The constitutionality of the Rome Statute of the International Criminal Court.

• Author: Scheffer, David
• Position: Symposium on Redefining International Criminal Law

A decade has elapsed since the final text of the Rome Statute of the International Criminal Court (ICC) (1) was approved at the conclusion of a diplomatic conference in Rome, Italy. (2) Legal scholars have written a great deal since then about whether or not the Rome Statute would meet U.S. constitutional requirements if the United States were to become a State Party to it. (3) Despite the American opposition to the ICC during the Bush Administration (2001-2009), (4) there remains the possibility that in the future a new Presidential administration and the Senate, with support from the House of Representatives, will find reason to seriously consider ratification of the Rome Statute. (5) If that were to occur, we believe the constitutional issues that undoubtedly would be raised require careful examination. In this Article we hope to demonstrate that concerns about compliance with the U.S. Constitution were the United States to ratify the Rome Statute are largely without merit. (6) Where there may be some residual difficulties on the constitutional front, we offer suggestions for how to accommodate particular concerns through U.S. legislation and with U.S. declarations, understandings, and provisos to the Rome Statute as part of the ratification process. (7)

This Article addresses nine areas of inquiry into the Rome Statute and U.S. constitutional law. Part I provides relevant background on the Rome Statute and American policy on the ICC as a predicate to the more focused discussion on constitutional issues. Part II explains the significance of the Rome Statute's complementarity doctrine, which offers the United States the first opportunity to investigate any U.S. citizen who may become an ICC target, and by so doing require the ICC to refrain from exercising jurisdiction. Under such circumstances, a U.S. citizen would be prosecuted pursuant to U.S. law and all of the protections afforded by the Constitution. Part III examines whether an Article III court is the only constitutionally valid forum within which to prosecute an American citizen for a criminal act falling within the subject matter jurisdiction of the ICC. Part IV addresses whether the United States can use the Article II treaty power to enter into treaties that provide for extradition of American citizens to foreign courts. Part V explores whether the "define and punish" power of Congress allows the United States to participate in the ICC. Part VI focuses on whether the ICC's denial of any constitutionally-protected due process rights, particularly trial by jury, introduces an insurmountable constitutional obstacle to U.S. participation in the ICC. Part VII discusses whether the due process rights afforded by the ICC could withstand Supreme Court review with respect to any American citizen prosecuted by the ICC. Part VIII examines whether official immunities would be a bar to U.S. compliance with Article 27 of the Rome Statute. Finally, Part IX recommends concrete steps that could be taken now and in the future to ease remaining concerns about the constitutionality of the Rome Statute. The Conclusion summarizes some of the major points made in this Article.

1. FUNDAMENTAL PRINCIPLES AND AMERICAN POLICY

   The International Criminal Court is the first permanent judicial body that seeks universal participation by nations in its objective to bring leading perpetrators of genocide, crimes against humanity, serious war crimes, and aggression, together known as "atrocity crimes," (8) to justice. During the last fifteen years, international courts have advanced international criminal justice in regional contexts and within the narrow jurisdictional mandates of the International Criminal Tribunals for the former Yugoslavia (ICTY) (9) and Rwanda (ICTR), (10) the Special Court for Sierra Leone, (11) the Extraordinary Chambers in the Courts of Cambodia, (12) and war crimes courts in Bosnia Herzegovina, (13) Kosovo, (14) and Timor-Leste. (15) While those tribunals were evolving, the international community embraced the idea of a permanent criminal court that in most respects would obviate the need for the time-consuming and costly creation of specialized international or hybrid (part national, part international) courts for individual atrocity situations as they erupt anywhere in the world. Although the United Nations Security Council had created and empowered the ICTY and ICTR under the U.N. Charter's Chapter VII enforcement authority, (16) the only way a permanent court with broad jurisdiction would be established was through the treaty process whereby sovereign nations consented to the investigation and prosecution, under certain circumstances, of their own nationals before a global court of criminal law. Because criminal prosecutions are traditionally a national prerogative, this would be no easy task to accomplish on an international platform.

   But after years of work by the U.N. International Law Commission (17) and further drafting and intensive negotiations among governments under U.N. auspices, (18) the text of the Rome Statute of the International Criminal Court was approved on July 17, 1998. (19) The U.S. delegation to the U.N. talks contributed significantly to the provisions of the Rome Statute, including its due process requirements, and it was the hope of the Clinton Administration to join consensus on the final text in Rome. (20) But a few major issues were not satisfactorily addressed, (21) and the U.S. delegation was instructed by Washington to vote against the final text, becoming one of very few nations to do so. (22) Nonetheless, over the next two years the United States actively participated in further negotiations on the Rules of Procedure and Evidence and the Elements of Crime for the ICC. (23) Both of these documents, upon which the U.S. delegation had insisted in Rome and to which the delegation had made major contributions, such as preparing the first draft of the Elements of Crimes and leading negotiations thereafter, (24) were adopted by consensus, joined by the United States, in June 2000. (25)

   Following two years of multilateral negotiations on many of the supplemental agreements required by the Rome Statute, President Bill Clinton decided that the United States would join with 137 other governments and sign the Treaty on December 31, 2000, the last possible day for any nation to sign the document. (26) Some important issues on the American agenda for the ICC still remained unresolved, but the U.S. delegation prepared the groundwork for negotiation of those issues in continued U.N. talks on the supplemental agreements in 2001. The incoming Bush Administration chose to abandon the U.N. talks altogether, and those opportunities to address U.S. concerns were lost. On May 6, 2002, President George W. Bush rendered inactive the U.S. signature on the Treaty by informing the United Nations, as depository of the Treaty, that the United States would no longer honor the obligations of a signatory nation. (27) Shortly thereafter, Congress adopted and President Bush signed into law the American Service Members Protection Act, (28) which is a blunt anti-ICC piece of legislation designed to prohibit any U.S. cooperation with the ICC and to punish nations that join it. (29) By late 2007, however, Congress repealed some of the punitive measures of the law following years of sharp deterioration in U.S. military and diplomatic relations with nations that defied the Bush Administration and joined the ICC anyway. (30)

   As of October 1, 2008, there will be 108 State Parties to the Rome Statute. (31) These include almost every major ally of the United States, many nations that are considered friends, and none that are characterized as evil, Communist, or adversarial. They consist of all but one of the European Union nations, Canada, Mexico, most of Latin America and the Caribbean, a majority of African countries, and sixteen Asia-Pacific nations, including Australia, Japan, and the Republic of Korea. (32) The ICC has accepted four atrocity crimes situations for investigation and prosecution and issued indictments in most of them: the Democratic Republic of the Congo, regarding which arrests have been made and pre-trial proceedings are underway, (33) Uganda, (34) the Central African Republic, (35) and Darfur. (36)

   The Rome Statute reflects the convergence of the common law and civil law systems, varying nation by nation, that constitute the global administration of criminal law. (37) Most of the world is governed by some variation of civil law. Only a relatively small number of nations employ the common law system. (38) Consequently, few countries use the jury system in their criminal trials; (39) the vast majority of nations rely on judges ruling from the bench. During the negotiations leading to the Rome Statute and, in particular, the Rules of Procedure and Evidence, (40) there was constant attention to this melding exercise of civil and common law systems as well as acknowledgement of other major bodies of law in the world. It is inconceivable that the vast majority of nations negotiating the Rome Statute would have accepted a requirement of trial by jury. Indeed, the very nature of the exercise--to prosecute the masterminds of complex and massive atrocity crimes before an international court in The Hague--was incompatible with the jury system. Who exactly would be the members of the jury from the global society? How would they be selected when so many nations are invested in the process? What educational level would be required of jury members? Negotiators focused on a procedure that would select highly qualified judges conversant in national criminal law and international criminal law and skilled in parsing through the complex evidence that is characteristic of atrocity crimes, particularly when handling prosecutions of those in leadership roles. (41) The ruling of judges on guilt or innocence was considered vastly fairer to the...