As described above, U.S. policymakers in both Republican and Democratic administrations have emphasized their desire to protect U.S. personnel from the jurisdiction of the ICC. For example, then-Senator Biden, in his explanation of vote on the American Servicemembers Protection Act in 2002, stated that
“I do support protecting American servicemen and women. The Court statute purports to provide jurisdiction over individuals from nations which have not become party to it. That is wrong as a matter of treaty law and of basic fairness. We can and must protect our servicemen from the jurisdiction of this tribunal.”
Such concerns about subjecting U.S. personnel to non-U.S. jurisdiction pre-date the promulgation of the Rome Statute. Indeed, they figured prominently in the ratification debates regarding the NATO Status of Forces Agreement (SOFA) in the early 1950s as well as in the negotiation of subsequent bilateral SOFAs modelled on the NATO agreement. The NATO SOFA provides for a system of shared jurisdiction between “sending” and “receiving” states when it comes to the U.S. military forces who would, for the first time, be stationed on the territory of European allies following World War II. When the NATO SOFA was submitted to the Senate for its advice and consent, strong criticism emerged that the United States was seeming to allow the exercise of foreign criminal jurisdiction over U.S. personnel deployed abroad, and there were calls—ultimately unsuccessful—to issue a reservation to the treaty under which U.S. military authorities would retain exclusive jurisdiction over their personnel stationed abroad.
Although the Senate eventually provided its advice and consent to the NATO SOFA, the Defense Department and the U.S. Government have highlighted ever since the importance of maximizing legal protection for U.S. forces serving overseas. While events can sometimes supervene, longstanding U.S. policy has been “not to send military personnel to a foreign country without satisfactory status protections.” The traditional rationales in support of the need for such legal protections include the importance of enforcing U.S. military discipline through the chain of command and within the U.S. military justice system, as well as of ensuring that the individuals required under military orders to serve in foreign locations enjoy the full range of constitutional due process rights. In addition, providing commanders with full control and disciplinary authority over their forces, including the potential for prosecutions under the Uniform Code of Military Justice (UCMJ), is seen as a necessary corollary of the fact that U.S. forces are deployed globally, the fact that superiors are accountable for the conduct of the forces under their command, and confidence in the overall integrity of its military and civilian judicial systems.
The United States has sought to utilize the provisions of Article 98(2) of the Rome Statute to protect its personnel from ICC jurisdiction. By its terms, that provision contemplates agreements that would prevent the Court from seeking the surrender of a person to the ICC if doing so would put it in violation of competing legal obligations under a SOFA. Under the Bush Administration, the United States thus sought free-standing Article 98 agreements with a number of states and language in Security Council resolutions exempting the personnel of non-member states contributing to peacekeeping missions from ICC jurisdiction in order to minimize the risk that the ICC could obtain jurisdiction over U.S. personnel. The United States' effort to secure such agreements can be seen as responsive to the perceived need to protect U.S. servicemen and servicewomen from these kinds of risks, though the amount of practical protection afforded by such agreements was relatively small, and many believe that the real purpose of pursuing such agreements was political rather than practical. Separately, it is worth noting that many friends and allies objected to the Article 98 agreements not in principle, but because of what they saw as undue pressure by the United States to get them to sign these agreements, and because the agreements were drafted in a manner so as to cover persons—e.g., private persons with no affiliation with the U.S. Government—that, in their view, were not permitted to be included under the terms of Article 98.
With this goal of maintaining U.S. jurisdiction over servicemembers in mind, the United States has long objected to the ICC’s assertion of jurisdiction over nationals of states that are not parties to the Rome Statute (absent consent by that state or a referral by the Security Council). The 2009 ASIL Task Force Report examined the legal arguments that the jurisdiction of the Court over non-party nationals in the circumstances prescribed in the Statute was inconsistent with international law, and it considered those arguments to be unfounded: “the Task Force does not consider the ICC’s jurisdiction over nationals of non-party States to be in conflict with principles of international law.” Likewise, U.S. friends and allies have been virtually uniform in declining to support the arguments.
That said, concerns about the exposure of U.S. servicemembers to possible ICC jurisdiction continue to have great political resonance. Thus, when Secretary Pompeo announced the designation of the ICC Prosecutor and her staffer on June 11, 2020, he framed the threat to the sovereignty posed to the United States by the ICC by beginning his remarks as follows—
“Imagine an American soldier, sailor, airman, Marine, or an intelligence officer is on leave with his or her family, maybe on a beach in Europe. And over the course of two decades or more, this soldier honorably defended America in Anbar Province, in Kandahar, taking down terrorists. Then suddenly, that vacation turns into a nightmare. The European country’s national police takes that soldier into custody, detaining him or her on politically motivated charges. A prison sentence abroad is a distinct possibility. A spouse behind bars for defending freedom. A son or daughter robbed of their mom or dad, all on the initiative of some prosecutor in the Netherlands.”
In reality, nothing the OTP is doing in Afghanistan and nothing the ICC has done in other cases suggests that this is a realistic scenario And, even if such scenario were plausible, it would hardly seem to constitute an “assault” on American sovereignty. In general, a United States person on vacation in a foreign country is subject to the laws of that country, including the rules that implement that country’s treaty obligations. Unlike U.S. personnel deployed to another country under military orders, an individual can avoid submitting himself or herself to those rules by simply refraining from entering that country’s territory. Nevertheless, concern about possible jurisdiction over servicemen and servicewomen, on the one hand, and leaders, on the other, both play a role in shaping U.S. concerns about the Court, although the issues raised by the two sets of concern have important differences. It thus appears virtually inevitable that U.S. policymakers will continue to give high priority to protecting all U.S. personnel from the possibility of ICC investigation and prosecution.
It is worth noting that the risk of a non-U.S. tribunal asserting jurisdiction against U.S. personnel is not unique to the ICC. For example, during the 1999 Kosovo War, the ICTY Prosecutor examined the conduct of the U.S. military in determining whether charges should be brought against any U.S. personnel in connection with the NATO bombing campaign in the Federal Republic of Yugoslavia as part of Operation Allied Force. As General Clark has noted, “[t]his kind of scrutiny is uncomfortable, especially when it touches on acts under one’s own command, but the United States' commitment to complying with the law, its reliance on professional legal guidance, and the rigor of the U.S. justice system give Americans the tools to manage it.”
It is significant that the United States faces comparable risks in foreign domestic courts—e.g., under the grave breaches provisions of the Geneva Conventions, which require states parties to bring persons alleged to have committed grave breaches “regardless of their nationality, before its own courts” or hand such persons over for trial to another state party. Likewise, foreign states have occasionally exercised jurisdiction over U.S. personnel for other conduct that they allege is criminal. In most cases, the United States has addressed situations diplomatically, often invoking an operative SOFA or demonstrating adequate domestic proceedings (effectively invoking a version of the principle of complementarity).
That said, the United States' insistence that foreign courts not exercise jurisdiction over U.S. personnel has not always been accompanied by its own investigations or prosecutions and the United States has occasionally resorting to heavy-handed means. For example, in the early 2000s, when efforts were initiated to bring war crimes charges against Secretary of Defense Donald Rumsfeld under universal jurisdiction legislation in Belgium, the United States pressed strongly in diplomatic channels—including by saying it would push to have NATO headquarters moved to another country—to persuade the Belgian authorities to take action to have the case withdrawn. The Belgian government ultimately amended its universal jurisdiction law, making it more difficult to bring such charges absent a tighter nexus to Belgium.
In contrast to these bilateral situations, the ICC is by design structured to insulate against states seeking to address the initiation of legal actions against their personnel via political means. Whether one considers the possibility for such recourse to be good or bad depends on the facts and circumstances in the particular situation.