The U.S. and the ICC: no more excuses.

• Published date: 22 September 2013
• Author: Paust, Jordan J.
• Date: 22 September 2013

INTRODUCTION

More than fourteen years after its creation and twelve years after it began to function, the International Criminal Court ("ICC") still does not have direct support from the United States as a party to its constitutive instrument. There had been prior excuses for the U.S. not becoming a party to the Rome Statute. For example, it had been claimed that there might be unfounded or politicized prosecutions involving unprofessional prosecutors and judges and that a new definition of aggression that could later be created might prevent the United States from using armed force that is permissible under the United Nations Charter. Others had thought that by not becoming a party to the treaty, the U.S. could assure that U.S. nationals would not be prosecuted before the ICC. Are any of these excuses valid today, whether or not they had been previously?

I. PRIOR EXCUSES

A. Previously Stated Concerns

1. Unfounded Prosecutions

One of the stated reasons for U.S. concern had been that the ICC might engage in "unfounded charges" against U.S. officials, (1) despite obvious limitations of its jurisdiction that are set forth in the Rome Statute of the ICC (2) with respect to the types of crimes that can be prosecuted before the ICC. (3) For example, in December 2000 President Clinton expressed this concern but added that the U.S. had "worked effectively to develop procedures that limit the likelihood of politicized prosecutions," (4) which had been an additional and related concern of the United States. Giving an example, President Clinton then stated that "U.S. civilian and military negotiators helped to ensure greater precision in the definitions of crimes within the Court's jurisdiction." (5)

With more precise definitions appearing in the Rome Statute of the ICC and the subsequent creation of the Elements of Crimes, (6) one would assume that ICC use of "unfounded" charges had become most unlikely. Nonetheless, in subsequent years the Bush Administration also expressed concern that ICC jurisdictional provisions left U.S. officials "subject to 'an unaccountable prosecutor' and 'unchecked judicial power.'" (7) This is especially true since the United States had been unsuccessful in limiting all prosecutions before the ICC to those authorized by the United Nations Security Council and, therefore, a U.S. control available through exercise of its veto power. (8) Contrary to stated fears of rogue prosecutors, it is obvious that prosecutors would be "accountable" before Pre-Trial, Trial, and Appellate Chambers of the ICC if they tried to deviate from the definitions set forth in the Rome Statute of the ICC or the Elements of Crimes. (9) With respect to "unchecked judicial power," it may be noted that the Supreme Court of the United States is seemingly more unchecked, (10) but no one would seriously argue that its judicial power and independence should be subject to political control, the very circumstance associated with unacceptable "politicized" prosecutions and institutions. (11)

2. Politicized Prosecutions

Another stated concern of the United States had been the fear that the ICC might permit "politicized" prosecutions of U.S. officials, (12) but President Clinton noted that this was far less likely after efforts to provide greater precision with respect to definitions of the crimes within the jurisdiction of the ICC had been successful. (13) Moreover, as noted above, ICC prosecutors are accountable in several ways to an independent judiciary that is itself subject to policing for improper judicial conduct and politicized prosecutions. For these reasons, prior fears of unfounded charges and politicized prosecutions have themselves become unfounded.

Commentators have also noted that actual practice before the ICC during the last ten years should allay any lingering fears of politicized prosecutions. (14) As U.S. Ambassador Stephen Rapp noted in 2010 with respect to a prior U.S. concern about politicized prosecutions, "[t]hus far, the Court has been appropriately focused." (15) There is no reason why the Court will not continue to focus on the crimes and procedures set forth in the Rome Statute that necessarily limit its jurisdiction and proceedings.

3. The Crime of Aggression

One stated worry of the United States was whether the crime of aggression that would be prosecutable before the ICC might limit permissible use of armed force under the United Nations Charter. (16) This might have been possible if the definition of aggression encompassed the use of armed force that is not prohibited under Article 2, paragraph 4 of the U.N. Charter (17) or that is permissible as Security Council authorized enforcement action under Article 42, (18) individual or collective self-defense under Article 51, (19) or regional action under Article 52 (20) of the U.N. Charter. Because there has not always been agreement concerning what constitutes an act of aggression, (21) there was a danger that a new definition of the crime of aggression for ICC prosecution might deviate from the law of the Charter.

This danger of deviation is no longer present. First, the definition of the crime of aggression adopted during the Review Conference in Kampala in June 2010 is unavoidably tied to a requirement that "an act of aggression" constitute a "violation of the Charter of the United Nations." (22) Second, the act must be a "manifest" violation of the Charter, (23) thereby leaving aside conduct that is not in obvious violation. Third, the act must be manifestly in violation because of "its character, gravity and scale." (24) Within the definitional amendment to the Rome Statute, there is also an express reference to the 1974 Resolution on the Definition of Aggression. (25) The 1974 Definition expressly affirmed in its preamble "that nothing in this Definition shall be interpreted as in any way affecting the scope of the provisions of the Charter with respect to the functions and powers of the organs of the United Nations," and declared in Article 2 that "[t]he first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of aggression," (26) thereby limiting aggression to armed force "in contravention" of the Charter. It also declared in Article 3 that the list of acts set forth therein might qualify as acts of aggression "subject to and in accordance with the provisions of Article 2," (27) thereby affirming the limitation in Article 2 to use of armed force "in contravention" of the Charter. (28)

Additionally, a state like the United States can become a party to the Rome Statute and opt out of the ICC's jurisdiction over the crime of aggression. (29) For this reason, among others, Legal Adviser Harold Koh declared that the Amendments to the Rome Statute adopted at Kampala "ensure total protection for U.S. armed forces and other nationals going forward." (30) In view of the fact that crimes of aggression before the ICC must be manifest violations of the Charter and that the U.S. can opt out of ICC coverage of alleged acts of aggression by the United States, there is no longer a valid reason for the U.S. to refuse to become a party to the treaty. Certainly the U.S. should no longer worry that the crime of aggression will inhibit use of armed force by the United States that is permissible under the United Nations Charter.

B. The Seeming Real Preference of Some Within the United States

Although some have expressed concern about unfounded or politicized prosecutions of U.S. nationals and whether or not the definition of the crime of aggression that will be prosecutable before the ICC will deviate from what are permissible uses of force under the United Nations Charter, I suspect that for some, the real reason for early opposition to U.S. ratification of the Rome Statute was a preference for a functional immunity of U.S. nationals from prosecution. This preference is sometimes hidden in an effort to achieve a primacy for national jurisdiction over that of the ICC in a context when U.S. prosecutions had been notably absent with respect to crimes against humanity and, at best, quite rare with respect to war crimes. (31) Writing in January 2001, Ruth Wedgwood, Harold Jacobson, and Monroe Leigh noted that "[t]he principal objection raised by the [Clinton] administration ... was that American nationals ... could in certain contingencies be subjected to trial in the new court without the specific consent of the United States." (32) As they pointed out:

 From the point of view of our European allies, it is bad enough
                 that the exemption [of non-party state nationals proposed by the
                 U.S.] has sometimes come as a rather strident demand for American
                 exceptionalism, which reinforces their innate suspicion that the
                 United States is giving way to hegemonic ambitions. They find it
                 the more objectionable because it virtually guarantees that the
                 court would be unable to exercise jurisdiction over nationals of
                 rogue states who, through lack of caution or otherwise, happen to
                 come into the custody of the court and are unlikely in any event to
                 belong to a state that is party to the Rome Statute. (33)
                

In 1999, U.S. legislation contained a section that had been created in an attempt to assure that there would be no extradition or transfer of a U.S. citizen from any foreign country to the ICC. (34) Over several years, the U.S. Executive also entered into a large number of "Article 98" bilateral agreements with foreign countries in an effort to exempt U.S. persons from transfer to the ICC and had used economic sanctions against countries that refused to enter into such agreements. (35) Curiously, by following the strictures of such a mixture of legislation and Article 98 agreements, and thereby seeking to deny the possibility of ICC prosecution, U.S. nationals who are reasonably accused of having participated in certain international crimes could be left in the courts or military commissions of foreign countries that...