The reach of ICC jurisdiction over non-signatory nationals.

• Author: Paust, Jordan J.
• Position: International Criminal Court

A new International Criminal Court (ICC) was created on July 17, 1998 under the Rome Statute adopted by the United Nations Diplomatic Conference on Plenipotentiaries on the Establishment of an International Criminal Court.(1) Under the Statute, the ICC will have jurisdiction over crimes of genocide, certain crimes against humanity, and certain war crimes, leaving the crime of aggression for further definition.(2)

Nonetheless, there are certain preconditions to the exercise of such jurisdictional competence, as noted especially in Articles 12-14 of the Statute. In general, the Court can exercise jurisdiction if a "situation" or case (1) is referred to the Prosecutor by a State Party to the treaty, (2) is referred to the Prosecutor by the U.N. Security Council, or (3) is under an investigation initiated by the Prosecutor proprio motu.(3) Article 12 adds that when a State Party has referred investigation, "the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court" by special declaration: "(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; [or] (b) The State of which the person accused of the crime is a national."(4)

The Executive Branch of the United States apparently considers that a U.S. national could not be tried before the ICC if the United States does not ratify the treaty.(5) Is this a proper interpretation of the treaty or of international law more generally? Assume, for example, that Italy and Yugoslavia have ratified the treaty and the United States has not, and that war crimes within the jurisdiction of the ICC(6) are alleged to have been committed by a U.S. national (now being held in Italy) while acting within the territory of Yugoslavia. In such a scenario, can either Yugoslavia or Italy properly refer the case to the Prosecutor? Can the Prosecutor rightly initiate an investigation proprio mom? Can Italy render the accused to the ICC for prosecution?

Some might assume simplistically that merely because the United States does not ratify the treaty, its nationals cannot be subject to prosecution before the Court. Normally, nonsignatory nationals are not bound by crimes or norms newly created by a treaty.(7) However, that is not what is involved when a new tribunal is established in order to prosecute what admittedly are alleged violations of customary international law--that is, law already extant at the time of an alleged offense and that had created crimes over which there is a universal jurisdictional competence and responsibility.(8)

Under international law a state, such as Italy, that has on its territory(9) a person reasonably accused of war crimes under customary international law has both the competence and responsibility either to initiate prosecution of such a person or to extradite or render such a person to another forum. Universal competence and responsibility pertain whether or not the accused is an Italian national, the victims were Italian, or the crime took place within Italy. Yugoslavia would have the same competence and responsibility under international law, as would the United States.

It is also certain that Italy can agree with another state or group of states to set up a tribunal to carry out such responsibility and can render to such a tribunal any person reasonably accused of a crime under customary international law who is found in territory under its control.(10) That is what happened when the United States agreed with France, Great Britain, and the Soviet Union, but not Germany, to set up the International Military Tribunal at Nuremberg (IMT at Nuremberg).(11) As the IMT at Nuremberg affirmed:

The Signatory Powers [to the London Agreement of 8 August 1945(12) creating the Charter of the IMT at Nuremberg] created this Tribunal ... and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have clone singly, for it is not to be doubted that any nation has the right to set up special courts to administer the law. With regard to the constitution of the Court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law.(13) Thus, a German defendant could not complain that the IMT at Nuremberg lacked jurisdiction over crimes that any state could prosecute because each state creating or agreeing to the competence of the IMT had "done together what any one of them might have done singly." Indeed, they could create such a tribunal with or without the consent of Germany, and the tribunal could, and did, prosecute German nationals even when the accused had not committed crimes within the territory of the United States, France, Great Britain, or the Soviet Union and were not nationals of any of the constituting states.

It is also telling that the U.N. General Assembly has declared with respect to war crimes and crimes against humanity:

3. States shall co-operate with each other on a bilateral and multilateral basis with a view to halting and preventing war crimes and crimes against humanity, and shall take the domestic and international measures necessary for that purpose. 4. States shall assist each other in detecting, arresting and bringing to trial persons suspected of having committed such crimes.... .... ... States shall not grant asylum to any [such] person....(14) Impliedly, the General Assembly's declaration reflected a general expectation that not only would it be appropriate for states to create bilateral or multilateral institutional processes to assist in prosecuting such international crimes, but also that such action may be required as part of the duty to engage in bilateral and multilateral cooperative efforts to halt, prevent, and prosecute such crimes. Such duties were also tied to obligations under the U.N. Charter.(15)

Given the unassailable competence of Italy to participate in the creation of an ad hoc international criminal tribunal (like the IMT at Nuremberg) to prosecute violations of customary international law and to render to such a tribunal any person accused of such crimes found within territory under its control, it is certain that Italy can participate in the creation of the new ICC by treaty with or without the consent of the United States and that Italy can transfer part of its universal jurisdictional competence and responsibility to the ICC by such a constitutive treaty. It is also certain that Italy could render any such person to the ICC for trial if there is universal jurisdiction over the alleged criminal activity, unless the constitutive treaty precludes Italy from rendering a non-signatory's national to the ICC.

Viewing Article 13 of the Statute again, it is clear from the ordinary meaning of the language of the article considered in context(16) that the Court can exercise jurisdiction if the case has been referred to the Court by a State Party, such as Italy or Yugoslavia in the hypothetical.(17) The only qualification under Article 13 involves a reference to Article 14, that is, "[t]he Court may exercise its jurisdiction" if a State Party refers a situation "to the Prosecutor ... in accordance with article 14."(18) Article 14 merely requires that the "crimes [be] within the jurisdiction of the Court" and "appear to have been committed."(19) Indeed, if the Prosecutor investigates proprio motu, the Court will also have jurisdiction.(20)

The only limitation on these competencies in Article 12 is the requirement that either the state on whose territory (or the equivalent thereof) the crime has been committed or the state of nationality of the accused be a party to the treaty or must have accepted the jurisdiction of the Court by special declaration to that effect.(21) There is simply no requirement in Article 12 that the state of nationality of the accused be a party to the treaty or accept the jurisdiction of the Court.(22) The alternative expressly set forth in Article 12 is that the state on whose territory the alleged crime was committed must either be a signatory or must agree to the Court's jurisdiction. Mahnoush Arsanjani, who served as Secretary of the Committee of the Whole at the Rome Conference, affirms that Article 12 sets forth this territorial state alternative, adding that, at least when a situation is referred by the Security Council, "the court will have jurisdiction ... even if committed in non-states parties by nationals of non-states parties and in the absence of consent by the territorial state or the state of nationality of the accused."(23) As David Scheffer, the U.S. ambassador who led the U.S. delegation at Rome, also recognizes, "[u]nder the treaty's final terms, [nationals of] nonparty states would be subjected to the jurisdiction of the court ... under Article 12,"(24) and

Article 12 of the ICC treaty reduces the need for ratification of the treaty by national governments by providing the court with jurisdiction over the nationals of a nonparty state. Under Article 12, the ICC may exercise such jurisdiction over anyone anywhere in the world ... if either the state of the territory where the crime was committed or the state of nationality of the accused consents ... [and thus] the treaty exposes nonparties...."(25) In this sense, the ICC will be able to exercise a form of limited universal jurisdiction.

Paragraph 1 of Article 12 provides no further guidance, stating merely that if a state becomes a party it "thereby accepts the jurisdiction...