See Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir 30–31 (2013).
Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, in II Y.B. Int’l L. Comm’n, para. 97 (1950).
Secretary Lawrence Eagleburger, The Need to Respond to War Crimes in the Former Yugoslavia, 3 U.S. Dep’t State Dispatch 923 (1992); Elaine Sciolino, U.S. Names Figures It Wants Charged with War Crimes, N.Y. Times, Dec. 17, 1992, at A-1.
President William J. Clinton, Remarks at the University of Connecticut in Storrs (Oct. 15, 1995), in Papers of the Presidents, Administration of William J. Clinton, Book II, at 1597 (1996).
See, e.g., Richard Goldstone, Historical Evolution—From Nuremberg to the International Criminal Court, 25 Penn. St. Int’l L. Rev. 763, 765. Among other things, Goldstone noted, “Personnel, financial assistance, computer technicians, you name it—the United States provided crucial assistance.” Id. at 765.
For example, President Clinton included this statement in his final 2000 National Security Strategy: “We and our European allies have made clear to President Kostunica his obligation to cooperate with the ICTY and our expectation that all indicted war criminals, including former President Milosevic, will be held accountable.” A National Security Strategy for a Global Age, at 61 (Dec. 2000).
Stuart Ford, How Leadership in International Criminal Law Is Shifting from the United States to Europe and Asia: An Analysis of Spending on and Contributions to International Criminal Courts, 55 St. Louis U. L.J. 953, 963, 973–74 (2011).
Prior to its 2013 expansion, the United States’ War Crimes Rewards Program was limited to offering rewards for information leading to the arrest or conviction of individuals sought by the ICTY, ICTR, and Special Court for Sierra Leone (SCSL). U.S. Dep’t of State, War Crimes Rewards Program. See Section II.B - War Crimes Rewards Program.
Gregory Townsend, Structure and Management, in International Prosecutors 236 (Luc Reydams, Jan Wouters & Cedric Ryngaert eds., 2012); David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals 34 (2011); Carla Del Ponte & Chuck Sudetic, Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity 123–24 (2011).
UN International Residual Mechanism for Criminal Tribunals Office of the Prosecutor Press Release, Mechanism Fugitive Félicien Kabuga Arrested Today (May 16, 2020).
See, e.g., Prosecutor v. Tadić, Case No. IT-94-1-T, Amicus Curiae Submission of the Government of the United States of America Concerning Certain Arguments Made by Counsel for the Accused in the Case of The Prosecutor of the Tribunal v. Dusan Tadić (Int’l Crim. Trib. for the Former Yugoslavia July 17, 1995); National Defense Authorization Act for Fiscal Year 1996, Pub. L. 104-106, § 1342.
National Security Strategy, at 48 (May 2010) [hereinafter 2010 National Security Strategy].
This includes the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD); the International, Impartial and Independent Mechanism for Syria (IIIM); and the Independent Investigative Mechanism for Myanmar (IIMM).
The United States has supported domestic international crimes investigations in the Democratic Republic of Congo (DRC), the Central African Republic (CAR), and Guatemala, among other places.
The list is a long one and includes, but is not limited to, Theodor Meron, Patricia Wald, and Gabrielle Kirk McDonald as ICTY judges; David Crane and Stephen Rapp as Chief Prosecutors of the SCSL, with the latter serving as the second Ambassador-at-Large for War Crimes Issues; David Tolbert at the ICTY; Brenda Hollis, who has served at the SCSL and now the ECCC; James Johnson, who was chief of prosecutions at the SCSL and is now Chief Prosecutor of the SCSL Residual Mechanism; Nicholas Koumjian, who has worked at the SCSL, ECCC, and is now head of the IIMM; Mark Harmon, a prosecutor at the ICTY then the International Co-Prosecutor at the ECCC; David Schwendiman, who was Deputy Chief Prosecutor and Head of the Special Department for War Crimes in Bosnia and Herzegovina and then the first Kosovo Specialist Prosecutor; Jack Smith, Kosovo Specialist Prosecutor and formerly Investigations Coordinator at the ICC; Clint Williamson at the ICTY, and Pierre-Richard Prosper at the ICTR, who both also later served as Ambassadors-at-Large for War Crimes Issues; and Teresa McHenry who began at the ICTY and now heads the Department of Justice’s Human Rights & Special Prosecutions Unit. There are also a range of U.S. career prosecutors, defense counsel, and human rights lawyers who have led cases, appeared on behalf of defendants, and represented victims over the years before these institutions, including members of our Task Force.
See Is a U.N. International Criminal Court in the U.S. National Interest?: Hearing Before the Subcommittee on International Operations, Committee on Foreign Relations, United States Senate, 105th Cong. 2d Sess., S. Hrg. 105-724, at 17 (July 23, 1998) (statement of Ambassador David Scheffer) (definitions “were scrubbed and negotiated with tireless effort by U.S. negotiators” and are an “achievement that we can be very proud of”).
American Society of International Law, Report of an Independent Task Force on U.S. Policy Toward the International Criminal Court: Furthering Positive Engagement (Mar. 2009) [hereinafter 2009 ASIL Task Force Report]. These objections included, in particular, the Court’s ability to exercise jurisdiction over non-party nationals if they commit crimes on the territory of a state party and the ability of the prosecutor to commence an investigation on her or his own initiative, with authorization from the judges but without the involvement of states or the UN Security Council. For a more detailed exposition of these objections, see id. at 2–4; for analysis of the legal position regarding the jurisdiction over third-party nationals, see id. at 26–29.
Is a U.N. International Criminal Court in the U.S. National Interest?: Hearing Before the Subcommittee on International Operations, Committee on Foreign Relations, United States Senate, supra note 17, at 15–16. See also Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole), Vol. II, Extract, Statement by Mr. Scheffer, paras. 20–23, UN Doc. A/CONF.183/C.1/SR.42 (July 17, 1998).
William J. Clinton, Statement on the Rome Treaty on the International Criminal Court (Dec. 31, 2000), in Papers of the Presidents, Administration of William J. Clinton, Book III, at 2816–17 (2000).
Id. at 2816.
Eric Schwartz, who served as Senior Director for Multilateral and Humanitarian Affairs at the National Security Council, recounts that during “negotiations on rules relating to the Rome Statute of the ICC…Pentagon officials played a central role in establishing the definitions of crimes. But to play this sort of a role, the United States must remain engaged.” Eric P. Schwartz, The United States and the International Criminal Court: The Case for “Dexterous Multilateralism,” 4 Chi. J. Int’l L. 223, 230 (2003).
Under Secretary for Political Affairs Marc Grossman, American Foreign Policy and the International Criminal Court, Remarks to the Center for Strategic and International Studies (May 6, 2002).
U.S. Department of State Legal Adviser John B. Bellinger III, The United States and the International Criminal Court: Where We’ve Been and Where We’re Going, Remarks to the DePaul University College of Law (Apr. 25, 2008).
2009 ASIL Task Force Report, supra note 18, at vi.
SC Res. 1593 (Mar. 31, 2005).
UN Security Council, 5158th Mtg., Statement by Mrs. Patterson, at 3, UN Doc. S/PV.5158 (Mar. 31, 2005). The referral resolution also contained a number of protections against any potential prosecution of U.S. personnel, which enabled the United States to abstain on the vote. Id.
Steven R. Weisman, U.S. Rethinks Its Cutoff of Military Aid to Latin American Nations, N.Y. Times (Mar. 12, 2006).
See, e.g., Deputy Secretary of State Robert Zoellick, Remarks at the Brookings Institution Forum on the Situation in Darfur (Apr. 13, 2006) (if the ICC asks “for information and help, we try to provide that help”; “we will fully cooperate with [the ICC] and pursue those actions as related to the genocide in Darfur”).
John Bellinger, The United States and the International Criminal Court: Where We’ve Been and Where We’re Going, supra note 24.
Id.; see also U.S. Department of State Legal Adviser John B. Bellinger III, U.S. Perspectives on International Criminal Justice, Remarks at the Fletcher School of Law and Diplomacy (Nov. 14, 2008).
2009 ASIL Task Force Report, supra note 18, at iii, xv–xvi. ASIL followed the 2009 report with a second report, Beyond Kampala: Next Steps for U.S. Principled Engagement with the International Criminal Court, in November 2010.
SC Res. 1973 (Mar. 17, 2011). The United States also voted in favor of a resolution that would have referred the situation in Syria to the ICC, an exercise blocked by Russia and China. UN Press Release, Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution (May 22, 2014).
See, e.g., Stephen Pomper, USG Statement on Int’l Criminal Court Probe into Alleged U.S. War Crimes Is Missing Some Things, Just Security (Dec. 14, 2017).
See id.; Statement on Behalf of the United States of America, 16th Session of the Assembly of States Parties (Dec. 8, 2017).
See, e.g., Todd Buchwald, David M. Crane, Benjamin Ferencz, Stephen J. Rapp, David Scheffer & Clint Williamson, Former Officials Challenge Pompeo’s Threats to the International Criminal Court, Just Security (Mar. 18, 2020). The authors of this statement included one of the co-chairs of the Task Force and three members of the Advisory Group.
See Section III.A.2 - U.S. Interactions with the ICC in the United Nations, Text Box - Criticism of Sanctions on ICC by China.
See, e.g., American Bar Association, Center for Human Rights, Report to the House of Delegates, Resolution, at 5 (Aug. 2020) (“[A]n attack against the ICC and its professional staff by the United States—historically the leading exemplar of democracy and a just rule of law, of which an independent judiciary is an indispensable part—gives fodder to those who cite such attacks as a legitimate basis to undermine judicial independence in their countries.”); see further notes 207-218 infra and accompanying text.
Leo Shane III, Meghann Myers & Carl Prine, Trump Grants Clemency to Troops in Three Controversial War Crimes Cases, Military Times (Nov. 15, 2019) (“critics have warned the moves could send the message that troops need not worry about following rules of engagement when fighting enemies abroad”). See also Dan Maurer, Should There Be a War Crime Pardon Exception, Lawfare (Dec. 3, 2019) (“One notable source of criticism has been from within the current and former ranks, or those who know something of the traditional military ethos. Naval War College and Naval Postgraduate School ethics professors recently wrote: ‘The pardons of our war criminals by Trump, and his interference in and disrespect of our own military justice system is unprecedented and should trouble all Americans. We will not pull punches—they are shameful and a national disgrace.’”); Gabor Rona, Can a Pardon Be a War Crime? When Pardons Themselves Violate the Laws of War, Just Security (Dec. 24, 2020) (questioning whether the pardons themselves might amount to war crimes).
Secretary of State Michael R. Pompeo, Remarks to the Press (Mar. 17, 2020).
American Servicemembers’ Protection Act, 22 U.S.C. §§7421–7433 [hereinafter ASPA]. The legislation was adopted as part of supplemental appropriations legislation after having been considered in various forms in the House and adopted as a floor amendment in the Senate by a vote of 75–19. Then-Senators Clinton and Kerry were among those who voted in favor. Then-Senator Biden opposed the legislation, insisting that the United States could adequately protect its interests with existing authorities. Although he expressed reservations about the Court itself, he accurately anticipated that the legislation—and particularly the threat to use of force to “rescue” non-Americans from the Court and cut off aid to ICC member states—would alienate U.S. allies. See 148 Cong. Rec. 9595.
ASPA Section 7421, including reference to “Any American prosecuted…” (para. 7); “Members of the Armed Forces of the United States should be free from prosecution by the [ICC]” (para. 8); “the Rome Statute creates a risk that the President and other senior elected and appointed officials…may be prosecuted” (para. 9); and “The United States will not recognize the jurisdiction of the International Criminal Court over United States nationals” (para. 11).
ASPA, supra note 41, § 7427. This authority also extended to certain other “covered persons,” and earned ASPA the nickname “The Hague Invasion Act.” Other provisions limited the ability of the United States to participate in UN peacekeeping operations in circumstances in which the Security Council had failed to exempt participating U.S. military personnel from the ICC’s jurisdiction. Id., § 7424.
See Julian Bava & Kiel Ireland, The American Servicemembers’ Protection Act: Pathways to and Constraints on U.S. Cooperation with the International Criminal Court, 12 Eyes on the ICC 1 (2016–17).
For example, ASPA was passed August 2, 2002. Saddam Hussein was initially detained on December 14, 2003; was turned over to the legal control of the interim Iraqi government on June 30, 2004; and was arraigned and formally charged on July 1, 2004.
In terms of process, it has been reported that “[f]or each ICC request for information that is within the control of a United States public entity, the ICC submits a request to the U.S. embassy at The Hague. The embassy then transmits the requests to the State Department, where they are reviewed internally and within an interagency process. For a typical request, an internal memorandum will be circulated to relevant agencies, allowing for an opportunity to object to case-specific information sharing. Absent objection, the request will be approved. For atypical requests, the relevant agencies and authorities may meet face-to-face to weigh competing policy considerations.” Aida Ashouri & Caleb Bowers, Digital Evidence and the American Servicemembers’ Protection Act (Working Paper, Salzburg Workshop on Cyberinvestigations, Oct. 2013).
ASPA, supra note 41, § 7426. Numerous countries were exempt, including NATO allies, “major non-NATO allies,” and Taiwan. Id., § 7426(d). In December 2004, Congress also approved a restriction on assistance funds under the Economic Support Fund to any state party to the Rome Statute (except for states eligible for assistance under the Millennium Challenge Act of 2003), but allowed the President to waive that restriction if the state had signed an Article 98 agreement (the “Nethercutt Amendment”). This restriction was modified for FY2006 (see 2009 ASIL Task Force Report, supra note 18, at 11–14), and did not appear at all in the FY2009 omnibus appropriation bill.
State Department Spokesman Richard Boucher, Press Statement, U.S. Signs 100th Article 98 Agreement (May 3, 2005). The texts of ninety-five of these agreements are here. In September 2018, then-National Security Advisor John Bolton announced a renewed interest in concluding additional agreements, but the Task Force is not aware of any steps taken by the Trump administration to do so. Matthew Kahn, National Security Adviser John Bolton Remarks to Federalist Society, Lawfare (Sept. 10, 2018); see also Ben Batros, To Undermine the ICC, Bolton’s Target Extends Way Beyond the Court, Just Security (Sept. 24, 2018).
See EU Guiding Principles Concerning Arrangements Between a State Party to the Rome Statute of the International Criminal Court and the United States Regarding the Conditions to Surrender of Persons to the Court, Council of Europe Draft Council Conclusions on the ICC (Sept. 30, 2002).
U.S. Dep’t of Defense Authorization for Appropriations for Fiscal Year 2007, Hearing of the Senate Armed Services Committee, Combatant Commander’s on Their Military Strategy and Operational Requirements (Mar. 14, 2006).
See Clare Ribando Seelke, Cong. Res. Serv., Article 98 Agreements and Sanctions on U.S. Foreign Aid to Latin America (2007).
Secretary of State Condoleezza Rice, Press Statement, En Route to San Juan, Puerto Rico (Mar. 10, 2006).
In 2006, restrictions on IMET funding were repealed. John Warner National Defense Authorization Act for Fiscal Year 2007, Pub. L. No. 109-364, § 1222, 120 Stat. 2083, 2423 (2006). In 2008, the remaining restrictions on Foreign Military Financing were repealed. National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1212, 123 Stat. 3, 371 (2008). For more history of the imposition and later repeal of these restrictions, see 2009 ASIL Task Force Report, supra note 18, at 11–14.
22 U.S.C. §§ 7401–7402.
See Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, § 7049(b).
See U.S. Dep’t of State, Office of Global Criminal Justice, Fugitives from Justice, Wanted: Joseph Kony (still at large); U.S. Dep’t of State, Office of Global Criminal Justice, Fugitives from Justice, Wanted: Okot Odhiambo (deceased); U.S. Dep’t of State, Office of Global Criminal Justice, Fugitives from Justice, Wanted: Dominic Ongwen (in custody).
John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115–232, § 1232.
Elie Wiesel Genocide and Atrocities Prevention Act of 2018, Pub. L. No. 115-441.
Women, Peace, and Security Act of 2017, Pub. L. No. 115-68.
Syrian War Crimes Accountability Act of 2017 (incorporated into the National Defense Authorization Act for Fiscal Year 2019, supra note 59), Pub. L. No. 115-232, § 1232.
Iraq and Syria Genocide Relief and Accountability Act of 2018, Pub. L. No. 115-300.
See, e.g., Elie Wiesel Genocide and Atrocities Prevention Report, at 2–3 (2019).
Global Magnitsky Human Rights Accountability Act, Title XII, Subtitle F of Pub. L. No. 114-328 [hereinafter Global Magnitsky Act]; 22 U.S.C. § 2656, Management of Foreign Affairs. See also Exec. Ord. 13818, Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption (Dec. 20, 2017) [hereinafter EO 13818].
This involves six situations (Burundi, CAR I and II, DRC, Libya, Mali, Sudan/Darfur) in which the ICC has one or more active investigations; Ukraine (where the Prosecutor has indicated an intent to open an investigation after completing her preliminary examination); and Venezuela (where a preliminary examination is ongoing). See U.S. Dep’t of Treasury, Sanctions Programs and Country Information.
See U.S. Dep’t of Treasury, Specially Designated Nationals and Blocked Persons List (SDN). The ICC has ceased its proceedings against some of these individuals, including cases where charges were not confirmed but the sanctions imposed by the United States remain.
Rome Statute of the International Criminal Court, Arts. 8(2)(c)(iii), 8(2)(e)(iii), July 17, 1998 [hereinafter Rome Statute]. The ICC investigated and initiated a case based on an attack on an African Union peacekeeping base in Darfur, Sudan. ICC Press Release, Prosecutor: “The Attack on African Union Peacekeepers in Haskanita Was an Attack on Millions of Civilians They Had Come to Protect; We Will Prosecute Those Allegedly Responsible,” ICC-OTP-20090517-PR412 (May 17, 2009).
Similarly, regional peacekeeping missions that the United States has supported, such as the African Union Mission in Sudan (AMIS) and the African-led International Support Mission to Mali (AFISMA), frequently operate in ICC situation countries. See generally White House Press Release, Fact Sheet: U.S. Support for Peacekeeping in Africa (Aug. 6, 2014).
See, e.g., SC Res. 1991, para. 19 (June 28, 2011) (“further stresses the importance of the Congolese Government actively seeking to hold accountable those responsible for war crimes and crimes against humanity in the country and of regional cooperation to this end, including through cooperation with the International Criminal Court and calls upon MONUSCO to use its existing authority to assist the Government in this regard”); SC Res. 2098 (Mar. 28, 2013) (“Welcoming the commitment made by the Government of the DRC to hold accountable those responsible for atrocities in the country, noting the cooperation of the Government of the DRC with the International Criminal Court (ICC)…”); SC Res. 2149, paras. 12, 38 (Apr. 10, 2014) (“Reiterates that all perpetrators of violations of international humanitarian law and human rights violations and abuses must be held accountable and that some of those acts may amount to crimes under the Rome Statute of the International Criminal Court (ICC), to which the CAR is a State party, recalls the statements made by the Prosecutor of the ICC on 7 August 2013 and 9 December 2013, notes further the opening of a preliminary examination by the Prosecutor of the ICC on alleged crimes committed in the CAR since September 2012, and welcomes the cooperation by the Transitional authorities in this regard;…notes the relevance of the guidance on contacts with persons who are the subject of arrest warrants or summonses issued by the International Criminal Court.”).
Sean D. Murphy, Contemporary Practice of the United States, Efforts to Obtain Immunity from ICC for U.S. Peacekeepers, 96 Am. J. Int’l L. 725–29 (2002).
UN Security Council, 4563rd Mtg., Statement by Mr. Negroponte, at 2–3, UN Doc. S/PV.4563 (June 30, 2002); Bulgaria, France, Germany, Ireland, Italy, Norway, Russian Federation and United Kingdom of Great Britain and Northern Ireland: Draft Resolution, UN Doc. S/2002/712 (June 30, 2002). The Security Council subsequently passed short extensions of the previous mandate for the Bosnia peacekeeping mission—until July 3 (SC Res.1420 (June 30, 2002)) and then again until July 15 (SC Res. 1421 (July 3, 2002))—by which time the Security Council had passed Resolution 1422 deferring any ICC investigation of personnel connected with UN peacekeeping missions that were nationals of non-party states (see infra).
SC Res. 1487 (June 12, 2003).
In the early stages of UNMIL, the United States contributed up to eighty-four personnel. See, e.g., UN, UN Mission’s Contributions by Country (Mar. 31, 2004). The mission was subsequently led by Army Reserve Brig. Gen. Hugh Van Roosen, who served as the force Chief of Staff from 2012–2013. See Lisa A. Ferdinando, Army Contributions to U.N. Liberia Mission Significant, Former Force Chief Says, Army News Serv. (Sept. 20, 2013).
At the United States’ insistence, the Council then included similar language when it adopted Resolution 1593, referring the situation in Darfur to the ICC Prosecutor. See SC Res. 1593, supra note 26, para. 6.
Secretary of State Colin Powell, Testimony Before the Senate Foreign Relations Committee – The Crisis in Darfur (Sept. 9, 2004).
David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics, at 108 et seq. (2013).
Id. at 111–12 (quoting John Bellinger).
SC Res. 1593, supra note 26.
Security Council, 5158th Mtg., Statement by Mrs. Patterson, at 3, UN Doc. S/PV.5158 (Mar. 31, 2005).
Specifically, the Council decided in the Darfur resolution that contributing states that were not parties to the Rome Statute would have exclusive jurisdiction over their “nationals, current or former officials or personnel.” In addition, while calling on states to fully cooperate with the ICC, the resolution also recognized that non-party States have “no obligation under the Statute.” See SC Res. 1593, supra note 26, paras. 2, 6–7.
See id., para. 7; Rome Statute, supra note 69, Art. 115(b) (“The expenses of the Court…shall be provided by the following sources: …(b) Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council”); see notes 468-470 infra and accompanying text.
Human Rights Watch, The United States and the International Criminal Court: The Bush Administration’s Approach and a Way Forward Under the Obama Administration (Aug. 2, 2009). See Security Council, 5789th Mtg., Statement by Mr. DeLaurentis, at 12, UN Doc. S/PV.5789 (Dec. 5, 2007); Security Council, 5905th Mtg., Statement by President Khalilzad, at 18, UN Doc. S/PV.5905 (June 5, 2008); Security Council, 5912th Mtg., UN Doc. S/PV.5912 (June 16, 2008); Michael Abramowitz & Colum Lynch, Darfur Killings Soften Bush’s Opposition to International Court, Wash. Post (Oct. 12, 2008).
Security Council, 7337th Mtg., Statement by Fatou Bensouda, Prosecutor of the International Criminal Court, at 2, UN Doc. S/PV.7337 (Dec. 12, 2014) (“Faced with an environment where my Office’s limited resources for investigations are already overstretched, and given this Council’s lack of foresight on what should happen in Darfur, I am left with no choice but to put investigative activities in Darfur on hold as I shift resources to other urgent cases, especially those where trial is approaching.”); see also UN Press Release, Amid Growing Brutality in Darfur, International Criminal Court Prosecutor Urges Security Council to Rethink Tactics for Arresting War Crime Suspects (Dec. 12, 2014). For analysis of state reactions to the lack of Security Council support leading to this decision, see Stuart Ford, The ICC and the Security Council: How Much Support Is There for Ending Impunity?, 26 Ind. Int’l & Comp. L. Rev. 33, 42 (2016).
SC Res. 1970, paras. 6, 8 (Feb. 26, 2011). The Libya referral included identical protections for nationals of the United States (and other non-party States) from the Court’s jurisdiction as those found in paragraph 6 of Council’s Darfur referral, as well as language like that in paragraph 7 of the resolution recognizing that expenses would be borne by the Rome Statute parties and not the Security Council.
U.S. Permanent Representative to the United Nations Susan E. Rice, Remarks in an Explanation of Vote on Resolution 1970 on Libya Sanctions (Feb. 26, 2011).
Beth Van Schaack, Deconstructing Syria’s Would-Be International Criminal Court Referral: The Politics of International Justice, 56 Stan. J. Int’l L. 1 (2020).
Security Council, Statement by Mr. Mark Simonoff, Minister Counsellor of the United States of America to the United Nations, at 24, UN Doc. S/2020/371 (May 7, 2020) (“Saif Al-Islam Al-Qadhafi, Mahmoud Al-Werfalli, Al-Tuhamy Mohamed Khaled and Abdullah Al-Senussi should face justice for their alleged crimes.”). The ICC had issued arrest warrants for all four of the individuals named by the United States, three of which remain outstanding (the case against Abdullah Al-Senussi was declared inadmissible in October 2013).
Security Council, Statement by Mr. Simonoff, Minister Counsellor of the United States of America to the United Nations, at 21, UN Doc. S/2020/538 (June 15, 2020) (“We have received reports that Ali Kushayb is in custody. Ali Kushayb must be held accountable for his alleged abuses. The people of Darfur, victims, survivors and their families deserve justice.”).
Security Council, Statements by Representatives of Belgium, China, and Saint Vincent and the Grenadines, at 6–8, 20, UN Doc. S/2020/1108 (Nov. 13, 2020). In addition to the critique by China (see Text Box - Criticism by China of U.S. Sanctions on ICC), see also Joint Statement by Belgium, the Dominican Republic, Estonia, France, Germany, Niger, Saint Vincent and the Grenadines, South Africa, Tunisia, the United Kingdom, Ireland, Mexico, and Norway (reconfirming their “unwavering support for the Court,” reiterating their “commitment to uphold and defend the principles and values enshrined in the Rome Statute and to preserve its integrity and independence undeterred by any measures or threats against the Court, its officials and those cooperating with it,” and underscoring that “[a]ny attempt to undermine the independence of the Court should not be tolerated”).
For example, a deferral was attempted in 2013 to delay the trial of Kenyan officials. See Security Council, UN Doc. S/2013/624 (Oct. 22, 2013). The United States, along with seven other nations, abstained, so the draft resolution was not adopted. Security Council Resolution Seeking Deferral of Kenyan Leaders’ Trial Fails to Win Adoption, with 7 Voting in Favour, 8 Abstaining, UN News (Nov. 15, 2013).
SC Res. 1828, at 2 (July 31, 2008) (“Taking note of the African Union (AU) communiqué of the 142nd Peace and Security Council (PSC) Meeting dated 21 July (S/2008/481, annex), having in mind concerns raised by members of the Council regarding potential developments subsequent to the application by the Prosecutor of the International Criminal Court of 14 July 2008, and taking note of their intention to consider these matters further.”). The resolution passed 14–0–1.
UN Doc. S/PV.5947, supra note 94, at 8 (“The United States abstained in the voting because the language added to the resolution would send the wrong signal to Sudanese President Al-Bashir and undermine efforts to bring him and others to justice.”).
See most recently General Assembly, Fifty-Fifth Sess., 84th Plenary Mtg., UN Doc. A/55/PV.84 (Dec. 21, 2000).
See General Assembly, Fifty-Sixth Sess., 85th Plenary Mtg., Statement by Mr. Hybl, at 9, UN Doc. A/56/PV.85 (Dec. 12, 2001); General Assembly, Fifty-Seventh Sess., 52nd Plenary Mtg., Statement by Mr. Martinez, at 10, UN Doc. A/57/PV.52 (Nov. 19, 2002); General Assembly, Fifty-Eighth Sess., 72nd Plenary Mtg., Statement by Ms. Willson, at 9, UN Doc. A/58/PV.72 (Dec. 9, 2003); General Assembly, Fifty-Ninth Sess., 65th Plenary Mtg., Statement by Ms. Moore, at 9–10, UN Doc. A/59/PV.65 (Dec. 2, 2004); General Assembly, Sixtieth Sess., 53rd Plenary Mtg., Statement by Ms. Willson, at 10, UN Doc. A/60/PV.53 (Nov. 23, 2005); General Assembly, Sixty-First Sess., 56th Plenary Mtg., Statement by Ms. Willson, at 3, UN Doc. A/61/PV.56 (Nov. 20, 2006); General Assembly, Sixty-Second Sess., 57th Plenary Mtg., Statement by Mr. Wolff, at 28–29, UN Doc. A/62/PV.57 (Nov. 26, 2007); General Assembly, Sixty-Third Sess., 45th Plenary Mtg., Statement by Ms. Willson, at 11, UN Doc. A/63/PV.45 (Nov. 11, 2008); General Assembly, Sixty-Fourth Sess., 34th Plenary Mtg., Statement by Ms. McLeod, at 16, UN Doc. A/64/PV.34 (Nov. 2, 2009). For Sudan dissociating from consensus, see UN Doc. A/63/PV.45, at 11.
See in particular UN Doc. A/60/PV.53, supra note 100, at 10–11; UN Doc. A/61/PV.56, supra note 100, at 3; UN Doc. A/62/PV.57, supra note 100, at 28–30; UN Doc. A/63/PV.45, supra note 100, at 11–12.
See General Assembly, Sixty-Fifth Sess., 52nd Plenary Mtg., UN Doc. A/65/PV.52 (Nov. 23, 2010); General Assembly, Sixty-Sixth Sess., 111th Plenary Mtg., UN Doc. A/66/PV.111 (May 29, 2012); General Assembly, Sixty-Seventh Sess., 95th Plenary Mtg., UN Doc. A/67/PV.95 (Aug. 22, 2013); General Assembly, Sixty-Eighth Sess., 107th Plenary Mtg., UN Doc. A/68/PV.107 (Sept. 9, 2014); General Assembly, Sixty-Ninth Sess., 89th Plenary Mtg., UN Doc. A/69/PV.89 (May 8, 2015); General Assembly, Seventieth Sess., 95th Plenary Mtg., UN Doc. A/70/PV.95 (May 13, 2016); General Assembly, Seventy-First Sess., 68th Plenary Mtg., UN Doc. A/71/PV.68 (Dec. 23, 2016); General Assembly, Seventy-Second Sess., 37th Plenary Mtg., UN Doc. A/72/PV.37 (Oct. 30, 2017).
See UN Doc. A/72/PV.37, supra note 102, at 17–19.
See General Assembly, Seventy-Third Sess., 28th Plenary Mtg., Statement by Ms. Palau-Hernandez, at 27, UN Doc. A/73/PV.28 (Oct. 29, 2018); General Assembly, Seventy-Fourth Sess., 26th Plenary Mtg., Statement by Mr. Giordano, at 26, UN Doc. A/74/PV.26 (Nov. 4, 2019); General Assembly, Seventy-Fifth Sess., 19th Plenary Mtg., Statement by Mr. Mills, at 16, UN Doc. A/75/PV.19 (Nov. 2, 2020).
See, e.g., UN Doc. A/73/PV.28, supra note 104, at 23–24 (Myanmar), 27–28 (Sudan), 28 (Syria), 29–30 (Russia).
See, e.g., GA Res. 75/238, Situation of Human Rights of Rohingya Muslims and Other Minorities in Myanmar (Jan. 4, 2021); GA Res. 75/158, Trafficking in Women and Girls (Dec. 23, 2020); GA Res. 75/189, Extrajudicial, Summary or Arbitrary Executions (Dec. 28, 2020); GA Res. 74/143, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Jan. 22, 2020); GA Res. 74/169, Situation of Human Rights in the Syrian Arab Republic (Jan. 23, 2020); GA Res. 75/193, Situation of Human Rights in the Syrian Arab Republic (Dec. 28, 2020); GA Res. 74/166, Situation of Human Rights in the Democratic People’s Republic of Korea (Jan. 27, 2020); GA Res. 75/190, Situation of Human Rights in the Democratic People’s Republic of Korea (Dec. 28, 2020); GA Res. 75/138, Status of the Protocols Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of Armed Conflicts (Dec. 22, 2020); GA Res. 74/116, Safety and Security of Humanitarian Personnel and Protection of United Nations Personnel (Jan. 20, 2020); GA Res. 75/125, Safety and Security of Humanitarian Personnel and Protection of United Nations Personnel (Dec. 21, 2020); GA Res. 74/133, Rights of the Child (Jan. 20, 2020); GA Res. 74/160, Protection of and Assistance to Internally Displaced Persons (Jan. 27, 2020).
See, e.g., UN General Assembly Human Rights Council Resolutions and Reports: (1) regarding the DPRK: HRC Res. 34/24, Situation of Human Rights in the Democratic People’s Republic of Korea (Apr. 3, 2017); HRC Res. 37/28, Situation of Human Rights in the Democratic People’s Republic of Korea (Apr. 9, 2018); (2) regarding Syria: HRC Res. 34/26, Human Rights Situation in the Syria Arab Republic (Apr. 5, 2017); HRC Res. 35/26, Human Rights Situation in the Syria Arab Republic (July 14, 2017); HRC Res. 37/29, Human Rights Situation in the Syria Arab Republic (Apr. 9, 2018); HRC Res. 38/16, Human Rights Situation in the Syria Arab Republic (July 19, 2018); (3) regarding Libya: HRC Res. 34/38, Technical Assistance and Capacity-Building to Improve Human Rights in Libya (Apr. 6, 2017); (4) regarding Mali: HRC Res. 34/39, Technical Assistance and Capacity-Building for Mali in the Field of Human Rights (Apr. 3, 2017); HRC Res. 37/39, Technical Assistance and Capacity-Building for Mali in the Field of Human Rights (Apr. 5, 2018); (5) regarding Myanmar: HRC Res. 37/32, Situation of Human Rights in Myanmar (Apr. 9, 2018); (6) regarding genocide prevention: HRC Res. 37/26, Prevention of Genocide (Apr. 6, 2018); and (7) regarding extrajudicial executions: HRC Res. 35/15, Mandate of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (July 11, 2017). See also Report of the Human Rights Council, UN Doc. A/72/53 (2017); Report of the Human Rights Council, UN Doc. A/73/53 (2018).
For example, the United States insisted that no explicit reference to the ICC be included in Resolution 1502 on the protection of UN personnel, which was passed after the bombing of the UN office in Baghdad (Aug. 26, 2003), though it did accept reference in the preamble to earlier General Assembly resolutions that included favorable references. Frederic L. Kirgis, Security Council Resolution 1502 on the Protection of Humanitarian and United Nations Personnel, 8 ASIL Insights (Sept. 12, 2003).
See Michele Kelemen, Taylor War Crimes Trial Worries West Africa, NPR (Apr. 6, 2006).
Statement by the President of the Security Council, at 3, UN Doc. S/PRST/2012/1 (Jan. 19, 2012). The President noted:
The Security Council recalls the Statement by its President on 29 June 2010 (S/PRST/2010/11) which included the contribution of the International Criminal Court, ad hoc and mixed tribunals, as well as chambers in national tribunals to the fight against impunity for the most serious crimes of concern to the international community. In this regard, the Council reiterates its previous call on the importance of State cooperation with these Courts and Tribunals in accordance with the states’ respective obligations.
See, e.g., SC Res. 1960, pmbl., at 2, (Dec. 16, 2010) (drawing attention to the full range of justice and reconciliation measures available and recalling the range of sexual offenses in the Rome Statute); SC Res. 2250, para. 6 (Dec. 9, 2015) (“noting that the fight against impunity for the most serious crimes of international concern has been strengthened through the work on and prosecution of these crimes by the International Criminal Court, ad hoc and mixed tribunals and specialized chambers in national tribunals”); SC Res. 2122, para. 6, (Oct. 18, 2013) (same); Statement by the President of the Security Council, UN Doc. S/PRST/2014/21 (Oct. 28, 2014) (same).
See, e.g., SC Res. 2222, pmbl. (May 27, 2015); Statement by the President of the Security Council, supra note 110, at 2–3 (expressing support for the ICC, reiterating its call for states to cooperate with international courts “in accordance with the states’ respective obligations,” and expressing its commitment to an effective follow up).
SC Res. 2171, pmbl., at 3 (Aug. 21, 2014) (“recognising in this regard the contribution of the International Criminal Court, in accordance with the principle of complementarity to national criminal jurisdictions as set out in the Rome Statute, towards holding accountable those responsible for such crimes; and reiterating its call on the importance of State cooperation with these courts and tribunals in accordance with the States’ respective obligations”).
Resolution 2238, for example, extended the UN Support Mission in Libya and reiterated its call for the Libyan Government to cooperate with the Court. SC Res. 2238, pmbl., para. 10 (Sept. 10, 2015).
SC Res. 2448, paras. 26, 27, 40 (Dec. 13, 2018). See also Security Council Report, Renewal of the UN Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) (Dec. 6, 2018).
For fuller descriptions of the underlying issues, see Harold Hongju Koh & Todd F. Buchwald, The Crime of Aggression: The United States Perspective, 109 Am. J. Int’l L. 257 (2015); Beth van Schaack, Negotiating at the Interface of Power and Law: The Crime of Aggression, 49 Colum. J. Transnat’l L. 505 (2011).
For analysis leading up to the Review Conference of the issues to be addressed, see Vijay Padmanabhan, From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference (Council on Foreign Relations Special Report No. 55, Apr. 2010). For recommendations on U.S. engagement following the Review Conference, see American Society of International Law, Beyond Kampala: Next Steps for U.S. Principled Engagement with the International Criminal Court (Nov. 2010).
Id. See also Brett Schaefer, The Kampala Aftermath: The U.S. Should Remain Wary of the ICC, Heritage Found. (Aug. 9, 2010).
Joint Committee Staff Trip Report for the Senate Foreign Relations Committee, International Criminal Court Review Conference, Kampala, Uganda, May 31–June 11, 2010, 111th Cong., 2d Sess., at 12 (Sept. 2, 2010).
See Resolution RC/Res.5, Amendments to Article 8 of the Rome Statute (June 10, 2010).
Review Conference of the Rome Statute, Pledges, Doc. No. RC/9, Kampala, May 31–June 11, 2010, at 18 (July 15, 2010) [hereinafter Review Conference of the Rome Statute, Pledges].
Ambassador at Large for War Crimes Issues Stephen Rapp, Address to Assembly of States Parties (Nov. 19, 2009). Between 2009 and 2016, a representative of the United States participated at and made similar interventions in each meeting of the Assembly of States Parties: see here (for statement to the 13th session of the ASP, see here).
For the statement at the ASP meeting in 2017, see Statement on Behalf of the United States, 16th Session of the Assembly of States Parties (Dec. 8, 2017).
Statement by Mr. Hu Bin, Head of the Chinese Observer Delegation and Deputy Director-General of the Department of Treaty and Law, Ministry of Foreign Affairs of China, 18th Session of the Assembly of States Parties (Dec. 3, 2019).
2010 National Security Strategy, supra note 13, at 48 (“Although the United States is not at present a party to the Rome Statute of the International Criminal Court (ICC), and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern and are supporting the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.”). See also National Security Strategy, 22 (Feb. 2015) (“We will work with the international community to prevent and call to account those responsible for the worst human rights abuses, including through support to the International Criminal Court, consistent with U.S. law and our commitment to protecting our personnel.”) [hereinafter 2015 National Security Strategy].
See, e.g., Robert Zoellick, Remarks at the Brookings Institution Forum on the Situation in Darfur, supra note 29 (if the ICC asks “for information and help, we try to provide that help”; “we will fully cooperate with [the ICC] and pursue those actions as related to the genocide in Darfur”); Security Council, 7199th Mtg., Statement by Mr. Lord, at 15, UN Doc. S/PV.7199 (June 17, 2014) (the United States “will continue to support Prosecutor Bensouda and ICC efforts to bring to justice those most responsible for serious crimes in Darfur”; see also Security Council, 6778th Mtg., Statement by Mr. DeLaurentis, at 8–10, UN Doc. S/PV.6778 (June 5, 2012); Security Council, 7337th Mtg., Statement by Mr. Pressman, at 11–13, UN Doc. S/PV.7337 (Dec. 12, 2014). See note 94 supra for U.S. statements resisting deferral of the investigation or any prosecutions arising out of the situation in Darfur.
H.R. 2478, Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009, Pub. L. No. 111-172 (May 19, 2009).
Review Conference of the Rome Statute, Pledges, supra note 121, at 18.
White House Press Release, Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate Regarding the Lord’s Resistance Army (Oct. 14, 2011). See generally Operation Observant Compass, Glob. Sec.
Kasper Agger, Completing the Mission: U.S. Special Forces Are Essential for Ending the LRA, Enough Proj. (Oct. 2013).
Prosecutor v. Ntaganda, ICC-01/04-02/06-2359, Judgment (July 8, 2019) (finding Bosco Ntaganda guilty of eighteen counts of war crimes and crimes against humanity); Prosecutor v. Ntaganda, ICC-01/04-02/06-2442, Sentencing Judgment (Nov. 7, 2019) (sentencing Bosco Ntaganda to a total of thirty years of imprisonment). The conviction and sentence were upheld on appeal. See Prosecutor v. Ntaganda, ICC-01/04-02/06-2666-Red, Public Redacted Version of Judgment on the Appeals of Mr Bosco Ntaganda and the Prosecutor Against the Decision of Trial Chamber VI of 8 July 2019 Entitled “Judgment” (Mar. 30, 2021); Prosecutor v. Ntaganda, ICC-01/04-02/06-2667-Red, Public Redacted Version of Judgment on the Appeal of Mr Bosco Ntaganda Against the Decision of Trial Chamber VI of 7 November 2019 Entitled “Sentencing Judgment” (Mar. 30, 2021).
LRA Rebel Dominic Ongwen Surrenders to US Forces in CAR, BBC News (Jan. 7, 2015); ICC Press Release, Dominic Ongwen Transferred to the Hague, ICC-CPI-20150120-PR1084 (Jan. 20, 2015).
Prosecutor v. Ongwen, ICC-02/04-01/15-1762-Red, Trial Judgment (Feb. 4, 2021) (finding Dominic Ongwen guilty of sixty-one counts of crimes against humanity and war crimes).
State Department Spokesperson Ned Price, Press Statement, Welcoming the Verdict in the Case Against Dominic Ongwen for War Crimes and Crimes Against Humanity (Feb. 4, 2021).
See, e.g., Jorge A. F. Godinho, The Surrender Agreements Between the US and the ICTY and ICTR: A Critical View, 1 J. Int’l Crim. Just. 502 (2003).
David Scheffer, Proposal for an International Criminal Court Arrest Procedures Protocol, 12 Nw. J. Hum. Rts. 229 (2014).
Ambassador-at-Large for War Crimes Issues Stephen J. Rapp, Statement of the U.S. at the Eleventh Session of the Assembly of States Parties of the International Criminal Court (Nov. 15, 2012).
See ASPA, supra note 41, § 7423(h): “No agent of the International Criminal Court may conduct, in the United States or any territory subject to the jurisdiction of the United States, any investigative activity relating to a preliminary inquiry, investigation, prosecution, or other proceeding at the International Criminal Court.”
USAID, Central African Republic (last updated Sept. 25, 2020) (“In FY 2015, USAID provided nearly $84 million in humanitarian assistance to conflict-affected and displaced populations in CAR and CAR refugees in other countries.”); Ambassador Andrew Bremberg, U.S. Statement on Funding for the Rohingya Humanitarian Crisis (Mar. 3, 2020) (“The United States has already provided more than $760 million since the August 2017 escalation of violence that prompted over 740,000 Rohingya to flee to Bangladesh. With this new funding, our total humanitarian assistance reaches nearly $820 million since 2017. Of this funding, nearly $700 million is for programs inside Bangladesh.”).
Robert Zoellick, Remarks at the Brookings Institution Forum on the Situation in Darfur, supra note 29.
Ambassador-at-Large for War Crimes Issues Stephen J. Rapp, Intervention of the United States Observer Delegation, 13th Assembly of States Parties (Dec. 15, 2014). See also notes 44–47 supra and accompanying text.
Simon Lewis, Biden Administration to Review Sanctions on International Criminal Court Officials, Reuters (Jan. 26, 2021).
Article 54(3)(e) of the Rome Statute allows the prosecution to agree not to disclose information obtained on condition of confidentiality for lead and background purposes (“solely for the purpose of generating new evidence”) (Article 72 establishes a separate regime for protection of national security information). However, Article 67(2) requires the prosecutor to disclose to the accused exculpatory evidence in her possession or control, and the Court’s decisions in Lubanga revealed significant tensions between these provisions that limits the ability of the prosecutor to assure confidentiality of information without potentially constraining her ability to proceed with a trial (see in particular Prosecutor v. Lubanga, ICC-01/04-01/06-1401, Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by Article 54(3)(E) Agreements and the Application to Stay the Prosecution of the Accused (June 15, 2008).
See, e.g., Marc Grossman Remarks, American Foreign Policy and the International Criminal Court, supra note 23 (criticizing the ICC as “a flawed outcome”, “an institution of unchecked power,” and “open for exploitation and politically motivated prosecutions”); John R. Bolton, The Risks and Weaknesses of the International Criminal Court from America’s Perspective, 64 L. & Contemp. Probs. 167 (2001).
Kahn, supra note 48.
Secretary Michael R. Pompeo at a Press Availability (Sept. 2, 2020).
Stephen J. Rapp, Intervention of the United States Observer Delegation, 13th Assembly of States Parties, supra note 142.
See Office of Global Criminal Justice Acting Director Jane Stromseth, Remarks at the Fourteenth Session of the International Criminal Court Assembly of States Parties (Nov. 19, 2015) (“The United States has expressed its support for each of the investigations and prosecutions currently under way before the Court”); see also note 157 infra.
White House Press Release, Statement by President Obama on the International Court Announcement (Dec. 15, 2010) (“I urge all of Kenya’s leaders, and the people whom they serve, to cooperate fully with the ICC investigation and remain focused on implementation of the reform agenda and the future of your nation.”).
U.S. Mission to the UN, Remarks at a UN Security Council Briefing on Sudan and the International Criminal Court (June 8, 2017) (“Having referred the situation in Darfur to the ICC over ten years ago, we must continue to demand Sudan’s compliance with this Council’s decisions. While victims have not yet seen justice, and refugees and internally displaced persons continue to struggle years after the conflict began, it is unacceptable that President Bashir still travels and receives a warm welcome from certain quarters of the world—and unacceptable that none of the Sudanese officials with outstanding arrest warrants have been brought to justice.”).
U.S. Mission to the UN, Remarks at a UN Security Council Briefing on the Situation in Libya (May 8, 2017) (“We urge all relevant Libyan actors to facilitate the transfer of Saif Qadhafi to The Hague so he may stand trial for his alleged crimes against humanity. We welcome the continued reports of Libya’s cooperation with the Prosecutor, consistent with this Council’s calls for such cooperation and Libya’s obligations under resolution 1970.”).
Secretary of State John Kerry, Press Statement, Bosco Ntaganda’s Expected Surrender to the International Criminal Court (Mar. 22, 2013) (“Ultimately, peace and stability in the D.R.C. and the Great Lakes will require the restoration of civil order, justice, and accountability. Ntaganda’s expected appearance before the International Criminal Court in The Hague will contribute to that goal, and will also send a strong message to all perpetrators of atrocities that they will be held accountable for their crimes.”).
See, e.g., State Department Spokesperson John Kirby, Press Statement, ICC Announces Cases on Destruction of Cultural Sites in Mali (Oct. 2, 2015); Deputy Department Spokesperson Mark C. Toner, Deputy Department Spokesperson, Press Statement, ICC Judgment in Mali Cultural Destruction Case (Sept. 27, 2016).
ICC Press Release, The Four Staff Members Released in Libya, ICC-CPI-20120702-PR820 (July 2, 2012).
See, e.g., Jane Stromseth, Remarks at the Fourteenth Session of the International Criminal Court Assembly of States Parties, supra note 150; Ambassador-at-Large for War Crimes Issues Stephen J. Rapp, Statement of the U.S. at the Twelfth Session of the Assembly of States Parties of the International Criminal Court (Nov. 21, 2013); Stephen J. Rapp, Statement of the U.S. at the Eleventh Session of the Assembly of States Parties of the International Criminal Court, supra note 138; Ambassador-at-Large for War Crimes Issues Stephen J. Rapp, U.S Statement to the Assembly of States Parties of the International Criminal Court (Dec. 14, 2011).
See note 125 supra, and U.S. Interests; Atrocity Prevention, Text Box - References to Atrocity Prevention and Accountability in National Security Strategies.
Julian Borger, @julianborger, Twitter (Jan. 26, 2021, 4:01 p.m.)
H.R. 2989, South Sudan Peace Promotion and Accountability Act of 2015, 114th Cong., 1st Sess. (supporting the establishment of a credible, independent hybrid judicial court or investigation by the International Criminal Court or other credible judicial court and for all parties in South Sudan to deliberate in a peaceful manner for transitional justice and a truth and reconciliation commission).
S. Res. 363, A Resolution Expressing Profound Concern About the Growing Political, Humanitarian, and Economic Crisis in Venezuela and the Widespread Human Rights Abuses Perpetrated by the Government of Venezuela, 115th Cong., 1st Sess. (supporting the review by the Organization of American States of whether human rights abuses in Venezuela warrant an investigation by the ICC).
S. Res. 360, A Resolution Calling for International Accountability for the Crimes Against Humanity Committed by the Burmese Military Against the Rohingya in Burma, 115th Cong., 1st Sess. (urging the UN to refer those responsible for the crimes against humanity committed by the Burmese military against the Rohingya to the ICC); H.R. 3190, Burma Unified through Rigorous Military Accountability Act of 2019, 116th Cong., 1st Sess. See also H.R. 4169, Sudan Peace, Security, and Accountability Act of 2012, 112th Cong. 2d Sess. (“The President shall impose on any person or government at least two of the sanctions specified in section 7 if the President determines and certifies to the appropriate congressional committees that such person or government has failed to execute an International Criminal Court arrest warrant against any Government of Sudan official if such person or government—(1) had the jurisdictional authority to execute the warrant; (2) had the opportunity to execute the warrant; and (3) failed to do so without reasonable justification.”); S. Res. 237, H.R. 394, A Resolution Condemning Joseph Kony and the Lord’s Resistance Army for Continuing to Perpetrate Crimes Against Humanity, War Crimes, and Mass Atrocities, and Supporting Ongoing Efforts by the United States Government, the African Union, and Governments and Regional Organizations in Central Africa to Remove Joseph Kony and Lord’s Resistance Army Commanders from the Battlefield and Promote Protection and Recovery of Affected Communities, 114th Cong., 1st Sess.
This includes the case against Al Hassan, commenced on July 14, 2020 (The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-01/12-01/18), and a second case against Yekatom and Ngaïssona, commenced on February 16, 2021, with the presentation of evidence scheduled to commence on March 15, 2021 (The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona, ICC-01/14-01/18).
Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”) surrendered to authorities in June 2020 and was transferred to the Court soon after. ICC Press Release, Situation in Darfur (Sudan): Ali Kushayb in ICC Custody, ICC-CPI-20200609-PR1525 (June 9, 2020). In February 2021, the government of Sudan signed a Memorandum of Understanding with the ICC regarding the trial of Ali Kushayb. Sudan Signs MoU with ICC on Ali Kushayb Trial, Dabanga (Feb. 16, 2021).
ICC Press Release, Situation in Central African Republic II: Mahamat Said Abdel Kani Surrendered to the ICC for Crimes Against Humanity and War Crimes, ICC-CPI-2021024-PR1559 (Jan. 24, 2021).
ICC OTP, Report on Preliminary Examination Activities 2020, para. 247 (Dec. 14, 2020) [hereinafter 2020 OTP Report on Preliminary Examinations]. As the prosecutor noted, the United Kingdom had “establish[ed] an independent investigative body [the Iraq Historic Allegations Team (IHAT) and its successor, the Service Police Legacy Investigations (SPLI)] to re-examine all historical allegations against members of the UK armed forces arising from the conflict in Iraq…[and] had initiated a number of criminal proceedings, involving pre-investigative assessment of claims, investigations, and a more limited number of referrals for prosecution. The Office concluded that this process appeared to include the most serious incidents which would likely arise from an investigation of the situation by the Office.” Id., para. 241. The question was thus not whether the U.K. authorities had investigated or remained inactive, but rather whether the investigation and the decisions whether or not to prosecute were genuine or carried out “in a manner that was inconsistent with an intent to bring the person(s) concerned to justice.” Id., para. 245.
Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, ICC-01/13-111, Decision on the “Application for Judicial Review by the Government of the Comoros” (Sept. 16, 2020). See also Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, ICC-01/13-115, Decision on the Request for Leave to Appeal the “Decision on the ‘Application for Judicial Review by the Government of the Comoros’” (Dec. 21, 2020).
Referral of Situation in Venezuela to the ICC by Argentina, Canada, Colombia, Chile, Paraguay, and Peru (Sept. 26, 2018) (unofficial translation).
ICC OTP, Report on Preliminary Examination Activities 2012, para. 28 (Nov. 22, 2012) [hereinafter 2012 OTP Report on Preliminary Examinations].
ICC OTP, Report on Preliminary Examination Activities 2013, para. 28 (Nov. 2013) [hereinafter 2013 OTP Report on Preliminary Examinations].
ICC OTP, Report on Preliminary Examination Activities 2014, paras. 94–95 (Dec. 2, 2014) [hereinafter 2014 OTP Report on Preliminary Examinations].
ICC OTP, Report on Preliminary Examination Activities 2011, para. 25 (Dec. 13, 2011) [hereinafter 2011 OTP Report on Preliminary Examinations]; 2012 OTP Report on Preliminary Examinations, supra note 169, paras. 25–27; 2013 OTP Report on Preliminary Examinations, supra note 170, paras. 24–27. The operations of international military forces examined by OTP included aerial attacks, force protection, search and seizure, and night raid operations.
2014 OTP Report on Preliminary Examinations, supra note 171, para. 97; ICC OTP, Report on Preliminary Examination Activities 2016, paras. 211–13 (Nov. 14, 2016) [hereinafter 2016 OTP Report on Preliminary Examinations]; ICC OTP, Report on Preliminary Examination Activities 2017, paras. 253–55 (Dec. 4, 2017) [hereinafter 2017 OTP Report on Preliminary Examinations].
2016 OTP Report on Preliminary Examinations, supra note 173, at 51.
Situation in Afghanistan, ICC-02/17-7-Red, Public Redacted Version of “Request For Authorisation of an Investigation Pursuant to Article 15” (Nov. 20, 2017) [hereinafter Situation in Afghanistan, OTP Application to Investigate].
ICC OTP, Situation in Afghanistan, Summary of the Prosecutor’s Request for Authorisation of an Investigation Pursuant to Article 15, para. 33 (Nov. 20, 2017) [hereinafter ICC OTP, Summary of Application to Investigate Afghanistan].
Id., para. 37 (There have been “reports that torture has been practised institutionally in certain facilities. High percentages of detainees have reported having experienced torture or cruel treatment.”).
Other allied states have also grappled with allegations of abuses by their military forces in Afghanistan and have taken various investigative and disciplinary measures. In November 2020, Australia completed an inquiry into allegations of killings of prisoners and civilians and other abuses by its special forces personnel in Afghanistan. Inspector General of the Australian Defence Force, Afghanistan Inquiry Report (2020). Major-General Paul Brereton’s report recommended that thirty-six incidents be referred for criminal investigation. The Australian government appointed a former federal judge and commonwealth director of public prosecutions to lead a criminal investigation into nineteen special forces soldiers for the alleged killings of thirty-nine prisoners and civilians, and the cruel treatment of two others; steps were also taken to dismiss at least thirteen additional servicemembers based on evidence that they had assisted in or covered up the abuses. Andrew Greene, Former Federal Court Judge Named as Special Investigator for Afghanistan War Crime Allegations, ABC News (Dec. 16, 2020); Australian “War Crimes”: Troops to Be Fired Over Afghan Killings, BBC News (Nov. 27, 2020). Germany’s investigations of allegations of war crimes by its military personnel in Afghanistan include a parliamentary inquiry and a criminal investigation of military personnel in relation to a September 2009 airstrike near Kunduz. The decision not the prosecute those military personnel was determined to be consistent with Germany’s obligations under human rights law by the Grand Chamber of the European Court of Human Rights in February 2021. Eur. Ct. Hum. Rights Registrar Press Release, The Investigation by the German Authorities Following a Lethal Airstrike in the Context of NATO Operations in Afghanistan Did Not Breach the Convention (Feb. 16, 2021).
Situation in Afghanistan, OTP Application to Investigate, supra note 175, para. 4; ICC OTP, Summary of Application to Investigate Afghanistan, supra note 176, paras. 43–45. The Preliminary Examination reports reflect this narrowing focus, with the 2016 Preliminary Examination Report limiting discussion of U.S. personnel to “War crimes of torture and related ill-treatment.” 2016 OTP Report on Preliminary Examinations, supra note 173, para. 198(c).
To the contrary, in seeking authorization to investigate, the prosecutor determined (on the information available to her at that point) “that there is no reasonable basis to believe that crimes falling within the jurisdiction of the Court were committed during military operations conducted by international military forces.” See Situation in Afghanistan, ICC-02/17-12, Prosecutor’s Provision of Additional Information Pursuant to Pre-Trial Chamber III’s “Order to the Prosecutor to Provide Additional Information” (ICC-02/17-8), para. 12 (Dec. 12, 2017); Situation in Afghanistan, OTP Application to Investigate, supra note 175, paras. 255–57.
Situation in Afghanistan, OTP Application to Investigate, supra note 175, para. 189.
Id., para. 355.
Id. (“Nonetheless, the acts allegedly committed were serious both in their number and in their effect, and although implemented pursuant to authorised interrogation policies adopted locally rather than at headquarters level, implicated personal responsibility within the command structure.” The Prosecutor in particular identified concerns that that “CJTF-180 Command approved an interrogation policy that included the use of the enhanced interrogation techniques…” Id., para. 228.
Id., para. 219.
Contrast Secretary of State Michael R. Pompeo, Press Statement, ICC Decision on Afghanistan (Mar. 5, 2020) (claiming that the decision to authorize an investigation in Afghanistan shows that the ICC become “a vehicle for political vendettas”).
Merrit Kennedy, ICC Prosecutor Calls for Afghanistan War Crimes Investigation, NPR (Nov. 3, 2017).
Kahn, supra note 48.
Secretary of State Michael R. Pompeo, Remarks to the Press (Mar. 15, 2019).
Marlise Simons & Megan Specia, U.S. Revokes Visa of I.C.C. Prosecutor Pursuing Afghan War Crimes, N.Y. Times (Apr. 5, 2019).
Situation in Afghanistan, ICC-02/17-33, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, paras. 48, 60, 90, 94, 96 (Apr. 12, 2019).
Id. See also U.S. Dep’t of State, Michael R. Pompeo, Secretary of State, Unanimous Rejection of International Criminal Court Investigation (Apr. 12, 2019) (“Today, the International Criminal Court (ICC) unanimously rejected the request of the Prosecutor to proceed with an investigation of American personnel who served in Afghanistan because such an investigation would not serve the interests of justice. This decision is a victory for the rule of law and the integrity of the ICC as an institution, given the United States is not subject to the ICC’s jurisdiction. The ICC’s decision follows the State Department’s March 15 announcement of visa restrictions on ICC personnel involved in any investigation of U.S. personnel, and I am glad the Court reconsidered its actions.”).
ICC Press Release, Afghanistan: ICC Appeals Chamber Schedules a Hearing on 4–6 December 2019 to Hear Oral Arguments, ICC-CPI-20190927–MA244 (Sept. 27, 2019).
Situation in Afghanistan, ICC-02/17-98, Confirmation that Mr Jay Alan Sekulow Will Make Oral Submissions at the Oral Hearing to Be Held Between 4 and 6 December 2019 (Oct. 24, 2019). See also Situation in Afghanistan, ICC-02/17-T-001-ENG, Transcript of Appeals Hearing, at 84–87 (Dec. 4, 2019).
Situation in Afghanistan, ICC-02/17-130, Written Submissions of the Government of the Islamic Republic of Afghanistan (Dec. 2, 2019).
Situation in Afghanistan, ICC-02/17-138, Judgment on the Appeal Against the Decision on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, paras. 37–41 (Mar. 5, 2020).
Id., para. 79.
Michael R. Pompeo, Press Statement, ICC Decision on Afghanistan supra note 185.
Michael R. Pompeo, Mar. 17, 2020 Remarks to the Press, supra note 40.
Buchwald, et al., supra note 36.
Exec. Ord. 13928, Blocking Property of Certain Persons Associated With the International Criminal Court (June 11, 2020); Secretary Michael R. Pompeo at a Press Availability with Secretary of Defense Mark Esper, Attorney General William Barr, and National Security Advisor Robert O’Brien, supra note 147.
Secretary Michael R. Pompeo at a Press Availability with Secretary of Defense Mark Esper, Attorney General William Barr, and National Security Advisor Robert O’Brien, supra note 147.
See, e.g., Ambassador David Scheffer, The Self-Defeating Executive Order Against the International Criminal Court, Just Security (June 12, 2020); William Burke-White, The Danger of Trump’s New Sanctions on the International Criminal Court and Human Rights Defenders, Brookings (June 11, 2020). Those critiques were also based on undermining the credibility of U.S. sanctions. Rob Berschinski, Trump’s ICC EO Will Undercut All U.S. Sanctions Programs—Is that Why Treasury Isn’t Conspicuously on Board?, Just Security (June 16, 2020).
ABA Adopts Policy Condemning Threats Against the ICC and Its Officers, Int’l Crim. Just. Today (Aug. 3, 2020).
Ellen Nakashima & Carol Morello, Lawyers Urge Trump to Rescind Sanctions and Travel Bans for International Criminal Court, Wash. Post (June 29, 2020).
Adam M. Smith, Dissecting the Executive Order on Int’l Criminal Court Sanctions: Scope, Effectiveness, and Tradeoffs, Just Security (June 15, 2020).
See, e.g., International Criminal Justice: Statement by the High Representative Following the US Decision on Possible Sanctions Related to the International Criminal Court, EU External Action Serv. (June 16, 2020) (statement by EU foreign policy chief Josep Borrell that “The European Union expresses grave concern…and reconfirms its unwavering support for the International Criminal Court. Sanctions against those involved in the work of the ICC, its staff and their families as well as persons associated with the ICC are unacceptable…The European Union remains committed to defending the Court from any outside interference aimed at obstructing the course of justice…”).
‘“The UK strongly supports the International Criminal Court in tackling impunity for the worst international crimes,’ Foreign Secretary Dominic Raab said.” UK Supports International Court After Trump Approves Sanctions, Reuters (June 13, 2020).
Government of Canada, Joint Statement in Support of the International Criminal Court (June 23, 2020); Permanent Mission of France to the United Nations in New York, Statement in Support of the International Criminal Court (ICC) Following the Release of the US Executive Order of 11 June 2020 (June 23, 2020). See, in similar terms, a statement issued by ten Members of the Security Council that are States Parties to the Rome Statute (Belgium, the Dominican Republic, Estonia, France, Germany, Niger, Saint Vincent and the Grenadines, South Africa, Tunisia, and the United Kingdom) as well as three incoming Members of the Security Council that are also States Parties to the Rome Statute (Ireland, Mexico, and Norway). Permanent Mission of the Federal Republic of Germany to the United Nations Press Release, UN Security Council Stakeout on the International Criminal Court (Nov. 10, 2020).
Wesley K. Clark, The United States Has Nothing to Fear From the ICC, For. Pol’y (July 2, 2020).
Secretary of State Michael R. Pompeo, Actions to Protect U.S. Personnel from Illegitimate Investigation by the International Criminal Court (Sept. 2, 2020).
Beth Van Schaack, The Int’l Criminal Court Executive Order: Global Reactions Compiled, Just Security (Sept. 1, 2020).
International Criminal Court: Statement by the High Representative/Vice-President Josep Borrell on US Sanctions, EU External Action Serv. (Sept. 3, 2020).
Pranshu Verma, Trump’s Sanctions on International Court May Do Little Beyond Alienating Allies, N.Y. Times (Oct. 18, 2020) (quoting Dan Fried). See also Stephanie L. Connor, United States Sanctions ICC Prosecutor Investigating Potential War Crimes, FCPA Blog (Sept. 4, 2020).
Open Society Justice Initiative, et al. v. Trump, No. 1:2020cv08121 (S.D.N.Y. Oct. 1, 2020); Open Society Just. Initiative Press Release, Open Society Justice Initiative Sues Trump Administration Over International Criminal Court Executive Order (Oct. 1, 2020).
Andrew Boyle, ICC Associates Win Temporary Reprieve from Draconian US Sanctions, Just Security (Jan. 5, 2021).
Sadat, et al. v. Trump, et al., No. 4:21-cv-00416 (N.D. Cal. Jan. 15, 2021).
Lewis, supra note 143.
White House, Executive Order on the Termination of Emergency with Respect to the International Criminal Court (Apr. 1, 2021); Secretary of State Antony J. Blinken, Press Statement, Ending Sanctions and Visa Restrictions Against Personnel of the International Criminal Court (Apr. 2, 2021). The Executive Order also terminated the national emergency that had been declared in Executive Order 13928 as the basis for the sanctions.
Antony J. Blinken, Press Statement, Ending Sanctions and Visa Restrictions Against Personnel of the International Criminal Court, supra note 219.
Situation in Afghanistan, ICC-02/17-139-Anx1, Deferral Request Made by the Government of the Islamic Republic of Afghanistan Pursuant to Article 18(2) of the Rome Statute (Mar. 26, 2020).
Report of the International Criminal Court on Its Activities in 2019/20, UN Doc. A/75/324 (Aug. 24, 2020).
The Prosecutor’s report states: “With respect to the admissibility of potential cases concerning crimes allegedly committed by members of the IDF, the Office noted that due to limited accessible information in relation to proceedings that have been undertaken and the existence of pending proceedings in relation to other allegations, the Office’s admissibility assessment in terms of the scope and genuineness of relevant domestic proceedings remained ongoing and would need to be kept under review in the context of an investigation. However, the Office concluded that the potential cases concerning crimes allegedly committed by members of Hamas and PAGs [Palestinian armed groups] would be admissible pursuant to article 17(1)(a)–(d) of the Statute.” 2020 OTP Report on Preliminary Examinations, supra note 166, para. 222.
Palestinian National Authority, Ministry of Justice, Office of Minister, Declaration Recognizing the Jurisdiction of the International Criminal Court (Jan. 21, 2009).
See Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, at 22 et seq., ST/LEG/7/Rev.1 (1999).
ICC OTP, Statement Regarding Situation in Palestine (Apr. 3, 2012).
GA Res. 67/19, para. 2 (Dec. 4, 2012).
Mahmoud Abbas, Declaration Accepting the Jurisdiction of the International Criminal Court (Dec. 31, 2014, lodged Jan. 1, 2015). That initial attempt to accept jurisdiction covered alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” Id. The Palestinians subsequently submitted a document purporting to refer the situation on the basis of Palestine’s “right as a State Party to the Rome Statute” on May 15, 2018. Situation in Palestine, Referral by the State of Palestine Pursuant to Articles 13(a) and 14 of the Rome Statute (May 15, 2018).
ICC Press Release, The Prosecutor of the International Criminal Court, Fatou Bensouda, Opens a Preliminary Examination of the Situation in Palestine, ICC-OTP-20150116-PR1083 (Jan. 16, 2015).
Situation in Palestine, ICC-01/18-12, Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine, para. 5 (Jan. 20, 2020) (the request was refiled for technical reasons on January 22, 2020).
Situation in Palestine, ICC-01/18-14, Order Setting the Procedure and the Schedule for the Submission of Observations (Jan. 28, 2020).
State of Israel, Office of the Attorney General, The International Criminal Court’s Lack of Jurisdiction Over the So-Called “Situation of Palestine” (White Paper, Dec. 20, 2019).
Situation in Palestine, ICC-01/18-83, Submission Pursuant to Rule 103 (Todd F. Buchwald and Steven J. Rapp) (Mar. 16, 2020). The authors of the brief included one of the co-chairs of the Task Force and a member of the Advisory Group.
Situation in Palestine, ICC-01/18-143, Decision on the “Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine,” paras. 100, 118 (Feb. 5, 2021) [hereinafter Situation in Palestine, Ruling on Territorial Jurisdiction].
Secretary of State Anthony J. Blinken, Press Statement, The United States Opposes the ICC Investigation into the Palestinian Situation (Mar. 3, 2021). For its part, the ICC Pre-Trial Chamber indicated that its decision did not entail a determination as to whether the Palestinians “fulfill the prerequisites of statehood under international law” (or that it was “adjudicating a border dispute under international law [or] prejudging the question of any future borders”). Situation in Palestine, Ruling on Territorial Jurisdiction, supra note 234, paras. 93, 113. Israel, to the contrary, has argued that the question of jurisdiction cannot be separated from the question of whether an entity actually qualifies as a state under international law because the ICC can exercise jurisdiction only to the extent it has been delegated from an entity that qualifies as a state with such a delegation authority. See, e.g., State of Israel, Office of the Attorney General, The International Criminal Court’s Lack of Jurisdiction Over the So-Called “Situation in Palestine,” supra note 232, para. 4.
See, e.g., Consolidated Appropriations Act, 2021, supra note 55, § 7041(k)(2).
In the press release, the State Department Spokesperson said that the closure reflected concerns that the PLO leadership had not taken steps to advance meaningful negotiations with Israel and that the decision “is also consistent with Administration and Congressional concerns with Palestinians attempts to prompt an investigation of Israel by the [ICC].” U.S. Dep’t of State, Office of the Spokesperson, Closure of the PLO Office in Washington (Sept. 10, 2018).
Letter from Senator Benjamin L. Cardin and Senator Rob Portman to Secretary of State Michael R. Pompeo (May 13, 2020).The Cardin/Portman letter was joined by sixty-nine additional Senators, including then-Senator (and now-Vice President) Kamala Harris. See also Letter from House Representative Elaine G. Luria, et al. to Secretary of State Michael R. Pompeo (May 12, 2020) (joined by over 260 members of Congress).
Secretary Michael R. Pompeo at a Press Availability with Secretary of Defense Mark Esper, Attorney General William Barr, and National Security Advisor Robert O’Brien, supra note 147.
Senator Chris Coons, @Chris Coons, Twitter (Sept. 3, 2020, 8:49 P.M.) (“We need to be engaging with international institutions to address their shortcomings and promote US values. Sanctions on ICC officials accomplish neither.”).
Office of Congressman James P. McGovern Press Release, Rep. McGovern Slams Trump Administration for Misguided Decision to Impose Sanctions on International Criminal Court Officials (Sept. 2, 2020); see also Office of Senator Patrick Leahy Press Release, Reaction to the White House Announcement of Sanctions Against Employees of the International Criminal Court (June 11, 2020); Office of Senator Patrick Leahy Press Release, Reaction to the Trump Administration’s Decision to Sanction Personnel of the International Criminal Court (Sept. 2, 2020).
See, e.g., Former ICC Chief Prosecutor: Investigation Could Take 18 Months, Jerusalem Post (Feb. 8, 2021).
Prosecutor v. Lubanga, ICC-01/04-01/06-2842, Judgment Pursuant to Article 74 of the Statute (Mar. 14, 2012); Prosecutor v. Katanga, ICC-01/04-01/07-3436, Judgment Pursuant to Article 74 of the Statute (Mar. 7, 2014); Prosecutor v. Ntaganda, ICC-01/04-02/06-2359, Judgment (July 8, 2019) (currently on appeal); Prosecutor v. Al-Mahdi, ICC-01/12-01/15-171, Judgment and Sentence (Sept. 27, 2016) (by way of a guilty plea); ICC Press Release, Dominic Ongwen Declared Guilty of War Crimes and Crimes Against Humanity Committed in Uganda, ICC-CPI-20210204-PR1564 (Feb. 4, 2021). In addition, there have also been five convictions for “offences against the administration of justice” (effectively the crime of contempt). See Prosecutor v. Bemba Gombo, et al., ICC-01/05-01/13-1989-Red, Public Redacted Version of Judgment Pursuant to Article 74 of the Statute (Oct. 19, 2016).
Charges against Kenyatta were withdrawn on December 5, 2014. Prosecutor v. Kenyatta, ICC-01/09-02/11-983, Notice of Withdrawal of the Charges Against Uhuru Muigai Kenyatta (Dec. 5, 2014). The case against Ruto was terminated on April 5, 2016, when the Trial Chamber ruled that there was no case to answer. Prosecutor v. Ruto and Sang, ICC-01/09-01/11-2027-Red-Corr, Public Redacted Version of: Decision on Defence Applications for Judgments of Acquittal (Apr. 5, 2016).
ICC Press Release, ICC Trial Chamber I Acquits Laurent Gbagbo and Charles Blé Goudé from All Charges, ICC-CPI-20190115-PR1427 (Jan. 15, 2019). For written reasons, see Prosecutor v. Gbagbo and Blé Goudé, ICC-02/11-01/15-1263, Reasons for Oral Decision of 15 January 2019 on the Requête de la Défense de Laurent Gbagbo afin qu’un jugement d’acquittement portant sur toutes les charges soit prononcé en faveur de Laurent Gbagbo et que sa mise en liberté immédiate soit ordonnée (July 16, 2019). This decision was upheld on appeal, see Prosecutor v. Gbagbo and Blé Goudé, ICC-02/11-01/15-1400, Judgment in the Appeal of the Prosecutor Against Trial Chamber I’s Decision on the No Case to Answer Motions (Mar. 31, 2021).
ICC Press Release, ICC Appeals Chamber Acquits Mr Bemba from Charges of War Crimes and Crimes Against Humanity, ICC-CPI-20180608-PR1390 (June 8, 2018). In addition, Ngudjolo was acquitted (Prosecutor v. Ngudjolo, ICC-01/04-02/12-3-tENG, Judgment Pursuant to Article 74 of the Statute (Dec. 18, 2012)), cases against four other individuals were dismissed after confirmation hearings (Prosecutor v. Abu Garda, ICC-02/05-02/09-243-Red, Public Redacted Version: Decision on the Confirmation of Charges (Feb. 8, 2010); Prosecutor v. Mbarushimana, ICC-01/04-01/10-465-Red, Public Redacted Version: Decision on the Confirmation of Charges (Dec. 16, 2011); and two Kenya suspects—Ali and Kosgey); proceedings against the two other Kenyan accused were discontinued (either withdrawn by the Prosecutor or vacated by the Chamber).
Douglas Guilfoyle, Part II – This Is Not Fine: The International Criminal Court in Trouble, EJIL:Talk! (Mar. 22, 2019).
See generally Douglas Guilfoyle, Lacking Conviction: Is the International Criminal Court Broken? An Organisational Failure Analysis, 20 Melb. J. Int’l L. (2019); Open Society Justice Initiative & Amsterdam Center for International Law/Department of Criminal Law, Amsterdam Law School, Improving the Operations of the ICC Office of the Prosecutor: Reappraisal of Structures, Norms, and Practices (Apr. 15, 2020).
Jane Stromseth, Is the ICC Making a Difference?, Just Security (Dec. 6, 2017). See also Geoff Dancy & Florencia Montal, Unintended Positive Complementarity: Why International Criminal Court Investigations May Increase Domestic Human Rights Prosecutions, 111 Am. J. Int’l L. 689 (2017).
Such concerns included statements by the then-Chair of the African Union’s Executive Council in 2013 that “the court has transformed itself into a political instrument targeting Africa and Africans,” (African Union Condemns “Unfair” ICC, BBC News (Oct. 11, 2013)) although the threats of mass withdrawal of African states from the Court did not materialize (Theresa Reinold, African Union v. International Criminal Court: Episode MLXIII(?), EJIL:Talk! (Mar. 23, 2018)).
South Africa and The Gambia also provided notification of their intent to withdraw, but subsequently rescinded that withdrawal and remain parties to the Rome Statute.
Crimes in Myanmar against the Rohingya (through their forced displacement into Bangladesh, an ICC state party). See Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, ICC-01/19, Investigation.
Bolivia; Colombia; Guinea; the Philippines; and Venezuela (where it is conducting preliminary examinations of two separate situations). ICC, Preliminary Examinations.
2020 OTP Report on Preliminary Examinations, supra note 166.
Rome Statute, supra note 69, Art. 5 (“The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole.”); see also id., pmbl., Art. 1.
2020 OTP Report on Preliminary Examinations, supra note 166, paras. 265, 289 (“For the next steps, in the light of the operational capacity of the Office to roll out new investigations, the fact that several preliminary examinations have reached or are approaching the same stage, as well as operational challenges brought on by the COVID-19 pandemic, the Prosecutor intends to consult with the incoming new Prosecutor, once elected, on the strategic and operational issues related to the prioritisation of the Office’s workload and the filing of necessary applications before the Pre-Trial Chamber. In the interim, the Office will continue to take measures to seek to ensure the integrity of any future investigation.”).
See Independent Expert Review of the International Criminal Court and the Rome Statute System, Final Report, paras. 686, 694 (Sept. 30, 2020) [hereinafter IER Report]. The Prosecutor subsequently issued a draft Policy on Situation Completion on March 25, 2021, for consultation and comments by states parties, civil society, and other stakeholders. ICC Press Release, The Office of the Prosecutor Publishes Draft Policy on Situation Completion for Consultation, ICC-OTP-20210325-PR1580 (Mar. 25, 2021).
For example, in northern Uganda and in Kenya there do not appear to have been any active investigations in recent years.
Preliminary Examinations involving the Comoros, Gabon, Honduras, UK/Iraq, and Republic of Korea have been closed with a decision not to proceed. ICC, Preliminary Examinations, supra note 254.
Guilfoyle, supra note 249.
Parimal Kashyap, Judge Ozaki’s Case: Moonlighting at the International Criminal Court?, Vöelkerrechtsblog (May 10, 2019); Kevin Jon Heller, Judge Ozaki Must Resign – or Be Removed, Opinio Juris (Mar. 29, 2019).
Marlise Simons, In The Hague’s Lofty Judicial Halls, Judges Wrangle Over Pay, N.Y. Times (Jan. 20, 2019).
Kevin Jon Heller, Problematic Statements by the French Judge at the ICC, Opinio Juris (May 3, 2019).
See e.g. Prosecutor v. Bemba, ICC-01/05-01/08-3636-Anx2, Appeal Judgment, Separate opinion Judge Christine Van den Wyngaert and Judge Howard Morrison, para. 4, (June 8, 2018) (“appears to be a fundamental difference in the way we look at our mandates as international judges…[I]t is probably fair to say that we attach more importance to the strict application of the burden and standard of proof. We also seem to put more emphasis on compliance with due process norms that are essential to protecting the rights of the accused in an adversarial trial setting.”). Professor Guilfoyle notes even stronger critiques in a number of dissenting opinions, considering that: “While dissent is not a sign of a lack of collegiality per se, exceptionally robust language in which one accuses colleagues of having acted unfairly or ultra vires (as occurred in these cases) may be.” Guilfoyle, supra note 249.
Janet H. Anderson, Plot Twists at the ICC for Jean-Pierre Bemba, Justice Info (Mar. 12, 2019); Owiso Owiso, “Oops, We Misplaced the Keys…too Bad!”: The International Criminal Court and the Fiasco of Mr Jean-Pierre Bemba’s Compensation Claim, EJIL:Talk! (June 3, 2020). For the legal background, see Daley J. Birkett, Managing Frozen Assets at the International Criminal Court: The Fallout of the Bemba Acquittal, 18 J. Int’l Crim. Just. 765 (2020).
Government of the UK, Foreign & Commonwealth Office, Statement by Andrew Murdoch, Legal Director to the International Criminal Court Assembly of States Parties, at Its 17th Session in The Hague (Dec. 5, 2018).
Prince Zeid Raad Al Hussein, Bruno Stagno Ugarte, Christian Wenaweser & Tiina Intelmann, The International Criminal Court Needs Fixing, New Atlanticist (Apr. 24, 2019).
IER Report, supra note 259, para. 634.
Id., paras. 644–50, rec. R227.
Id., paras. 684–88, rec. R243; and including feasibility factors, see rec. R244)
Review of the International Criminal Court and the Rome Statute System, para. 18(c), ICC Res. ICC-ASP/18/Res.7 (adopted Dec. 6, 2019).
ICC Assembly of States Parties, Report of the Bureau on Complementarity, paras. 28, 41(3), ICC-ASP/19/22.
Supplemental Appropriations Act for Fiscal Year 2002, 148 Cong. Rec. 9595. For examples of the expression of this position under the Bush and Trump Administrations, see Background, ICC-Specific Legislation, and Recent Developments; the Situation in Afghanistan. As a further example, President Obama’s 2010 National Security Strategy led its reference to the ICC by stating that “Although the United States is not at present a party to the Rome Statute of the International Criminal Court (ICC), and will always protect U.S. personnel…” (see U.S. Interests; Atrocity Prevention, Text Box - References to Atrocity Prevention and Accountability in National Security Strategies).
See Supplementary Hearing Before the Senate Committee on Foreign Relations, 83rd Cong, 1st Sess., at 3 (June 24, 1953). The reservation was ultimately rejected, 99 Cong. Rec, 9080, 9083, following interventions by President Eisenhower personally (see Letter from President Eisenhower to Senator Knowland, reprinted at 99 Cong. Rec. 8879 (July 14, 1953)).
See U.S. Dep’t of State, International Security Advisory Group, Report on Status of Forces Agreement (Jan. 16, 2015).
See id., Sec. III (observing that the United States “has an interest in preserving the principle that U.S. military discipline is enforced by the U.S. military justice system,” which protects servicemembers’ rights and public support for military deployments. “U.S. willingness to deploy forces overseas—and public support for such deployments—could suffer significant setbacks if U.S. personnel were at risk of being tried…” in systems that lacked (or were perceived as lacking) such due process protections.).
Lindsay L. Rodman, Unity of Command: Authority and Responsibility Over Military Justice, 93 Joint Force Q. 71 (2019). Rodman notes the Air Force identifies “‘responsibility for UCMJ actions’” as a minimum requirement for a commander to have sufficient administrative control of a unit. Id. at 75 (citation omitted). Military lawyers in other countries similarly recognize that “operational necessity may demand that a commander under all circumstances exercises full control over his forces, including the exercise of criminal jurisdiction.” Joop Voetelink, Status of Forces and Criminal Jurisdiction, LX Neth. Int’l L. Rev. LX 231, 250 (2013).
See notes 47–53 supra and accompanying text.
EU Guiding Principles Concerning Arrangements Between a State Party to the Rome Statute of the International Criminal Court and the United States Regarding the Conditions to Surrender of Persons to the Court, supra note 49. The Guidelines state with respect to the “scope of persons” covered by any agreement: “Any solution should cover only persons present on the territory of a requested State because they have been sent by a sending State, cf. Article 98, paragraph 2 of the Rome Statute.”
2009 ASIL Task Force Report, supra note 18, at 26–29.
Secretary Michael R. Pompeo at a Press Availability with Secretary of Defense Mark Esper, Attorney General William Barr, and National Security Advisor Robert O’Brien, supra note 147.
John B. Bellinger III, What President Biden and the ICC Prosecutor Should Do to End the United States–ICC Conflict, Hum. Rts. & Int’l Crim. L. ICC F. (Jan. 8, 2021) (“The Prosecutor surely knows there is no possibility that any U.S. official will ever be arrested and prosecuted in the Hague.”).
See ICTY, Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, Final Report to the Prosecutor (June 2000).
Clark, supra note 210.
See Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Art. 49, Aug. 12, 1949, 75 UNTS 31; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Art. 50, Aug. 12, 1949, 75 UNTS 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War, Art. 129, Aug. 12, 1949, 75 UNTS 135; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Art. 146, Aug. 12, 75 UNTS 287 (“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.”) (all Geneva Conventions available here).
For example, in November 2009, an Italian court convicted in absentia twenty-two CIA personnel and one U.S. Air Force officer for the alleged abduction and rendition of Abu Omar in Italy. See Rachel Donadio, Italy Convicts 23 Americans for C.I.A. Renditions, N.Y. Times (Nov. 4, 2009); Beth Van Schaack, A Look at the Case of the Ex-CIA Officer Being Extradited to Italy for Her Role in a 2003 Rendition, Just Security (Feb. 24, 2017). The Italian Ministry of Justice had agreed that the United States had “the primary right to exercise jurisdiction” over the Air Force officer under the NATO Status of Forces Agreement. NATO Status of Forces Agreement, Art. 7, June 19, 1951; Chris Jenks & Eric Talbot Jensen, All Human Rights are Equal, But Some Are More Equal than Others: The Extraordinary Rendition of a Terror Suspect in Italy, the NATO SOFA, and Human Rights, 1 Harv. Nat’l Sec. J. 171 (2010). An Italian court nevertheless proceeded to the conviction, but—against the backdrop of the provision in the SOFA regarding right of primary jurisdiction—the Italian President then pardoned Romano, saying that he was acting to solve “a situation of great delicacy.” Italy Pardons U.S. Pilot Convicted in CIA Rendition Case, Reuters (Apr. 5, 2013); Italy Pardons U.S. Air Force Officer in Rendition Case, CNN (Apr. 6, 2013).
Steven R. Ratner, Belgium’s War Crimes Statute: A Postmortem, 97 Am. J. Int’l L. 888 (2003).
See, e.g., Belfast Guidelines on Amnesty and Accountability (2013).
Ehsan Qaane, Investigating Post-2003 War Crimes: Afghan Government Wants “One More Year’ from the ICC, Afghan Analysts Network (June 27, 2017).
Patricia Gossman, Amnesty and the Peace Process in Afghanistan, INPROL (Feb. 2019); Qaane, supra note 292.
See Security Council, Agreement for Bringing Peace to Afghanistan Between the Islamic Emirate of Afghanistan Which Is Not Recognized by the United States as a State and Is Known as the Taliban and the United States of America (Feb. 29, 2020), Annex to the Letter Dated 6 March 2020 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/2020/184 (Mar. 9, 2020).
See Communiqué, 2020 Afghanistan Conference, Geneva (Nov. 23–24, 2020).
Rome Statute, supra note 69, Arts. 53(1)(c), (2)(c).
Id. Art. 16.
ICC OTP, Policy Paper on the Interests of Justice (2007).
For example, in the context of the former Yugoslavia, General Clark recounts that he “witnessed firsthand how the U.N.’s Yugoslavia tribunal helped end the conflict in Kosovo and drive Slobodan Milosevic and other abusive leaders from power.” Clark, supra note 210. And in the aftermath of the Kenya post-election violence of 2007–08, the “United States scolded Kenya…for its failure to create a local court to deal with the perpetrators of post-election chaos last year that was the worst violence since independence from Britain in 1963.” Andrew Cawthorne, U.S. Chides Kenya for Inaction on Post-Poll Chaos, Reuters (Aug. 4, 2009).
See, e.g., Human Rights Watch, Selling Justice Short: Why Accountability Matters for Peace (July 7, 2009). For reflections on how to reconcile the arguments for and against the role of justice in sustaining or impeding peace settlements, see, e.g., Nick Grono & Caroline Flintoft, Negotiating Justice to Understand Accountability, Int’l Crisis Group (June 25, 2007).
Beth Van Schaack, Good Governance Paper No. 13: Atrocities Prevention and Response, Just Security (Oct. 29, 2020); Beth Van Schaack, Atrocities Prevention & Response: A Good Governance Blueprint (Dec. 17, 2020).
Presidential Study Directive on Mass Atrocities (PSD-10) (Aug. 4, 2011).
Alex Bellamy, Reducing Risk, Strengthening Resilience: Toward the Structural Prevention of Atrocity Crimes, Stanley Ctr. Peace & Sec. (Apr. 2016).
2015 National Security Strategy, supra note 125, at 22.
National Security Strategy of the United States of America, at 52 (Dec. 2017) [hereinafter 2017 National Security Strategy].
U.S. Dep’t of State, 2020 Report to Congress Pursuant to Section 5 of the Elie Wiesel Genocide and Atrocities Prevention Act of 2018 (Pub. L. No. 115-441) (Aug. 7, 2020) [hereinafter 2020 Elie Wiesel Act Report].
Elie Wiesel Genocide and Atrocities Prevention Act of 2018, supra note 60, §§ 2, 3(3)(C).
National Defense Authorization Act for Fiscal Year 2021, Pub. L. No: 116-283, § 1210D (Mitigation and Prevention of Atrocities in High-Risk Countries).
See Stuart Ford, Can the International Criminal Court Succeed? An Analysis of the Empirical Evidence of Violence Prevention, 43 Loy. L.A. Int’l & Comp. L. Rev. 101 (2020) (summarizing critiques of the effectiveness of the ICC at preventing violence, noting that many scholars have expressed doubt that international courts can prevent violations, at 109 and authorities cited therein). For his part, Ford reviews five recent empirical studies (at 110–21), and concludes that in at least some circumstances “there is now strong evidence that the ICC does prevent violence.” Id. at 122. See also Christen Romero Philips, The International Criminal Court & Deterrence: A Report to the Office of Global Criminal Justice, U.S. Department of State, Stanford L. School: L. & Pol’y Lab (June 2016) (presenting overview of three “Arguments and Empirical Research Showing Support for the ICC’s Deterrence Effect” (at 2–5), and four “Theoretical Arguments Against the ICC’s Deterrence Effect” (at 6–9)).
Key passages from the preamble include express the international community’s views in this regard:
Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity,
Recognizing that such grave crimes threaten the peace, security and well-being of the world,
Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes…
Rome Statute, supra note 69, pmbl.
2017 National Security Strategy, supra note 305, at 42 (including the commitment that the United States “will hold perpetrators of genocide and mass atrocities accountable”).
See, e.g., House Res. 310 passed unanimously by the House in 2015 and recognizing that the ICTY has “helped strengthen peace and encouraged reconciliation” and “asserts that is in the national interest of the United States that those individuals who are responsible for these crimes and breaches should continue to be held accountable for their actions.” Likewise, S. Res. 413 (2014) recognized successful prosecutions by the ICTR including “the first convictions for rape as a weapon of war” and expressed support for the US to “ensure measures of accountability” for contemporary atrocities, such as those in Syria, CAR, South Sudan, and elsewhere.
See note 14 supra.
Including, amongst others, the Syria Justice and Accountability Center (SJAC) and the Commission for International Justice and Accountability (CIJA).
U.S. Dep’t of State, Office of the Spokesperson, Joint Statement by the Secretary of State of the United States of America, the Foreign Secretary of the United Kingdom, and the Foreign Ministers of France, Germany, and Italy (Mar. 15, 2021). The statement continued: “We will continue to support the important role of the Commission of Inquiry and the International, Impartial and Independent Mechanism. We welcome the ongoing efforts by national courts to investigate and prosecute crimes within their jurisdiction committed in Syria.” Id.
U.S. Dep’t of State, Documentation of Atrocities in Northern Rakhine State (Aug 2018).
Beth Van Schaack, Ugandan ICC Fugitive No More? The Hunt for Joseph Kony et al., Just Security (Mar. 3, 2014).
Am. Bar. Assoc., Our Work in the DRC; see also Tessa Khan & Jim Wormington, Mobile Courts in the DRC- Lessons from Development for International Criminal Justice (Oxford Transitional Justice Research Working Paper Series, July 9, 2012).
Beth Van Schaack, Breaking News: Security Council Authorizes Robust Peacekeeping Mandate for CAR, Just Security (Dec. 5, 2013); Beth Van Schaack, The End of the M23, Will Justice Follow?, Just Security (Nov. 7, 2013).
2019 Elie Wiesel Genocide and Atrocities Prevention Report, supra note 65, at 6–7. The 2020 Elie Wiesel Act report clarifies that the $10.5 million of State Department and USAID funding for atrocity prevention programming “includes $4 million to develop actionable case files against perpetrators of atrocities in Iraq and Syria, including ISIS and the Assad regime. State also provided $1 million to support UNITAD’s ongoing efforts to gather evidence on ISIS crimes in the Ninewa Plain.” 2020 Elie Wiesel Act Report, supra note 306.
Women, Peace, and Security Act of 2017, supra note 62.
Incorporated into the National Defense Authorization Act for Fiscal Year 2019, supra note 59, § 1232.
Iraq and Syria Genocide Relief and Accountability Act of 2018, supra note 64.
Caesar Syria Civilian Protection Act of 2019, incorporated into the National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, Title LXXIV, §§ 7401 et seq.
Consolidated Appropriations Act, 2021, supra note 55, § 7065(a)(2).
Torture Victims’ Protection Act, 28 U.S.C. § 1350 Note (Mar. 12, 1992).
Foreign Sovereign Immunities Act, 28 U.S.C. § 1605A–B.
Global Magnitsky Act, supra note 66; 22 U.S.C. § 2656, supra note 66; EO 13818, supra note 66.
USCIRF’s chapters in the 2015 Annual Report on Iraq and Syria. USCIRF Press Release, USCIRF Statement on the Designation of Victims of Genocide, Persecution, and Crimes Against Humanity in Syria and Iraq (Dec. 7, 2015).
Kirsten Lavery, The Path Towards Justice: Accountability for International Crimes Against the Rohingya of Burma, USCIRF, at 5 (Mar. 2020).
Referral of Situation in Venezuela to the ICC by Argentina, Canada, Colombia, Chile, Paraguay, and Peru, supra note 168; U.S. to Use All Economic, Political Tools to Hold Maduro Accountable: Pompeo, Reuters (Apr. 14, 2019).
See, e.g., DOD Directive 2311.01, DOD Law of War Program (July 2, 2020).
U.S. Dep’t of Defense, Law of War Manual, § 18.2, at 1072–74 (June 2015).
Clark, supra note 210.
Under 10 U.S.C. § 333.
2020 Elie Wiesel Act Report, supra note 306.
For funds under the Foreign Assistance Act and Arms Export Control Act, see Foreign Assistance Act of 1961, 22 U.S.C. ch. 32, § 2378(d); for Department of Defense funds, see 10 U.S.C. § 362. See also U.S. Dep’t of State, Bureau of Democracy, Human Rights, and Labor, Fact Sheet, About the Leahy Law (Jan. 20, 2021).
Sang-Hyun Song, The Role of the International Criminal Court in Ending Impunity and Establishing the Rule of Law, UN Chronicle (identifying the ICC’s core role as “enforcing and inducing compliance with specific norms of international law aimed at outlawing and preventing mass violence”).
See 18 U.S.C. ch. 118, §§ 2441, 2442.
See, e.g., Ambassador Michele J. Sison, U.S. Deputy Permanent Representative to the United Nations, Remarks at a UN Security Council Briefing on the International Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda (Dec. 6, 2017).
Prosecutor v. Bemba, Appeal Judgment, Separate opinion Judge Christine Van den Wyngaert and Judge Howard Morrison, supra note 267, paras. 166–93.
Prosecutor v. Lubanga, Judgment Pursuant to Article 74 of the Statute, supra note 244, paras. 523–67.
Review Conference of the Rome Statute, Pledges, supra note 121, at 18.
For example, regarding the DRC, in 2018 the House of Representatives passed H.R. 6207 (374–11) in which it declared in Section 2(c) that the “sense of Congress that the Secretary of State and the Administrator of the United States Agency for International Development should—(1) continue to— (A) support long-term peace and stability in the Democratic Republic of the Congo by strengthening democratic institutions and promoting respect for the rule of law at the national, provincial, and local levels.” And in April 2019, the State Department pledged to work with the new president of the DRC “to advance his agenda to…strengthen the rule of law, enhance security, [and] protect human rights…” U.S. Dep’t of State, Office of the Spokesperson, Department Press Briefing (Mar. 26, 2019).
For example, in March 2020 the House of Representative overwhelmingly passed (378–7) H. Res. 387, condemning continued violence against civilians by armed groups in the Central African Republic, supporting efforts to achieve a lasting political solution to the conflict, and recognizing a number of humanitarian and rule of law programs that the U.S. supports, including the establishment of the Special Criminal Court as a “commitment to justice and accountability.” H. Res. 387, Condemning Continued Violence Against Civilians by Armed Groups in the Central African Republic and Supporting Efforts to Achieve a Lasting Political Solution to the Conflict
(Mar. 3, 2020). It also called on the Secretary of State and USAID to provide humanitarian and developmental assistance, support peacebuilding, justice, and rule of law programming. Id.
In H. Res. 387, Congress called on the Secretary of State and USAID (in the context of encouraging support for rule of law and humanitarian assistance) to “undertake efforts to prioritize mutual interests between the United States and the Central African Republic and take steps to position the United States as a leader working with the Government of the Central African Republic in the areas of reconstruction, postconflict remediation, and institution building, as well as taking steps to combat Russian influence in the country and region.” Id., § 7(e).
See Am. Bar Assoc., Ctr. Hum. Rts., Report to the House of Delegates (May 4, 2020); Legal Scholars and Attorneys Urge President Trump to Rescind ICC Punishments, Wash. Post (June 29, 2020).
Government of Canada, Joint Statement in Support of the International Criminal Court, supra note 209.
For example, Ambassador-at-Large for Global Criminal Justice Morse Tan indicated that the United States was presenting the Court with two options: “number one, change course and amend the Rome Statute so that it will not be possible for American personnel to be hauled before it; or number two, and the Secretary has been clear on this, that the second option would be that the U.S. would seek the dissolution of the Court itself.” Am. Enterprise, Inst., The International Criminal Court and Global Criminal Justice: A Conversation with Amb. Morse H. Tan, at 20:21.
Antony J. Blinken, Press Statement, Ending Sanctions and Visa Restrictions Against Personnel of the International Criminal Court, supra note 219. See notes 218-220 supra and accompanying text.
See Lt. Col. (ret.) Jay Morse, Why We Prosecute Wartime Misconduct, Just Security (Mar. 10, 2021) (noting that pardoning the commission of war crimes will result in manifest injustice not only to the victims, but also to “the tens of thousands of service members who have deployed and served honorably in conflict zones, as well as to the U.S. military justice system as a whole”); Clark, supra note 210 (“The pardons that President Trump issued last year, reversing or ending proceedings against U.S. service members convicted or charged with serious crimes against civilians and prisoners in Afghanistan and Iraq, did great damage in this respect. So, too, has the president’s loose talk about committing war crimes, such as pillaging Syrian oil or destroying Iranian cultural sites.”).
- 356Secretary of State Antony J. Blinken, Interview with Wolf Blitzer of CNN’s The Situation Room (Feb. 8, 2021). See also U.S. Dep’t of State, Ned Price, Department Spokesperson, Department Press Briefing (Feb. 8, 2021) (“I think our orienting principle here is that the United States can be a constructive force, that we can help shape the course of world events, we can help shape international institutions when we’re present, when we’re at the table.”).
Global Magnitsky Act, supra note 66; EO 13818, supra note 66. The 2019 Elie Wiesel Act Report specifically referred to the ability of to use sanctions programs, including under the Global Magnitsky Act, “to publicly designate any persons involved in atrocities…” 2019 Elie Wiesel Act Report, supra note 65, at 7.
Similar authorities include: Canada’s Justice for Victims of Corrupt Foreign Officials Act, Bill S-226 (Oct. 18, 2017); the United Kingdom’s Global Human Rights Sanctions Regulations 2020, No. 680 (July 6, 2020); and the European Union’s recently enacted human rights sanctions regime, which explicitly includes sanctions for individuals accused of committing genocide or crimes against humanity, Council Regulation (EU) 2020/1998 (Dec. 7, 2020), Concerning Restrictive Measures Against Serious Human Rights Violations and Abuses, Article 2(1)(a)–(b).
Assembly of States Parties, Report of the Bureau on Cooperation, ICC-ASP/13/29, Annex IV, at 19 (Nov. 21, 2014) (paras. 5–7 setting out aspects of the UK policy; para. 8 noting “the practices applied by other States and the European Union”).
Guidance on Contacts with Persons Who Are the Subject of Arrest Warrants or Summonses Issued by the International Criminal Court, UN Doc. A/67/828–S/2013/210 (Apr. 8, 2013).
Beth Van Schaack, Why Is Tillerson Shuttering the State Dept.’s Global Justice Bureau?, Newsweek (July 18, 2017); Jane Stromseth, Why the U.S. Needs the Office of Global Criminal Justice Led by a Senate-Confirmed Ambassador-at-Large, Just Security (July 26, 2017).
Beth Van Schaack, Representative Ted Lieu in Defense of Global Justice, Just Security (July 31, 2017).
Beth Van Schaack, Key U.S. Foreign Policy Positions—Including Ambassador for War Crimes—Saved from Getting Axed, Just Security (Aug. 29, 2017).
Stromseth, supra note 361.
Human Rights Watch, Q&A: The Case of Hissène Habré Before the Extraordinary African Chambers in Senegal (May 3, 2016); Human Rights Watch, Senegal: US to Give US$ 1 Million to Habré Court (Oct. 1, 2013).
“The United States has been the largest contributor so far, contributing nearly 30% of the SCSL’s funds through the end of 2009.” Ford, supra note 7, at 976.
See, e.g., Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, §7043(c)(1) (“KHMER ROUGE TRIBUNAL.—Of the funds appropriated by this Act that are made available for assistance for Cambodia, up to $2,000,000 may be made available for a contribution to the Extraordinary Chambers in the Court of Cambodia (ECCC), in a manner consistent with prior fiscal years, except that such funds may only be made available for a contribution to the appeals process in Case 002/01.”). Previous appropriations acts had frequently included language restricting the use of appropriated funds to support the ECCC unless the Secretary of State made a particular certification—e.g., “that the Government of Cambodia has provided, or otherwise secured, funding for the national side of such tribunal” or “that the United Nations and the Government of Cambodia are taking credible steps to address allegations of corruption and mismanagement within the tribunal”—Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, § 7071(c); Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, § 7044(c); Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, § 7043(c)(4))—while others had precluded funding, e.g., Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, § 7043(b)(1)(B)(i)).
For example, the United Nations provided subvention funding to the SCSL in 2004, 2011, and 2012, and to the ECCC in 2014. GA Res. 68/247 B (Apr. 23, 2014).
Joint Explanatory Statement for Department of State, Foreign Operations and Replated Programs Appropriations Bill, 2021.
See note 55 supra and accompanying text.
Among other things, the United States sponsored a side event (State Department Legal Advisor Harold Hongju Koh, The Challenges and Future of International Justice, Panel Discussion at NYU Center for Global Affairs (Oct. 27, 2010)) and pledged to “renew its commitment to support rule-of-law and capacity building projects which will enhance States’ ability to hold accountable those responsible for war crimes, crimes against humanity and genocide.” Review Conference of the Rome Statute, Pledges, supra note 125, at 18.
See, e.g., Phil Clark, Distant Justice: The Impact of the International Criminal Court on African Politics (2018); Jane Stromseth, Pursuing Accountability for Atrocities After Conflict: What Impact on Building the Rule of Law?, 38 Geo. J. Int’l L. 251 (2007) (accountability proceedings located within affected countries, and that enjoy public support and engage in systematic outreach, are one factor increasing potential to enhance rule of law). For similar considerations in the context of hybrid tribunals or other mixed courts with international and national components, see Elena Naughton, Committing to Justice for Serious Human Rights Violations: Lessons from Hybrid Tribunals, Int’l Ctr. Transitional Just. (Dec. 5, 2018).
Rome Statute, supra note 69, pmbl.
At the time, a key focus was the senior commanders of the Lord’s Resistance Army in Northern Uganda, for whom the ICC had issued arrest warrants. The program was extended in part because Congress recognized that U.S. troops involved in the hunt for these fugitives indicated “that a rewards program aimed at Kony could help generate intelligence and bolster their efforts. They are asking for this. They think this can make a difference on the ground.” Department of State Rewards Program Update and Technical Corrections Act of 2012, Cong. Rec. Vol. 158, No. 170 (Dec. 30, 2012).
Kerry, supra note 131.
Rome Statute, supra note 69, Arts. 44(6) (Victims and Witness Unit), 68(3) (participation of victims in proceedings), 75 (reparations), 79(1) (Trust Fund for Victims).
See notes 54–55 supra and accompanying text.
The ICC is established by Article 1 of the Rome Statute: “An International Criminal Court (‘the Court’) is hereby established.” In contrast, Article 79 of the Statute provides that a “Trust Fund shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims.” See generally Diane Amann, U.S. Law & G8 Ministers’ Call for Donations to Rome Statute’s Trust Fund for Victims (May 3, 2012).
The Assembly of States Parties established the Trust Fund for Victims, and its five-member Board of Directors, in September 2002: Establishment of a Fund for the Benefit of Victims of Crimes Within the Jurisdiction of the Court, and of the Families of Such Victims, ICC-ASP/1/Res.6 (Sept. 9, 2002). It subsequently established a Secretariat for the TFV (Establishment of the Secretariat of the Trust Fund for Victims, ICC-ASP/3/Res.7 (Sept. 10, 2004)) and passed Regulations governing its operations (Regulations of the Trust Fund for Victims, ICC-ASP/4/Res.3 (Dec. 3, 2005)).
The TFV’s “assistance programmes do not require a direct link to an ICC conviction or judicial proceedings. The TFV may develop assistance programmes in different scenarios: before the start of judicial proceedings, during judicial proceedings and after the end of judicial proceedings in an ICC situation country.” The Trust Fund for Victims, Assistance Programmes.
This “assistance mandate” supports “the most vulnerable victims, their families, and their communities. These victims have suffered from the gravest forms of violence. The TFV teams work in collaboration with local partners to deliver life-changing programmes including mental health, medical interventions, and material support.” The Trust Fund for Victims, Our Mandates.
G-8 Declaration on Preventing Sexual Violence in Conflict, para. 8 (Apr. 11, 2013) (“Ministers emphasised the need for further funding support for victims and called on the international community, including the G8, to increase their efforts to mobilise such funding, including to programmes such as the ICC Trust Fund for Victims and its implementing partners.”).
The Trust Fund has highlighted that “earmarked funding constitutes an important component of the TFV’s resources under the assistance mandate, especially for supporting victims of sexual and gender-based violence (SGBV).” The Trust Fund for Victims, Assistance Mandate.
See Beth Van Schaack, Crimes Against Humanity: Repairing Title 18’s Blind Spots, in Arcs of Global Justice 18 (Margaret M. deGuzman & Diane Marie Amann eds., 2018); A Necessary Good: U.S. Leadership On Preventing Mass Atrocities, at 36 (Final Report of the Experts Committee on Preventing Mass Violence, Nov. 2016) (“The administration should submit to Congress—and Congress should pass—proposed legislation to make the commission of crimes against humanity a felony under Title 18 of the U.S. Criminal Code.”).
Marc Grossman Remarks, American Foreign Policy and the International Criminal Court, supra note 23.
Council Regulation (EU) 2020/1998, supra note 358, Art. 2(1)(a)–(b).
The authority to impose new sanctions under the current Global Magnitsky Act will terminate on December 23, 2022 (six years after its enactment, see § 1265). See Tom Lantos Human Rights Commission, Hearing, The Global Magnitsky Human Rights Accountability Act: Taking Stock (Mar. 24, 2021).
10 U.S.C. § 950q; Beth Van Schaack, Title 18’s Blind Spot: Superior Responsibility, Just Security (June 3, 2014); Brian Finucane, A Commander’s Duty to Punish War Crimes: Past U.S. Recognition, Just Security (Dec. 4, 2020).
Nushin Sarkarati, Liberia’s Civil War Atrocities Confronted in a Philadelphia Courtroom, Just Security (Oct. 12, 2017); Beth Van Schaack, Salvadoran General Deemed Deportable in the Absence of Criminal Charges, Just Security (Mar. 17, 2015).
See Volume 6(2) of the African Journal of International Criminal Justice (2002) for a discussion of the treaty initiative; Leila Nadya Sadat, Forging a Convention for Crimes Against Humanity (2011).
Larissa van den Herik, Relating to “the Other”: The ILC Draft Convention on Crimes Against Humanity and the Mutual Legal Assistance Initiative, 6 Afr. J. Int’l Crim. Justice 274 (2002).
For example, although the Genocide Convention was opened for signature in 1948, the United States did not ratify the Convention until November 1988. See Multilateral Treaties Deposited with the Secretary General: Status as at 31 Dec. 1988, at 97, UN Doc. ST/ LEG/SER.E/7, UN Sales No. E.89.V.6 (1989); Lawrence J. LeBlanc, The United States and the Genocide Convention (1991).
See, e.g., U.S. Code, Title 18, chs. 11B, 50A, 77, 81, 113B, 133C, 118, supra note 326. Many of these authorities have been underutilized. Although there have been a number of prosecutions under the terrorism, piracy, and trafficking statutes and involving extraterritorial conduct by perpetrators within the United States’ jurisdictional reach, the United States has never prosecuted anyone under its war crimes, genocide, or child soldiers statutes, and only two cases have proceeded under its torture statute, including the recent indictment of Michael Sang Correa of The Gambia—a welcome development. Beth Van Schaack, Accused Gambian Torturer Arrested in Denver, Just Security (June 11, 2020).
White House Press Release, Press Conference by the President (Aug. 1, 2014).
Antony J. Blinken, Press Statement, Ending Sanctions and Visa Restrictions Against Personnel of the International Criminal Court, supra note 219.
Executive Order on the Termination of Emergency with Respect to the International Criminal Court, supra note 219 (stating that the U.S. “continues to object to assertions of jurisdiction over personnel of such non-States Parties as the United States absent their consent or referral by the United Nations Security Council”); Antony J. Blinken, Press Statement, Ending Sanctions and Visa Restrictions Against Personnel of the International Criminal Court, supra note 219 (“We maintain our longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties.”); State Department Spokesperson Ned Price, Press Statement, Opposing International Criminal Court Attempts to Affirm Territorial Jurisdiction Over the Palestinian Situation (Feb. 5, 2021) (“The United States has always taken the position that the court’s jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council.”).
Michael R. Pompeo, Mar. 17, 2020 Remarks to the Press, supra note 40.
To the extent that the new Administration decides to continue to articulate this argument, it should emphasize policy, as opposed to legal, terms. It is reasonable to point out that an important consideration, among others, in exercising prosecutorial discretion and choosing where to investigate should be whether the accused are nationals of non-state parties, given the added challenges to securing cooperation in such circumstances.
Restatement (Fourth), The Foreign Relations Law of the United States, § 401 (2018); ASIL, Jurisdictional, Preliminary, and Procedural Concerns, in Benchbook on International Law § II.A (Diane Marie Amann ed., 2014) (“Territoriality is the principle that a country may regulate both civil and criminal matters within its sovereign borders…It has long been recognized as a basis for the assertion of jurisdiction.”).
2009 ASIL Task Force Report, supra note 18, 26–29.
The fact that the Task Force is offering the recommendations in this Section as a pragmatic path forward for the new Administration should not be taken to suggest that its members agree with the approach that the United States has taken in the past to address the issue.
Situation in Afghanistan, OTP Application to Investigate, supra note 175, para. 189.
See id., para. 193, nn. 270–284. For example, the footnote references CIA reports, but not DOD reports, for waterboarding. See id., para. 193(xiii), n. 284. Other techniques reported to have been used are similarly sourced to CIA reports but not DOD reports, including: “sexual violence…by means of ‘rectal rehydration’ or ‘rectal feeding’ applied with excessive force,” “cramped or close confinement…for example by placing detainees in boxes,” “manipulation of the environment, especially exposure to extreme heat of cold,” and “suspension, such as from the ceiling in a vertical shackling position as to enhance sleep deprivation or otherwise inflict pain.” Id.. para. 193(iv), (vii), (xi)–(xii).
Id., para. 355.
Schlesinger Report, cited in id., para. 303.
See Situation in Afghanistan, OTP Application to Investigate, supra note 175, para. 302 (“the Church Report indicated that as of September 2004, 27 investigations in response to allegations of detainee abuse by DOD personnel in Afghanistan had been initiated, involving 65 service members and 25–50 detainees”), 303 (“the Schlesinger Report identified approximately 300 allegations of detainee abuse in Afghanistan, Iraq and Guantanamo Bay as of mid-August 2004, resulting in 155 completed investigations and 66 substantiated cases”), 304 (“2006 report of the DOD Office of the Inspector General on DoD Directed Investigations of Detainee Abuse reported that 653 criminal investigations related to the treatment of detainees were ongoing or completed as of January 2006, primarily involving alleged assault, murder and theft.”). See also id., para. 307 (“global review by a group of NGOs into 330 cases of alleged ill-treatment of detainees in US custody in Afghanistan, Iraq and Guantanamo Bay from 2001–2006 involving over 600 US personnel found that 54 persons were known to have been convicted by court-martial, of which 40 received prison sentences…”).
Id., paras. 290–95. For a critique of this approach and conclusion, see William Lietzau & Ryan Vogel, Uncomplimentary Complementarity and the Int’l Criminal Court’s Afghanistan Probe, Just Security (Apr. 12, 2018).
Situation in Afghanistan, OTP Application to Investigate, supra note 175, para. 300.
Id., paras. 245 (“In summary, compared to the localised approval of certain interrogation techniques within the US military command structure in Afghanistan, the CIA’s use of the interrogation techniques described above was authorized as official policy.”), 355 (“[T]he acts allegedly committed were serious both in their number and in their effect, and although implemented pursuant to authorised interrogation policies adopted locally rather than at headquarters level, implicated personal responsibility within the command structure.”).
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 UNTS 85, 113
Under United States law, the Office of Legal Counsel has delegated authority to render opinions on questions of law. The underlying statutory authority to render such opinions dates to the Judiciary Act of 1789 and is now codified at 28 U.S.C. §§ 511–513 and 28 CFR § 0.25. See Department of Justice, Office of Professional Responsibility, Investigation into the Office of Legal Counsel’s Memorandum Concerning Issues Relating to the Central Intelligence Agency’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists (July 29, 2009) (“The OLC provides written opinions and oral advice in response to requests from the Counsel to the President, agencies of the Executive Branch, and offices within the Department [of Justice]. OLC opinions are binding on the Executive Branch.”).
U.S. Dep’t of Justice, Statement of Attorney General Eric Holder on Closure of Investigation into the Interrogation of Certain Detainees (Aug. 30, 2012). More generally, the U.S. Attorney’s Manual of the Department of Justice specifically provides that “both as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.” See U.S. Attorney’s Manual, 9-77.220, Principles of Federal Prosecution, Grounds for Commencing or Declining Prosecution.
Such restrictions on sharing, for example, the results of the grand jury process—which have long existed as part of the common law, separate from any concerns about the ICC—are designed to protect an array of interests, including the protection of the rights of witnesses who testify before grand juries without benefit of counsel and the privacy and related interests and rights of those accused but not charged to be protected from public opprobrium. See United States Department of Justice, Criminal Division, Office of International Affairs, Letter from Mary Ellen Warlow and Kenneth Harris to Ms. Paula Mongé Royo, “Re: Request for Assistance from Spain in the Matter of Addington, David; Bybee, Jay; Feith, Douglas; Haynes, William; Yoo, John; and Gonzalez, Alberto; Spanish Reference Number: 002342/2009-CAP” (Mar. 1, 2011) (“legal restrictions on disclosure of investigative information, including rules of grand jury secrecy” limit ability of U.S. Government to provide details); Federal Rules of Criminal Procedure, Rule 6(e) (strict secrecy rules applicable to grand jury matters); Cong. Res. Serv., Federal Michael A. Foster, Grand Jury Secrecy: Legal Principles and Implications for Congressional Oversight, R45456 (Jan. 10, 2019).
In contrast, some international courts do draw adverse inferences when states that are party to the relevant treaty or declaration fail to provide information, especially when such information is within the exclusive knowledge, possession, or control of that state. See, e.g., Rules of Procedure of the Inter-American Commission on Human Rights, Art. 39 (“The facts alleged in the petition, the pertinent parts of which have been transmitted to the State in question, shall be presumed to be true if the State has not provided responsive information during the maximum period set by the Commission under the provisions of Article 38 of these Rules of Procedure, as long as other evidence does not lead to a different conclusion.”).
See, e.g., UN Committee Against Torture, Concluding Observations on the Combined Third to Fifth Periodic Reports of the United States of America, paras. 12 et seq., UN Doc. CAT/C/USA/CO/3-5 (Dec. 19, 2014); Human Rights Watch, No More Excuses: A Roadmap to Justice for CIA Torture (Dec. 1, 2015).
See, e.g., Dan Baer, The Haspel Nomination and the Torture Question: What Her Confirmation Would Mean for Obama’s Delicate Bargain, For. Aff. (Apr. 12, 2018).
The McCain-Feinstein bill (enacted as an amendment to the National Defense Authorization Act for Fiscal Year 2016, Section 1045) built on the earlier Detainee Treatment Act, but went further including by ensuring that the Army Field Manual on Interrogations be applied to interrogations by all agencies (not just the Department of Defense); requiring that the Manual be regularly reviewed to ensure that the interrogation approaches that it includes are lawful, humane, and effective; and by mandating that the International Committee of the Red Cross be granted access to all detainees. See Cong. Rec., Proceedings and Debates of the 114th Congress, 1st Sess., at S7186–S7189 (Oct. 7, 2015); Center for Victims of Torture, McCain-Feinstein Anti-Torture Amendment: Strengthens U.S. Ban on Torture (Nov. 2015).
See Dan Froomkin, Holder, Too Late, Calls for Transparency on DOJ Torture Investigation, The Intercept (Oct. 15, 2015).
Office of Professional Responsibility, Investigation into the Office of Legal Counsel’s Memorandum Concerning Issues Relating to the Central Intelligence Agency’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists, at 11 (July 29, 2009).
See Memorandum from David Margolis to the Associated Deputy Attorney General, Memorandum of Decision Regarding the Objections of the Findings of Professional Misconduct in the Office of Professional Responsibility’s Report of Investigation into the Office of Legal Counsel’s Memorandum Concerning Issues Related to the CIA’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists (Jan. 5, 2010).
Letter from Mary Ellen Warlow and Kenneth Harris to Ms. Paula Mongé Royo, “Re: Request for Assistance from Spain in the Matter of Addington, David; Bybee, Jay; Feith, Douglas; Haynes, William; Yoo, John; and Gonzalez, Alberto, supra note 417, at 2.
See David J. Barton, Acting Assistant Attorney General, Office of Legal Counsel, Memorandum for Attorneys of the Office, Best Practices for OLC Legal Advice and Written Opinions (July 16, 2010) (“OLC must provide advice based on its best understanding of what the law requires—not simply an advocate’s defense of the contemplated action or position” of the Executive.).
See, e.g., David Cole, They Did Authorize Torture, But…, N.Y. Rev. Books, (Apr. 8, 2010); David Luban, David Margolis Is Wrong: The Justice Department’s Ethics Investigation Shouldn’t Leave John Yoo and Jay Bybee Home Free, Slate (Feb. 22, 2010); Marc Ambinder, Atlantic.com/politics/archive/2010/02/-poor-judgment-yoo-bybee-and-the-torture-memos/36276">“Poor Judgment”—Yoo, Bybee, and the Torture Memos, Atlantic (Feb. 19, 2010); Jens D. Ohlin, The Torture Lawyers, 51 Harv. Int’l L.J. 193 (2010).
Rome Statute, supra note 69, Art. 17(1)(b), (2)(a).
See, e.g., Clark, supra note 372; Martha Minow, Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law?: Truth Commissions, Amnesties, and Complementarity at the International Criminal Court, 60 Harv. Int’l L.J. (2019) 1. For considerations on the extent to which the current provisions enable a broader consideration of non-penal responses, with a focus on Northern Uganda, see Alexander K.A. Greenawalt, Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court, 50 Va. J. Int’l L. 107 (2009); Gregory S. Gordon, Complementarity and Alternative Forms of Justice, in The International Criminal Court And Complementarity: From Theory to Practice (Carsten Stahn & Mohamed M. El Zeidy eds., 2011).
In this connection, Lietzau & Vogel, supra note 410, have stated as follows:
It is worth noting that no country has ever self-investigated or self-reported its detention policies and practices more than the United States. Reports regarding U.S. detention operations include those of Brigadier General Jacoby; Vice Admiral Church, the Navy Inspector General; Major General Ryder, the Army Provost Marshal General; Lieutenant General Mikolashek, the Army Inspector General; Major General Miller; Major General Taguba; Major General Fay; Lieutenant General Jones; Brigadier General Formica; the independent panel led by former Secretary of Defense Schlesinger; the Senate Select Intelligence Committee; and the Senate Armed Services Committee. For the sake of transparency and accountability, many of these reports were released, at least in some form, to the public, demonstrating both the seriousness with which the United States takes these allegations and its willingness to address them publicly.
See Detainee Treatment Act of 2005 – Sec. 1001–1006 [Title X of the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006], Pub. L. No. 109–148 (McCain-Feinstein) (legal reforms) and Exec. Ord. 13491 – Ensuring Lawful Interrogations (Jan. 22, 2009) (withdrawal of legal advice). Following this Executive Order, the Assistant Attorney General clarified that: “Four previous opinions…concerning interrogations by the Central Intelligence Agency are withdrawn and no longer represent the views of the Office.” See David J. Barron, Acting Assistant Attorney General, Memorandum for the Attorney-General: Withdrawal of Office of Legal Counsel CIA Interrogation Opinions (Apr. 15, 2009). For more background on the importance of measures to prevent recurrence in addressing past crimes, see UN OHCHR, Statement by Pablo De Greiff, Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence at the Human Rights Council Thirtieth Session (Sept. 15, 2015).
See, e.g., Situation in Afghanistan, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, supra note 190, para. 47 (referring to “extensive reports authored by the US Senate Select Committee on Intelligence and the US Senate Armed Services Committee”).
The Prosecutor’s Policy Paper on Case Selection and Prioritisation (Sept. 15, 2016) includes such a “comparative assessment” of the potential cases in prioritizing those to pursue at any given time (para. 50(a)).
Id., para. 50(d).
The ICC Prosecutor does consider the gravity of the crimes alleged to have been committed by U.S. personnel, though this analysis focuses more on the qualitative severity of the abuses than their quantitative scale: Situation in Afghanistan, OTP Application to Investigate, supra note 175, paras. 352–63.
Beth Van Schaack, The Torture Convention and Appendix M of the Army Field Manual on Interrogations, Just Security (Dec. 5, 2014); Beth Van Schaack, Memo to President Obama: You Have Another Memo to Withdraw, Just Security (Dec. 5, 2016).
Lisa Myers & Aram Roston, CIA Accused of Detaining Innocent Man, NBC News (Apr. 21, 2005).
Situation in Palestine, Ruling on Territorial Jurisdiction, supra note 234.
Antony J. Blinken, Press Statement, The United States Opposes the ICC Investigation into the Palestine Situation (Mar. 3, 2021), supra note 235
Office of U.S. Senator for Maryland Ben Cardin Press Release, Cardin Says ICC Decision to Investigate Israel is Disturbing and Damaging to the Court’s Credibility (Feb. 8, 2021); Senate Foreign Relations Committee Ranking Member, @SenateForeign, Twitter (Feb. 5, 2021, 6:30 P.M.).
Letter from Senator Benjamin L. Cardin and Senator Rob Portman to Secretary of State Michael R. Pompeo, supra note 239.
The majority decision of the Pre-Trial Chamber states that its “ruling [on jurisdiction] pursuant to article 19(3) of the Statute does not impair the right of a suspect or accused (or the relevant States) to subsequently challenge the jurisdiction of the Court under article 19(2) of the Statute.” Situation in Palestine, Ruling on Territorial Jurisdiction, supra note 234, para. 77.
GA Res. 67/19, supra note 227.
Israel Ministry of Foreign Affairs Press Release, Prime Minister Netanyahu’s Statement Regarding the ICC Decision (Feb. 6, 2021); Gantz Says Hundreds of Israelis, Himself Included, Could Be in ICC’s Crosshairs, Times of Israel (Mar. 3, 2021).
Barak Ravid, Scoop: Israel Will Ask Allies to Pressure ICC Prosecutor Against Opening War Crimes Investigations, Axios (Feb. 7, 2021) (reporting that Israel’s foreign Ministry instructed its Embassies to ask governments to “‘send a discreet message to the prosecutor asking her not to move forward with the investigation against Israeli and not give this case a high priority’”).
Jacob Magid, ICC Has Jurisdiction to Probe Israel, Hama for War Crimes, Pretrial Judges Rule, Times of Israel (Feb. 5, 2021).
Antony J. Blinken, Press Statement, Ending Sanctions and Visa Restrictions Against Personnel of the International Criminal Court, supra note 219.
Lewis, supra note 143.
IER Report, supra note 259, para. 646.
Id., para. 953.
2020 OTP Report on Preliminary Examinations, supra note 166, paras. 265, 289.
IER Report, supra note 259, para. 650.
Id. at 209 et seq. (in particular para. 650).
Todd Buchwald, Part I: What Kinds of Situations and Cases Should the ICC Pursue? The Independent Expert Review of the ICC and the Question of Aperture, Just Security (Nov. 30, 2020); Todd Buchwald, Part II: What Kinds of Situations and Cases Should the ICC Pursue? The Independent Expert Review of the ICC and the Question of Aperture, Just Security (Dec. 1, 2020); Todd Buchwald, Part III: What Kinds of Situations and Cases Should the ICC Pursue? The Independent Expert Review of the ICC and the Question of Aperture, Just Security (Dec. 2, 2020).
See, e.g., Carsten Stahn, Admissibility Challenges Before the ICC: From Quasi-primacy to Qualified Deference?, in The Law and Practice of the International Criminal Court (Carsten Stahn ed., 2015); Kevin Jon Heller, Radical Complementarity, 14 J. Int’l Crim. Just. 637 (2016). The proposals to reconsider the approach of the ICC to complementarity are not limited to opening of investigations and cases, but also to the role of complementarity in completion strategies, as well. See Open Society Justice Initiative & Amsterdam Center for International Law/Department of Criminal Law, Amsterdam Law School, supra note 249, at 14–15.
See ICC OTP, Policy Paper on the Interests of Justice, supra note 298, at 8.
UN Press Release, Secretary-General Urges “Like-Minded” States to Ratify Statute of International Criminal Court, SG/SM/6686 (Sept. 1, 1998).
Situation in Afghanistan, Judgment on the Appeal Against the Decision on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, supra note 196, para. 60 (“the Prosecutor must carry out an investigation into the situation as a whole”). The Prosecutor has taken a similar position. See, e.g., Prosecutor’s Policy Paper on Case Selection and Prioritisation, supra note 434, para. 24 (“the selection of cases for investigation within an existing situation should not be confused with decisions to initiate an investigation into a situation as a whole…”); see also id., para. 4.
Luis Moreno-Ocampo, Statement by the Chief Prosecutor on the Uganda Arrest Warrants (Oct. 14, 2005).
Bellinger, supra note 285.
White House, Inaugural Address by President Joseph R. Biden, Jr. (Jan. 20, 2021).
Executive Order on the Termination of Emergency with Respect to the International Criminal Court, supra note 219.
UN Hum. Rts. Council, Report of the Working Group on the Universal Periodic Review, United States of America, Addendum, Views on Conclusions and/or Recommendations, Voluntary Commitments and Replies Presented by the State Under Review, para. 21, UN Doc. A/HRC/46/15/Add.1 (Mar. 4, 2021).
For a discussion, see Stephen J. Rapp, Overcoming Obstacles to Funding ICC Investigations in UN Security Council Referred Cases, Int’l Crim. J. Today (Dec. 10, 2015) (discussing options for overcoming resistance to UN funding for ICC investigations following Security Council referrals).
See Rome Statute, supra note 69, Art. 115(b):
The expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as provided for in the budget decided by the Assembly of States Parties, shall be provided by the following sources: (b) Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council.
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 18th Meeting of the Committee of the Whole, Summary Record, para. 47, UN Doc. A/CONF.183/C.1/SR.18.
Under Article 17 of the UN Charter, it is “the expenses of the Organization”—meaning the United Nations itself, and not independent organizations like the ICC—that are borne as part of the UN budget. With respect to the statutory restrictions on U.S. funding for the ICC, see notes 54–55 supra and accompanying text, including Text Box - FRAA Restriction on Funding the ICC.