U.S. Policy Regarding the International Criminal Court
CRS Report for Congress
U.S. Policy Regarding the
International Criminal Court
Updated August 29, 2006
Jennifer K. Elsea
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
U.S. Policy Regarding the International Criminal Court
Summary
One month after the International Criminal Court (ICC) officially came into
existence on July 1, 2002, the President signed the American Servicemembers’
Protection Act (ASPA), which limits U.S. government support and assistance to the
ICC; curtails certain military assistance to many countries that have ratified the Rome
Statute establishing the ICC; regulates U.S. participation in United Nations (U.N.)
peacekeeping missions commenced after July 1, 2003; and, most controversially
among European allies, authorizes the President to use “all means necessary and
appropriate to bring about the release” of certain U.S. and allied persons who may be
detained or tried by the ICC. The provision withholding military assistance under the
programs for Foreign Military Financing (FMF) and International Military Education
and Training (IMET) from certain States Parties to the Rome Statute came into effectth
on July 1, 2003. The 109 Congress reauthorized the Nethercutt Amendment as part
of the FY2006 Consolidated Appropriations Act (H.R. 3057/P.L. 109-102). Unless
waived by the President, it bars Economic Support Funds (ESF) assistance to
countries that have not agreed to protect U.S. citizens from being turned over to the
ICC for prosecution. H.R. 5522, as passed by the House of Representatives, would
continue the ESF restriction for FY2007. The Senate passed a measure as part of the
2007 National Defense Authorization Act (H.R. 5122, S. 2766) that would modify
ASPA to end the ban on IMET assistance.
The ICC is the first permanent world court with nearly universal jurisdiction to
try individuals accused of war crimes, crimes against humanity, genocide, and
possibly aggression. While most U.S. allies support the ICC, the Bush
Administration firmly opposes it and has renounced any U.S. obligations under the
treaty. After the Bush Administration threatened to veto a United Nations Security
Council resolution to extend the peacekeeping mission in Bosnia on the ground that
it did not contain sufficient guarantees that U.S. participants would be immune to
prosecution by the ICC, the Security Council adopted a resolution that would defer
for one year any prosecution of participants in missions established or authorized by
the U.N. whose home countries have not ratified the Rome Statute. That resolution
was renewed through July 1, 2004, but was not subsequently renewed. In addition,
the United States is pursuing bilateral “Article 98”agreements to preclude extradition
by other countries of U.S. citizens to the ICC. However, in what some view as a sign
that the Administration is softening its stance with respect to the ICC, the United
States did not exercise its veto power at the Security Council to prevent the referral
of a case against Sudan’s leaders for the alleged genocide in Darfur.
This report outlines the main objections the United States has raised with
respect to the ICC and analyzes ASPA and other relevant legislation enacted or
proposed to regulate U.S. cooperation with the ICC. The report concludes with a
discussion of the implications for the United States, as a non-ratifying country, as the
ICC begins to take shape, as well as the Administration’s efforts to win immunity
from the ICC’s jurisdiction for Americans. A description of the ICC’s background
and a more detailed analysis of the ICC organization, jurisdiction, and procedural
rules may be found in CRS Report RL31437, International Criminal Court:
Overview and Selected Legal Issues, by Jennifer K. Elsea.
Contents
In troduction ......................................................1
U.S. Objections to the Rome Statute...................................5
Issue #1 Jurisdiction over Nationals of Non-Parties...................5
Issue #2 Politicized Prosecution..................................7
Issue #3 The Unaccountable Prosecutor............................8
Issue #4 Usurpation of the Role of the U.N. Security Council...........8
Issue #5 Lack of Due Process Guarantees...........................9
Congressional Action..............................................10
American Servicemembers’ Protection Act of 2002..................10
Legislative History........................................10
Prohibitions and Requirements..............................11
The Nethercutt Amendment.....................................17
National Defense Authorization Act for FY2007....................17
Prospective Legislation........................................18
Implications of the ICC for the United States as a Non-member............19
Observer Role...............................................20
Foreign Policy Implications.....................................21
Strategy for Precluding ICC Prosecution of U.S. Troops and Officials...23
Agreement with the U.N. Security Council.....................23
Other U.N. Missions......................................24
U.N. Action Regarding the Situation in Darfur..................25
Article 98 Agreements.....................................26
Options .................................................28
U.S. Policy Regarding the International
Criminal Court
Introduction1
July 1, 2002, marked the birth of the International Criminal Court (ICC),
meaning that crimes of the appropriate caliber committed after that date could fall
under the jurisdiction of the ICC. The ICC is the first global permanent international
court with jurisdiction to prosecute individuals for “the most serious crimes of2
concern to the international community.” Since its creation, the ICC has received
three referrals by States Parties, which involved allegations of war crimes in the
Republic of Uganda, the Democratic Republic of Congo, and the Central African
Republic.3 The United Nations Security Council has also referred a situation to the4
Prosecutor — allegations of atrocities occurring in Darfur, Sudan. The Chief
Prosecutor subsequently decided to open investigations into three of the referred56
cases: Democratic Republic of the Congo, Republic of Uganda, and Darfur,
1 Emily Cowley, Law Clerk, contributed research assistance to this report.
2 See Rome Statute of the International Criminal Court, Preamble, U.N. Doc. A/CONF.183/9
(1998)(“Rome Statute”). These include genocide, crimes against humanity, war crimes, and
potentially the crime of aggression, if the Assembly of States Parties is able to reach an
agreement defining it. Id. art. 5(1). See generally International Criminal Court, How Does
the Court Work? [http://www.icc-cpi.int/ataglance/whatistheicc/howdoesthecourtwork.
html], (hereinafter How the ICC Works) (last visited June 8, 2006), explaining the two ways
investigations are initiated in the ICC: (1) a situation may be referred to the Prosecutor by
States Parties or the United Nations Security Council or (2) the Prosecutor may
independently initiate investigations on the basis of information received from reliable
sources, if, after examining the information, he determines that there is a reasonable basis
to proceed with an investigation.
3 See International Criminal Court, Situations and Cases, [http://www.icc-cpi.int/cases.html]
(last visited June 9, 2006); see also American University War Crimes Research Office,
International Criminal Court Status Update, [http://www.wcl.american.edu/warcrimes/
icc.status.cfm] (June 9, 2006) (providing a time line of significant events at the ICC).
4 SC Res. 1593, U.N. Doc S/RES/1593 (2005); see infra note 106 and accompanying text;
How the ICC Works, supra note 2.
5 Press Release, International Criminal Court, The Office of the Prosecutor of the
International Criminal Court Opens its First Investigation (June 23, 2004) available at
[http://www.icc-cpi.int/pressrelease_details&id=26&l=en.html](last visited June 14, 2006).
6 See Press Release, International Criminal Court, The Prosecutor of the International
Criminal Court Opens an Investigation into Northern Uganda (July 29, 2004) available at
[http://www.icc-cpi.int/pressrelease_details&id=33&l=en.html](last visited June 14, 2006).
Sudan.7 Currently, five arrest warrants have been issued by the Court, all in
connection to the situation in Northern Uganda.8
The United Nations, many human rights organizations, and most democratic
nations have expressed support for the ICC.9 The Bush Administration, however,
opposes it and in May, 2002, formally renounced any U.S. obligations under the
treaty,10 to the dismay of the European Union.11 On August 2, 2002, President Bush
signed into law the American Servicemembers’ Protection Act (ASPA) to restrict
government cooperation with the ICC. The Administration had earlier stressed that
7 See Press Release, International Criminal Court, The Prosecutor of the ICC Opens
Investigation in Darfur (June 6, 2006) available at [http://www.icc-
cpi.int/pressrelease_details&id=107&1=en.html](last visited June 14, 2006).
8 See Situation in Uganda, Case No. ICC-02/04-01-05, Warrant of Arrest for Joseph Kony
Issued on July 2005 as Amended on 27 September 2005, ¶ 42 (Sept. 27, 2005) available at
[http://www.icc-cpi.int/library/cases/ICC-02-04-01-05-53_English.pdf](last visited June 14,
with 33 counts of war crimes and crimes against humanity); see also Court Seeks Arrests
of Ugandan Rebels, N.Y. TIMES, Oct. 15, 2005, at A10 (reporting that warrants were issued
for the arrest of four other senior leaders in addition to Joseph Kony).
9 See Barbara Crossette, World Criminal Court is Ratified — Praised by U.N., Opposed by
U.S., N.Y. TIMES Apr. 12, 2002, available at 2002 WL-NYT 0210200003. As of Nov. 15,
ratifications and reservations, visit [http://www.icc-cpi.int/asp/statesparties.html](last visited
June 14, 2006).
10 See Jonathon Wright, U.S. Renounces Obligations to International Court, REUTERS, May
6, 2002. Although some in the media described the act as an “unsigning” of the treaty, it
may be more accurately described as a notification of intent not to ratify. The U.S. letter to
the U.N. Secretary General stated:
This is to inform you, in connection with the Rome Statute of the International
Criminal Court adopted on July 17, 1998, that the United States does not intend
to become a party to the treaty. Accordingly, the United States has no legal
obligations arising from its signature on December 31, 2000. The United States
requests that its intention not to become a party, as expressed in this letter, be
reflected in the depositary’s status lists relating to this treaty.
See U.N. Treaty Database, Rome Statute of the International Criminal Court, available at
[http://untreaty.un.org/ ].
11 The EU issued a statement at the Preparatory Commission for the International Criminal
Court expressing “disappointment and regret,” noting the “potentially negative effect that
this particular action by the United States may have on the development and reinforcement
of recent trends towards Individual accountability for the most serious crimes of concern to
the international community and to which the United States shows itself strongly
committed.” See Statement of the European Union on the position of the United States of
America towards the International Criminal Court, U.N. Doc. PCNICC/2002/INF/7, May
the United States shares the goal of the ICC’s supporters — promotion of the rule of
law — and does not intend to take any action to undermine the ICC.12
While the United States initially supported the idea of creating an international
criminal court13 and was a major participant at the Rome Conference,14 in the end, the
United States voted against the Statute.15 Nevertheless, President Clinton signed the
treaty December 31, 2000, at the same time declaring that the treaty contained
“significant flaws” and that he would not submit it to the Senate for its advice and
consent “until our fundamental concerns are satisfied.”16 The Bush Administration
has likewise declined to submit the Rome Statute to the Senate for ratification, and
has notified the U.N. Secretary General, as depositary, of the U.S. intent not to ratify
12 See Marc Grossman, Under Secretary for Political Affairs, Remarks to the Center for
Strategic and International Studies, Washington, D.C., (May 6, 2002), prepared remarks
available at [http://www.state.gov/p/9949.htm](last visited June 13, 2006). Secretary
Grossman promised that:
Notwithstanding our disagreements with the Rome Treaty, the United States
respects the decision of those nations who have chosen to join the ICC; but they
in turn must respect our decision not to join the ICC or place our citizens under
the jurisdiction of the court.
So, despite this difference, we must work together to promote real justice after
July 1, when the Rome Statute enters into force.
The existence of a functioning ICC will not cause the United States to retreat
from its leadership role in the promotion of international justice and the rule of
law.
13 See Ruth Wedgwood, Harold K. Jacobson and Monroe Leigh, The United States and the
Statute of Rome, 95 AM. J. INT’L L. 124 (2001) (commenting that the United States has
“repeatedly and publicly declared its support in principle” for an international criminal
court). Congress expressed its support for such a court, providing the rights of U.S. citizens
were recognized. See, e.g., Foreign Operations Appropriations Act § 599E, P.L. 101-513,
104 Stat. 2066-2067 (1990)(expressing the sense of the Congress that “the United States
should explore the need for the establishment of an International Criminal Court” and that
“the establishment of such a court or courts for the more effective prosecution of
international criminals should not derogate from established standards of due process, the
rights of the accused to a fair trial and the sovereignty of individual nations”); Anti-Drug
Abuse Act of 1988, § 4108, P.L. 100-690, 102 Stat. 4181, 4266 (1988)(encouraging the
President to initiate discussions with foreign governments about the possibility of creating
an international court to try persons accused of having engaged in international drug
trafficking or having committed international crimes, providing constitutional guarantees
of U.S. citizens are recognized); P.L. 99-399, § 1201 (1986) .
14 See U.N. International Criminal Court: Hearings before the Subcomm. on International
Operations of the Senate Foreign Relations Committee, 105th Cong. (1998) (testimony of
David J. Scheffer, Ambassador-at-Large for War Crimes Issues).
15 See Wedgwood et al., supra note 13, at 124 (noting that the final vote for the Statute was
16 See Statement on the Rome Treaty on the International Criminal Court, 37 WEEKLY
COMP. PRES DOC 4 (Dec. 31, 2000).
the treaty.17 The primary objection given by the United States in opposition to the
treaty is the ICC’s possible assertion of jurisdiction over U.S. soldiers charged with
“war crimes” resulting from legitimate uses of force, and perhaps over civilian
policymakers, even if the United States does not ratify the Rome Statute. The United
States sought to exempt U.S. soldiers and employees from the jurisdiction of the ICC
based on the unique position the United States occupies with regard to international
peacekeepi n g. 18
On June 30, 2002, the United States threatened to veto a draft U.N. resolution
to extend the peacekeeping mission in Bosnia because the members of the Security
Council refused to add a guarantee of full immunity for U.S. personnel from the
jurisdiction of the ICC, a move that provoked strong opposition from ICC supporters
concerned with the viability of that institution, and that also raised some concerns
about the future of United Nations peacekeeping.19 Ultimately, however, the Security
Council and the U.S. delegation were able to reach a compromise and adopted
unanimously a resolution requesting the ICC defer, for an initial period of one year,
any prosecution of persons participating in U.N. peacekeeping efforts who are
nationals of states not parties to the ICC.20 The compromise reached by the Security
Council did not provide permanent immunity for U.S. soldiers and officials from
prosecution by the ICC; rather, it invoked article 16 of the Rome Statute21 to defer
potential prosecutions for one year. Some States Parties to the Rome Statute and
other supporters have argued that article 16 was meant only to apply to specific cases
and was not intended to permit a blanket waiver for citizens of a specific country.
The U.N. Security Council adopted another resolution extending the deferral to July
1, 2004.22 However, during the summer of 2004, opposition to extending the deferral
through 2005 eventually led the Administration to drop its pursuit. The United States
continues to pursue bilateral agreements to preclude extradition by other countries
of U.S. citizens to the ICC.
This report outlines the main objections the United States has raised with
respect to the ICC and analyzes the American Servicemembers’ Protection Act
(ASPA)23 enacted to regulate U.S. cooperation with the ICC. The report discusses
the implications for the United States, as a non-ratifying country, as the ICC begins
17 Because the United States signed the Rome Statute, it had been obligated under
international law to refrain from conducting activity in contravention of the object and
purpose of the treaty. See Vienna Convention on the Law of Treaties, opened for signature
May 23, 1969, art. 18, 1155 U.N.T.S. 335. However, this obligation ends once a signatory
state has indicated an intent not to ratify the treaty. Id.
18 See Grossman, supra note 12.
19 See Colum Lynch, Dispute Threatens U.N. Role in Bosnia; U.S. Wields Veto in Clash over
War Crimes Court, WASH. POST, Jul. 1, 2002, at A1.
20 SC Res. 1422, U.N. Doc. S/RES/1422 (2002).
21 See infra note 100, and accompanying text.
22 SC Res. 1487, U.N. Doc. S/RES/1487 (2003). The vote was 12-0, with France, Germany
and Syria abstaining.
23 P.L. 107-206, title II, 116 Stat. 889 (2002), codified at 22 U.S.C. §§ 7421 et seq.
to take shape, as well as the Administration’s efforts to win immunity from ICC
jurisdiction for Americans. A description of the ICC’s background and a more
detailed analysis of the ICC’s organization, jurisdiction, and procedural rules may be
found in CRS Report RL31437, International Criminal Court: Overview and
Selected Legal Issues.
U.S. Objections to the Rome Statute
The primary objection given by the United States in opposition to the treaty is
the ICC’s possible assertion of jurisdiction over U.S. soldiers charged with “war
crimes” resulting from legitimate uses of force, or its assertion of jurisdiction over
other American officials charged for conduct related to foreign policy initiatives.
The threat of prosecution by the ICC, it is argued, could impede the United States in
carrying out military operations and foreign policy programs, impinging on the
sovereignty of the United States. Detractors of the U.S. position depict the objection
as a reluctance on the part of the United States to be held accountable for gross
human rights violations or to the standard established for the rest of the world.
Below, in bold type, are summarized some of the main objections voiced by
U.S. officials and other critics of the Rome Statute. Each objection is followed by the
counterpositions likely to be voiced by representatives of U.S. foreign allies that
support the ICC, as well as a very brief discussion of the issue. This section is
intended to familiarize the reader with the basic issues that comprise the current
debate, and not to provide an exhaustive analysis of the issues.24 None of the
statements in the section below should be interpreted to represent the view of CRS,
since CRS does not take positions on policy issues.
Issue #1 Jurisdiction over Nationals of Non-Parties
Only nations that ratify treaties are bound to observe them. The ICC purports
to subject to its jurisdiction citizens of non-party nations, thus binding non-25
party nations. ICC supporters may argue that the ICC has jurisdiction over
persons, not nations. Non-party states are not obligated to do anything under the
treaty. Therefore, the Rome Statute does not purport to bind non-parties, although
non-party states may cooperate or defend their own interests that may be affected by
a pending case. ICC opponents, however, may point out that if individuals are
charged for conduct related to carrying out official policy, the difference between26
asserting jurisdiction over individuals and over the nation itself becomes less clear.
24 For a more in-depth analysis of these issues, see CRS Report RL31437, International
Criminal Court: Overview and Selected Legal Issues, by Jennifer K. Elsea.
25 See Fact Sheet: The International Criminal Court, U.S. Department of State Office of War
Crimes Issues, May 6, 2002; Grossman, supra note 12 (asserting “the United States has
never recognized the right of an international organization to [detain and try American
citizens] absent consent or a U.N. Security Council mandate”).
26 See Ruth Wedgwood, The United States and the International Criminal Court: The
(continued...)
After all, it is arguably the policy decision and not the individual conduct that is
actually at issue. The threat of prosecution, however, could inhibit the conduct of
U.S. officials in implementing U.S. foreign policy. In this way, it is argued, the ICC
may be seen to infringe U.S. sovereignty.
Some ICC supporters have asserted that the crimes covered by the Rome Statute
are already prohibited under international law either by treaty or under the concept
of “universal jurisdiction” or both; therefore, all nations may assert jurisdiction to try
persons for these crimes. The ICC, they argue, would merely be exercising the
collective jurisdiction of its members, any of which could independently assert
jurisdiction over the accused persons under a theory of “universal jurisdiction”; the
Nuremberg trials serve as an example of such collective jurisdiction.27 ICC
opponents may note that the existence of “universal jurisdiction” has been disputed
by some academics, who argue that actual state practice does not provide as much
support for the concept as many ICC supporters may claim.28 However, ICC
supporters note, the Rome Statute does not rely entirely on universal jurisdiction;
certain pre-conditions to jurisdiction must be met, including the consent of either the
State on whose territory the crime occurred or the State of nationality of the
accused.29 The United States is already party to most of the treaties that form the
basis for the definitions of crimes in the Rome Statute, meaning U.S. citizens are
already subject to the prohibitions for which the ICC will have jurisdiction.
ICC supporters may further argue that if the ICC could not assert jurisdiction
over non-party States, so-called “rogue regimes” could insulate themselves from the
reach of the ICC simply by not ratifying the Rome Statute. The purpose for creating
the ICC would be subverted. The United States had proposed to resolve this problem
by creating a mandatory role for the U.N. Security Council in deciding when the ICC
should assert jurisdiction, but the majority of other countries refused to adopt such
a rule on the stated grounds that it would mirror the uneven prosecution of war
crimes and crimes against humanity under the present system of ad hoc tribunals.
26 (...continued)
Irresolution of Rome, 64 LAW & CONTEMP. PROBS. 193, 199 (2001) (arguing the state whose
national is charged remains a “party in interest”to the prosecution).
27 See Jordan J. Paust, The Reach of ICC Jurisdiction over Non-Signatory Nationals, 33
VAND. J. TRANSNAT’L L. 1, 3-4 (2000).
28 See Wedgwood, supra note 26, at 199 (pointing out there is “no ordinary precedent for
delegating national criminal jurisdiction to another tribunal, international or national,
without consent of the affected states, except in the aftermath of international
belligerency”). Some observers, however, note that one of the reasons for constituting an
international criminal court was to do away with the need for military conquest prior to
prosecuting war crimes, in the hope of eliminating the perception of “victor’s justice.”
29 Rome Statute, supra note 2, art. 12. See generally CRS Report RL31437, International
Criminal Court: Overview and Selected Legal Issues, by Jennifer Elsea, at 21-26,
(summarizing jurisdictional requirements). There is no consent requirement in cases
referred by the Security Council.
Issue #2 Politicized Prosecution
The ICC’s flaws may allow it to be used by some countries to bring trumped-up
charges against American citizens, who, due to the prominent role played by the
United States in world affairs, may have greater exposure to such charges than30
citizens of other nations. ICC supporters argue that the principle of
“complementarity” will ensure that the ICC does not take jurisdiction over a case
involving an American citizen, unless the United States is unwilling or unable
genuinely to investigate the allegations itself, a scenario some argue is virtually
unthinkable. Some also take exception to the notion that Americans are more likely
to be targeted for prosecution although many other countries that participate in
peacekeeping operations, for example, are willing to subject their soldiers and
officials to the jurisdiction of the ICC. Many U.S. opponents of the ICC express
concern that the ICC will be able to second-guess a valid determination by U.S.
prosecutors to terminate an investigation or decline to prosecute a person. It is not
uncommon for unfriendly countries to characterize U.S. foreign policy decisions as
“criminal.” The ICC could provide a forum for such charges. Some ICC supporters
dispute the likelihood of such an occurrence, and express confidence that unfounded
charges would be dismissed.
A recent determination by the ICC’s Chief Prosecutor seems to demonstrate a
reluctance to launch an investigation against the United States based on allegations
regarding its conduct in Iraq. On February 9, 2006, the Chief Prosecutor issued a
letter explaining his reasons for declining to launch an investigation despite multiple
submissions by private groups urging action against the United States.31 In addition
to acknowledging the limits of the Court’s jurisdiction, which he noted precluded
pursuing charges based on the legality of the decision to invade,32 the Prosecutor
noted that the allegations about U.S. nationals’ behavior during the Iraq occupation
were “of a different order than the number of victims found in other situations under
investigation,” and concluded that the allegations were of insufficient gravity to
warrant an investigation.33
30 See Grossman, supra note 12.
31 Letter from Luis Moreno-Ocampo, Chief Prosecutor, International Criminal Court, (Feb.
re_Iraq_9_February_2006.pdf]
32 See id. at 3-4 (explaining that the ICC does not have personal jurisdiction over non-State
Party nationals who performed the alleged crimes in a non-State Party territory).
33 See id. at 9. The Prosecutor also seemed satisfied with U.S. efforts to investigate and
prosecute possible war crimes:
In light of the conclusion reached on gravity, it was unnecessary to reach a
conclusion on complementarity. It may be observed, however, that the Office
also collected information on national proceedings, including commentaries from
various sources, and that national proceedings had been initiated with respect to
each of the relevant incidents. Id.
Issue #3 The Unaccountable Prosecutor
The Office of the Prosecutor, an organ of the ICC that is not controlled by any
separate political authority, has unchecked discretion to initiate cases, which
could lead to “politicized prosecutions.”34 ICC supporters may counter that the
ICC statute does contain some restraints on the Prosecutor, including a provision that
the Prosecutor must seek permission from a pre-trial chamber to carry out a self-
initiated prosecution, and a provision for removal of the Prosecutor by vote of the
Assembly of States Parties.35 The independence of the prosecutor, it is argued, is
vital in order to ensure just results, free from political control. U.S. negotiators at the
Rome Conference had pressed for a role for the U.N. Security Council to check
possible “overzealous” prosecutors and prevent politicized prosecutions. The
majority of nations represented at the Rome Conference took the view that the U.N.
Security Council, with its structure and permanent members, would pose an even
greater danger of “politicizing” ICC prosecutions, thereby guaranteeing impunity for
some crimes while prosecuting others based on the national interests of powerful
nations.
Issue #4 Usurpation of the Role of the U.N. Security Council
The ICC Statute gives the ICC the authority to define and punish the crime of
“aggression,” which is solely the prerogative of the Security Council of the36
United Nations under the U.N. Charter. ICC supporters may argue that all States
Parties will have the opportunity to vote on a definition of aggression after the treaty
has been in effect for seven years, which definition must comport with the U.N.
Charter, thereby preserving the role of the U.N. Security Council.37 The ICC, under
this view, is merely providing a forum for trying persons accused of committing
“aggression” under international law. Opponents of the ICC, however, may argue
that the lack of agreement among nations as to the definition of aggression suggests
that any definition adopted only by a majority of member states of the ICC may not38
be sufficiently grounded in international law to be binding as jus cogens. The U.N.
34 See Grossman, supra note 12.
35 Rome Statute, supra note 2, art. 46, provides procedures for removing a Prosecutor who:
(a) Is found to have committed serious misconduct or a serious breach of his or her duties
under [the Rome] Statute, as provided for in the Rules of Procedure and Evidence; or
(b) Is unable to exercise the functions required by this Statute.
36 See Grossman, supra note 12.
37 See CRS Report RL31437, International Criminal Court: Overview and Selected Legal
Issues, by Jennifer Elsea, at 20-21 (summarizing issues relevant to the definition of
“ a ggr e s s i o n ” ) .
38 A mutually acceptable definition for the elements of the crime of aggression has long
eluded the international community, impeding earlier attempts to establish an international
criminal court. See Jimmy Gurulé, United States Opposition to the 1998 Rome Statute
Establishing an International Criminal Court: Is the Court’s Jurisdiction Truly
Complementary to National Criminal Jurisdictions?, 35 CORNELL INT’L L.J. 1, 2 (2002).
Article 39 of the U.N. Charter leaves it to the Security Council to determine the existence
(continued...)
General Assembly adopted a resolution in 197439 addressing the definition of
aggression, but it has only been invoked once by the Security Council.40 The
definition contains an enumeration of offenses included as possible aggression,41 but
leaves the determination to the Security Council.
Issue #5 Lack of Due Process Guarantees
The ICC will not offer accused Americans the due process rights guaranteed
them under the U.S. Constitution, such as the right to a jury trial. Supporters
of the Rome Statute contend it contains a comprehensive set of procedural safeguards
that offers substantially similar protections to the U.S. constitution.42 Some also note
that the U.S. Constitution does not always afford American citizens the same
procedural rights. For example, Americans may be tried overseas, where foreign
governments are not bound to observe the Constitution. Moreover, cases arising in
the armed services are tried by court-martial, which is exempt from the requirement
38 (...continued)
of and take action with respect to any act of aggression, but does not provide a definition.
39 G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 19, U.N. Doc A/9615 (1974).
40 See Kriangsak Kittichaisaree, The NATO Military Action and the Potential Impact of the
International Criminal Court, 4 SING. J. INT’L & COMP. L. 498, 505 (2000) (citing U.N.
Security Council Resolution 418 of 4 Nov. 1977, declaring South Africa guilty of aggression
against Angola).
41 G.A. Res. 3314, art. 3, lists the following examples of possible acts of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another
State, or any military occupation, however temporary, resulting from such invasion or
attack, or any annexation by the use of force of the territory of another State or part
thereof;
(b) Bombardment by the armed forces of a State against the territory of another State
or the use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine
and air fleets of another State;
(e) The use of armed forces of one State which are within the territory of another State
with the agreement of the receiving State, in contravention of the conditions provided
for in the agreement or any extension of their presence in such territory beyond the
termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of
another State, to be used by that other State for perpetrating an act of aggression
against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of such gravity
as to amount to the acts listed above, or its substantial involvement therein.
42 See id. at 29-38 (describing procedural safeguards in the Rome Statute); see also Selected
Procedural Safeguards in Federal, Military, and International Courts, CRS Report RL31262
(providing brief comparison of ICC procedural safeguards to federal and military rules of
procedure and evidence).
for a jury trial. The current U.S. policy about the use of military tribunals in the war
against terrorism could lead to suggestions of a double standard on the part of the
United States with respect to procedural safeguards in war crimes trials.
Congressional Action
Congress has passed several riders effectively precluding the use of funds to support
the ICC.43 The 107th Congress passed the American Servicemembers’ Protection Act
of 2002 (ASPA) as title II of the supplemental appropriations bill for 2002, which
was signed by the President on August 2, 2002.44 The 108th Congress included a
provision in the Consolidated Appropriations Act, P.L. 108-447, to prohibit the use
of funds made available under the Economic Support Fund heading to provide
assistance to countries who are members of the ICC and who have not entered into
a so-called “Article 98” agreement with the United States. This provision, known asth
the Nethercutt Amendment, was reauthorized by the 109 Congress as part of the
FY2006 Consolidated Appropriations Act (H.R. 3057/P.L. 109-102). A substantially
identical provision is included in H.R. 5522, The Foreign Operations, Export
Financing, and Related Programs Appropriations Act, 2007, as passed by the House
of Representatives (§ 572).
American Servicemembers’ Protection Act of 2002
Both the House of Representatives and the Senate added the American
Servicemembers’ Protection Act (ASPA) to the supplemental appropriations bill for
the fiscal year ending September 30, 2002, H.R. 4775, 107th Congress. The conferees
adopted the Senate version of the bill, which included a new provision that the ASPA
will not prevent the United States from cooperating with the ICC if it prosecutes
persons such as Saddam Hussein or Osama bin Laden.45
Legislative History. Originally introduced in the 106th Congress as S. 2726,
the ASPA is intended to shield members of the United States Armed Forces and
other covered persons from the jurisdiction of the ICC. The Senate Committee on
43 See Department of Defense Appropriations for 2002, P.L. 107-117.
§ 8173. None of the funds made available in division A of this Act may be used to provide
support or other assistance to the International Criminal Court or to any criminal
investigation or other prosecutorial activity of the International Criminal Court.
See also Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 2002, § 630, P.L.107-77; 22 U.S.C. § 7401 (prohibiting appropriated
funds from obligation for use by the ICC or to assist the ICC unless the United States
becomes a party to the Rome Statute).
44 P.L. 107-206, title II, 16 Stat. 899 (2002), codified at 22 U.S.C. §§ 7421 et seq.
45 See H.R. REP. NO. 107-593 (2002).
Foreign Relations held hearings46 the same day the bill was introduced but did not
report it.
Prohibitions and Requirements. The ASPA prohibits cooperation with
the ICC by any agency or entity of the federal government, or any state or local
government. (Section 2004) Covered entities are prohibited from responding to a
request for cooperation by the ICC or providing specific assistance, including arrest,
extradition,47 seizure of property, asset forfeiture, service of warrants, searches,48
taking of evidence, and similar matters. It prohibits agents of the ICC from
conducting any investigative activity on U.S. soil related to matters of the ICC.
Section 2004(d) states that the United States “shall exercise its rights to limit the use
of assistance provided under all treaties and executive agreements for mutual legal
assistance in criminal matters ... to prevent ... use by the [ICC of such assistance].”
It does not ban the communication to the ICC of U.S. policy, or U.S. government
assistance to defendants. It does not prevent private citizens from providing
testimony or evidence to the ICC. Section 2006 requires the President to put
“appropriate procedures” in place to prevent the direct or indirect transfer of certain
classified national security information to the ICC.49
Restrictions on Participation in Peacekeeping Missions. Unless
subject to a blanket waiver under section 2003,50 section 2005 of the ASPA restricts
U.S. participation in U.N. peacekeeping operations to missions where the President
certifies U.S. troops may participate without risk of prosecution by the ICC because
the Security Council has permanently exempted U.S. personnel from prosecution for
activity conducted as participants,51 or because each other country in which U.S.
personnel will participate in the mission is either not a party to the ICC and does not
consent to its jurisdiction, or has entered into an agreement “in accordance with
Article 98” of the Rome Statute.52 The latter option may not provide as much
46 The International Criminal Court: Protecting American Servicemen and Officials from
the Threat of International Prosecution, Hearing before the Senate Comm. on Foreignth
Relations, 106 Cong. (2000).
47 The expenditure of funds for the extradition or transfer of U.S. citizens to countries that
are obligated to surrender persons to the ICC is prohibited by 22 U.S.C. § 7402 unless the
receiving country provides assurances that such citizen will not be surrendered to the ICC.
The same prohibition applies with respect to giving consent to other countries to transfer or
extradite U.S. citizens to States Parties of the ICC.
48 22 U.S.C. § 7423.
49 22 U.S.C. § 7425.
50 22 U.S.C. § 7422; see infra page 14.
51 The compromise reached by the U.N. Security Council in Resolution 1422 (2002)
provided for a one-year deferral, thus providing neither immunity nor permanent protection,
which would not appear to meet this criterion. See infra note 100.
52 22 U.S.C. § 7424. The Rome Statute, supra note 2, art. 98, prohibits the ICC from
pursuing requests for assistance or surrender that would require the requested state to act
inconsistently with certain international obligations. This provision, as well as other
provisions that refer to articles of the Rome Statute, may be seen as somewhat inconsistent
(continued...)
assurance as the first; an Article 98 agreement would prevent the surrender of certain
persons to the ICC by parties to the Article 98 agreement,53 but would not bind the
ICC if it were to obtain custody of the accused through other means. If the alleged
crime is committed on the territory of a state party to the Rome Statute, the consent
requirement for the jurisdiction of the ICC would be met, despite the existence of the
Article 98 agreement. That country could, however, carry out its own investigation
and invoke complementarity to preclude the ICC’s jurisdiction. Additionally, the
country that is the object of the peacekeeping mission may consent to the ICC’s
jurisdiction over U.S. participants for alleged crimes committed on its territory,
whether or not it is a member of the ICC.
The restriction may also be waived for peacekeeping missions where the
President certifies that U.S. participation is in the national interest of the United
States. The national interest qualification would appear to be the most easily met of
the three waiver options; whenever the United States uses its vote in the Security
Council to approve a peacekeeping operation, the mission presumably is deemed to
serve the national interest.54 This section could conceivably be interpreted to suggest
the President has the authority to commit U.S. troops to participate in U.N.
peacekeeping missions without the prior approval of Congress. The restriction does
not apply to peacekeeping missions established prior to July 1, 2003.55
Restriction on Provision of Military Assistance. Effective 1 July 2003,
the ASPA also prohibits military assistance to any country that is a member of the
ICC, except for NATO countries and major non-NATO allies,56 unless the President
waives the restriction (section 2007) or a blanket waiver is in effect under section
52 (...continued)
with finding (11) of section 2, which states that the United States “will not be bound by any
of [the terms of the Rome Statute].”
53 Article 98 appears to cover only persons sent by the government to the requested state on
official business, such as officials and military personnel, and would not cover private
citizens who are present in the requested state for reasons unrelated to official duty. An
agreement signed by a state party to the ICC that promises not to surrender any other
citizens of another state to the ICC would appear to be covered by art. 97 of the Rome
Statute, which requires the requested state to consult with the ICC if honoring a request for
surrender to the ICC would cause the requested state to breach its international obligations.
See infra note 113.
54 See, e.g., 22 U.S.C. § 287b(e)(2)(B) (requiring as part of an annual report to Congress on
U.N. activities information about possible authorization for peacekeeping missions,
including the “vital national interest to be served”).
55 22 U.S.C. § 7424(b).
56 Major non-NATO allies include Australia, Egypt, Israel, Japan, Jordan, Argentina, the
Republic of Korea, and New Zealand. (§ 2007(d)). Taiwan is also exempt under § 2007.
The President may designate other nations as major non-NATO allies under 22 U.S.C. §
chapters 2 and 5 of Part II of the Foreign Assistance Act of 1961, as amended,57 and
defense articles and services financed by the government, including loans and
guarantees, under section 23 of the Arms Export Control Act.58 The President may
waive the prohibition without prior notice to Congress if he determines and reports
to the appropriate committees that such assistance is important to the national interest
or the recipient country has entered into a formal Article 98 agreement to prevent the
ICC’s proceeding against U.S. personnel present in such country.
The restriction does not appear to apply to any regional organizations that may
receive military assistance. The restrictions on military assistance will no longer
apply to these countries if they agree to sign Article 98 agreements with the United
States, or if the President waives the restrictions as he deems justified with respect
to a particular country in accordance with national interests.
One hundred countries are reported to have signed Article 98 agreements with
the United States as of May 3, 2005.59 It is not clear whether all of the agreements
have been ratified by their respective governments so as to be effective at present.
Authority to Free Persons from ICC. Section 2008 authorizes the
President to use “all means necessary and appropriate” to bring about the release of60
covered United States and allied persons, upon the request of the detainee’s
government, who are being detained or imprisoned by or on behalf of the ICC. The
Act does not provide a definition of “necessary and appropriate means” to bring
about the release of covered persons, other than to exclude bribes and the provision
57 22 U.S.C. § 2151 et seq. Chapter 2 is codified at 22 U.S.C. §§ 2311 - 2321k (provision
of defense articles and services). Chapter 5 is codified at 22 U.S.C. §§ 2347 - 2347d
(international military education and training of foreign personnel in furtherance of the goals
of international peace and security, to improve the recipient’s self-defense capabilities, and
to increase awareness of human rights).
58 22 U.S.C. § 2763 (authorizing President to provide credit to friendly foreign countries and
international organizations for the purchase of defense articles and services).
59 See Press Release, U.S. Department of State, U.S. Signs 100th Article 98 Agreement , May
3, 2005, available at [http://www.state.gov/r/pa/prs/ps/2005/45573.htm](last visited June
14, 2006). For an unofficial list of signators, see Coalition for the ICC, Status of Bilateral
Immunity Agreements (April 14, 2006), available at [http://www.iccnow.org/documents/
CICCFS_BIAstatusCurrent.pdf] (last visited June 14, 2006). For information regarding the
application of the policy with respect to Latin American countries, see CRS Report
RL33337, Article 98 Agreements and Sanctions on U.S. Foreign Aid to Latin America, by
Clare M. Ribando.
60 22 U.S.C. § 7427. “Covered allied persons” include military personnel, elected or
appointed officials, and other persons working for a NATO country or a major non-NATO
ally, “so long as that government is not a party to the International Criminal Court and
wishes its officials and other persons working on its behalf to be exempted from the
jurisdiction of the [ICC].” 22 U.S.C. § 7432(3). Covered allies currently could include
persons from the Czech Republic, Turkey, Egypt, Israel, Japan, the Republic of Korea, and
Taiwan. All of these exempted countries are members of the ICC except the Czech
Republic, Israel, Egypt, Turkey, Taiwan, and Japan. The Czech Republic, Egypt, and Israel
signed the Rome Statute but have not ratified it. In August of 2002, Israel notified the U.N.
Secretary General that it does not intend to ratify the Rome Statute.
of other such incentives. Section 2008 also authorizes the President to direct any
federal agency to provide legal representation and other legal assistance, as well as
any exculpatory evidence on behalf of covered U.S. or allied persons who are
arrested, detained, investigated, prosecuted or imprisoned by, or on the behalf of the
ICC. Section 2008 further permits the government to appear before the ICC in
defense of the interests of the United States.
Waivers and Exceptions. The ASPA contains multiple waiver provisions
and exceptions. Section 2003(a)-(b) provides for presidential waivers of sections
2005 and 2007 (restriction on U.S. participation in U.N. peacekeeping missions and
prohibition on military assistance) if the President certifies to Congress that the ICC
has agreed not to seek to assert jurisdiction over any covered U.S. or allied person
with respect to actions undertaken by such person in an official capacity. This
blanket waiver may be extended for successive periods of one year if the ICC abides
by the agreement. As described above, section 2005 may be waived under its own
terms with respect to specific peacekeeping missions if satisfactory protection can be
achieved through U.N. Security Council measures or by agreement with other
participants, or if the national interests of the United States justify participation in the61
mission. Section 2007 also contains its own waiver provision, allowing the
President to provide military assistance to a particular country if he determines and
reports to Congress that it is in the national interest or that the country in question has
entered into an agreement with the United States “pursuant to Article 98 of the Rome
Statute preventing the International Criminal Court from proceeding against United
States personnel present in such country.”62 NATO and major non-NATO allies are63
excepted from the prohibition in section 2007.
If the ICC enters into and abides by an agreement under sections 2003(a) or (b),
section 2003(c) permits the President to waive sections 2004 and 2006 (prohibiting
cooperation with the ICC and directing the President to implement measures to
prohibit the transfer of classified information) with respect to specific cases before
the ICC. To waive the prohibitions and allow cooperation with the ICC, the
President must first certify to Congress that there is reason to believe the accused is
guilty as charged, it is in the national interest to waive the prohibitions, and that the
investigation and prosecution by the ICC will not result in the investigation or arrest
of any covered U.S. or allied persons with respect to any actions undertaken by them
in an official capacity. It is somewhat unclear what a waiver of section 2006 would
entail, in that the section does not directly prohibit any action. Instead, it directs the
President to implement rules to prevent transfer of classified national security
information and law enforcement information to the ICC, and to prevent indirect
transfer of material related to matters under investigation or prosecution by the ICC
to the United Nations and ICC member countries unless assurances are received from
the recipient that such information will not be made available to the ICC. A waiver
61 22 U.S.C. § 7424.
62 22 U.S.C. § 7426(c). “United States personnel” is not defined. Presumably it is limited
to officials representing the government in some capacity, similar to “covered U.S. persons”
as defined in §7432(4).
63 22 U.S.C. § 7426(e).
of section 2006 could be interpreted to mean that the President’s requirement to
implement the rules is waived, or that the requirement to obtain assurances from
recipients other than the ICC is waived, or that the rules themselves may be waived
with respect to a particular case.
Section 2011 provides an exception for certain presidential authorities, stating
that the restrictions on cooperation with the ICC (section 2004) and the requirement
for procedures to protect certain sensitive information (section 2006) do not apply to
“any action or actions with respect to a specific matter taken or directed by the
President on a case-by-case basis in the exercise of the President’s authority as
Commander in Chief of the Armed Forces of the United States under article II,
section 2 of the United States Constitution or in the exercise of the executive power
under article II, section 1 of the United States Constitution.”64 The section would
require the President to notify Congress within 15 days of the action, unless such
notification would jeopardize national security. It further clarifies that “nothing in
[the] section shall be construed as a grant of statutory authority to the President to
take any action.”65 Section 2012 prohibits delegation of the authorities vested in the
President by sections 2003 (waiver provision) and 2011(a) (constitutional
ex cept i on). 66
Inasmuch as sections 2004 and 2006 are already subject to presidential waiver
under section 2003(c) in the case of the investigation or prosecution of a “named
individual,” it appears that this section is drafted to avoid possible conflicts of the
separation of powers between the President and Congress. In the event that the
President takes the position that the prohibitions of sections 2004 and 2006 infringe
upon his constitutional authority in certain cases, he might assert that Congress has
no power even to require a waiver under section 2003. Section 2011 appears to
ensure notification of Congress, at least at some point after the action has been taken,
regardless of whether the President believes that sections 2004 and 2006 impinge his
constitutional authority.
The effect of section 2011 is not entirely clear, depending as it does on the
interpretation of the President’s executive powers under article II, section 1 of the
Constitution and his authority as Commander in Chief of the Armed Forces.
Interpreted broadly, the constitutional executive power includes the power to execute
the law, meaning the execution of any law, whether statutory or constitutional, or
even international law. Such an interpretation would seem to render sections 2004
and 2006, as well as the waiver provision of section 2003(c), largely superfluous.67
64 22 U.S.C. § 7430.
65 22 U.S.C. § 7430(a).
66 22 U.S.C. § 7431. It is unclear what authority is meant with respect to section 2011(a) (22
U.S.C. § 7430(a)), since section 2011 does not vest any authority in the President. See 22
U.S.C. § 7430(c). Perhaps section 2012 should be interpreted to prohibit delegation of the
authorities to which sections 2004 and 2006 do not apply under section 2011.
67 Section 2004 (22 U.S.C. § 7423) restricts the conduct of federal and state agencies and
courts. Therefore, the exception in section 2011 could not be invoked with respect to state
(continued...)
Interpreted narrowly, the executive authorities cited above could refer to those
powers which the President does not share with Congress. Under a narrow
interpretation, Congress would be deemed to be without authority to regulate such
actions in any event, in which case it would appear to make little sense to restrict its
application to sections 2004 and 2006. The language could be construed by a court
to imply a waiver authority apart from the restrictions outlined in section 2003.
Section 2015 provides clarification with respect to assistance to international
efforts. It states:
Nothing in this title shall prohibit the United States from rendering assistance to
international efforts to bring to justice Saddam Hussein, Slobodan Milosovic,
Osama bin Laden, other members of Al Qaeda, leaders of Islamic Jihad, and
other foreign nationals accused of genocide, war crimes or crimes against68
humanity.
This language would appear to have the effect of limiting the prohibitions in section
2004 to cases in which the ICC prosecutes non-U.S. citizens for the crimes currently
under the jurisdiction of the ICC, although the United States may be obligated to
deny such assistance in the case of an accused foreign national who is a national of
a country with which the United States has entered into a reciprocal Article 98
agreement. The provision could also eliminate the restrictions on participation in
peacekeeping missions or provision of military assistance where such participation
or aid could be interpreted to further an international effort to prosecute the named
crimes. There is no definition of “foreign national” in the ASPA; its use in section
§ 7423) as they apply to permanent resident aliens.
Reporting Requirements. In addition to the congressional notifications
required by some of the waiver authorities described above, the ASPA encourages
the President to submit, by February 2, 2003, a report for each military alliance to
which the United States is a party assessing the command arrangements they entail
and the degree to which such arrangements may place U.S. servicemembers under
the command or control of foreign officers subject to the jurisdiction of the ICC.69
No later than August 2, 2003, the President was encouraged to submit a report
67 (...continued)
courts and other non-federal entities. Section 2006 (22 U.S.C. § 7425) applies only to the
President, directing him to implement procedures to safeguard certain information from the
ICC; a broad interpretation of section 2011 would appear to render section 2006 a nullity.
Perhaps section 2011 is meant to provide the President authority to suspend regulations
promulgated under section 2006 with respect to certain cases under the jurisdiction of the
ICC.
68 22 U.S.C. § 7433(a).
69 22 U.S.C. § 7428. No such report was made public, but the report may have been
submitted in classified form pursuant to subsection (c).
describing possible modifications to such alliance command arrangements that would
reduce the risks to U.S. servicemembers identified in the first report.70
The Nethercutt Amendment
Section 574 of the FY2005 Consolidated Appropriations Act (H.R. 4818/P.L.
108-447) prohibited Economic Support Funds (ESF) assistance to the government
of any country that is a party to the ICC that has not entered into an Article 98
agreement with the United States, except for countries eligible for assistance under
the Millennium Challenge Act of 2003. It authorized the President to waive the
prohibition with respect to NATO members and major non-NATO allies without
prior notice to Congress, if he determined and reported to the appropriate committees
that a waiver was in the U.S. national security interest. The President could also
waive the prohibition on economic assistance for countries that entered into Article
98 agreements with the United States. (Presumably, this provision would have
applied to countries that later agreed to enter into such an Article 98 agreement, to
ensure congressional notification).
The Nethercutt Amendment was re-enacted by the 109th Congress as part of the
FY2006 Consolidated Appropriations Act (H.R. 3057/P.L. 109-102). The FY2006
measure, however, requires that the President give Congress notice before he invokes
a waiver, but he may grant a waiver not only with respect to any NATO or major
non-NATO ally, but also to “such other country as he may determine if he determines
and reports to the appropriate congressional committees that it is important to the
national interests of the United States to waive such prohibition.” The Foreign
Operations Appropriations bill for FY2007 (H.R. 5522), recently passed by the
House of Representatives, would continue these prohibitions (§ 572). As with prior
years’ legislation, the bill would not affect the funding for the Millennium Challenge
Corporation. The Senate Appropriations Committee reported its version of the bill
without any similar prohibition.71
National Defense Authorization Act for FY2007
The Senate passed a measure as part of the 2007 National Defense
Authorization Act, S. 2766, that would modify ASPA to end the ban on International
Military Education and Training (IMET) assistance to countries that are members of
the ICC and that have not implemented Article 98 agreements (§ 1210). The House
version of the FY2007 Defense Authorization bill, H.R. 5122, does not contain such
a provision; however, after hearing testimony from several combatant commands
regarding the perceived negative consequences flowing from the cut-off of IMET
assistance to affected allies, the House Armed Services Committee reported its view
that the President’s authority to waive ASPA funding restrictions can and should be
invoked where necessary to “impede undue influence on U.S. partner nations” by
70 Id.
71 S. REP. NO. 109-277 (2006).
third-party governments that might occur in the absence of U.S. engagement efforts
made possible through IMET.72
Prospective Legislation
Some observers have suggested that Congress should pass legislation to close
jurisdictional gaps in U.S. criminal law in order to ensure U.S. territory does not
become a safe haven for those accused of genocide, war crimes, and crimes against
humanity.73 The War Crimes Act of 1996,74 for example, establishes U.S. federal
jurisdiction to punish war crimes, as defined in international treaties to which the
United States is a party, but only when perpetrated by or against U.S. nationals.
Likewise, the Genocide Convention Implementation Act of 1987 prohibits acts that
would constitute genocide under the Rome Statute, except that the U.S. Code covers
only conduct committed by a U.S. national or conduct committed within the United
States.75 Some observers have expressed concern that war criminals or perpetrators
of genocide from other countries could seek refuge in the United States from
extradition to and prosecution by the ICC. However, the exception in section 2013
of the ASPA, which allows U.S. entities to cooperate with the ICC in the case of
foreign nationals accused of war crimes, may obviate the need for such legislation.
Some have suggested that changes in U.S. statutes to broaden the jurisdiction
of federal courts to cover all crimes over which the ICC might assert jurisdiction
could enhance the implementation of complementarity by precluding a finding by the
ICC that the United States is “unable” to prosecute one of its citizens.76 For the most
part, war crimes committed by U.S. persons are covered by the War Crimes Act,
although there may be some acts covered by the Rome Treaty that are not explicitly
prohibited by U.S. law. Also, there is no U.S. statute codifying crimes against
humanity as such. U.S. criminal law prohibits most of the crimes enumerated under
the Rome Statute as possible crimes against humanity, as long as they are committed
72 H. REP. NO. 109-452, at 389-90 (2006). The Committee praised IMET programs, stating
that such programs
create opportunities for military-to-military engagement between U.S. armed
forces and the militaries of developing nations. Such interactions are critical to
advancing the understanding of, and respect for, civil-military relations;
enhancing the understanding of U.S. military principles and values; bridging
cultural differences; and developing important long-term relationships with
future military and civilian leaders. Generally, such engagement has positively
affected U.S. armed forces’ global access and influence and has proved helpful
in the global war on terrorism.
73 See Grossman, supra note 12.
74 18 U.S.C. § 2441.
75 Genocide Convention Implementation Act of 1987, P.L. 100-606, 102 Stat. 3045 (codified
at 18 U.S.C. §§ 1091-93).
76 See Douglass Cassel, Empowering United States Courts to Hear Crimes Within the
Jurisdiction of the International Court, 35 NEW ENG. L. REV. 421, 437 (2001); Robinson
O. Everett, American Servicemembers and the ICC, in THE UNITED STATES AND THE
INTERNATIONAL CRIMINAL COURT 137, 142 (Sarah B. Sewall and Carl Kaysen, eds. 2000).
within the United States or by military personnel.77 Under current law, acts that
could constitute crimes against humanity committed by U.S. civilians overseas
generally are not triable in U.S. civil or military courts unless they involve torture or
certain acts of international terrorism.78 In the event a U.S. citizen is alleged to have
committed such an act, the United States may not be deemed able to investigate and
prosecute the alleged crime, a prerequisite for asserting complementarity.
Implications of the ICC for the United States as a
Non-member
As a member of the Preparatory Commission established by the Rome Statute,
the United States played a significant role during the drafting of rules of procedure,
elements of crimes, and other documents detailing how the ICC will operate. Now
that the Rome Statute has entered into force, the Preparatory Commission has been
replaced by the Assembly of States Parties (“Assembly”) as the governing body to
oversee the implementation of the Rome Statute. The Assembly held its first
conference September 3 - 10, 2002, during which it adopted rules of evidence and
procedure and a host of other regulations, including the methods for nominating and
electing its officials. During its subsequent session in February, the Assembly
elected 18 judges, who later elected Canadian jurist Philippe Kirsch to be their
president. In April of 2003, the Assembly elected Argentinian lawyer Luis Moreno
Ocampo to be the ICC’s first prosecutor.
The first Review Conference, an alternative forum for considering amendments
to the Statute, is to be convened in July of 2009, seven years after the Statute has
entered into effect.79 Thereafter, Review Conferences may be convened from time
to time by the U.N. Secretary-General upon request by a majority of the States
Parties.80 As a non-party, the United States has no vote in either body. However, it
will remain eligible to participate in both the Assembly and in Review Conferences
as an observer.81
77 See Douglass Cassel, Empowering United States Courts to Hear Crimes Within the
Jurisdiction of the International Court, 35 NEW ENG. L. REV. 421, 429 (2001).
78 See id. n.39 (listing relevant crimes over which U.S. courts have extraterritorial
jurisdiction). Additionally, U.S. courts have jurisdiction to try criminal offenses committed
by persons employed by or accompanying the armed forces overseas, or ex-servicemembers
who committed a crime overseas, if such crime would be punishable by imprisonment for
more than one year if it had committed within the territorial jurisdiction of the United States.
79 Rome Statute, supra note 2, art. 123.
80 Id. art. 23.
81 Id. arts. 112 and 123. States that have signed the Statute or the Final Act are eligible to
participate as observers in both bodies. The Administration’s notification of intent not to
ratify the Statute should have no effect on eligibility, although it may signal an intent not to
participate. The United States did not participate at the final meeting of the Preparatory
Commission in early July, possibly signaling the intent of the Administration to forego
(continued...)
Observer Role
The Assembly of States Parties adopted procedural rules for its activities at its
first conference, including rules setting forth the role of observers and other
participants.82 Observers are entitled to participate in the deliberations of the
Assembly and any subsidiary bodies that might be established. Observer States will
receive notifications of all meetings and records of Assembly proceedings on the
same basis as States Parties. They will not, however, be permitted to suggest items
for the agenda or to make motions during debate, such as points of order or motions
for adjournment. Thus, the United States may be able to participate substantially in
Assembly debates as well as proffer and respond to proposals, even if it never
becomes a party to the Statute.83 The United States may also use its position at the
United Nations to communicate to the Assembly of States Parties.84
As noted, the United States is not able to vote in these bodies so long as it does
not ratify the Rome Statute. It may not nominate U.S. nationals to serve as judges
or cast a vote in elections for judges or the Prosecutor (or for their removal), or vote
on the ICC’s budget. It will not be able to vote on the definition of the crime of
aggression or its inclusion within the jurisdiction of the ICC, when the matter is
considered at first Review Conference, or on any other amendment to the Rome
Statute, unless it ratifies the Rome Statute.
The United States, as a non-party, will have no right itself to refer situations to
the Prosecutor for investigation; as a Permanent Member of the Security Council,
however, it could seek to influence referrals by the Security Council.85 Similarly, it
may participate in Security Council requests to the Prosecutor to defer an
investigation or prosecution86 and to the Pre-Trial Chamber to review a decision of
81 (...continued)
participation as an observer.
82 See Assembly of States Parties to the Rome Statute of the International Criminal Court,
First Session, Official Records, U.N. Doc ICC ASP/1/3 (2003). The Rules of Procedure of
the Assembly of States Parties [“Assembly Rules”] are reprinted in part IIC of the
conference report.
83 Unlike the previous administration, the Bush Administration did not participate actively
in Preparatory Commission meetings, suggesting that the Administration does not envision
playing an active role as observer at the Assembly of States Parties.
84 The United Nations has a standing invitation to participate as an observer. Assembly Rule
35. It may also propose items for the agenda. Assembly Rule 11. Finally, the U.N. may
provide funding for the ICC, in particular with respect to cases referred by the Security
Council. Rome Statute, supra note 2, art. 115; see also U.N. Doc., PCNICC/2001/1/Add.
85 Rome Statute, supra note 2, art. 13. Non-parties might also be able to provide
information to enable the Prosecutor to initiate a self-referred investigation, but would have
no official role in advocating prosecution.
86 Id. art. 16.
the Prosecutor not to investigate or prosecute.87 As a non-party to the treaty, the
United States is eligible, but not obligated, to cooperate with any ICC investigation
and prosecution;88 and under the Statute, the United States could, but would not be
obligated to, arrest a person named in a request for provisional arrest or for arrest and
surrender from the ICC.89 The United States also retains the right not to provide
information or documents the disclosure of which would prejudice its national
security interests90 and to refuse to consent to the disclosure by a state party of
information or documents provided to that state in confidence.91 Finally, as a non-
party, the United States is not under any obligation to contribute to the budget for the
ICC, except, perhaps indirectly, to the extent that the U.N. General Assembly regular
budget might include ICC support.92
Foreign Policy Implications
Perspectives differ on the impact of the ICC on U.S. interests, as it begins to
operate. Some see the ICC as a fundamental threat to the U.S. armed forces, civilian
policy makers, and U.S. defense and foreign policy.93 Others see it as a valuable
foreign policy tool for defining and deterring crimes against humanity, a step forward
in the decades-long U.S. effort to end impunity for egregious mass crimes. Debate
over the ICC has created a tension between enhancing the international legal justice
system and encroaching on what some countries perceive as their legitimate use of
force. The review by the International Criminal Tribunal for the Former Yugoslavia
(ICTY) of allegations that NATO bombing in Kosovo might be deemed a war crime
is illustrative of this tension. Many opponents of the ICC were outraged that the
issue was even considered. They questioned the legitimacy of the tribunal’s actions,
and their anger was not assuaged by the Tribunal’s ultimate decision that there was
“no basis for opening an investigation into any of those allegations or into other
incidents relating to NATO bombing.”94 While opponents of the ICC interpret this
event as an indication that the ICC is likely to pursue spurious and politically
motivated cases against U.S. citizens, proponents of the ICC see it as illustrating that
similar allegations would be dismissed by the ICC Prosecutor.
Another consideration is the practical effect that the U.S. position will have on
the ICC itself. Because the ICC relies largely on States Parties to provide
87 Id. art. 53.
88 Id. arts. 86, 87, and 93.
89 Id. arts. 59 and 89.
90 Id. art. 72.
91 Id. art. 73.
92 Id. art. 115.
93 See Lee A. Casey, The Case Against the International Criminal Court, 25 FORDHAM INT’L
L.J. 840, 849-50 (2002).
94 See Final Report to the Prosecutor by the Committee Established to Review the NATO
Bombing Campaign Against the Federal Republic of Yugoslavia, available at
[http://www.un.org/icty/pressreal/nato061300.htm](last visited June 14, 2006).
mechanisms and manpower for arresting suspects and enforcing verdicts of the ICC,
it has been argued that the lack of U.S. participation in the ICC may seriously impair
the ICC’s ability to function.95 Those who believe the ICC is a fundamental threat
to U.S. foreign and defense policy may welcome this outcome; while ICC supporters
may argue that an ineffective court could serve the interests of human rights abusers,
ensuring impunity and decreasing the likelihood of future ad hoc tribunals.
The United States has enjoyed a long reputation for leadership in the struggle
against impunity and the quest for universal human rights and the rule of law.
Human rights organizations have expressed concern that U.S. refusal to ratify the
Rome Statute, coupled with any actions that might undermine the ICC, could cause
the United States to lose the moral high ground and damage its influence world-wide,
including its ability to influence the development of the law of war.96 The perceived
U.S. willingness to hold U.N. peacekeeping missions hostage to U.S. demands for
immunity from the ICC may deepen the rift between the United States and allies that
support the ICC. The withholding of military assistance and other economic aid to
members of the ICC may also be seen as an effort to coerce countries to refuse to
ratify the Rome Statute or to sign an Article 98 agreement, which could appear to
some as undermining the ICC and negating the Administration’s stated intent to
respect the decisions of other countries to join the ICC. By seemingly demanding
special treatment in the form of immunity from the ICC, the United States may
bolster the perception of its unilateral approach to world affairs and its unwillingness
to abide by the same laws that apply to other nations. This perception could
undermine U.S. efforts at coalition-building to gain international support for the
present war against terrorism and operations in Iraq, as well as future international
endeavors.97
Others argue that the perception of U.S. commitment to the rule of law has little
effect on countries where human rights abuses are most rampant. Despots like
Cambodia’s Pol Pot or Iraq’s Saddam Hussein have not weighed possible future legal
ramifications before committing massive crimes.98 Under this view, the
establishment of the ICC might have the unintended effect of hardening the resolve
of ruthless tyrants who may feel they have nothing to gain by giving up their power
95 See, e.g., Leila Nadya Sadat and S. Richard Carden, The New International Criminal
Court: An Uneasy Revolution, 88 GEO. L.J. 381, 392 (2000) (suggesting that the refusal of
the United States to participate in the ICC could bring about its demise, just as the U.S.’
failure to join the League of Nations contributed to the failure of that institution).
96 See Major Eric S. Kraus and Major Mike O. Lacy, Utilitarian vs. Humanitarian: The
Battle over the Law of War, PARAMETERS, Jul. 1, 2002, available at 2002 WL 18222339.
(commenting that U.S. refusal to ratify Protocol I to the Geneva Conventions, the treaty
banning antipersonnel landmines, and the Rome Statute appear to be diminishing U.S.
influence on the development of customary international law).
97 An example might be the impact the U.S. policy has had on U.S. relations with Europe.
See CRS Report RS21612, East Central Europe: Status of International Criminal Court
(ICC) Exemption Agreements and U.S. Military Assistance, by Julie Kim.
98 The International Criminal Court: Hearing Before the House Committee on International
Relations, 106th Cong. 4 (2000) (prepared testimony of John Bolton, Senior Vice President,
American Enterprise Institute).
to more democratic regimes if they fear prosecution for the crimes they committed
while in power. From this perspective, in terms of curbing human rights abuses, it
does not matter whether the U.S. ratifies the Rome Statute, other than perhaps to
provide support to an accused dictator’s argument challenging the legitimacy of the
ICC. According to this viewpoint, the costs to the United States appear to outweigh
the benefits.
Strategy for Precluding ICC Prosecution of U.S. Troops and
Officials
ASPA § 2005 prohibits U.S. participation in peacekeeping and peace-enforcing
missions established by the Security Council unless the President certifies and reports
to the appropriate committees of Congress that U.S. personnel are not placed at risk
of prosecution by the ICC because they are guaranteed immunity by the U.N.
Resolution or because of arrangements with the host government.99 The Bush
Administration has pursued efforts in the U.N. Security Council and with individual
States to prevent the possibility that American citizens could be prosecuted before
the ICC. This effort has met with some success but also some resistance.
Agreement with the U.N. Security Council. On July 12, 2002, in
response to the U.S. veto of the extension of peacekeeping operations in Bosnia, the
U.N. Security Council adopted a resolution requesting a blanket deferral of
prosecutions by the ICC of peacekeepers from states not parties to the Rome Statute
for a period of one year. Resolution 1422 provides, in pertinent part:
Acting under Chapter VII of the Charter of the United Nations,
1. Requests, consistent with the provisions of Article 16 of the Rome Statute, that the
ICC, if a case arises involving current or former officials or personnel from a
contributing State not a Party to the Rome Statute over acts or omissions relating to
a United Nations established or authorized operation, shall for a twelve-month period
starting 1 July 2002 not commence or proceed with investigation or prosecution of any
such case, unless the Security Council decides otherwise;
2. Expresses the intention to renew the request in paragraph 1 under the same
conditions each 1 July for further 12-month periods for as long as may be necessary;
3. Decides that Member States shall take no action inconsistent with paragraph 1 and
with their international obligations;
The resolution, which was renewed for another year under Security Council
Resolution 1487, appeared to fall short of the President’s original proposal, which
would have provided permanent immunity for U.S. troops and officials from the
jurisdiction of the ICC. Opponents of the original proposal objected that the U.N.
99 See supra note 50.
100 SC Res. 1422, U.N. Doc. S/Res/1422 (2002), available at [http://daccessdds.un.org].
Security Council does not have the authority to “rewrite” international treaties. The
compromise invoked article 16 of the Rome Statute, which provides:
No investigation or prosecution may be commenced or proceeded with under this
Statute for a period of 12 months after the Security Council, in a resolution
adopted under Chapter VII of the Charter of the United Nations, has requested
the Court to that effect; that request may be renewed by the Council under the
same conditions.
Although some opponents of the U.S. position had argued that article 16 was
intended to be invoked only on a case-by-case basis, the language of the article does
not expressly state such a requirement. Therefore, Resolutions 1422 and 1487 appear
to be consistent with the Rome Statute. The language deferred ICC action for one
year; it does not provide absolute immunity for actions occurring during the deferral
period. Because the Security Council did not extend the deferral past July 2004, it
appears that the ICC may investigate and prosecute any purported crimes under its
subject matter jurisdiction that occurred at any time after the Rome Statute’s entry
into force, subject to other provisions of the Rome Statute.
Other U.N. Missions. U.S. military personnel were able to participate in the
United Nations Mission in Liberia (UNMIL) because, in authorizing the
multinational force to enforce the cease-fire, the Security Council decided that
current or former officials or personnel from a contributing State, which is not
a party to the Rome Statute of the International Criminal Court, shall be subject
to the exclusive jurisdiction of that contributing State for all alleged acts or
omissions arising out of or related to the Multinational Force or United Nations
stabilization force in Liberia, unless such exclusive jurisdiction has been101
expressly waived by that contributing State.
Unlike the previous arrangement with respect to the U.N. mission in Bosnia, the
authorization for operations in Liberia appears to provide permanent immunity to
U.S. participants from the jurisdiction of the ICC with respect to conduct linked to
the U.N. mission. Accordingly, President Bush made the appropriate certification to
Congress under ASPA § 2005 (22 U.S.C. § 7424).102 Liberia had signed the Rome
Statute in 1998 but did not ratify it until September of 2004.
The United States also sent troops to participate in the U.N. mission to establish
peace in Haiti in 2004.103 In April of 2004, the U.N. Security Council established the
United Nations Stabilization Mission in Haiti (MINUSTAH).104 In June of that year,
101 SC Res. 1497, U.N. Doc. S/RES/1497, Para. 7 (Aug. 1, 2003).
102 Certification Concerning U.S. Participation in the U.N. Mission in Liberia Consistent
With Section 2005 of the American Servicemembers’ Protection Act, 68 Fed. Reg. 63,975
(2003).
103 SC Res. 1529, U.N. Doc. S/RES/1529 (2004) (authorizing multinational interim force to
deploy to Haiti).
104 SC Res. 1542, U.N. Doc. S/RES/1542 (2004).
President Bush certified that U.S. servicemembers could safely participate because
Haiti had signed an Article 98 agreement.105
U.N. Action Regarding the Situation in Darfur. On March 31, 2005, the
U.N. Security Council, acting under Chapter VII of the U.N. Charter, adopted
Resolution 1593 (2005) which refers reports about the situation in Darfur, Sudan106
(dating back to July 1, 2002), to the ICC Prosecutor, Luis Moreno-Ocampo. This
is the first time such a referral from the U.N. Security Council has been made. As
Sudan is not a party to the ICC, and has not consented to its jurisdiction, the ICC
jurisdiction over the case could only be established by means of a U.N.S.C. referral.107
Under the ICC Statute, the ICC is authorized, but not required, to take such a case.
The Resolution, which is binding on all U.N. member states, was adopted by a vote
of 11 in favor, none against and with 4 abstentions — the United States, China,
Algeria, and Brazil.108
U.S. foreign policy respecting action to address the situation in Darfur was
complicated by its position regarding the ICC and its jurisdiction over non-member
states. In September 2004, the United States concluded that genocide had taken place
in Darfur. According to the State Department, it supported the formation of the
International Commission of Inquiry109 but preferred a tribunal in Africa to be the
mechanism of accountability for those who committed crimes in Darfur. After these
proposals failed to garner sufficient support, the United States agreed to abstain from
voting on the Resolution (which is not equivalent to a veto in the U.N. Security
Council) once language was introduced into the Resolution that dealt with the
sovereignty questions of concern and essentially protected U.S. nationals and other
persons of non-party States outside Sudan from prosecution.110
The abstention did not change the fundamental objections of the United States
to the ICC. Although some view the decision as a sign that the Administration is
softening its stance with respect to the ICC,111 it may also be seen as consistent with
the U.S. support of a version of the Rome Statute that would have allowed the U.N.
105 69 Fed. Reg. 34,043 (June 14, 2004).
106 See “Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International
Criminal Court,” Press Release, SC/8351; “Secretary-General Welcomes Adoption of
Security Council Resolution Referring Situation in Darfur, Sudan to International Criminal
Court Prosecutor,” March 31, 2005, Press Release SG/SM/9797 AFR/1132. For
background, see “Report of the International Commission of Inquiry on Darfur to the United
Nations Secretary-General,” S/2005/60, January 25, 2005
107 See “U.N. Commission’s Report on Violations of International Humanitarian Law in
Darfur: Security Council Referral to the International Criminal Court,” Frederic L. Kirgis,
Am. Soc’y Int’l L Insight (Addendum), April 5, 2005.
108 United Nations Security Council Resolution 1593 was adopted by the Security Council
at its 518th meeting on 31 March 2005, U.N. Doc. S/RES/1593 (2005).
109 See SC Res. 1564, U.N. Doc. S.RES/1564(2004) (requesting the establishment of an
International Commission of Inquiry).
110 See SC Res. 1593, Para. 6; see also Kirgis, supra note 107.
111 See Jess Bravin, U.S. Warms To Hague Tribunal, WALL ST. J., June 14, 2006, at A4.
Security Council to refer cases involving non-States Parties to the ICC, but would not
have allowed other states to refer cases. At the same time, the compromise allowed
the United States to show support for the need for the international community to
come together and take action on the atrocities occurring in Darfur.112
Article 98 Agreements. The United States is also pursuing bilateral options
for achieving protection for U.S. troops, within or outside U.N. peacekeeping
arrangements, by concluding agreements similar to the status-of-forces agreements
(SOFA) routinely negotiated where U.S. troops are stationed abroad. The United
States has so far concluded 100 bilateral agreements whereby each signatory
promises that it will not surrender citizens of the other signatory to the ICC, unless
both parties consent in advance to the surrender.113 The Department of State is
seeking to conclude these agreements with as many states as possible, even those
who are not parties to the ICC and others who would not be subject to the sanctions
under ASPA.
The agreements are intended to make use of Article 98 of the Rome Statute,
which states:
Cooperation with respect to waiver of immunity and consent to surrender
1.The Court may not proceed with a request for surrender or assistance which would
require the requested State to act inconsistently with its obligations under international law
with respect to the State or diplomatic immunity of a person or property of a third State,
unless the Court can first obtain the cooperation of that third State for the waiver of the
immunity.
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 for114
the giving of consent for the surrender.
Paragraph 1 of Article 98 appears intended to retain diplomatic immunity and
immunity for heads of state, while paragraph 2 seems to contemplate typical SOFA
arrangements, in which countries hosting members or units of the armed forces of
allies agree to forego certain types of jurisdiction over the soldiers and other
government officers stationed there. The use of the term “sending state” in the
second paragraph appears to indicate that it is meant to cover only persons who are
sent to accomplish government business, and not citizens present in the country for
personal or business reasons. The State Department reportedly sought broader
112 United States Mission to the United Nations, “Statement on the Sudan Accountability
Resolution,” Ambassador Anne W. Patterson, March 31, 2005. See CRS Report RL33574,
Sudan: Humanitarian Crisis, Peace Talks, Terrorism, and U.S. Policy, by Ted Dagne.
113 See DOS Press Release, supra note 59. For the text of one such agreement, see
Agreement Between the Government of the United States of America and the Republic of
Uzbekistan Regarding the Surrender of Persons to the International Criminal Court,
September 18, 2002, T.I.A.S. No. _____, reprinted in 42 I.L.M. 39 (2003).
114 Rome Statute, supra note 2, art. 98.
application for the bilateral agreements. In 2002, the European Council argued that
parties to the ICC who signed such agreements with the United States would be
acting inconsistently with their obligations under the Rome Statute.115 The European
Union (EU), all of whose members are parties to the Rome Statute, initially opposed
the agreements altogether, but its members reached a compromise to allow member
countries to sign.116 The EU issued guidelines for member countries for the
acceptable terms of Article 98 agreements, specifying that coverage would be limited
to government representatives on official business, the United States would expressly
pledge to prosecute any war crimes committed by Americans, and the agreements
would not contain a reciprocal promise to prevent the surrender of European citizens
to the ICC.117 In response to the Nethercutt Amendment, the European Council
released a statement calling on President Bush to make “full use of his waiver
authority” and reiterated the EU stand with respect to Article 98 agreements, referring
to the 2002 guidelines.118
Despite the EU compromise, the U.S. pursuit of “immunity” has been criticized
by some as unnecessary or as an outright effort to undermine the ICC.119 Supporters
of the policy note that agreements, such as SOFAs, that provide immunity for
soldiers from prosecution in foreign courts are not unusual. For example, the 19-
member International Security Assistance Force (ISAF), a joint force authorized by
the U.N. Security Council to provide assistance to the interim government in
Afghanistan,120 included a clause providing immunity for participants in its Military
Technical Agreement with the interim government.121 Furthermore, supporters point
115 Risks for the Integrity of the Statute of the International Criminal Court, Resolution 1300
of the Parliamentary Assembly of the Council of Europe (September 25, 2002).
116 See Phillip Shiskin and Jesse Bravin, EU Offers Deal on U.S. Immunity from Tribunal,
WALL ST. J., Sep. 13, 2002, at A8.
117 See Council of the European Union: Council Conclusions and EU Guiding Principles, 42
I.L.M. 240 (2003); see also Council of the European Union, Threats to the International
Criminal Court, Resolution 1336 (2003).
118 Press Release, Council of the European Union, 15864/1/04 REV 1 (Presse 353) P 136/04,
Dec. 10, 2004.
119 See, e.g. Coalition for the International Criminal Court, Overview of the United States’
Opposition to the International Criminal Court (Nov. 1, 2005), available at
[http://www. i c c n o w . o r g/ d o c u me nts/CICCFS_US%20Opposition%20toICC_FINAL_eng%
20_2_.pdf] (last visited June 14, 2006); Human Rights Watch, United States Efforts to
Undermine the International Criminal Court, (Sep. 4, 2002), available at [http://hrw.org/
campaigns/icc/docs/art98analysis.htm](last visited June 14, 2006).
120 Relevant U.N. Security Council Resolutions are S/RES/1386 (2001), S/RES/1413 (2002),
S/RES/1444 (2002, S/RES/1510 (2003), S/RES/1563 (2004), and S/RES/1623 (2005).
None of these resolutions makes provisions regarding immunity for participating troops.
121 See Colum Lynch, Deal Gave Europe’s Troops Immunity, INT’L HERALD TRIB., June 20,
The ISAF and supporting personnel, including associated liaison personnel, will be
immune from personal arrest or detention. ISAF and supporting personnel, including
associated liaison personnel, mistakenly arrested or detained will be immediately handed
over to ISAF authorities. The Interim Administration agree that ISAF and supporting
(continued...)
out, the agreements are based on and consistent with Article 98 of the Rome Statute,
and therefore cannot be said to undermine the ICC.
The practical effect of the Article 98 agreements is as of yet uncertain. The use
of such agreements with host countries does not provide absolute immunity from the
ICC. They would bind only countries that choose to sign, and would have the effect
only of preventing the host nation from surrendering an accused to the ICC for
prosecution. While the Rome Statute gives some discretion to States Parties to honor
their international obligations applicable to extradition of persons who are identified
in an ICC request for surrender,122 there does not appear to be a provision for accused
persons or their states of nationality to challenge the jurisdiction of the ICC based on
the violation of a bilateral agreement. Therefore, States Parties to the Rome Statute
are not precluded from entering into Article 98 agreements that provide for immunity
of foreign troops from surrender, but if the ICC were nevertheless to gain custody
over the accused through other means, its jurisdiction may not be affected by the
agreement.
Options. Though the Administration continues to seek to conclude Article 98
agreements with relevant countries, it is not clear how many more such agreements
are likely to be forthcoming. To strengthen the Administration’s pursuit of these
agreements, Congress could make more forms of aid contingent on the recipient
country’s agreement to protect U.S. troops from surrender to the ICC, or it could
enact legislation to restrict the President’s discretion to grant waivers. If further
negotiations fail to garner necessary support, or in case the agreements should turn
out to less effective than desired or counterproductive for other reasons, policymakers
may seek alternative avenues. One option might be to implement a policy of
investigating, and if warranted, prosecuting, all crimes under the ICC jurisdiction
alleged to be committed by a U.S. person, thus preempting the ICC through
application of the complementarity principle. Such a policy, coupled with changes
in U.S. statutes to broaden the jurisdiction of federal courts to cover all relevant
crimes, could further insulate U.S. citizens from the reach of the ICC. The United
States could seek to further enhance its reputation for conducting fair and credible
investigations and trials of suspected war criminals, as well as perpetrators of crimes
against humanity or genocide, through the use of consistent procedures that are as
open as security considerations permit. Such a practice may help to overcome any
charges that a U.S. investigation or prosecution of an accused is not “genuine” for the
purposes of complementarity.
Finally, some have argued that a policy of cooperation with the ICC in the
prosecution of persons accused of crimes that the United States agrees amount to
121 (...continued)
personnel, including associated liaison personnel, may not be surrendered to, or otherwise
transferred to the custody of, an international tribunal or any other entity or State without
the express consent of the contributing nation. ISAF Forces will respect the laws and
culture of Afghanistan.
The text of the agreement may be downloaded from the U.K. ISAF website at
[http://www.operations.mod.uk/isafmta.doc](last visited June 14, 2006).
122 See Rome Statute, supra note 2, arts. 97 & 98.
“the most serious crimes of concern to the international community”123 would
enhance the reputation of the United States as a promoter of human rights and the
rule of law. Such a policy could take the form of passive non-interference with the
ICC to active assistance, including working from within the U.N. Security Council
to refer cases to the ICC. By actively keeping the Security Council involved in the
referral of cases, some of the predicted problems with referrals by States Parties or
by the prosecutor could be minimized. On the other hand, some argue a cooperative
posture with respect to the ICC in the case of foreigners while pursuing immunity for
U.S. citizens would be perceived as a double standard.
123 Id. art. 5(1).