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Revisited: What are the next steps in the US-ICC relationship?

A Renewed Agenda to Advance US Interests with the International Criminal Court

by Honorable David Scheffer

Almost seven years following the inaugural Arguendo essays, little has changed to alter the three proposals set forth in my own essay of June 3, 2014, which I address shortly.  No doubt the relationship between the United States government and the International Criminal Court (ICC) slid into a dark pit during the Trump administration when National Security Adviser John Bolton and Secretary of State Mike Pompeo took aggressive stances against the ICC, both in their rhetoric and with sanctions against staff and supporters of the Court who were threatened and inflicted by Executive Order 13928.  The rhetorical aim appeared to be literally to destroy the ICC.  The rationales used by these officials constituted the “big lie” of international criminal justice during those years.

Fortunately, balanced reasoning returned with the arrival of the Joe Biden administration and Secretary of State Antony J. Blinken, who announced recission of Executive Order 13298 on April 2, 2021.  I joined some of my successor ambassadors who managed US relations with the ICC in the past to co-author an article in The Hill on May 4, 2021, that welcomes the shift back to a more constructive American future with the Court and to introduce the just released comprehensive report of the ASIL [American Society of International Law] Task Force on Policy Options for US Engagement with the ICC

Both Blinken and the ASIL Task Force report acknowledged the long-standing position of the US government that personnel of non-party States to the Rome Statute of the ICC are not subject to the jurisdiction of the ICC.  This view—the immunity interpretation—is qualified when the UN Security Council refers a situation covering such individuals to the ICC Prosecutor under Article 13(b) of the Rome Statute of the ICC or the non-party State accepts the exercise of jurisdiction by the Court pursuant to Article 12(3) of the Rome Statute. One should recognize that use of the term “personnel” rather than “nationals” of non-party States refers to military, diplomatic, and other government-employed individuals and does not include other nationals of the civilian population.  

The official US position, which I presented as the US negotiator of the Rome Statute in the 1990s, has become an outlier view as it means that non-party State personnel (and sometimes the point is broadened to nationals) can commit atrocity crimes on the territory of a State Party and claim immunity before the ICC for such crimes.  The logic of that position is difficult to grasp for most States Parties and legal scholars as it invites blatant commission of genocide, crimes against humanity, war crimes, and aggression on State Party territory (thus establishing the ICC’s territorial jurisdiction under Article 12(2)(a) of the Rome Statute) by non-party State personnel without any realistic accountability even though that State Party delegated criminal prosecutions for atrocity crimes to the ICC under the Rome Statute and its own domestic law.  Pre-Trial Chamber III of the ICC ruled in the Bangladesh/Myanmar situation that the Court has territorial jurisdiction if part of the alleged criminal conduct, which in that situation allegedly originated with non-party State Myanmar, takes place on a State Party’s territory, such as Bangladesh.  But there has been no explicit ruling by the ICC on the Court’s personal jurisdiction over the nationals or personnel of non-party States committing atrocity crimes on the territory of a State Party.

In my view, which I first expressed as an amicus on December 6, 2019, before the ICC Appeals Chamber during a hearing about interpreting the Rome Statute on a different issue in connection with the Afghanistan situation, the development of customary international law has overtaken the immunity interpretation even though some persistent objectors remain.  What is often lost in the entire debate is the simple proposition that if the United States were to become a State Party to the Rome Statute, as originally intended, then the argument about immunity from the ICC for personnel of a non-party State committing atrocity crimes on the territory of a State Party would be extinguished for the United States.  If the presumption is that the United States will never become a State Party to the Rome Statute, then one might want to hold onto the immunity interpretation.  But that was never the intent of the US delegation negotiating the Rome Statute.  Our intent was to build safeguards into the Rome Statute, which we did, that would protect the United States as a State Party and for the pre-ratification years during which the United States remained a non-party State.  Thus, the argument about protecting personnel of non-party States was advanced to address only the period during which the United States, in particular, would not be a State Party.  There was no presumption that the United States forever would be outside of the Rome Statute regime. 

The simple solution is for the United States to become a State Party and for the immunity interpretation to become a historical footnote.  Our ally, Israel, may have decided recently or years ago that it will never become a State Party to the Rome Statute and thus it would want to employ the immunity interpretation indefinitely.  But that certainly did not appear to be the intention of Israel’s negotiators in the 1990s, as reflected in Israel’s signature of the Rome Statute hours after I signed the treaty on behalf of the United States on December 31, 2000.  The prospect loomed that our respective countries would relatively soon become States Parties to the Rome Statute, but in the meantime we shared a common view about our non-exposure to the Rome Statute’s jurisdiction until the day each of our governments joined the Court. 

Now, 23 years later, I would argue that custom (as well as common sense) creates a new dynamic that works against a particular interpretation of international law that no longer has a compelling rationale in the realm of atrocity crimes.  Even if the immunity interpretation still holds merit, then one must take sides: either the United States continues to invoke the long-standing argument as an interim protective step before soon becoming a State Party to the Rome Statute, or one advances that view for the purpose of perpetually remaining outside of the Rome Statute’s body of States Parties, which now number 123 countries and most of America’s allies and friends.  When I employed the argument representing the United States, it was for the former purpose and never for the latter premise.  Indeed, an ancillary purpose of the immunity interpretation was to incentivize governments to join the Rome Statute, knowing that their actions prior to ratification, including those of their personnel, would not be scrutinized by the Court.  But that is a time-limited incentive that becomes disingenuous if decades pass without commitment.  Today, I believe the United States should move towards ratification of the Rome Statute as a near-term goal and thus shorten the lifespan of the immunity interpretation in Washington. 

Turning to the three proposals set forth in my Arguendo essay of 2014, which remain relevant today, Secretary of State Blinken should convey a letter to the United Nations, as depository of the Rome Statute, to reaffirm the US signature on the Rome Statute and this country’s obligation as a signatory nation not to take steps to undermine the Rome Statute.  That would send a powerful signal to the rest of the world that the United States has resumed its leadership in international criminal justice. 

Second, work on the crimes against humanity bill has resumed on Capitol Hill this year under the leadership of Senator Dick Durbin (D-IL), chairman of the Senate Committee on the Judiciary.   The Working Group on Crimes Against Humanity (convened by the ABA), which I chair, is deeply involved in advising on the draft of the bill and seeing acceptable text through to adoption as a long overdue law.  There is no morally defensible argument left as to why this gap remains in federal criminal law.  A Crimes Against Humanity Act would enable the United States to exercise its own investigative and prosecutorial authority over perpetrators of crimes against humanity falling within US jurisdiction, thus effectively avoiding ICC scrutiny and ensure, as already is the case with genocide and war crimes, that these individuals do not roam freely on US territory.   

Finally, the very complex and violent situation between Israel and Palestine, and now even within Israel itself between Jewish and Arab citizens, begs for an overall peace agreement.  If such a treaty were to be negotiated, then the ICC should be factored into the agreed deal as proposed in my 2014 essay.  Since then, the ICC accepted Palestine, which is a non-member observer State at the United Nations, as a State Party for the purposes of the Rome Statute and launched an investigation of alleged atrocity crimes following referral by Palestine.  That is even more reason to use the opportunity of a peace agreement, which is so desperately needed now, to introduce the ICC into the negotiations and resolve points of serious contention.  The ICC Prosecutor remains seized with the State of Palestine situation and likely will be requested to investigate the violence of 2021.  Palestine can use its leverage as the referring State Party to the ICC to influence the overall strategy of the Prosecutor within the context of a negotiated peace treaty and perhaps an Article 98(2) non-surrender agreement between Israel and a fully recognized nation of Palestine that would emerge from a two-State deal.  

Atrocity crimes are not abating in the world and accountability for them is only sporadically being pursued, much less achieved.  The United States still has unique influence, alliances, and commitment to the rule of law to turn the tide against atrocity crimes.  The ICC is a good place to start, again. 

Honorable David Scheffer

The Honorable David Scheffer is Clinical Professor Emeritus and Director Emeritus of the Center for International Human Rights of Northwestern University Pritzker School of Law.  He was the U.N. Secretary-General’s Special Expert on U.N. Assistance to the Khmer Rouge Trials (2012-2018) and the first U.S. Ambassador at Large for War Crimes Issues (1997-2001).  He led the U.S. delegation in U.N. talks creating the International Criminal Court.  He is Vice-President of the American Society of International Law.