The Balance of Justice: Can the U.S. Afford To Share
the International Criminal Court’s Interest in Bringing Humanity to the
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
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
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. 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
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. 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. 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.
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.
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. 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
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.”
Statute: The Subject Matter Jurisdiction of Article Five
The Rome Statue, as drafted in 1998,
inaugurates and authorizes the International Criminal Court. First, the ICC has jurisdiction over the
crime of genocide, which is defined in Article 6 of the Rome Statute. 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. 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. Third, war crimes are within the jurisdiction
of the Court and are defined in Article 8 of the Rome Statute. 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. 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.
Each of these crimes is incorporated
and defined from widely accepted and long-standing norms of international law. 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
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. 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.
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. 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.
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. The U.S. delegation to the Rome
Conference (where the Statute was debated) wanted this to be the sole means of
ICC jurisdiction. 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.
second mode by which the ICC can obtain jurisdiction is through referral to the
ICC by a signatory to the Rome Statute. 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
does not favor, is through an independent proprio mutu investigation
initiated by the ICC prosecutor. 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.
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. 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.
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. While the Statute was signed, the Bush
administration came to power, and through executive order, ‘unsigned’ the
treaty. 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. 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. 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.
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. 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. 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. 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. 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. 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. 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. 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. 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.
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.” 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
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.” 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.”
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. 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. 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.
The U.S. has validly cited its unusual role
within the international community. 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.
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.
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
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. 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
has decided not to prosecute the person concerned, unless the decision
resulted from the unwillingness or inability of the State genuinely to prosecute.” “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.” 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
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.
Scenarios Implicating ICC Jurisdictional
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
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. 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. 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
intelligence gathering capabilities and the necessary thresholds that the
intelligence must satisfy before conducting strikes. 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.
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. 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. During the course of that trial, all evidence
of following orders through the command structure (including the notorious
Taguba report) was barred.
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:
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
As such, the ICC will consider whether individuals such as
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.” 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. 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. Iraq has no authority to recommend
an alleged Article 5 crime to the ICC because it is not a signatory to the Rome
Statute. 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
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. 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. 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.”
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.
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.
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
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
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.” 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. 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. The U.S. State Department recognized that
these permit unsavory interrogation techniques including, “beating, often with blunt weapons, and asphyxiation with a
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.” 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. 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.”
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. 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. What legal effect will be granted to
post-ratification BIAs is of yet largely unknown. Under the auspices of the American
Servicemembers Protection Act (ASPA), by December 2004, the U.S. had signed BIAs with over
ninety countries. 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.
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
Contrarily, ICC boosters argue that
the ICC is granted the authority to determine whether Article 98(2) authorizes
the particular BIA. 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.” 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.
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. 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].”
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. 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.
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. In making this determination, the ICC would have
to review the BIA to determine whether it works in opposition to ICC
jurisdiction. 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. If the BIA defeats the “object and purpose”
of the Rome Statute, Article 98 will not protect U.S. nationals from prosecution.
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. 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.
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.
Clandestine CIA Activity
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. 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. 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
as displaying a failure of heart in the face of a nefarious enemy.
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
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. 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
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
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.