any draft Security Council
resolution determining that an act of aggression has been committed by NATO”).
108
See Scheffer, supra note 14, at 83 (advocating U.S. involvement in the ICC to avoid a
definition of “aggression” that does not include a determination by the U.N. Security
Council).
109
The Geneva Conventions require signatory nations to enact domestic legislation to punish
perpetrators of grave breaches of the Conventions, and to actively investigate such crimes,
and prosecute or extradite the alleged perpetrators. See GPW, supra note 90, art. 129. Other
treaties with similar clauses include the Conventions on Hijacking and Aircraft Sabotage,
as well as most other conventions against terrorism. See Michael P. Scharf, Universal
Jurisdiction: Myths, Realities, and Prospects: Application of Treaty-based Universal
Jurisdiction to Nationals of Non-Party States, 35 NEW ENG.L. REV. 363 (2001). But see
Casey, supra note 62, at 855 (disputing the validity of universal jurisdiction). For an indepth analysis on the applicability of universal jurisdiction to various crimes under
international law, see generally Bassiouni, supra note 23.
110
This concept is distinct from domestic jurisdiction. For example, although there is
universal jurisdiction over grave breaches of the Geneva Conventions, U.S. law only allows
prosecution of such crimes in its federal courts where the victim or perpetrator is a U.S.
national. See generally Cassel, supra note 86 (recommending changes in U.S. law to fully
encompass crimes over which the ICC will have jurisdiction); 18 U.S.C. § 2441 (War
Crimes Act).
111
See Bassiouni, supra note 23, at 136 (concluding that state practice does not support the
assertion that universal jurisdiction has reached the level of customary international law in
all cases where it has been claimed).
112
Rome Statute preamble (declaring signatory states are “[d]etermined to put an end to
impunity for the perpetrators of these crimes and thus to contribute to the prevention of such
crimes”).
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implementors of disfavored policies, of engaging in criminal conduct. Probably the
most divisive issue at the Rome Conference was the effort to reach a balance between
the two extremes – how to bring perpetrators of atrocities to justice while protecting
innocent persons from frivolous prosecution and unjust punishment. The conferees
finally adopted a somewhat complex system of triggering mechanisms to control how
cases were to be referred to the ICC for possible prosecution.
Although the ICC’s jurisdiction over the class of suspected criminals is based
on the concept of universal jurisdiction for the covered crimes,113 the ICC may not
establish jurisdiction over accused persons unless certain pre-conditions are met.
First, unless a case has been referred to the ICC by the U.N. Security Council, the
ICC’s jurisdiction is complementary to that of national courts: the ICC will try cases
only when the state with custody of the accused is unable or unwilling genuinely to
prosecute.114 Where that is determined to be the case, the ICC may take jurisdiction
if either the state on whose territory the conduct occurred or the state of nationality
of the person accused is a party to the Rome Statute or consents to the jurisdiction of
the ICC.
Triggering Mechanisms.
There are three avenues through which cases may be referred to the ICC. Either
a state party to the Statute, the ICC prosecutor, or the U.N. Security Council115 may
refer cases to the ICC, in accordance with corresponding articles of the Statute. The
Security Council may also defer an investigation referred by a state or the prosecutor
for a renewable period of 12 months by adopting a resolution under Chapter VII of
the U.N. Charter to that effect.116 During the negotiations, the United States sought
a more powerful role for the Security Council, in which any permanent member
would be able to veto a referral. The conferees ultimately rejected this proposal
because it was seen to re-introduce political considerations to the prosecutions that
are perceived to be responsible for the phenomenon of impunity the ICC is intended
to avoid. The Statute as finally adopted allows a single permanent member of the
Security Council to veto a deferral, allowing the Prosecutor to move forward with
a case. With the support of the Permanent Five and four other members of the
Security Council, the provision could allow the ICC’s exercise of jurisdiction to be
forestalled indefinitely.
113
Id. (“Recalling that it is the duty of every State to exercise its criminal jurisdiction over
those responsible for international crimes”); see Jordan Paust, The Reach of ICC
Jurisdiction Over Non-Signatory Nationals, 33 VAND. J. TRANSNAT’L L. 1, 7 (2000)
(describing ICC jurisdiction as a “form of limited universal jurisdiction”).
114
Rome Statute art. 17. See van der Vyver, supra note 20, at 2-3 (describing principle of
complementarity and the possible questions it raises regarding state sovereignty in any
determination of “unwillingness to prosecute”).
115
Rome Statute art. 13 states that the U.N. Security Council may recommend investigation
of alleged crimes using its authority under chapter VII of the U.N. Charter.
116
Id. art.16.
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Referral by a State Party. A state party to the ICC may refer a “situation”
to the Prosecutor for investigation where it appears that one or more crimes under the
jurisdiction of the ICC have been committed.117 The referral must be made in
writing,118 and as far as possible, must specify the relevant circumstances and be
accompanied by all of the supporting documentation available to the referring
state.119 There is no requirement that the referring state have territorial jurisdiction
to prosecute the crime or custody of the alleged perpetrators. If the Prosecutor
determines there is sufficient cause to commence an investigation, he or she must
notify all states parties and any other state that would normally be able to assert
jurisdiction over the crime, possibly on a confidential basis and taking measures to
preserve evidence or prevent the absconding of persons.120
If a state with conventional jurisdiction notifies the Prosecutor within one month
of its intent to investigate the crime, the Prosecutor must defer to that state, but may
make an application to the Trial Chamber to commence an investigation on the basis
that the state’s investigation is not “genuine.”121 The Prosecutor may request the state
to provide periodic status reports on the investigation. The decision as to whether a
state is “unwilling or unable genuinely” to carry out its investigation is determined
by the Pre-Trial Chamber. The state must be informed that the Prosecutor intends
to challenge a state’s intent or ability to investigate, allowing sufficient time for the
state to prepare to present evidence on its behalf. The state may challenge the
determination to the Appeals Chamber, and if that challenge is unsuccessful, may
later bring a challenge to the admissibility of the case under article 19, providing
there are additional facts or a significant change of circumstances.
In the event the Prosecutor decides not to initiate an investigation, the referring
state may request a review before the Pre-Trial Chamber,122 which may request the
Prosecutor to reconsider the decision within ninety days following notification.123
The Pre-Trial Chamber may conduct a review of the Prosecutor’s decision on its own
motion if the decision is based on the Prosecutor’s determination that a prosecution
is not in the interest of justice as specified in paragraphs 1(c) or 2(c) of article 53.
The decision of the Pre-Trial Chamber in this case is controlling. If new information
or evidence becomes available after the Prosecutor has decided not to investigate or
if the Pre-Trial Chamber does not authorize an investigation, the Prosecutor may
initiate a new investigation.124
117
Id. art. 14.
118
Draft RPE 45.
119
Rome Statute art. 14(2).
120
Id. art. 18(1).
121
Id. art. 18(2-5).
122
Id. art. 53.
123
Draft RPE 107.
124
Rome Statute arts. 15 and 53(4).
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Initiation by Prosecutor. If the Prosecutor becomes aware of possible
crimes within the jurisdiction of the ICC, he or she may commence self-initiated
investigation. There does not appear to be any limitation on how the Prosecutor
receives the information or who can submit it. The Prosecutor may request
information from states, non-governmental organizations (NGO), or any other
reliable source as deemed appropriate, and must protect the confidentiality of all such
information in accordance with the Rome Statute and Rules of Procedure and
Evidence.125 If the Prosecutor concludes that there is a “reasonable basis” for an
investigation in a given situation, he or she must first submit a request to the PreTrial Chamber for authorization to proceed. The Chamber, in turn, must determine
both that there is a “reasonable basis” to proceed with an investigation and that “the
case appears to fall within the jurisdiction of the Court.” Victims may make
presentations to the Pre-Trial Chamber, but there does not appear to be an
opportunity for a state with jurisdiction to intercede at this juncture. Once the
investigation is authorized, the Prosecutor must notify relevant parties as in the case
of a referral by a state party.126 At that time, a state with jurisdiction over the crime
may submit its request for deferral.
If the Prosecutor determines that sufficient basis for an investigation does not
exist, he or she must inform those who provided the information,127 but there is no
opportunity for the referring persons or entities to challenge the decision. However,
the Pre-Trial Chamber may initiate its own review, giving the Prosecutor a deadline
for the submission of observations.128
As noted above, the U.N. Security Council may issue a stay preventing the
Prosecutor from proceeding in cases submitted by states parties or initiated by the
Prosecutor. There does not appear to be a provision in the Rome Statute or Draft
RPE stating when, if ever, any organ of the ICC is required to inform the Security
Council of an investigation under consideration. Moreover, before the Security
Council can act under Chapter VII of the U.N. Charter, as required to defer an
investigation under art. 16 of the Rome Statute, the Council must first determine
there is “a threat to the peace, breach of the peace or act of aggression . . . .”129
Referral by the U.N. Security Council. One of the reasons for initiating
an international criminal court was to give the Security Council a permanent forum
for war crimes trials, without necessitating the intense effort required to set up an ad
hoc tribunal. The Security Council may thus, pursuant to its mandate under Chapter
VII of the U.N. Charter, refer a case to the Prosecutor for investigation.130
Presumably, however, the U.N. Security Council is not precluded from initiating a
125
Draft RPE 46.
126
Rome Statute art. 18(1).
127
Id. art. 15(6).
128
Draft RPE 109.
129
U.N. Charter art. 39. See Gurulé, supra note 94, at 22 (criticizing Rome Statute art. 16
for perceived weaknesses).
130
Rome Statute art. 13(b).
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separate ad hoc tribunal if for some reason it were to determine that the ICC would
be unable to conduct a fair and effective trial, although some predict that the ICC will
bring an end to the use of such tribunals.131
Once the Prosecutor receives a referral by the U.N. Security Council, he or she
determines whether or not an investigation is warranted using the same procedure as
in the case of any other type of referral. The Security Council may request that the
Pre-Trial Chamber review a decision of the Prosecutor not to initiate an investigation,
but may not require the Prosecutor to proceed. The most important difference
between a referral by the Security Council and the other types of referrals is that the
consent of neither the state of nationality of the accused nor the state on whose
territory the crime was committed is necessary for the ICC to assert its jurisdiction.
The Prosecutor need not inform states with jurisdiction in accordance with art.18, in
order to give such states the opportunity to request deferral; however, it appears that
those states retain the right to contest the jurisdiction of the ICC based on
complementarity.
ICC Jurisdiction over Citizens of Non-Parties.
The above-outlined triggering mechanisms for jurisdiction of the ICC make it
possible for the ICC to investigate and try citizens of states that have not signed or
ratified the Rome Statute. Thus, under certain circumstances the ICC could exercise
jurisdiction over a U.S. citizen accused of one or more of the crimes specified in the
treaty, even if the United States does not ratify it. If the United States voluntarily
consents to the exercise of ICC jurisdiction, or if the state on whose territory an
American citizen has allegedly committed the crime consents, the ICC could try a
case despite the fact that neither state has ratified the treaty.132 If an American citizen
is accused of committing one of the covered crimes on the territory of a state party,
consent is automatic on the part of the territorial state, but either state can supercede
the ICC’s jurisdiction by undertaking to prosecute the crime in its domestic courts.
Thus, U.S. nationals could be subject to investigation and trial by the ICC if the
country in which the alleged crime occurred is either a party to the Rome Statute or
consents to the ICC’s jurisdiction, and has or is able to gain custody of the alleged
U.S. offender. This possibility appears to exist mainly with respect to U.S. military
personnel stationed or found in such a country. It also appears to exist with respect
to U.S. public officials whose actions are alleged to have caused one of the crimes
designated in the Rome Statute, should that official be found in (or extradited to) the
country where the crime allegedly occurred.133 Such exercises of jurisdiction over
131
See Mark A. Summers, A Fresh Look at the Jurisdictional Provisions of the Statute of the
International Criminal Court: the Case for Scrapping the Treaty, 20 WIS. INT’L L.J. 57, 75
(2001); Michael P. Scharf, The United States and the International Criminal Court: A
Recommendation for the Bush Administration 7 ILSA J INT’L & COMP. L. 385, 387 (2001).
132
133
Rome Statute art. 13.
The Rome Statute makes military commanders criminally responsible for the acts of
forces under “his or her effective command and control.” It also eliminates all immunities
“based on official capacity.” Id. arts. 28 and 27, respectively.
CRS-26
U.S. nationals could occur pursuant to the initiative of the state where the crime
allegedly occurred or of the Prosecutor.134
Given the nature of acts covered as crimes that can be prosecuted by the ICC,
it is thought to be a rare situation in which an American citizen acting in his or her
own capacity could commit such a crime. Americans who are not servicemembers
or government officials could, at present, presumably fall under the jurisdiction of
the ICC only if they participate in insurgencies abroad or commit any of the covered
acts on behalf of a foreign government or entity. If the United States is able to and
does assert jurisdiction over the crime and the accused, the ICC could not proceed
with prosecution unless it were to find the United States unwilling or unable
genuinely to investigate or prosecute the crime. If another country has jurisdiction
and decides to surrender a U.S. person accused of a covered crime to the ICC, the
United States could appeal the jurisdiction of the ICC.135
If the jurisdiction of the ICC eventually is expanded to include terrorism and
drug trafficking, there is arguably a greater probability that Americans abroad could
be tried by the ICC, as those crimes may not require as a prerequisite a showing that
they are part of a greater scheme. However, it has been noted, Americans abroad who
are accused of perpetrating a terrorist act or engaging in illicit drug trade are subject
to the laws and legal system of the country where the crime took place, without
regard to whether the United States consents to such jurisdiction. Some observers
have raised the possibility, therefore, that in such cases accused Americans could
conceivably enjoy more comprehensive procedural due process rights before the ICC
than they would receive in the domestic courts of some foreign states.
Complementarity and Other Challenges to Jurisdiction.
According to Article 17 of the Rome Statute, the ICC must find it has no
jurisdiction where a state with jurisdiction is investigating or prosecuting the crime,
134
Id. art. 13. The concurrence of the state in which the crime took place would be necessary
for the ICC to maintain its jurisdiction. The ICC can also exercise its jurisdiction pursuant
to a referral from the Security Council, whether or not the state of nationality or territoriality
concurs. Because the U.S. possesses a veto in the Security Council, such a referral could
only occur if the U.S. consented.
135
Such country would also have the option of trying the case in its own courts or extraditing
the prisoner to the United States. The Rome Statute provides that states parties who receive
a request for surrender from the ICC and a request for extradition from a non-party state,
with which it has an extradition treaty or the like, shall decide which course to take based
on the dates of the requests, the interest of the requesting state in prosecuting the crime, and
the possibility of subsequent surrender of the person between the ICC and the non-party
state. Rome Statute art. 19. If there is no obligation to extradite, the requested state should
give priority to the ICC. Id. Under Article 98 of the Rome Statute, the ICC may not proceed
with a request for surrender or assistance which would require the requested state to act
inconsistently with its obligations under international law regarding state or diplomatic
immunity or an agreement not to surrender the country’s national to the ICC unless the ICC
gains the cooperation of that third state. It is unclear whether a treaty violation that results
in the ICC’s custody of an accused is grounds for challenging the ICC’s jurisdiction, either
by the accused or the state of nationality of the accused.
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or has investigated the case and genuinely determined that prosecution of the person
is unwarranted.136 The ICC shall determine a case is inadmissible if the accused has
already stood trial for the conduct unless it determines the trial was conducted solely
for the purpose of shielding the individual from prosecution by the ICC or if it was
otherwise conducted in a manner “inconsistent with an intent to bring the person
concerned to justice.”137 In order to give the appropriate states the opportunity to take
charge of a given situation, the Prosecutor is required to inform all states parties and
other interested states when there is a “reasonable basis to commence an
investigation” (except in cases referred by the Security Council).138
The United States may thus challenge the ICC’s jurisdiction over its national in
a preliminary proceeding on the basis that it is willing and able to undertake
investigation itself. The Statute also provides that a state “from which acceptance of
jurisdiction is required under article 12" may challenge the court’s jurisdiction.139
Presumably, the United States could challenge the ICC’s jurisdiction over a crime
allegedly committed by its national even if no U.S. court has jurisdiction over the
crime, by challenging one of the other prerequisites for admissibility of the case. For
example, the United States could argue the gravity of the crime of which its national
is accused is not sufficiently severe to warrant a trial at the ICC, or that the crime is
merely an isolated incident and not part of a larger campaign as required for covered
crimes.140
136
See Rome Statute art. 17. Paragraph 1 provides the ICC shall determine 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.
137
Id. art. 20.
138
Id. art. 18. A state has one month after receipt of the notification to advise the ICC that
it is investigating (or has investigated) the situation. The Prosecutor must then defer, unless
he or she obtains an authorization to investigate from a Pre-Trial Chamber.
139
Presumably this language refers to both the state where a crime allegedly occurred and
the state whose national allegedly perpetrated it, even though the acceptance of only one of
them is required for the ICC to find jurisdiction.
140
See Finalized Draft Text of the Elements of Crimes, Report of the Preparatory
Commission for the International Criminal Court, PCNICC/2000/1 (2000), available at
http://www.un.org /law/icc/statute/elements/elemfra.htm. As currently defined, genocide
crimes have as an element that the “conduct took place in the context of a manifest pattern
of similar conduct directed against [the target] group or was conduct that could itself effect
such destruction.” Crimes against humanity include the elements that the conduct was
committed with knowledge or intent that it contribute to a “widespread or systematic attack
directed against a civilian population.” See id. at 9. War crimes listed under paragraphs
(a) and (b) of Article 8 of the Rome Statute apply to situations of international armed
(continued...)
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Thus, many supporters of the Rome Statute believe that the principle of
complementarity, properly applied, is sufficient to insulate U.S. servicemembers and
civilians from prosecution at the ICC. After all, they argue, it is virtually
inconceivable that the American judicial system will suffer such a massive
breakdown as one that would render it “unable to obtain the accused or the necessary
evidence and testimony or otherwise unable to carry out its proceedings.”141 Neither
is it likely that the United States would be unwilling to investigate alleged atrocities
committed by its own troops or officials abroad.142 Some have suggested that
changes in U.S. statutes to broaden the jurisdiction of federal courts to cover all
crimes over which the ICC might assert jurisdiction could enhance the
implementation of complementarity by precluding a finding by the ICC that the
United States is “unable” to prosecute one of its citizens.143 Opponents of the ICC,
however, question whether complementarity will operate as promised, or whether the
ICC judges will focus on a perceived deficiency in U.S. trial or court-martial practice
to declare that a particular U.S. prosecution or investigation was not conducted in a
manner consistent with “the intent to bring the person concerned to justice.”144
Thus, the primary issue regarding complementarity is the extent to which the
ICC will defer to national decisions regarding the handling of purported crimes under
the jurisdiction of the ICC. It is unclear, for example, whether the ICC would defer
to a decision by a nation to constitute a truth and reconciliation commission, where
such a commission could grant amnesty to the perpetrators of genocide in exchange
for a full accounting of the events underlying the charge. The granting of amnesty
is arguably contrary to the intent to bring criminals to justice, but a nation recovering
from the effects of genocide might find it in its interest to form such a commission
rather than try to prosecute the alleged perpetrators.145
140
(...continued)
conflict and incorporate the Geneva Conventions of 1949.
Paragraph 2(e) applies to armed conflicts not of an international character and explicitly
excludes “internal disturbances and tensions, such as riots, isolated and sporadic acts of
violence or other acts of a similar nature.” There must be “protracted armed conflict
between governmental authorities and organized armed groups or between such groups”
before any conduct can be considered a war crime under that paragraph.
141
Rome Statute art. 12. See Ruth Wedgwood, The Constitution and the ICC, in THE U.S.
AND THE ICC, supra note 27, at 119, 127.
142
See id. at 127.
143
See Cassel, supra note 86, at 437; Robinson O. Everett, American Servicemembers and
the ICC, in THE US AND THE ICC, supra note 27, at 137, 142.
144
Rome Statute art. 12(2(c)). See Gurulé, supra note 94, at 27-28 (arguing that the ICC’s
jurisdiction is not truly complementary because the Rome Statute allows the ICC to secondguess the decisions of national courts).
145
See generally Michael P. Scharf, Justice versus Peace, in THE U.S. AND THE ICC, supra
note 27, at 179.
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Rules of Procedure and Evidence
The Rome Statute contains a comprehensive set of procedural safeguards for the
rights of the accused. While some legal experts agree that the Rome Statute contains
“the most comprehensive list of due process protections which has so far been
promulgated,”146 some of the ICC’s detractors maintain that the procedures
nevertheless fall short of U.S. constitutional standards of due process.147 Some
observers caution that the attempt to create a hybrid set of rules, mixing ideas from
the common law and civil law traditions, may lead to unpredictable and possibly
unjust results.148
The Preparatory Commission completed its draft of the Rules of Procedure and
Evidence149 at its Fifth Session in June of 2000. These rules implement and
embellish the procedural aspects of the Rome Statute, and are subject to approval by
the Assembly of States Parties at its first meeting. A summary comparison of some
procedural safeguards in the Rome Statute and those mandated by the U.S.
Constitution is set out below.150
The Right to a Jury Trial.
The Rome Statute does not provide for trial by jury; instead, it follows the civil
law tradition of employing a panel of judges to decide questions of both fact and law.
This issue does not appear to have been a major point of contention for U.S.
participants during the negotiations of the Rome Statute. This may be true because
the Americans considered most at risk, U.S. service members, are subject to court
martial under the Uniform Code of Military Justice (UCMJ) and are not entitled to
trial by civil jury.151 American civilians who are accused of crimes overseas are
subject to the jurisdiction of the country where the crime took place, and may be tried
under that country’s laws, which in many cases do not include the right to a trial by
jury.
146
See, e.g., The International Criminal Court: Hearing before the House Comm. on
International Relations, 106th Cong. 92-101, 96 (2000) (statement of Monroe Leigh on
behalf of the American Bar Association); Scheffer, supra note 14, at 94; Wedgwood, supra
note 141, at 123.
147
See, e.g. Casey, supra note 62.
148
See generally Robert Christensen, Getting to Peace by Reconciling Notions of Justice:
The Importance of Considering Discrepancies Between Civil and Common Legal Systems
in the Formation of the International Criminal Court, 6 UCLA J. INT’L L. & FOREIGN AFF.
391 (2001).
149
Draft RPE, supra note 57.
150
For a brief comparison of ICC procedural safeguards to federal and military rules of
procedure and evidence in chart form, see Selected Procedural Safeguards in Federal,
Military, and International Courts, CRS Report RL31262. Of course, just as the U.S.
Constitution is interpreted in large measure through caselaw, the Rome Statute may be
expected to acquire some new contours in the light of the ICC’s interpretation of the Statute
as well as caselaw interpretation.
151
See id; Wedgwood, et al., supra note 8, at 130.
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Some opponents of the Rome Treaty argue that it would be unconstitutional for
the United States to ratify the Rome Statute because U.S. participation in any court
that does not provide for a jury trial in cases where the Constitution requires one
would be unlawful.152 The counter position to this argument is that the Constitution
does not bar trial by military commission without a jury under certain
circumstances,153 even the trial of American citizens not members of the armed
forces.154 They also note that the United States has participated in international
courts previously, even where American citizens could be tried before them.155
Finally, the Supreme Court has ruled that persons may be extradited to stand trial in
a foreign country despite the lack of jury trial and other procedural safeguards that
would be available to that same person if tried in U.S. courts.156
The Presumption of Innocence.
The Rome Statute provides that “[e]veryone shall be presumed to be innocent
until proven guilty before the Court ....”157 It also places the burden of proof on the
Prosecutor and sets the standard for a conviction to proof beyond a reasonable
doubt.158 The Prosecutor must first have confirmed by the Pre-Trial Chamber that
there are sufficient grounds to believe the accused committed the crime as charged.159
The accused may object to the charges, challenge the evidence against him, or present
his own evidence.160 Once the Pre-Trial Chamber has confirmed the charges, the case
will come before a Trial Chamber, which must ensure the accused understands the
nature of the charges and then allow the accused to enter a plea of innocence or make
an admission of guilt.161 If the accused has admitted guilt, the Trial Chamber must
review the evidence to ensure it is sufficient to support the admission.162 If the Trial
Chamber is not satisfied that the evidence is sufficient, it will proceed with the trial
152
See Casey, supra note 62, at 861-62.
153
See Wedgwood, supra note 141, at 126 (citing Ex parte Quirin, 317 U.S. 1 (1942)).
154
See Madsen v. Kinsella, 343 U.S. 341 (1952)(upholding jurisdiction of military
commission to try civilians in occupied foreign territory).
155
See Wedgwood, supra note 141, at 122 (giving as an example the International Criminal
Tribunal for the Former Yugoslavia).
156
See id. at 124 (citing Charleton v. Kelly, 229 U.S. 447 (1913)).
157
Rome Statute art. 66.
158
Id.
159
Id art. 61.
160
Id art. 61(6).
161
Id art. 64(8).
162
Id. art. 65.
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as if the accused entered a plea of innocence.163 The Trial Chamber is not bound by
any plea agreements the Prosecutor may have made with the accused.164
In U.S. courts, the accused is entitled to appear in court “without unnecessary
physical restraints or other indicia of guilt, such as appearing in prison uniform, that
may be prejudicial to the jury.”165 The ICC rules provide that any instruments of
restraint “shall be removed when the person appears before a Chamber.”166 The rules
do not specify whether military personnel are entitled to appear in uniform before the
court.
The Privilege Against Compelled Self-incrimination.
During an investigation, if there is reason to believe a person has committed a
crime under the jurisdiction of the ICC, that person has the right “[t]o remain silent,
without such silence being a consideration in the determination of guilt or
innocence.”167 Any individual questioned during an investigation “[s]hall not be
compelled to incriminate himself or herself or to confess guilt; [and s]hall not be
subjected to any form of coercion, duress or threat, to torture or to any other form of
cruel, inhuman or degrading treatment or punishment; ....”168 At the initial stages of
an investigation or prosecution, in fact, the Rome Statute may provide broader
protection than does the U.S. Constitution: the Miranda Rule requires oral notice of
rights only when a defendant is interrogated in police custody;169 the ICC statute
requires such a warning whenever the prosecution has grounds to believe that the
person being questioned has committed a crime.
The defendant also has a right not to testify before the ICC or to refuse to make
incriminating statements.170 A defendant’s invocation of the right to remain silent
may not be used by the judges in determining the guilt or innocence of the
defendant.171 This safeguard appears to be analogous to the Fifth Amendment to the
Constitution.
163
Id. art. 65(3).
164
Id. art. 65(5).
165
See Holbrook v. Flynn, 475 U.S. 560 (1986). A similar rule applies to courts-martial. See
Manual for Courts Martial (M.C.M.), established as Exec. Order No. 12473, 49 Fed. Reg
17,152, (Apr. 23, 1984). Rules for Courts-Martial (R.C.M.) Rule. 804 provides that “[t]he
accused shall be properly attired in uniform with grade insignia and any decorations to
which entitled. Physical restraint shall not be imposed unless prescribed by the military
judge.”
166
Draft RPE 121.
167
Rome Statute art. 54.
168
Id. art. 55.
169
See Wedgwood, supra note 141, at 123.
170
Rome Statute art. 67(1)(g).
171
Id.
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Witnesses may refuse to give testimony that might incriminate them. The ICC
has the authority to give assurances to the witness that he or she will not be
prosecuted or detained by the ICC for conduct prior to departure from the requested
state or for incriminating testimony.172 The ICC may also allow in camera testimony
by the witness, giving assurances that the content of the testimony will not be
disclosed to the public or any state.173 Unless the ICC grants such assurances, the
witness may not be compelled to answer.174 Presumably, the right to avoid selfincrimination would extend beyond the crimes triable by the ICC to evidence which
could credibly lead to prosecution by a state. It is not clear whether the ICC would
respect the immunity of witnesses or accused persons granted by states, or whether
it would exclude compelled testimony taken by officials of a state.
The Right to Confront Witnesses.
The Rome Statute provides that “the accused shall be entitled … to examine, or
to have examined … the witnesses against him or her …[and] to obtain the
attendance and examination of witnesses on his or her behalf…”175 There is an
exception, however, in cases where the alleged crime involves sexual violence or
violence against children.176 The ICC may invoke procedures to protect the identities
of victims if such protection is deemed necessary.177 Such procedures include live
testimony by means of audio-visual broadcast “provided that such technology permits
the witness to be examined by the Prosecutor, the defense, and by the Chamber itself,
at the time that the witness so testifies,” and “is conducive to the giving of truthful
and open testimony and to the safety, physical and psychological well-being, dignity
and privacy of the witness.”178
U.S. law prohibits (with exceptions) the use of out-of-court statements to prove
the truth of the matter stated, otherwise known as “hearsay” evidence.179 The Rome
Statute and Draft RPE do not explicitly provide for a similar rule. If the practice of
the International Criminal Tribunal for the Former Yugoslavia (ICTY) is followed,
hearsay evidence will likely be admissible on a more frequent basis than in U.S.
courts. In civil law courts, hearsay evidence is not considered to be unduly prejudicial
in most cases because the judges, unlike lay jurors, are presumed to be capable of
accurately assessing the credibility of hearsay evidence and discounting any
prejudicial content.
172
Id. art. 93(2); Draft RPE 74.
173
Draft RPE 74.
174
Id.
175
Rome Statute art. 67(1)(e).
176
Id. art. 68.
177
Measures to protect national security could also conflict with the accused’s right to
confront witnesses. See infra section addressing the right to a public trial.
178
Draft RPE 67.
179
See Fed. R. Evid. chapter. VIII.
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The United States Supreme Court has recognized the need for special measures
for the protection of witnesses in some criminal trials, notwithstanding the
defendant’s right to face his accusers.180 Measures such as one-way closed circuit
television system may be employed to protect a child witness who might suffer
emotional trauma at the sight of the accused, as long as sufficient safeguards were in
place to preserve rigorous adversarial testing of the testimony.181 Similar to the
procedure approved by the Supreme Court, the Rome Statute provisions for
protective measures must be ordered by the ICC taking into consideration all the
relevant circumstances,182 and such measures “shall not be prejudicial to or
inconsistent with the rights of the accused and a fair and impartial trial.”183
The Protection Against Double Jeopardy.
The Statute bars the ICC from trying any person who has been tried and
convicted or acquitted by another court, unless that trial was for the purpose of
“shielding the person concerned from criminal responsibility” or was otherwise
“inconsistent with an intent to bring the person concerned to justice.”184 The ne bis
in idem rule in the Rome Statute is in some ways more protective of the accused than
the United States Constitution, which allows a person to be tried by more than one
sovereign (federal or state court) or in some cases, for a separate crime arising out of
the same conduct.185 In contrast, the Rome Statute specifies the ICC may not try a
person who has been tried by any other court for the same conduct, unless it finds the
trial or investigation to be improper for one of the enumerated reasons. Thus, the
danger of the ICC trying a person who has already been tried by a national court will
ultimately depend on the ICC’s deference to national judicial decisions.186
The Rome Statute further provides that “no person shall be tried by another court
for a crime” for which the ICC has already convicted or acquitted the person.187 Nonparties would not be bound by this rule, however, so a person tried by the ICC could
conceivably be tried again by the court of a non-party state, or possibly even by a
party to the Statute that seeks to punish the same conduct under another criminal
charge.
180
See Maryland v. Craig, 497 U.S. 836 (1990).
181
See id.
182
See id. at 855 (distinguishing Coy v. Iowa, 487 U.S. 1012 (1988), in which similar
measures were invalidated because they were imposed statutorily without requiring a casespecific inquiry into the need for protective measures).
183
Rome Statute art. 68.
184
Rome Statute art. 20 (Ne bis in idem). “No person who has been tried by another court
... shall be tried by the Court with respect to the same conduct unless the proceedings in the
other court [were not properly conducted].”
185
See United States v. Lanza, 260 U.S. 377 (1922).
186
See Christensen, supra note 148, at 420.
187
Id. art. 20(2).
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Another issue that raises possible double jeopardy implications is the
prosecutorial appeal of an acquittal.188 Under U.S. law, prosecutors may appeal only
on questions of law, but may not appeal a final acquittal.189 The Rome Statute allows
the Prosecutor to appeal any decision based on procedural error, error of fact, or error
of law. The defendant may also appeal on these grounds, as well as “any other
ground that affects the fairness or reliability of the proceedings.”190
The Freedom from Unreasonable Searches and Seizures.
Although the Rome Statute does not contain an express reference to the right to
be free from unreasonable searches and seizures, it does provide for an exclusionary
rule to prevent evidence tainted by a violation of “internationally recognized human
rights”191 The ICC will not apply national law to determine the admissibility of
evidence unless it is consistent with the Rome Statute as well as treaties, principles,
and rules of international law.192 Consequently, accused persons are protected from
unreasonable searches and seizures to the extent that international law forbids them.
The right to privacy against such intrusion is protected under a number of
international documents and treaties, including the Universal Declaration of Human
Rights (UDHR)193 and the International Covenant on Civil and Political Rights
(ICCPR),194 both of which have been ratified by a majority of nations participating
at the Rome Conference.195
Such a standard may turn out to be higher than that applied by U.S. courts in
certain cases, inasmuch as U.S. courts apply a lower standard in the event that
188
See Mark C. Fleming, Appellate Review in the International Criminal Tribunals, 37 TEX.
INT’L L.J. 111, 117 (2002).
189
United States v. Martin Linen Supply Co., 430 U.S. 564 (1977).
190
Rome Statute art. 81(1).
191
See id. art. 69(7):
Evidence obtained by means of a violation of this Statute or internationally recognized human
rights shall not be admissible if:
(a) The violation casts substantial doubt on the reliability of the evidence; or
(b) The admission of the evidence would be antithetical to and would seriously damage
the integrity of the proceedings.
See generally George E. Edwards, International Human Rights Law Challenges to the New
International Criminal Court: The Search and Seizure Right to Privacy 26 YALE J. INT’L L.
323 (2001).
192
Rome Statute art. 21; Draft RPE 63(5).
193
G.A. Res. 217A (III), art. 12, U.N. Doc. A/810 (1948).
194
International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 17, 999 U.N.T.S.
171, 6 I.L.M. 368 (entered into force Mar. 23, 1976).
195
See Edwards, supra note 191, at 330.
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evidence was gathered outside the territorial jurisdiction of the United States.196
However, the ICC need not necessarily consider, for example, whether a search
warrant should have been necessary. Because evidence is likely to be collected either
by or with the cooperation of national law enforcement authorities, investigators will
probably find it necessary to rely on national laws rather than try to discern
international norms to guide the conduct of the investigation. It may therefore
emerge from the ICC’s practice that national laws carry more weight than the Rome
Statute would suggest. At any rate, any comparison between the ICC and U.S.
courts’ practice with regard to tainted evidence must await the ICC’s development
of relevant practice. In particular, the extent to which the exclusionary rule of the
ICC will apply to evidence derived from unlawfully seized evidence remains to be
seen.
The Right to Be Present at Trial.
The Rome Statute provides that “[t]he accused shall be present during the
trial.”197 The Trial Chamber may order the accused removed from the courtroom in
exceptional circumstances when the accused causes continuous disruption, but only
for such duration as is necessary, and may make provision for the accused to observe
the trial and direct counsel from outside the courtroom through applicable
communications technology.198
In U.S. jurisprudence, the Confrontation Clause of Amendment VI guarantees the
accused’s right to be present in the courtroom at every stage of his trial.199 However,
as long as the defendant is present at the beginning of the trial, the trial will not be
rendered invalid if the defendant voluntarily absents himself during later stages of the
trial.200 The Rome Statute does not address the voluntary absence of the accused
once the trial begins.
The Right to Effective Assistance of Counsel.
Article 67 of the Rome Statute provides that “the accused shall be entitled … to
have legal assistance assigned by the Court where the interests of justice so require,
and without payment if the accused lacks sufficient means to pay for it....”201
Defense counsel must also be well-qualified202 according to criteria to be
196
For example, evidence resulting from overseas searches of American property by foreign
officials may be admissible unless foreign police conduct shocks judicial conscience or
participation by U.S. agents is so substantial as to render the action that of the United States.
See United States v. Barona, 56 F.3d 1087 (9th Cir. 1995).
197
Rome Statute arts. 63, 67(1)(d).
198
Rome Statute art. 63(2).
199
Illinois v. Allen, 397 U.S. 337 (1970).
200
Diaz v. United States, 223 U.S. 442, 455 (1912).
201
Rome Statute art. 67(1)(d).
202
Rule 22 provides:
(continued...)
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established.203 The Registrar has a duty to provide adequate administrative support
to the defense.204 The Statute also guarantees that “the accused shall be entitled …
to communicate freely with counsel of accused’s choosing ….”205 Similar to the
attorney-client privilege practiced in the U.S. judicial system,206 Draft RPE 73
provides that such communications are privileged and need not be disclosed at trial.
The Right to a Speedy and Public Trial.
The U.S. Constitution guarantees the right to a speedy and public trial.207
Similarly, the Rome Statute provides that the accused is entitled to be tried “without
undue delay” by means of a public hearing.208
Speedy Trial. In U.S. federal courts, criminal trials generally must commence
within seventy days after an indictment or original appearance before the court.209
In courts-martial, the time limit is 120 days from the preferral of charges or the
imposition of restraint, whichever date is earliest.210 Statutes of limitations for crimes
also guard against undue delay between the government’s discovery of evidence and
its prosecution of an accused person. A denial of the right to a speedy trial results in
a dismissal of the indictment.211 However, if the accused is found to have waived the
right, or the circumstances and justice otherwise require it, a delay may not be fatal
to the prosecution.212 In determining whether the right has been denied, a court may
consider such factors as the length of the delay, the reason for the delay, whether the
defendant asserted his right to a speedy trial, and the prejudice to the defendant
caused by the delay.213
202
(...continued)
counsel for the defence shall have established competence in international or criminal law
and procedure, as well as the necessary relevant experience, whether as judge, prosecutor,
advocate or in other similar capacity, in criminal proceedings. A counsel for the defence
shall have an excellent knowledge of and be fluent in at least one of the working
languages of the Court. Counsel for the defence may be assisted by other persons,
including professors of law, with relevant expertise.
203
Rule 21.
204
Rule 20 provides that the Registrar “shall organize the staff of the Registry in a manner
that promotes the rights of the defence, consistent with the principle of fair trial as defined
in the Statute.”
205
Rome Statute art. 67(1)(b).
206
Fed. R. Evid. 501.
207
U.S. CONST. Amend. VI.
208
Rome Statute art. 67(1).
209
18 U.S.C. § 3161.
210
Rules for Courts-Martial (R.C.M.) §707(a).
211
Strunk v. United States, 412 U.S. 434 (1973).
212
See Barker v. Wingo, 407 U.S. 514, 532 (1972).
213
See id.; United States v. Baker, 63 F.3d 1478, 1497 (9th Cir. 1995).
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The Rome Statute does not define “undue delay.” The Draft RPE instruct the
Trial Chamber to impose “strict time limits” for orders relating to discovery.214 Draft
RPE 101 provides:
In making any order setting time limits regarding the conduct of any proceedings,
the Court shall have regard to the need to facilitate fair and expeditious proceedings,
bearing in mind in particular the rights of the defence and the victims.
The Rome Statute does not provide a statute of limitation for any of the crimes
under its jurisdiction.215 Under U.S. law, there is no statute of limitation for the
crime of genocide216 or for any crime for which the death penalty may be imposed,217
which includes any war crime that causes the death of its victim,218 or any terrorismrelated offense that involves the risk of death or serious injury.219 For non-capital
crimes, however, the statute of limitation is generally five years.220
Public Trial. In U.S. courts, closure of the courtroom during trial proceedings
is justified only if 1) the proponent of closure advances an overriding interest likely
to be prejudiced; 2) the closure is no broader than necessary; 3) the trial court
considers reasonable alternatives to closure; and 4) the trial court makes findings
adequate to support closure.221 The right to a public trial in courts-martial is also
guaranteed, but not absolute.222 A defendant may request a closed trial, but must meet
the same stringent standards applied to a request by the prosecution. Additionally,
the press and public have a First Amendment right to have access to trials,223 which
must sometimes be considered in addition to the other factors.
The Rome Statute provides for public hearing unless “special circumstances
require that certain proceedings be in closed session for the purposes set forth in
article 68 [to protect witnesses or victims], or to protect confidential or sensitive
information to be given in evidence.”224 The Trial Chamber must first give all
parties notice and the opportunity to respond to any proposed special protective
procedures.225 Possible protective measures include the use of a pseudonym or
technological disguise measures for witnesses, gag orders for certain information as
214
Draft RPE 84.
215
Rome Statute art. 29.
216
18 U.S.C. §1091(e).
217
18 U.S.C. §3281.
218
18 U.S.C. §2441.
219
18 U.S.C. §3286(b).
220
18 U.S.C. §3282.
221
See Waller v. Georgia, 467 U.S. 39, 48 (1984).
222
R.C.M. §806.
223
See Richmond Newspapers v. Virginia, 448 U.S. 555 (1980).
224
Rome Statute art. 67(7).
225
Draft RPE 87.
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well as its removal from the public record, or the closure of part of the hearing.226
Additionally, any state may make an application to the ICC for necessary measures
to protect its agents or sensitive national security information.227
Right to Appeal.
Either the defendant or the prosecutor can appeal a decision of the Trial Chamber
to the Appeals Chamber based on “procedural error, error of fact or law, or
disproportion between the crime and the sentence.” The accused or his heirs may
bring an appeal at any time based on new evidence or information that the conviction
is based on false evidence, or that any of the judges or prosecutors committed any
misdeeds.228
The ICC’s opponents criticize the appeal process as inadequate because it does
not provide for review outside the ICC.229 As discussed above, the conferees sought
to implement checks and balances as well as create a separation between the Appeals
Division and the other trial divisions. It might also be noted that prior to 1993,
international criminal courts did not include an appellate body,230 nor did national
courts review the decisions of such tribunals.231 Practice in the International Criminal
Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda
(ICTR) suggests that an appellate body within an international court may not always
necessarily affirm the decisions of trial chambers.232
Freedom from Indefinite or Arbitrary Detention.
The Fourth Amendment to the U.S. Constitution protects persons from
unreasonable seizures, including the arrest of a person without probable cause,233 and
sometimes, without a warrant. A person unlawfully arrested is not automatically
released from custody,234 however, although evidence derived through the unlawful
arrest may be excludable from evidence.235 The Fifth Amendment protects
individuals from deprivation of liberty without due process of law. The Rome
Statute contains corresponding safeguards to prevent the arbitrary arrest and
226
Id.
227
Rome Statute art. 68(6).
228
Rome Statute art. 87.
229
See Casey, supra note 62, at 87 (arguing that the Appeals Division will have identical
institutional interests to those of the trial chambers and would not be capable of providing
truly independent review).
230
See Fleming, supra note 188, at 112.
231
See, e.g., Hirota v. MacArthur, 338 U.S. 197 (1948) (declining to review decision of
internationally composed military commission).
232
See generally Fleming, supra note 188.
233
See Ex parte Burford, 7 U.S. (3 Cr.) 448 (1806).
234
See Ker v. Illinois, 119 U.S. 436 (1886).
235
See Wong Sun v. United States, 371 U.S. 471 (1963).
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detention of persons,236 and includes provisions for interim release of the accused
prior to trial.237 Because the ICC has no law enforcement arm, relying instead largely
on states to provide for the arrest and detention of accused persons using national
police resources, however, the procedures may vary depending on the state of
custody.
The Prosecutor must seek an arrest warrant or a summons from the Pre-Trial
Chamber when necessary to ensure an accused’s appearance at trial.238 The
application must identify the person and the crime of which the person is accused,
including a concise statement of facts supporting the allegation and a summary of
evidence. On the basis of the warrant, the ICC may request the provisional arrest or
arrest and surrender under part 9 of the Rome Statute. The ICC is required to
establish procedures for ensuring it is notified once a person is detained by a
custodial state on the request of the ICC, and must provide a copy of the warrant to
the accused in a language he or she understands.239
The Pre-Trial Chamber is to receive notification whenever a detainee has
requested interim release in accordance with the laws of the custodial state, and
makes recommendations to the national court as to the suitability of release.240 The
custodial state is not permitted to consider whether the warrant was properly issued
under the Rome Statute,241 but the accused may challenge the warrant before the PreTrial Chamber.242 If the accused is in the custody of the ICC, the accused may apply
for interim release pending trial, which the Pre-Trial Chamber may grant with or
without conditions.243 If the person is detained for an unreasonable period prior to
trial due to inexcusable delay by the Prosecutor, the ICC may release the person, with
236
Rome Statute arts. 55(1b), 55(1d).
237
Id. arts. 59(3), 60(2).
238
Id. art. 58.
239
Draft RPE 117.
240
Id. art. 59.
241
Id. art. 59(4).
242
Draft RPE 117.
243
Draft RPE 119. Such conditions may include:
(a) The person must not travel beyond territorial limits set by the Pre-Trial Chamber
without the explicit agreement of the Chamber;
(b) The person must not go to certain places or associate with certain persons as specified by
the Pre-Trial Chamber;
(c) The person must not contact directly or indirectly victims or witnesses;
(d) The person must not engage in certain professional activities;
(e) The person must reside at a particular address as specified by the Pre-Trial Chamber;
(f) The person must respond when summoned by an authority or qualified person designated by
the Pre-Trial Chamber;
(g) The person must post bond or provide real or personal security or surety, for which the
amount and the schedule and mode of payment shall be determined by the Pre-Trial Chamber;
(h) The person must supply the Registrar with all identity documents, particularly his or her
passport.
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or without conditions.244 A person wrongfully arrested, detained, or convicted may
be awarded compensation by the ICC.245
Once a person is convicted, the ICC will select from states willing to serve as
“state of enforcement” to incarcerate the convicted person subject to any ICC
conditions. The prisoner may not be tried, punished, or extradited to a third state for
conduct engaged in prior to the person’s incarceration without the approval of the
ICC.246 In designating a state of enforcement, the ICC must consider:
(a) The principle that states parties should share the responsibility for enforcing
sentences of imprisonment, in accordance with principles of equitable distribution,
as provided in the Rules of Procedure and Evidence;
(b) The application of widely accepted international treaty standards governing the
treatment of prisoners;
(c) The views of the sentenced person;
(d) The nationality of the sentenced person; and
(e) Such other factors regarding the circumstances of the crime or the person
sentenced, or the effective enforcement of the sentence, as may be appropriate in
designating the state of enforcement.247
Additionally, the ICC will monitor the treatment of the prisoner, and the prisoner
may petition to be moved to another state of enforcement at any time.248
Implications for the United States as Non-member
The U.S. initially used the proceedings of the Preparatory Commission in part as
a means of trying to rectify what it saw as the faults of the Rome Statute, and it
participated as an equal during the initial conferences.249 However, the current
Administration has reduced the level of the U.S. participation,250 and in any event,
the Preparatory Commission will cease to exist after the first meeting of the
Assembly of States Parties; U.S. eligibility to participate on an equal basis with other
states in setting some of the ground rules for the ICC will then have ended. The
Assembly of States Parties will take over as the governing body to oversee the
implementation and possible amendment of the Rome Statute. Review Conferences
are an alternative forum for considering amendments to the Statute; an initial Review
Conference will be convened seven years after the Statute enters into effect, now
expected to be July 2002. Thereafter, Review Conferences may be convened from
time to time by the U.N. Secretary-General upon request by a majority of the states
244
Rome Statute art. 60.
245
Id. art. 85; Draft RPE 173-75.
246
Rome Statute art. 108.
247
Id. art. 103.
248
Id. arts. 104 and 106.
249
See Scheffer, supra note 14, at 74.
250
See id. at 63.
CRS-41
parties.251 As a non-party, the United States will have no vote in either body.
However, it will remain eligible to participate in both the Assembly and in Review
Conferences as an observer.252
Observer Role.
The role of observers ultimately will be defined by the rules of procedure adopted
for the two bodies.253 If the current finalized draft rules are adopted, observers will
be entitled to participate in the deliberations of the Assembly and any subsidiary
bodies that might be established. Observer states will receive notifications of all
meetings and records of Assembly proceedings on the same basis as states parties.
They will not, however, be permitted to suggest items for the agenda or to make
motions during debate, such as points of order or motions for adjournment. Thus, the
United States may be able to participate substantially in Assembly debates as well as
proffer and respond to proposals, even if it does not become a party to the Statute.
The United States may also use its influence at the United Nations as a way to be
heard by the Assembly of States Parties.254
As noted, the United States will not be able to vote in these bodies if it does not
ratify the Rome Statute. It could not nominate U.S. nationals to serve as judges or
cast a vote in elections for judges or the Prosecutor (or for their removal). It could
not vote on the ICC’s budget. It could not vote on the definition of the crime of
aggression or its inclusion within the jurisdiction of the ICC, when the matter is
considered at first Review Conference, or on any other amendment to the Rome
Statute.
The United States, as a non-party, will have no right itself to refer situations to
the Prosecutor for investigation; as a Permanent Member of the Security Council,
however, it could participate as part of a Security Council referral.255 Similarly, it
could still participate in Security Council requests to the Prosecutor to defer an
investigation or prosecution256 and to the Pre-Trial Chamber to review a decision of
251
Rome Statute art. 123.
252
Id. arts. 112 and 123. States which have signed the Statute or the Final Act are eligible
to participate as observers in both bodies. The Administration’s notification of intent not
to ratify the Statute should have no effect on eligibility, although it may signal an intent not
to participate.
253
U.N. Doc., PCNICC/2001/1/Add.4, Draft Rules of Procedure of the Assembly of States
Parties Jan. 8 (2002) (hereinafter “Draft Assembly Rules”).
254
The United Nations has a standing invitation to participate as an observer. Draft
Assembly Rule 35. It may also propose items for the agenda. Draft Assembly Rule 11.
255
Rome Statute art. 13. Non-parties might also be able to provide information to enable the
Prosecutor to initiate a self-referred investigation, but would have no official role in
advocating prosecution.
256
Id. art. 16.
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the Prosecutor not to investigate or prosecute.257 As a non-party to the treaty, the
United States could, but would not be obligated to, cooperate with the ICC in its
investigation and prosecution of crimes within its jurisdiction;258 and under the
Statute, it could, but would not be obligated to, arrest a person named in a request for
provisional arrest or for arrest and surrender from the ICC.259 The U.S. would also
retain the right not to provide information or documents the disclosure of which
would prejudice its national security interests260 and to refuse to consent to the
disclosure by a state party of information or documents provided to that state in
confidence.261 Finally, as a non-party, the U.S. would not be under any obligation to
contribute to the budget for the ICC, except, perhaps indirectly, to the extent that the
U.N. General Assembly contributes to its support.262
Political Implications.
Perspectives differ on the impact of the ICC on U.S. interests, once it begins
operation. Some see the ICC as a fundamental threat to the U.S. armed forces, its
political leaders, and U.S. defense and foreign policy.263 Others see it as a valuable
foreign policy tool for defining and deterring crimes against humanity, a step forward
in the decades-long U.S. effort to end impunity for egregious mass crimes. Debate
over the ICC has brought out a tension between enhancing the international legal
justice system and encroaching on what some countries perceive as their legitimate
use of force. The review by the International Criminal Tribunal for the Former
Yugoslavia (ICTY) of allegations that NATO bombing in Kosovo might be deemed
a war crime is illustrative of this tension. Many opponents of the ICC and members
of the U.S. military were outraged that the issue was even considered. They
questioned the legitimacy of the tribunal’s actions, and their anger was not assuaged
by the Tribunal’s ultimate decision that there was “no basis for opening an
investigation into any of those allegations or into other incidents relating to NATO
bombing.”264 While opponents of the ICC interpret this event as an indication that
the ICC is likely to pursue spurious and politically motivated cases against U.S.
citizens, proponents of the ICC see it as illustrating that similar unfounded
allegations would be dismissed by the ICC Prosecutor.
The United States has often been a leader in the struggle against impunity and the
quest for peace, justice and human rights. The United States led the world
community in calling for establishment of the ad hoc tribunals for the former
257
Id. art. 53.
258
Id. arts. 86, 87, and 93.
259
Id. arts. 59 and 89.
260
Id. art. 72.
261
Id. art. 73.
262
Id. art. 115.
263
See Casey, supra note 62, at 849-50.
264
See Final Report to the Prosecutor by the Committee Established to Review the NATO
Bombing Campaign Against the Federal Republic of Yugoslavia, available at
http://www.un.org/icty/pressreal/nato061300.html.
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Yugoslavia and Rwanda. Supporters of the ICC argue that it could be the ultimate
symbol of enforcement of basic human rights norms. Such countries, which include
a number of U.S. allies, might view the true test of the U.S. commitment to
international and universal concepts of justice and human rights to be its willingness
to be bound by the rules established for others. From this perspective, despite the
Administration’s asserted intent to continue U.S. leadership in supporting human
rights through means other than the ICC,265 the U.S. refusal to ratify the Rome Statute
could undermine the status of, and others’ regard for, the United States as a
proponent of human rights.
Others, however argue that despots like Cambodia’s Pol Pot or Iraq’s Saddam
Hussein have not weighed possible future legal ramifications before committing
massive crimes.266 In their view, establishment of the ICC might have the effect of
hardening the resolve of ruthless tyrants who may feel they have nothing to gain by
giving up their power to more democratic or less ruthless regimes – as General
Pinochet did in Chile or Duvalier in Haiti. The critical element from this perspective
is simply the treaty’s entry into force, not whether the U.S. ratifies it, other than
perhaps to provide support to an argument challenging the legitimacy of the ICC.
U.S. allies, such as France and Canada, which also deploy forces abroad in
peacekeeping and other interventions, initially shared U.S. concerns about the ICC’s
ability to judge the actions of their nationals particularly with regard to use of force.
During negotiations, these countries concluded that the ICC’s larger value
outweighed any potential risk posed to their nationals or foreign policy. While some
Americans fear the ICC could be used for political purposes, many U.S. allies see
the ICC as more limited. In their view, the ICC would intervene to prosecute crimes
of genocide, crimes against humanity, and war crimes only when a country fails to
try its own citizens for committing such acts. Some countries are adopting war
crimes provisions as part of their own domestic laws with the thought that the ICC
would never be called on to intervene. For example, France amended its constitution
before ratifying the Rome Statute.267
For the U.S. government, the situation appears to be more complicated. With
several hundred thousand persons stationed abroad, often involved in undertakings
that might be subject to allegations of war crimes, the United States is particularly
cautious. U.S. military leaders are especially concerned that countries that do not
ratify the ICC treaty could consent to the ICC’s jurisdiction over foreign
peacekeeping troops for crimes committed on their territory, while declining to allow
265
See Grossman, supra note 6. However, some predict that once the ICC begins to operate,
future ad hoc tribunals are not likely to be created, which may effectively limit the means
available to support such an effort.
266
The International Criminal Court: Hearing Before the House Committee on International
Relations, 106th Cong. 4 (2000) (prepared testimony of John Bolton, Senior Vice President,
American Enterprise Institute).
267
See Appendix I – the French Solution to Constitutional Issues in the International
Criminal Court: Manual for the Ratification and Implementation of the Rome Statute at the
Canadian government’s website on the ICC (http://209.217.98.79/english/10_guide_e
/10_guide_e.htm).
CRS-44
the ICC to try the persons responsible for whatever atrocities brought peacekeepers
there in the first place.268 Concern about U.S. citizens being tried by the ICC stem
from an underlying fear that a politicized court could be used by hostile states as a
vehicle for challenging U.S. foreign policy. Given that the ICC could exercise
jurisdiction over U.S. citizens in some situations even if the U.S. does not ratify the
treaty, these concerns seem likely to persist even if the U.S. remains a non-party.
Congressional Action
Congress has passed several riders effectively precluding the use of funds to
support the ICC.269 The fundamental issue for Congress is whether to pass legislation
to actively oppose the ICC, or whether to adopt a more benign approach aimed at
encouraging the ICC to develop in a manner conducive to U.S. policy aims. There
are currently two bills in Congress adopting the first approach, and one taking the
second tack. The House of Representative added a rider to the Bob Stump National
Defense Authorization Act for Fiscal Year 2003, H.R. 4546, expressing the sense of
the Congress that “none of the funds appropriated pursuant to authorizations of
appropriations in this Act should be used for any assistance to, or to cooperate with
or to provide any support for, the International Criminal Court.” 270 Additionally, the
Administration may ask Congress to pass legislation to close jurisdictional gaps in
U.S. criminal law in order to ensure U.S. territory does not become a safe haven for
those accused of genocide, war crimes, and crimes against humanity.271
American Servicemembers’ Protection Act of 2001.
The American Servicemembers’ Protection Act (ASPA) was originally
introduced in the 106th Congress as S. 2726. The proposed legislation is intended to
shield members of the United States Armed Forces and other covered persons from
the jurisdiction of the ICC. The Senate Committee on Foreign Relations held
hearings272 the same day the bill was introduced but did not report it. The ASPA was
reintroduced in the 107th Congress as S. 857 on May 9, 2001. An amended version
was introduced as S. 1610 on November 1, 2001.
268
See Scheffer, supra note 14, at 73 n.94.
269
See Department of Defense Appropriations for 2002, P.L. 107-117.
§ 8173. None of the funds made available in division A of this Act may be used to provide
support or other assistance to the International Criminal Court or to any criminal
investigation or other prosecutorial activity of the International Criminal Court.
See also Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 2002 § 630, P.L.107-77.
270
H.R. 4546 § 1034.
271
See Grossman, supra note 6.
272
The International Criminal Court: Protecting American Servicemen and Officials from
the Threat of International Prosecution, Hearing before the Senate Comm. on Foreign
Relations, 106th Cong. (2000).
CRS-45
Two versions of the ASPA have been passed by the House of Representatives.
The first is contained in the Foreign Relations Authorization Act, Fiscal Years 2002
and 2003, H.R.1646, Title VI, subtitle B. The Senate amended version of H.R. 1646
does not include the ASPA. H.R. 1646 is in conference at the time of this writing.
The second version was passed as Title II of the supplemental appropriations bill for
the fiscal year ending September 30, 2002, H.R. 4775.
The Senate also passed a version of the ASPA, as part of the Departments of
Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations
Act, 2002, HR 3338, but it was replaced in the enacted law with language prohibiting
spending to support the ICC.273 Title II of H.R. 4775 is substantially similar to S.
857 (H.R. 1794), and would repeal the provision passed as part of H.R. 3338. Title
VI, subtitle B of H.R. 1646 is summarized below, followed by a description of the
additional language contained in Title II of H.R. 4775.
The ASPA would prohibit cooperation with the ICC on the part of any agency or
entity of the federal government, or any state or local government. (Sec. 634)
Covered entities are prohibited from responding to a request for cooperation by the
ICC or providing specific assistance, including arrest, extradition, seizure of property,
asset forfeiture, service of warrants, searches, taking of evidence, and similar matters.
It prohibits agents of the ICC from conducting any investigative activity on U.S. soil
related to matters of the ICC. Sec. 634(d) states that the United States “shall exercise
its rights to limit the use of assistance provided under all treaties and executive
agreements for mutual legal assistance in criminal matters ... to prevent ... use by the
[ICC of such assistance].” It does not ban the communication to the ICC of U.S.
policy or assistance to defendants. Sec. 636 requires the President to put “appropriate
procedures” in place to prevent the direct or indirect transfer of certain classified
national security information to the ICC.
The ASPA would further restrict U.S. participation in U.N. peacekeeping
operations to missions where the President certifies U.S. troops may participate
without risk of prosecution by the ICC because the Security Council permanently
exempted U.S. personnel for prosecution for activity conducted as participants, or
because each other country participating in the mission is either not a party to the ICC
and does not consent to its jurisdiction, or has entered into an agreement “in
accordance with article 98" of the Rome Statute.274 It also prohibits military
assistance to any non-NATO country that is member of the ICC, unless the President
waives the restriction (Sec. 637).
Sec. 638 authorizes the President to use “all means necessary and appropriate”
to bring about the release of covered United States and allied persons,275 upon the
273
P.L. 107-117 § 8173. See supra note 269.
274
Rome Statute art. 98 prohibits the ICC from pursuing requests for assistance or surrender
that would require the requested state to act inconsistently with its international obligations.
275
“Covered allied persons” includes military personnel, elected or appointed officials, and
other persons working for a NATO country or a major non-NATO ally, which includes
Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea, and New Zealand,
(continued...)
CRS-46
request of the detainee’s government, who are being detained or imprisoned by or on
behalf of the ICC. The Act does not provide a definition of “necessary and
appropriate means” to bring about the release of covered persons, other than to
exclude bribes and the provision of other such incentives. The language could
arguably be interpreted to authorize the use of armed force to conduct rescue
operations to free some prisoners charged with war crimes, genocide, or crimes
against humanity.
The President may waive the restrictions on participation in peacekeeping
operations and providing military assistance for a renewable period of one year after
notifying appropriate congressional committees of his intent to do so and reporting
that the ICC has entered into a binding agreement that prohibits it from exercising
jurisdiction over covered U.S. and allied persons (from certain countries for so long
as those countries have not ratified the treaty). (Sec. 633) The President may also
waive some requirements with respect to a specific “named individual,” if there is
reason to believe the named individual is guilty of the charge, it is in the national
interest of the United States for the ICC to prosecute the person, and that during the
investigation, no covered U.S. or allied person will be arrested, detained, prosecuted,
or imprisoned by or on behalf of the ICC with regard actions taken in their official
capacities.
H.R. 4775. The version of the ASPA included in H.R. 4775 (which is
substantially similar to the Senate amended version of HR 3338) contains an
additional exception at section 2011, stating that the restrictions on cooperation with
the ICC (sec. 2004 of H.R. 4775) and protecting classified information (sec. 2006)
do not apply to “any action or actions with respect to a specific matter taken or
directed by the President on a case-by-case basis in the exercise of the President’s
authority as Commander in Chief of the Armed Forces of the United States under
article II, section 2 of the United States Constitution or in the exercise of the
executive power under article II, section 1 of the United States Constitution.”276 The
section would require the President to notify Congress within 15 days of the action,
unless such notification would jeopardize national security. It further clarifies that
“nothing in [the] section shall be construed as a grant of statutory authority to the
President to take any action.” Sec. 2012 prohibits delegation of the authorities vested
in the President by secs. 2003 (waiver provision) and 2011(a) (constitutional
exception).
Inasmuch as sections 2004 and 2006 are already subject to presidential waiver
under section 2003(c) in the case of the investigation or prosecution of a “named
individual,” it appears that this section is drafted to avoid possible conflicts of the
275
(...continued)
or Taiwan, “so long as that government is not a party to the International Criminal Court and
wishes its officials and other persons working on its behalf to be exempted from the
jurisdiction of the [ICC].” Sec. 642(3). Covered allies currently could include persons from
the Czech Republic, Turkey, Australia, Egypt, Israel, Japan, the Republic of Korea, and
Taiwan. (Of these countries, only Turkey, Taiwan, and Japan have not signed the Rome
Statute.)
276
H.R. 4775 § 2011; see also S. 1610 § 11.
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separation of powers between the President and Congress. In the event that the
President takes the position that the prohibitions of sections 2004 and 2006 infringe
upon his constitutional authority in certain cases, he might assert that Congress has
no power even to require a waiver under section 2003. Section 2011 appears to
ensure notification of Congress, at least at some point after the action has been taken,
regardless of whether the President believes that sections 2004 and 2006 impinge his
constitutional authority.
The effect of sec. 2011 is not entirely clear, depending as it does on the
interpretation of the President’s executive powers under article II, section 1 of the
Constitution and his authority as Commander in Chief of the Armed Forces.
Interpreted broadly, the constitutional executive power includes the power to execute
the law, meaning the execution of any law, whether statutory or constitutional, or
even international law. Such an interpretation would seem to render the waiver
provision of sec. 2003(c) superfluous. Interpreted narrowly, the executive authorities
cited above could refer to those powers which the President does not share with
Congress. Under a narrow interpretation, Congress would be deemed to be without
authority to regulate such actions in any event, in which case it would appear to make
little sense to restrict its application to sections 2004 and 2006. The language could
be construed by a court to imply a waiver authority apart from the restrictions
outlined in section 2003.
The American Servicemember and Citizen Protection Act of 2002.
The American Servicemember and Citizen Protection Act of 2002, H.R.4169,
introduced April 11, 2002, issues findings that under the U.S. Constitution and
international law, the President’s signature on a treaty without ratification by the
Senate is not binding on the United States, and that therefore the ICC Statute has no
validity with respect to U.S. The bill proclaims the Rome Statute to be “ultra vires”
(sec. 2(9)) and in violation of international law, the American Declaration of
Independence, and the Constitution (sec. 2(12)). It also urges the President to rescind
the U.S. signature and take steps (sec. 3) to prevent the establishment of the ICC.
Sec. 4 prohibits the expenditure of funds for use in any manner for the “establishment
or operation of the [ICC]” (with a penalty of 5 years or $50,000 for violations, sec.
6). Sec. 5 provides that actions against U.S. soldiers shall be considered to be an act
of aggression, and actions against other U.S. persons shall be considered “to be an
offense against the law of nations.”
The American Citizens’ Protection and War Criminal Prosecution Act
of 2001.
This bill, S.1296 (H.R. 2699), seeks a more conciliatory approach to the ICC,
providing that the President should certify that the ICC “has established a demonstrated
record of fair and impartial prosecution of genocide, war crimes, and crimes against
humanity” before the Rome Statute is submitted to the Senate for its advice and
consent. (Sec. 10). Sec. 4 provides a sense of the Congress that the United States
should “maintain a policy of fully supporting the due process rights of all United States
citizens before foreign tribunals, including the [ICC]”. It recommends the U.S.
government participate as an observer in the Assembly of States Parties in order to
CRS-48
protect and further U.S. interests. Sec. 8 requires the President to ensure appropriate
procedures are in place to protect national security information.
Sec. 5 prohibits the United States from taking any action to extradite U.S. citizens
and servicemembers to the ICC if the accused is investigated or prosecuted in a U.S.
court, and urges the United States to exercise its right to assert jurisdiction over such
persons (to invoke complementarity), unless the President determines it is not in the
national interest. If a U.S. citizen is prosecuted by the ICC, the President “shall use
appropriate diplomatic and legal resources to ensure that such person receives due
process ...” and provide whatever exculpatory evidence may be available to assist the
accused. Sec. 7 authorizes support to the ICC on a case-by-case basis if such support
would serve important U.S. interests, particularly if the victims of the crimes alleged
are citizens of the United States or friendly countries.
The bill contains a number of reporting requirements for assessments of the
operation of the ICC and its effects on U.S. interests. Sec. 6 outlines reporting
procedures, requiring the President to compare due process protections afforded to
persons before the ICC to those afforded U.S. servicemembers under status of forces
agreements, and to bilateral or multilateral extradition treaties. Sec. 5 requires the
Administration to conduct a study to determine what statutory amendments may be
necessary to close jurisdictional gaps in the criminal code or Uniform Code of Military
Justice. Sec. 9 requires a report on command arrangements that could place U.S.
servicemembers at risk of prosecution by the ICC and measures taken to mitigate the
risks.
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