Politics by Other Means: The Law of the International Criminal Court

Cornell International Law Journal

Volumn 32, Issue 3, 1998, Pages 489-496

  Orentlicher, Diane F ^a,b  

^a Department of Law ^*

^b AMERICAN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0346308890     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (40)

1. Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998, U.N. Doc. A/ CONF.183/9 (1998) [hereinafter Rome Statute].
2. Id. art. 12(2) and (3). These preconditions do not apply when the Court's jurisdiction has been triggered by a Security Council referral pursuant to Article 13(b).
3. In view of frequent confusion surrounding this issue, it should be emphasized that satisfying the conditions set forth in Article 12 by no means assures that the ICC will assert jurisdiction. Even when those conditions have been satisfied, individuals may not be prosecuted before the ICC unless its jurisdiction has been triggered by one of the mechanisms contemplated in Article 13 with respect to a crime within the jurisdiction of the ICC, see Article 5, and a range of admissibility issues have been resolved in favor of jurisdiction. See Articles 17-19.
4. The general rule is set forth in Article 34 of the Vienna Convention on the Law of Treaties, concluded May 23, 1969, U.N. Doc. A/CONF.39/27 (entry into force Jan. 27, 1990). Article 35 provides that a treaty can establish an obligation for a non-State Party if the Parties so intend and the non-State Party "expressly accepts that obligation in writing."
5. See, e.g., Rome Statute, supra note 1, art. 89(1) (requiring States Parties to comply with requests for arrest and surrender).
6. The fact that the Rome Statute potentially enables the ICC to assert jurisdiction over nationals of non-States Parties does not in itself breach any principle of treaty law. It is well established that, once a group of States has created an international organization through a multilateral treaty, that organization possesses an objective legal personality even vis-à-vis States that are not parties to its constituent treaty. See Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174, 179 (Advisory Opinion of April 11, 1949). This principle is equally relevant to an international court established by multilateral treaty.
7. Rome Statute, supra note 1, art. 1 (emphasis added).
8. The Nürnberg Tribunal took pains to emphasize that those who commit "acts which are condemned as criminal by international law" do not enjoy the protection generally accorded persons acting on behalf of their States pursuant to "the doctrine of the sovereignty of the State." Nazi Conspiracy and Aggression: Opinion and Judgment, at 52-53 (Oct. 1, 1946), reprinted by United States Government Printing Office (1947) [hereinafter Nürnberg Judgment]. The Tribunal thus made clear that individuals who commit international crimes generally are not to be assimilated to their States, but rather stand directly before the bar of international justice.
9. See, e.g., Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951, art. VII(1)(a), (2)(a), and (3)(a), 199 U.N.T.S. 68, 76-78. Other provisions of this treaty vest primary or exclusive jurisdiction over crimes committed by forces of a sending State in the courts of the receiving State. See id. art. VII(1)(b), (2)(b), and (3)(b).
10. See Siegfried Wiessner, Blessed Be the Ties that Bind: The Nexus between Nationality and Territory, 56 Miss. L.J. 447, 525 (1986). Although the United States is a Party to several extradition treaties that include such a provision, contemporary U.S. policy does not generally aim at excepting U.S. citizens from extradition. See id. at 526-29.
11. Examples of multilateral treaties with similar provisions include the European Convention on Extradition, Dec. 13, 1957, art. 6(1)(a) and 2, 359 U.N.T.S. 273; and the Organization of American States Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that Are of International Significance, Feb. 2, 1971, art. 5, 27 U.S.T. 3949, T.I.A.S. 8413.
12. Examples of multilateral treaties with similar provisions include the European Convention on Extradition, Dec. 13, 1957, art. 6(1)(a) and 2, 359 U.N.T.S. 273; and the Organization of American States Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that Are of International Significance, Feb. 2, 1971, art. 5, 27 U.S.T. 3949, T.I.A.S. 8413.
13. Adopted and opened for signature, ratification and accession by GA Res. 39/46, U.N. GAOR, 39th Sess., U.N. Doc. A/45/47 (1984) (entered into force June 26, 1987).
14. Id. art. 5(2). The United States ratified the Torture Convention in 1994.
15. Id. art. 5(1)(a) and (b). These provisions of the Torture Convention were modeled upon similar provisions in various anti-terrorism conventions cited infra note 16.
16. See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War, adopted Aug. 12, 1949, art. 146, 6 U.S.T. 3516, 75 U.N.T.S. 287.
17. These include, inter alia, the International Convention Against the Taking of Hostages, Dec. 17, 1979, arts. 5(2) and 8, G.A. Res. 34/146, U.N. GAOR, 34th Sess., Supp. No. 39, U.N. Doc. A/34/36 (1979); the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 14, 1973, arts. 3(2) and 7, 28 U.S.T. 1975, T.I.A.S. No. 8532; the Convention on the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, arts. 4 and 7, 22 U.S.T. 1641, T.I.A.S. No. 7192, 860 U.N.T.S. 105; and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, arts. 5 and 7, 24 U.S.T. 565.
18. These include, inter alia, the International Convention Against the Taking of Hostages, Dec. 17, 1979, arts. 5(2) and 8, G.A. Res. 34/146, U.N. GAOR, 34th Sess., Supp. No. 39, U.N. Doc. A/34/36 (1979); the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 14, 1973, arts. 3(2) and 7, 28 U.S.T. 1975, T.I.A.S. No. 8532; the Convention on the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, arts. 4 and 7, 22 U.S.T. 1641, T.I.A.S. No. 7192, 860 U.N.T.S. 105; and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, arts. 5 and 7, 24 U.S.T. 565.
19. These include, inter alia, the International Convention Against the Taking of Hostages, Dec. 17, 1979, arts. 5(2) and 8, G.A. Res. 34/146, U.N. GAOR, 34th Sess., Supp. No. 39, U.N. Doc. A/34/36 (1979); the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 14, 1973, arts. 3(2) and 7, 28 U.S.T. 1975, T.I.A.S. No. 8532; the Convention on the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, arts. 4 and 7, 22 U.S.T. 1641, T.I.A.S. No. 7192, 860 U.N.T.S. 105; and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, arts. 5 and 7, 24 U.S.T. 565.
20. These include, inter alia, the International Convention Against the Taking of Hostages, Dec. 17, 1979, arts. 5(2) and 8, G.A. Res. 34/146, U.N. GAOR, 34th Sess., Supp. No. 39, U.N. Doc. A/34/36 (1979); the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 14, 1973, arts. 3(2) and 7, 28 U.S.T. 1975, T.I.A.S. No. 8532; the Convention on the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, arts. 4 and 7, 22 U.S.T. 1641, T.I.A.S. No. 7192, 860 U.N.T.S. 105; and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, arts. 5 and 7, 24 U.S.T. 565.
21. As noted above, even when a State has not ratified the Rome Statute, it may consent to ICC jurisdiction over one of its nationals on an ad hoc basis.
22. See Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537, 2555 and 2557 n. 79 (1991).
23. Nürnberg Judgment, supra note 8, at 48 (emphasis added). While this passage focuses upon the territorial basis of jurisdiction deriving from the Four Powers' status as occupation forces, the basic principle that States can "do together" jurisdictionally "what any one of them might have done singly" would be equally relevant with respect to any basis for exercising national jurisdiction established in international law. Thus, for example, since international law permits any State to exercise prescriptive jurisdiction with respect to conduct of its nationals, two or more States could agree to pool their jurisdictional authority in a new court that they have empowered to exercise jurisdiction over certain conduct committed by the nationals of any of those States.
24. See David J. Scheffer, U.S. Policy and the International Criminal Court, 32 CORNELL INT'L L.J. 529-534 (1999) (asserting that "the universal jurisdiction created by Rome would mean something new, at least for American troops stationed abroad"). There were proposals to establish such a system, but these did not garner sufficient support to be included in the Rome Statute.
25. See, e.g., id. at 533-34.
26. See id. at _.
27. See Rome Statute, supra note 1, arts. 17-18.
28. Scheffer, supra note 20, at 529-530. In addition to the "complementarity regime" that lies at the heart of the Rome Statute, U.S. concerns relating to prosecution of its nationals, which pertain principally to members of its armed forces, are also addressed through Article 98(2). That provision states that the ICC "may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender." See Rome Statute, supra note 1, art. 98(2). The United States can, of course, seek to establish treaty agreements of this nature with States in which members of its armed forces are stationed, thereby further minimizing the already remote risk that its nationals will be prosecuted before the ICC.
29. Scheffer, supra note 20, at 529-530. In addition to the "complementarity regime" that lies at the heart of the Rome Statute, U.S. concerns relating to prosecution of its nationals, which pertain principally to members of its armed forces, are also addressed through Article 98(2). That provision states that the ICC "may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender." See Rome Statute, supra note 1, art. 98(2). The United States can, of course, seek to establish treaty agreements of this nature with States in which members of its armed forces are stationed, thereby further minimizing the already remote risk that its nationals will be prosecuted before the ICC.
30. As Ambassador Scheffer noted, during the final week of the Rome Conference the United States sought to achieve such an assurance through a proposal that, in his words, would "exempt from the ICC's jurisdiction conduct that, in the absence of a Security Council referral, arises from the official actions of a non-party state acknowledged as such by that non-party." Id. at 534. The United States has continued to advance a variation on this proposal in the aftermath of the Rome Conference. As it has been publicly framed, this proposal raises troubling questions. Beyond the obvious issues of principle (why, after all, should a rogue regime be able to shield its most depraved offenders from justice merely by acknowledging that their depredations were a matter of state policy?), the proposal seems to rest upon a manifestly false premise - that the United States could invoke this exemption merely by "confirm[ing] . . . its participation in international peacekeeping and enforcement actions" while "odious non-party regimes" would have to admit "genocide as an official state policy" in order to benefit from that same exemption. Id. If the proposed exemption merely required a non-State Party to acknowledge that alleged crimes were carried out in the course of an officially-acknowledged operation, States would have little incentive to refrain from claiming the exemption. If, instead, it required the non-State Party to acknowledge that international crimes were committed pursuant to a criminal state policy, it is difficult to imagine the United States claiming such an exemption.
31. See Rome Statute, supra note 1, art. 13(b).
32. See id. art. 13(c).
33. See id. art. 13(a). As previously noted, before the ICC can exercise jurisdiction upon referral by a State Party or pursuant to the Prosecutor's action propio motu, the preconditions established by Article 12 must be satisfied.
34. Mr. Narinder Singh, Remarks at the Cornell International Law Journal 1999 Symposium (March 5-6, 1999).
35. See Explanation of Vote by Mr. Dilip Lahiri, Head of Delegation of India, on the Adoption of the Statute of the International Court, July 17, 1998 [hereinafter Explanation of Vote]. In notable contrast, the U.S. government would have preferred that the Council play the role of gatekeeper with respect to the Court's docket. See Editorial, An Effective International Court, N.Y. TIMES, Dec. 15, 1997. At the Rome Conference, the U.S. delegation supported allowing States Parties to the Rome Statute, as well as the Security Council, to refer situations to the Prosecutor - a position that enjoyed general support.
36. See Explanation of Vote by Mr. Dilip Lahiri, Head of Delegation of India, on the Adoption of the Statute of the International Court, July 17, 1998 [hereinafter Explanation of Vote]. In notable contrast, the U.S. government would have preferred that the Council play the role of gatekeeper with respect to the Court's docket. See Editorial, An Effective International Court, N.Y. TIMES, Dec. 15, 1997. At the Rome Conference, the U.S. delegation supported allowing States Parties to the Rome Statute, as well as the Security Council, to refer situations to the Prosecutor - a position that enjoyed general support.
37. Explanation of Vote, supra note 30.
38. Id.
39. See U.N. SCOR, 22d Sess., 3217th mtg. at 19, U.N. Doc. S/RES.827 (1993) (establishing the International Criminal Tribunal for the former Yugoslavia); S.C. Res. 955 (1994) (establishing the International Criminal Tribunal for Rwanda).
40. See U.N. SCOR, 22d Sess., 3217th mtg. at 19, U.N. Doc. S/RES.827 (1993) (establishing the International Criminal Tribunal for the former Yugoslavia); S.C. Res. 955 (1994) (establishing the International Criminal Tribunal for Rwanda).