The ICC's Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. Position

Abstract

MICHAEL P. SCHARF [.] I INTRODUCTION On August 20, 1998, United States launched an airstrike against Al Shiffa pharmaceutical plant in Sudan, which U.S. officials claimed was a chemical weapons facility operated by Osama bin Laden, terrorist behind bombings of U.S. embassies in Tanzania and Kenya a month earlier.[1] It was subsequently disclosed that Al Shiffs plant in fact produced legitimate pharmaceutical products including anti-malaria drugs under a United Nations contract specifically approved by United States and that Osama bin Laden actually had no financial or other connection to plant. [2] Arguing that bombing of a civilian pharmaceutical plant constituted a war crime, President of Sudan called for international prosecution of U.S. officials behind airstrike. [3] This type of scenario is exactly that which prompted United States to join China, Libya, Iraq, Israel, Qatar, and Yemen as only seven countries in world voting in opposition to Rome Treaty for an International Criminal Court (ICC). [4] As a Congressional Research Services Report for Congress concluded, [a]t core of U.S. objection to ICC Treaty is fear that other nations would use ICC as a political forum to challenge actions deemed legitimate by responsible governments. [5] Had ICC been in existence in August 1998, Sudan could have initiated proceedings potentially leading to an international indictment and arrest warrant for United States personnel responsible for airstrike on Al Shiffa plant (possibly including President, Secretary of Defense, and military commanders involved). [6] As a nonparty to Treaty of Rome, U.S. would not be obligated to provide evidence or surrender accused persons within its territory to ICC in such a proceedi ng. However, under Article 12 of Rome Treaty, refusal of United States to become a party would not bar ICC from issuing an indictment charging American citizens with war crimes or crimes against humanity committed in territory of Sudan in response to Sudan's complaint. [7] Such an indictment by an international judicial body could obviously do serious damage to American foreign policy, even if there was no prospect that accused would ever actually face trial. [8] Since there is little likelihood of preventing Rome Treaty from coming into force, [9] Clinton Administration has instead attempted to negate this problem by arguing that international law prohibits ICC from exercising jurisdiction over nationals of non-parties. Thus, U.S. Ambassador-at-Large for War Crimes Issues, David Scheffer, testified before Senate Foreign Relations Committee that the treaty purports to establish an arrangement whereby U.S. armed forces operating overseas could be conceivably prosecuted by international court even if United States has not agreed to be bound by treaty. ... [T]his is contrary to most fundamental principles of treaty law. [10] Subsequently, Ambassador Scheffer stated that this constituted single most fundamental flaw in Rome Treaty that makes it impossible for United States to sign present text. [11] A few months later, in a speech before annual meeting of American Society of International Law, [12] Ambassador Scheffer, drawing upon and citing a preliminary draft of an article by Professor Madeline Morris of Duke Law School, [13] laid out several legal arguments in support of his contention. Initially, Ambassador Scheffer argued that ICC cannot exercise jurisdiction over U.S. nationals on basis of universality principle for three reasons: first, because Rome Statute rejects that basis of jurisdiction by specifying that consent of state of perpetrator's nationality or state in whose territory offense took place is a required pre-condition; [14] second, because some of crimes within subject matter jurisdiction of ICC are not recognized as crimes of universal jurisdiction under customary international law; [15] and third, because universal jurisdiction cannot be delegated to a treaty-based collective international court. …