The Icc and Non-party States: Consistency and Consensus Revisited

• Publication year: 2019
• Citation: Vol. 47 No. 3

THE ICC AND NON-PARTY STATES: CONSISTENCY AND CONSENSUS REVISITED

Chimène I. Keitner^*

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I thought I would begin with the observation that this conference is called The International Criminal Court and the Community of Nations, and so each of our conversations today has been structured around a different "community." When it comes to non-party states, however, I am hard pressed to conceptualize them as forming a community per se. One would expect members of a community to share certain attributes, including at least some sort of shared values or understandings. Nonetheless, as we heard from Diane Amann this morning, there is a refrain that we hear from many of the non-party states. It is a refrain of emphasis on sovereignty, and a distinction between the sovereigntist values of these non-party states and the idea of "global governance" embodied by international institutions and by the International Criminal Court (ICC)—or so the dichotomy is presented.¹ To the extent there is a community at work, perhaps the glue among these disparate states is at least a rhetorical emphasis on sovereignty and a tacit or even explicit assumption that sovereignty is inherently in tension with the treaty mechanisms that were created in Rome in 1998. In my remarks, I will talk about the who of this community, the what of their complaints about the ICC, and the why that animates these complaints.

It is fairly straightforward to identify the who. As you all know, at the Rome Conference in 1998, 120 states voted to adopt the treaty.² Seven states voted against the treaty, and although it was an anonymous vote, those states have subsequently been identified as China, Iraq, Israel, Qatar, Sri Lanka, Sudan, and the United States.³ The main objection articulated by the United

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States at the time, as you will recall, was a fairly narrow and specific objection: namely, that the treaty structure adopted by these 120 states contains jurisdictional provisions that enable the ICC to exercise jurisdiction over individuals who are nationals of states that have yet to ratify the Rome Statute.⁴ Contrary to misrepresentations in popular media, and even statements by some current U.S. officials, the ICC does not purport to exercise an unlimited universal jurisdiction.⁵ However, if crimes that fall within the subject matter jurisdiction and the temporal jurisdiction of the court are alleged to have been committed on the territory of a state party to the Rome Statute, then individuals implicated in those crimes, who may be nationals of non-party states, also fall within the enumerated categories of jurisdiction under the statute.⁶ This possibility has always been the consistent objection of the United States to the structure of the Rome Statute and to the purported jurisdictional reach of the court that it created.⁷ In addition, if a situation is referred to the ICC by the UN Security Council, the fact that a state whose nationals are implicated by the referral has not ratified the Rome Statute will not be a barrier to the ICC exercising its jurisdiction under the terms of the Rome Statute.⁸

Notwithstanding this objection, as you all know, the administration of President Bill Clinton affixed the signature of the United States to the Rome Statute at the very last opportunity.⁹ Although the United States is not a party to the Vienna Convention on the Law of Treaties (VCLT), Article 18 of that convention indicates that a signatory to a treaty—not necessarily a party, but a signatory—is obliged not to take any steps to undermine the object and purpose of that treaty.¹⁰ If you are a party to the VCLT, or if you think that Article 18 has some customary international law valence, then you might be concerned about the status of the United States as a signatory. This is not a position the Bush administration, which followed the Clinton administration, was satisfied with, to say the least.¹¹ In 2001, Senator Jesse Helms gave a speech at the American Enterprise Institute that I quoted in a 2001 article about the ICC and article 98(2).¹² Just to give you a flavor—this is back in the very

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beginning, before the court even existed, before the statute had been ratified by the required 60 states—Jesse Helms said:

[f]irst, the Bush Administration should simply un-sign the Rome Statute. I mean, quite literally, that the Administration should instruct someone at the U.S. Mission in New York to walk across the street to the UN, ask to see the treaty document, and then take out a pen and draw a line through Ambassador Scheffer's name. I think that will send a clear message.¹³

Well, as all of you know, the United States is reported to have "un-signed" the treaty. In concrete terms, the United States purported to do this by sending a letter, indicating the United States did not intend to ratify the statute and therefore did not consider itself to be bound by any obligation under Article 18 to act consistent with, or not to undermine, the statute.¹⁴ As you may also recall, that letter, which was sent in 2002, was perhaps somewhat unusually signed not by the Ambassador to the United Nations, but by the Under Secretary of State for Arms Control and International Security, coincidentally a gentleman by the name of John Bolton.¹⁵

Since that 2002 letter from the United States, a number of other signatories to the Rome Statute have also deposited letters indicating they do not intend to become parties and therefore do not consider themselves bound in any way by their signatures.¹⁶ These signatories include...