Brad Loberg

Seminar Paper

Spring 2006    



The Balance of Justice: Can the U.S. Afford To Share the International Criminal Court’s Interest in Bringing Humanity to the Inhumane



Democracies are specifically governed by law and not men.  This meager concept placates individual concerns of potential monarchical or, more likely in our day and age, autocratic rule.  In the end, the whims of power and prestige must always adhere to words devised and approved by the people.  Because of its ultimate importance, much has been written of the nature of the law, the form in which it exists, and how it functions as a mechanism of governance and social control.  Does law exist of its own accord or is it inextricably linked to a higher moral order?  Is the finite nature of law eroded by its application by judges who, notwithstanding their grandiose protestations, are physiologically incapable of “self-abnegation”?  And simply, as Anatole France ironically posited in the eighteenth century, because the law famously bars the rich and the poor alike from stealing bread and sleeping under bridges, is the law just?

Similarly, much has been written about the U.S.’s stance toward the International Criminal Court (ICC), and how its failure to adopt or accept the jurisdiction of an international criminal tribunal may weaken the already waning acceptance of U.S. international altruism.  Concerning the theme of the American zeitgeist, literature following the collapse of the Soviet Union up to 9/11, probably best described as (far) left of center, from the likes of Chomsky, Zinn, and Chalmers Johnson certainly raise that specter of a government, while safely employing rhetoric straight from the Cliffs’ Notes to Orwell’s “Party Politics and the English Language”, secretly comprised of xenophobes, imperialists, and buccaneers rather than liberal humanitarians.  Since 9/11 a cavalcade of similar brogue has followed, with an equally vitriolic retort from the (far) right laden with peals of nationalistic brio, moral righteousness as both beginning and end, and the propriety of the corporate welfare state.  Somewhere near the (far) center are those who recognize that the slim, gray area between fascism and socialism is difficult terrain to negotiate and the circumstances of the moment can sway governmental prerogatives in either direction.  They have concerns over U.S. safety, desire to “be the good guy,” and wish only to celebrate global prosperity while perched comfortably in Smith’s invisible hands, praying that the great economist chooses not to applaud the effort.      

Where the concern was once of powerful men ruling despotically in the domestic sphere, can it now be said that the international concern is of a powerful, despotic nation ruling the international sphere?  Does the U.S.’s failure to adopt an international treaty and its actions to employ other treaties to undermine the ICC reveal our hidden ace of spades that our long-sleeved rhetoric has so adeptly concealed?  While the law may be above all men, the U.S. has declared, repeatedly, that it is not above all nations.  If the ICC was designed by the international community (Europe primarily) with at least an eye toward creating a potential check on US global military and economic hegemony, the US has shirked it with all the subtle grace of a Michael Moore documentary.  While the policy issues have been addressed, what is to be said of US respect for international law specifically and, more importantly, those grand notions of the law that it so readily espouses?  If Nazi Germany raised doubts about the modernist application of positive law, what does the United States’ extraordinary military, economic, and political power throughout the entire world suggest about the international rule of law generally? 

To provide context, this paper will briefly address the subject matter jurisdiction of the International Criminal Court, but will focus essentially on the personal jurisdiction of the Court over U.S. citizens of a military, governmental, and clandestine operational persuasion.  Further, this paper will recognize both the purported and likely rationale for U.S. refusal to accept ICC jurisdiction, and evaluate the modes by which the U.S. has sought to undermine the Rome Statute.  Finally, this paper will address sovereignty and representational concerns about the ICC and consider the U.S.’s dichotomous treatment of law within the domestic and international spheres.  With a few none-to-outlandish hypotheticals, this paper will argue that the U.S. refusal to recognize the ICC is motivated by the recognition that an international forum with the jurisdiction to access guilt of war crimes, crimes against humanity, and genocide could manufacture the means to declare unlawful not the actions of individual Americans, but of broad U.S. policy in the post-Cold War era.  While uniformed servicemen carrying out military action, humanitarian or otherwise, are amply recognized and protected by the Rome Statute, the ICC will have the authority to expose clandestine operators carrying out unannounced U.S. foreign policy objectives and could subject U.S. leaders to criminal sanctions should those actions be deemed international crimes.    

There is simply no way to take a centrist position toward the U.S.’s potential obligations toward the ICC.[1]  From one perspective, the question could be as finite as to join or not to join.  Of course, the U.S. has no legal obligation to sign any international treaty.  From a realist perspective, nations act to protect their interests and, as such, whether the U.S. should sign the Rome Statute is, from some perspectives, simply a matter of considering how membership in the ICC affects U.S. interests.  In that sense, the elite foreign policy establishment in the U.S. is correct—membership in the ICC, or the simple existence of certain jurisdictional capabilities of the ICC threaten the U.S.’s ability to extend its military, economic, and political might with the relative impunity afforded an unopposed superpower. 

Contrarily, the international human rights NGO establishment believes that U.S. political interests, due to its stance as the world’s greatest democracy, should necessarily complement the interest of safeguarding mankind from its often ignoble nature.  They argue that the Rome Statute incorporates safeguards satisfactory to protect U.S. military interests, and will otherwise do a great service to the task of bringing human rights violators to justice.  Seemingly, the question of ICC membership concerns whether the Rome Statute satisfactorily protects U.S. interests, whether the U.S. military peacekeeping obligations place it in such a position that it should not be required to subject itself to potentially politically motivated international criminal prosecutions, whether it is politically prudent to legally declare the U.S. above international criminal responsibility, and whether the circumvention of the ICC with U.S. legal blitzkrieg offends notions of the rule of law and renders a valuable institution a mere Maginot Line.      

Many consider the U.S.’s stance toward the ICC to be a dead issue.  The Court was created in 1998 and ratified in 2002 at which point the matter was contentiously debated.[2]  Since that initial salvo and with the emergence of the Bush administration’s clear disregard for the court, the matter has idled.  While this is so, a number of circumstances are pushing the issue back into the limelight.  Foreign Policy magazine recently ran an article debunking arguments in support of the court.[3]  In 2009, parties to the Rome Statute will reconvene to discuss and implement changes to the statute, which could be of great interest to the U.S.[4]  On April 10, 2006, the European Union and the ICC signed an agreement on cooperation and assistance that solidifies European support for the Court, which, contrasting American actions, pushes the Europeans into the vanguard of international humanitarianism.[5]  Without regard for U.S. efforts to railroad the Court, the arrest of Thomas Lubanga, the Court’s first, shows that it is ready to proceed with its mission without the support of the world’s lone superpower.[6]  U.S. anti-ICC animus will surely be regarded as a means of hoisting itself upon its own petard.  It is in the U.S.’s interest to become as State Party to the Rome Statute.  Should protections provided U.S. servicemen by the Rome Statute remain unsatisfactory, the U.S. should nonetheless remain cordial with the Court in order to participate in formulating its operational basis.  

There are ample protections for uniformed American service members and there is no basis for the ICC to challenge the announced foreign policy of the U.S.  Contrarily, the ICC jurisdictional protections for uniformed troops and announced policy do not extend to clandestine operators carrying out unannounced policy.  These clandestine mechanisms are purportedly enacted in the interest of national security and to protect the American people from having to turn their heads from the idyllic sunny day of freedom and prosperity to face the storm cloud of demons seeking their ultimate destruction.  For a government so adamant about the interests of American Constitutional sovereignty, actions taken without the knowledge (or at least unknowing complicity) of the American people are the essence of hypocrisy, can have no place in a democracy, and cannot serve as rationale to defy both the interest of the American people and the international community in bringing human rights violators to justice.  It is for this reason that the Bush administration’s arguments against the ICC appear no more robust than its rationale for the mode it has chosen to engage the “war on terror.”[7]

I.                    The Rome Statute: The Subject Matter Jurisdiction of Article Five   



The Rome Statue, as drafted in 1998, inaugurates and authorizes the International Criminal Court.[8]  First, the ICC has jurisdiction over the crime of genocide, which is defined in Article 6 of the Rome Statute.[9]  The phrasing of Article 6 is taken largely from Article II of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948.[10]  Second, crimes against humanity, defined in Article 7 of the Rome Statute, are also within the jurisdiction of the ICC and the definition of such crimes is taken from widely accepted norms of international law, but is broader in scope than the crimes defined in the Statutes authorizing modern ad hoc criminal tribunals.[11]  Third, war crimes are within the jurisdiction of the Court and are defined in Article 8 of the Rome Statute.[12]  Generally, the war crimes defined in Article 8 are grave breaches of the 1949 Geneva Conventions, 26 other violations of laws and customs of warfare, and some intrastate violations.[13]  Fourth, the ICC recognizes the potential to claim jurisdiction over the crime of aggression at such a point that that crime can be fully defined.[14] 

Each of these crimes is incorporated and defined from widely accepted and long-standing norms of international law.[15]  The ICC does not stand as a body sanctioned to define and adjudicate any new crimes, but only to serve as a permanent body capable of establishing precedent necessary to bring standards to international law capable of subjecting humanity’s worst criminals to justice.  Along with the ironical trumpet blasts of “never again,” ad hoc tribunals, beginning with Nuremberg, have emerged as necessary in response to barbarous acts, but there has been neither a comprehensive body of law created nor an institution capable of administrating the disparate sources of international law.

Evildoers, if hailed into an ad hoc tribunal, have little difficulty impugning the standing of the court as based solely on winner’s justice apportioned by their political enemies.[16]  With vastly improved methods of communication and a global society becoming heavily reliant on a stable international system of trade, the need for a strong, permanent court is apparent.  This is particularly so in the post-Cold War era where the absence of dual superpowers with an interest in maintaining friendly governments in satellite nations has created an atmosphere where power hungry barbarians do not fear the grist mill of one or the other power and, similarly, cannot be financially placated by playing one off the other. 

The question for all nations, the U.S. in particular, is how the power of personal jurisdictional of the ICC is to operate in conjunction with the existing territorial jurisdiction of the nation-state.  The U.S. refused to sign the Rome Statute not because of the subject matter of the ICC, but because of the potential reach of the ICC over U.S. uniformed servicemen, other U.S. nationals, and the Court’s potential ability to sit in judgment of U.S. policy.     

II.                 The Personal Jurisdiction of the ICC


Article 13 of the Rome Statute grants the ICC three modes of obtaining personal jurisdiction over those allegedly committing Article 5 crimes.[17]  The ICC obtains its broadest power when the matter is referred by the U.N. Security Council in conjunction with Chapter VII of the U.N. Charter.[18]  In this scenario, the ICC can claim jurisdiction over anyone, anywhere regardless of his or her nationality or whether the territory where the crime allegedly occurred is under the territorial jurisdiction of a signatory to the Rome Statute.[19]  The U.S. delegation to the Rome Conference (where the Statute was debated) wanted this to be the sole means of ICC jurisdiction.[20]  The U.S. veto power within the Security Council would provide complete protection from jurisdiction over U.S. nationals, and powerful nation-states would cede essentially no power to an international body.  As a surprise to some, both the U.S., who has openly opposed the ICC, as well as Russia and China, who had been only lukewarm toward the Court, did not veto the referral of the situation in Darfur, Sudan to the ICC.[21]

            The second mode by which the ICC can obtain jurisdiction is through referral to the ICC by a signatory to the Rome Statute.[22]  This power, described in Article 14(1), essentially allows a state that controls territory where an Article 5 crime allegedly occurred to recommend the matter to the ICC.   The third mode of ICC jurisdiction, which the U.S. does not favor, is through an independent proprio mutu investigation initiated by the ICC prosecutor.[23]  This jurisdictional mode, described in Article 15, requires approval by the governing Pre-Trial Chamber, and is a power that many believe will be exercised only when a state where the Section 5 crime allegedly occurred is incapable or refuses to prosecute.[24]

The heart of U.S. concern over the personal jurisdiction of the ICC is described in Article 12, which states preconditions to the exercise of ICC jurisdiction.  In this section, the Rome Statute essentially declares that the ICC can maintain jurisdiction over nationals of non-signatory states if the alleged Article 5 crime is committed within the territorial jurisdiction of a signatory state.[25]  In the absence of a contrary obligation, a signatory state can recommend an alleged Article 5 crime to the ICC in any situation where that nation would have the right to exercise its universal territorial jurisdiction over non-signatory nationals, which, in the abstract, includes military personnel.[26]

III.               U.S. Concerns With Section 12 Authority

President Clinton, a strong proponent of the ICC in its organizational stage, eventually recommended that the Senate vote against signing the treaty because of the potential ramifications to U.S. foreign policy and military capability.[27]  While the Statute was signed, the Bush administration came to power, and through executive order, ‘unsigned’ the treaty.[28]  When the British, who had originally joined the U.S. in protest against the ICC, signed the statute on November 30, 1998 and ratified it on October 4, 2001, leaving the U.S. as the only Western democracy to refuse to support the ICC.[29]  Douglas Edlin has posited that the difference between British acceptance of the ICC and U.S. standoffishness can be best discerned by looking to the broad British acceptance of the European Union, an international umbrella authority, and the U.S.’s absolute refusal to submit to an empowered United Nations.[30]  This comparison can be extrapolated through consideration of the difference between U.S. and British conceptions of national sovereignty, which the U.S. government and foreign policy scholars have recognized as a chief problem with the ICC. 

a.        Law of Treaties

The U.S. has declared that the ICC, because it binds non-signatory parties through Article 12, is against customary treaty law per the Vienna Convention on the Law of Treaties.[31]  The U.S. makes this claim somewhat hypocritically because it is party to a number of such treaties, most notably the U.N. Charter, the Geneva Conventions, and international anti-terrorism conventions, which all grant signatories jurisdiction over the nationals of non-signatory states.[32]  Second, the U.S. has forced Serbia and Montenegro to submit to the International Criminal Tribunal for the former Yugoslavia (ICTY) where those nations have not agreed to respect the jurisdiction of an international tribunal.[33]  It is notable that the ICTY is a so-called ‘victor’s justice tribunal’ and the ICC will stand as a permanent body capable of addressing Article 5 crimes of winners of military campaigns as well as the losers.  This difference, while substantial, does not grant the U.S. the legal right to press some nations into the servitude of the international community, while claiming special privileges for itself. 

The very nature of the Rome Statute highlights the propriety of the treaty per the terms of the Vienna Convention.  Article 35 of Vienna expressly bars any treaty from binding non-signatories.[34]  Because the Rome Statute does not subject non-signatories to any new liability or new international responsibility, it does not violate Vienna.  The jurisdiction of the ICC is complementary to the various national territorial jurisdictions of the signatory states.[35]  In the absence of a supervening treaty, nationals of non-signatory states committing Article 5 crimes on foreign territory would be subject to the jurisdiction of that nation.[36]  As such, the only function of Rome Statute and the ICC is to create a new forum to exercise the pooled jurisdiction of the member states.[37]  This is not a new phenomenon; under international norms, crimes jus cogens or erga omnes, as all Section 5 crimes could be classified, potentially grant subject matter jurisdiction to any competent adjudicative authority and may grant standing to any party willing to try the alleged criminal.[38]  As such, it could be argued that the very nature of Section 5 crimes as specifically against broad social norms rather than mere individual rights may mean that the ICC, like any other competent adjudicative body, has had the right to try perpetrators of these crimes.  In that light, the creation of the ICC is nothing but a new building rather than a new mode addressing international criminal law.  That the nation chooses to transfer its sovereign jurisdiction to a umbrella organization more adept at prosecuting individuals for the most heinous crimes has no bearing on the ultimate fate of nationals of non-signatory states.

b.        Sovereignty

With the advent of the ICC, “for the first time in U.S. history, an institution outside the [U.S.] government would have the ultimate authority to judge the policies adopted and implemented by the elected officials of the [U.S.]—the core attribute of sovereignty and the sine qua non of democratic self-government.”[39]  This is certainly a valid formalistic concern, but perhaps sublimates with the focus of a more realist lens.  There is nothing inherently ‘ultimate’ about the power of a criminal court to make political judgments.  Should the matter arise, it is indeed possible that U.S. policy may serve as evidence, but it is unlikely that such a forum, simply because it possesses the power to make findings of individual criminal guilt, will have any authority to impugn U.S. policy to an extent greater than a media outlet or foreign government.  Yet, what concerns the U.S. is the nature of the forum in question, one that is not politically accountable and cannot be coerced to act or not act through stick and carrot political, economic, and military encouragement.  Further, should the U.S. join the ICC, the act would simply be that of representative government that would be validated or invalidated through the political process.  “Sovereignty does not arise in a vacuum, but is constituted by the recognition of the international community, which makes its recognition conditional on certain standards.”[40]  Similar to American democracy’s operation as a mechanism to exchange liberty for security and autonomy, the ICC can be viewed “as the relinquishment of a measure of sovereignty in exchange for security and international respect in a global context.”[41]

IV.              Palliatives to U.S. Concerns: Supervening Treaties and Admissibility Protect Certain Classes of Non-Signatory Nationals.

Like the aforementioned jurisdictional respect of nation-states for supervening treaties, the ICC respects certain national treaty obligations to the extent that the signatory nation chooses to establish them.[42]  The ICC cannot maintain jurisdiction over individuals who allegedly committed Section 5 crimes, but who, because of their position, fall under a treaty which obligates a signatory state to act in a contrary fashion.[43]  The prime examples of these treaties, which address a chief U.S. concern with the ICC, are the Status of Forces Agreements (SOFAs) that the U.S. has signed with various nations hosting U.S. troops.[44]  The U.S. has validly cited its unusual role within the international community.[45]  It maintains a number of military forces on foreign soil and, because of its stance as the lone superpower, has obligations in the world that other nations could not and are not asked to meet.[46]  The risk of politicized prosecutions before the ICC is real and members of the U.S. military, if accused of Section 5 crimes, could fall under the jurisdiction of the ICC. 

For the time being it can be assumed for argument’s sake that U.S. military impunity must necessarily maintain primacy over bringing U.S. nationals to justice for committing Section 5 crimes.  The political nature of this assumption places it somewhat outside of the purpose of this paper.  Yet, even putting politics aside, the ICC recognizes the special role of uniformed soldiers and provides adequate protections for military forces stationed on foreign soil.  

Due to the insistence of the American delegation to Rome, Article 98 of the Rome Statute reads,

The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.[47] 


Article 98 specifically considers the global responsibility claimed by the U.S. uniformed military to act in furtherance of peace and stability.  Any time a foreign nation seeks the aid of the U.S. military, the U.S. government can protect its troops stationed abroad with a SOFA agreement, which can be drawn with a specific eye toward potential ICC jurisdiction.  Article 98(2) respects these agreements and places no obligation on its member states to turn over individuals allegedly committing Article 5 crimes, where a supervening agreement details pre-existing responsibilities.  Additionally, Bilateral Immunity Agreements (BIA), which would protect U.S. nationals not covered by SOFA arrangements from ICC jurisdiction can be drawn to offer blanket immunity from ICC jurisdiction.[48] 

            Taken in hand with the jurisdictional concept of “complementarity,” Article 17 of the Rome Statute defines the jurisdictional relationship between the ICC and the territorial courts of signatory states.  The ICC has a positive responsibility to ensure that the matter, as recommended to the court, is jurisdictionally admissible.[49]  A matter is inadmissible where it “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,” or “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.”[50]  “Unwillingness to prosecute,” as stated as a precondition to admissibility is determined by considering whether the proceedings within the national court were conducted for the purpose of “shielding the person concerned from criminal responsibility.”[51]  Where the proceedings suffer from an “unjustified delay” or “are not being conducted independently or impartially,” will be grounds for the ICC to find unwillingness on the part of the national court.

            Each of these U.S. concerns and responses are helpful in the abstract, but consideration of a few ‘real-world’ potentialities further supports the ICC conceptually and shows that the U.S. uniformed military is protected from ICC jurisdiction and the announced policy of the U.S. is unassailable in this forum.  The ICC understands the international need of uniformed peacekeepers and the often opaque conditions of warfare.  With that, it accepts the broad international military responsibilities claimed by the U.S.    


V.                 Scenarios Implicating ICC Jurisdictional Capabilities


Without straining beyond a glance at recent news headlines, a number of hypothetical examples provide a basis to evaluate the potential breadth of the personal jurisdiction of the ICC as well as its ramifications.  Because ‘the war on terror’ is politically ubiquitous and denotatively vague, the U.S. is often left to operate based on a ‘best-guess’ policy and even more often without a clear legal foundation.  With every historical instance of U.S. military intervention, executives, to varying degrees, have rested on their ‘inherent authority’ to carry out actions in the interest of ‘national security.’  The invidious nature of the current enemy, the duality of his far-flung hideouts and his shadowy domestic lurking has offered the U.S. the opportunity to flex its tremendous, unchecked power in these twin spheres.  In pursuing the ‘war on terror’, with language broad enough to empower executive authority to counter a much greater threat, U.S. military power has been applied with questionable legal authority or, at least, in a vacuum of legal authority.

From the artlessly titled, “Shock and Awe,” to the ill-defined role of Abu Ghraib and Guantanamo gatekeepers, to the practice of “extraordinary rendition,” whose horrors in practice can be matched only by its nomenclatural bureaucratic blandness, the U.S. has tested the limits of international law and, while it grimly stomachs the rants of EU giants and domestic op-eds, the U.S. has refused to allow an external legal authority to question its practices.  Hitting the governmental panic button, the ICC provides such an avenue.  Each of the following instances has occurred and each, to degrees, could authorize ICC jurisdiction according to the Rome Statute.

a.       The Invasion of Iraq

Without delving into the international legality or propriety of ‘preventative’ war, the ICC could conceptually claim jurisdiction over the mode by which the U.S. inaugurated the war in Iraq.  Because Section 5 did not define or incorporate the crime of aggression at the time of the U.S. invasion of Iraq, any claim of personal jurisdiction would likely be based on allegations of war crimes.  Saddam Hussein’s Iraq was certainly not a signatory to the Rome Statute and, as such, any claim of jurisdiction claimed by the ICC could not be based on the fact that the crime occurred on signatory territory.  Contrarily, some nations basing U.S. troops that conducted the opening salvo are indeed signatories (such as Jordan) which would allow the court to aver that the crimes occurred within the territory of ICC member states.  Additionally, the UK, Australia, and Poland are signatory states and their participation in the invasion could be brought before the ICC.[52]  These considerations are solely legal rather than practical questions.  The dictates of power, whether lawful or unlawful, heavily influence the jurisdictional calculus of the ICC.  But should the attack have ‘gravely’ contravened the 1949 Geneva Conventions or any of the 26 enumerated crimes under Article 8 of the Rome Statute, their perpetrators could be hailed before the ICC. 

In the days that shortly followed “Shock and Awe,” there were claims that U.S. warplanes intentionally targeted a building known to house members of al Jezeera’s reporting corps.[53]  If these targets were deemed impermissible under the terms of war, those that authorized and conducted the bombing could be called before the Court based on an independent proprio mutu investigation of the Prosecutor.  Thus, a commanding officer on the ground within an ICC member state could potentially be tried for war crimes.  None of this takes into account provisions in the Rome Statute that protect U.S. airmen conducting the decapitating strikes against Iraqi governance and infrastructure as well as the command and control structure of the U.S. military.  Further, Article 17 requires that the ICC admit only those cases where a sovereign nation is unwilling or unable to prosecute behavior that allegedly constitutes Article 5 crimes.  In the case of the bombing of a building known to house only foreign journalists, the U.S. would be unlikely to try its own personnel for acts that are seen from within the military apparatus as only an unfortunate consequence of warfare. 

A trial before the ICC would call into question U.S. procedures for targeting and authorizing attacks and would showcase the scope of U.S. intelligence gathering capabilities and the necessary thresholds that the intelligence must satisfy before conducting strikes.[54]  In the current political climate, though charged, it is unlikely that the ICC would prosecute members of the U.S. military command structure for targeting errors or strikes against potentially unlawful targets.  The ability of the ICC to bring action of the sort will encourage the U.S. to pay careful attention to its exercise of power and encourage the military to incorporate and practice meticulous targeting regimens.  While procedural safeguards of the sort are already in place, the very nature of the vastly asymmetrical conflict presented by the ‘war on terror’ requires a re-evaluation of targeting practices.

The ICC may also be capable of claiming jurisdiction to try members of foreign governments that permitted U.S. sorties launched from its territory.  These claims are likely to fail for practical reasons because, while these states permitted the U.S. military presence, their leaders would not be privy to individual U.S. military targets or exercises and could not be held culpable if the incursion itself were deemed justified.  The ICC currently has no basis to adjudge the legality of an invasion of sovereign territory.

b.      Abu Ghraib

In another ‘hypothetical’, the case of the Abu Ghraib scandal highlights the operation of the ICC’s jurisdictional mechanisms in relation to uniformed U.S. soldiers operating in a theater of war.  Lynndie England was charged and convicted by U.S. military tribunal of crimes evolving out of the well-publicized photographs of inhumane treatment of detainees at Abu Ghraib.[55]  Even with the spiraling news coverage and Congressional hearings detailing the Bush administration’s failure to clearly define the acceptable treatment of detainees and its declarations of the Geneva Conventions as outmoded, England was not permitted to admit evidence that showed her actions as comporting with stated policy.[56]  During the course of that trial, all evidence of following orders through the command structure (including the notorious Taguba report) was barred.[57]

There is a risk that if Lynndie England were hailed before the ICC, there would be greater evaluation of U.S. policy toward treatment of detainees.  The ICC disallows defenses of “following orders,” unless:

(a)    The person was under a legal obligation to obey orders of the Government or      

the superior in question;

(b) The person did not know that the order was unlawful; and

(c) The order was not manifestly unlawful.”[58]

As such, the ICC will consider whether individuals such as Lynndie England were under a legal obligation to obey orders.  This suggests that the ICC will partake of an examination of the policy of the U.S. military toward detainees and the modes by which they may be interrogated under U.S. policy.  While the ICC may conduct analysis of this type (particularly for the political reason of showcasing marginal or illegal U.S. policy), Article 33 would not absolve England of guilt because, “orders to commit genocide or crimes against humanity are manifestly unlawful.”[59]  Regardless, the potential exists within the adjudicative framework of the ICC to evaluate U.S. policy toward detainees, a scenario the U.S. would not appreciate. 

  While so, this scenario is very unlikely because of Article 17 admissibility requirements.  The ICC must cede jurisdiction to a nation that actively seeks prosecution against alleged Article 5 violators.  The case of Lynndie England was quickly prosecuted by the U.S. military in an effort to bring England to justice and to convince the world that the U.S. maintains the best intentions.  Further, because England is regular U.S. military, her actions, in normal circumstances, would be covered by a Status of Forces Agreement (SOFA) or similar arrangement under Article 98(2).  When the Coalitional Provisional Authority turned over sovereignty to the newly convened Iraqi government, it did so in the absence of a SOFA or SOFA-like agreement, which left U.S. forces subject to the default territorial jurisdiction of Iraq.[60]  As of November 17, 2005 it was unknown if the new sovereign nation of Iraq has drawn an Article 98 agreement with the U.S. forces, but the fact that Iraq has no affiliation with the ICC makes the matter somewhat irrelevant.[61]  Iraq has no authority to recommend an alleged Article 5 crime to the ICC because it is not a signatory to the Rome Statute.[62]  Should the ICC wish to prosecute Lynndie England or her future equivalent serving in Iraq it must obtain jurisdiction through other means, either through recommendation by the U.N. through its Article VII authority or an independent investigation of the ICC prosecutor.  The U.S. would certainly veto any attempt to recommend England to the Court and the prosecutor would be barred from instituting a proprio mutu investigation by the operation of Article 17’s admissibility requirements.   

Neither of these scenarios (the policy decisions girding the invasion of Iraq or the England situation) should keep legal scholars and foreign policy aficionados up at night.  Where the matter is one of U.S. policy, whether internationally favored or not, or concerns uniformed soldiers acting within the scope of their authority (even if inappropriately), the ICC will not have the authority to exercise jurisdiction.  In the case of Lyndie England, the U.S. had every political interest in seeing her successfully prosecuted for her acts.  Doing so distanced those acts from U.S. policy. Similarly, where the soldier in question acts outside of his or her authority, such as was the case with the numerous Okinawa rapes, the U.S. has every policy interest in allowing a foreign government the right to prosecute.  Because ‘normal’ crimes like rape and other criminal acts do not fall within the subject matter jurisdiction of the ICC, there is little point in considering personal jurisdiction.  In terms of policy, the ICC cannot deter the U.S. from exercising its military power no matter the opinion of the international community over the timbre of the cause. 

The Stimson Center recognizes the potential peril of prosecutions of military leadership for the use of cluster bombs and landmines, but recognizes that these weapons can be secured with the passage of domestic law to close any loopholes exposed by the Rome Statute.[63]  Additionally, the Stimson Center points to the general risk in warfare of civilian casualties and that the ICC may require the U.S. to justify its targeting intelligence, which, in the long run, may cause the U.S. to be more judicious in its use of force.[64]  The import of this concession is, of course, a matter of taste.  While these tastes are across the board, one former General recognizes that the ICC “adds to the necessity of doing things right.”[65]

While the ICC may impose marginal hurdles for U.S. political and military leadership, they are not insurmountable and careful legal amendments and slight alterations of the rules of applying military force would easily waylay any potentially politically charged ICC prosecution.  On the other hand, the toll exacted on U.S. clandestine operations and unofficial policy could be severe.  It is the impact on these interests that has so irked the current U.S. leadership and led to the introduction of Bilateral Immunity Agreements to protect “all U.S. persons” from prosecution before the ICC.[66]

While the open hostilities in Iraq and Afghanistan are totemic representations of the U.S.’s conduct in pursuing the “war on terror,” the nature of the enemy suggests that the bulk of U.S. security efforts must be undertaken by clandestine or paramilitary personnel and corporate privateers.  Intelligence gathering and operational capacity within foreign states without the color of an official U.S. military presence is essential to discovering the identity of would be terrorists to disrupt their activities.  The authority of the executive to conduct such activity in the interest of national security is broad in the international sphere and is arguably inherent within the office of the executive if not specified in Article II.[67]  While the Constitution and the nature of executive authority allow the executive to act with a great deal of independence in conducting foreign affairs, foreign nations have the sovereign territorial authority to arrest and prosecute U.S. agents committing crimes within their jurisdiction.  Should those nations be signatories to the Rome Statute and should the crimes committed fall within the descriptions of Article 5, that nation could turn U.S. nationals over to the ICC.  It is in this scenario that neither Article 17 admissibility requirements nor Article 98 BIAs will satisfactorily protect U.S. citizens from prosecution before the ICC.  And here is where the foreign policy elite posit concerns over U.S. sovereignty that bleats of U.S. exceptionalism, but fails to recognize that where the U.S. conducts unlawful acts of which the U.S. population is unaware, the ideals of democratic sovereignty have already been sacrificed.  

c.       Extraordinary Rendition

The practice known as “extraordinary rendition” is a fair example of a U.S. action that could subject U.S. personnel to ICC prosecution.  The process, which was used prior to 9/11 on a discrete class of those with outstanding foreign arrest warrants became more widespread and targeted anyone who could be plausibly categorized as an “illegal enemy combatant.”[68]  There are stories detailing the accounts of those, presumably innocents, who, because their names were placed on terrorist watch lists, were abducted by C.I.A. operatives and transported via a private jet owned by a C.I.A. shell company to foreign nations where modes of interrogation permit various forms of torture.[69]  By the norms of personal jurisdiction, many nations could claim territorial jurisdiction over these acts, which could be classified as crimes against humanity under Article 5.  For the purposes of this evaluation, this comment will consider the accounts that many of these suspects were rendered to Uzbek prisons.[70]  The U.S. State Department recognized that these permit unsavory interrogation techniques including, “beating, often with blunt weapons, and asphyxiation with a gas mask.”[71]  Human rights groups independently found that Uzbek jails employ methods including “boiling of body parts, using electroshock on genitals and plucking off fingernails and toenails with pliers.”[72]  While the term ‘war on terror’ is often employed, the conflict between Western democracy and radical Islamic fundamentalism is not a war in the conventional sense and, thus, extraordinary rendition cannot be considered a war crime under Article 8 of the Rome Statute.  Alternatively, if extraordinary rendition could be considered as part of a “widespread or systematic attack directed against any civilian population,” the act could be referred to the ICC under Article 7(1)(e), (f), (i) or (k) as a crime against humanity.[73]  For the purpose of defining crimes against humanity, an “attack directed against any civilian population” means a course of conduct involving the multiple commissions of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”[74] 

            If the act of extraordinary rendition is occurring in the mode and with the frequency reported, it seems the ICC could issue warrants based upon an allegation of crimes against humanity.  Given the hypothetical of Uzbek prisons, U.S. clandestine agents could not be turned over to the ICC at the recommendation of the Uzbek government.  As of November 17, 2005, Uzbekistan, while a signatory to the Rome Statute, had not yet ratified it.[75]  Further and somewhat more interesting for the purposes of this evaluation, Uzbekistan has signed a Bilateral Immunity Agreement (BIA) with the U.S. pursuant to Article 98.[76]  What legal effect will be granted to post-ratification BIAs is of yet largely unknown.[77]  Under the auspices of the American Servicemembers Protection Act (ASPA), by December 2004, the U.S. had signed BIAs with over ninety countries.[78]  Because over forty of these countries are parties to the Rome Statute, the U.S. claims that the very number of the agreements with Rome members serves as evidence of the propriety of BIAs under color of international law and the Rome Statute.[79] The State Department, in announcing two new BIAs by Rome parties, stated that the signing “demonstrates the recognition among States Parties to the [ICC] that Article 98 Agreements are an important mechanism provided for in the ICC Treaty.”[80]

Contrarily, ICC boosters argue that the ICC is granted the authority to determine whether Article 98(2) authorizes the particular BIA.[81]  Because the issue of the international propriety of a BIA as immunizing a particular individual from ICC prosecution “arises in the context of a request for a person to be transferred to the [ICC]... then it will likely be for the [ICC] to determine whether the terms of the [BIA] are compatible with the [Rome] Statute.”[82]  Even more troubling for U.S. arguments concerning the strength of its BIAs, the Rome Statute speaks directly to the point of ICC authority to determine the compatibility of BIAs with ICC jurisdiction.[83]  Because rule 195(1) of the Rules of Procedure and Evidence states, “When a requested State notifies the [ICC] that a request for surrender or assistance raises a problem of execution in respect of Article 98, the requested State shall provide any information relevant to assist the [ICC] in the application of Article 98,” it is clear that the ICC and no nation is empowered to settle conflicts between BIAs and the Rome Statute.[84]  If this were not satisfactory, Article 119(1) of the Rome Statute states, “Any dispute concerning the judicial functions of the [ICC] shall be settled by the decision of the [ICC].”[85] 

As such, if Uzbekistan faced international pressure to turn over U.S. agents responsible for acts of extraordinary rendition, it could notify the Court of its desire to turn over those agents, but that it faced other obligations due to an existing BIA.  Because the matter constitutes a judicial decision, the ICC would have final say over the dispute and would be authorized to determine whether it could accept jurisdiction over the U.S. nationals as recommended.[86]  The U.S. could hypothetically demand that the ICC recognize the principle of complementarity and the adjoining requirements of Article 17 admissibility, but in the scenario of extraordinary rendition it would be very difficult for the U.S. to satisfy the regimen of Article 17 to prosecute its clandestine operatives for acts that were authorized, though unofficially, through state apparatuses.  Representative of this difficulty, Senator Durbin in a statement relating to the larger concerns over interrogation techniques at Abu Ghraib and Guantanamo stated, “I’m concerned that the government isn’t going forward on these prosecutions,” of C.I.A. personnel.[87]

If the ICC felt that the BIA was illegitimate under the Rome Statute because it defeated the purpose of the court, the U.S. would be largely without recourse short of overt hostility.[88]  In making this determination, the ICC would have to review the BIA to determine whether it works in opposition to ICC jurisdiction.[89]  Should the Court determine that the BIA with Uzbekistan is not an “international agreement” as contemplated in Article 98(2), it may not apply and the agreement with Uzbekistan would not permit it to withhold assistance from the ICC.[90]  If the BIA defeats the “object and purpose” of the Rome Statute, Article 98 will not protect U.S. nationals from prosecution.[91]

Because Uzbekistan is not a state party to the Rome Statute and is highly subject to the stick and carrot of international diplomacy, this calculus is rendered somewhat moot.  Article 98 was placed in the Rome Statute as insisted upon by the U.S., but many argue that it serves only to protect the interests of U.S. military personnel as reflected in existing SOFAs and not the broad swath of “all U.S. nationals,” as would be covered by certain BIAs.[92]  Yet, because it is exactly this scenario that the U.S. fears, it has attempted to end-run the problem by using its hegemonic power to economically and politically force nations to agree to withhold U.S. nationals from the ICC.[93]

            Because of Uzbekistani need for U.S. support, the issue may not come to a boil over the issue of secret Uzbek prisons.  But if a nation more adamant about the impropriety of the U.S.’s mode of engaging the Islamic world were to have the opportunity to turn over U.S. agents to the ICC, the situation would be dire.  The practice of extraordinary rendition could yet provide such an avenue if the plane carrying the rendered stopped in a Western European nation to refuel.  Thankfully, there is no need to navigate the niceties of international personal jurisdiction to this meticulous degree because an easy alternative stands at the ready. 

d.      Clandestine CIA Activity

Italy issued 22 Europe-wide arrests warrants for suspected CIA agents suspected of kidnapping an Islamic cleric, Osama Mustafa Hassan, without the permission of Italian authorities and taking him to Egypt for interrogation.[94]  Unlike Uzbekistan, Italy is a State Party to the Rome Statute and refused to sign a BIA with the U.S. notwithstanding Berlusconi’s strong individual support for the U.S.[95]  Similarly unlike Uzbekistan, Italy is not enamored with current U.S. policy, and, because it has a name to make for itself with its E.U. compatriots and stridently anti-U.S. citizens, Italy is not similarly subject to stick and carrot persuasion.  If the act of kidnapping in this instance falls into any of the aforementioned categories of crimes against humanity, Italy could recommend any detained CIA agents to the ICC.  Of course, Italy could try the suspects in its national courts, yet in that scenario the U.S. could use its political machinations to disparage Italy as displaying a failure of heart in the face of a nefarious enemy.[96] 

The ICC, specifically because it pools both the jurisdictions and the international interests of many nations, can refute, in the aggregate, the moral arguments of the lone superpower.  Where this occurs, U.S. policy would certainly come to the forefront and all State Parties would be obliged to assist the ICC in its investigation and prosecution of U.S. nationals.  These are the events the U.S. truly fears and not the confinement of U.S. military personnel, the sovereignty of the U.S., or the insufficient procedural practices of a foreign court.  While media can impugn the policies of the U.S. in the post-Cold War era of terror, it cannot do so with the sanction of international law.  In that sense, the ICC presents a putative danger to U.S. interests only in the sense that it will require it to abide by principles of international law.  The ICC cannot stop the U.S. from acting with impunity, only from acting with impunity without facing international reprobation for those acts.   

Many argue that the Court will not serve as a deterrent for war criminals; that individuals will continue to commit atrocities should it serve their domestic needs.[97]  It is true that no court will alleviate the immediate international need for the humanitarian exercise of U.S. military power.  Yet, no one argues that the existence of domestic criminal courts has alleviated the need to maintain domestic police forces.  Adjudicative justice serves purposes largely unrelated to police power.  Arguing that ad hoc tribunals have been ineffective in curtailing inhumane acts are arguments in support of the ICC rather than against it.  Courts that spring up only in the shadows of a particular inhumane act lack the long-standing authority to maintain accountability.  There is something both intrinsically humane and democratic about the vast social good of an institution capable of meting out justice to help realign the imbalance between perpetrators of crimes and their victims.  

Further, the U.S. cannot complain that it refuses to accept the ICC because it is concerned with its citizens.  The U.S. has never had a problem with sacrificing individuals, from king to knave, in order to salvage the sanctity of U.S. policy.  It was Nixon who committed the unlawful acts of party espionage and not the black-bag imperial presidency of perception and reality that was at fault. It was Ollie North who unlawfully provided weapons to the Contras and not the U.S. policies of “containment,” concern for the “domino effect,” and ubiquitous practice of arms trading.  It was Charles Graner, Lyndie England, and their similarly stationed cohorts who tortured, degraded and debased Iraqi prisoners, and not the U.S.’s well-documented, few-holds barred approach to the “war on terror.” Similarly it was Jeff Skilling and Ken Lay who cooked books and borrowed heavily against their own stock through shell companies, rather than the U.S.’s current infatuation with the corporate uber-morality of exponentially compounding individual wealth and notions of virtue no more difficult to discern than the bottom-line of the corporate welfare state. 

Whether the individual downfall occurs through a disgraceful resignation where a special prosecutor awaits with bated breath, or a series of courts martial that did not permit defenses that might implicate broad U.S. policy, or long, decorous Senate hearings, subjecting the individual to his just desserts has never been concern of the U.S.

This is not to say that these individuals and others who have taken famous nose-dives did not deserve their infamy.  Yet, each of these simply took what the law offered, simply maneuvered in the then-present social substrata.  Nixon could not have acted in contempt of the Constitution without the complicity of the electorate at large and judicial recognition that national security interests often require more dictatorial leadership then constitutional democracy can provide.  Lynndie England could not have acted like a barbarous, inhumane miscreant without the complicity if not authorization of the intelligence-gathering community, and the intelligence-gathering community could not have permitted such behavior if not authorized in the AG’s office and the Pentagon, and, of course, this could not have happened without the nod from the Oval Office.  Not to diminish his substantial talents, but Ollie North, of his own accord, could not have arranged an arms swapping deal between Iran and a band of “freedom fighters.”  To do so while positioned at such a high level requires that complicity of the foreign policy establishment.  Similarly, Ken Lay and Jeff Skilling, both estimable men in the gallivanting-CEO sense could not have pulled off the heist of the century for so long without the complicity of Wall Street and their friends in both Bush administrations, so ideologically enamored by Reagan’s concept of deregulation and markets.  It is not individuals, but policy that the U.S. strives to protect.   

In sum, the Rome Statute provides avenues for the U.S. military to do its important work without claiming any authority to control the U.S. military any more than the nation basing the troops could.  All the ICC asks in return is the capability to do its important work—to create a permanent body capable of earning the legal legitimacy to bring the world’s worst criminals to justice; to end the impunity of the wielders of gold-plated Uzis and adorners of necklaces of human ears.  The ICC was not overtly established to reign in American hegemony, but with recognition that beyond the ultimate hope of spreading democratic institutions, human rights require a different categorical institutional response to ensure their respect as democracy continues to flourish.  A U.S. veto over ICC jurisdiction is not necessary to comfort the world’s greatest democracy and to ensure recognition that its global interests are not imperiled.  Those measures are already in place and even if they incongruously benefit the U.S. because of its military supremacy, they apply equally to all nations.  Alternatively, granting the U.S. or other Security Council member the right to unilaterally control the ICC destroys the ICC, and relegates it to the institutional waste heap with the myriad of other institutions felled by the deftly administered power of the nation-state.  Similar to domestic social issues, international institutions that appear to usurp national sovereignty or ‘outsource’ U.S. military policy make quick political fodder before their benefits, modes of operation and intentions are fully known.  The only potential burden to U.S. interests lies when and where the U.S. makes Article 5 crimes its unspoken policy, and if this is the case, U.S. rejection of the ICC is the least of worries.   

[1] In an astute analysis of the U.S. military personnel’s understanding of the ICC’s jurisdictional capacity, the Henry L. Stimson Center manages to deftly do just that; Holt, Victoria K. and Dallas, Elisabeth W, On Trial: The US Military and the International Criminal Court (March 2006) (hereinafter Stimson Report). 


[3] Cobban, Helena, International Courts, Foreign Policy, p. 22-28 (March/April 2006).

[4] Stimson Report, p. 69.



[7] At the current stage of this writing, 29% of Americans approve of Bush’s authorship of the American identity and feel that his brand of unilateral exceptionalism is the mode to best engage the world. 


[9] Rome Statute of the International Criminal Court, Article 6 (July 1, 2002); (p. 9)

[10] Arsanjani, Mahnoush H., The Rome Statute of the International Criminal Court, 93 Am. J. Int’l L. 22, 30 (Jan. 1999).

[11] Id. at 31.

[12] Rome Statute, Article 8.

[13] Arsanjani, 93 Am. J. Int’l L. at 33.

[14] Id. at 29.

[15] Franck, Thomas M., The United States and the International Criminal Court: Unilateralism Rampant, 35 N.Y.U. J. Int’l L. & Pol. 519, 552 (2003).

[16] Cobban, Helena, International Courts, Foreign Policy, p. 22 (March/April 2006) notes that Milosevic has caused numerous distractions regarding the jurisdiction of the ICTY and has cost the court billions of dollars in protracted delays.  Saddam’s rants before the Iraqi National Court are equally vituperative, disruptive and costly. 

[17] Arsanjani, 93 Am. J. Int’l L. at 26.

[18] Rome Statute, Article 13(b)

[19] Jescheck, Hans-Heinrich, The General Principles Of International Criminal Law Set Out In Nuremberg, As Mirrored In The ICC Statute, 2 J. Int'l Crim. Just. 38, 40 (Mar. 2004).

[20] Arsanjani, 93 Am. J. Int’l L. at 26.

[21] Lipscomb, Rosanna, Restructuring The ICC Framework To Advance Transitional Justice: A Search For A Permanent Solution In Sudan, 106 Colum. L. Rev. 182, ftn. 22 (Jan. 2006).

[22] Rome Statute, Article 14(1).

[23] Rome Statute, Article 15.

[24] Arsanjani, 93 Am. J. Int’l L. at 26.

[25] Rome Statute, Article 12(2).

[26] Galvin, Richard John, The ICC  Prosecutor, Collateral Damage, And Ngos: Evaluating The Risk Of A Politicized Prosecution, 13 U. Miami Int'l & Comp. L. Rev. 1, ftn. 6 (2005).

[27] Danner, Allison Marston, When Courts Make Law: How The International Criminal Tribunals Recast The Laws Of War, 59 Vand. L. Rev. 1, 53 (Jan. 2006).

[28] Letter from John R. Bolton, Under Secretary of State for Arms Control, to General Kofi Annan, U.N. Secretary-General (May 6, 2002), available at

[29] Edlin, Douglas E., The Anxiety of Sovereignty: Britain, the United States and the International Criminal Court, 29 B.C. Int’l & Comp. L. Rev. 1, 5 (2006).

[30] Id. at 2.

[31] Franck, Thomas, The United States and the International Criminal Court: Unilateralism Rampant, 35 N.Y.U. J. Int’l L. & Pol. 519, 546 (2003).

[32] Id.

[33] 29 B.C. Int’l & Comp. L. Rev. at 13.

[34] Scharf, Michael P., Application of Treaty Based Universal Jurisdiction to Nationals of Non-Party States, 35 New Eng. L. Rev. 363, 376 (2001).

[35] Rome Statute, preamble, Article 1, Articles 17-19.

[36] Id. at 548.

[37] 35 N.Y.U J. Int’l L Pol. at 549.

[38] Id. at 549.

[39] Edlin, Douglas E., The Anxiety of Sovereignty: Britain, the United States and the International Criminal Court, 29 B.C. Int’l & Comp. L. Rev. 1, 9 (2006).

[40] 29 B.C. Int’l & Comp. L. Rev. at 20.

[41] Id.

[42] Rome Statute, Article 98(2).

[43] 35 N.Y.U. J. Int’l L. & Pol. at 539.

[44] Id. at 536-539.

[45] Stimson report, p. 11-12.

[46] Id.

[47] Rome Statute, Article 98(2)

[48] There exists a great gulf of disagreement over the extent to which the current BIAs negotiated by the U.S. are contemplated by the Rome Statute and whether these blanket protections will be enforceable.  This disagreement will be discussed in due course.

[49] Rome Statute, Article 19

[50] Id. 

[51] Id.

[52]; Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, published a letter in response to numourous requests for the ICC to investigate the legality of the invasion of Iraq.  He responded that the ICC had no authority to prosecute aggression, but that the ICC could review the conduct of nationals of State Parties during that conflict.  To that request, he found that while civilian casualites were high, there was no indication that they were intentional.  Additionally, he found sufficient evidence of willful killing and inhumane treatment, but not to a degree sufficient to warrant an ICC investigation.



[54] Stimson report at 39-40.



[57] Hersh, Seymour, Torture at Abu Ghraib, The New Yorker (May 10, 2004).

[58] Rome Statute, Article 33(1).

[59] Rome Statute, Article 33(2).



[62] Id.

[63] Stimson report, p. 35

[64] Stimson report, pp. 39-40

[65] Stimson report, p. 7.

[66] Bolton, John R., "Legitimacy" in International Affairs: The American Perspective in Theory and Operation, Remarks to the Federalist Society, Washington, DC (Nov. 13, 2003); available at

[67] Wilson, Elizabeth A., The War On Terrorism And "The Water's Edge": Sovereignty, "Territorial Jurisdiction," And The Reach Of The U.S. Constitution In The Guantánamo Detainee Litigation, 8 U. Pa. J. Const. L. 165, 204 (Mar. 2006).

[68] Mayer, Jane, Outsourcing Torture, The New Yorker, (Feb. 14, 2005).

[69] Id. 

[70] Natta Jr., Don Van, Growing Evidence U.S. Sending Prisoners To Torture Capital Despite Bad Record On Human Rights, Uzbekistan Is Ally, San Francisco Chronicle, A-4 (May 1, 2005);

[71] Id.

[72] Id. 

[73] Rome Statute, Article 7(1)(e) grants ICC jurisdiction over Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; 7(1)(f) over torture; 7(1)(i) over enforced disappearance of persons; 7(1)(k) a catchall authorizing jurisdiction over “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

[74] Rome Statute, Article 7(2)(a).

[76] Id.

[77]Meyer, Eric M., International Law: The Compatibility Of The Rome Statut E Of The International Criminal Court With The U.S. Bil Ateral Immunity Agreements Included In The American Ser Vicemembers' Protection Act, 58 Okla. L. Rev. 97, 99-100 (2005).

[78] Id. at 99.

[79] Id. at 116.

[80] Id.

[81] Id.  at 121.

[82] Id. at 121-122 (citing James Crawford SC, Philippe Sands QC & Ralph Wilde, In the Matter of the Statute of the International Criminal Court and in the Matter of Bilateral Agreements Sought by the United States Under Article 98(2) of the Statute (June 16, 2003);

[83] Id. at 122.

[84] Id. (citing Int'l Crim. Ct. R. 195).

[85] Id.

[86] Id.

[87] Mayer, Jane, A Deadly Interrogation, The New Yorker (Nov. 14, 2005).

[88] A portion of the USPA known smarmily as “The Hague Invasion Act,” authorizes the executive to take all measures necessary to recover U.S. nationals held at the ICC.

[89] 58 Okla. L. Rev. at 123.

[90] Id.

[91] Id.

[92] Id. at 108-111.

[93] Portions of the ASPA allow the executive to withhold military aid from non-NATO allies if they fail to sign BIAs an action that many military leaders have felt extraordinarily detrimental to military training programs such as the International Military Education and Training (IMET) program and the respect for U.S. military interests internationally.  (See Stimson Center, p. 13).

[96] Recall recent scenarios when fried potato wedges were renamed in an effort to dissuade Americans from maintaining any respect for that infamous nation of Jacobins and Vichy sympathizers. 

[97] Stimson Center, p. 6.