"THE SHORTCOMINGS OF U.S. OBJECTIONS TO THE ROME STATUTE"

                                                                                              By: Karen Bohrer

In an attempt to avoid any constitutional problem, the U.S. delegation in Rome fought hard for the inclusion of the concept of complementarity in the statute. Complementarity provides room for an "automatic" deferral to the U.S. judicial system with respect to matters within U.S. jurisdiction. This is expressed in Article 1 of the Rome Statute which specifies that the I.C.C., "shall be complementary to national criminal jurisdictions." The court will essentially defer to a national jurisdiction provided such nation has met any of the established preconditions.

There is an important caveat to complementarity, however. Article 17 of the Rome Statute speaks to the concept of complementarity by citing instances where a case may be deemed inadmissible before the I.C.C.. A case will be inadmissible before the I.C.C. if it is already being investigated or prosecuted by a state with proper jurisdiction. However, Article 17 further states that if the state is unwilling or unable to prosecute or investigate, the I.C.C. may properly assert its jurisdiction. The question therefore arises whether the U.S. would ever be either unwilling or unable to prosecute one of its own citizens accused of a crime under international law. The international criminal court, itself, would make this determination based on an assessment of whether there has been a "total or substantial collapse or unavailability of [a state’s] national judicial system." As it is unlikely that a situation such as this would ever arise within the U.S., the issue of inability to prosecute is unlikely to pose a real problem, but, in theory, Article 17 does present a potential challenge to the primacy of the American judiciary in all matters of judicial decision making. The issue, however, is not so easily dismissed. Might there be an occasion where the U.S. refuses to prosecute one of its citizens? Certain policy makers are concerned that actions taken pursuant to a "foreign policy" could be considered by certain segments of the international community to constitute a crime under the terms of the statute. Accordingly, the U.S. may be afforded no protection from I.C.C. jurisdiction if it is unwilling to prosecute its own citizen for something it does not view as an international crime.

Among the reservations of the I.C.C. critics is the notion that U.S. citizens may be brought before the court for crimes committed on U.S. soil. To do so, they assert, is in direct violation of Article III of the Constitution which bestows all judicial power of the U.S. solely upon U.S. courts. Article III, Section 1 of the Constitution states, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Critics have called the I.C.C. unconstitutional because the court was not established pursuant to a congressional directive and thus has no support in the constitution’s text. Essentially, for the court to be constitutional, its judges would have to be chosen by the President, approved by Congress, appointed for life terms, etc.

The issue most often raised with respect to constitutional objections to the I.C.C. is whether U.S. citizens would have the protection of the Bill of Rights if they were brought before the proposed court. The Bill of Rights consists of certain basic liberties citizens of the U.S. enjoy, rights that are guaranteed by the Constitution. Some opponents to the I.C.C. believe that these rights and liberties would be infringed upon if the U.S. were to allow one of its citizens to be tried before this international court without the constitutional guarantees to which they are entitled. One response to this argument is that since the I.C.C. is not a court of the U.S., citizens are afforded no protection under the Constitution. Restatement 3d, Foreign Relations Law §721 specifies that, "a trial held under the authority of the United States must conform to the requirements of the Fifth and Sixth Amendments, including right to counsel and to jury trial and respect for the privilege against self-incrimination, whether the trial is held in the United Sates or abroad." (emphasis added) From this it would follow that if the trial were held under an authority other than that of a United States court, the aforementioned constitutional protections need not apply. The I.C.C. is unquestionably a distinct foreign body and not an instrumentality of the U.S. It has thus been argued that U.S. citizens would not be entitled to the same constitutional protections.

The idea of allowing U.S. citizens to be brought before a foreign court without the protections of the constitution is hardly an original concept. In fact, NATO’s Status of Forces Agreement has allowed for the prosecution of U.S. servicemen in foreign countries in accordance with local laws. The Restatement specifies that, "It is not a violation of the constitutional rights of a member of the armed forces that he is assigned abroad, effectively subjected to the jurisdiction of a foreign state, and, if charged with a crime, that he does not have all the safeguards he would enjoy in the Unites States courts or even in a United States court-martial." Both this agreement and others like it do specify, however, that the accused is entitled to certain protections under the law. Essentially, these protections constitute a "bill of rights":

So while servicemen are not guaranteed constitutional protections, they are sheltered by certain widely accepted rights delineated in such international agreements. Similar shelter is found in Article 67 of the Rome Statute. Article 67 speaks to the rights of the accused and essentially delineates a defendant’s "bill of rights" similar, if not identical, to that listed in NATO’s Status of Forces Agreement. A serviceman would be treated no differently under the I.C.C. than he would in a court approved by the Status of Forces Agreement. The delineated minimum guarantees of Article 67 include:

The Statute also provides for the protection of other rights that are akin to many of those offered in the U.S. Constitution. Article 55 pertains to the "Rights of Persons During an Investigation." It sets forth rights that parallel the protections offered by the 3rd, 4th, 5th, 6th and 8th Amendments. Article 20 provides the equivalent of 5^th Amendment protection from double jeopardy. Article 66 provides that there shall be a presumption of innocence.

The "Opt-Out" Clause

Aggression as a Core Crime

Jurisdiction of the I.C.C.

The Law of Treaties

Customary International Law

Jus Cogens

Aside from constitutional objections, the U.S. has also raised objections to having its servicemen, who are engaged in peace keeping operations, subjected to the jurisdiction of the I.C.C. One argument the U.S. has raised consistently against participation in the I.C.C. is that U.S. servicemen would be subjected to I.C.C. The issue is not that U.S. troops should be free from prosecution during these missions. On the contrary, the U.S. has often entered into status of forces agreements which allow U.S. servicemen to be prosecuted before foreign courts for crimes committed in that country. The Restatement specifies that, "The United States may enter into a status of forces agreement pursuant to which the United States forces stationed in the territory of another state are subject to the criminal jurisdiction of that state for all or some offense." Rather, at issue is the discretion the U.S. would have over relinquishing one of its soldiers to another judicial authority. Current status of forces agreements allow the U.S. latitude in deciding what crimes servicemen may be brought to trial for under the host state’s local laws. Not surprisingly, the U.S. fought for similar latitude in the I.C.C. and pressed for the inclusion of an "opt-out" clause in the Rome Statute.

The "Opt-Out" Clause

The "opt-out" clause proposed by the U.S. delegation in Rome offered a 10-year grace period during which time a state may elect not to be subject to I.C.C. jurisdiction for certain crimes. Speaking before the Senate Committee on Foreign Relations, the head of the U.S. delegation in Rome, David Scheffer, summarized the U.S.’ intentions:

We sought to facilitate U.S. participation in the treaty by proposing a 10-year transitional period following entry into force of the treaty and during which any state party could "opt-out" of the court’s jurisdiction over crimes against humanity or war crimes. We were prepared to accept an arrangement whereby at the end of the 10-year period, there would be three options to accept the automatic jurisdiction of the court over all of the core crimes, to cease to be a party, or to seek an amendment to the treaty extending its "opt-out" protection.

The "opt-out" choice would have accomplished two goals for the U.S. First, the U.S. would have retained the ability to limit I.C.C. jurisdiction over its troops with respect to war crimes and crimes against humanity. The reason behind limiting the "opt-out" choice to these two crimes was essentially one of interpretation. There was concern that the elements of what constitutes a crime could be so loosely interpreted as to include a plethora of actions carried out during military (or humanitarian) intervention. As it stands today, the U.S. fears that the definitions of what constitutes a war crime or a crime against humanity can be manipulated to allow its adversaries to bring politically motivated charges against U.S. troops abroad. The result would be a chilling effect upon U.S. foreign policy action and/or intervention.

The second goal the "opt-out" statute would have accomplished for the U.S. deals primarily with influence. The ten-year grace period would have allowed the U.S. to participate in the fledgling court and wield its influence without having to make a permanent commitment. At minimum, this would have given the U.S. a vote in the election of officials and judges. More importantly, the grace period would have also allowed the U.S. to play a part in defining "aggression", the proposed fourth core crime of the I.C.C. Statute.

Despite the strenuous efforts of the U.S., the ten-year "opt-out" choice was not included in the Rome Statute. In its place stands a limited "opt-out" provision that allows countries to refuse I.C.C. jurisdiction over war crimes during their first seven years of participation in the court. The Statute also stipulates that there will be a general review of the Statute seven years after its entry into force. At that time, amendments will be considered and revisions to the Statute may be made. One revision sure to be made is the further development of the crime of aggression.

There had been much discussion prior to and during the Rome Conference about the inclusion of a fourth core crime: the crime of aggression. While many states agreed generally upon its inclusion, a dissension existed amongst the states with respect to two issues: 1) a proper definition of the crime and 2) the role of the Security Council. Since no established definition of aggression exists under customary international law with respect to individual responsibility, some critics argued that there should be a strong reliance on the definition of aggression as an act of state. With respect to such state action, Article 39 of the UN Charter specifies that it is the role of the Security Council to, "determine the existence of any threat to the peace, breach of the peace, or act of aggression." Hence, many sought to directly link the crime of aggression with the role of the Security Council.

In 1993, an ILC working group for an early draft of the I.C.C. Statute recommended that an individual not be charged with the crime of aggression absent a determination from the Security Council that an act of aggression has, in fact, occurred. It was the view of the group that, "[I]f an act of aggression occurs, the responsibility of an individual would pre-suppose that a State had been held to be guilty of the aggression, and such a finding would be for the Security Council to make." As a permanent member of the Security Council, the U.S. wholeheartedly supported this position. Necessitating Security Council approval with respect to crimes of aggression would act as a measure of control over the Court’s jurisdiction.

Understandably, other states were concerned that a deferral to the Security Council would undermine the independence of the court. The more recent drafts of the statute provide evidence of dissension amongst the drafters on this issue. Article 10 of the Zutphen Draft, tentatively entitled "Relationship Between the Security Council and the International Criminal Court," set forth various options concerning I.C.C. jurisdiction.. While certain sections supported the proposition that there be a link between the crime of aggression and a Security Council determination, other sections suggested that the link need not be absolute. For example, Section 3, Option 2 states, "Should no action be taken by the Security Council in accordance with Chapter VII of the Charter of the United Nations within a reasonable time, the Court may exercise its jurisdiction." (emphasis added) Language such as this suggests a hypothetical situation of an unwillingness or inability of the Security Council to define an act as one of aggression due to a single permanent member’s veto. Essentially, if the council were unwilling or unable to act because of the political considerations of one member, the I.C.C. would act on its own accord to prosecute those responsible for what the court considered a crime of aggression. In other words, no Security Council approval would be necessary for prosecution. These and other such concerns plagued the delegates throughout the Rome Conference.

Ultimately, the crime of aggression was included in the Rome Statute as a crime within I.C.C. jurisdiction. However, due to time constraints, a definition of the crime was not constructed and jurisdictional issues were left unresolved. Article 5 of the Statute indicates that resolution of these issues will occur at a later date, presumably after ratification of the Statute. This "player to be named later" approach caused a great deal of concern for the U.S.. The U.S. was hesitant to commit itself to support I.C.C. jurisdiction over a crime temporarily without definition, especially since the role of the Security Council remained unclear. While Article 5 does specify that any proposed provisions regarding aggression, "shall be consistent with the relevant provisions of the Charter of the United Nations", no guarantee has been made that the Security Council will have any influence. Rules on crimes of aggression by individuals could be deemed "consistent" with U.N. rules on acts of aggression by states without granting any authority to the Security Council over such crimes.

U.S. critics of the court viewed this circumvention of the Security Council with respect to crimes of aggression unacceptable. Without Security Council control, many felt that U.S. foreign policy would be left exposed and subject to scrutiny before an outside body. Speaking before Congress, Senator Jesse Helms, perhaps the U.S.’ most staunch opponent of the I.C.C., objected to the dilution of Security Council power and expressed outrage that the I.C.C. would have the ability to "sit in judgment of the national security policy of the United States." Helms recoiled at the idea that the U.S. would have to seek permission to "defend its interest", suggesting that such action would thoroughly offend the status of the U.S. as a world leader. The full force of Helms’ opposition to the court, however, was focused on jurisdiction. Like many other critics, Helms expressed concern that the jurisdiction of the court was overbroad,

The process begins once a state signs on to the treaty. Parties to the Rome Statute automatically accept I.C.C. jurisdiction over the core crimes upon state ratification. A determination is then made as to whether it is within the I.C.C.’s power to exercise jurisdiction. If a matter involving an alleged occurrence of a core crime is referred to the Court by the Prosecutor, either as a result of an independent investigation or a party state referral, the I.C.C. may exercise jurisdiction if one of the following is a party to the Statute: 1) the state where the alleged crime occurred or 2) the state of which the accused is a national. If, however, a referral is made to the Prosecutor by the Security Council, no such preconditions for jurisdiction exist. A Security Council referral allows the court to exercise "universal jurisdiction" over any individual accused of a core crime. Article 13(b) states that the Security Council need only be acting under its Article 7 powers of the UN Charter in making such a referral.

An arrangement such as this provides the U.S. as a member of the P5 the ultimate level of discretion in protecting U.S. servicemen from prosecution. One U.S. veto would successfully stifle any chance of an investigation into alleged crimes. That is not to say, however, that this arrangement completely insulates U.S. servicemen abroad. With regard to state referrals and investigations by the Prosecutor, the U.S. feels that a large loophole has been created which perpetuates universal jurisdiction over non-state parties, i.e. states who have not signed the treaty, beyond even Security Council control. Under the Statute, I.C.C. jurisdiction may be established if the state where the alleged crime was committed is a party to the statute or agrees to jurisdiction. This being the case, the U.S. contends that, "[M]ultinational peacekeeping forces operating in a country that has joined the treaty can be exposed to the court’s jurisdiction even if the country of the individual peacekeeper has not joined the treaty." As a prominent contributor to "peacekeeping missions", the U.S. feels it has been placed in an awkward position as a result of its non-party status.

Critics feel that exposing non-parties to the court’s jurisdiction goes against the basic principle of treaty law, i.e. that a state should not be bound by what it has not agreed to. According to the Vienna Convention on the Law of Treaties, "A treaty does not create either obligations or rights for a third State without its consent." As such, there are those who maintain that a state that does not ratify the Rome Statute should not be subject to the court’s jurisdiction. However, there is perhaps an over-reliance upon this principle of state consent, for the Vienna Convention further states that nothing in the aforementioned article, "precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such." The language is vague as to whether this recognition need come from the third state, or from the international community at large. It is suggested that by acknowledging something as customary law, a third state provides tacit consent to be bound by treaty obligations although it is not a signatory to the treaty itself. Essentially, if the tenets of the treaty are generally recognized by the third state as constituting customary international law, no further consent is needed to enforce them; they are binding upon non-parties and parties alike.

The Restatement specifies that there are certain offenses besides genocide that are subject to universal jurisdiction based upon widespread condemnation. Included among these are piracy, slave trade and certain acts of terrorism. Piracy has traditionally been recognized by the U.S. and most other states as an offense against the law of nations under customary international law. Similarly, virtually all states have recognized slavery as an international crime; the Slavery Convention of 1926 has been ratified by over 100 countries, including the U.S. The "acts of terrorism" to which the Restatement alludes presumably include the unlawful seizure of aircraft and unlawful acts against civil aviation. For each of these acts there is a corresponding convention, and each convention has enjoyed the overwhelming support of the international community. The Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation has been ratified by approximately 127 countries since its introduction in 1973. The Hague Convention for the Suppression of Unlawful Seizure of Aircraft has had the support of 121 states since 1971. The U.S. is a party to both conventions, and considers them each a reflection of customary law.

Does it follow from this discussion that if the U.S. were not a signatory to a widely accepted convention it would not recognize that convention as customary law? It is on this issue that the Vienna Convention and U.S. law seems to part ways. The Vienna Convention sets forth the idea that a rule of customary law may be binding upon a third state (i.e. non-party state) without its consent to specific treaty obligations. That is to say, non-signatories to a treaty may be bound by its resolutions provided the treaty has been recognized by the third state as customary law. Implicitly, this suggests that recognition may manifest itself in other ways besides ratification. According to Ian Brownlie, non-parties "[b]y their conduct may accept the provisions of a multilateral convention as representing general international law."

Alternatively, U.S. law questions if something can be recognized as customary law without the explicit consent of the party which it binds. While the Restatement acknowledges that under customary law certain offenses are subject to universal jurisdiction as a result of international agreements, it further indicates that, "it remains to be determined whether universal jurisdiction over a particular offense has become customary law for states not party to such an agreement." Essentially, the question is whether there has been a manifestation of the state’s consent to recognize a practice as customary law. The Restatement suggests that it is unlikely that consent will manifest itself without the ratification of a treaty or other agreement. Essentially, without ratification there is no consent, and without consent there can be no customary law.

This suggests that while explicit consent may not be necessary in the recognition of customary law, a lack of active dissent is. Active dissent is a persistent theme in the literature of regarding customary international law. Speaking of international custom as it relates to a general practice accepted as law, Brownlie focused on the right of a state to, "contract out of a custom in the process of formation." By assuming the role of what is referred to as "the persistent objector", a state may be relieved of any obligation with respect to a practice that is otherwise widely accepted. The Restatement takes a similar position, stating that, "a state that indicates its dissent from a practice while the law is still in the process of development is not bound by that rule even after it matures." However, the Restatement further admits that "consequent exemption from a principle that became general customary law has been rare."

How, then, does one determine general customary law from which exemption is not permitted? Whether the practice is widely accepted appears to be an important factor in ascertaining what constitutes "general customary law." Obviously, overwhelming international support for a treaty or convention is strong evidence of custom, although the U.S. believes that this is not dispositive. As mentioned above, many treaties have enjoyed the strong support of the international community while their tenets went unrecognized by the U.S. as customary law. The Restatement stresses that rejection by a significant number of important states would overshadow the strength of widespread consent. This provides an obvious loophole for the U.S. and the other purportedly "important" nations.

When applying these concepts to the situation surrounding Rome Statute, several things become apparent. First, the U.S. has systematically voiced its opposition to certain facets of the Statute, enough so as to warrant the title of "persistent objector". However, the Statute received the support of 120 nations, and although the long road of individual ratification lies ahead, the future seems quite promising for the proposed legislation. In contrast, only 7 nations voted against the Statute. Two Security Council members, the U.S. and China, were among the dissenters. Whether this would qualify as a "significant number of important states" seems to be the obvious question. By all accounts, the actions of the U.S. indicate that it feels the qualification is warranted. The U.S. has chosen not to acknowledge the Statute and feels it is correct in doing so.

There are those who wish to see the rules of I.C.C. as set forth in the Rome Statute rise to the status of jus cogens, thereby eliminating the need for consent. Jus cogens is essentially a higher status of customary law. It is defined by the Vienna Convention as a "peremptory norm":

At the same time, the overwhelming support given to the I.C.C. by the international community is symbolic of a momentum that is clearly moving against the idea that sovereign states possess immunity from international legal sanction. The danger of opposing institutions like the I.C.C. is that the U.S. will become an opponent rather than a proponent of change in the international system which will inevitably negatively impact upon its standing and influence.