[Senate Hearing 105-724]
[From the U.S. Government Publishing Office]
S. Hrg. 105-724
IS A U.N. INTERNATIONAL CRIMINAL COURT IN THE U.S. NATIONAL INTEREST?
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HEARING
BEFORE THE
SUBCOMMITTEE ON INTERNATIONAL OPERATIONS
OF THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
__________
JULY 23, 1998
__________
Printed for the use of the Committee on Foreign Relations
Available via the World Wide Web: http://www.access.gpo.gov/congress/senate
U.S. GOVERNMENT PRINTING OFFICE
50-976 cc WASHINGTON : 1998
_______________________________________________________________________
For sale by the U.S. Government Printing Office,
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON FOREIGN RELATIONS
JESSE HELMS, North Carolina, Chairman
RICHARD G. LUGAR, Indiana JOSEPH R. BIDEN, Jr., Delaware
PAUL COVERDELL, Georgia PAUL S. SARBANES, Maryland
CHUCK HAGEL, Nebraska CHRISTOPHER J. DODD, Connecticut
GORDON H. SMITH, Oregon JOHN F. KERRY, Massachusetts
CRAIG THOMAS, Wyoming CHARLES S. ROBB, Virginia
ROD GRAMS, Minnesota RUSSELL D. FEINGOLD, Wisconsin
JOHN ASHCROFT, Missouri DIANNE FEINSTEIN, California
BILL FRIST, Tennessee PAUL D. WELLSTONE, Minnesota
SAM BROWNBACK, Kansas
James W. Nance, Staff Director
Edwin K. Hall, Minority Staff Director
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SUBCOMMITTEE ON INTERNATIONAL OPERATIONS
ROD GRAMS, Minnesota, Chairman
JESSE HELMS, North Carolina DIANNE FEINSTEIN, California
SAM BROWNBACK, Kansas CHRISTOPHER J. DODD, Connecticut
GORDON H. SMITH, Oregon JOHN F. KERRY, Massachusetts
(ii)
C O N T E N T S
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Page
Bolton, Hon. John R., Former Assistant Secretary of State for
International Organization Affairs; Senior Vice President,
American Enterprise Institute, Washington, D.C................. 28
Casey, Lee A., Attorney, Hunton & Williams, Washington, D.C...... 32
Scharf, Michael P., Professor of Law, and Director, Center for
International Law and Policy, New England School of Law,
Boston, Massachusetts.......................................... 34
Scheffer, Hon. David J., Ambassador-at-Large for War Crimes
Issues; Accompanied by Mary Ellen Warlow, U.S. Department of
Justice........................................................ 9
Appendix
Additional Questions Submitted for the Record by the Committee to
Ambassador David J. Scheffer................................... 45
Prepared Statements of Hearing Witnesses
Prepared Statement of John R. Bolton......................... 48
Prepared Statement of Lee A. Casey........................... 64
Prepared Statement of Michael P. Scharf...................... 72
Additional Statements Submitted for the Record
Statement Submitted by The Lawyers Committee for Human Rights 75
Statement Submitted by Richard Dicker of Human Rights Watch.. 76
Related Documents
Rome Statute of the International Criminal Court............. 79
Statement of the United States Delegation to the Preparatory
Committee on the Establishment of an International Criminal
Court...................................................... 129
Statement of the United States Delegation on Elements of
Offenses................................................... 129
Proposal Submitted by the United States of America on
Elements of Offences for the International Criminal Court.. 131
Reference Paper Submitted by the United States of America on
Rules of Evidence of the International Criminal Court...... 142
Statement of the United States Delegation on ``Article 11
bis--Preliminary Rulings Regarding Admissibility''......... 145
Proposal Submitted by the United States of America on Article
11 bis.--Preliminary Rulings Regarding Admissibility....... 147
The Concerns of the United States Regarding the Proposal for
a Proprio Motu Prosecutor.................................. 147
(iii)
IS A U.N. INTERNATIONAL CRIMINAL COURT IN THE U.S. NATIONAL INTEREST?
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THURSDAY, JULY 23, 1998
U.S. Senate,
Subcommittee on International Operations,
Committee on Foreign Relations,
Washington, DC.
The subcommittee met at 10:08 a.m., in room SD-419, Dirksen
Senate Office Building, Hon. Rod Grams, chairman of the
subcommittee, presiding.
Present: Senators Helms, Grams, Ashcroft, Feinstein, and
Biden.
Senator Grams. I apologize for being late, but I would like
to call this hearing of the International Operations
Subcommittee on the creation of the international court into
session. I do have an opening statement; and I would like to
defer to my colleague from California, Senator Feinstein, and
then we would hear from our panel this morning. Thank you very
much.
Well, Ambassador Scheffer, I want to thank you for making
the effort to come before this committee so soon after the
completion of the U.N. conference in Rome. I understand that
you probably have not had time to fully recover from what was
by all accounts a grueling round of negotiations on the
creation of the International Criminal Court.
However, given this court claims universal jurisdiction--in
other words, the right to prosecute United States citizens even
though the U.S. is not a party to the treaty--it is important
for Congress and the American people to become apprised of the
details regarding the court sooner rather than later.
Now, while I am relieved that the administration voted
against the treaty in Rome, I am convinced that it is not in
itself sufficient to safeguard our Nation's interests. The
United States must aggressively oppose this court each step of
the way, because the treaty establishing an international
criminal court is not just bad, but I believe it is also
dangerous.
The proposed ICC is not a part of the international system.
It sits alone and above the system, and that is by design. At
present international law regarding peace and security is
largely whatever the Security Council says that it is. With the
creation of the International Criminal Court, that will no
longer be the case.
This is a great victory for the critics of the Security
Council that have finally achieved their goal of diluting the
power of the permanent five with the realization that their
bids to increase the number of permanent members were destined
to ultimately fail. They found a way to circumvent the
authority of the Security Council altogether; and ironically,
by undermining the role of the Security Council, this court
could have the effect of destabilizing the international arena
instead of securing it.
Supporters of this court can proclaim that it will act as a
deterrent against the commission of war crimes and other
atrocities, but the evidence I believe points to the contrary.
Saddam Hussein and the next Pol Pot will not be deterred by the
indictments of the International Criminal Court any more than
Bosnian Serb strongmen have been deterred by their indictments
by the Yugoslav War Crimes Tribunal when they undertook their
massacre.
The fact remains, the most effective deterrent is the
threat of military action; and this court is undermining the
ability of the United States to do that very thing. The ICC may
issue a series of indictments, but unless these war criminals
are defeated and they are stripped of their power, they will
never be brought to justice.
It is ironic that the same countries which look to the
United States to be the global enforcer have now created a
court which inhibits our ability to project force. By claiming
universal jurisdiction, this treaty will force us to reconsider
the deployment of our troops around the world, even though we
are not a party to the treaty. At the very least, we will have
to renegotiate our status of force arrangements.
In some circumstances, as our Secretary of Defense
reportedly noted, we may decide that the best policy is to
withdraw our troops; and when the international community comes
to us requesting that American soldiers participate in a
peacekeeping mission, we will have to factor into our
calculations the threat of our soldiers being turned over to
the ICC.
A Dutch delegate offered faint praise of this international
criminal court stating--and I quote--``I won't say we gave
birth to a monster, but the baby has some defects.'' Well, I
respectfully disagree, the International Criminal Court is a
monster.
First, the ICC will have the final determination over
whether it has jurisdiction over the case. Under a system of
complementarity, the ICC can override the decision of a
nation's judicial system and it can pursue a case if it decides
that a State is unwilling or unable to do so. In other words,
if an ICC prosecutor wanted to investigate and charge the
President of the United States for a bombing raid like the one
President Reagan conducted in Libya, our only way to prevent
the case from going forward would be to have our own Justice
Department investigate the President. If the U.S. Government
then declined to prosecute, it would still be up to the
judgment of the ICC whether to prosecute and pursue the case.
A decision by the International Criminal Court to prosecute
Americans for military action would not be the first time that
an international court tried to undercut our pursuit of our
national security interests. In 1984, the World Court ordered
the U.S. to respect Nicaragua's borders and to halt the mining
of its harbors by the CIA. In 1986, the World Court found our
country guilty of violations of international law through its
support of the Contras and ordered the payment of reparation to
Nicaragua. Needless to say, we ignored both of those rulings.
Second, the International Criminal Court prosecutor will
have the power to initiate prosecutions without a referral from
the Security Council or state parties. There will be no
effective screen against politically motivated prosecutions
from being brought forward.
Third, the judges will not be confined to those from
democratic countries with rule of law. The judges will be
elected by a super majority of the state parties. Given that,
the group of 77 developing countries in the U.N. General
Assembly, which routinely vote against the United States and
which is really more like 160 countries, could represent such a
majority. This is not much of a screen.
As for eligibility to service, the U.S. proposal to require
judges to have both criminal trial and international law
experience was rejected as too high of a bar to meet. Of
course, the ICC judges must possess all of the qualifications
required in their respective states for appointment to the
highest judicial offices, and I wonder what that means in Sudan
or in Iran.
Finally, it turns the functioning of the Security Council
on its head and, I think, sets a very bad precedent. The
Security Council must act affirmatively to stop a prosecutor
from taking up a case. This means that the U.S. loses its veto,
and it would need to convince a majority of members to vote
with us to stop the International Criminal Court from
proceeding.
Supporters of this treaty are banking on the fact that the
United States will allow this court to flourish and gain
legitimacy over time. We must not allow that to happen. Even if
it is weak at its inception, the Court's scope and its power
can and will grow. This court will be an international
institution without checks or balances, accountable to no state
or institution for its actions, and there will be no way to
appeal its decisions except through the Court itself.
Whatever lines are drawn in Rome can be erased or redrawn
at some future date by a majority of state parties, and as the
head of the Swiss delegation pointed out, the rules of the
Court will be developed over time by the Court itself through
custom and precedent.
Now, we must affirm that the United States will not cede
its sovereignty to an institution which claims to have the
power to override the United States legal system and to pass
judgment on our foreign policy actions. We must refuse to allow
our soldiers and Government officials to be exposed to trial
for promoting the national security interests of the United
States and deny the international court's self-declared right
to investigate, prosecute, convict, and punish U.S. citizens
for supposed crimes committed on American soil which is
arguably unconstitutional.
The only fail-safe way to ensure these results is to make
sure that this treaty never is ratified by the 60 nations
necessary for it to go into force. Should this court come into
existence, we must have a firm policy of total non-cooperation,
no funding, no acceptance of its jurisdiction, no
acknowledgement of its rulings, and absolutely no referral of
cases by the Security Council.
I think we can all agree that the current U.N. and ad hoc
tribunal system is imperfect. It is certainly inefficient. The
need to set up an administrative, investigative, and judicial
structure in each case creates a number of bureaucratic hurdles
and significant delays in getting these tribunals up and
operating.
Many supporters of an international criminal court point to
these failings as evidence that a permanent court is needed.
However, this treaty does not create a permanent architecture
to support the current tribunal system. It creates an
independent international body with unprecedented power, super
national power, and I for one am not willing to trade the
sovereignty of this country for gains in efficiency, no matter
how noble the cause.
Mr. Ambassador, the U.S. lost the big battles over
universal jurisdiction, the self-initiating prosecutor, a
Security Council screen, the crime of aggression, and state
consent. I hope that now the administration will actively
oppose this court to make sure that it shares the same fate as
the League of Nations and collapses without U.S. support for
this court truly I believe is the monster and it is the monster
that we need to slay.
I want to thank you.
Senator Feinstein.
Senator Feinstein. I would like to begin by thanking you,
Mr. Chairman, for conducting this hearing so quickly after the
vote in Rome last week.
Frankly, I am of two minds regarding the hearing and the
International Criminal Court that emerged from the Rome
conference.
On one hand, I truly believe the President is correct when
he said that nations all around the world who value freedom and
tolerance should establish a permanent international court to
prosecute, with the support of the United Nations Security
Council, serious violations of humanitarian law. And, as we
approach the 21st century, I think we have got to make it
really clear that individuals who participate in serious crimes
against humanity cannot act with impunity. I had hoped we
learned this lesson in World War II, and too many times in this
century, even since World War II, we have witnessed the terror
of genocide, of mass rape, and of ethnic cleansing. With the
explicit labeling and recognition of war crimes and crimes
against humanity, including significantly such acts as rape and
sexual slavery, the establishment of an international criminal
court would send a strong message to those contemplating
committing such crimes and, I believe, could play an
instrumental role in making sure that the sordid chapter of
human history in which such acts are employed is brought to a
close.
On the other hand, I share the concerns which ultimately
led the United States to determine that it could not support
the draft statute that emerged in Rome. And I think the
chairman of this subcommittee has rather forcefully made those
points. None of us would like to see a court that frivolously
prosecutes Americans or which acts with politics, not justice,
as its motivating force. I think the question is, to what
degree is a member of the armed forces that might be deployed
abroad really subject to this kind of politics, if one chooses
to play it, by giving the prosecutor some kind of untrammeled
authority?
But it seems to me that the bottom line of the Rome
conference is that the United States is still left facing what
Ambassador Scheffer, in a speech this past September, termed
``a gap in international criminal justice.'' This gap exists
because of the lack of an international criminal court. This
gap, in my mind, should be filled.
There can be little doubt that the problem of filling this
gap is a complex one, and that it is extremely difficult to
arrive at an effective and a nonpolitical solution. The effort
by Ambassador Scheffer and others in Rome is testament to these
difficulties, but I truly believe that the victims of the
atrocities and the war crimes of this century demand our
continued effort.
Thus, although some may see the result of Rome as an end to
the International Criminal Court, I would like to think that we
remain still at a crossroads, and that if the other members of
the international community go forward with the endeavor, the
United States might still seek amendments and might one day be
able to join them. I have been one that has been very
concerned, particularly with the former Yugoslavia, in writing
letters to the President, in writing letters to the Secretary-
General of the United Nations, that the war criminals, the
Karadzics and the Mladics of the world, must be brought to
justice. So, it is with some irony that I now find myself
questioning some of the strictures laid down in Rome with
respect to the development of this court.
It seems to me that reasonable people ought to be able to
agree on a set of definitions and on a protocol and a procedure
that in effect would take the political maneuverings out of the
designation of war criminal and set certain specific beginning
causes with which we all agree as the kind of opening to really
test the value of an international criminal court. Apparently
that is not going to happen.
So, I view our present predicament with some amount of
dismay. To many in the world, whether we like it or not, this
country sometimes acts wrongly and we think we are always
right, and I share that belief. But if you are talking about an
international criminal court, we have to take those things
where we can agree and move them forward onto the agenda and
into the domain of the development of this court.
So, I look with great interest to see what Ambassador
Scheffer has to say today and then be able to ask some
questions. I thank you, Mr. Chairman.
Senator Grams. Thank you, Senator. We have also been joined
by Senator Helms. Senator?
Senator Helms. Thank you very much, Mr. Chairman, for
putting up with me this morning. I try not to make long
speeches, but this one is one that I think deserves a lot of
discussion and a lot of contemplation. I thank you for calling
this hearing, the subject of which is exceedingly significant,
and I hope I may be forgiven by those who feel that I am
talking too long.
Now, I do not agree with the able and charming Senator from
California. We do not agree always, but I respect her always.
It is no secret that the United States walked away from
this treaty negotiated in Rome to establish a permanent United
Nations international criminal court. That was certainly the
right thing for you to do. I appreciate your having done it.
I am aware that the administration was eager to sign that
treaty, so the very fact that you, Mr. Ambassador, declined to
do so speaks volumes about how unwise this treaty adopted in
Rome really is.
Since the signing ceremony, several governments have made
clear their belief that the United States will eventually
succumb to international pressure and join the Court.
Now, let me be clear, at least from one Senator's position,
the Rome treaty is irreparably flawed. The statute purports to
give this international court jurisdiction over American
citizens even if the United States refuses to sign or ratify
the treaty. It empowers this court to sit in judgment of the
United States foreign policy. It creates an independent
prosecutor accountable to no government or institution for his
actions, and it represents a massive dilution of the United
Nations Security Council's powers and of United States veto
power within that Security Council. In short, this treaty
represents a very real threat to our military personnel and to
our citizens and certainly to our national interests.
Mr. Ambassador, I commend you for voting no on this fatally
flawed treaty, but I also must be clear, rejecting this treaty
is not enough. The United States must fight this treaty.
Canadian Foreign Minister Lord Ashworthy asked you a pretty
good question in Rome. He said--and I quote--``The question is
whether the United States treats the Court with benign neglect
or whether they''--the United States--``are aggressively
opposed.'' He is right about that.
Now, what galls me is that we sent American personnel
overseas twice in this century, along with expenditure of
billions of dollars, to save the bacon of countries who voted
against us in this regard. And I damned well resent that, and
they better get used to the notion that there are several of us
in the Senate who feel the same way.
But we must, Mr. Ambassador, I think be aggressively
opposed to this court, and let me cite just a few examples why
I say that.
The treaty includes in one of its ``core crimes'' something
called the crime of aggression. The countries negotiating the
treaty in Rome were unable to reach agreement on just what
constitutes a crime of aggression. Well, I think I can
anticipate what will constitute a crime of aggression in the
eyes of this court. It will be a crime of aggression when the
United States of America takes any military action to defend
the national interest of the American people unless the United
States first seeks and receives the permission of the United
Nations. And I say baloney to that.
So, what this court proposes to do is this. It will sit in
judgment of the national security policy of the United States.
Now, just imagine what would have happened if this court had
been in place during the U.S. invasion of Panama or the U.S.
invasion of Grenada or the United States bombing of Tripoli. In
none of those cases, did the United States seek permission from
the United Nations to defend our interest. So long as there is
breath in me, the United States will never--and I repeat never,
never--allow its national security decisions to be judged by
any international criminal court.
Now, we all know the history of how in the 1980's the World
Court attempted to declare U.S. support for the Nicaraguan
contras to be a violation of international law. The Reagan
administration simply ignored the World Court because the World
Court had no jurisdiction and no authority in this matter.
Well, this court declared that the American people are
under its jurisdiction no matter what the U.S. Government says
or does about it. So, you see the delegates in Rome included a
form of universal jurisdiction in the Court's statute. This
means that even if the United States never signs the treaty and
even if the United States refuses to ratify it, the countries
participating in this court will regard American soldiers and
citizens to be within the jurisdiction of this international
criminal court. And again, I say baloney. That, Mr. Chairman,
is nonsense in short. It is an outrage that will have grave
consequences for our bilateral relations with every one of the
countries that signs and ratifies this treaty, and they better
understand this at the outset.
I understand that Germany was the intellectual author of
this universal jurisdiction provision. Mr. Chairman, we have
thousands of American soldiers stationed in Germany right now.
Will the German Government now consider those American forces
under the jurisdiction of the International Criminal Court?
Now, I support keeping forces in Germany but not if Germany
insists on exposing them to the jurisdiction of the ICC. The
administration will now have to renegotiate our status of
forces agreements with Germany and other signatory states, and
we must make clear to these governments that their refusal to
do so will force us to reconsider our ability to station forces
on their territory, participate in peacekeeping operations, and
meet our Article 5 commitments under the NATO charter. We will
have no choice about that.
Because this court has such wide-ranging implications for
the United States and the American people, I shall seek
assurances from the Secretary of State on the following points.
One, Article 13(b) permits a case to be referred to this
court by the Security Council. The United States must never
vote in favor of such a referral, Mr. Ambassador.
The United States will not provide any assistance
whatsoever to the Court or to any other international
organization in support of the Court either in funding or in-
kind contributions or other legal assistance.
The United States shall not extradite any individual to the
Court or directly or indirectly refer a case to the Court.
The United States shall include in all of its bilateral
extradition treaties a provision that prohibits a treaty
partner from extraditing U.S. citizens to this court.
The United States shall renegotiate all of its status of
forces agreements to include a provision that prohibits a
treaty partner from extraditing U.S. soldiers to this court and
will not station American forces in any country that refuses to
accept such a prohibition.
The United States shall not permit a U.S. soldier to
participate in any NATO, United Nations, or other international
peacekeeping mission until the United States has reached
agreement with all of our NATO allies and the United Nations
that no United States soldier will be subject to the
jurisdiction of this court.
Mr. Chairman, I have been accused by advocates of this
court of engaging in 18th century thinking. One of the smart
columnists who knows it all said that the other day. Well, I
find this to be a compliment. It was 18th century thinking that
gave us our Constitution. It was 18th century thinking that
gave us the fundamental protections of our Bill of Rights. And
I will gladly stand with James Madison and the rest of our
Founding Fathers over that collection of ne'er do wells in Rome
any day of the week.
If Madison and the other Founding Fathers were here today,
I believe that they would support the assertion that any treaty
which undermines those constitutional procedures and
protections, as this one clearly does, will be dead on arrival
when it reaches the Foreign Relations Committee. Let us close
the casket right now, Mr. Ambassador.
Thank you, Mr. Chairman.
Senator Grams. Thank you very much, Senator Helms. Senator
Ashcroft?
Senator Ashcroft. Thank you, Mr. Chairman. I want to
associate myself, to the extent that I am eligible to do so,
with the chairman of the full committee. I thought that was an
outstanding presentation.
I want to thank you, Mr. Chairman, for holding this
hearing. The International Criminal Court in my judgment
represents a clear and continuing threat to the national
interests of the United States despite our decision not to
participate.
I might add that I am very pleased that the administration
has made the wise decision not to participate, but I think it
is important to consider carefully what the chairman of the
full committee has just reiterated, that some complicit
cooperation in the operation of a court in which we did not
fully participate in forming could be as damaging as full
participation. Therefore, our need to be vigilant in this
respect is continuing. I was pleased that the United States
voted against the passage of this global criminal court.
However, I do remain concerned that the danger posed by
this court has not passed. The administration has already come
under criticism for its rejection of the Court and there will
be considerable pressure from proponents of the Court for the
administration to reconsider its opposition. Even more
disturbing is the possibility that the Court would assert
jurisdiction over American soldiers despite America's refusal
to join the Court. The Court's claim of universal jurisdiction
smacks of arrogance and creates deep concerns about how the
United States will interact with this court and how the Court's
existence could cloud decisions about when to deploy American
soldiers.
The administration should just say no to any efforts to get
the United States to reconsider or to signal any degree of
compliance, formal or informal, with the Court.
As a member of the Senate Foreign Relations Committee and
as Chairman of the Subcommittee on the Constitution, Federalism
and Property Rights, I find the International Criminal Court
profoundly troubling. If there is one critical component of
sovereignty, it is the authority to define crimes and
punishment. This court strikes at the heart of sovereignty by
taking this fundamental power away from individual countries
and giving it to international bureaucrats.
No aspect of the Court is more troubling, however, than the
fact that it has been framed without any apparent respect for--
and indeed in direct contravention of--the United States
Constitution.
First and foremost, I remain concerned by the possibility
that Americans could be dragged before this court and denied
the protection of the Bill of Rights. Even more fundamentally,
I am concerned that the administration participated in these
negotiations without making any effort to insist that the
proposed international criminal court incorporate and honor the
Bill of Rights. Even if one concedes that such a court might be
needed, which I emphatically do not, we should certainly insist
on respect for the Bill of Rights.
The proposed court negotiated in Rome neither reflects nor
guarantees the protections of the Bill of Rights. The
administration was right to reject the Court and must remain
steadfast in its refusal to join a court that stands as a
rejection of America's constitutional values.
Had the administration indicated a desire to join this
court, I had already signaled that I would have held hearings
in the Constitution Subcommittee to examine the constitutional
issues raised by the International Criminal Court in more
detail. In light of the administration's current position,
these hearings might prove to be unnecessary. I am speaking of
hearings in the Judiciary Committee's Subcommittee on the
Constitution which I have the privilege of chairing.
However, if there is any indication that the administration
may reconsider its position, I stand ready to hold hearings in
the Judiciary Committee.
I have a longer statement. It might be hard for you to
believe, but I do, and I would like to submit it for the
record.
Senator Grams. Without objection.
Senator Ashcroft. And if I have time, I would like to have
the opportunity to direct some questions to the Ambassador.
[The prepared statement of Senator Ashcroft follows:]
Prepared Statement of Senator Ashcroft
Mr. Chairman, I want to thank you for holding this hearing. the
International Criminal Court represents a clear and continuing threat
to the national interest of the United States, despite our decision not
to participate. I was pleased that the United States voted against
final passage of this global criminal court. However, I remain
concerned that the danger posed by this Court has not passed.
The Administration has already come under criticism for its
rejection of the Court, and there will be considerable pressure from
proponents of the Court to reconsider the Administration's opposition.
Even more disturbing is the possibility that the Court would assert
jurisdiction over American soldiers, despite the American refusal to
join the Court. The Court's claim to universal jurisdiction smacks of
arrogance and creates deep concerns about how the United States will
interact with this Court and how the Court's existence could cloud
decisions about when to deploy American soldiers. The Administration
should ``just say no'' to any efforts to get the United States to
reconsider or to signal any degree of compliance--formal or informal--
with the Court.
As both a Member of the Senate Foreign Relations Committee and as
Chairman of the Subcommittee on the Constitution, Federalism and
Property Rights, I find the International Criminal Court profoundly
troubling. If there is one critical component of sovereignty it is the
authority to define crimes and punishments. This Court strikes at the
heart of sovereignty by taking this fundamental power away from
individual countries and giving it to international bureaucrats.
There are other aspects of this Court that are equally troubling.
As examples, the authorization of international independent
prosecutors, the expense of such a permanent court, and the lack of any
clear limits on the Court's jurisdiction are all alarming. But no
aspect of this Court is more troubling than the fact that it has been
framed without any apparent respect for--indeed, in direct
contravention of--the United States Constitution.
As Chairman of the Constitution Subcommittee, I have a number of
particular concerns about the Court. First and foremost, I remain
concerned by the possibility that Americans could be dragged before
this Court and denied the protections of the Bill of Rights.
Even more fundamentally, I am concerned that the Administration
participated in these negotiations without making any effort to insist
that the proposed International Criminal Court incorporate and honor
the Bill of Rights. Even if one concedes that we need an International
Criminal Court--which I emphatically do not--we should certainly insist
on respect for the Bill of Rights as the price of American admission.
America's ideals and values are ascendant in the post-Cold War
world. America's position as world leader is, in no small part, a
product of a Constitution that is the envy of the world. The
Administration should be justly proud of that Constitution and should
have insisted that those principles form the cornerstone for any
International Criminal Court. That unfortunately was not the official
position of this Administration.
In the United States, there is a right to a jury of your peers. In
the United States, there is a privilege against self-incrimination. In
the United States, we have eliminated the prospect of criminal
liability for ill-defined common law crimes. In the United States, the
Constitution limits the authority of prosecutors. None of these
protections will be guaranteed for defendants brought before this
international star chamber.
The proposed Court negotiated in Rome neither reflects nor
guarantees the protections of the Bill of Rights. The Administration
was right to reject the Court and must remain steadfast in its refusal
to join a court that stands as a rejection of American constitutional
values.
Had the Administration indicated a desire to join this Court, I
would have held hearings in the Constitution Subcommittee to examine
the constitutional issues raised by this Court in more detail. In light
of the Administration's current position, those hearings may prove
unnecessary. I do, however, have a few questions for Ambassador
Scheffer today about where the Administration plans to go from here,
and if there is an any indication that the Administration may
reconsider its position, I stand ready to hold hearings.
The United States can never lessen its commitment to ensuring that
this Court does not pose a threat to the constitutional rights of
American citizens. We must never trade away American sovereignty and
the Bill of Rights so that international bureaucrats can sit in
judgment of the United States military and our criminal justice system.
In Monday's New York Times, there is an opinion piece in which
Anthony Lewis chastises the United States for missing a historic
opportunity by failing to vote in favor of the International Criminal
Court. The author states that the vote to form the International
Criminal Court ``will be seen as a turn in the road of history.'' That
is perhaps the only point in the piece with which I agree. The approval
of this Court was indeed ``a turn in the road of history.'' By ceding
the authority to define and punish crimes, many nations took an
irrevocable step to the loss of national sovereignty and the reality of
global government. I, for one, am heartened to see that the United
States took the right turn on the road of history, and I will work hard
to ensure that there is no backtracking.
Senator Grams. Thank you very much.
Ambassador, we want to welcome you. I know you just
returned to the States from Rome earlier this week and have put
in some long days. We appreciate your being here this morning
and we look forward to your statement. Go ahead, sir.
STATEMENT OF HON. DAVID J. SCHEFFER, AMBASSADOR-AT-LARGE FOR
WAR CRIMES ISSUES; ACCOMPANIED BY MARY ELLEN WARLOW, U.S.
DEPARTMENT OF JUSTICE
Ambassador Scheffer. Thank you, Mr. Chairman and Mr.
Chairman and Senator Feinstein and Senator Ashcroft. Thank you
for the opportunity to discuss with the committee the
developments in Rome this summer relating to the establishment
of a permanent international criminal court. As you know, I had
the pleasure of being joined by a number of committee staffers
during the Rome conference, and I am sure they brought back to
you their own perspectives on the negotiations.
Mr. Chairman, no one can survey the events of this decade
without profound concern about worldwide respect for
internationally recognized human rights. We live in a world
where entire populations can still be terrorized and
slaughtered by nationalistic butchers and undisciplined armies.
We have witnessed this in Iraq, in the Balkans, and in Central
Africa. Internal conflicts dominate the landscape of armed
struggle, and impunity too often shields the perpetrators of
the most heinous crimes against their own people and others. As
the most powerful nation committed to the rule of law, we have
a responsibility to confront these assaults on humankind. One
response mechanism is accountability, namely to help bring the
perpetrators of genocide, crimes against humanity, and war
crimes to justice. If we allow them to act with impunity, then
we will only be inviting a perpetuation of these crimes far
into the next millennium. Our legacy must demonstrate an
unyielding commitment to the pursuit of justice.
That is why, since early 1995, U.S. negotiators labored
through many ad hoc and preparatory committee sessions at the
United Nations in an effort to craft an acceptable statute for
a permanent international criminal court using as a foundation
the draft statute prepared by the International Law Commission
in 1994. Our experience with the establishment and operation of
the International Criminal Tribunals for the former Yugoslavia
and Rwanda had convinced us of the merit of creating a
permanent court that could be more quickly available for
investigations and prosecutions and more cost efficient in its
operation. But we always knew how complex the exercise was, the
risks that would have to be overcome, and the patience that we
and others would have to demonstrate to get the document right.
We were, after all, confronted with the task of fusing the
diverse criminal law systems of nations and the laws of war
into one functioning courtroom in which we and others had
confidence criminal justice would be rendered fairly and
effectively. We also were drafting a treaty-based court in
which sovereign governments would agree to be bound by its
jurisdiction in accordance with the terms of its statute. How
so many governments would agree with precision on the content
of those provisions would prove to be a daunting challenge.
When some other governments wanted to rush to conclude this
monumental task, even as early as the end of 1995, the United
States pressed successfully for a more methodical and
considered procedure for the drafting and examination of texts.
The United States delegation arrived in Rome on June 13th
with critical objectives to accomplish in the final text of the
statute. Our delegation included highly talented and
experienced lawyers and other officials from the Departments of
State and Justice, the Office of the Secretary of Defense, the
Joint Chiefs of Staff, the U.S. mission to the United Nations,
and from the private sector. America can be proud of the
tireless work and major contributions that these individuals
made to the negotiations.
Among the objectives we achieved in the statute of the
Court were the following:
an improved regime of complementarity, meaning
deferral to national jurisdictions, that provides
significant protection, although not as much as we had
sought;
a role preserved for the U.N. Security Council,
including the affirmation of the Security Council's
power to intervene to halt the Court's work;
sovereign protection of national security
information that might be sought by the Court;
broad recognition of national judicial procedures as
a predicate for cooperation with the Court;
coverage of internal conflicts, which comprise the
vast majority of armed conflicts today;
important due process protections for defendants and
suspects;
viable definitions of war crimes and crimes against
humanity, including the incorporation in the statute of
elements of offenses (We are not entirely satisfied
with how the elements have been incorporated in the
treaty, but at least they will be a required part of
the Court's work. We also were not willing to accept
the wording proposed for war crimes covering the
transfer of population into occupied territory);
some progress on recognition of gender issues;
acceptable provisions based on command
responsibility and superior orders;
rigorous qualifications for judges;
acceptance of the basic principle of state party
funding;
an Assembly of States Parties to oversee the
management of the Court;
reasonable amendment procedures; and
a sufficient number of ratifying states before the
treaty can enter into force, namely 60 governments have
to ratify the treaty.
The U.S. delegation also sought to achieve other objectives
in Rome that in our view are critical. I regret to report that
certain of these objectives were not achieved and therefore we
could not support the draft that emerged on July 17th.
First, while we successfully defeated initiatives to
empower the Court with universal jurisdiction, a form of
jurisdiction over non-party states was adopted by the
conference despite our strenuous objections. In particular, the
treaty specifies that, as a precondition to the jurisdiction of
the Court over a crime, either the state of territory where the
crime was committed or the state of nationality of the
perpetrator of the crime must be a party to the treaty or have
granted its voluntary consent to the jurisdiction of the Court.
We sought an amendment to the text that would have required
both of these countries to be party to the treaty or, at a
minimum, would have required that only the consent of the state
of nationality of the perpetrator be obtained before the Court
could exercise jurisdiction. We asked for a vote on our
proposal, but a motion to take no action was overwhelmingly
carried by the vote of participating governments in the
conference.
We are left with consequences that do not serve the cause
of international justice. Since most atrocities are committed
internally and most internal conflicts are between warring
parties of the same nationality, the worst offenders of
international humanitarian law can choose never to join the
treaty and be fully insulated from its reach absent a Security
Council referral. Yet multinational peacekeeping forces
operating in a country that has joined the treaty can be
exposed to the Court's jurisdiction even if the country of the
individual peacekeeper has not joined the treaty. Thus, the
treaty purports to establish an arrangement whereby U.S. armed
forces operating overseas could be conceivably prosecuted by
the international court even if the United States has not
agreed to be bound by the treaty. Not only is this contrary to
the most fundamental principles of treaty law, it could inhibit
the ability of the United States to use its military to meet
alliance obligations and participate in multinational
operations, including humanitarian interventions to save
civilian lives. Other contributors to peacekeeping operations
will be similarly exposed.
Mr. Chairman, the U.S. delegation certainly reduced
exposure to unwarranted prosecutions by the international court
through our successful efforts to build into the treaty a range
of safeguards that will benefit not only us but also our
friends and allies. But serious risks remain because of the
document's provisions on jurisdiction.
Our position is clear. Official actions of a non-party
state should not be subject to the Court's jurisdiction if that
country does not join the treaty, except by means of Security
Council action under the U.N. Charter. Otherwise, the
ratification procedure would be meaningless for governments. In
fact, under such a theory, two governments could join together
to create a criminal court and purport to extend its
jurisdiction over everyone everywhere in the world. There will
necessarily be cases where the international court cannot and
should not have jurisdiction unless the Security Council
decides otherwise. The United States has long supported the
right of the Security Council to refer situations to the Court
with mandatory effect, meaning that any rogue state could not
deny the Court's jurisdiction under any circumstances. We
believe this is the only way under international law and the
U.N. Charter to impose the Court's jurisdiction on a non-party
state. In fact, the treaty reaffirms this Security Council
referral power. Again, the governments that collectively adopt
this treaty accept that this power would be available to assert
jurisdiction over rogue states.
Second, as a matter of policy, the United States took the
position in these negotiations that states should have the
opportunity to assess the effectiveness and impartiality of the
Court before considering whether to accept its jurisdiction. At
the same time, we recognize the ideal of broad ICC
jurisdiction. Thus, we were prepared to accept a treaty regime
in which any state party would need to accept the automatic
jurisdiction of the Court over the crime of genocide, as had
been recommended by the International Law Commission in 1994.
We sought to facilitate U.S. participation in the treaty by
proposing a 10-year transitional period following entry into
force of the treaty and during which any state party could opt
out of the Court's jurisdiction over crimes against humanity
and war crimes. We were prepared to accept an arrangement
whereby at the end of the 10-year period, there would be three
options: to accept the automatic jurisdiction of the Court over
all of the core crimes, to cease to be a party, or to seek an
amendment to the treaty extending its opt-out protection. We
believe such transition period is important for our Government
to evaluate the performance of the Court and to attract a broad
range of governments to join the treaty in its early years.
While we achieved the agreement of the permanent members of the
Security Council for this arrangement, as well as appropriate
protection for non-party states, other governments were not
prepared to accept our proposal. In the end, an opt-out
provision for 7 years for war crimes only was adopted.
Unfortunately, because of the extraordinary way the Court's
jurisdiction was framed at the last moment, a country willing
to commit war crimes could join the treaty and opt out of war
crimes jurisdiction for 7 years, while a non-party state could
deploy its soldiers abroad and be vulnerable to assertions of
jurisdiction.
Further, under the amendment procedures, States Parties to
the treaty can avoid jurisdiction over acts committed by their
nationals or on their territory for any new or amended crimes.
This is protection we successfully sought. But as the
jurisdiction provision is now framed, it purports to extend
jurisdiction over non-party states for the same new or amended
crimes.
The treaty also creates a proprio motu, or self-initiating
prosecutor, who on his or her own authority, with the consent
of two judges, can initiate investigations and prosecutions
without referral to the Court of a situation either by a
government that is a party to the treaty or by the Security
Council. We opposed this proposal, as we are concerned that it
will encourage overwhelming the Court with complaints and risk
diversion of its resources, as well as embroil the Court in
controversy, political decisionmaking, and confusion.
In addition, we are disappointed with the treatment of the
crime of aggression. We and others had long argued that such a
crime had not been defined under customary international law
for purposes of individual criminal responsibility. We also
insisted, as did the International Law Commission in 1994, that
there had to be a direct linkage between a prior Security
Council decision that a State had committed aggression and the
conduct of an individual of that State. The statute of the
Court now includes a crime of aggression, but leaves it to be
defined by a subsequent amendment to be adopted 7 years after
entry into force of the treaty. There is no guarantee that the
vital linkage with a prior decision by the Security Council
will be required by the definition that emerges, if in fact a
broadly acceptable definition can be achieved. We will do all
we can to ensure that such linkage survives.
We also joined with many other countries during the years
of negotiation to oppose the inclusion of crimes of terrorism
and drug crimes in the jurisdiction of the Court on the grounds
that this could undermine more effective national efforts. We
had largely prevailed with this point of view only to discover
on the last day of the conference that the Bureau's final text
suddenly stipulated, in an annexed resolution that would be
adopted by the conference, that crimes of terrorism and drug
crimes should be included within the jurisdiction of the Court,
subject only to the question of defining the relevant crimes at
a review conference in the future. This last minute insertion
in the text greatly concerned us and we opposed the resolution
with a public explanation. We said that while we had an open
mind about future consideration of crimes of terrorism and drug
crimes, we did not believe that including them will assist in
the fight against these two evil crimes. To the contrary,
conferring jurisdiction on the Court could undermine essential
national and transnational efforts, and actually hamper the
effective fight against these crimes. The problem, we said, was
not prosecution, but rather investigation. These crimes require
an ongoing law enforcement effort against criminal
organizations and patterns of crime with police and
intelligence resources. The Court will not be equipped
effectively to investigate and prosecute these types of crimes.
Finally, we were confronted on July 17th with a provision
stipulating that no reservations to the treaty would be
allowed. We had long argued against such a prohibition and many
countries had joined us in that concern. We believe that at a
minimum there were certain provisions of the treaty,
particularly in the field of state cooperation with the Court,
where domestic constitutional requirements and national
judicial procedures might require a reasonable opportunity for
reservations that did not defeat the intent or purpose of the
treaty.
Mr. Chairman, the administration hopes that in the years
ahead other governments will recognize the benefits of
potential American participation in the Rome treaty and correct
the flawed provisions in the treaty.
In the meantime, the challenge of international justice
remains. The United States will continue as a leader in
supporting the common duty of all law-abiding governments to
bring to justice those who commit heinous crimes in our own
time and in the future. The hard reality is that the
international court will have no jurisdiction over crimes
committed prior to its actual operation. So more ad hoc
judicial mechanisms will need to be considered. We trust our
friends and allies will show as much resolve to pursue the
challenges of today as they have to create the future
international court.
Thank you, Mr. Chairman.
Senator Grams. Thank you very much, Mr. Scheffer, for your
statement and for your work, and again thank you very much for
appearing before this committee this morning.
We have just been joined by Senator Biden. Would the
Senator want to make an opening statement before we go to
questions?
Senator Biden. No, thank you.
Senator Grams. Thank you.
I think we will just hold the questioning to 5-minute
rounds so we can get across the board to everybody in a short
period of time.
But I would just like to start off by asking a few
questions, Mr. Scheffer. As we have talked about this morning,
there are a lot of bad provisions in this treaty, and in some
of your closing remarks you called them flawed. I was
wondering, which ones made it impossible for the United States
to vote to approve this treaty? In your opinion what were some
of the major flaws?
Ambassador Scheffer. Well, the major flaws were definitely,
shall I call it, the de facto universal jurisdiction which
emerged from the treaty which would expose the nationals
operating, particularly in official actions for governments
which are not party to the treaty--would expose those
individuals to the jurisdiction of the treaty. That was a flaw
that we simply could not accept.
A further flaw was what would be the initial exposure of a
State to the jurisdiction of the Court if it became a State
Party to the Court. We deeply believed that there needed to be
a transitional period that was reasonable and that could
facilitate our own interests in the Court, as well as the
interests of other major countries that have large militaries
and are deploying those militaries in peacekeeping operations
around the world. We did not achieve the totality of what would
have been needed for us to seriously consider that.
Furthermore, the independent prosecutor, which is now
incorporated in the statute, was of deep, deep concern to us.
We spent much of the second week of the conference arguing
against this proposal. We circulated a detailed paper in four
languages to dispute the merits of this proposal, and we
actually had a fair number of countries supporting us in this.
In the end that proposal, when combined with these two
others, were the most serious issues; but I must say that there
were other issues in the statute that would have caused us to
have to come back to Washington with the document for a very
serious review of it before considering signing it, because
there were pockets of issues throughout the statute which,
particularly the way it was handled the final day, were thrown
in and done so with such swiftness that the best we could have
done was simply come back to Washington with the document and
ask everyone to examine it.
Senator Grams. I think there are many that believe this is
an effort that goes around the Security Council, in other
words, mutes our veto power and authority. Would you clarify
the relationship of the Security Council to this court?
Ambassador Scheffer. Yes. The Security Council has primary
responsibility under the U.N. Charter for international peace
and security and no subsequent treaty can change that reality.
It has primary responsibility. We argued for many years that
that primary responsibility requires that if there is a matter
that is brought to the Court that is within the jurisdiction of
the Security Council under the U.N. Charter, the Security
Council should have a prior review of whether or not that
matter should be linked into a judicial process, particularly
when the Security Council itself is seeking to address that
matter of international peace and security. That position did
not attract any significant support for many years, but we
continued to pursue it.
What we discovered in Rome by the third week was the
absolute critical requirement that we at least preserve in the
statute itself a recognition by the Court and the judges of the
Court, so that there is none of this judicial interpretation in
later years, that the Security Council has an unfettered right
and power under the U.N. Charter to halt the Court's work if it
deems that is necessary. We at least had to preserve that in
the treaty. We were not able to preserve our longstanding
position on the right of the Security Council review of matters
that come before the Court. We simply had no votes for it other
than a handful. But at least we had to preserve the right of
intervention by the Security Council in the statute and we were
able to achieve that.
I think in the future what needs to be seriously considered
is a recognition by all governments that the Security Council
will need to do what it needs to do under the U.N. Charter. It
will have to exercise the powers that it has under the U.N.
Charter, and we may not know yet what the totality of those
powers are in connection with this court. We may have to
experience this if the treaty in fact enters into force. But I
want to leave no mistake here that the U.S. Government and this
administration fully understand and have advocated the full
sweep of powers that the Security Council has under the U.N.
Charter.
Senator Grams. Thank you very much.
Senator Feinstein.
Senator Feinstein. Thank you, Mr. Chairman.
I wanted to go to your second area of major problems, the
exposure issue, if I could, for a minute. You raise the issue
that a United States soldier, for example, as part of a
peacekeeping mission, might do something which could lead to
charges being filed against him or her. As I understand it, the
bar is set fairly high regarding the Court's ability to indict
or try someone for war crimes. For crimes against humanity, for
example, Article 7 of the treaty calls for either widespread or
systematic activity and that the activity be pursuant to state
policy. Does this rule out the danger that a random incident,
even one with genuine harm, could be prosecuted?
Or, if the concern is over a possible war crime charge
because of civilian casualties resulting from a United States
operation, Article 8, section b, subparagraph iv specifies that
the offending nation would need to intentionally launch an
attack with the knowledge that it would cause incidental
civilian damage and that the use of force has to be clearly
excessive to the military goal.
So, under what circumstances do you see a United States
soldier, for example, or a United States policy subject to
prosecution under this statute?
Ambassador Scheffer. Thank you, Senator Feinstein. That is
a very relevant question. It is one that occupied us hourly and
daily for years.
I must say that I think one achievement that we can be very
proud of in this statute--I think there are many actually, but
the provisions on crimes against humanity and war crimes were
scrubbed and negotiated with tireless effort by U.S.
negotiators, including in Rome. If I can just signal my
gratitude to the lawyers not only from the State Department,
but from the Joint Chiefs of Staff and the Office of the
Secretary of Defense, who labored extremely hard to get this
right.
What you have just pointed to is what we worked hard to
achieve, which is, if I may put it bluntly, a magnitude test
for the triggering of charges of crimes against humanity or war
crimes such that this court should not be dealing with isolated
commissions of crimes. It should be dealing with a high level
of criminal activity on a widespread massive scale. That is
what this court should be dealing with. While we have great
confidence that the U.S. armed forces are not in the business
of committing these types of crimes--that is not what they are
trained to do; that is not what we ask them to do--nonetheless,
we know from hard experience that because of our global
deployments, because of the responsibilities that we take on
overseas, there will inevitably be referrals to this court that
seek to bring us to the bar of justice of this court simply
because we have deployed our military and used it.
Now, we would hope that in response to any such referral,
we could easily defeat it because it has not met that test that
you just pointed out in either crimes against humanity or war
crimes and that it could be easily defeated on that ground
alone, or that we could easily show that, under the
complementarity principle. We will look into this matter. We
will investigate it. We will determine whether or not there is
a basis for prosecution of these crimes, and that will be the
end of it, that the Court will recognize the legitimacy of our
legal system and the decision even not to prosecute of our
legal system.
The problem is that it is not a guarantee, obviously, that
frivolous and politically motivated charges will nonetheless be
brought against us; and we have to be extremely careful that,
first of all, we have some time period in which we can witness
how this court operates, whether it operates in a politically
motivated way, but second that we have enough safeguards in the
treaty to prevent any unjustified and unwarranted prosecution
of Americans before the Court.
Senator Feinstein. I have a followup question, but I will
wait for the next round. Thank you very much.
Senator Grams. Thank you, Senator.
Senator Helms.
Senator Helms. George Washington is often quoted as warning
for future generations to beware of entangling alliances. There
is only one problem with that. He did not say it. Thomas
Jefferson did. But in any case, whoever said it----
Senator Biden. I am willing to forgive him. Are you not?
Senator Helms. Pardon?
Senator Biden. I said I am willing to forgive him, having
done something like that myself. [Laughter.]
Senator Helms. Let the record show that Joe Biden and I
agree on something.
Seriously, the trouble is about this business, you cannot
pin down all of the details of what you would do in theoretical
cases. I do not know how you would negotiate a thing like that,
but I am flat-footed in my opposition to it.
Let me get to another subject. Bill Cohen, former Senator,
now the distinguished Secretary of Defense, is said to have met
with key U.S. allies--and I do not know who those would be
under the circumstances--in which Secretary Cohen indicated
that a treaty containing universal jurisdiction would require
the United States to reconsider the presence of U.S. troops in
those countries.
My question is, did that conversation or meeting take
place?
Ambassador Scheffer. Well, Mr. Chairman, I will have to let
Secretary Cohen and his spokesmen answer that directly to you.
I think I can answer it generally though.
We certainly did talk with other governments about this
treaty. That was our job.
Senator Helms. And about that aspect of it.
Ambassador Scheffer. I can only say that it would be
logical to assume that the consequences of our future posture
in other countries is not only on our mind, but needs to be on
their minds as well.
Now, I was not party to any particular conversation that
Secretary Cohen had, so I do not know precisely what he said.
Senator Helms. Well, were you party to any conversations
that you had with our allies on that subject?
Ambassador Scheffer. Yes. In Rome I did speak with other
allies, and I raised this issue----
Senator Helms. About that subject.
Ambassador Scheffer. Yes. I raised this issue with them.
Senator Helms. What was their reaction?
Ambassador Scheffer. Well, I think their reaction was one
of concern. I hope that it was one of profound concern, and I
discussed this issue for the express purpose of hoping that
these delegates would communicate with their capitals about the
concerns that we are expressing.
Senator Helms. It is my understanding that Germany--correct
me if I am wrong--currently will not extradite its nationals to
the United States or any other country with which it has a
bilateral extradition treaty due to statutory and
constitutional prohibitions. Is that correct?
Ambassador Scheffer. I do not know if that is correct with
respect to Germany. I would have to get back to you. Is that
correct? Yes.
Senator Helms. She says it is correct?
Ambassador Scheffer. Yes. That is my Justice Department
lawyer. She says it is correct.
Senator Helms. I have to ask my folks too.
In fact--and I believe the lady will confirm this--neither
do the following OECD member countries: Austria, Belgium,
Brazil, Bulgaria, Denmark, Finland, France, Greece, Hungary,
Iceland, Luxembourg, Mexico, Norway, Switzerland, and Turkey.
Is that not correct?
Ambassador Scheffer. Is it not correct that they would not
extradite their citizens to our country? Is that the question?
Senator Helms. That is my question. My understanding.
Ambassador Scheffer. That is a long list.
We may have to get back to you, Mr. Chairman. We will get
back to you with an answer to that.
Senator Helms. Let us assume that just even one of them is
correct. I think you will find that every one is correct. How
would any other country carry out its obligations under the
treaty given these constitutional impediments?
Ambassador Scheffer. Well, a very good question. There are
provisions in this treaty that would require governments to
change their national laws in order to comply with the
provisions of this treaty, particularly with respect to the
surrender or transfer of individuals on their territory to the
treaty. There would have to be changes in certain national laws
to facilitate that and the implementing legislation.
Senator Helms. You bet.
Ambassador Scheffer. So, those countries do have to
confront that. I suspect that at least some of those countries
have to deal with that particular issue in the future.
Senator Helms. My time is just about up, but I want to
commend you for your work over there and your testimony here
this morning. You did not try to color it in any way. You laid
out the facts, and I appreciate that.
Thank you, Mr. Chairman.
Ambassador Scheffer. Thank you.
Senator Grams. Thank you very much.
Senator Biden.
Senator Biden. Thank you, Mr. Chairman.
It may surprise you. Senator Helms and I agree on a lot
more than just George Washington and Thomas Jefferson.
Senator Helms. Well, of course we do.
Senator Biden. But one of the things we agree on actually
is the approach you have taken to this treaty. First of all,
you did a great job. Second, you reached the right conclusion
for our country.
Third, I would try to put it in perspective. There are
roughly 10 signatures. No one has ratified, and you have got to
get 60 countries ratifying for it to take effect. So, hopefully
between here and there, there will be some major changes. The
reason I mention that is all of the questions are speculative
and the answers are going to have to be speculative because
this treaty is not in force yet and it is a long way from being
in force.
So, I want to explore with you one issue that was raised by
the chairman of the full committee, and that is the purported
de facto universal jurisdiction. Article 12 of the Court
statute creates the possibility that non-parties will be
subject to the jurisdiction of the Court. Now, that raises
serious concern about the U.S. forces deployed overseas in
countries which are parties to the Court. U.S. forces overseas
could face prosecution by the Court even though we are not a
signatory.
I realize that has been raised already, but it seems to me
that if this treaty goes into effect we may have to review the
status of forces agreements now in place to ensure that
adequate protections are in place. It seems to me--let me just
ask the question rather than tell you what I think.
Is the administration, to the best of your knowledge,
planning to undertake such a review prior to this treaty
gaining 60 countries ratifying and it coming into force?
Ambassador Scheffer. Thank you, Senator Biden, very much.
We have already started to have discussions about that
within the administration. We have simply not reached any
policy decisions. We are still catching our breath after a long
5 weeks.
But we have already started discussions about the fate of
the status of forces agreements. We have started looking at
them. We have looked at provisions within the statute itself
that may guide us toward encouraging other states to help us
amend these agreements so that they do not find themselves in
an unacceptable bind because they need to recognize themselves
that they need to address this issue directly, their own status
of forces agreements with us.
Senator Biden. In my experience spanning more than 2
decades on this committee, nothing gets the attention of our
friends like discussing the status of forces agreements we have
with them. There is a facetious ring to what I just said, but I
mean it sincerely. It seems to me that I need not tell you, as
talented as you are, how we should go about impacting on the
final outcome of this treaty, but I respectfully suggest that
if at the highest levels there were the beginning of
discussions about status of forces agreements with our allies,
most of whom did not go along with us in the way we viewed the
treaty, that we may very well get them to focus on aspects of
the treaty I suspect they have not really fully focused on--
their governments. You know how to do your job better than I
know how you should do your job, but I suspect that may be a
useful thing.
Ambassador Scheffer. Senator, if I may point your attention
and the committee's attention to Article 98, section 2 of the
statute, I think that is one provision we will be focusing on
in terms of your question.
Senator Biden. Why do you not tell me what that is since I
do not have it in front of me?
Ambassador Scheffer. It deals with cooperation with respect
to waiver of immunity and consent to surrender, and it is a
very important provision that I think we will need to be
pointing out to other governments, particularly as it relates
to our status of forces agreements.
Senator Biden. That says, ``The Court may not proceed with
a request for surrender or assistance which would require the
requested State to act inconsistently with its obligations
under international law with respect to the State or diplomatic
immunity of a person or property of a third State, unless the
Court can first obtain the cooperation of that third State for
the waiver of the immunity.'' Is that what you are referring
to?
Ambassador Scheffer. Yes, although you may have a text
there which was preceding the final text. There are a few word
changes, but that is essentially the text, yes.
Senator Biden. Well, I would also note and, Mr. Chairman, I
will conclude by saying in the absence of the chairman of the
full committee, I say nonetheless for the record, this is
something he feels very strongly about. This is a treaty that
is a long way from becoming law, and we are holding hearings on
it. We have time for it, but we do not have time to have
hearings on the Comprehensive Test Ban Treaty. We do not have
time to have hearings on things that are really current. I
would hope my Republican friends would focus on about 12
treaties that require urgent attention up or down for us and we
not spend a lot more time on something that I predict to you is
not going to come to fruition anyway, and if it does, it is a
long way off.
But I thank you for your hard work and your staff. You did
a great job according to my staff and Senator Helms' staff who
spent time over there observing. So, thank you.
Ambassador Scheffer. Thank you, Senator.
Senator Grams. Thank you very much. But it is never too
early to begin.
Senator Biden. That is true. That is why we should be doing
the Comprehensive Test Ban Treaty right now.
Senator Grams. Thank you, Senator.
Ambassador, we talked a little bit just a while ago about
the relationship of the Security Council to this Court. I would
like to followup on that question and ask, will this
administration support Security Council referrals to the ICC if
the treaty has not been ratified by the United States?
Ambassador Scheffer. I do not know, Senator. We have not
had a policy decision on that. It is somewhat premature at this
stage. We know that this Court is many years in the distant
future, if at all. We do need to have discussions within the
administration about exactly what our approach will be in the
coming years. I can assure you that that is a key checklist
item for that discussion.
Senator Grams. It is always costs that are important as
well. The treaty calls for funding by the parties to the treaty
and also by the U.N. Now, is there any way that funding could
be provided to the ICC by the United Nations aside from when
cases are referred by the Security Council?
Ambassador Scheffer. As the committee staff who were there
know, this was a very tortuously negotiated provision. We had
basically the entire world confronting us on this issue. I
should not say the entire, but there were large numbers of
countries that wanted this court to be funded strictly by the
United Nations, out of the U.N. budget. We had to point to them
time and time again that that did not make sense, that you
cannot ask governments which are not party to this treaty to,
nonetheless, pay for it through the U.N. budget. We were very
clear with them that we did not think the U.S. Congress would
facilitate this at all.
So, we went through several stages of negotiation and there
was one stage which suggested that the initial funding of the
Court, i.e., for the first 2 or 3 years of the Court's
operation, at least that should be U.N. funding. And we said,
no, that is not correct either because once again, you will
have many countries which are not party to this treaty and yet
you are asking the U.N. to pay for it through their assessments
to the United Nations budget. We defeated that.
The language which resulted in the document--and what
number is the article now, if someone can remind me? Here it
is. Article 115. They renumbered all the articles on us the
last day, so you can imagine those of us who lived with certain
article numbers for many months have had to reeducate
ourselves.
Article 115 is crafted in such a way that it does provide
the possibility for funds provided for the United Nations, but
only if the General Assembly has so determined that the United
Nations wishes to make that contribution to the Court. Of
course, we have the opportunity to weigh in within that context
in New York.
But we also worded this so that the focus is on U.N.
contributions for Security Council referrals to the Court,
since the Security Council would have made the decision. But it
is not wording that perfectly satisfies how we would have
preferred this result. We had sought assessed contributions by
States Parties--period. But this was the language that was
finally achieved in the negotiations.
Senator Grams. You are right. There are many in Congress
who would not approve of that type of funding.
This treaty authorizes the Court's prosecutors, as we have
talked about here a little bit already this morning, to
initiate cases; and that is something that the U.S. is
aggressively opposed to. Are the safeguards contained in the
treaty over the prosecutor adequate to prevent what we would
call politicizing of the prosecution?
Ambassador Scheffer. Well, I think the arguments we made
for 5 weeks stand today. We had great concern. We continue to
have great concern over the potential politicalization of the
prosecutor. Now, this is an argument that at times we found
others had difficulty grasping; so let me, if I may, for one
minute explain this.
The prosecutor undoubtedly is going to have to become not
only the receiver of an enormous amount of information in this
capacity, he will have to decide and he will have to make
judgments as to what he pursues and what he does not pursue for
investigative purposes. In the end, those kinds of judgments by
the prosecutor will inevitably be political judgments because
he is going to have to say no to a lot of complaints, a lot of
individuals, a lot of organizations that believe very strongly
that crimes have been committed, but he is going to have to say
no to them. When he says no to them and yes to others and he is
deluged with these, he may find that he ends up making some
political decisions. Even if he has to go to the Pretrial
Chamber and get the approval of at least two of the three
judges in the Pretrial Chamber, in the end you have three
individuals making that decision.
We have always argued that this court, first of all, should
deal only with the referral of large scale commission of these
crimes and that it will be inevitable that when you have a
large scale commission of crimes, I think we have a fairly high
degree of confidence that at least one state party or the
Security Council will deem it meritorious to refer that
situation to the Court.
The value of having a government refer it or the Security
Council refer it is they are accountable to somebody. They are
accountable either to their people, their populace, for doing
so, or the Security Council is accountable to the United
Nations system. We believe that that fundamental principle of
accountability should be at the core of referrals to this
court.
Senator Grams. Thank you. I have a followup, but I will
wait until my next round of questioning.
Senator Feinstein.
Senator Feinstein. Thanks very much, Mr. Chairman.
Mr. Ambassador, after listening carefully to your testimony
and reading it, it would appear to me that the treaty is
effectively dead as far as the United States is concerned
unless major changes are made to it. Would you agree with that?
Ambassador Scheffer. Well, I would say that we are not
prepared to go forward with this treaty in its current form. We
are simply not prepared to do so.
Senator Feinstein. I would interpret that to say, really,
that as far as the United States is concerned, it is
effectively dead.
I wanted to ask you a question also about some of the
initial press stories that came out after the Rome decision
which held that one of the countries that might be affected by
this statute was Israel, and that Israel really might run afoul
of it because of the occupied territories clause included in
Article 8(2)(b)(viii). Can you explain that clause, the
precedent for it in international law, and give us your
understanding of whether Israel would or would not face
potential jeopardy before the Court?
Ambassador Scheffer. Yes, Senator, I would be glad to.
This was a provision in the treaty which we spent an
enormous amount of our time on. We consulted very closely with
the Government of Israel consistently about this provision. We
talked with many other countries about it. It is a provision
which was very popular with certain groups of countries to
include in this treaty.
We had opposed it from the very beginning in discussions
that began two years ago because we did not feel that there was
customary international law yet that attached this kind of
activity to individuals for criminal responsibility. Rather in
the Geneva Convention, it is a State responsibility issue,
i.e., transferring your population into an occupied territory
is an issue that relates to State responsibility. We felt that
given its very, very political context and the fact that there
are actually many governments in the world that one might look
to with respect to this kind of activity, that we needed to
keep it at the level of State responsibility and not seek to
bring it into the area of individual responsibility or
culpability, criminal culpability.
Now, we argued that for a long time, but none of our
European colleagues and other countries around the world
accepted this argument. It was strongly advocated for inclusion
in the statute.
Senator Feinstein. Let me just understand that.
Ambassador Scheffer. Yes.
Senator Feinstein. Are you effectively saying, yes, Israel
could run afoul of the Court under the present structure as
proposed?
Ambassador Scheffer. Well, first, I think it is because of
this issue, along with other issues, that Israel joined us in
voting against this treaty.
Senator Feinstein. So, may I interpret your answer as being
yes?
Ambassador Scheffer. Well, again I always want to turn to
the Government of Israel to answer that question for its own
position, but----
Senator Feinstein. Well, I am asking you for your
interpretation.
Ambassador Scheffer [continuing]. My interpretation is that
Israel would stand at risk with this provision in terms of
exposure to this court.
Now, we had many discussions on this, including with our
good friends from Israel, and there was an insertion into the
statute that went beyond even the Geneva Protocol I of 1977
which does identify as a grave breach of the protocol the
transfer by the occupying power of parts of its own civilian
population into the territory it occupies. That is identified
as a grave breach in the 1977 Geneva Protocol I, and Israel was
very involved in those negotiations in 1977.
What we found unacceptable at the end was the insertion of
three words into the statute that appears no where in the
Geneva protocol. The statute now reads: ``The transfer,
directly or indirectly, by the occupying power of parts of its
own civilian population into the territory it occupies.'' What
does directly or indirectly, and where does that come from?
That we could not accept and neither could Israel accept those
three words. I must say that if Israel had brought this issue
up for a vote directly on Friday evening of last week, we were
going to intervene, speak against the provision, and vote
against it, but Israel chose not to.
Senator Feinstein. May I just make one other statement
along this line? To me then it is rather clear that this
provision, directly or indirectly, strikes directly at Israel
and the West Bank. What surprises me about it is, this was
agreed to by our European allies?
Ambassador Scheffer. Yes.
Senator Feinstein. I find that quite remarkable.
Let me ask one final question. What chances do you give to
whether the statute can be ratified by 60 nations?
Ambassador Scheffer. Well, there were more than 60
governments that comprised the group called the ``like-minded
group'' in these negotiations that were very strong advocates
of the Court. So, I do not know what will come of the actions
of those 60-plus countries who had very strong affirmative
views about this court, but they certainly know that they have
got a group of 60, or more than 60 actually in the end, that
were in the right frame of mind for ratification.
Senator Feinstein. So that we know the real world in which
we are playing, on a scale of 1 to 10, are you saying you would
rank at 10 the chances that this will be ratified?
Ambassador Scheffer. Well, I think it is very close to 10
for ultimate entry into force. I think the real question is how
many years it will take. Remember that the requirement in each
government will be what needs to be adopted domestically in
order to conform their national criminal codes and other
provisions to the requirements of cooperation of this statute
and also the war crimes definitions, because one thing that I
think every government will want to be able to demonstrate is
that under the principle of complementarity in this statute,
they have the capability to investigate and prosecute these
crimes domestically under their domestic law. That will require
some changes in domestic law for them to be able to demonstrate
that capability. So, this will be a long process.
Senator Feinstein. Thank you, Mr. Chairman. One other
question?
Senator Grams. Sure, go ahead.
Senator Feinstein. Just one question. I wanted to ask you
quickly about the Pretrial Chamber process and what specific
rights a State or individual would have to appeal a decision of
the Court to prosecute a given case. If a frivolous charge were
to be leveled against, say, a United States citizen and the
prosecutor, say, for whatever reason determines an
investigation was warranted, are there options that a third
party would have to bring exculpatory information before the
Court at that stage to close down the investigation or does
that just proceed?
Ambassador Scheffer. If I may, I would like to ask my
colleague who negotiated that provision to answer it for you,
if I may.
Senator Feinstein. I would be happy to.
Ambassador Scheffer. It is Molly Warlow from the Department
of justice. Molly, could you possibly address that question?
Ms. Warlow. There are various provisions that would be at
issue. First, as a general matter, there is a general provision
that the prosecutor is not strictly speaking an adversarial
position. He has a responsibility to also look into exculpatory
information which is a provision that we put in.
However, one of our main objectives was to set the stage
very early on for a State to be able to challenge the
competence of the Court, particularly with respect to the
admissibility of the case, which means the Court is without
jurisdiction if the national authorities are themselves
pursuing the case. Under the provision that we worked very hard
to achieve, the state has standing simply by notifying the
prosecutor of their own interest in prosecuting and
investigating to achieve a deferral of the case.
At that point, the burden lies with the prosecutor to go
forward and seek a ruling from the Pretrial Chamber which has
then the burden of showing that the national proceedings are,
either the system is in collapse, or that the national
proceedings are a sham.
So, one of our main objectives was to have a very early
opportunity to present these issues and the right to intercede
does not depend on whether you are a State Party or not.
Senator Feinstein. Do you feel that that is adequate?
Ms. Warlow. It is extremely useful. There is an opportunity
to appeal it, but of course one of our main themes was the
concern that overall complementarity in and of itself may not
be sufficient to meet our interests. It certainly is a much
better regime than we had going in Rome. We fought off an
effort at the last minute to remove that provision, much to our
surprise. And at other stages there can be challenges to
jurisdiction as well. So, generally states can act on behalf of
their nationals to proceed in these matters.
Senator Feinstein. Thank you very much. I would like to
just say thank you to you, Ambassador. I think you certainly
acted in the best interests of our Nation at this stage, and I
appreciate it very much.
Ambassador Scheffer. Thank you, Senator Feinstein.
Senator Grams. Mr. Ambassador, just a couple of quick
questions following up and clarifying. We talked about
politicizing a prosecution, some of the decisions that might
have to be made by the Council. In what areas is the prosecutor
given sole discretion in a case?
Ambassador Scheffer. In bringing the case or----
Senator Grams. Bringing the case or furthering the
prosecution or the investigation itself.
Ambassador Scheffer [continuing]. Well, certainly in
triggering the mechanism of the Court to launch widespread
investigations of a situation, he is given, well, near complete
independence to do that as long as he can persuade two judges
in the Pretrial Chamber to agree with him. So, he has to
demonstrate to the judges that there is a premise here for
investigation, that this rises to the level of jurisdiction of
this court, and if the judges agree with him, then he can
launch into those investigative activities.
Now, once he is launched, whether by his own accord or by
referral by the Security Council or by a State Party to the
treaty, he does have a wide range of provisions in the statute
that check him along the way. The Pretrial Chamber itself has
numerous opportunities to examine the course of his work and to
influence the course of his investigative work. This is
something that is very common to the civil law governments that
we were dealing with and they felt comfortable with it and we
actually saw some merit in it for purposes of an international
court.
But in addition to that, we have a lot of provisions on
cooperation with States, part 9 of the statute, which do
provide him and the Court with a guide path for how to make
requests for cooperation with States. That is a very detailed
set of provisions, but it certainly is the case that the
prosecutor cannot simply walk into other countries and start
investigating. He has to work in a cooperative manner with
other countries. He has to fulfill documentary requirements,
and he has to work with other governments in order to achieve
his investigative objectives. So, it is not a completely
independent prosecutor with access throughout the world.
And we worked very, very hard on these provisions so that
national judicial procedures would have to be recognized by the
prosecutor in the pursuit of his work. I think where we felt
that we would have preferred more progress in the statute is
that not only national judicial procedures, but in some cases
national law itself, including constitutional law, needed to be
recognized by the prosecutor. But I think that the phrase
``national judicial procedures'' which is peppered throughout
the cooperation provisions we hope will provide for an
adequate, shall we say, cooperative check on the prosecutor's
ability to investigate on foreign territory. We want him to be
able to do so. If the Court is an adequate functioning court,
he needs to do his job, but he needs to do it with full respect
for national judicial procedures and the constitutional
requirements of other countries.
Senator Grams. So, acting on a complaint or a charge or
through a Security Council directive, but he could also
initiate himself such an investigation.
Ambassador Scheffer. Yes, and that we opposed of course in
Rome, the latter.
Senator Grams. One final question then just to sum this up.
Do you believe that the Constitution permits the U.S.
Government to delegate its authority to prosecute Americans for
crimes committed on U.S. soil to the International Criminal
Court?
Ambassador Scheffer. Well, I believe that is one of the
issues that we wanted to bring back to Washington, and it is
also one of the reasons why we were so insistent on pressing
for a reservations clause in this treaty because we knew that
that issue ultimately had to be resolved in discussions back
here in Washington as to our ability to address that very
specific issue, the crime being committed on U.S. territory by
a U.S. citizen. It is not unprecedented. In the past crimes
committed by U.S. citizens on U.S. territory have in fact been
prosecuted elsewhere in the world with our consent; but we
wanted to bring that issue back, and we wanted a reservations
option in the treaty so that there would be ample opportunity
for the United States to meet its constitutional requirements
in reviewing this treaty.
Senator Grams. But you said with our consent, that this
would not happen without our consent or it has happened in the
past.
Ambassador Scheffer. Yes, I would have to provide that to
you, Senator, but I am told that there are examples in the past
where U.S. nationals who have committed crimes on U.S.
territory have in fact been prosecuted overseas.
Senator Grams. You will furnish that.
Ambassador Scheffer. Yes, I will furnish that to you,
Senator.
Senator Grams. Well, Ambassador, I want to thank you very
much for taking your time to be here this morning and for your
answers. I also just have a note that Senator Ashcroft, who had
to leave, would also like to submit some written questions to
you, sir. So, I am going to leave the record open until the
close of business today, and we would appreciate a prompt
response to those questions if possible. Thank you very much,
Mr. Ambassador, and thanks you for your time.
I would like to now call our second panel for the hearing
this morning, and they are the Honorable John Bolton, former
Assistant Secretary of State for International Organization
Affairs, now Senior Vice President of American Enterprise
Institute in Washington, D.C.; also Mr. Lee Casey, an attorney
at Hunton & Williams, in Washington, D.C.; and also Mr. Michael
P. Scharf, Professor of Law and Director, Center for
International Law and Policy, New England School of Law, in
Boston, Massachusetts.
Gentlemen, welcome. Thank you very much for also joining us
this morning. If you have opening statements, the committee
would now entertain those, and we could start from left to
right. Mr. Bolton, if you would.
STATEMENT OF HON. JOHN BOLTON, FORMER ASSISTANT SECRETARY OF
STATE FOR INTERNATIONAL ORGANIZATION AFFAIRS; SENIOR VICE
PRESIDENT, AMERICAN ENTERPRISE INSTITUTE, WASHINGTON, D.C.
Mr. Bolton. Thank you very much, Mr. Chairman. I have a
prepared statement which I would ask to be incorporated in the
record.
It is a pleasure to testify today on the somewhat misnamed
International Criminal Court. In fact, what the Rome conference
has actually done is create not only a court, but also a
powerful and unaccountable piece of an executive branch: the
prosecutor.
Unfortunately, support for the ICC concept is based largely
on emotional appeals to an abstract ideal of an international
judicial system, unsupported by any meaningful evidence, and
running contrary to sound principles of international crisis
resolution. Moreover, for some, faith in the ICC rests largely
on an unstated agenda of creating ever more comprehensive
international structures to bind nation states in general and
one nation state in particular. Regrettably, the Clinton
administration's naive support for the ICC has left the U.S. in
a worse position internationally than if we had simply declared
our principled opposition in the first place.
Many people have been led astray by analogizing the ICC to
the Nuremberg trials and the mistaken notion that the ICC
traces its intellectual lineage directly to those tribunals.
However, examining what actually happened at Nuremberg easily
shows these contentions to be wrong, and we can learn important
lessons why the ICC, as presently conceived, can never perform
effectively in the real world.
Nuremberg occurred after complete and unambiguous military
victories by allies who shared juridical and political norms
and a common vision for reconstructing the defeated Axis powers
as democracies. The trials were intended as part of an overall
process, at the conclusion of which the defeated states would
acknowledge that the trials were prerequisites for their
readmission to civilized circles. They were not just political
score settling or continuing the war by other means. Moreover,
the Nuremberg trials were effectively and honorably conducted.
Just stating these circumstances shows how different was
Nuremberg from so many contemporary circumstances, where not
only is the military result ambiguous, but so is the political,
and where war crimes trials are seen simply as extensions of
the military and political struggle under judicial cover.
ICC supporters also support that Nuremberg was only an
after-the-fact event that would not deter others from
committing future crimes against humanity. They believe simply
that if you abhor genocide, war crimes, and crimes against
humanity, you should support the ICC. This logic is flatly
wrong for three compelling reasons.
First, all available historical evidence demonstrates that
the Court and the prosecutor will not achieve their central
goal, the deterrence of heinous crimes, because they do not and
should not have sufficient authority in the real world. Beneath
the optimistic rhetoric of the ICC's proponents, there is not a
shred of evidence to support their deterrence theories.
Instead, it is simply a near religious article of faith.
It is incredibly striking, therefore, that faith is about
all they have to support their argument. Rarely has so sweeping
a proposal for restructuring international life had so little
empirical evidence to support it. One ICC advocate said in Rome
that ``the certainty of punishment can be a powerful
deterrent.'' I think that statement is probably correct, but
unfortunately it has little or nothing to do with the ICC.
In many respects the ICC's advocates fundamentally confuse
the appropriate roles of political and economic power,
diplomatic efforts, military force, and legal procedures. No
one disputes that the barbarous actions under discussion are
unacceptable to civilized peoples. The real issue is how and
when to deal with these acts, and that is not simply or even
primarily a legal exercise. The ICC's advocates make a
fundamental error by trying to transform matters of power and
force into matters of law. Misunderstanding the appropriate
roles of force, diplomacy, and power in the world is not just
bad analysis, but bad and potentially dangerous policy for the
United States.
Recent history is unfortunately rife with cases where
strong military force or the threat of force failed to deter
aggression or gross abuses of human rights. Why we should
believe that bewigged judges in the Hague will prevent what
cold steel has failed to prevent remains entirely unexplained.
Even viewed in the light most favorable to the ICC, this
debate is almost solely about predictions. Without more,
predictions alone are insufficient to support radical change in
the international order.
Needless to say, I do not view the argument in the most
favorable light. Existing empirical evidence in the military
sphere argues convincingly that a weak and distant legal body
will have no deterrent effect on the hard men like Pol Pot and
Saddam Hussein most likely to commit crimes against humanity.
Holding out the prospect of ICC deterrence to those who are
already weak and vulnerable is simply fanciful.
Second, the ICC's advocates mistakenly believe that the
international search for justice is everywhere and always
consistent with the attainable political resolution of serious
political and military disputes, whether between or within
States, and the reconciliation of hostile neighbors. In the
real world, as opposed to theory, justice and reconciliation
may be consistent, or they may not be. Our recent experience in
situations as diverse as Bosnia, Rwanda, South Africa,
Cambodia, and Iraq argue in favor of a case-by-case approach
rather than the artificially imposed uniformity of the ICC. And
I have laid out in my prepared testimony at some length the
specifics of these cases and why they demonstrate from reality
today why the Court is not appropriate.
Third, tangible American interests are at risk. I believe
that the ICC's most likely future is that it will be weak and
ineffective and eventually ignored, because naively conceived
and executed. There is, of course, another possibility, that
the Court and the prosecutor, either as established now or as
potentially enhanced, will be strong and effective. In that
case, the U.S. may face a much more serious danger to our
interests, if not immediately, then in the long run.
Let there be no mistake. Our main concern from the U.S.
perspective is not that the prosecutor will indict the
occasional U.S. soldier who violates our own values and laws
and his or her military training and doctrine by allegedly
committing a war crime. Our main concern should be for the
President, the cabinet officers on the National Security
Council, and other senior leaders responsible for our defense
and foreign policy. They are the real potential targets of the
ICC's politically unaccountable prosecutor and that is the real
problem of universal jurisdiction.
I have demonstrated I think in my testimony the crisis of
legitimacy we face now with the International Court of Justice
and the U.N. Commission on Human Rights which are held in low
esteem, not just in the United States, but around the world.
I have also dealt with the overwhelming repudiation by the
Rome conference of the American position supporting even a
minimal role for the Security Council. Implicit weakening of
the Security Council is a fundamental new problem created by
the ICC, an important reason alone why the ICC should be
rejected. The Council now risks both having the ICC interfering
in its ongoing work and even more confusion among the
appropriate roles of law, politics, and power in settling
international disputes.
The ICC has its own problems of legitimacy. Its components
do not fit into a coherent international structure that clearly
delineates how laws are made, adjudicated, and enforced,
subject to popular accountability, and structured to protect
liberty. Just being out there in the international system is
unacceptable and indeed almost irrational unless one
understands the hidden agenda of many NGO's supporting the ICC.
There is real vagueness over the ICC's substantive
jurisdiction, although one thing is emphatically clear: This is
not a court of limited jurisdiction. We should take a systems
approach to the ICC, judging not only what we see before us
now, but look forward to what might be added in the long run.
Only if we are willing to travel the entire path shall we take
the first step, and I can testify to that from my own years in
the vineyards of U.N. matters.
I have laid out in my prepared testimony question after
question after question of the vagueness of the statute. I will
just touch on one.
The statute's definition of genocide could not be accepted
by the U.S. Senate in its present form unless the Senate were
to reverse the 1986 reservations and understandings that
attached to the Genocide Convention.
Consider second the Israeli problem, which has been
discussed here, concerning its conduct in the West Bank and
Gaza. This is a perfect example of politicizing this supposedly
independent legal institution right from its inception and a
clear marker of future problems.
I cannot predict whether the first case will be brought
against the United States or Israel. I suspect it will be a
race to the Courthouse door.
Apart from these problems with existing provisions and the
vague and uncertain development of customary international law,
consider all of the other crimes on the waiting list:
aggression, terrorism, embargoes, courtesy of Cuba; drug
trafficking, and so on. This is the unstated agenda of the
NGO's, as Mr. Crawford's statement, which I quote in my
prepared testimony, demonstrates. The Court's range is
enormous.
Let me just quote one provision of the statute. This is one
of the few provisions that is, unfortunately, clear, Article
119. I am quoting. ``Any dispute concerning the judicial
functions of the Court shall be settled by the decision of the
Court.'' That is pretty straightforward and pretty frightening.
The troubling substantive problems are overshadowed by the
governance structures of the Court and the prosecutor. One of
the executive branch's strongest powers is the law enforcement
power. In the United States we accept this enormous power
because we separate it from the adjudicative power and because
we render it politically accountable through Presidential
elections and congressional oversight. There has been a lot of
talk about how all of our European allies supported this court.
Europeans may feel comfortable with the ICC structure, no
political accountability and no separation of powers, but that
is a major reason why they are Europeans and we are not.
What to do next is obviously the critical question. Whether
the ICC survives and flourishes depends in large measure on the
United States. We should not allow this sentimentality
masquerading as policy to achieve indirectly what was rejected
in Rome. We should oppose any suggestion that we cooperate,
help fund, or generally support the work of the prosecutor. We
should isolate and ignore the ICC.
Specifically, I propose for the United States policy--I
have got a title for it. I think it is one the Clinton
administration will understand toward the ICC. I call it the
Three Noes: no financial support, directly or indirectly; no
collaboration; and no further negotiations with other
governments to improve the statute.
This approach is likely to maximize the chances that the
ICC will wither and collapse, which should be our objective.
The ICC is fundamentally a bad idea. It cannot be improved by
technical fixes as the years pass, and in fact it is more
likely than not to worsen. We have alternative approaches and
methods consistent with American national interests, as I have
previously outlined, and we should follow them.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Bolton appears in the
appendix on page 45.]
Senator Grams. Mr. Bolton, thank you very much for your
comments and testimony. Mr. Casey, your statement please.
STATEMENT OF LEE A. CASEY, ATTORNEY, HUNTON & WILLIAMS,
WASHINGTON, D.C.
Mr. Casey. Yes, sir. Thank you. I also have a written
statement that I ask to be submitted for the record.
Senator Grams. Without objection, it will be entered as
read.
Mr. Casey. Thank you.
One of the oldest principles of American government is that
Americans accused of criminal offenses within the judicial
power of the United States must be tried in their own courts
with all of the guarantees mandated in the Bill of Rights. This
principle was first articulated when the Founders of our
Republic declared its independence and catalogued the outrages
that they believed justified revolution and war. They noted
three of particular interest to us here today where, in the
Declaration of Independence, they accused the King and
Parliament of subjecting us to a jurisdiction foreign to our
constitution and unacknowledged by our laws, depriving us in
many cases of the benefits of trial by jury, and of
transporting us beyond the seas to be tried for pretended
offenses. After the revolution, the Founders ensured that
Americans would never again be transported beyond the seas for
trial by requiring in the Constitution that all crimes be tried
by jury in the State where the said crime shall have been
committed. This guarantee was stated not once but twice in the
Constitution in Article II, section 2 and in the sixth article
of amendment.
American participation in the ICC treaty would have
violated this fundamental principle. Ambassador David Scheffer
and his colleagues and the American delegation to the Rome
conference can be justly proud of the fact that when the
extreme demands and intransigence of the supporters of a
permanent international criminal court became evident, they
kept faith with the Founders of our Republic and with the
American people, refusing to sign a treaty that would again
have subjected Americans to a foreign jurisdiction able to
transport them beyond the seas to be prosecuted without the
benefits of trial by jury.
Ambassador Scheffer and his delegation, as well as the
Americans in the nongovernmental community who traveled to Rome
to oppose creation of a permanent international criminal court
with the power to prosecute Americans, deserve the grateful
thanks of the American people. These individuals worked hard on
our behalf in Rome and suffered the petulant and childish
attempts of ICC supporters to smear their efforts and to
discredit the position of the United States. The extremity of
their demands may be judged by the results they achieved, for
it takes a rare talent indeed to drive the United States and
Israel onto the same ground as China and Libya.
The Senate and the whole American people should support the
administration in its firm objection of the ICC treaty and
particularly in its unequivocal denial that the ICC has any
lawful power over Americans either at home or abroad. The ICC's
claim to jurisdiction over the nationals of any state that has
not joined this treaty are entirely unsupported in the accepted
rules of international law. There is in fact no precedent in
international law or practice for the exercise of jurisdiction
by such a court over the nationals of a State that has not
acceded to the treaty creating the Court itself.
In attempting to subject Americans to the jurisdiction of
the ICC, the ICC states are in fact attempting to act as an
international legislature, a power they do not have and a power
that is fundamentally at odds with the guarantee of the
sovereign equality of States memorialized in the United Nations
Charter. This attempt to subject Americans to the authority of
a court the United States has not accepted nothing less than a
concerted challenge to American sovereignty, the right of the
American people to govern themselves. If the ICC may call
American and military officials to account for their actions on
behalf of the United States in a criminal court, then those
individuals are no longer ultimately accountable to us, the
people of the United States, but to the prosecutor and judges
of the ICC. As Alexis de Tocqueville wrote in the last century,
``He who punishes the criminal is the real master of society.''
This action, led in large part by like-minded States whose
own rights of self-government have been preserved and
guaranteed by American blood and treasure and which have
sheltered in the lee of American power these 50 years past
brings to mind the words of British Prime Minister Lord
Palmerston when asked to name Britain's permanent friends in a
world where it was the sole global power. ``England,'' he
replied, ``has no permanent friends, only permanent
interests.''
The extravagant and illegal claims of the ICC states to
exercise jurisdiction over the United States and her citizens
and the actions of our allies in supporting these claims might
lead many Americans to support a withdrawal from our global
responsibilities. We must resist this temptation and heed
Palmerston's counsel. However faithless our friends, we too
have permanent worldwide interests; and these interests dictate
that that the United States remain engaged on the world stage.
We cannot allow the foolish actions of our allies to achieve
what the Soviet Union in all of its expanse and power never
could: to drive the United States back into isolation on the
North American continent.
However, it now has become imperative for the United States
to make clear to the ICC and the States who have signed this
treaty that it will not honor any claims to authority over
American citizens, that it considers such pretensions to be
unfounded in law, and that any attempt to assert such power
will be vigorously resisted and ultimately frustrated with all
of the United States' considerable resources.
Thank you.
[The prepared statement of Mr. Casey appears in the
appendix on page 61.]
Senator Grams. Mr. Casey, thank you very much.
Mr. Scharf.
STATEMENT OF MICHAEL P. SCHARF, PROFESSOR OF LAW, AND DIRECTOR,
CENTER FOR INTERNATIONAL LAW AND POLICY, NEW ENGLAND SCHOOL OF
LAW, BOSTON, MASSACHUSETTS
Mr. Scharf. Thank you, Mr. Chairman. Since I am the baby
face on this panel, let me begin my remarks by telling you a
little bit about my background so that you will not assume that
these are the remarks of naive advocacy for an international
criminal court.
Before the creation of Ambassador Scheffer's role,
Ambassador-at-Large for War Crimes Issues, that job at the
State Department was the responsibility of a young lawyer from
1989 to 1993. That lawyer was myself. Since leaving the State
Department in 1993, I have been the author of the three major
books on the Yugoslavia Tribunal, the Rwanda Tribunal, and then
there is my Pulitzer Prize nominated Balkan Justice.
So, I speak not as a naive advocate, but I give you I think
a different view than you have gotten today. I am going to be
the lone discordant voice in this anti-international criminal
court chorus.
In the 1950's, people were worried about who lost China. I
think in 10 years, people are going to look back at this event
and say, who lost the International Criminal Court? I think as
Senator Helms' views today indicated, this issue is going to be
much broader than our participation in the Court. It may be the
beginning of a whole new round of U.S. isolationism.
We need to begin, of course, with the case for a permanent
international criminal court. This body voted several times in
favor in principle for such a court in recognition of the fact
that in the last 100 years, during this decade, 170 million
people have been killed by crimes of genocide, crimes against
humanity, and war crimes, according to Professor Rummel's Death
by Government.
We live in a golden age of impunity in which a person
stands a better chance of being prosecuted for killing 1 person
than for killing 100,000 or a million people. And the failure
to prosecute, to bring these people to justice encourages
future dictators, future genocidal maniacs. Remember Hitler's
famous words on the eve of the invasion of Poland in 1939 when
his generals were squeamish about what he was asking him to do.
He said, do not worry. ``After all, who today remembers the
fate of the Armenians?'' And what he was saying was that the
Armenians were slaughtered, a million of them, in the world's
first genocide and there was no prosecution. The Turks were
given amnesty in the Treaty of Lausanne; and because of that,
Hitler could tell his followers, do not worry, we will get away
with this too. There will be no international prosecutions.
After Nuremberg, there was a hope that there would be a
permanent Nuremberg, that people like Hitler everywhere around
the world would be prosecuted in an international criminal
court; but because of the Cold War, this was not to be. The
failure to prosecute Pol Pot, Idi Amin, Saddam Hussein have
only encouraged acts like Karadzic and Milosevic. There is no
proof that an international court is an effective deterrent,
but not having an international criminal court is definitely an
encouragement.
Now we have seen two ad hoc tribunals that have become
successful to everybody's great surprise, including my own,
with the Yugoslavia Tribunal now having 31 of the indictees in
custody out of 61 and the Rwanda Tribunal doing even better
with 25 indictees out of 35 in custody, including all of the
major genocidal leaders. These international criminal courts
can work. They can have a deterrent value.
Unfortunately, the hope that the Security Council would
continue to create such courts was dashed when the Security
Council experienced what David Scheffer calls tribunal fatigue.
In other words, creating new courts for every situation,
appointing new prosecutors, electing new judges, creating new
courtrooms is so expensive, so politically exhausting that the
Security Council could not do it. That is why the world turned
to the idea of a permanent international criminal court and
that is why a permanent international criminal court as a
concept is still worth pursuing.
So, what went wrong in Rome?
First of all, we have to remember that in Rome there was a
tension between the United States, which wanted a Security
Council controlled court, and the rest of the world, virtually
every other country, which wanted a court that no country's
individuals could be immune from.
In Rome they created a two-track system. One track was
Security Council referral, and this was always the more
important, the more significant of the two tracks because the
Security Council could obligate every country in the world to
comply. The Security Council could enforce the obligation with
economic embargoes, with the freezing of assets which were so
effective in the Haiti situation, and even with authorizing the
use of force like with the NATO troops in Bosnia. So, the
Security Council controlled track always was the real
international criminal court for all intents and purposes.
The other court, the court which requires the independent
prosecutor or complaints by States, requires compliance of
countries in good faith, and there are many reasons why
countries are not always going to comply unless you have some
enforcement built in. So, no one ever thought that was going to
be the important part of the Court.
Nonetheless, the United States insisted on protections from
that part, from that second track, and the United States got
just about everything it insisted on. We saw the laundry list
on page 2 of David Scheffer's testimony today.
First, the United States got something known as
complementarity with teeth. That means that not only can the
Court in principle not prosecute when a domestic court is
investigating or prosecuting, but specifically the Court for 6
months must defer prosecution and investigation if any State
says it is investigating and a State can appeal that.
Second, as Senator Feinstein suggested, the limit of war
crimes to serious and the addition of plan or policy to the
definition of war crimes means that no U.S. soldier in a U.N.
peacekeeping force can be prosecuted for these war crimes. That
is not a real issue.
Third, the safeguard against an independent prosecutor,
what some U.S. officials have referred to as the international
Ken Starr problem, is in Article 15 which requires the approval
of a three-judge pretrial panel before the independent
prosecutor can launch an investigation and this too is subject
to an appeal before the whole tribunal.
And fourth, as David Scheffer said, the Security Council
can vote to postpone the investigation or a prosecution for up
to 12 months, renewable if the Security Council thinks it is in
the world's interest to do so.
These protections were sufficient for the other major
powers, specifically the United Kingdom, France, and Russia.
The deal-breaker for the United States we have heard is the
U.S. insistence that the State of nationality must consent to
the Court's jurisdiction. Well, the reason that was the deal-
breaker is because every situation around the world where this
court would be effective would not apply. Because, think about
it: Is Yugoslavia going to consent to Milosevic's trial? Will
Iraq consent to Saddam Hussein? Would Cambodia have consented
to Pol Pot? So, no wonder the other countries of the world felt
that that was not a reasonable demand.
And where does that leave us now?
You have to understand that there is enormous world support
for this international criminal court. I think the other
members of the panel have tried to downplay this. David
Scheffer was, I think, honest when he tells you that there are
more than 60 countries that are already ready to ratify it. I
have to tell you honestly that this thing is going to happen
very quickly. There are already 20 countries that have signed
and the pace is so fast that it is like the Rights of the Child
Convention. That is the fastest convention that was ever
ratified coming out of the U.N.
As a non-party, as a country that did not sign and will not
go along with it, the U.S. does not have to cooperate with the
tribunal. That is true. But we have heard today that the U.S.
is not immune from the tribunal. U.S. soldiers who commit
crimes abroad, U.S. officials who commit crimes abroad who are
visiting a foreign country could be apprehended, and there
could be indictments even though the U.S. has not signed.
Now, by not signing on, the U.S. cannot participate in the
preparatory conference which is going to draft the rules of
procedure and the definition of crimes. That will be further
elaborated. The U.S. cannot participate in the selection of the
prosecutor to make sure that the prosecutor is not someone who
is subject to politicization. The U.S. cannot nominate judges
or vote for judges or determine funding. The U.S. has pulled
itself out of the process just at the time when the U.S. ought
to continue to be engaged.
Because of the adverse fallout, the U.S. probably will not
be able to employ the Security Council track of the tribunal
which was, in the United States view, the whole reason why such
an ad hoc tribunal on a permanent basis was worthwhile.
In the final analysis, I think the U.S. may have lost more
than it preserved by voting against the International Criminal
Court, and I think it is very telling which other countries
joined the U.S. there were at least 7 countries that voted
against and there were 120 that voted in favor. Those countries
are not countries that I want our country keeping company with.
They are Iran, Iraq, Libya, China, and Yemen, and only Israel
was the only ally of the United States, for its own reasons,
that voted no.
Now, there are other issues that I am happy to address
during the question and answer. I see my time is up, but I
would like to say that there is another side to some of the
questions that have been raised. The constitutionality of the
Court, the protections of the Bill of Rights, the applications
of citizens of a non-Party State, and the issue that Senator
Feinstein raised about the occupying powers all have another
side; and I am happy either to talk about that today or to
submit further written answers to those questions.
Thank you.
[The prepared statement of Mr. Scharf appears in the
appendix on page 69.]
Senator Grams. Thank you very much, Mr. Scharf, for your
statement.
I was hoping that I would be considered the baby face of
the hearing.
Or Senator Feinstein.
I would like to for courtesy defer Senator Feinstein to
begin this round of questions.
Senator.
Senator Feinstein. Well, thank you very much.
I think this has been a very interesting discussion, and I
really hope that people sitting in the audience have gotten as
much out of it as I have. You really see how something with
good intent becomes subject to an enormous problem.
Let me begin, if I might, with Mr. Scharf because I think
you had a difficult role here. You were really sort of the only
note of positiveness about this court in all these hours.
I do not understand really why you feel there is an
incentive for the United States to continue in this situation;
because what is clear is that the die is really cast, and
unless you have a much more developed link to the Security
Council, it seems to me that nothing else you do really makes
any difference if you are going to have that independent
prosecutor. I mean, we have learned about independent
prosecutors, at least I have, in this country, and I do not
think they are always such a good idea, to be honest with you.
So, could you comment on that question?
Mr. Scharf. Yes, certainly.
Even though the United States is now the lone super power,
the greatest economic and military power in the world, we are
not alone in the world, and what other countries do does make a
difference, contrary to what some people might wish or hope.
The other countries in the world made it clear early on that
there was going to be an international criminal court. There
will be such a court and the U.S. will have to deal with that.
Early on the United States correctly decided to engage, to make
a major effort to try to turn this court into something that we
could live with. And David Scheffer should be applauded;
because, really, the United States bullied its way into getting
the U.S. stamp on almost every single provision in the
International Criminal Court statute. It is really a U.S.
statute with just a couple of exceptions, a couple of things
that we did not get.
But what I am saying is that we are going to have a court
anyway. It could be a negative influence on the United States
if we do not engage, if we do not continue to be part of the
process. If we do continue to be part of the process, either
through trying to get new amendments, to get further
protections, or living with the protections that we did get--
and I think they have been downplayed today. I think the
successes of the U.S. delegation were enormous and the rest of
the countries in the world were surprised at the last minute
that the U.S. could not accept those because when you go into a
negotiation, no one thinks they are going to get everything,
and the U.S. got about 95 percent. It was enough for France. It
was enough for the United Kingdom. It was enough for Russia.
Perhaps we could revisit this and decide that with some
modifications, this is enough for us, but I think the
alternative is going to be a disaster.
Senator Feinstein. Thank you. Well, finish that. A disaster
in what respect?
Mr. Scharf. In that we will not be participating. If we are
worried about a politicized court by not being involved in the
process of creating its rules of procedure and electing its
judges and appointing its prosecutor, we are going to get just
what we fear. But in the Yugoslavia context where we were
engaged, the president of the Yugoslavia Tribunal is a U.S.
Federal Court former judge. The prosecutor of the Yugoslavia
Tribunal is our friend and ally Canada. We have a court that we
are very comfortable with and we can live with because we have
engaged in that court. Why should we disengage in this court?
Senator Feinstein. Well, you have heard comments on both
sides of the aisle here today that now the United States should
begin to reexamine its force structure and commitment to other
nations.
Mr. Scharf. I have heard the beginnings of an isolationist
movement today, and it frankly scares me. If you follow what
Senator Helms is suggesting, the Court is still going to be a
reality. Not every one of those 60 countries is going to be
bullied by the United States. And we are going to end up
disengaging our military forces from NATO, from the United
Nations peacekeeping? I mean, this would not be in our best
interests just over the International Criminal Court.
What you also have to understand is the day of the vote on
this court there was 15 minutes of cheering. When 120 countries
voted in favor, there was a strong, strong belief that this
Court was in the world's best interest. And this Court is going
to happen.
Senator Feinstein. Could we ask the other two witnesses to
comment on this?
Mr. Bolton. Yes, I would appreciate the opportunity.
It is fanciful to say that the United States' abstaining
from dealing with the Court will result in a disaster for this
country. The result will be that the Court will have no
legitimacy, that the Europeans in their frequently and
unfortunately cynical fashion will make sure that it really
does not affect them, and most of the world will pay it lip
service and ignore it.
The only way to get the attention of the rest of the world
after the spectacle in Rome that Mr. Scharf just described--
then I want to come back to the 15 minutes of cheering--the
only way to restore respect is to say, you made that court, you
live with it.
Now, I was stunned when I read in the newspapers about the
cheering after the take-no-action motion on the U.S. amendment
to have non-States Party defendants not subject to
jurisdiction. It recalled to me nothing so much as two votes in
the General Assembly of the United Nations from what I had
thought were the old days, the bad old days, and I am thinking
of two, one in 1971 and one in 1975.
The one in 1975 was when the General Assembly adopted the
resolution equating Zionism with racism, a resolution which I
am proud to say in the Bush administration we got the General
Assembly to repeal. But in 1975 there was sustained cheering in
the General Assembly after Zionism was declared to be racism,
and Senator Moynihan, then Ambassador, went to the podium and
said the United States will never abide by this resolution. We
will never accept it. We will never adhere to it, which was a
statement of high principle, which we adhered to until we got
it repealed. So, that is one answer.
The second was the 1971 vote in the General Assembly when,
contrary to the U.N. Charter, the representatives of Taiwan
were expelled and the Peoples Republic of China were inserted,
and at that point that was the event that led then Ambassador
Bush, after he left the United Nations, to write as the title
of his book on his experiences, The Light that Failed.
Now, I had hoped that with the end of the Cold War, the
majority in the General Assembly had gotten over those kinds of
silliness; but I must say I interpreted that sustained applause
in Rome to be a thumb in the eye of the United States. They
enjoyed every minute of it, and it would be humiliating for the
United States now to go back to that majority who care about
this court and say, gee, please let us talk to you about it
some more. We should isolate it and ignore it.
Senator Grams. Mr. Casey.
Mr. Casey. Senator, if I might add on one point. Mr. Scharf
suggests that unless we participate in the Court, we are
effectively going to be stuck with it and not be a player. The
fact is that this Court's assertions of authority over
Americans is illegal. We have talked a lot today about
universal jurisdiction, and everyone always used the term
loosely. In fact, this Court does not have universal
jurisdiction. That is a concept of customary international law
that allows States to assert jurisdiction over individuals who
have committed certain very narrowly defined crimes, piracy,
the slave trade, perhaps war crimes, perhaps genocide, much
more narrowly defined than in the statute.
In fact, this Court's assertion of jurisdiction over the
citizens of countries who have not become a member to the
treaty is entirely unprecedented. This Court is entirely a
matter of treaty. It is a creature of this treaty. Unless we
join the treaty, it cannot exercise jurisdiction over the
United States or its citizens.
Senator Feinstein. Thank you very much. It is a very
interesting discussion. Thank you all very much.
Senator Grams. Mr. Scharf, I would just like to begin
questioning with you on this one subject. You have used I think
some very obvious examples of prosecution for war crimes,
genocide, et cetera with names like Hitler, Pol Pot, et cetera.
But what about the real possibility of real abuse by this Court
seeping in the politicizing of prosecution? That is what I
think most people are concerned about. If the Court would
define and remain focused on just those type of atrocities, I
do not think most would have concerns, but when you open this
up to politicizing the decisions by one or three or the review
by the same on those decisions, I think that is what has the
concern of abuse of this Court.
Mr. Scharf. Well, I think the statute of the Court has five
levels of protections built into it to try to prevent the Court
from being politicized. Every country in the world was worried,
not just the United States, about a body that might be
politicized and one day would turn on that country. Therefore,
there was support for our protections.
Let us look at a case study. Let us say the United States
does something very controversial. It decides to invade another
country. The rest of the world does not think that that was in
self-defense and decides to indict our Secretary of Defense or
even our President. What would happen under that scenario?
Well, what would happen is at the first level, the United
States would say this is not part of the Court's jurisdiction
because this is not a serious war crime, and if the prosecutor
does his or her job, they will decide, no, this is not what the
Court was about. This is not a serious war crime. This is not
of the level of genocide. This is a peacekeeping effort. This
is something that is appropriate. But we cannot trust the
prosecutor to do his job. You do not know.
So, then the prosecutor has to go to the three-judge panel,
and you hope that two of those judges will see the light. But
if they do not, then you have to go to the full panel of all of
the judges. During this time period, the United States can stop
it in other ways. If we do our own investigation like a
Lieutenant Calley, what if our Secretary of Defense was doing a
rogue operation? We could investigate and we could decide to
prosecute, in which case it turns off the Court, or we could
decide that there is no grounds for prosecution, but that we
made that decision in good faith, which also turns off the
Court and that decision is appealable.
Finally, we can go to our friends on the Security Council
and say, look, you do not want your leaders to be brought
before the Court. Join us in voting to turn off the Court. The
five permanent members are very likely to join us, and if we
can get four out of the other nine members to do so, then the
Security Council can stop.
These are all protections to prevent just that kind of
scenario from coming about.
Senator Grams. Mr. Bolton, Mr. Scharf had said earlier in
his statement that the U.S. would not be immune from this
court. That has some concern I think for many. Article 27 of
the Rome treaty requires that the Court apply equally to all
persons without any distinction based on official capacity. In
your opening statement, you stated that the main concern of the
U.S. should be that the President, cabinet officials, and other
senior leaders responsible for defense, for foreign policy
decisions would be the potential targets of an independent
prosecutor.
So, my question to you, and again echoing ``not immune,''
do you believe the existence of this court would have a
chilling effect on the decision made by our U.S. senior
officials from the President, cabinet members, et cetera, kind
of always like looking over their shoulder?
Mr. Bolton. Well, let me say first I agree with Mr. Casey's
assessment, that because the United States is not going to be a
party to the statute of Rome, that nothing they do--nothing--
has any jurisdiction over us. There is simply no basis for it
at all and we can and should ignore it.
But in the event that we either joined at some point or
that a subsequent administration or this administration does
not share that analysis, I think these vague, ambiguous, and
expansive provisions could well have a chilling effect on top
decisionmakers, and I can guarantee you that the lawyers in the
State Department and the Pentagon are going to be reading it
very carefully all the time.
If I might read one section of this on--or two sections,
individual criminal responsibility. It says in Article 25, a
person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court if
that person ``orders, solicits, or induces the commission of
such a crime.'' Orders, solicits, or induces. That is what
military chains of command do.
You have cited Article 27. I think everybody should read
that as well, especially in the Senate, because it also says
expressly that members of a government or parliament or elected
representative are not immune either. So, if you were to
declare war, when aggression finally gets defined at some point
down the road and it is determined to be an act of aggression
and therefore a criminal element, conceivably Members of
Congress who voted to declare war could be liable as well.
I just want to say again one other thing, Senator, I think
you mentioned in your opening statement and others have
commented on. Article 120 says, ``No reservations may be made
to this Statute.'' I think very clearly the people who wrote
that in were worried about the Senate quite frankly which
writes reservations to almost every international convention
that the United States agrees to, not the least of which was
the Genocide Convention that I mentioned before. The fact that
they would try to strip you of your ability to write
reservations and understandings in the U.S. accession to this
law, I find very, very troubling.
I think if you have to read the long-term precedential
value of Rome, it is that we have some very tough sledding
ahead and that we need strong diplomacy from the President to
prevent this thing from getting even worse than it was in Rome.
Senator Grams. Senator Feinstein.
Senator Feinstein. No. I think that completes it. Again, I
think, Mr. Chairman, it is a very interesting hearing and there
is a lot of food for thought. Thank you three gentlemen very
much.
Senator Grams. I have just a couple of quick ones.
Senator Feinstein. You will have to excuse me.
Senator Grams. Mr. Casey, Ambassador Scheffer remarked that
there were examples of Americans committing crimes on U.S.
soils who were prosecuted abroad. He said he is going to give
us some information on that. What I was wondering, could you
think of any such examples?
Mr. Casey. Well, I would be very interested to see what
they submit. The only way that Americans can be prosecuted
abroad for what they do in the United States is if what they
have done is to intentionally attempt to bring about a criminal
effect overseas, and therefore the overseas nation may be able
to exercise extraterritorial jurisdiction and ask for their
extradition.
There is only one case I can think of where this actually
happened, and it is a case involving an individual in
Connecticut--the cite is actually in my written statement--who
solicited and planned the murder of someone. I think it was in
Montreal, and the Canadian authorities, of course, asked for
his extradition and the individual was indeed extradited.
Again, there that individual purposefully set out to bring
about an illegal effect in another country. So, under the rules
of jurisdiction, it was appropriate and constitutional to send
them overseas.
One thing to keep in mind is under the ICC treaty, this
would reach crimes committed in the United States by Americans
against Americans.
In addition, it should also be kept in mind that the most
likely means by which the Court will attempt to reach our high
officials, our leaders is through a theory of command
responsibility. Well, under a theory of command responsibility,
you do not need any intent to bring about illegal effect
overseas. All that has to happen is that American troops
overseas commit a crime. If you are in the chain of command,
you are on the hook.
Senator Grams. Mr. Scharf.
Mr. Scharf. Can I just address that issue as well?
Senator Grams. Sure.
Mr. Scharf. I think there is another side to it.
First of all, I would ask you to try to get a copy of the
National Judicial Conference report that was prepared in 1992
on the Permanent International Criminal Court because they
addressed the constitutionality of the Court. They addressed
this issue, and citing the case of Ex parte Quirin, which is a
U.S. Supreme Court case, they found that this argument which
had been raised and made was not consistent with today's
precedent, existing precedent, before the Supreme Court. Yes,
in fact, there is no constitutional bar for the United States
to participate in an international tribunal and even to send
its citizens to the tribunal. And in Ex parte Quirin, there
were several Yugoslavs who were actually of U.S. citizenship
that were sent to an international tribunal.
Senator Grams. Just a couple of brief questions and I know
I will let you go.
But, Mr. Scharf, I will start with you again. There are
many who wonder why we want to replace the current courts
dealing with war crimes, genocide, et cetera, even though they
might be inefficient, exhaust a lot of people politically at
the U.N. putting these together, but why do we need to replace
them with an ICC? There were a number of war crimes committed
when the Yugoslav Tribunal had already issued indictments
against perpetrators. So, what makes you think that the ICC
indictments would have any different effect or would be a
stronger deterrent to what we currently have?
Mr. Scharf. Well, that is because when the Yugoslavia
Tribunal was established, most people in the world, including
the Bosnian Serbs, thought it was a joke. They thought it was
just the major powers trying to paper over their failure to
intervene to stop the atrocities.
It was not until after the Srebrenica massacre that the
Yugoslavia Tribunal began to apprehend individuals and to bring
those people to justice. Now you have got major generals, you
have got major leaders, and you have even got Karadzic, who is
increasingly likely to be apprehended. And now it is a
completely different situation. People are now taking that
seriously, and when a tribunal is taken seriously, when it
becomes effective, then it becomes a deterrent, and that is the
difference between now and before.
Now, I think the ad hoc tribunal approach was the best
possible approach. I had wished that the Security Council would
continue to create ad hoc tribunals for all the other
situations. Unfortunately, the other countries in the world
felt that it would be better to have a permanent institution.
Once that decision was made, the United States lost its ability
to use the Security Council through the ad hoc approach. Now,
as Senator Feinstein said, we are left with a tremendous gap if
we do not join in the permanent international criminal court
and at least try to revise that into something that we can live
with.
Senator Grams. Mr. Casey, I think many believe this treaty
was supposed to codify international law, not create new
international law.
Mr. Casey. Yes.
Senator Grams. Are there any areas where you think the
treaty really overstepped those bounds?
Mr. Casey. Yes, Mr. Chairman, many areas. The definitions
of crimes against humanity and of genocide, of aggression,
which is yet to be defined, and of war crimes themselves all
are far broader than that recognized in customary international
law.
To take an example, under the crimes against humanity
definition, there is a provision that would make it criminal to
impose essentially humiliating conditions on people based on
their ethnicity. Again, that is unprecedented in international
law and it is subject to basically any kind of meaning and
application the Court might wish to put on it.
Another example, and in fact a good example, in the
definition of genocide, there is also essentially a mental
distress element added in that the United States rejected when
it ratified that treaty, and that in fact is not contained in
the statutory definition of genocide that the Congress enacted
to carry it out.
So, there are really many areas where the definitional
section is far broader than international law currently is.
Senator Grams. Just one final question, Mr. Bolton. I would
like to just wrap it up. Two things really. I noted that you
had made a statement that the Clinton administration in their
naive support--I do not know if that was referring to getting
involved at all in the negotiations in Rome or what it meant,
but maybe you can explain that.
But also, as I mentioned in my opening statement, I believe
that this court I think makes an end run around the Security
Council. When we talk about not being involved, I do not think
we would have a very strong voice as we have had in some of the
tribunals in getting some people that we trust or are
comfortable with on these courts, but when you leave it open to
160 or 185 countries to be able to choose who would sit on
these courts and how we would respect those. Could you just
quickly address those?
Mr. Bolton. Certainly, Mr. Chairman. When the
administration came in, as you may recall, it declared its
foreign policy to be something that they labeled assertive
multilateralism. Now, I for one never understood what assertive
multilateralism was, but I did take an element of it to be more
reliance on getting Security Council authorization for elements
of U.S. foreign policy. Almost from the beginning, just a month
after the inauguration, the administration sought Security
Council creation of the first war crimes tribunal. They saw it
quite clearly at the time as an ad hoc first step toward the
creation of a permanent international criminal court.
So, this path of international negotiation that has gone on
almost for six years now is something that they concede right
from the beginning. Ambassador Scheffer has written numerous
times on the subject, both before and after he took office. He
said, while he was in office in 1996--I am quoting from an
article of his in Foreign Policy--``The ultimate weapon of
international judicial intervention would be a permanent
international criminal court.'' And he goes on to say, ``In the
civilized world's box of foreign policy tools, this will be a
shiny, new hammer to swing in the years ahead.'' I think what
happened is the administration let the genie out of the bottle
and the genie took the hammer and broke their nose.
Senator Grams. With that, I want to thank you very much.
I appreciate you gentlemen being here, and I think we will
probably be hearing more from you in the future because I
expect that this is going to be a controversial debate and we
would draw on your expertise and your comments in the future.
So, I want to thank you very much for your time.
Mr. Casey. Thank you, Mr. Chairman.
Mr. Scharf. Thank you.
Mr. Bolton. Thank you.
[A statement submitted by The Lawyers Committee for Human
Rights appears in the appendix.]
Senator Grams. The hearing is completed.
[Whereupon, at 12:37 p.m., the subcommittee was adjourned.]
A P P E N D I X
----------
Additional Questions Submitted for the Record by the Committee to
Ambassador David J. Scheffer
Questions Submitted by Senator Ashcroft
Clarification of the Administration's Position on the Court
Question. Does the Administration have any current plans to try to
modify the agreement reached in Rome to enable American participation?
Answer. Of course we would welcome modification of the agreement to
make it acceptable to the United States. At this stage, however, it
would be premature to attempt to assess whether and to what extent
modification of the treaty might be feasible.
Question. Does the Administration have any plans to cooperate--
informally or formally--with the Court during the ratification phase or
after that phase should the requisite number of countries agree to
participate?
Answer. The Administration has no plans to cooperate with the Court
at this stage. We do not anticipate that this question will arise until
the treaty enters into force and such a Court is created or, at least,
until some future time if and when entry into force is foreseeable.
Question. What will our posture be with allies who are considering
whether to sign on to the treaty?
Answer. As I stated in my testimony, the Administration opposes the
treaty in its current form. While much of the treaty is very good, we
strongly oppose certain critical elements. We are of course
particularly concerned about those elements which could affect U.S.
nationals who are conducting legitimate activities overseas. Our
overall posture with allies beyond these aspects is under active
consideration at this time.
Possible Trial of Americans
Question. Assuming the Court is approved by the requisite number of
countries, would it be possible for the Court to assert jurisdiction
over American soldiers?
Answer. The text of the treaty provides that the Court could have
jurisdiction over an alleged crime occurring in a given country if that
country is a party to the Statute or has accepted the exercise of
jurisdiction by the Court with respect to the crime in question by
declaration. In such a case, therefore, the Court might seek to assert
jurisdiction over American soldiers, assuming the other requirements
were met.
(In view of our overall position as noted, the answers to this and
the following questions are based on the premise that the United States
itself has not joined the treaty. The question of Security Council
referral of a matter will also not be considered, as the United States
would have to agree to any such referral.)
Question. Again, assuming the Court is approved by the requisite
number of countries, would it be possible for the Court to assert
jurisdiction over American soldiers for acts committed on American
soil?
Answer. The Statute requires the consent of either the State on the
territory of which the conduct in question occurred or the State of
which the person being investigated or prosecuted is a national.
Accordingly, if the territorial State is the United States, the Court
could claim to assert jurisdiction only if the soldier, although in the
U.S. armed services, was of a foreign nationality and the foreign
government in question had joined the Statute or accepted the court's
jurisdiction by declaration.
Question. Can you envision circumstances in which the
Administration would ever consent to the voluntary transfer of an
American citizen to the jurisdiction of the Court for actions committed
on American soil?
Answer. If the citizen in question for some reason affirmatively
wished to be tried by the Court, a question of possible ``voluntary''
transfer could be presented. We do not envision circumstances under
which a U.S. citizen would be transferred against that person's will to
the jurisdiction of the Court for actions committed on American soil.
United States Reaction to Assertion of Jurisdiction over Americans
Question. Has the Administration considered how it would react to a
situation in which the court asserted jurisdiction over an American
citizen?
Answer. The Administration opposes the ``extraordinary''
jurisdiction provisions of the treaty which purport to confer
jurisdiction over official U.S. actions or actions within the United
States without the consent of the United States. Accordingly, the
United States would not accept such an assertion of jurisdiction, which
violates a fundamental principle of international law.
Question. Would the Administration ever consider conducting its
own investigation of an incident over which the International Court had
asserted jurisdiction to satisfy the concept of complementary and to
avoid an open conflict with the Court?
Answer. The United States condemns genocide, crimes against
humanity, and war crimes as a matter of strong and long-standing
national policy wholly unrelated to this or any other international
court. Accordingly, in the event that a non-frivolous allegation were
made that such a crime had been committed by an American soldier or
within the jurisdiction of the United States, we would expect that the
appropriate United States authorities would investigate such an
incident as a matter of course. The question of what the Administration
might do in the case of a frivolous claim, if the Court came into
existence and if the Court were to give credence to such a claim, is
too remote and speculative at this time. As a matter of general
principle, we would expect any United States Administration to take
such actions as it thought best in order to protect the interests of
the United States and its citizens.
Question. In a situation in which the Court asserted jurisdiction
over an American citizen, would the Administration plan to appear
before the Court to contest jurisdiction or would it simply refuse to
recognize the Court's asserted jurisdiction?
Answer. For similar reasons, this is too remote and speculative a
question at this stage. The same basic principles noted in response to
the prior two questions would appear relevant here as well.
Constitutional Concerns with the Trial of Americans
Question. If the Court were to assert jurisdiction over an
American soldier for actions taken on American soil, how could the
trial of that individual be reconciled with the requirement of Article
III, section 2 of the Constitution that ``[t]he trial of all Crimes,
except in Cases of Impeachment, shall be by jury; and such trial shall
be held in the State where the said Crimes shall have been committed''?
Answer. For reasons noted above, this specific scenario seems
particularly unlikely. Given the jurisdictional provisions of the
Statute, there would seem to be greater opportunities for the Court to
seek to assert jurisdiction in relation to actions occurring outside
the territory of a non-party State than in relation to actions
occurring within its territory. In general, however, we note that in
very rare instances persons within the United States have been
extradited to foreign countries in connection with crimes occurring
abroad, where the particular actions of the individuals in question
were performed within the United States. For example, in Austin v.
Healey, 5 F.3d 598 (2d Cir. 1993), a U.S. citizen was extradited to the
United Kingdom for conspiring from New York to commit a murder in the
UK. For its part, in the case of transnational crimes such as drug
trafficking, the United States has regularly sought the extradition of
persons from various countries for actions which may have largely been
performed in those countries, for example in leading and directing
major drug cartels.
Question. In such a trial, how could the other constitutional
rights of criminal defendants be guaranteed?
Answer. As noted in response to the previous question, we do not
believe that U.S. Constitutional rights necessarily apply to trials by
foreign authorities outside the United States. This is well settled in
extradition practice. In general, however, we note that the United
States, along with other countries, worked vigorously to see that the
ICC Statute incorporated adequate due process protections for
defendants. This is not an aspect of the treaty that we consider to be
seriously deficient or flawed.
Question. What about a situation in which the Court asserts
jurisdiction over an American soldier for actions taken abroad? Should
such a soldier have the same protections that would be guaranteed to
him by the Constitution if his actions were taken on United States
soil? Should he enjoy the same protections applicable to him in a court
martial proceeding?
Answer. The Administration believes strongly that U.S. soldiers
should be tried by U.S. authorities and not by the Court. The Court is
supposed to assert jurisdiction only in the event of a fundamental
break-down in national institutions, such that the national authorities
do not investigate and prosecute the commission of these crimes. Since
the United States does and will continue to investigate and, where
there are grounds to do so, prosecute such crimes, intervention by such
a Court would not be warranted.
Enforced Pregnancy Issues
Question. As you know, the language in the treaty concerning
enforced pregnancy was of great concern to many individuals. At the
beginning of the process in Rome, this term was undefined, which led to
the concern that it might be used to try to attack national policies
concerning pregnancy and abortion. Fortunately, the negotiations in
Rome produced a narrow definition of this term so that it expressly
does not apply to national policies on pregnancy. What role did the
United State play in the negotiations over this term? Did the United
States take a formal position in favor of any particular definition of
that term?
Answer. The United States was consistently supportive of finding a
definitional solution that could be adopted with the agreement of all
concerned, as was ultimately the case. The United States was of the
view that the definition of crimes within the Statute should in all
cases be clear, precise, and strictly limited to acts which were
recognized as criminal under customary international law. Questions of
individual rights or social policies, whatever their merits or
demerits, were wholly outside the proper scope of the Statute. The
United States could have envisioned a definition within the main text
of the Statute that was somewhat simpler than that ultimately adopted,
which focused on the unlawful detention of a woman forcibly made
pregnant. At the same time, however, the U.S. view was that this
definition and all others should be further elaborated in an Annex
specifying the ``Elements of Crimes'' which could in general help to
ensure that all crimes within the jurisdiction of the Court were
understood to be limited to well-established crimes.
__________
Prepared Statements of Hearing Witnesses
Prepared Statement of John R. Bolton
I. Introduction and Summary
Mr. Chairman and members of the Subcommittee, I want to thank you
for the opportunity to testify before you today on the somewhat-
misnamed ``International Criminal Court'' (the ``ICC,'' or ``the
Court''). In fact, what delegates to the recently concluded conference
in Rome have done is created not only a Court, but also a powerful and
unaccountable piece of an ``executive'' branch: the Prosecutor.
Unfortunately, international support for an ICC of some kind is
based largely on emotional (and sometimes irrational) appeals to an
abstract ideal of an international judicial system, unsupported by any
meaningful evidence, and, frequently running contrary to sound
principles of international crisis resolution. Moreover, for some,
faith in the ICC is motivated largely by a publicly-muted or unstated
agenda of creating evermore-comprehensive international organizations
to bind nation states in general, and one nation state in particular.
Regrettably, the Administration's own naive support for the concept of
an ICC has now left the United States in a far weaker position
internationally than if we had simply declared our principled
opposition to the very concept in the first place.
The basic logic of the Statute of Rome's proponents is that if you
abhor genocide, war crimes, and crimes against humanity, you should
support the ICC. This logic is flatly wrong, for three compelling
reasons:
First, all available historical evidence demonstrates that the
Court and the Prosecutor will not achieve their central goal--the
deterrence of heinous crimes--because they do not (and should not) have
sufficient authority in the real world. Beneath the optimistic rhetoric
of ICC's proponents, there is not a shred of evidence to support the
deterrence theories of the Court's advocates. Moreover, their attempted
analogy to the deterrence of domestic law-enforcement systems is naive,
unfounded and disingenuous.
Second, the roles envisioned for the Court and the Prosecutor
fatally confuse the appropriate roles of law and politico-military
power in international affairs, to the detriment of the ICC's own
goals, and to the national interests of the United States should the
ICC, contrary to every likelihood, actually prove effective. There are,
in any event, important and very viable alternatives to an ICC in
international problem solving that should not be abandoned.
Third, the larger objectives of many ICC supporters run contrary to
American interests in accountable, constitution-based government, and
should be regarded as incompatible with the fundamental attributes of
our political system, our foreign policy interests, and, over the long
term, our national independence.
Our main concern here, from the American perspective, is not that
the Prosecutor will target for indictment the isolated U.S. soldier who
violates our own laws and values, and his or her military training and
doctrine, by allegedly committing a war crime. Our main concern should
be for the President, the Cabinet officers who comprise the National
Security Council, and other senior civilian and military leaders
responsible for our defense and foreign policy. They are the real
potential targets of the politically unaccountable Prosecutor created
in Rome.
The millenarian rhetoric of the ICC's supporters will not withstand
scrutiny, and the United States should be quite content that it will
not be a State Party to the Rome Statute of the International Criminal
Court. The ICC is a fundamentally bad idea, which cannot be improved by
technical fixes as the years go by. Indeed, if the range of proposals
suggested in Rome, but not included in the final Statute, is any
indication, the Statute will only get worse, not better.
In this testimony, I will expand on the reasons why the ICC is a
flawed, naive and potentially dangerous institution, and also recommend
a policy approach for the United States for the years ahead, on the
assumption that the ICC now actually gets off the ground. That policy
should essentially be to isolate and ignore the Court and its
Prosecutor by not providing any U.S. support--political or financial--
for the exercise of their treaty authority. The United States should
seek to preserve the relative role of the UN Security Council in the
system of international organizations, and now permit the Court and the
Prosecutor to erode its position. Moreover, the U.S. can and should
seek approaches and mechanisms outside of and alternative to the ICC to
advance American interests in dispute resolutions around the world.
II. The ``Nuremberg Analogy'' Misreads and Misapplies History
A substantial part of the emotional appeal of an ICC is the
mistaken notion that it traces its intellectual lineage directly back
to the Nuremberg (and Tokyo) war crimes trials after World War II. \1\
ICC supporters argue that its trials of alleged war criminals will
perform the same functions as the Nuremberg tribunals, and are
therefore justified.
---------------------------------------------------------------------------
\1\ These courts were known formally as the ``International
Military Tribunal'' (``IMT'') at Nuremberg and the ``International
Military Tribunal for the Far East'' (``IMTFE'').
---------------------------------------------------------------------------
However, by examining, even briefly, what actually happened at
Nuremberg, not only are these contentions easily shown to be wrong, but
also we can learn important lessons why the ICC as presently conceived
can never perform effectively in the real world. The successes achieved
by Nuremberg must be understood in its context, which understanding
will in turn show why the ICC is almost certain to fail.
First, the Nuremberg trials were conducted in the aftermath of a
war that resulted in the complete military and political victory of the
winners, and the unconditional surrender of the losers. Unlike our more
recent experiences, there was no ambiguity in the result of World War
II. In politico-military terms, the enemy forces had been routed or
destroyed in battle after battle, on land, at sea and in the air, and
there was absolutely no question--in their minds or in ours--about the
extent of their military defeat. Their existing governmental systems
had been shattered essentially beyond repair, and their prior political
leaderships were disgraced. The economic systems of the enemy states
had been shattered, and they faced an extended military occupation by
forces from the victorious powers.
Moreover, in legal terms, preparations for war crimes trials
enjoyed certain enormously important advantages. Essentially all of the
prospective defendants were in the custody of the victorious powers
(other, of course, than those who had died in the closing days of the
War). There was no question of trials in absentia. Additionally,
because of the visible and massive presence of Allied forces, victims
of the crimes and other potential witnesses were free from intimidation
and the fear of retribution for their testimony, or from the
possibility of conspiracies to suborn perjury or otherwise frustrate
the tribunals' efforts. Finally, large quantities of physical and
documentary evidence (whether helpful to the prosecution or the
defense) were in the possession of the victors, or were easily
obtainable. Accordingly, there was little or no risk of destruction or
tampering of such evidence while investigative and pre-trial efforts
were underway.
Second, and more broadly, the principal managers of Nuremberg, the
British and the Americans, almost completely shared political and
juridical norms, both in the immediate aftermath of the War, and in
their long-term vision for the futures of the defeated enemy states.
Because of their shared legal traditions, the Allies were quickly able
to agree on the appropriate legal standards and procedures to be
applied. The tribunals' jurisdictional mandates themselves were
selective and limited, and the prosecutorial and judicial authorities
had the highest integrity and professional abilities. All of the
prosecutions and the adjudications were controlled exclusively by
officials of the victorious military coalitions.
Most significantly, the trials were not narrowly conceived to be
exercises in ``settling scores.'' The Allies had an agreed-upon vision
of what the post-Occupation governments of the defeated states would
be, and the war-crimes trials were a key element of the necessary
transformation to a new society. This transformation was implemented
through numerous channels--not just the war crimes trials--including
everything from the complete rewriting of the constitutions of the
defeated nations to programs of ``denazification'' at all levels of
society. The victorious Allies desired, and these factors (particularly
the extended military occupation) encouraged the endorsement by the
vanquished of the legitimacy of the Nuremberg process and its results.
Indeed, in Germany, once restored to full sovereignty, national
institutions continued to prosecute alleged war criminals. Thus, the
Allies were successful in their efforts to internalize among the
defeated populations the recognition and acquiescence of their prior
governments' and leaders' culpability, and thereby prevented the
fostering of a post-Versailles ``sellout'' mythology.
Simply restating this history, even in summary fashion,
demonstrates the unique confluence of circumstances that permitted the
successful prosecution of war crimes at Nuremberg to contribute to the
political and social transformations of the societies of the defeated
states, and to their reconciliation with their former adversaries.
While no one of the factors mentioned could confidently be said to be
completely sufficient for future successful war crimes prosecutions, we
can predict with some degree of confidence that several of them might
be necessary. Perhaps most important was the unambiguous military
relationship between winners and losers, post-World War II, and the
high degree of shared values among the key winners.
III. The Deterrence Argument Has No Empirical Foundation
Careful analysis of the Nuremberg experience (rather than simply
its rhetorical deployment for emotional purposes) is usually precluded
by the assertion of ICC proponents that Nuremberg was an inadequate
post-facto response. They argue instead for the deterrent value of
having an on-the-shelf Court and Prosecutor, contending that the
absence of a permanent ICC is the real problem. So central is the
deterrence argument to ICC advocates that it has become a near-
religious article of faith among them.
It is incredibly striking, therefore, that faith is about all they
have to support their argument. Rarely, if ever, has so sweeping a
proposal for restructuring international life had so little empirical
evidence to support it. Instead, the assertion that deterrence will
follow inevitably from the risen Court is simply made without a shred
of supporting evidence. Merely as one example, Mr. William Pace told
the Rome Conference that: ``[i]f we succeed it means the establishment
of a court which will prevent the slaughter, rape murder of millions of
people during the next century.'' \2\ Mr. Benjamin B. Ferencz was
closer to being accurate when he said ``[t]he certainty of punishment
can be a powerful deterrent.'' \3\ But his assertion about the ICC
comes no closer to making punishment a certainty than any other wishful
thinking.
---------------------------------------------------------------------------
\2\ Statement of William Pace to the Rome Conference, June 15,
1998. (This statement, like others quoted in this testimony, can be
found at http://www.un.org/icc.)
\3\ Statement of Benjamin B. Ferencz of the Pace Peace Center, June
16, 1998. Mr. Ferencz also told the Rome Conference that ``[olutmoded
traditions of State sovereignty must not derail the forward movement.''
---------------------------------------------------------------------------
In many respects, the ICC's advocates fundamentally confuse the
appropriate roles of political (and often economic) power, diplomatic
efforts, military force and legal procedures. No one seriously disputes
that the barbarous actions and heinous crimes about which ICC
supporters correctly complain are acceptable to civilized peoples. The
real issue is how and when to deal with these acts, and this is not
simply an exercise in taxonomy, characterizing this as a legal problem,
and that as political problem, and the other as a military problem. The
ICC's advocates make a fundamental error in trying to transform matters
of power and force into matters of law. \4\ Misunderstanding the
appropriate roles of force, diplomacy and power in the world is not
just bad analysis, but bad and potentially dangerous policy for the
United States.
---------------------------------------------------------------------------
\4\ Mr. Pace's statement, once again, provides an excellent example
of the near-theological fervor of this conviction. He asked the Rome
Conference: ``Will we replace the centuries-old rule of impunity with
the rule of just law? . . . Will the ICC be the formal war-related
victim of the Twentieth Century, or a major advance in replacing the
rule of force with the rule of law in the Twenty-first Century?''
---------------------------------------------------------------------------
Recent history is unfortunately filled with cases where even strong
military force or the threat of force has failed to deter aggression or
the commission of gross abuses of human rights. Why we should believe
that bewigged judges in the Hague will prevent what cold steel has
failed to prevent remains entirely unexplained.
There are, of course, cases where ICC proponents argue that the
``world community'' has failed to pay adequate attention, or failed to
intervene in a sufficiently timely fashion to prevent genocide or other
crimes against humanity. The new Court and Prosecutor, it is said, will
now guarantee against similar failures in the future. But this is
surely fanciful. Deterrence ultimately depends on perceived
effectiveness, and, as discussed more fully below, the ICC is most
unlikely to be that. In those cases where, in particular, the West was
unwilling to intervene militarily before, as in Rwanda, to prevent the
possibility of crimes against humanity as they are happening, why will
a potential perpetrator feel deterred by the mere possibility of
distant legal action?
Moreover, even if administratively competent by its own standards,
the ICC's authority is likely to be far too attenuated to make the
slightest bit of difference either to the potential perpetrators of
crimes against humanity or to the outside world. For example, the
knowledge of the ``world community'' will certainly be far more
complete and up-to-the-minute than the ICC, and its political decision
to intervene will have to crystallize far more quickly than the
Prosecutor can prosecute. Thus, absent other factors tending to support
international intervention, the ICC is not going to alter that balance,
as all will plainly see in short order after the Court and Prosecutor
begin operations.
Even viewed in the light most favorable to the ICC's advocates,
this debate is solely about predictions. Without more, predictions
alone (and blind faith is really a better description of what ICC
advocates are pursuing) are insufficient to support radical changes in
the international order.
Needless to say, of course, I do not view the argument in this
light. I believe that the empirical evidence that does exist in the
military sphere argues strongly that a weak and distant legal body will
have no deterrent effect on the hard men like Saddam Hussein or Pol Pot
most likely to commit crimes against humanity. Holding out the prospect
of ICC deterrence to those who truly are already weak and vulnerable is
nothing but a cruel joke.
IV. Post-Conflict Justice and Reconciliation May--Or May Not--Be
Consistent
There Are Alternatives To The ICC
It is by no means clear that the international search for
``justice'' is everywhere and always consistent with the attainable
political resolution of serious political and military disputes,
whether between or within states. It may be, or it may not be. Indeed,
human conflict over time teaches that, unfortunately for moralists and
legal theoreticians, there is more likely than not to be a series of
tradeoffs among inconsistent objectives that mere mortal policy makers
will have to undertake. This is a painful and unpleasant realization to
face, confronting us as it does with the irritating facts of human
complexity, contradictions, and imperfections. Some elect to ignore
these troubling intrusions of reality, but those judging the merits of
the ICC do not have (or should not follow) that option.
As described above, Nuremberg seems to have accommodated acceptably
both the search for justice and the transformation and reconciliation
of the defeated enemy states with the victors. Others may as well, but,
as demonstrated above in the examples of Bosnia and Rwanda, others may
not. Thus, what experience we have accumulated argues in favor of a
case-by-case approach rather than the artificially imposed uniformity
of the ICC.
One ongoing experiment that is worth following closely is South
Africa's Truth and Reconciliation Commission. In the aftermath of the
evil, destructive, and frequently deadly, system of apartheid, the new
government faced the difficult tasks of shifting political power from a
white minority to a black majority, establishing and legitimizing truly
democratic governmental institutions, and dealing with earlier crimes
and wrongs. One option certainly would have been widespread
prosecutions against those who perpetrated widespread human rights
abuses under the guise of enforcing apartheid. The new government felt
that while so doing might have produced feelings of vindicated (if
long-denied) justice among some segments of the population, it might
have produced also corresponding feelings of persecution and unfairness
among those targeted for prosecutions.
Instead, the new government decided to follow a different model,
establishing the Truth and Reconciliation Commission as a way of
dealing with the unlawful acts of the prior government. Under the
Commission's charter those who may have committed human rights abuses,
both from the apartheid government and the anti-apartheid movement,
have the opportunity to come before the Commission and confess their
past misdeeds. Assuming they confess truthfully and fully, the
Commission can in effect pardon them from prosecution. \5\ This
approach is intended to make public more of the truth of the apartheid
regime in the most credible fashion, to elicit thereby admissions of
guilt, and then to permit society to move ahead without the continued
opening of old wounds that trials, appeals and endless recriminations
might bring.
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\5\ This condition is obviously both important and controversial,
and deserves more extended discussion than is possible within the scope
of this testimony.
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I do not argue that the South African approach should be followed
everywhere, or even necessarily that it is the correct solution for
South Africa. Indeed, since the process is ongoing, it would only be
prudent not to draw overlarge conclusions from the existing body of
work of the Truth and Reconciliation Commission. But it is certainly
not too early to conclude that the approach now being followed by South
Africa is radically different from that contemplated by the proposed
ICC, which seeks vindication, punishment, and retribution as its goals,
as is the case for most criminal law-enforcement institutions.
It may well be that, under some circumstances, neither exact
retribution nor the whole truth is the desired outcome of the parties
to a dispute. In many former Communist countries, for example, citizens
are today wrestling with the question of how to handle the involvement
of its citizens in secret police activities of the prior regimes. So
extensive was the informing, spying and compromising in some societies
that a tacit decision has been made that the complete opening of secret
police and Communist Party files once promised will either not be made
or will be made with exquisite slowness over a long period of time. In
effect, these societies have chosen a kind of ``amnesia,'' at least for
some time into the future, because it is simply too difficult for them
to sort out relative degrees of past wrongs, and because of their
desire simply to move ahead into whatever the future holds.
One need not agree with these decisions to have at least some
respect for the complexity of the moral and political problems they
must face. Only those most completely certain of their own moral
standing, or most confident in their ability to judge the conduct of
others in difficult circumstances, however, can reject the amnesia
alternative out of hand. Once again, our experience should counsel for
a prudent approach that does not invariably insist on international
adjudication to an alternative that the parties to a dispute might
themselves ultimately agree upon. Indeed, with an ICC ``on the shelf,''
one can predict that one or more disputants might well try to invoke
the ICC's jurisdiction at an opportune moment, and thus--ironically--
make more complicated the ultimate settlement of a dispute.
A further alternative, of course, is for the parties to a dispute
themselves to try their own alleged war criminals. The ICC's proponents
usually only ignore or overlook this possibility, either because it is
inconvenient to their objectives, or because it utilizes national
judicial systems and agreements among (or within) nation states to
implement effectively. Here, one important contemporary example is
Cambodia. Although the Khmer Rouge genocide is frequently offered as an
example of why the ICC is needed, its proponents never address the
question of why the Cambodians and Cambodian judicial institutions
should not try and adjudicate allegations of war crimes by Cambodians
against each other. (The implications of this option in the context of
Bosnia are discussed below.)
Cambodia is again split by intense political disputes so divisive
that the UN General Assembly decided last September to leave the
Cambodia seat vacant rather than decide between the competing factions.
As before, these factions seek to internationalize their dispute, each
obviously hoping that external political intervention will tip the
domestic political scales in its favor. The earlier international
effort in Cambodia fell apart when it lost touch with actually trying
to bring the Cambodian factions into genuine agreement, instead of
solely agreeing to the words on a piece of diplomatic paper. By so
doing, among other things, they inevitably prolonged the disputes among
Cambodians.
Contributing to that prolongation is that idea that an
international war crimes tribunal is needed. Instead, Cambodians should
consider judging their own criminals themselves. There is a strong
argument that to obtain the full cathartic benefit of war crimes
trials, a nation must be willing to take on the responsibility
ofjudging its own (as Germany, and some others, did to an extent after
Nuremberg). To create an international tribunal for the task implies
immaturity on the part of Cambodians and paternalism on the part of the
international community. Repeated interventions by global powers are no
substitute for the Cambodians coming to terms with themselves, as some
of their leaders have clearly recognized. Indeed, the Far Eastern
Economic Review recently editorialized that ``It would appear that
continued foreign paternalism only delays Cambodians over their own
affairs. Pol Pot's death teaches us that the weakest imperialism is
also the most dangerous.'' \6\
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\6\ ``Pol Pot: Death be not proud,'' Far Eastern Economic Review,
April 30, 1998, page 78, column 2.
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It may well be that nations, entirely on their own, will not have
the entire wherewithal to mount successful war crimes prosecutions, and
that international assistance and support for national law-enforcement
efforts will be necessary. In such cases, the best source for such
assistance, at least in the first instance, is almost surely regional
organizations rather than the United Nations or another global body.
(Indeed, in the example of Cambodia, the ASEAN countries are perfectly
suited for exactly this role.) The central point, under any analysis,
however, is certainly that a permanent ICC may actually hinder or
prevent the comprehensive resolution of internal or international
problems, thus proving yet again the importance of utilizing the
readily available alternatives.
V. Recent Crises Demonstrate That Case-By-Case Treatment Is The Proper
Approach To Alleged International Crimes
Proponents of the Court and Prosecutor assert that the recent
histories with the two ad hoc war crimes tribunals established by the
Security Council, for Bosnia and Rwanda, demonstrate why a permanent
ICC is necessary. They further assert that circumstances where ad hoc
tribunals were not created, such as Cambodia, also support creating an
ICC. The actual evidence turns out to prove precisely the contrary
point, namely that our current knowledge demonstrates why it is wildly
premature to extrapolate from the limited, and highly unsatisfactory
experience with ad hoc tribunals to a standing Court and Prosecutor.
In Bosnia, the ad hoc war crimes court was established long before
the Dayton Agreement. In fact, it serves thereby as example of how a
decision to detach war crimes from the underlying political reality
advances neither the goal of a political resolution to the its
particular crisis nor the goal of punishment for war criminals. Even
today, functioning in the context of Dayton, the tribunal is not, and
probably cannot achieve its declared objectives. Moreover, if it could,
it is by no means clear that such a ``success'' would complement or
advance the political goals of a free, coherent and independent Bosnia,
not to mention reconciliation among the Bosnian factions.
Unlike Nuremberg, in Bosnia, there are no clear winners and no
clear losers. Indeed, in many respects the war in Bosnia is no more
over than it is in other parts of the former Yugoslavia, such as
Kosovo. Thus, the future status of the warring parties, their
respective politico-military postures, and their levels of political
support are afar from clear. Their prior leaderships, or persons
closely associated with them, are still in power, and likely to remain
so for the foreseeable future. Within Bosnia itself, there is every
reason to believe that ethnic separation and de facto partition is a
result more likely than national reconciliation, given the long
histories among the factions. Moreover, there is quite clearly no
consensus among then intervening powers, with the Russian Federation
taking a very different, and far more protective view of Serbian
interests than that taken by any Western European power or the United
States.
Significantly, there is no agreement, either among the Bosnian
factions nor among the external intervening powers about how the war
crimes tribunals fit into the overall political disagreement and its
potential resolution. Indeed, Bosnia is virtually a case study of how
the insistence on making legal process a higher priority than the basic
political resolution can adversely affect both the legal and political
sides of the equation. Merely as one example, it is far from clear that
war crimes trials will result in the expiation of war-time hostilities.
Press reporting over the years since the Yugoslav tribunal was created
seems to show almost without contradiction that Serbs regard the
tribunal as hopelessly biased against them, thus helping to reaffirm
the long-standing Serbian view that they are not understood or
appreciated by Western Europe. Croats are outraged that some of their
fellows have been indicted at all, because of the implicit equating of
them as war criminals along with the Serbs, and the Bosnian Moslems see
the whole process as inadequately vindicating their claims of
oppression at the hands of both Serbs and Croats.
In short, and very much unlike Nuremberg, much of the Yugoslav war
crimes process seem to be about score settling rather than a more
disinterested search for justice that will contribute to political
reconciliation. There may well be legitimate disagreement with the
perspective that score settling is in fact what is happening in
Yugoslavia, but this is a case where it only takes one to tango. If one
side--most likely the Serbs--believe that they are being unfairly
treated, and hold this view strongly, then the ``search for justice''
will have harmed the cause of Bosnian national reconciliation. All
outside observes might disagree with this assessment, but the outside
observers do not live in Bosnia. While the Yugoslav war-crimes process
is still obviously incomplete, its progress to date is not encouraging.
This assessment, moreover, does not even address the tribunal's
continuing inability to bring prominent defendants into custody, to
obtain and compel testimony from material witnesses, to prevent the
destruction and tampering of documentary and physical evidence, or even
to reach what is quite likely multiple ongoing conspiracies to obstruct
justice. Moreover, this failure is continuing contemporaneously with
the presence of thousands of heavily-armed foreign forces, including
those of the United States, on Bosnian territory. Governments of the
troop-contributing countries, for various reasons, have, to date at
least, not been willing to undertake the likely-necessary sustained
military operations that would be necessary to provide support for the
Yugoslav tribunal that might make it at least somewhat more effective.
\7\
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\7\ After the Dayton Agreement, it was not until June 10, 1997,
that the first IFOR military action to apprehend indicted war criminals
took place. See Richard Holbrooke, To End a War, Random House (1998),
at p. 190.
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One may certainly complain about this lack of resolve, as many
proponents of the ICC do, including those within the Clinton
Administration. But those more skeptical of the ICC are also entitled
to ask: ``If not in Bosnia, where?'' If the political will, say, to
risk the lives of troops to apprehend alleged war criminals in Bosnia
does not exist, where will it suddenly spring to life on behalf of the
nascent ICC? These are questions it would be particularly important to
address to those European and other governments in Rome's group of so-
called ``like minded nations'' that pushed so ardently for the creation
of the ICC.
Moreover, the option of the Bosnians themselves trying their own
war criminals of whatever stripe, mentioned as a possibility above, is
not even seriously discussed. One reason, of course, is that, at the
time of Dayton, the ongoing Hague tribunal was already a fact of life
that some parties did not want to have modified. More troubling, and
less welcome for public discussion, is the fact that Dayton did not
really accomplish mush more than a defacto partition of Bosnia. Bluntly
stated, if Bosnian Serbs, Croats and Moslems had really reached a true
meeting of the minds at Dayton, they would have agreed on how to
resolve the question of war crimes allegations. That they did not is a
straightforward admission that Dayton simply papered over, and almost
certainly only temporarily, the underlying causes of past and future
conflicts. Thus, the Hague tribunal has not only not contributed to a
comprehensive solution in Bosnia, but may well be a factor inhibiting
such a result. An ICC with jurisdiction over former Yugoslavia would
only inhibit it further.
The experience of the Rwanda war crimes tribunal is even more
discouraging. There, widespread corruption and mismanagement in that
tribunal's affairs have led many simply to hope that it expires quietly
before doing more damage. At least as equally troubling, however, is
the clear impression many have that score settling among Hutus and
Tutsis is the principle focus of the Rwanda tribunal. In fact, one
estimate of potential defendants in war crimes prosecutions was once
put at 60,000, which leads one to ask whether the tribunal is not
simply war by other means, at least in the view of some.
In addition to the cases of Bosnia and Rwanda where war crimes
tribunals are not only troubled, but which actually undercut the
argument for creating an ICC, there is at least one example where the
non-existence of a tribunal likewise demonstrates the risks of a
permanent Court and Prosecutor: Iraq. Iraq's August, 1990 invasion of
Kuwait unquestionably qualifies as an unjustifiable act of aggression,
and there is little debate, at least in the West, that the Iraqis
committed any number of acts which would be illegal under the Statue of
Rome, as now written. Yet, by conscious decision, neither the United
States nor any other power, including Kuwait, has seriously sought to
create a war crimes tribunal for crimes in the Persian Gulf War.
Iraq thus illustrates the case where valid prudential
considerations dictate against the automatic launching of war crimes
investigations and trial, at least for the foreseeable future. The
reasons are clear: this is a case to abjure war crimes prosecutions
because the appropriate circumstances are not yet present. Unlike
Nuremberg, the victorious coalition in the Persian Gulf never had as
its goal the unconditional surrender of Saddam Hussein and his removal
from power. \8\ Accordingly, the coalition did not destroy the existing
government of Iraq, its forces never occupied Iraqi territory any
longer than was necessary to accomplish their military mission of
ousting Iraq from Kuwait, and they had no plans whatever to transform
Iraqi society from a dictatorship to a democracy. Thus, war crimes
trials from the coalition's military perspective formed no part of its
long-range strategy. \9\
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\8\ Whether this should have been the goal, of course, is the
subject of an ongoing debate, but it is not decisively important for
present purposes
\9\ At one point in the immediate aftermath of the Persian Gulf
War, the Bush Administration believed that the threat of war-crimes
indictment and prosecution would be more likely to spur anti-Saddam
activity, especially within the Iraqi military, than proceeding with
trials in absentia. To date, of course, such activity has clearly been
insufficient because Saddam remains in power. Whether at a point of
future confrontation with Iraq a revival of the threat might have some
impact remains to be seen.
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It is nonetheless certainly true that Kuwait and its citizens, and
many others, suffered enormous losses because of the Iraqi invasion,
and, as the victims still feel entitled to vindication and restitution
or damages where possible. But war crimes prosecutions have been
foregone even in their cases, and for good reasons. Most importantly,
for the present at least, the key defendants, from Saddam on down are
not in custody, nor is potentially dispositive documentary and physical
evidence which is still in the hands of the Iraqi government and
military. Prosecuting the alleged war criminals in absentia is
therefore the only possibility, and this approach raises enormous
potential risks. Specifically, in absentia prosecutions could give rise
to ``Versailles syndrome'' feelings of injustice and persecution by the
West, both among the Iraqi population in particular and generally
throughout the Arab world. Whether this ``Versailles'' reaction would
have been fair and accurate is not, of course, particularly helpful,
since this is another case where it only takes one to tango. \10\
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\10\ Article 63.1. of the Statute of Rome provides that ``[t]he
accused shall be present during the trial.'' While such a provision
prevents in absentia trials, it does not prevent indictments from being
issued against alleged perpetrators when they are not in custody, and
even when there is no likelihood that they will or even can be brought
into custody in the future. Thus, the risk of the ICC fostering a
``Versailles syndrome'' remains strong.
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These concededly brief sketches of three pertinent case studies
make it clear, at a minimum, that the questions whether, how, and under
what circumstances, to initiate war crimes prosecutions are far from
being susceptible to uniform, one-size-fits-all decision-making. Our
contemporary experience therefore counsels strongly against locking in
a permanent Court and Prosecutor in the absence of more compelling
experience and circumstances.
VI. The Mandate and Structure of the ICC are Likely to be Contrary to
American Interests
I believe that the foregoing analysis demonstrates that the most
likely outcome for the new ICC is that it will be weak and ineffective,
and eventually ignored, because it is naively conceived and executed.
There is, of course, another possibility: that the Court and the
Prosecutor (either as currently established by the Statute of Rome, or
as potentially enhanced to take account of the preceding point) will be
strong and effective. In that case, the United States may face a much
more serious problem, because then they may very likely be dangerous to
American interests, if not imminently, certainly in long-range
precedential terms.
This seeming paradox stems from the nature of the authority sought
to be transferred to the ICC by the Statute of Rome. This would be a
transfer that, at least according to some, simultaneously purports to
(1) create authority outside of (and arguably superior to) the U.S.
Constitution; and (2) inhibit the full constitutional autonomy of all
three branches of the U.S. government, and, indeed, of all states party
to the Statute. Advocates of the ICC do not often publicly assert that
these transfers are central to their stated goals, but in fact they
must be for the Court and Prosecutor to be completely effective. While
the Statute of Rome appears indistinguishable from other international
treaties such as those creating NATO and the WTO, it is in fact quite
different. And it is precisely for these reasons that, strong or weak
in its actual operations, the ICC has unacceptable consequences for the
United States. It is, in fact, a stealth approach to eroding
constitutionalism.
A. The Problem of Legitimacy
First, we must begin with the existing universe of international
organizations dealing with human rights and legal norms, or at least
those within the UN system, and assess their efficacy and legitimacy
from the American perspective. Their record is not encouraging. To the
contrary, assessing the record of analogous United Nations
institutions, we find considerable evidence for concern about the
operations of a new one such as the ICC. Moreover, here, right at the
outset of the inquiry, we come upon the first anomaly. With virtually
no debate in Rome, and with the full endorsement of the Clinton
Administration, supporters of an ICC have created it by treaty as an
organization outside of the United Nations system. \11\
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\11\ Article 2 of the Rome Statute provides that ``[t]he Court
shall be brought into relationship with the United Nations through an
agreement to be approved by the Assembly of States Parties to this
Statute and thereafter concluded by the President of the Court on its
behalf.'' This very language, of course, demonstrates that the ICC does
not presently stand in any relation to the UN. From the context of
other language in the Statute (such as the provisions concerning
financing in Part 12), and from numerous comments made by ICC
supporters during several years of negotiation, it is plain that the
``relationship'' contemplated is nothing like the relationship of the
ICJ or the specialized agencies or the IAEA to the main UN.
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This result was far from inevitable. The United Nations Charter
establishes the International Court of Justice (``ICY') as one of the
six principal organs of the UN system, but the Charter clearly
contemplates the possibility of additional judicial bodies. \12\
Nonetheless, the ICC's proponents rejected that option. In response to
a press inquiry in Rome, UN Secretary General Kofi Annan offered this
explanation:
---------------------------------------------------------------------------
\12\ Article 92 provides that the ICJ will be ``the principal
judicial organ of the United Nations'' (emphasis added), thus implying
the permissibility that lesser judicial entities might be created
subsequently.
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``I think in a way an attempt to set up an independent
international criminal court that is not seen as a UN organ is
also an attempt to reinforce and enhance the independence of
the Court. Often when organizations (even thought the ICI is
quite removed) are attached to the General Assembly we have
heard the accusations that it is either politicized or is
likely to be politicized. . . . [I]f one wants a court to
operate independently and have its own rules of procedure
without interference from political institutions and
governments, . . . I think setting it up as an independent
court, a stand alone court, . . . should reinforce a sense of
independence and lack of politicization, and I think it is a
plus rather than a negative.'' \13\
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\13\ Quoted from the transcript of the Secretary General's press
conference at the opening of the Rome Conference, June 15, 1998
---------------------------------------------------------------------------
Whatever the reasons why the recently concluded Rome conference
decided not to establish the ICC as a UN body, that conscious choice by
the delegations, and by the States which become party to the Statute of
Rome, will have significant consequences for the governance of the ICC
as well. Most notably for present purposes, separating the ICC from the
UN should mean unambiguously that the ICC must be self-financing
through contributions from States party to the Statute, not from the UN
membership at large. The expenses of the ICJ, by contrast, are borne by
the United Nations, as the UN Charter and the ICJ Statute expressly
provide. \14\ Accordingly, no one can seriously argue that the United
States has any financial responsibility whatsoever for the future
operations of the Court and Prosecutor, whether through mandatory
assessments or voluntary contributions. \15\
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\14\ Article 33 of the ICJ Statute provides that: ``The expenses of
this Court shall be borne by the United Nations in such a manner as
shall be decided by the General Assembly.'' Article 17(1) of the UN
Charter provides in complementary fashion that: ``The General Assembly
shall consider and approve the budget of the Organization.''
\15\ The back door to American financing for the ICC, even if the
United States never ratifies the Statute of Rome, is already written
into Article 115. It provides that the United Nations shall make
available funds ``in particular in relation to the expenses incurred
due to referrals by the Security Council.'' If the Yugoslavia and
Rwanda Tribunals are consolidated into the ICC, right from the outset
they will constitute the bulk of the ICC's work, and therefore the bulk
of its funding requirements. Accordingly, the United States would not
save any money by transferring these tribunals away from the
jurisdiction of the Security Council.
Note also Article 115's use of the phrase ``in particular.'' These
words imply that while UN funding for referred cases is automatic, the
Statute also contemplates other situations where the UN may provide
funding. Since the United States is assessed twenty-five percent of the
regular UN budget, every case in which the UN contributes to the ICC
from that budget, the US will be paying a major share.
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More fundamentally, separating the ICC from the ICJ at least
tacitly acknowledges that the ICJ has failed to garner the kind of
legitimacy that the ICJ's founders had hoped for in 1945. In some
respects, this is more than ironic, because much of what was said about
the ICJ in 1945 anticipates what the ICC's supporters have recently
said about it. The drafting committee of the San Francisco Conference
responsible for the ICJ reported that it:
``. . . ventures to foresee a significant role for the new
Court in the international relations of the future. The
judicial process will have a central place in the plans of the
United Nations for the settlement of international disputes by
peaceful means. . . . It is confidently anticipated that the
jurisdiction of this tribunal will be extended as time goes on,
and past experience warrants the expectation that its exercise
of this jurisdiction will commend a general support. . . . In
establishing the International Court of Justice, the United
Nations hold before a war-stricken world the beacons of Justice
and Law and offer the possibility of substituting orderly
judicial processes for the vicissitudes of war and the reign of
brutal force.'' \16\
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\16\ Quoted in Bruno Simma, ed., The Charter of the United Nations:
A Commentary, Oxford University Press (1984), at pp. 980-81.
These touching sentiments were not borne out in practice for the ICJ,
which has been largely ineffective when invoked, and more often ignored
in significant international disputes. Indeed, the United States
withdrew from the mandatory jurisdiction of the ICJ, and it has lower
public legitimacy in the United States than even the rest of the UN
system.
Among the several reasons why the ICJ is held in such low repute,
and what is candidly admitted at least privately in international
circles, is the highly politicized nature of its decisions. Although
ICJ judges are supposed to function independently of their national
government, their election by the UN General Assembly is a highly
politicized matter, involving horse trading among and within the UN's
regional and other political groupings. Once elected, the judges are
expected to vote, and typically do vote, along highly predictable
national lines (except in the most innocuous of cases). Thus, the ICJ's
failure to generate widespread international respect and legitimacy on
``civil'' matters may well be the most powerful explanation why the
ICC's supporters chose to establish their new institutions outside the
UN system. \17\
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\17\ Because the Statute of the ICJ ``forms an integral part of the
[UN] Charter,'' under Article 92, amending the Statute would have
triggered the full panoply of requirements for amending the Charter
itself. Pursuant to Article 108 of the Charter, such a process would
require: (1) a two-thirds vote of the General Assembly; and (2) having
the amendment ``ratified in accordance with their respective
constitutional processes by two thirds of the Members of the United
Nations, including all of the Permanent Members of the Security
Council.''
Thus, under the Charter amendment procedure, Permanent Member, such
as the United States, could have effectively vetoed any changes. There
is no doubt that the desire to avoid the U.S. (and possibly other
Permanent Member) veto was a powerful, though publicly unspoken,
incentive for ICC supporters to create an entirely new organization.
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Another contributing factor in making the ICC independent of the UN
was quite likely the massive failure to achieve legitimacy of the UN's
principal human rights body, the UN Human Rights Commission (``UNHRC''
or ``the Commission''). Despite unrelenting, bipartisan American
efforts over the years to make the Commission successful, we are
routinely treated with the spectacle of a human rights watchdog that
includes among its membership nations like Cuba, Iraq and Iran.
Impotent on the full range of issues, from the massacre in Tienanmen
Square to ethnic cleansing in the former Yugoslavia, the UNHRC is a
classic UN operation: considerable talk and paper, but, unfortunately,
very little of value produced.
In recent years, where the Commission has been active and
productive, it has been unaccountably focused on finding fault with the
United States. This year, for example, three UNHRC rapporteurs will
have visited us, to investigate our record on ``religious
persecution,'' violence against women, and the death penalty. The UN
report on America's use of the death penalty has already been issued,
and provides clear evidence both of how the UNHRC now operates, and on
what we may expect analogously from the ICC. Notably, the rapporteur's
actual mandate only covered ``extrajudicial, summary or arbitrary
executions,'' but he interpreted this to mean all applications of the
death penalty in America.
He effectively admitted his unstated agenda when he said that
``information concerning the extension of the scope and the
reintroduction of death penalty statutes in several states'' partly
prompted his visit. Incredibly, he recommends that our government
should ``include a human rights component in training programs for
members of the judiciary,'' and that our police should receive
``training on international standards on law enforcement and human
rights.'' Where did these recommendations come from? At least in part,
they came from the rapporteur's belief that the United Nations had
already found the US to be retrograde on the death penalty: ``The
United Nations has gradually shifted from the position of a neutral
observer . . . to a position favouring the eventual abolition of the
death penalty.'' \18\
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\18\ It should, therefore, come as no surprise that the Statute of
Rome makes no provision for the death penalty for any offense,
including genocide.
Indeed, and most ironically, Mary Robinson, the UN High
Commissioner for Human Rights, said in her opening remarks to the Rome
Conference on June 15: ``I would look for the Court to include
provision for efforts to rehabilitate those it convicts.'' High
Commissioner Robinson does not elaborate on her vision about how to
rehabilitate those convicted of genocide, war crimes or crimes against
humanity.
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Many in America would be surprised to find that the UN had a
position on the death penalty at all, let alone one so profoundly
different from that so emphatically, and so democratically, expressed
here. But the UN High Commissioner for Human Rights would undoubtedly
greet this American attitude with scorn, a failure by the United States
to ``recognize the need to rise above narrow definitions of national
self interest.''
B. The Elimination of the Security Council Role in ICC Affairs
Although few Americans would be surprised by the implicit
acknowledgement of problems with UN legitimacy by ICC supporters, most
would be stunned to learn of the overwhelming repudiation of the
Security Council by delegates to the Rome Conference. Almost alone
among significant UN governing bodies, the Security Council does enjoy
a significant level of legitimacy among American policy makers. And yet
is was precisely the Security Council--where the Clinton Administration
has focussed so much of its efforts over the past six years--where the
Administration found the greatest resistance to its position.
In fact, one could analyze what happened in Rome to be--for the
Administration--the completely unintended consequences of its own basic
policies, starting literally from the Administration's first days in
office. Security Council Resolution 808, which created an international
criminal tribunal for Yugoslavia, was adopted on February 22, 1993,
just slightly over a month after the Inauguration. The Rwanda tribunal
followed thereafter, created by Security Council Resolution 935 in
July, 1994. The Administration clearly intended, and stated frequently,
that these individual tribunals were not only justifiable on their own
merits. They were also intended as building blocks in the foundation of
what became the ICC, and, indeed, for an even larger agenda. Over two
years ago, David 3. Scheffer wrote:
``The ultimate weapon of international judicial intervention
would be a permanent international criminal court (ICC). . . .
The ad hoc war crimes tribunals and the proposal for a
permanent international criminal court are significant steps
toward creating the capacity for international judicial
intervention. In the civilized world's box of foreign policy
tools, this will be a shiny new hammer to swing in the years
ahead.'' (emphasis added) \19\
---------------------------------------------------------------------------
\19\ David J. Scheffer, ``International Judicial Intervention,''
Foreign Policy (Spring, 1996) 34, at 48-51.
By overwhelmingly repudiating the Administration's position, which
had itself been modified and weakened during the negotiations, the Rome
Conference has substantially minimized, if not effectively eliminated,
the Security Council from any role in its affairs. \20\ Since the
Council is charged by Article 24 of the UN Charter with ``primary
responsibility for the maintenance of international peace and
security,'' it is more than passing strange that the Council and the
ICC are now to operate virtually independent of one another. Strange,
that is, only if one is unfamiliar with the agenda of many governments
and Non-Governmental Organizations (``NGOs'') supporting the ICC, whose
agenda has for years included a downgrading of the Security Council,
and especially the weakening of the importance of the veto power of the
Council's five Permanent Members.
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\20\ The limited renaming role for the Security Council in the ICC
is found in Article 16 of the Statute ofRome, which provides that:
``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.''
This provision, of course, totally reverses the appropriate
functioning of the Security Council. It seriously undercuts the role of
the five Permanent Members of the Council, and radically dilutes their
veto power. This was precisely the objective of the ICC's proponents.
Under Article 16 of the Statute, the Prosecutor is free to
investigate, indict and try before the Court completely at will, unless
and until the Security Council acts. But in requiring and affirmative
vote of the Council to stop the Prosecutor and the Court, the Statute
slants the balance of authority from the Council to the ICC. Moreover,
a veto by a Permanent Member of such a restraining Council resolution
leaves the ICC completely unsupervised.
For the United States, faced with the possibility of an overzealous
or politically motivated Prosecutor, the protection afforded by our
veto has been eliminated. In effect, the UN Charter has been implicitly
amended without being approved pursuant to Chapter XVIII of the UN
Charter. In particular, this drastic erosion of the U.S. position will
not be subject to Senate review.
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This implicit weakening of the Security Council is a fundamental
new problem now created by the ICC, and an important reason why the ICC
should be rejected. The Council now risks both having the ICC
interfering in its ongoing work, and the confusion, discussed above,
between the appropriate roles of law, politics and power in settling
international disputes.
C. The ICC's Own Problems of Legitimacy
But it is not just the ICC's detrimental impact on the Security
Council, or its troubling intellectual antecedents in the ICJ and the
UNHRC that should concern us, important though they may be. The Court
and the Prosecutor themselves have problems of legitimacy, which not
only will not remedy the problems of the existing UN institutions, but
which will simply reduce further their already diminished standing. The
Clinton Administration has never seriously addressed these issues
because it has been such a vociferous advocate of ``a'' Court that it
likely does not take these issues seriously. I believe that there is
substantial opinion to the contrary outside of the Administration, and
that should warrant extensive debate in Congress now about how to treat
the ICC when it actually comes into existence within the next few
years.
The ICC's principal difficulty is that its components do not fit
into a coherent ``constitutional'' structure that clearly delineates
how laws are made, adjudicated and enforced, subject to popular
accountability and structured to protect liberty. Instead, the Court
and the Prosecutor are simply ``out there'' in the international
system, ready to start functioning when the Statute of Rome comes into
effect. Consistent with American standards of constitutional order,
this approach is unacceptable. It would also seem entirely irrational
unless we understand the true motives of many of the ICC's proponents,
as discussed more fully below.
1. Substantive Problems
The first key problem of legitimacy for the ICC for Americans is
that there is insufficient clarity or agreement over the substantive
jurisdiction of the Court and the Prosecutor. This is--most
emphatically--not a Court of limited jurisdiction.
Even for genocide, the oldest codified among the three crimes
specified in the Statute of Rome, as approved, there is hardly complete
clarity in what it means. Although vague statutory terms can sometimes
be clarified by judicial interpretation, even for the crime of genocide
as enacted into positive U.S. law, there has been virtually no judicial
elaboration. Moreover, the Senate could not even accept the Statute of
Rome's definition of genocide, unless it was prepared to reverse the
position it took just a few years ago in giving approval to the
Genocide Convention of 1948.
When the Senate approved the Genocide Convention on February 19,
1986, it attached two reservations, five understandings and one
declaration. One reservation, for example, requires the specific
consent of the United States before any dispute involving the U.S. can
be submitted to the International Court of Justice. One of the
understandings limits the definition of ``mental harm'' in the
Convention to ``permanent impairment of mental faculties through drugs,
torture or similar techniques.'' Another understanding provides that
the Convention should not be understood to function automatically as an
extradition treaty. Two other understandings are of especial importance
here. One was intended to protect American servicemen and women, and
provides that:
``. . . acts in the course of armed conflicts committed without
the specific intent [required by the Convention] are not
sufficient to constitute genocide as defined by this
Convention.''
The other, even more directly pertinent here, provides that:
``. . . with regard to the reference to an international penal
tribunal in article VI of the Convention, the United States
declares that it reserves the right to effect its participation
in any such tribunal only by a treaty entered into specifically
for that purpose with the advice and consent of the Senate.''
(emphasis added) \21\
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\21\ See American Society of International Law, 28 International
Legal Materials 754 (Number 3, May, 1989), at p. 782.
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By contrast, Article 120 of the Statute of Rome provides explicitly
and without any exceptions that ``No reservations may be made to this
Statute.'' Thus, confronted with a definition of ``genocide'' in the
Statute of Rome that does not take into account the Senate's existing
reservations, understandings and declaration, the Senate would not have
the adoption of attaching them to any possible ratification of the
Statute. In effect, to accept the Statute, the Senate would have to
reverse the position it took as recently as 1986. Moreover, Senators
should take careful note of the reservation quoted above in the ``penal
tribunal'' that we can now clearly identify as the ICC, which requires
Senate approval of any ``participation'' in that body.
For the other two broadly defined crimes (war crimes and crimes
against humanity), the vagueness is even greater, as is the
accompanying risk that an activist Court and Prosecutor can broaden the
Statute's language in an essentially unchallengeable fashion. It is
precisely the risk to potential defendants that has led our Supreme
Court to invalidate criminal statutes which fail to give adequate
notice of exactly what they prohibit under the ``void for vagueness''
doctrine. Unfortunately for the unwary, ``void for vagueness'' is a
peculiarly American invention.
Much of the media attention to the American negotiating position on
the ICC concentrated on the risks perceived by the Pentagon to American
peacekeepers stationed around the world. As real as those risks may be,
however, no one should operate under the illusion that our basic
concern should be only with a handful of peacekeepers.
Our real concern should be for the President and his top advisers.
For example, consider some of the following provisions of the Statute
of Rome. The definition of ``war crimes'' includes, for example:
``intentionally directing attacks against the civilian
population as such or against individual civilians not taking
direct part in hostilities; [and]
``intentionally launching an attack in the knowledge that such
attack will cause incidental loss of life or injury to
civilians or damage to civilian objects or widespread, long-
term and severe damage to the natural environment which would
be clearly excessive in relation to the concrete and direct
overall military advantage anticipated; . . .'' \22\
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\22\ Statute of Rome, Article 8.2(b)(i) and (iv).
A fair reading of these provisions leaves one unable to answer with
confidence the question whether the United States was guilty of war
crimes for its aerial bombing campaigns over Germany and Japan in World
War II. Indeed, if anything, a straightforward reading of the language
probably indicates that the Court would find the U.S. guilty. A
fortiori, these provisions seem to imply that the U.S. would have been
guilty of a war crime for dropping atomic bombs on Hiroshima and
Nagasaki. \23\
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\23\ Some governments and NGOs proposed in Rome that the use of
nuclear weapons be specifically prohibited. While these proposals were
not accepted, the existing language in the Statute, including other
language not quoted herein, can certainly give rise to arguments about
the ``criminal'' effects of nuclear weapons to those seeking to outlaw
them
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Even apart from these incredibly important general questions,
consider further some of the elements of the offenses just quoted.
What is to constitute ``knowledge'' that an attack ``will
cause incidental loss of life or injury to civilians''? Second-
guessing long after the fog of battle lifts is an arm-chair
exercise well suited for academics and theorists, but ill-
suited to military or political decision makers whose failure
to make the right command decisions can endanger their own
forces.
What is to constitute ``long-term and severe damage to the
natural environment,'' surely a new crime to most militaries in
the world? While we might agree that the oil fires set by Iraq
as it was being forced out of Kuwait would meet this test, what
else would? Is sustained bombardment enough? Is the use of all
nuclear weapons now a war crime? Would the Iraqis have a
defense that they were justified by exigent military
circumstances?
What is to constitute the ``clearly excessive'' damage
required by the last phrase in subparagraph (b)? What are the
standards, and how are they to be agreed upon?
There are similar problems in numerous other provisions as well.
Subparagraph (k), for example, forbids ``destroying or seizing the
enemy's property unless such destruction or seizure be imperatively
demanded by the necessities of war.'' A law professor could spend weeks
taking his class through hypotheticals trying to figure out what that
provision might mean.
Moreover, as we are all very much aware, simply the fact of
launching massive criminal investigations can have an enormous
political impact. Although subsequent indictments and later convictions
are unquestionably more serious still, a zealous independent Prosecutor
can have a dramatic impact simply by calling witnesses and gathering
documents, without ever bringing formal charges.
Perhaps the most intriguing is the prohibition in subparagraph (p)
against ``committing outrages upon personal dignity, in particular
humiliating and degrading treatment.'' Were the problems with the
Statute of Rome not so gravely serious, one could imagine this
provision as the subject of endless efforts at humor.
Worse even than the vague and elastic provisions in the Statute is
what is included only by general reference. Thus, for example, the
definition of crimes against humanity, after listing several elements,
includes the catch-all phrase ``other inhumane acts of a similar
character intentionally causing great suffering, or serious injury to
body or to mental or physical health.'' How will this phrase be
interpreted, and will there be any way to countermand the Court if its
interpretation is unacceptable? Who will advise the President that he
is unambiguously safe from the retroactive imposition of criminal
liability if he guesses wrong on an ``inhumane acts''? Is even the
defensive use of a nuclear weapon an ``inhumane act''?
Perhaps worst of all is that we are nowhere near the end of the
list of prospective ``crimes'' that can be added to this Statute. Many
were suggested at Rome, and commanded support from many participating
nations. Most popular among those was the crime of ``aggression,''
which is now declared criminal, but not yet defined by the Statute.
\24\ Although frequently not hard to identify, ``aggression'' can at
times be something in the eye of the beholder. Thus, Israel justifiably
feared that its pre-emptive strike in the Six Day War almost certainly
would have be the subject of a complaint to the Prosecutor, and quite
likely resulted in a case brought against top Israeli officials as
individuals. Israel, therefore, was one of the few governments that
voted with the United States against the Statute. \25\
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\24\ Article 5.2 of the Statute provides that the Court ``shall
exercise jurisdiction over the crime of aggression once a provision is
adopted in accordance with'' the Statute's amendatory provisions. This
extraordinary procedure apparently did not trouble the delegates at
Rome.
\25\ Israel also objected to a provision (Article 8.2.)(viii))
which makes it a war crime to effect ``the transfer, directly or
indirectly, by the Occupying Power of parts of its own civilian
population into the territory it occupies, or the deportation or
transfer of all parts of the population of the occupied territory
within or outside this territory.''
The inclusion of Article 8.2.(b)(viii) is an excellent example of
the politicization of what is masquerading as a purely legal and
judicial process. It is the kind of effort to gain political advantage
out of the manipulation of the Statute, the Court and the Prosecutor
that we can expect to see no end of.
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The list goes on and on. Ever-helpful Cuba offered the ``crime'' of
embargoes, and others suggested terrorism, drug trafficking and so on.
Some crimes against humanity do not appear to have been discussed, but
might have been offered had the Conference gone on longer. What about
the legality of a nation's ``one-child-per-family'' policy? Was that
prohibited by the characterization of religious persecution as a
``crime against humanity, or does it have to be spelled out in terms?
Are forced abortions considered a crime under the genocide prohibition
against ``imposing measures intended to prevent births within [a
national] group''?
One major problem here is the uncertainty about the latitude and
flexibility of the Court's interpretative authority once it begins
issuing decisions. We should certainly, therefore, be concerned by the
weeping language of Article 119 of the Statute, which provides that
``[a]ny dispute concerning the judicial functions of the Court shall be
settled by the decision of the Court.'' This provision is short and to
the point, and troubling because of exactly what it says. But another,
and more fundamental problem stems from the decentralized and
unaccountable way in which international law, and particularly
customary international law, evolves. Thus, during the Conference's
opening statements, Japan's Permanent UN Representative said
approvingly that:
``The war crimes which are considered to have become part of
customary international law should also be included, while
crimes which cannot be considered as having been crystallized
into part of customary international law should be outside the
scope of the Court.'' \26\
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\26\ Statement of Hisashi Owada, Head of Delegation of Japan, June
15, 1998.
While this statement is sound as far as it goes, it expresses quite
cogently the way in which customary international law evolves, or
``crystallizes.'' It is another of those international law phenomena
that just happens ``out there,'' among academics and NGO activists.
While the historical understanding of customary international law was
that it evolved from the practices of nation-states over long years of
development, today we have theorists who write approvingly of
``spontaneous customary international law'' that develops among the
cognoscenti almost overnight. If this is where the Court and the
Prosecutor begin to move, there is serious danger ahead.
But even beyond this risk is the larger agenda of many of the ICC
supporters, of the nearly endless articulation of ``international law''
that continues ineluctably and inexorably to reduce the international
discretion and flexibility of nation states, and the United States in
particular. We should not be misled, in judging the Statute of Rome, by
examining simply the substantive crimes contained in the final
document. We have been put on very clear notice that this list is
illustrative only, and just the start. We should have no
misapprehensions that, when some urge the U.S. to sign on to the
Statue, that we are talking about a defined and limited substantive
jurisdiction. The NGOs and others ``have only just begun.''
Some delegates to the Rome Conference fully understood the long-
term agenda, and urged caution lest the Statute as adopted attempt to
carry too much weight too early. The representative of the
International Law Commission (``ILC''), which started work on an ICC
statute six years ago, said unambiguously in his opening comments that:
``The revised Draft Statute is making a major effort to
consolidate expand and develop substantive international law,
relying only to a very limited extent on the droit acquis [the
existing law].'' \27\
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\27\ Statement of Professor James Crawford, International Law
Commission, June 15, 1998.
After making this favorable reference, the ILC representative went on
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to warn that:
``I only hope that the praiseworthy efforts to develop the law,
and associated matters such as remedies for victims, do not
turn out to stand in the way of the main objective, the very
creation of a viable and effective independent Court. Let us
not be deflected from that goal, and if necessary let us think
about ways in which new developments in substantive law and
even new crimes can be brought within the jurisdiction of the
Court as time passes and the law progresses Let us not make
``the best'' the enemy of ``the good.'' Let us not make the
best--a fully developed international criminal code--the enemy
of the good--a permanent international criminal court.''
(emphasis added)
This statement demonstrates clearly why we should take a ``systems
analysis'' approach to the Statute of Rome and the Court and the
Prosecutor it creates. We should not judge only by what we see before
us today, but look forward to what might be added to it over a long
time horizon. Only if we are willing to travel the entire path should
we take the first step. Otherwise, we should prevent the consequences
by denying the assumptions, and not endorse the work of the ICC even
indirectly.
2. Problems of Sovereignty
As troubling as are the substantive and jurisdictional problems
discussed above, they are, if anything, overshadowed by the problems
raised by the governance structures and mechanisms that the Statute
creates in the form of the Court and the Prosecutor. \28\ Many
advocates of the ICC have commented unfavorably that the United States
has not been able to join many of its democratic allies in signing on
to the Statute of Rome, and it is important to explain why that is so.
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\28\ The nomenclature is important in this connection. We all make
the mistake of lapsing into referring to this subject as ``the Court.''
Americans tend to believe that the judiciary is, as Professor Alexander
Bickel once characterized it, ``the least dangerous branch,'' and
references to ``the Court'' have a benign ring to them. I have tried in
these prepared remarks to refer to ``the Court and the Prosecutor'' to
emphasize linguistically what I believe is the less attractive reality
created by the Statute of Rome.
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We are not considering here a relatively passive court such as the
ICJ, which can adjudicate only with the consent of the parties, or when
the Security Council or the General Assembly asks it for an advisory
opinion. We are considering, in the guise of the Prosecutor, a powerful
and legitimate element of executive power, the law-enforcement power.
Law-enforcement is a necessary element of national governments. To my
knowledge, never before has the United States been asked to seriously
consider placing any law-enforcement power outside of the complete
control of our national government.
Very briefly stated, the American concept of separation of powers,
imperfect though it is, reflects the settled belief that liberty is
best protected when, to the maximum extent possible, the various
authorities legitimately exercised by government are placed in separate
branches. So structuring the national government, the Framers believed,
would prevent the excessive accumulation of power in a limited number
of hands, thus providing the greatest protection for individual
liberty.
Continental European constitutional structures do not, by and
large, reflect a similar set of beliefs. They do not so thoroughly
separate judicial from executive powers, just as their parliamentary
systems do not so thoroughly separate executive from legislative
powers. That, of course, is entirely their prerogative, and
substantially explains why they appear to be comfortable with the ICC's
structure, which so closely melds prosecutorial and judicial functions,
in the European fashion. They may be able to support such an approach,
but the United States should not.
In addition, our Constitution provides that the exercise of
executive power will be rendered accountable to the general public in
two ways. First, the law-enforcement power is exercised by a President
(or by the President's agents) who must be elected. The President is
constitutionally charged with the responsibility to ``take Care that
the Laws be faithfully executed,'' \29\ and the Supreme Court has
characterized the Attorney General as ``the hand of the President'' in
fulfilling that constitutional function. In short, the authority of the
actual law enforcers stems constitutionally directly from the only
elected executive official. Second, Congress, all of whose members are
popularly elected, both through its statute-making authority and
through the appropriations process can exercise significant influence
and oversight.
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\29\ U.S. Constitution, Article II, Section 3.
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In Continental European parliamentary systems, these sorts of
political checks are either greatly attenuated or even entirely absent.
Once again, the Europeans may feel comfortable with such system, but we
do not and we should not. They obviously also feel comfortable
extending it to a structure such as the Court and Prosecutor as created
in Rome. The United States, however, should never consciously accept
such an approach. The Statute's Prosecutor is accountable to no one.
Indeed, he or she will answer to no superior executive power, elected
or unelected. Nor is there any legislature anywhere in sight, elected
or unelected, in the Statute of Rome. The Prosecutor, and his or her as
yet uncreated investigatory, arresting and detaining apparatus, is
answerable only to the Court, and then only partially.
This structure utterly fails, by long-standing American principles,
to provide sufficient accountability to warrant vesting the Prosecutor
with the enormous power of law enforcement that the ICC's supporters
have obtained. Political accountability is utterly different from
``politicization,'' which we can all agree should form no part of the
decisions of either the Prosecutor or the Court. At present, however,
the ICC has almost no political accountability, and enormous risk of
politicization. Americans should find this unacceptable.
Let me stress again that this analysis has but limited relevance to
the notion that we fear isolated prosecutions of individual American
military personnel around the world. It has everything to do with the
fear of unchecked, unaccountable power, as Americans should clearly
understand. Coincidentally, of course, the United States has, in the
past two decades, had considerable experience with the concept of
``independent counsels.'' It is an experience that strongly argues
against repetition in an international treaty.
3. The Statute of Rome Purported Protections Are Wholly
Unsatisfactory
The ICC's supporters nonetheless argue that there are protections
built into the Statue of Rome that should permit the United States to
accept it. I now briefly consider several of these provisions.
First, the advocates argue that the doctrine of ``complementarity''
embodied in the Statute helps ensure that the Court's jurisdiction and
the Prosecutor's zeal will not grow arbitrary or too large, and that
national justice systems are not truly threatened with displacement.
``Complementarity,'' like so much else connected with the ICC, is
simply an assertion, utterly unproven and untested. Since no one has
any actual experience with the Court, of course, no one can say with
complete certainty what will happen. This is hardly a sound basis on
which to make a major change in American foreign policy.
In fact, ``complementarity,'' if it has any real substance, argues
against creating the ICC in the first place. If most national judicial
systems are capable of addressing the substantive crimes the Statute
proscribes, then that demonstrates why, at most ad hoc judicial
tribunals are necessary. Indeed, it is precisely the judicial systems
which the ICC would likely supplant (such as Bosnia, or possibly
Cambodia) where the international effort should be to encourage the
parties to the underlying dispute to come to grips with the judicial
implications finding a comprehensive solution to their disagreements.
Moreover, it is not at all clear that a Prosecutor might not consider
something like South Africa's Truth and Reconciliation Commission
inadequate, or a ruse, and commence investigations on his own motion.
Removing key elements of the dispute, especially those emotional and
contentious issues having to do with war crimes and crimes against
humanity, undercuts the very kind of development that these peoples,
victims and perpetrators alike, will have to resolve if they are ever
to live peacefully together.
Second, although supposedly a protection for the independence of
the ICC, the provisions about the automatic jurisdiction of the Court
and the Prosecutor are troubling. They form a clear break from the
basic doctrine of the ICJ, where ``[j]urisdiction without the consent
of the parties does not exist.'' \30\ Moreover, because States Party to
the Statute may refer situations where crimes have been committed to
the Prosecutor, we can virtually guarantee that some will, from the
very outset, seek to use the Court for political purposes. The
inability of non-States Party to block prosecutions of their nationals,
a key defeat for the United States at Rome, will prevent us from
thwarting these efforts at their initial stages, and almost guarantee
controversy and problems for our foreign policy for years to come.
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\30\ Simma, supra, at p. 987.
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For example, is there any doubt whatever that Israel will be the
target of a referral from a State Party concerning conditions and
practices by the Israeli Defense Forces in the West Bank and Gaza? The
United States, with near-continuous bipartisan support for many years,
has attempted to minimize the disruptive role that the United Nations
has all too often played in the Middle East peace process. As if that
were not difficult enough, we now face the prospect of the Prosecutor
and the Court interjecting themselves into extremely delicate matters
at inappropriate times. Here is an excellent example of where the
trashing of the Security Council's role in the affairs of the ICC can
have a tangible and highly detrimental impact on the conduct of our
foreign policy.
Third, the supposed ``independence'' of the Prosecutor and the
Court, as extensively discussed above, is more a source of concern for
the United States than an element of protection. Indeed,
``independent'' bodies in the UN system (such as the UN Human Rights
Commission) have often demonstrated themselves to be more highly
policitized than some of the explicitly political organs. Political
accountability, by contrast, which is almost totally absent from the
ICC scheme for the Court and the Prosecutor, would have been a real
protection. Instead, we may now face the prospect, as might be
predicted by the ``public choice'' analysis of Gordon Tullock and James
Buchanan, that the ICC will be ``captured'' not by governments but by
NGOs and others with narrow special interests, and the time to pursue
them.
VII. Conclusion: We Should Isolate and Ignore the Court and the
Prosecutor
Confronted as we are with the fact of the ICC, the United States
must now decide what its prospective policy toward it should be.
Undoubtedly, there will be those arguing that we should accept the fait
accompli, and begin to work with the Court and the Prosecutor. They
will argue that, on a case-by-case basis, it may actually serve
American interests, and that we should work for its long-term
improvement. They will even argue that we should provide voluntary
financial support and the secondment of investigators and prosecutors.
The Administration may even make these arguments today.
Whenever they are made, they should be emphatically rejected.
Whether the ICC survives and flourishes or not depends in large
measure on the attitude of the United States. We should not allow this
sentimentality masquerading as policy to achieve indirectly what we
have successfully blocked frontally. Specifically:
We should not support any effort to consolidate the work of
the existing tribunals for Yugoslavia and Rwanda into the ICC.
If the ICC becomes operational before these tribunals have
concluded their work, they should be allowed to finish under
Security Council supervision.
We should reject any effort to have UN members who are not
States Party to the Statute of Rome pay for any portion of the
ICC's expenses. \31\
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\31\ Indeed, the funding question provides a separate reason not to
refer the ongoing Yugoslav and Rwanda matters to the ICC, for the
reasons explained in footnote 12.
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We should veto any effort in the Security Council to
participate in the ICC's work. If the role originally proposed
for the Council was unacceptable to the ICC's founders, then
they can work with some other UN body or regional
organizations.
We should oppose the cooperation of other organizations to
which the United States belong, such as NATO, from cooperating
with the ICC. This would simply be doing indirectly what we
have already declined to do directly by not signing the Statute
of Rome. \32\
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\32\ Moreover, the Senate has already spoken to the issue of
participation in the ICC's work, at least in part, in its existing
reservations to the Genocide Convention, as discussed above.
These steps may seem difficult to take, but it is critical that our
attention not be diverted from the objective of ensuring that the
potential problems posed by the ICC do not in the future become real
problems. Keeping our distance will confine the ICC to a limited
domain, and hopefully avoid some of the risks described in the
---------------------------------------------------------------------------
foregoing testimony.
__________
Prepared Statement of Lee A. Casey
I. Introduction
There are serious constitutional and policy objections to American
participation in the International Criminal Court (``ICC'') Treaty. The
fundamental constitutional objection is that, under the ICC Treaty,
American nationals would be subject to prosecution and trial in an
international court for offenses otherwise within the judicial power of
the United States, and, at the same time, Americans brought before this
court would not enjoy the basic guarantees of the Bill of Rights,
including the right to trial by jury. As a matter of policy, U.S.
participation would empower an international institution that is not
accountable to the American electorate to investigate and judge the
actions taken by our military and civilian officials. In this, such
participation would represent an unprecedented cession of our right to
self-government.
II. Constitutional Objections to the ICC
A. The Federal Judicial Power Cannot be Subordinated to an Extra-
Constitutional Institution Allowing that Institution to
Prosecute American Nationals
If the United States joined the ICC Treaty regime, this court would
have the legal right to investigate and prosecute Americans for alleged
crimes falling into four categories of offenses: (1) genocide; (2)
crimes against humanity; (3) war crimes; and (4) aggression. \1\ The
ICC would have jurisdiction over these offenses whether they were
committed in the United States or abroad. Each of these offenses -- to
the extent they exist at all as defined in the ICC Statute -- is
currently within the legislative and judicial authority of the United
States. See U.S. Const. Art. I, Sec. 8, cl. 9; Art. III, Sec. 2. q.
Kadic v. Karcuizic, 70 F.3d 232 (2d Cir. 1995), cert. denied, 518 U.S.
1005 (1996) (civil suit alleging various violations of international
humanitarian norms may be brought in court of the United States, so
long as defendant is properly served within the Court's jurisdiction).
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\1\ Under the ICC Statute as agreed in Rome, the ``crime'' of
aggression would be included within the ICC's jurisdiction. However,
the delegates in Rome could not agree on any definition of this crime.
Consequently, the Court will not be able to prosecute such crimes until
the States Parties to the treaty agree on a definition. ICC Statue,
Art. 5(2).
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Under the Constitution, however, only the States and the Federal
Government have the authority to prosecute and try individuals for
offenses committed in the United States, and they may do so only in
accordance with the guarantees contained in the Bill of Rights. In
particular, the judicial power of the United States is vested in the
Supreme Court, and in lower federal courts as may be established by
Congress. U.S. Const., Art. III, Sec. 1. This power cannot be exercised
by any body or institution that is not a court of the United States.
This was made clear by the Supreme Court in the landmark case of Ex
parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
In that case, the Court reversed a civilian's conviction in a
military tribunal, which did not provide the guarantees of the Bill of
Rights, holding that ``[e)very trial involves the exercise of judicial
power,'' and that the military court in question could exercise ``no
part of the judicial power of the country. That power was vested by the
Constitution `in one Supreme Court and such inferior courts as the
Congress may from time to time ordain and establish,' '' pursuant to
Article III of the Constitution. Id. at 119-121.
This reasoning is equally and emphatically applicable to the ICC.
The ICC would not, and could not, exercise the judicial power of the
United States -- without which it could not prosecute or try Americans
for criminal offenses allegedly committed in the United States -- as
its statute would empower it to do.
This constitutional objection to U.S. participation in the ICC
Treaty can best be illustrated through the use of a hypothetical, shorn
of the emotional overlay inherent in a ``war crimes'' court: The Bill
of Rights undoubtedly impedes efficient enforcement of the drug laws.
Could the Federal Government enter a treaty with Mexico, Canada, and
the Bahamas, establishing an offshore ``Special Drug Control Court,''
which would prosecute and try drug offenses committed in any of these
countries, and which would provide only minimal due process, not
incorporating all of the Constitution's guarantees? Fortunately, the
Supreme Court has never faced this case. If such a case arose, however,
the application of In re Milligan's rule and reasoning would require
the invalidation of the treaty as a matter of United States domestic
law. \2\
---------------------------------------------------------------------------
\2\ The fact that a treaty is involved does not change this
analysis or conclusion. As the Supreme Court wrote more than a century
ago: ``The treaty power, as expressed in the Constitution, is in terms
unlimited except by those restraints which are found in that instrument
against the action of the government or of its departments. . . . It
would not be contended that it extends so far as to authorize what the
Constitution forbids.'' De Geofroy v. Riggs, (1890).
In addition, the fact that international law is involved, which
generally is considered also to be a part of U.S. law, also would not
change this result. Specifically with respect to the ``laws of war,''
the Supreme Court has stated that: ``[w]e do not make the laws of war
but we respect them so far as they do not conflict with the commands of
Congress or the Constitution.'' In re Yamashita (1946) (emphasis
added).
Missouri v. Holland, 252 U.S. 416 (1920) is not to the contrary. In
that case, the Supreme Court upheld a treaty with Britain regulating
migratory birds, against a constitutional attack claiming that the
treaty infringed the sovereign rights of the States under the 10th
Amendment. Justice Holmes reasoned that the power to enter such a
treaty, even if not specifically provided for among Congress'
enumerated powers in the Constitution, could be inferred from the
residual authority of the United States under the treaty-making power.
He acknowledged, however, that there were some things the Federal
Government could not do in a treaty, because such action might violate
some other provision of the Constitution, noting that ``[t]he treaty in
question does not contravene any prohibitory words to be found in the
Constitution. The only question is whether it is forbidden by some
invisible radiation from the general terms of the Tenth Amendment.''
Id. at 433-34. The guarantees provided to criminal defendants in the
Bill of Rights are far more precise, and in mandatory language. A point
made clear in Mr. Justice Black's plurality decision in Reid v. Covert,
354 U.S. 1 (1957), a case where the Supreme Court ruled that an
American civilian could not be subjected to trial in a military court
overseas, even though an international agreement between Britain and
the United States appeared to allow such a trial. On that occasion,
Black wrote that ``[a]t the beginning we reject the idea that when the
United States acts against its citizens overseas, it can do so free of
the Bill of Rights.'' Id. at 5-6.
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Of course, this hypothetical presents precisely the case raised by
the ICC Treaty. The Bill of Rights cannot be avoided by the simple
expedient of allowing the prosecution of Americans in an extra-
constitutional court. As Justice Black stated in Reid V. Covert, 354
U.S. at 5-6, ``[t]he United States is entirely a creature of the
Constitution. Its power and authority have no other source. It can only
act in accordance with all the limitation imposed by the
Constitution.''
B. If the United States Were to Join the ICC Treaty Regime. ICC
Prosecutions of Americans for Crimes Allegedly Committed
Overseas Also Would be Unconstitutional
If the United States were to accede to the ICC Treaty, ICC
prosecutions of Americans for offenses committed overseas also would be
unconstitutional. If the United States became a ``State Party'' to the
ICC Treaty, its involvement with the Court would be sufficient to
trigger the requirements of the Bill of Rights -- guarantees that the
ICC simply does not provide. This analysis and result was suggested by
the Supreme Court in a case decided only last month.
In United States v. Balsys, 1998 U.S. LEMS 4210 (S.Ct. 1998), a
case involving the investigation of an individual accused of war crimes
in Lithuania during World War II, the Supreme Court ruled that the
Fifth Amendment right against self-incrimination did not apply to a
Justice Department interrogation of Balsys, because he would be
prosecuted, if at all, in a foreign court. However, the Court offered a
hypothetical in which a different result might obtain:
If the United States and its allies had enacted substantially
similar criminal codes aimed at prosecuting offenses of
international character, and if it could be shown that the
United States was granting immunity from domestic prosecution
for the purpose of obtaining evidence to be delivered to other
nations as prosecutors of a crime common to both countries,
then an argument could be made that the Fifth Amendment should
apply based on fear of foreign prosecution simply because that
prosecution was not fairly characterized as distinctly
``foreign.'' The point would be that the prosecution was as
much on behalf of the United States as of the prosecuting
nation. . . .
1998 U.S. LEXIS 4210 at *57-58.
This would, of course, be exactly the case with the ICC. If the
United States became a ``State Party'' to the ICC Treaty, it would be a
full participant in establishing the Court, in selecting its judges, in
financing its operation, and sitting on its Assembly of States Parties.
Consequently, any prosecutions undertaken by the Court -- whether
involving the actions of Americans in the United States or overseas --
would be ``as much on behalf of the United States as of'' any other
State party. Since the guarantees of the Bill of Rights would not be
available in the ICC, the United States could not participate in, or
facilitate, any such court.
This may appear to be a paradoxical result to some. However, it
always must be remembered that the United States Government is bound by
a Constitution that denies it many of the powers, vis-a-vis its own
nationals, that are enjoyed by other states with respect to theirs.
There simply are some things that our government cannot do because the
Constitution forbids it.
C. The ICC Would Not Provide Guarantees to Americans Comparable to
Those Mandated by the Bill of Rights
ICC supporters often claim that this court would provide rights to
the accused equivalent to the guarantees found in the Bill of Rights,
and that the constitutional objection to arraigning Americans in the
ICC would thereby be eliminated. This is incorrect. The ICC would not
provide defendants with rights comparable to those guaranteed in the
Bill of Rights -- far from it.
First and foremost, the right to trial by a jury in the State and
district where the crime occurred would not be preserved in the ICC.
This, however, is one of the most critical rights enjoyed by Americans,
and its importance in our system of government cannot be overstated.
The right to trial by jury is not merely a means of determining facts
in a judicial proceeding, but is a fundamental check on the use and
abuse of power vis-a-vis the individual. As Justice Joseph Story
explained: ``The great object of a trial by jury in criminal cases is
to guard against a spirit of oppression and tyranny on the part of
rulers, and against a spirit of violence and vindictiveness on the part
of the people.'' Joseph Story, Commentaries on the Constitution of the
United States 656-58 (1833) (Carolina Academic Press ed. 1987). It is
``part of that admirable common law, which had fenced round, and
interposed barriers on every side against the approaches of arbitrary
power.'' Id.
This right was, in fact, considered to be so important by the
Founding Generation that it was guaranteed not once but twice in the
Constitution. Under Article III, the Constitution requires that ``[t]he
trial of all Crimes . . . shall be by Jury; and such Trial shall be
held in the State where the said Crimes shall have been committed.''
U.S. Art. III, Sec. 2. This unequivocal guarantee was repeated in the
Bill of Rights, where the Sixth Amendment requires that ``[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed.'' U.S. Const. Amend. VI.
As noted above, the requirement that all criminal trials be by
jury, and that all trials take place in the State and district where
the crime occurred, was not added to the Constitution by accident.
Rather, the Framer's included this key requirement in the Constitution
as a reaction to their own recent history. In the years before the
Revolution, Americans faced the real possibility of transportation
overseas for trial. The British Government had claimed the right to
prosecute Americans in British courts overseas, and instituted a
practice of arraigning Americans before ``vice-admiralty'' courts for
criminal violations of the navigation and trade laws. These courts were
not English Common Law courts. Like the ICC, they followed the Civil
Law, ``inquisitorial,'' system, where guilt or innocence was determined
by judges alone and rights of confrontation and counsel were highly
restricted. See generally Thomas C. Barrow, Trade and Empire: The
British Customs Service in Colonial America 1660-1775 256 (1967); Don
Cook, The Long Fuse: How England Lost the American Colonies 1760-1785
59 (1995). In addition, Parliament also had decreed that Americans
could be transported to England on treason charges -- a claim that
prompted immediate denials from colonial legislatures. See United
States v. Cabrales, 118 S.Ct. 1772, 1774 & n.1 (1998).
Consequently, when the Founders of our Republic declared its
independence, and they catalogued in the Declaration of Independence
the outrages that they believed justified revolution and war, they
noted three of particular interest. They accused King George and his
Parliament of:
``subjecting us to a jurisdiction foreign to our
constitution and unacknowledged by our laws'';
``depriving us, in many Cases, of the Benefits of Trial by
Jury''; and of
``transporting us beyond the Seas to be tried for pretended
Offences.''
See Declaration of Independence (July 4, 1776).
At the time the Constitution was adopted, the Framers sought to
preserve the right to trial by jury, and to eliminate the danger that
Americans might be tried far from their homes, by requiring that trials
be conducted in the state and district where the crime was committed.
As Justice Story explained,
The object of this clause is to secure the party accused from
being dragged to a trial in some distant state, away from his
friends, and witnesses, and neighborhood; and thus subjected to
the verdict of mere strangers, who may feel no common sympathy,
or who may even cherish animosities, or prejudices against him.
Story, Commentaries on the Constitution, supra at 658.
Of course, if the United States were to join the ICC Treaty,
Americans again would face transportation beyond the seas for judgment,
without the benefits of trial by jury, in a court that would not
guarantee the other rights we all take so much for granted -- and where
the judges may well ``cherish animosities, or prejudices against''
them.
Trial by jury is not, of course, the only right guaranteed to
Americans that would not be respected in the ICC. For example,
Americans brought before this court would only notionally enjoy rights
to a speedy trial and to confront and cross-examine witnesses. The ICC
would not guarantee these rights in any form recognizable or acceptable
in the United States. For instance, our right of confrontation includes
the right to know the identity of hostile witnesses, and to exclude
``hearsay'' evidence that does not fall within a recognized exception
to the general rule. On the international level, however, this is not
the case. In the International Criminal Tribunal for the Former
Yugoslavia at the Hague, a court widely viewed as a model for the
proposed ICC, both anonymous witnesses and extensive hearsay evidence
have been allowed at criminal trials. See Michael P. Scharf, Balkan
Justice 7, 67, 108-09 (1997). \3\
---------------------------------------------------------------------------
\3\ In the 1996 trial of Dusko Tadic before the ICTY, hearsay
evidence was permitted, and several witnesses were allowed to give
evidence on an anonymous basis. Id. at 108-09.
---------------------------------------------------------------------------
By the same token, the ICC would not preserve the right to a
speedy trial. In the United States, a defendant has a right to be
brought to trial within 70 days. There would be no such limit in the
ICC. Again, international practice here falls far short of American
requirements. For example, the Yugoslav Tribunal Prosecutor actually
has argued that up to five years would not be too long to wait in
prison for a trial. See Prosecutor v. Aleksovski (Prosecution Response
to the Defence Motion for Provisional Release para. 3.2.5.) (ICTY Case
No. IT-95-1411-PT) (14 Jan. 1998). More disturbing still, there is
caselaw in the European Court of Human Rights arguably supporting such
a rule. W. v. Switzerland, Series A, No. 254 (1993) (4 years of
pretrial detention accepted); Neumeister v. Austria, Series A, No. 8
(1968) (three year pre-trial detention acceptable, and up to seven
years not too long to try a criminal case). Such rules mock the
presumption of innocence.
D. Cases Where the Supreme Court Has Allowed the Extradition of
Americans for Trial Abroad Do Not Suggest that the ICC Would Be
Constitutional.
ICC defenders who claim that the Constitution would not prohibit
U.S. participation point to extradition cases, where the Supreme Court
has ruled that the Bill of Rights does not prohibit the surrender of
American citizens for trial in foreign tribunals. See, e.g., Neely v.
Henkel, 180 U.S. 109 (1901). These cases, however, involve instances
where Americans have committed crimes abroad, or where their actions in
the United States are intended to achieve a criminal effect in another
country. \4\ As the Neely Court reasoned:
\4\ See United States v. Melia, 667 F.2d 300 (2d Cir. 1981)
(individual whose actions took place in the United States subject to
extradition where acts were intended to produce criminal effect in
another country.)
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When an American citizen commits a crime in a foreign country
he cannot complain if required to submit to such modes of trial
and to such punishment as the laws of that country may
prescribe for its own people, unless a different mode be
provided for by treaty stipulations between that country and
the United States.
Id. at 123.
However, the ICC Treaty would be much more than an extraordinary
extradition treaty. It would subject the territory and citizens of the
United States to the jurisdiction of the ICC, would subordinate the
United States' judicial authority to the ICC in cases within its
jurisdiction, and would require the United States to surrender its
citizens for trial and punishment. In particular, the ICC would have
jurisdiction over crimes committed by Americans against other Americans
in the United States, without any affects abroad. Although it may seem
unlikely that crimes within the ICC's jurisdiction, ``war crimes,''
``crimes against humanity,'' ``genocide,'' could take place in the
United States, as a matter of law, such crimes can take place anywhere.
The ICC Treaty's constitutionality must be assessed based upon the
nature and scope of the power it vests in that court, not upon the
likelihood that this power will be used in any particular manner.
It should be noted, however, that the likelihood of such
prosecutions will depend entirely upon the ICC's own interpretation of
its jurisdiction. Like other courts, international tribunals claim the
right to determine whether or not a particular matter falls within
their authority -- the principle of competence de la competence, the
right of courts to rule on their own jurisdiction. See Prosecutor v.
Tadic (Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction) para.para. 18-22 (ICTY Appeals Chamber) (2 Oct.1995).
This principle is, in fact, found in Article 19 of the ICC's Statute,
which provides that ``[t]he court shall satisfy itself that it has
jurisdiction in any case brought before it.''
The potential for mischief here is obvious. It should be remembered
that the ICC Statute contains very broad definitions of such offenses
as ``crimes against humanity'' and ``genocide,'' and that these
offenses could well be interpreted to cover certain uses of force by
the U.S. government against its citizens, or to reach what we call
``hate'' crimes. If a prosecutor hostile to the United States, or
merely interested in making the ICC's prosecutions appear ``balanced,''
determined to investigate U.S. officials, the United States would be
unable to prevent this investigation -- and any resulting prosecutions
-- if it were a State Party to the ICC Treaty.
Moreover, the most likely theory under which the ICC would
prosecute American officials on account of military actions overseas
would be ``superior authority'' or ``command responsibility.'' Under
this theory of liability, no specifically intended effect by the
defendant beyond the territory United States might be required. It
arguably is sufficient that alleged violations of the laws of war were
committed by U.S. forces overseas, and that the individual was in a
position of authority over those troops. Cf In re Yamashita 327 U.S. 1
(1946).
E. The Principle of ``Complementarity'' Would Not Prevent the Trial of
Americans by the ICC
ICC supporters often claim that the principle of
``Complementarity'' would protect Americans from prosecution and trial
by the ICC, and so also would resolve the constitutional impediments to
U.S. accession to the ICC Treaty. This too is incorrect, and the
Clinton Administration wisely did not accept this illusory guarantee in
Rome.
Under Article I of the ICC's Statute, the Court's jurisdiction is
stated to be ``complementary to national criminal jurisdictions,''
meaning that only if national jurisdictions are unwilling or unable to
bring an accused individual to justice will the ICC act. Under Article
17 of the Statute, the ICC is empowered to make determinations of
whether a State is unwilling or unable to carry out an investigation
and prosecution. In particular, ``[i]n order to determine unwillingness
in a particular case,'' the Court will consider whether the national
proceedings ``were not or are not being conducted independently or
impartially and they were or are being conducted in a manner which, in
the circumstances, is inconsistent with an intent to bring the person
concerned to justice.'' See ICC Statute Art. 17.
This provision is an open invitation for the Court to examine each
decision by the United States not to pursue some alleged offense by its
military or civilian officials. Under the American constitutional
system, decisions on whether to prosecute both military and civilian
personnel are a matter for the Executive Branch. See Morrison v. Olsen,
487 U.S. 654, 691 (1988) (``There is no real dispute that the
[investigative and prosecutorial] functions performed by the
independent counsel are `executive' in the sense that they are law
enforcement functions that typically have been undertaken by officials
within the Executive Branch.''). Since the individuals, military and
civilian, most likely to be accused of offenses within the ICC's
authority also are Executive Branch personnel, directly accountable to
the President as Chief Executive and Commander-in-Chief of the Armed
Forces, it might be said that the decision not to pursue a case in the
United States can never be ``independent'' or ``impartial.'' Upon this
pretext, the ICC would be in a position to examine each and every use
of American military power to determine whether, in its view, offenses
within its authority have been committed. Thus, the principle of
``complementarity'' would be no bar to the arraignment of Americans
before the ICC, if the United States were to join the ICC Treaty
regime.
III. Policy Objections to U.S. Participation in the ICC Treaty Regime
In addition to the very serious constitutional impediments to U.S.
participation in the ICC Treaty regime, there are important policy
considerations that militate against such participation.
A. Surrender of American Sovereignty
The erection of an international authority with substantive power
over individual Americans in general, and American military and
civilian officials in particular, represents a profound surrender of
American sovereignty -- the right of self-government. Today, the
elected officials of the United States are responsible for their
actions to the laws of the United States and to the electorate. If the
United States were to ratify the ICC Treaty, these individuals could
then be held accountable for their actions to the ICC in a very real
and immediate way -- through criminal prosecution and punishment. As
Alexis de Tocqueville wrote in the last century, ``[h]e who punishes
the criminal is . . . The real master of society.'' See 1 Alexis de
Tocqueville, Democracy in America 282-83 (Reeve trans. 1948 ed.),
quoted in Reid v. Covert, 354 U.S. at 10 n.13.
At the same time, the ICC would not be accountable to the people of
the United States for its own actions. For example, no action taken by
the American people, or their elected representatives, could alter in
any way a decision of the ICC. This is extraordinary power. Even when
the Supreme Court has resolved a constitutional question, the American
people, through their representatives in the Congress and the States,
are free to amend to Constitution in order to reverse the Court's
determination. By contrast, there would be no appeal from decisions of
the ICC. This lack of accountability is fundamentally at odds with the
principle of popular sovereignty and self-government upon which the
American Republic is founded.
B. National Security Concerns With the ICC
Ratification of the ICC Treaty also would pose a direct threat to
American national security interests. As explained above, although the
ICC would, in principle, be limited in its jurisdiction, the
application of that jurisdiction would be entirely within the Court's
discretion. Violations of international humanitarian norms are very
often in the eye of the beholder. Saddam Hussein, for example, would
agree that war crimes were committed during the 1991 Persian Gulf War.
In his view, however, the United States and its coalition allies were
the perpetrators of these offenses, not himself.
Moreover, the offenses over which the proposed ICC would have
jurisdiction are broadly defined. For example, under the ICC Statute
``War Crimes'' include ``[i]ntentionally launching an attack in the
knowledge that such attack will cause incidental loss of life or injury
to civilians or damage to civilian objects or widespread, long-term and
severe damage to the natural environment which would be clearly
excessive in relation to the concrete and direct overall military
advantage anticipated.'' This standard is emphatically subjective, as
it calls for a consideration of whether a particular military action
was justified when balanced with the damage it may have caused. The
application of this standard would put the ICC prosecutor and judges in
the position of reviewing and judging any American military action
which may result in civilian casualties, and determining for themselves
whether it was justified. In the process, the ICC could demand the
surrender of American officials for trial, to determine if -- in its
unreviewable opinion -- this standard was met.
The danger that the ICC might be used as a political tool against
the United States is neither fanciful nor alarmist. The United States
has interests and responsibilities around the world and the possibility
that a prosecutor and bench staffed by individuals hostile to the
United States or its interests is quite real. The Cold War is over, but
the United States still has enemies and competitors. Indeed, as the
World's only superpower, it is viewed with suspicion by many states,
and with outright hostility by more than a few. All would have an equal
vote in selecting the ICC's personnel if they choose to ratify the
treaty.
Moreover, any assumption that the ICC would not be subject to
politics may charitably be described as naive. The proof of the
pudding, they say, is in the eating. The United Nations has been a
political institution since its founding. Throughout the Cold War, the
United Nations General Assembly ran a cottage industry of anti-
Americanism. For example, as Allan Gerson, an aide to United States
Ambassador to the United Nations Jeanne Kirkpatrick, wrote: ``What
seemed beyond doubt in the winter and spring of 1981 was that the
United Nations was at war with the United States, that the United
States was not faring well, and that it was no accident that its
fortunes around the world were at an equally low ebb.'' Allan Gerson,
The Kirkpatrick Mission: Diplomacy Without Apology, America at the
United Nations 1981-1985 xii (Free Press 1991). \5\
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\5\ The U.S. was not, of course, the only target. Its allies came
in for their share of this treatment. This was particularly true of
Israel. As the Israeli Foreign Ministry has explained ``the UN was used
for years as a battleground for political warfare against Israel. The
21 Arab states, with the aid of Islamic countries, the non-aligned camp
and the former Communist bloc, constituted an `automatic majority,'
assuring the adoption of anti-Israel resolutions in the General
Assembly.'' (Israel Ministry of Foreign Affairs, Israel Among the
Nations: United Nations, www.israel-mfa.gov.il/facts/nations/
fnation9.html).
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Of course, some of this can be attributed to the Cold War and the
``bloc voting'' it caused at the UN. However, it shows in stark terms
the potential of international institutions to become the political
tools of our opponents. Moreover, the United Nations has provided
additional recent proof of its general attitude towards the United
States. Since October, 1997, a number of United Nations ``rapporteurs''
have travelled throughout the United States to investigate ``human
rights abuses.'' In particular, these individuals have investigated the
use of capital punishment, religious intolerance, and women in the
prison system in the United States. See ``Human Rights Probes Irk
U.S.,'' Wash. Times, June 29, 1998, p. 1. There would, however, be one
dramatic difference between the United Nations and the ICC -- the ICC
would have real and direct power to judge, and to punish, American
officials and citizens who may displease its prosecutors and judges.
There would be no appeal from the Court's decisions to any other
authority.
ICC defenders suggest that fears of an overreaching court are ill-
founded. One of the ICC's strongest advocates, former Canadian Justice
and current Yugoslav Tribunal Prosecutor Louise Arbour, has argued that
``there is more to fear from an impotent than from an overreaching
Prosecutor . . . an institution should not be constructed on the
assumption that it will be run by incompetent people, acting in bad
faith from improper purposes.'' See Statement by Justice Louise Arbour
to the Preparatory Committee on the Establishment of an International
Criminal Court (Dec. 8, 1997).
This, of course, is fundamentally at odds with the most basic
tenets of American government. Indeed, if there is one particular
American contribution to the art of statecraft, it is the principle --
incorporated into the very fabric of our Constitution -- that the
security of our rights cannot be trusted to the integrity of our
leaders. By its nature, power is capable of abuse and people are, by
nature, flawed. As Madison wrote in the Federalist in support of strong
separation of powers:
It may be a reflection on human nature, that such devices
should be necessary to control the abuses of government. But
what is government itself, but the greatest of all reflections
on human nature? If men were angels, no government would be
necessary. . . . In framing a government which is to be
administered by men over men, the great difficulty lies in
this: you must first enable the government to control the
governed; and in the next place oblige it to control itself.
The Federalist No. 51 (James Madison) 347, 349 (J.E. Cooke ed. 1961).
The ICC would not be obliged to control itself. In fact, the ICC
would invite the exercise of arbitrary power by its very design. As an
institution, it would act as policeman, prosecutor, judge, jury, and
(potentially) jailor -- all of these functions would be performed by
its personnel, with only bureaucratic divisions of authority. As noted
above, there would be no appeal from its judgments to any other
authority. If the ICC abused its power, the individual defendant would
have no legal recourse.
From first to last, the ICC would be judge in its own case. At the
same time, the ICC would exercise the most fundamental power of
government -- the administration of criminal justice. The rights of
individuals before it would depend entirely upon its will -- good or
bad. The Administration was correct to refuse to sign the ICC Treaty.
IV. Automatic Application of the ICC Treaty to the United States,
Without its Consent, Would be Illegal
The ICC Treaty, as agreed at the recently concluded Rome
Conference, would allow the ICC to exercise its jurisdiction over
Americans even though the United States has failed to sign and ratify
the ICC Treaty. This assertion of power is unprecedented and entirely
unsupported in international law.
The ICC is to be established by treaty, and one of the most basic
principles of the law of treaties is that States cannot be bound to a
treaty without their consent. See Vienna Convention on the Law of
Treaties, Art. 34, reprinted in Louis Henkin, et al., Basic Documents
Supplement to International Law: Cases and Materials 94 (3d ed. 1993)
(``A treaty does not create either obligations or rights for a third
State without its consent.''); Restatement (Third) of The Foreign
Relations Law of the United States Sec. 324 (1987) (same).
Consequently, that court cannot exercise its jurisdiction over American
nationals without the express consent of the United States. This
consent has been refused.
Any claim by the ICC, or the States Parties to the ICC Treaty, that
the Court is entitled to exercise its power over American nationals,
whether military or civilian, would also be fundamentally inconsistent
with the United Nations Charter. The United Nations Charter guarantees
the sovereign equality of states. See U.N. Charter, Art. 2, Cl. 1.,
(``The Organization is based on the principle of the sovereign equality
of all its Members.''), reprinted in Ian Brownlie, Basic Documents in
International Law 1, 3 (4th ed. 1995). This sovereign equality
includes, among other things, the fundamental principles that ``(a)
States are juridically equal; (b) Each State enjoys the rights inherent
in full sovereignty; (c) Each State has the duty to respect the
personality of other States.'' See U.N. General Assembly's Declaration
on Principles of International Law Concerning Friendly Relations and
Cooperation Among States in Accordance with the Charter of the United
Nations, reprinted in Brownlie, supra, at 36, 44.
By asserting the jurisdiction of the ICC, an institution that is
entirely a creature of the ICC Treaty and has no foundation in
customary international law, the ICC Treaty States Parties have
violated these principles. In particular, they have attempted to act as
an international legislature, imposing legal obligations and perils on
the citizens of the United States without the consent of their
government. This action is illegal. Consequently, any attempt by the
ICC to exercise its jurisdiction over the citizens or nationals of the
United States would constitute a grave violation of international law.
The United States can, and should, take all necessary actions to ensure
that American citizens are not seized and brought before this tribunal
for alleged offenses purportedly within its jurisdiction.V. Conclusion
United States participation in the ICC Treaty Regime would be
unconstitutional. It would subject Americans to prosecution and trial
in an extra-constitutional court, under the auspices of the United
States as a State Party to the ICC Treaty, for criminal offenses
otherwise within the judicial authority of the United States. Moreover,
Americans brought before the ICC would not be accorded the guarantees
of the Bill of Rights, especially the right to trial by jury in the
State and district where the crime took place.
In addition, United States accession to the ICC Treaty would
constitute an unprecedented surrender of American sovereignty -- the
right of the people of the United States to self-government. It would
subject the elected and appointed officials of the United States, both
civilian and military, to the review and judgment of an international
institution in no way accountable for its actions to the American
people.
The Administration was right to refuse to sign this flawed treaty.
The United States would now be entirely within its rights under the
recognized principles of international law to oppose, and to frustrate,
any attempt by the ICC, or States Parties to the ICC Treaty, to reach
American nationals.
__________
Prepared Statement of Michael P. Scharf
Good morning, Mr. Chairman and distinguished Senators. I am Michael
P. Scharf. I am currently Professor of Law and Director of the Center
for International Law and Policy at the New England School of Law. From
1989-1993, I served as the Attorney-Adviser in the Office of the Legal
Adviser of the U.S. Department of State with responsibility for the
issue of a permanent international criminal court. I am the author of
four books about international criminal tribunals, including the
Pulitzer Prize nominated Balkan Justice. A fuller biography is
attached.
Going into the Rome Diplomatic Conference, both the U.S. Congress
and the Administration in principle recognized the need for a permanent
international criminal court. Any discussion of what happened in Rome
must begin by recalling the case for such an institution.
In his book, Death by Government, Professor Rudi Rummel, who was
nominated for the Nobel Peace Prize, documented that 170 million
civilians have been victims of war crimes, crimes against humanity, and
genocide during the 20th Century. We have lived in a golden age of
impunity, where a person stands a much better chance of being tried for
taking a single life than for killing ten thousand or a million. Adolf
Hitler demonstrated the price we pay for failing to bring such persons
to justice. In a speech to his commanding generals on the eve of his
campaign into Poland in 1939, Hitler dismissed concerns about
accountability for war crimes and acts of genocide by stating, ``Who
after all is today speaking about the destruction of the Armenians.''
He was referring to the fact that the Turkish leaders were granted
amnesty in the Treaty of Lausanne for the genocidal murder of one
million Armenians during the First World War. After the Second World
War, the international community established the Nuremberg Tribunal to
prosecute the major Nazi war criminals and said ``Never Again.!''--
meaning that it would never again sit idly by while crimes against
humanity were committed. Shortly thereafter, the U.N. began work on the
project to establish a permanent Nuremberg Tribunal.
But because of the cold war, the pledge of ``never again'' quickly
became the reality of ``again and again'' as the world community failed
to take action to bring those responsible to justice when 2 million
people were butchered in Cambodia's killing fields, 30,000 disappeared
in Argentina's Dirty War, 200,000 were massacred in East Timor, 750,000
were exterminated in Uganda, 100,000 Kurds were gassed in Iraq, and
75,000 peasants were slaughtered by death squads in El Salvador. Just
as Adolf Hitler pointed to the world's failure to prosecute the Turkish
leaders, Radovan Karadzic and Ratko Mladic were encouraged by the
world's failure to bring Pol Pot, Idi Amin, and Saddam Hussein to
justice for their international crimes.
Then, in the summer of 1992, genocide returned to Europe just when
the U.N. Security Council was freed of its cold war paralysis. Against
great odds, a modern day Nuremberg Tribunal was established in The
Hague to prosecute those responsible for atrocities in the Former
Yugoslavia. Then a year later, genocide reared its ugly head again,
this time in the small African country of Rwanda where members of the
ruling Hutu tribe massacred 800,000 members of the Tutsi tribe. In the
aftermath of the bloodshed, Rwanda's Prime Minister-designate (a Tutsi)
pressed the Security Council: ``Is it because we're Africans that a
similar court has not been set up for the Rwanda genocide.'' The
Council responded by establishing a second international war crimes
Tribunal in Arusha, Tanzania.
With the creation of the Yugoslavia and Rwanda Tribunals, there was
hope that ad hoc tribunals would be set up for crimes against humanity
elsewhere in the world. Genocidal leaders and their followers would
have reason to think twice before committing atrocities. But then
something known in government circles as ``Tribunal fatigue'' set in.
The process of reaching agreement on the tribunal's statute, electing
judges, selecting a prosecutor and staff, negotiating headquarters
agreements and judicial assistance pacts, and appropriating funds
turned out to be too time consuming and politically exhausting for the
members of the Security Council. A permanent international criminal
court was universally hailed as the solution to the problems that
afflict the ad hoc approach. As President Clinton said on the eve of
the Rome Conference: ``We have an obligation to carry forward the
lessons of Nuremberg . . . Those accused of war crimes, crimes against
humanity and genocide must be brought to justice . . . There must be
peace for justice to prevail, but there must be justice when peace
prevails.''
So what went wrong in Rome? Why at the last minute did the United
States Delegation feel compelled to join a handful of rogue States and
notorious human rights violators such as Iran, Libya, China, and Iraq
in voting against the statute for a Permanent International Criminal
Court, while all of our allies (except Israel) voted in favor of the
Court?
Rome represented a tension between the United States, which sought
a Security Council-controlled Court, and most of the other countries of
the world which felt no country's citizens who are accused of war
crimes or genocide should be exempt from the jurisdiction of a
permanent international criminal court. The justification for the
American position was that, as the world's greatest military and
economic power, more than any other country the United States is
expected to intervene to halt humanitarian catastrophes around the
world. The United States' unique position renders U.S. personnel
uniquely vulnerable to the potential jurisdiction of an international
criminal court. In sum, the Administration feared that an independent
ICC Prosecutor would turn out to be (in the words of one U.S. official)
an ``international Ken Starr.''
The rest of the world was in fact somewhat sympathetic to the
United States' concerns. What emerged from Rome was a Court with a two-
track system of jurisdiction. Track One would constitute situations
referred to the Court by the Security Council. This track would create
binding obligations on all states to comply with orders for evidence or
the surrender of indicted persons under Chapter VII of the U.N.
Charter. This track would be enforced by Security Council imposed
embargoes, the freezing of assets of leaders and their supporters, and/
or by authorizing the use of force. It is this track that the United
States favored, and would be likely to utilize in the event of a future
Bosnia or Rwanda. The second track would constitute situations referred
to the Court by individual countries or the ICC Prosecutor. This track
would have no built in process for enforcement, but rather would rely
on the good-faith cooperation of the Parties to the Court's statute.
Everyone recognized that the real power was in the first track. But the
United States still demanded protection from the second track of the
Court's jurisdiction. Thus, the following protective mechanisms were
incorporated into the Court's Statute at the urging of the United
States:
First of all, the Court's jurisdiction under the second track would
be based on a concept known as ``complementarity,'' which was defined
as meaning the Court would be a last resort which comes into play only
when domestic authorities are unable or unwilling to prosecute. Under
this principle, for example, the Court would not have had jurisdiction
over the infamous My Lai massacre since the United States convicted Lt.
Calley and prosecuted his superior officer, Captain Medina.
Second, the ICC Statute specifies that the Court would have
jurisdiction only over ``serious'' war crimes that represent a
``policy.'' Thus, random acts of U.S. personnel, such as the downing of
the Iran Airbus by the USS Vincennes, would not be subject to the
Court's jurisdiction.
Third, the Statute guards against spurious complaints by the ICC
prosecutor by requiring the approval of a three-judge pre-trial chamber
before the prosecution can launch an investigation. And the decision of
the chamber is subject to interlocutory appeal to the Appeals Chamber.
Fourth, the Statute allows the Security Council to affirmatively
vote to postpone an investigation or case for up to twelve months, on a
renewable basis. This gives the United States and the other members of
the Security Council a collective (though not individual) veto over the
Court where the Council is seized of a matter.
Finally, the Diplomatic Conference adopted the U.S. proposals for
the selection of judges to ensure against a politicized Court. While
researching my book, Balkan Justice, I observed the first trial before
the Yugoslavia Tribunal in The Hague. I can tell you that those judges
were truly independent. They did not in any way reflect the
predispositions of their home countries. The selection process produced
a bench made up of the most distinguished international jurists in the
world. And the Yugoslavia Tribunal's jurisprudence to date reflects a
respect for the rights of the defendant every bit as strong as that
found in U.S. courts. The experience with the Yugoslavia Tribunal can
give us comfort that a permanent international criminal tribunal would
be no Kangaroo court.
The United States Delegation played hard ball in Rome and got just
about everything it wanted. These protections proved sufficient for
other major powers including the United Kingdom, France and Russia. But
without what would amount to an iron clad exemption for U.S.
servicemen, the United States felt compelled to force a vote, and
ultimately to vote against the Court. The final vote on the Statute was
120 in favor, 7 against, with 21 abstentions. I understand that the
delegates loudly cheered for fifteen minutes when the tally was
announced. I'm told that a few of the members of the U.S. Delegation
had tears in their eyes.
The ICC Statute will come into force when 60 countries ratify it,
which given the overwhelming vote in favor, should be within a
relatively short period of time. Where does that leave us? Within five
years the world will have a permanent international criminal court even
without U.S. support. As a non-party, the U.S. will not be bound to
cooperate with the Court. But this does not guarantee complete immunity
from the Court. It is important to understand that U.S. citizens,
soldiers, and officials could still be indicted by the Court and even
arrested and surrendered to the Court while they are visiting a foreign
country which happens to be a party to the Court's Statute.
Moreover, by failing to sign the Statute, the U.S. will be
prevented from participating in the preparatory committee which will
draft the Court's Rules of Procedure and further define the elements of
the crimes within the Court's jurisdiction. Also, by failing to sign
the Statute, the U.S. will be prevented from nominating a candidate for
the Court's bench, participating in the selection of the Court's
Prosecutor and judges, or voting on its funding. The most important
question, which cannot be answered at this time, is whether the adverse
diplomatic fallout from the United States' action in Rome will
ultimately prevent it from being able to utilize the first track of the
Court's jurisdiction: that is, Security Council referral of cases.
The worst thing about the U.S. decision to break consensus and vote
against the permanent international criminal court is that the Rome
conference will end up sending a mixed message to future war criminals
and genocidal leaders. The U.S. action may be viewed as evidence that
the world's greatest power does not support the international effort to
bring such persons to justice. A future Adolf Hitler may point to the
U.S. action in telling his followers that they need not fear being held
accountable.
In the final analysis, the U.S. may have lost far more than it
gained by voting against the ICC Statute. After having won so many
battles in Rome, it is not clear why the U.S. Delegation did not
declare victory and vote in favor of the Court (though ratification may
have had to await a more favorable political climate). There's still
time for a change of heart. After all, it took the United States over
thirty years to ratify the 1948 Genocide Convention. But we finally did
the right thing.
Thank you.
__________
Additional Statements Submitted for the Record
Statement Submitted by The Lawyers Committee for Human Rights
The Treaty to Establish A Permanent International Criminal Court
July 22, 1998
The Lawyers Committee for Human Rights submits this statement on
the International Criminal Court (ICC) to the International
Organizations Subcommittee of the Senate Committee on Foreign
Relations. Since 1978, the Lawyers Committee for Human Rights has
worked to promote international human rights. Its programs focus on
analyzing and building the legal institutions and structures that will
guarantee human rights in the long term. The Lawyers Committee played a
leading role in keeping the ICC negotiating process on track toward
crafting a statute that will preserve the integrity of the ICC. Through
analyses of the legal and political issues and active consultation with
key negotiators, we worked to mobilize support for a strong and
credible court that will punish heinous international crimes and deter
future atrocities. Although the Rome treaty falls short of what we
advocated for, it does provide a framework of international justice for
future generations. This court is squarely in the national interest of
the United States and deserves its support.
Background
In the 50 years since the Nuremberg trials, genocide, crimes
agalnst humanity and serious war crimes have been committed in many
parts of the world. The perpetrators usually escaped justice because
there was no court able and willing to hold them accountable. The Court
will have jurisdiction to prosecute those suspected of the most serious
international crimes whenever a national government is unable or
unwilling to do so.
The negotiations concluded in Rome on July 17 reflected widespread
international consensus that a permanent court must be established.
Why An ICC Is Needed
Experience has demonstrated that the worst human rights criminals,
especially those in positions of authority, are rarely called to
account by their own governments. The U.N. Security Council established
the ad hoc tribunal for the former Yugoslavia precisely because
national authorities were uniikely to punish those responsible for
atrocities. Even when the political will exists, as in Rwanda, fair
prosecution is often impossible because conflicts have disrupted or
even destroyed a country's judicial system.
The ICC will not prevent all future human rights violations. But it
will provide a forum to prosecute the most heinous international crimes
when national systems are unable or unwilling to do so. It will also
serve to deter those who would commit genocide, crimes against humanity
and war crimes, by confronting them with the threat of punishment. It
would offer redress to victims where national courts cannot provide it.
It would strengthen peace and end the cycle of violence, by offering
justice as an alternative to revenge. And it would contribute to the
process of reconciliation, by replacing the stigma of collective guilt
with the catharsis of individual accountability. But unlike the ad hoc
tribunals, which can raise questions of selective justice and political
motivations, the legitimacy of a permanent ICC created by treaty by
U.N. member nations would not be open to challenge. The Court would
have the same mandate wherever the crimes under its jurisdiction are
committed.
The ICC is in the national interest of the United States. A court
capable of effectively stepping in when national judicial systems are
unwilling or unable to prosecute those who commit genocide, crimes
against humanity or serious war crimes will help deter those crimes.
Increased deterrence will lessen the chances that U.S. military
personnel will need to be deployed in response to future Bosnias. And
an effective court will help deter the commission of war crimes against
U.S. military personnel when they are deployed overseas.
Safeguards Against Inappropriate Prosecutions
Some have raised the concern that the Court might become a tool for
politically motivated prosecutions of Americans, especially military
personnel deployed abroad. This concern is legitimate, but the final
treaty contains provisions that address this concern. Four important
safeguards in the treaty are designed to protect against inappropriate
investigations of U.S. citizens, and would do so without sacrificing
the Court's independence.
First, the subject matter jurisdiction of the Court will be limited
to the most egregious international crimes: genocide, crimes against
humanity and serious war crimes. This limited jurisdiction necessarily
will restrict the investigations that the Prosecutor can undertake to
claims that those crimes have been committed. Nothing in the Court's
limited jurisdiction would permit the prosecutor to investigate
allegations of other types of wrongdoing. The United States was very
involved in defining those crimes and including high thresholds to
ensure that the Court deals only with the most serious offenses.
Second, and perhaps most important, the ICC will cede jurisdiction
to the national courts of countries willing and able to prosecute
individuals who commit these crimes. Under the principle of
``complementarity,'' the Court will be empowered to act only when
national judicial systems are not available to do so. Thus, a case will
be inadmissible before the ICC whenever a State is exercising, or has
exercised, its national jurisdiction over a case. By the treaty's
terms, the ICC will have not have jurisdiction when a national
investigation is taking place or has occurred. This means that whenever
a State does carry out its obligation to investigate, even if it
decides not to prosecute, the ICC cannot intercede. The oniy exceptions
are when a State intentionally tries to avoid its international
obligations by willingly shielding a criminal from responsibility, as
is the case now with many of the indicted war criminals in the former
Yugoslavia, or where the judicial system has collapsed, as in the case
in Rwanda. Quite simply, the Court is neither designed nor intended to
supplant independent and effective judicial systems such as the U.S.
military and civilian courts.
Third, judicial oversight will ensure prosecutorial accountability.
The treaty already provides for early judicial review of both the
merits of a case and whether a national judicial system is available.
The U.S. delegation succeeded in further strengthening these safeguards
during the negotiations.
Finally, safeguards in the election and removal of the Prosecutor
and Deputy Prosecutor provide accountability. The treaty requires that
they be ``persons of high moral character [and] be highly competent in
and have extensive practical experience in the prosecution or trial of
criminal cases.'' The natural counterpart to election of the Prosecutor
and Deputy Prosecutors is their removal, which the treaty allows by
vote of a majority of states parties.
The United States has a national interest in an effective ICC as
well as an interest in protecting against inappropriate prosecutions
before such a court. These interests are not mutually exclusive. The
final ICC treaty preserves both interests. The United States should not
unnecessarily sacrifice the national interest in promoting
international justice in the mistaken belief that an independent court
might act irresponsibly. The safeguards outlined above--especially the
principle of complementarity--will promote an independent and effective
court while protecting against inappropriate prosecutions.
__________
Statement Submitted by Richard Dicker of Human Rights Watch
The urgent need for this International Criminal Court (ICC) has
been underscored by the spectacular failure of national court systems
to hold those accused of the most serious crimes under international
law accountable for their acts. The United States had strongly
supported the Courts' creation up until the final negotiations. A
foundational principle of this Court is that it will only operate in
situations where a national jurisdiction is ``unable or unwilling'' to
bring the perpetrators of genocide, crimes against humanity, and war
crimes to justice. Before the ICC could try a case, the Court's
Prosecutor must prove that the national authorities were acting ``with
the intent to shield an individual from international criminal
responsibility.'' This threshold provides a strong safeguard against
unnecessary prosecutions.
Human Rights Watch, one of the world's largest non-governmental
monitors of violations of human rights and the laws of war, believes
this Court has tremendous potential to deter atrocities and provide
justice to the victims of the world's most heinous atrocities. It is
for this reason that we profoundly regret the failure of the United
States to support the treaty that was overwhelmingly adopted in Rome,
and take recent diplomatic statements threatening ``active opposition''
on the part of the United States to the treaty to be misguided and
indeed, contrary to this nation's interest in world peace and justice.
The claim that the statute is ``overreaching'' in that it purports
to bind non-States Parties through the exercise of jurisdiction over
their nationals is a gross mischaracterization. To begin with, it does
not ``bind'' non-States Parties or impose upon them any novel
obligations under international law. What it does do, is permit the ICC
to exercise jurisdiction over the nationals of non-States Parties where
there is a reasonable basis to believe they have committed the most
serious international crimes. There is nothing novel about such a
result. The core crimes in the ICC treaty are crimes of universal
jurisdiction--that is, they are so universally condemned, that any
nation in the world has the authority to exercise jurisdiction over
suspects and perpetrators, without the consent of that individual's
state of nationality. Thus, in the extremely unlikely event that a U.S.
service person were to commit such a crime abroad, that State would be
able to investigate and prosecute the individual without U.S. consent.
Nor is there anything unusual about the conferral of jurisdiction
over nationals of non-State Parties through the mechanism of treaty
law. The United States is party to a dozen anti-terrorism treaties that
provide universal jurisdiction for these crimes,and empower States
Parties to investigate and prosecute perpetrators of any nationality
found within their territory. The United States has exercised
jurisdiction over foreigners on the basis of such treaties,without the
consent of their state of nationality. Indeed, the United States
extradites and surrenders its own citizens all the time to be tried by
foreign courts that are not subjects to the United States Constitution
or its Bill of Rights. There is no Constitutional impediment to this,
and indeed, there would be no such hurdle to the surrender of U.S.
nationals to an international tribunal either. The one innovation of
the ICC treaty is that it similarly allows states on whose territories
these crimes were committed to allow the ICC to proceed in lieu of the
state itself. Given that the ICC will follow the highest international
standards of procedural fairness and protection of defendants' rights,
this may often be preferable to having the accused tried in a foreign
national court.
It is of more than semantic importance to underscore that non-
States Parties are not ``bound'' by the ICC treaty. The treaty does not
impose any duty on non-States Parties that they are not already bound
to fulfill. All nations are already obligated to investigate and punish
anyone who commits genocide, crimes against humanity, or the most
serious war crimes, and this fact is reflected in the treaty's
complementarity provisions that bar the ICC from acting where a State
is taking up this task. Although it is possible for citizens of a non-
State Party to come before the ICC, the state itself incurs no new
obligations, and indeed, not even the obligation of cooperation with
the Court, unless the referral comes from the Security Council itself.
The United States in particular objected to the inclusion of the
consent or ratification of the state on whose territory the crime was
committed as satisfying the preconditions to jurisdiction, and proposed
that only the state of nationality of the suspect be able to satisfy
the precondition through its consent or ratification of the treaty.
Such a narrow door to the ICC's exercise of its powers would exclude
virtually any world-class criminal. No one imagines Saddam Hussein
consenting to his own prosecution for war crimes committed in Kuwait.
In fact, such a narrow basis for the exercise of jurisdiction would
have operated as a powerful disincentive for states to ratify the
treaty--a sort of ``poison pill'' to ensure the ICC never became
operational. If refraining from ratifying the Court's statute were the
on sure-fire way of guaranteeing that no citizen was ever the subject
of an ICC prosecution, many states would think long and hard about
ratifying at all. It would not make sense, therefore,for the United
States to stake its position vis-a-vis the Court on this issue if it
otherwise favored joining the treaty.
In contrast, the current formulation that allows either the state
where the crime was committed or the state of the suspect's nationality
to act as the ``door'' to jurisdiction provides an additional incentive
to ratification. Governments that want to insure redress should they
ever be invaded and subjected to these atrocities can ratify this
treaty, secure in the knowledge that this ``insurance'' will only
operate should their nation be rendered incapable of enforcing justice
in its own courts.
The United States has also objected to the power of the prosecutor
to act independently to initiate the investigation of matters on the
basis of information from sources such as victims, United Nations
personnel, or non-governmental groups, arguing that this would
overwhelm the prosecutor and transform the office into a human rights
ombudsperson. Yet it advanced no solution to this problem, though many
have been suggested, including panels of experts to screen out
frivolous or marginal cases. And indeed, the United States succeeded in
imposing a powerful check on the prosecutor's power to commence
investigation of a matter by subjecting it to a rigorous process of
challenge by an affected State and review by successive levels of the
ICC--all without prejudice to the State's ability to also challenge the
investigation of any individual suspect's case.
In fact, the United States won myriad concessions at the
negotiations that are reflected throughout the body of the treaty, in
terms of the threshold definitions of crimes, and the opt-out provision
for war crimes generally, that constrict the reach of the Court to a
considerable degree and make the chances of prosecution of a United
States citizen extremely remote indeed. It is notable that other world
powers widely deployed abroad, such as France, the United Kingdom and
Russia, did not see this treaty as exposing their nationals to
frivolous or malicious prosecutions; and it is our hope that the United
States will ultimately come to this point of view.
__________
Related Documents
Rome Statute of the International Criminal Court
A/CONF.183/9
17 July 1998
United Nations
United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court
Rome, Italy
15 June-17 July 1998
[Adopted by the United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal
Court on 17 July 1998.]
PREAMBLE
The States Parties to this Statute,
Conscious that all peoples are united by common bonds, their
cultures pieced together in a shared heritage, and concerned that this
delicate mosaic may be shattered at any time,
Mindful that during this century millions of children, women and
men have been victims of unimaginable atrocities that deeply shock the
conscience of humanity,
Recognizing that such grave crimes threaten the peace, security and
well-being of the world,
Affirming that the most serious crimes of concern to the
international community as a whole must not go unpunished and that
their effective prosecution must be ensured by taking measures at the
national level and by enhancing international cooperation,
Determined to put an end to impunity for the perpetrators of these
crimes and thus to contribute to the prevention of such crimes,
Recalling that it is the duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes,
Reaffirming the Purposes and Principles of the Charter of the United
Nations, and in particular that all States shall refrain from the
threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent with the
Purposes of the United Nations,
Emphasizing in this connection that nothing in this Statute shall
be taken as authorizing any State Party to intervene in an armed
conflict in the internal affairs of any State,
Determined to these ends and for the sake of present and future
generations, to establish an independent permanent International
Criminal Court in relationship with the United Nations system, with
jurisdiction over the most serious crimes of concern to the
international community as a whole,
Emphasizing that the International Criminal Court established under
this Statute shall be complementary to national criminal jurisdictions,
Resolved to guarantee lasting respect for the enforcement of
international justice,
Have agreed as follows:
PART 1. ESTABLISHMENT OF THE COURT
Article 1
The Court
An International Criminal Court (``the Court'') is hereby
established. It shall be a permanent institution and shall have the
power to exercise its jurisdiction over persons for the most serious
crimes of international concern, as referred to in this Statute, and
shall be complementary to national criminal jurisdictions. The
jurisdiction and functioning of the Court shall be governed by the
provisions of this Statute.
Article 2
Relationship of the Court with the United Nations
The Court shall be brought into relationship with the United
Nations through an agreement to be approved by the Assembly of States
Parties to this Statute and thereafter concluded by the President of
the Court on its behalf.
Article 3
Seat of the Court
1. The seat of the Court shall be established at The Hague in the
Netherlands (``the host State'').
2. The Court shall enter into a headquarters agreement with the
host State, to be approved by the Assembly of States Parties and
thereafter concluded by the President of the Court on its behalf.
3. The Court may sit elsewhere, whenever it considers it desirable,
as provided in this Statute.
Article 4
Legal status and powers of the Court
1. The Court shall have international legal personality. It shall
also have such legal capacity as may be necessary for the exercise of
its functions and the fulfilment of its purposes.
2. The Court may exercise its functions and powers, as provided in
this Statute, on the territory of any State Party and, by special
agreement, on the territory of any other State.
PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW
Article 5
Crimes within the jurisdiction of the Court
1. The jurisdiction of the Court shall be limited to the most
serious crimes of concern to the international community as a whole.
The Court has jurisdiction in accordance with this Statute with respect
to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
2. The Court shall exercise jurisdiction over the crime of
aggression once a provision is adopted in accordance with articles 121
and 123 defining the crime and setting out the conditions under which
the Court shall exercise jurisdiction with respect to this crime. Such
a provision shall be consistent with the relevant provisions of the
Charter of the United Nations.
Article 6
Genocide
For the purpose of this Statute, ``genocide'' means any of the
following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the
group;
(c) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or
in part;
(d) Imposing measures intended to prevent births within the
group;
(e) Forcibly transferring children of the group to another
group.
Article 7
Crimes against humanity
1. For the purpose of this Statute, ``crime against humanity''
means any of the following acts when committed as part of a widespread
or systematic attack directed against any civilian population, with
knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical
liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual
violence of comparable gravity;
(h) Persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural,
religious, gender as defined in paragraph 3, or other grounds
that are universally recognized as impermissible under
international law, in connection with any act referred to in
this paragraph or any crime within the jurisdiction of the
Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally
causing great suffering, or serious injury to body or to mental
or physical health.
2. For the purpose of paragraph 1:
(a) ``Attack directed against any civilian population'' means
a course of conduct involving the multiple commission of acts
referred to in paragraph 1 against any civilian population,
pursuant to or in furtherance of a State or organizational
policy to commit such attack;
(b) ``Extermination'' includes the intentional infliction of
conditions of life, inter alia the deprivation of access to
food and medicine, calculated to bring about the destruction of
part of a population;
(c) ``Enslavement'' means the exercise of any or all of the
powers attaching to the right of ownership over a person and
includes the exercise of such power in the course of
trafficking in persons, in particular women and children;
(d) ``Deportation or forcible transfer of population'' means
forced displacement of the persons concerned by expulsion or
other coercive acts from the area in which they are lawfully
present, without grounds permitted under international law;
(e) ``Torture'' means the intentional infliction of severe
pain or suffering, whether physical or mental, upon a person in
the custody or under the control of the accused; except that
torture shall not include pain or suffering arising only from,
inherent in or incidental to, lawful sanctions;
(f) ``Forced pregnancy'' means the unlawful confinement, of a
woman forcibly made pregnant, with the intent of affecting the
ethnic composition of any population or carrying out other
grave violations of international law. This definition shall
not in any way be interpreted as affecting national laws
relating to pregnancy;
(g) ``Persecution'' means the intentional and severe
deprivation of fundamental rights contrary to international law
by reason of the identity of the group or collectivity;
(h) ``The crime of apartheid'' means inhumane acts of a
character similar to those referred to in paragraph 1,
committed in the context of an institutionalized regime of
systematic oppression and domination by one racial group over
any other racial group or groups and committed with the
intention of maintaining that regime;
(i) ``Enforced disappearance of persons'' means the arrest,
detention or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a
political organization, followed by a refusal to acknowledge
that deprivation of freedom or to give information on the fate
or whereabouts of those persons, with the intention of removing
them from the protection of the law for a prolonged period of
time.
3. For the purpose of this Statute, it is understood that the term
``gender'' refers to the two sexes, male and female, within the context
of society. The term ``gender'' does not indicate any meaning different
from the above.
Article 8
War crimes
1. The Court shall have jurisdiction in respect of war crimes in
particular when committed as a part of a plan or policy or as part of a
large-scale commission of such crimes.
2. For the purpose of this Statute, ``war crimes'' means:
(a) Grave breaches of the Geneva Conventions of 12 August
1949, namely, any of the following acts against persons or
property protected under the provisions of the relevant Geneva
Convention:
(i) Willful killing;
(ii) Torture or inhuman treatment, including
biological experiments;
(iii) Willfully causing great suffering, or serious
injury to body or health;
(iv) Extensive destruction and appropriation of
property, not justified by military necessity and
carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected
person to serve in the forces of a hostile Power;
(vi) Willfully depriving a prisoner of war or other
protected person of the rights of fair and regular
trial;
(vii) Unlawful deportation or transfer or unlawful
confinement;
(viii) Taking of hostages.
(b) Other serious violations of the laws and customs
applicable in international armed conflict, within the
established framework of international law, namely, any of the
following acts:
(i) Intentionally directing attacks against the
civilian population as such or against individual
civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian
objects, that is, objects which are not military
objectives;
(iii) Intentionally directing attacks against
personnel, installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping
mission in accordance with the Charter of the United
Nations, as long as they are entitled to the protection
given to civilians or civilian objects under the
international law of armed conflict;
(iv) Intentionally launching an attack in the
knowledge that such attack will cause incidental loss
of life or injury to civilians or damage to civilian
objects or widespread, long-term and severe damage to
the natural environment which would be clearly
excessive in relation to the concrete and direct
overall military advantage anticipated;
(v) Attacking or bombarding, by whatever means,
towns, villages, dwellings or buildings which are
undefended and which are not military objectives;
(vi) Killing or wounding a combatant who, having laid
down his arms or having no longer means of defence, has
surrendered at discretion;
(vii) Making improper use of a flag of truce, of the
flag or of the military insignia and uniform of the
enemy or of the United Nations, as well as of the
distinctive emblems of the Geneva Conventions,
resulting in death or serious personal injury;
(viii) The transfer, directly or indirectly, by the
Occupying Power of parts of its own civilian population
into the territory it occupies, or the deportation or
transfer of all or parts of the population of the
occupied territory within or outside this territory;
(ix) Intentionally directing attacks against
buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments,
hospitals and places where the sick and wounded are
collected, provided they are not military objectives;
(x) Subjecting persons who are in the power of an
adverse party to physical mutilation or to medical or
scientific experiments of any kind which are neither
justified by the medical, dental or hospital treatment
of the person concerned nor carried out in his or her
interest, and which cause death to or seriously
endanger the health of such person or persons;
(xi) Killing or wounding treacherously individuals
belonging to the hostile nation or army;
(xii) Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemy's property
unless such destruction or seizure be imperatively
demanded by the necessities of war;
(xiv) Declaring abolished, suspended or inadmissible
in a court of law the rights and actions of the
nationals of the hostile party;
(xv) Compelling the nationals of the hostile party to
take part in the operations of war directed against
their own country, even if they were in the
belligerent's service before the commencement of the
war;
(xvi) Pillaging a town or place, even when taken by
assault;
(xvii) Employing poison or poisoned weapons;
(xviii) Employing asphyxiating, poisonous or other
gases, and all analogous liquids, materials or devices;
(xix) Employing bullets which expand or flatten
easily in the human body, such as bullets with a hard
envelope which does not entirely cover the core or is
pierced with incisions;
(xx) Employing weapons, projectiles and material and
methods of warfare which are of a nature to cause
superfluous injury or unnecessary suffering or which
are inherently indiscriminate in violation of the
international law of armed conflict, provided that such
weapons, projectiles and material and methods of
warfare are the subject of a comprehensive prohibition
and are included in an annex to this Statute, by an
amendment in accordance with the relevant provisions
set forth in articles 121 and 123;
(xxi) Committing outrages upon personal dignity, in
particular humiliating and degrading treatment;
(xxii) Committing rape, sexual slavery, enforced
prostitution, forced pregnancy, as defined in article
7, paragraph 2 (f), enforced sterilization, or any
other form of sexual violence also constituting a grave
breach of the Geneva Conventions;
(xxiii) Utilizing the presence of a civilian or other
protected person to render certain points, areas or
military forces immune from military operations;
(xxiv) Intentionally directing attacks against
buildings, material, medical units and transport, and
personnel using the distinctive emblems of the Geneva
Conventions in conformity with international law;
(xxv) Intentionally using starvation of civilians as
a method of warfare by depriving them of objects
indispensable to their survival, including wilfully
impeding relief supplies as provided for under the
Geneva Conventions;
(xxvi) Conscripting or enlisting children under the
age of fifteen years into the national armed forces or
using them to participate actively in hostilities.
(c) In the case of an armed conflict not of an international
character, serious violations of article 3 common to the four
Geneva Conventions of 12 August 1949, namely, any of the
following acts committed against persons taking no active part
in the hostilities, including members of armed forces who have
laid down their arms and those placed hors de combat by
sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder
of all kinds, mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in
particular humiliating and degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of
executions without previous judgement pronounced by a
regularly constituted court, affording all judicial
guarantees which are generally recognized as
indispensable.
(d) Paragraph 2 (c) applies to armed conflicts not of an
international character and thus does not apply to situations
of internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence or other acts of a similar
nature.
(e) Other serious violations of the laws and customs
applicable in armed conflicts not of an international
character, within the established framework of international
law, namely, any of the following acts:
(i) Intentionally directing attacks against the
civilian population as such or against individual
civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against
buildings, material, medical units and transport, and
personnel using the distinctive emblems of the Geneva
Conventions in conformity with international law;
(iii) Intentionally directing attacks against
personnel, installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping
mission in accordance with the Charter of the United
Nations, as long as they are entitled to the protection
given to civilians or civilian objects under the law of
armed conflict;
(iv) Intentionally directing attacks against
buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments,
hospitals and places where the sick and wounded are
collected, provided they are not military objectives;
(v) Pillaging a town or place, even when taken by
assault;
(vi) Committing rape, sexual slavery, enforced
prostitution, forced pregnancy, as defined in article
7, paragraph 2 (f), enforced sterilization, and any
other form of sexual violence also constituting a
serious violation of article 3 common to the four
Geneva Conventions;
(vii) Conscripting or enlisting children under the
age of fifteen years into armed forces or groups or
using them to participate actively in hostilities;
(viii) Ordering the displacement of the civilian
population for reasons related to the conflict, unless
the security of the civilians involved or imperative
military reasons so demand;
(ix) Killing or wounding treacherously a combatant
adversary;
(x) Declaring that no quarter will be given;
(xi) Subjecting persons who are in the power of
another party to the conflict to physical mutilation or
to medical or scientific experiments of any kind which
are neither justified by the medical, dental or
hospital treatment of the person concerned nor carried
out in his or her interest, and which cause death to or
seriously endanger the health of such person or
persons;
(xii) Destroying or seizing the property of an
adversary unless such destruction or seizure be
imperatively demanded by the necessities of the
conflict;
(f) Paragraph 2 (e) applies to armed conflicts not of an
international character and thus does not apply to situations
of internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence or other acts of a similar
nature. It applies to armed conflicts that take place in the
territory of a State when there is protracted armed conflict
between governmental authorities and organized armed groups or
between such groups.
3. Nothing in paragraphs 2 (c) and (d) shall affect the
responsibility of a Government to maintain or re-establish law and
order in the State or to defend the unity and territorial integrity of
the State, by all legitimate means.
Article 9
Elements of Crimes
1. Elements of Crimes shall assist the Court in the interpretation
and application of articles 6, 7 and 8. They shall be adopted by a two-
thirds majority of the members of the Assembly of States Parties.
2. Amendments to the Elements of Crimes may be proposed by:
(a) Any State Party;
(b) The judges acting by an absolute majority;
(c) The Prosecutor.
Such amendments shall be adopted by a two-thirds majority of the
members of the Assembly of States Parties.
3. The Elements of Crimes and amendments thereto shall be
consistent with this Statute.
Article 10
Nothing in this Part shall be interpreted as limiting or
prejudicing in any way existing or developing rules of international
law for purposes other than this Statute.
Article 11
Jurisdiction ratione temporis
1. The Court has jurisdiction only with respect to crimes committed
after the entry into force of this Statute.
2. If a State becomes a Party to this Statute after its entry into
force, the Court may exercise its jurisdiction only with respect to
crimes committed after the entry into force of this Statute for that
State, unless that State has made a declaration under article 12,
paragraph 3.
Article 12
Preconditions to the exercise of jurisdiction
1. A State which becomes a Party to this Statute thereby accepts
the jurisdiction of the Court with respect to the crimes referred to in
article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may
exercise its jurisdiction if one or more of the following States are
Parties to this Statute or have accepted the jurisdiction of the Court
in accordance with paragraph 3:
(a) The State on the territory of which the conduct in
question occurred or, if the crime was committed on board a
vessel or aircraft, the State of registration of that vessel or
aircraft;
(b) The State of which the person accused of the crime is a
national.
3. If the acceptance of a State which is not a Party to this
Statute is required under paragraph 2, that State may, by declaration
lodged with the Registrar, accept the exercise of jurisdiction by the
Court with respect to the crime in question. The accepting State shall
cooperate with the Court without any delay or exception in accordance
with Part 9.
Article 13
Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime
referred to in article 5 in accordance with the provisions of this
Statute if:
(a) A situation in which one or more of such crimes appears
to have been committed is referred to the Prosecutor by a State
Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears
to have been committed is referred to the Prosecutor by the
Security Council acting under Chapter VII of the Charter of the
United Nations; or
(c) The Prosecutor has initiated an investigation in respect
of such a crime in accordance with article 15.
Article 14
Referral of a situation by a State Party
1. A State Party may refer to the Prosecutor a situation in which
one or more crimes within the jurisdiction of the Court appear to have
been committed requesting the Prosecutor to investigate the situation
for the purpose of determining whether one or more specific persons
should be charged with the commission of such crimes.
2. As far as possible, a referral shall specify the relevant
circumstances and be accompanied by such supporting documentation as is
available to the State referring the situation.
Article 15
Prosecutor
1. The Prosecutor may initiate investigations proprio motu on the
basis of information on crimes within the jurisdiction of the Court.
2. The Prosecutor shall analyse the seriousness of the information
received. For this purpose, he or she may seek additional information
from States, organs of the United Nations, intergovernmental or non-
governmental organizations, or other reliable sources that he or she
deems appropriate, and may receive written or oral testimony at the
seat of the Court.
3. If the Prosecutor concludes that there is a reasonable basis to
proceed with an investigation, he or she shall submit to the Pre-Trial
Chamber a request for authorization of an investigation, together with
any supporting material collected. Victims may make representations to
the Pre-Trial Chamber, in accordance with the Rules of Procedure and
Evidence.
4. If the Pre-Trial Chamber, upon examination of the request and
the supporting material, considers that there is a reasonable basis to
proceed with an investigation, and that the case appears to fall within
the jurisdiction of the Court, it shall authorize the commencement of
the investigation, without prejudice to subsequent determinations by
the Court with regard to the jurisdiction and admissibility of a case.
5. The refusal of the Pre-Trial Chamber to authorize the
investigation shall not preclude the presentation of a subsequent
request by the Prosecutor based on new facts or evidence regarding the
same situation.
6. If, after the preliminary examination referred to in paragraphs
1 and 2, the Prosecutor concludes that the information provided does
not constitute a reasonable basis for an investigation, he or she shall
inform those who provided the information. This shall not preclude the
Prosecutor from considering further information submitted to him or her
regarding the same situation in the light of new facts or evidence.
Article 16
Deferral of investigation or prosecution
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.
Article 17
Issues of admissibility
1. Having regard to paragraph 10 of the Preamble and article 1, the
Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State
which has jurisdiction over it, unless the State is unwilling
or unable genuinely to carry out the investigation or
prosecution;
(b) The case has been investigated by a State which has
jurisdiction over it and the State has decided not to prosecute
the person concerned, unless the decision resulted from the
unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct
which is the subject of the complaint, and a trial by the Court
is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further
action by the Court.
2. In order to determine unwillingness in a particular case, the
Court shall consider, having regard to the principles of due process
recognized by international law, whether one or more of the following
exist, as applicable:
(a) The proceedings were or are being undertaken or the
national decision was made for the purpose of shielding the
person concerned from criminal responsibility for crimes within
the jurisdiction of the Court referred to in article 5;
(b) There has been an unjustified delay in the proceedings
which in the circumstances is inconsistent with an intent to
bring the person concerned to justice;
(c) The proceedings were not or are not being conducted
independently or impartially, and they were or are being
conducted in a manner which, in the circumstances, is
inconsistent with an intent to bring the person concerned to
justice.
3. In order to determine inability in a particular case, the Court
shall consider whether, due to a total or substantial collapse or
unavailability of its national judicial system, the State is unable to
obtain the accused or the necessary evidence and testimony or otherwise
unable to carry out its proceedings.
Article 18
Preliminary rulings regarding admissibility
1. When a situation has been referred to the Court pursuant to
article 13 (a) and the Prosecutor has determined that there would be a
reasonable basis to commence an investigation, or the Prosecutor
initiates an investigation pursuant to articles 13 (c) and 15, the
Prosecutor shall notify all States Parties and those States which,
taking into account the information available, would normally exercise
jurisdiction over the crimes concerned. The Prosecutor may notify such
States on a confidential basis and, where the Prosecutor believes it
necessary to protect persons, prevent destruction of evidence or
prevent the absconding of persons, may limit the scope of the
information provided to States.
2. Within one month of receipt of that notice, a State may inform
the Court that it is investigating or has investigated its nationals or
others within its jurisdiction with respect to criminal acts which may
constitute crimes referred to in article 5 and which relate to the
information provided in the notification to States. At the request of
that State, the Prosecutor shall defer to the State's investigation of
those persons unless the Pre-Trial Chamber, on the application of the
Prosecutor, decides to authorize the investigation.
3. The Prosecutor's deferral to a State's investigation shall be
open to review by the Prosecutor six months after the date of deferral
or at any time when there has been a significant change of
circumstances based on the State's unwillingness or inability genuinely
to carry out the investigation.
4. The State concerned or the Prosecutor may appeal to the Appeals
Chamber against a ruling of the Pre-Trial Chamber, in accordance with
article 82, paragraph 2. The appeal may be heard on an expedited basis.
5. When the Prosecutor has deferred an investigation in accordance
with paragraph 2, the Prosecutor may request that the State concerned
periodically inform the Prosecutor of the progress of its
investigations and any subsequent prosecutions. States Parties shall
respond to such requests without undue delay.
6. Pending a ruling by the Pre-Trial Chamber, or at any time when
the Prosecutor has deferred an investigation under this article, the
Prosecutor may, on an exceptional basis, seek authority from the Pre-
Trial Chamber to pursue necessary investigative steps for the purpose
of preserving evidence where there is a unique opportunity to obtain
important evidence or there is a significant risk that such evidence
may not be subsequently available.
7. A State which has challenged a ruling of the Pre-Trial Chamber
under this article may challenge the admissibility of a case under
article 19 on the grounds of additional significant facts or
significant change of circumstances.
Article 19
Challenges to the jurisdiction of the Court or the admissibility of a
case
1. The Court shall satisfy itself that it has jurisdiction in any
case brought before it. The Court may, on its own motion, determine the
admissibility of a case in accordance with article 17.
2. Challenges to the admissibility of a case on the grounds
referred to in article 17 or challenges to the jurisdiction of the
Court may be made by:
(a) An accused or a person for whom a warrant of arrest or a
summons to appear has been issued under article 58;
(b) A State which has jurisdiction over a case, on the ground
that it is investigating or prosecuting the case or has
investigated or prosecuted; or
(c) A State from which acceptance of jurisdiction is required
under article 12.
3. The Prosecutor may seek a ruling from the Court regarding a
question of jurisdiction or admissibility. In proceedings with respect
to jurisdiction or admissibility, those who have referred the situation
under article 13, as well as victims, may also submit observations to
the Court.
4. The admissibility of a case or the jurisdiction of the Court may
be challenged only once by any person or State referred to in paragraph
2. The challenge shall take place prior to or at the commencement of
the trial. In exceptional circumstances, the Court may grant leave for
a challenge to be brought more than once or at a time later than the
commencement of the trial. Challenges to the admissibility of a case,
at the commencement of a trial, or subsequently with the leave of the
Court, may be based only on article 17, paragraph 1 (c).
5. A State referred to in paragraph 2 (b) and (c) shall make a
challenge at the earliest opportunity.
6. Prior to the confirmation of the charges, challenges to the
admissibility of a case or challenges to the jurisdiction of the Court
shall be referred to the Pre-Trial Chamber. After confirmation of the
charges, they shall be referred to the Trial Chamber. Decisions with
respect to jurisdiction or admissibility may be appealed to the Appeals
Chamber in accordance with article 82.
7. If a challenge is made by a State referred to in paragraph 2 (b)
or (c), the Prosecutor shall suspend the investigation until such time
as the Court makes a determination in accordance with article 17.
8. Pending a ruling by the Court, the Prosecutor may seek authority
from the Court:
(a) To pursue necessary investigative steps of the kind
referred to in article 18, paragraph 6;
(b) To take a statement or testimony from a witness or
complete the collection and examination of evidence which had
begun prior to the making of the challenge; and
(c) In cooperation with the relevant States, to prevent the
absconding of persons in respect of whom the Prosecutor has
already requested a warrant of arrest under article 58.
9. The making of challenge shall not affect the validity of any act
performed by the Prosecutor or any order or warrant issued by the Court
prior to the making of the challenge.
10. If the Court has decided that a case is inadmissible under
article 17, the Prosecutor may submit a request for a review of the
decision when he or she is fully satisfied that new facts have arisen
which negate the basis on which the case had previously been found
inadmissible under article 17.
11. If the Prosecutor, having regard to the matters referred to in
article 17, defers an investigation, the Prosecutor may request that
the relevant State make available to the Prosecutor information on the
proceedings. That information shall, at the request of the State
concerned, be confidential. If the Prosecutor thereafter decides to
proceed with an investigation, he or she shall notify the State in
respect of the proceedings of which deferral has taken place.
Article 20
Ne bis in idem
1. Except as provided in this Statute, no person shall be tried
before the Court with respect to conduct which formed the basis of
crimes for which the person has been convicted or acquitted by the
Court.
2. No person shall be tried before another court for a crime
referred to in article 5 for which that person has already been
convicted or acquitted by the Court.
3. No person who has been tried by another court for conduct also
proscribed under articles 6, 7 or 8 shall be tried by the Court with
respect to the same conduct unless the proceedings in the other court:
(a) Were for the purpose of shielding the person concerned
from criminal responsibility for crimes within the jurisdiction
of the Court; or
(b) Otherwise were not conducted independently or impartially
in accordance with the norms of due process recognized by
international law and were conducted in a manner which, in the
circumstances, was inconsistent with an intent to bring the
person concerned to justice.
Article 21
Applicable law
1. The Court shall apply:
(a) In the first place, this Statute, Elements of Crimes and
its Rules of Procedure and Evidence;
(b) In the second place, where appropriate, applicable
treaties and the principles and rules of international law,
including the established principles of the international law
of armed conflict;
(c) Failing that, general principles of law derived by the
Court from national laws of legal systems of the world
including, as appropriate, the national laws of States that
would normally exercise jurisdiction over the crime, provided
that those principles are not inconsistent with this Statute
and with international law and internationally recognized norms
and standards.
2. The Court may apply principles and rules of law as interpreted
in its previous decisions.
3. The application and interpretation of law pursuant to this
article must be consistent with internationally recognized human
rights, and be without any adverse distinction founded on grounds such
as gender, as defined in article 7, paragraph 3, age, race, colour,
language, religion or belief, political or other opinion, national,
ethnic or social origin, wealth, birth or other status.
PART 3. GENERAL PRINCIPLES OF CRIMINAL LAW
Article 22
Nullum crimen sine lege
1. A person shall not be criminally responsible under this Statute
unless the conduct in question constitutes, at the time it takes place,
a crime within the jurisdiction of the Court.
2. The definition of a crime shall be strictly construed and shall
not be extended by analogy. In case of ambiguity, the definition shall
be interpreted in favour of the person being investigated, prosecuted
or convicted.
3. This article shall not affect the characterization of any
conduct as criminal under international law independently of this
Statute.
Article 23
Nulla poena sine lege
A person convicted by the Court may be punished only in accordance
with this Statute.
Article 24
Non-retroactivity ratione personae
1. No person shall be criminally responsible under this Statute for
conduct prior to the entry into force of the Statute.
2. In the event of a change in the law applicable to a given case
prior to a final judgement, the law more favourable to the person being
investigated, prosecuted or convicted shall apply.
Article 25
Individual criminal responsibility
1. The Court shall have jurisdiction over natural persons pursuant
to this Statute.
2. A person who commits a crime within the jurisdiction of the
Court shall be individually responsible and liable for punishment in
accordance with this Statute.
3. In accordance with this Statute, a person shall be criminally
responsible and liable for punishment for a crime within the
jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly
with another or through another person, regardless of whether
that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a
crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a
crime, aids, abets or otherwise assists in its commission or
its attempted commission, including providing the means for its
commission;
(d) In any other way contributes to the commission or
attempted commission of such a crime by a group of persons
acting with a common purpose. Such contribution shall be
intentional and shall either:
(i) Be made with the aim of furthering the criminal
activity or criminal purpose of the group, where such
activity or purpose involves the commission of a crime
within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the
group to commit the crime;
(e) In respect of the crime of genocide, directly and
publicly incites others to commit genocide;
(f) Attempts to commit such a crime by taking action that
commences its execution by means of a substantial step, but the
crime does not occur because of circumstances independent of
the person's intentions. However, a person who abandons the
effort to commit the crime or otherwise prevents the completion
of the crime shall not be liable for punishment under this
Statute for the attempt to commit that crime if that person
completely and voluntarily gave up the criminal purpose.
4. No provision in this Statute relating to individual criminal
responsibility shall affect the responsibility of States under
international law.
Article 26
Exclusion of jurisdiction over persons under eighteen
The Court shall have no jurisdiction over any person who was under
the age of 18 at the time of the alleged commission of a crime.
Article 27
Irrelevance of official capacity
1. This Statute shall apply equally to all persons without any
distinction based on official capacity. In particular, official
capacity as a Head of State or Government, a member of a Government or
parliament, an elected representative or a government official shall in
no case exempt a person from criminal responsibility under this
Statute, nor shall it, in and of itself, constitute a ground for
reduction of sentence.
2. Immunities or special procedural rules which may attach to the
official capacity of a person, whether under national or international
law, shall not bar the Court from exercising its jurisdiction over such
a person.
Article 28
Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under this
Statute for crimes within the jurisdiction of the Court:
1. A military commander or person effectively acting as a military
commander shall be criminally responsible for crimes within the
jurisdiction of the Court committed by forces under his or her
effective command and control, or effective authority and control as
the case may be, as a result of his or her failure to exercise control
properly over such forces, where:
(a) That military commander or person either knew or, owing
to the circumstances at the time, should have known that the
forces were committing or about to commit such crimes; and
(b) That military commander or person failed to take all
necessary and reasonable measures within his or her power to
prevent or repress their commission or to submit the matter to
the competent authorities for investigation and prosecution.
2. With respect to superior and subordinate relationships not
described in paragraph 1, a superior shall be criminally responsible
for crimes within the jurisdiction of the Court committed by
subordinates under his or her effective authority and control, as a
result of his or her failure to exercise control properly over such
subordinates, where:
(a) The superior either knew, or consciously disregarded
information which clearly indicated, that the subordinates were
committing or about to commit such crimes;
(b) The crimes concerned activities that were within the
effective responsibility and control of the superior; and
(c) The superior failed to take all necessary and reasonable
measures within his or her power to prevent or repress their
commission or to submit the matter to the competent authorities
for investigation and prosecution.
Article 29
Non-applicability of statute of limitations
The crimes within the jurisdiction of the Court shall not be
subject to any statute of limitations.
Article 30
Mental element
1. Unless otherwise provided, a person shall be criminally
responsible and liable for punishment for a crime within the
jurisdiction of the Court only if the material elements are committed
with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in
the conduct;
(b) In relation to a consequence, that person means to cause
that consequence or is aware that it will occur in the ordinary
course of events.
3. For the purposes of this article, ``knowledge'' means awareness
that a circumstance exists or a consequence will occur in the ordinary
course of events. ``Know'' and ``knowingly'' shall be construed
accordingly.
Article 31
Grounds for excluding criminal responsibility
1. In addition to other grounds for excluding criminal
responsibility provided for in this Statute, a person shall not be
criminally responsible if, at the time of that person's conduct:
(a) The person suffers from a mental disease or defect that
destroys that person's capacity to appreciate the unlawfulness
or nature of his or her conduct, or capacity to control his or
her conduct to conform to the requirements of law;
(b) The person is in a state of intoxication that destroys
that person's capacity to appreciate the unlawfulness or nature
of his or her conduct, or capacity to control his or her
conduct to conform to the requirements of law, unless the
person has become voluntarily intoxicated under such
circumstances that the person knew, or disregarded the risk,
that, as a result of the intoxication, he or she was likely to
engage in conduct constituting a crime within the jurisdiction
of the Court;
(c) The person acts reasonably to defend himself or herself
or another person or, in the case of war crimes, property which
is essential for the survival of the person or another person
or property which is essential for accomplishing a military
mission, against an imminent and unlawful use of force in a
manner proportionate to the degree of danger to the person or
the other person or property protected. The fact that the
person was involved in a defensive operation conducted by
forces shall not in itself constitute a ground for excluding
criminal responsibility under this subparagraph;
(d) The conduct which is alleged to constitute a crime within
the jurisdiction of the Court has been caused by duress
resulting from a threat of imminent death or of continuing or
imminent serious bodily harm against that person or another
person, and the person acts necessarily and reasonably to avoid
this threat, provided that the person does not intend to cause
a greater harm than the one sought to be avoided. Such a threat
may either be:
(i) Made by other persons; or
(ii) Constituted by other circumstances beyond that
person's control.
2. The Court shall determine the applicability of the grounds for
excluding criminal responsibility provided for in this Statute to the
case before it.
3. At trial, the Court may consider a ground for excluding criminal
responsibility other than those referred to in paragraph 1 where such a
ground is derived from applicable law as set forth in article 21. The
procedures relating to the consideration of such a ground shall be
provided for in the Rules of Procedure and Evidence.
Article 32
Mistake of fact or mistake of law
1. A mistake of fact shall be a ground for excluding criminal
responsibility only if it negates the mental element required by the
crime.
2. A mistake of law as to whether a particular type of conduct is a
crime within the jurisdiction of the Court shall not be a ground for
excluding criminal responsibility. A mistake of law may, however, be a
ground for excluding criminal responsibility if it negates the mental
element required by such a crime, or as provided for in article 33.
Article 33
Superior orders and prescription of law
1. The fact that a crime within the jurisdiction of the Court has
been committed by a person pursuant to an order of a Government or of a
superior, whether military or civilian, shall not relieve that person
of criminal responsibility unless:
(a) The person was under a legal obligation to obey orders of
the Government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
2. For the purposes of this article, orders to commit genocide or
crimes against humanity are manifestly unlawful.
PART 4. COMPOSITION AND ADMINISTRATION OF THE COURT
Article 34
Organs of the Court
The Court shall be composed of the following organs:
(a) The Presidency;
(b) An Appeals Division, a Trial Division and a Pre-Trial
Division;
(c) The Office of the Prosecutor;
(d) The Registry.
Article 35
Service of judges
1. All judges shall be elected as full-time members of the Court
and shall be available to serve on that basis from the commencement of
their terms of office.
2. The judges composing the Presidency shall serve on a full-time
basis as soon as they are elected.
3. The Presidency may, on the basis of the workload of the Court
and in consultation with its members, decide from time to time to what
extent the remaining judges shall be required to serve on a full-time
basis. Any such arrangement shall be without prejudice to the
provisions of article 40.
4. The financial arrangements for judges not required to serve on a
full-time basis shall be made in accordance with article 49.
Article 36
Qualifications, nomination and election of judges
1. Subject to the provisions of paragraph 2, there shall be 18
judges of the Court.
2. (a) The Presidency, acting on behalf of the Court, may propose
an increase in the number of judges specified in paragraph 1,
indicating the reasons why this is considered necessary and
appropriate. The Registrar shall promptly circulate any such proposal
to all States Parties.
(b) Any such proposal shall then be considered at a meeting
of the Assembly of States Parties to be convened in accordance
with article 112. The proposal shall be considered adopted if
approved at the meeting by a vote of two-thirds of the members
of the Assembly of States Parties and shall enter into force at
such time as decided by the Assembly of States Parties.
(c) (i) Once a proposal for an increase in the number of
judges has been adopted under subparagraph (b), the election of
the additional judges shall take place at the next session of
the Assembly of States Parties in accordance with paragraphs 3
to 8 inclusive, and article 37, paragraph 2;
(ii) Once a proposal for an increase in the number of
judges has been adopted and brought into effect under
subparagraphs (b) and (c) (i), it shall be open to the
Presidency at any time thereafter, if the workload of
the Court justifies it, to propose a reduction in the
number of judges, provided that the number of judges
shall not be reduced below that specified in paragraph
1. The proposal shall be dealt with in accordance with
the procedure laid down in subparagraphs (a) and (b).
In the event that the proposal is adopted, the number
of judges shall be progressively decreased as the terms
of office of serving judges expire, until the necessary
number has been reached.
3. (a) The judges shall be chosen from among persons of high moral
character, impartiality and integrity who possess the qualifications
required in their respective States for appointment to the highest
judicial offices.
(b) Every candidate for election to the Court shall:
(i) Have established competence in criminal law and
procedure, and the necessary relevant experience,
whether as judge, prosecutor, advocate or in other
similar capacity, in criminal proceedings; or
(ii) Have established competence in relevant areas of
international law such as international humanitarian
law and the law of human rights, and extensive
experience in a professional legal capacity which is of
relevance to the judicial work of the Court;
(c) Every candidate for election to the Court shall have an
excellent knowledge of and be fluent in at least one of the
working languages of the Court.
4. (a) Nominations of candidates for election to the Court may be
made by any State Party to this Statute, and shall be made either:
(i) By the procedure for the nomination of candidates
for appointment to the highest judicial offices in the
State in question; or
(ii) By the procedure provided for the nomination of
candidates for the International Court of Justice in
the Statute of that Court. Nominations shall be
accompanied by a statement in the necessary detail
specifying how the candidate fulfils the requirements
of paragraph 3.
(b) Each State Party may put forward one candidate for any
given election who need not necessarily be a national of that
State Party but shall in any case be a national of a State
Party.
(c) The Assembly of States Parties may decide to establish,
if appropriate, an Advisory Committee on nominations. In that
event, the Committee's composition and mandate shall be
established by the Assembly of States Parties.
5. For the purposes of the election, there shall be two lists of
candidates:
List A containing the names of candidates with the
qualifications specified in paragraph 3 (b) (i); and
List B containing the names of candidates with the
qualifications specified in paragraph 3 (b) (ii).
A candidate with sufficient qualifications for both lists may
choose on which list to appear. At the first election to the Court, at
least nine judges shall be elected from list A and at least five judges
from list B. Subsequent elections shall be so organized as to maintain
the equivalent proportion on the Court of judges qualified on the two
lists.
6. (a) The judges shall be elected by secret ballot at a meeting of
the Assembly of States Parties convened for that purpose under article
112. Subject to paragraph 7, the persons elected to the Court shall be
the 18 candidates who obtain the highest number of votes and a two-
thirds majority of the States Parties present and voting.
(b) In the event that a sufficient number of judges is not
elected on the first ballot, successive ballots shall be held
in accordance with the procedures laid down in subparagraph (a)
until the remaining places have been filled.
7. No two judges may be nationals of the same State. A person who,
for the purposes of membership in the Court, could be regarded as a
national of more than one State shall be deemed to be a national of the
State in which that person ordinarily exercises civil and political
rights.
8. (a) The States Parties shall, in the selection of judges, take
into account the need, within the membership of the Court, for:
(i) The representation of the principal legal systems
of the world;
(ii) Equitable geographical representation; and
(iii) A fair representation of female and male
judges.
(b) States Parties shall also take into account the need to
include judges with legal expertise on specific issues,
including, but not limited to, violence against women or
children.
9. (a) Subject to subparagraph (b), judges shall hold office for a
term of nine years and, subject to subparagraph (c) and to article 37,
paragraph 2, shall not be eligible for re-election.
(b) At the first election, one third of the judges elected
shall be selected by lot to serve for a term of three years;
one third of the judges elected shall be selected by lot to
serve for a term of six years; and the remainder shall serve
for a term of nine years.
(c) A judge who is selected to serve for a term of three
years under subparagraph (b) shall be eligible for re-election
for a full term.
10. Notwithstanding paragraph 9, a judge assigned to a Trial or
Appeals Chamber in accordance with article 39 shall continue in office
to complete any trial or appeal the hearing of which has already
commenced before that Chamber.
Article 37
Judicial vacancies
1. In the event of a vacancy, an election shall be held in
accordance with article 36 to fill the vacancy.
2. A judge elected to fill a vacancy shall serve for the remainder
of the predecessor's term and, if that period is three years or less,
shall be eligible for re-election for a full term under article 36.
Article 38
The Presidency
1. The President and the First and Second Vice-Presidents shall be
elected by an absolute majority of the judges. They shall each serve
for a term of three years or until the end of their respective terms of
office as judges, whichever expires earlier. They shall be eligible for
re-election once.
2. The First Vice-President shall act in place of the President in
the event that the President is unavailable or disqualified. The Second
Vice-President shall act in place of the President in the event that
both the President and the First Vice-President are unavailable or
disqualified.
3. The President, together with the First and Second Vice-
Presidents, shall constitute the Presidency, which shall be responsible
for:
(a) The proper administration of the Court, with the
exception of the Office of the Prosecutor; and
(b) The other functions conferred upon it in accordance with
this Statute.
4. In discharging its responsibility under paragraph 3 (a), the
Presidency shall coordinate with and seek the concurrence of the
Prosecutor on all matters of mutual concern.
Article 39
Chambers
1. As soon as possible after the election of the judges, the Court
shall organize itself into the divisions specified in article 34,
paragraph (b). The Appeals Division shall be composed of the President
and four other judges, the Trial Division of not less than six judges
and the Pre-Trial Division of not less than six judges. The assignment
of judges to divisions shall be based on the nature of the functions to
be performed by each division and the qualifications and experience of
the judges elected to the Court, in such a way that each division shall
contain an appropriate combination of expertise in criminal law and
procedure and in international law. The Trial and Pre-Trial Divisions
shall be composed predominantly of judges with criminal trial
experience.
2. (a) The judicial functions of the Court shall be carried out in
each division by Chambers.
(b) (i) The Appeals Chamber shall be composed of all the
judges of the Appeals Division;
(ii) The functions of the Trial Chamber shall be
carried out by three judges of the Trial Division;
(iii) The functions of the Pre-Trial Chamber shall be
carried out either by three judges of the Pre-Trial
Division or by a single judge of that division in
accordance with this Statute and the Rules of Procedure
and Evidence;
(c) Nothing in this paragraph shall preclude the simultaneous
constitution of more than one Trial Chamber or Pre-Trial
Chamber when the efficient management of the Court's workload
so requires.
3. (a) Judges assigned to the Trial and Pre-Trial Divisions shall
serve in those divisions for a period of three years, and thereafter
until the completion of any case the hearing of which has already
commenced in the division concerned.
(b) Judges assigned to the Appeals Division shall serve in
that division for their entire term of office.
4. Judges assigned to the Appeals Division shall serve only in that
division. Nothing in this article shall, however, preclude the
temporary attachment of judges from the Trial Division to the Pre-Trial
Division or vice versa, if the Presidency considers that the efficient
management of the Court's workload so requires, provided that under no
circumstances shall a judge who has participated in the pre-trial phase
of a case be eligible to sit on the Trial Chamber hearing that case.
Article 40
Independence of the judges
1. The judges shall be independent in the performance of their
functions.
2. Judges shall not engage in any activity which is likely to
interfere with their judicial functions or to affect confidence in
their independence.
3. Judges required to serve on a full-time basis at the seat of the
Court shall not engage in any other occupation of a professional
nature.
4. Any question regarding the application of paragraphs 2 and 3
shall be decided by an absolute majority of the judges. Where any such
question concerns an individual judge, that judge shall not take part
in the decision.
Article 41
Excusing and disqualification of judges
1. The Presidency may, at the request of a judge, excuse that judge
from the exercise of a function under this Statute, in accordance with
the Rules of Procedure and Evidence.
2. (a) A judge shall not participate in any case in which his or
her impartiality might reasonably be doubted on any ground. A judge
shall be disqualified from a case in accordance with this paragraph if,
inter alia, that judge has previously been involved in any capacity in
that case before the Court or in a related criminal case at the
national level involving the person being investigated or prosecuted. A
judge shall also be disqualified on such other grounds as may be
provided for in the Rules of Procedure and Evidence.
(b) The Prosecutor or the person being investigated or
prosecuted may request the disqualification of a judge under
this paragraph.
(c) Any question as to the disqualification of a judge shall
be decided by an absolute majority of the judges. The
challenged judge shall be entitled to present his or her
comments on the matter, but shall not take part in the
decision.
Article 42
The Office of the Prosecutor
1. The Office of the Prosecutor shall act independently as a
separate organ of the Court. It shall be responsible for receiving
referrals and any substantiated information on crimes within the
jurisdiction of the Court, for examining them and for conducting
investigations and prosecutions before the Court. A member of the
Office shall not seek or act on instructions from any external source.
2. The Office shall be headed by the Prosecutor. The Prosecutor
shall have full authority over the management and administration of the
Office, including the staff, facilities and other resources thereof.
The Prosecutor shall be assisted by one or more Deputy Prosecutors, who
shall be entitled to carry out any of the acts required of the
Prosecutor under this Statute. The Prosecutor and the Deputy
Prosecutors shall be of different nationalities. They shall serve on a
full-time basis.
3. The Prosecutor and the Deputy Prosecutors shall be persons of
high moral character, be highly competent in and have extensive
practical experience in the prosecution or trial of criminal cases.
They shall have an excellent knowledge of and be fluent in at least one
of the working languages of the Court.
4. The Prosecutor shall be elected by secret ballot by an absolute
majority of the members of the Assembly of States Parties. The Deputy
Prosecutors shall be elected in the same way from a list of candidates
provided by the Prosecutor. The Prosecutor shall nominate three
candidates for each position of Deputy Prosecutor to be filled. Unless
a shorter term is decided upon at the time of their election, the
Prosecutor and the Deputy Prosecutors shall hold office for a term of
nine years and shall not be eligible for re-election.
5. Neither the Prosecutor nor a Deputy Prosecutor shall engage in
any activity which is likely to interfere with his or her prosecutorial
functions or to affect confidence in his or her independence. They
shall not engage in any other occupation of a professional nature.
6. The Presidency may excuse the Prosecutor or a Deputy Prosecutor,
at his or her request, from acting in a particular case.
7. Neither the Prosecutor nor a Deputy Prosecutor shall participate
in any matter in which their impartiality might reasonably be doubted
on any ground. They shall be disqualified from a case in accordance
with this paragraph if, inter alia, they have previously been involved
in any capacity in that case before the Court or in a related criminal
case at the national level involving the person being investigated or
prosecuted.
8. Any question as to the disqualification of the Prosecutor or a
Deputy Prosecutor shall be decided by the Appeals Chamber.
(a) The person being investigated or prosecuted may at any
time request the disqualification of the Prosecutor or a Deputy
Prosecutor on the grounds set out in this article;
(b) The Prosecutor or the Deputy Prosecutor, as appropriate,
shall be entitled to present his or her comments on the matter;
9. The Prosecutor shall appoint advisers with legal expertise on
specific issues, including, but not limited to, sexual and gender
violence and violence against children.
Article 43
The Registry
1. The Registry shall be responsible for the non-judicial aspects
of the administration and servicing of the Court, without prejudice to
the functions and powers of the Prosecutor in accordance with article
42.
2. The Registry shall be headed by the Registrar, who shall be the
principal administrative officer of the Court. The Registrar shall
exercise his or her functions under the authority of the President of
the Court.
3. The Registrar and the Deputy Registrar shall be persons of high
moral character, be highly competent and have an excellent knowledge of
and be fluent in at least one of the working languages of the Court.
4. The judges shall elect the Registrar by an absolute majority by
secret ballot, taking into account any recommendation by the Assembly
of States Parties. If the need arises and upon the recommendation of
the Registrar, the judges shall elect, in the same manner, a Deputy
Registrar.
5. The Registrar shall hold office for a term of five years, shall
be eligible for re-election once and shall serve on a full-time basis.
The Deputy Registrar shall hold office for a term of five years or such
shorter term as may be decided upon by an absolute majority of the
judges, and may be elected on the basis that the Deputy Registrar shall
be called upon to serve as required.
6. The Registrar shall set up a Victims and Witnesses Unit within
the Registry. This Unit shall provide, in consultation with the Office
of the Prosecutor, protective measures and security arrangements,
counselling and other appropriate assistance for witnesses, victims who
appear before the Court and others who are at risk on account of
testimony given by such witnesses. The Unit shall include staff with
expertise in trauma, including trauma related to crimes of sexual
violence.
Article 44
Staff
1. The Prosecutor and the Registrar shall appoint such qualified
staff as may be required to their respective offices. In the case of
the Prosecutor, this shall include the appointment of investigators.
2. In the employment of staff, the Prosecutor and the Registrar
shall ensure the highest standards of efficiency, competency and
integrity, and shall have regard, mutatis mutandis, to the criteria set
forth in article 36, paragraph 8.
3. The Registrar, with the agreement of the Presidency and the
Prosecutor, shall propose Staff Regulations which include the terms and
conditions upon which the staff of the Court shall be appointed,
remunerated and dismissed. The Staff Regulations shall be approved by
the Assembly of States Parties.
4. The Court may, in exceptional circumstances, employ the
expertise of gratis personnel offered by States Parties,
intergovernmental organizations or non-governmental organizations to
assist with the work of any of the organs of the Court. The Prosecutor
may accept any such offer on behalf of the Office of the Prosecutor.
Such gratis personnel shall be employed in accordance with guidelines
to be established by the Assembly of States Parties.
Article 45
Solemn undertaking
Before taking up their respective duties under this Statute, the
judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the
Deputy Registrar shall each make a solemn undertaking in open court to
exercise his or her respective functions impartially and
conscientiously.
Article 46
Removal from office
1. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or
the Deputy Registrar shall be removed from office if a decision to this
effect is made in accordance with paragraph 2, in cases where that
person:
(a) Is found to have committed serious misconduct or a
serious breach of his or her duties under this Statute, as
provided for in the Rules of Procedure and Evidence; or
(b) Is unable to exercise the functions required by this
Statute.
2. A decision as to the removal from office of a judge, the
Prosecutor or a Deputy Prosecutor under paragraph 1 shall be made by
the Assembly of States Parties, by secret ballot:
(a) In the case of a judge, by a two-thirds majority of the
States Parties upon a recommendation adopted by a two-thirds
majority of the other judges;
(b) In the case of the Prosecutor, by an absolute majority of
the States Parties;
(c) In the case of a Deputy Prosecutor, by an absolute
majority of the States Parties upon the recommendation of the
Prosecutor.
3. A decision as to the removal from office of the Registrar or
Deputy Registrar shall be made by an absolute majority of the judges.
4. A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy
Registrar whose conduct or ability to exercise the functions of the
office as required by this Statute is challenged under this article
shall have full opportunity to present and receive evidence and to make
submissions in accordance with the Rules of Procedure and Evidence. The
person in question shall not otherwise participate in the consideration
of the matter.
Article 47
Disciplinary measures
A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy
Registrar who has committed misconduct of a less serious nature than
that set out in article 46, paragraph 1, shall be subject to
disciplinary measures, in accordance with the Rules of Procedure and
Evidence.
Article 48
Privileges and immunities
1. The Court shall enjoy in the territory of each State Party such
privileges and immunities as are necessary for the fulfilment of its
purposes.
2. The judges, the Prosecutor, the Deputy Prosecutors and the
Registrar shall, when engaged on or with respect to the business of the
Court, enjoy the same privileges and immunities as are accorded to
heads of diplomatic missions and shall, after the expiry of their terms
of office, continue to be accorded immunity from legal process of every
kind in respect of words spoken or written and acts performed by them
in their official capacity.
3. The Deputy Registrar, the staff of the Office of the Prosecutor
and the staff of the Registry shall enjoy the privileges and immunities
and facilities necessary for the performance of their functions, in
accordance with the agreement on the privileges and immunities of the
Court.
4. Counsel, experts, witnesses or any other person required to be
present at the seat of the Court shall be accorded such treatment as is
necessary for the proper functioning of the Court, in accordance with
the agreement on the privileges and immunities of the Court.
5. The privileges and immunities of:(a) A judge or the Prosecutor
may be waived by an absolute majority of the judges;
(b) The Registrar may be waived by the Presidency;
(c) The Deputy Prosecutors and staff of the Office of the
Prosecutor may be waived by the Prosecutor;
(d) The Deputy Registrar and staff of the Registry may be
waived by the Registrar.
Article 49
Salaries, allowances and expenses
The judges, the Prosecutor, the Deputy Prosecutors, the Registrar
and the Deputy Registrar shall receive such salaries, allowances and
expenses as may be decided upon by the Assembly of States Parties.
These salaries and allowances shall not be reduced during their terms
of office.
Article 50
Official and working languages
1. The official languages of the Court shall be Arabic, Chinese,
English, French, Russian and Spanish. The judgements of the Court, as
well as other decisions resolving fundamental issues before the Court,
shall be published in the official languages. The Presidency shall, in
accordance with the criteria established by the Rules of Procedure and
Evidence, determine which decisions may be considered as resolving
fundamental issues for the purposes of this paragraph.
2. The working languages of the Court shall be English and French.
The Rules of Procedure and Evidence shall determine the cases in which
other official languages may be used as working languages.
3. At the request of any party to a proceeding or a State allowed
to intervene in a proceeding, the Court shall authorize a language
other than English or French to be used by such a party or State,
provided that the Court considers such authorization to be adequately
justified.
Article 51
Rules of Procedure and Evidence
1. The Rules of Procedure and Evidence shall enter into force upon
adoption by a two-thirds majority of the members of the Assembly of
States Parties.
2. Amendments to the Rules of Procedure and Evidence may be
proposed by:
(a) Any State Party;
(b) The judges acting by an absolute majority; or
(c) The Prosecutor.
Such amendments shall enter into force upon adoption by a two-
thirds majority of the members of the Assembly of States Parties.
3. After the adoption of the Rules of Procedure and Evidence, in
urgent cases where the Rules do not provide for a specific situation
before the Court, the judges may, by a two-thirds majority, draw up
provisional Rules to be applied until adopted, amended or rejected at
the next ordinary or special session of the Assembly of States Parties.
4. The Rules of Procedure and Evidence, amendments thereto and any
provisional Rule shall be consistent with this Statute. Amendments to
the Rules of Procedure and Evidence as well as provisional Rules shall
not be applied retroactively to the detriment of the person who is
being investigated or prosecuted or who has been convicted.
5. In the event of conflict between the Statute and the Rules of
Procedure and Evidence, the Statute shall prevail.
Article 52
Regulations of the Court
1. The judges shall, in accordance with this Statute and the Rules
of Procedure and Evidence, adopt, by an absolute majority, the
Regulations of the Court necessary for its routine functioning.
2. The Prosecutor and the Registrar shall be consulted in the
elaboration of the Regulations and any amendments thereto.
3. The Regulations and any amendments thereto shall take effect
upon adoption unless otherwise decided by the judges. Immediately upon
adoption, they shall be circulated to States Parties for comments. If
within six months there are no objections from a majority of States
Parties, they shall remain in force.
PART 5. INVESTIGATION AND PROSECUTION
Article 53
Initiation of an investigation
1. The Prosecutor shall, having evaluated the information made
available to him or her, initiate an investigation unless he or she
determines that there is no reasonable basis to proceed under this
Statute. In deciding whether to initiate an investigation, the
Prosecutor shall consider whether:
(a) The information available to the Prosecutor provides a
reasonable basis to believe that a crime within the
jurisdiction of the Court has been or is being committed;
(b) The case is or would be admissible under article 17; and
(c) Taking into account the gravity of the crime and the
interests of victims, there are nonetheless substantial reasons
to believe that an investigation would not serve the interests
of justice.
If the Prosecutor determines that there is no reasonable basis to
proceed and his or her determination is based solely on subparagraph
(c) above, he or she shall inform the Pre-Trial Chamber.
2. If, upon investigation, the Prosecutor concludes that there is
not a sufficient basis for a prosecution because:
(a) There is not a sufficient legal or factual basis to seek
a warrant or summons under article 58;
(b) The case is inadmissible under article 17; or
(c) A prosecution is not in the interests of justice, taking
into account all the circumstances, including the gravity of
the crime, the interests of victims and the age or infirmity of
the alleged perpetrator, and his or her role in the alleged
crime;
The Prosecutor shall inform the Pre-Trial Chamber and the State
making a referral under article 14 or the Security Council in a case
under article 13, paragraph (b), of his or her conclusion and the
reasons for the conclusion.
3. (a) At the request of the State making a referral under article
14 or the Security Council under article 13, paragraph (b), the Pre-
Trial Chamber may review a decision of the Prosecutor under paragraph 1
or 2 not to proceed and may request the Prosecutor to reconsider that
decision.
(b) In addition, the Pre-Trial Chamber may, on its own
initiative, review a decision of the Prosecutor not to proceed
if it is based solely on paragraph 1 (c) or 2 (c). In such a
case, the decision of the Prosecutor shall be effective only if
confirmed by the Pre-Trial Chamber.
4. The Prosecutor may, at any time, reconsider a decision whether
to initiate an investigation or prosecution based on new facts or
information.
Article 54
Duties and powers of the Prosecutor with respect to investigations
1. The Prosecutor shall:
(a) In order to establish the truth, extend the investigation
to cover all facts and evidence relevant to an assessment of
whether there is criminal responsibility under this Statute,
and, in doing so, investigate incriminating and exonerating
circumstances equally;
(b) Take appropriate measures to ensure the effective
investigation and prosecution of crimes within the jurisdiction
of the Court, and in doing so, respect the interests and
personal circumstances of victims and witnesses, including age,
gender as defined in article 7, paragraph 3, and health, and
take into account the nature of the crime, in particular where
it involves sexual violence, gender violence or violence
against children; and
(c) Fully respect the rights of persons arising under this
Statute.
2. The Prosecutor may conduct investigations on the territory of a
State:
(a) In accordance with the provisions of Part 9; or
(b) As authorized by the Pre-Trial Chamber under article 57,
paragraph 3 (d).
3. The Prosecutor may:
(a) Collect and examine evidence;
(b) Request the presence of and question persons being
investigated, victims and witnesses;
(c) Seek the cooperation of any State or intergovernmental
organization or arrangement in accordance with its respective
competence and/or mandate;
(d) Enter into such arrangements or agreements, not
inconsistent with this Statute, as may be necessary to
facilitate the cooperation of a State, intergovernmental
organization or person;
(e) Agree not to disclose, at any stage of the proceedings,
documents or information that the Prosecutor obtains on the
condition of confidentiality and solely for the purpose of
generating new evidence, unless the provider of the information
consents; and
(f) Take necessary measures, or request that necessary
measures be taken, to ensure the confidentiality of
information, the protection of any person or the preservation
of evidence.
Article 55
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself
or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or
threat, to torture or to any other form of cruel, inhuman or
degrading treatment or punishment; and
(c) Shall, if questioned in a language other than a language
the person fully understands and speaks, have, free of any
cost, the assistance of a competent interpreter and such
translations as are necessary to meet the requirements of
fairness;
(d) Shall not be subjected to arbitrary arrest or detention;
and shall not be deprived of his or her liberty except on such
grounds and in accordance with such procedures as are
established in the Statute.
2. Where there are grounds to believe that a person has committed a
crime within the jurisdiction of the Court and that person is about to
be questioned either by the Prosecutor, or by national authorities
pursuant to a request made under Part 9 of this Statute, that person
shall also have the following rights of which he or she shall be
informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are
grounds to believe that he or she has committed a crime within
the jurisdiction of the Court;
(b) To remain silent, without such silence being a
consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if
the person does not have legal assistance, to have legal
assistance assigned to him or her, in any case where the
interests of justice so require, and without payment by the
person in any such case if the person does not have sufficient
means to pay for it;
(d) To be questioned in the presence of counsel unless the
person has voluntarily waived his or her right to counsel.
Article 56
Role of the Pre-Trial Chamber in relation to a unique investigative
opportunity
1. (a) Where the Prosecutor considers an investigation to present a
unique opportunity to take testimony or a statement from a witness or
to examine, collect or test evidence, which may not be available
subsequently for the purposes of a trial, the Prosecutor shall so
inform the Pre-Trial Chamber.
(b) In that case, the Pre-Trial Chamber may, upon request of
the Prosecutor, take such measures as may be necessary to
ensure the efficiency and integrity of the proceedings and, in
particular, to protect the rights of the defence.
(c) Unless the Pre-Trial Chamber orders otherwise, the
Prosecutor shall provide the relevant information to the person
who has been arrested or appeared in response to a summons in
connection with the investigation referred to in subparagraph
(a), in order that he or she may be heard on the matter.
2. The measures referred to in paragraph 1 (b) may include:
(a) Making recommendations or orders regarding procedures to
be followed;
(b) Directing that a record be made of the proceedings;
(c) Appointing an expert to assist;
(d) Authorizing counsel for a person who has been arrested,
or appeared before the Court in response to a summons, to
participate, or where there has not yet been such an arrest or
appearance or counsel has not been designated, appointing
another counsel to attend and represent the interests of the
defence;
(e) Naming one of its members or, if necessary, another
available judge of the Pre-Trial or Trial Division to observe
and make recommendations or orders regarding the collection and
preservation of evidence and the questioning of persons;
(f) Taking such other action as may be necessary to collect
or preserve evidence.
3. (a) Where the Prosecutor has not sought measures pursuant to
this article but the Pre-Trial Chamber considers that such measures are
required to preserve evidence that it deems would be essential for the
defence at trial, it shall consult with the Prosecutor as to whether
there is good reason for the Prosecutor's failure to request the
measures. If upon consultation, the Pre-Trial Chamber concludes that
the Prosecutor's failure to request such measures is unjustified, the
Pre-Trial Chamber may take such measures on its own initiative.
(b) A decision of the Pre-Trial Chamber to act on its own
initiative under this paragraph may be appealed by the
Prosecutor. The appeal shall be heard on an expedited basis.
4. The admissibility of evidence preserved or collected for trial
pursuant to this article, or the record thereof, shall be governed at
trial by article 69, and given such weight as determined by the Trial
Chamber.
Article 57
Functions and powers of the Pre-Trial Chamber
1. Unless otherwise provided for in this Statute, the Pre-Trial
Chamber shall exercise its functions in accordance with the provisions
of this article.
2. (a) Orders or rulings of the Pre-Trial Chamber issued under
articles 15, 18, 19, 54, paragraph 2, 61, paragraph 7, and 72 must be
concurred in by a majority of its judges.
(b) In all other cases, a single judge of the Pre-Trial
Chamber may exercise the functions provided for in this
Statute, unless otherwise provided for in the Rules of
Procedure and Evidence or by a majority of the Pre-Trial
Chamber.
3. In addition to its other functions under this Statute, the Pre-
Trial Chamber may:
(a) At the request of the Prosecutor, issue such orders and
warrants as may be required for the purposes of an
investigation;
(b) Upon the request of a person who has been arrested or has
appeared pursuant to a summons under article 58, issue such
orders, including measures such as those described in article
56, or seek such cooperation pursuant to Part 9 as may be
necessary to assist the person in the preparation of his or her
defence;
(c) Where necessary, provide for the protection and privacy
of victims and witnesses, the preservation of evidence, the
protection of persons who have been arrested or appeared in
response to a summons, and the protection of national security
information;
(d) Authorize the Prosecutor to take specific investigative
steps within the territory of a State Party without having
secured the cooperation of that State under Part 9 if, whenever
possible having regard to the views of the State concerned, the
Pre-Trial Chamber has determined in that case that the State is
clearly unable to execute a request for cooperation due to the
unavailability of any authority or any component of its
judicial system competent to execute the request for
cooperation under Part 9.
(e) Where a warrant of arrest or a summons has been issued
under article 58, and having due regard to the strength of the
evidence and the rights of the parties concerned, as provided
for in this Statute and the Rules of Procedure and Evidence,
seek the cooperation of States pursuant to article 93,
paragraph 1 (j), to take protective measures for the purpose of
forfeiture in particular for the ultimate benefit of victims.
Article 58
Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons
to appear
1. At any time after the initiation of an investigation, the Pre-
Trial Chamber shall, on the application of the Prosecutor, issue a
warrant of arrest of a person if, having examined the application and
the evidence or other information submitted by the Prosecutor, it is
satisfied that:
(a) There are reasonable grounds to believe that the person
has committed a crime within the jurisdiction of the Court; and
(b) The arrest of the person appears necessary:
(i) To ensure the person's appearance at trial,
(ii) To ensure that the person does not obstruct or
endanger the investigation or the court proceedings, or
(iii) Where applicable, to prevent the person from
continuing with the commission of that crime or a
related crime which is within the jurisdiction of the
Court and which arises out of the same circumstances.
2. The application of the Prosecutor shall contain:
(a) The name of the person and any other relevant identifying
information;
(b) A specific reference to the crimes within the
jurisdiction of the Court which the person is alleged to have
committed;
(c) A concise statement of the facts which are alleged to
constitute those crimes;
(d) A summary of the evidence and any other information which
establish reasonable grounds to believe that the person
committed those crimes; and
(e) The reason why the Prosecutor believes that the arrest of
the person is necessary.
3. The warrant of arrest shall contain:
(a) The name of the person and any other relevant identifying
information;
(b) A specific reference to the crimes within the
jurisdiction of the Court for which the person's arrest is
sought; and
(c) A concise statement of the facts which are alleged to
constitute those crimes.
4. The warrant of arrest shall remain in effect until otherwise
ordered by the Court.
5. On the basis of the warrant of arrest, the Court may request the
provisional arrest or the arrest and surrender of the person under Part
9.
6. The Prosecutor may request the Pre-Trial Chamber to amend the
warrant of arrest by modifying or adding to the crimes specified
therein. The Pre-Trial Chamber shall so amend the warrant if it is
satisfied that there are reasonable grounds to believe that the person
committed the modified or additional crimes.
7. As an alternative to seeking a warrant of arrest, the Prosecutor
may submit an application requesting that the Pre-Trial Chamber issue a
summons for the person to appear. If the Pre-Trial Chamber is satisfied
that there are reasonable grounds to believe that the person committed
the crime alleged and that a summons is sufficient to ensure the
person's appearance, it shall issue the summons, with or without
conditions restricting liberty (other than detention) if provided for
by national law, for the person to appear. The summons shall contain:
(a) The name of the person and any other relevant identifying
information;
(b) The specified date on which the person is to appear;
(c) A specific reference to the crimes within the
jurisdiction of the Court which the person is alleged to have
committed; and
(d) A concise statement of the facts which are alleged to
constitute the crime.
The summons shall be served on the person.
Article 59
Arrest proceedings in the custodial State
1. A State Party which has received a request for provisional
arrest or for arrest and surrender shall immediately take steps to
arrest the person in question in accordance with its laws and the
provisions of Part 9.
2. A person arrested shall be brought promptly before the competent
judicial authority in the custodial State which shall determine, in
accordance with the law of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the
proper process; and
(c) The person's rights have been respected.
3. The person arrested shall have the right to apply to the
competent authority in the custodial State for interim release pending
surrender.
4. In reaching a decision on any such application, the competent
authority in the custodial State shall consider whether, given the
gravity of the alleged crimes, there are urgent and exceptional
circumstances to justify interim release and whether necessary
safeguards exist to ensure that the custodial State can fulfil its duty
to surrender the person to the Court. It shall not be open to the
competent authority of the custodial State to consider whether the
warrant of arrest was properly issued in accordance with article 58,
paragraph 1 (a) and (b).
5. The Pre-Trial Chamber shall be notified of any request for
interim release and shall make recommendations to the competent
authority in the custodial State. The competent authority in the
custodial State shall give full consideration to such recommendations,
including any recommendations on measures to prevent the escape of the
person, before rendering its decision.
6. If the person is granted interim release, the Pre-Trial Chamber
may request periodic reports on the status of the interim release.
7. Once ordered to be surrendered by the custodial State, the
person shall be delivered to the Court as soon as possible.
Article 60
Initial proceedings before the Court
1. Upon the surrender of the person to the Court, or the person's
appearance before the Court voluntarily or pursuant to a summons, the
Pre-Trial Chamber shall satisfy itself that the person has been
informed of the crimes which he or she is alleged to have committed,
and of his or her rights under this Statute, including the right to
apply for interim release pending trial.
2. A person subject to a warrant of arrest may apply for interim
release pending trial. If the Pre-Trial Chamber is satisfied that the
conditions set forth in article 58, paragraph 1, are met, the person
shall continue to be detained. If it is not so satisfied, the Pre-Trial
Chamber shall release the person, with or without conditions.
3. The Pre-Trial Chamber shall periodically review its ruling on
the release or detention of the person, and may do so at any time on
the request of the Prosecutor or the person. Upon such review, it may
modify its ruling as to detention, release or conditions of release, if
it is satisfied that changed circumstances so require.
4. The Pre-Trial Chamber shall ensure that a person is not detained
for an unreasonable period prior to trial due to inexcusable delay by
the Prosecutor. If such delay occurs, the Court shall consider
releasing the person, with or without conditions.
5. If necessary, the Pre-Trial Chamber may issue a warrant of
arrest to secure the presence of a person who has been released.
Article 61
Confirmation of the charges before trial
1. Subject to the provisions of paragraph 2, within a reasonable
time after the person's surrender or voluntary appearance before the
Court, the Pre-Trial Chamber shall hold a hearing to confirm the
charges on which the Prosecutor intends to seek trial. The hearing
shall be held in the presence of the Prosecutor and the person charged,
as well as his or her counsel.
2. The Pre-Trial Chamber may, upon request of the Prosecutor or on
its own motion, hold a hearing in the absence of the person charged to
confirm the charges on which the Prosecutor intends to seek trial when
the person has:
(a) Waived his or her right to be present; or
(b) Fled or cannot be found and all reasonable steps have
been taken to secure his or her appearance before the Court and
to inform the person of the charges and that a hearing to
confirm those charges will be held.
In that case, the person shall be represented by counsel where the
Pre-Trial Chamber determines that it is in the interests of justice.
3. Within a reasonable time before the hearing, the person shall:
(a) Be provided with a copy of the document containing the
charges on which the Prosecutor intends to bring the person to
trial; and
(b) Be informed of the evidence on which the Prosecutor
intends to rely at the hearing.
The Pre-Trial Chamber may issue orders regarding the disclosure of
information for the purposes of the hearing.
4. Before the hearing, the Prosecutor may continue the
investigation and may amend or withdraw any charges. The person shall
be given reasonable notice before the hearing of any amendment to or
withdrawal of charges. In case of a withdrawal of charges, the
Prosecutor shall notify the Pre-Trial Chamber of the reasons for the
withdrawal.
5. At the hearing, the Prosecutor shall support each charge with
sufficient evidence to establish substantial grounds to believe that
the person committed the crime charged. The Prosecutor may rely on
documentary or summary evidence and need not call the witnesses
expected to testify at the trial.
6. At the hearing, the person may:
(a) Object to the charges;
(b) Challenge the evidence presented by the Prosecutor; and
(c) Present evidence.
7. The Pre-Trial Chamber shall, on the basis of the hearing,
determine whether there is sufficient evidence to establish substantial
grounds to believe that the person committed each of the crimes
charged. Based on its determination, the Pre-Trial Chamber shall:
(a) Confirm those charges in relation to which it has
determined that there is sufficient evidence; and commit the
person to a Trial Chamber for trial on the charges as
confirmed;
(b) Decline to confirm those charges in relation to which it
has determined that there is insufficient evidence;
(c) Adjourn the hearing and request the Prosecutor to
consider:
(i) Providing further evidence or conducting further
investigation with respect to a particular charge; or
(ii) Amending a charge because the evidence submitted
appears to establish a different crime within the
jurisdiction of the Court.
8. Where the Pre-Trial Chamber declines to confirm a charge, the
Prosecutor shall not be precluded from subsequently requesting its
confirmation if the request is supported by additional evidence.
9. After the charges are confirmed and before the trial has begun,
the Prosecutor may, with the permission of the Pre-Trial Chamber and
after notice to the accused, amend the charges. If the Prosecutor seeks
to add additional charges or to substitute more serious charges, a
hearing under this article to confirm those charges must be held. After
commencement of the trial, the Prosecutor may, with the permission of
the Trial Chamber, withdraw the charges.
10. Any warrant previously issued shall cease to have effect with
respect to any charges which have not been confirmed by the Pre-Trial
Chamber or which have been withdrawn by the Prosecutor.
11. Once the charges have been confirmed in accordance with this
article, the Presidency shall constitute a Trial Chamber which, subject
to paragraph 8 and to article 64, paragraph 4, shall be responsible for
the conduct of subsequent proceedings and may exercise any function of
the Pre-Trial Chamber that is relevant and capable of application in
those proceedings.
PART 6. THE TRIAL
Article 62
Place of trial
Unless otherwise decided, the place of the trial shall be the seat
of the Court.
Article 63
Trial in the presence of the accused
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to
disrupt the trial, the Trial Chamber may remove the accused and shall
make provision for him or her to observe the trial and instruct counsel
from outside the courtroom, through the use of communications
technology, if required. Such measures shall be taken only in
exceptional circumstances after other reasonable alternatives have
proved inadequate, and only for such duration as is strictly required.
Article 64
Functions and powers of the Trial Chamber
1. The functions and powers of the Trial Chamber set out in this
article shall be exercised in accordance with this Statute and the
Rules of Procedure and Evidence.
2. The Trial Chamber shall ensure that a trial is fair and
expeditious and is conducted with full respect for the rights of the
accused and due regard for the protection of victims and witnesses.
3. Upon assignment of a case for trial in accordance with this
Statute, the Trial Chamber assigned to deal with the case shall:
(a) Confer with the parties and adopt such procedures as are
necessary to facilitate the fair and expeditious conduct of the
proceedings;
(b) Determine the language or languages to be used at trial;
and
(c) Subject to any other relevant provisions of this Statute,
provide for disclosure of documents or information not
previously disclosed, sufficiently in advance of the
commencement of the trial to enable adequate preparation for
trial.
4. The Trial Chamber may, if necessary for its effective and fair
functioning, refer preliminary issues to the Pre-Trial Chamber or, if
necessary, to another available judge of the Pre-Trial Division.
5. Upon notice to the parties, the Trial Chamber may, as
appropriate, direct that there be joinder or severance in respect of
charges against more than one accused.
6. In performing its functions prior to trial or during the course
of a trial, the Trial Chamber may, as necessary:
(a) Exercise any functions of the Pre-Trial Chamber referred
to in article 61, paragraph 11;
(b) Require the attendance and testimony of witnesses and
production of documents and other evidence by obtaining, if
necessary, the assistance of States as provided in this
Statute;
(c) Provide for the protection of confidential information;
(d) Order the production of evidence in addition to that
already collected prior to the trial or presented during the
trial by the parties;
(e) Provide for the protection of the accused, witnesses and
victims; and
(f) Rule on any other relevant matters.
7. The trial shall be held in public. The Trial Chamber may,
however, determine that special circumstances require that certain
proceedings be in closed session for the purposes set forth in article
68, or to protect confidential or sensitive information to be given in
evidence.
8. (a) At the commencement of the trial, the Trial Chamber shall
have read to the accused the charges previously confirmed by the Pre-
Trial Chamber. The Trial Chamber shall satisfy itself that the accused
understands the nature of the charges. It shall afford him or her the
opportunity to make an admission of guilt in accordance with article 65
or to plead not guilty.
(b) At the trial, the presiding judge may give directions for
the conduct of proceedings, including to ensure that they are
conducted in a fair and impartial manner. Subject to any
directions of the presiding judge, the parties may submit
evidence in accordance with the provisions of this Statute.
9. The Trial Chamber shall have, inter alia, the power on
application of a party or on its own motion to:
(a) Rule on the admissibility or relevance of evidence; and
(b) Take all necessary steps to maintain order in the course
of a hearing.
10. The Trial Chamber shall ensure that a complete record of the
trial, which accurately reflects the proceedings, is made and that it
is maintained and preserved by the Registrar.
Article 65
Proceedings on an admission of guilt
1. Where the accused makes an admission of guilt pursuant to
article 64, paragraph 8 (a), the Trial Chamber shall determine whether:
(a) The accused understands the nature and consequences of
the admission of guilt;
(b) The admission is voluntarily made by the accused after
sufficient consultation with defence counsel; and
(c) The admission of guilt is supported by the facts of the
case that are contained in:
(i) The charges brought by the Prosecutor and
admitted by the accused;
(ii) Any materials presented by the Prosecutor which
supplement the charges and which the accused accepts;
and
(iii) Any other evidence, such as the testimony of
witnesses, presented by the Prosecutor or the accused.
2. Where the Trial Chamber is satisfied that the matters referred
to in paragraph 1 are established, it shall consider the admission of
guilt, together with any additional evidence presented, as establishing
all the essential facts that are required to prove the crime to which
the admission of guilt relates, and may convict the accused of that
crime.
3. Where the Trial Chamber is not satisfied that the matters
referred to in paragraph 1 are established, it shall consider the
admission of guilt as not having been made, in which case it shall
order that the trial be continued under the ordinary trial procedures
provided by this Statute and may remit the case to another Trial
Chamber.
4. Where the Trial Chamber is of the opinion that a more complete
presentation of the facts of the case is required in the interests of
justice, in particular the interests of the victims, the Trial Chamber
may:
(a) Request the Prosecutor to present additional evidence,
including the testimony of witnesses; or
(b) Order that the trial be continued under the ordinary
trial procedures provided by this Statute, in which case it
shall consider the admission of guilt as not having been made
and may remit the case to another Trial Chamber.
5. Any discussions between the Prosecutor and the defence regarding
modification of the charges, the admission of guilt or the penalty to
be imposed shall not be binding on the Court.
Article 66
Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before
the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of
the guilt of the accused beyond reasonable doubt.
Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be
entitled to a public hearing, having regard to the provisions of this
Statute, to a fair hearing conducted impartially, and to the following
minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature,
cause and content of the charge, in a language which the
accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation
of the defence and to communicate freely with counsel of the
accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the
trial, to conduct the defence in person or through legal
assistance of the accused's choosing, to be informed, if the
accused does not have legal assistance, of this right and to
have legal assistance assigned by the Court in any case where
the interests of justice so require, and without payment if the
accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him
or her and to obtain the attendance and examination of
witnesses on his or her behalf under the same conditions as
witnesses against him or her. The accused shall also be
entitled to raise defences and to present other evidence
admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent
interpreter and such translations as are necessary to meet the
requirements of fairness, if any of the proceedings of or
documents presented to the Court are not in a language which
the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to
remain silent, without such silence being a consideration in
the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or
her defence; and
(i) Not to have imposed on him or her any reversal of the
burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this
Statute, the Prosecutor shall, as soon as practicable, disclose to the
defence evidence in the Prosecutor's possession or control which he or
she believes shows or tends to show the innocence of the accused, or to
mitigate the guilt of the accused, or which may affect the credibility
of prosecution evidence. In case of doubt as to the application of this
paragraph, the Court shall decide.
Article 68
Protection of the victims and witnesses and their participation in the
proceedings
1. The Court shall take appropriate measures to protect the safety,
physical and psychological well-being, dignity and privacy of victims
and witnesses. In so doing, the Court shall have regard to all relevant
factors, including age, gender as defined in article 2, paragraph 3,
and health, and the nature of the crime, in particular, but not limited
to, where the crime involves sexual or gender violence or violence
against children. The Prosecutor shall take such measures particularly
during the investigation and prosecution of such crimes. These measures
shall not be prejudicial to or inconsistent with the rights of the
accused and a fair and impartial trial.
2. As an exception to the principle of public hearings provided for
in article 67, the Chambers of the Court may, to protect victims and
witnesses or an accused, conduct any part of the proceedings in camera
or allow the presentation of evidence by electronic or other special
means. In particular, such measures shall be implemented in the case of
a victim of sexual violence or a child who is a victim or a witness,
unless otherwise ordered by the Court, having regard to all the
circumstances, particularly the views of the victim or witness.
3. Where the personal interests of the victims are affected, the
Court shall permit their views and concerns to be presented and
considered at stages of the proceedings determined to be appropriate by
the Court and in a manner which is not prejudicial to or inconsistent
with the rights of the accused and a fair and impartial trial. Such
views and concerns may be presented by the legal representatives of the
victims where the Court considers it appropriate, in accordance with
the Rules of Procedure and Evidence.
4. The Victims and Witnesses Unit may advise the Prosecutor and the
Court on appropriate protective measures, security arrangements,
counselling and assistance as referred to in article 43, paragraph 6.
5. Where the disclosure of evidence or information pursuant to this
Statute may lead to the grave endangerment of the security of a witness
or his or her family, the Prosecutor may, for the purposes of any
proceedings conducted prior to the commencement of the trial, withhold
such evidence or information and instead submit a summary thereof. Such
measures shall be exercised in a manner which is not prejudicial to or
inconsistent with the rights of the accused and a fair and impartial
trial.
6. A State may make an application for necessary measures to be
taken in respect of the protection of its servants or agents and the
protection of confidential or sensitive information.
Article 69
Evidence
1. Before testifying, each witness shall, in accordance with the
Rules of Procedure and Evidence, give an undertaking as to the
truthfulness of the evidence to be given by that witness.
2. The testimony of a witness at trial shall be given in person,
except to the extent provided by the measures set forth in article 68
or in the Rules of Procedure and Evidence. The Court may also permit
the giving of viva voce (oral) or recorded testimony of a witness by
means of video or audio technology, as well as the introduction of
documents or written transcripts, subject to this Statute and in
accordance with the Rules of Procedure and Evidence. These measures
shall not be prejudicial to or inconsistent with the rights of the
accused.
3. The parties may submit evidence relevant to the case, in
accordance with article 64. The Court shall have the authority to
request the submission of all evidence that it considers necessary for
the determination of the truth.
4. The Court may rule on the relevance or admissibility of any
evidence, taking into account, inter alia, the probative value of the
evidence and any prejudice that such evidence may cause to a fair trial
or to a fair evaluation of the testimony of a witness, in accordance
with the Rules of Procedure and Evidence.
5. The Court shall respect and observe privileges on
confidentiality as provided for in the Rules of Procedure and Evidence.
6. The Court shall not require proof of facts of common knowledge
but may take judicial notice of them.
7. Evidence obtained by means of a violation of this Statute or
internationally recognized human rights shall not be admissible if:
(a) The violation casts substantial doubt on the reliability
of the evidence; or
(b) The admission of the evidence would be antithetical to
and would seriously damage the integrity of the proceedings.
8. When deciding on the relevance or admissibility of evidence
collected by a State, the Court shall not rule on the application of
the State's national law.
Article 70
Offences against the administration of justice
1. The Court shall have jurisdiction over the following offences
against its administration of justice when committed intentionally:
(a) Giving false testimony when under an obligation pursuant
to article 69, paragraph 1, to tell the truth;
(b) Presenting evidence that the party knows is false or
forged;
(c) Corruptly influencing a witness, obstructing or
interfering with the attendance or testimony of a witness,
retaliating against a witness for giving testimony or
destroying, tampering with or interfering with the collection
of evidence;
(d) Impeding, intimidating or corruptly influencing an
official of the Court for the purpose of forcing or persuading
the official not to perform, or to perform improperly, his or
her duties;
(e) Retaliating against an official of the Court on account
of duties performed by that or another official;
(f) Soliciting or accepting a bribe as an official of the
Court in conjunction with his or her official duties.
2. The principles and procedures governing the Court's exercise of
jurisdiction over offences under this article shall be those provided
for in the Rules of Procedure and Evidence. The conditions for
providing international cooperation to the Court with respect to its
proceedings under this article shall be governed by the domestic laws
of the requested State.
3. In the event of conviction, the Court may impose a term of
imprisonment not exceeding five years, or a fine in accordance with the
Rules of Procedure and Evidence, or both.
4. (a) Each State Party shall extend its criminal laws penalizing
offences against the integrity of its own investigative or judicial
process to offences against the administration of justice referred to
in this article, committed on its territory, or by one of its
nationals;
(b) Upon request by the Court, whenever it deems it proper,
the State Party shall submit the case to its competent
authorities for the purpose of prosecution. Those authorities
shall treat such cases with diligence and devote sufficient
resources to enable them to be conducted effectively.
Article 71
Sanctions for misconduct before the Court
1. The Court may sanction persons present before it who commit
misconduct, including disruption of its proceedings or deliberate
refusal to comply with its directions, by administrative measures other
than imprisonment, such as temporary or permanent removal from the
courtroom, a fine or other similar measures provided for in the Rules
of Procedure and Evidence.
2. The procedures governing the imposition of the measures set
forth in paragraph 1 shall be those provided for in the Rules of
Procedure and Evidence.
Article 72
Protection of national security information
1. This article applies in any case where the disclosure of the
information or documents of a State would, in the opinion of that
State, prejudice its national security interests. Such cases include
those falling within the scope of article 56, paragraphs 2 and 3,
article 61, paragraph 3, article 64, paragraph 3, article 67, paragraph
2, article 68, paragraph 6, article 87, paragraph 6 and article 93, as
well as cases arising at any other stage of the proceedings where such
disclosure may be at issue.
2. This article shall also apply when a person who has been
requested to give information or evidence has refused to do so or has
referred the matter to the State on the ground that disclosure would
prejudice the national security interests of a State and the State
concerned confirms that it is of the opinion that disclosure would
prejudice its national security interests.
3. Nothing in this article shall prejudice the requirements of
confidentiality applicable under article 54, paragraph 3 (e) and (f),
or the application of article 73.
4. If a State learns that information or documents of the State are
being, or are likely to be, disclosed at any stage of the proceedings,
and it is of the opinion that disclosure would prejudice its national
security interests, that State shall have the right to intervene in
order to obtain resolution of the issue in accordance with this
article.
5. If, in the opinion of a State, disclosure of information would
prejudice its national security interests, all reasonable steps will be
taken by the State, acting in conjunction with the Prosecutor, the
Defence or the Pre-Trial Chamber or Trial Chamber, as the case may be,
to seek to resolve the matter by cooperative means. Such steps may
include:
(a) Modification or clarification of the request;
(b) A determination by the Court regarding the relevance of
the information or evidence sought, or a determination as to
whether the evidence, though relevant, could be or has been
obtained from a source other than the requested State;
(c) Obtaining the information or evidence from a different
source or in a different form; or
(d) Agreement on conditions under which the assistance could
be provided including, among other things, providing summaries
or redactions, limitations on disclosure, use of in camera or
ex parte proceedings, or other protective measures permissible
under the Statute and the Rules.
6. Once all reasonable steps have been taken to resolve the matter
through cooperative means, and if the State considers that there are no
means or conditions under which the information or documents could be
provided or disclosed without prejudice to its national security
interests, it shall so notify the Prosecutor or the Court of the
specific reasons for its decision, unless a specific description of the
reasons would itself necessarily result in such prejudice to the
State's national security interests.
7. Thereafter, if the Court determines that the evidence is
relevant and necessary for the establishment of the guilt or innocence
of the accused, the Court may undertake the following actions:
(a) Where disclosure of the information or document is sought
pursuant to a request for cooperation under Part 9 or the
circumstances described in paragraph 2, and the State has
invoked the ground for refusal referred to in article 93,
paragraph 4:
(i) The Court may, before making any conclusion
referred to in subparagraph 7 (a) (ii), request further
consultations for the purpose of considering the
State's representations, which may include, as
appropriate, hearings in camera and ex parte;
(ii) If the Court concludes that, by invoking the
ground for refusal under article 93, paragraph 4, in
the circumstances of the case, the requested State is
not acting in accordance with its obligations under the
Statute, the Court may refer the matter in accordance
with article 87, paragraph 7, specifying the reasons
for its conclusion; and
(iii) The Court may make such inference in the trial
of the accused as to the existence or non-existence of
a fact, as may be appropriate in the circumstances; or
(b) In all other circumstances:
(i) Order disclosure; or
(ii) To the extent it does not order disclosure, make
such inference in the trial of the accused as to the
existence or non-existence of a fact, as may be
appropriate in the circumstances.
Article 73
Third-party information or documents
If a State Party is requested by the Court to provide a document or
information in its custody, possession or control, which was disclosed
to it in confidence by a State, intergovernmental organization or
international organization, it shall seek the consent of the originator
to disclose that document or information. If the originator is a State
Party, it shall either consent to disclosure of the information or
document or undertake to resolve the issue of disclosure with the
Court, subject to the provisions of article 72. If the originator is
not a State Party and refuses consent to disclosure, the requested
State shall inform the Court that it is unable to provide the document
or information because of a pre-existing obligation of confidentiality
to the originator.
Article 74
Requirements for the decision
1. All the judges of the Trial Chamber shall be present at each
stage of the trial and throughout their deliberations. The Presidency
may, on a case-by-case basis, designate, as available, one or more
alternate judges to be present at each stage of the trial and to
replace a member of the Trial Chamber if that member is unable to
continue attending.
2. The Trial Chamber's decision shall be based on its evaluation of
the evidence and the entire proceedings. The decision shall not exceed
the facts and circumstances described in the charges and any amendments
to the charges. The Court may base its decision only on evidence
submitted and discussed before it at the trial.
3. The judges shall attempt to achieve unanimity in their decision,
failing which the decision shall be taken by a majority of the judges.
4. The deliberations of the Trial Chamber shall remain secret.
5. The decision shall be in writing and shall contain a full and
reasoned statement of the Trial Chamber's findings on the evidence and
conclusions. The Trial Chamber shall issue one decision. When there is
no unanimity, the Trial Chamber's decision shall contain the views of
the majority and the minority. The decision or a summary thereof shall
be delivered in open court.
Article 75
Reparations to victims
1. The Court shall establish principles relating to reparations to,
or in respect of, victims, including restitution, compensation and
rehabilitation. On this basis, in its decision the Court may, either
upon request or on its own motion in exceptional circumstances,
determine the scope and extent of any damage, loss and injury to, or in
respect of, victims and will state the principles on which it is
acting.
2. The Court may make an order directly against a convicted person
specifying appropriate reparations to, or in respect of, victims,
including restitution, compensation and rehabilitation. Where
appropriate, the Court may order that the award for reparations be made
through the Trust Fund provided for in article 79.
3. Before making an order under this article, the Court may invite
and shall take account of representations from or on behalf of the
convicted person, victims, other interested persons or interested
States.
4. In exercising its power under this article, the Court may, after
a person is convicted of a crime within the jurisdiction of the Court,
determine whether, in order to give effect to an order which it may
make under this article, it is necessary to seek measures under article
93, paragraph 1.
5. A State Party shall give effect to a decision under this article
as if the provisions of article 109 were applicable to this article.
6. Nothing in this article shall be interpreted as prejudicing the
rights of victims under national or international law.
Article 76
Sentencing
1. In the event of a conviction, the Trial Chamber shall consider
the appropriate sentence to be imposed and shall take into account the
evidence presented and submissions made during the trial that are
relevant to the sentence.
2. Except where article 65 applies and before the completion of the
trial, the Trial Chamber may on its own motion and shall, at the
request of the Prosecutor or the accused, hold a further hearing to
hear any additional evidence or submissions relevant to the sentence,
in accordance with the Rules of Procedure and Evidence.
3. Where paragraph 2 applies, any representations under article 75
shall be heard during the further hearing referred to in paragraph 2
and, if necessary, during any additional hearing.
4. The sentence shall be pronounced in public and, wherever
possible, in the presence of the accused.
PART 7. PENALTIES
Article 77
Applicable penalties
1. Subject to article 110, the Court may impose one of the
following penalties on a person convicted of a crime under article 5 of
this Statute:
(a) Imprisonment for a specified number of years, which may
not exceed a maximum of 30 years; or
(b) A term of life imprisonment when justified by the extreme
gravity of the crime and the individual circumstances of the
convicted person.
2. In addition to imprisonment, the Court may order:
(a) A fine under the criteria provided for in the Rules of
Procedure and Evidence;
(b) A forfeiture of proceeds, property and assets derived
directly or indirectly from that crime, without prejudice to
the rights of bona fide third parties.
Article 78
Determination of the sentence
1. In determining the sentence, the Court shall, in accordance with
the Rules of Procedure and Evidence, take into account such factors as
the gravity of the crime and the individual circumstances of the
convicted person.
2. In imposing a sentence of imprisonment, the Court shall deduct
the time, if any, previously spent in detention in accordance with an
order of the Court. The Court may deduct any time otherwise spent in
detention in connection with conduct underlying the crime.
3. When a person has been convicted of more than one crime, the
Court shall pronounce a sentence for each crime and a joint sentence
specifying the total period of imprisonment. This period shall be no
less than the highest individual sentence pronounced and shall not
exceed 30 years' imprisonment or a sentence of life imprisonment in
conformity with article 77, paragraph 1 (b).
Article 79
Trust Fund
1. A Trust Fund shall be established by decision of the Assembly of
States Parties for the benefit of victims of crimes within the
jurisdiction of the Court, and of the families of such victims.
2. The Court may order money and other property collected through
fines or forfeiture to be transferred, by order of the Court, to the
Trust Fund.
3. The Trust Fund shall be managed according to criteria to be
determined by the Assembly of States Parties.
Article 80
Non-prejudice to national application of penalties and national laws
Nothing in this Part of the Statute affects the application by
States of penalties prescribed by their national law, nor the law of
States which do not provide for penalties prescribed in this Part.
PART 8. APPEAL AND REVISION
Article 81
Appeal against decision of acquittal or conviction or against sentence
1. A decision under article 74 may be appealed in accordance with
the Rules of Procedure and Evidence as follows:
(a) The Prosecutor may make an appeal on any of the following
grounds:
(i) Procedural error,
(ii) Error of fact, or
(iii) Error of law;
(b) The convicted person or the Prosecutor on that person's
behalf may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact,
(iii) Error of law, or
(iv) Any other ground that affects the fairness or
reliability of the proceedings or decision.
2. (a) A sentence may be appealed, in accordance with the Rules of
Procedure and Evidence, by the Prosecutor or the convicted person on
the ground of disproportion between the crime and the sentence;
(b) If on an appeal against sentence the Court considers that
there are grounds on which the conviction might be set aside,
wholly or in part, it may invite the Prosecutor and the
convicted person to submit grounds under article 81, paragraph
1 (a) or (b), and may render a decision on conviction in
accordance with article 83;
(c) The same procedure applies when the Court, on an appeal
against conviction only, considers that there are grounds to
reduce the sentence under paragraph 2 (a).
3. (a) Unless the Trial Chamber orders otherwise, a convicted
person shall remain in custody pending an appeal;
(b) When a convicted person's time in custody exceeds the
sentence of imprisonment imposed, that person shall be
released, except that if the Prosecutor is also appealing, the
release may be subject to the conditions under subparagraph (c)
below;
(c) In case of an acquittal, the accused shall be released
immediately, subject to the following:
(i) Under exceptional circumstances, and having
regard, inter alia, to the concrete risk of flight, the
seriousness of the offence charged and the probability
of success on appeal, the Trial Chamber, at the request
of the Prosecutor, may maintain the detention of the
person pending appeal;
(ii) A decision by the Trial Chamber under
subparagraph (c) (i) may be appealed in accordance with
the Rules of Procedure and Evidence.
4. Subject to the provisions of paragraph 3 (a) and (b), execution
of the decision or sentence shall be suspended during the period
allowed for appeal and for the duration of the appeal proceedings.
Article 82
Appeal against other decisions
1. Either party may appeal any of the following decisions in
accordance with the Rules of Procedure and Evidence:
(a) A decision with respect to jurisdiction or admissibility;
(b) A decision granting or denying release of the person
being investigated or prosecuted;
(c) A decision of the Pre-Trial Chamber to act on its own
initiative under article 56, paragraph 3;
(d) A decision that involves an issue that would
significantly affect the fair and expeditious conduct of the
proceedings or the outcome of the trial, and for which, in the
opinion of the Pre-Trial or Trial Chamber, an immediate
resolution by the Appeals Chamber may materially advance the
proceedings.
2. A decision of the Pre-Trial Chamber under article 57, paragraph
3 (d), may be appealed against by the State concerned or by the
Prosecutor, with the leave of the Pre-Trial Chamber. The appeal shall
be heard on an expedited basis.
3. An appeal shall not of itself have suspensive effect unless the
Appeals Chamber so orders, upon request, in accordance with the Rules
of Procedure and Evidence.
4. A legal representative of the victims, the convicted person or a
bona fide owner of property adversely affected by an order under
article 73 may appeal against the order for reparations, as provided in
the Rules of Procedure and Evidence.
Article 83
Proceedings on appeal
1. For the purposes of proceedings under article 81 and this
article, the Appeals Chamber shall have all the powers of the Trial
Chamber.
2. If the Appeals Chamber finds that the proceedings appealed from
were unfair in a way that affected the reliability of the decision or
sentence, or that the decision or sentence appealed from was materially
affected by error of fact or law or procedural error, it may:
(a) Reverse or amend the decision or sentence; or
(b) Order a new trial before a different Trial Chamber.
For these purposes, the Appeals Chamber may remand a factual issue
to the original Trial Chamber for it to determine the issue and to
report back accordingly, or may itself call evidence to determine the
issue. When the decision or sentence has been appealed only by the
person convicted, or the Prosecutor on that person's behalf, it cannot
be amended to his or her detriment.
3. If in an appeal against sentence the Appeals Chamber finds that
the sentence is disproportionate to the crime, it may vary the sentence
in accordance with Part 7.
4. The judgement of the Appeals Chamber shall be taken by a
majority of the judges and shall be delivered in open court. The
judgement shall state the reasons on which it is based. When there is
no unanimity, the judgement of the Appeals Chamber shall contain the
views of the majority and the minority, but a judge may deliver a
separate or dissenting opinion on a question of law.
5. The Appeals Chamber may deliver its judgement in the absence of
the person acquitted or convicted.
Article 84
Revision of conviction or sentence
1. The convicted person or, after death, spouses, children, parents
or one person alive at the time of the accused's death who has been
given express written instructions from the accused to bring such a
claim, or the Prosecutor on the person's behalf, may apply to the
Appeals Chamber to revise the final judgement of conviction or sentence
on the grounds that:
(a) New evidence has been discovered that:
(i) Was not available at the time of trial, and such
unavailability was not wholly or partially attributable
to the party making application; and
(ii) Is sufficiently important that had it been
proved at trial it would have been likely to have
resulted in a different verdict;
(b) It has been newly discovered that decisive evidence,
taken into account at trial and upon which the conviction
depends, was false, forged or falsified;
(c) One or more of the judges who participated in conviction
or confirmation of the charges has committed, in that case, an
act of serious misconduct or serious breach of duty of
sufficient gravity to justify the removal of that judge or
those judges from office under article 46.
2. The Appeals Chamber shall reject the application if it considers
it to be unfounded. If it determines that the application is
meritorious, it may, as appropriate:
(a) Reconvene the original Trial Chamber;
(b) Constitute a new Trial Chamber; or
(c) Retain jurisdiction over the matter,
with a view to, after hearing the parties in the manner set forth in
the Rules of Procedure and Evidence, arriving at a determination on
whether the judgement should be revised.
Article 85
Compensation to an arrested or convicted person
1. Anyone who has been the victim of unlawful arrest or detention
shall have an enforceable right to compensation.
2. When a person has by a final decision been convicted of a
criminal offence, and when subsequently his or her conviction has been
reversed on the ground that a new or newly discovered fact shows
conclusively that there has been a miscarriage of justice, the person
who has suffered punishment as a result of such conviction shall be
compensated according to law, unless it is proved that the non-
disclosure of the unknown fact in time is wholly or partly attributable
to him or her.
3. In exceptional circumstances, where the Court finds conclusive
facts showing that there has been a grave and manifest miscarriage of
justice, it may in its discretion award compensation, according to the
criteria provided in the Rules of Procedure and Evidence, to a person
who has been released from detention following a final decision of
acquittal or a termination of the proceedings for that reason.
PART 9. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE
Article 86
General obligation to cooperate
States Parties shall, in accordance with the provisions of this
Statute, cooperate fully with the Court in its investigation and
prosecution of crimes within the jurisdiction of the Court.
Article 87
Requests for cooperation: general provisions
1. (a) The Court shall have the authority to make requests to
States Parties for cooperation. The requests shall be transmitted
through the diplomatic channel or any other appropriate channel as may
be designated by each State Party upon ratification, acceptance,
approval or accession.
Subsequent changes to the designation shall be made by each State
Party in accordance with the Rules of Procedure and Evidence.
(b) When appropriate, without prejudice to the provisions of
subparagraph (a), requests may also be transmitted through the
International Criminal Police Organization or any appropriate
regional organization.
2. Requests for cooperation and any documents supporting the
request shall either be in or be accompanied by a translation into an
official language of the requested State or in one of the working
languages of the Court, in accordance with the choice made by that
State upon ratification, acceptance, approval or accession.
Subsequent changes to this choice shall be made in accordance with
the Rules of Procedure and Evidence.
3. The requested State shall keep confidential a request for
cooperation and any documents supporting the request, except to the
extent that the disclosure is necessary for execution of the request.
4. In relation to any request for assistance presented under Part
9, the Court may take such measures, including measures related to the
protection of information, as may be necessary to ensure the safety or
physical or psychological well-being of any victims, potential
witnesses and their families. The Court may request that any
information that is made available under Part 9 shall be provided and
handled in a manner that protects the safety and physical or
psychological well-being of any victims, potential witnesses and their
families.
5. The Court may invite any State not party to this Statute to
provide assistance under this Part on the basis of an ad hoc
arrangement, an agreement with such State or any other appropriate
basis.
Where a State not party to this Statute, which has entered into an
ad hoc arrangement or an agreement with the Court, fails to cooperate
with requests pursuant to any such arrangement or agreement, the Court
may so inform the Assembly of States Parties or, where the Security
Council referred the matter to the Court, the Security Council.
6. The Court may ask any intergovernmental organization to provide
information or documents. The Court may also ask for other forms of
cooperation and assistance which may be agreed upon with such an
organization and which are in accordance with its competence or
mandate.
7. Where a State Party fails to comply with a request to cooperate
by the Court contrary to the provisions of this Statute, thereby
preventing the Court from exercising its functions and powers under
this Statute, the Court may make a finding to that effect and refer the
matter to the Assembly of States Parties or, where the Security Council
referred the matter to the Court, to the Security Council.
Article 88
Availability of procedures under national law
States Parties shall ensure that there are procedures available
under their national law for all of the forms of cooperation which are
specified under this Part.
Article 89
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of
a person, together with the material supporting the request outlined in
article 91, to any State on the territory of which that person may be
found and shall request the cooperation of that State in the arrest and
surrender of such a person. States Parties shall, in accordance with
the provisions of this Part and the procedure under their national law,
comply with requests for arrest and surrender.
2. Where the person sought for surrender brings a challenge before
a national court on the basis of the principle of ne bis in idem as
provided in article 20, the requested State shall immediately consult
with the Court to determine if there has been a relevant ruling on
admissibility. If the case is admissible, the requested State shall
proceed with the execution of the request. If an admissibility ruling
is pending, the requested State may postpone the execution of the
request for surrender of the person until the Court makes a
determination on admissibility.
3. (a) A State Party shall authorize, in accordance with its
national procedural law, transportation through its territory of a
person being surrendered to the Court by another State, except where
transit through that State would impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted
in accordance with article 87. The request for transit shall
contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and
their legal characterization; and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody
during the period of transit;
(d) No authorization is required if the person is transported
by air and no landing is scheduled on the territory of the
transit State;
(e) If an unscheduled landing occurs on the territory of the
transit State, that State may require a request for transit
from the Court as provided for in subparagraph (b). The transit
State shall detain the person being transported until the
request for transit is received and the transit is effected;
provided that detention for purposes of this subparagraph may
not be extended beyond 96 hours from the unscheduled landing
unless the request is received within that time.
4. If the person sought is being proceeded against or is serving a
sentence in the requested State for a crime different from that for
which surrender to the Court is sought, the requested State, after
making its decision to grant the request, shall consult with the Court.
Article 90
Competing requests
1. A State Party which receives a request from the Court for the
surrender of a person under article 89 shall, if it also receives a
request from any other State for the extradition of the same person for
the same conduct which forms the basis of the crime for which the Court
seeks the person's surrender, notify the Court and the requesting State
of that fact.
2. Where the requesting State is a State Party, the requested State
shall give priority to the request from the Court if:
(a) The Court has, pursuant to articles 18 and 19, made a
determination that the case in respect of which surrender is
sought is admissible and that determination takes into account
the investigation or prosecution conducted by the requesting
State in respect of its request for extradition; or
(b) The Court makes the determination described in
subparagraph (a) pursuant to the requested State's notification
under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made,
the requested State may, at its discretion, pending the determination
of the Court under paragraph 2 (b), proceed to deal with the request
for extradition from the requesting State but shall not extradite the
person until the Court has determined that the case is inadmissible.
The Court's determination shall be made on an expedited basis.
4. If the requesting State is a State not Party to this Statute the
requested State, if it is not under an international obligation to
extradite the person to the requesting State, shall give priority to
the request for surrender from the Court, if the Court has determined
that the case is admissible.
5. Where a case under paragraph 4 has not been determined to be
admissible by the Court, the requested State may, at its discretion,
proceed to deal with the request for extradition from the requesting
State.
6. In cases where paragraph 4 applies except that the requested
State is under an existing international obligation to extradite the
person to the requesting State not Party to this Statute, the requested
State shall determine whether to surrender the person to the Court or
extradite the person to the requesting State. In making its decision,
the requested State shall consider all the relevant factors, including
but not limited to:
(a) The respective dates of the requests;
(b) The interests of the requesting State including, where
relevant, whether the crime was committed in its territory and
the nationality of the victims and of the person sought; and
(c) The possibility of subsequent surrender between the Court
and the requesting State.
7. Where a State Party which receives a request from the Court for
the surrender of a person also receives a request from any State for
the extradition of the same person for conduct other than that which
constitutes the crime for which the Court seeks the person's surrender:
(a) The requested State shall, if it is not under an existing
international obligation to extradite the person to the
requesting State, give priority to the request from the Court;
(b) The requested State shall, if it is under an existing
international obligation to extradite the person to the
requesting State, determine whether to surrender the person to
the Court or extradite the person to the requesting State. In
making its decision, the requested State shall consider all the
relevant factors, including but not limited to those set out in
paragraph 6, but shall give special consideration to the
relative nature and gravity of the conduct in question.
8. Where pursuant to a notification under this article, the Court
has determined a case to be inadmissible, and subsequently extradition
to the requesting State is refused, the requested State shall notify
the Court of this decision.
Article 91
Contents of request for arrest and surrender
1. A request for arrest and surrender shall be made in writing. In
urgent cases, a request may be made by any medium capable of delivering
a written record, provided that the request shall be confirmed through
the channel provided for in article 87, paragraph 1 (a).
2. In the case of a request for the arrest and surrender of a
person for whom a warrant of arrest has been issued by the Pre-Trial
Chamber under article 58, the request shall contain or be supported by:
(a) Information describing the person sought, sufficient to
identify the person, and information as to that person's
probable location;
(b) A copy of the warrant of arrest; and
(c) Such documents, statements or information as may be
necessary to meet the requirements for the surrender process in
the requested State, except that those requirements should not
be more burdensome than those applicable to requests for
extradition pursuant to treaties or arrangements between the
requested State and other States and should, if possible, be
less burdensome, taking into account the distinct nature of the
Court.
3. In the case of a request for the arrest and surrender of a
person already convicted, the request shall contain or be supported by:
(a) A copy of any warrant of arrest for that person;
(b) A copy of the judgement of conviction;
(c) Information to demonstrate that the person sought is the
one referred to in the judgement of conviction; and
(d) If the person sought has been sentenced, a copy of the
sentence imposed and, in the case of a sentence for
imprisonment, a statement of any time already served and the
time remaining to be served.
4. Upon the request of the Court, a State Party shall consult with
the Court, either generally or with respect to a specific matter,
regarding any requirements under its national law that may apply under
paragraph 2 (c). During the consultations, the State Party shall advise
the Court of the specific requirements of its national law.
Article 92
Provisional arrest
1. In urgent cases, the Court may request the provisional arrest of
the person sought, pending presentation of the request for surrender
and the documents supporting the request as specified in article 91.
2. The request for provisional arrest shall be made by any medium
capable of delivering a written record and shall contain:
(a) Information describing the person sought, sufficient to
identify the person, and information as to that person's
probable location;
(b) A concise statement of the crimes for which the person's
arrest is sought and of the facts which are alleged to
constitute those crimes, including, where possible, the date
and location of the crime;
(c) A statement of the existence of a warrant of arrest or a
judgement of conviction against the person sought; and
(d) A statement that a request for surrender of the person
sought will follow.
3. A person who is provisionally arrested may be released from
custody if the requested State has not received the request for
surrender and the documents supporting the request as specified in
article 91 within the time limits specified in the Rules of Procedure
and Evidence. However, the person may consent to surrender before the
expiration of this period if permitted by the law of the requested
State. In such a case, the requested State shall proceed to surrender
the person to the Court as soon as possible.
4. The fact that the person sought has been released from custody
pursuant to paragraph 3 shall not prejudice the subsequent arrest and
surrender of that person if the request for surrender and the documents
supporting the request are delivered at a later date.
Article 93
Other forms of cooperation
1. States Parties shall, in accordance with the provisions of this
Part and under procedures of national law, comply with requests by the
Court to provide the following assistance in relation to investigations
or prosecutions:
(a) The identification and whereabouts of persons or the
location of items;
(b) The taking of evidence, including testimony under oath,
and the production of evidence, including expert opinions and
reports necessary to the Court;
(c) The questioning of any person being investigated or
prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as
witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in
paragraph 7;
(g) The examination of places or sites, including the
exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including
official records and documents;
(j) The protection of victims and witnesses and the
preservation of evidence;
(k) The identification, tracing and freezing or seizure of
proceeds, property and assets and instrumentalities of crimes
for the purpose of eventual forfeiture, without prejudice to
the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by
the law of the requested State, with a view to facilitating the
investigation and prosecution of crimes within the jurisdiction
of the Court.
2. The Court shall have the authority to provide an assurance to a
witness or an expert appearing before the Court that he or she will not
be prosecuted, detained or subjected to any restriction of personal
freedom by the Court in respect of any act or omission that preceded
the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed
in a request presented under paragraph 1, is prohibited in the
requested State on the basis of an existing fundamental legal principle
of general application, the requested State shall promptly consult with
the Court to try to resolve the matter. In the consultations,
consideration should be given to whether the assistance can be rendered
in another manner or subject to conditions. If after consultations the
matter cannot be resolved, the Court shall modify the request as
necessary.
4. In accordance with article 72, a State Party may deny a request
for assistance, in whole or in part, only if the request concerns the
production of any documents or disclosure of evidence which relates to
its national security.
5. Before denying a request for assistance under paragraph 1 (l),
the requested State shall consider whether the assistance can be
provided subject to specified conditions, or whether the assistance can
be provided at a later date or in an alternative manner, provided that
if the Court or the Prosecutor accepts the assistance subject to
conditions, the Court of the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party
shall promptly inform the Court or the Prosecutor of the reasons for
such denial.
7. (a) The Court may request the temporary transfer of a person in
custody for purposes of identification or for obtaining testimony or
other assistance. The person may be transferred if the following
conditions are fulfilled:
(i) The person freely gives his or her informed
consent to the transfer; and
(ii) The requested State agrees to the transfer,
subject to such conditions as that State and the Court
may agree.
(b) The person being transferred shall remain in custody.
When the purposes of the transfer have been fulfilled, the
Court shall return the person without delay to the requested
State.
8. (a) The Court shall ensure the confidentiality of documents and
information, except as required for the investigation and proceedings
described in the request.
(b) The requested State may, when necessary, transmit
documents or information to the Prosecutor on a confidential
basis. The Prosecutor may then use them solely for the purpose
of generating new evidence;
(c) The requested State may, on its own motion or at the
request of the Prosecutor, subsequently consent to the
disclosure of such documents or information. They may then be
used as evidence pursuant to the provisions of Parts 5 and 6
and in accordance with the Rules of Procedure and Evidence.
9. (a) (i) In the event that a State Party receives competing
requests, other than for surrender or extradition, from the Court and
from another State pursuant to an international obligation, the State
Party shall endeavour, in consultation with the Court and the other
State, to meet both requests, if necessary by postponing or attaching
conditions to one or the other request.
(ii) Failing that, competing requests shall be
resolved in accordance with the principles established
in article 90.
(b) Where, however, the request from the Court concerns
information, property or persons which are subject to the
control of a third State or an international organization by
virtue of an international agreement, the requested States
shall so inform the Court and the Court shall direct its
request to the third State or international organization.
10. (a) The Court may, upon request, cooperate with and provide
assistance to a State Party conducting an investigation into or trial
in respect of conduct which constitutes a crime within the jurisdiction
of the Court or which constitutes a serious crime under the national
law of the requesting State.
(b) (i) The assistance provided under subparagraph (a) shall
include, inter alia:
(1) The transmission of statements, documents
or other types of evidence obtained in the
course of an investigation or a trial conducted
by the Court; and
(2) The questioning of any person detained by
order of the Court;
(ii) In the case of assistance under subparagraph (b)
(i) (1):
(1) If the documents or other types of
evidence have been obtained with the assistance
of a State, such transmission shall require the
consent of that State;
(2) If the statements, documents or other
types of evidence have been provided by a
witness or expert, such transmission shall be
subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this
paragraph, grant a request for assistance under this paragraph
from a State which is not a Party to the Statute.
Article 94
Postponement of execution of a request in respect of ongoing
investigation or prosecution
1. If the immediate execution of a request would interfere with an
ongoing investigation or prosecution of a case different from that to
which the request relates, the requested State may postpone the
execution of the request for a period of time agreed upon with the
Court. However, the postponement shall be no longer than is necessary
to complete the relevant investigation or prosecution in the requested
State. Before making a decision to postpone, the requested State should
consider whether the assistance may be immediately provided subject to
certain conditions.
2. If a decision to postpone is taken pursuant to paragraph 1, the
Prosecutor may, however, seek measures to preserve evidence, pursuant
to article 93, paragraph 1 (j).
Article 95
Postponement of execution of a request in respect of an admissibility
challenge
Without prejudice to article 53, paragraph 2, where there is an
admissibility challenge under consideration by the Court pursuant to
articles 18 or 19, the requested State may postpone the execution of a
request under this Part pending a determination by the Court, unless
the Court has specifically ordered that the Prosecutor may pursue the
collection of such evidence pursuant to articles 18 or 19.
Article 96
Contents of request for other forms of assistance under article 93
1. A request for other forms of assistance referred to in article
93 shall be made in writing. In urgent cases, a request may be made by
any medium capable of delivering a written record, provided that the
request shall be confirmed through the channel provided for in article
87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the
following:
(a) A concise statement of the purpose of the request and the
assistance sought, including the legal basis and the grounds
for the request;
(b) As much detailed information as possible about the
location or identification of any person or place that must be
found or identified in order for the assistance sought to be
provided;
(c) A concise statement of the essential facts underlying the
request;
(d) The reasons for and details of any procedure or
requirement to be followed;
(e) Such information as may be required under the law of the
requested State in order to execute the request; and
(f) Any other information relevant in order for the
assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with
the Court, either generally or with respect to a specific matter,
regarding any requirements under its national law that may apply under
paragraph 2 (e). During the consultations, the State Party shall advise
the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also
apply in respect of a request for assistance made to the Court.
Article 97
Consultations
Where a State Party receives a request under this Part in relation
to which it identifies problems which may impede or prevent the
execution of the request, that State shall consult with the Court
without delay in order to resolve the matter. Such problems may
include, inter alia:
(a) Insufficient information to execute the request;
(b) In the case of a request for surrender, the fact that
despite best efforts, the person sought cannot be located or
that the investigation conducted has determined that the person
in the custodial State is clearly not the person named in the
warrant; or
(c) The fact that execution of the request in its current
form would require the requested State to breach a pre-existing
treaty obligation undertaken with respect to another State.
Article 98
Cooperation with respect to waiver of immunity and consent to surrender
1. The Court may not proceed with a request for surrender or
assistance which would require the requested State to act
inconsistently with its obligations under international law with
respect to the State or diplomatic immunity of a person or property of
a third State, unless the Court can first obtain the cooperation of
that third State for the waiver of the immunity.
2. The Court may not proceed with a request for surrender which
would require the requested State to act inconsistently with its
obligations under international agreements pursuant to which the
consent of a sending State is required to surrender a person of that
State to the Court, unless the Court first obtain the cooperation of
the sending State for the giving of consent for the surrender.
Article 99
Execution of requests under articles 93 and 96
1. Requests for assistance shall be executed in accordance with the
relevant procedure under the law of the requested State and, unless
prohibited by such law, in the manner specified in the request,
including following any procedure outlined therein or permitting
persons specified in the request to be present at and assist in the
execution process.
2. In the case of an urgent request, the documents or evidence
produced in response shall, at the request of the Court, be sent
urgently.
3. Replies from the requested State shall be transmitted in their
original language and form.
4. Without prejudice to other articles in this Part, where it is
necessary for the successful execution of a request which can be
executed without any compulsory measures, including specifically the
interview of or taking evidence from a person on a voluntary basis,
including doing so without the presence of the authorities of the
requested State Party if it is essential for the request to be
executed, and the examination without modification of a public site or
other public place, the Prosecutor may execute such request directly on
the territory of a State as follows:
(a) When the State Party requested is a State on the
territory of which the crime is alleged to have been committed,
and there has been a determination of admissibility pursuant to
articles 18 or 19, the Prosecutor may directly execute such
request following all possible consultations with the requested
State Party;
(b) In other cases, the Prosecutor may execute such request
following consultations with the requested State Party and
subject to any reasonable conditions or concerns raised by that
State Party. Where the requested State Party identifies
problems with the execution of a request pursuant to this
subparagraph it shall, without delay, consult with the Court to
resolve the matter.
5. Provisions allowing a person heard or examined by the Court
under article 72 to invoke restrictions designed to prevent disclosure
of confidential information connected with national defence or security
shall also apply to the execution of requests for assistance under this
article.
Article 100
Costs
1. The ordinary costs for execution of requests in the territory of
the requested State shall be borne by that State, except for the
following, which shall be borne by the Court:
(a) Costs associated with the travel and security of
witnesses and experts or the transfer under article 93 of
persons in custody;
(b) Costs of translation, interpretation and transcription;
(c) Travel and subsistence costs of the judges, the
Prosecutor, the Deputy Prosecutors, the Registrar, the Deputy
Registrar and staff of any organ of the Court;
(d) Costs of any expert opinion or report requested by the
Court;
Costs associated with the transport of a person being
surrendered to the Court by a custodial State; and
(f) Following consultations, any extraordinary costs that may
result from the execution of a request.
2. The provisions of paragraph 1 shall, as appropriate, apply to
requests from States Parties to the Court. In that case, the Court
shall bear the ordinary costs of execution.
Article 101
Rule of speciality
1. A person surrendered to the Court under this Statute shall not
be proceeded against, punished or detained for any conduct committed
prior to surrender, other than the conduct or course of conduct which
forms the basis of the crimes for which that person has been
surrendered.
2. The Court may request a waiver of the requirements of paragraph
1 from the State which surrendered the person to the Court and, if
necessary, the Court shall provide additional information in accordance
with article 91. States Parties shall have the authority to provide a
waiver to the Court and should endeavour to do so.
Article 102
Use of terms
For the purposes of this Statute:
(a) ``surrender'' means the delivering up of a person by a
State to the Court, pursuant to this Statute.
(b) ``extradition'' means the delivering up of a person by
one State to another as provided by treaty, convention or
national legislation.
PART 10. ENFORCEMENT
Article 103
Role of States in enforcement of sentences of imprisonment
1. (a) A sentence of imprisonment shall be served in a State
designated by the Court from a list of States which have indicated to
the Court their willingness to accept sentenced persons.
(b) At the time of declaring its willingness to accept
sentenced persons, a State may attach conditions to its
acceptance as agreed by the Court and in accordance with this
Part.
(c) A State designated in a particular case shall promptly
inform the Court whether it accepts the Court's designation.
2. (a) The State of enforcement shall notify the Court of any
circumstances, including the exercise of any conditions agreed under
paragraph 1, which could materially affect the terms or extent of the
imprisonment. The Court shall be given at least 45 days' notice of any
such known or foreseeable circumstances. During this period, the State
of enforcement shall take no action that might prejudice its
obligations under article 110.
(b) Where the Court cannot agree to the circumstances
referred to in subparagraph (a), it shall notify the State of
enforcement and proceed in accordance with article 104,
paragraph 1.
3. In exercising its discretion to make a designation under
paragraph 1, the Court shall take into account the following:
(a) The principle that States Parties should share the
responsibility for enforcing sentences of imprisonment, in
accordance with principles of equitable distribution, as
provided in the Rules of Procedure and Evidence;
(b) The application of widely accepted international treaty
standards governing the treatment of prisoners;
(c) The views of the sentenced person; and
(d) The nationality of the sentenced person;
(e) Such other factors regarding the circumstances of the
crime or the person sentenced, or the effective enforcement of
the sentence, as may be appropriate in designating the State of
enforcement.
4. If no State is designated under paragraph 1, the sentence of
imprisonment shall be served in a prison facility made available by the
host State, in accordance with the conditions set out in the
headquarters agreement referred to in article 3, paragraph 2. In such a
case, the costs arising out of the enforcement of a sentence of
imprisonment shall be borne by the Court.
Article 104
Change in designation of State of enforcement
1. The Court may, at any time, decide to transfer a sentenced
person to a prison of another State.
2. A sentenced person may, at any time, apply to the Court to be
transferred from the State of enforcement.
Article 105
Enforcement of the sentence
1. Subject to conditions which a State may have specified in
accordance with article 103, paragraph 1 (b), the sentence of
imprisonment shall be binding on the States Parties, which shall in no
case modify it.
2. The Court alone shall have the right to decide any application
for appeal and revision. The State of enforcement shall not impede the
making of any such application by a sentenced person.
Article 106
Supervision of enforcement of sentences and conditions of imprisonment
1. The enforcement of a sentence of imprisonment shall be subject
to the supervision of the Court and shall be consistent with widely
accepted international treaty standards governing treatment of
prisoners.
2. The conditions of imprisonment shall be governed by the law of
the State of enforcement and shall be consistent with widely accepted
international treaty standards governing treatment of prisoners; in no
case shall such conditions be more or less favourable than those
available to prisoners convicted of similar offences in the State of
enforcement.
3. Communications between a sentenced person and the Court shall be
unimpeded and confidential.
Article 107
Transfer of the person upon completion of sentence
1. Following completion of the sentence, a person who is not a
national of the State of enforcement may, in accordance with the law of
the State of enforcement, be transferred to a State which is obliged to
receive him or her, or to another State which agrees to receive him or
her, taking into account any wishes of the person to be transferred to
that State, unless the State of enforcement authorizes the person to
remain in its territory.
2. If no State bears the costs arising out of transferring the
person to another State pursuant to paragraph 1, such costs shall be
borne by the Court.
3. Subject to the provisions of article 108, the State of
enforcement may also, in accordance with its national law, extradite or
otherwise surrender the person to the State which has requested the
extradition or surrender of the person for purposes of trial or
enforcement of a sentence.
Article 108
Limitation on the prosecution or punishment of other offences
1. A sentenced person in the custody of the State of enforcement
shall not be subject to prosecution or punishment or to extradition to
a third State for any conduct engaged in prior to that person's
delivery to the State of enforcement, unless such prosecution,
punishment or extradition has been approved by the Court at the request
of the State of enforcement.
2. The Court shall decide the matter after having heard the views
of the sentenced person.
3. Paragraph 1 shall cease to apply if the sentenced person remains
voluntarily for more than 30 days in the territory of the State of
enforcement after having served the full sentence imposed by the Court,
or returns to the territory of that State after having left it.
Article 109
Enforcement of fines and forfeiture measures
1. States Parties shall give effect to fines or forfeitures ordered
by the Court under Part 7, without prejudice to the rights of bona fide
third parties, and in accordance with the procedure of their national
law.
2. If a State Party is unable to give effect to an order for
forfeiture, it shall take measures to recover the value of the
proceeds, property or assets ordered by the Court to be forfeited,
without prejudice to the rights of bona fide third parties.
3. Property, or the proceeds of the sale of real property or, where
appropriate, the sale of other property, which is obtained by a State
Party as a result of its enforcement of a judgement of the Court shall
be transferred to the Court.
Article 110
Review by the Court concerning reduction of sentence
1. The State of enforcement shall not release the person before
expiry of the sentence pronounced by the Court.
2. The Court alone shall have the right to decide any reduction of
sentence, and shall rule on the matter after having heard the person.
3. When the person has served two thirds of the sentence, or 25
years in the case of life imprisonment, the Court shall review the
sentence to determine whether it should be reduced. Such a review shall
not be conducted before that time.
4. In its review under paragraph 3, the Court may reduce the
sentence if it finds that one or more of the following factors are
present:
(a) The early and continuing willingness of the person to
cooperate with the Court in its investigations and
prosecutions;
(b) The voluntary assistance of the person in enabling the
enforcement of the judgements and orders of the Court in other
cases, and in particular providing assistance in locating
assets subject to orders of fine, forfeiture or reparation
which may be used for the benefit of victims; or
(c) Other factors establishing a clear and significant change
of circumstances sufficient to justify the reduction of
sentence, as provided in the Rules of Procedure and Evidence.
5. If the Court determines in its initial review under paragraph 3
that it is not appropriate to reduce the sentence, it shall thereafter
review the question of reduction of sentence at such intervals and
applying such criteria as provided for in the Rules of Procedure and
Evidence.
Article 111
Escape
If a convicted person escapes from custody and flees the State of
enforcement, that State may, after consultation with the Court, request
the person's surrender from the State in which the person is located
pursuant to existing bilateral or multilateral arrangements, or may
request that the Court seek the person's surrender. It may direct that
the person be delivered to the State in which he or she was serving the
sentence or to another State designated by the Court.
PART 11. ASSEMBLY OF STATES PARTIES
Article 112
Assembly of States Parties
1. An Assembly of States Parties to this Statute is hereby
established. Each State Party shall have one representative in the
Assembly who may be accompanied by alternates and advisers. Other
States which have signed the Statute or the Final Act may be observers
in the Assembly.
2. The Assembly shall:
(a) Consider and adopt, as appropriate, recommendations of
the Preparatory Commission;
(b) Provide management oversight to the Presidency, the
Prosecutor and the Registrar regarding the administration of
the Court;
(c) Consider the reports and activities of the Bureau
established under paragraph 3 and take appropriate action in
regard thereto;
(d) Consider and decide the budget for the Court;
(e) Decide whether to alter, in accordance with article 36,
the number of judges;
(f) Consider pursuant to article 87, paragraphs 5 and 7, any
question relating to non-cooperation;
(g) Perform any other function consistent with this Statute
or the Rules of Procedure and Evidence.
3. (a) The Assembly shall have a Bureau consisting of a President,
two Vice-Presidents and 18 members elected by the Assembly for three-
year terms.
(b) The Bureau shall have a representative character, taking
into account, in particular, equitable geographical
distribution and the adequate representation of the principal
legal systems of the world.
(c) The Bureau shall meet as often as necessary, but at least
once a year. It shall assist the Assembly in the discharge of
its responsibilities.
4. The Assembly may establish such subsidiary bodies as may be
necessary, including an independent oversight mechanism for inspection,
evaluation and investigation of the Court, in order to enhance its
efficiency and economy.
5. The President of the Court, the Prosecutor and the Registrar or
their representatives may participate, as appropriate, in meetings of
the Assembly and of the Bureau.
6. The Assembly shall meet at the seat of the Court or at the
Headquarters of the United Nations once a year and, when circumstances
so require, hold special sessions. Except as otherwise specified in
this Statute, special sessions shall be convened by the Bureau on its
own initiative or at the request of one third of the States Parties.
7. Each State Party shall have one vote. Every effort shall be made
to reach decisions by consensus in the Assembly and in the Bureau. If
consensus cannot be reached, except as otherwise provided in the
Statute:
(a) Decisions on matters of substance must be approved by a
two-thirds majority of those present and voting provided that
an absolute majority of States Parties constitutes the quorum
for voting;
(b) Decisions on matters of procedure shall be taken by a
simple majority of States Parties present and voting.
8. A State Party which is in arrears in the payment of its
financial contributions towards the costs of the Court shall have no
vote in the Assembly and in the Bureau if the amount of its arrears
equals or exceeds the amount of the contributions due from it for the
preceding two full years. The Assembly may, nevertheless, permit such a
State Party to vote in the Assembly and in the Bureau if it is
satisfied that the failure to pay is due to conditions beyond the
control of the State Party.
9. The Assembly shall adopt its own rules of procedure.
10. The official and working languages of the Assembly shall be
those of the General Assembly of the United Nations.
PART 12. FINANCING
Article 113
Financial Regulations
Except as otherwise specifically provided, all financial matters
related to the Court and the meetings of the Assembly of States
Parties, including its Bureau and subsidiary bodies, shall be governed
by this Statute and the Financial Regulations and Rules adopted by the
Assembly of States Parties.
Article 114
Payment of expenses
Expenses of the Court and the Assembly of States Parties, including
its Bureau and subsidiary bodies, shall be paid from the funds of the
Court.
Article 115
Funds of the Court and of the Assembly of States Parties
The expenses of the Court and the Assembly of States Parties,
including its Bureau and subsidiary bodies, as provided for in the
budget decided by the Assembly of States Parties, shall be provided by
the following sources:
(a) Assessed contributions made by States Parties;
(b) Funds provided by the United Nations, subject to the
approval of the General Assembly, in particular in relation to
the expenses incurred due to referrals by the Security Council.
Article 116
Voluntary contributions
Without prejudice to article 115, the Court may receive and
utilize, as additional funds, voluntary contributions from Governments,
international organizations, individuals, corporations and other
entities, in accordance with relevant criteria adopted by the Assembly
of States Parties.
Article 117
Assessment of contributions
The contributions of States Parties shall be assessed in accordance
with an agreed scale of assessment, based on the scale adopted by the
United Nations for its regular budget and adjusted in accordance with
the principles on which that scale is based.
Article 118
Annual audit
The records, books and accounts of the Court, including its annual
financial statements, shall be audited annually by an independent
auditor.
PART 13. FINAL CLAUSES
Article 119
Settlement of disputes
1. Any dispute concerning the judicial functions of the Court shall
be settled by the decision of the Court.
2. Any other dispute between two or more States Parties relating to
the interpretation or application of this Statute which is not settled
through negotiations within three months of their commencement shall be
referred to the Assembly of States Parties. The Assembly may itself
seek to settle the dispute or make recommendations on further means of
settlement of the dispute, including referral to the International
Court of Justice in conformity with the Statute of that Court.
Article 120
Reservations
No reservations may be made to this Statute.
Article 121
Amendments
1. After the expiry of seven years from the entry into force of
this Statute, any State Party may propose amendments thereto. The text
of any proposed amendment shall be submitted to the Secretary-General
of the United Nations, who shall promptly circulate it to all States
Parties.
2. No sooner than three months from the date of notification, the
next Assembly of States Parties shall, by a majority of those present
and voting, decide whether to take up the proposal. The Assembly may
deal with the proposal directly or convene a Review Conference if the
issue involved so warrants.
3. The adoption of an amendment at a meeting of the Assembly of
States Parties or at a Review Conference on which consensus cannot be
reached shall require a two-thirds majority of States Parties.
4. Except as provided in paragraph 5, an amendment shall enter into
force for all States Parties one year after instruments of ratification
or acceptance have been deposited with the Secretary-General of the
United Nations by seven-eighths of them.
5. Any amendment to article 5 of this Statute shall enter into
force for those States Parties which have accepted the amendment one
year after the deposit of their instruments of ratification or
acceptance. In respect of a State Party which has not accepted the
amendment, the Court shall not exercise its jurisdiction regarding a
crime covered by the amendment when committed by that State Party's
nationals or on its territory.
6. If an amendment has been accepted by seven-eighths of States
Parties in accordance with paragraph 4, any State Party which has not
accepted the amendment may withdraw from the Statute with immediate
effect, notwithstanding paragraph 1 of article 127, but subject to
paragraph 2 of article 127, by giving notice no later than one year
after the entry into force of such amendment.
7. The Secretary-General of the United Nations shall circulate to
all States Parties any amendment adopted at a meeting of the Assembly
of States Parties or at a Review Conference.
Article 122
Amendments to provisions of an institutional nature
1. Amendments to provisions of the Statute which are of an
exclusively institutional nature, namely, article 35, article 36,
paragraphs 8 and 9 article 37, article 38, article 39, paragraphs 1
(first two sentences), 2 and 4, article 42, paragraphs 4 to 9, article
43, paragraphs 2 and 3, and articles 44, 46, 47 and 49, may be proposed
at any time, notwithstanding article 121, paragraph 1, by any State
Party. The text of any proposed amendment shall be submitted to the
Secretary-General of the United Nations or such other person designated
by the Assembly of States Parties who shall promptly circulate it to
all States Parties and to others participating in the Assembly.
2. Amendments under this article on which consensus cannot be
reached shall be adopted by the Assembly of States Parties or by a
Review Conference, by a two-thirds majority of States Parties. Such
amendments shall enter into force for all States Parties six months
after their adoption by the Assembly or, as the case may be, by the
Conference.
Article 123
Review of the Statute
1. Seven years after the entry into force of this Statute the
Secretary-General of the United Nations shall convene a Review
Conference to consider any amendments to this Statute. Such review may
include, but is not limited to, the list of crimes contained in article
5. The Conference shall be open to those participating in the Assembly
of States Parties and on the same conditions.
2. At any time thereafter, at the request of a State Party and for
the purposes set out in paragraph 1, the Secretary-General of the
United Nations shall, upon approval by a majority of States Parties,
convene a Review Conference.
3. The provisions of article 121, paragraphs 3 to 7, shall apply to
the adoption and entry into force of any amendment to the Statute
considered at a Review Conference.
Article 124
Transitional Provision
Notwithstanding article 12 paragraph 1, a State, on becoming a
party to this Statute, may declare that, for a period of seven years
after the entry into force of this Statute for the State concerned, it
does not accept the jurisdiction of the Court with respect to the
category of crimes referred to in article 8 when a crime is alleged to
have been committed by its nationals or on its territory. A declaration
under this article may be withdrawn at any time. The provisions of this
article shall be reviewed at the Review Conference convened in
accordance with article 123, paragraph 1.
Article 125
Signature, ratification, acceptance, approval or accession
1. This Statute shall be open for signature by all States in Rome,
at the headquarters of the Food and Agriculture Organization of the
United Nations, on 17 July 1998. Thereafter, it shall remain open for
signature in Rome at the Ministry of Foreign Affairs of Italy until 17
October 1998. After that date, the Statute shall remain open for
signature in New York, at United Nations Headquarters, until 31
December 2000.
2. This Statute is subject to ratification, acceptance or approval
by signatory States. Instruments of ratification, acceptance or
approval shall be deposited with the Secretary-General of the United
Nations.
3. This Statute shall be open to accession by all States.
Instruments of accession shall be deposited with the Secretary-General
of the United Nations.
Article 126
Entry into force
1. This Statute shall enter into force on the first day of the
month after the 60th day following the date of the deposit of the 60th
instrument of ratification, acceptance, approval or accession with the
Secretary-General of the United Nations.
2. For each State ratifying, accepting, approving or acceding to
the Statute after the deposit of the 60th instrument of ratification,
acceptance, approval or accession, the Statute shall enter into force
on the first day of the month after the 60th day following the deposit
by such State of its instrument of ratification, acceptance, approval
or accession.
Article 127
Withdrawal
1. A State Party may, by written notification addressed to the
Secretary-General of the United Nations, withdraw from this Statute.
The withdrawal shall take effect one year after the date of receipt of
the notification, unless the notification specifies a later date.
2. A State shall not be discharged, by reason of its withdrawal,
from the obligations arising from this Statute while it was a Party to
the Statute, including any financial obligations which may have
accrued. Its withdrawal shall not affect any cooperation with the Court
in connection with criminal investigations and proceedings in relation
to which the withdrawing State had a duty to cooperate and which were
commenced prior to the date on which the withdrawal became effective,
nor shall it prejudice in any way the continued consideration of any
matter which was already under consideration by the Court prior to the
date on which the withdrawal became effective.
Article 128
Authentic texts
The original of this Statute, of which the Arabic, Chinese,
English, French, Russian and Spanish texts are equally authentic, shall
be deposited with the Secretary-General of the United Nations, who
shall send certified copies thereof to all States.
IN WITNESS WHEREOF, the undersigned, being duly authorized thereto
by their respective Governments, have signed this Statute. DONE at
Rome, this 17th day of July 1998.
__________
Statement of the United States Delegation to the Preparatory Committee
on the Establishment of an International Criminal Court
March 23, 1998.
The United States is deeply concerned that at this late stage of
the proceedings of the Preparatory Committee, certain fundamental
tenets of International Humanitarian Law applicable to non-
international armed conflict are still being questioned. It would be
regrettable if, before Rome, the Preparatory Committee could not reach
an understanding on the deletion of a number of brackets.
To facilitate our progress in Rome, the United States
strongly believes that the bracketed text ``in armed conflict''
should be deleted from the definition of crimes against
humanity (paragraph 1, on page 32 of the Zutphen draft).
Contemporary international law makes it clear that no war nexus
for crimes against humanity is required. (The United States
distributed a paper examining this issue on March 25, 1996.)
The United States believes that crimes against humanity must be
deterred in times of peace as well as in times of war and that
the ICC Statute should reflect this principle.
Section C of the definition of war crimes (on page 28 of the
Zutphen draft), which incorporates common Article 3 of the
Geneva Conventions, is currently bracketed. In our view, it is
essential that those brackets be removed. The United States
strongly believes that serious violations of the elementary
customary norms reflected in common Article 3 should be the
centerpiece of the ICC's subject matter jurisdiction with
regard to non-international armed conflicts.
Finally, the United States urges that there should be a
section, in addition to Section C, covering other rules
regarding the conduct of hostilities in non-international armed
conflicts. It is good international law, and good policy, to
make serious violations of at least some fundamental rules
pertaining to the conduct of hostilities in non international
armed conflicts a part of the ICC's jurisdiction.
The United States is eager to work with other delegations to build
strong consensus on these matters
__________
Statement of the United States Delegation on Elements of Offenses
United States Delegation,
April 3, 1998.
On Friday, March 27th, the U.S. delegation submitted a paper to the
Preparatory Committee as an illustration of how a set of criminal
elements, annexed to the Statute, might appear. We solicited, and have
received comments on this paper, and have since submitted the paper as
a conference document which is forthcoming as DP 11. (It may not be
translated by the end of the Preparatory Committee meeting)
The overwhelming majority of comments have been positive with
respect to the need to define crimes with the clarity, precision and
specificity many jurisdictions require for criminal law. This is
consistent with adherence to the principle of nullum crimen sine lege
and the desires for specificity in the definition of crimes expressed
in reports from earlier Preparatory Committee meetings. We have also
received some critical comments, however, or perhaps more
appropriately--expressions of cautious reservation, due to the
necessarily late submission of our proposed annex and what some see as
a potential to delay negotiation of the treaty in Rome.
I would like to take a moment to address these concerns directly.
We hope for a successful conclusion of a diplomatic conference in
Rome. We view our proposal regarding a criminal elements annex as being
entirely consistent with and, in fact, advancing the constructive
approach our delegations have taken to achieve that aim.
The United States continues to believe that the inclusion of an
annex which lays out criminal elements is a fundamental requirement for
a successful criminal statute. We understand that different criminal
justice systems function with different levels of specificity, but if
the International Criminal Court is to enjoy the widespread acceptance,
recognition and respect that it must have to function appropriately, it
must not have standards of criminal justice that are less rigorous than
those of its member states. Considering the seriousness of the crimes
and penalties in these cases, specificity becomes an issue of
fundamental fairness.
Addressing the issue of timing, let me explain why we have just now
introduced DP 11 as opposed to at an earlier time. The answer is
closely related to the fact that we could only submit a template or
model and not a specific proposal. The task of listing elements of
offenses is logically accomplished subsequent to reaching consensus on
the list of crimes. However, at this juncture, such consensus has not
been achieved. Therefore, the United States has prepared this document
to serve as a potential template or model for a parallel effort in Rome
or follow-on negotiations of a more technical nature.
More than two years ago, there was widespread agreement that the
statute would need to define crimes with the clarity and precision of a
criminal statute. While there may be different perceptions of what the
terms ``clarity'' and ``precision'' really mean, there can be no
disagreement that the current formulations of crimes do not contain the
requisite specificity. Our current list of crimes in the draft statute
uses language frequently drawn directly from Hague or Geneva
Conventions. While accommodating some concerns of the international
lawyer, these conventional formulations are not crafted so as to
address the needs of the criminal practitioner.
Moving beyond the timing of our proposal, I would like to address
the issue of the potential for delay. No one has suggested a less
ambitious goal than completion in Rome, but likewise we should accept
nothing less than a thorough comprehensive treaty. We should not allow
ourselves to conclude that any necessary effort is simply ``too hard to
complete in Rome. Nevertheless. we have attempted to accommodate the
concerns of other delegations by maintaining an attitude of flexibility
on the specific procedures or mechanism by which the annex could be
adopted. We have made several references to the criminal elements in
the draft text, coupling them with the terms, ``rules of evidence and
procedure.'' The specific mechanism for adopting an elements annex must
still be clarified.
While timing may be a point for discussion, we believe that the
status of the elements as a constituent part of the statute should be
presumed. The essence of this entire effort is the preeminence of the
rule of law. This law binds alleged perpetrators as well as the
prosecutors and judges that make them accountable. The elements must be
a part of the statute; they carry with them the rigor that gives a
criminal tribunal its authority as an institution under the law.
Some argue that those bred in civil law have found the common law
character of the elements paper difficult. We sympathize with their
concerns and are happy to consult with them. Consultations thus far
lead us to believe that it would be possible to make this paper broadly
acceptable to a wide range of delegations. It may be that the best way
of proceeding in Rome would be to charge a group of experts drawn from
different legal systems to finalize the elements text for adoption, as
an annex to the Statute, at the end of the Rome conference.
Some delegations may believe that the task of reaching consensus on
elements is a daunting one, given the short time available. They may
believe that discussions about the elements will be as complex as the
discussions we had about principles of criminal law and the list of
crimes. But the elements are meant to be simple and practical. In fact,
the removal of any perceived ambiguity in the current crime list could
facilitate agreement on that list. They are something readily familiar
to criminal practitioners, a necessary guide to prosecutors of what
must be proved, and to defense counsel of what must be defended
against.
Conversely, some have argued that there is no controversy regarding
what the elements are, and thus, negotiating them is an unnecessary
task. If this is the case, then we should reach quick agreement at
Rome, without any controversial discussion. However, if there are some
points of disagreement in the elements, then discussion and agreement
on them become even more important. How can we ask the global community
to accept the jurisdiction of a court, when we cannot even agree on the
precise nature of the criminal activity that would be subject to it?
The U.S. delegation strongly urges other delegations to take a
close look at the criminal elements paper that we have proposed. We
must ensure that our endeavors are oriented toward establishment of a
responsible permanent international criminal justice system. We cannot
abandon the task in the face of difficulties, and leave it for the
court. We will elect judges to judge, not to legislate.
In conclusion, we do not believe the court should become
operational before the elements are adopted. And this, of course, is
also true about the need to adopt rules of evidence and procedure
before the court becomes operational. Our proposal is designed to
create a truly viable and effective permanent court that deserves the
authority and responsibility we give it.
______
Proposal Submitted by the United States of America on Elements of
Offences for the International Criminal Court
A/AC.249/1998/DP.11
2 April 1998
Original: English
Preparatory Committee on the Establishment of an International Criminal
Court
16 March-3 April 1998
Proposal Submitted by the United States of America
Elements of Offenses for the International Criminal Court
1. The attached reference paper is submitted to the Preparatory
Committee as an illustration of how a set of criminal elements, annexed
to the Statute, might appear.
2. The March-April and August 1996 Proceedings of the Preparatory
Committee reported that ``[t]here was general agreement that the crimes
within the jurisdiction of the Court should be defined with the
clarity, precision and specificity required for criminal law in
accordance with the principle of legality (nullum crimen sine lege).''
Significant attention was given to the concept that articles dealing
with crimes should identify ``the essential elements of the offenses
and the minimum qualitative and quantitative requirements.'' The
Committee reported, ``[t]he definition of war crimes should clearly
indicate in what circumstances, by which perpetrators and against which
victims certain acts would constitute such crimes.'' \1\
---------------------------------------------------------------------------
\1\ Official Records of the General Assembly, Fifty-first Session,
Supplement No. 22 (A/51/22) par. 52-53.)
3. The United States believes that elements of the crimes should be
set forth in an annex to the Statute to provide the clarity and
precision required to adequately instruct the Prosecutor and Court, to
ensure respect for the rights of the accused. Current formulations of
crimes in the Zutphen Draft Statute (A/AC.249/1998/L.13) tie norms to
treaty formulations but fail to provide a useful tool to the
practitioner. We believe criminal elements can give teeth to the
---------------------------------------------------------------------------
concept of nullum crimen sine lege.
4. The task of listing elements of offenses is logically
accomplished subsequent to reaching consensus on the list of crimes.
However, at this juncture, such consensus may not be achieved prior to
the Diplomatic Conference. Therefore, the United States has prepared
this present document to serve as a potential template for a parallel
effort in establishing elements for the eventual list of crimes under
the Court's jurisdiction. This effort could facilitate agreement on a
list of crimes by removing fear that ambiguous terminology will be
unfavorably interpreted by a judge. The existence of elements could
provide a level of assurance that will allow consensus to develop for
certain crimes and bolster the credibility of the Court.
5. These elements were drafted for a list of some 52 offenses found
in the Zutphen draft that we believe are fairly widely accepted. They
are consolidated here in a list of 32 substantive offenses. Reference
to the statute's formulation can be found in the ``definition'' section
of each listing in this document. However, this is not meant to be a
statement of support for or against any crime. Likewise, we are not
necessarily bound to the substance of the provisions herein. Our goal
is to facilitate discussion to reach what we believe is an achievable
goal, and one that may allow many more countries eventually to join the
statute.
Annex
Elements of Offenses for the International Criminal Court
A. Genocide
a. Definition: Any of several acts committed with the intent
to destroy in whole or in part, a national, ethnic, racial or
religious group, as such.
b. Elements:
(i) That the accused committed one or more of the
following acts against a person in a national, ethnic,
racial, or religious group, because of that person's
membership in that group:
a. Killing;
b. Causing serious bodily or mental harm;
c. Deliberately inflicting conditions of life
calculated to bring about physical destruction
of the group in whole or in part;
d. Imposing measures intended to prevent
births within the group; or
e. Forcibly transferring children of the
group to another group.
(ii) That when the accused committed such act, the
accused had the intent to take part in a plan to
destroy such group in whole or in part.
B. Crimes Against Humanity
1. General comments
The following comments apply to all of Part B:
(a) A crime against humanity means any of the following acts
when committed as part of a widespread or systematic attack
against a civilian population: extermination, murder, torture,
arbitrary imprisonment, arbitrary deportation, enslavement,
rape and other forms of sexual abuse, including enforced
prostitution, and enforced disappearance of persons.
(b) In contrast to war crimes, crimes against humanity need
not take place during an armed conflict.
(c) All crimes against humanity require deliberate and
purposeful action. Additionally, they share the element of
being crimes constituent within a widespread or systematic
attack. The accused need not be personally responsible for the
widespread or systematic nature of the entire attack.
(d) ``Widespread'' means the attack is massive in nature and
directed against a large number of individuals.
(e) ``Systematic'' means the attack constitutes or is part
of, consistent with or in furtherance of, a policy or concerted
plan, or repeated practice over a period of time.
2. Murder
(a) Definition from Statute. Murder.
(b) Elements:
(i) That the accused intended to kill or cause death
to one or more non-combatant persons;
(ii) That the accused killed or caused the death of
one or more persons;
(iii) That the killing was arbitrary and without
lawful justification; and
(iv) That the killing was carried out as part of a
widespread or systematic attack.
(c) Comment. Since this offense requires deliberate and
purposeful action, the thought of taking life must be
consciously conceived and the act or omission by which it was
taken must be intended.
3. Extermination
(a) Definition: Extermination.
(b) Elements:
(i) That the accused intended to kill or cause to be
killed a group of people, a population, or a large
portion of a population;
(ii) That the accused killed or caused to be killed
one or more people;
(iii) That the killing was deliberate and
premeditated; and
(iv) That the killing was carried out as part of a
widespread or systematic attack.
(c) Comments:
(i) An accused may be found guilty of this offense if
he imposed unlawful living conditions that were
intended to be seriously injurious to health and safety
and that were calculated to bring about death of a
large portion of a population. An intentional failure
to provide essential food, shelter, and medical care
may be sufficient for a conviction. A siege or embargo
conducted according to the laws of armed conflict is
not extermination under this Statute.
(ii) Extermination is distinguished from genocide in
that it does not require targeting the population to be
based solely on nationality, race, ethnicity, or
religion.
4. Enslavement
(a) Definition: Enslavement.
(b) Elements:
(i) That the accused intended to own or cause to be
owned one or more persons and the fruits of their
labour;
(ii) That one or more persons was forced to do labor
without any compensation;
(iii) That the accused exerted ownership rights over
one or more persons so as to deprive them of all
individual rights; and
(iv) That the enslavement was carried out as part of
a widespread or systematic attack.
(c) Comment. The detention or internment of protected
persons, defined in accordance with the Geneva Conventions of
1949, does not constitute enslavement under this Statute.
5. Unlawful Imprisonment
(a) Definition: Imprisonment in flagrant violation of
international law or fundamental legal norms.
(b) Elements:
(i) That the accused intended to imprison or cause to
be imprisoned a group of people, a population, or part
of a population, with the knowledge that such
imprisonment was unlawful;
(ii) That the accused unlawfully imprisoned or caused
to be imprisoned one or more persons;
(iii) That in carrying out the imprisonment, the
accused systematically conducted or caused to be
carried out arrests, detentions, or use of sham legal
process that departed substantially from established
indispensable governing norms; and
(iv) That the imprisonment was carried out as part of
a widespread or systematic attack.
(c) Comments:
(i) Upon a prima facia showing by the defense, the
prosecutor has the burden of proving that imprisonment
was not carried out for some lawful purpose. The
following cases do not constitute arbitrary
imprisonment: the lawful detention of persons after
conviction by a competent court; the lawful arrest or
detention of persons for non-compliance with the lawful
order of a court or in order to secure fulfillment of
any obligation prescribed by law; and the lawful
detention of persons for the prevention of the
spreading of infectious diseases or to otherwise
safeguard health and safety.
(ii) Since this offense requires deliberate and
purposeful action, a good faith belief that the
imprisonment was lawful would undermine the intent
element of the offense.
6. Torture
(a) Definition: Torture.
(b) Elements:
(i) That the accused intended to cause death, serious
injury or severe pain to one or more persons;
(ii) That the accused committed acts resulting in the
infliction of severe physical or mental pain or
suffering upon one or more persons;
(iii) That the accused, at the time of such acts, had
the intent to inflict severe physical or mental pain or
suffering;
(iv) That the acts did not arise from or were not
inherent in or incidental to lawful sanctions; and
(v) That the acts were carried out as part of a
widespread or systematic attack.
7. Deportation
(a) Definition: Deportation or forcible transfer of
population.
(b) Elements:
(i) That the accused intended to wrongfully deport or
transfer a population or group of people from their
lawful place of residence;
(ii) That the accused knew of population or group's
lawful residence in the place from which the accused
expelled them;
(iii) That the accused caused a population or group
to be forcibly moved from their lawful place of
residence without justification based on security
considerations or other imperative reason of public
welfare; and
(iv) That the forcible movement was carried out as
part of a widespread or systematic attack.
(c) Comment. The ``wrongfulness'' of the intent element and
the lack of justification for the movement preclude prosecution
for justified movements such as:
(i) Any movement of a population according to Article
49, of the First Geneva Convention, 1949;
(ii) Any movement in case of an emergency or calamity
threatening the life or well-being of the population;
(iii) Any service of punishment lawfully imposed;
(iv) Any movement required as a necessary adjunct of
a lawful internment.
8. Rape, Sexual Abuse, or Enforced Prostitution.
(a) Definition: Rape or other sexual abuse of comparable
gravity, or enforced prostitution.
(b) Elements:
(i) That the accused intended to attack a person or
persons through acts of a sexual nature;
(ii) That the accused committed or caused to be
committed one of the following acts by force:
a. Rape;
b. Sexual abuse; or
c. Enforced prostitution; and
(iii) That the acts were committed as part of a
widespread or systematic attack.
(c) Comments:
(i) ``Rape'' is the forcible penetration, however
slight, of any part of the body of another by the
accused's sexual organ, or forcible penetration,
however slight, of the anal or genital opening of
another by any object.
(ii) ``Sexual abuse'' is any contact of a sexual
nature by force or threat of force of comparable
gravity to rape. It specifically includes the offenses
of sexual mutilation, enforced pregnancy, and enforced
sterilization.
(iii) ``Sexual mutilation'' is forcibly causing
serious physical injury to the victim's sexual organs.
(iv) ``Enforced prostitution'' is intentional sexual
enslavement wherein the ``forcible'' element need not
be present for each individual sex act, but is
generally present regarding a mandated occupation that
involves acts of a sexual nature related to rape or
sexual abuse.
(v) ``Committed by force'' means the sexual act was
accomplished by force or threat of force against the
victim or a third person. The threat of force can be
either express or implied, and must place the victim in
reasonable fear that he or she or a third person will
be subjected to violence, detention, duress, or
psychological oppression if the victim does not comply.
Evidence of consent may negate the necessary force
element. However, consent may not be inferred if
resistance would have been futile, if the victim was
forcibly detained, where resistance is overcome by
threats of death or great bodily harm, or where the
victim is unable to resist because of the lack of
mental or physical faculties.
9. Persecution
(a) Definition: Persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural
or religious grounds and in connection with other crimes within
the jurisdiction of the Court.
(b) Elements:
(i) That the accused intended to deprive an
identifiable group of persons of life, liberty or
security of person;
(ii) That the accused unlawfully and directly
deprived one or more members of that group of life,
liberty or security or person;
(iii) That the deprivation caused death, serious
physical or mental injury or a complete loss of human
dignity;
(iv) That the deprivation was motivated by the target
group's political, racial, national, ethnic, cultural
or religious affiliation;
(v) That the deprivation was carried out in
conjunction with one or more of the other crimes
against humanity described in this statute and as part
of a widespread or systematic attack.
(c) Comments:
(i) The ``directly'' requirement in the second
element of this offense necessitates that the accused's
actions be the proximate cause of any deprivation.
Crimes of omission such as allowing starvation to take
place would not be crimes against humanity under this
section.
(ii) The intent element of this offense requires both
an intent to deprive and a motivation that is based on
a group's political, racial, national, ethnic, cultural
or religious affiliation.
C. War Crimes
1. General Comments
The following comments apply to all of Part C:
(a) Military necessity. The principle of military necessity
authorizes that use of force, not otherwise specifically
prohibited by the law of armed conflict, required for mission
accomplishment or submission of the enemy.
(b) Collateral damage. Collateral Damage includes that
incidental injury or additional damage that was not intended by
an attack or course of action. It is not unlawful to cause
incidental injury or death to civilians, or collateral damage
to civilian objects, during an attack upon a legitimate
military objective. The principle of proportionality, however,
may prohibit some attacks on legitimate military objectives
that would cause excessive collateral damage or injury.
(c) Proportionality. The principle of proportionality
prohibits attacks which are expected to cause incidental loss
of civilian life, injury to civilians, damage to civilian
objects, or a combination thereof, which would be clearly
excessive in relation to the overall military advantage
anticipated.
(d) Evaluation of intent element in war crimes. In several
cases, there is a particular mens rea requirement for war
crimes which involves a level of knowledge of the commander or
other accused. Decisions by military commanders and others
responsible for planning, deciding upon or executing attacks
can only be judged on the basis of their assessment of the
information reasonably available to them under the
circumstances at the relevant time.
2. Willful Killing
(a) Definition: Willful killing; killing or wounding a
combatant who, having laid down his arms or having no longer a
means of defense, has surrendered at discretion; Violence to
life and person, in particular murder of all kinds.
(b) Elements:
(i) That the alleged offense took place during the
course of an international armed conflict;
(ii) That a certain person, protected under one or
more of the Geneva Conventions of 1949 is dead;
(iii) That at the time of the act or omission, the
accused knew or should have known that the victim was
protected under one or more of the Geneva Conventions
of 1949;
(iv) That the death resulted from the act or omission
of the accused; and
(v) That, at the time of the killing, the accused had
the intent to kill or inflict great bodily harm upon
the victim or another similarly protected person.
(c) Comments:
(i) This offense requires deliberate and purposeful
action. The act or omission must have been accompanied
by an intent to kill or cause great bodily harm,
accompanied by knowledge of the intended victim's
status.
(ii) Willful killing encompasses faults of omission.
The omission must have been intended to cause death or
great bodily harm. Again, if death is the foreseeable
consequence of such omission, intent can be inferred.
Examples include giving instructions for food rations
of prisoners of war to be reduced to such a point that
malnutrition causes death and allowing wounded persons
to die for want of reasonably available medical care.
3. Torture
(a) Definition: Torture; violence to life and person, in
particular cruel treatment and torture; Willfully causing great
suffering, or serious injury to body or health.
(b) Elements:
(i) That the alleged offense took place during the
course of an armed conflict;
(ii) That the accused committed acts resulting in the
infliction of severe physical or mental pain or
suffering upon one or more persons;
(iii) That the accused, at the time of such acts, had
the intent to inflict severe physical or mental pain or
suffering;
(iv) That the acts did not arise from or was not
inherent in or incidental to lawful sanctions.
4. Inhuman treatment
(a) Definition: Willfully causing great suffering or serious
injury to body or health; violence to life and person, in
particular mutilation; inhuman treatment, including biological
experimentation; subjecting persons who are in the power of an
adverse Party to physical mutilation or to medical or
scientific experiments of any kind that are neither justified
by the medical, dental, or hospital treatment of the person
concerned nor carried out in his interest, and that causes
death to or seriously endangers the health of such person or
persons; committing outrages upon personal dignity, in
particular humiliating and degrading treatment.
(b) Elements:
(i) That the alleged offense took place during the
course of an armed conflict;
(ii) That the accused committed an act against a
certain person or subjected that person to a particular
medical or biological procedure or treatment;
(iii) (for inhuman treatment) That the act was
intended to, and did in fact, subject the victim to
mutilation, severe indignities, pain, or extreme
suffering grossly out of proportion to the treatment
expected of one human being from another; or
(iii) (for biological experimentation) That the
intent of the procedure or treatment was non-
therapeutic and was neither justified by medical reason
nor carried out in the victim's interest; and
(iv) (for both inhuman treatment and biological
experimentation) That the act or treatment caused death
or serious injury to the mental or physical health of
the victim.
5. Extensive destruction or wrongful appropriation
(a) Definition: Extensive destruction and appropriation of
property, not justified by military necessity and carried out
unlawfully and wantonly; Destroying or seizing the property of
an adversary unless such destruction or seizure be imperatively
demanded by the necessitates of the conflict; Pillaging a town
or place, even when taken by assault.
(b) Elements:
(i) That the alleged offense took place during the
course of an armed conflict;
(ii) That the accused willfully or recklessly
destroyed, damaged, or appropriated certain real or
personal property; and
(iii) That the amount of destruction, damage, or
wrongful appropriation was clearly excessive, not
justified by military necessity, and carried out
wantonly.
(c) Comments:
(i) The wantonness requirement takes this offense
beyond a mere intentional destruction or appropriation
in excess of that required by military necessity and
necessitates proof of a significantly heightened malice
or arbitrary disregard for the rights of the victims.
(ii) Causing collateral damage cannot constitute this
offense. Likewise, destruction or appropriation
justified by military necessity is not unlawful.
(iii) Wrongful Appropriation means taking property
from its lawful owner, or any other person with a
greater possessory interest than the accused, with the
intent to permanently deprive.
6. Compelling hostile acts
(a) Definition: Compelling a prisoner of war or other
protected person to serve in the forces of a hostile power;
compelling the nationals of the hostile party to take part in
the operations of war directed against their own country, even
if they were in the belligerent's service before the
commencement of the war.
(b) Elements:
(i) That the alleged offense took place during the
course of an international armed conflict;
(ii) That the accused coerced a certain person, by
act or threat, to engage in hostile acts against that
person's own country; and
(iii) That the person coerced was a prisoner of war
or a civilian protected by one or more of the Geneva
Conventions of 1949.
(c) Comment: Implicit in the second element is the fact that
the acts compelled do not constitute lawful prisoner of war or
civilian labor as defined by articles 49-57 of (Geneva)
Convention (III) Relative to the Treatment of Prisoners of War,
1949 and articles 51 and 52 of (Geneva) Convention (IV)
Relative to the Protection of Civilian Persons in Time of War,
1949.
7. Denying judicial guarantees
(a) Definition: Willfully depriving a prisoner of war or
other protected person of the rights of a fair and regular
trial; declaring abolished, suspended or inadmissible in a
court of law the rights and actions of the nationals of the
hostile party; the passing of sentences and the carrying out of
executions without previous judgment pronounced by a regularly
constituted court, affording all judicial guarantees which are
generally recognized as indispensable.
(b) Elements:
(i) That the alleged offense took place during the
course of an armed conflict;
(ii) That the accused allowed judicial proceedings to
be concluded which resulted in some punishment of a
certain prisoner of war or civilian within the
accused's control;
(iii) That the accused intended to deprive the person
of a fair and regular trial; and
(iv) (for international armed conflicts) That such
act was performed without according the person a fair
and regular trial as defined by the Third and Fourth
Geneva Conventions of 1949; or
(iv) (for non-international armed conflicts) That
such act was performed without judgment by a regularly
constituted court or without the most manifestly
indispensable judicial guarantees.
(c) Comment: For international armed conflicts, the substance
of this offense is the violation of one or more of the penal
provisions of articles 82-88; 99-108 of (Geneva) Convention
(III) Relative to the Treatment of Prisoners of War, 1949, and
articles 64-78 of (Geneva) Convention (IV) Relative to the
Protection of Civilian Persons in Time of War, 1949. For non-
international armed conflict, the elements of the offense are
only met when the combined violations of penal provisions rise
to the level of indispensable judicial guarantees requisite for
the most fundamental judicial norms, as provided in Common
Article 3(d) of the Geneva Conventions of 1949.
8. Deportation
(a) Definition: Unlawful deportation, transfer, or unlawful
confinement; Ordering the displacement of a civilian population
other than that represented by the forces of the accused.
(b) Elements:
(i) That the alleged offense took place during the
course of an international armed conflict;
(ii) That the accused held, confined, or otherwise
restrained the liberty of a person or expelled a person
from the territory in which that person resides for
purposes other than lawful internment;
(iii) That the person was a civilian protected under
one or more of the Geneva Conventions of 1949;
(iv) That the accused knew of the person's status as
a lawful resident of the territory of the State; and
(v) (for cases of deportation or transfer) That the
deportation or transfer was not conducted for security
purposes or any other lawful reason; or
(vi) (for cases of unlawful confinement) that the
restraint was not undertaken for security purposes and
was effected without affording the procedural and
substantive protections prescribed in the Fourth Geneva
Convention of 1949.
(c) Comment: Occupying powers are authorized, for reasons of
security, to intern civilians in some situations in accordance
with Articles 78-104 of (Geneva) Convention (IV) Relative to
the Protection of Civilian Persons in Time of War of 1949. It
is the prosecutor's burden to prove that internment of
civilians was not undertaken for security purposes once a prima
facia case is made for that defense.
9. Taking hostages
(a) Definition: Taking of hostages.
(b) Elements:
(i) That the alleged offense took place during the
course of an armed conflict;
(ii) That the accused seized, detained or otherwise
held hostage a certain noncombatant person;
(iii) That the accused threatened to injure, kill, or
continue to detain such person; and,
(iv) That the act was performed with the intent to
compel a state, an international intergovernmental
organization, a natural or juridical person, or a group
of persons to do or refrain from doing any act as an
explicit or implicit condition for the safe release of
the person.
(c) Comment: This offense is distinguished from unlawful
confinement by the additional element that the accused
threatened to prolong the hostage's detention or to put him or
her to death in exchange for some act by a third party. It is
not constrained by the need for the victim to be a protected
person or for the offense to take place during international
armed conflict.
10. Attacking civilians
(a) Definition: Intentionally directing attacks against the
civilian population as such, as well as individual civilians
not taking direct part in hostilities.
(b) Elements:
(i) That the alleged offense took place during the
course of an armed conflict;
(ii) That the accused intentionally directed an
attack against one or more civilians;
(iii) That the accused intended the object of the
attack to be one or more civilians;
(iv) That the civilian or civilians against whom the
attack was directed were not taking part in hostilities
or located in proximity to, or within, a lawful
military objective at the time the attack was
initiated; and
(v) That the attack resulted in death or harm to one
or more civilians.
(c) Comments:
(i) Since this offense requires deliberate and
purposeful action, causing incidental injury or
collateral damage does not constitute attacking
civilians.
(ii) Military objective. Military objectives are
those objects which by their nature, location, purpose
or use make an effective contribution to military
action and whose total or partial destruction, capture
or neutralization, in the circumstances ruling at the
time, offers a definite military advantage.
11. Causing disproportionate damage
(a) Definition: Intentionally launching an attack in the
knowledge that such attack will cause incidental loss of life
or injury to civilians or damage to civilian objects or
widespread, long-term, and severe damage to the natural
environment that would be excessive in relation to the concrete
and direct overall military advantage anticipated.
(b) Elements:
(i) That the alleged offense took place during the
course of an international armed conflict;
(ii) That the accused launched an attack
(iii) That the attack resulted in collateral damage
or incidental injury;
(iv) That the collateral damage or incidental injury
was manifestly excessive in relation to the overall
military advantage anticipated;
(v) That the accused knew that such collateral injury
or damage would be disproportionate to the military
advantage gained.
(c) Comments:
(i) The knowledge element is key to proportionality
analysis for this offense. Since the evaluation is
necessarily subjective, the proportionality knowledge
threshold must be high and analysis must be based on
the perspective of the accused prior to the attack.
(ii) Military advantage includes all benefits ranging
from tactical goals to overall campaign objectives.
12. Attacking an undefended locality
(a) Definition: Attacking or bombarding, by whatever means,
towns, villages, dwellings or buildings that are undefended.
(b) Elements:
(i) That the alleged offense took place during the
course of an international armed conflict;
(ii) That the accused launched an attack against a
certain undefended locality;
(iii) That the attack was not justified by military
necessity; and
(iv) That at the time of the offense, the accused
knew that the object of the attack was an undefended
locality.
(c) Comments:
An ``undefended locality'' is any inhabited place near or in a zone
where armed forces are in contact which is open for occupation by an
adverse Party and has been declared undefended by appropriate
authorities of a party to the conflict. This declaration shall be
addressed to the adverse party and such a locality shall fulfill the
following conditions:
(a) All combatants, as well as mobile weapons and mobile
military equipment must have been evacuated;
(b) No hostile use shall be made of fixed military
installations or establishments;
(c) No acts of hostility shall be committed by the
authorities or by the population; and
(d) No activities in support of military operations shall be
undertaken.
13. Improper use of a flag, symbol or uniform
(a) Definition: Making improper use of a flag of truce, of
the flag or of the military insignia and uniform of the enemy
or of the United Nations, as well as of the distinctive emblems
of the Geneva Conventions, resulting in death or serious
personal injury; Killing or wounding treacherously individuals
belonging to the hostile nation or army.
(b) Elements:
(i) That the alleged offense took place during the
course of an international armed conflict;
(ii) That the accused wrongfully used a flag of
truce, the flag of the enemy or of the United Nations,
or the distinctive emblems of the Geneva Conventions;
or wrongfully used the military insignia and uniform of
the enemy or of the United Nations while engaging in
attacks.
(iii) That the wrongful use of one or more of these
items was intended to cause death, serious personal
injury, or capture; and
(iv) That death, serious personal injury, or capture
occurred as a direct result of the accused's actions or
wrongful misrepresentations.
14. Attacking protected objects
(a) Definition: Intentionally directing attacks against
buildings dedicated to religion, art, science or charitable
purposes, historic monuments, hospitals and places where the
sick and wounded are collected, provided they are not being
used at the time for military purposes;
(b) Elements:
(i) That the alleged offense took place during the
course of an armed conflict;
(ii) That the accused directed an attack against one
or more of the following: a building dedicated to
religion, art, science or charitable purposes, an
historic monument, or a hospital or place where the
sick and wounded are collected;
(iii) That the accused specifically intended such
attack and its natural consequences with respect to the
object of the attack;
(iv) That the object of attack was not being used for
military purposes at the time of the attack; and
(v) That the accused knew the object of attack was
not being used for military purposes at the time of the
attack.
15. Perfidy
(a) Definition: Killing or wounding treacherously individuals
belonging to the hostile nation or army; killing or wounding
treacherously a combatant adversary.
(b) Elements:
(i) That the alleged offense took place during the
course of an armed conflict;
(ii) That the accused intended to kill or wound a
combatant adversary;
(iii) That the accused committed an act resulting in
the death or wounding of a combatant adversary;
(iv) That the accused intended the death or wounding
to be accomplished by securing the confidence of a
military adversary to believe himself to be entitled
to, or obliged to accord, protection under the law of
war, with intent to betray that confidence; and
(v) That the death or wounding occurred as a direct
result of the accused's wrongful misrepresentations.
16. Denying quarter
(a) Definition: Declaring that no quarter will be given.
(b) Elements:
(i) That the alleged offense took place during the
course of an armed conflict;
(ii) That the accused was a person in command or had
authority over certain forces;
(iii) That the accused declared to those subordinate
forces that no quarter be given the enemy;
(iv) That in so declaring, the accused intended that
his or her subordinates refuse quarter to the enemy;
and
(v) That the refusal to accept surrender was not
justified by military necessity.
(c) Comment:
(i) Denial of quarter is the refusal to accept an
enemy's surrender when it is reasonable to do so.
(ii) Bringing a preponderance of force to bear
against enemy military objectives or enemy personnel
does not constitute denial of quarter. Neither is a
commander obligated to offer an opportunity to
surrender before carrying out an attack, since surprise
or speed may be critical to the success of the attack.
17. Sexual Offenses
(a) Definition: Committing rape, sexual slavery, enforced
prostitution, enforced pregnancy, enforced sterilization, and
any other form of sexual violence also constituting a grave
breach of the Geneva Conventions.
(b) Elements:
(i) That the alleged offense took place during the
course of an armed conflict;
(ii) That the accused intended to commit a certain
sexual act upon a certain person or forced that person
to engage in a certain sexual act;
(iii) That the accused committed or caused to be
committed one of the following acts by force:
a. rape;
b. sexual abuse; or
c. enforced prostitution; and
(iv) That the acts were committed as part of a
widespread or systematic attack.
(c) Comments:
(i) ``Rape'' is the forcible penetration, however
slight, of any part of the body of another by the
accused's sexual organ, or forcible penetration,
however slight, of the anal or genital opening of
another by any object.
(ii) ``Sexual abuse'' is any contact of a sexual
nature by force or threat of force of comparable
gravity to rape. It specifically includes the offenses
of sexual mutilation, enforced pregnancy, and enforced
sterilization.
(iii) ``Sexual mutilation'' is forcibly causing
serious physical injury to the victim's sexual organs.
(iv) ``Enforced prostitution'' is intentional sexual
enslavement wherein the ``forcible'' element need not
be present for each individual sex act, but is
generally present regarding a mandated occupation that
involves acts of a sexual nature related to rape or
sexual abuse.
(v) ``Committed by force'' means the sexual act was
accomplished by force or threat of force against the
victim or a third person. The threat of force can be
either express or implied, and must place the victim in
reasonable fear that he or she or a third person will
be subjected to violence, detention, duress, or
psychological oppression if the victim does not comply.
Evidence of consent may negate the necessary force
element. However, consent may not be inferred if
resistance would have been futile, if the victim was
forcibly detained, where resistance is overcome by
threats of death or great bodily harm, or where the
victim is unable to resist because of the lack of
mental or physical faculties.
18. Immunizing an area with protected persons
(a) Definition: Utilizing the presence of a civilian or other
protected persons to render certain points, areas or military
forces immune from military operations.
(b) Elements:
(i) That the alleged offense took place during the
course of an international armed conflict;
(ii) That at the time of the offense, the accused was
defending a military objective from likely attack;
(iii) That the accused either caused the military
objective, civilian personnel or other persons
protected under one of the Geneva Conventions of 1949
to be moved so that the military objective and the
civilian personnel, or other protected persons would be
either located together or otherwise positioned so that
an attack against the military objective would
seriously endanger the civilian personnel or other
protected persons; and
(iv) That the accused's actions were intended to
shield military objectives from attack, to shield,
favor or impede military operations, or to otherwise
undermine the adversary's will to attack or continue an
attack.
19. Attacking objects displaying a protective emblem
(a) Definition: Intentionally directing attacks against
buildings, material, medical units and transport, and personnel
using, in conformity with international law, the distinctive
emblems of the Geneva Conventions;
(b) Elements:
(i) That the alleged offense took place during the
course of an armed conflict;
(ii) That the accused directed an attack against a
building, material, a medical unit or transport, or
person that was properly displaying a distinctive
protective emblem of the Geneva Conventions;
(iii) That the accused knew the object of attack was
properly displaying a distinctive protective emblem of
the Geneva Conventions;
(iv) That the object of attack was not being used for
a military purpose at the time of the attack; and
(v) That the accused did not believe that the object
of attack was being used for a military purpose at the
time of the attack.
20. Starvation
(a) Definition: Intentionally using starvation of civilians
as method of warfare by depriving them of objects indispensable
to their survival, including willfully impeding relief supplies
as provided for under the Geneva Conventions;
(b) Elements:
(i) That the alleged offense took place during the
course of an international armed conflict;
(ii) That the accused engaged in an act or omission
calculated to attack, destroy, remove, or render
useless objects indispensable to the nourishment and
survival of the civilian population;
(iii) That the accused's act or omission was intended
for the specific purpose of denying nourishment
necessary for the survival of the civilian population
of the adverse party; and
(iv) That as a result of the accused's acts, one or
more persons died from starvation.
21. Using illegal weapons
(a) Definition: Employing the following weapons, projectiles
and material and methods of warfare which are calculated to
cause superfluous injury or unnecessary suffering: (i) poison
or poisoned weapons, (ii) asphyxiating, poisonous or other
gases, and all analogous liquids, materials or devices, (iii)
bullets which expand or flatten easily in the human body, such
as bullets with a hard envelope which does not entirely cover
the core or is pierced with incisions, (iv) bacteriological
(biological) agents or toxins for hostile purposes or in armed
conflict, (v) chemical weapons as defined in and prohibited by
the 1993 Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and On
Their Destruction.
(b) Elements:
(i) That the alleged offense took place during the
course of an international armed conflict;
(ii) That the accused knowingly used one of the
following weapons against an adversary in that armed
conflict:
a. Poison or poisoned weapons;
b. Asphyxiating, poisonous or other gases,
and all analogous liquids, materials or
devices;
c. Bullets which expand or flatten easily in
the human body;
d. Bacteriological agents or toxins;
e. Chemical weapons; and
(iii) That at the time of the offense, the accused
knew the weapon was banned under international law.
(c) Comments:
(i) ``Chemical weapons'' means chemical weapons as
defined in and prohibited by the 1993 Convention on the
Prohibition of the Development, Production, Stockpiling
and Use of Chemical Weapons and On Their Destruction.
It does not include Riot Control Agents as they are
defined in that Convention.
(ii) Bacteriological agents or toxins means any
microbial or other biological agent or toxin, whatever
their origin or method of production.
__________
Reference Paper Submitted by the United States of America on Rules of
Evidence of the International Criminal Court
A/AC.249/1998/DP.15
3 April 1998
Original: English
Preparatory Committee on the Establishment of an International Criminal
Court
16 March-3 April 1998.
Reference Paper Submitted by the United States
Rules of Evidence of the International Criminal Court
The attached reference paper is submitted to the Preparatory
Committee as an illustration of how rules of evidence, contained within
the Court's rules promulgated under Article 43 of the Statute, might
appear.
Article 62 of the draft Statute addresses the law of evidence to be
applied by the Court. Following extended debate on Article 62 during
the past week, it now appears that many of the criteria for determining
the relevance and admissibility of evidence will not be set forth in
the Statute, but instead will be deferred to the rules. This Paper is
intended to suggest potential structure and content of the rules of
evidence.
A number of the draft provisions are derived, with appropriate
modifications, from the Rules of Procedure and Evidence of the Tribunal
for the Former Yugoslavia (``ICTY rules''), and the Draft Set of Rules
of Procedure and Evidence for the International Criminal Court prepared
by the delegations of Australia and the Netherlands (A/AC.249/L.2)
(``A/NL rules''), and these sources are noted. In addition, we have
included explanatory notes where we thought it appropriate to highlight
significant issues that will need to be considered in preparing the
rules.
______
Rules of Evidence
(see Statute Article 62)
Rule 1: General Provisions
(derived from ICTY rule 89; A/NL rule 105)
(1) The rules of evidence set forth in this Section, together with
Article 62 of the Statute, shall govern the proceedings before a
Chamber.
(2) The rules of evidence set forth in this Section shall be
interpreted to ensure fairness to the parties and to the end that the
truth may be ascertained and cases justly decided.
(3) Where not otherwise provided for in this Section, a Chamber
shall apply rules of evidence that will best favor a fair determination
of the matter before it.
(4) A Chamber may admit any relevant evidence that it deems to be
reliable and have probative value. Irrelevant evidence shall not be
admitted.
(5) Relevant evidence may nonetheless be excluded for good cause,
including that it would constitute a needless presentation of
cumulative evidence, or result in undue delay.
(6) A Chamber may exclude evidence if its probative value is
substantially outweighed by the need to ensure a fair trial.
(7) A Chamber may request verification of the authenticity of
evidence.
Rule 2: Testimony of Witnesses
(derived from ICTY rule 90; A/NL rule 106)
(1) Before testifying, every witness shall make the following
solemn declaration: ``I solemnly declare that I will speak the truth,
the whole truth and nothing but the truth.''
[N.B.: This rule governs a solemn declaration made by a
witness, other than the accused. A number of delegations
expressed support for a provision ensuring that an accused may
make an unsworn statement at trial. The above rule does not
seek to address this issue, which would have to be treated in
the Statute or separately in the Rules.]
(2) A child who, in the opinion of the Chamber, does not understand
the nature of a solemn declaration, may testify without that formality,
if the Chamber is of the opinion that the child is sufficiently mature
to be able to report the facts of which he has knowledge and that he
understands the duty to tell the truth. A judgement cannot be based on
such testimony alone.
(3) If scientific, technical, or other specialized knowledge will
assist the Chamber to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form of
an opinion or otherwise.
(4) Other than an expert or an investigator responsible for a
party's investigation, a witness who has not yet testified shall not be
present when the testimony of another witness is given. However, a
witness who has heard the testimony of another witness shall not for
that reason alone be disqualified from testifying.
(5) A witness may decline to make any statement that might tend to
incriminate him. The Chamber may, however, compel the witness to answer
the question. Testimony compelled in this way shall not be used as
evidence in a subsequent prosecution against the witness for any
offence other than [contempt or] perjury, and the Chamber may order
such protective measures as may be necessary to effect this result.
Rule 3: Live Testimony By Means of Video or Audio Link
(1)Witnesses shall, in principle, be heard directly by the Chambers
unless a Chamber permits otherwise under this Rule of Rule 4.
(2) In the interests of justice and to facilitate the orderly and
efficient progression of the proceedings, a Chamber may permit an out-
of-court witness to testify, notwithstanding his physical absence, by
live audio link, video link, or other technology.
(3) The examination of the out-of-court witness shall be conducted
in accordance with the provisions of the rules governing examination of
witnesses at trial. If the State in which the out-of-court witness is
located restricts the procedures under which the testimony is given,
the testimony shall be admitted only if the procedures used do not
prejudice the rights of the parties and are otherwise in substantial
conformity with the Statute and Rules.
Rule 4: Recorded Testimony
(derived from ICTY rule 71)
(1) In exceptional circumstances and in the interests of justice, a
Chamber may order that testimony be taken and recorded, by audiotape,
videotape, transcript, or other similar means in advance of trial. The
recorded testimony may be admitted at trial if, for good reason, the
witness cannot be present at the time of trial.
(2) The party seeking to take and preserve testimony shall apply to
the Chamber in writing and shall state the name and whereabouts of the
person whose recorded testimony is sought, the date and place at which
the recorded testimony is to be taken, the matters on which the person
is to be examined, and the exceptional circumstances involved.
(3) If the Chamber grants the application, the party at whose
request the recorded testimony is to be taken shall give reasonable
notice to the other party, who shall have the opportunity to cross-
examine the person to be examined. The parties shall attend the
examination, or participate by means of audio link, video link, or
other similar technology.
(4) The Chamber may appoint a judge to preside over the
examination, which shall be conducted pursuant to the Rules governing
testimony of a witness at trial. If the State in which the witness is
located restricts the procedures under which the examination proceeds,
the testimony shall be admitted only if the procedures used do not
prejudice the rights of the parties and are otherwise in substantial
conformity with the Rules.
(5) When recorded testimony is taken at the request of the
Prosecutor or an indigent accused, the Chamber may order that the Court
will bear the expense involved.
Rule 5: Written and Oral Statements
(1) Where a witness is unavailable or where the interests of
justice otherwise so require, the Chamber may admit prior written or
oral witness statements in lieu of testimony. Such statements shall be
given such weight as deemed appropriate by the Chamber. A judgement
cannot be based on such testimony alone.
(2) When a written or recorded statement or part thereof is
introduced by a party, the Chamber may consider any other part or any
other written or recorded statement of the witness which in fairness
also ought to be considered.
Rule 6: Documentary and Other Evidence
(1) The Chamber may admit documents, including records reflecting
official acts or regularly conducted activity, so long as the records
have substantial guarantees of trustworthiness.
(2) The Chamber may admit summaries, charts, or other demonstrative
evidence if such evidence will assist in clarifying the issues under
consideration.
Rule 7: Confessions
(derived from ICTY rule 92; A/NL rule 108)
(1) A confession or admission by the accused given during
questioning by the Prosecutor and recorded pursuant to Rule ----, \1\
shall be presumed to have been given voluntarily unless the contrary is
proved.
---------------------------------------------------------------------------
\1\ The Rules of Procedure could require the Prosecutor to record
statements of the accused, in the same manner as ICTY rule 43. If such
a rule is promulgated, a presumption in favor of voluntariness could be
provided for as above.
(2) A confession or admission by the accused that has not been
recorded pursuant to Rule ---- shall not be excluded if the
circumstances establish that it was voluntarily given.
Rule 8: Evidence of Consistent Pattern of Conduct
(derived from ICTY rule 93; A/NL rule 108)
Evidence of a consistent pattern of conduct by the accused may be
admitted in the interests of justice.
[N.B. Other provisions in the Statute or Rules will provide
for disclosure of such evidence prior to trial.]
Rule 9: Evidence in Cases of Sexual Assault
(derived from ICTY rule 96; A/NL rule 113)
In cases of sexual assault:
(1) No corroboration of the victim's testimony shall be required.
(2) Past sexual conduct of the victim shall not be admitted in
evidence, except where exclusion would violate the fundamental rights
of the accused. Before admitting evidence of a victim's past sexual
conduct, the Chamber shall satisfy itself through an offer of proof
made in camera that the evidence meets the requirements of this
paragraph.
(3) Sexual conduct of the accused may be admitted [if relevant to
show motive, opportunity, intent, identity, plan or absence of
mistake].
[N.B.: ICTY Rule 96 (ii) permits consent as a defense in
certain limited circumstances. Consideration of consent as a
defense may more properly be treated in relation to defining
crimes of sexual violence or general principles of criminal
law.]
Rule 10: Lawyer-Client Privilege
(derived from ICTY rule 97; A/NL rule 115)
All communications between lawyer and client shall be regarded as
privileged and consequently not subject to disclosure, unless:
(a) the client consents to such disclosure; or
(b) the client disclosed the content of the communication to
a third party.
Rule 11: Agreements as to Admission
(derived from A/NL rule 111)
(1) The defence and the prosecution may agree that a fact, the
contents of a document, or the expected testimony of a witness should
be considered as evidence by the Chamber.
(2) In the interest of justice, the Chamber may decline to accept
an agreement under paragraph (1).
(3) After an agreement has been accepted, a party may withdraw from
it only if permitted to do so by the Chamber.
(4) An agreement between the defence and prosecution that a
witness, if called to testify, would give certain testimony or that a
document, if offered in evidence, has certain contents does not
constitute an admission of the truth of the testimony or the contents
of the document.
__________
Statement of the United States Delegation on ``Article 11 bis--
Preliminary Rulings Regarding Admissibility''
April 3, 1998
Statement of the United States Delegation
on
``Article 11 bis--Preliminary Rulings Regarding Admissibility''
(A/AC.249/19981WG.3/DP.2)
The United States has long believed that a core purpose of an
international criminal court must be to advance a simple norm:
countries should bring to justice those who commit genocide, crimes
against humanity, and war crimes, or turn suspects over to someone who
will, such as an impartial and effective international court. The
permanent court must ensure that national legal systems with the will
and ability to prosecute persons who commit these crimes are permitted
to do so, while guaranteeing that perpetrators of these crimes acting
in countries without competent, functioning legal systems nonetheless
will be held accountable. Where national legal systems can assume their
responsibilities, then the permanent court should not be the court of
first resort.
In that spirit, on March 25, 1998, the U.S. delegation submitted a
proposal to strengthen the principle of complementarity in the draft
statute of the proposed international criminal court. Although, we join
other delegations in strongly supporting the provisions of Articles 11
and 12 of the Zutphen draft, and indeed actively participated in the
drafting of them last year, it has never been clear how the principles
of Article 11 would be effected when matters are first referred to the
court. It has become evident in recent months that many delegations
support a procedure whereby overall matters are referred to the court
following which the prosecutor would investigate and seek indictments
against individual suspects. If that becomes the adopted procedure,
then we believe that the principle of complementarity should be
recognized at the outset of any referral of a matter to the court in
addition to the investigation of individual cases by the prosecutor.
The U.S proposal states that when a matter has been referred to the
court, the Prosecutor would make such referral known by public
announcement and by notification to all States Parties. Public
acknowledgment of a referral of large-scale ``matters'', as opposed to
the filing of a complaint against in individual suspect, should not be
objectionable. Investigations by the Prosecutor of individual suspects
can, of course, remain confidential and need not be publicized. When
the referral is made known, a State may step forward and inform the
Prosecutor that it is undertaking the responsibility to investigate its
own citizens or others within its jurisdiction who may have committed
crimes in the referred matter.
At this stage the Prosecutor has two choices. The Prosecutor can
defer to the national investigation because of his or her belief that
the State has the ability and will to undertake its responsibility. We
believe that when the Prosecutor has made a decision to defer, there
should be some reasonable period--we have suggested six months or a
year--before the decision is revisited.
Alternatively, the Prosecutor can determine at the outset that the
State is unwilling or unable genuinely to carry out the investigation
and prosecutions; in other words, the criteria for admissibility appear
to apply. In that event, the Prosecutor would seek confirmation from
the Pre-Trial Chamber and, if the judges concur, the Prosecutor would
launch the investigation.
We have provided that the Pre-Trial Chamber's preliminary ruling
could be appealed to the Appeals Chamber, where a super-majority of the
judges of the Appeals Chamber would need to approve the Prosecutor's
commencement of investigation.
The Prosecutor will need the cooperation of States in order to
investigate alleged crimes. We believe that our proposal reflects
reality, namely, that a State that is willing and capable to
investigate such crimes should not be burdened with, and indeed may
resist, cooperation with an ICC investigation not merited under the
principles of complementarity. On the other hand, States that have no
intention of investigating the crimes or cooperating with the
Prosecutor will proceed with their own agenda regardless of the court's
orders for access to witnesses and evidence.
The U.S. delegation has begun to receive comment on our proposal.
We appreciate these comments and look forward to further consultations
with delegations and the non-governmental community. For example, we
are considering several delegations' suggestion that there should be an
exception to the period of deferral when the circumstances which led
the Prosecutor to defer have changed significantly. Also, we understand
the concerns raised that no procedure should be adopted that would
encourage the destruction of evidence or permit a State to thwart the
pursuit of justice. Further, we accept the obvious right of appeal from
the Pre-Trial Chamber by either party. We would emphasize that our
proposal does not contravene the principle that a person or State may
challenge admissibility only once. Article 12(3) concerns challenging
admissibility of an individual case regarding an individual suspect,
and we strongly support it. Our proposal relates to the overall matter
that has been referred to the court at a much earlier stage, when no
particular suspects have been identified and one is dealing with a
State's right to launch full-scale investigations.
This proposal is extremely important to the United States
Government. In our view, it takes account of our interest in protecting
against unwarranted investigation and prosecution of persons who are
being investigated by their own national authorities, while ensuring
the prosecution of those who should be brought before an international
court. Our proposal also seeks to honor a fundamental tenet of the
principle of complementarity, namely, that at the outset of a referral
of an overall matter, a State can assert its responsibility to enforce
the law itself provided it is capable and willing to do so.
______
Proposal Submitted by the United States of America on Article 11 bis.--
Preliminary Rulings Regarding Admissibility
A/AC.249/1998/WG.3/DP.2
25 March 1998
Original: English
Preparatory Committee on the Establishment of an International Criminal
Court
16 March-3 April 1998
Working Group on Complementarity and Trigger Mechanism
Proposal Submitted by the United States of America
Article 11 bis. Preliminary rulings regarding admissibility
1. When a matter has been referred to the Court pursuant to article
6 and the Prosecutor has determined that there would be a sufficient
basis to commence an investigation of the matter, the Prosecutor shall
make such referral known by public announcement and by notification to
all States Parties.
2. Within [ ] days of the public announcement of such referral, a
State may inform the Court that it is investigating its nationals or
others within its jurisdiction with respect to criminal acts that
allegedly were committed in the context of the matter referred to the
Court and that may constitute offences described in article 5. At the
request of that State, the Prosecutor shall defer to the State's
investigation of such persons unless the Prosecutor determines that
there has been a total or partial collapse or unavailability of the
State's national judicial system, or the State is unwilling or unable
genuinely to carry out the investigation and prosecutions. Before the
Prosecutor may commence investigation of such persons, the Prosecutor
must obtain a preliminary ruling from a Pre-Trial Chamber confirming
the Prosecutor's determination. The Prosecutor's deferral to the
State's investigation shall be open for review by the Prosecutor [six
months] [one year] after the date of deferral.
3. A preliminary ruling of the Pre-Trial Chamber confirming the
Prosecutor's determination may be appealed to the Appeals Chamber by
the State concerned. If the preliminary ruling is appealed by the
State, [two thirds] [all] of the judges of the Appeals Chamber must
confirm that ruling before the Prosecutor may commence the
investigation and seek indictments.
4. When the Prosecutor has deferred an investigation pursuant to
section 2, the Prosecutor may request that the State concerned report
periodically on the progress of its investigations and any subsequent
prosecutions. States Parties shall respond to such requests without
undue delay.
5. That a State has challenged a preliminary ruling under the
present article shall not prejudice its right to challenge
admissibility of a case under article 12 \1\ [or to withhold its
consent to the exercise of jurisdiction under article 7].
---------------------------------------------------------------------------
\1\ Article 12(4) should be revised to require a vote by two thirds
of the judges of the Appeals Chamber to decide that a case is
admissible.
---------------------------------------------------------------------------
__________
Statement of the United States Delegation Expressing Concerns Regarding
the Proposal for a Proprio Motu Prosecutor
The Concerns of the United States Regarding the Proposal for a Proprio
Motu Prosecutor
June 22, 1998
The United States strongly supports an effective ICC Prosecutor who
will be able to exercise independent judgment and who will be perceived
as impartial and fair. The Prosecutor must have independent discretion
to decide, free of any outside influence and based on the evidence
collected, what charges to file against which people.
The United States is strongly of the view that the principles of
prosecutorial independence and effectiveness are not only fully
consistent with, but ultimately will be best served by, the structure
proposed by the ICC under which the Prosecutor's authority to embark on
an investigation is triggered by a referral by a State or the Security
Council. It is our firm view that the proposal for a proprio motu
prosecutor--one tasked with responding to any and all indications that
a crime within the potential jurisdiction of the Court may have been
committed--not only offers little by way of advancing the mandate of
the Court and the principles of prosecutorial independence and
effectiveness, but also will make much more difficult the Prosecutor's
central task of thoroughly and fairly investigating the most egregious
of crimes.
As an initial matter, we reiterate the longstanding position of the
United States that no one, not the Security Council, not States, not
any entity nor individual, should be able to control the direction of
the Prosecutor's investigation by referring a particular case against a
particular person. That is why the United States has and will continue
to press for the formula that referrals from States and the Security
Council must be referrals of overall situations. It must lie with the
Prosecutor to determine whether a crime has been committed and by whom;
the referral mechanism cannot purport to limit the Prosecutor's
decisions on such matters.
Moreover, our thinking about the appropriate role of the Prosecutor
and our concern about the proprio motu proposal are very much guided by
the overriding principle set forth in the preamble that the mandate of
the ICC is ``to exercise jurisdiction only over the most serious crimes
of concern to the international community as a whole.''
Maintaining that threshold is essential to the credibility, wide
acceptance and efficiency of the Court. Certainly, part of the broad
consensus in moving towards jurisdiction limited to ``core crimes'' is
the desire that the Court and its Prosecutor focus on crimes that can
fairly be said to be ``crimes of concern to the international community
as a whole.'' Yet the definitions of those crimes do not necessarily
exclude conduct which will not rise to the standard articulated in the
preamble. This is particularly the case with war crimes, a category
covering a wide range of criminal conduct which may occur during
conflict, and crimes against humanity, which are broadly defined.
Thus, it is essential that there be some screen to distinguish
between crimes which do rise to the level of concern to the
international community and those which do not. The only rational and
workable proposal to date--even if it may fall short of the perfect--is
to look to States, and in appropriate cases the Security Council, to
speak for what is ``of concern to the international community as a
whole.'' For the United States, it is inappropriate and ultimately
unworkable to suggest that this role is better vested in a single
individual, the ICC Prosecutor.
The United States has listened carefully to the arguments made by
proponents of the proprio motu prosecutor, but we are unpersuaded.
First, we reject as entirely cynical the notion that the community
of States is so lacking in moral and political courage that when faced
with an atrocity meriting the attention of the Court, not one State
will respond. Indeed, quite the opposite has been demonstrated by the
United States and other States which have worked hard to establish and
support the work of the ad hoc tribunals, and which are in Rome to
facilitate future prosecutions through the establishment of a permanent
court. Moreover, it is wrong to argue that States' unwillingness to
invoke the ICC's jurisdiction is presumptively foreshadowed by the past
reluctance of States--absent an ICC--to take on national prosecutions
of atrocities committed thousands of miles away. To the contrary, the
ICC will provide an alternative to overcome the variety of legal,
political, practical and resource difficulties which have made States
reluctant, if not unable, to take on these prosecutions themselves.
Experience with the International Court of Justice also does not
provide useful guide, since the International Court of Justice cannot
conduct criminal prosecutions at all.
Second, we find overly simplistic the argument that the State and
Security Council referral approach offers only an improperly
politicized Prosecutor, while the proprio motu approach assures a
pristinely impartial Prosecutor whose work will be without any
political dimension.
In much of the discussion regarding the proprio motu Prosecutor,
the term ``political'' has been used in an entirely pejorative sense to
mean actions that are partisan or self-interested. Even with that
particular gloss, however, there is no basis in experience to say that
States act only on the basis of partisanism and self interest, while
individuals and organizations--those authorized to bring allegations to
the proprio motu Prosecutor--are per se beyond such motives or bias.
Surely both categories can, in the pejorative sense, act
``politically,'' and we would be naive to ignore the considerable
political pressure that organizations will bring to bear on the
Prosecutor in advocating that he or she take on the causes which they
champion. Thus, we cannot exclude that organizations as well as States
can, in the pejorative sense, seek to act politically and apply
political pressure on the Prosecutor. However, a significant difference
is the accountability of States--as opposed to individuals and
organizations--when they do so in the international context.
In the United States' view, the discussion regarding the proprio
motu Prosecutor has also ignored the extent to which State and Security
Council referral in fact has a ``political'' component which is
beneficial, if not essential, to the work of the Prosecutor. In making
referrals, States are expressing political will and political support
for the Prosecutor and his work; they are signaling to other States the
level of their concern about the situation at issue and their
commitment to stand behind and assist the Prosecutor both directly, and
in his or her dealings with other States, including those likely to be
hostile to the Prosecutor's investigation.
This involvement of States is critical. Under the proprio motu
model, we fear it will become too easy for States Parties to abdicate
their responsibilities and simply leave it to individuals,
organizations and the Prosecutor himself to initiate cases without the
starting foundation of political will and commitment only States can
provide. The Prosecutor then can become isolated, and abandoned to deal
in a difficult international arena without the clear, continuing
involvement of States Parties in affirming his or her work.
In addition, we do not find persuasive the argument that a proprio
motu Prosecutor will be able to decide whether to pursue investigations
based solely on legal criteria and thereby avoid questions going to his
or her impartiality or independence. If the Prosecutor has authority--
and indeed the responsibility--to pursue all facially credible
allegations coming from individuals or organizations, there will surely
be many more complaints than the Prosecutor can possibly handle.
Without the screen of a State and Security Council referral mechanism,
the volume of complaints will expand significantly, including those
that will prove to be inappropriate bases for prosecution. These will
include some directed against particular individuals for personal
reasons and some motivated by improper political considerations; some
will relate to situations that are not sufficiently serious to come
within the Court's proper jurisdiction; and some will involve matters
already being dealt with by national authorities, but with results
disappointing to particular individuals or organizations.
Many of those complaints may, at least facially, meet the legal
criteria to initiate an investigation suggested in the draft Statute--
``a reasonable basis'' or ``any other substantiated information''--so
that the Prosecutor will not be able to use a simple legal checklist to
choose which of several complaints to pursue. Thus, the Prosecutor will
be required to make decisions of policy in addition to those of law.
Admittedly, some such exercise of prosecutorial discretion will be
necessary and appropriate even in the context of a State referral
regime. However, in the proprio motu setting, the exercise of
prosecutorial discretion--something not universally accepted and all
the more suspect in politically charged settings--will become a
frequent and essential step in preserving the proper functioning and
focus of the Court.
Thus, we fear that by considerably expanding the number of
instances in which the Prosecutor must choose to decline complaints
that appear unlikely to result in meritorious prosecutions, we
inevitably will undermine perceptions of his or her impartiality and
subject the Prosecutor to incessant criticism by groups and individuals
who disagree with his choices. We are also concerned that this volume
of complaints will tend to embroil the Court in debate about the outer
limits of its jurisdiction--creating controversy that will in fact
weaken, not strengthen, the essential foundation of consensus for the
Court.
In sum, the proprio motu proposal risks routinely drawing the
Prosecutor into making difficult public policy decisions which the
Prosecutor is neither well-equipped nor inclined to make. In our view,
these initial public policy decisions are best made by political
bodies, freeing the Prosecutor to deal for the most part with the law
and the facts.
Nor does it assuage our concerns to require judges to approve the
Prosecutor's proprio motu decisions. Judges are equipped to review
legal matters. Their competence involves legal questions of
admissibility and jurisdiction under the Statute, and we expect it
would be rare that the Prosecutor's decisions would be unlawful under
the Statute. To the extent judges would be questioning the Prosecutor's
judgment in choosing to investigate on other than legal grounds, the
judges' review would simply substitute their own personal or policy
preferences for that of the Prosecutor. Moreover, in that event they,
like the Prosecutor, would find perceptions of their impartiality and
fairness undermined.
Finally, the United States is deeply concerned by the tremendous
resource implications of the proprio motu proposal and the extent to
which it will transform the nature of the Prosecutor's office. One need
only look at the volume of complaints lodged with human rights
organizations to understand how debilitating it will be to make the
Prosecutor responsive to all possible allegations of conduct coming
within the framework of the Statute. In 1997, nearly 30,000
communications were submitted under the U.N. Human Rights Commission's
``Resolution 1503'' procedures and another 1,200 under the first option
protocol of the ICCPR. The experience of other international bodies is
similar. In its first two sessions in the Spring of this year, the
European Commission of Human Rights was called upon to deal with 1500
applications.
Thus, even if the Prosecutor receives only a fraction of these
numbers of communications, his office will need to be enormously
expanded, and at tremendous additional cost. We have an idea of the
costs entailed in investigating and prosecuting ``core'' crimes. The
budgets the two ad hoc tribunals were $98 million for 1997 and $127
million for 1998.
If States impose a structure which will flood the Prosecutor's
office with thousands of allegations, they must then be prepared to
give the Prosecutor the resources to discharge his proprio motu
authority responsibly, even if that means--as we believe it ultimately
will--that the Prosecutor's preliminary inquiries will show the vast
majority of complaints unworthy of further investigation. Moreover,
States must recognize that in most instances, the Prosecutor will be
turning to States for information to determine the credibility of
allegations and whether they are being handled at the national level.
Thus the costs and frustrations that will come with the proprio motu
scenario will in the long run fall on States as well. Accordingly, it
is the United States' view that the incremental benefits, if any, of a
Prosecutor with unfettered investigative authority are significantly
outweighed by the costs involved and diminution of the Prosecutor's
focus and efficiency.
The United States has carefully considered the arguments in favor
of a proprio motu Prosecutor and is well aware of their appeal.
However, we believe that after careful scrutiny, other factors emerge
which give rise to serious practical and policy concerns. The United
States has offered this paper with the hope that other delegations
might give further thought to the respective merits of the proprio motu
proposal and what we believe is on balance the better approach--albeit
not perfect--of making referrals from States, and in appropriate cases
the Security Council, the starting point for the Prosecutor's work.