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Article Excerpt
A decade has elapsed since the final text of the Rome Statute of the International Criminal Court (ICC) (1) was approved at the conclusion of a diplomatic conference in Rome, Italy. (2) Legal scholars have written a great deal since then about whether or not the Rome Statute would meet U.S. constitutional requirements if the United States were to become a State Party to it. (3) Despite the American opposition to the ICC during the Bush Administration (2001-2009), (4) there remains the possibility that in the future a new Presidential administration and the Senate, with support from the House of Representatives, will find reason to seriously consider ratification of the Rome Statute. (5) If that were to occur, we believe the constitutional issues that undoubtedly would be raised require careful examination. In this Article we hope to demonstrate that concerns about compliance with the U.S. Constitution were the United States to ratify the Rome Statute are largely without merit. (6) Where there may be some residual difficulties on the constitutional front, we offer suggestions for how to accommodate particular concerns through U.S. legislation and with U.S. declarations, understandings, and provisos to the Rome Statute as part of the ratification process. (7)
This Article addresses nine areas of inquiry into the Rome Statute and U.S. constitutional law. Part I provides relevant background on the Rome Statute and American policy on the ICC as a predicate to the more focused discussion on constitutional issues. Part II explains the significance of the Rome Statute's complementarity doctrine, which offers the United States the first opportunity to investigate any U.S. citizen who may become an ICC target, and by so doing require the ICC to refrain from exercising jurisdiction. Under such circumstances, a U.S. citizen would be prosecuted pursuant to U.S. law and all of the protections afforded by the Constitution. Part III examines whether an Article III court is the only constitutionally valid forum within which to prosecute an American citizen for a criminal act falling within the subject matter jurisdiction of the ICC. Part IV addresses whether the United States can use the Article II treaty power to enter into treaties that provide for extradition of American citizens to foreign courts. Part V explores whether the "define and punish" power of Congress allows the United States to participate in the ICC. Part VI focuses on whether the ICC's denial of any constitutionally-protected due process rights, particularly trial by jury, introduces an insurmountable constitutional obstacle to U.S. participation in the ICC. Part VII discusses whether the due process rights afforded by the ICC could withstand Supreme Court review with respect to any American citizen prosecuted by the ICC. Part VIII examines whether official immunities would be a bar to U.S. compliance with Article 27 of the Rome Statute. Finally, Part IX recommends concrete steps that could be taken now and in the future to ease remaining concerns about the constitutionality of the Rome Statute. The Conclusion summarizes some of the major points made in this Article.
I. FUNDAMENTAL PRINCIPLES AND AMERICAN POLICY
The International Criminal Court is the first permanent judicial body that seeks universal participation by nations in its objective to bring leading perpetrators of genocide, crimes against humanity, serious war crimes, and aggression, together known as "atrocity crimes," (8) to justice. During the last fifteen years, international courts have advanced international criminal justice in regional contexts and within the narrow jurisdictional mandates of the International Criminal Tribunals for the former Yugoslavia (ICTY) (9) and Rwanda (ICTR), (10) the Special Court for Sierra Leone, (11) the Extraordinary Chambers in the Courts of Cambodia, (12) and war crimes courts in Bosnia Herzegovina, (13) Kosovo, (14) and Timor-Leste. (15) While those tribunals were evolving, the international community embraced the idea of a permanent criminal court that in most respects would obviate the need for the time-consuming and costly creation of specialized international or hybrid (part national, part international) courts for individual atrocity situations as they erupt anywhere in the world. Although the United Nations Security Council had created and empowered the ICTY and ICTR under the U.N. Charter's Chapter VII enforcement authority, (16) the only way a permanent court with broad jurisdiction would be established was through the treaty process whereby sovereign nations consented to the investigation and prosecution, under certain circumstances, of their own nationals before a global court of criminal law. Because criminal prosecutions are traditionally a national prerogative, this would be no easy task to accomplish on an international platform.
But after years of work by the U.N. International Law Commission (17) and further drafting and intensive negotiations among governments under U.N. auspices, (18) the text of the Rome Statute of the International Criminal Court was approved on July 17, 1998. (19) The U.S. delegation to the U.N. talks contributed significantly to the provisions of the Rome Statute, including its due process requirements, and it was the hope of the Clinton Administration to join consensus on the final text in Rome. (20) But a few major issues were not satisfactorily addressed, (21) and the U.S. delegation was instructed by Washington to vote against the final text, becoming one of very few nations to do so. (22) Nonetheless, over the next two years the United States actively participated in further negotiations on the Rules of Procedure and Evidence and the Elements of Crime for the ICC. (23) Both of these documents, upon which the U.S. delegation had insisted in Rome and to which the delegation had made major contributions, such as preparing the first draft of the Elements of Crimes and leading negotiations thereafter, (24) were adopted by consensus, joined by the United States, in June 2000. (25)
Following two years of multilateral negotiations on many of the supplemental agreements required by the Rome Statute, President Bill Clinton decided that the United States would join with 137 other governments and sign the Treaty on December 31, 2000, the last possible day for any nation to sign the document. (26) Some important issues on the American agenda for the ICC still remained unresolved, but the U.S. delegation prepared the groundwork for negotiation of those issues in continued U.N. talks on the supplemental agreements in 2001. The incoming Bush Administration chose to abandon the U.N. talks altogether, and those opportunities to address U.S. concerns were lost. On May 6, 2002, President George W. Bush rendered inactive the U.S. signature on the Treaty by informing the United Nations, as depository of the Treaty, that the United States would no longer honor the obligations of a signatory nation. (27) Shortly thereafter, Congress adopted and President Bush signed into law the American Service Members Protection Act, (28) which is a blunt anti-ICC piece of legislation designed to prohibit any U.S. cooperation with the ICC and to punish nations that join it. (29) By late 2007, however, Congress repealed some of the punitive measures of the law following years of sharp deterioration in U.S. military and diplomatic relations with nations that defied the Bush Administration and joined the ICC anyway. (30)
As of October 1, 2008, there will be 108 State Parties to the Rome Statute. (31) These include almost every major ally of the United States, many nations that are considered friends, and none that are characterized as evil, Communist, or adversarial. They consist of all but one of the European Union nations, Canada, Mexico, most of Latin America and the Caribbean, a majority of African countries, and sixteen Asia-Pacific nations, including Australia, Japan, and the Republic of Korea. (32) The ICC has accepted four atrocity crimes situations for investigation and prosecution and issued indictments in most of them: the Democratic Republic of the Congo, regarding which arrests have been made and pre-trial proceedings are underway, (33) Uganda, (34) the Central African Republic, (35) and Darfur. (36)
The Rome Statute reflects the convergence of the common law and civil law systems, varying nation by nation, that constitute the global administration of criminal law. (37) Most of the world is governed by some variation of civil law. Only a relatively small number of nations employ the common law system. (38) Consequently, few countries use the jury system in their criminal trials; (39) the vast majority of nations rely on judges ruling from the bench. During the negotiations leading to the Rome Statute and, in particular, the Rules of Procedure and Evidence, (40) there was constant attention to this melding exercise of civil and common law systems as well as acknowledgement of other major bodies of law in the world. It is inconceivable that the vast majority of nations negotiating the Rome Statute would have accepted a requirement of trial by jury. Indeed, the very nature of the exercise--to prosecute the masterminds of complex and massive atrocity crimes before an international court in The Hague--was incompatible with the jury system. Who exactly would be the members of the jury from the global society? How would they be selected when so many nations are invested in the process? What educational level would be required of jury members? Negotiators focused on a procedure that would select highly qualified judges conversant in national criminal law and international criminal law and skilled in parsing through the complex evidence that is characteristic of atrocity crimes, particularly when handling prosecutions of those in leadership roles. (41) The ruling of judges on guilt or innocence was considered vastly fairer to the defendant in such high-profile international criminal trials than a likely problematic ruling by a group of diverse individuals who may harbor prejudices, speak different languages and dialects, hail from many countries, have vastly different levels of educational achievement, and yet hold the fate of an alleged war criminal, probably of a different nationality, in their hands. (42) It would have been very difficult for advocates of the jury system to take the leap from a jury of peers drawn from one's own community or nation to a jury comprised of foreigners who likely have little or no knowledge of the national context within which the defendant operated or of the law under which he or she is to be judged. Highly qualified judges can address both the national context and the law, as the existing international and hybrid criminal tribunals have demonstrated for years.
The Rome Statute and its Rules of Procedure and Evidence and Elements of Crimes have been in force since July 1, 2002, when the required sixty nations ratified the Rome Statute and became State Parties to it. (43) While genocide, crimes against humanity, and war crimes are defined and can be prosecuted by the ICE, (44) the crime of aggression is included, but remains undefined and without any procedure for referral to the ICC. (45) Aggression thus cannot be investigated or prosecuted until the crime is defined, the trigger mechanism for its consideration by the Court is agreed to, and the Rome Statute is amended to include a definition and trigger mechanism. The first review conference of the Rome Statute by the State Parties, scheduled for 2010, should have before it one or more proposals for such an amendment to "activate" the crime of aggression. (46)
Cases come before the ICC within the context of referrals of "situations" of atrocity crimes, namely, large-scale and multiple commission of such crimes within a particular event, such as the conflict between the Lord's Resistance Army and the Ugandan Army, the ethnic cleansing against African tribes in the Darfur region of Sudan, the bloodletting in the Ituri region of the Democratic Republic of the Congo, or the mass rapes in the Central African Republic. (47) A situation involving alleged atrocity crimes can be referred to the ICC by a State Party to the Rome Statute, by the U.N. Security Council using its U.N. Charter Chapter VII enforcement authority, or by the ICC Prosecutor acting independently, but only following approval by the Pre-Trial Chamber. (48) Once a situation has been referred to the ICC and it clears procedural hurdles for active investigation, the Prosecutor acts independently to investigate individuals who are suspected perpetrators of the atrocity crimes at issue. Then, the Prosecutor may seek judicial approval of arrest warrants against particular persons. (49)
The ICC is not a court of universal jurisdiction that can prosecute anyone who has committed an atrocity crime anywhere in the world. (50) There are usually certain preconditions to personal jurisdiction: the individual charged with atrocity crimes must be a national of a State Party to the ICC, or the territory on which the crime was committed must belong to a State Party to the ICC. (51) If the Security Council refers the situation to the ICC, however, these preconditions do not apply: a national of a nonparty State may be prosecuted, and the crimes need not be committed on the territory of a State Party. Finally, a non-party State may file a declaration with the ICC inviting it to investigate a situation in which the crimes occurred in its territory or one or more of its nationals are suspected of having perpetrated such crimes. (52)
The admissibility of individual cases, both potential and existing, is governed by Articles 17-19 of the Rome Statute, and these are discussed in greater detail in Part II below. The admissibility tests are critical to any understanding of the constitutionality of the Rome Statute in American practice for they invite national courts to handle cases under their national criminal law, thus preempting the ICC's jurisdiction over a suspect. (53) As explained below, concerns, as ill-founded as they likely would be, about the protection of a U.S. national's constitutional due process rights before the ICC need never arise if U.S. prosecutors and courts simply take the initiative to investigate and, if merited, prosecute the U.S. national before a U.S. court. Indeed, they have within their power the ability to guarantee a jury trial. Provided U.S. judicial authorities act with foresight and professional objectivity, and provided federal criminal law is amended to fully cover atrocity crimes, (54) there should be no reason for the ICC to determine that the United States is, following the language of the Rome Statute, either "unwilling or unable genuinely" to carry out an investigation or prosecution of a suspect, thus entitling the ICC to find the case admissible and to seek custody of the suspect. (55) This feature of the Rome Statute reflects the overriding presumption in the negotiations that the ICC would focus its attention on situations where national legal systems are devastated, perhaps practically nonexistent, in the wake of conflict and atrocities or where cynical governments, perhaps implicated in the horrors, show no ability to bring their own perpetrators of atrocity crimes to justice. As it happens, three of the four situations currently before the ICC are self-referrals, made by governments that decided to refer internal atrocity situations to the ICC because of inadequate domestic legal capabilities, or for political reasons, to confront rebel movements head-on with international justice. (56)
Part 3 of the Rome Statute sets forth general principles of criminal law drawn from both common law and civil law traditions. These principles, however, will look very familiar to American attorneys and judges, as a U.S. delegation that included Justice Department Criminal Division lawyers oversaw the drafting and adoption of the principles. The concerns the United States had with the Rome Statute on July 17, 1998, (57) or when President Clinton pointed to some remaining flaws at the time of the signing of the treaty on December 31, 2000, (58) had nothing to do with Part 3 or, for that matter, with any due process issues. (59)
The Rome Statute's general principles of criminal law include nullum crimen sine lege; (60) nulla poena sine lege; (61) non-retroactivity ratione personae; (62) individual criminal responsibility, including aiding and abetting and joint criminal enterprise; (63) the exclusion of jurisdiction over persons under eighteen years of age; (64) the irrelevance of official capacity when applying the Rome Statute; (65) the responsibility of commanders and other superiors; (66) the non-applicability of statutes of limitations; (67) intent and knowledge, or the mental element; (68) grounds for excluding criminal responsibility; (69) mistake of fact or of law; (70) and the defense of superior orders and prescription of law. (71)
Procedural requirements for the investigation and prosecution of suspects are set forth in Articles 53-61 of the Rome Statute, (72) and the principles governing ICC trials are detailed in Articles 62-76. (73) Rules 104-144 of the Rules of Procedure and Evidence amplify the Rome Statute's provisions. (74) Part VII below examines the due process requirements of particular relevance to the U.S. Constitution and how the Rome Statute and Rules of Procedure and Evidence enforce those requirements. The sentencing provisions of the Rome Statute do not permit the death penalty, (75) which might have attracted troublesome scrutiny under constitutional law if it had been included as a sentencing option. (76)
Recently there has been reason to believe that the United States is shifting away from outfight and punitive opposition to the ICC and towards a more constructive dialogue about the Court. (77) If that trend continues, particularly following the election of a new president in November 2008, then there should be some practical value in examining the issues set forth in this Article.
II. THE COMPLEMENTARITY AND ARTICLE 98(2) FIREWALLS
During the U.N. negotiations leading to the Rome Statute, governments gravitated towards a fundamental procedure that would permit national courts the initial opportunity to investigate individuals within their jurisdiction who are actual or potential targets of ICC investigation. (78) Initially, this procedure was articulated as one of admissibility on a case-by-case basis. Articles 17 and 19 of the Rome Statute set forth the procedures for challenging the admissibility of an individual case already before the ICC and the determinations the ICC must make in order to overcome a challenge by a State, an accused, or a person for whom a warrant of arrest or a summons to appear has been issued under Article 58. The primary criteria to sustain the inadmissibility of a case before the ICC are set forth in Article 17 and center on whether the State concerned is investigating or prosecuting the case over which it has jurisdiction. (79) If that State is found to be "unwilling or unable genuinely to carry out the investigation or prosecution," then the ICC may reach the decision to exercise personal jurisdiction over the individual. (80)
Non-party States are fully entitled to take advantage of the complementarity procedures to avoid the prosecution by the ICC of their nationals, who may be charged with commission of atrocity crimes on the territory of a State Party to the Rome Statute. (81) If the non-party State fails to act at all, or is unwilling to act, or is genuinely unable to act and thus fails the admissibility test, any attempt by the ICC to exercise personal jurisdiction over the non-party State national nonetheless will be highly problematic and depend on the location of the individual. Jurisdiction will depend on whether he or she is in custody in a State Party jurisdiction; whether the Security Council has referred the entire situation to the ICC; (82) and whether the non-party State has consented to ICC jurisdiction. (83)
Before the admissibility of a particular case even arises as an issue before the ICC, a nation has the opportunity to seize full jurisdiction over any cases that might attract ICC interest in a situation under investigation by the Court pursuant to a State Party referral or an investigation initiated by the Prosecutor. This preliminary procedure originally was introduced to the U.N. talks by the U.S. delegation, and ultimately it was codified as Article 18 of the Rome Statute. (84) Article 18 effectively precludes the ICC from exercising jurisdiction for an entire atrocity crimes situation over "nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in Article 5 [genocide, crimes against humanity, war crimes, and, if it achieves definitional and operational status by amendment to the Rome Statute, the crime of aggression]...." (85) But this deferral to national jurisdiction achieves permanence only if the State, whether as a State Party or non-party State, acts in good faith and does not give the Prosecutor and ultimately the Pre-Trial Chamber cause to question the ability or willingness of the State to investigate those within its jurisdiction. An adverse judgment by the Pre-Trial Chamber can be appealed by the State concerned to the Appeals Chamber of the ICC for final judgment as to the jurisdiction of the ICE. (86)
With respect to U.S. constitutional issues, the advantage of the Article 18 procedure is that the United States, either as a non-party State or State Party to the Rome Statute, can choose to preserve all constitutional guarantees by acting in accordance with Article 18, and by investigating and, if merited, prosecuting nationals or others within its jurisdiction strictly in U.S. courts, criminal or military. If it chooses this path, then the ICC would have no jurisdiction over U.S. nationals with respect to the entire atrocity crimes situation under investigation by the ICC that has triggered that particular Article 18 process.
The whole thrust of the negotiations leading to the Rome Statute was to offer the opportunity to any State, including State Parties and non-party States, to undertake their own domestic criminal procedures and associated domestic constitutional guarantees, if applicable, in preference to ICC jurisdiction. (87) Obviously, where the State fails to seize that opportunity or it demonstrates an inability or unwillingness to perform at the national level, then the Rome Statute cedes the investigative mandate to the ICC. This would have clear consequences for a State Party, which then would have to cooperate with the ICC's requests. (88) A non-party State could refuse to cooperate with the ICC, in which case its nationals suspected of committing atrocity crimes would remain at risk of arrest and trial before the ICC if they are found on foreign territory and, either by performance of an obligation of a State Party or by voluntary act of a non-party State, are arrested and transferred to The Hague.
Whether or not the United States ultimately joins the ICC, if a case involving a U.S. citizen or an individual falling within U.S. jurisdiction ultimately were to be investigated and prosecuted before the ICC, that would be a signal of failure or abandonment of complementarity by the United States and its forfeited opportunity to conduct a strictly national investigation and prosecution. If the United States were to become a State Party to the Rome Statute, then a voluntary decision by the U.S. government to deprive a national of a U.S. trial under U.S. law by refusing to investigate and, if merited, prosecute the person in U.S. courts would not be inconsequential to any federal judicial review of an individual's claim (say, as a U.S. citizen) that he or she should not be transferred to the ICC in the absence of a U.S. investigation. However unlikely it may seem, a similar claim could be made if the United States as a non-party State were to act in such a manner and nonetheless plan to transfer a U.S. citizen to the ICC.
A supplemental firewall is the Article 98(2) non-surrender agreement, a type of agreement which the United States can negotiate to prevent the surrender of certain U.S. nationals or other individuals falling within its national jurisdiction to the ICC, as can any other State to similarly protect such individuals from being surrendered to the ICE. (89) Article 98(2) was originally negotiated by the U.S. delegation as a means of preserving the enforceability of Status of Forces Agreements (SOFAs) covering its hundreds of thousands of soldiers deployed overseas at any one time. (90) Over the years of talks the provision broadened to include agreements between two or more States coveting all official personnel that the "sending State" deploys to the "receiving State." (91) However, the hundred or so Article 98(2) non-surrender agreements entered into by the United States with other nations (92) extend their coverage to all U.S. nationals, and not just official personnel sent by the U.S. government to the receiving foreign country. ICC judges may find them unenforceable, at least with respect to private U.S. nationals, if they are used to shield certain individuals from the jurisdiction of the Court. (93)
The Clinton Administration regarded Article 98(2) authority as something it would use sparingly in the future, while classifying the many existing SOFAs as agreements qualifying for Article 98(2) status in any case. (94) The Bush Administration saw the Article 98(2) option as a means of insulating Americans from the reach of the ICC throughout the world, regardless of their personal status, whether as official personnel of the U.S. government, tourists, businessmen, journalists, or mercenaries, and launched an aggressive campaign to persuade and compel nations to enter into bilateral agreements with the United States. (95) The Article 98(2) agreements signal a choice by the United States, currently as a non-party State, to create conditions whereby a U.S. national who might be suspected of committing atrocity crimes on foreign territory would be subject either to the jurisdiction of the foreign courts of the nation in which he or she is located or subject to U.S. jurisdiction, but not to ICC jurisdiction.
There are two considerable problems with the agreements negotiated by the Bush Administration. The first problem is that the Administration seeks to extend the agreements to protect all U.S. nationals regardless of their official status. Article 98(2) of the Rome Statute refers to coverage of persons of the sending State, which was intended to cover official personnel of the sending State, but not other citizens who are not of official status. (96) The second problem is the appearance of impunity by the U.S. government. The Article 98(2) agreements lack any requirement that in the event an American citizen on the receiving State's territory is sought by the ICC for alleged commission of an atrocity crime, the United States would investigate and conduct any necessary prosecution of that individual in U.S. courts, obligating the receiving State to extradite him or her to the United States for that purpose. (97)
If, however, the United States were to use the opportunity afforded by an Article 98(2) agreement to gain physical custody of the national and investigate such person and, if merited, prosecute him or her before U.S. courts, then all constitutional guarantees would be preserved in that criminal proceeding. A decision by U.S. authorities not to exercise this option when the opportunity presents itself, and thus expose the individual to capture by and trial before the ICC, would appear to be a forfeiture by the U.S. government of the U.S. national's full panoply of constitutional rights and protections before U.S. courts. Although Article 98(2) non-surrender agreements are only partially relevant to a constitutional inquiry, such agreements are one more way the U.S. government, through use of a politically sophisticated strategy, could achieve significant exclusivity over the fates of individuals at risk of being investigated by the ICC for the commission of atrocity crimes. With that exclusivity would arrive full constitutional rights and protections before U.S. courts. Unfortunately, the Bush Administration's strategy of overreach with such agreements may have seriously hindered the original goals of narrowly targeted Article 98(2) non-surrender agreements.
The complementarity firewall will only work to ensure full application of U.S. constitutional rights in American, as opposed to ICC, investigations and trials if U.S. law substantially mirrors the crimes falling within the jurisdiction of the ICC. Currently, that is not the case. There are significant gaps in U.S. criminal law regarding many of the crimes against humanity and many of the war crimes set forth in Articles 7 and 8, respectively, of the Rome Statute. (98) That means that even if the United States, either as a nonparty State or as a State Party to the Rome Statute, was willing to exercise its complementarity privilege to investigate a U.S. national for commission of an atrocity crime under scrutiny by the ICC, it may not have the ability to do so. While such gaps in federal criminal law should be of serious concern and eliminated to defeat any claim of inability, it remains highly unlikely that the United States would satisfy the test for "inability in a particular case" under Article 17(3) of the Rome Statute. (99) There would have to be "a total or substantial collapse or unavailability of its national judicial system" as the rationale for why the United States "is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings." (100) The more plausible concern for the United States would be the unwillingness test set forth in Article 17(2) of the Rome Statute, which could become a considerable issue if there are gaps in federal criminal law that provide a de facto "shield" for suspects and discourage efforts to bring them to justice domestically. (101)
A good example would be the crime against humanity of persecution, (102) which covers what is commonly described as "ethnic cleansing." (103) There is no basis in U.S. law to prosecute the crime of persecution, which encompasses ethnic cleansing, as a crime against humanity with all of the accompanying elements pertaining to magnitude and planning. (104) ICC judges could determine that despite a U.S. willingness to investigate certain actions by a U.S. national, U.S. law does not criminalize such conduct. Indeed, U.S. law may not even provide jurisdiction over the U.S. national who commits such an atrocity crime on foreign territory. While efforts may be made by a U.S. Attorney to prosecute the crime of murder or another common crime found in Title 18, such efforts may be viewed by the ICC judges as insufficient to address the actual crime in question. The definition and elements of the crime against humanity of persecution simply do not exist in the U.S. Code.
Without the ability to exercise jurisdiction over any atrocity crimes allegedly committed by U.S. nationals anywhere in the world, the United States would forfeit its privilege to apply all U.S. constitutional due process protections, including the right to trial by jury, for the benefit of U.S. nationals sought by the ICC for the commission of crimes that are not codified in U.S. Code Titles 10 and 18. This is an issue of great importance whether or not the United States ratifies the Rome Statute. Even as a nonparty State, the United States is entitled to the complementarity privilege if the ICC seeks to investigate and seek the arrest of a U.S. national for commission of an atrocity crime on non-U.S, territory. Therefore, it is in the highest interest of the United States to modernize its criminal codes, civilian and military, so that it has the ability to investigate and prosecute U.S. nationals before U.S. courts for the full range of atrocity crimes falling within the subject matter jurisdiction of the ICC. Such an option would neutralize constitutional concerns about whether the ICC precisely replicates all of the due process rights found in U.S. criminal trials, and it would preserve the right to a jury trial for any U.S. national who merits prosecution for any such atrocity crime. If the United States were to move towards ratification of the Rome Statute, then such amendments to the federal criminal and military codes would be essential components of the implementing legislation required for such ratification.
III. Is AN ARTICLE III COURT ESSENTIAL FOR PROSECUTION OF AMERICANS FOR ATROCITY CRIMES?
The International Criminal Court prosecutes international crimes of the most significant character--genocide, crimes against humanity, war crimes and, potentially, aggression--and only when committed on scales of magnitude, substantiality, and often transnational character typically not found in domestic cases. (105) The reality of the ICC's subject matter jurisdiction over atrocity crimes has a critical bearing on whether U.S. ratification of the Rome Statute would violate Article III, Section 1 of the Constitution which provides, in relevant part: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time establish." (106)
The Rome Statute has established an international criminal court which the United States, if it were to become a State Party, would be obligated to help pay for, (107) cooperate with, (108) elect judges and the Prosecutor to apply justice at, (109) and, in certain circumstances, allow for the prosecution of U.S. citizens before, the ICC. (110) The judicial power of the ICC, however, is not that of the United States. It is the power of an independent international criminal court, an international organization with "international legal personality" (111) and bound to no government's direction or control, (112) established by treaty among the sovereign nations of the world for a distinctly international purpose. If the United States were to ratify the treaty establishing the ICC, it would be an exercise of the Article II treaty power (113) to build a uniquely-conceived international court and not an exercise of the Article III, Section 1 power to establish a domestic court.
But serious considerations remain. "Article III, [Section] 1 safeguards the role of the Judicial Branch in our tripartite system by barfing congressional attempts 'to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating' constitutional courts." (114) Thus, "a given congressional decision to authorize the adjudication of Article III business in a non-Article III tribunal [may] impermissibly threaten[] the institutional integrity of the Judicial Branch." (115) This is particularly so when "the right being adjudicated is not of congressional creation," but protected in the Constitution. (116) While these affirmations by the Supreme Court are unassailable, they also point to why the establishment of the ICC and U.S. participation in it are distinguishable and thus should be unconstrained by the Article III, Section 1 authority.
The ICC was neither conceived nor established for the purpose of "emasculating constitutional courts." The subject matter jurisdiction embodied in the Rome Statute consists exclusively of international crimes, only some of which are codified in U.S. law. (117) These are crimes of concern to the entire international community, striking at the heart of humankind. Much of the subject matter jurisdiction in the Rome Statute, particularly crimes against humanity and some war crimes, does not exist in federal criminal law and even in U.S. military law, so there would be no transfer of jurisdiction of existing Article III power with respect to those crimes if the United States were to ratify the Rome Statute. (118) Those atrocity crimes of ICC jurisdiction which currently can be prosecuted in U.S. courts, such as genocide (119) and some war crimes, (120) nonetheless constitute international crimes of the most profound character. The complementarity principle of the Rome Statute, discussed above, preserves the Article III courts' existing jurisdiction over these crimes, but also recognizes an alternative forum--one that is essentially inferior because of the complementarity principle--for adjudicating these crimes in the event U.S. prosecutors and courts fail to act or act so corruptly as to conduct sham trial proceedings. By virtue of ratifying the Rome Statute, the United States would consent to alternative jurisdiction to adjudicate a particular case by the treaty-based ICC. If and when Congress amends U.S. Code Titles 10 and 18 to fully embrace the atrocity crimes of the Rome Statute, such crimes would remain international crimes that are the sole focus of the ICC as an alternative and, for all intents and purposes, secondary forum to U.S. prosecution.
If in the future the Rome Statute were amended to incorporate into the ICC's subject matter jurisdiction certain other crimes traditionally and commonly prosecuted by national courts, including U.S. courts, then there might be more reason to argue that Article III, Section 1 of the Constitution would complicate U.S. participation in the ICC, at least with respect to those particular crimes. For example, if the ICC were empowered to investigate and prosecute drug trafficking, terrorism, or offenses against internationally protected persons, then it would be duplicating the jurisdiction of Article III courts which have long prosecuted such actions as domestic crimes with international ramifications. There were serious efforts prior to and during the Rome negotiations in 1998 to include drug trafficking and terrorism in the ICC's jurisdiction, but enough governments, including the United States, opposed the proposals, which were defeated. (121) The U.S. delegation argued that existing multilateral treaties on drug trafficking (122) and terrorism (123) would be undermined if jurisdiction were granted to the ICC. (124) A bedrock principle of these treaties is the "prosecute or extradite" principle, which has long been applied to strengthen national prosecutions of transnational crimes. (125) Nonetheless, the possibility remains that drug trafficking and terrorism may be resurrected as candidates for inclusion in the ICC's subject matter jurisdiction. (126) Pursuant to Article 121(5) of the Rome Statute, any State Party could refuse to be subject to ICC jurisdiction over any such crime that is added by amendment to the Rome Statute. (127) The United States could exercise that prerogative and thus avoid contentious challenges regarding the Article III, Section 1 power, and even stipulate that policy choice in a declaration attached to its ratification of the Rome Statute.
This line of reasoning is not meant to suggest that Congress refrain from amending U.S. Code Titles 10 and 18 to incorporate all of the atrocity crimes framing the subject matter jurisdiction of the Rome Statute. We strongly believe it should do so, preferably as implementing legislation prior to ratification. If federal and military courts were empowered to adjudicate the full range of atrocity crimes, these crimes' unique international character should compel the United States to join with other nations to ensure their investigation and prosecution in both national courts and, if it proves necessary, before the ICC. By using the treaty power invested by the Constitution to achieve that objective, the President would ensure the enforcement of essentially the same law before federal and military courts and, as a strictly secondary step, before the ICC.
Another consideration is the reality that not all crimes committed in the United States by U.S. citizens warrant a trial before an Article Ill court. (128) Typically, U.S. citizens are afforded this right, and the Supreme Court has held multiple times that ordinary civilians should not be tried before a military court marshal or by a military tribunal. (129) However, where U.S. citizens are spies or unlawful combatants, the right to appear before an Article III court may be lost. For instance, in Ex parte Quirin, (130) several spies, one of whom was a U.S. citizen, who had entered the United States on behalf of Germany to destroy war industries and facilities in the...
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