Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court

• Author: Lieutenant Colonel Michael A. Newton
• Pages: 02

20 MILITARY LAW REVIEW [Vol. 167

COMPARATIVE COMPLEMENTARITY:

DOMESTIC JURISDICTION CONSISTENT WITH THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

LIEUTENANT COLONEL MICHAEL A. NEWTON1

The crimes you committed, General Blaskic, are extremely serious. The acts of war carried out with disregard for international humanitarian law and in hatred of other people, the villages reduced to rubble, the houses and stables set on fire and destroyed, the people forced to abandon their homes, the lost and broken lives are unacceptable. The international community must not tolerate such crimes, no matter where they may be perpetrated, no matter who the perpetrators are and no matter what the reasons for them may be. If armed conflict is unavoidable, those who have the power to take decisions and those who carry them out must ensure that the most basic rules governing the law of nations are respected. International courts, today this Tribu-1. Judge Advocate General's Corps, United States Army. Presently participating in the Advanced Civil Schooling program as a student at the University of Virginia School of Law. B.S.,1984, United States Military Academy; J.D., 1990, University of Virginia School of Law; LL.M. 1996, The Judge Advocate General's School, United States Army, Charlottesville, Virginia. Served as Special Advisor to the United States Ambassador-at-Large for War Crimes Issues, United States Department of State. As a member of the United States delegation to the Preparatory Commission on the Establishment of an International Criminal Court after adoption of the Rome Statute, Lieutenant Colonel Newton assisted with drafting and negotiating the Elements of Crimes for each offense required by Article 9 of the Rome Statute. Currently assigned to the United States Army Student Detachment, Fort Jackson, South Carolina. Formerly assigned as Professor, International and Opeational Law Department, The Judge Advocate General's School, Charlottesville, Virginia, 1996-1999; Brigade Judge Advocate, 194th Armored Brigade (Separate), Fort Knox, Kentucky, 1993-1995; Chief, Operations and International Law, Administrative Law Attorney, United States Army Special Forces Command (Airborne), Fort Bragg, North Carolina, 1990-1993; Group Judge Advocate, 7th Special Forces Group (Airborne), Fort Bragg, North Carolina, 1992; Funded Legal Education Program, 1987-1990; Battalion Support Platoon Leader, Company Executive Officer, Platoon Leader, 4th Battalion, 68th Armor, Fort Carson, Colorado, 1984-1987. This article is based on a work submitted by the author to satisfy, in part, the Master of Laws requirements for the University of Virginia School of Law. The author is particularly grateful for the comments of Paul Stephan and Kimberly Shaw on the draft of this article. Lieutenant Colonel Newton may be reached by e-mail at newtonmj@msn.com.

nal, tomorrow the International Criminal Court, must appropriately punish all those, and especially those holding the highest positions, who transgress these principles.

-Judge Claude Jorda's statement announcing the findings and sentencing of General Tihomir Blaskic2

I. Introduction

The ongoing diplomatic and political efforts to create the International Criminal Court (ICC) are forever altering the landscape of the international community and the face of international law. The Chairman of the Drafting Committee working on the negotiations towards the Rome Statute of the International Criminal Court3 (Rome Statute) proclaimed that

"[t]he world will never be the same after the establishment of an international criminal court."4 Indeed, as the Rome Conference began, formal adoption of a foundational document was widely considered to be impossible.5 After five weeks of intense debate, the final text emerged as a take-it-or-leave-it "package" that had been cobbled together behind closed doors during the middle of the night. The leaders of the Rome Conference completed the final text at two o'clock in the morning of the last day of the conference, Friday, 17 July 1998.6 Far from achieving consensus, the final text postulated solutions to some drafting questions that delegates had been unable to resolve, and went so far as to include a number of provisions that the conference Bureau7 selected and presented to the floor without open debate on either the text itself or its substantive merits.8

Seeking to prevent a collapse of the conference without a completed document, the delegates voted down amendments that the United States and India proposed to the Bureau's textual "package," whereupon the de

egates burst into spontaneous applause, which transitioned into rhythmic applause that continued for some time.9 By the late evening of 17 July 1998, the delegates in Rome were caught up in a wave of jubilation and euphoria as they adopted the Rome Statute by a vote of 120 to seven, with twenty-one abstentions.10

For the proponents of the Rome Statute, the reality that it was adopted only by abandoning the historic diplomatic practice of consensus is immaterial. Many ardent treaty supporters and the non-governmental organizations (NGOs) that pushed for the Rome Statute ignore its structural flaws and view it as a triumph of international aspiration over the political and pragmatic realities of the international system that have prevented the evolution of an effective and permanent international criminal court since the end of World War I.11 Seen in the best possible light, the Rome Statute represents the hope of governments from all around the world that the force of international law can restrain the evil impulses that have stained history with the blood of millions of innocent victims.12 Thus, from this perspective, its hasty adoption in the last hours of the Rome Conference was warranted despite the fact that the complex substantive interface of treaty provisions was never wholly debated or analyzed in depth until after the adoption of the Rome Statute.

In a very real sense, the proscriptions against genocide, crimes against humanity, and violations of the laws and customs of war contained in Article 5 of the Rome Statute13 embody the highest ideal of all legal systems that law can replace raw power as the defining norm of international relations. Nevertheless, the Rome Statute elevates principle above practicality because its adoption was not accompanied by any resolution of the details for establishing an effective supranational judicial forum. For example, in adopting the Rome Statute without the support of the United States, treaty proponents failed to consider a viable formula for funding the ICC. Thus, without an active policy of support to the ICC and funding from both the United States and Japan, one NGO estimates that the European Union could be responsible for funding up to 78.17% of the total cost of the ICC.14

Furthermore, the last-minute adoption of the Rome Statute glossed over the inherent tension between an international forum with compulsory criminal jurisdiction over individuals who commit crimes at the express command of national authorities, or at the very least while functioning under the official authority of a sovereign state, and the political necessity for sovereign states to support such a court. Though the concept of an international criminal court can be traced back to the Middle Ages, and evolved through the thinking of the classical international writers and jurists of the seventeenth and eighteenth centuries,15 the stone walls of sovereign rights and state consent served as "constraining factors," which restricted the "prescribing, invoking, and applying of international norms."16 Although the delegates to the Rome Conference unanimously agreed that national jurisdictions have primary responsibility for investigating and prosecuting the crimes enumerated in Article 5 of the Rome Statute, they strove to establish an international judicial institution that

would allow supranational justice and accountability to pierce the shield of unconstrained sovereignty.17

Indeed, the very impetus for a permanent ICC arose from the numerous instances in which powerful perpetrators18 ignored established international norms with impunity. The penultimate votes at the Rome Conference came about only as a reaction against the historic practice of tyrants who warped domestic legal mechanisms into tools for imposing their will. Adolf Hitler, for example, imposed the Fuehrerprinzip (leadership principle) in order to exercise his will as supreme through the police, the courts, and all other institutions of civilized society.19 Through the lens of absolute state sovereignty, efforts by one state to establish individual accountability over nationals of another state for violations of international crimes were frequently derided for using the figleaf of justice to legitimize the expressions of raw political power over the perpetrator. Thus, when given a copy of his indictment before the International Military Tribunal at Nuremberg, Herman Göring stroked the phrase "[t]he victor will always be the judge and the vanquished the accused" across its cover.20

Logically, an effective supranational court should function as a fall-back forum to prosecute individuals who commit crimes while in the service of authoritarian regimes that ignore the binding norms of international law. Those regimes are the most prone to commit the crimes within the jurisdiction of the ICC, and yet those same states could previously invoke principles of sovereignty to protect their nationals from prosecution in their domestic judicial forums. At the conclusion of the Rome Conference, treaty supporters concluded that an effective ICC could not rest the full

extent of its judicial power on the consent of a state because regimes that ignore the rule of law would be virtually certain not to submit their nationals to the jurisdiction of the court. Hence, the final "package" that became the Rome Statute bypassed the...