What Extent is the United States’
Opposition to the Jurisdiction of the
International Criminal Court in
Accordance with International Law?
A critical evaluation of the position of the United States regarding the
International Criminal Court’s ability to investigate and charge United
States nationals
By Tuisku Kolu*1LLM International and European Law - Public International Law Track International Criminal Law Thesis
Prof. Mr. Dr. Harmen G. van der Wilt 07.01.2019
1 *I would like to thank my thesis supervisor Harmen van der Wilt for his insightful comments in the earlier drafts of this Paper.
Abstract
If the Pre-Trial Chamber (PTC) II decides to authorise a formal investigation into the
Afghanistan situation, United States (US) nationals may be subject to proceedings before the International Criminal Court (ICC), which the US has opposed since the Court’s formation. This decision may have considerable impact on the future of the Court, due to the current vehemence of the US towards the ICC and the scrutiny of the international community. The aim of this paper is to critically evaluate the US’s opposition in accordance with international law, in light of the Afghanistan situation. First, the relevance of this aim is illustrated in considering the US’s policy history towards the ICC and from the likelihood that the authorisation for a formal investigation will be confirmed. Next, the US’s inadmissibility claims regarding the exercise of jurisdiction over Non-Party State nationals and the principle of complementarity will be evaluated. These will both be dispelled through the proper application of the relevant concepts of international law. Finally, it will be considered whether the Status of Forces Agreements (SOFAs) and the Bilateral Immunity Agreements (BIAs) raise a jurisdictional challenge to the Court’s proceedings. This will conclude that the agreements between the US and Afghanistan do not limit the jurisdiction of the Court. It is then assessed whether BIAs and SOFAs worldwide could constitute de facto jurisdictional immunity through non-surrender obligations. It is presented that while BIAs are incompatible with the Rome Statute and hence could not constitute legitimate grounds for non-surrender by a State-Party to the ICC, SOFAs may successfully establish such grounds. In conclusion, this paper will establish that the US’s opposition to the ICC’s jurisdiction over US nationals, in light of the Afghanistan situation, is largely incompatible with international law.
Table of Contents
Introduction 3 Section 1: Relevance 4 1.1 Policy Background 4 1.1.1Clinton Administration 5 1.1.2 Bush Administration 5 1.1.3 Obama Administration 8 1.1.4 Trump administration 9 1.1.5 Analysis 91.2 Likelihood of a Formal Investigation 10
1.2.1 Fear of Retribution 11
1.2.2 Judicial Independence 13 1.3 Section Close 14
Section 2: Admissibility 15
2.1 Jurisdiction Over Nationals of Non-Party States 15
2.1.1ICC Jurisdiction and International Treaty Law 16
2.1.2 Basis in the Party State’s Territorial Jurisdiction 16 2.1.3 Delegation of Criminal Jurisdiction 17
2.1.4 Close 22
2.2 The Complementarity Principle 22
2.2.1 Complementarity and Established Jurisprudence 22 2.2.2 Validity of Application by OTP 27
Section 3: Jurisdictional Issues Related BIAs and SOFA 29
3.1 Agreements Between the US and Afghanistan 30
3.1.1 Article 98 and Jurisdiction 31
3.1.2Limitation to Jurisdictional Right 33
3.2 Agreements Worldwide 35
3.2.1 Object and Purpose of the Rome Statute 36 3.2.2 The Scope of Article 98(2) 37
Introduction
On the 3rd of November 2017, Prosecutor Bensouda requested the Pre-Trial Chamber (PTC)
III to authorise a formal investigation into the situation in Afghanistan,2 which would mark
the first investigation into United States (US) nationals by the International Criminal Court (ICC). This is of relevance to the international legal field, as the US has long opposed the inclusion of its nationals within the jurisdiction of the Court. The potential for retribution by the US and the loss of legitimacy before the eyes of the international community could have extensive implications for the future of the ICC. Therefore, the aim of this paper is to evaluate to what extent the US’s opposition to the jurisdiction of the ICC is in accordance with international law, in light of the Afghanistan situation. This paper will begin by
outlining the US’s policy history towards the ICC and further delve into the issues that may impact the PTC’s decision on whether to authorise the formal investigation. In the interest of conciseness, this paper will focus on the US’s claims that may pose a jurisdictional challenge to the ICC’s proceedings under international law. As such, this paper will consider the US’s claims of inadmissibility, relating to the jurisdiction over Non-Party State nationals and the principle of complementarity; as well as the issues related to Bilateral Immunity Agreements (BIAs) and Status of Forces Agreements (SOFAs), between the US and Afghanistan and those between the US and States worldwide. In admissibility it will be illustrated that the US’s position is based on an improper application of the relevant international law. In considering jurisdictional issues relating to BIAs and SOFAs, it is argued that neither agreement between the US and Afghanistan restrict the ICC’s jurisdictional right over US nationals who have committed crimes on the territory of Afghanistan. Moreover, in
considering whether agreements worldwide may provide a de facto jurisdictional immunity through non-surrender obligations, BIAs are found to be incompatible with the Rome Statute and hence entering one may constitute a breach by a Party State to the Statute. However, SOFAs are found to be compatible. Therefore, a critical evaluation of the US’s opposition to the jurisdiction of the ICC over US nationals is revealed to be largely incompatible with international law, in light of the Afghanistan situation.
2 Office of the Prosecutor (OTP), ‘Public redacted version of “Request for authorisation of an investigation pursuant to article 15”’, 20 November 2017, ICC-02/17-7-Conf-Exp (PTC III), ICC database at https://www.icc-cpi.int/CourtRecords/CR2017_06891.PDF (Accessed 18/10/2018) (Request for Authorisation)
Section 1: Relevance
There is great concern that the ICC may attempt to investigate and prosecute US nationals if the PTC authorises the Prosecutor’s request for a formal investigation. To illustrate the relevance in international law of this concern with regard to the US’s position, this paper will first outline the contentious policy background of the US towards the Court. This will
illustrate that, though the policy background of the US towards the ICC has fluctuated, it has consistently maintained a hard stance against ICC proceedings against US nationals. Next, the likelihood of an authorisation for a formal investigation will be assessed. This will show that the potential for the PTC authorisation and a resulting reaction from the US is high, which may have a huge impact on the Court’s functioning and legitimacy.
1.1 Policy Background
Although the US’s policy towards the ICC has gone through periods of both cooperation and contention, the US has consistently opposed the Court’s ability to hold proceedings against US nationals and has taken preventative actions as a result. This opposition is tied to several of the US’s concerns over the ICC regime. From this perspective, as the US’s military is engaged in several different conflicts across different States, including multinational forces in peacekeeping operations, the potential for politically motivated allegations is believed to be high. Such allegations would further be judged before an international tribunal, whose jurisdiction the US has not accepted and whose organs are not sufficiently accountable.3 This
increased risk for political persecution would force the US to limit its support in the
preservation of international peace and security. Due to this view, the US’s policy since the ICC's formation has largely centred around countering the potential exercise of the ICC’s jurisdiction over US nationals.4 This will be illustrated with an outline of the policy
background over the Clinton, Bush and Obama administrations as well as the current position of the Trump administration. A fallowing brief analysis will assess the potential reaction by the US if the formal investigation is authorised. As such, the assessment of the legal
legitimacy of the US’s position regarding the ICC’s jurisdiction over US nationals is currently relevant to international law, as this is likely to form the justification for such a 3 Lee Casey, 'The Case Against the International Criminal Court', (2002) Vol.25/Issue3, Fordham International
Law Journal, p.840-874 at https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1835&context=ilj
(Accessed 05/01/2019), p.848-850
4 David Scheffer, ‘The United States and the International Criminal Court’, (1999) Vol.93/No.1, The American
Journal of International Law, p.12-22, at
https://www.umass.edu/legal/Benavides/Fall2005/397G/Readings%20Legal%20397%20G/13%20David%20J. %20Scheffer.pdf (Accessed 05/01/2019)
reaction.
1.1.1 Clinton Administration
Under the Clinton administration, the US played a major role in the negotiations of the Rome Statute, but was dissatisfied with the resulting treaty.5 Though voting against the final treaty,
in December 2000, President Clinton signed the Rome Statute establishing the ICC, while still expressing continued concerns about its “significant flaws”. Notably, his greatest concern was the Court’s ability to exercise authority over personnel of States that had not ratified the treaty. Clinton was not in favour of submitting the necessary legislation to the Senate for ratification,6 and preferred to remain as a signing Party without ratification to
continue to influence the formation of the Court and to “enhance our ability to further protect U.S. officials from unfounded charges and to achieve the human rights and accountability objectives of the ICC.”7 Hence, from the creation of the ICC, one of the main concern of the
US was the Court’s ability to bring proceedings against US personnel. 1.1.2 Bush Administration
Under much of the Bush administration, the US had an antagonistic policy towards the ICC. In May 2002, in its first act towards the ICC, the administration submitted a letter to the UN Secretary-General at the time, Kofi Annan, stating that the US did not intend to become a party to the Rome Statute.8 Though stating that they would not seek to undermine the Court,9
the Bush administration took several hostile steps soon after, including: pressing other States to sign BIAs; passing domestic legislation to undermine the effectiveness of the Court;10 and
5 Elise Keppler, ‘The United States and the International Criminal Court: The Bush Administration’s Approach and a Way Forward Under the Obama Adm’, (Human Rights Watch, 02/08/2009),
https://www.hrw.org/news/2009/08/02/united-states-and-international-criminal-court-bush-administrations-approach-and-way (Accessed 08/09/2018)
6 William Clinton, 'Statement on the Rome Treaty on the International Criminal Court’, (31/12/2000) from
Public Papers of the President of the United States: WILLIAM J. CLINTON (2000-2001, Book III) p.
2816-2817, US Government Publishing Office database at https://www.govinfo.gov/app/details/PPP-2000-book3/PPP-2000-book3-doc-pg2816-2/summary (Accessed 02/10/2018)
7 Ibid., p.1
8 John Bolton, ‘International Criminal Court: Letter to UN Secretary General Kofi Annan’, (06/05/2002) U.S. Department of State Archive at: http://2001-2009.state.gov/r/pa/prs/ps/2002/9968.htm (Accessed 02/10/2018) 9 For example, see remarks of then Assistant Secretary of State - Lincoln Bloomfield, Jr. ‘The U.S. Government and the International Criminal Court’, Remarks to the Parliamentarians for Global Action, Consultative
Assembly of Parliamentarians for the International Criminal Court and the Rule of Law at the United Nations in New York (12/09/2003), U.S Department of State Archive at
https://2001-2009.state.gov/t/pm/rls/rm/24137.htm (Accessed 25/10/2018)
10 American Service-Members’ Protection Act of 2002, Public Law 107-206, the Office of the Legislative Council of the U.S. House of Representatives database at https://legcounsel.house.gov/Comps/aspa02.pdf
using their veto power in the United Nations (UN) Security Council(SC) to defer the ICC’s jurisdiction over Non-Party States.11
1.1.2.1 BIAs
The Bush administration pressed States, including those not party to the Rome Statute, individually to sign BIAs with the US to shield US citizens from proceedings before the ICC. Though in varying forms, they placed a non-surrender obligation on those States not to transfer US personnel to the Court, often framed with language of the ‘exclusive
jurisdiction’ of the home State. While many countries initially refused, the US used diplomatic and financial coercive measures on more vulnerable States to ‘encourage’ acceptance. This was done with the aim to conclude agreements with every State in the world.12 The US successfully completed BIAs with over 100 countries, with over 54 publicly
refusing.13
1.1.2.2 Domestic legislation
The American Service-Members’ Protection Act (ASPA), enacted in 2002, formed the basis of the US measures in opposition to the ICC, including: provisions prohibiting US cooperation with the ICC; authorisation to use all means necessary and appropriate to free US and certain allied personnel if detained by the ICC; refusal of military aid to ICC Party States without BIAs; and prohibition of US participation in peacekeeping without immunity from ICC prosecution for its forces.14 On the basis of ASPA, the US threatened to withdraw
military assistance from 35 ICC Party States who refused BIAs, and threatened financial penalties on a number of States.15 In 2005, the US Congress passed the Nethercutt
11 Robert Johansen, ‘The Impact of US Policy toward the International Criminal Court on the Prevention of Genocide, War Crimes and Crimes Against Humanity’, (2002) Vol.28/No.2, Human Rights Quarterly, p.301-331, at https://www.jstor.org/stable/20072739?seq=1#metadata_info_tab_contents (Accessed 25/09/2018), p.301
12 Ibid., p.311-312
13 For example, European Union members refused to sign BIAs – European Parliament Resolution P5_TA(2002)0521 ‘International Criminal Court – European Parliament resolution on the General Affairs Council’s position concerning the International Criminal Court’, (2003) Official Journal of the European Union C 300E/623, EUR-Lex database at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?
uri=CELEX:52002IP0521&rid=5 (Accessed 31/10/2018); For a larger scale summery see ICCnow, ‘Summery of information in Bilateral Agreements (BIAs) or so-Called “Article 98”Agreements as of July 8, 2006’, (ICCnow, 08/07/2006), http://iccnow.org/documents/BIAdb_Current.pdf (Accessed 18/10/2018)
14 ASPA (no10); for an assessment of the punitive nature of ASPA, see David Scheffer, ‘Don't Forfeit the Global Criminal Court’, originally published by Defense News (2001), Global Policy Forum database at
https://www.globalpolicy.org/component/content/article/164-icc/28346.html (Accessed 14/20/2018)
15Johansen (n11), p.314; Coalition for the International Criminal Court (CICC), ‘Countries Opposed to Signing a US Bilateral Immunity Agreement (BIA): US Aid Lost in FY04 & FY05 and Threatened in FY06’, (CICC, 15/11/2006) http://iccnow.org/documents/CountriesOpposedBIA_final_11Dec06_final.pdf (Accessed 15/10/2018)
Amendment which further threatened greater cuts to economic development aid given to countries that refused to sign BIAs.16
1.1.2.3 UNSC Resolutions
The US utilized the UNSC to gain immunity from ICC’s jurisdiction for Non-Party States’ personnel involved in peacekeeping operations. Though its first attempt in May 2002 was unsuccessful,17 the US applied further pressure on the SC successfully in June. The US
vetoed a resolution to continue the mandate for peacekeepers in Bosnia and threatened to veto all future UN peacekeeping missions if it was not guaranteed exemption from the Court’s jurisdiction.18 The UNSC passed Resolution 142219 giving immunity before the ICC for
Non-Party States involved with UN peacekeeping forces for 12 months under the SC’s power of deferral established in Article 16 of the Rome Statute.20 This resolution received widespread
criticism from other UN Member States for its legal invalidity and its undermining effect on international law.21 It was renewed the following year in Resolution 1487,22 though it had
become clear that UN Member States were “virtually unanimous” in their opposition to the resolution.23 In 2004 when the US moved for another renewal, the resolution had to be
withdrawn as it lacked support in the SC.24
Notably, all these methods aimed to ensure that US nationals could not be brought before the ICC. However, the Bush administration softened its approach towards the ICC in his second term. One of the first notable actions was abstaining from voting against the UNSC referral of
16Johansen (n11), p.317-319 17Johansen (n11), p.305 18 Ibid., p 306
19 UNSC, Resolution 1422 (2002) [on United Nations peacekeeping], 12/7/2002, S/RES/1422 (2002), RefWorld database at http://www.refworld.org/docid/3d528a612a.html (Accessed 03/10/2018)
20 Article 16 states: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.” the Rome Statute of the International Criminal Court (last amended 2010),
(17/07/1998), ISBN No. 92-9227-227-6 (Rome Statute)
21For more see Amnesty International, ‘International Criminal Court: The unlawful attempt by the Security Council to give US citizens permanent impunity from international justice’ (2003) (Index# IOR 40/006/2003), Amnesty International database at https://www.amnesty.org/download/Documents/108000/ior400062003en.pdf
(Accessed 01/11/2018); Johansen (n11), p.306-307, 309
22 UNSC, Resolution 1487 (2003) [on the United Nations peacekeeping], 12/06/2003, S/RES/1487 (2003), RefWord database at http://www.refworld.org/docid/3f45dbe87.html (Accessed 03/10/2018) 23 Citizens for Global Solutions, ‘Press Release - U.S. Seeks Renewal of Exemption for Peacekeepers: Introduces Security Council Resolution Granting Immunity from ICC’ (20/05/2004), ICCnow database at
http://iccnow.org/documents/CGS1487_20May2004.pdf (Accessed 11/11/2018) 24 Johansen (n11),p.309-10
the Darfur situation to the ICC in March 2005.25 Although, in continued hostility regarding
personal jurisdiction, the US successfully pushed for the inclusion of a jurisdictional
qualification in the UNSC resolution to effectively exclude US nationals and made reference to BIAs.26 However, this softened approach also included further actions such as amending
ASPA to remove some restrictions on aid and cuts to States who supported the ICC.27
1.1.3 Obama Administration
During the Obama administration, there was considerable improvement in the relations between the US and the ICC. The US began to engage in cautious cooperation with the ICC, while still maintaining its stance of shielding US citizens from proceedings in the Court. Congress did not renew the Nethercutt Amendments and, in the first actions engaging with the ICC, the US participated as an observer in the Eighth Annual meeting of the ICC’s Assembly of States Parties in 2009.28 The US also participated in the ICC Review Conference
in Kampala in 201029 and offered to aid in witness protection for the Court, and regularly
sought out meetings to determine how to best to improve its cooperative efforts.30 Most
notably, the US voted in favour of a UNSC Resolution31 referring the Libya situation to the
ICC. 32 However, the Obama administration didn’t completely abandon the Bush
administration’s approach. Notably, even when voting in favour of the Libya referral, similar 25 UNSC, Resolution 1593 (2005) [on Violations of International Humanitarian Law and Human Rights Law
in Darfur, Sudan], 31/03/2005, S/RES/1593 (2005), RefWorld database at
http://www.refworld.org/docid/42bc16434.html (Accessed 03/10/2018); Keppler (n5); Johansen (n11), p.321-322
26 Megan Fairlie, ‘The United States and the International Criminal Court Post-Bush: A Beautiful Courtship but an Unlikely Marriage’, (2011) Vol.29/Issue.2, Berkeley Journal of International Law, p.528-576, at
http://scholarship.law.berkeley.edu/bjil/vol29/iss2/3 (Accessed 01/09/2018), p.538-539; Johansen (n11), p.322 27 CICC, ‘Developments on U.S. Bilateral Immunity Agreements (BIAs)’, (CICC, 11/12/2006)
http://www.iccnow.org/documents/CICCFS-UpdateWaivers_11Dec06_final.pdf (Accessed 03/10/2018); Keppler (n5)
28 Fairlie (n26), p.529
29 Fairlie (n26), p.541-542; Mark Kersten, ‘The US and the ICC: Towards A Closer Relationship?’, (Justice in Conflict, 10/04/2011) https://justiceinconflict.org/2011/04/10/the-us-and-the-icc-towards-a-closer-relationship/
(Accessed 28/09/2018)
30 Such efforts included, for example, expanding the War Crimes Reward Program - see Office of the Spokesperson, ‘War Crimes Rewards Program (WCRP) Expansion’, Press Release 2013/0360 (03/04/2013),
U.S. Department of State database at https://2009-2017.state.gov/r/pa/prs/ps/2013/04/207023.htm (Accessed 30/10/2018); For an evaluation on the cooperative efforts see Linda Pearson, ‘US War Crimes Immunity and the International Criminal Court’, (Verso, 13/09/2018) https://www.versobooks.com/blogs/4025-us-war-crimes-immunity-and-the-international-criminal-court (Accessed 05/11/2018); William Eye and Beth Goldberg, ‘A Critique of the Evolving US-ICC Relationship’, (Humanity in Action, 2012),
https://www.humanityinaction.org/knowledgebase/401-a-critique-of-the-evolving-us-icc-relationship (Accessed 28/09/2018)
31 UNSC, Resolution 1970 (2011) [on establishment of a Security Council Committee to monitor
implementation of the arms embargo against the Libyan Arab Jamahiriya], 26/02/2011, S/RES/1970
(2011), RefWorld database at http://www.refworld.org/docid/4d6ce9742.html accessed on 03/10/2018
(Accessed 03/10/2018) (Resolution 1970) 32Fairlie, (n26), p.529
wording as in the Darfur resolution was used to exclude Non-Party State nationals from the ICC’s jurisdiction.33
1.1.4 Trump Administration
The Trump administration returned to a hostile approach towards the ICC in reaction to the Prosecutor’s request for authorisation for a formal investigation that included US nationals in November 2017. Encouragingly, the US engaged in the 16th Session of the Assembly of States Parties in December 2017. However it took the opportunity to put forward a statement of its objections to the Prosecutor’s actions,34 in place of the previous cooperative
statements.35 In naming the driving force in the Bush administration’s opposition of the
Court, John Bolton, as the new national security advisor, President Trump sent a clear
message on the future of US-ICC relations.36 In September 2018, Bolton made a speech at the
Federalist Society, regarding the ICC’s potential authorisation of the Afghanistan
investigation. This included several vehement statements, such as threats for specific action against the staff of the ICC and States which cooperate with the Court, and taking ‘any means necessary’ to retrieve a detained US national expected to face proceedings before the ICC. These threats were supported by the claim that the ICC launching proceedings against US citizens is unjustified and illegal.37
1.1.5 Analysis
As illustrated during the Bush administration, the US has not shied away from taking extensive steps in response to the potential investigation of US nationals, even when it was merely hypothetical. Even during the improved relations between the US and the ICC under the Obama administration, the US took the precaution to include de facto immunity clauses for Non-Party State military personnel and the mention of BIAs in UNSC resolutions,38
33 Resolution 1970 (n31), para.6
34 Statement on Behalf of the United States of America, 16th Session of the Assembly of States Parties of the ICC (08/12/2017) ASP ICC database at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP16/ASP-16-USA.pdf
(Accessed 12/10/2018)
35 Stephen Pomper, ‘USG Statement on Int’I Criminal Court Probe into Alleged U.S. War Crimes is Missing Some Things’, (Just Security, 14/12/2017) https://www.justsecurity.org/49360/usg-statement-intl-criminal-court-probe-alleged-u-s-war-crimes-missing-2/ (Accessed 12/10/2018)
36 David Bosco, ‘What Does John Bolton’s Appointment Mean for the ICC Investigation in Afghanistan?’, (LawFare, 23/03/2018) https://www.lawfareblog.com/what-does-john-boltons-appointment-mean-icc-investigation-afghanistan (Accessed 13/09/2018)
37 John Bolton, ‘Protecting American Constitutionalism and Sovereignty from International Threats’, Speech at the Federalist Society (10/09/2018), Just Security database at https://www.justsecurity.org/60674/national-security-adviser-john-bolton-remarks-international-criminal-court/ (Accessed 21/09/2018)
38 Colum Lynch, ‘Dispute Threatens U.N. Role In Bosnia’, Washington Post (Washington,
01/07/2002), https://www.washingtonpost.com/archive/politics/2002/07/01/dispute-threatens-un-role-in-bosnia/126b405f-6f58-4d7a-9dcc-6bd1715155d1/?utm_term=.49155c2423ea (Accessed 31/10/2018); Johansen
showing a consistent stance in opposition of including US nationals into the Court’s jurisdiction. As such, the US has, and is likely to, take tangible actions in support of this position. Now that the risk for an investigation is no longer hypothetical, the threats made by the US should be taken seriously. Notably, ASPA,39 though amended, is still in effect and
contains several presidential waivers which place much of the power to use those provisions to the executive.40 As the Trump administration has shown a consistent approach towards the
ICC in line with the US’s policy history, the relevance of the legal justifications behind this stance must be examined, as the threatened actions could have considerable effects on State relations and international institutions. In order to assess whether these threats are likely to come to fruition, the likelihood of a formal investigation will be considered to assess the relevance of this topic to current international legal discourse.
1.2 Likelihood of a Formal Investigation
On the 3rd of November 2017, Prosecutor Bensouda requested the PTC III to authorise a
formal investigation into the situation in Afghanistan, which has been under preliminary examination since 2007. This request included three broad categories of actors for crimes committed since 1st of May 2003 on Afghanistan Territory: the Taliban, the Afghan
Governmental authorities, and the US’s armed forces and CIA personnel.41 Some scholars
have concluded that it is highly unlikely that the Court will end up pursuing charges against US citizens, instead focusing on members of the Taliban.42 However, it is made clear in
Prosecutor Bensouda’s statement that the ultimate focus of the investigation will be “those most responsible for the most serious crimes allegedly committed.”43 In the prosecutor’s
view, this includes US personnel, as alleged crimes committed by the US’s military and CIA personnel include resorting to “techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape” during the course of investigations. It is believed that “these alleged crimes were not the abuses of a few isolated individuals” but were committed in furtherance of a policy regarding interrogation
(n11), p.306 39 ASPA (n10)
40 For discussions regarding presidential waivers, see Johansen (n11), p.306, 311; Lynch (n38);Fairlie (n26), p.534-535
41 Request for Authorisation (n2), para.53-71
42 Kevin Heller, ‘Initial Thoughts on the ICC’s Decision to Investigate Afghanistan,’ (Opinio Juris,
03/11/2017) http://opiniojuris.org/2017/11/03/otp-decides-to-investigate-the-situation-in-afghanistan/ (Accessed 17/10/2018)
43 Fatou Bensouda, ’Statement of ICC Prosecutor, Fatou Bensouda, regarding her decision to request judicial authorisation to commence an investigation into the Situation in the Islamic Republic of Afghanistan’, (OTP, 03/11/2018) ICC database at https://www.icc-cpi.int/Pages/item.aspx?name=171103_OTP_Statement (Accessed 17/10/2018)
techniques.44 The alleged crimes committed seem to have been a part of a greater policy, and
did not only including ‘mere’ individual foot soldiers. Hence, the preliminary examination has provided enough reasonable basis to include US military and CIA personnel into the investigation.45 This would mark the first time the ICC has launched a formal investigation
against US nationals. Since filing the request, the power to authorise this has been reassigned to PTC II after PTC III’s dissolution.46 The likelihood that the PTC II will authorise the
investigation, with the inclusion of US nationals, will be considered with regard to the potential fear of retribution from the US and the necessity of judicial independence.
1.2.1 Fear of Retribution
One can be quick to dismiss the possibility of an investigation of an US national under international law due to its status as superpower and the potential negative consequences that are entailed from ‘poking the bear’. Arguably, the Chamber could require the prosecutor to shift focus away from US nationals for fear of retribution. This issue will be considered in light of previous efforts by domestic courts to prosecute a US national for international crimes and the nature of US diplomatic pressure.
Previous failed attempts by domestic courts to investigate US nationals for international crimes under US pressure supports the argument for the influence of the fear of retribution. For example, considering cases based on universal jurisdiction, at least seven can be
identified that moved beyond the preliminary stage, only to be dismissed later. In some cases, for example in Spain and Belgium, legislation granting the Court universal jurisdiction was amended under US pressure before the case moved forward to exclude the Court’s ability to proceed.47 In domestic cases that were not based on universal jurisdiction, there has been
44 OTP, ‘Report on Preliminary Examination Activities 2016’, (14/11/2016) ICC database at
https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf (Accessed 01/10/2018), para.211-213 45 Request for Authorisation (n2), p.88-124
46 The ICC Presidency, ‘Decision assigning judges to divisions and recomposing Chambers’, (16/03/2018)
ICC-Pres-01/18, ICC database at https://www.icc-cpi.int/CourtRecords/CR2018_01743.PDF (Accessed 18/10/2018), p.6
47Spain amended its universal jurisdiction to require residence and Belgium amended it to include a residence and presence requirement - see Beth Van Schaack, ‘Universal Jurisdiction Cases Involving U.S. Defendants’, (Just Security, 17/12/2013) https://www.justsecurity.org/4707/universal-jurisdiction-cases-involving-u-s-defendants/ (Accessed 18/10/2019); for more on the nature of US pressure see the Couso case: Supreme Court. Criminal Chamber, Appeal No. 2629/2009. Ruling: 13/07/2010. Ruling No. 4222/2010, Ponder Judicial Espana database at http://www.poderjudicial.es/search/doAction?action=contentpdf&database
match=TS&reference=5697930&links=%222629/2009%22&optimize= 20100812 (Accessed 22/10/2018). For an English breakdown see Antoni Pigrau, ‘Correspondents' Reports: A Guide to State Practice in the Field of International Humanitarian Law - Spain’, (2010) Vol.13, Yearbook of International Humanitarian Law,p.592-594 at
https://www.cambridge.org/core/services/aop-cambridge-core/content/view/97E8D93E7A03AFE96E7B491DE35F2B35/S138913591100016Xa.pdf/correspondents_repo rts.pdf (Accessed 21/10/2018)
some success, though with limited effect. For example, the Romano case in Italy led to the
in-absentia conviction of Joseph Romano and 22 co-defendants from the CIA under
territorial jurisdiction, even though the two countries had a SOFA that covered this conduct. Romano was ultimately pardoned. One co-defendant, Robert Seldon Lady, spent some time in jail when he was arrested in 2013 by Panama due to the international arrest warrant against him. Ultimately Panama released him, and he returned to the US.48 The difficulties States
have faced in conducting investigations against US nationals for war crimes and torture illustrate the power of the fear of US retribution in stalling trials against its nationals. However, the nature of US diplomatic pressure in these cases has been related to bilateral relations. As an international court the ICC is not tied to a single State, and instead has the support of several sovereign States, arguably making it less likely to be influenced by US pressure. Nevertheless, it cannot be ignored that the ICC functions with the cooperation of its Party States. US pressure on these States to not comply with their obligation to cooperate would considerably impede any investigation conducted by the Office of the Prosecutor (OTP). The stop to proceedings that such non-compliance could cause are all too familiar after the repeated failure to bring Al Bashir before the ICC.49 It should be noted that the
difficulty of conducting an investigation due to politics is not a factor considered by the PTC in authorisation decisions,50 as this would risk the OTP appearing heavily biased.51
Hence, the potential fear of retribution towards the ICC is different to that of a domestic court. However, it can potentially influence the judges’ decision regarding the investigation. In fact, many international lawyers are concerned by the length of time the PTC is taking to authorise the investigation.52 Therefore, this must be considered a very real threat to equal
accountability under international law and may sway the outcome of the PTC’s decision, even though not be explicitly stated.
48 For a contextual discussion, see Van Schaack (n47)
49 For a breakdown on the issues arising from non-cooperation in relation to Al Bashir, see Zlata Ðurdević, ‘Legal and Political Limitations of the ICC Enforcement System: Blurring the Distinctive Features of the Criminal Court’, part of the Euro-CrimPro project at
https://www.pravo.unizg.hr/_download/repository/FS_Damaska_-_Durdevic.pdf (Accessed 18/10/2018) 50 Factors under Rome Statute Article 15(4) include: a reasonable basis to proceed with an investigation and that the case appears to fall within the jurisdiction of the Court. The PTC may also consider whether the prosecutor has adequately considered requirements for the initiation of an investigation established under Article 53(1), regarding (b) the admissibility of potential cases, and (c) whether the investigation would serve the
interests of justice, as well as the gravity of the alleged crimes under Article 17(1)(d).
51 Issues related to the appearance bias are further discussed in section 1.2.3.
52 Ian Cobain, ‘ICC on collision course with US over looming Afghan war crimes probe’, (Middle East Eye, 09/10/2018) https://www.middleeasteye.net/news/icc-collision-course-us-over-looming-afghanistan-war-crimes-probe-366131245 (Accessed 18/11/2018)
1.2.2 Judicial Independence
Although the US as a superpower has diplomatic sway, an essential element to the legitimacy of the Court is judicial independence. According to several international law practitioners,53
the likelihood of the PTC authorising a formal investigation including US nationals is high, due to the low threshold to be applied in authorisation decisions. In Article 15(4) of the Rome Statute, the PTC is to authorise a request from the prosecutor if “there is a reasonable basis” to investigate.54 The PTC has previously held that the “reasonable basis” test is “the lowest
evidential standard provided by the Statute”, where the information available “is not expected to be ‘comprehensive’ or ‘conclusive’”. The Chamber only needs to be “satisfied that a sensible or reasonable justification exists for the belief that a crime falling within the jurisdiction of the Court ‘has been or is being committed.’”55 Moreover, the PTC has never
refused a request from the prosecutor to open an investigation, and has only limited such investigations temporally.56 Note, this is a request for an investigation, not an indictment.57
Arguably, this threshold is too blatantly met by publicly available information for the PTC to exclude US nationals from the investigation without harming the ICC’s reputation.58 It is
important for the ICC to maintain an image of independence from politics in ensuring that impunity for international crimes is not permitted, no matter the perpetrator’s nationality. Notably, although the US has heavily pressured international courts in the past, there are examples of courts taking cases and ruling against its interests. Cases that have come before the ICJ,59 such as the recent decision on provisional measures against the US regarding their
Iran sanctions,60 notably illustrate that it is not inevitable for the US to dictate the outcome in
53 For example, see Laura Dickinson and Alex Whiting, ‘Expert Q&A: The International Criminal Court’s Afghanistan Probe and the US’, (Just Security, 26/03/2018) https://www.justsecurity.org/54276/backgrounder-icc-afghanistan-probe-us-expert-qa/ (Accessed 10/10/2018); see further statements by international law practitioners in Cobain (n52)
54 Rome Statute (n20)
55 ICC, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the
Situation in the Republic of Côte d'Ivoire (15/11/2011) ICC-02/11-14-Corr (PTC III), from the ICC database at
https://www.icc-cpi.int/CourtRecords/CR2011_18794.PDF (Accessed 08/10/2018), para.24 56 Dickinson and Whiting (n53); for an example of PTC imposed temporal limitation, see ICC,
Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Kenya,(31/03/2018) ICC-01/09-19-Corr (PTC II) from Refworld database at
https://www.refworld.org/cases,ICC,4bc2fe372.html (Accessed 08/10/2018), para.201-207 57 See statements by Katherine Gallagher in Cobain (n52)
58 Ibid.
59 For example, see: ICJ, the Case Concerning Military and Paramilitary Activates In and Against Nicaragua
(Nicaragua v United States of America), (27/06/1986) Merits Judgment, ICJ Report 1986, General List No.70
(ICJ), ICJ database at https://www.icj-cij.org/files/case-related/70/070-19860627-JUD-01-00-EN.pdf (Accessed 05/11/2018). Note, such decisions are not without consequence, as the US withdrew from the Court’s
compulsory jurisdiction as a result.
60 ICJ, Alleged Violations of the 1995 Treaty of Amity, Economic relations, and Consular Relations (Islamic
international courts. Arguably, as international courts take up the difficult role of maintaining judicial independence in the inherently political arena of the international community, their ability to make decisions against superpower States and to uphold the rule of law is essential to build States’ faith in the international system.
1.3 Section Close
In weighing together, on the one hand, the potential for the US’s opposition to result in tangible action and, on the other hand, the likelihood of the authorisation for a formal
investigation, it is illustrated that the legal arguments surrounding the ICC’s jurisdiction over US nationals in the Afghanistan situation are highly relevant to the international legal order as a whole. The US’s policy history towards the ICC has shown a consistent stance against ICC proceedings against US nationals, followed by ‘real-world’ action in attempt to curtail this. The first ICC proceeding against US nationals is at its highest potential since the Court’s creation. As such, the decision of the PTC will have an impact on the functioning and
legitimacy of the Court regardless of the direction it may take. If it is perceived that a
superpower can have an impact on the decisions of the ICC, its legitimacy in the international community will be heavily impacted with a solidified view of western bias. However, facing off against a superpower as a relatively young Court with wavering support may cause it to lose its current standing as well, and impede its ability to function effectively. As such, the judges will inevitably weigh the political consideration of the fear of retribution implicitly, as well as the necessity to maintain judicial independence being inherently tied to the Court’s core legitimacy. In balancing these factors, the PTC will inevitably be aware of the
contentious political atmosphere around this decision. It is likely that in balancing these aspects, the Court will authorise the prosecutor’s request for a formal investigation. As the request goes beyond the low threshold required, there is little room for judicial discretion to reject the request without illustrating implicit bias. Since a formal investigation is a looming possibility with high relevance on the future of the Court and the international legal order, the legitimacy of the legal position presented by the US must be examined.
Section 2: Admissibility
The US holds that it is inadmissible for the ICC to launch proceedings against US nationals according to international law. This position draws mainly from two points. First, it is inadmissible under international law for the ICC to claim jurisdiction over nationals who are Provisional Measures General List No.175 (ICJ), ICJ database at
not party to the Rome Statute. Second, the complementarity principle of the Rome Statute renders it inadmissible for the OTP to pursue proceedings against US nationals. It will be presented that neither of the claims illustrate a valid application of the related legal concepts, and hence would not render a formal investigation into the Afghanistan situation
inadmissible.
2.1 Jurisdiction over Nationals of Non-Party States
When discussing the Courts ability to claim jurisdiction over crimes committed by US nationals on the territory of Party States, John Bolton stated:
“The Court in no way derives these powers from any grant of consent by non-parties to the Rome Statute. Instead, the ICC is an unprecedented effort to vest power in a supranational body without the consent of either nation-states or the individuals over which it purports to exercise jurisdiction.” 61
This claim is often reiterated by many opponents of the Court, arguing that the ICC’s
jurisdiction for the investigation and prosecution of Non-Party State nationals is invalid under treaty law without the consent of that State. Here, it will argue that the ICC does not require Non-Party State consent to exercise jurisdiction over crimes committed by individuals on the territory of Party States, as this power derives from the territorial jurisdiction of the Party State where the alleged crime was committed. This will be illustrated in three parts: First, the point of contention in the US’s position regarding jurisdiction under the Rome Statute and the relevant treaty law rule will be briefly clarified. Second, it will be illustrated that the ICC’s jurisdiction over Non-Party State nationals is not in violation of the treaty law principle in question, but rather derives from territorial jurisdiction. Third, it will be illustrated that the delegation of criminal jurisdiction by States in international treaties over nationals of Non-Party States to international tribunals without that State’s consent is supported in international precedent.
2.1.1 ICC Jurisdiction and International Treaty Law
The former U.S. Ambassador-at-Large for War Crime Issues, David Scheffer, testified in 1998 that a treaty which gives the power to an international court to prosecute an individual, whose State of nationality is not a Party to said treaty, for actions overseas is “contrary to the most fundamental principles of treaty law.”62 This claim refers to the jurisdiction set in
61 Bolton’s Speech (n37)
62 David Scheffer’s statement in the Hearing Before the Subcommittee on International Operations of the Committee on Foreign Relations United States Senate (July 23/07/1998), 105th Congress 2nd Session, S.HRG.105-724, p.10-15, US Government Publishing Office database at
Article 12(2)(a) of the Rome Statute, which allows the ICC to exercise jurisdiction over an individual if the alleged crime occurred on the territory of a Party State,63 without a
requirement of consent from the State of nationality, even when this State is not party to the Statute.64 In regard to the ‘most fundamental principles of treaty law’, Scheffer is referring to
Article 34 of the Vienna Convention of the Law of Treaties (VCLT) which establishes the principle that a treaty cannot bind a Non-Party State without their consent.65
2.1.2 Basis in the Party State’s Territorial Jurisdiction
Article 34 of VCLT is not violated by Article 12(2)(a) of the Rome Statute, as this does not establish a binding obligation or right to the relevant Non-Party State. Article 12(2)(a) does not impose obligations on Non-Party States, but rather establishes the ICC’s jurisdiction over individuals in the territory of Party States. As such, it relates to the obligations of individuals and hence is not in violation of treaty law under Article 34 of VCLT.66 While the prosecution
of a national may affect their State’s interests, this does not equate to an obligation.
Provisions such as complementarity67 create an incentive for Non-Party States to take certain
actions to avoid such an effect on their interests, but this does not impose an obligation with consequential legal responsibility for failing to take such actions.68 In establishing jurisdiction
over international crimes committed in the territory of Party States, Article 12(2)(a) effectively delegates the territorial jurisdiction of Party States to the ICC.69 Territorial
jurisdiction is a well-known principle of international law, where individuals are subject to the criminal jurisdiction of the State whose territory they are in, including that which arises from a treaty obligation acceded to by the territorial State. While one could argue that a State has a sovereign interest tied to its nationals, this does not provide basis for exclusive criminal
https://www.govinfo.gov/content/pkg/CHRG-105shrg50976/pdf/CHRG-105shrg50976.pdf (Accessed 18/10/2018), p13
63 Rome Statute (n20), art 12(2)(a) 64 Request for Authorisation (n2), para.44
65 Vienna Convention on the Law of Treaties, (23/05/1969) United Nations, Treaty Series, vol.1155/No.18232, p.331, (VCLT)
66 Dapo Akande, ‘The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits’, (2003) Vol.1/Issue.3, Journal of International Criminal Justice, p.610-650, at
https://academic.oup.com/jicj/article/1/3/618/2188874 (Accessed 26/11/2018), p.620 67 See section 2.2 for a discussion on the complementarity principle.
68 Akande (n66), p.620 69 Ibid., p.621
jurisdiction when they are abroad.70 Hence, when American nationals travel abroad they are
held accountable to the law of the State they are in. 2.1.3 Delegation of Criminal Jurisdiction
The US position that the exercise of jurisdiction by the ICC over Non-Party State nationals is illegal without State consent, has further been supported by two arguments regarding the delegation of criminal jurisdiction by the Party States. First, it is claimed that States do not possess the power to delegate criminal jurisdiction over a non-national without the State of nationality’s consent. Second, it is argued that an international tribunal does not have the authority to exercise jurisdiction over Non-Party State nationals over acts that were
committed in the pursuit of official state policy. Both, however, can be dispelled by looking at international precedent.
2.1.3.1 Legality of Delegation
Advocates for the US’s position argue that it is illegitimate for a State to delegate their criminal jurisdiction over non-nationals without the State of nationality’s consent.71
However, when assessing international precedent, it appears valid and common in
international law for such delegation to take place.72 First, this claim does not take account of
the plethora of treaties in which States do exactly that. For example, the US itself is party to many counter-terrorism treaties, including but not limited to: the 1949 Geneva Conventions, the 1958 Law of the Sea Convention, the 1970 Hijacking Convention and the 1979 Hostage Taking Convention.73 The US’s courts have asserted extensive jurisdiction based on such
treaties.74 For example in the case of United States v Yunis, the United States Court of
Appeals asserted jurisdiction over a national of a Non-Party State (without that State’s consent) for hijacking a foreign plane in a Party State.75 Another example is Directive
70 Michael Scharf, ‘the ICC’s Jurisdiction Over the Nationals of Non-Party States: A Critique of the U.S. Position’, (2001). Paper.257, Case Western Reserve University Faculty Publications, p69-117, at
http://scholarlycommons.law.case.edu/faculty_publications/257 (Accessed on 18/10/2018), p.72-75, 98, 110; the presumption against restrictions to the territorial jurisdiction of States is further dealt with in section 3.1.2. 71 Madeline Morris, ‘High Crimes and Misconceptions: the ICC and Non-Party States’ (2001), Vol. 64/No.1,
Law and Contemporary Problems, p.13-66, at https://scholarship.law.duke.edu/cgi/viewcontent.cgi?
article=1200&context=lcp (Accessed 13/12/2018), p.27; Ruth Wedgwood, ‘The Irresolution of Rome’ (2001), Vol.63/No.1, Law and Contemporary Problems, p.193-214, Duke Law Scholarship Repository at
https://scholarship.law.duke.edu/lcp/vol64/iss1/10/ (Accessed 05/12/2018), p.199-200 72 Akande (n66), p.622
73 For more see Scharf (n70), p.99; Akande (n66), p.623-624 74 Scharf (n70), p.101; Akande (n66), p.624
75 United States v Yunis, Appeal of Conviction, 924 F2d 1086, No 89-3208, 288 US App DC 129, ILDC 1476 (US 1991), 29th January 1991, US
2017/541 of the European Parliament and Council, which continues the authorisation established since 2002, for any EU Member State to exercise jurisdiction over acts of terrorism committed in any EU country, including those committed by non-EU nationals.76
Nearly all States are party to at least one treaty permitting delegation of criminal jurisdiction in this manner, and have shown particular willingness to do so with regard to crimes that concern the international community as a whole.77
However, advocates of the US position further contend that, even if such delegation is permitted between States, it is invalid under international law for States to delegate domestic criminal jurisdiction to an international tribunal. This is because the consequence of a
judgment by an international tribunal is fundamentally different to that of a foreign domestic court,78 due to the greater political impact and weight of the judgment. Therefore, the ability
to delegate jurisdiction between States over crimes of international concern without the consent of the State of nationality cannot be equivalent to customary law affirming the delegation of jurisdiction to international tribunals.79 However, where States are able to
individually prosecute crimes of concern to the international community without territorial or national nexus, it logically follows that States should have the ability to take collective action with regard to those concerns, absent a specific rule to the contrary. Such collective action, could take the form of setting up an international tribunal with the joint authority of those States to prosecute such crimes, like the ICC.80 In fact, not only is there no rule to the
contrary, such collective action is supported by precedent. There are several instances of precedent where States have delegated, with a treaty, their criminal jurisdiction over non-nationals to an international tribunal, including non-nationals of Non-Party States without their consent. Three instances of this will be briefly considered as examples.81
First, The ICTY was created by a SC resolution82 under its Chapter VII powers in the
UN Charter, exercising the powers delegated to it by the UN Member States
76 Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on Combating Terrorism and Replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA, Official Journal of The European Union, L88/6 (2017), Article 19(1)
77 Akande (n66), p.624-625 78 Morris(n71), p.29-47 79 Morris (n71), p.29-30 80 Akande (n66), p.626
81 For a breakdown of more examples see Akande (n66), p.627-633
82 UNSC, Resolution 827 (1993) [International Criminal Tribunal for the former Yugoslavia (ICTY)], 25/05/1993, S/RES/827 (1993), RefWorld database at https://www.refworld.org/docid/3b00f21b1c.html
collectively, though their ultimate legal basis is in Article 25 of the UN Charter.83 At
the time, the Federal Republic of Yugoslavia(FRY) was not a member of the UN, and hence was not party to the Charter.84 In particular, FRY did not consent to the exercise
of jurisdiction in relation to Kosovo,85 and the ICTY reported to the Security Council
repeatedly that FRY did not accept its jurisdiction there and obstructed its work.86
Hence, this was an international tribunal that was ultimately treaty-based, to which jurisdiction was delegated over nationals of a Non-Party State without that State’s consent.87 The US was heavily involved with the establishment of the ICTY.88
Second, the Special Court of Sierra Leone (SCSL) was created by a treaty between the UN and Sierra Leone for serious international crimes committed on its territory.89
The Court’s Statute does not limit its jurisdiction concerning non-nationals, leading to the successful prosecution of Charles Taylor, a non-national and the head of State of Liberia, for participation in the armed conflict in Sierra Leone.90 Liberia did not
consent to this.91 Hence, this illustrates another treaty-based tribunal, to which
83 Akande (n66), p.628
84 SeeUNSC, Resolution 777 (1992) [Federal Republic of Yugoslavia], 19/09/1992, S/RES/777 (1992), RefWorld database at https://www.refworld.org/docid/3b00f2832c.html Accessed 21/10/2018; and UN General Assembly, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities, 03/02/1992, A/RES/47/135,GA Res. 47/1(1992), RefWorld database at
https://www.refworld.org/docid/3ae6b38d0.html (Accessed 21/10/2018) 85 Akande (n66), p.630-631
86 For example see: ICTY OTP, ‘Statement by the Office of the Prosecutor: "The Prosecutor does not accept the refusal by the FRY to allow Kosovo investigations"’, ICTY Press Release CC/PIU/351-E (7 October 1998), ICTY archives at http://www.icty.org/en/press/statement-office-prosecutor-prosecutor-does-not-accept-refusal-fry-allow-kosovo-investigations (accessed 10/12/2018); Gabrielle Kirk McDonald, ‘Letter from President McDonald to the President of the Security Council.’, ICTY Press release JL/PIU/356-E(22 October 1998), ICTY archives at http://www.icty.org/en/press/letter-president-mcdonald-president-security-council (Accessed 10/12/2018); Gabrielle Kirk McDonald, ‘Judge Gabrielle Kirk McDonald, President of the International Criminal Tribunal for the Former Yugoslavia addresses the United Nations Security Council.’, ICTY Press Release JL/PIU/371-E (8 December 1998), ICTY archives at http://www.icty.org/en/press/judge-gabrielle-kirk-mcdonald-president-international-criminal-tribunal-former-yugoslavia (Accessed 10/12/2018)
87 Akande (n66), p.629
88 John Cerone, ‘Dynamic Equilibrium: The Evolution of US Attitudes towards International Criminal Courts and Tribunals’, (2007) Vol.18/No.2, European Journal of International Law, p.277–315, at
https://academic.oup.com/ejil/article/18/2/277/361986 (Accessed 10/12/2018), p.288-290
89 Agreement Between The United Nations and the Government of Sierra Leone on the Establishment of a special Court for Sierra Leone (SCSL) (16/01/2002), SCSL database at http://www.rscsl.org/Documents/scsl-agreement.pdf (Accessed 10/12/2018)
90 Prosecutor v. Charles Ghankay Taylor (Judgement), SCSL-03-1-T, SCSL, 18/05/2012, SCSL database at
http://www.rscsl.org/Documents/Decisions/Taylor/1283/SCSL-03-01-T-1283.pdf (Accessed 15/11/2018) 91 Liberia challenged the proceedings before the ICJ with an immunity claim: ICJ Press Release No.2003/26 (05/09/2003), ICJ database, at https://www.icj-cij.org/files/press-releases/0/000-20030805-PRE-01-00-EN.pdf
jurisdiction was delegated over nationals of a Non-Party State without that State’s consent, with the support of the US.92
Third, the oldest existing international organization, the Rhine Central Commission under the Rhine Navigation Convention of Mannheim 1868, was delegated
jurisdiction as a Court of appeal for decisions of national courts in criminal and civil cases concerning Rhine shipping.93 Some cases involved nationals of Non-Party
States,94 making the oldest international organization an early example of this
practice.
These examples illustrate that States, including the US, have created and supported
international tribunals with delegated criminal jurisdiction over nationals of Non-Party States without that State’s consent, suggesting the general acceptance of the lawfulness of such delegation.95
2.1.3.2 Acts of Official State Policy
Some further contend that an international tribunal cannot lawfully be delegated criminal jurisdiction over acts committed by nationals of a Non-Party State in pursuit of an official State policy. Any case regarding acts by an individual that were committed as a part of official State policy may have considerable implications for the interests of that State.96
Particularly, due to the nature of international crimes, it is reasonable to assert that cases before the ICC will relate to questions of the legality of State acts and policy. An adverse decision may cause political embarrassment, particularly when the decision suggests that an official State policy was unlawful. Arguably, although the case is formally an exercise of jurisdiction over the individual, the State of nationality is also implicated as a party to the dispute due to the subject matter at hand. As such, the case would effectively wield jurisdiction over the State without its consent. Hence, the delegation of such a case to an 92 The US supported the Court in various methods, including financial contributions and voting in favor of the establishment of the Court in the UNSC, Resolution 1315 (2000) [on establishment of a Special Court for
Sierra Leone], 14/08/2000, S/RES/1315 (2000), Refworld database at
https://www.refworld.org/docid/3b00f27814.html (Accessed 20/10/2018); Cerone (n84), p.305
93 The Revised Convention for Rhine Navigation of 17 October 1868 as set out in the text of 20 November 1963, signed at Mannheim, from Inland Transport Committee (37th Session/item 5(c)), 17-19 Nov 1993)
TRANS/SC.3/R.158/Add.4 (13/09/1993), at https://www.unece.org/fileadmin/DAM/trans/doc/finaldocs/sc3/TRANS-SC3-R158ad4e.pdf (Accessed 10/11/2018) Arts 37(c), 45bis 94 Akande (n66), p.632 95 Ibid., p634 96 Morris(n71), p.14-15, 20-21, 25; Wedgwood (n71) p.199-200
international tribunal would violate the principle that an international tribunal cannot exercise jurisdiction where a Non-Party State’s rights and responsibilities form the very subject matter of the dispute without that State’s consent, aka the Monetary Gold doctrine.97
However, in the case of the ICC, this doctrine would not be violated, even where the accused acted in pursuit of an official State policy of a Non-Party State. The Monetary Gold doctrine renders a case inadmissible where a judgment requires a court to decide on the rights and responsibilities of the Non-Party State without its consent.98 The ICC in deciding cases that
include acts in pursuit of an official State policy is not required to make pronouncements on the responsibility of that State. This is because the very purpose of international criminal responsibility is to separate the responsibility of the individuals who ordered, directed or committed the crimes from the responsibility of the State. While State responsibility may flow from a policy of official acts that amount to crimes by individuals, the ICC does not engage in determinations about a State’s legal responsibility, and does not need to do so to convict individuals for war crimes, crimes against humanity or genocide. While crimes against humanity and genocide may require evidence of larger scale planning and preparation by a collective body – which could be a State – the definition of those crimes is not
dependent on establishing the legal responsibility of said body.99 While those committing war
crimes could be soldiers or officials in the pursuit of an official State policy,100 and the ICC
has jurisdiction over war crimes “in particular when committed as part of a plan or policy or as part of large-scale commission”;101 this does not require the pronouncement of the State’s
legal responsibility.102
Hence, the pronouncement of an individual’s criminal responsibility does not require a decision regarding the State. This position is entrenched in the Rome Statute, stating in Article 25(4) that: “No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.”103 Note, though an ICC
97 Monetary Gold Removed From Rome in 1943 (Italy v France, United Kingdom and United States), (15/06/1954) Judgment, ICJ Reports 1954, General List No.19, (ICJ), WorldCourts database at
http://www.worldcourts.com/icj/eng/decisions/1954.06.15_monetary_gold.htm (Accessed 15/11/2018), (Monetary Gold) para.19; Akande (no.66), p.625
98 Monetary Gold (n97), para.37
99 The nexus requirements in the Rome Statute are under Article 6 for genocide, and under Article 7 for crimes against humanity.
100 Akande (n66), p.634 101 Rome Statute (n20), Art 8(1) 102 Akande (n66), p.636-637 103 Akande (n66), p.635 -636
judgment may have political repercussions, a case is not rendered inadmissible because it only implicates the interests of a Non-Party State.104
2.1.4 Close
The ICC can legally exercise jurisdiction over Non-Party State nationals where they have committed international crimes on the territories of Party States without the State of nationality’s consent. This authority derives from the territorial criminal jurisdiction of the Party States and as such does not place obligations on Non-Party States, and is not in violation of international treaty law. Moreover, the delegation of criminal jurisdiction by States over non-nationals to international tribunals is established in precedent, and it is not made inadmissible through the Monetary Gold doctrine simply by involving the interests of a Non-Party State. Therefore, the fact that the alleged crimes on the territory of a Party State were committed by a national of a Non-Party State would not render the investigation or charges against the individual inadmissible, and thus this jurisdictional ground remains valid.
2.2 The Complementarity Principle
The US’s position maintains that the OTP has incorrectly applied the complementarity principle under the Rome Statute when requesting for a formal investigation into the
Afghanistan situation that includes US nationals, rendering the proceedings inadmissible. In order to consider this claim, the dynamics of the complementarity principle must first be evaluated according to the criteria arising from the Rome Statute and the ICC’s
jurisprudence. Then, it will be considered whether the request for the authorisation for a formal investigation illustrates an invalid approach to the complementarity principle. In considering the nature of complementarity, it will be demonstrated that the US’s position suggests an incorrect application of the principle, particularly as it does not address the core requirements necessary to illustrate inadmissibility.
2.2.1 Complementarity and Established Jurisprudence
The principle of complementarity is among the most fundamental characteristics of the Court, which entails that the ICC will complement and give priority to national proceedings in investigating and prosecuting conduct within their jurisdiction.105 Therefore, it is important to
assess the dynamics of this rule to understand the methodology required in its application. This requires evaluation of the complementarity principle according to the black letter of the 104 Akande (n66), p.367
105 Para.10 of the preamble and Article 1 of the Rome Statute state that the Court “shall be complementary to national criminal jurisdictions”.
Rome Statute and relevant established jurisprudence. Notably, a State challenging
admissibility of a case bears the burden of proof to illustrate that the following conditions have been fulfilled.106
According to the complementarity principle, the ICC is to act under its mandate only where the relevant States are unable or unwilling to do so, as enshrined in Article 17 of the Rome Statute. This is to ensure the respect for the ne bis in idem standard (further reiterated in Article 20); and to strike a balance between State sovereignty and the fight against impunity. In applying the test on complementarity under Article 17(1)(a-c):107
“… the Court must determine that a case is inadmissible where:
a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
c) The person concerned has already been tried for conduct which is the subject of complaint, and a trial by the court is not permitted under art 20, paragraph 3…”
Hence, where a State is or has been genuinely willing and able to conduct an investigation or prosecution, the case before the Court is inadmissible. The Court may only act where justice at the national level has not or cannot be achieved.108 While the method of application of this
article is not clearly stated in the Statute, ICC jurisprudence has further clarified this matter. 106 The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Judgment on the
appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled
“Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, (30/08/2011) ICC-01/09-01/11–307 (ICC OA), ICC database at
https://www.icc-cpi.int/CourtRecords/CR2011_13814.PDF (Accessed 05/10/2018) (Ruto Admissibility), para.62; and The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali,
Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, (30/05/2011) ICC-01/09-02/11-274 (ICC OA), WorldCourts
database at http://www.worldcourts.com/icc/eng/decisions/2011.08.30_Prosecutor_v_Muthaura1.pdf (Accessed 05/10/2018) (Muthaura Admissibility), para.61
107 Rome Statute (n20)
108 Michele Tedeschini, ‘Complementarity in Practice: the ICC’s Inconsistent Approach in the Gaddafi and
Al-Senussi Admissibility Decisions’(2015), Summer Edition, Amsterdam Law Forum, p.76-97 at
When assessing an admissibility challenge under article 17(1)(a-b), the Court applies a two-tier test.109 First, the existence of relevant national proceedings must be established. Then, the
inability or unwillingness for genuine procedures can be evaluated.
2.2.1.1 National Proceedings Requirement First, it must establish whether:
a) there is an ongoing investigation or prosecution in a relevant State, or
b) whether there have been investigations in the past, and the State decided not to prosecute the person concerned.
Therefore, the existence of relevant proceedings must be established. Where there is no presence of relevant proceedings due to inaction, the genuine nature of the proceedings does not arise as complementarity is primarily concerned with the presence or absence of national proceedings.110 Only once the existence of relevant national proceedings is established does
the second tier of the test become relevant.111
While the Rome Statute is admittedly lacking in establishing the elements required for the national proceedings to satisfy a challenge of admissibility on the grounds of the
complementarity principle, ICC PTC’s jurisprudence establishes a ‘same person/same conduct test’. Accordingly, the domestic proceedings must encompass the same person and conduct that are the subject of the case before the ICC.112 While the ‘same person’ element is
relatively clear, some clarification is required for the ‘same conduct’ element. The focus should be on the alleged conduct, rather than the legal characteristic being assessed in the domestic proceedings.113 It is irrelevant whether the proceedings are carried out under the
auspice of an international crime, and hence can be classified as an ‘ordinary crime’ in the 109 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the Appeal of Mr. Germain
Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case,
(25/09/2009) ICC-01/04-01/07-1497 (ICC OA), ICC database at
https://www.icc-cpi.int/CourtRecords/CR2009_06998.PDF (Accessed 05/10/2018) (Katanga Admissibility), para.82 110 Ibid., para.75
111 Ibid., para.82
112 The Prosecutor v. Thomas Lubanga Dyilo, Decision concerning Pre-Trial Chamber I’s Decision of 10
February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo,(24/02/2006) ICC-01/04-01/06-8-US-Corr (ICC PTC I), ICC database at
http://www.worldcourts.com/icc/eng/decisions/2006.02.24_Prosecutor_v_Lubanga.pdf (Accessed 05/10/2018) Annex I para.31, (Lubanga Admissibility)
113 The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi ,Judgment on the appeal of Libya against
the decision of the Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”,(21/05/2014)ICC-01/11-01/11-547-Red, (ICC OA), ICC database at
https://www.icc-cpi.int/CourtRecords/CR2014_04273.PDF (Accessed 05/10/2018) (Gaddafi Admissibility), para.1
