How the International Criminal Court threatens treaty norms.

• Author: Newton, Michael A.
• Position: II. Harmonizing the Multilateral and Bilateral Visions B. The Pattern of Preexisting Jurisdictional Allocations through V. Conclusions, with footnotes, p. 396-431

2. The Pattern of Preexisting Jurisdictional Allocations

   The Rome Statute is expressly designed to be juxtaposed against an array of other treaty obligations incumbent on States Parties. The jurisdictional provisions of the Geneva Conventions, (96) for example, remain fully applicable. SOFAs remain a ubiquitous feature of modern military operations for both ICC States Parties and non-States Parties. They continue to be indispensable to United Nations peacekeeping efforts. (97) Most such agreements address ancillary matters such as customs constraints, wearing of uniforms, and the right of sending state nationals to carry weapons.

   But the key provisions of any SOFA are those that address the legal protection from domestic prosecution that will be afforded to the nationals of the negotiating state present in a foreign country. (98) Department of Defense Directive 5525.1, for example, specifies that U.S. policy is "to protect, to the maximum extent possible, the rights of U.S. personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons." (99) Typical SOFA provisions establish which party to the agreement is able to assert criminal and/or civil jurisdiction and specify procedures for the exercise of civil and criminal jurisdiction by the host nation over personnel of the sending state if at all. Military prosecutors would vehemently object to unsupported assumptions that treaty provisions related to jurisdictional immunity from foreign prosecution serve as the functional equivalent of grants of impunity for war crimes; they merely preserve the full panoply of prosecutorial prerogatives to the sending state. Both States Parties (100) and non-States Parties (101) have convened many war crimes prosecutions in recent years based on jurisdictional authorities of domestic law and SOFA provisions that preserve in personam jurisdiction that might otherwise have been exercised by the territorial state. Such domestic prosecutions are fully consistent with the object and purpose of the Rome Statute as well as its plain text.

   The sovereign act of a State Party in transferring its own territorial jurisdiction over the nationals of another state to the Court is perfectly consistent with the VCLT if the territorial state has a colorable claim to jurisdiction at the time of the alleged offense. Nemo plus iuris transferre potest quam ipse habet is millennia old and inarguably an accepted rule of international law. (102) The Court must respect its normative impact as part of "the principles and rules of international law." (103) ICC jurisdiction is merely derivative of sovereign domestic jurisdiction, and was intentionally designed to be so in the absence of a Chapter VII Resolution conferring jurisdiction. For much the same reason, an Occupying Power does not lawfully acquire title to personal or state property within the zone of occupation and thus cannot sell or otherwise dispose of such properties. (104) Jurisdictional allocations prescribed in the Rome Statute do not present intractable difficulties for States Parties with the caveat that no state can transfer more jurisdictional authority to the ICC than it possesses under "applicable treaties" (105) at the time of the alleged offense.

   To date, the Court's disregard of underlying treaty-based jurisdictional allocations undermines its intellectual consistency. Under the tenets of Article 12, personal jurisdiction over a particular perpetrator attaches only on the basis of territoriality or nationality rather than as a necessary byproduct of functionalist treaty interpretation. The Court has no treaty basis under the Rome Statute for claiming a universal scope of punitive authority over all potential perpetrators in all circumstances. Even if the actus reus of a particular offense might have been committed, the OTP must make a legally defensible, objective, and apolitical assessment that "there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court." (106) Of course, the nationals of States Parties and non-States Parties are dissimilar in that the Rome Statute permits nationality-based jurisdiction in the Court over the citizens of 123 states, (107) even when the receiving state otherwise has no basis for asserting territorial jurisdiction.

   To reiterate, the act of transferring territorial jurisdiction over a state that is not party to the Rome Statute can be done perfectly consistent with the VCLT if the territorial state has a colorable claim to jurisdiction at the time of the alleged offense. (108) In this sense, the territorial state transfers its own authority in the same manner that the co-owner of a house could choose to sell or to transfer his/her property right without the consent of the other co-owner. On the other hand, if the territorial state has no legally cognizable claim (i.e., possessory interest) to criminal jurisdiction over a particular class of perpetrators at the time of the alleged offense/s then it has nothing to transfer to the supranational court irrespective of ostensible obligations under the Rome Statute. The underlying web of binding jurisdictional treaties inevitably affects the Court in three important circumstances, which will be summarized in seriatim below: (1) when States Parties have established treaty-based concurrent jurisdiction with other states, (2) when the UN Security Council curtails ICC jurisdiction, and (3) when a State Party has voluntarily surrendered its prosecutorial prerogatives.

   As Chief Justice Marshall explained in Schooner Exchange, allocations of jurisdiction between sovereigns remain "rather questions of policy than of law" and "are for diplomatic, rather than legal discussion." (109) There are no a priori rules under international criminal law nor drawn from customary international law that give preference to one jurisdictional basis when two or more states possess concurrent jurisdiction. (110) More than 40 percent of the States Parties to the ICC share concurrent jurisdiction with non-States Parties. The concurrent jurisdiction embodied in the NATO SOFA, for example, governs more than fifty States Parties as it binds all NATO members as well as the nations that participate in NATO Partnership for Peace (PfP) program. (111) In addition, Japan, (112) the Republic of Korea, and the Philippines (113) are all ICC States Parties that share concurrent jurisdiction with the United States pursuant to binding SOFA provisions. As a normal operating principle, where two states exercise concurrent jurisdiction, transfer of authority from the State Party to the Court does not vitiate the jurisdiction of the non-State Party insofar as jurisdiction technically remains intact but is effectively displaced by the sovereign act of the State Party.

   Arguments of some academics that the VCLT prohibits transferred territoriality are misplaced because the Rome Statute does not impose obligations on non-States Parties beyond those exercised by any sovereign state through its exercise of treaty-based concurrent criminal jurisdiction. (114) The possibility that a State Party can be subject to seemingly inconsistent duties vis-a-vis another state based on one treaty obligation and a different duty to the ICC based on the Rome Statute could well present States Parties with excruciatingly delicate political decisions. Article 90 of the Rome Statute (115) appears to anticipate precisely this dilemma. It specifically addresses the process to be followed when a State Party receives competing requests for extradition of a particular perpetrator. (116) By its very terms, Article 90(4) requires States Parties to comply with their underlying "international obligation to extradite" a perpetrator back to a state that is not a member of the ICC (such as the United States or Israel) even when transfer of that same person has been requested by the ICC. (117) Instances of truly concurrent jurisdiction thus create the appearance of conflicting legal obligation rather than an intractable inconsistency with the Rome Statute.

   The second common situation leads to the converse result yet is also in complete conformity with the Rome Statute. (118) Under Article 13 of the Statute, the Security Council may refer situations to the ICC based upon the finding that impunity threatens international peace and security. (119) Such referrals are not limited by the nationality or territoriality constraints derived from state consent under the normal provisions of Article 12. (120) The 2005 referral of ICC jurisdiction over Darfur was the first such constitutive act in the history of the Court. (121) As a more recent marquee example, UN Security Council Resolution 1973 (122) empowered states to "use all necessary means" to protect civilians inside Libya and to enforce the no-fly zone over Libyan territory. This Chapter VII decision was implemented in the shadow of the previous referral of jurisdiction to the Court over the situation in Libya by virtue of Resolution 1970. (123) Resolution 1970 mirrored the language of the earlier Darfur Resolution by expressly providing that

   nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State. (124) Thus, every time it has created ICC jurisdictional authority, the Security Council has simultaneously constrained the reach of that authority over the nationals of non-States Parties to the Rome Statute. This is indistinguishable from the Security Council Resolutions creating the International Criminal Tribunal for the Former Yugoslavia and the...