Copyright (c) 2003 The Regents of the University of Wisconsin



Copyright (c) 2003 The Regents of the University of Wisconsin

Wisconsin International Law Journal

Fall, 2003

21 Wis. Int'l L.J. 557

LENGTH: 13773 words

ARTICLE: SUMMER IN ROME, SPRING IN THE HAGUE, WINTER IN WASHINGTON? U.S. POLICY TOWARDS THE INTERNATIONAL CRIMINAL COURT

Leila Nadya Sadat*

 

*Professor of Law and Israel Treiman Faculty Fellow, Washington University in St. Louis. Many thanks to Thomas Hethe Clark and Jennifer Lin for their assistance.

SUMMARY:

... When the International Criminal Court Treaty entered into force in the spring of 2002, the enthusiasm of governments, ordinary citizens, NGO delegates, victims' groups and individual survivors all over the world was palpable. ... Indeed, by the eighth session, which was held just two weeks after the September 11th terrorist attacks on the United States, and by which time thirty-seven states had ratified the Statute, the PrepCom began to consider issues that were not explicitly mentioned in the Final Act of the Diplomatic Conference, including structured contacts with the Netherlands (the host government for the ICC) concerning its preparations for the Court's establishment, and the preparation of a "road map" for the coming into force of the Statute. ... Although many continue to have doubts about the International Criminal Court in the United States, the doubts are disappearing as the process of the treaty's negotiation is becoming better understood, the high quality of the personnel chosen to run the institution has become clear, and the seriousness and sincerity of the endeavor becomes undeniable. ...  

TEXT:

 [*557] 

I. Prologue: The Empty Chair

 

When the International Criminal Court Treaty entered into force in the spring of 2002, the enthusiasm of governments, ordinary citizens, NGO delegates, victims' groups and individual survivors all over the world was palpable. The extraordinary, almost euphoric feeling of seeing this important human rights treaty enter into force years, even decades, earlier than expected, could be felt at the special ceremony of the United Nations held to mark the occasion. n1 Alone among Western nations, the government of the United States did not participate in the celebration. Although the United States had signed the Statute on December 31, 2000, n2 on April 27, 2002, Undersecretary of State for Arms Control and International Security John Bolton sent a letter to the United Nations Secretary General Kofi Annan, stating that the U.S. did "not intend to become a party to the treaty" and therefore had "no legal obligations arising from its signature." n3 Indeed, following the election of George W. Bush as President in  [*558]  November of 2000, the United States government became increasingly hostile towards the Court, making impunity from the ICC a centerpiece of American foreign policy. n4 Congress has adopted legislation designed to prevent the U.S. government from cooperating with the Court, permitting the use of military force to rescue any members of the armed forces of the United States and certain others detained by or on behalf of the International Criminal Court (earning the legislation the nickname "The Hague Invasion Act"), and punishing countries that choose to ratify the Statute by prohibiting any military assistance thereto, unless the country in question receives a waiver from the President, enters into a special agreement with the United States, or is on a short list of U.S. allies. n5 The executive branch has concluded  [*559]  these so-called Article 98 bilateral agreements, which attempt to exempt U.S. personnel from the ICC's jurisdiction regardless of whether they are present on the territory of a State Party to the Treaty, with forty-four countries to date, n6 and has vowed to obtain agreements with as many states as possible, including most state parties. n7 Countries refusing to sign such agreements have been threatened with the loss of military and other assistance, n8 and European Union countries have been "warned" by U.S. officials to cease lobbying Eastern European countries not to sign  [*560]  individual pacts, declaring that lobbying against the signature of Article 98 agreements would be considered "unfriendly" and "very damaging" to U.S. - E.U. relations. n9 The executive branch also sought and obtained a limited exemption from prosecution from the Security Council in the guise of Security Council Resolution 1422,1 n10 which was recently renewed with some difficulty. n11 Although the Administration has periodically asserted that it is not opposed to the ICC's existence, only to its jurisdiction over U.S. citizens, n12 U.S. policy towards the Court itself as well as towards countries ratifying the ICC Treaty has been so uniformly aggressive, that the U.S. approach appears more like an attempt to either destroy the Court entirely, or to so weaken it that it is destined to fail.

Given this background, it was not surprising that no representatives of the United States government attended the election of the first judges of the International Court during the week of February 3rd, 2003. The seats allocated to the United States of America in the meeting rooms of the General Assembly building were empty, as they had been during the first meeting of the Assembly of States Parties in September, and several prior meetings of the Preparatory Commission before that. No American judge would be nominated for this Court and no representative of the  [*561]  U.S. government would be voting to choose which of the nominees it wished to support. n13 Likewise, the U.S. ambassador to the Netherlands, Clifford Sobel, was absent from the ceremony hosted by the Queen of the Netherlands on March 11, 2003, to mark the swearing in of the eighteen judges selected. n14 When delegates returned to New York in April 2003 to elect the Court's Prosecutor, no U.S. officials were present to speak either for or against Luis Moreno Ocampo, the Argentinian lawyer and professor chosen by consensus for that position. n15

This essay first traces the journey of the ICC from its inception to its inauguration, and then briefly examines U.S. policy towards the Court. It concludes that the almost implacable hostility with which the government now views the Court is unlikely to result in positive strategic outcomes for the United States. Although many of the initial difficulties the U.S. experienced with the ICC are the product of the negotiating tactics and approaches adopted by the Clinton administration, the prior administration's policy of cautious engagement permitted the U.S. to stay in the game to advocate strenuously for its own positions, while at the same time adopting a "wait and see" approach to the Court. In contrast, the current government's policy of isolation has not only given our allies no incentive to account for U.S. interests as negotiations on key questions continue, but has made it virtually impossible for the U.S. to protect its interests or to lead the Court, as it otherwise might do. Finally, given the pressing need of the international community for a multilateral mechanism to address the commission of crimes against humanity, war crimes and genocide, the U.S. should reconsider its hostility to the International Criminal Court and work to ensure both that the Court becomes independent, effective and impartial and that U.S. nationals have the opportunity to serve as Judges and as prosecutor of the Court in the near future. The recent election of well-qualified personnel should help assuage U.S. concerns that the ICC  [*562]  will be a "rogue" institution, and the U.S. should take an active role in leading the Court and in promoting the rule of law worldwide.

II. The Statute's Negotiation: Summer in Rome

A. The Road to Rome

 

As I have written elsewhere, the genesis of the ICC Statute can be directly traced to the events following the end of the World War I. n16 Following Germany's defeat by the Allied powers, the Allies, and particularly the British, attempted to hold the Kaiser and others individually responsible for war crimes and crimes against humanity committed during the war. n17 This effort was largely unsuccessful due to American and Dutch recalcitrance, n18 but it did spur international jurists and the newly created  [*563]  League of Nations to consider the idea of an international criminal tribunal. n19 Neither the work of jurists nor the establishment of the League of Nations, however, prevented a young Austrian named Adolf Hitler from leading the world once more into war. In 1933, Hitler pulled Germany out of the League and repudiated the Treaty of Versailles, n20 and, in 1939, invaded Poland and most of Western Europe thereafter. n21 During the war that ensued, it is estimated that at least fifty to sixty million people were killed, more than half of whom were civilians n22 and the beastly cruelty of the Nazi regime and its attempted extermination of Europe's Jews shocked the collective conscience of humanity.

Once again, the prospect of war crimes trials was raised, n23 although disagreement between the United States and Great Britain persisted as to the Nazi's ultimate fate. Winston Churchill was initially opposed to the idea of a tribunal, as was President Roosevelt, and it was not until plans for executing the  [*564]  Germans were leaked to the press that Roosevelt reluctantly embraced the idea of trials. n24 When Germany unconditionally surrendered on May 8, 1945 many Nazis and their leaders were captured, although others, including Hitler and Goebbels, committed suicide. In his report to President Roosevelt of June 7, 1945, Justice Robert Jackson, chief prosecutor for the United States in the Nuremberg Trials, stated the American position regarding the fate of those captured:

 

An inescapable responsibility rests upon this country to conduct an inquiry, preferably in association with others, but alone if necessary, into the culpability of those whom there is probable cause to accuse of atrocities and other crimes. We have many such men in our possession. What shall we do with them? We could, of course, set them at  [*565]  large without a hearing. But it has cost unmeasured thousands of American lives to beat and bind these men. To free them without a trial would mock the dead and make cynics of the living. On the other hand, we could execute or otherwise punish them without a hearing. But undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would violate pledges repeatedly given, and would not set easily on the American conscience or be remembered by our children with pride. The only other course is to determine the innocence or guilt of the accused after a hearing as dispassionate as the times and horrors we deal with will permit, and upon a record that will leave our reasons and motives clear. n25

 

Shortly thereafter, the International Conference on Military Trials was convened at London on June 26, 1945, and after protracted and difficult negotiations between the four Allied Powers represented there, the "Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis" on August 8, 1945, more familiarly known as the London Accord, was signed. The Charter of the International Military Tribunal (IMT Charter) was annexed thereto. n26

Building on the experience of World War I, the London Accord and the IMT Charter represented a quasi-revolution in international law. Article 6 of the Charter provided the Tribunal with jurisdiction over three kinds of crimes: crimes against peace, war crimes and crimes against humanity, n27 for which there was to be individual criminal responsibility, regardless of a defendant's official position, or any orders that he might have been given. Those indicted at Nuremberg were limited to war criminals whose offenses had "no particular geographical location," in  [*566]  other words, the "major" war criminals. n28 Twenty-two individual and seven organizational defendants were eventually tried. The trial lasted approximately ten months, at the end of which twelve of the individual defendants were executed by hanging and seven received prison sentences ranging from ten years to life imprisonment. Three of the individual defendants and three of the organizational defendants were acquitted. n29

Although it was generally accepted that the Nuremberg trial was conducted in a manner that was procedurally fair to the accused, Nuremberg was not without its critics. Many argued that it represented "victor's justice" because only allied nationals sat in judgment of the (German) accused. The defendants also argued that the trials were ex post facto proceedings, assertions that the IMT rejected. Yet even with its flaws, the Nuremberg trial captured the legal imagination and spawned the idea that grave and massive violations of human rights can become the concern of the international community, not just that of the individual state. Moreover, the Nuremberg precedent led many to call for the establishment of a permanent international criminal court that, through its permanence and universality, would have the kind of international legitimacy that the Nuremberg tribunal arguably did not.

B. The Adoption of the ICC Statute

 

The Nuremberg precedent was like a dormant volcano: incredibly powerful, yet quiescent. n30 Indeed, until recently, one stood a much better chance of being tried for the murder of one person than for the massacre of thousands. n31 Believing themselves to be unaccountable and invulnerable since WWII, despotic rulers have committed some of the worst atrocities  [*567]  humankind has ever seen. During the Cold War, little concrete progress was made on preventing and punishing mass atrocities, although a great deal of study took place on the establishment of a permanent international criminal court, and several major human rights treaties punishing international crime were adopted. Following the fall of the Berlin Wall, however, the international community responded actively with a program for international justice. Thanks in great part to strong U.S. leadership, the United Nations established two ad hoc international criminal tribunals to address the crimes committed in the former Yugoslavia and Rwanda, n32 hybrid tribunals have been set up for East Timor n33 and Sierra Leone, n34 and negotiations are ongoing with respect to a tribunal for Cambodia. n35

In 1989, the United Nations also returned seriously to the project of establishing a permanent international criminal court. Pursuant to a resolution introduced that same year, n36 the International Law Commission took up the issue, first in a working group, and subsequently by formulating a draft statute. n37 The  [*568]  ILC Draft Statute, was, in turn, studied by a United Nations Ad Hoc Committee, which issued a comprehensive report in 1995. n38 This report, along with the ILC Draft Statute, was then sent to a "Preparatory Committee" charged by the General Assembly with "preparing a widely acceptable consolidated text of a convention for an international criminal court as a next step towards consideration by a conference of plenipotentiaries... ." n39 Open to all members of the United Nations as well as members of specialized agencies, the Preparatory Committee held six official meetings at the United Nations Headquarters in New York City from March 25 to April 12, and August 12 to 30, 1996, from February 11 to 21, August 4 to 15, and December 1 to 12, 1997, and from March 16 to April 3, 1998. n40

 [*569]  The final draft was submitted to a Diplomatic Conference held in Rome during the summer of 1998. n41 I have described in great detail the atmosphere and the work at the Rome Conference, n42 but will briefly recapitulate here. The Conference was held in a Mussolini-era building that was difficult to find one's way around in and often incredibly hot. The one positive feature of the locale was a wonderful outdoor terrace on the top floor, which offered a splendid view of ancient Rome. Those fortunate enough to attend the Diplomatic Conference sensed the profound importance of the work to be accomplished, as the world waited for the governments gathered to do something concrete about the commission of mass atrocities. Yet determination and enthusiasm were tempered by the sobering fact that in spite of the intense and excellent work completed in the two years of Preparatory Committee meetings, some of the most difficult issues remained unresolved as the Diplomatic Conference opened. The consolidated text which served as the starting point for the negotiations contained 116 articles, including some 1,300 phrases in brackets, n43 and at least a few delegates had never read the entire text before arriving in Rome. Some countries, such as the United States, were able to afford to bring large, well-staffed and highly expert delegations to the Conference; other countries were fortunate to have one or two representatives there for the entire time. Because the Statute was so complex and the work so overwhelming, the thirteen parts of the draft statute were divided among different working groups chaired by coordinators that worked feverishly to complete the text in the allotted time. The working groups reported back to the Committee of the Whole which in turn referred completed articles or portions of articles  [*570]  to the Conference's Drafting Committee. n44 This meant that countries able to afford large delegations could follow the negotiations, but smaller countries had great difficulty in doing so.

The Conference was expertly managed by a Bureau chaired by Canadian Philippe Kirsch, elected to replace the Chair of the Preparatory Committee's Bureau, Adriaan Bos, who had fallen ill. The difficult and sensitive nature of the negotiations meant that with only two days remaining, the Statute's adoption was still in question. Rather than report to the plenary that a second session would have to be held, which many feared could delay the creation of the Court indefinitely, the Bureau attempted to present a "package deal" to the delegates. n45 This package, which was the product of intense negotiations and judicious compromises particularly as regards Part 2 of the Statute, was designed to reach widespread agreement, which it did. n46

After five weeks of intense negotiations, the Diplomatic Conference adopted a Statute for the Court in an emotional vote of 120 to 7, with 21 countries abstaining. n47 The United States, whose delegation was instrumental in the development of the Statute throughout the Preparatory Committee meetings and whose members worked tirelessly during the Rome Conference, was one of the seven countries voting against the Treaty. n48 Given  [*571]  the unsuccessful history of previous efforts to establish an international criminal court, and the tepid support of many of the major powers during the Preparatory Committee meetings leading up to the Diplomatic Conference, n49 the adoption of the Statute by the Diplomatic Conference came as a surprise. It can be credited, at least in part, to the tremendous lobbying and informational efforts of NGOs, which united under the umbrella of the Coalition for an International Criminal Court (CICC). n50 The CICC was able to influence the treaty-making process substantially, particularly as it came to form a close working relationship with the so-called "like-minded" states. n51 This group of states, although individually holding quite divergent views on many issues, concurred in their belief that the Court's ultimate establishment was a top priority, n52 and emerged as an important  [*572]  component of the Conference's ultimate success. Finally, strong support from many European countries and other traditional U.S. allies rallied the West behind the Court despite the opposition of the United States. n53 As of this writing, 139 States have signed the Statute, and ninety States have ratified it. n54

There has been a great deal of speculation as to why the United States put the Statute to a vote that it was sure to lose, and which was destined to make subsequent negotiations much more difficult. Certainly, notwithstanding the many concessions made in favor of U.S. positions, n55 the defensive posture of the United States clearly hardened as the Conference progressed and it became increasingly isolated from its traditional allies with the passage of time. Indeed, relations between the United States and many other nations appeared to deteriorate during the Rome  [*573]  Conference, as did its relations with NGO representatives present. In particular, the United States suggested that more time was needed for the negotiations, and that the work could not be finished in the five weeks allotted, a suggestion that drew the ire of many governments and NGO representatives alike. Most observers felt that any delay would ultimately scuttle the project entirely, as it would be difficult and prohibitively expensive to keep up the momentum of intense negotiations indefinitely. As stated above, the Conference Bureau attempted to negotiate a package around which a consensus could build in the allotted time.

Both India and the United States attempted to amend the package proposed by the Bureau on the last night of the Conference with what one author has dubbed "killer amendments," intended to completely thwart the adoption of the Statute. n56 The amendments, which reopened highly controversial points and would likely have defeated the statute entirely, were met with two "no-action" motions proposed by Norway, which the Conference approved. Having been defeated in its attempts to amend the Statute, the United States delegation then called for a vote on the Statute itself, which was overwhelmingly approved. n57 In the words of a reporter covering the conference, "as delegates clapped, cheered, hugged and took snapshots to commemorate the moment, dejected members of the United States delegation sat stonily in their seats." n58

III. The Statute Enters Into Force: Spring in the Hague

A. July 1998 to December 2000: The Establishment of the Preparatory Commission and Its Initial Work

 

In a Resolution annexed to the Statute for the Court, the Diplomatic Conference established a Preparatory Commission (PrepCom II) to continue work on the development of the  [*574]  Court. Like the Preparatory Committee that had prepared the draft Statute for the Court, the Preparatory Commission was composed of representatives from States. n59 Indeed, many of the delegates who had represented their governments during the Preparatory Committee meetings and the Diplomatic Conference continued to attend sessions of the Preparatory Commission, which greatly facilitated the PrepCom's work. This included the United States, which sent a large and expert delegation which continued to be headed by then Ambassador at Large for War Crimes Issues, David J. Scheffer.

Pursuant to the Final Act of the Diplomatic Conference, the Preparatory Commission was charged with drafting the Rules of Procedure and Evidence (RPE), Elements of Crimes, a relationship agreement between the Court and the United Nations, basic principles of the headquarters agreement, financial regulations and rules, an agreement on the privileges and immunities of the Court, a budget for the first financial year, and the rules of procedure for the Court's Assembly of States Parties (ASP) that would ultimately provide the Court's management and oversight. n60 A deadline of June 30, 2000 was provided for the completion of the Rules of Procedure and Evidence and the Elements of Crimes, n61 but no specific deadline existed for the other documents to be negotiated. The deadline was imposed to ensure that these two important documents would be finalized quickly, so that negotiation of their texts would not jeopardize either the ratification process or the establishment of the Court itself. n62

The Preparatory Commission held ten sessions from 1999 to 2002 and completed virtually all of the preliminary work required for the establishment of the Court. Although the ICC is  [*575]  not a U.N. organ, the United Nations provided the physical setting, secretariat, translation services and other needs of the Preparatory Committee, Diplomatic Conference and Preparatory Commission. Thus, the Preparatory Commission's sessions were convened by the Secretary-General and were held at United Nations Headquarters in New York. The first three sessions were held from February 16 to 26, July 26 to August 13 and November 29 to December 17, 1999. n63 The next three sessions were held from March 13 to 31, June 12 to 30 and November 27 to December 8, 2000. n64 Sessions seven through eight were held from February 26 to March 9 and from September 24 to October 5, 2001, n65 and the final sessions were held in 2002 from April 8 to 19 (during which time the sixtieth ratification was deposited) and from July 1 to 12 (during which time the Statute entered into force). n66

The Preparatory Commission, like the Diplomatic Conference, was chaired by Ambassador Phillippe Kirsch, of Canada. n67 During the initial sessions, the focus was on completing the Elements of Crimes, Rules of Procedure of Evidence, and beginning discussions on the crime of aggression. n68 These very technical discussions continued during the fourth and fifth sessions of the Preparatory Commission and were augmented by intersessional meetings held in Siracusa, Italy, and Mont Tremblant Canada, and ultimately culminated in the adoption of the Elements of  [*576]  Crimes and Rules of Procedure of Evidence (RPE) by consensus. n69 Having completed the Elements and RPE in a timely fashion, the Preparatory Commission then turned its attention, in its sixth session, to the crime of aggression, to the Relationship Agreement between the Court and the United Nations, the Financial Regulations and Rules of the Court, and the Agreement on Privileges and Immunities of the Court. The U.S. delegation was very active during these six sessions of the Preparatory Commission, and was in many ways the driving force behind the elaboration of the Elements of Crimes. n70 Indeed, although it had voted against the Statute in 1998, it joined in the consensus vote in the Preparatory Commission to adopt the Elements and Rules of Procedure and Evidence, even though not every text proposed by it was ultimately adopted by the Preparatory Commission. n71 As detailed in Part IV - A, below, the successful completion of the Elements and the Rules of Procedure led the Clinton administration to conclude that it was ultimately in the best interests of  [*577]  the United States of America to sign the Statute, even if differences remained between it and its allies as to particular features of the Court.

B. February 2001 to May 2003: Achieving Sixty Ratifications and Electing the Court's First Officials

 

No one had any illusions, even after the excitement generated by the successful conclusion of the Rome Conference, that the ratification process would be either swift or easy. By the end of 1998, all fifteen Member States of the European Union had added their signatures to the Statute, and by March of 1999, seventy-nine states had signed the Statute and one, Senegal, had ratified it. n72 For many states, the ratification process engendered complications unrelated to their general support for (or opposition to) the Court. Many states were required to amend their Constitutions to accommodate a variety of legal obstacles: the imposition of life sentences was unconstitutional in some states, n73 presidential immunity had to be waived for others, n74 and for most  [*578]  states, adoption of the implementing legislation that would be required in order to carry out the Statute's obligations was a lengthy process. n75 Many observers opined that the initial delay in ratifications suggested a lack of overall support for the Court; and indeed, many diplomats stated both privately and publicly that they expected the process to take ten to twenty years. But pressure to ratify the Statute rapidly continued to build, through the work of NGOs, the convening of Regional Conferences, n76 and the continued work of the Preparatory Commission. In this way, the momentum of the Rome Conference was sustained even through the difficult process of ratification.

By the opening of the seventh session of the Preparatory Commission (PrepCom) on February 26, 2001, 139 states had signed the Statute and twenty-nine had ratified. n77 Thus, although many of the PrepCom's initial agenda items remained, including the draft relationship agreement between the Court and the United Nations and the other documents needed to bring the Court into existence, attention began to turn to the practical issues that would soon arise as a result of the Statute's entry into  [*579]  force. Indeed, by the eighth session, which was held just two weeks after the September 11th terrorist attacks on the United States, and by which time thirty-seven states had ratified the Statute, the PrepCom began to consider issues that were not explicitly mentioned in the Final Act of the Diplomatic Conference, including structured contacts with the Netherlands (the host government for the ICC) concerning its preparations for the Court's establishment, and the preparation of a "road map" for the coming into force of the Statute. n78 Those attending the meeting expressed both their sympathy to the United States concerning the tragedy of September 11th, as well as their resolve to continue the work on the establishment of the Court. As one delegate noted:

 

The PrepCom meeting takes place in a particularly harrowing period. New York was shaken on its foundations less than two weeks ago, by the evil powers of terrorism. The world shook with it. Only slowly are we coming to grips with this barbaric attack on our shared values of liberty, democracy and justice. We emerge, more convinced than ever of the need to strengthen the international legal order and the fight against universal crimes ... While those brave men and women work in the debris not far from here, we must show the same determination in building a strong international legal order. More than ever the importance of the ICC is clear to us all. Perpetrators of horrendous crimes such as those that were committed here must be brought to justice. Universal crimes demand a universal answer. n79

 

While the Preparatory Commission continued its work on the ancillary documents remaining, as well as the ever-present problem of the crime of aggression, NGOs around the world, as  [*580]  well as national and international bar associations, started contemplating the formation of an ICC bar association n80 and attending to the selection of the Court's first judges and Prosecutor. n81 As the pace of ratifications received by the Secretary General accelerated, with observers now suggesting that the Treaty would probably enter into force in July 2002, so, seemingly, did U.S. opposition to the Court. On October 4, 2001, Britain ratified the ICC Treaty. Coming just days prior to the launching of Operation Infinite Justice (later named "Operation Enduring Freedom"), against Afghanistan, the U.K.'s ratification appeared to underscore the growing divide between the United States and its allies over the International Criminal Court. n82

The United States sent no delegates to the two final sessions of the PrepCom. Although the Bush administration had sent delegates to the seventh and eighth sessions, n83 no representatives were on hand when the Preparatory Commission wrapped up its work in 2002, and the Treaty entered into force. The penultimate session of the Preparatory Commission opened on April 8, 2002, with fifty-six States Parties to the Statute. In order to accommodate the desire of several States to be considered the 60th State to ratify the Treaty, on April 11, 2002, the United Nations held a ceremony during which ten countries simultaneously deposited instruments of ratification, bringing the total number of State Parties to sixty-six, six more than the sixty required for the Treaty  [*581]  to enter into force. n84 The PrepCom also considered the procedure for the nomination and election of Judges, the Prosecutor and the Deputy Prosecutors of the Court, n85 and set to finishing the work needed so that by the conclusion of the tenth and final PrepCom in July 2002, the Assembly of States Parties, which would be assuming the PrepCom's functions, as well as the tasks assigned to it by the ICC Statute could begin its work. n86 The tenth and final session of the PrepCom transmitted its work to the first meeting of the Court's Assembly of States Parties held in September 2002, including the draft texts of the Court's Rules of Procedure and Evidence, Elements of Crimes, the Relationship Agreement between the Court and the United Nations, the Basic principles governing the headquarters agreement, the Financial regulations and rules of the Court, an agreement on the privileges and immunities of the Court, a budget for the first financial year, the ASP's rules of procedure, a resolution on the continuity of work with respect to the crime of aggression, and the procedure for the nomination and election of Judges, the Prosecutor and the Deputy Prosecutors.

During its first session, the Assembly of States Parties adopted the work of the Preparatory Commission and elected the members of the Bureau, including its President, H.R.H. Prince Zeid Ra'ad Zeid Al-Hussein, of Jordan. n87 During its second session, held from February 3 to 7, 2003, the International Criminal Court elected its first judges. Candidates from forty-three countries were nominated, and the judges were carefully and thoughtfully chosen from among those presented. At the end of thirty-three rounds of balloting, eighteen judges had been  [*582]  selected, including seven women, n88 all of whom were, by any standard, extraordinarily well-qualified. n89 A ceremony was held in The Hague during which the Court's eighteen judges, soberly attired in black robes, were sworn in, pledging to fulfill their duties "honorably, faithfully, impartially, and conscientiously." n90 They also promised to respect "the confidentiality of investigations and prosecutions and the secrecy of deliberations." n91 The judges subsequently elected Canadian Philippe Kirsch as President, and two women, Elizabeth Odio Benito (Costa Rica) and Akua Kuenyehia (Ghana) as Vice-Presidents. n92

 [*583]  The selection of the Court's Prosecutor was more difficult, as States tried very hard to find a candidate that could be chosen by consensus. Ultimately, a distinguished Argentinian lawyer and law professor was chosen, Luis Moreno Ocampo. Sr. Moreno Ocampo had established his reputation as a prosecutor during several high profile trials involving leading figures from Argentina's military junta. n93 He is also a renowned academic in the field of human rights, and is the Robert F. Kennedy Visiting Professor at Harvard Law School. n94 His nomination was uncontested, and he was selected by consensus at the ASP's third meeting, and installed in the Hague on June 16, 2003. n95 In a thoughtful and very measured speech, Sr. Moreno-Ocampo stated at his swearing-in:

 

There are so many divergent interests in the world today that there is not even consensus about the basic goal of punishing the authors of genocide. An international criminal court totally independent and impartial brings hope, but at the same time raises reasonable fears and misunderstandings. If we destroy the hopes and increase the misunderstandings, not only will we have failed as individuals but we also will have wasted the efforts of more than a century and destroyed an institution essential to global peace.

 

He concluded:

 

To protect [the victims] is the objective of our mission. On my first visit to the Holocaust Museum in Washington, I received a copy of a passport of a young polish boy. He had emigrated from Warsaw with his family, escaping the atrocities of the First World War. In the 1930's, all of them returned to their home and were exterminated during the Nazi occupation.

The attack on the Twin towers in Manhattan is just another tragic demonstration that the security offered by a State will not be sufficient to guarantee the life and freedom of  [*584]  their citizens if the international community is not based on the rule of law. We must learn: there is no safe haven for life and freedom if we fail to protect the rights of any person in any country of the world. n96

 

IV. Winter in Washington: The Big Chill from the World's Only Superpower

A. American Policy During the Clinton Years: Cautious Engagement

 

If the ICC Treaty's coming into force was celebrated in the Hague, it caused great consternation in Washington. Even prior to the Rome Conference, the United States appeared uncommitted to the Court's establishment. Although President Clinton n97 and the United States Congress n98 expressed general support for the establishment of the ICC in principle, n99 as the opening of the Diplomatic Conference drew near, both U.S. negotiators within the administration and influential political figures and commentators outside the administration appeared increasingly wary of the Court. For example, in response to a suggestion that the Court's prosecutor be permitted to open investigations proprio motu, one State Department representative replied that it was unacceptable to have a Court in which the Prosecutor considered himself or herself the "independent counsel for the universe," a clear overstatement with regard to the actual proposals being made regarding the prosecutor for the ICC. Senator Jesse  [*585]  Helms, then Chair of the Senate Foreign Relations Committee, was characteristically blunt in his assessment of the Treaty, stating that the Court would be "dead on arrival" if the United States did not have veto power over which cases may be brought before it. n100 The Pentagon also weighed in to oppose any U.S. soldiers being investigated by the Court without permission from the United States. n101

Following the Rome Conference, Ambassador David J. Scheffer, head of the United States Delegation in Rome, testified before the Senate Foreign Relations Committee and identified six principal objections to the Statute, only three of which will be taken up here, for they form the crux of the current administration's opposition to the Court. First, Ambassador Scheffer argued that "a form of jurisdiction over non-party states was adopted." n102 Second, he complained that the Statute created a Prosecutor that could, on his or her own authority with the consent of two judges, initiate investigations and prosecutions. n103 Finally, he objected that the Statute did not clearly require an affirmative determination by the Security Council prior to bringing a complaint for aggression before the Court. n104

 [*586]  As I and others noted following the Diplomatic Conference, as a matter of law the U.S. objections were relatively insubstantial, and were generally inconsistent with positions that the United States itself had been asserting for years. For example, with respect to jurisdiction over nonparties, the complaint does not seem addressed to jurisdiction to prescribe, which the United States has never contested. n105 Rather, the United States challenged the Court's right to exercise adjudicative jurisdiction over U.S. nationals (without the consent of the United States) who have committed crimes abroad in States that are either parties to the Statute or that accept the jurisdiction of the Court in a particular case. Yet because the territorial State clearly has jurisdiction in those cases, n106 the only question posed by the application of the Rome Statute is whether the international community may exercise jurisdiction in lieu of the territorial State. n107 As a legal matter, the answer is clearly yes, for since the Nuremberg judgment,  [*587]  it has been well-accepted that the States of the international community may do together what any one may do singly. n108 As Ambassador Philippe Kirsch wrote soon after the Rome Diplomatic Conference, "This does not bind states that are not parties to the Statute. It simply confirms the recognized principle that individuals are subject to the substantive and procedural criminal laws applicable in the territories to which they travel, including laws arising from treaty obligations." n109

Moreover, although it is certainly theoretically possible that a U.S. soldier could find him or herself subject to the jurisdiction of the Court, given the principle of complementarity enshrined in the Statute, this is highly improbable. Under the doctrine of complementarity, the Court may exercise jurisdiction only if: (1) national jurisdictions are "unwilling or unable" to; (2) the crime is of sufficient gravity; and (3) the person has not already been tried for the conduct on which the complaint is based. n110 Thus the Court may not exercise jurisdiction over "minor" offenses, and with regard to serious accusations against U.S. personnel, the  [*588]  U.S. could stop any ICC investigation from moving forward simply by opening up its own investigation into the case. n111 Unless the U.S. government collapsed completely or adopted a specific policy of committing war crimes, crimes against humanity, or genocide, it is hard to conceive of situations in which the Rome Statute would be applied to U.S. soldiers acting under U.S. military orders.

With respect to the U.S. objections to the independent Prosecutor, the Statute contains extensive safeguards designed to limit the Prosecutor's scope of action, many of which are the direct result of U.S. government proposals. n112 These include the requirement that the Prosecutor's work be supervised by the Pre-Trial Chamber, for the most part; that the Prosecutor can be removed by an absolute majority of States Parties for serious misconduct or a serious breach of his or her duties under the Statute; and the numerous procedural vehicles available to challenge jurisdiction and admissibility before the Court. During the Rome Conference, the U.S. government never really argued that the safeguards were insufficient. Rather, it seemed opposed to an independent prosecutor on any terms. The administration appeared to rethink this view once the "independent" Prosecutor  [*589]  had been incorporated into the Statute, and, at the second session of the Preparatory Commission held in 1999, the U.S. delegation suggested it had withdrawn this objection to the Statute.

The final serious objection raised by the Clinton administration regarded the Security Council's role in determining aggression. Although it is true that the Statute makes no guarantees in this regard, the question is far from foreclosed. Indeed, most observers of the Rome Conference believe that a majority of States agree that the Security Council should make this determination and that article 5(2)'s reference to the "relevant provisions of the Charter of the United Nations" n113 has exactly that in mind. Because discussions on the crime of aggression are still ongoing in the Assembly of States Parties, the resolution of this question remains unsettled.

On December 31, 2000, the last day the Statute was open for signature, Ambassador Scheffer signed the Rome Statue for the International Criminal Court on behalf of the United States government. While President Clinton maintained that his administration still had concerns about "significant flaws" in the treaty, he asserted that the U.S. signed the treaty "to reaffirm our strong support for international accountability," and to "remain engaged in making the ICC International Criminal Court an instrument of impartial and effective justice." n114 Subsequently, Ambassador Scheffer argued that it was vital for the United States to stay engaged in the Preparatory Commission process, for the U.S. not to oppose the evolution and establishment of the Court, for the U.S. to develop initiatives that would make cooperation with the ICC desirable, protect U.S. interests, and make U.S. ratification of the ICC Treaty more plausible in the future. n115 Indeed, Ambassador Scheffer has now become one of the Court's most ardent supporters.

 [*590] 

B. The Policies of the Bush Administration: "Isolate and Ignore"

 

If the Clinton policy towards the International Criminal Court can be described as an attitude of cautious engagement, meaning that the U.S. would stay committed to the Court in principle, but work aggressively to protect American national interests during the negotiating process, the U.S. policy under the Bush administration has been to "isolate and ignore" n116 the ICC as well as to punish countries ratifying the Court's Statute. While continuing to maintain the need to protect American soldiers by negotiating bilateral immunity agreements worldwide, the current policy has rejected a "wait and see" approach to the Treaty in favor of a policy of direct hostility. n117 It reflects the views of Undersecretary Bolton, n118 an opponent of the Court for many years, n119 who has forcefully argued that the Court should be weakened, and ultimately, rendered ineffective by U.S. action. In the words of Undersecretary Bolton:

 

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  [*591]  idea. It cannot be improved by technical fixes as the years pass, and in fact it is more likely than not to worsen. n120

 

The administration's attack on the Court is premised on the belief, expressed in the National Security Strategy Document released by the government in September 2002, n121 that the United States should use its military force preemptively in its own defense, as well as act assertively and militarily to promote U.S. interests in the world. According to this view, it is not only inadvisable for the U.S. to ratify the Statute, but the Court must be eliminated or disabled to remove it as a potential constraint to the use of U.S. military force. n122 This policy led President Bush to sign the American Servicemembers' Protection Act (ASPA), n123 to abandon all negotiations pertaining to the Court, to take the unprecedented step of nullifying the U.S. signature of the treaty, n124 to eschew participation in the election of the Court's Judges and Prosecutor, to force countries to sign bilateral immunity (so-called Article 98) agreements with the United States, and to extract a resolution exempting peacekeeping missions from the Statute, over the strong objections of many allies and the U.N.  [*592]  Secretary General. As an editorial in the New York Times recently noted, n125 these measures are "startling" both for their ferocity and their persistence.

Indeed, this fundamental shift in policy has been accompanied by an aggressive public campaign against the Court. The Bush administration continues to raise many of the concerns initially articulated by the Clinton administration with regard to the Court, but now generally casts them in a profoundly ideological, often extreme, manner. For example, the government's original and quite reasonable concern about the accountability of the independent Prosecutor has been transformed into an argument that the ICC is irremediably flawed because it does not respect the principle of separation of powers, but evidences, instead, unchecked judicial power accompanied by unaccountable prosecutorial power. n126 As one opponent of the Court testified:

 

This is something which is a recipe for show trials. I think it is fair to say it has no other purpose really than to set up a platform for show trials. Is that really something we want to let loose in the world? I think it is a terrible idea. I mean, this thing is a menace. And we should be trying to snuff it out. We should not be trying to get on with it in a neighborly way. n127

 [*593] 

 

Increasingly, opponents of the Court have argued that because the Court erodes American discretion and freedom to act in the world, it impermissibly undermines U.S. sovereignty, n128 not as a result of any particular procedural mechanisms it employs or institutional features it displays, but as a function of its very existence. The current government continues to emphasize the need to protect U.S. soldiers stationed or sent abroad from frivolous or politically motivated prosecutions in the ICC. Pursuant to the principle of complementarity, however, there is very little actual likelihood of such an occurrence because the United States already conducts investigations in cases where serious and credible allegations of war crimes have been made. n129 Moreover, given the extraordinary stature of the Judges and Prosecutor recently elected, the specter of frivolous or politically motivated prosecutions directed against United States nationals appears increasingly remote. Yet anti-ICC rhetoric from the administration and its surrogates has, if anything, intensified rather than subsided in recent weeks. Perhaps, then, the real issue is not U.S. soldiers, but the Court's potential effect on senior civilian and military leaders whose overall policies could theoretically be subject to judicial review if war crimes allegations ensue. n130 Indeed, some thoughtful observers have suggested that the government's views may even suggest "hostility, or at least ambivalence, towards the most fundamental principles of war crimes law." n131 If this is correct, the fervor with which administration opponents now attack the Court may not stem solely from a concern that the United States and its citizens would be unfairly and or improperly targeted for war crimes prosecutions, but that such accusations could have a basis in fact.

 [*594]  It is unlikely, and indeed, even shocking, to imagine that the United States would ever adopt policies promoting the systematic commission of war crimes in order to promote its national interests. The United States is a democracy committed not only to the rule of law, but to the implementation of Geneva and Hague law in the conduct of international armed conflict. This should ultimately lead the United States to rally behind the ICC, for, far from being an undemocratic institution, the ICC may promote democracy by requiring countries that ratify the Statute to pledge that their leaders will not commit war crimes, crimes against humanity and genocide, and that they will prosecute instances in which those crimes occur on their territories. n132 If this is correct, the vehemence of the current opposition stems, then, perhaps not from any particular feature of the Court or its mission, but from a deep-seated distrust of all international institutions, whatever their mandate.

V. Conclusion: The Road Ahead

 

The effort to bring international criminals to justice is part of a much needed long-term solution to redress the wrongs committed against the victims of war crimes, genocide and crimes against humanity, and may prevent conflicts from reigniting in the future. Criminal trials before an impartial international judiciary may provide an official accounting of the wrongs perpetrated and prevent revisionist history from subsequently taking root. They also represent the most powerful condemnation of the international community as a whole and a declaration that the commission of atrocities will no longer be part of "business as usual" but is pathological behavior that can send a leader to jail. Ad hoc tribunals, unlike a permanent court, lack the legitimacy, universality and, on a more practical level, the resources and staff needed to provide effective and fair international criminal justice. Thus, the International Criminal Court is a logical step in the evolution of international justice and institutions. n133

 [*595]  Yet, the best intentions of the Framers of the Rome Statute notwithstanding, the ICC will not be a perfect institution. The men and women recently elected to serve as its first judges and officers, all of whom have extraordinarily distinguished records, are no doubt painfully aware of that fact. But the establishment of the Court represents the hope of humanity that one day the perpetrators of genocide, war crimes and crimes against humanity will no longer be able to commit atrocities with impunity. Believing itself to be threatened, the U.S. government has attacked this Court with increasing ferocity, exacerbating already difficult relations with its European allies and making the pursuit of international justice in other fora more difficult as well. But as the United States learned on September 11, 2001, America is as vulnerable to international criminals as the rest of the world, and the U.S. must rely upon international institutions and cooperation in order to combat transnational and international crime. The United States has recognized this fact in its anti-terrorism strategy, promoting the adoption of multilateral treaties and even rules of customary international law that criminalize certain acts (as acts of international terrorism), that require states to prevent and to punish such acts, and impose upon states a duty to try or extradite those properly accused of committing such acts. n134 The U.S. attack on the International Criminal Court therefore runs directly contrary to the U.S. struggle against international terrorism. This means, ironically, that the government's campaign against the ICC may ultimately compromise U.S. national security. n135 As I have written elsewhere:

 

The ultimate test of America's strength will not be its ability to respond militarily to threats all over the world, threats that are by definition, random, designed to inflict  [*596]  terror, and carried out by very small numbers of individuals willing to die in the process of carrying out their criminal design. Instead, America's strength will lie in its ability to persuade others to join its cause against international terrorism, and establish international institutions and international norms to do so, norms which States are willing to enforce domestically. n136

 

Finally, the government's position is puzzling, for, far from being a Court that undermines American values, contrary to the assertions of its detractors, the International Criminal Court is a quintessentially American institution. The adoption of the Statute embodies the notion that the rule of law can, over time, create a better and more ordered world. It embodies the ideal that governments should be of laws, and not of men, and that all of us are created equal and endowed with inalienable rights to life and to liberty, even those living in far off countries with unfamiliar names. It stands for the proposition that the Saddam Husseins and Pol Pots of the world should not be permitted to torment their people and loot their countries and then enjoy a comfortable retirement, a principle the United States recently went to war to reaffirm. The government's almost frenzied hostility towards this treaty is a profound rejection of what makes America great: our deep and abiding commitment to the rule of law.

Although many continue to have doubts about the International Criminal Court in the United States, the doubts are disappearing as the process of the treaty's negotiation is becoming better understood, the high quality of the personnel chosen to run the institution has become clear, and the seriousness and sincerity of the endeavor becomes undeniable. Increasingly, and in spite of the consistent attacks on the Court from die-hard detractors, respected voices have spoken out in favor of the ICC. n137  [*597]  If the Court proves itself, as it now shows every indication of doing, perhaps one day the U.S. may find itself supporting the establishment and operation of the International Criminal Court, and, along with the rest of the free world, celebrating the coming of Spring in the Hague.

FOOTNOTES:

n1. The ceremony was held at the United Nations headquarters in New York on April 11th, 2002, when the requisite number of states parties (60) was achieved to bring the Rome Statute for the International Criminal Court into force. Barbara Crossette, War Crimes Tribunal Becomes Reality, Without U.S. Role, N.Y. Times, Apr. 12, 2002, at A3. Pursuant to article 126 of the Statute, the jurisdiction of the Court entered into effect on July 1, 2002. Rome Statute of the International Criminal Court, U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17, 1998, Annex II, art. 126(1), U.N. Doc. A/CONF.183/9 (1998) [hereinafter Rome Statute], available at . law/icc/index/statute/romefra.htm (last visited June 20, 2003).

n2. William Jefferson Clinton, Statement on the Rome Treaty on the International Criminal Court, 3 Pub. Papers 2816 (December 31, 2000), available at http:// www/global/swci/001231 clinton icc.html (last visited June 11, 2003).

n3. The text of the letter is as follows: Dear Mr. Secretary-General: This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty. Sincerely, S/John R. Bolton. Letter from John R. Bolton, under Secretary of State for Arms Control and International Security, to UN Secretary General Kofi Annan (Released May 6, 2002), available at (last visited June 11, 2003). See also Jim Garamone, U.S. Withdraws from International Criminal Court Treaty, American Forces Press Service, May 7, 2003, available at http:// defenselink.mil/news/May2002/n05072002 200205071.html (last visited Oct. 1, 2003) (referring to a statement of Secretary of Defense Donald Rumsfeld, in which he stated that, "the treaty would have caused problems at any time ... [but is] particularly troubling in the midst of a difficult, dangerous war on terrorism. There is a risk that the ICC could attempt to assert jurisdiction over U.S. service members, as well as civilians, involved in counterterrorist and other military operations - something we cannot allow." Rumsfeld also declared U.S. respect for other nations' decisions to join the ICC and opined that they, in turn, should respect the U.S. decision not to join.).

n4. National Security Council, The National Security Strategy of the United States of America 31 (Sept. 15, 2002).

n5. American Servicemembers' Protection Act of 2002, Pub. L. No. 107-206, 116 Stat. 820. tit. II (2002). Originally introduced in the 106th Congress as S. 2726, the ASPA was reintroduced in the 107th Congress as H.R. 1794 on May 10, 2001, by Rep. Tom Delay (R-TX) in the House, and on May 9, 2001 in the Senate as S.857 by Sens. Jesse Helms (R-NC) and Zell Miller (D-GA) in the Senate. This revised version of the ASPA was an amendment to the Department of Defense Authorization Act, which was dropped during a conference committee on September 26, 2001. This initial legislation failed to garner support from the Bush Administration on the ground that it unconstitutionally restricted the President's foreign policy powers. When it was reintroduced it was ultimately passed with two softening provisions, one that permitted the United States to cooperate with the Court in regards to "international efforts" to bring certain notorious international criminals to justice, id. 2015, and another permitting the President to waive certain provisions of the legislation. Id. 2003. The legislation was signed by the President on August 2, 2002. The term "covered persons" includes both United States citizens as well as allied persons. Id. 2013. The term "covered allied person" includes military personnel, elected or appointed officials and other persons employed by or working on behalf of the government of a NATO member country, a major non-NATO ally (including Australia, Egypt, Israel, Japan, Jordan, Argentina, The Republic of Korea, and New Zealand), or Taiwan, "for so long as that government is not a party to the International Criminal Court and wishes its officials and other persons working on its behalf to be exempted from the jurisdiction of the International Criminal Court." Id. 2013(3).

n6. According to the NGO Coalition for the International Criminal Court, as of June 16, 2003, forty-four countries had signed impunity agreements with the United States. Romania was the first country to obtain such an exemption, on August 1, 2002. The U.S. added a flurry of nations in early June 2003 to bring the number up to forty-four NGO Coalition for the International Criminal Court, Signatories of U.S. Impunity Agreements (So-Called Article 98 Agreements), at documents/otherissues/impunityart98/BIASignatories17June03.doc (last visited June 18, 2003). On June 12, 2003, the U.S. Government announced that 38 countries had officially announced the signing of Article 98 agreements, while several others have signed, but have asked not to be identified. Press Release, Office of the Spokesman, United States Department of State, Countries Who Have Signed Article 98 Agreements with the United States (June 12, 2003), available at (last visited June 20, 2003).

n7. John R. Bolton, Remarks to the Federalist Society (Nov. 14, 2002), at . t/us/rm/15158.htm (last visited June 20, 2003) [hereinafter Bolton, Remarks].

n8. Brian Knowlton & Thomas Fuller, U.S. Says It Will Cut Aid If Countries Fight Pacts: Deals Support Exception from Court, Int'l Herald Trib., June 11, 2003, at 1. A prominent example of this rhetoric is found in the U.S. Ambassador to Croatia's recent remarks, in which he claimed that, while "the U.S. is not 'blackmailing' Croatia," because Croatia is not a member of NATO nor a major non-NATO ally, it "could forfeit up to $ 19 million in military equipment and training assistance should it fail to sign an Article 98 agreement or receive a Presidential waiver by July 1, 2003." Indeed, with regard to waivers, he pointed out that "as Washington weighs the issue of waivers it will take into account that 35 other U.S. friends -all with their particular difficult and special circumstances - already have signed." United States Ambassador to Croatia Lawrence G. Rossin, Article 98 - The American Perspective, May 28, 2003, available at . usembassy.hr/issues/030529.htm (last visited June 20, 2003) (emphasis added).

n9. Knowlton & Fuller, supra note 8. The European Union supports the Court and has stated in response that it "stands firm behind the International Criminal Court," meaning that Eastern European countries wishing to join the EU must also support the ICC if they wish to join the club. Id.

n10. S.C. Res. 1422, U.N. SCOR, 57th Sess., 4572d mtg., U.N. Doc. S/RES/1422 (2002). The members of the Security Council voted in favor of this resolution requesting that the ICC defer potential prosecutions of peacekeepers who are not parties to the Rome Treaty for a 12-month period, unless the Security Council decides otherwise.

n11. S.C. Res. 1487, U.N. SCOR, 58th Sess., 4772d mtg., U.N. Doc. S/RES/1487 (2003). UN Secretary General Kofi Annan joined with twenty country delegations, the Rio Group and the European Union to convey their reservations with regard to renewal of Security Council Resolution 1422. The delegations from France, Germany and Syria expressed their disapproval through abstention from the vote. Security Council Meeting Record 12 June 2003, U.N. SCOR, 58th Sess., 4772d mtg., U.N. Doc. S/PV.4772 (2003).

n12. Marc Grossman, Under Secretary for Political Affairs, Remarks to the Center for Strategic and International Studies (May 6, 2002), available at . org/docs/Grossman.pdf (last visited June 19, 2003).

n13. For a discussion of the election of the first judges of the ICC, see infra notes 87-92 and accompanying text.

n14. Discourteous, The Lawyer, Mar. 24, 2003, at P20, available at 2003 WL 8525899.

n15. Luis Moreno Ocampo was sworn in on June 16, 2003, also in the Netherlands. Press Release, Chief Prosecutor for International Criminal Court to be Sworn in on 16 June (Feb. 6, 2003), U.N. Doc. L/3039, available at Press/docs/2003/L3039.doc.htm (last visited June 20, 2003).

n16. Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law 24 (2002).

n17. The Preliminary Peace Conference nominated a fifteen-member Commission to determine responsibility for the war. The Commission was established at the plenary session of the Preliminary Peace Conference in 1919. Historical Survey of the Question of International Criminal Jurisdiction: Memorandum Submitted by the Secretary General at 7, U.N. Doc. A/CN.4/7/Rev.1, U.N. Sales No. 1949.V.8 (1949). The Commission produced an extensive report recommending, among other things, the constitution of an international "high tribunal" to try "all enemy persons alleged to have been guilty of offences against the laws and customs of war and the laws of humanity," including the Kaiser. Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties: Report Presented to the Preliminary Peace Conference, 14 Am. J. Int'l L. 95, 123 (1920). The American members of the Commission dissented, objecting, inter alia, that the term "laws of humanity" was impossibly vague and that heads of State were answerable only to their own people, not the international community as a whole. Ultimately a compromise was arrived at, and although the Treaty of Versailles excluded any prosecution of the Kaiser based on "crimes against humanity and civilization," he was to be arraigned "for a supreme offense against international morality and the sanctity of Treaties." Treaty of Peace Between the Allied and Associated Powers and Germany, June 28, 1919, art. 227, reprinted in 11 Martens Nouveau Recueil (Ser. 3) 323 (Fr.). The Tribunal was to be international in character, being composed of five judges appointed, one each, by the United States, Great Britain, France, Italy and Japan, respectively. Id.

n18. Holland refused to extradite the Kaiser, the Germans for the most part refused to deliver their citizens to the tribunals, and most of the few individuals who were tried were acquitted. See Matthew Lippman, Nuremberg: Forty-five Years Later, 7 Conn. J. Int'l L. 1, 10-11 (1991); L.C. Green, The Law of Armed Conflict and the Enforcement of International Criminal Law, 22 Can. Y.B. Int'l L. 3, 10-12 (1984); Claude Lombois, Droit Penal International, 129-35 (1979); Telford Taylor, The Anatomy of the Nuremberg Trials 16-18, 29 (1992). See also William B. Simons, The Jurisdictional Bases of the International Military Tribunal at Nuremberg, in The Nuremberg Trial and International Law 39-41 (Ginsburgs & Kudriavtsev eds., 1990); Jacques Francillon, Crimes de guerre, crimes contre l'humanite PP 4-16 Juris-Classeurs, Droit International, Fascicule 410 (1993).

n19. Leila Sadat Wexler, The Proposed Permanent International Criminal Court: An Appraisal, 29 Cornell Int'l L. J. 665, 669-72 (1996).

n20. For a detailed account of Hitler's ascent to power and its consolidation by the Nazi Party, see Geoffrey Pridham, Hitler's Rise to Power: The Nazi Movement in Bavaria 1923-33, at 295-317 (1973). For the beginning of the Nazi foreign policy and the enactment of the Nuremberg Laws, see William J. Shirer, The Rise and the Fall of the Third Reich: A History of Nazi Germany 208-13, 233 (1960).

n21. Shirer, supra note 20, at 625-26, 694-712, 713-31.

n22. See, e.g., Hermann Kinder & Werner Hilgemann, The Anchor Atlas of World History, Vol. II, at 218 (Ernest A. Menze trans., Anchor Press Doubleday 1978) (reporting 55 million deaths, along with 35 million wounded and 3 million missing); Martin Gilbert, The Second World War: A Complete History 1 (1989) (reporting 46 million soldiers and civilians killed).

n23. The Allies announced their intention to try the Nazis in three separate declarations issued during the course of the war, the most famous of which was the Moscow Declaration of 1943, Declaration of German Atrocities, Nov. 1, 1943, 3 Bevans 816, 834, Dep't St. Bull. 310-11 (Nov. 6, 1943).

n24. For a thorough discussion of this debate, see Ann Tusa & John Tusa, The Nuremberg Trial, chs. 2-6 (1990). America's early position seems to have tracked that of Secretary of State Hull, who favored a "historic incident" sixteen hours after rounding up the Nazi war criminals, id. at 26, though his outlook was soon to change. Among the Allies, the British had been uncompromisingly against the creation of a tribunal and favored summary execution. Id. at 61. Meanwhile, Stalin was surprisingly outspoken in his support of a tribunal, id. at 63, despite drinking "to the justice of the firing squad" and drunkenly joking at Tehran that 50,000 executions of German military officers would be required. Id. at 24. Plans for the war criminals were drafted in the context of an overall post-war plan for Germany. Hull and Secretary of War Stimson promoted reconciliation, including plans to deal with war criminals through judicial means. Id. at 31. Treasury Secretary Morgenthau proposed that Germany be agrarianized through elimination of all industry and that the major war criminals be summarily executed upon identification. Id. at 51. Roosevelt initially favored Morgenthau's proposal, bringing him to a meeting in Quebec with Churchill in September 1944. Churchill agreed with what they proposed - including the execution of all major war criminals - and the leaders initialed, but did not sign, the plan. Incensed by what they considered a usurpation of their responsibilities and afraid of the consequences of his proposal, Hull and Stimson began a campaign against Morgenthau. Details of the execution plan were leaked to the press and "all hell broke loose." Id. at 60. Critics, whose number included Justice Frankfurter, lashed out at the plan. There were even military consequences as Goebbels used the news to spur his troops to fight to the last since the Allies would be "merciless in victory," id. at 61, giving the German troops new fighting spirit and halting the Allied advance. As a result, Roosevelt reluctantly supported the tribunal. Truman, however, enthusiastically embraced the idea, and was able to overcome British reservations. See also Robert E. Conot, Justice at Nuremberg (1983); Whitney R. Harris, Tyranny on Trial (Southern Methodist University Press 1954, 1999); Bradley F. Smith, The American Road to Nuremberg: The Documentary Record 1944-45 (1982); Bradley F. Smith, Reaching Judgment at Nuremberg (1977).

n25. Robert Jackson, The Nuremberg Case 8 (1971) (emphasis added).

n26. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, art. 6(c), 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter IMT Charter]. An excellent review of the drafting process can be found in Roger Clark, Crimes Against Humanity at Nuremberg, in The Nuremberg Trial and International Law 177-78, 180-90 (Ginsburgs & Kudriavtsev eds., 1990); see also Taylor, supra note 18, at 59-74.

n27. IMT Charter, supra note 26, at 288.

n28. Id. at 179. Under this arrangement, minor criminals would be tried by municipal or military courts under the jurisdiction of each individual state.

n29. Judgment of October 1, 1946, International Military Tribunal Judgment and Sentence, 41 Am. J. Int'l L. 172, 252, 333 (1947). The IMT Tribunal found that the SA, the Reich Cabinet, and the General Staff and High Command were not criminal organizations within the meaning of article 9 of the IMT Charter. Id. at 267-72.

n30. Lombois, Droit Penal International, supra note 18, at 162.

n31. Jose Ayala Lasso, former United Nations High Commissioner for Human Rights, available at (last visited June 12, 2003).

n32. S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., art. 9(2), U.N. Doc. S/RES/827 (1993) [hereinafter ICTY Statute]; S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., art. 8(2), U.N. Doc. S/RES/955 (1994) [hereinafter ICTR Statute].

n33. S.C. Res. 1338, U.N. SCOR, 56th Sess., 4268th mtg., U.N. Doc. S/RES/955 (2001). See also S.C. Res. 1272, 1319, 1392, 1410.

n34. S.C. Res. 1315, U.N. SCOR, 55th Sess., 4186th mtg., U.N. Doc. S/RES/1315 (2000).

n35. See G.A. Res. 228, U.N. GAOR, 57th Sess., U.N. Doc. A/RES/57/228 A, B (2003). The United Nations General Assembly adopted a resolution containing the 32-article draft agreement between the U.N. and Cambodia concerning the prosecution of genocidal crimes committed by Khmer Rouge leaders during the rule of the Pol Pot regime. The resolution has been adopted by Cambodian cabinet members, and now awaits the ratification by the nation's parliament. Cambodia Welcomes UN approval of Khmer Rouge Trials, Agence France-Presse, May 14, 2003, at (last visited June 18, 2003); see also Phil Reeves, Pol Pot's henchmen to face UN trial for genocide, The Independent, Mar. 18, 2003, at (last visited June 18, 2003).

n36. G.A. Res. 44/39, U.N. GAOR, 44th Sess., Supp. No. 49, at 1, U.N. Doc. A/RES/44/39 (1989).

n37. The draft statute was based on a sixty-seven article document produced by the ILC's working group on a draft statute for an international criminal court in 1993. Report of the International Law Commission on the Work of its Forty-Fifth Session, G.A. Res. 31, U.N. GAOR, 48th Sess., at 2, U.N. Doc. A/RES/48/41 (1993); Report of the Working Group on a Draft Statute for an International Criminal Court, 48 U.N. GAOR Supp. No. 10, at 100-32, U.N. Doc. A/48/CN.4/SER.A/1993/Add.1 (Part 2) (1993). The Working Group's draft was forwarded to the General Assembly for comment, and became the basis for the 1994 draft finally adopted. For a discussion of the 1993 Draft, see James Crawford, The ILC's Draft Statute for an International Criminal Tribunal, 88 Am J. Int'l L. 140 (1994).

n38. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, U.N. GAOR, 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995).

n39. G.A. Res. 46, U.N. GAOR, 50th Sess., at 2, U.N. Doc. A/Res/50/46 (1995). For the history of the period 1989 to 1995, see Sadat, supra note 19, at 683-86.

n40. For a summary of these Preparatory Committee proceedings, see Report of the Preparatory Committee on the Establishment of an International Criminal Court (Proceedings of the Preparatory Committee during March-April and August 1996), Vols. I & II, U.N. GAOR, 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996); Decisions Taken by the Preparatory Committee at its Session Held from 11 to 21 February 1997, U.N. Doc. A/AC.249/1997/L.5 (1997); Decisions Taken by the Preparatory Committee at its Session Held from 4 to 15 August 1997, U.N. Doc. A/AC.249/1997/L.8/Rev.1 (1997); Decisions Taken by the Preparatory Committee at its Session Held from 1 to 12 December 1997, U.N. Doc. A/AC.249/1997/L.9/Rev.1 (1997); Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/2/Add.1 (1998); Report of the Inter-sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands, U.N. Doc. A/AC.249/1998/L.13 (1998). In addition, several informal inter-sessional meetings took place resulting in revised drafts of the Statute. The International Institute of Higher Studies in Criminal Sciences (ISISC) in Siracusa, Italy hosted four of these inter-sessional meetings held from December 3 to 8, 1995, July 10 to 14, 1996, May 29 to June 4, 1997 and November 17 to 21, 1997. M. Cherif Bassiouni, Historical Survey: 1919-1998, in Statute of the International Criminal Court: A Documentary History 1, 24 (M. Cherif Bassiouni ed., 1998). The final intersessional meeting, held in Zutphen, the Netherlands, in January 1998, produced the Zutphen Intersessional Draft. Report of the Intersessional Meeting From 19 to 30 January 1998 in Zutphen, the Netherlands, U.N. Doc. A/AC.249/1998/L.13 (1998). For a chronology of the Preparatory Committee process, as well as the Diplomatic Conference, see generally Sadat, supra note 16, at 8-19, and sources cited.

n41. Rome Statute, supra note 1, Annex II. One hundred and thirty-seven NGOs were officially credentialed at the Conference. Id. at Annex IV. However, nearly 250 NGOs were actually represented in Rome. Bassiouni, Historical Survey, supra note 40, at 26 n.135. In addition to the NGOs, representatives of 16 intergovernmental organizations, 5 specialized agencies, 9 United Nations programs and the Palestinian people attended the conference. Rome Statute, Annex III.

n42. See Sadat, supra note 16, at 1-5; Leila Nadya Sadat & S. Richard Carden, The New International Criminal Court: An Uneasy Revolution, 88 Geo. L.J. 381, 383 (2000) [hereinafter Uneasy Revolution].

n43. Bassiouni, Historical Survey, supra note 40, at 26. Brackets were used by the Preparatory Committee to indicate proposed text as an option for the delegates to consider. The 128-article Rome Statute is much more complex and twice as long as the 60-article ILC Draft on which it was based.

n44. The Drafting Committee also worked under very difficult circumstances because the text was received piecemeal from the Committee of the Whole, and the U.N. translators were not in Rome. For this reason, the members of the Drafting Committee sat in linguistic groups in order to check for themselves the accuracy of the six official versions of the Statute being adopted as the Conference progressed. Notes from discussions with Cherif Bassiouni, Chair of the Conference's Drafting Committee.

n45. Philippe Kirsch & John T. Holmes, The Rome Conference on an International Criminal Court: The Negotiating Process, 93 Am J. Int'l. L. 2, 10 (1999).

n46. See generally Kirsch & Holmes, supra note 45; John L. Washburn, The Negotiation of the Rome Statute for the International Criminal Court and International Lawmaking in the 21st Century, 11 Pace Int'l L. Rev. 361 (1999); U.N. Dept. Of Public Information, International Criminal Court: Some Questions and Answers #3 (undated), at (last visited June 20, 2003).

n47. Bassiouni, Historical Survey, supra note 40, at 31-33.

n48. Id. at 32 n.156. The United States requested the vote. Because it was unrecorded, it is unclear which States voted no, in addition to the United States, although China, India, Iraq, Israel, Qatar, and Yemen now appear to be the most likely candidates.

n49. Honorable Bill Richardson, U.S. Ambassador to the United Nations, Address at the Diplomatic Conference, at (last visited Oct. 6, 2003). Hon. Richardson stated that the United States remained "cautiously optimistic" as to the possibility that the Conference's outcome would be successful.

n50. The CICC originated under the auspices of the World Federalist Movement and ultimately grew from 30 to 800 NGOs from all over the world by the time of the Rome Conference. At this writing, the number of members of the CICC has grown to "well over 1,000 non-governmental organizations." CICC Home Page, at (last visited June 18, 2003).

n51. In addition to the Like-Minded Group, States coalesced into different groups depending upon the issue involved. The permanent members of the Security Council (P-5) had the strongest solidarity on two points: preserving a strong role for the Council vis-a-vis the Court, and excluding nuclear weapons from those weapons that would ultimately be prohibited by the Statute. Opposing the P-5 were States that were extremely suspicious of the Council, and which insisted upon the inclusion of nuclear weapons among the weapons ultimately prohibited (including India, Mexico and Egypt). On other issues, States took positions that generally transcended the caucuses that characterize the General Assembly and grouped together based upon common interests. Kirsch & Holmes, supra note 45, at 4; Washburn, Negotiation of the Rome Statute, supra note 46, at 367.

n52. This group of States tended to act in concert during the meetings of Preparatory Committee and in Rome. See Bassiouni, Historical Survey, supra note 40, at 25. The like-minded group became increasingly powerful as the treaty-making process continued. Fanny Benedetti & John L. Washburn, Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterword on the Rome Diplomatic Conference, 5 Global Governance 1, 30-31 (1999). It originated with 42 States and grew considerably thereafter to more than sixty members. Id. This group had been formed during the Ad Hoc Committee's work by a handful of Western European and Latin American states that were frustrated by the opposition of the major powers to the establishment of the ICC. It did not include any of the permanent members of the Security Council until the United Kingdom joined it after the Labor Party's victory in British elections. Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 93 Am. J. Int'l. L. 22, 23 (1999). Because the group "was the only one with an operational strategy," it was clearly the moving force behind the Conference's successful conclusion. Benedetti & Washburn, at 30-31.

n53. Another important element of the Statute's negotiation was the presence of powerful caucuses, such as the Women's Caucus for Gender Justice in the International Criminal Court, the Children's Caucus and the Victims Caucus who often served as expert consultants to delegates on particular issues. On the Women's Caucus, see generally Kelly D. Askin, Crimes within the Jurisdiction of the International Criminal Court, 10 Crim. L. F. 33, 45 (1999)

n54. CICC Website, Rome Statute Signature and Ratification Chart, at countryinfo/worldsigsandratifications.html (last visited June 19, 2003). As of June 19, 2003, the following States have ratified the Statute: Afghanistan, Albania, Andorra, Antigua and Barbuda, Argentina, Australia, Austria, Barbados, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Cambodia, Canada, Central African Republic, Colombia, Costa Rica, Croatia, Cyprus, Democratic Republic of Congo, Denmark, Djibouti, Dominica, East Timor, Ecuador, Estonia, Fiji, Finland, France, Gabon, Gambia, Germany, Ghana, Greece, Honduras, Hungary, Iceland, Ireland, Italy, Jordan, Latvia, Lesotho, Liechtenstein, Lithuania, Luxembourg, Macedonia (F.Y.R), Malawi, Mali, Malta, Marshall Islands, Mauritius, Mongolia, Namibia, Nauru, Netherlands, New Zealand, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Poland, Portugal, Republic of Korea, Romania, Saint Vincent and the Grenadines, Samoa, San Marino, Senegal, Serbia and Montenegro, Sierra Leone, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Tajikistan, Tanzania (United Rep.), Trinidad and Tobago, Uganda, United Kingdom, Uruguay, Venezuela, Zambia. Id.

n55. See Roy S. Lee, The Rome Conference and its Contribution to International Law, in The International Criminal Court: The Making of the Rome Statute 25 (Roy S. Lee ed., 1999) [hereinafter Making of the Rome Statute].

n56. Washburn, supra note 46, at 372.

n57. Bassiouni, Historical Survey, supra note 40, at 31.

n58. Alessandra Stanley, U.S. Dissents, but Accord Is Reached on War-Crime Court, N.Y. Times, July 18, 1998, at A3.

n59. States that signed the Final Act of the Rome Diplomatic Conference and other States which were invited to participate in that Conference were eligible to attend the Preparatory Commission meetings.

n60. Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court on 17 July 1998, Annex I, Resolution F, U.N. Doc. A/CONF.183/10 (1998).

n61. Id. P 6.

n62. Phillippe Kirsch, The Work of the Preparatory Commission, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence xivi (Roy S. Lee ed., 2001).

n63. See Establishment of an International Criminal Court, G.A. Res. 53, U.N. GAOR 6th Comm., 53d Sess., U.N. Doc. A/RES/53/105 (1999).

n64. See Establishment of an International Criminal Court, G.A. Res. 54, U.N. GAOR 6th Comm., 54th Sess., U.N. Doc. A/RES/54/105 (2000).

n65. See Establishment of an International Criminal Court, G.A. Res. 55, U.N. GAOR 6th Comm., 55th Sess., U.N. Doc. A/RES/55/155 (2001).

n66. See Establishment of an International Criminal Court, G.A. Res. 56, U.N. GAOR 6th Comm., 56th Sess., U.N. Doc. A/RES/56/85 (2002).

n67. Mr. George Winston Mckenzie (Trinidad and Tobago), Mr. Medard Rwelamira (South Africa) and Mr. Muhammed Sacirbey (Bosnia and Herzegovina) served as Vice-Chairpersons and the Rapporteur was Mr. Salah Suheimat (Jordan). Report of the Second Session of the Preparatory Commission for the International Criminal Court, PCNICC/1999/L.4/Rev.1 (1999), available at law/icc/prepcomm/prepjul.htm (last visited Oct. 6, 2003).

n68. See Proceedings of the Preparatory Committee at its fourth session (13-31 March 2000), U.N. Doc. PCNICC/2000/L.1/Rev.1, Apr. 3, 2000.

n69. Id.; Proceedings of the Preparatory Committee at its fifth session (12-30 June 2000), U.N. Doc. PCNICC/2000/L.1/Rev.1, Apr. 3, 2000.

n70. The United States proposal was the basis for work on the elements for the crime of genocide, and significantly influenced work on the elements for war crimes and crimes against humanity. Herman von Hebel, The Making of the Elements of Crimes, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence xivi (Roy S. Lee ed., 2001); Kirsch, supra note 62.

n71. For example, the United States' proposed a text during the Fifth session relating to article 98 which attempted to require the Court to comply with so-called article 98 agreements for immunity entered into by it. Proposal submitted by the United States of America concerning rules of procedure and evidence relating to Part 9 of the Statute (International Cooperation and Judicial Assistance), Proposed rule to article 98, U.N. Doc. PCNICC/2000/WGRPE(9)/DP.4 (2000). The original proposal was issued during the fourth PrepCom Session and presented unofficially to governments and was introduced formally into the fourth PrepCom session. It contained two parts, the first addressing article 98, and the second which would have exempted personnel in U.N. missions from the jurisdiction of the ICC unless the sending state of their nationality consented. This, of course, was a proposal that was reincarnated as Security Council Resolution 1422. See supra notes 10-11 and accompanying text. It also introduced a proposal suggesting the development of factors for the Court relevant to the investigation, prosecution and surrender of suspects. Proposal submitted by the United States of America, Further issue for consideration by the Preparatory Commission, U.N. Doc. PCNICC/2000/DP.1 (2000).

n72. Senegal Makes History with the First Ratification of the Rome Statute, Number of Signatories Climbs to 79, The International Criminal Court Monitor, Issue 11 (Apr. 1999) at 1.

n73. Brazil, for example, passed two Constitutional amendments to allow ratification. While the amendments now allow the country accept the ICC's jurisdiction, they include a provision excluding the possibility that a life-term imprisonment sentence be carried out on Brazilian territory. CICC Website, Country Information: The Americas: Brazil, at . html (last visited June 19, 2003). Portugal also passed a constitutional amendment in order to make its national constitution compatible with the Statute's provisions regarding life imprisonment. CICC Website, Country Information: Europe/CIS: Portugal, at . html (last visited June 19, 2003).

n74. Although France adopted a constitutional amendment to waive presidential immunity, presidential immunity continues to be an issue with Israel (CICC Website, Country Information: North Africa/Middle East: Israel, at . org/countryinfo/northafricamiddleeast/israel.html (last visited June 19, 2003)); Slovakia (CICC Website, Country Information: Europe/CIS: Slovakia, at http:// countryinfo/europecis/slovakia.html (last visited June 19, 2003)); and Azerbaijan (CICC, European Newsletter #22 at 10, at publications/europeanupdates/euroupdate22.200302.pdf (last visited June 19, 2003)). Meanwhile President Vladimir Putin has sought legislation to grant the President of Russia criminal immunity (Ian Traynor, Vote Gives Putin Chance of Lifelong Criminal Immunity, The Guardian, Nov. 30, 2000, available at 2000 WL 30306662) and Uzbekistan is wrestling with a situation in which public officials do not have complete immunity, but are tried in special courts (CICC Website, Country Information: Europe/CIS: Uzbekistan, at countryinfo/europecis/uzbekistan.html (last visited June 19, 2003)).

n75. Statement of Mexico to the Eighth Session of the Preparatory Commission on September 24, 2001, CICC, Notes Taken by the Secretariat. Several countries in particular have taken significant steps toward implementing legislation, including Australia, Austria, Belgium, Brazil, Canada, Germany, Italy, Mexico, Poland, Portugal, Slovenia, South Africa, Switzerland and the United Kingdom. CICC, Country Information, at (last visited June 19, 2003).

n76. For example, the EU Member States issued a press release on February 16, 1999 stating that EU Member States "undertake to complete their individual constitutional procedures for ratification as speedily as possible." Similarly, the Caricom nations met in March 1999 and adopted a declaration calling for ratification of the Statute "within the shortest possible time," CARICOM States Adopt Pro-ICC Resolution, 11 The International Criminal Court Monitor 2 (Apr. 1999) and the twelve member states of the Southern Africa Development Community held a forum in July 1999 and committed themselves to the "expeditious ratification" of the Statute in their respective countries. Pretoria Statement of Common Understanding on the ICC, 12 The International Criminal Court Monitor 3 (Aug. 1999).

n77. Preparatory Commission for International Criminal Court Opens Seventh Session at Headquarters, Preparatory Commission for International Criminal Court 27th Meeting (AM), U.N. Doc. No. L/2975, Feb. 26, 2001.

n78. See Road Map leading to the early establishment of the International Criminal Court, U.N. Doc. PCNICC/2001/L.2, Sept. 26, 2001. See also William R. Pace, First Year Challenges Growing - Dutch Foreign Minister Meets with Coalition Convener, 18 The International Criminal Court Monitor 4 (Sept. 2001).

n79. Statement of H.E. Jozias J. Van Aartsen, Minister of Foreign Affairs of The Netherlands, Sept. 25, 2001, quoted in Progress Report on the Ratification and National Implementing Legislation of the Statute for the Establishment of an International Criminal Court, The International Human Rights Law Institute, DePaul University College of Law 11 (10th ed. 2003) [hereinafter Progress Report].

n80. International Criminal Bar G.A. Res., Adoption of the International Criminal Bar Constitution, Mar. 21, 2003, available at justice/ icc/lawyers/criminal bar/crim bar 06.pdf (last visited June 23, 2003).

n81. See, e.g., Eduardo Gonzalez Cueva, Judges Cannot All Come from the West, 18 The International Criminal Court Monitor 14 (Sept. 2001).

n82. Anthony Deutsch, World Criminal Court Welcomed, AP Online, Oct. 5, 2001.

n83. Only a small U.S. delegation attended the seventh session of PrepCom II, and the two delegates present only attended the debates on the crime of aggression. According to the CICC, the U.S. gave as its reasons for absence that previous efforts to satisfy U.S. concerns in U.N. negotiations on the ICC had been futile. The delegation was larger at the eighth session, and included higher level officials who followed both the crime of aggression and discussions on the Court's financing. CICC website, Country Information: The Americas: United States, at . ./countryinfo/theamericas/unitedstates.html (last visited June 23, 2003). The United Nations list includes two U.S. delegates accredited to the Seventh session of the PrepCom, and five for the Eighth.

n84. Leila Nadya Sadat, The International Criminal Court Treaty Enters into Force, ASIL Insight , April, 2002, at 8; Press Release, UNIC, Ratification Ceremony at UN Paves Way for International Criminal Court (Apr. 12, 2002), available at (last visited June 18, 2003).

n85. See Procedure for the nomination and election of judges, the Prosecutor and Deputy Prosecutors of the International Criminal Court, Res. ICC-ASP/1/Res.2, U.N. Doc. PCNICC/2002/WGASP-PD/DP.5 (2002).

n86. See Sadat & Carden, Uneasy Revolution, supra note 42, at 402-03.

n87. For a summary of the work of the Assembly of States Parties, see Progress Report, supra note 79, at 13.

n88. Rene Blattmann (Bolivia); Maureen Harding Clark (Ireland); Fatoumata Dembele Diarra (Mali); Adrian Fulford (United Kingdom); Karl T. Hudson-Phillips (Trinidad and Tobago); Claude Jorda (France); Hans-Peter Kaul (Germany); Philippe Kirsch (Canada); Erkki Kourula (Finland); Akua Kuenyehia (Ghana); Elizabeth Odio Benito (Costa Rica); Gheorghios M. Pikis (Cyprus); Navanethem Pillay (South Africa); Mauro Politi (Italy); Tuiloma Neroni Slade (Samoa); Sang-hyun Song (Republic of Korea); Sylvia H. de Figueiredo Steiner (Brazil); Anita Usacka (Latvia). International Criminal Court, Judges Biographical Notes, at (last visited Oct. 27, 2003).

n89. ICC opponents Darin Bartram and David Rivkin wrote an editorial in the Wall Street Journal Europe entitled "The ICC's First False Step" accusing the Assembly of States Parties of disregarding the proper procedures in the selection of three of the eighteen judges of the Court, and suggesting that the judges were therefore "tainted." The editorial concludes "the way in which the Assembly of States Parties ignored the requirements of the ICC's founding statute ... suggests that the law is not going to be permitted to interfere with what they believe to be the court's overarching mission." Darin R. Bartram & David B. Rivkin, The ICC's First False Step, Wall St. J. Europe, Feb. 17, 2003, at A9. Bartram and Rivkin were incorrect about the alleged error in voting procedures, which complied perfectly with the Statute, the procedures adopted for election by the ASP, and United Nations' voting rules. See Brigitte Suhr, Letters to the Editor: The ICC Judges the Judges Correctly, Wall St. J. Europe, Feb. 25, 2003, at A9, available at 2003 WL-WSJE 3871424. The three judges whose election they attacked were not only properly elected, but extraordinarily well-qualified to serve, and included a British barrister with 43 years experience practicing before the courts of the English speaking Caribbean and the British House of Lords, a South African judge with a PhD from Harvard Law School and almost 40 years legal experience, who was the first black woman ever elected to the bench there and is currently President of the ICTR, and a brilliant Finnish judge with a PhD from the University of Cambridge who has served in the Finnish foreign ministry for approximately 20 years and speaks seven languages.

n90. Rules of Procedure and Evidence of the Rome Statute, Rule 5(1)(a), U.N. Doc PCNICC/2000/INF/3/Add.1 (2000).

n91. See id.

n92. Canadian Judge Elected President of New World Court, Agence France Presse, Mar. 11, 2003.

n93. Curriculum vitae Dr. Luis Moreno Ocampo, available at otp/moreno ocampo cve revised.pdf (last visited Oct. 27, 2003).

n94. Id.

n95. Media Alert, International Criminal Court, Election of the Prosecutor (Apr. 24, 2003), available at (last visited Oct. 6, 2003).

n96. Judge Luis Moreno-Ocampo, Statement made at the Ceremony for the solemn undertaking of the Chief Prosecutor of the International Criminal Court (June 16, 2003), available at (last visited June 20, 2003).

n97. William Jefferson Clinton, A Commitment to Human Dignity, Democracy, and Peace, in Issues of Democracy: Confronting Human Rights Violations, Electronic Journals of the U.S. Information Agency, Vol. 1 No. 3, at journals/itdhr/0596/ijde/ijde0596.pdf (last visited June 23, 2003); Peter Baker, Clinton Renews Call for Standing War Crimes Tribunal, Wash. Post, Jan. 30, 1997, at A8.

n98. The Senate approved the State Department Authorization Bill, containing a section expressing the sense of the Congress that the administration should "make every effort to advance" the concept of a permanent international criminal court at the United Nations. S. 1281, 103d Cong. 170(a) (1993); see also S.J. Res. 32, 103d Cong. (1993).

n99. See supra note 98.

n100. Barbara Crossette, Helms Vows to Make War on U.N. Court, N.Y. Times, Mar. 27, 1998, at A9.

n101. See, e.g., Eric Schmitt, Pentagon Battles Plans for International War Crimes Tribunal, N.Y. Times, Apr. 14, 1998, at A1; Thomas M. Franck, Notes from the President, ASIL Newsletter (Am. Soc'y Int'l Law, Washington, D.C.), Sept.-Oct. 1998, available at (last visited Aug. 21, 1999).

n102. See Statement of David J. Scheffer, Ambassador-at-Large for War Crimes Issues and Head of the U.S. Delegation to U.N. Diplomatic Conference on the Establishment of a Permanent International Court, Before the Committee on Foreign Relations of the U.S. Senate, July 23, 1998, reprinted in 1998 WL 425945, 1 (F.D.C.H.).

n103. See id.

n104. Ambassador Scheffer also complained that a last-minute resolution (Resolution E) appended to the text proposed that terrorism and drug crimes be brought within the jurisdiction of the Court at a review conference in the future, and that the Treaty permits no reservations. See id. Finally, he argued that the treaty should have included a ten-year opt-out for war crimes and crimes against humanity (it included a seven year opt-out for war crimes only). I have addressed these objections in an earlier writing, and will not take them up further here. See Sadat & Carden, Uneasy Revolution, supra note 42, at 448-57.

n105. The United States has no objection to referrals by the Security Council of cases involving nonparty State nationals, and presumably is not proposing that the Security Council has more claim to prescribe international criminal law norms than the Diplomatic Conference. Indeed, when the Security Council adopted the Statutes of the ICTY and ICTR, it was careful to point out the pre-existing customary international law nature of the crimes. See Jordan J. Paust et al., International Criminal Law 163 (1996).

n106. The United States currently maintains jurisdiction over members of the armed forces for crimes committed abroad by entering into Status of Forces Agreements (SOFAs) with nations where U.S. soldiers are stationed. See, e.g., Agreement Between the United States of America and Japan Concerning New Special Measures Relating to Article XXIV of the Agreement Under Article VI of the Treaty of Mutual Cooperation and Security the United States of America and Japan, Regarding Facilities and Areas and the Status of United States Armed Forces in Japan, art. XVII. Article 98 (2) of the Statute factors agreements such as SOFAs into the determination of whether a State is required to surrender a suspect to the Court. Rome Statute, supra note 1, art. 98(2).

n107. The U.S. objection to jurisdiction over non-State Party nationals is even less comprehensible in light of the number of treaties containing similar provisions to which the U.S. is a signatory or Party, including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Feb. 4, 1985, art. 5, G.A. Res. 39/46, U.N. GAOR, 39th Sess., 93d plen. mtg., Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027 (1984), modified in 24 I.L.M. 535 (1985); the Convention on Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, art. 4, 22 U.S.T. 1641, 860 U.N.T.S. 105 (entered into force Oct. 14, 1971); the International Convention Against the Taking of Hostages, opened for signature Dec. 18, 1979, art. 5, G.A. Res. 34/146, U.N. GAOR, 34th Sess., 105th plen. mtg. at 245, U.N. Doc. A/RES/34/146 (1979); and the Convention on the Safety of United Nations and Associated Personnel, Dec. 9, 1994, art. 10, G.A. Res. 49/59, U.N. GAOR, 49th Sess., 84th plen. mtg., U.N. Doc. A/RES/49/59 (1994). None of these conventions require that jurisdiction be tied to the nationality of the offender; see United States v. Yunis, 681 F. Supp. 896, 905 (D.D.C. 1988) (noting that U.S. hostage taking statute applied extraterritorially to "any perpetrator who takes a United States national hostage anywhere in the world" (emphasis in original) (citing Legislative Initiatives to Curb Domestic and International Terrorism: Hearings on S. 2470, S. 2624, S. 2625, S. 2626 Before the Subcomm. on Security and Terrorism of Senate Judiciary Comm., 98th Cong. 128 (1984), at 48-49)). Thanks to Professor Michael Scharf for his comments regarding U.S. participation in these treaties.

n108. Accord Michael P. Scharf, Symposium: Universal Jurisdiction: Myths, Realities, and Prospects: Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States, 35 New Eng. L. Rev. 363 (2001). But see Madeline Morris, The United States and the International Criminal Court: High Crimes and Misconceptions: The ICC and Non-Party States, 64 Law & Contemp. Probs. 13 (2001).

n109. Philippe Kirsch, The Rome Conference on the International Criminal Court: A Comment, ASIL Newsletter (Am. Soc'y of Int'l Law, Washington, D.C.) Nov.-Dec. 1998, at 1, 8. Ambassador Scheffer rejoined that the United States could not accept the exercise of "universal jurisdiction" by a Court created by treaty, even if it could accept that universal jurisdiction could be exercised by States, for to do so would contravene "fundamental principles of treaty law." David J. Scheffer, Speech at the Twelfth Annual U.S. Pacific Command International Military Operations and Law Conference (Hawaii, Feb. 23, 1999), available at http:// www/policy remarks/1999/990223 scheffer hawaii.html (last visited Oct. 1, 2003).

n110. Rome Statute, supra note 1, art. 17(1).

n111. Id. The Statute requires that the State's investigation be conducted in a "genuine" fashion, and adds that unwillingness to prosecute is defined as situations in which the proceedings were taken for the purpose of shielding the person concerned from criminal responsibility, where there has been an unjustified delay in the proceedings that is inconsistent with an intent to bring the person concerned to justice, or where the proceedings were not, or are not being, conducted independently or impartially and in a manner that is consistent with an intent to bring the person to justice. Id. It is true that it is the Court, not the State concerned, that has the last word on the interpretation of a State's willingness to prosecute, which some critics have suggested renders complementarity an illusory protection. Yet all States insisted on this protection for their nationals, and it is enshrined as a fundamental principle of the Treaty, present in the opening articles of the Statute as well as the Preamble, and implemented through procedural rules that permit States to challenge jurisdiction and admissibility on this ground at every stage of the proceeding up to trial. See Sadat, supra note 16, at 119, 122-25.

n112. See, e.g., John T. Holmes, The Principle of Complementarity, in Making of the Rome Statute, supra note 55, at 41, 68-73 (discussing U.S. proposal regarding preliminary rulings on admissibility, which would provide for the Court to be seized of complementarity questions at an early stage of the investigation).

n113. Rome Statute, supra note 1, art. 5(2).

n114. Thomas E. Ricks, U.S. Signs Treaty on War Crimes Tribunal, Wash. Post, Jan. 1, 2001, at A1.

n115. 16David Scheffer, Staying the Course with The International Criminal Court, 35 Cornell Int'l L.J. 47, 48-49 (2002).

n116. Is a U.N. International Criminal Court in the U.S. Interest?: Hearing before the Subcommittee on International Operations of the Committee on Foreign Relations, 105th Cong. 28-31 (1998) (statement of Hon. John Bolton, Former Assistant Secretary of State for International Organization Affairs; Senior Vice President, American Enterprise Institute, Washington, D.C.), available at .

access.cgi-bin/getdoc.cgi?dbname=105 senate hearings&docid=f:50976.

wais (last visited June 23, 2003) [hereinafter Bolton, U.N. International Criminal Court].

n117. The Bush administration conducted a policy review of the ICC Statute that considered a variety of approaches to the Statute. See Bruce Zagaris, U.S. Continues to Assess Options as ICC's Start Draws Near, 18 No. 4 Int'l Enforcement L. Rep. 162 (2002).

n118. Christopher Marquis, U.N. Begins Choosing the Judges for New Court, N.Y. Times, Feb. 6, 2003 (late ed.), at A9.

n119. See, e.g., Paula R. Kaufman, Bolton is on Duty as America's Sentry, Insight on the News, July 22, 2002, at 3639, available at 2002 WL 8338907.

n120. See Bolton, U.N. International Criminal Court, supra note 117.

n121. See supra note 3.

n122. Lee A. Casey & David B. Rivkin, Jr., The International Criminal Court vs. the American People, Heritage Foundation Backgrounder No. 1249, 6-7 (1999); Bolton, Remarks, supra note 7. Ironically, critics of the Court often argue that it is both too weak and too strong. Too strong because it does not accord the U.S. a veto; too weak, because it will not deter international crime or be an effective endeavor in the face of mass atrocities, given its failure to accord the United States an exemption from its jurisdictional reach. See, e.g., Stephen D. Krasner, A World Court that Could Backfire, N.Y. Times, Jan. 15, 2001 (late ed.) (op. ed.), at A15; Jack Goldsmith, The Self-Defeating International Criminal Court, 70 Chi. L. Rev. 89 (2003). Bolton himself refers to the "Statute's enormous power of law enforcement," but then argues that "the danger of the ICC may lie in its potential weakness" because it will fail to deter international crime because it will be a "weak and distant Court." Bolton, Remarks, supra note 7.

n123. See supra note 5 and accompanying text.

n124. Representative Crowley sent a letter to President Bush opposing the withdrawal of the U.S. signature to the treaty on May 22, 2002, available at facts crowleyletter.html (last visited June 10, 2003). He was joined by forty-five other representatives.

n125. The International Criminal Court, N.Y. Times, Mar. 29, 2003 (op. ed.), at A24 (arguing that the U.S. should acknowledge that the Court is an ally).

n126. This view is grossly distorted. Although the ICC does not mimic U.S. federal institutions, the Court and its personnel are clearly accountable to the Assembly of States Parties, and each of the four organs of the Court has been designed in a manner to complement and counterbalance the powers of the others. Some have argued that it would be unconstitutional to ratify the ICC Statute because any trials held before its judges would not be consistent with the right to trial by jury and other protections enshrined in the Bill of Rights. See Bolton, supra note 7. This question has been exhaustively studied both by scholars and by the U.S. government, and these allegations have been largely rejected. See Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 Colum. J. Transnat'l L. 73, 79 (1995). Moreover, even if this view was correct, it would not suggest that the Court should be attacked by the United States, only that ratification of the ICC Treaty would present Constitutional difficulties for the United States that might ultimately hinder or prevent its active participation.

n127. International Criminal Courts: Hearing of the Senate Foreign Relations Comm., 106th Cong. 10, 28 (2000) (testimony of Jeremy Rabkin, Professor, Department of Government, Cornell University).

n128. Id.

n129. See Grossman, supra note 12.

n130. Lee Dembart, U.S. and Global Criminal Court: How Much Leeway for Washington? Int'l Herald Trib., Sept. 25, 2002, available at 2002 WL 2888889.

n131. Jamie Mayerfeld, Who Shall be Judge?: The United States, the International Criminal Court, and the Global Enforcement of Human Rights, 25 Hum. Rts. Q. 93, 119 (2003). In support of this thesis, Mayerfeld cites the statements of Republican Congressman Chris Smith of New Jersey, who complained that the ICC Statute, if adopted prior to World War II, would have prohibited the firebombing of Dresden and the dropping of the atom bomb on Hiroshima and Nagasaki. Id., citing The International Criminal Court: Recent Development, Hearing before the House Comm. on International Relations, 106th Cong. (2000).

n132. Mayerfeld, supra note 132, at 118.

n133. Sadat, supra note 16, at 9; see generally Henry T. King & Theodore C. Theofrastous, From Nuremberg to Rome: A Step Backward for U.S. Foreign Policy, 31 Case W. Res. J. Int'l L. 47 (1999).

n134. Cf. S.C. Res. 1373, U.N. SCOR, 56th Sess., U.N. Doc. S/RES/1373 (2001).

n135. For example, opponents of the Court have complained about the principle of universal jurisdiction upon which the Court's jurisdiction is partially premised, Jack Goldsmith & Stephen D. Krasner, The Limits of Idealism, Daedalus 47 (forthcoming Winter 2003), perhaps not realizing that the United States needs to rely on the principle of universal jurisdiction (that any state may, and indeed must, prosecute international terrorists) in its fight against impunity for international terrorists. See, e.g., S.C. Res. 1373, U.N. SCOR, 56th Sess., U.N. Doc. S/RES/1373 (2001).

n136. Leila Nadya Sadat, Terrorism and the Rule of Law, 2 Wash. U. Global Studies L. Rev. (forthcoming 2003). Cf. Joseph S. Nye , Jr., The Paradox of American Power: Why the World's Only Superpower Can't Go It Alone (2002).

n137. See, e.g., supra note 123; Letter from the Association of the Bar of the City of New York to President George W. Bush (Mar. 11, 2003), available at .

pdf/report/Intl%20Law%20-%20Letter%20to%20Bush%20re%20

ICC.pdf (last visited Oct. 6, 2003) (urging the United States government to reconsider its opposition to the Court); 149 Cong. Rec. S5720-01 (daily ed. May 5, 2003) (statement of Sen. Leahy), available at 2003 WL 21002574.

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