The United States Should Join the International Criminal Court

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1 The United States Should Join the International Criminal Court PAUL C. SZASZ* Introduction The adoption of the Rome Statute of the International Criminal Court 1 is the culmination of strivings throughout most of the Twentieth Century to establish an international criminal jurisdiction for individuals who are accused of major offenses against the world community. The first such effort, a modest one under the auspices of the League of Nations, came to grief because of the several international crises that preceded the outbreak of World War II. 2 The second one, in the early 1950s under the auspices of the United Nations, though stimulated by the only recently concluded Nürnberg and Tokyo trials 3 and by the reference in the 1948 Genocide Convention to an international penal tribunal, 4 fell victim to the Cold War. 5 The third venture, which started just a decade ago in 1989, benefitted from both the sudden end of the long East-West struggle and from the world s reactions to a series of outrages committed by relatively minor players on the world scene: Saddam Hussein's brutal attack against Kuwait, the bloody disintegration of Yugoslavia, and finally the genocidal massacres of the Tutsis in Rwanda; the latter two events led to the somewhat hasty establishment of two ad hoc War Crimes Tribunals by the UN Security Council, 6 whose substantive accomplishments in spite of continuing administrative difficulties gave an impetus to the establishment of a more carefully constructed permanent tribunal. 7 From a broader perspective, it might be said that the establishment of the International Criminal Court results from the convergence of two developments characterizing modern international law. One is the increasing rôle of the individual in that legal system, which used to be solely the province of nation states; more and more have individuals been recognized as both the objects of transnational human rights concerns and protection, and also as subjects who can be held responsible for violations of transnational norms. The other, not unrelated development, is the growth in the number and functions of international institutions, including also an everincreasing number of international courts and other fora, not only for the settlement of inter-state disputes but also for differences between states and individuals and international organizations. Thus, finally the time has come for the international community to establish a permanent judicial forum in which individuals who seriously violate its norms can be held accountable. By and large, the United States has been an important supporter of many of these developments and trends, and in particular of the idea of creating an international criminal court. However, that support has by no means been steady, but has flagged from time to time in response to both external developments and more often to domestic, often parochial concerns. In particular, after initially supporting the most recent effort to establish such a forum, at least in principle, the present attitude can be characterized as one of more-in-sorrow-than-in-anger opposition to the Statute that has actually emerged from a decade of intense international negotiations in which the U.S. has continually played a major part. 8 When two amendments that it proposed at the very end of the Conference were predictably rejected, 9 the United States was one of seven states that voted against the Statute there were 120 votes for and twenty-one abstentions, while 12 of the 160 states at the Conference did not participate in the vote and indeed statements were made to the effect that the United States would work to oppose its entry into force. The present essay will first of all describe all significant aspects of the proposed International Criminal Court (ICC), then discuss its perceived strengths and shortcomings, address the principal United States objections, and

2 finally conclude with arguments to the effect that America's interests would best be served by strong and constructive support of the new institution. The Institution The Institution of the International Criminal Court The proposed International Criminal Court is to be an independent international inter-governmental organization (IGO). 10 That it should take that form was by no means preordained, and indeed various alternatives were considered. The most obvious other option would have been to establish the ICC as an organ of the United Nations, the central organization of the world community. However, there were various difficulties with each of the several variants of such an approach. The simplest course would have been to have the UN General Assembly establish the ICC as one of its quasiautonomous subsidiary organs, such as the High Commissioner for Refugees (UNHCR) or the United Nations Children's Fund (UNICEF). While on the one hand that would have created an institution in which all UN members would automatically be involved (and the few non-members could also have been invited in), the General Assembly could not have obliged any states to cooperate with such an organ, 11 for example to arrest suspects and to deliver them to its jurisdiction, to produce witnesses or physical evidence, etc. Such obligations could generally only have been created by treaties whether bilateral ones between the UN and any state willing to conclude such an agreement, or one or more multilateral ones among interested states; but if such a treaty is needed in any case and would only bind interested states, it might as well be used also to create the court. An alternative, to create an international criminal court through a binding decision of the Security Council, just as the Yugoslav and Rwanda Tribunals (ICTY and ICTR) were, was legally and politically unacceptable. Aside from the fact that under Article 39 of Chapter VII of the UN Charter such an action can only be taken on a finding of a threat to or breach of the peace, many states do not consider the fifteen-member Council to be representative enough to create such a permanent institution for the world community. Finally, the possibility of creating such a court through an amendment of the UN Charter, which would automatically have bound all members, was never seriously considered if for no other reason than that such an amendment would have required the concurrence of the five permanent members of the Security Council: China, France, Russia, UK and U.S., for which there was no reasonable likelihood, at least on terms that would have been acceptable to at least two-thirds of the UN membership (the other requirement for the adoption of a Charter amendment). 12 Thus the ICC will itself be an IGO legally on the same footing as the UN itself with various close connections (to be described below) with the senior organization. 13 Structure of the ICC As any intergovernmental organization, the ICC is to be governed and to express itself through organs. These are essentially of two types: governing organs and judicial ones. Their structure, composition and relative functions are important in determining the likelihood of the ICC being a responsible and reliable organization and in analyzing what difference American participation would make. Governing Organs The principal governing organ of the ICC is to be the Assembly of States Parties (ASP), 14 consisting of representatives of all states that have become parties to the ICC Statute, with other states that have signed the Statute or the Final Act 15 of the Rome Conference admitted as observers. 16 ASP is responsible for approving and for amending, for the most part by a two-thirds vote, the principal subsidiary legal instruments, such as the Rules

3 of Procedure and Evidence, the Elements of Crimes, the Financial and Staff Regulations, as well as the annual budget. 17 It is to provide management oversight to the Presidency of the Court, the Prosecutor and the Registrar regarding the administration of the Court. 18 It is normally to meet annually. 19 ASP is to have a Bureau of twenty-one members, to meet more frequently than the Assembly and to which various management functions might be delegated. 20 ASP may establish other subsidiary organs, including particularly an independent oversight mechanism for inspection, evaluation and investigation of the Court 21 and an Advisory Committee on judicial nominations. 22 ASP is also authorized to consider amendments to the ICC Statute, either itself or through the alter ego of Review Conferences (which are to have the same composition and rules as the ASP). 23 Until the Statute enters into force and the ASP has held its first session, a Preparatory Commission is to function, consisting of all states that had signed the Final Act of the Rome Conference or that had been invited to it. 24 (This provision enables the United States, in spite of its objection to the Statute, to participate in the PrepCom which indeed it is most actively doing.) The Commission's principal task is to prepare drafts of the instruments that the ASP will have to adopt at its first session in order to enable the ICC to begin functioning promptly after the entry into force of its Statute. 25 Judicial Organs: The Court The Court 26 is to have the following organs: the Presidency; an Appeals, a Trial and a Pre-Trial Division; the Office of the Prosecutor and the Registry. 27 The Judges. There are initially to be eighteen judges, of whom at least the three composing the Presidency are to serve full-time immediately, and the others to be available for full-time service as necessary. The ASP may increase the number of judges on the proposal of the Presidency. 28 The judges are to be nominated by member states and elected by the ASP for essentially non-renewable nineyear terms, from two lists: (a) Those who have established criminal law competence, whether as judges, prosecutors or defense counsel; (b) Those who have established competence in relevant areas of international law, such as humanitarian law and the law of human rights, and extensive experience in a professional legal capacity. At the first election at least nine judges shall be elected from list (a) and at least five from list (b), and at subsequent elections the equivalent proportions are to be maintained. This requirement evidently reflects some dissatisfaction with the composition of ICTY and ICTR on which academics, particularly in the field of international law, predominated. 29 Care is also to be taken: that each judge be fluent in at least one of the working languages of the Court (English and French); that on the Court as a whole the principal legal systems of the world be represented, that there be equitable geographical representation, and that there be a fair representation of female and male judges; and that the Court include judges with legal experience on specific issues [such as] violence against women and children. 30 The judges themselves elect a President and two Vice-Presidents, for once renewable three-year terms. These together constitute the Presidency, responsible in particular for the administration of the Court. The Court is also to organize itself into: an Appeals Division of the President and four other judges, who all together will constitute the Appeals Chamber; a Trial Division of at least six judges, sitting in Chambers of three each; and a Pre-Trial Division of at least six judges, who carry out their functions either in Chambers of three judges or as a single judge. 31

4 There are the expected provisions concerning the independence of judges, and for excusing, disqualifying, disciplining and removing judges. 32 The judges also have certain collective non-judicial functions, such as the adoption of Provisional Rules of Procedure and of the Regulations of the Court and the election and removal of the Registrar and her Deputy. 33 The Office of the Prosecutor. The Office of the Prosecutor (OP) is to act independently as a separate organ of the Court. It is to be headed by a Prosecutor elected by the ASP, assisted by one or more Deputy Prosecutors nominated by the Prosecutor and also elected by the ASP, all for non-renewable terms of up to nine years. The Prosecutor is to appoint the remaining staff of the OP; he is also to appoint advisers with legal expertise on specific issues, including sexual and gender violence and violence against children. On an exceptional basis and in accordance with guidelines to be established by the ASP, the Prosector may employ the expertise of gratis personnel offered by states parties, IGOs or NGOs. 34 By the above arrangement the Statute rejects the alternative possibility of permitting national prosecutors to present cases to the Court. The Registry. The Registry is to be responsible for the non-judicial and non-prosecutorial aspects of the administration and servicing of the Court. It is to be headed by a full-time Registrar elected by the judges and, if necessary, by a Deputy Registrar nominated by the Registrar and also elected by the judges, for once-renewable five-year terms. The Registrar is to appoint the remaining staff of the Registry. 35 A Victims and Witnesses Unit in the Registry is to provide protective measures, security arrangements, counselling and other assistance for witnesses and victims and others who may be endangered by their testimony. Its staff is to include experts in trauma, including that related to sexual violence. 36 Financing The ICC is to be financed from three sources: 37 (a) Primarily from contributions assessed on states parties on the same basis as that adopted by the UN General Assembly for the UN Regular Budget; (b) Also from contributions from the United Nations, in particular to cover the cost of cases referred by the Security Council; and (c) Possibly from voluntary contributions from governments and others. The ASP is to adopt Financial Regulations and Rules, and the annual budget. 38 Jurisdiction of the ICC Crimes Within the Jurisdiction of the ICC Unlike the four international ad hoc war crimes tribunals that preceded the ICC and whose experiences contributed to its establishment (the post-world War II International Military Tribunals at Nürnberg and in the Far East, and the recently established and still functioning United Nations War Crimes Tribunals for the Former Yugoslavia and for Rwanda), the new Court will deal only with acts that occurred after the coming into force of the Statute that establishes it. 39 Thus that Statute can establish crimes without having to rely in any way on their pre-existing nature as parts of international law and/or of some applicable domestic law though actually a determined effort was made to select only crimes recognized as such by customary international law and whose contents are therefore informed by the jurisprudence and other sources of interpretation.

5 The ICC Statute specifies that the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. 40 The four following sections discuss the four crimes that are, at least nominally, at present included in that Statute, while the fifth section discusses the possible addition of further crimes; three further sections present related matters. Genocide. Genocide, that particular horror of our Century, is defined in the Statute 41 precisely in terms of the same five acts listed in Article II of the 1948 Convention that gave the crime its name, and that are also listed in the Statutes of ICTY and ICTR, 42 if these acts are committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. 43 However, unlike these Statutes, that of the ICC does not directly incorporate the wording of Article III of the Convention, which also criminalizes four ancillary acts (conspiracy, incitement, attempt and complicity), but rather relies on a more general article that defines individual criminal responsibility. 44 Crimes against Humanity. Crimes against humanity, 45 includes eleven acts (or groups of closely related acts), when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. The first, fourth and the eleventh of these acts are the ones listed in the codification of the Nürnberg Principles prepared in 1950 by the International Law Commission (ILC) at the request of the General Assembly; 46 five further acts are ones that were added to that heading in the Statute of the ICTY 47 (with the crime of rape in that instrument considerably expanded in the ICC Statute to include other sexual crimes, and the crime of persecution also expanded to include national, ethnic, cultural and gender grounds, as well as other grounds universally recognized as impermissible under international law ); 48 finally, apartheid was added to the list in the new Statute. 49 Following that list are some ten definitions of particular words or phrases used in the list. 50 There is no requirement that crimes against humanity be carried out as part of an armed conflict. War Crimes. War crimes, which constituted only a short paragraph listing about a dozen acts in the ILC s codification of the Nürnberg Principles, 51 were divided into two articles in the ICTY Statute, respectively covering Grave Breaches of the Geneva Conventions of 1949 (covering eight listed acts) and Violations of the laws and customs of war (five listed acts). 52 In the ICC Statute, these two categories are again brought under the overall War crimes heading. 53 One paragraph covers the Grave breaches and lists identically the same acts as the ICTY Statute; another paragraph lists twenty-six acts as other serious violations of the laws and customs applicable in international armed conflict; yet another paragraph covers four acts committed in the case of armed conflict not of an international character, i.e. serious violations of common article 3 of the 1949 Geneva Conventions; and still another paragraph covers twelve acts constituting other serious violations of the laws and customs applicable in armed conflicts not of an international character. Thus this category has now been considerably expanded to cover some fifty different acts, including many committed in the course of noninternational conflicts thus covering a gap in the ICTY Statute that has caused the Tribunal great difficulties in determining whether or not acts charged to various defendants were committed as part of an international conflict. 54 To discourage the Court from pursuing isolated crimes committed by individual soldiers, it is provided that the Court is to have jurisdiction over war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 55 Ostensibly because of the relative novelty of some of these criminal provisions, a Transitional Provision in the ICC Statute provides that a state on becoming a party to that instrument may in respect of itself (see Preconditions to the Exercise of Jurisdiction, below) postpone for a period of seven-years the application of the provisions relating to war crimes. 56 Aggression. Although the crime of aggression is listed among the four crimes over which the Court is to have jurisdiction, 57 it is also specified that such jurisdiction shall only be exercised by the Court "once a provision is adopted in accordance with [the statutory provisions relating to amendments] 58 defining the crime and setting out the conditions under which the Court shall exercise its jurisdiction with respect to this crime," such provisions to be consistent with the relevant provisions of the Charter of the United Nations. 59 Evidently

6 this represents a compromise between those states that considered that a court that did not have jurisdiction over this arguably the most serious international crime would not deserve the name of ICC, and those states that were dubious about whether the world community was ready to permit any judicial forum take decisions concerning this potentially most political of offenses. 60 Considering that the search for a definition of the term aggression goes back to the days of the League, and that the General Assembly, after noting that Crimes against peace was one of the categories defined by the ILC in its codification of the Nürnberg Principles, 61 took until 1974 to adopt (on the basis of the report of the last of a series of committees charged with proposing such a formulation) 62 by consensus a Definition of Aggression 63 that clearly lacks precision, it seems most unlikely that the ASP will soon be able to agree, by the required seveneighth majority, on any acceptable formula. Evidently, the most important issue is whether aggression can be said to have occurred in any situation as to which the Security Council has not made a relevant determination under Article 39 of the UN Charter. So, for the nonce and the indefinite future, the Court will notionally have jurisdiction over this crime but will not be permitted to exercise it. Other Crimes. The ICC Statute foresees that it might be amended to add additional crimes to those within its jurisdiction. The earliest that such amendments can be proposed is seven years after its entry into force. It would then require a two-thirds vote in the ASP for adoption, and would only enter into force in respect of those states parties that have ratified that amendment. 64 In other words, while the Court will always have jurisdiction in respect of all states parties with respect to the original set of four core crimes discussed above, in respect of additional crimes each such state can pick and choose which to accept. There are also provisions foreseeing the expansion of some already included crimes, such as of the war crime of employing certain types of weapons, by scheduling such weapons in an annex to the Statute to be adopted as an amendment. 65 Although the Rome Conference was unable to reach sufficient agreement on the inclusion of additional crimes within the original repertory of the Court, it did adopt a resolution recommending to the first Review Conference, which is to be convened seven years after the entry into force of the Statute, that it consider adding the crimes of terrorism and drug crimes, with suitable definitions. 66 From time to time, during the decades that preceded the establishment of the ICC, various official and academic proposals have been made for other crimes (most of which had already been defined by a number of international treaties) that might fall under the jurisdiction of an ICC, including: the hijacking of planes and ships and other offenses against their safety; attacks against internationally protected persons; hostage taking and related crimes; torture; slavery and related practices; piracy; destruction or theft of cultural treasures; cutting of submarine cables; traffic in obscene materials; counterfeiting; bribery of foreign public officials; theft of nuclear materials; mercenarism; and offenses against the environment. 67 Offenses against the Court. The Court is also to have jurisdiction over offenses against it, such as: the presentation of false testimony; corruptly influencing witnesses; impeding, intimidating or improperly influencing officers of the Court; soliciting or accepting bribes. It may try such offenses and impose imprisonment of up to five years, as well as fines. 68 Elements of Crimes. The Statute foresees, but does not require as a precondition for the Court's exercise of its jurisdiction, the adoption by the ASP of Elements of Crimes to assist the Court in the interpretation and application of those provisions of the Statute in which the crimes within its jurisdiction are listed. 69 The importance of proceeding with the preparation of these Elements is underlined by the fact that this was specified as an urgent task of the Preparatory Commission 70 presumably both to make certain that the first meeting of the ASP will receive a well-considered draft and to encourage states (especially the United States) that might make their ratification of the Statute depend in part on the satisfactory resolution of certain potentially controversial aspects of these subsidiary definitions. Statute of Limitations. There is no statute of limitations in respect of any of the substantive crimes within the jurisdiction of the Court. 71

7 Conditions for the Court to Exercise its Jurisdiction Even in respect of the crimes within the ICC's jurisdiction, there are numerous restrictions and conditions concerning its exercise thereof. Precondition to the Exercise of Jurisdiction. Except in respect of situations referred to the Prosecutor by the Security Council, the only crimes that may be considered by the Court are ones committed either: 72 (a) On the territory of a state party, including on a vessel or a plane registered by that state; or (b) By a national of a state party. Assimilated to such states are non-parties that have declared their acceptance of the jurisdiction of the Court with respect to specified crimes. 73 In this connection it should be recalled that with respect to war crimes even states parties may postpone acceptance of jurisdiction for a period of seven years, and that in respect of new crimes added by amendment of the Statute only those states are bound that have ratified that amendment. Jurisdiction Ratione Temporis Non-Retroactivity. The Court only has jurisdiction in respect of crimes committed after the entry into force of the Statute in respect of the state on whose participation the exercise of its jurisdiction depends or after such a non-party state has made a declaration accepting the exercise of that jurisdiction. 74 Methods of Submission of a Case to the Court. Cases can be brought to the Court only by the Prosecutor, who may be activated in one of only three ways: (a) By the Security Council, acting under Chapter VII of the UN Charter; 75 (b) By a state party; 76 (c) Acting proprio motu, for example on information provided by victims or NGOs. 77 Obligatory Deferral. The Security Council may, acting under Chapter VII of the Charter, require that any investigation or prosecution be deferred for a period of a year, which the Council may similarly renew. 78 The Complementarity Principle. Because the Statute provides that the Court is to be complementary to national criminal jurisdictions, 79 the Court must declare a case inadmissible if it is being investigated or prosecuted by a state having jurisdiction, or where such a state has already decided not to prosecute, or where the accused person has already been tried. 80 This provision is, however, not to apply where the Court determines that the state concerned is unwilling or unable to genuinely carry out the investigation or prosecution, and in particular where such investigation, prosecution or trial has been carried out for the purpose of shielding the accused or has been unduly delayed or is not being conducted independently and impartially. 81 Types of defendants. Only natural persons are subject to the jurisdiction of the Court. 82 This excludes organizations (such as were subject to the Nürnberg Tribunal e.g., the Nazi party), as well as states. The Court has no jurisdiction over persons who were under the age of 18 at the time the relevant acts were committed. 83 On the other hand, the official capacity of a defendant, even as Head of State or Government, does not bar the Court from exercising its jurisdiction. 84 As a matter of fact, the principle of command responsibility is fully recognized in the Statute, in the generally accepted form for military commanders and in a slightly attenuated one for governmental leaders. 85

8 Although one basis for jurisdiction of the Court over an accused individual is that his country is a party to the Statute, the Court is also to have jurisdiction over the nationals of non-parties if such individuals are accused of having committed a crime within the jurisdiction of the Court in the territory of a state party, 86 or in the event of a Security Council referral. Proceedings in the Court General Applicable Law. The Court is to apply, in the first instance: its Statute, the Elements of Crimes adopted by the ASP, and the Rules of Procedure and Evidence so adopted; in the second instance applicable treaties and principles and rules, especially those relating to armed conflicts; finally and subsidiarily, general principles of criminal law derived from national legal systems. 87 The Court may also apply principles and rules of law as interpreted in its previous decisions. 88 In any event, it must act in accordance with internationally recognized human rights. 89 It should be noted that the procedures of the Court constitute a compromise between the common law adversarial and the civil law inquisitorial approach to the conduct of criminal proceedings with the former predominating. It evidently could not be expected that every system's special characteristics such as the American jury system 90 be accommodated. Although the actual balance between the various legal systems cannot be fully evaluated until the Rules of Procedure and Evidence and the Elements of Crimes have been adopted, and perhaps implemented, it already appears certain that the overall effect will be that the proceedings will conform to the highest standards that have so far been attained in implementing mankind s notoriously imperfect strivings for criminal justice. Close Supervision of the Prosecutor. Unlike national prosecutors, who are part of a governmental system that normally keeps them under some sort of preferably democratic political control, the ICC Prosecutor has no direct supervisor. Consequently the Statute provides that she work under the close supervision of the judicial branch of the Court, and in particular of the Pre-Trial Chamber. Almost all his initiatives, including certain decisions not to take an action, 91 must be approved at various stages by judges, and most of her actions can be challenged before judges by interested states and others, such as victims and accused persons. 92 It should also be noted that the ASP also has managerial oversight over, inter alia, the Prosecutor, 93 and that it can also remove him for serious misconduct or serious breach of his or her duties under [the] Statute. 94 Requirement that States Cooperate with the Court. The Statute provides at great length for the cooperation of states parties, and of states that have agreed to submit certain crimes to the jurisdiction of the Court. That cooperation relates to the production of persons under investigation by the Prosecutor or indicted by the Court (defined in the Statute as surrender of the persons, to distinguish it from state-to-state extradition ), 95 the making available of witnesses and other evidence, the punishment of offenses against the Court, and the provision of facilities for imprisoning convicted persons. 96 If a state fails to cooperate and thereby hinders the Court in the exercise of its functions and powers, the Court may make a finding to that effect and refer the matter to the ASP or, in respect of a situation referred by the Security Council, to the Council. 97 Sequence of Proceedings In general, a proceeding, no matter on what basis commenced, goes through the following stages: (a) Consideration by the Prosecutor of whether to initiate an investigation; 98 (b) Investigation by the Prosecutor under the supervision of a Pre-Trial judge or Chamber; 99

9 (c) Confirmation or not by the Pre-Trial Chamber of charges drawn up by the Prosecutor 100 in a sense a substitute for an American Grand Jury proceeding; (d) Trial by a three-judge Trial Chamber, which in case of a conviction is followed by a sentencing stage by the same Chamber; 101 (e) Appeal, of a conviction or an acquittal, or of the sentence, considered by the five-judge Appeals Chamber to which a convicted person has slightly wider grounds of appeal than the Prosecutor; 102 (f) Revision of a conviction or a sentence (but not of an acquittal), considered by the Appeals Chamber on the ground of newly discovered evidence, or the discovery that decisive evidence taken into account previously was false, or that a judge who has considered the case had committed serious misconduct. 103 Rights of the Accused Accused have very extensive rights, based generally on those provided for in major human rights treaties, such as the 1966 International Covenant on Civil and Political Rights 104 and especially the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols 105 concerning which, during almost five decades, considerable jurisprudence has developed in the European Commission and Court of Human Rights, and lately also in the two War Crimes Tribunals. These rights are in general very similar to, and to some extent can be traced back to, those required by the U.S. Constitution, and arguably are even somewhat superior to those. These rights include: the presumption of innocence; 106 conviction only if guilt proved beyond a reasonable doubt; 107 the right not to be required to incriminate oneself, 108 without silence having any negative connotation; 109 the right not to be imprisoned unnecessarily during the investigation stage, and in any event not for an excessive period; 110 freedom from torture or other forms of undue duress; 111 the necessity to be present at the trial; 112 the right to be represented by counsel, even if the accused is without financial means; 113 the right to have proceedings translated into the language of the accused; 114 to be tried without undue delay; 115 public trial; 116 the obligation of the Prosecutor to provide any exculpatory evidence to the defense. 117 In a very few respects an accused may be considered to have lesser rights than in the United States, such as having the Prosecutor appeal an acquittal or a sentence 118 a possibility that does, however, exist in many democratic societies. The rather extensive measures that may be taken to protect victims and other witnesses might also be considered as inhibiting the rights of the accused, though the Statute repeatedly emphasizes that such measures are not to be prejudicial or inconsistent with the rights of the accused and a fair and impartial trial. 119 In other respects, an accused has more extensive rights, such as to request revision of a conviction or sentence because of newly discovered evidence 120 a remedy largely unavailable in the United States. The absence of a death penalty (discussed below) may be considered another advantage. Persons unlawfully arrested or detained, or whose conviction was reversed, and in exceptional cases persons released on an acquittal or the termination of the proceedings, are entitled to compensation. 121 Protection of Victims and Witnesses Because of the nature of some of the crimes under the jurisdiction of the Court, in particular sexual ones, special arrangements may be made to protect victims and other witnesses. These may include closing part of the proceedings to the public, and restrictions on the disclosure of evidence or information to the accused before the trial stage. 122

10 The Court may also order convicted persons to compensate victims appropriately and for that purpose may receive representations from them. 123 Sentencing and Punishment The death penalty, which has generally been abolished by democratic and by most other states, and is prohibited or strictly limited by several international treaties, 124 may not be imposed by the Court. 125 However, it was agreed by the Conference that this exclusion from the penalties available to the Court did not imply that there was an international consensus on either the inclusion or the exclusion of the death penalty from the Statute. 126 Convicted persons may be sentenced to imprisonment for a maximum period of thirty-years, or in exceptional circumstances to life imprisonment. 127 The Statute specifies criteria to be taken into account for determining length of sentence. 128 As the ICC is to have no facilities for imprisoning persons (except during investigation and trial), sentences are to be served in states specified by the Court that have volunteered such facilities. 129 The Court is to continue to supervise the execution of sentences, 130 and is the only authority that can modify their terms. 131 After two-thirds of a sentence, or twenty-five-years of a life term, has been served, the Court is to review the sentence and consider whether it should be reduced; if it decides against reduction, it may hold further reviews as to be provided in the Rules of Procedure and Evidence. 132 The sentence may also include a fine, as well as forfeiture of assets derived directly or indirectly from the crime. 133 The Court may also order convicted persons to make appropriate reparations to victims. 134 Evaluation of the Statute As will be pointed out below, what are strengths and what are shortcomings in the proposed ICC depend to some extent on perception. Nevertheless, this categorization should be of utility to those who will have to decide whether a particular country, such as the United States, should join. Strengths The principal strength of the Rome Statute is that it has been agreed to by an overwhelming majority of the states that participated in the Conference, and indeed of all the states in the world. The Court to be established to a considerable extent reflects experience garnered from the two existing War Crimes Tribunals, which after inevitable start-up difficulties have settled down to perform solid judicial work and to judge the defendants before them in a manner that all but extreme partisans on either side consider fair and judicious. Though many basic features (e.g. three of the four listed crimes, the central rôle of the Prosecutor, the emphasis on pre-trial proceedings) are similar, almost all are spelled out in far greater detail in the ICC Statute, as befits that of a permanent institution. The drafters of the ICC Statute also learned from certain mistakes made in establishing these ad hoc courts, such as initially drawing the judges predominantly from among academic international lawyers rather than from the criminal bar. An important feature of the Statute is the lengthy list of fifty war crimes, including such as are carried out in non-international conflicts. The proposed elaboration of the Elements of Crimes are likely to constitute another important contribution to the field of international humanitarian law. The rights of accused and defendants are ensured by provisions adapted from the highest applicable international standards which for the most part are superior to any national ones. At the same time important protection is provided for victims and other witnesses. In addition, there are provisions for restitution on behalf of victims and for their participation in the relevant proceedings. Again building on the experience of the ad hoc Tribunals, including on the rules they adopted and on their jurisprudence, special measures have been designed for dealing with crimes of a sexual nature, which appear to

11 characterize many of the atrocities the new Court may have to address; the Statute includes a number of such acts as crimes against humanity 135 and as war crimes. 136 In addition there are special rules concerning the presentation of evidence 137 and special provisions relating to the staffing of various institutions of the Court, ranging from the judges themselves 138 to the Prosecutor's Office, 139 to the Victims and Witnesses Unit in the Registry. 140 The provision permitting the Security Council to cause any investigation or prosecution to be deferred for successive periods of one year, 141 while objectionable to some, constitutes an ingenious and probably workable compromise for situations in which potential targets may also be the persons who may hold the keys to peace in a given situation. That this exception is unlikely to be misused arises from the consideration that the Security Council would have to agree by a vote that any permanent member could veto 142 and such an agreement would have to continue year after year, thus putting pressure on the person concerned to do his utmost to continue to earn that unusual indulgence. This corresponds to national systems, where overriding policy considerations may result in the setting aside or mitigation of normal criminal processes, through the use of the executive's power to defer prosecutions or to pardon convicted offenders, or by the legislature s power to grant amnesties. It is, however, unfortunate that no provision is made for the preservation of evidence during such deferrals. Shortcomings It would be idle to pretend that all is perfect with the ICC Statute, which like all important treaties emerged from a long and in this case extremely tough negotiating process in which positions had to be compromised to maintain the maximum measure of consensus. As already mentioned, strengths or shortcomings are matters of perception. Thus the general deference of the ICC to national proceedings (the Complementarity Principle ) 143 may subjectively be considered an advantage or a disadvantage. It is also likely that over the years the actual implementation of these provisions will vary, depending on the experience with how states make good faith use of the possibility of carrying out domestic prosecutions; for internal political reasons some may very well decide to have an international body take a hot potato off their hands. The principal weakness of the Court is that, being treaty created, it is unlikely to be universal, at least for a considerable period of time. In particular, states whose governments are concerned about the legality of their own present or proposed actions (not past as the Court is to have no retroactive jurisdiction) are unlikely to join. The most significant shortcoming of the Statute is the requirement that, except in the case of a Security Council referral, the state in which the crime took place or whose nationals committed it must be a party in order for such acts to be prosecuted. 144 Under such a provision, for example, Pinochet could not be prosecuted by the ICC for any acts that took place within Chile, as long as it was not party to the Statute, whether the victims were Chileans or foreigners; only to the extent that he could be held responsible for criminal acts that took place outside of Chile and in a state party to the Statute would the Court have jurisdiction. Similarly, because Kosovo is still part of Serbia within the Federal Republic of Yugoslavia, as long as that state had not become party to the ICC Statute, the Court would have no jurisdiction over the atrocities that Yugoslav citizens committed there unless the Security Council referred the situation to the Prosecutor. 145 The Court would arguably have become more effective if it had been granted jurisdiction also on the basis of the victims nationality and perhaps of the state that has custody of an accused. 146 It can thus only be hoped that the normal domestic and international pressures will lead to an almost universal acceptance of the Statute though it must be recognized that, as has been the case in respect of some other important legal regimes, the big powers may be the hardest ones to draw in. The initial restriction of the Court to, in effect, three crimes (the applicability of one of which can be deferred by individual states parties for a period of seven years) is regrettable. Although not curable until the Statute has been in force for seven years, it may be hoped that soon thereafter aggression will receive an adequate definition,

12 and that possibly other crimes will be added crimes whose international condemnation has already occurred, in some cases years ago, such as terrorist acts, drug-related crimes, slavery and hostage taking. Again, states parties will in effect be able to opt out of such additional crimes, 147 but it may be hoped that over the years such nonparticipation will become less and less acceptable. A more subtle threat is that which arises from the provisions allowing the Court to accept voluntary monetary contributions from states and other sources, as well as the services of gratis personnel. 148 While these provisions would seem to be designed to expand the resources available to the Court, they testify to a certain nonseriousness by the world community in tackling this project; nowhere in the world is the financing or staffing of criminal courts supplemented by private donations or by volunteer labor. Furthermore, there is always the danger that he who pays the piper calls the tune, i.e. that certain states able to do so will supplement the resources of the Court for particular prosecutions they favor. In this connection the unfortunate experience of the two existing War Crimes Tribunals should be recalled, which required corrective action by the General Assembly. 149 It should also be noted that the Prosecutor's powers to carry out independent investigations is considerably limited, as in almost all situations he must defer to the territorial government. 150 Naturally, when all is said and done, the Court can only be as successful as its members, and particularly the most influential ones, permit it to be. This of course is true of almost all international institutions but it is also likely to be true that over the years such cooperation will increase and become part of the behavioral standards of governments by which their peers, and hopefully their own people, judge them. Meanwhile it must be recognized that there is no way that the Court, even if supported by much of the world community, can force a reluctant state to hand over accused persons or uncooperative witnesses, and particularly to make available evidence that its intelligence agencies have gathered. 151 Though in principle the inability to rely, except in a restricted class of cases, on the legal muscle of the Security Council, would seem to be a significant handicap, the experience of the Council s own two Tribunals shows that in practice not much help is likely to come from that source. Why the United States Should Join the ICC The pattern of U.S. reluctance to join international institutions or regimes, even ones it or its citizens have initiated, is not a new or particularly illustrious one. Starting with the rejection of the Continental Congress of a scheme proposed by Jefferson for a collective international response to the Barbary pirates, 152 the United States has continued this sorry record with the rejection of the League of Nations, the fifty-year delay in ratifying the 1925 Geneva Protocol against chemical weapons, the forty-year delay in becoming a party to the Genocide Convention, the twenty-six-year delay in becoming a party to the Civil and Political Rights Covenant (and then only with a number of crippling reservations), and the still not accomplished participation in many almost universally accepted human rights treaties such as those relating to Discrimination against Women and the Rights of the Child, not to speak of the Covenant on Economic, Social and Cultural Rights, and the now nearly twentyyear delay in becoming a party to UNCLOS, 153 even after, under immense U.S. pressure, some formally important though in practice hardly significant changes were made in that instrument. 154 Three general arguments can be advanced to urge prompt U.S. participation in regimes such as the proposed ICC. (a) These regimes, all of which the U.S. favors in principle and from some of which it in effect benefits even as a non-party, would be greatly strengthened if the United States were to join; (b) Prompt adherence i.e. ratification before entry-in-force would give this country far greater influence in shaping the institution from the outset, both in drawing up the many necessary instruments and in participating in the initial staffing of the Court, the Prosecutor s Office, and the Registry, as well as the ASP and its organs;

13 (c) Expecting initial perfection from any legal instrument or regime, whether domestic or international, is futile. These instruments and regimes are all living ones, in that they can be shaped both by formal amendment and more importantly, by practice and such shaping can, as pointed out above, be influenced by the U.S. best from the vantage of membership. The principal concern of the United States is, of course, that its own citizens, and in particular any military personnel on official assignments, 155 should not be exposed to malicious or frivolous international prosecution. In respect of this understandable concern several points should be noted. In the first place, in the hopefully unlikely instance that U.S. citizens are indeed guilty of the types of crimes covered by the ICC Statute, would the U.S. indeed prefer to have them escape prosecution entirely? Or would it prefer national prosecution in some potentially hostile country to international one in the proposed Court? Secondly, the proposed ICC will not be a kangaroo court. The safeguards already built into its Statute, and the further ones likely to appear in the Rules of Procedure and Evidence (if based in any way on those adopted by ICTY 156 and ICTR) and in the Elements of Crimes should ease any fears on that score. Furthermore, the multiplicity of instances provided for, from the Prosecutor to the Pre-Trial Chamber, to the Trial and Appeals Chambers, all staffed by persons elected by a responsible organ of the international community, the ASP, offers another guarantee against baseless prosecutions. The checks and balances, and especially the inhibitions against prosecution and especially conviction, are such that only the most desperate chauvinist could conjure up a scenario whereby anyone could be railroaded into an uncalled for investigation or prosecution, and especially an unjust conviction. Finally, it is clear that to the extent that the United States is an active participant in this regime, in drawing up its rules and in staffing its organs, it will be in a better position, both morally and practically, to prevent any injustice to its citizens. It would appear, however, that a major American concern is that even if the United States does not participate in the ICC its citizens could still be subject to prosecution as long as the territorial state where the alleged crime was committed is a party 157 or the Security Council refers a case to the Prosecutor. Evidently the latter possibility, while of potential concern to the great majority of states, need not cause any worry to the fortunate five permanent members of the Security Council, for each of them is in a position to veto such a referral. The concern remaining is therefore that an American soldier might be accused, by a state or by the Prosecutor acting proprio motu (an extremely circumscribed power), of committing atrocities within the territory of a state party while assigned to carry out some action in that state. The argument is that for the ICC to take action in such a case, if the U.S. is not a party, would be illegal or at least improper under international law. In response to such an argument it should first be noted that the United States could have no legal objection to a state trying in its own courts such an accusation concerning an offense allegedly committed on its own territory, provided that the applicable domestic law had been in force at the time of the act and that the law did not contravene some internationally accepted standard for example if it barred normal free speech or the exercise of religion. If the United States disapproves of a law that does not contravene an international standard all it can do is to warn its citizens against contravening such a law or, in an extreme case it might even forbid its citizens from using U.S. passports to enter the country. But in the situations we are contemplating here we are not talking of laws of which the U.S. disapproves, for it is not suggested that our country in any way condones any of the many acts criminalized by the ICC Statute. Another ground for objection might be that the national criminal procedures were not such as to ensure a fair trial but this objection too could not be applied to procedures as refined as those of the ICC. If neither substantive nor procedural objections can reasonably be raised, then the U.S. could also not object on legal (as distinguished from political) grounds to other countries giving legal assistance (e.g., extradition) to such a prosecution, whether on the basis of treaties between those states or on the basis of comity. The objection against the ICC s jurisdiction must therefore be based simply on having such a case tried not in a national court but in an international one. But what states may legally do separately, they may also do

14 collectively. In this connection, references to the provisions of the 1969 Vienna Convention on the Law of Treaties concerning the general non-applicability of treaties to non-party states, 158 are not apposite. The ICC does not obligate a non-party state to do anything, though it does afford them quite considerable rights (for example, under the Complementarity Principle ). However, citizens of non-party states may be burdened by or benefit from treaties if they fall within the territorial jurisdiction of the states parties to the treaty e.g., an American citizen will not be extradited, even to the United States, from a state party to the European Human Rights Convention if to do so would violate that persons rights granted under the Convention. The objections against the ICC exercising jurisdiction over Americans before the U.S. becomes a party to the Statute can also not be based on arguments that the procedures of or the proceedings in the ICC are likely to be basically unfair for, as demonstrated above, those procedures although not identical to those of this country are based on the highest standards of criminal justice prevailing in the world. In any event, under the principles of admissibility by which the ICC is bound, it must defer to an honest exercise of national jurisdiction even that of a non-party state 159 and thus the U.S. could always insist that it will try its own citizens as long as such a prosecution is not merely meant to shield them. Two more arguments on this point. First, if the U.S. is genuinely perturbed about the possibility of the ICC exercising jurisdiction over Americans even without this country being a party to the Statute, 160 let it become a party. It could then not only exercise its discretion to try Americans itself, but could also more effectively ensure that any trials in the ICC are not in any way unfair to its citizens. Second, should it be successful in insisting on a change in the Statute, whether by amendment, rules or interpretation, that would exempt the citizens of all nonparty states, this would also have the effect of preventing the exercise of jurisdiction (except on the basis of a Security Council referral) over the citizens of most countries likely to run afoul of the humanitarian regimes that the ICC is supposed to implement; is it really expected that Iraq or Yugoslavia would become parties to the ICC Statute? In other words, such a change would gut the ICC. During the negotiations before and at Rome the United States repeatedly indicated that it wanted to have the competence of the Court restricted to situations referred to it by the Security Council as is true in respect of the two ad hoc Tribunals it has created. This of course would have meant that each permanent member of the Security Council could, by exercising its veto, exempt its own officials and citizens, as well as those of any allies and friends, from prosecution in the Court. While this would have solved a serious domestic problem for this country, it is evident why most other states could not be expected to accept this approach and that it is not reasonable to demand that they do so. Finally, it should be recalled that in the extensive negotiations leading to the adoption of the Rome Statute, including those carried out for years in several preliminary fora, the United States prevailed on many, many points a number of which did indeed strengthen and improve the Statute, though there were also others that, in the views of many states and of knowledgeable observers, tended to weaken it. Although in many instances the changes it advocated were adopted on the merits, and in others because of the persuasiveness and diligence of its excellent negotiators, it is more than likely that in many instances the other negotiating states yielded because of the great desirability of having the United States as an early and enthusiastic party to the Statute. Not having this country join a regime which so largely bears its imprint just because it could not prevail on every point seems petty and unworthy of a great power.

15 Conclusion The ICC represents a major step in advancing international law, in particular international humanitarian law, and in helping to implement laws and principles that the United States has always stood for. The present challenge is to bring the Rome Statute into force 161 expeditiously but carefully, so that that central instrument might be enhanced by certain secondary ones that are now under consideration by the Preparatory Commission. The participation of this country in the proposed Court would greatly strengthen it and also help to accomplish any changes that are considered important either to improve it as an institution or to protect special U.S. interests. Contrariwise, U.S. opposition would potentially weaken the proposed institution or possibly even kill it which would constitute a disastrous long-term set back in accomplishing a goal that has been sought throughout much of this century by men of good will everywhere, and often enough by successive governments of this country. Even if this worst case scenario is not realized, the United States should not be left standing outside while the world community develops an instrument of such great promise. NOTES * Adjunct Professor, Center for International Studies, New York University School of Law. Served from 1958 in the legal offices of the International Atomic Energy Agency, the World Bank and the United Nations, retiring in 1989 as Deputy to the UN Legal Counsel , Legal Adviser of the International Conference on the Former Yugoslavia. 1. The instrument as originally adopted appears in U.N. Doc. A/CONF.183/9 of 17 July 1998 and is reproduced at 37 INTERNATIONAL LEGAL MATERIALS 999 (1998). Because of the haste with which the Rome Conference concluded and the signature text had to be prepared, a number of typographical and other formal errors were detected and communicated by the UN Legal Counsel, acting on behalf of the Secretary-General, the depositary of the Statute, to all states on 25 September 1998 (depositary notification C.N TREATIES-3) on a no objection basis pursuant to Article 79 of the Vienna Treaty Convention (see infra note 64), which were considered accepted on the expiration of the stated deadline for objections, 6 November 1998 (C.N TREATIES-8); these corrections are both reproduced by BASSIOUNI (see infra note 2) at , and also incorporated in the text of the Statute he reproduces at On 5 November 1998 the United States, without objecting to any of the proposed corrections, communicated to the Secretary-General its concerns about and objections to several aspects of the procedure used in preparing the definitive text of the Statute. A further set of corrections was communicated to all states on 18 May 1999 with an objection deadline of 2 July 1999 (C.N TREATIES-14), which itself was subject to a corrigendum dated 1 July 1999 (C.N TREATIES-16); no objections were received. A revised certified text of the Statute, incorporating all these corrections, is to be issued by the UN s Treaty Section. The passages of the Statute quoted herein reflect all the above corrections. 2. See M. CHERIF BASSIOUNI, THE STATUE OF THE INTERNATIONAL CRIMINAL COURT: A DOCUMENTARY HISTORY (1999) [hereinafter BASSIOUNI], at Professor Bassiouni, who for decades has written on the subject of an international criminal court, served as a Vice-President of the Ad Hoc Committee on the Establishment of an International Criminal Court and of the subsequent Preparatory Commission on the Establishment of an International Criminal Court, and as the Chairman of the Drafting Committee of the Rome Conference. 3. See BASSIOUNI, supra note 2 at 3-10, with the abundant literature cited therein. 4. Convention on the Prevention and Punishment of the Crime of Genocide, December 8, 1948, T.I.A.S. No. 1021, 78 U.N.T.S. 277, art. VI (entered into force 12 January, 1951) [hereinafter Genocide Convention]. 5. See BASSIOUNI, supra note 2 at 11-15, and The Work of the International Law Commission (U.N. Publication E.95.V.6, 5th Edition 1996) [hereinafter ILC Work], Part III.A.4, at International Tribunal for the Prosecution of Persons Responsible for serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (the International Criminal Tribunal for Yugoslavia ICTY), established by UN Security Council resolution 827 (1993) of 25 May 1993, and the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 (the International Criminal Tribunal for Rwanda ICTR), established by UN Security Council resolution 955 (1994) of 8 November See also infra note 42.

16 7. BASSIOUNI, supra note 2, at The negotiating process immediately preceding and at the Rome Conference, in which the United States played such a large role, is described by Philippe Kirsch and John T. Holmes in The Rome Conference on an International Criminal Court: The Negotiating Process, 93 AMERICAN JOURNAL OF INTERNATIONAL LAW 2 (1999), by David J. Scheffer in The United States and the International Criminal Court, Id. at 12, and by Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, Id. at 22. Ambassador Kirsch was the Chairman of the Main Committee of the Conference and Ms. Arsanjani was Secretary of that Committee; Ambassador at Large for War Crimes Issues, Scheffer was head of the U.S. delegation to the Conference, as well as at the preparatory meetings. 9. One of the proposed amendments (set out in A/CONF.183/C.1/L.70 of 14 July 1998) would have changed the preconditions to the exercise of the Court's jurisdiction (see infra) by requiring both the state on whose territory the crime was committed and the state whose national committed it to be parties to the Statute a proposal that would have almost emasculated the proposed Court. The other (set out in A/CONF.183/C.1/L.90 of 16 July 1998) would have allowed non-party states to shield their officials and agents from the otherwise applicable jurisdiction of the ICC by making a declaration that these had been acting in the course of their official duties (a provision apparently intended to protect high-level officials in particular), which would have transformed the issue from one of individual to one of state responsibility; that amendment would also have allowed states parties to opt out of the applicability of the Statute to them in respect of all crimes except genocide. 10. ICC Statute arts. 1 and Under U.N. Charter arts the General Assembly can generally only make recommendations to member states. 12. U.N. Charter art The Security Council can both refer situations to the Prosecutor (ICC Statute, art. 13(c)) and require that investigations and prosecutions be deferred (id. art. 16); the General Assembly can appropriate money to the ICC (id. art. 115(b)); the Secretary-General is the depositary of the Statute and has particular responsibilities in respect of statutory amendments and Review Conferences (id. arts. 121, 123, ). The Court is to be brought into a formal relationship with the United Nations by means of an agreement, id. art ICC Statute, Part 11, art To protect its position in this respect, the United States signed the Final Act. 16. ICC Statute art Id. arts. 9.1, , 51.1, 112.2, 113, Id. art (b). 19. Id. art Id. art Id. art Id. art. 36.4(c). 23. Id. arts Final Act of the Rome Conference (reproduced in BASSIOUNI, supra note 2 at [hereinafter Final Act], Annex I, Resolution F, paras. 2, Id. para It should be noted that the word Court is used in at least three separate senses, to refer: (i) to the International Criminal Court itself; (ii) collectively to the several bodies referred to in the text above; and (iii) just to the organs consisting of judges. In most instances the meaning is clear or the distinction does not really matter. 27. ICC Statute art Id. art Id. art Id. art. 36.3(c), Id. arts Id. arts and Id. arts. 51.3, 52.1, 43.4, Id. art Id. art Id. art Id. arts Id. arts (d), Id. art , 22.1, 24.1.

17 40. Id. Preamble, 9th para., and art. 5.1 (chapeau). 41. Id. art ICTY Statute art. 4, and ICTR Statute art. 2. The two Statutes constitute annexes to the respective Security Council resolutions cited in note 6 supra, and are reproduced respectively in 32 INTERNATIONAL LEGAL MATERIALS 1192 (1993) and 33 INTERNATIONAL LEGAL MATERIALS 1602 (1994). 43. ICC Statut, art. 6 (chapeau). 44. Id. art. 25.3, in particular sub-para. 3(e). 45. Id. art. 7. See Darryl Robinson, Defining Crimes Against Humanity at the Rome Conference, 93 AMERICAN JOURNAL OF INTERNATIONAL LAW 43 (1999) :II I.L.C.Y.B., reproduced in ILC Work (supra note 5) at ICTY Statute, supra note 42, art ICC Statute art. 7.1(g), (h). 49. Id. art. 7.1(j).

18 50. Id. art In particular, art. 7.2(a) includes important constraints on certain of the words quoted at the beginning of this paragraph from the chapeau of art Supra note 46, Principle VI, para. (b). 52. ICTY Statute, supra note 42, arts. 2 and ICC Statute art See Prosecutor v. Dusko Tadic a/k/a Dule, (ICTY case No. IT-94-1-A), Part. VI.B of the 7 May 1997 Judgment of the ICTY Trial Chamber dismissing those counts of the indictment that related to war crimes on the ground that the Bosnian conflict was not an international one, and the Dissent on that point, 36 INTERNATIONAL LEGAL MATERIALS 908, at 924 and at 970 (1997); reversed by 15 July 1999 Judgment of the Appeals Chamber, paras However, this expansion has also led to complaints that some of the acts included are not yet firmly part of customary international law. 55. ICC Statute art Id. art Id. art. 5.1(d). 58. Id. arts. 121, Id. art See Scheffer, supra note 8, at 20. See also, Benjamin B. Ferencz, Getting Aggressive about Preventing Aggression, VI THE BROWN JOURNAL OF WORLD AFFAIRS (Winter/Spring 1999). 61. Supra note 46, Principle VI, para. (a). 62. See ILC Work, supra note 5, at G.A. Res. 3314(XXIX), annex, of 14 December ICC Statute art. 121, in particular para. 5, and art The United States appears to fear that states that become parties to the Statute after it has been amended to include additional crimes, will not have that option of whether to agree to any new crimes added; as nothing in the Statute requires such a conclusion, it would appear that Article 40.5 of the 1969 Vienna Convention on the Law of Treaties [hereinafter Vienna Treaty Convention ] (1155 U.N.T.S. 331) would be applicable, which clearly indicates that a state becoming party to an amended treaty has a choice as to whether to become a party to the treaty in amended or unamended form. Though the U.S. is not a party to the Convention, it has repeatedly expressed the view that most of its provisions merely codify customary international law and are thus generally binding. 65. ICC Statute art. 8.2(b)(xx). 66. See Final Act, supra note 24, resolution E. 67. See, e.g., the list proposed by the ILC in the Annex to the Draft Statute for an International Criminal Court that it presented to the General Assembly in 1994 (reproduced in ILC Work, supra note 5 at , and in BASSIOUNI, supra note 2 at 673), and the even longer list that had been proposed by Professor Bassiouni in his Draft Statute: International Criminal Tribunal, 9 Nouvelles Études Pénales (1993), reproduced in BASSIOUNI, supra note 2 at ICC Statute art. 70; see also art Id. arts. 9, 21.1(a). 70. Final Act, supra note 24, Resolution F, paras. 5(b), 6, ICCStatute art. 29. This provision reflects the requirements of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 754 U.N.T.S. 73, adopted by the General Assembly on 26 November Id. art Id. art Id. art Id. art. 13(b). 76. Id. arts. 13(a) and Id. arts. 13(c) and Id. art Id. Preamble, 10th para.; see also art Id. arts Id. arts. 17.1(a), (b), , 20.3(a), (b). The inclusion and elaboration of this principle was a major concern of the United States. 82. Id. arts. 1, Id. art Id. art Id. art. 28.

19 86. Id. art. 12.2(a). As discussed infra, it is this feature that is most objectionable to the United States. 87. Id. art. 21.1(a)-(k). 88. Id. art Id. art It should be noted that the United States will extradite persons, including its citizens, to countries whose court procedures offer far lower due process guarantees than U.S. courts. See, e.g., Garcia-Guillern v. United States, 450 F.2d 1189 (5th Cir. 1971), cert. denied, 405 U.S. 989 (1972). 91. ICC Statute art. 56.3(a), for example. 92. Id. arts , 18.2,.6, 19.3,.8,.10, 53, 54.2(b), 56-58, etc. 93. Id. art (b). 94. Id. art. 46.1(a). 95. Id. art Id. Part 9, arts , and Part 10, arts , and art Bruce Broomhall has compiled The International Criminal Court: A Checklist for National Implementation to indicate the type of legal provisions a state should have or adopt to permit it to comply with the various requirements of the ICC Statute, which is set out in ICC RATIFICATION AND NATIONAL IMPLEMENTING LEGISLATION (M.C. Bassiouni ed., 1999), On the basis of the advice of its Conseil Constitutionnel (No DC of 22 January 1999, summarized in 2:5 ASILINTERNATIONAL LAW IN BRIEF 9-10 (May 1999)). France recently amended its Constitution in order to allow it to ratify the ICC Statute. 97. Id. art Id. art Id. arts Id. art Id. v, Part 6, arts , and art Id. Part 8, arts Id. art U.N.T.S. 171, in particular art U.N.T.S. 221, E.T.S. 5, in particular arts. 5-6; Protocol 6, 1496 U.N.T.S. 281, E.T.S. 114; Protocol No. 7, 1525 U.N.T.S. 195, E.T.S. 117, arts ICC Statute art Id. art. 66.3; see also art. 67.1(i) Id. arts. 55.1(a), 67.1(g) Id. arts. 55.2(b), 67.1(g) Id. art. 55.1(d) Id. art. 55.1(b) Id. art Id. arts. 55.2(c), (d), 67.1(d) Id. arts. 55.1(c), 67.1(f) Id. art. 67.1(c) Id. arts. 63.7, Id. art Id. art. 81.1(a), 81.2(a) Id. art Id. art. 84.1(a) Id. art Id. art Id. art Especially by the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the Abolition of the Death Penalty, G.A. Res. 44/128 of 15 December See WILLIAM A. SCHABUS, THE ABOLITION OF THE DEATH PENALTY IN INTERNATIONAL LAW (2d ed. 1997) ICC Statute art. 77 by omission, i.e. the penalties that the Court may impose are specified, and these do not include the death penalty; see also id. art This, in effect, is the message of art. 80 of the Statute. See Arsanjani, supra note 8, at ICC Statute art Id. art.78.

20 129. Id. arts (a), Id. art Id. art Id. art Id. art Id. art Id. arts. 7.1(g), 7.2(f), Id. art. 8.2(b)(xxii), (e)(vi) Id. art. 68.2, 3, Id. art. 36.8(a)(iii), (b) Id. art Id. art Id. art See U.N. Charter art By long accepted practice, this provision is interpreted as not requiring all five (or even any) permanent members to vote for a substantive decision, but merely that no such member vote against it (i.e., cast a veto) See supra note 79 and related text See supra note 72 and related text It should be noted that the ICTY is not so handicapped, because it has jurisdiction, granted by the Security Council under UN Charter Chapter VII, over all acts that take place within any part of the Former Yugoslavia, no matter by whom committed. See art. 1 of the ICTY Statute, supra note 42. The ICTY Prosecutor, Louise Arbour, has observed that consequently she is authorized to consider whether officials and officers of the NATO states committed any crimes within the jurisdiction of the Tribunal by the bombing campaign relating to Kosovo (see the Introductory Statement by Justice Louise Arbour, Prosecutor ICTY and ICTR, at the Launch of the ICC Coalition s Global Ratification Campaign, 13 May 1999, ICTY Press Release JL/PIU/401-E, The Hague 13 May 1999) This had indeed been proposed by South Korea, and was rejected, largely because of U.S. opposition at the Rome Conference; a German proposal for universal jurisdiction also gained support but was ultimately defeated. See Kirsch & Holmes, supra note 8, at See also supra note Respectively arts. 116 and 44.4 of the ICC Statute See G.A. Res. 53/11 of 26 October 1998, in particular para. 4 and the earlier resolutions cited in the first preambular paragraph ICC Statute arts. 18.2, 57.3(d) and This is quite aside from the fact that, under ICC Statute art. 72, governments may prevent the use of national security information that would otherwise be available to the Court See P.C. Szasz, Thomas Jefferson Conceives an International Organization, 75 AMERICAN JOURNAL OF INTERNATIONAL LAW 138 (1981) United Nations Convention on the Law of the Sea, U.N. Doc. A/CONF.62/122 and Corrs. 1-11, 21 INTERNATIONAL LEGAL MATERIALS 1261 (1982) Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, G.A. Res. 48/263 of 28 July 1994, 33 INTERNATIONAL LEGAL MATERIALS 1311 (1994) ICC Statute art provides that the Court may not request a state party to surrender a person if thereby that state would violate its obligations (e.g., under a Status of Forces Agreement) to another state (presumably the national state of that person), without the consent of that second state (whether or not such state is a party to the Statute); thus in most instances the U.S. should be able to protect its personnel by suitable agreements concluded with the states to which they are assigned.

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