The constitutionality of the rome statute of the international criminal court

Journal of Criminal Law and Criminology

Volumn 98, Issue 3, 2008, Pages 983-1068

  Scheffer, David ^a   Cox, Ashley ^b  

^a NORTHWESTERN UNIVERSITY   (United States)

^b Kirkland and Ellis LLP in Chicago   (United States)

Author keywords

[No Author keywords available]

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EID: 62249203589     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (430)

1. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 (entered into force on July 1, 2002) [hereinafter Rome Statute], available at http://www.icc-cpi.int/library/about/offιcialjournal/ Rome-Statute-English.pdf.
2. Alessandra Stanley, U.S. Dissents, but Accord Is Reached on War Crimes Court, N.Y. TIMES, July 17, 1998, at Al.
3. See, e.g., Diane Marie Amann, The United States of America and the International Criminal Court, 50 AM. J. COMP. L. 381 (2002); John R. Bolton, The Risks and Weaknesses of the International Criminal Court From America's Perspective, 64 LAW & CONTEMP. PROBS. 167 (2001); Brett W. Johnson, The Future Constitutional Battle if the United States Ratifies the International Criminal Court Treaty, 3 CHI.-KENT J. INT'L & COMP. L 1 (2003), http://www.kentlaw.edu/jicl/spring2003.html; Monroe Leigh, Editorial Comment, The United States and the Statute of Rome, 95 AM. J. INT'L L. 124 (2001); Ruth Wedgwood, The Constitution and the ICC, in THE UNITED STATES AND THE INTERNATIONAL CRIMINAL COURT 119 (Sarah B. Sewall & Carl Kesen eds., 2000); Audrey I. Benison, Note, International Criminal Tribunals: Is There a Substantive Limitation on the Treaty Power?, 37 STAN. J. INT'L L. 75 (2001); see also Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 COLUM. J. TRANSNAT'L L. 73, 101-35 (1995) (discussing constitutionality under U.S. law of a prospective ICC statute).
4. See, e.g., John B. Bellinger III, Legal Adviser to the U.S. Sec'y of State, Reflections on Transatlantic Approaches to International Law, Speech at the Duke University School of Law Center for International and Comparative Law (Nov. 15, 2006), in 17 DUKE J. COMP. & INT'L L. 513, 520 (2007) ("Embracing the Rome Statute in spite of our serious concerns could only reflect a cavalier attitude towards the Court and international law more generally."); John B. Bellinger III, Legal Adviser to the U.S. Sec'y of State, The United States and the International Criminal Court: Where We've Been and Where We're Going, Remarks to the DePaul University College of Law (Apr. 25, 2008), available at http://www.state.gOv/s/l/rls/104053.htm [hereinafter Bellinger Remarks] ("The core concerns of the United States about the Rome Statute have not been resolved during the past decade, and are unlikely to be resolved in the next decade, unless the Statute is changed. Accordingly, as we look forward, the United States will very likely remain outside the Rome Statute regime. This is a reality that ICC supporters should accept."); News Release, Senior Defense Official, Department of Defense, Background Briefing on the International Criminal Court (July 2, 2002), available at http://www.defenselink.mil/transcripts /transcript.aspx?transcriptid=3528 ("In the Prosecutions [of an American by the ICC], Americans would not be entitled to all of the protections that our Constitution affords to Americans in criminal prosecutions ... the added risks created by the ICC necessitate our withdrawing the U.S. peacekeepers from the East Timor mission."); News Release, Department of Defense, Secretary Rumsfeld Statement on the ICC Treaty (May 6, 2002), available at http://www.defenselink.mil/releases/release. aspx?releaseid=3337 ("Earlier today, this administration announced the president's decision to formally notify the United Nations that the United States will not become a party to [sic] International Criminal Court treaty. The U.S. declaration, which was delivered to the secretary general this morning, effectively reverses the previous U.S. government decision to become a signatory."); Marc Grossman, Under Sec'y for Political Affairs, U.S. Dep't of State, Remarks to the Center for Strategic and International Studies, (May 6, 2002), available at http://www.state.gov /p/us/rm/9949.htm ("In order to make our objections clear, both in principle and philosophy, and so as not to create unwarranted expectations of U.S. involvement in the Court, the President believes that he has no choice but to inform the United Nations, as depository of the treaty, of our intention not to become a party to the Rome Statute of the International Criminal Court.").
5. See generally KELLY WHITLEY, RESPONSIBILITY TO PROTECT COAL. & NORTHWESTERN UNIV. SCHOOL OF LAW CTR. FOR INT'L HUMAN RIGHTS, THE RESPONSIBILITY TO PROTECT AND THE INTERNATIONAL CRIMINAL COURT: AMERICA'S NEW PRIORITIES (2008), available at http://www.cfr.Org/publication/l5802/northwestern-university-school-of-law. html; John P. Cerone, Dynamic Equilibrium: The Evolution of US Attitudes toward International Criminal Courts and Tribunals, 18 EUR. J. INT'L L. 277, 315 (2007); Jose Alvarez, The Evolving U.S.- ICC Relationship: Notes from the President, 24 AM. SOC'Y INT'L L. NEWSL. 1 (2008), available at http://www.asil.org/newsletter/president/pres080320.html.
6. We follow in the footsteps of such legal scholars as Professor Ruth Wedgwood, who in 2000 wrote, "The ICC is a new creation in international jurisprudence, and thus, one should not expect cut-and-dried precedent on the matter. But the most persuasive answer is that there is no forbidding constitutional obstacle to U.S. participation in the treaty." Wedgwood, supra note 3, at 121.
7. We acknowledge at the outset that one of the authors of this Article, David Scheffer, was the U.S. Ambassador at Large for War Crimes Issues from 1997 to 2001, was deputy head of the U.S. delegation to the U.N. talks on the ICC from 1995 to 1997, and was head of the U.S. delegation to the Rome talks from August 1997 to January 2001. He signed the Rome Statute on behalf of the United States of America on December 31, 2000. Steven Lee Meyers, U.S. Signs Treaty for World Court to Try Atrocities, N.Y. TIMES, Jan. 1, 2001, at Al. Since then, he has written a considerable number of articles explaining, inter alia, what transpired during the years of negotiation, and why the United States should move towards a posture of cooperation with, and ultimately State Party status to, the International Criminal Court. See David Scheffer & John Hutson, Strategy for U.S. Engagement with the International Criminal Court, CENTURY FOUNDATION (2008), available at http://www.tcf.org/list.asp?type=TP&topic=8A;
8. David Scheffer, Review of the Experiences of the Pre-Trial and Appeals Chambers of the International Criminal Court Regarding the Disclosure of Evidence, 21 LEIDEN J. OF INT'L L. 151 (2008);
9. The US and the International Criminal Court Then and Now, JURIST, July 15, 2008, http://jurist.law.pitt.edu/forumy/ 2008/07/us-and-international- criminal-court.php;
10. Introductory Note to Decision on the Prosecution Application under Article 58(7) of the Statute in the Case of the Prosecutor v. Ahmad Muhammad Harun (Ahmad Harun) and Ali Muhammad Al Abd-Al-Rahman (Ali Kushayb) ICC Pre-Trial Chamber I, in 46 I.L.M. 532 (2007);
11. David Scheffer et al., The End of Exceptionalism in War Crimes, HARV. INT'L REV., NOV. 21, 2007, http://www.harvardir.org/articles/1647/;
12. David Scheffer, Jostling Over Justice, 154 FOREIGN POL'Y 4 (2006);
13. Advancing U.S. Interests with the International Criminal Court, Address at the Vanderbilt University Law School (Mar. 27, 2003), in 36 VAND. J. TRANSNAT'L L. 1567 (2003);
14. Restoring U.S. Engagement with the International Criminal Court, 21 WIS. INT'L L.J. 599 (2003);
15. Should the United States Join the International Criminal Court?, Presentation at the University of California at Davis Journal of International Law and Policy Symposium: An Emerging International Criminal Justice System: Milosevic, Killing Fields, and "Kangaroo" Courts (Apr. 22, 2002), in 9 U.C. DAVIS J. INT'L L. & POL'Y 45 (2002);
16. Staying the Course with the International Criminal Court, 35 CORNELL INT'L L.J. 47 (2002);
17. The Future of Atrocity Law, 25 SUFFOLK TRANSNAT'L L. REV. 389 (2002);
18. A Negotiator's Perspective on the International Criminal Court, Fourteenth Waldemar A. Solf Lecture in International Law delivered at the Judge Advocate General's School (Feb. 28, 2001), in 167 MIL. L. REV. 1 (2001);
19. Correspondence, 95 AM. J. INT'L L. 624 (2001) (discussing International Criminal Court negotiations);
20. Opening Address at the New England Law Review Symposium: Universal Jurisdiction: Myths, Realities, and Prospects (Nov. 3, 2001), in 35 NEW ENG. L. REV. 233 (2001);
21. The International Criminal Court, in ABA CONFERENCE ON THE UN DECLARATION OF HUMAN RIGHTS & THE GENOCIDE CONVENTION 88 (American Bar Association, 2001);
22. The International Criminal Court: The Challenge of Jurisdiction, 93 AM. SOC'Y INT'L L. PROC. 65 (2000);
23. The U.S. Perspective on the ICC, in THE UNITED STATES & THE INTERNATIONAL CRIMINAL COURT 115 (Sarah B. Sewall & Carl Kaysen eds. 2000);
24. The United States and the International Criminal Court, 93 AM. J. INT'L L. 12 (1999);
25. The U.S. Perspective on the International Criminal Court, Comments at the McGill Law Journal International Conference: Hate, Genocide and Human Rights Fifty Years Later: What Have We Learned? What Must We Do? (Jan. 28, 1999), in 46 MCGILL L.J. 269 (2000);
26. U.S. Policy and the International Criminal Court, Remarks at the Cornell International Law Journal Symposium: The International Criminal Court: Consensus and Debate on the International Adjudication of Genocide, Crimes Against Humanity, War Crimes, and Aggression (Mar. 5, 1999), in 32 CORNELL INT'L L.J. 529 (1999). Constitutional issues were constantly considered by the U.S. delegation during the years of negotiations stretching from 1995 to 2001. U.S. Department of Justice career attorneys, particularly from the Criminal Division, actively participated on the U.S. delegation and deeply influenced the negotiations leading to the text of the Rome Statute concluded in July 1998, and the negotiations leading to the Rules of Procedure and Evidence, concluded in June 2000. That experience, along with contemporary research and reflection on the issues, informs this Article.
27. David Scheffer, Genocide and Atrocity Crimes, 1 GENOCIDE STUD. & PREVENTION 229 (2006); David Scheffer, The Merits of Unifying Terms: "Atrocity Crimes" and "Atrocity Law," 2 GENOCIDE STUD. & PREVENTION 91 (2007).
28. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter ICTY Statute]; International Criminal Tribunal for the former Yugoslavia Home Page, http://www.un.org/icty/ (last visited Aug. 5, 2008).
29. Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States, Between 1 January 1994 and 31 December 1994, Annex to S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR Statute]; International Criminal Tribunal for Rwanda Home Page, http://www.ictr.org (last visited Aug. 5, 2008).
30. Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Jan. 16, 2002, U.N. SCOR, 57th Sess., Annex, U.N. Doc. S/2002/246, available at http://www.sc-sl.org/Documents/scsl- agreement.html; and Statute of the Special Court for Sierra Leone, Jan. 16, 2002, 2178 U.N.T.S. 145, ¶ 17, available at http://www.sc-sl.org/Documents/scsl-statute.html; see also S.C. Res. 1370, U.N. Doc. S/RES/1370 (Sept. 18, 2001) (encouraging the Secretary-General, the government of Sierra Leone, and others involved "to expedite the establishment of. . . the Special Court envisaged by Resolution 1315 (2000) of 14 August 2000"); S.C. Res. 1315 ¶ 6, U.N. Doc. S/RES/1315 (Aug. 14, 2000) (requesting that the UN Secretary General issue a report concerning the establishment of a special court in order to prosecute perpetrators in Sierra Leone); Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, U.N. Doc. S/2000/915 (2000) (delineating the legal framework and requisite administrative elements for the establishment of a Sierra Leonean special court and setting forth in the Annex thereto the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, and in the Enclosure thereto the proposed text of the Statute of the Special Court for Sierra Leone); WILLIAM A. SCHABAS, THE UN INTERNATIONAL CRIMINAL TRIBUNALS: THE FORMER YUGOSLAVIA, RWANDA AND SIERRA LEONE (2006) (examining attributes of the Special Court for Sierra Leone); Avril D. Haines, Accountability in Sierra Leone: the Role of the Special Court, in ACCOUNTABILITY FOR ATROCITIES: NATIONAL AND INTERNATIONAL RESPONSES 173-326 (Jane E. Stromseth ed., 2003) [hereinafter ACCOUNTABILITY FOR ATROCITIES].
31. Law on the Establishment of the Extraordinary Chambers, NS/RKM/1004/006 (2006) (Cambodia), available at http://www.cambodiatribunal.org/CTM/ Domestic-Cambodian -Law-as-amended-27-Oct-2004-Eng.pdf; Agreement between the U.N. and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, available at http://www.cambodiatribunal.org/CTM/Agreement-between-UN- and-RGC.pdf; Extraordinary Chambers in the Courts of Cambodia, http://www.eccc.gov.kh/english /default.aspx (last visited Aug. 5, 2008). See David Scheffer, The Extraordinary Chambers in the Courts of Cambodia, in INTERNATIONAL CRIMINAL LAW (M. Cherif Bassiouni ed., 2008).
32. The Court of Bosnia & Herzegovina Home Page, http://www.sudbih.gov. ba/?jezik=e (last visited Aug. 5, 2008).
33. United Nations Mission in Kosovo Home Page, http://www.unmikonline.org/ (last visited Aug. 5, 2008).
34. See U.N. Transitional Administration in East Timor 1, U.N. Doc. UNTAET/REG/2000/15 (June 6, 2000), available at http://www.un.org/peace/ etimor /untaetR/Reg0015E.pdf (establishing a special panel of judges to address serious criminal offences committed in East Timor); see also Laura A. Dickinson, The Dance of Complementarity: Relationships Among Domestic, International, and Transnational Accountability Mechanisms in East Timor and Indonesia, in ACCOUNTABILITY FOR ATROCITIES, supra note 11, at 319 (examining the evolution of accountability and reconciliation mechanisms in East Timor and Indonesia in the aftermath of the September 1999 massacres in East Timor); Suzannah Linton, Rising from the Ashes: the Creation of a Viable Criminal Justice System in East Timor, 25 MELB. U. L. REV. 122 (2001) (describing the September 1999 massacres, conflict that followed, and the establishment of a criminal law system, including a process for prosecuting atrocity crimes).
35. ICTR Statute, supra note 10 (establishing an international tribunal for Rwanda and adopting the statute of the tribunal); ICTY Statute, supra note 9 (establishing an international tribunal for prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991).
36. Int'l Law Commission, Report of the International Law Commission to the General Assembly on the Work of Its Forty-Sixth Session, Draft Statute for an International Criminal Court, U.N. Doc. A/49/10 (May 2-July 22, 1994) (containing final draft statute for an international criminal court approved by the International Law Commission in 1994); see WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT 8-11 (3d ed. 2007) ("The International Law Commission's draft statute of 1994 focused on procedural and organizational matters, leaving the question of defining the crimes and the associated legal principles to the code of crimes, which it had yet to complete.").
37. Preparatory Comm'n on the Establishment of an Int'l Crim. Ct., Introduction & Draft Organization of Work, A/Conf.183/2 (1998); Preparatory Comm'n on the Establishment of an Int'l Crim. Ct., Draft Statute & Draft Final Act, A/Conf. 183/2/Add. 1 (1998); Preparatory Comm'n on the Establishment of an Int'l Crim. Ct., Draft Rules of Procedure, A/Conf.183/2/Add.2 (1998); Report of the Inter-Sessional Meeting From January 19-30, 1998 held in Zutphen, The Netherlands, A/AC.249/1998/L.13 (1998); Preparatory Comm'n on the Establishment of an Int'l Crim. Ct., Decisions Taken at its Session held in New York December 1-12, 1997, A/AC.249/1997/L.9/Rev.l (1997); Preparatory Comm'n on the Establishment of an Int'l Crim. Ct., Decisions Taken at its Session held in New York August 4-15, 1997, A/AC.249/1997/L.8/Rev.l (1997); Preparatory Comm'n on the Establishment of an Int'l Crim. Ct., Decisions Taken at its Session held in New York February 11-21, 1997, A/AC.249/1997/L.5, 1997 (1997).
38. SCHABAS, supra note 17, at 15-21; Stanley, supra note 2.
39. Scheffer, Staying the Course with the International Criminal Court, supra note 7, at 68-72; Scheffer, The United States and the International Criminal Court, supra note 7, at 17.
40. Is a UN. International Criminal Court in the U.S. National Interest? Hearing Before the Subcomm. on Int'l Operations of the Senate Comm. on Foreign Relations, 105th Cong. 10, 12-15 (1998) (statement of David Scheffer) [hereinafter 1998 Senate Hearing]; Scheffer, Staying the Course with the International Criminal Court, supra note 7, at 77-86; Scheffer, The United States and the International Criminal Court, supra note 7, at 17-21.
41. SCHABAS, supra note 17, at 20-21 ("The result [of the vote] was 120 in favour, with twenty-one abstentions and seven votes against.... The United States, Israel and China stated that they had opposed adoption of the statute.").
42. Scheffer, Staying the Course with the International Criminal Court, supra note 7, at 74-86.
43. William K. Lietzau, Checks and Balances and Elements of Proof: Structural Pillars for the International Criminal Court, 32 CORNELL INT'L L.J. 477, 478-84 (1999).
44. Barbara Crossette, U.S. Gains Compromise on a War Crimes Tribunal, N.Y. TIMES, June 30, 2000, at A6.
45. Rome Statute, supra note 1, art. 125(1) (providing for December 31, 2000, as the last day any State may sign the Rome Statute-and thereafter ratify, accept, or approve the treaty to become a State Party to it; after December 31, 2000, a non-signatory State would have to accede to the treaty in order to become a State Party to it); William J. Clinton, Clinton's Words: 'The Right Action,' N.Y. TIMES, January 1, 2001, at A6 (reprinted statement on the treaty signing) [hereinafter Clinton Statement]; Steven Lee Meyer, U.S. Signs Treaty for World Court to Try Atrocities, N.Y. TIMES, Jan. 1, 2001, at Al.
46. Neil A. Lewis, U.S. Rejects All Support for a New Court on Atrocities, N.Y. TIMES, May 7, 2002, at Al 1; Letter from John R. Bolton, Secretary of State for Arms Control and International Security, to Kofi Annan, UN Secretary General (May 6, 2002), available at http://www.state.gOv/r/pa/prs/ps/2002/9968.htm). Article 18 of the Vienna Convention on the Law of Treaties, which the United States regards as reflecting customary international law, specifies that "[a] State is obliged to refrain from acts which would defeat the object and purpose of a treaty when ... it has signed the treaty ... until it shall have made its intention clear not to become a party to the treaty ...." Vienna Convention on the Law of Treaties, art. 18, May 23, 1969, 1155 U.N.T.S. 331; U.S. Department of State, Vienna Convention on the Law of Treaties, http://www.state.gOv/s/l/treaty/faqs/ 70139.htm (last visited Aug. 5, 2008) (explaining that although the United States is not a party to the Vienna Convention, the United States signed it on April 24, 1970, and "considers many of the provisions ... to constitute customary international law.").
47. U.S.C. §§ 7421-33 (2006).
48. Lillian V. Faulhaber, American Service Members Protection Act of 2002, 40 HARV. J. ON LEGIS. 537(2003).
49. John Warner National Defense Authorization Act for Fiscal Year 2007, Pub. L. 109-364, § 1210, 120 Stat. 2083 (amending the American Service-Members' Protection Act to remove International Military Education and Training (IMET) restrictions); National Defense Authorization Act for Fiscal Year 2008, Pub. L. 110-181, § 1212, 122 Stat. 3 (amending the American Service-Members' Protection Act to eliminate restrictions on Foreign Military Financing (FMF) assistance laws).
50. International Criminal Court: The State Parties to the Rome Statute, http://www.icc- cpi.int/asp/statesparties.html (last visited Aug. 5, 2008).
51. Id.
52. International Criminal Court: Democratic Republic of the Congo, http://www.icc- cpi.int/cases/RDC.html (last visited Aug. 5, 2008).
53. International Criminal Court: Uganda, http://www.icc-cpi.int/cases/UGD. html (last visited Aug. 5, 2008).
54. International Criminal Court: Central African Republic, http://www.icc- cpi.int/cases/RCA.html (last visited Aug. 5, 2008).
55. International Criminal Court: Darfur, Sudan, http://www.icc-cpi.int/ cases/Darfur.html (last visited Aug. 5, 2008).
56. ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW 353-77 (2d. ed. 2008); SCHABAS, supra note 17, at 1-25.
57. See, e.g., William Tetley, Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified), 60 LA. L. REV. 677, 684 (1999).
58. These include: Canada, the United States, Belgium, Greece, Gibraltar, Australia, Austria, England, Wales, Scotland, and Northern Ireland. Japan will introduce jury trials in 2009. For an overview of this development in Japan, see Hiroshi Fukurai, The Rebirth of Japan's Petit Quasi-Jury and Grand Jury Systems: A Cross-National Analysis of Legal Consciousness and the Lay Participatory Experience in Japan and the U.S., 40 CORNELL INT'LL.J. 315(2007).
59. Rules of Procedure and Evidence, ICC-ASP/1/3 (September 9, 2002), available at http://www.icc-cpi.int/about/Official-Journal.html.
60. Rome Statute, supra note 1, art. 36(3)(b) (requiring selection of judges who have established competence either in criminal law and procedure or "relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court").
61. For general discussion about the inquisitorial and adversarial systems of justice and use of judges and juries, see CASSESE, supra note 37, at 357-74, 441; SCHABAS, supra note 17, at 205-10.
62. See Reuters, Countries That Ratified New Criminal Court, N.Y. TIMES, Apr. 12, 2002, at A3; Barbara Crossette, War Crimes Tribunal Becomes Reality, Without U.S. Role, N.Y. TIMES, Apr. 12, 2002, at A3; Marlise Simons, Without Fanfare or Cases, International Court Sets Up, N.Y. TIMES, July 1, 2002, at A3.
63. Rome Statute, supra note 1, arts. 5-8.
64. Id. art. 5.
65. International Criminal Court: Special Working Group on the Crime of Aggression, http://www.icc-cpi.int/asp/aspaggression.html (last visited Aug. 5, 2008).
66. International Criminal Court: Situations and Cases, http://www.icc-cpi. int/cases.html (last visited Aug. 5, 2008).
67. Rome Statute, supra note 1, arts. 13-15.
68. Id. arts. 15,53,54,58.
69. CASSESE, supra note 37, at 338; SCHABAS, supra note 17, at 67-85; ALEXANDER ZAHAR & GORAN SLUITER, INTERNATIONAL CRIMINAL LAW 446-503 (2008); Scheffer, Staying the Course with the International Criminal Court, supra note 7, at 65.
70. Rome Statute, supra note 1, art. 12.
71. Id. art. 12(3).
72. SCHABAS, supra note 17, at 171-93; David Scheffer, Staying the Course with the International Criminal Court, supra note 7, at 52-63, 87-89.
73. See discussion, infra Part IV(D), on amending federal law.
74. Rome Statute, supra note 1, art. 17(l)(a).
75. Payam Akhavam, The Lord's Resistance Army Case: Uganda's Submission of the First State Referral to the International Criminal Court, 99 AM. J. INT'L L. 403, 409-11 (2005); Mahnoush H. Arsanjani & W. Michael Reisman, The Law-in-Action of the International Criminal Court, 99 AM. J. INT'L L. 385, 391-99 (2005).
76. Scheffer, Staying the Course with the International Criminal Court, supra note 7, at 74-87 (noting that these concerns included under Article 12, the preconditions to jurisdiction and how they might expose the United States as a non-State Party to the Court's jurisdiction; under Article 124, the exposure of a non-party State to war crimes charges even though a State Party could opt out of such a risk for seven years; under Article 121(5), the right of a State Party to opt out of a new or amended crime, but the implicit exposure of a non-party State to the new or amended crime; under Article 15, the ability of the Prosecutor to self- initiate investigations; under Article 5, the inclusion of an undefined crime of aggression, the prospect under Resolution E to the Rome Statute and Article 123 of the future inclusion of crimes of terrorism and drug crimes; under Article 120, the prohibition on any reservations to the Rome Statute; and under Article 8(2)(b)(vii), the precise definition of a war crime covering an Occupying Power transferring its own population, directly or indirectly, into the territory it occupies); see also David Scheffer, The United States and the International Criminal Court, supra note 7, at 17-21 (describing U.S. concerns about the Rome Statute during the Rome Conference of June-July 1998).
77. Clinton Statement, supra note 26; see also Scheffer, Staying the Course with the International Criminal Court, supra note 7, at 63-68 (explaining the reasoning behind President Clinton's signing statement of December 31, 2000).
78. 1998 Senate Hearing, supra note 21, at 15; Scheffer, Staying the Course with the International Criminal Court, supra note 7, at 73; Scheffer, The United States and the International Criminal Court, supra note 7, at 12, 17.
79. Rome Statute, supra note 1, art. 22(1) ("A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.").
80. Id. art. 23 ("A person convicted by the Court may be punished only in accordance with this Statute.").
81. Id. art. 24(1) ("No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.").
82. Id. art. 25.
83. Id. art. 26.
84. Id. art. 27.
85. Id. art. 28.
86. Id. art. 29.
87. Id. art. 30.
88. Id. art. 31.
89. Id. art. 32.
90. Id. art. 33.
91. SCHABAS, supra note 17, at 235-84.
92. Id. at 285-311.
93. Hakan Friman, Investigation and Prosecution, in THE INTERNATIONAL CRIMINAL COURT 491,494-512, 515-38 (Roy S. Lee et al. eds., 2001); 2 Olivier Fourmy, Powers of the Pre-Trial Chambers, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, 1207, 1208 & 1215-28 (Antonio Cassese et al. eds., 2002); 2 Guiliano Turone, Powers and Duties of the Prosecutor, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, supra, at 1137, 1148 & 1140-80; 2 Salvatore Zappala, Right of Persons During an Investigation, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, supra, 1181,1181-83 & 1195-1202.
94. Rome Statute, supra note 1, art. 77.
95. It would be a political non-starter for U.S. ratification purposes to expose American defendants before the ICC to the risk of a maximum sentence of death by execution, which is not possible under the Rome Statute anyway and cannot conceivably become one given the abolitionist policies of a large number of the State Parties towards the death penalty. For a discussion of the death penalty in the context of international extradition law and how the United States has addressed it in that context, see M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 621-38 (5th ed. 2007).
96. Bellinger Remarks, supra note 4; WHITLEY, supra note 5; The American Non-Governmental Organization Coalition for the International Criminal Court, Statements of the U.S. Presidential Candidates on the International Criminal Court, http://www.amicc.org/docs /2008 Candidates on ICC.pdf (last visited Aug. 5, 2008).
97. SCHABAS, supra note 17, at 174-86; Iain Cameron, Jurisdiction and Admissibility Issues Under the ICC Statute, in THE PERMANENT INTERNATIONAL CRIMINAL COURT: LEGAL AND POLICY ISSUES 86 (Dominic McGoldrick et al. eds., 2004); Frederik Harhoff & Phakiso Mochochoko, International Cooperation and Judicial Assistance, in THE INTERNATIONAL CRIMINAL COURT: ELEMENTS OF CRIMES AND RULES OF PROCEDURE AND EVIDENCE 664 (Roy S. Lee et al. eds., 2001); 1 John T. Holmes, Complementarity: National Courts versus the ICC, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, supra note 74, at 671-84; 1 Hans-Peter Kaul, Preconditions to the Exercise of Jurisdiction, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, supra note 74, at 607-08; Michael A. Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court, 167 MIL. L. REV. 20,44-63(2001).
98. The Court shall determine that a case is inadmissible where: (a) the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute .... Rome Statute, supra note 1, art. 17(1).
99. Id.
100. Kaul, supra note 78, at 607-08; Holmes, supra note 78, at 671-84.
101. Rome Statute, supra note 1, art. 13(b).
102. Id. art. 12(3).
103. Scheffer, Staying the Course with the International Criminal Court, supra note 7, at 87-89.
104. Rome Statute, supra note 1, art. 18; Holmes, supra note 78, at 681-82 (discussing Article 18 procedures); Scheffer, Staying the Course with the International Criminal Court, supra note 7, at 87-90 (explaining how Article 18 operates under principles of complementarity by requiring that the ICC defer to national legal systems that investigate and prosecute those who commit atrocity crimes within such nation's jurisdiction); see also SCHABAS, supra note 17, at 278-80 (examining admissibility of cases pursuant to Articles 18 and 19 of the Rome Statute).
105. Rome Statute, supra note 1, art. 18(4).
106. For background on the general objectives and statutory drafting of the complementarity principle, see generally 1998 Senate Hearing, supra note 21, at 15; M. CHERIF BASSIOUNI, THE LEGISLATIVE HISTORY OF THE INTERNATIONAL CRIMINAL COURT: INTRODUCTION, ANALYSIS, AND INTEGRATED TEXT 98-101 (2005); SCHABAS, supra note 17, at 171-86; Phillipe Kirsch & Darryl Robinson, Reaching Agreement at the Rome Conference, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, supra note 74, at 81-85.
107. Rome Statute, supra note 1, arts. 86-102.
108. Id. art. 98(2) ("The Court 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."). The use of the term "sending State" derives from the original American effort, very early in the ICC negotiations, to preserve the rights accorded to its official personnel covered by status of forces agreements (SOFAs) between the United States and scores of foreign governments and Status of Mission Agreements (SOMAs) that typically are negotiated in connection with United Nations or multinational military operations. That requirement was advanced by US negotiators during initial discussions about a permanent international criminal court with other governments in 1995. The objective was to ensure that nothing we would negotiate for the establishment of the ICC would undermine the protection and procedures regarding criminal investigations that US personnel have under SOFAs and SOMAs, which exist in part to achieve the purpose of criminal investigation and prosecution of US personnel deployed in foreign jurisdictions. Thus, our objective was not to achieve immunity per se for such individuals, but to ensure that they would be subject only to the judicial procedures set forth in the relevant SOFA or SOMA, and in no other treaty.
109. David Scheffer, Article 98(2) of the Rome Statute: America's Original Intent, 3 J. INT'L CRIM. JUST. 333, 341 (2005).
110. Id. at 339.
111. The White House, Memorandum for the Secretary of State: Presidential Determination on Waiving Prohibition on United States Military Assistance With Respect to Comoros and Saint Kitts and Nevis (Nov. 22, 2006), http://www.whitehouse.gov/news/releases /2006/11/20061122-5.html; U.S. Department of State, Taken Questions: Countries Who Have Signed Article 98 Agreements with the United States (June 12, 2003), http://www.state.gOv/r/pa/ prs/ps/2003/21539.htm ("A total of 38 countries have publicly announced that they have concluded Article 98 or Non-Surrender Agreements with the United States ... [s]everal other countries have signed but have asked us not to identify them as signers. We are respecting their wishes."); Press Statement, Richard Boucher, Spokesman, U.S. Department of State, U.S. Signs 100th Article 98 Agreement (May 3, 2005), http://www.state.gOv/r/pa/prs/ps/2005/ 45573.htm ("On May 2, 2005, Angola became the 100th country to conclude such an agreement with the United States. These bilateral agreements, which are provided for under Article 98 of the Rome Statute, ensure that U.S. persons will not be surrendered to the International Criminal Court without our consent.").
112. Scheffer, supra note 90, at 352.
113. Id. at 353; Scheffer, Staying the Course with the International
114. See John R. Bolton, Under Sec'y for Arms Control and Int'l Security, U.S. State Dep't, American Justice and the International Criminal Court (Nov. 3, 2003) (transcript available from The American Non-Governmental Organizations Coalition for the ICC (AMICC)), available at http://www.amicc.org/docs/Boltonl l-3-03.pdf.
115. Scheffer, supra note 90, at 339-42, 346.
116. Id. at 352-53.
117. No Safe Haven: Accountability for Human Rights Violations in the United States: Hearing Before the Subcomm. on Human Rights and the Law of the Senate Comm. on the Judiciary, 110th Cong. (2007) (statement of David Scheffer, Mayer Brown/Robert A. Helman Professor of Law, Northwestern University School of Law, Chicago, Illinois), available at http://judiciary.senate. gov/hearings/testimony.cfm?id=3028&wit-id=6778 [hereinafter Accountability Hearing]; see Michael Hatchell, Closing the Gaps in United States Law and Implementing the Rome Statute: A Comparative Approach, 12 ILSA J. OF INT'L & COMP. L. 183, 187-88 & 208 (2005) (examining the approach of five countries that ratified the Rome Statute and how these approaches may instruct the United States).
118. Rome Statute, supra note 1.
119. Id. art. 7(h).
120. Id.
121. Id.
122. See, e.g., Prosecutor v. Milan Babic, Case No. IT-03-72-A, Judgement, ¶¶ 29-35 (July 18,2005).
123. Accountability Hearing, supra note 99, para. 18.
124. BASSIOUNI, supra note 87, at 148-57.
125. U.S. CONST, art. III, § 1.
126. Rome Statute, supra note 1, art. 115.
127. Id. arts. 86-102.
128. Id. arts. 36,42.
129. Id. arts. 12,25.
130. Id. art. 4(1).
131. Id. arts. 40(1), 42(1).
132. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 4-5 & 6-33 (2d ed. 1988).
133. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 850 (1986) (quoting Nat'l Ins. Co. v. Tidewater Co., 337 U.S. 582, 644 (1949) (Vinson, C.J., dissenting)).
134. Id. at 851.
135. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 84 (1982) (plurality opinion).
136. These crimes include: genocide, crimes against humanity, war crimes, and aggression. Rome Statute, supra note 1, arts. 5-8; Accountability Hearing, supra note 98.
137. Accountability Hearing, supra note 98.
138. U.S.C.A. § 1091 (2008) (as amended by the Genocide Accountability Act of 2007, Pub. L. No. 110-151 (2007)).
139. U.S.C.A. § 2441 (2008) (as amended by the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006)).
140. Scheffer, Staying the Course with the International Criminal Court, supra note 7, at 47 n.7 (2002).
141. E.g., Declaration of Cartagena Concerning the Production of, Trafficking in and Demand for Illicit Drugs, Feb. 15, 1990, T.I.A.S. 12,411, 1990 WL 484467; Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 20, 1988, U.N. Doc. E/CONF.82/15, 1582 U.N.T.S. 95, reprinted in 28 I.L.M. 493 (revised Dec. 19, 1998); Convention on Psychotropic Substances, Aug. 16, 1976, 32 U.S.T. 543, 1019 U.N.T.S. 175; Single Convention on Narcotic Drugs, Dec. 13, 1964, 18 U.S.T. 1407, 520 U.N.T.S. 204.
142. See, e.g., Inter-American Convention Against Terrorism, June, 3, 2002, S. TREATY Doc. No. 107-18, 42 I.L.M. 19; International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999, S. TREATY DOC. NO. 106-49, 39 I.L.M. 270 (2000); International Convention for the Suppression of Terrorist Bombings, Jan. 9, 1998, S. TREATY Doc. No. 106-6, 37 I.L.M. 249 (1998); International Convention against the Taking of Hostages, Dec. 17, 1979, T.I.A.S. 11081, 1316 U.N.T.S. 205; Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Feb. 20, 1977, 28 U.S.T. 1975, 1035 U.N.T.S. 167; Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of Significance, Feb. 2, 1971, 27 U.S.T. 3949, 1986 U.N.T.S. 195.
143. Comments of the United States of America Pursuant to Paragraph 4 of General Assembly Resolution 49/53 on the Establishment of an International Criminal Court, 14-18, delivered to the General Assembly, U.N. Doc. A/AC.244/l/Add.2 (Apr. 3, 1995). This was the first extensive set of written views of the U.S. Government regarding the draft statute of an international criminal court prepared by the International Law Commission in 1994, and which formed the initial basis for U.N. Member State negotiations commencing in 1995. The U.S. Government explained on these pages its primary objections to the inclusion of drug crimes and terrorism in the subject matter jurisdiction of the International Criminal Court.
144. BASSIOUNI, supra note 76, 9-10, 15, 424, 432, 441-42, 448, & 461; see also M. CHERIF BASSIOUNI & EDWARD M. WISE, AUT DEDERE AUT JUDICARE: THE DUTY TO EXTRADITE OR PROSECUTE IN INTERNATIONAL LAW (1995) (providing a comprehensive analysis of the duty to extradite or prosecute).
145. Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, U.N. Doc. A/CONF. 183/10 (July 17, 2005); Rome Statute, supra note 1, Resolution E; Scheffer, Staying the Course with the International Criminal Court, supra note 7, at 47 n.7 (2002).
146. Rome Statute, supra note 1, art. 121(5) provides: Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals or on its territory.
147. See notes 201-09 and accompanying text.
148. E.g., Exparte Milligan, 71 U.S. 2 (1866) (A Confederate sympathizer was convicted for sedition in a military tribunal, a non-Article HI court. The court granted his habeas petition and ordered his release. The Supreme Court seemed to have been persuaded that a military court was not proper by the fact that Milligan was not a resident of the rebellious states and was not involved in military action.); cf. Reid v. Covert, 354 U.S. 1 (1956) (holding that two civilian women married to servicemen were improperly convicted of murder before respective court marshal proceedings).
149. U.S. 1(1942).
150. Id. at 48.
151. United States v. Keaton, 41 C.M.R. 64 (CM.A. 1969).
152. Id. at 65-66.
153. Id. at67.
154. Id.
155. Id.
156. Id. (emphases added).
157. F.2d 200 (4th Cir. 1971).
158. Id. at 203.
159. M. CHERIF BASSIOUNI, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW 495-99 (2003); Antonio Cassese, From Nuremberg to Rome: International Military Tribunals to the International Criminal Court, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, supra note 74, at 10-18.
160. U.S. CONST, art. II, § 2, para. 2.
161. U.S. CONST, art. VI, cl. 2; see Foster v. Neilson, 27 U.S. 253, 314 (1829), overruled on other grounds by United States v. Percheman, 32 U.S. 51 (1833).
162. Cook v. United States, 288 U.S. 102, 120 (1933).
163. Whitney v. Robertson, 124 U.S. 190 (1888); Edye v. Robertson, 112 U.S. 580 (1884); The Cherokee Tobacco, 78 U.S. 616, 621 (1870) ("A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty...."); see RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE 814-15 (4th ed. 2007).
164. See, e.g., Charlton v. Kelly, 229 U.S. 447 (1913); Wright v. Henkel, 190 U.S. 40 (1903); In re Chan Seong-I, 346 F. Supp. 2d 1149 (D.N.M. 2004); Prasoprat v. Benov, 421 F.3d 1009 (9th Cir. 2004); In re Munguia, 294 F. Supp. 2d 893 (S.D. Tex. 2003); In re Sacirbegovic, 280 F. Supp. 2d 81 (S.D.N.Y. 2003); DeSilva v. DiLeonardi, 125 F.3d 1110 (7th Cir. 1997); Bovio v. United States, 989 F.2d 255 (7th Cir. 1993); In re Russell, 805 F.2d 1215 (5th Cir. 1986); Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986); Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985); Escobedo v. United States, 623 F.2d 1098 (5th Cir. 1980); In re Mainero, 990 F. Supp. 1208 (S.D. Cal. 1997); Brief of Respondent-Appellee at 1, Clarey v. Gregg, 138 F.3d 764 (9th Cir. 1998) (No. 96-55193), 1996 WL 33485532 ("Mexico requests the extradition of appellant David Lee Carey, a citizen of the United States ....").
165. Rosado v. Civiletti, 621 F.2d 1179, 1197 (2d Cir. 1980).
166. Pfeifer v. U.S. Bureau of Prisons, 468 F. Supp. 920, 924 (S.D. Cal. 1979).
167. See, e.g., Wilson v. Girard, 354 U.S. 524 (1957); Smallwood v. Clifford, 286 F. Supp. 97 (D.D.C. 1968); United States ex rel. Keefe v. Dulles, 222 F.2d 390 (D.C. Cir. 1954); United States v. Dadenhead, 34 C.M.R. 51 (CM.A. 1963); United States v. Hutcherson, 29 C.M.R. 770 (A.F.B.R. 1960); United States v. Sinigar 20 C.M.R. (C.M.A. 1955); cf. Gallagher v. United States, 423 F.2d 1371 (Ct. Cl. 1970) (holding that a soldier charged with robbery committed in Germany, while he stationed there, was properly tried by U.S. court martial, under jurisdiction provided by the NATO SOFA).
168. RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 20 (1965).
169. In part, immunity for members of the armed forces is based on the doctrine of sovereign immunity-a foreign nation will not be hauled into a foreign court unless it submits to such a court's jurisdiction. 17 A.L.R. FED. 725, at § 5 (1973). Members of the armed forces, while not representatives of the sovereign in the same sense as a head of state is a representative, cannot be said "to be totally 'nonrepresentative' of the sovereign." Id.
170. Dow v. Johnson, 100 U.S. 158, 180 (1879).
171. See JOHN WOODLIFFE, THE PEACETIME USE OF FOREIGN MILITARY INSTALLATIONS AND MODERN INTERNATIONAL LAW 15 (1992) (describing the peacetime U.S. military presence following World War II around the world).
172. James S. Fraser, Some Thoughts on Status of Force Agreements, 3 CONN. L. REV. 335, 335 (1970).
173. Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951, 4 U.S.T. 1792, 199 U.N.T.S. 67 [hereinafter NATO SOFA].
174. Mark E. Eichelman, International Criminal Jurisdiction Issues for the United States Military, ARMY LAW., Aug. 2000, at 23.
175. U.S. DEPARTMENT OF STATE, TREATIES IN FORCE, SECTION 1: BILATERAL TREATIES (2007), available at http://www.state.gov/documents/ treaties/83046.pdf (follow "bilaterals" hyperlink).
176. NATO SOFA, supra note 154.
177. This is true for the NATO SOFA. See id. art. VII; Holmes v. Laird, 459 F.2d 1211, 1212-13 (D.C. Cir. 1972); see Richard J. Erikson, Status of Forces Agreements: A Sharing of Sovereign Prerogative, 37 A.F. L. Rev. 137, 140-41 (1994) (discussing that the purpose of a SOFA is to provide for shared jurisdiction and highlighting the example of this in the NATO SOFA).
178. Donald T. Kramer, Criminal Jurisdiction of Courts of Foreign Nations over American Armed Forces Stationed Abroad, 17 A.L.R. FED. 725, § 2[a] (1973); see BASSIOUNI, supra note 76, at 96-97.
179. Kramer, supra note 159, § 2[a].
180. Id.
181. E.g., Smallwood v. Clifford, 286 F. Supp. 97 (D.D.C. 1968) (finding no merit in petitioner's claim that a SOFA between the United States and Korea is unconstitutional because Korea had not waived jurisdiction in the SOFA over the offense petitioner committed); Keefe v. Dulles, 222 F.2d 390 (D.C. Cir. 1954) (finding no violation of soldier's constitutional rights in a French trial where, under a NATO SOFA, a Staff Judge Advocate was present at the trial and reported no violations); see, e.g., Wilson v. Girard, 354 U.S. 524 (1957) (finding no constitutional bar to surrendering an American to Japan in accordance with a Security Treaty between the United States and Japan); Williams v. Rogers, 449 F.2d 513 (8th Cir. 1971) (finding the United States' Military Bases Agreement with the Philippines that, inter alia, provided for the jurisdiction of U.S. service members stationed there, constitutional).
182. Wilson v. Girard, 354 U.S. 524 (1957).
183. Id. at 525-26.
184. Id. at 526-28.
185. Id. at 529.
186. Id. at 530.
187. F.2d 1211, 1214 (D.C. Cir. 1972).
188. Id. at 1215 (citing Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 383 (1959)).
189. Id. at 1216 (citing Wilson v. Girard, 354 U.S. at 529; Reid v. Covert, 354 U.S. 1, 15 n.29(1957)).
190. See BASSIOUNI, supra note 76,58-61, 106-11.
191. Neely v. Henkel, 180 U.S. 109, 122-23 & 125 (1901) (affirming the extradition of a U.S. citizen to Cuba, even though Cuba would not guarantee the same rights, privileges, and immunities as provided by the U.S. Constitution). For an example of a lower court following this principle, see Ahmad v. Wigen, 726 F. Supp. 389, 410-20 (E.D.N.Y. 1989) (denying the habeas corpus petition of a U.S. citizen found extraditable to Israel, inter alia, because, even though some of Israel's practices would fail U.S. due process standards, the country generally provides fair trials), aff'd, 910 F.2d. 1063 (2d Cir. 1990).
192. Glucksman v. Henkel, 221 U.S. 508, 512 (1911).
193. Jacques Semmelman, Federal Courts, the Constitution, and the Rule of Non-Inquiry in International Extradition Proceedings, 76 CORNELL L. REV. 1198, 1205 (1991).
194. Martin v. Warden, 993 F.2d 824, 828 (11th Cir. 1993) ("[T]he judiciary serves an independent review function delegated to it by the Executive and defined by statute."); Austin v. Healey, 5 F.3d 598, 603 (2d Cir. 1993) ("Extradition magistrates do not exercise powers traditionally 'reserved to Article III courts.' To the contrary, the function performed by the judicial officer in certifying extraditability has not historically been considered an exercise of the 'judicial power of the United States' at all.... The judicial officer conducting an extradition hearing is said to act in a 'non-institutional capacity by virtue of special authority.'"); see 18 U.S.C. § 3184 (codifying that the certification procedures of an extradition hearing are limited and based on probable cause determinations); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, § 478 (1987) (describing U.S. extradition procedures).
195. See, e.g., Sacirbey v. Guccioine, No. 05 Cv. 2949 (BSJ)(FM), 2006 WL 2585561 (S.D.N.Y. Sept. 7, 2006).
196. Glucksman v. Henkel, 221 U.S. 508, 512 (1911); Neely v. Henkel, 180 U.S. 109, 122-23 & 125 (1901); Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir. 1960); see also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES: INTERNATIONAL EXTRADITION PROCEDURE: LAW OF THE UNITED STATES § 478 (1987) (describing U.S. extradition procedures). For a thoughtful analysis of the rule of non-inquiry, see Semmelman, supra note 174.
197. Cornejo-Barreto v. Siefert, 379 F.3d 1075, reh'g en banc, 386 F.3d 938 (9th Cir. 2004) (denying the habeas corpus petition of a Mexican citizen who the Secretary of State determined would be extradited to Mexico because, even though the citizen feared torture, neither the Torture Convention nor FARR Act created private rights that displaced the rule of non-inquiry); United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), implemented by the Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. No. 105-277, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C. § 1231) (FARR Act). See also BASSIOUNI, supra note 76, at 608 ("The surrender of a relator, whether a United States citizen or not, is unimpaired by the absence in the requesting state of those specific safeguards available in the United States legal system, and therefore no judicial inquiry into the requesting state's legal system is permitted.").
198. Garcia-Guillern v. United States, 450 F.2d 1189, 1192 (5th Cir. 1972) (denying the habeas corpus petition of a lawful U.S. resident found extraditable to Peru who feared an unfair trial there, the court explained: "With respect to appellant's contention that upon his return to Peru he will be charged with, and tried for, other crimes distinct and unrelated to the offense with which he is now charged, we are not at liberty to speculate that the Republic of Peru will not recognize and live up to the obligations subsisting between it and the United States. Neither are we permitted to inquire into the procedure which awaits the appellant upon his return."); Gallina v. Fraser, 278 F.2d 77 (2d Cir. 1960) (denying the habeas corpus petition of a relator who was found extraditable to Italy even though he claimed his trial there in absentia was unfair).
199. U.S.C.A. §3184(2008).
200. Ornelas v. Ruiz, 161 U.S. 502 (1896) (affirming the magistrate's denial of a habeas corpus petition where petitioners claimed that their offenses were committed in furtherance of a revolution, but where the magistrate was not clearly erroneous in finding that offenses were not solely of a political character); Ex parte Mackin, 668 F.2d 122 (2d Cir. 1981) (affirming the magistrate judge's denial of extradition certification in response to the UK's request for extradition where petitioner was charged with the attempted murder of a British soldier because petitioner, a member of the Provisional Irish Republican Army, could avail himself of the political offense exception); Sindona v. Grant, 619 F.2d 167 (2d Cir. 1980) (denying petitioner's habeas corpus petition because offenses were not of a political character. "American courts have uniformly construed 'political offense' to mean those that are incidental to severe political disturbances such as war, revolution and rebellion." Id. at 173). See also David Lieberman, Note, Sorting the Revolutionary from the Terrorist: The Delicate Application of the Political Offenses Exception, 59 STAN. L. REV. 181, 185-211 (2006) (analyzing the "incidence test"-whether the act occurred during a "revolt, disturbance, or uprising" and whether the act was "incidental to the uprising or.. . formed part of it," id. at 188-89); R. Stuart Phillips, The Political Offense Exception and Terrorism: Its Place in the Current Extradition Scheme and Proposals for Its Future, 15 DICK. J. INT'L L. 337, 340-45 (1997) (analyzing the political offense exception: "The political offense exception was created to protect dissidents from judicial retribution for their political activities." Id. at 340).
201. For instance, financial fraud involving political corruption is outside the exception. See, e.g., Koskotas v. Roche, 931 F.2d 169, 170-73 (1st Cir. 1991); Garcia-Guillern v. United States, 450 F.2d 1189, 1191-92 (5th Cir. 1971). The exception has been denied to former government officials. See, e.g., In re Suarez-Mason, 694 F. Supp. 676, 683-85 & 703-07 (N.D. Cal. 1988); Sacirbey v. Guccioine, No. 05 Cv. 2949(BSJ)(FM), 2006 WL 2585561 at * 19-20 (S.D.N.Y. Sept. 7, 2006); In re Sacirbegovic, No. 03 CR. MISC. 01PAGE1, 2005 WL 107094 at *10-12 (S.D.N.Y. Jan. 19, 2005).
202. See, e.g., Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir. 1981) ("It is the settled rule that it is within the Secretary of State's sole discretion to determine whether or not a country's requisition for extradition is made with a view to try or punish the fugitive for a political crime, i.e., whether the request is a subterfuge.").
203. However, the case has been cited favorably. See, e.g., Demjanjuk v. Petrovsky, 776 F.2d 571, 583 (6th Cir. 1985); Rosado v. Civiletti, 621 F.2d 1179, 1195 (2d Cir. 1980).
204. F.2d 77, 78 (2d Cir. 1960).
205. Id. at 79.
206. Id.
207. F. Supp. 389, 395, 416-20 (E.D.N.Y. 1989), aff'd, 910 F.2d. 1063 (2d Cir. 1990).
208. Ahmad, 726 F. Supp. 389 at 410-15.
209. Id. at 416-20.
210. The preponderance standard was applicable because the hearing was civil, not criminal. Id. at 416.
211. Id. at 420.
212. Ahmad v. Wigen, 910 F.2d. 1063, 1064-65 (2d Cir. 1990) ("Although we affirm, we do not necessarily subscribe to the district court's dicta concerning the expanded role of habeas corpus in an extradition proceeding, which led to the district court's extensive exploration of Israel's system of justice. In Messina v. United States ... we held that on an appeal from the denial of habeas corpus in an extradition proceeding, we are concerned only with whether the appellant's alleged offense fell within the terms of an extradition treaty, and whether an official with jurisdiction was presented with sufficient evidence to warrant a finding that there was a reasonable ground to believe that the appellant was guilty. As authority for this proposition, we cited [the Supreme Court case] Fernandez v. Phillips. Fernandez was not an isolated precedent. Indeed, the Supreme Court has adhered steadfastly to the above legal principle for more than a century .... As we are required to do, we have followed where the Supreme Court has led.... Unless Congress or the Supreme Court instructs otherwise, the general principle above expressed should continue to guide a habeas corpus court in its deliberations." (internal citations omitted)). The court further wrote: We have no problem with the district court's rejection of Ahmad's remaining argument to the effect that, if he is returned to Israel, he probably will be mistreated, denied a fair trial, and deprived of his constitutional and human rights. We do, however, question the district court's decision to explore the merits of this contention in the manner that it did. The Supreme Court's above-cited cases dealing with the scope of habeas corpus review carefully prescribe the limits of such review .... A consideration of the procedures that will or may occur in the requesting country is not within the purview of a habeas corpus judge. Id. at 1066 (internal citations omitted).
213. Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir. 1960).
214. Ahmad, 910 F.2d. at 1066 (citing Gallina, 278 F.2d at 79)).
215. Id. (quoting Sindona v. Grant, 619 F.2d 167, 174 (2d Cir. 1980) ("[T]he degree of risk to [appellant's] life from extradition is an issue that properly falls within the exclusive purview of the executive branch.").
216. In re Sandhu, No. 90 CR. Misc No. 1JCF, 1996 WL 469290 (S.D.N.Y. Aug. 19, 1996).
217. Sandhu, 1996 WL 469290 at *5, habeas petition denied sub nom Sandhu v. Burke, No. 97 Civ. 4608(JGK), 2000 WL 191707 (S.D.N.Y. Feb. 10, 2000). Other commentators share this interpretation of Ahmad. See, e.g., Semmelman, supra note 174, at 1219-21.
218. F.2d 300 (2d Cir. 1981).
219. Id. at 302-03.
220. CV 90-3745 (RJD), CV 91-1959 (RJD), 1992 WL 75036 (Mar. 24,1992).
221. Id. at* 1.
222. F.3d 598, 599-600 (2d Cir. 1993).
223. In re Extradition of Sacirbegovic, No. 03 CR. MISC. 01PAGE1, 2005 WL 107094 at *3 (S.D.N.Y. Jan. 19, 2005). Sacirbey was born in Sarajevo in 1956, but became a U.S. citizen in 1973. Id. at *1. He was an ambassador to the United Nations on behalf of the Federation of Bosnia and Herzegovina (BiH) in 2000. Id. In connection with his ambassadorship, he was accused of embezzling funds he may have co-mingled and, in any event, for which he could not account. Id. The alleged criminal acts were committed solely in New York City. Id.
224. In re Extradition of Sacirbegovic, 280 F. Supp. 2d 81, 85 (S.D.N.Y. 2003).
225. Id. at 85 (citing Vardy v. United States, 529 F.2d 404, 406 (5th Cir. 1976) ("extradition treaties should be construed liberally")); Extradition of Neto, No. 98 CR. MISC 01PAGE19, 1998 WL 898328 at *2 (S.D.N.Y. Dec. 22, 1998) (quoting United States v. Cancino-Perez, 151 F.R.D. 521, 523 (E.D.N.Y. 1993)) ("It is well-established that courts should construe extradition treaties liberally 'to achieve their purposes of providing for the surrender of fugitives for trial in the requesting country.'"); In re La Salvia, No. 84 Cr. Misc. 1, 1986 WL 1436, at *11 (S.D.N.Y. Jan. 31, 1986) (noting that if the treaty is subject to no more than one reasonable interpretation, a court should "construe it in a manner that will permit extradition").
226. Sacirbegovic, 280 F. Supp. 2d at 85-86. (citing Melia v. United States, 667 F.2d 300, 303-04 (2d Cir. 1981) (quoting Strassheim v. Daily, 221 U.S. 280, 285 (1911) ("Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect---"); see also United States v. Marasco, 275 F. Supp. 492, 496 (S.D.N.Y. 1967) (holding that an almost identically worded treaty demonstrated "an extradition whenever the extraditee is shown prima facie to have intended the harm and caused the harm to the demanding state substantially as claimed by the latter"). The Magistrate Judge found that no special circumstances existed to permit Sacirbey to post bail, and thus, his request was denied. Id. at 86. Approximately a year and a half later, however, Sacirbey again requested that he be released on bail. Sacirbegovic, 2004 WL 1490219 at *1 (S.D.N.Y. July 26, 2004). Sacirbey presented a letter on his behalf from the head of the BiH government. Sacirbegovic, 280 F. Supp. 2d at 85 (S.D.N.Y. 2003). The Chairman of the Council of Ministers of BiH, Adnan Terzic, wrote that the United States "should grant bail to Ambassador Sacirbey until the final decision regarding extradition is made." Id. Sacirbey's motion was granted, and the Magistrate Judge later wrote that the letter "tipped the special circumstances test in Sacirbey's favor." In re Extradition of Sacirbegovic, No. 03 CR. MISC. 01PAGE1, 2005 WL 107094 at *2 (S.D.N.Y. Jan. 19, 2005).
227. Sacirbegovic, 2005 WL 107094. Although Sacirbey argued that no valid extradition treaty existed between the United States and BiH, the court found that BiH had inherited the treaty obligations of the Kingdom of Serbia, the original party to the treaty under which BiH requested Sacirbey's extradition. Id. at * 10-11. Next, the court found that Sacirbey was one and the same with "Muhamed Sacirbgovic" as the individual named in the request, and that the alleged offense was an extraditable offense under the treaty. Id. at * 12-17. Because the alleged act would be unlawful in the United States, the requirement of dual criminality was satisfied. Id. at * 17-18. Further, the court found that the government established probable cause that Sacirbey committed the offense. Id. at * 18-19. Sacirbey argued that the political offense exception applied, but the Court found it did not because financial fraud, even involving political corruption, generally falls outside the political offense exception. Id. at * 19-20. Further, the political offense exception focuses on the criminalized conduct, not the requesting State's political motives in requesting extradition, as Sacirbey argued was the case in his situation. Id. Following the finding that he was extraditable, Sacirbey petitioned the Southern District of New York for a writ of habeas corpus, which was denied. Sacirbey v. Guccione, No. 05 Cv. 2949(BSJ)(FM), 2006 WL 2585561 (S.D.N.Y. 2006). Currently, he is appealing the denial of his writ of habeas corpus to the Second Circuit. Docket for Sacirbey v. Guccione in the Southern District of New York, filed Mar. 17, 2005, last updated Jan. 18,2008.
228. See ROTUNDA & NOWAK, supra note 144, at 816.
229. See supra Part II.
230. American Servicemembers Protection Act, 22 U.S.C.A. §7422 (2008); Scheffer, Article 98(2) of the Rome Statute: America's Original Intent, supra note 90, at 344.
231. The Agreement on Surrender of Persons Between the Government of the United States and the International Tribunal for the prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other such Violations Committed in the Territory of Neighboring States, Jan. 24, 1995, available at 1996 WL 165484 [hereinafter ICTR Surrender Agreement] (In 1996, Congress enacted Public Law 104-106 to implement the Agreement. National Defense Authorization Act, Publ L. 104-106, § 1342, 110 Stat. 486 (1996). Section 1342(a)(1) of this legislation provides that the federal extraditions statutes (18 U.S.C. §§ 3181 et seq.) shall apply to the surrender of persons to the ICTR. This federal Statute also applies to the U.S.-ICTY agreement. Id.); Agreement on Surrender of Persons between the Government of the United States and the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia, Oct. 5, 1994, 1911 U.N.T.S. 224 [hereinafter ICTY Surrender Agreement].
232. ICTR Statute, supra note 10; ICTY Statute, supra note 9.
233. ICTY Statute, supra note 9, art 29; ICTR Statute, supra note 10, art 28.
234. ICTR Surrender Agreement, supra note 212; ICTY Surrender Agreement, supra note 212.
235. ICTR Surrender Agreement, supra note 212; ICTY Surrender Agreement, supra note 212.
236. National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, § 1342(a)(1). For an analysis of this law, see generally Jorge A. F. Godinho, The Surrender Agreements between the US and the ICΊΎ and ICTR: A Critical View, 1 J. INT'L CRIM. JUST. 502 (2003); Robert Kushen & Kenneth J. Harris, Surrender of Fugitives by the United States to the War Crimes Tribunals for Yugoslavia and Rwanda, 90 AM. J. INT'L L. 510 (1996).
237. Prosecutor's Report on the NATO Bombing Campaign, PR/ P.I.S./ 510-e, June 13, 2000, available at http://www.un.org/icty/pressreal/p510-e.htm.
238. SCHABAS, supra note 11.
239. Id.
240. For other analyses of this case, see Mary Coombs, In re Surrender of Ntakirutimana, 184 F. Id 419. U.S. Court of Appeals, Fifth Circuit, 94 AM. J. INT'L L. 171 (1999) (summarizing case and how it helps shape the debate on whether international agreements must be pursuant to a treaty); Louis Klarevas, The Surrender of Alleged War Criminal to International Tribunals: Examining the Constitutionality of Extradition via Congressional-Executive Agreement, 8 UCLA J. INT'L L. & FOREIGN AFF. 77 (2003) (arguing that congressional-executive agreements are constitutional, weaving the Ntakirutimana case as an example throughout).
241. In re Surrender of Ntakirutimana, 988 F. Supp. 1038, 1039 (S.D. Tex. 1997).
242. Id.
243. In re Surrender of Ntakirutimana, 1998 WL 655708 at *1 (S.D. Tex. Aug. 6, 1998).
244. Id.
245. Id. at *2.
246. Ntakirutimana, 988 F. Supp at 1039. The arc of rights afforded aliens grows as their contacts with the United States increase, cresting in citizenship if and when naturalized; the status of resident aliens-green card holders-is virtually identical to that of a citizen for most constitutional purposes, the major exception being if the alien were from a hostile nation at war with the United States. See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 770 (1950): The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization. During his probationary residence, this Court has steadily enlarged his right against Executive deportation except upon full and fair hearing. And, at least since 1886, we have extended to the person and property of resident aliens important constitutional guaranties-such as the due process of law of the Fourteenth Amendment. (internal citation omitted).
247. Ntakirutimana, 988 F.Supp at 1039.
248. Id. at 1044.
249. Ntakimtimana, 1998 WL 655708 at *33.
250. Id.
251. Id.
252. Id.
253. Ntakimtimana, 1998 WL 655708 at *33 (When an extradition request is denied, the only remedy available to the government is to re-file the request.).
254. Id. at *10. The court cited Article II, Section 2, Clause 2 of the United States Constitution, "[the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls." Id. at *9. The court acknowledged that the Executive engages in various foreign relations activities not specifically named in this clause. Id. The court interpreted Valentine v. United States-where, under a treaty between the United States and France stipulating that neither nation was bound to extradite its own citizens, the Supreme Court held that the power to extradite a U.S. citizen under this treaty "is not confided to the Executive in the absence of a treaty or legislative provision," 299 U.S. 5, 7-8 (1936)-to mean that "a statute suffices to confer authority on the President to surrender a fugitive." Ntakimtimana, 1998 WL 655708 at *10-11.
255. These evidentiary concerns were addressed, in part, by testimony of a police officer from Holland, Arjen Mostert, who conducted several of the interviews and could attest to the procedures. Ntakirutimana, 1998 WL 655708 at *18. The interviews were translated by interpreters who spoke the interviewee's native language, with the exception of one witness who spoke fluent French. Id. at *21. Initial interviews were conducted to obtain general information about the attacks in the region and later interviews were more specific. Id. at *22. In accordance with the Tribunal's policy, all witnesses were assigned letters (e.g., Witness A, B, etc.) and not named to help protect their safety. Id. at * 18.
256. Ntakirutimana v. Reno, 184 F.3d 419, 421 (5th Cir. 1999).
257. Id.
258. Id. at 424-27.
259. Id. at 425.
260. Id. at 427-30.
261. The Government claimed in its reply brief that the ICTR procedures were fair, citing an affidavit by Michael J. Matheson, who was a former Legal Adviser to the Department of State. Government Reply to Response of Pastor Elizaphan Ntakirutimana to Request for His Surrender to the International Criminal Tribunal for Rwanda, In re Surrender of Ntakirutimana, No. CIV. A. L-98-43, 1998 WL 655708 (S.D. Tex. Aug. 6, 1998) [hereinafter Reply Brief]. Matheson wrote in response to whether the tribunal was fair that: [T]he establishment of the Tribunal is not inconsistent with the International Covenant on Civil and Political Rights (ICCPR), 6 International Legal Materials 368 (1967) and the Universal Declaration of Human Rights (UHDR), G.A. Res. 271 A, U.N. Doc. A/819 (1948). Indeed the Statute and the Rules of Procedure and Evidence of the Tribunal of 29 June 1995, ITR/3Rev.l provide full due process for the accused that are fully consistent with ICCPR and UDHR. These various issues have been considered and resolved with respect to the International Criminal for the Former Yugoslavia by the Appeals Chamber of that Tribunal (which, under the Statute for the Rwanda Tribunal, also has jurisdiction over appeals from the Trial Chambers of the Rwanda Tribunal). Reply Brief, supra, at 2-3. The Government concluded in its brief that: [T]he United States has been in the forefront of efforts to create an international mechanism and to persuade other nations to cooperate with the Tribunals. Our participation in these efforts reflects our international responsibilities and
262. Ntakirutimana, 184 F.3d at 430 (quoting Garcia-Guillen v. United States, 450 F.2d 1189, 1192(5th Cir. 1971)).
263. Ntakirutimana v. Reno, 528 U.S. 1135 (2000).
264. See International Criminal Tribunal for Rwanda, Summary of Judgment, Case No. ICTR 96-10-T & ICTR 96-17-T (Feb. 21, 2003), http://69.94.11.53/default.htm.
265. Ntakirutimana died on January 22, 2007. International Criminal Tribunal for Rwanda, Status of Detainees, http://69.94.11.53/default.htm.
266. See Part VII, infra.
267. S. Ct. 1346 (2008). Shortly after the Supreme Court decision, the State of Texas executed José Medellín by lethal injection. James C. McKinley, Jr., Texas Executes Man Despite Objections, N.Y. TIMES, Aug. 6, 2008, at A19.
268. Medellín, 128 S. Ct. at 1356 n.2 ("What we mean by 'self-executing' is that the treaty has automatic domestic effect as federal law upon ratification. Conversely, a 'non-self- executing' treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress.").
269. Id. at 1356. Justice Roberts then cited Foster v. Neilson, "which held that a treaty is 'equivalent to an act of the legislature,' and hence self-executing, when it operates of itself without the aid of any legislative provision.'" Foster v. Neilson, 27 U.S. 25, 314 (1829), overruled on other grounds, United States v. Percheman, 32 U.S. 51, 87 (1833). Justice Roberts continued: "When, in contrast, '[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect.'" Id., citing Whitney v. Robertson, 124 U.S. 190, 194 (1888). "In sum, while treaties 'may comprise international commitments.. . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be 'self-executing' and is ratified on these terms." Id. (citing Igartua-De La Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005)).
270. Medellin, 128 S. Ct. at 1357 n.4: Consequently, it is unnecessary to resolve whether the Vienna Convention is itself "self- executing" or whether it grants Medellin individually enforceable rights . .. [W]e thus assume, without deciding, that Article 36 [of the Vienna Convention] grants foreign nationals "an individually enforceable right to request that their consular officers be notified of their detention, and an accompanying right to be informed by authorities of the availability of consular notification." (internal citations omitted).
271. Id. at 1358 ("Article 94(1) provides that '[e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party.'" (citing the Vienna Convention on Consular Relations (Vienna Convention or Convention), Apr. 24, 1963, [1970] 21 U.S.T. 77, 59 Stat. 1051") (emphasis in original).
272. Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.), 2004 I.C.J. 12 (Mar. 31). See also Medellin, 128 S. Ct. at 1365: Our holding does not call into question the ordinary enforcement of foreign judgments or international arbitral agreements .... The dissent worries that our decision casts doubt on some 70-odd treaties under which the United States has agreed to submit disputes to the ICJ according to "roughly similar" provisions. Again, under our established precedent, some treaties are self- executing and some are not, depending on the treaty. That the judgment of an international tribunal might not automatically become domestic law hardly means that the underlying treaty is 'useless.' Such judgments would still constitute international obligations, the proper subject of political and diplomatic negotiations. And Congress could elect to give them wholesale effect... through implementing legislation, as it regularly has.
273. For example, Canada implemented the Rome Statute domestically with its Crimes Against Humanity & War Crimes Act, 2000 S.C., ch. 24; see DFAIT, Canada and the International Criminal Court, http://www.dfait-maeci.gc. ca/foreign-policy/icc/canada-icc- en.asp (last visited Aug. 5, 2008). For a summary of the UK and some other European countries, see David Turns, Aspects of National Implementation of the Rome Statute: The United Kingdom and Selected Other States, in THE PERMANENT INTERNATIONAL CRIMINAL COURT: LEGAL AND POLICY ISSUES 337, 340 (Dominic McGoldrick et al. eds., 2004); for a review of Latin American implementation of the Rome Statute, see Hugo Relva, The Implementation of the Rome Statute in Latin American States, 16 LEIDEN J. INT'L L. 331 (2003).
274. Medellín, 128 S. Ct. at 1376 ("I believe the treaty obligations, and hence the judgment, resting as it does upon the consent of the United States to the ICJ's jurisdiction, bind the courts no less than would 'an act of the [federal] legislature.'") (Breyer, J. dissenting).
275. Congress has used the Clause as a power to enact legislation in the Alien Torts Claims Act, 28 U.S.C. § 1350 (1994) and the Torture Victim Protection Act, 28 U.S.C. § 1350 (1994).
276. For a discussion of how the Offenses Clause can and should be applied, see Beth Stephens, Federalism and Foreign Affairs: Congress' Power to 'Define and Punish. . . Offenses Against the Laws of Nations,' 42 WM. & MARY L. REV. 447 (2000); Michael T. Morley, Note, The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism, 112 YALE L.J. 109(2002).
277. Louis HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 237 (2d ed. 1996); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 41 (1987): INTRODUCTORY NOTE TO CHAPTER 2 (1990) ("[T]he law of nations, [was] later referred to as international law."); Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815, 819 (1997); J. Andrew Kent, Congress's Under-Appreciated Power to Define and Punish Offenses Against the Law of Nations, 85 TEX. L. REV. 843, 845 (2007) (citing Flores v. S. Peru Cooper Corp., 343 F.3d 140 (2d Cir. 2003)); Stephens, supra note 257, at 449; but see Morley, supra note 257, at 118 ("[T]he phrase 'law of nations,' as understood by the Framers and used in the Constitution, is not synonymous with "international law".... [T]he law of nations governs actual interactions between countries, and by extension between their citizens, in discrete areas such as war, trade, navigation, and diplomacy.").
278. E.g., Stephens, supra note 257 (arguing that the Define and Punish Clause authorizes Congress to legislate over civil and criminal matters and that the laws of nations is an evolving construct that can include domestic matters); contra Morley, supra note 257 (agreeing that the Define and Punish Clause empowers Congress to legislate over criminal and civil matters, but disagreeing with Stephens that customary international law means anything but what the Founding Fathers considered, i.e., navigation, trade, war and diplomacy).
279. he first category [of congressional invocations of the Define and Punish Clause] include ... congressional action regarding military tribunals discussed in the World War Π-era cases Exparte Quirin and In re Yamashita. The Military Commissions Act of 2006, establishing tribunals to try alleged al-Qaeda members for violations of international law, was enacted pursuant to the Law of Nations Clause. Kent, supra note 258, at 861-62 (2007); see also Morley, supra note 257, at 137-38 (citing interpretations of the Define and Punish Clause that empower Congress to "establish military commissions to try violations of the law of war"); Stephens, supra note 258, at 478-79 (explaining that Congress cited the Define and Punish Clause as authority to establish a military commission at issue in Ex parte Quirin and that the Supreme Court "found Congress' actions within the reach of the [Define and Punish] Clause.") (citing Ex parte Quirin, 317 U.S. 1,28(1942)).
280. Exparte Quirin, 317 U.S. at 28 (emphasis added).
281. See, e.g., Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 COLUM. J. TRANSNAT'L L. 73, 129-31 (1995) (discussing the Nuremberg and Tokyo trials as persuasive authority for a permanent International Criminal Court that would not be created pursuant to Article III).
282. In In re Yamashita, 327 U.S. 1, 7 (1946), the Court explained: In Ex parte Quirin, 317 U.S. 1, we had occasion to consider at length the sources and nature of the authority to create military commissions for the trial of enemy combatants for offenses against the law of war. We there pointed out that Congress, in the exercise of the power conferred upon it by art. I, sec. 8, cl. 10 of the Constitution to "define and punish .. . Offenses against the Law of Nations . ..," of which the law of war is a part, had by the Articles of War (10 U.S.C. §§ 1471-1593, 10 U.S.C.A. §§ 1471-1593) recognized the "military commission" appointed by military command, as it had previously existed in United States Army practice, as an appropriate tribunal for the trial and punishment of offenses against the law of war.
283. See, e.g., The Petitioner's Reply Brief at 11-13, Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ("Hamdan does not argue that alternative tribunals cannot be created to try cases arising from this new conflict. He simply argues that any such extension-with all its complications and balancing of fundamental interests-must be taken by Congress under its Article I power to, inter alia, define and punish such offenses.").
284. Klarevas, supra note 221, at 119-24.
285. Quirin, 317 U.S. at 29-30; Yamashita, 327 U.S. at 7.
286. Rome Statute, supra note 1, arts. 39, 64.
287. For instance, as explained in Part IV(B), supra, the United States routinely extradites non-citizens and citizens to civil law countries that do not operate with trials by jury. See generally, BASSIOUNI, supra note 76, at 604-42, 738-45.
288. U.S. CONST, art. III § 2.
289. U.S. CONST, amend. V.
290. U.S. CONST, amend. VI.
291. Neder v. United States, 527 U.S. 1, 30 (1999) (Scalia, J., concurring in part and dissenting in part).
292. Exparte Milligan, 71 U.S. 2, 123 (1866) (emphasis in original).
293. Id.
294. U.S. CONST, art. VI.
295. E.g., In re Yamashita, 327 U.S. 1 (1946) (U.S. military tribunal tried Japanese general); see infra notes 324-46 and accompanying text (analyzing case law where defendants were denied due process rights, including the right to trial by jury, even though the U.S. government was a party).
296. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Ex parte Quirin, 317 U.S. 1 (1942).
297. Ex pane Milligan, 71 U.S. 2, 123 (1866).
298. Id.
299. Id. at 107.
300. Id. at 126-27.
301. Id. at 6-7.
302. Id. at 107-09.
303. Id. at 115.
304. quot;The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on the return made to it the court decides whether the party applying is denied the right of proceeding any further with it." Id. at 131.
305. Id. at 118 (emphasis in original).
306. Id. at 119.
307. Id. at 119-30.
308. Id. at 122.
309. Id. at 120.
310. Id. at 76.
311. Id.
312. See EUGENE R. FIDELL ET AL., MILITARY JUSTICE CASES AND MATERIALS 687 (2007).
313. U.S. 2, 127.
314. Id. ("It is difficult to see how the safety for the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them.") (emphasis in original).
315. Id.
316. Ex parte Quirin, 317 U.S. 1 (1942).
317. The petitioners had attended sabotage school in Germany, traveled to the United States aboard submarines, landed on the Atlantic coast, and were found in plain clothes without uniforms. Id. at 21. The FBI arrested them. Id. Petitioners were charged and set to be tried in a military tribunal, following a Presidential Proclamation that: [T] hose who during time of war enter or attempt to enter the United States .. . through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals. Id. at 22-23.
318. Id. at 36-48.
319. Id. at39.
320. Id. at 31.
321. P]etty offenses triable at common law without a jury may be tried without a jury in the federal courts, notwithstanding Article III, § 2, and the Fifth and Sixth Amendments. Trial by jury of criminal contempts may constitutionally be dispensed with in the federal courts in those cases in which they could be tried without a jury at common law. Similarly, an action for debt to enforce a penalty inflicted by Congress is not subject to the constitutional restrictions upon criminal prosecutions. Id. at 39-40 (internal citations omitted).
322. Id. at 40.
323. Id. at 20.
324. Id.
325. Id. at 20-48.
326. Id. at 24.
327. Id. at 44.
328. Id. at 45.
329. Id. at 45-48.
330. The body of cases involving American citizen Jose Padilla are not mentioned in the text of this Part because he was ultimately tried in an Article III court, and thus his case in not completely apposite to this Part's discussion. The Executive avoided a Supreme Court review of the President's power to hold Padilla indefinitely without charging him, a power the Executive argued arose from the President's determination that Padilla was an unlawful enemy combatant. Hanft v. Padilla, 546 U.S. 1084 (2006) (approving the Government's request for authorization to transfer Padilla to a federal detention center); Padilla v. Hanft, 432 F.3d 582 (4th Cir. 2005) (denying the government's motion to transfer Padilla to federal custody because the purpose of the motion seemed to be to avoid Supreme Court review of the issues in this case and these issues were too important to permit the government such last-minute evasion of review). On the eve of such a test, the Executive requested that Padilla be transferred to federal court for criminal trial, and the Supreme Court approved. Hanft, 546 U.S. 1084; see Eric Lichtblau, Justices are Asked to Permit Padilla Move, N.Y. TIMES, Dec. 29,2005, at A16.
331. U.S. 507, 510(2004).
332. Id. at 510-11.
333. Id. at 509-11.
334. Id. at 516.
335. Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (citing Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (codified at 50 U.S.C.A. 1451 (2001)) (internal quotation marks omitted).
336. Id. at 519 (going on to cite Exparte Quirin, 317 U.S. 1 (1942)).
337. Id. at 519, 521-22.
338. Id. at 533. The majority decision was written by Justice O'Connor, joined by Rehnquist, Kennedy, and Breyer. Justice Souter, joined by Justice Ginsburg, concurred in part because they also rejected any limit on the exercise of habeas jurisdiction, and dissented from the idea that if Hamdi is properly considered an enemy combatant that his detention is authorized by an Act of Congress, but concurred in the judgment that Hamdi should have some opportunity to show that he is not an enemy combatant. Justice Scalia, joined by Justice Stevens, dissented because they would grant the habeas petition and release Hamdi from military custody. Justice Thomas dissented because he would not place due process burdens on the political branches in wartime.
339. Id.
340. U.S. 1(1957).
341. Id. at 10; The Third Restatement of Foreign Relations also adopts this approach. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 721 (1987).
342. U.S. at 74 (Harlan, J., concurring in the result).
343. These cases were distinguished by the majority as having nothing to do with extending military jurisdiction over civilians. 354 U.S. at 14.
344. See generally Bassiouni, supra note 76, 738-45 (5th ed. 2007) (examining extradition of U.S. citizens to foreign courts).
345. S.Ct. 2229(2008).
346. Even Justice Scalia, who vigorously dissented in Boumediene, did not dispute this central point-that there is no automatic right to jury trial with respect to U.S. citizens who commit crimes abroad. Instead, he argued that aliens are not entitled to identical opportunities under the Constitution. Id. at 2301.
347. U.S. 453(1891).
348. Boumediene, 128 S. Ct. at 2256.
349. Id. at 2257.
350. See infra notes 332-40 and accompanying text.
351. U.S. 138(1904).
352. U.S. 91(1914).
353. Philippine Bill of Rights (act of July 1, 1902 § 5, chap. 1369, 32 Stat. at L. 692), available at http://www.thecorpusjuris.com/laws/ constitutions/others/9-others/71 -philippine- bill-of-1902.html.
354. U.S. at 145.
355. Id.
356. Id.
357. U.S. at 98.
358. U.S. 298, 304-14 (1922).
359. U.S. at 304-05.
360. U.S. 259, 263, 267-70 (1990).
361. Id. at 262-64.
362. United States v. Verdugo-Urquidez, 856 F.2d 1214,1218 (9th Cir. 1988).
363. Id. at 1223.
364. U.S. at 275.
365. Id. at 268-69.
366. U.S. 763,784(1950).
367. F.2d at 269 (citing Eisentrager, 339 U.S. at 784).
368. See supra text accompanying notes 292-321.
369. U.S. CONST, art. I, § 8, cl. 14.
370. See Ex parte Reed, 100 U.S. 13, 21 (1879); Dynes v. Hoover, 61 U.S. (1 How.) 65, 78 (1857); cf. Neely v. Henkin, 180 U.S. 109, 122-23 (1901) (stating, in upholding a U.S. service member's extradition to a country with fewer due process rights than provided by the United States, "[U.S.] citizenship does not give [the service members] an immunity to commit crime in other countries, nor entitle [them] to demand, of right, a trial in any other mode than that allowed to its own people by the country whose laws [they have] violated ....").
371. See, e.g., Lee A. Casey, The Case Against the International Criminal Court, 25 FORDHAM INT'L L.J. 840, 861 (2002) (warning against the U.S. participation in the International Criminal Court because not all guarantees provided by the Bill of Rights would be afforded); Andrew J. Walker, When a Good Idea is Poorly Implemented: How the International Criminal Court Fails to Be Insulated from International Politics and Protect Basic Due Process Guarantees, 106 W. VA. L. REV. 245, 259-72 (2004) (arguing that the International Criminal Court's due process standards are insufficient because the statute implementing them is ambiguous, omits important protections, and is vulnerable to political manipulation).
372. Wedgwood, supra note 3, at 119, 121, 123: Second, the ICC is carefully structured with procedural protections that closely follow the guarantees and safeguards of the American Bill of Rights and other liberal constitutional systems. Third, the offenses within the ICC's jurisdiction would otherwise ordinarily be handled through military courts-martial or through extradition of offenders to the foreign nation where an offense occurred. Thus, the detailed structure of American common law trial procedure would not ordinarily be applicable to these cases in any event.... American negotiators at Rome worked hard to ensure that the permanent ICC would follow demanding standards of due process. To that end, any defendant is guaranteed the right to have timely notice of the charges against him, the presumption of innocence, the right against self-incrimination, also forbidding any adverse inference from the exercise of the right to silence, the right to the assistance of counsel and to the assistance of an interpreter, the right to bail, the right to a speedy trial, the right to conduct a defense in person or through the defendant's chosen counsel, the right to cross- examine the witnesses against him and to call witnesses on his own behalf, the right to disclosure of any exculpatory evidence, the right not to bear any burden of proof but rather to require the prosecution to prove guilt "beyond reasonable doubt," and the right not to be subjected to any form of duress or coercion, or any cruel, inhuman, or degrading punishment. In addition, the ICC Statute even guarantees a form of Miranda warnings-a privilege that has often been criticized in the United States since its enunciation by the Supreme Court in 1966 as offering undue protection of criminal suspects. The Miranda case requires oral notice of rights when a defendant is in custodial interrogation. The ICC statue is even more protective, requiring that the prosecution advise a person of his rights before he is questioned whenever there are grounds to believe that he has committed a crime, even in noncustodial interrogation-including a warning of the right to remain silent, the right to legal assistance, the right to have counsel appointed if he cannot afford it, and the right to be questioned in the presence of counsel. The major differences from common law procedure in the ICC are the use of a factfinding panel of three Judges instead of a jury, with a verdict to be rendered by the vote of at least two Judges, and the availability of an appeal by the prosecution from errors of fact, law, and procedure. See also Patricia M. Wald, International Criminal Courts-A Stormy Adolescence, 46 VA. J. INT'L L. 319, 345 (2006) ("Opposition is sometimes voiced in the United States that the procedures of the ICC do not provide the fundamental guarantees that our country holds indispensable for its own trials. Yet all of the international tribunals so far, and certainly the ICC, have adopted the main principles of the International Covenant on Civil and Political Rights, to which the United States is a signatory .... Having sat on two year-long trials at the Hague under such rules, I can attest that I did not feel at any time that the defendants were not receiving a basically fair trial. Our refusal to try and work out resolutions of our problems with the ICC may turn out to be the lesson not learned from our prior leadership role in the international court movement."); Patricia M. Wald, Why I Support the International Criminal Court, 21 Wis. INT'L L.J. 513, 521 (2003) ("[T]he court operates by rules [that] contain the same or stronger guarantees of fair trial than the ad hoc tribunals which we fully support and where we are quite happy to have the nationals of other countries tried. Ironically, the United States government is currently attempting to deny the most basic of these rights-the right to counsel-to anyone the executive designates as an 'enemy combatant,' even American citizens apprehended in the United States. The statutory guarantees and rules governing ICC procedures include the equivalent of a probable cause hearing, liberal pretrial discovery, a public trial in the presence of the accused, right to counsel and to confront one's accusers, privilege against self-incrimination, rights to notice of the charges and to an interpreter in preparing the defense, right to provisional release pending trial, bars against non-probative and unreliable evidence or evidence secured in violation of human rights, proof of guilt beyond a reasonable doubt, and a right to appeal.").
373. The International Criminal Court: Hearings Before the H. Comm. on Int Ί Relations, 106th Cong. 92-101 (2000) (statement of Monroe Leigh on behalf of the American Bar Association) [hereinafter Leigh Statement]; Wedgwood, supra note 3, at 121, 123.
374. Leigh Statement, supra note 354; Wedgwood, supra note 3, at 121, 123.
375. The ICC Pre-Trial Chamber and Appeals Chamber have addressed numerous pre-trial issues in more than 38 decisions through July 2008. They have included a wide range of issues concerning pre-trial disclosure of evidence, including exculpatory evidence, the role of the Prosecutor and the Pre-Trial Chamber in the investigation of a case, interim release provisions, confirmation hearings, jurisdiction and admissibility, procedures for the unsealing and execution of arrest warrants, preparation of witness statements, victims' participation, and language translations. All of the decisions can be accessed at http://www.icc-cpi.int/cases.html. Many of the Pre-Trial Chamber and Appeals Chamber decisions are described in SCHABAS, supra note 17, at 254-82. With respect to the role of the Prosecutor and the Pre-Trial Chamber in investigative matters, see Scheffer, A Review of the Experiences of the Pre-Trial and Appeals Chambers of the International Criminal Court Regarding the Disclosure of Evidence, supra note 7. With respect to the execution of arrest warrants, see David Scheffer, International Criminal Court: Introductory Note to Decision on the Prosecution Application under Article 58(7) of the Statute in the Case of the Prosecutor v. Ahmad Muhammad Harun (Amad Harun) and Ali Muhammad Al Abd-Al-Rahman (Ali Kushayb) ICC Pre-Trial Chamber I, in 46 I.L.M. 532 (2007).
376. quot;In all criminal prosecutions, the accused shall enjoy the right to speedy and public trial... to be confronted with the witnesses against him ...." U.S. CONST, amend. VI. See SCHABAS, supra note 17, at 295-99; STEFAN TRECHSEL, HUMAN RIGHTS IN CRIMINAL PROCEEDINGS 305-26 (2005); ZAHAR & SLUITER, supra note 50, at 314-15 (2008); SALVATORE ZAPPALA, HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS 129-40 (2003).
377. quot;No person shall... be compelled in any criminal case to be a witness against himself...." U.S. CONST, amend. V.
378. Note that the ICTY and ICTY's statutes, while not identical, have many similarities to the Rome Statute of the ICC. The ICTY has held that under its Statute, defendants have the right to remain silent and the right against self-incrimination. E.g. Prosecutor v. Limaj et al., Case No. IT-03-66-T (Nov. 30, 2005); Momir Nikolic, Case No. IT-02-60/1-T (Dec. 2, 2003). See SCHABAS, supra note 17, at 298: There is one witness who can never be compelled to testify, however: the defendant.... [T]he silence of an accused cannot be a consideration in the determination of guilt or innocence. The text clarifies the fact that an accused may refuse to testify altogether, and not merely to testify when the evidence is "against himself." The provision reflects concerns with encroachments upon the right to silence in some national justice systems. Specifically, English common law has always prevented any adverse inference being drawn from an accused's failure to testify. See also TRECHSEL, supra note 357, at 341-59; ZAHAR & SLUITER, supra note 50, at 303-07 ("Whereas the US Constitution's Fifth Amendment is restricted to oral testimony, international human rights jurisprudence has adopted a more expansive approach, extending the privilege against self-incrimination to such materials as the defendant produces willingly." Id. at 305.); ZAPPALA supra note 357, at 77-79 ("The various aspects of this right [to remain silent] have been thoroughly recognized in the ICC Statute." Id. at 78).
379. U.S. 432,453 (1895).
380. The ICTY, which operates under a similar statute as the ICC, has held that "the accused enjoys the benefit of the presumption of innocence." Prosecutor v. Kordic, Case No. IT-95-14/2-A, ¶ 833 (Dec. 17, 2004). See SCHABAS, supra note 17, at 203-05; TRECHSEL, supra note 357, at 153-91; ZAHAR & SLUITER, supra note 50, at 302-03; ZAPPALA, supra note 357, at 85-100 ("[I]n respect of the presumption of innocence, the rules of the ICC Statute are to be considered as a model." Id. at 94).
381. quot;In all criminal prosecutions, the accused shall enjoy the right to speedy and public trial---" U.S. CONST, amend. VI. See SCHABAS, supra note 17, at 209-10; TRECHSEL, supra note 357, at 136, 141, 147; ZAHAR & SLUITER, supra note 50, at 300-02; ZAPPALA, supra note 357, at 114-19.
382. quot;In all criminal prosecutions the accused shall enjoy ... the Assistance of Counsel for his defence." U.S. CONST, amend. VI. See SCHABAS, supra note 17, at 290-92; TRECHSEL, supra note 357, at 242-90; ZAHAR & SLUITER, supra note 50, at 309-14; ZAPPALA, supra note 357, at 59-66.
383. quot;In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation." U.S. CONST, amend. VI (emphasis added).
384. The ICTY statute shares a similar due process right and the ICTY has upheld it. See e.g., Prosecutor v. Kvocka, Case No. IT-98-30/1-A (Feb. 28, 2005).
385. quot;In all criminal prosecutions the accused shall enjoy ... to have compulsory process for obtaining witnesses in his favor." U.S. CONST, amend. VI. See International Criminal Court Rules of Procedure and Evidence, 65(1) ("A witness who appears before the Court is compellable by the Court to provide testimony . . . ."); CASSESE, supra note 37, at 1299-1300; SCHABAS, supra note 17, at 298; ZAHAR & SLUITER, supra note 357, at 315.
386. U.S. CONST, art. 1, § 9, cl. 3; see BASSIOUNI, supra note 76, at 747-49 (5th ed. 2007); CASSESE, supra note 37, at 746-56.
387. Rome Statute, supra note 1, art. 20(3)(a)-(b). See BASSIOUNI, supra note 76, at 749-68; CASSESE, supra note 37, at 704-29; SCHABAS, supra note 17, at 191-93; ZAHAR & SLUITER, supra note 50, at 317-18; ZAPPALÁ;, supra note 357, at 175-77, 194.
388. U.S. CONST, amend. V. See generally BASSIOUNI, supra note 76, at 749-69.
389. Anne Bowen Poulin, Double Jeopardy and Judicial Accountability: When is an Acquittal Not An Acquittal?, 27 ARIZ. ST. L.J. 953 (1995) (analyzing how judicial misconduct and corruption may be cited to either prevent jeopardy from attaching or to characterize an acquittal as something else, with the end result being re-prosecution).
390. People v. Aleman, Nos. 93 CR 28786, 93 CR 28787, 1994 WL 684499 (I11. Cir. 1994).
391. Id. at*6-15&*20-21.
392. N.E.2d 134 (Mass. 2002).
393. Id. at 138,282.
394. Id. at 282. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
395. U.S. CONST, amend. IV.
396. U.S. 337, 338 (1970) (citing Lewis v. United States, 146 U.S. 370 (1892)).
397. U.S. 340, 347 (1987) (citing Weeks v. United States, 232 U.S. 383 (1914)); Mapp v.Ohio, 367 U.S. 643(1961).
398. U.S. 442, 455 (1912). See CASSESE, supra note 37, at 1292; SCHABAS, supra note 17, at 299; ZAHAR & SLUITER, supra note 50, at 380-82; ZAPPALA, supra note 357, at 149-52.
399. A Miranda warning is based on the Supreme Court case Miranda v. Arizona, and requires that a police officer recite the following in order to inform a person being arrested of his or her constitutional rights: (1) you have the right to remain silent, and need not answer any questions, (2) if you do answer questions, anything you say can be used against you, (3) you have the right to consult with a lawyer before and during questioning by the police, and (4) if you cannot afford a lawyer, one will be provided to you. 384 U.S. 436,467-73 (1966); see CASSESE, supra note 37, at 389-94; SCHABAS, supra note 17, at 287-90; ZAPPALA, supra note 357, at 125-29.
400. Rome Statute, supra note 1, art. 55(2).
401. See Rome Statute, supra note 1, art. 27; SCHABAS, supra note 17, at 253-54. These rights [to remain silent, receive legal assistance, and be questioned only in the presence of counsel] go well beyond the requirements of international human rights norms set out in such instruments as the International Covenant on Civil and Political Rights, and as a general rule surpass the rights recognized in even the most advanced and progressive justice systems. But the Statute insists that these norms be honoured, even if the questioning is being carried out by officials of national justice systems pursuant to a request from the Court. Id. at 253; ZAHAR & SLUITER, supra note 50, at 305 ("Interestingly, wide-ranging protection during interrogation has rather uncritically been included in the ICC Statute. Article 55 of this statute elevates the 'Miranda' rights to a fundamental rule of ICC procedure.").
402. SCHABAS, supra note 17, at 171-86.
403. Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8 1945, 59 Stat. 1544, 82 U.N.T.S. 279.
404. Special Proclamation: Establishment of an International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589 at 3, 4 Bevans 20.
405. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277.
406. ICTY Statute, supra note 9.
407. ICTR Statute; supra note 10.
408. The Special Court for Sierra Leone, http://www.sc-sl.org/ (last visited Aug. 5, 2008).
409. These include: Extraordinary Chambers in the Courts of Cambodia, http://www.eccc.gov.kh/english/default.aspx (last visited Aug. 5, 2008); U.N. Interim Administration Mission in Kosovo, http://www.unmikonline.org/ (last visited Aug. 5, 2008); The Iraqi Special Tribunal, http://www.iraq-iht.org/ (last visited Aug. 5, 2008).
410. SCHABAS, supra note 17, at 210-23.
411. THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE, supra note 74, at 202; THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, supra note 74, at 975-1000 (offering a detailed examination of official capacity and immunities under international law and Article 27 of the Rome Statute).
412. Decision No. 98-408 DC, 1999 J.O. (20) 1317; see also para. 14 of the Preamble of the Constitution of the Fourth Republic of Oct. 27, 1946 (Constitution de 1946, préambule (Fr.) (reaffirmed in the Constitution du 4 Octobre 1958, préambule)); see generally Helen Duffy, National Constitutional Compatibility and the International Criminal Court, 11 DUKE J. COMP. & INT'L L. 5 (2001) (discussing the need for certain countries to amend their constitutions in order to ratify the Rome Statute and arguments relevant to ratifying it without constitutional amendment).
413. United States v. Nixon, 418 U.S. 683 (1974) (finding that executive privilege does not protect information subpoenaed pursuant to a criminal
414. See Bolton, supra note 3, at 170 ("Who will advise a President that he is unequivocally safe from the retroactive imposition of criminal liability if he guesses wrong?"); Lee A. Casey, The Case Against the International Criminal Court, 25 FORDHAM INT'LL.J. 840, 848-50 (2002).
415. See Part V, supra.
416. As an "inactive" signatory to the Rome Statute following the delivery of the Bolton letter of May 6, 2002, to the United Nations (see note 27, supra), we propose that the President deliver a second letter to the United Nations, as depository to the Rome Statute, essentially revoking the May 6, 2002 letter and confirming the resumption of U.S. legal obligations as a signatory State to the Rome Statute (namely, not to defeat the object and purpose of the Rome Statute). This step would enable the President to proceed most efficiently with ratification (rather than accession) procedures for adoption of the Rome Statute.
417. SCHABAS, supra note 17, at 328-29; International Criminal Court, Assembly of States Parties, http://www.icc-cpi.int/asp/statesparties. html.
418. The International Criminal Court Act 2002 and the International Criminal Court (Consequential Amendments) Act 2002, June 28, 2002. See Gidean Boas, An Overview of Implementation by Australia of the Statute of the International Criminal Court, 2 J. INT'L CRIM. JUST. 179(2004).
419. Declarations Made by France Upon Ratifying the Statute of the International Criminal Court, June 9, 2000, available at http://www.lcnp.0rg/global/french.htm#artachment.
420. See, e.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, 6 ILM 368 (1967).
421. Such acts should constitute "High Crimes" meriting impeachment under the Constitution. U.S. CONST, art. II, § 4.
422. Rome Statute, supra note 1, art. 11(1); David Scheffer, How to Turn the Tide Using the Rome Statute's Temporal Jurisdiction, 2 INT'L CRIM. JUSTICE 26, 29 (2004) (a proper interpretation of Articles 11(2), 12(3), 22(1), 24, 121(5), and 126(2), taken together, establishes that the temporal jurisdiction of the ICC over any particular individual is determined in accordance with the date upon which the Rome Statute enters into force for such individual's State of nationality and whether certain circumstances, such as a U.N. Security Council referral of the relevant situation to the ICC or the special consent by the State of nationality of the individual, have occurred prior to the entry into force of the Rome Statute for that State).
423. For example, for information regarding the ICC's treatment of the situation in Darfur, Sudan, see International Criminal Court: Darfur, Sudan, http://www.icc-cpi.int/cases /Darfur.html (last visited Aug. 5, 2008).
424. Bearing in mind the start date for jurisdiction of the Rome Statute for any newly ratified State Party under Article 126(2), the only way Article 24 makes sense is if it means, "No person shall be criminally responsible under this Statute for conduct prior to entry into force of this Statute for the State of nationality of such person." Article 24 is a general principle of criminal law in the Rome Statute and pertains to the non-retroactivity ratione personae; its whole purpose is to deal with the "person" with respect to criminal responsibility. When read in conjunction with Article 11(2), Article 24 must refer to entry into force for that person's state of nationality .... Indeed, if a poll were to be taken today of all States Parties that ratified the Rome Statute after 1 July 2002, how many of those governments would confirm their understanding that their nationals have been fully subject to ICC jurisdiction since 1 July 2002 [and prior to that nation's ratification of the Rome Statute], pursuant to Article 241 I submit that not a single one, if it considered the matter seriously, would do so. Scheffer, How to Turn the Tide Using the Rome Statute's Temporal Jurisdiction, supra note 403.
425. Rome Statute, supra note 1, art. 103. The reality is that the United States would have to enter into an agreement with the ICC to incarcerate convicted individuals. Perhaps as part of the terms of such agreement, the U.S. could require that any U.S. citizen convicted by the ICC must be incarcerated in the United States unless otherwise agreed with the United States. We recommend that, if successfully negotiated, such a bilateral arrangement between the United States and the ICC could be treated as a supplement to the implementing legislation enabling the United States to join the ICC.
426. While the United States invokes the death penalty at the federal level, as do a number of the nation's states, it probably would be politically impossible for the U.S. government to agree to the ICC administering the death penalty to an American, and it is almost inconceivable given the widespread opposition to the death penalty by a large number of the State Parties.
427. Article 121(5) reads: Any amendment to articles 5, 6, 7, and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State party's nationals or on its territory. Article 121(6) reads: If an amendment has been accepted by seven-eights of States Parties in accordance with paragraph 4, any State Party which has not accepted the amendment may withdraw from this Statute with immediate effect, notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2, by giving notice no later than one year after the entry intro force of such amendment.
428. Article 123(1) reads: Seven years after the entry into force of this Statute the Secretary-General of the United Nations shall convene a Review Conference to consider any amendments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5. The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions. Note also that Rules can be amended at any time upon adoption by a two-thirds majority of the members of the Assembly of States Parties. Rome Statute, supra note 1, art. 51.
429. Article 19(2) reads: Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by: (1) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; (b) A state which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or (c) A State from which acceptance of jurisdiction is required under article 12. See David Scheffer, Staying the Course with the International Criminal Court, supra note 7, at 61.
430. This was negotiated in 2000 as a U.S. proposal with respect to the draft Relationship Agreement between the International Criminal Court and the United Nations, but it was not followed through by the Bush Administration. See Working Group on a Relationship Agreement Between the United Nations and the International Criminal Court, Proposal Submitted by the United States of America, U.N. Doc. PCNICC/2000/WGICC-UN/DP.17 (2000); Scheffer, Staying the Course with the International Criminal Court, supra note 7, at 61-62 (describing similar wording tailored for the draft Relationship Agreement between the International Criminal Court and the United Nations rather than as an amendment to the Rules of Procedure and Evidence, as is proposed in this article).