AIR UNIVERSITY LIBRARY

The International Criminal Court

Why We Need It, How We

Got It, Our Concern About It

DONALD A. MACCUISH, EdD

Fairchild Paper

Air University Press

Maxwell Air Force Base, Alabama 36112-6615

July 2005
ii

This Fairchild Paper and others in the series are available electronically at the AU Press Web site http://aupress.maxwell.af.mil

and the Air University Research Web site http://research.maxwell.

af.mil.

Disclaimer

Opinions, conclusions, and recommendations expressed or implied within are solely those of

the contributors and do not necessarily represent the views of Air University, the United States

Air Force, the Department of Defense, or any other US government agency. Cleared for public

release: distribution unlimited.

The essay by MacCuish and Ruby contains fictionalized representations of future situations.

Any similarities to real people or events are unintentional and are for purposes of illustration

only.

Air University Library Cataloging Data

MacCuish, Donald A.

The International Criminal Court : why we need it, how we got it, our concern about

it / Donald A. MacCuish . . . [et al.].

p. ; cm.––(Fairchild paper, ISSN 1528-2325)

Includes bibliographical references.

Contents: A history of war crimes and their consequences / David A. Hater––The International Criminal Court : a case of the United States having its cake and eating it too?

/ Steven D. Dubriske––General Watson to the ICC? The President must decide soon! /

Donald A. MacCuish and Tomislav Ruby. Appendix: Signatories and ratifications to the

Rome Statute of the ICC.

ISBN 1-58566-137-6

1. International Criminal Court. 2. International criminal courts. 3. United States––

Foreign relations––Treaties. 4. War crimes. 5. War crime trials. I. Series.

345––dc22
Dedicated To

Muir S. Fairchild (1894 1950), the first commander of

Air University and the university’s conceptual father.

General Fairchild was part visionary, part keen taskmaster,

and “Air Force to the core.” His legacy is one of confidence

about the future of the Air Force and the central 

role of Air University in that future.
Contents

Page

DISCLAIMER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

DEDICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

ABOUT THE CONTRIBUTORS . . . . . . . . . . . . . . . . . . . vii

PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

Essays

A HISTORY OF WAR CRIMES AND

THEIR CONSEQUENCES . . . . . . . . . . . . . . . . . . . . . . . 1

Maj David A. Hater

Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

THE INTERNATIONAL CRIMINAL COURT:

A CASE OF THE UNITED STATES HAVING

ITS CAKE AND EATING IT TOO? . . . . . . . . . . . . . . . . . . 25

Maj Steven D. Dubriske

Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

GENERAL WATSON TO THE ICC?

THE PRESIDENT MUST DECIDE SOON! . . . . . . . . . . . 71

Dr. Donald A. MacCuish and

Lt Col Tomislav Ruby

Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

APPENDIX: SIGNATORIES AND RATIFICATIONS

TO THE ROME STATUTE OF THE ICC . . . . . . . . . . . . . 99

v
About the Contributors

Maj Steven D. Dubriske is currently the Staff Judge Advocate, 71st Flying Training Wing, Vance AFB, Oklahoma. Major

Dubriske is a 2003 graduate of ACSC at Maxwell AFB, Alabama.

His paper on the International Criminal Court was submitted

as part of the graduation requirements for this school. Major

Dubriske holds a Bachelor of Science in Business Administration (Finance) from the University of Arkansas and a Juris

Doctorate from the University of Arkansas at Little Rock

School of Law. Major Dubriske’s paper won the ACSC Commandant’s Award for Research Excellence for 2003.

Maj David A. Hater is the chief of Strength Management for

the 3d Infantry Division (mechanized) at Fort Stewart, Georgia.

He is a 2003 graduate of ACSC and a 2001 graduate of the

Army Command and General Staff College. He holds a master’s degree in Philosophy from The Ohio State University and

a master’s degree in Public Administration from Auburn University in Montgomery. Major Hater previously served as an assistant professor of English/Philosophy at the United States

Military Academy at West Point, New York. Major Hater has presented papers on just war theory at the Joint Service Conference

on Professional Ethics and the Mid-South Philosophy Conference.

Dr. Donald MacCuish is the vice dean of distance learning at

ACSC, where he is also a research faculty advisor. He has over

25 years experience in education and training, and is also a retired Army reserve lieutenant colonel. He is a graduate of both

the Army Command and Staff College and ACSC. He earned

his bachelor’s degree in history from the Virginia Military Institute. He has a master’s in educational psychology from

Wayne State University and earned his Doctor of Education

degree from the University of Central Florida.

Lt Col Tomislav Ruby recently completed his doctoral studies in Political Science at the University of Kentucky. His dissertation focused on moral decision making in war. A 2000

graduate of ACSC, Lieutenant Colonel Ruby served as chief of

vii
counterair doctrine at the Headquarters Air Force Doctrine

Center, chief of intelligence for the 35th Fighter Wing, Air Staff

action officer, and chief of the 363d Tactical Fighter Wing mission planning cell during Operation Desert Storm. He earned

his Bachelor of Science degree from the US Air Force Academy

and a master’s degree from the Joint Military Intelligence College and a second master’s from ACSC.

viii
Preface

I have been following the establishment of the permanent International Criminal Court (ICC) as called for in the Treaty of

Rome since I first began teaching an elective, Morality and War:

Implications for the War Fighter, here at the Air Command and

Staff College (ACSC) in January 2000. I have found the process

to be quite interesting. Almost from the beginning, my thoughts

harkened back to what I believe Winston Churchill was warning

us about the future. As I remember it, his words were something like, “Be ever mindful of the ghost of Nuremberg coming

back to haunt us.” This notion haunts us today.

According to author Bradley Smith, it was at America’s insistence that the victorious Allies conducted the trials at Nuremberg and in the Pacific as well. Stalin, who realized the value

of “show” courts, was enthusiastic. Churchill was less so, fearing the implications, and Charles de Gaulle, well de Gaulle was

de Gaulle. The Germans never accepted the results as legitimate.

Since the conclusion of those trials over 50 years ago, the

United States has been at the forefront, leading the fight for a

permanent criminal tribunal, only to end up opposed to one

when the details were penned to paper. It always is in the details, isn’t it?

The Plenipotentiaries convened in Rome from 15 June until

17 July 1998 to negotiate and draft what became the Treaty of

Rome, establishing the permanent ICC. The participants included 160 states, 33 intergovernmental organizations, and 236

nongovernmental organizations. When all was said and done,

there were 120 states voting in favor of the treaty, seven against

it, and 21 abstentions. There is no record about the 22 other

states in attendance. Interestingly, the United States, which had

been pushing for a permanent court, and which was instrumental in establishing the Criminal Tribunals for Yugoslavia and

Rwanda, voted against the treaty. However, America’s allies—the

French, British, and Russians—voted for the treaty on the last

day of the conference.

One of Pres. William “Bill” Clinton’s final official acts before

leaving office was to sign the Treaty of Rome on behalf of the

ix
United States. But affixing his signature to the treaty only

tended to add fuel to those who criticized his administration.

However, in this instance, he did the right thing because if he

had not signed the treaty, the United States would not have been

allowed to participate in the rest of the formulation process—

the details, if you will, of how the court functions. On 6 May

2002, Pres. George W. Bush announced that the United States

withdrew its signatory status to the Treaty of Rome. Maj Steven

D. Dubriske’s paper explains the nuances of the treaty quite

well. This paper won the 2003 ACSC Commandant’s Award for

Research Excellence.

For quite some time now, Lt Col Tomislav Ruby and I have had

some serious reservations about the ICC. We noted early on that

many of the legal rights, we, as Americans, enjoy would be swept

away by the court. For example, once selected, the prosecutor is

not accountable to anyone. Also, if a defendant is found not

guilty, the prosecutor can appeal the not guilty verdict. Finally,

even though the defendant’s country has the right of first refusal,

if the prosecutor does not like the verdict, he or she can haul the

person before the ICC under the guise that the national court

proceedings were a dodge. We were further concerned because

we thought it not only possible, but quite likely, that an American would be brought before the court for political reasons. Although, later withdrawn, a complaint to try Gen Tommy Franks

before a Belgian court for war crimes in Iraq was filed. Even so,

the incident does, in my opinion, validate our concerns. In the

future, if a similar complaint were filed with the ICC would it also

be withdrawn? Hmmm.

Thus, on our way home from a conference at the Army War

College in April 2002, we began putting our thoughts down on

paper. The third essay is the result of that discussion. Admittedly, the genre we selected was fiction all save a couple of the

specific examples that actually occurred during Operation Allied Force. That essay is a well-researched and appropriately

documented academic article. This article was recently adopted

by the Georgetown University Institute for the Study of Diplomacy (GUISD) as a case study for graduate students studying

x
International Relations and Diplomacy and for law students

specializing in International and Human Rights Law.

During the month of June 2002, I began developing my research topics for the Resident Program here at ACSC. I wrote one

research topic focusing on the Treaty of Rome and the ICC. During the research open season, I had two students who showed

an interest in the topic. Their essays constitute the first two in

this anthology. Maj David Hater’s approach was to look at the

history of war crimes that led up to the Treaty of Rome. As I

mentioned previously, Major Dubriske discusses the specifics of

the treaty as it stands today.

There is a strong argument to be made for establishing a permanent criminal court to bring to justice individuals responsible for specific, well-defined violations of the rules and customs of war—genocide, crimes against humanity, war crimes

(violation of the Hague and Geneva Conventions, etc.). Prof. Rudi

Rummel, in his book, Death by Government, states that in the

twentieth century over 170 million civilians have been victims of

the aforementioned crimes. This should be appalling to everyone, and there ought to be an international forum of accountability for the perpetrators of such crimes. In my opinion, the

ICC, as currently constituted, is not that forum for all the reasons cited.

I want to take this opportunity to acknowledge several people

who have made this anthology possible. I want to thank Dr.

Shirley Laseter, director of Air University Library and Air University Press, for her kind assistance in the publication of this

anthology. I also owe a special debt of gratitude to Mr. Darrell

Phillips, chief, International and Operations Law Division, and

Capt Shelly Schools, instructor, Military Justice Division, both of

whom serve at the Air Force Judge Advocate General School,

Maxwell Air Force Base, Alabama. They guided me in tying the

loose ends together. Several international law specialists had reviewed the third essay and criticized those parts that were not

precise. Mr. Phillips and Captain Schools helped me correct

those legal imprecisions, and for that I am truly grateful.

It is my hope that these three essays provide the reader with

a better and more comprehensive understanding of the ICC,

xi
its development, and the reasons all Americans should be concerned. For the non-American reader, I hope that these essays

provide a well-articulated explanation of our concerns about

the ICC.

xii

DONALD A. MACCUISH, EdD

July 2005
A History of War Crimes

and Their Consequences

David A. Hater

Major, US Army

War crimes have plagued mankind for centuries. While there

is disagreement over exactly what constitutes a war crime and

what a war crime is, the fact remains that military forces have

committed atrocities throughout recorded history.

The way of prosecuting war criminals or punishing them

through nonjudicial, political mechanisms has also changed

over time. Options range from take no prisoners or summary

executions of prisoners, at the one extreme, to judicial trials

and sentencing, at the other extreme. The problem with judicial proceedings is that they can have a hint of victor’s justice,

especially if the jurisdiction, legitimacy, and authority of the

court are not established in advance. The International Criminal Court (ICC) was established on 17 July 1998 in part to address these concerns.

However, the United States (US) has not ratified the Rome

Treaty of 17 July 1998 and has specifically stated it will not be

bound by the treaty. Nonetheless, the international community implemented the treaty, and the ICC became a reality on

1 July 2002 after the 60th nation ratified the treaty. What exactly

does ratification mean for members of the United States Armed

Forces?

This essay explores the implications for military members in

four parts. It traces the historical development of war crimes and

looks at what types of issues the ICC might have jurisdiction

over. Then, it focuses on international criminal courts in general

and examines the predecessors of the ICC: Nuremberg/Tokyo,

the ICC for the former Yugoslavia, and the ICC for Rwanda. The

essay then details the inner workings of the ICC. Finally, it looks

at the question of whether members of the United States Armed

Forces are subject to ICC jurisdiction. This answer will be based

on a legal, political, and moral analytical framework.

1
The history of war crimes is nearly as old as recorded history. When many people think of war crimes, their thoughts

normally turn to the twentieth century and the Nuremberg tribunals. The history, though, is far older. As far back as 400

BC, the Greeks were writing about the Battle of Melos. Similarly, in 149–46 BC at the Battle of Carthage, there were disturbing abuses by the conquering Romans.

It is true that, at the time, these were not considered war

crimes, nor were there any tribunals. However, by any objective standard of morality, these atrocities qualify as war crimes.

Many ancient Greeks, Carthaginians, and even many relatively

modern soldiers would say that the term war crime itself is an

oxymoron. According to this school of thought, there is no

morality in war. Similarly, because during those times (and

some would argue even today), there was no world court, international sovereign, United Nations, or codified international

law of war, it follows that there were no judicial constraints on

military action.

In Thucydides’ History of the Peloponnesian War, the Athenian

generals Cleomedes and Tsias defend realism saying, “For this

is what war is really like: ‘they that have odds of power exact

as much as they can, and the weak yield to such conditions as

they can get.’”1 For the Athenians, war was not a moral or a

legal condition; it was a natural condition that Thomas Hobbes

would later call a “state of nature.” Under this doctrine, “If they

do not conquer when they can, they only reveal weakness and

invite attack; and so, ‘by a necessity of nature’ . . . they conquer when they can.”2

This is the nature of the security dilemma: conquer or be

conquered, kill or be killed. For this reason, when the Romans

conquered Carthage, they felt it necessary to kill all the

Carthaginians to prevent future conflicts and to provide increased security for the Roman Empire. The Romans did not

view killing all Carthaginians (including women and children)

as a war crime.

In that age, victor’s justice was not a concern. The stronger

side completely conquered the weaker side. There was no need

to try soldiers of the enemy. They were killed in battle or summarily executed. In the custom of the day, this total war realism

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doctrine was the norm. However, even in that day, there were

signs of some dissent. In his writing about the ring of Gyges,

Plato discusses morality and writes about what morality demands even when nobody is looking. If a ring of Gyges made a

man invisible so that he could “get away with any action,” what

would morality demand? Plato rejects the Darwinian survival of

the fittest theory. Similarly, Plato’s mentor Socrates also rejected the common notion of realism and total war. Socrates

writes,

They will not, being Greeks, ravage Greek territory nor burn habitations,

and they will not admit that in any city all the population are enemies,

men, women, and children, but they will say that only a few at any time

are their foes, those, namely, who are to blame for the quarrel. And on all

these considerations they will not be willing to lay waste the soil, since

the majority are their friends, nor to destroy the houses, but will carry

the conflict only to the point of compelling the guilty to do justice by

the pressure of the suffering of the innocent.3

War crimes were not only restricted to ancient Greece. The

United States has also had its fair share of dubious behavior

in combat. One of the more infamous examples is Sherman’s

march to the sea during the American Civil War. Gen William

T. Sherman advanced through the Confederacy burning entire

towns along the way. He justified his tactics using the defense

of military necessity. Sherman felt that by breaking the will of

the people, he could win the war quickly. Winning the war

quickly in Sherman’s mind was justified because a shorter

war saves lives, even if innocent civilians needed to be sacrificed. Sherman’s view of war was that war is ugly and cannot

be refined. He clearly believed that the ends justify the means.

Under this reasoning, anything that furthers the goal of victory is justified.4 Had the South won the Civil War, Sherman

most certainly would have been tried as a war criminal and

likely would have been executed. Perhaps this is nothing more

than victor’s justice, but clearly generals such as Sherman do

need to be held accountable for their actions.

Within the twentieth century, the United States also has engaged in some acts that many people would categorize as war

crimes. In World War II, the United States engaged in carpetbombing of Germany, and to a lesser extent, Japanese cities.

The final US mission of bombing Hiroshima and Nagasaki re3

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mains controversial to this day. Perhaps the bombing of Hiroshima and Nagasaki can be justified in a court of law dedicated to adjudicating the Law of Armed Conflict (LOAC). However, anytime civilian population centers are deliberately

targeted, it seems that there is at least probable cause (if not

definitive proof) to initiate war crimes proceedings. Gen Curtis E.

LeMay seemed to agree when he stated, “Killing Japanese didn’t

bother me very much at that time . . . I suppose if I had lost

the war, I would have been tried as a war criminal. . . . Every

soldier thinks something of the moral aspects of what he is

doing. But all war is immoral and if you let it bother you,

you’re not a good soldier.”5

One of the most famous cases of a war crime is obviously

the case of Lt William Calley. The Vietnam War frustrated

US soldiers because the Vietcong used asymmetric warfare

(some would say terrorism) to maximize their advantages. It was

often difficult to distinguish between combatants and noncombatants because women and small children were often soldiers.

In addition, they did not always wear uniforms or carry arms

openly. The enemy would attack US forces and then quickly

disappear into the countryside. Frustrated by mounting losses

and an inability to find the enemy, morale in Calley’s company

suffered greatly. Soldiers in Calley’s platoon were desperate to

inflict losses on the enemy to avenge friendly deaths. In this type

of environment, discipline slips and the environment becomes

ripe for war crimes. In the village of My Lai in 1968, soldiers of

Calley’s platoon lined up nearly every woman and child in the

village and summarily executed them and then burned the

village to the ground. Calley’s justification was that he was acting pursuant to superior orders. Even though superior orders

were rejected as a defense at Nuremberg, soldiers were still using

it as a defense to alleged war crimes, and some are still using it

today.6 Another justification Calley offered is that leveling entire

villages was the only way to prosecute the war against asymmetric tactics used by the Vietcong and that the entire village

was made up of Vietcong sympathizers who should be considered combatants.7

The full extent of the war crimes were not made public until

several years after the fact when a soldier from Calley’s pla4

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toon came forward to the Department of Defense and his congressman. The fact that there was no immediate investigation

by the Army seems to suggest that those who may have been

aware of what happened at My Lai at least tacitly condoned

the behavior. After the atrocities became known, the public

outcry became so great that the US military was forced to investigate. Calley was tried for murder and, at a general courtmartial, was convicted and given a life sentence. Pres. Richard

M. Nixon later pardoned Calley. Nixon felt that Calley was made

a scapegoat.

The scapegoat evidence is somewhat mixed. Capt Ernest

Medina, Calley’s company commander, was acquitted at a later

court-martial. The prosecution was never able to prove that

Medina had any direct knowledge of the My Lai massacres or

that he gave an order to commit war crimes. He was also found

not guilty of command responsibility for Calley’s actions. The

findings in the Medina case were contradictory to the findings

of the case of Gen Tomoyuki Yamashita, who was tried, convicted, and executed on 28 February 1946 based on command

responsibility for the actions of Japanese warriors in World

War II. Compared to Medina and Calley, Yamashita was many

more levels removed from the Japanese warriors.8 The trial

records also conclusively demonstrate that Yamashita had no

direct knowledge of the Japanese war crimes. Many historians

argue that there was a double standard between Yamashita

and Medina.9

We do not need to go back to Vietnam to find examples of alleged US violations of the LOAC. In recent peacekeeping operations, there have been several examples that, while far short of

Calley’s actions, may constitute violations of LOAC. Lt John

Serafini was charged with assault for the way he interrogated

a Kosovar detainee.10 Serafini pointed an empty 9 millimeter

at the head of a prisoner and threatened to kill him. Serafini

and his soldiers also physically assaulted the detainee. Again,

the justification was military necessity: it was the only (or

most expedient) way to gather the information and to accomplish the mission.

Throughout history, there have been many examples of war

crimes. My premise here is to show that there have been ques5

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tionable acts and outright war crimes committed by US soldiers.

The record of prosecuting these alleged war crimes is a mixed

bag. Sometimes the United States prosecuted its own soldiers,

while in other instances, no charges were filed. Because the

United States has always been on the winning side, and because

there has never been an international war crimes tribunal, if the

United States decided not to prosecute its own service members,

then alleged US war criminals were never prosecuted.

History of Military Tribunals

War crimes have been dealt with in a number of ways

throughout history. Often, what we currently consider war

crimes were not considered war crimes either by the offending

party or by the victims. War was a matter conducted between

states. The winners merely exacted whatever they could from

the losers.11 It follows from this that war crimes committed by

the winning side were rarely, if ever, prosecuted. The winning

side often punished the losing side for war crimes committed

against the victors. Sometimes, this was done after a trial;

other times summary executions were the rule. If a trial were

held, there were varying degrees of respect for the rule of law.

Often, military tribunals conducted the trials where the rules

of evidence and criminal procedure were quite different from a

typical civilian judicial proceeding.

One of the earliest examples of military tribunal use in the

United States was immediately after the Civil War. Perhaps the

most famous example during this period was the use of military

tribunals to try those accused in the Lincoln assassination. The

use of military tribunals remains controversial even to this day.

The descendants of Dr. Samuel Mudd, the doctor who treated

John Wilkes Booth after the assassination and who was convicted of this offense, continue to try to clear Dr. Mudd’s name.

Dr. Mudd’s descendants had some success in clearing his name

in 1992, when the Army Board for Correction of Military Records

recommended that his conviction be overturned because he was

not tried in a civilian court. But, no action has been taken on this

recommendation. In November 2002, the case was brought to

the Circuit Court of Appeals for the District of Columbia on

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grounds that a military tribunal did not have jurisdiction because civilians were available. The case was dismissed.12 Thus,

the basic issue concerning military tribunals and civilians remains unclear. There are numerous cases dealing with terrorist

suspects and detainees at Camp Delta, Guantanamo Bay, Cuba,

that are working their way through the court system that some

clarity to this issue might emerge.

This is not merely an academic point or one restricted to

clearing the name of one person. President Bush has authorized the use of military tribunals to try suspects in the war on

terrorism. Military tribunals have not been used yet, but many

civil libertarians decry even the proposed use. 

The United States is not the only country that uses military

tribunals. Secret military trials are a preferred tactic of third

world dictators and unstable governments. One recent example of the use of military tribunals was in combating terrorists

in Peru. The Peruvian government used military tribunals as

an effective way to protect the judicial system from reprisals

and witness intimidation and to dispense justice efficiently

and protect national security. It is ironic that these are many

of the same reasons given for military tribunals by the current

administration. The Peruvian government had much success

using military tribunals. Terrorism was brought under control

and many criminals were brought to justice. However, the cost

was high. Human rights groups allege that there were many

abuses. Even if the abuses were the minority of cases, Peru’s

international reputation suffered. To this day, ex-president Alberto Fujimori remains under indictment in self-exile, while

his enforcer former spy chief, Vladimiro Montesinos, is held in

a Peruvian prison.

Because of the problems associated with military tribunals,

particularly victor’s justice, lack of due process, ad hoc organizations, and ex post facto laws, the world searched for a better way to deal with suspected war criminals. Within the modern

era (before the creation of the ICC), three examples of courts

were established to deal with war crimes: Nuremberg, former

Yugoslavia, and Rwanda.

Leading up to the end of World War II, there was general

agreement among the Allied forces that something must be

7

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done about alleged German war criminals. Beyond this very

general agreement, there was considerable disagreement over

the mechanism for dealing with the Germans and what sorts

of crimes should be prosecuted. The problem for the Allies is

that international law was, for the most part, not well developed in either of these two areas. International law is not well

codified, and there was no international criminal court.13

The first major area of disagreement concerned the mechanism for dealing with the Germans. Since there was no international court, a vehicle would have to be created to adjudicate and

punish German war criminals. The options ranged from a political solution (closely resembling victor’s justice) to various judicial solutions. The political solution was favored by the British

and, at the extreme end, consisted of summary executions of

Germans judged by the Allied governments to have committed

war crimes. It is ironic that the originators of the Magna Carta

were pushing for summary executions while Marshal Josef

Stalin favored at least some limited trial mechanism. The British

political solution is a throwback to the Napoleonic days and did

not find favor with the remaining Allied powers.14

It may seem that if a political solution is rejected that there

is only one option: judicial. However, this judicial option is exceedingly complicated. By what authority would the court be

established? Some parties favored a treaty to establish a court,

but this has significant issues. Approving a treaty (especially

in the United States) is a time-consuming task. The Allied

powers wanted a speedy resolution to the war crimes issue.

Another problem was that the treaty was ex post facto and by

what authority were the accused Germans subject to the jurisdiction since they had not ratified the treaty and the treaty

did not exist prior to the beginning of the war. These two issues of ex post facto and authority over a nonsignatory would

remain as issues.

Establishing a court by treaty was eventually rejected. The

accepted alternative was to establish a court by executive agreement among the Allied powers. This still had the problems of

ex post facto law and jurisdiction over Germans, but it met the

Allied goal of being speedy. The Allies tried to give the executive agreement mechanism added legitimacy by establishing

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the United Nations (UN) and establishing executive agreement

among numerous nation states.

The German crimes were another area of considerable controversy. What exactly constituted a war crime? The issues

can be divided into several broad areas: “(1) crimes by and

against those who never left Germany, (2) crimes committed

prior to 1939, (3) atrocities by and against unidentified persons, (4) crimes committed by, and criminal liability of, superiors of the persons actually committing the offenses and (5)

the disposition of the major war criminals.”15

The first two categories were problematic under international

law. Sovereignty seemed to dictate that actions committed entirely within Germany or before World War II are domestic

rather than international problems. These two categories of offenses largely relate to the treatment of Jews in Germany.

While these are certainly atrocities, they seem to fall outside

the scope of war crimes. Common law recognized a broad category of crimes against humanity, but it was certainly not well

codified.

The third category of atrocities may be the easiest to deal

with from an international law perspective. There may be a

practical problem of identifying perpetrators, but, once identified, these individuals could be charged with violations of customary international law. In some cases, this international law

was codified in various treaties or in a country’s domestic law.

The fourth category of offense dealt with individuals operating pursuant to superior orders. There are several issues here.

One issue is command responsibility either based on giving

the order or negligence in failing to control one’s armed forces.

Command responsibility when an explicit order is given is

readily resolved as a criminal offense. The Nuremberg and

Tokyo tribunals also established the principle of a commander

being responsible for everything under his command. General

Yamashita of Japan was executed under the theory of failing

to control one’s troops. One international law principle that

Nuremberg did establish was that of superior orders. Superior

order was not a viable defense of a subordinate. The superior

and the subordinate were jointly criminally liable.

9

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Another issue of superior responsibility concerned membership in criminal organizations (i.e., the SS [or Schutzstaffel]

and the Gestapo). One plan suggested that the initial trials of

the commanders of these organizations establish the criminality

of the organization and by extension all members of the organization. This plan envisioned trials for lower-ranking individuals only having to prove membership in the organization

to establish guilt. Judicial notice would be taken that persons

belonging to these organizations would be classified as a war

criminal merely by their membership.16

The last category concerned the top leaders of Germany.

While it is clear that these individuals prosecuted a war of

atrocities, what would be the exact charge? Often, they did not

carry out the atrocities, and it may be difficult to establish, beyond a reasonable doubt (in the absence of a smoking gun)

that they gave the order. There was some sentiment for charging the leaders of the crime for starting an aggressive war. One

problem with this approach is that international law is not

codified, so aggressive war is not a crime. The proponents of

this aggressive war theory tried to get around this problem by

showing that Germany violated the Kellogg Briand treaty when

it violated the sovereignty of numerous countries.17

The issues raised at Nuremberg and Tokyo would remain in

the international community for decades. Some would argue

that many of the lessons of Nuremberg were not learned by the

international community because when it came time to deal

with war crimes in Rwanda and the former Yugoslavia, the international framework was only slightly better than after World

War II. The major problems in the Yugoslavia and Rwanda war

crimes tribunals were related to jurisdictional, ex post facto,

and domestic versus international war crimes. 

The International Criminal Tribunal for the former Yugoslavia

was formed as an ad hoc organization in 1993 and held the

first international war crimes trial since Nuremberg.18 It was

given authority over acts committed in the former Yugoslavia

after 1 January 1991 and is expected to be disestablished by

2007.19

One problem for this tribunal is that it was created under

UN Resolution 827 citing chapter 7 of the UN charter.20 The

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tribunal was created after the fact, and the government of the

former Yugoslavia had not agreed to be bound by this resolution. Additionally, the list of offenses that the tribunal has jurisdiction over is general rather than specific. Finally, the war

was a civil war involving Yugoslavia, Bosnia, and Serbia. Arguably, the courts of these nations should be the first to prosecute the offenders.

The International Criminal Tribunal for Rwanda has the same

problems. The tribunal was established after the alleged crimes

under UN authority and covers actions in a civil war. The civil

war in this case involved the Hutus and the Tutsis. One reason

the International Criminal Trial for Rwanda may have some additional legitimacy is that one alleged charge is genocide.

The history of war crimes tribunals is filled with examples of

arguments over jurisdiction, ex post facto issues, domestic

versus international authority, and supremacy of the international system to national courts. These were the issues at

Nuremberg; they continued through the former Yugoslavia

and Rwanda and remain contentious issues. In this environment, the ICC was envisioned to solve many of the most contentious issues.

1998 Rome Treaty

Because of the difficulties experienced in dealing with past

war crimes, a movement surfaced in the international community to establish a permanent international criminal court.

This movement is attributable to several factors: the aforementioned problems in prosecuting war crimes caused sentiment for a permanent solution to linger for quite some time,

the commission of atrocities in Rwanda and the former Yugoslavia gave strength to the movement, and the end of the

cold war changed international politics, which created a political climate favorable to the creation of a permanent international criminal court. This changed political climate consisted

of the lessening of the influence of the former Soviet Union and

a democratic president in the person of Bill Clinton, who supported the creation of the court as the leader of the world’s

only remaining superpower.

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The statute establishing the ICC was adopted at the Rome

conference on 17 July 1998. Article 126 of the treaty calls for

adoption when 60 countries sign the treaty, which occurred on

1 July 2002 with the signing by the 60th country.21 As of April

2004, 89 countries had signed the treaty.22 However, the United

States is not one of the countries, and the United States has

explicitly rejected the treaty and has informed the international

community that the treaty in its present form will not bind the

United States.23

The journey to the establishment of the ICC has been a protracted one, full of contentious debate. Delegates started working on the treaty in 1994, and it was four years before the treaty

was presented to the UN for approval. An additional four years

passed before the required 60 countries ratified the process.24

Part of the reason for these lengthy delays is directly attributable to the United States’ trying to influence the process.

The United States was one of the first countries to support the

creation of the ICC. However, the drafted statute failed to include several procedural safeguards that the United States felt

were important to protect its soldiers.25

The United States wanted a greater role for the Security Council (where the United States has a veto). The problem from the

United States’ perspective is that every country in the world

that ratifies the treaty (including potential enemies of the

United States) is eligible to nominate judges and prosecutors

to the court. The United States would have one voice among

many and would not enjoy as much influence as it does in the

Security Council. A cynical view of the United States’ position

is that it wants an ICC, but demands a veto over any of its actions. A more favorable view is that the United States is the

lone remaining world superpower, that it provides significant

funding to the United Nations, and that it provides the majority

of troops for peacekeeping operations and thus should enjoy

more of a voice in the process. The United States’ position is that

policy and court decisions should not be driven primarily by

small nations who do not provide troops for peacekeeping operations and are thus, as a practical matter, not subject to the ICC

provisions.26

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Another concern of the United States is that the court fails

to respect national sovereignty. The United States’ view is that

the court should operate only when a country fails to police its

own soldiers. The statute does not operate this way. The ICC

can exert jurisdiction virtually anywhere that the court (the independent prosecutor) itself thinks it has jurisdiction. Further,

the ICC can exert jurisdiction even when a national court has

acquitted an individual.

The last significant concern for the United States is what

constitutes a war crime under the ICC. The United States’ very

narrow view consisted of crimes against humanity, genocide,

and traditional war crimes covered under The Hague and

Geneva Conventions and other appropriate authorities. However, the statute also includes wars of aggression and, at one

time, in the process considered adopting a very broad range of

crimes for illegal activity. To make matters worse, the court itself largely defines the crimes over which the court has jurisdiction. This makes it a challenge to predict in advance how

the court might rule in a given case.

Notwithstanding the United States’ objections, how does the

court function? The treaty itself has 128 articles divided into 13

parts covering such areas as establishment of the court, jurisdiction, admissibility, and applicable law; general principles of

criminal law; compositions and administration of the court; investigation and prosecution; trial, penalties, appeal and revision;

international cooperation and judicial assistance; enforcement;

assembly of states parties; financing; and final clauses.27

The court is set up in three chambers that includes a pretrial branch, trial branch, and appeals division. In addition, the

ICC has an Office of the Presidency, Office of the Prosecutor, and

Registry Division. The treaty specifies that there be 18 judges.

Three judges (president, first vice president, and second vice

president) serve in the Office of the Presidency.28

The appeals division consists of the president and four other

judges. The judges serve their entire terms of office in the appeals division. The trial and pretrial divisions have a minimum

of six judges each. Teams of three judges then hear cases.

Judges in the trial and pretrial divisions serve for three years.

If their term has not yet expired, they move to another cham13

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ber. However, they do not move to the appeals division, and

they cannot participate in the same case as it moves through

the various divisions.29

The countries that are signatories to the treaty also nominate judges who are pulled from two broad categories. The

first category mandates that the judge must “have established

competence in criminal law and procedure, and the necessary

relevant experience whether as judge, prosecutor, advocate, or

in other similar capacity, in criminal proceedings.” The second

category requires that the judge “have established competence

in relevant areas of international law such as international

humanitarian law and the law of human rights, and extensive

experience in a professional legal capacity which is of relevance to the court.”30

The first category is made up largely of criminal lawyers.

Members of the second category do not have to be lawyers or

judges. They could acquire experience as members of a human

rights organization. The only stipulation is that the pretrial

and trial chamber must be made up predominantly of judges

with criminal trial experience, that not fewer than nine of the

18 judges must come from the first category, that not fewer than

five judges must come from the second category, and that not

more than two judges may come from the same country. Judges

are elected by secret ballot by members who are signatories to

the treaty. The 18 candidates with the most votes are elected

if they received at least two-thirds of the votes of the members

present. If there are not 18 candidates with a two-thirds majority elected on the first ballot, subsequent votes are held

until all 18 positions are filled. Judges serve for three-, six-, or

nine-year terms. The term of the initial judges is determined

by lot, therefore, one-third of the judges serve in each term.

Judges who serve a three-year term are eligible for reelection.

Judges who serve six- or nine-year terms are not eligible for

reelection. The president of the ICC determines which judges

serve on a full-time basis and which judges serve on a parttime basis.31

The election of prosecutors is similar. Each state that is a

party to the treaty may nominate one candidate. The prosecutor is the candidate who receives the most votes, provided that

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candidate receives a two-thirds majority. The prosecutor may

be assisted by one or more deputy prosecutors. For each

deputy prosecutor position, the prosecutor nominates three

candidates. The candidate with the most votes is elected, provided that candidate receives a two-thirds majority. Again, no

two prosecutors may be of the same nationality. Prosecutors

serve on a full-time basis for nine-year terms. They are not eligible for reelection.32

Implication for the War Fighter

This paper started with the question of whether US military

members could or would likely to be subject to the jurisdiction

of the ICC. The answer can be complex and defies a clear-cut

explanation, but there are some guiding principles. In part,

the answer depends on the framework of analysis. Looking at

the question from legal, political, and normative perspectives

can yield differing results.

Before engaging in this analysis, it is worth reviewing United

States’ practices that were raised earlier in this paper. The modern way of waging war differs somewhat from several of the

earlier examples. Today, the United States is much more sensitive to noncombatant casualties. The bombings of Hiroshima

and Nagasaki are not likely to be repeated in the near future.

Additionally, the US military now routinely trains and gives

greater emphasis to the LOAC. Atrocities such as those committed by Lieutenant Calley are not in the near future. If such

atrocities do occur, they likely will be isolated incidents and be

handled by the Uniform Code of Military Justice (UCMJ). Thus,

the United States probably will not engage in the worst abuses

that the ICC was established to deal with.

If US forces are vulnerable to prosecution, it will likely occur

for lesser war crimes or gray areas or for the actions of isolated

soldiers. The other way that US military personnel or political

leaders might be vulnerable to prosecution is for aggressive

war. Some scholars have argued that any war fought without

explicit UN backing is an aggressive war. They then argue that

Operation Allied Force and Operation Iraqi Freedom were aggressive wars.

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Assuming Operation Allied Force represents a typical US operation, is the United States legally liable to the ICC? The first

consideration is jurisdictional. The United States signed the

Rome Treaty on 31 December 2000, but on 6 May 2002, the

United States said to the UN,

This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on 17 July 1998, that the United

States does not intend to become a party to the treaty. Accordingly, the

United States has no legal obligations arising from its signature on 31

December 2000. The United States requests that its intention not to

become a party, as expressed in this letter, be reflected in the depository’s status relating to this treaty.33

However, two things may give the ICC jurisdiction over US

forces. The first is very clear. Operations that take place in

countries that have ratified the treaty are subject to ICC jurisdiction. If US forces engage in operations in foreign countries

that have ratified the treaty, like Afghanistan or Bosnia, then

they are subject to ICC jurisdiction. The second way that the

ICC could likely obtain jurisdiction is murkier. Once the treaty

is accepted by enough nations, it could be afforded the status

of customary international law. Exactly when a practice becomes customary international law is open to debate, but the

more countries that ratify the Rome Treaty, the more likely it

becomes that the ICC will be customary international law. The

problem from the US perspective is that whether or not something is customary international law would have to be litigated

in an international court. The only international court with jurisdiction is the ICC; therefore, the ICC would have to rule on

its own legality. The World Court in The Hague is an international court, but its jurisdiction is limited to disputes between

states rather than war crimes issues.

There is a third way that a nonsignatory country can become subject to ICC jurisdiction, but it only merits a passing

comment: a nonsignatory country can agree to ICC jurisdiction for a particular case.34 There may be at least one other way

a person from a state that is not a party to the treaty could become subject to the jurisdiction of the court. Under Article 15,

the prosecutor, with concurrence by the retrial chamber may

initiate investigations proprio motu or on his own initiative. If

the prosecutor having initiated such an investigation deter16

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mines that a crime that is within the jurisdiction of the court

has been committed, he or she can then present it to the court

for resolution. In short, the jurisdiction of the court is yet to

be determined.

The US government is well aware of the jurisdictional problems imposed by the Rome Treaty.35 Because of these concerns,

the United States sought and received a 12-month exemption

from ICC jurisdiction for all peacekeepers engaged under UN

authority. This exemption meant that for the period 1 July

2002 to 1 July 2003, the United States was not legally liable

to the ICC if it acted under UN resolutions.36 Thus, for most

operations, the United States is temporarily not subject to ICC

jurisdiction. Once the exemption expires, the United States

will be liable to ICC jurisdiction if the operation occurs in a

signatory country or the ICC becomes customary international

law. While the exemption is in place, the United States is

legally subject to ICC jurisdiction when it fails to receive UN

backing, such as in Operation Allied Force or Operation Iraqi

Freedom.

In addition to obtaining exemption from the ICC for all

peacekeepers engaged under UN authority, the United States

has decided to seek bilateral agreements with countries under

paragraph two of Article 98, “Cooperation with respect to waiver

of immunity and consent to surrender,” of the Rome Treaty.37

Essentially, this article prohibits the ICC from asking for assistance in the court’s business that would require the requested state to act inconsistently with its obligations under

international law or agreements unless the court first obtains

permission from the state affected. As part of these Article 98

agreements with the United States, countries also pledged not

to refer crimes covered by the treaty to the ICC without permission from the United States. 

The United States was obviously aware of the ICC implications for Operation Iraqi Freedom when it chose to engage in

the operation even though neither it nor Iraq was a party to

the Rome Treaty. There are two reasons for this. First, the

United States felt confident that none of its forces would commit war crimes, and, second, if an isolated event did occur, the

United States would handle it under the UCMJ. 

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Regardless, there is significant difference regarding the theoretical and legal question of jurisdiction and the practical

matter of enforcing that decision. Simply put, the ICC lacks

formal enforcement mechanisms. The ICC can only enforce its

decisions with the consent of the international community (perhaps the Security Council). Since the United States has veto

authority in the Security Council and is the largest, perhaps

only, remaining superpower, it is only bound by the ICC if it

agrees to be bound. The political answer then is that the

United States is not subject to ICC jurisdiction. The legal answer is open to debate.

Political decisions do have consequences. The United States

can thumb its nose at the ICC, but the price to be paid is world

influence and world resentment. It is much harder to form coalitions when other countries perceive the United States as being

above the law. Resentment occurs, and this could lead to increased terrorist attacks as anti-US rhetoric and propaganda

value of non-US acceptance of the ICC becomes an issue.

This leads to the last part of the analysis: normative. Should

the United States become subject to ICC jurisdiction? In one

sense, this is an easy question to answer. A system of laws is

only effective if all parties are treated equally. On this level,

every country, including the United States, should be bound

by the ICC.

This is easier said than done. As always, the devil is in the

details. The United States fears ICC jurisdiction because of

practical problems in implementing the treaty. Any signatory

country, including those engaging in an aggressive war can

refer charges to the ICC. Political prosecutions are a legitimate

concern. It would not be ethically defensible for the United

States to liberate a country and then be subject to prosecution

from the defeated enemy. On the other hand, is victor’s justice

under the guise of international law defensible? 

Another problem with the ICC is the lack of established

checks and balances. In essence, the ICC answers only to itself, and there is no way to ensure that judges are truly objective. While it is true that all human beings have biases and

nobody is ever truly objective, at least in the domestic court

analogy, the biases are more controllable. 

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Having said this, not all of the US objections are ethically

defensible. One of the objections is that the United States pays

more for peacekeeping operations and engages in them more

frequently and thus should have a greater say in prosecution

implementation. This turns objectivity on its head! The United

States is rightly concerned that it could be the victim of nonobjective judges. How then can we justify having a greater say?

The only way that political jurisdiction is ethically defensible

is if equality before the law is more than just a phrase. The

United States does not deserve a greater say. What it deserves

is a fair hearing from objective judges. Just because these objective judges come from smaller countries that do not take

part in peacekeeping operations does not necessarily diminish

their objectivity.

What does all this mean for the war fighter? Legally, whether

the United States is subject to ICC jurisdiction depends on the

circumstances. Politically, the United States does not fear the

ICC because we can defy it if we so choose. Ethically, we should

be subject to ICC jurisdiction but only once objectivity concerns

are solved. The bottom line for the war fighter is that as long as

the US government supports the actions of the war fighter, he or

she does not need to fear prosecution. When the United States

does not support the war-fighter’s conduct, the military member

is far more likely to be prosecuted in a US military court.

Conclusion

The objective of this project was to determine whether members of the United States Armed Forces would be subject to

prosecution by the ICC. By examining past history, we see that

United States Armed Forces’ members have committed atrocities that may fall under ICC jurisdiction. The fact remains

though that the United States has not ratified the stature and

claims not to be bound by the ICC, and this has created several problems with a number of America’s allies, especially

many in Europe.

The answer to the problem is legal, political, and moral.

From a legal perspective, the answer is that when the conditions of the statute are met, the United States is subject to ju19

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risdiction. This is precisely why the United States has worked

so hard for the UN to grant peacekeepers an exemption to the

ICC. This exemption gives the US refusal an air of legitimacy.

The political answer is that the political realist perspective

means that the United States as a superpower can refuse to be

bound. The ICC lacks any type of effective enforcement mechanism except consent of the states. Notwithstanding, the legal

and political issues, should the United States, as a sovereign

nation, submit itself to the judgment of the world community?

Here the issue is more complicated. Clearly, the United States

does not see itself as above the law or able to act unilaterally

in all cases. The simple answer is that the United States

should submit itself to judgment by the world community. In

the realist perspective, this happens every day through the instruments of national power. The only ethical justification that

can be given for refusal is that the system is so flawed that it

lacks due process and justice. This is exactly the argument

that the United States makes. However, in many cases, due

process and justice are in the eye of the beholder.

The bottom line for the US war fighter is that the United

States has the political strength to avoid ICC jurisdiction. The

United States does not want to rely on power and politics, so

it makes ethical arguments on why it should not be bound and

obtains Article 98 agreements (e.g., exemptions to ICC jurisdiction) or refuses to place its military members in peacekeeping operations where such exemptions are not in place. While

not everybody accepts the US ethical argument in favor of

these agreements, the fact is that they do exist. For the foreseeable future, and especially as long as the exemptions are

renewed by the UN Security Council, the United States will

only be bound by the ICC when it wants to be bound. The likelihood is this will never occur because the United States

prefers to prosecute its own people in its own courts. The US

position will always be that justice was done in the United

States. The ICC only has a role when sovereign countries refuse to prosecute their own nationals or the chief prosecutor

determines, with no appeal, that the country failed to adequately address the offense.

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Notes

1. Michael Walzer, Just and Unjust Wars, 3d ed. (New York: Basic Books,

2000), 5.

2. Ibid.

3. Quoted in Plato, “The Republic” in Paul Christopher, The Ethics of War

and Peace (Upper Saddle River, N.J.: Prentice Hall, 1994), 10.

4. Walzer, 33–34.

5. Paul Fussell, Wartime: Understanding and Behavior in the Second

World War (New York: Oxford University Press, 1989), 152.

6. Walzer, 312.

7. Ibid., 311.

8. Christopher, 146–49.

9. Justice Murphy wrote a stinging dissent of the Yamashita death sentence. See “The Yamashita Case” in Leon Friedman, The Law of War: A Documentary History (New York: Random House, 1972).

10. James Harder, “Military Morale Sinks to a New Low,” Insight on the

News, 27 November 2000, http://www.insightmag.com/news/2000/11/27/

Nation/Armed.Services.Military.Morale.Sinks.To.New.Low-208650.html.

11. Walzer, 4–6.

12. For additional information, see Andrew Ferguson, “The Last Battle of

the Civil War,” The Weekly Standard 8, no. 16 (30 December 2002).

13. Bradley F. Smith, The Road to Nuremberg: How the Allies Finally

Agreed to Try the Nazi Leaders Rather Than Summarily Shoot Them (New

York: Basic Books, 1981), 4.

14. Ibid., 45.

15. Ibid., 179.

16. Ibid., 51.

17. Ibid., 70.

18. James G. Apple, “Former U.S. Judge Presides at First International

War Crimes Tribunal Since Nuremberg; McDonald Heads Three-Judge Panel

in The Hague,” International Judicial Observer, 3 September 1996, 1. 

19. Ibid.

20. Ibid. 

21. Rome Statute of the (ICC), 60, http://www.un.org/law/icc.

22. Web site of the ICC, http://www.un.org/law/icc. See appendix.

23. “International Criminal Court,” 27 January 2003, http://www.global

issues.org.

24. James Crawford, “ILC Adopts a Statute for an International Criminal

Court,” American Journal of International Law, 99, no. 2 (April 1995): 404.

25. Capt Andrew S. Williams, “The Proposed International Criminal

Court: An Imminent Danger?” The Reporter Air Force Recurring Periodical 51-1,

27, no. 2 (June 2000): 4–5.

26. Ibid., 5–6.

27. Rome Statute of the International Criminal Court, 17.

28. Ibid.

29. Ibid., 17–19.

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30. Ibid., 18.

31. Ibid., 19.

32. Ibid., 21–22.

33. Web site of the ICC, http://www.un.org/law/icc.

34. Rome Statute of the ICC, 2, from http://www.un.org/law/icc.

35. For an in-depth discussion on this matter, see D. J. Scheffer, “The

United States and the International Criminal Court,” The American Journal

of International Law 93 (1999): 12–22.

36. The United Nations has extended this exemption.

37. As of the end of July 2003, more than 50 countries had signed US

impunity agreements (Article 98 agreements) with the United States. The

coalition for the ICC in an article dated 18 April 2003, entitled “US Bilateral

Immunity of So-called ‘Article 98’ agreements,” reported that “many governmental, legal and non-governmental experts” believe that the Article 98

agreements are contrary to international law and the Statute of Rome itself,

3 February 2004, http://www.globalpolicy.org/intljustice/icc/2003/0606

usbilaterals.htm.

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Bibliography

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8026 (19 June 1997).

Apple, James G. “Former U.S. Judge Presides at First International War Crimes Trial Since Nuremberg; McDonald

Heads Three-Judge Panel in The Hague.” International Judicial Observer, 3 September 1996. 

Christopher, Paul. The Ethics of War and Peace: An Introduction to Legal and Moral Issues. Upper Saddle River, N.J.:

Prentice Hall, 1999.

Crawford, James. “The ILC Adopts a Statute for an International Criminal Court.” The American Journal of International Law 89 (1995).

Department of the Army Field Manual (FM) 27-10. The Law of

Land Warfare. July 1956.

Drinan, Robert F. “U.S. Rejection of Court Defies Law, Logic

and Morality.” National Catholic Reporter, 19 July 2002.

Fussell, Paul. Wartime: Understanding and Behavior in the Second World War. New York: Oxford University Press, 1989. 

Grier, Peter. “Disorder in the Court.” Air Force Magazine (October 2002).

Greenberg, Michael D. “Creating an International Criminal

Court.” Boston University International Law Journal 10, no.

1 (Spring 1992).

Hall, Christopher Keith. “The First Proposal for a Permanent

International Criminal Court.” International Review of the

Red Cross, no. 322 (March 1998).

———. “The First Two Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court.”

The American Journal of International Law 91 (1997).

———. “The Third and Fourth Sessions of the UN Preparatory

Committee on the Establishment of an International Criminal Court.” The American Journal of International Law 92

(1998).

Harder, James. “Military Morale Sinks to a New Low.” Insight on

the News, 27 November 2000.

Kellogg, David E. “Jus Post Bellum: The Importance of War

Crimes Trials.” Parameters (Autumn 2002).

23
Nanda, Ned P. “The Establishment of a Permanent International

Criminal Court: Challenges Ahead.” Human Rights Quarterly

20 (1998).

O’Sullivan, John. “One Man’s War Criminal.” National Review,

19 February 2001.

Pound, Edward T. “Creating a Code of Justice.” US News and

World Report, 16 December 2002.

Robertson, Geoffrey. “Not an Open and Shut Case: The Indictment Against Milosevic Raises some Complex Questions of

International Law.” Newsweek 133, Issue 23 (7 June 1999). 

Smith, Bradley F. The Road to Nuremberg: How the Allies Finally

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Them. New York: Basic Books, 1981.

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The International Criminal Court:

A Case of the United States Having

Its Cake and Eating It Too?

Steven D. Dubriske

Major, USAF

We live in a golden age of impunity in which a person stands

a better chance of being prosecuted for killing one person

than for killing 100,000 or a million people.

—Michael P. Scharf

On 1 July 2002, the long-standing dream of many in the UN

to create a permanent international tribunal to address atrocities against mankind became a reality when the ICC opened

for business. ICC supporters have hailed the court as the

missing link in the international legal system as it provides a

permanent mechanism to hold individuals—not nation-states—

responsible for acts of genocide and egregious violations of

human rights.1 By having a permanent mechanism to address

individual culpability, ICC supporters reason that future barbarians in the image of Pol Pot or Slobodan Milosevic will be

deterred from committing atrocities out of fear of ICC prosecution. Provided deterrence fails, ICC supporters believe the permanent tribunal will finally ensure that all individuals who

commit these unthinkable acts against mankind will be brought

to justice swiftly and efficiently.

Although a long-time supporter of a permanent international

tribunal to address human rights atrocities, the United States

was one of only a handful of countries to oppose the creation

of the ICC in its current form. While the United States lodged

a number of procedural objections and due process concerns

regarding the creation of the ICC, its foremost complaint

stemmed from a fear that the ICC would be used as a political

weapon to unfairly target US political leaders and military personnel for actions taken in the interest of national security.

25
This research paper examines the legal framework of the ICC

to determine whether the tribunal does put policy makers and

military personnel at risk for politically motivated prosecution

as claimed by the United States. Additionally, this paper

briefly examines the potential foreign policy impact caused by

US rejection of such international bodies as the ICC. The second

part of this paper provides a brief historical examination of the

ICC leading to its creation in July 2002. The third part then

examines the in-depth involvement of the United States in

formulating many of the substantive provisions of the current

ICC. The fourth part addresses the question of whether US

policy makers and military personnel are actually at risk for

politically motivated prosecution because of the current ICC

process. This examination includes a discussion of some of

the specific provisions that led to the United States’ withdrawing its initial support of the ICC. The next part looks at the

current position of the United States to examine whether modifications to the current treaty language will lead to US support

for the tribunal. The last part looks at the possible foreign policy

implications caused by the rejection of the ICC. As the United

States continues its attempt to employ international coalitions

to address global diplomatic, economic, and security problems,

the perception of other countries that the United States “will

only play when the rules are in its favor” may very well have

an adverse impact on its future standing in the international

community.

History of the ICC

On 9 December 1948, after the completion of the Nuremberg

and Tokyo War crimes tribunals, the UN recognized the need for

a permanent international tribunal to prosecute such war atrocities as genocide.2 Because of the involvement of the International Law Commission and many United Nations member

states including the United States, a permanent international

court to address war atrocities was very close to becoming a

reality in the early 1950s.3 However, the Cold War and its related political consequences caused the international criminal

tribunal to be placed on the UN’s back burner.

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In December 1989, at the request of Trinidad and Tobago,

the UN resurrected the idea of a permanent international

criminal tribunal.4 As had been done in the early 1950s, the

International Law Commission was tasked by the UN to submit a draft statute to establish an international criminal tribunal.5 While the International Law Commission was working

on a draft statute, the atrocities in the Balkans (former Yugoslavia) and Rwanda provided an additional incentive to create

a permanent court to address human rights atrocities. The International Law Commission responded to the tasking in 1994

when it adopted a draft statute at its 46th session and recommended that an international conference of plenipotentiaries

be convened to paper the draft statute and to conclude a convention on the establishment of an ICC.6

In light of the draft statute from the International Law Commission, the UN General Assembly established an ad hoc committee of UN member states to examine the substantive and

administrative issues with the International Law Commission’s proposal.7 After the ad hoc committee filed a report favorable to the creation of an ICC, the General Assembly created a Preparatory Committee to further refine the draft

statute submitted by the International Law Commission.8

Specifically, the General Assembly charged the Preparatory

Committee to

discuss further the major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission and, taking into account the different views expressed during

the meetings, to draft texts, with a view to preparing a widely acceptable consolidated text of a convention for an ICC as a next step towards

consideration by a conference of plenipotentiaries, and also decided

that the work of the Preparatory Committee should be based on the

draft statute prepared by the International Law Commission and

should take into account the report of the ad hoc committee and the

written comments submitted by States. . . .9

On 3 April 1998, after a number of conferences, the Preparatory Committee completed a draft convention on the establishment of an ICC.10 Thereafter, the UN Diplomatic Conference of

Plenipotentiaries on the establishment of an ICC held meetings from 15 June until 17 July 1998 in Rome, Italy. The conference was attended by 160 nation-states, including the United

States. In addition to UN member states, observers from other

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international bodies and nongovernmental organizations were

also invited to participate in the Rome Conference.

The stated purpose of the diplomatic conference was to approve a convention for the establishment of an ICC.11 This

conference goal easily could be viewed as a lofty goal considering the conference was attempting to incorporate the individual political interests of approximately 160 nation-states.

Surprisingly, however, a draft statute12 did emerge during the

early morning hours of 17 July 1998, the last day of the diplomatic conference.13 The statute set out the ICC’s jurisdiction

and judicial structure, as well as the basic elements of most

offenses. This statute, hastily finalized by a small number of

conference representatives, was presented to the conference

delegates as a final draft statute.

Because the United States, in particular, objected to numerous provisions in the last-minute draft statute, the US delegation worked on the last day of the conference to gain support for modifications to the final draft that may have allowed

the United States to support the final document produced by

the Rome Conference.14 When it was readily apparent that further modifications to the final statute would not be considered

before the end of the conference, the United States requested

a plenary session vote on the statute. Contrary to the hopes of

the United States, the Rome Statute of the ICC (also referred

to as the Treaty of Rome) was adopted by a vote of 120 countries in favor, seven against, and 21 abstaining.15 Although a

vote was not recorded, observers noted that the United States

voted against the Rome Statute along with China, Israel, Iraq,

Libya, Qatar, and Yemen.16

Pursuant to the terms of the Rome Statute as adopted, the

ICC would become effective on the first day of the month, 60

days after the date that the 60th country to the Rome Statute

ratified or accepted the document.17 In preparation for the ICC

becoming operational, the Rome Statute provided that a

Preparatory Commission for the ICC would be established to

prepare proposals that addressed the working details of the

ICC.18 These working details consisted of a number of substantive issues such as rules of evidence and procedure, elements of crimes, rules of procedure for the Assembly of State

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Parties,19 and financial regulations.20 The commission was also

charged with developing proposals for the crime of aggression,

including crafting a definition of the crime and developing its

elements.21

The Preparatory Commission began its meetings on 16 February 1999.22 During its fifth session on 30 June 2000, the

commission submitted a final draft text for the rules of procedure and evidence, and the draft elements of crimes in accordance with the compliance date set by the Rome Statute.23 The

commission submitted its final report after completion of its

10th session on 12 July 2002, noting that it had completed its

mandate as directed by the Rome Statute.24

On 11 April 2002, as the Preparatory Commission continued

to finalize the substantive and procedural issues for the ICC,

the Rome Statute was ratified by its 60th signatory.25 Thus, on

1 July 2002, the ICC came into existence a half-century after

the initial United Nations proposal. Pursuant to the terms of

the Rome Statute, the ICC was given jurisdiction over such

crimes of concerns to the international community as genocide, crimes against humanity, war crimes, and crimes of aggression.

Although the requisite number of treaty ratifications allowed

the ICC to stand up on 1 July 2002, the lack of rules and procedures, facilities, and personnel ensured that the ICC would

remain a work in progress for some time. With that said, however, the ICC has taken great strides in moving towards a

functional court. For example, the Assembly of State Parties to

the Rome Statute of the ICC26 (hereafter Assembly) held its

first session 3–10 September 2002 to approve the draft rules

of procedure, rules of evidence, and elements of crimes as previously submitted by the Preparatory Commission.27 Subsequently, during its sessions in February 2003, the assembly

successfully elected 18 sitting judges for the ICC. The ICC has

also secured temporary facilities and broken ground on its own

facility at The Hague, Netherlands, in accordance with the Rome

Statute. The assembly hopes that this new facility will be completed and ready for occupancy between 2007 and 2009.28

Because of the progress made in establishing a working tribunal, an inaugural ceremony for the ICC occurred on 11

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March 2003 at The Hague.29 The purpose of the ceremony was

to allow the previously elected judges to take their oaths of office. With these key personnel in place, the Assembly believed

the remaining principal officers of the ICC, the registrar and

the prosecutor, would be elected soon. Provided these key officers were elected as planned, the assembly envisioned that the

ICC would be a functional tribunal by the end of 2003.30

Involvement of the United States

There can be no question that the United States has long

supported using the rule of law to address such human rights

atrocities as genocide and crimes against humanity. At the

Nuremberg and Tokyo tribunals after World War II, the United

States was instrumental in ensuring that adequate legal

process—and not revenge—was the guiding principle of justice.31

The United States’ chief prosecutor to the Nuremberg tribunal,

Supreme Court Justice Robert H. Jackson, eloquently discussed this notion of justice when he provided his opening

statement:

The privilege of opening the first trial in history for crimes against the

peace of the world imposes a grave responsibility. The wrongs, which

we seek to condemn and punish have been so calculated, so malignant

and so devastating, that civilization cannot tolerate their being ignored

because it cannot survive their being repeated. That four great nations,

flushed with the victory and stung with the injury stay the hand of

vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power ever

has paid to Reason.32

Because of its support for the rule of law, the United States

was a primary supporter of the UN proposal after World War II

for a permanent international criminal tribunal. While the cold

war prevented the UN from following through on its initial proposal, this delay did not reduce US support for a permanent

tribunal to address human rights atrocities committed during

conflict. Thus, in the early 1990s when the UN again raised

this issue, the government of the United States actively supported the establishment of a permanent international court to

address human rights atrocities.33

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The support for a permanent international tribunal emanated from both the legislative and executive branches of the

US government.34 In addition to the significant political, administrative, and financial support provided to the ad hoc tribunals in the former Yugoslavia and Rwanda, the US Congress publicly supported a permanent tribunal. For example,

in 1993, the US Senate published findings that the establishment of an ICC with jurisdiction over crimes of an international character would greatly strengthen the international

rule of law and serve the interests of the United States and the

world community.35 This support from the US Senate culminated with the passage of Senate Joint Resolution 32, which

called for the United States to support efforts of the UN to establish an ICC.36

The House of Representatives, likewise, provided support to

the call for a permanent international court. In July 1997, various members of the House of Representatives introduced a joint

resolution calling for the United States to support and fully

participate in the negotiations at the United Nations to establish a permanent ICC.37 One of the sponsors of the resolution,

Cong. Patrick Kennedy, noted that the resolution had also garnered the support of the Clinton administration, the Department of Defense, and the Department of State.38

Similar to the legislative branch, the Executive Branch of the

United States (US) government was vocal in its support for a permanent criminal tribunal. In fact, President Clinton made six

public statements prior to the Rome Conference in 1998 in support of a permanent international court.39 Because of this support, the Clinton administration began in early 1993 to review

the proposal for a permanent international court that had been

under consideration by the International Law Commission at

the request of the United Nations. In fact, the United States

was actively involved in shaping the International Law Commission’s draft statute for a permanent tribunal.40 Although the

draft statute was not identical to the position proposed by the

Clinton administration, it was the administration’s belief that

continued negotiations eventually would advance the majority

of US concerns.41

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With this hope, the Clinton administration began its interaction with the Preparatory Committee that had been established by the UN prior to the Rome Conference. As was done

with the International Law Commission, the US delegation engaged the Preparatory Committee on a number of issues that

were of critical importance to the United States. In particular,

the United States strongly believed that the United Nations Security Council (UNSC) should retain some significant control

over the referral of cases to the new tribunal.42 The United

States also believed that it was important for the Preparatory

Committee to define precisely the types of crimes that would

be subjected to the new tribunal’s jurisdiction.43

As early as 1995, however, it became clear that the Clinton

administration had some serious concerns with the proposed

structure of the ICC. In a 15 October 1995 speech at the University of Connecticut, President Clinton first hinted that the

support of the United States for the proposed international tribunal was not unconditional.

By successfully prosecuting war criminals in the former Yugoslavia

and Rwanda, we can send a strong signal to those who would use the

cover of war to commit terrible atrocities that they cannot escape the

consequences of such actions. And a signal will come across even more

loudly and clearly if nations all around the world who value freedom

and tolerance establish a permanent international court to prosecute,

with the support of the UNSC, serious violations of humanitarian law.

This, it seems to me, would be the ultimate tribute to the people who

did such important work at Nuremberg, a permanent international

court to prosecute such violations. And we are working today at the

United Nations to see whether it can be done.44

As the Preparatory Committee closed in preparation for the

Rome Conference in July 1998, a number of unresolved issues

still faced the United States on how the proposed ICC would

function. The inability to obtain widespread support for a significant referral role of the Security Council was especially

troubling for the United States delegation. Amb. David J.

Scheffer highlighted this specific concern during an address at

The Hague on 19 September 1997. In referencing the referral

process for cases to the tribunal prosecutor, Ambassador

Scheffer provided the following warning:

We are, however, at a crossroads in the UN talks. Governments must

make maximum efforts over the next eight months to reach agreement

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on as many as possible of the remaining issues. Otherwise, we risk

going to Rome in June of next year for a diplomatic conference with a

deeply flawed document, weighed down with brackets that a single session, even if it is six weeks long, simply will not overcome.45

On the eve of the Rome Conference, however, the US delegation

believed it could still develop an ICC that would meet its requirements. However, the United States made it clear to the attendees of the Rome Conference that the United States would

not sacrifice its national interest in pursuit of an international

tribunal. In a press release three days before the Rome Conference, the State Department publicly stated the US position on

the establishment of a permanent ICC.

From 15 June through 17 July, governments will gather in Rome for the

United Nations Diplomatic Conference on the establishment of an ICC

(ICC). The United States supports the creation of a properly-constituted

ICC that will promote justice and deter those who would commit genocide, war crimes, and crimes against humanity.

But creation of the court will not take place in a vacuum. We must distinguish carefully between the ideal of an ICC and the reality of the

world today. Negotiating the court’s establishment should not ignore

existing institutions that can support the court’s goals or vexing problems that could cause its politicalization. The treaty requires a balanced and realistic approach that will permit both the pursuit of justice and the pursuit of international security. We must be careful to

guard against the creation of an ICC that politically-motivated states

could manipulate to challenge the actions of responsible governments

by targeting their military and civilian personnel for criminal investigation and prosecution.

The Clinton administration supports the creation of a strong, effective,

and properly constituted court. However, our desire to support the

process does not dilute our determination to design a document that

reflects a variety of US concerns, including the role of the UN Security

Council, deferral of capable national legal systems, jurisdiction, elements of offenses, rules of evidence, and criminal procedure. We remain hopeful that governments will resolve their remaining differences

and that the conference will produce a statute for the court that the international community, including the United States, can embrace.46

Thus, while the US support for a permanent ICC appeared to

some to be “strong and resolute,”47 the unresolved issues

clearly posed significant obstacles for the US delegation at the

Rome Conference.48

The US delegation successfully remedied many of the concerns it brought to the Rome Conference. For example, the

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delegation ensured that the crimes subject to the court’s jurisdiction were appropriately defined in accordance with customary international law.49 The United States also negotiated

the provisions in the final treaty that ensured specific crimes

against women (e.g., rape, forced pregnancy) were included as

crimes against humanity.50 Moreover, the Rome Conference also

accepted the US proposal that the elements of proof and rules

of evidence and procedure should be approved by the Assembly of State Parties, rather than the tribunal judges.51

The US delegation also was able to ensure that the court’s

jurisdiction covered atrocities occurring during internal conflict.52 The ad hoc tribunals in the former Yugoslavia and

Rwanda had shown that internal conflicts also generate the

types of atrocities subject to the court’s jurisdiction. The delegation was also successful in ensuring a number of general

criminal law principles associated with war crimes prosecutions were included in the Rome Statute. These principles, including command responsibility, superior orders defense, and

defense of mission-essential property, helped to ensure the

draft treaty arose to the level of justice generally expected in

United States courts.53

In addition to these provisions, US negotiators ensured that

defendants before the court were provided with almost all of

the due process rights afforded by the US Constitution.54 For

example, defendants before the ICC were provided with a presumption of innocence,55 privilege against self-incrimination,56

right to counsel,57 right to a speedy trial,58 and right to confront

witnesses.59 Additionally, the delegation successfully negotiated provisions in the final treaty that ensured the protection

of national security information brought before the court.60

This issue had been a key concern for the US delegation to resolve at Rome.61

While these accomplishments were significant, the final treaty

submitted at the end of the Rome Conference failed to gain US

support. While the US delegation levied a number of specific

objections to the statute, the primary objections appeared to

stem from sovereignty and national security concerns.62 The

lead negotiator, Ambassador Scheffer, later noted these concerns when he stated:

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The US delegation was not prepared at any time during the Rome Conference to accept a treaty text that represented a political compromise

on fundamental issues of international criminal law and international

peace and security. We could not negotiate as if certain risks could be

easily dismissed or certain procedures of the permanent court would

be infallible. We could not bargain away our security or our faith in

basic principles of international law even if our closest allies reached

their own level of satisfaction with the final treaty text. The United

States made compromises throughout the Rome process, but we always emphasized that the issue of jurisdiction had to be resolved satisfactorily or else the entire treaty and the integrity of the court would

be imperiled.63

However, even after the Rome Statute was approved, the

United States continued to work with the Preparatory Commission in hopes of developing a fair and realistic international court.64 This hope was discussed in a 1999 article written by Ambassador Scheffer:

While we firmly believe that the true intent of national governments

cannot be that which now appears reflected in a few key provisions of

the Rome treaty, the political will remains within the Clinton administration to support a treaty that is fairly and realistically constituted.

On December 8, 1998, the United States joined a consensus in the UN

General Assembly to adopt a resolution that authorizes the work of the

Preparatory Commission in 1999. The next step for the United States

will be to discuss with other governments our fundamental concerns

about the Rome treaty, many of which have been identified in this report. We believe that these and other problems concerning the Rome

treaty are solvable. The United States remains strongly committed to

the achievement of international justice. We hope developments will

unfold in the future so that the considerable support that the United

States could bring to a properly constituted international criminal

court can be realized.65

On 31 December 2001, the date the Rome Statute closed for

signatures,66 the US delegation had yet to remedy the concerns

raised at the Rome Conference. Faced with the deadline for

signature, President Clinton signed the Rome Statute on behalf of the United States on that date. While some believed this

action was nothing more than a cheap parting shot at the incoming Bush administration,67 President Clinton noted that

his signature was only given to ensure the United States could

continue to work with the other signatories to the Rome

Statute to develop a permanent international court that the

United States could support.68 President Clinton made it very

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clear, however, that his signature in no way invalidated the US

concerns that the Rome Statute contained significant flaws.69

On 11 April 2002, the Rome Statute was ratified by its 60th

signatory. While the United States had made some improvements to the Rome Statute during the Preparatory Commission meetings, the primary objections developed during the

Rome Conference remained when the Rome Statute entered

into force. Faced with the fact that the ICC would become effective on 1 July 2002, the Bush administration provided the

secretary general of the United Nations with written notice on

6 May 2002 that the United States was withdrawing its signature from the Rome Statute.70 In taking this action, the Bush

administration wanted to remove any unwarranted expectations that the United States would be actively involved with

the ICC once it became effective.71

Validity of United States Position

The United States, throughout the ICC negotiations, raised

a number of relevant and credible objections to the terms of

the Rome Statute. Some of these objections, such as providing

ICC defendants with due process protections, appear to have

been worked out to the general satisfaction of the United States

during the negotiations leading up to the ICC becoming a

functioning international body.72 Many other objections, however, remain unresolved. For example, the Rome Statute restricts nation-states from attaching reservations to the underlying treaty.73 This restriction arguably violates the US

Constitution as the Senate is given the power to attach reservations to all treaties joined by the United States.74

While all of the objections raised by the US government are

important to consider, one primary objection has continued to

be raised throughout the ICC negotiations. Specifically, the

United States believes that the Rome Statute creates a process

that will subject US civilian leaders and military personnel to

politically motivated prosecutions for actions taken to protect

US interests and its national security.75 The United States

holds this belief because the process set up by the Rome

Statute generally fails to make the ICC prosecutor accountable

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to the UN or its member states for official actions taken in the

name of the ICC.

This reasoning for rejecting the ICC has been labeled by at

least one commentator as “prudence, paranoia, or extreme miscalculation.”76 Based on an analysis of the terms of the Rome

Statute and a review of recent history, US concern on this

issue should be labeled as prudence. While it is unlikely that

US personnel will actually be prosecuted by the ICC due to the

inherent protections built into the Rome Statute, there is a

substantial risk that politically motivated charges will result in

unnecessary investigations by the ICC prosecutor against US

political leaders and military personnel. These investigations,

although doubtful to ever result in a trial, will run a significant

risk of negatively impacting the international standing of the

United States. Moreover, although prosecution is unlikely,

even proponents of the ICC cannot state with certainty that

the tribunal will not become a forum to remedy a foreign policy vendetta.77 Only time will tell.78

US concern on this issue stems from the creation of a proprio motu or self-initiating prosecutor.79 The prosecutor, pursuant to the terms of the Rome Statute, can initiate investigations without a referral from either a state party to the Rome

Statute or the UNSC.80 Instead, the prosecutor can begin an

investigation on his or her own volition. Additionally, the prosecutor can act upon complaints or information tendered by

nonparties to the Rome Statute, including nongovernmental

organizations, intergovernmental bodies, or even individual

citizens.81

Because of the freedom inherent in the Rome Statute, the

ICC prosecutor remains largely unaccountable to either the

assembly of state parties or the UN General Assembly for his

or her actions.82 The United States objected to this unconstrained power as it lacked the checks and balances found

within the democratic system of the United States.83 Unlike

US judicial systems that hold the prosecutor accountable for

his or her actions to another political branch of state or federal government, the proprio motu prosecutor is in reality answerable to no other state or institution other than the ICC itself.84

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In rejecting the Rome Statute on this basis, the United

States argued that an unconstrained prosecutor would result

in prosecutions being based on political agendas, not on evidence and neutral prosecutorial judgment.85 In his testimony

before the US Senate, Ambassador Scheffer explained his concerns about the potential politicalization of the ICC process.

The prosecutor undoubtedly is going to have to become not only the receiver of an enormous amount of information in this capacity, he will

have to decide, and he will have to make judgments as to what he pursues and what he does not pursue for investigative purposes. In the

end, those kinds of judgments by the prosecutor will inevitably be political judgments because he is going to have to say no to a lot of complaints, a lot of individuals, a lot of organizations that believe very

strongly that crimes have been committed, but he is going to have to

say no to them. When he says no to them and yes to others and he is

deluged with these, he may find that he ends up making some political

decisions.86

The United States was concerned with potential politicalization of the ICC because of its unique position in the foreign

policy arena. The United States is engaged in various foreign

policy missions (e.g., peacekeeping or humanitarian) in almost

100 countries around the world at any given time.87 Because

of the United States’ political, economic, and military strength,

and its willingness to deploy personnel around the world in

support of its foreign policy goals, it is often difficult for organizations or other nation-states to directly influence US policy.

However, the ICC, with its unconstrained prosecutor, provides

an organization or nation-state with a mechanism to attack or

frustrate US foreign policy by holding at risk those policy makers and military personnel who are used to implement that

policy.88

The ICC will especially provide opponents of US foreign policy with the ability to influence employment of the US military

forces. Because the power of the US military is markedly superior to other countries, the ability to influence US employment of its military forces is virtually nonexistent. However,

the ICC provides such a mechanism. As one commentator

noted,

When frustrated by an ability to influence US foreign policy directly,

some may be inclined to impact it indirectly by targeting those who

make and implement that policy. The military missions of our current

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era are markedly unlike the “traditional” cold-war scenarios of the past.

Today, the US military finds itself involved in a complex mixture of

peacekeeping activities, humanitarian and disaster assistance missions, counterterrorism and counterproliferation missions. Each is

unique and often carries significant political “baggage” in an increasingly fractious world and witnesses the situations in Kosovo and Iraq,

and the conflicts raging in Africa. In these circumstances, the military

is often the instrument of first resort for policy makers. An ill-constituted

ICC with the authority to make the final determination as to which

cases will be investigated or come before it invites the use of the court

for political mischief. Those who would deny the possibility—even likelihood—of such ill-intended referrals overlook the natural trajectory of

emotions stirred by the use of armed force.89

In response to its concerns about politicalized prosecutions,

the United States unsuccessfully proposed prior to the Rome

Conference that the UNSC or a state party to the treaty must

first refer an overall situation to the office of the prosecutor before a case is opened by the ICC.90 Once a general situation had

been referred, for example, the Rwandan massacres, the prosecutor would be free to investigate and prosecute the allegations

without any external interference.91 As noted by Ambassador

Scheffer during testimony before the US Senate, the United

States believed this referral process removed any risk of political

prosecutions as the UNSC, unlike the proprio motu prosecutor,

was accountable to its members.

The value of having a government to refer it or for the Security Council to refer it is that they are accountable to somebody.

They are accountable either to their people, their populace, for

doing so, or the Security Council is accountable to the UN system. We believe that the fundamental principle of accountability should be at the core of referrals to this court.92

Proponents of the Rome Statute, however, argued the United

States’ proposal to tie the Security Council to the referral process

did more to politicalize the ICC than did the proprio motu prosecutor. They argue that the Security Council is nothing more

than a political body that would interject political questions

into the referral process.93 The proprio motu prosecutor system,

on the other hand, would be less susceptible to political pressure

from individual countries as it would operate outside of a domestic political setting and would be staffed by international

personnel from a variety of countries and judicial systems.94

These protections, proponents argue, will ensure that irrespon39

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sible states will not be able to misuse the prosecutorial process

for political purposes.95

Moreover, proponents of the ICC believe that other protections in the Rome Statute will ensure that political prosecutions do not result from the ICC process. For example, ICC

supporters argue that the requirement for the prosecutor to

gain investigatory approval from the Pretrial Chamber of the

ICC will ensure that rogue prosecutors, nongovernmental organizations, or nation-states will not use the ICC for political

retribution. While the prosecutor can initiate an investigation,

Article 15 of the Rome Statute requires the prosecutor to seek

authorization from the Pretrial Chamber when the prosecutor

believes there exists a reasonable basis to continue the investigation.96 It is only after two of three judges of the Pretrial

Chamber approve the prosecutor’s request that the investigation can continue.97 ICC supporters argue this second level of

review by the judicial branch will ensure that the ICC is not

used for political prosecutions.

This review process, although important, does little to minimize the risk that the ICC will be used to investigate or prosecute

spurious allegations. Instead of having one individual to win

over, organizations and nation-states that are intent to misuse

the ICC will only have to sway two additional individuals to invoke the wrath of the ICC. These three individuals, although

elected by the assembly of state parties to the Rome Statute,

are all subject to little direct oversight. In fact, it could be argued

that the only control by the ICC member states is the authority

to remove a prosecutor or judge.98 This ability is limited, however, to only those cases in which there is a finding of serious

misconduct or serious breach of duties.99 Because it will be

difficult to prove political motives for an investigation absent a

public admission from the prosecutor or judge, this oversight

by the assembly of state parties provides little protection to US

policy makers and military personnel.

ICC supporters also point towards the principle of complementarity as evidence dispelling the US concerns. The principle of complementarity recognizes that ICC jurisdiction should

be secondary or complementary to the national criminal jurisdiction of nation states.100 Thus, the ICC will only act as an al40

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ternative forum to address atrocities when independent and

effective judicial systems are not available or fail.101 Provided

a national criminal jurisdiction is functioning effectively and

handling a complaint also before the ICC, the ICC will defer its

investigation in lieu of the national criminal judicial system.102

This protection also does little to ensure that US policy

makers and military personnel are insulated from political

attack. First, the principle will unnecessarily cause the United

States to investigate the legality or appropriateness of a military action that it has already deemed to be valid.103 For example, provided a complaint was filed with the ICC, the United

States would have to investigate and justify every decision regarding military necessity or proportionality in combat.

Second, similar to the discussion regarding the review by the

Pretrial Chamber, the finding that a national criminal justice

system is investigating an allegation before the ICC is subject

to being overturned by two judges in the Pretrial Chamber.

Thus, if two judges believe that the United States’ handling of

a complaint was not sufficient to meet the standards set out

in the Rome Statute, the prosecutor can proceed with his investigation and prosecution.104 As the standard for case admissibility105 is left to the interpretation of the judges hearing the

case, the principle of complementarity alone fails to provide sufficient protection to US policy makers and military personnel.

Proponents of the ICC also hold out the limited nature of the

offenses within the jurisdiction of the court as a solution to the

US concerns. They believe that the crimes defined by the

statute—genocide, crimes against humanity, and war crimes—

require such a high threshold for violations that the isolated act

by a policy maker or military member will not give rise to the

jurisdiction of the ICC.106 For example, a violation of crimes

against humanity requires the person commit the act as part of

a widespread or systematic attack against a civilian population.107 As an isolated act by a US representative will not meet

this element of the crime, prosecution by the ICC, proponents

argue, could not follow.

With regard to the core crimes within the ICC’s jurisdiction,

the argument above is supportable. Because of the early work

by members of the US delegation to the Preparatory Commission

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and Rome Conference, the crimes defined by the Rome Statute

ensure that isolated criminal acts are not subjected to the ICC

process.108 These well-defined crimes undoubtedly took the

appropriate steps in remedying US concerns.

However, the Rome Statute also allows the ICC to gain jurisdiction over the crime of aggression.109 This crime was not

defined during the Rome Conference. Instead, the decision was

deferred to allow the assembly of state parties to craft an appropriate definition for the crime.110 Once the crime of aggression

is defined, the ICC’s jurisdiction will be extended pursuant to

the terms of the Rome Statute.111

This open-ended arrangement was a concern that the United

States had voiced early during the Preparatory Commission

meetings.112 The United States and other countries had long

argued that the crime of aggression for individuals had not

been defined under customary international law.113 The United

States also had advocated that any determination of aggression had to be linked to the UNSC, as the Security Council is

responsible for peace and security under Article VII of the United

Nations Charter.114 Because a definition was not developed during the Rome Conference, the final definition of aggression could

be unlimited, broadly covering any use of military force or economic sanctions.115 As the definition eventually developed by

the Assembly of State Parties will become effective once seveneighths of the member states complete ratification, the United

States could likely be at the mercy of the other countries that

fail to share the US foreign policy and national security interests.116

The potential for a politically motivated definition of aggression

is significant. For example, one of the definitions proposed by

the Preparatory Committee would find a person commits a crime

of aggression when, “being in a position effectively to exercise

control over or to direct the political or military action of a

State, that person intentionally and knowingly orders or participates actively in the planning, preparation, initiation or execution of an act of aggression which, by its character, gravity

and scale, constitutes a flagrant violation of the Charter of the

United Nations.”117 As previous definitions of aggression by

the UN General Assembly have defined the term as the use of

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armed force by a state against the sovereignty, territorial integrity, or political independence of another state, or in any

other manner inconsistent with the charter of the UN, it is arguable that any use of armed forces to protect national security interests could result in political or military leaders being

in violation of the Rome Statute.118 Although some of the discussion by the Assembly of State Parties has centered on the

need to involve the UNSC in the initial determination of

whether the use of force amounts to aggression, there are no

guarantees that a restricted definition will find its way into the

ICC structure.119

The recent conflict within the UN over the disarming of Iraq

provides a cogent example of the possible dangers facing the

United States if a broad definition of aggression is added to the

ICC’s jurisdiction in the future.120 The United States has opined

that previous UNSC resolutions provide the United States with

the necessary authority to forcibly disarm Iraq.121 As the United

States has now employed military force against Iraq, a member

of the ICC (e.g., France) opposed to the action could claim the

United States engaged in the crime of aggression by using military force without specific UN authorization. Based on the confrontational diplomacy that occurred within the UN over the disarmament of Iraq and the meaning of previous resolutions, the

hypothetical outcome discussed above is not beyond the realm of

possibility.122

US concerns over the definition of aggression is reinforced

by at least one definition in the Rome Statute that reflects

political motivations. Specifically, the definition of war crimes

within the Rome Statute includes the crime of occupation of

territory.123 There is little question that proponents of this

crime offered the definition in response to actions by the government of Israel.124

The United States argued that the crime of occupation similar to the crime of aggression was not sufficiently recognized

by customary international law to be included in the Rome

Statute.125 With this position known, however, 120 countries

still voted to approve a treaty that included the crime of occupation that immediately and directly threatened one nationstate—Israel. As noted by one commentator, the inclusion of

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the crime of occupation provides “an excellent example of the

politicalization of what is masquerading as a purely legal and

judicial process. It is the kind of effort to gain political advantage out of the manipulation of the Statute, the Court and the

Prosecutor that we can expect to see no end of.”126

Thus, contrary to the arguments from proponents of the ICC,

the risk that the crime of aggression could be politicalized in

the future is a real concern. Libya, for example, has long argued

that aggression should be defined to include the confiscation

of property.127 Clearly, this definition is politically motivated

and based solely on the United States’ actions to freeze Libyan

assets. Provided a definition is accepted that fails to consider

the right of a nation-state to defend itself and its foreign policy

with the use of force, United States’ political and military leaders

could find themselves before the ICC for protecting US national

security concerns.

Finally, ICC supporters cite the ability of the UNSC to defer

investigations as a mechanism that should alleviate the United

States’ fear of politically motivated prosecutions.128 While Article

16 of the Rome Statute does allow the UNSC to intervene into

ICC matters, this check of the prosecutor’s power is blatantly

hollow for a number of reasons. First, the UNSC can only defer—

not preclude—an investigation or prosecution by the ICC. It only

provides temporary protection against politically motivated

prosecutions. Thus, if the UNSC fails to renew a situation

identified by the ICC as a possible war crime, the prosecutor

can reinstate the prosecution. Second, the decision by the

UNSC is subject to the veto power of the five permanent members to the UNSC. As such, this mechanism provides little

guaranteed protection against the raw power placed in the Office of the Prosecutor.

Interestingly, the United States has seen firsthand how the

assembly of state parties will view the UNSC deferral process

in the future. On 12 July 2002, the UNSC unanimously adopted

Security Council Resolution 1422 that requested the ICC defer

prosecution of UN peacekeeping personnel whose countries were

not part of the Rome Statute.129 This request, made pursuant

to Article 16 of the Rome Statute, provided protection to peace44

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keeping personnel for actions taken between 1 July 2002 and

30 June 2003.130

This resolution was a by-product of the US plan to withdraw

its military personnel from peacekeeping operations sponsored

by the UN. Because the ICC became functional on 1 July 2002,

the United States felt it was necessary to remove its troops from

United Nations’ missions to protect them from the jurisdiction

of the ICC.131 Faced with the prospect of losing US support for

peacekeeping operations, the members of the UNSC exercised

their authority under Article 16 and, in effect, deferred any

prosecution of Americans by the ICC.

Although not surprising, the United States came under intense criticism for securing the Article 16 protection from the

UNSC.132 Thus, while some proponents had highlighted Article

16 as a reason for the United States to sign the Rome Statute,

others now castigated the UNSC’s deferral action as improperly

usurping the terms of the Rome Statute.133 As the United

States faced significant criticism for deferring crimes that had

yet to occur, one can only imagine the uproar that will occur

if the UNSC ever defers an actual case against a US political

leader or military member accused of human rights atrocities.

Proponents of the ICC believe these provisions discussed

above, taken together, provide sufficient safeguards to alleviate

concerns raised by the United States. However, even proponents

of the ICC cannot provide the United States with assurances

that misuse of the ICC will not compromise the expansive foreign

policy agenda of the United States.134 On the contrary, they

can only opine that the chances of politically motivated prosecution are unlikely.

If the rules on complementarity are well crafted, it will be

very unlikely that the prosecutor can exceed his or her authority. Concerns about a “rogue” prosecutor are groundless.

Thus, it is reasonable to assume that, if war crimes are well

defined, complementarity is followed, and the role of the prosecutor is subject to judicial safeguards, the risk of abuses are

practically nil. My conclusion is that the concerns of the

United States are overstated and that the interests of the

United States in having an ICC far outweigh the marginal and

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far-fetched concerns that have been articulated by political

opponents to the ICC.135

Based on its foreign policy agenda and its commitment of

military forces around the world, the United States decided

wisely not to gamble on the hopes of the vocal ICC supporters.

Instead, the United States proposed a compromise regarding

the referral process that would have eliminated its concerns,

while continuing to ensure the ICC prosecutor had the independence to pursue particular cases without undue political

interference.

Specifically, the United States proposed provisions to allow

nation-states to opt out of ICC jurisdiction for crimes against

humanity and war crimes.136 This proposal, which had initially

been proposed by the International Law Commission in 1994,

would have allowed the United States to accept the ICC’s jurisdiction over genocide alone. The opt out provision would have

then allowed the United States and other treaty parties to examine the functioning of the ICC before submitting its jurisdiction

for the other core crimes in the Rome Statute.137 This modification to the jurisdiction of the ICC may have allowed the United

States to support the Rome Statute. Unfortunately, however,

all jurisdictionally related amendments submitted by the United

States were rejected.138

Faced with the uncertainty surrounding the operational

functioning of the ICC, the United States took the prudent

course of action in rejecting the ICC. While the US position has

been castigated by ICC proponents as unfounded or groundless,

a review of recent history supports the concerns of the United

States regarding the potentially political nature of the ICC.139

Proponents of the ICC, on the other hand, can only offer hope,

speculation, and innuendo in their attack of the US position.140

US concerns regarding the ICC were highlighted by politically motivated allegations filed against NATO over the NATOled bombing campaign in Kosovo to stop the ethnic cleansing

by Bosnian military forces.141 In response to complaints from

journalists, nongovernmental organizations, and various law

professors, the International Criminal Tribunal for the former

Yugoslavia (ICTY) launched a four-month investigation to deter46

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mine whether North Atlantic Treaty Organization (NATO) commanders and United States pilots engaged in war crimes by indiscriminately bombing civilian targets during the campaign.142

The complaints surrounded the targeting of power plants and a

television station, as well as three instances in which civilians

were inadvertently or mistakenly killed.143

Putting aside the fact that the ICC has little expertise to address questions of military necessity, allegations supporting the

complaints did not rise to the high thresholds set for crimes

against humanity and war crimes.144 On the contrary, the alleged crimes committed by NATO showed absolutely no pattern of improper or criminal action. Still, however, the ICTY

prosecutor felt her obligation and responsibility to examine all

complaints brought before the tribunal.145

The ICTY prosecutor made it clear during the investigation

that she was prepared to seek indictments against NATO personnel if the evidence was incriminating.146 Fortunately, however, the ICTY declined to pursue charges against NATO for its

bombing campaign in Kosovo.147 While proponents of the ICC

may suggest that the prosecutor’s declination to prosecute is

evidence that the ICC system will work, they ignore the detrimental political impact that results from the unsupported allegation being filed in the first place, along with the resulting

investigation. Thus, the prevention of the political impact from

specious allegations alone provides a sufficient basis for the

United States to reject the current structure of the ICC.

Moreover, certain domestic groups or nongovernmental organizations may use the threat of ICC prosecution to gain influence over foreign policy or national security decisions of the

United States.148 As noted above, previous tribunal prosecutors have noted the obligation and responsibility to review all

claims filed with the ICC regardless of the apparent merit of

the claim. Because of this open-door policy, there will be no

negative consequences for groups filing unsupported allegations before the court. The individuals and nation-states subjected to these spurious claims, however, will be paraded around

on the international stage and subjected to ridicule and scorn

from allegations alone.

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These concerns, similar to the concerns over politically motivated prosecutions, are more than a hypothetical problem.

There already have been cases in which domestic groups or

nongovernmental organizations have threatened the use of the

ICC to achieve their goals. For example, an Israeli pacifist

group has previously threatened Israeli army officers with ICC

prosecution for official actions undertaken pursuant to their

official duties.149 Additionally, persons opposed to the policies

of the government of Israel have sought to use the ICC as a

tool to force change.150 These examples provide sufficient additional support for the United States to assume a defensive

position regarding the ICC.

United States Position on the ICC Today

There has been no evidence since the United States withdrew its signature from the Rome Statute that its position on

the ICC has changed. In fact, it appears its opposition has only

grown more determined. This opposition was unambiguously

stated last summer by the US ambassador to the UN, Amb.

John Negroponte, when he informed the UNSC that the United

States “never will be” a member of the ICC.151 This statement,

along with others from the Bush administration, makes it

readily apparent that the ICC is effectively dead in the eyes of

the executive branch of the US government.

The legislative actions from Congress likewise support the

administration’s position that the United States will never recognize the jurisdiction of the ICC over US policy makers and

military personnel. In response to the Rome Statute, Congress

passed the American Servicemembers’ Protection Act (ASPA).152

The ASPA, dubbed the “Hague Invasion Act” by some, authorizes the use of force to free US personnel held for trial by the

ICC.153 The ASPA also allows the United States to withdraw

military assistance from countries that have ratified the Rome

treaty.

Furthermore, the rhetoric from Congress has shown there is

little support for the United States’ joining the ICC. Sen. Jesse

Helms, one of the staunchest opponents of the ICC, has publicly

stated that the United States never will ratify the Rome Statue if

he has anything to do with it.154 Senator Helms is not alone in

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his criticisms of the ICC. In fact, many in Congress have voiced

their opposition to the United States’ participating in the ICC.155

Considering the current positions of the Bush administration and the US Congress, it is doubtful that the United States

will ever become a party to the Rome Statute. The only solution for the United States would be for the UNSC to gain control over the referral of cases to the ICC. Based on the overwhelming defeat of the previous US proposal for Security

Council control, however, it is doubtful the key factor for US

support will ever find its way into the Rome Statute. 

Despite some of the rhetoric that accompanied the ASPA,

however, it does not appear to be the intent of the United

States to destroy the ICC. On the contrary, representatives

from the Bush administration have made it clear that the

United States does not want to undermine the ICC.156 In return, the United States has only asked that nation-states that

are a party to the ICC respect the US decision not to join the

international tribunal.157

Implications to United States Foreign Policy

While there have been numerous discussions on substantive and procedural aspects of the ICC that prevent the United

States from ratifying the Rome Statute, the root of US concerns can be captured with one word—sovereignty. The United

States, in its role as the world’s most formidable military power,

has assumed a more realist position regarding the protection

of its national security, especially after the terrorist attacks of

11 September 2001. Because of this position that focuses on

the security interest of the nation-state over international institutions, the executive and legislative branches of the US government could not accept an international body such as the ICC

that could frustrate the ability of the United States to actively respond to national security threats through the use of its diplomatic, economic, and military instruments of power.158

This realist position by the United States is not a new or

novel concept. On the contrary, the United States has tended

to believe that the power of the nation-state is necessary to advance American ideals throughout the world.159 Likewise, the

European countries that currently criticize the United States

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have also taken the position in the past that the interests of

the nation-state are paramount over those of international institutions. One commentator aptly summarized this position

when he stated that “You hear Europeans say [President] Bush

is a cowboy from Texas. But when the Europeans were at the

top of the international heap, they were hard-bitten realists

about using power, and it was the United States that was trying to outlaw war.”160

With this realist position in mind, the United States believes

the ICC could frustrate its foreign policy agenda by causing

any use of force to potentially fall under the jurisdiction of the

court. For example, some have argued that the United States

could be found guilty of the crime of aggression if it takes military action to protect its interests without the express approval of the UN.161 As previously discussed, the current military action by the United States and its Coalition partners in

Iraq may very well test the validity of US concerns.

Proponents of the ICC reject this realist position and, instead, accept a more liberalist view of international relations.

Specifically, supporters of international institutions such as

the ICC believe that carefully designed international institutions that facilitate international cooperation can overcome

the requirement for conflict in the anarchic system of realism.162

By engaging in international institutions, nation-states realize

political gains from cooperation that allow them to forgo shortterm needs for long-term objectives.163 Proponents of the ICC

argue that for true global peace to exist, the nations of the

world must adhere to a binding and universal code of legal behavior that trumps the basic sovereignty rights of nationstates.164 The ICC, according to these supporters, provides this

requisite universal code.

Supporters of the liberalist view have criticized the United

States for its realist position on various foreign policy matters.

In addition to the ICC, it has been noted that the United States

has failed to support global treaties addressing biological

weapons, antipersonnel land mines, biological diversity, and

nuclear weapon testing.165 Although the United States will not

support the creation of these international norms, liberalists

note that the United States is quick to judge the actions of

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others who violate these norms.166 This lack of support has led

many in the world to believe that the United States will only

participate within the international community if it is allowed

to play under a different set of rules. Those countries critical

of the United States vehemently argue that the United States

cannot have it both ways. The United States either plays by the

rules, or it doesn’t play. With regard to the ICC, the United

States has decided not to play.

Provided the United States would accept the ICC’s jurisdiction, ICC supporters believe the United States would actually

improve its ability to implement its foreign policy goals of promoting peace and security. They argue that by accepting the

ICC, the United States would show by its actions that it is willing to commit to forging a better world based on the rule of

law.167 In other words, the United States can walk the walk and

give credence to its claims of leadership within the international community.

Furthermore, supporters of the ICC believe the US acceptance

of international institutions will serve its foreign policy interests by developing cooperative relationships with other countries that support the ICC.168 In the wake of globalization, it is

argued that the United States cannot effectively act unilaterally in all aspects of international relations. Some have questioned the timing of the US decision to reject the ICC at the

same time it is requesting the assistance of other countries for

the problems in the Middle East and the war on terrorism.169

By doing so, the United States may impair its ability to build

coalitions in the future.170

There is no question that it will be difficult for the United

States to go it alone when it comes to protecting its national

security. This is especially true for future military interventions that need multilateral cooperation for both cost-sharing

(both financial and human resources) and political legitimacy.171 The war on terrorism and the current conflict in Iraq

already have shown the need to maintain multilateral cooperation. While a realist could argue that the cooperating countries

possess their own national security interests that justify their

intervention in the current conflicts, there is no doubt that

multilateral action is value added.

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There is little empirical evidence, however, that the US rejection of the ICC has hampered its ability to protect its foreign

policy interests.172 While many countries and nongovernmental organizations criticize the United States for its position on

the ICC, these same bodies depend on American power for

their security and prosperity.173 In this light, it is not surprising that US rejection of the ICC has not been highlighted as a

reason for failing to support the foreign policy agenda of the

United States. It could be argued that the recent friction

within the UNSC regarding the disarming of Iraq is related to

the realist position of the United States on issues such as the

ICC. However, one could likewise argue that the economic and

diplomatic interests of the major countries opposing the military intervention provide a plausible alternative basis for their

positions. Thus, the jury is still out on whether the US position on the ICC will have long-term consequences to its foreign

policy.

It is interesting, however, that many commentators examining

the US position argue that the United States is at odds with the

rest of the world on the idea of permanent international criminal

tribunal. As noted by one commentator, “In the aftermath of the

[Rome] Statute’s adoption, the United States stands alone as the

one great power unwilling to contribute to the institutionalization

of international criminal law through an independent ICC.”174

While it is, in fact, true that the United States has taken a position opposite to many countries of the world, it is far-fetched to

state that the United States is standing alone in its opposition of

the ICC. One commentator noted that the first 66 countries that

ratified the Rome Statute made up less than one-sixth of the

world’s population.175 Furthermore, although 120 countries

voted to approve the Rome Statute, fewer than 90 have actually

ratified the treaty to date.

Moreover, those critical of the United States fail to mention the

other regional powers that have failed to ratify (or even sign) the

Rome Statute. Russia, China, and Japan are three countries

with significant economic, diplomatic, or military power that

have refused to submit their governments to the jurisdiction of

the ICC. Additionally, a review of the United Nations’ ratification

database176 shows that few Arab countries have ratified the

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Rome Statute. Although many other states have taken positions

similar to that of the United States, it is extremely difficult to find

commentators who will condemn these states for their opposition to the ICC. While the focused criticism may be appropriate

considering the US claim as a supporter and protector of human

rights, the specific attacks on one country lends credence to the

US concerns that it, more than any other country, will be singled

out for disparate treatment by the jurisdictional mechanism of

the ICC.

Conclusion

We are a super power. We are a country whose great good

fortune and our strength and our resources require us to

bear certain responsibilities. We cannot bear those responsibilities if we are going to have the people who are carrying

out these very difficult and dangerous duties for us be subject to prosecution by anyone who does not particularly care

for American foreign policy or anyone who does not particularly care for America. And there are quite a few people like

that in the world. . . .

—The Honorable Caspar W. Weinberger

There is no question that throughout history, the United

States has supported applying the rule of law to violations of

basic human rights. There is also no doubt that the United

States will continue to maintain this stance when the next

human rights atrocities are committed within the international community. The United States shared the long-standing

dream of many in the UN to create a permanent international

tribunal to handle the most egregious human rights atrocities.

In this light, it was the hope of the United States that the ICC

would become that long-awaited court.

With regard to the idea of a permanent international tribunal, it is clear now that the United States will not be able to

“have its cake and eat it too.” The so-called international community at the Rome Conference developed the permanent international legal mechanism in the form of the ICC. There appears little hope that the countries that support the current

ICC regime will ever support the treaty protections long advo53

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cated by the United States. Thus, similar to the draft treaty

that was submitted at the end of the Rome Conference, the

United States basically has been offered a take it or leave it

proposition by those countries and nongovernmental organizations that supported the creation of the ICC.

The decision by the current administration of President

Bush to leave it is a wise one based on the relatively unconstrained power of the ICC, the historical politicalization of

crimes under the ICC’s jurisdiction, and the unique position of

the United States in the realm of international relations.

Whether or not the United States is an indispensable nation

as noted by former Secretary of State Madeline Albright, let

there be no debate that the United States is saddled with

unique national security concerns and obligations based on

its standing as the world’s strongest military power. 

It is because of these unique obligations that the jurisdictional regime of the ICC, while providing a mechanism to adjudicate abuses of human rights, poses unique risks to US

policy makers and military personnel serving around the world.

The ICC, as created by the Rome Statute, fails to provide sufficient protections to ensure the legal process is not used as a

political tool to frustrate or disrupt the foreign policy agenda

of the United States. One commentator highlighted this risk

during Senate testimony when he stated: “The danger that the

ICC might be used as a political tool against the United States

is neither fanciful nor alarmist. The United States has interests

and responsibilities around the world and the possibility that

a prosecutor and bench staffed by individuals hostile to the

United States and its interests is quite real. The Cold War is

over, but the United States still has enemies and competitors.

Indeed, as the world’s only superpower, it is viewed with suspicion by many states, and with outright hostility by more

than a few.”177

Proponents of the ICC point to the various protections inherent in the Rome Statute that will prevent a United States

official or military officer from ever being brought before the

ICC. As discussed within this article, however, these protections are clearly in the eye of the beholder. Furthermore, proponents of the ICC fail to appreciate the political damage to

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the United States that will occur by a zealous prosecutor simply launching a criminal investigation.178 As noted by one

commentator, “Truth does not matter; false charges are effective propaganda even if the American accused is eventually

cleared.”179 It is for these reasons that the US rejection of the

current ICC regime is warranted.

US rejection of the ICC, however, does not come without

some risk. By rejecting international institutions such as the

ICC now, the United States is gambling on a future dominated

by the theory of realpolitik, where the security interests of nation-states remain paramount.180 Provided the world as we

know it is now moving towards a more liberalist view where international institutions will rule the day, the resentment

caused by the current stance of the United States may create

some long-term costs for its foreign policy agenda. Only time

will tell.

Notes

1. Overview of the ICC, United Nations Document, http://www.un.org/law/

icc/general/overview.htm.

2. United Nations General Assembly Resolution 260, Convention on the

Prevention and Punishment of the Crime of Genocide, 9 December 1948.

3. Established in 1947, the International Law Commission is an organ of

the United Nations. The stated mission of the International Law Commission

is to promote the progressive development of international law and its codification. Background on the International Law Commission can be found at

http://www.un.org/law/ilc/ilcintro.htm.

4. The specific request from Trinidad and Tobago concerned the need for

an international tribunal for drug trafficking.

5. United Nations General Assembly Resolution 47/33, 25 November

1992, http://www.un.org/documents/ga/res/47/a47r033.htm.

6. The international conference of plenipotentiaries generally incorporates the draft statute of the International Law Commission into a convention or treaty in which nation-states are then able to join as parties.

7. United Nations General Assembly Resolution 49/53, 17 February

1995, http://www.un.org/documents/ga/res/49/a49r053.htm.

8. United Nations General Assembly Resolution 51/207, 16 January 1997.

9. Ibid.

10. United Nations Document A/CONF.183/10, Final Act of the United

Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an

ICC (17 July 1998).

11. United Nations General Assembly Resolution 52/160, 28 January

1998.

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12. Although the draft document is actually a treaty, not a statute, the

term statute will be used throughout this paper in line with the language

used by the Rome Conference.

13. David J. Scheffer, “Developments in International Criminal Law: The

United States and the ICC,” American Journal of International Law 93 (January 1999): 20.

14. Some of the United States’ objections will be discussed in section 4.

Other objections, such as the principle of universal jurisdiction, are beyond

the scope of this research paper. 

15. William K. Lietzau, “International Criminal Law After Rome: Concerns From A U.S. Military Perspective,” Law and Contemporary Problems

119 (Winter 2001): 119.

16. Ibid., 121, note 4.

17. Rome Statute, Article 126(1).

18. Ibid., Resolution F.

19. The Assembly of State Parties is the governing body of the ICC. It is

made up of one member from each state party to the Rome Statute who is

given an equal vote on issues before the assembly. The assembly is tasked

to provide management oversight to the Offices of the Presidency, Prosecutor, and Registrar. It is also the body that can adopt recommendations of the

Preparatory Committee on issues such as rules of evidence and procedure.

See Rome Statute, Article 112.

20. Ibid.

21. Ibid.

22. United Nations Document PCNICC/2002/2, Report of the Preparatory

Commission for the ICC, 24 July 2002, 3.

23. United Nations Document PCNICC/2001/1, Report of the Preparatory

Commission for the ICC, 2 November 2000, 3; and Rome Statute, Resolution

F; United Nations General Assembly Resolution 53/105, 26 January 1999.

24. United Nations Document PCNICC/2002/L.4/Rev. 1, Proceedings of the

Preparatory Commission at its Tenth Session, 22 July 2002, 3; and United Nations Document PCNICC/2002/2, Report of the Preparatory Commission for

the ICC, 24 July 2002.

25. Ten nations simultaneously ratified the Rome Statute on this date

bringing the total number of ratifications to 66 nation-states. See Appendix.

26. The assembly is tasked to provide management oversight to the Offices

of the Presidency (judges), Prosecutor, and Registrar. See Rome Statute, Article

112. This tasking includes the sole authority to both elect and remove the

judges and chief prosecutor of the ICC. See Articles 36(6)(a) and 42(4) (election);

and Article 46 (removal).

27. ICC Document ICC-ASP/1/3, Assembly of States Parties to the Rome

Statute of the ICC, 3–10 September 2002.

28. See generally, “Overview of The Assembly of State Parties,” ICC document, found at http://www.icc.int/en/assembly_of_states_parties.html.

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29. Keith B. Richburg, “International War Crimes Court is Inaugurated, But

Without U.S,” Washington Post, 12 March 2003, 18 (reviewed at ebird.dtic.mil/

Mar2003/e20030312151454.html).

30. Ibid.

31. Joe J. Heydecker, Joe J. and Johannes Leeb, The Nuremberg Trial

(Cleveland, Ohio: The World Publishing Company, 1958), 76–82 (summary

of negotiations leading to the Nuremberg tribunal); and William J. Bosch,

Judgment on Nuremberg (Chapel Hill: The University of North Carolina

Press, 1970), 9–11.

32. Jay W. Baird, ed., From Nuremberg to My Lai (Lexington, Mass.: D.C.

Heath and Co., 1972), 20 (reprint of Justice Jackson’s opening statement).

33. Public Law 101-513, sec. 599E, 104 stat. 2066, 5 November 1990 (requesting the United States explore the need for an ICC).

34. This support was not unanimous by any means. See US Senate Report

103-71, 103d Cong., 1st sess. (1993) (statement of Sen. Jesse Helms).

35. Public Law 103-236, sec. 517(b), 108 stat. 469; and Harry T. King and

Theodore C. Theofrastous, “From Nuremberg to Rome: A Step Backward for

U.S. Foreign Policy,” Case Western Journal of International Law 31 (Winter

1999): 47, 70–73 (discussion of legislative actions taken in support of an ICC).

36. US Senate, 139th Cong. Rec. S 889, 930–32, 28 January 1993.

37. US House of Representatives, Joint Resolution 89, 143d Cong. Rec.

H. 6405, 31 July 1993.

38. US House of Representatives, 143d Cong. Rec. E. 1567, 30 July 1997

(statement of Rep. Edward Kennedy).

39. David J. Scheffer, “Developments in International Criminal Law: The

United States and the ICC,” American Journal of International Law 93 (January

1999): 13; and King, supra note 5, at 74, and note 108 (summary of President Clinton’s speeches).

40. Scheffer, supra note 9, at 12–13.

41. Ibid., 13.

42. Ibid., 13–14.

43. Ibid.

44. William J. Clinton, Remarks at the University of Connecticut in Storrs, 31

Weekly Comp. Pres. Doc. 1840, 15 October 1995 (emphasis added); and

William J. Clinton, “A Commitment to Human Dignity, Democracy, and Peace,”

USIA Electronic Journal Issues of Democracy 1, no. 3 (May 1996) (article

adapted from a previous speech given at the University of Connecticut) found

at http://usinfo.state.gov/journals/itdhr/0596/ijde/Clinton.htm.

45. David J. Scheffer, The Future of International Justice, address at the

Peace Palace, The Hague, Netherlands, 19 September 1997, at http://

www.state.gov/www/global/narcotics_law/970919_scheffer.html.

46. James B. Foley, US Participation in the Rome Conference on the Establishment of an ICC, Department of State Press Statement, 12 June 1998,

secretary.state.gov/www/briefings/statements/1998/ps980612a.html.

47. King, supra note 5, at 77.

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48. Ambassador Scheffer later noted that the United States delegation

approached the Rome Conference with “cautious optimism” because a number of fundamental issues to the United States were not addressed during

the Preparatory Committee meetings. See Scheffer, supra note 9, 14.

49. Lietzau, 124.

50. Scheffer, supra note 9, at 16–17.

51. Lietzau, supra note 19, at 124.

52. US Senate, Is a U.N. ICC in the U.S. National Interest?: Hearing before

the Subcommittee on International Operations of the Committee on Foreign Relations, 105th Cong., 2d sess., 23 July 1998, 12 (statement of Ambassador

Scheffer).

53. Lietzau, supra note 19, at 124.

54. Scheffer, supra note 9, at 17; and “The ICC and the US Constitution.”

USA for the ICC (reviewed 9 January 2003), http//www.usaforicc.org/facts_

America-icc.html (chart comparing ICC protections to the United States Constitution).

55. Rome Statute, Article 66.

56. Ibid., Article 67(1)(g).

57. Ibid., Article 67(1)(b).

58. Ibid., Article 67(1)(c).

59. Ibid., Article 67(1)(e).

60. US Senate, supra note 22, at 12 (statement of Ambassador Scheffer).

61. Scheffer, supra note 9, at 15–16.

62. US Senate, supra note 22, at 12–16 (Ambassador Scheffer listing

specific objections by US delegation).

63. Scheffer, supra note 9, at 17.

64. David J. Scheffer, “The ICC,” Statement Before the Sixth Committee

of the 53d General Assembly, USUN Press Release #179, 21 October 1998,

www.un.int/usa/98_179.htm.

65. Scheffer, supra note 9, at 21–22.

66. Rome Statute, Article 125(1).

67. Diane Sabom, “ICC Fails Tests of American Justice,” Insight on the

News 18, issue 19, 27 May 2002.

68. William J. Clinton, Statement on the Rome Treaty on the ICC, Public

Papers of the President, 31 December 2000.

69. Ibid.

70. The letter to the secretary general provided the following statement: 

This is to inform you, in connection with the Rome Statute of the

International Criminal Court adopted on July 17, 1998, that the

United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from

its signature on December 31, 2000. The United States requests

that its intention not to become a party, as expressed in this letter, be reflected in the depository’s status lists relating to this

treaty.

See Appendix, note 6.

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71. Marc Grossman, “American Foreign Policy and the ICC,” Remarks to

the Center for Strategic and International Studies, Washington, D.C., 6 May

2002, http://www.state.gov/p/9949pf.htm.

72. US Senate, Is a U.N. ICC in the U.S. National Interest? However, it appears the United States is still citing due process concerns for its continued

rejection of the ICC. See Nicholas Rostow, “Statement of the Fifty-Seventh

Session of the United Nations General Assembly,” United States Mission to

United Nations, 14 October 2002, http://www.un.int/usa/02_153.htm. This

paper does not address these continued concerns, as they appear to be secondary to the primary argument put forth by the United States.

73. See Rome Statute, Article 120. 

74. Article II, sec. 2, clause 2, requires that the Senate give its advice and

consent to all treaties provided two-thirds of those present concur. Thus, the

Senate has the power to add reservations, amendments, etc., to treaties. See

also US Senate, Is a U.N. ICC in the U.S. National Interest?: Hearing before the

Subcommittee on International Operations of the Committee on Foreign Relations,

105th Cong., 2d sess., 59, 23 July 1998 (statement of John R. Bolton). Because

the discussion of treaty law and its constitutional implications provide sufficient information for another research paper, this article will not address

these legal issues.

75. Ibid., 12 (statement of ambassador Scheffer).

76. John Washburn, “The ICC Arrives—The U.S. Position: Status and

Prospects,” Fordham International Law Journal 25 (March 2002): 877.

77. Ibid.

78. The United States delegation at the Rome Conference proposed an

opt out concept for war crimes and crimes against humanity. This opt out procedure would have allowed parties to the Rome Statute to evaluate over time

whether the ICC was becoming a tool for politically motivated prosecutions.

This proposal was rejected at the Rome Conference. See David J. Scheffer,

“Developments in International Criminal Law: The United States and the

ICC,” American Journal of International Law 93 (January 1999): 19.

79. This is Latin for one’s own initiative. 

80. Rome Statute, Article 15.

81. Ibid.

82. John R. Bolton, “The United States and the ICC,” Remarks at the Aspen

Institute, Berlin, Germany, 16 September 2002, http://www.state.gov/t/us/

rm/13538pf.htm.

83. As noted by one State Department official when discussing the US

position, “Unchecked power, our founders understood, is open to abuse,

even with good intentions of those who establish it.” See Marc Grossman,

“American Foreign Policy and the ICC,” Remarks to the Center for Strategic

and International Studies, Washington, D.C., 6 May 2002, http://www.state.

gov/p/9949pf.htm.

84. Ibid.

85. See Rostow.

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86. United States Senate, supra note 1, at 23 (statement of Ambassador

Scheffer). It is interesting, however, that Ambassador Scheffer has now apparently changed his position regarding the politicalization of the ICC. See

David J. Scheffer, “A Treaty Bush Shouldn’t ‘Unsign,’” New York Times, 6

April 2002, A15.

87. Bolton, supra note 11.

88. Lietzau, 136.

89. Ibid., 126–27.

90. Washburn, supra note 5, at 878.

91. The United States made its position clear that only the prosecutor

should control the investigation, including referring specific cases against individual defendants. The referral mechanism would only refer situations to the

prosecutor, not individual cases. See “Statement of the United States Delegation Expressing Concerns Regarding the Proposal for a Proprio Motu Prosecutor,” 22 June 2002 (cited in US Senate, 147–48).

92. US Senate, supra note 1, at 23 (statement of Ambassador Scheffer).

93. Peggy A. Rancilio, “From Nuremberg to Rome: Establishing an ICC

and the Need for U.S. Participation,” University of Detroit Mercy Law Review

78 (Winter 2001): 328.

94. See “U.S. Role: Engagement or Opposition, Lawyers Committee for

Human Rights,” http://www.lchr.org/ijp/icc_usa.htm.

95. Ibid.

96. Rome Statute, Article 15(3).

97. Ibid., Article 15(3); and Article 57(2)(a).

98. Ibid., Article 46.

99. Ibid., Article 46(1)(a). In the case of a judge, a two-thirds’ majority of

the Assembly of State Parties must find sufficient cause for removal. See Article 46(2)(a). The removal of the prosecutor requires an absolute majority of

the Assembly of State Parties. See Ibid., Article 46(2)(b).

100. Ibid., Article 1.

101. See Lietzau, supra note 17, at 136; and Cheryl K. Moralez, “Establishing an ICC Will it Work?” DePaul International Law Journal 4 (Winter

2000): 152.

102. Rome Statute, Article 17.

103. Scheffer, supra note 7, at 19.

104. For example, one commentator has questioned whether the immunity procedures set up by South Africa’s Truth and Reconciliation Commission would be viewed as an inadequate investigation by the ICC. See US

Senate, supra note 1, at 147–48 (statement of John R. Bolton).

105. The standard is whether the nation-state is unwilling or unable to

genuinely carry out the investigation or prosecution of the case. See Rome

Statute, Article 17(1)(a).

106. Rancilio, supra note 22, at 326.

107. Rome Statute, Article 7(1).

108. Scheffer, supra note 7, at 16.

109. Rome Statute, Article 5.

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110. Ibid., Article 5(2).

111. As of the last meeting of the Assembly of State Parties in February

2003, the crime of aggression has yet to be defined. See Summary of the First

Session of the Assembly of State Parties, http://www.un.org/law/icc/asp/asp

fra.htm.

112. Scheffer, supra note 7, at 14.

113. United States Senate, supra note 1, at 14 (testimony of Ambassador

Scheffer).

114. Scheffer, supra note 7, at 21.

115. Ibid.

116. See Rome Statute, Article 121(4).

117. United Nations Document PCNICC 2002/2/Add. 2, Report of the

Preparatory Commission for the ICC, Part II, Proposals for a Provision on the

Crime of Aggression, 24 July 2002, 3

118. See United Nations General Assembly Resolution 3314 (29) (reviewed at http://jurist.law.pitt.edu/3314.htm).

119. There is clearly no consensus between nation-states on how to

handle the crime of aggression under the ICC. See United Nations Press Release L/2765, 27 March 1996 (discussion of the varied positions put forth

by Preparatory Committee members on the crime of aggression); see also

United Nations General Assembly Press Release GA/L/3047, 23 October 1997

(delegates differing on whether crime of aggression should be included in the

ICC’s jurisdiction).

120. Brett D. Schaefer, The ICC: Threatening U.S. Sovereignty and Security, The Heritage Foundation Executive Memorandum, No. 537, 2, 2 July

1998 (discussing consequence to the United States’ not obtaining additional

UNSC authority prior to using force against Iraq).

121. See United Nations Security Council Resolutions 1141 (2001) and

687 (1991).

122. Interestingly, when asked if the United States would violate international law by invading Iraq, the secretary-general of the United Nations, Kofi

Annan, responded that the Security Council would eventually have to address

that issue. See United Nations Press Statement, 17 March 2003, www.un.org/

apps/sg/printoffthecuff.asp?nid=398.

123. Rome Statute, Article 8(2)(b)(viii).

124. See US Senate, The ICC: Protecting American Servicemen and Officials

from the Threat of International Prosecution: Hearing before the Committee on

Foreign Relations, 106th Cong., 2d sess., 14 June 2000, 15 (response by Dr. Jeremy Rabkin).

125. US Senate, supra note 1, 24-25 (statement of Ambassador Scheffer).

126. Ibid., 61, note 25 (statement of John Bolton).

127. Marjorie Cohn, “The Crime of Aggression: What Is It and Why Doesn’t

the United States Want the ICC to Punish It?” The Jurist, 22 March 2001,

http://www.jurist.law.pitt.edu/forum/forumnew18.htm. See generally, US

Senate, Is a U.N. ICC in the U.S. National Interest?, 61 (statement of John R.

Bolton).

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128. King and Theofrastous, 87–88.

129. See United Nations Security Council Press Release SC/7450, Security

Council Requests ICC Not to Bring Cases Against Peacekeeping Personnel from

States Not Party to Statute, 12 July 2002, http://www.un.org/News/Press/

docs/2002/sc7450.doc.htm.

130. Resolution 1422 also expresses the intention of the United Nations

Security Council that the Article 16 request will be renewed for additional

12-month periods as long as necessary.

131. John D. Negroponte, “Statement to the United Nations Security Council,” United States Mission to the United Nations, 10 July 2002, http://www.

un.int/usa/02print_095.htm.

132. “US Criticized on Immunity Demand,” The Associated Press, 10 July

2002, http://www.globalpolicy.org/intljustice/icc/crisis/0710.htm.

133. See United Nations Security Council, supra note 58.

134. For example, one commentator stated that the question of safeguards

within the Rome Statute is “more nearly a matter of judgment.” See Washburn,

supra note 5, at 876.

135. See Moralez, “Establishing an ICC: Will it Work?,” 152 (citing statements of M. Cherif Bassiouni) (emphasis added).

136. Scheffer, supra note 7, 19.

137. Ambassador Scheffer noted that 22 delegations expressed support

for this opt out proposal. See Scheffer, supra note 7, at 19.

138. Ibid., 20.

139. See United Nations Document PCNICC/2002/INF 7, Statement of the

European Union on the Position of the United States of America Towards the ICC,

20 May 2002, http://ods-dds-ny.un.org/doc/UNDOC/GEN/N02/392/92/

PDF/N0239292.pdf?OpenElement. In this statement, it is curious that the European Union criticized the United States for withdrawing its signature “without the benefit of actual experience of the Court’s activities.” However, the

United States proposal for opting out of jurisdiction for specific crimes was rejected during the Rome Conference.

140. Ibid.

141. Because of the United States involvement in the bombing campaign, it

was also suggested that President Clinton and military leaders should also face

prosecution for war crimes. See Jeffrey K. Kuhner, “U.S., Clinton Accused of

War Atrocities,” Washington Times, 22 April 2002, http://www.caausa.org/

articles/clintoaccused.htm.

142. John T. Correll, “UN Tribunal Drops Investigation of NATO for War

Crimes,” Air Force Magazine 83, Issue 2, February 2000; and Charles Truheart, “War Crimes Court is Looking at NATO,” Washington Post, 29 December 1999.

143. Barbara Crossette, “U.N. War Crimes Prosecutor Declines to Investigate NATO,” New York Times, 3 June 2000, n.p.

144. For instance, customary international law has generally required a

crime against humanity be committed as part of a widespread or systematic attack directed against the civilian population. See Rome Statute, Article 7(1).

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145. Crossette, supra note 72.

146. Correll, supra note 71.

147. Crossette, supra note 72.

148. Peter Grier, “Disorder in the Court,” Air Force Magazine 85, no. 10

(October 2002): 39.

149. Ibid.

150. Specifically, a special interest group has engaged in a petition campaign to the United Nations secretary general requesting various members of

the Israeli government be indicted as war criminals for their part in creating the

Jenin refugee camp. See “Jenin War Crimes Petition,” http://www.petitionon

line.com/SSF001.

151. John D. Negroponte, “Statement to the United Nations Security Council, United States Mission to the United Nations” (emphasis added), 12 July

2002, www.un.int/usa/02print_098.htm.

152. Public Law 107-206, 2 August 2002 (codified at 22 U.S.C. §§), 7421-

7433.

153. See Grier, 39.

154. US Senate, The ICC: Protecting American Servicemen and Officials

from the Threat of International Prosecution: Hearing before the Committee on

Foreign Relations, 106th Cong., 2d sess., 2, 14 June 2000. 

155. See US Senate, 148th Cong. Rec. S 7844, 1 August 2002 (statement

of Senator Bennett); and US House of Representatives, 148th Cong. Rec. E.

1291, 18 July 2002 (statement of Representative Bereuter).

156. Rostow.

157. Ibid.

158. See Christopher Rudolph, “Constructing an Atrocities Regime: The

Politics of War Crimes,” International Organizations 55, issue 3 (Summer

2001): 655.

159. See James Dao, “One Nation Plays the Great Game Alone,” New

York Times, 7 July 2002.

160. Ibid.

161. US Senate, Is a U.N. ICC in the U.S. National Interest? (statement of

Senator Helms).

162. Rudolph, supra note 1.

163. Ibid., supra note 1.

164. King and Theofrastous, 104.

165. See “Unilateralism is U.S.,” Time Magazine 158, no. 5 (6 August

2001): 15.

166. See Johan D. van der Vyver, “International Human Rights: American

Exceptionalism: Human Rights, International Criminal Justice, and National

Self-Righteousness,” Emory Law Journal 50 (Summer 2001): 775, 827.

167. See Rancilio, 337.

168. Ibid., supra note 10, 337–38.

169. See Barbara Slavin and Andrea Stone, “U.S. Refuses to be Subject

to World Body,” USA Today, 3 July 2002, A4.

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170. US House of Representatives, 148th Cong. Rec. E. 1630, 19 September 2002 (statement of Representative Leach).

171. Rudolph, supra note 1.

172. In fact, critics of the US position on the ICC can only contend that

the current stance will harm US foreign policy in the future. See Dao, supra

note 2, at 5.

173. Ibid.

174. See King and Theofrastous, supra note 7, 98.

175. See Sabom, 22.

176. See appendix.

177. US Senate, Is a U.N. ICC in the U.S. National Interest? (statement of

Lee A. Casey).

178. Ibid., 60 (statement of John R. Bolton).

179. Kurt A. Schlichter, “International Court Ripe For Takeover By Those

Who Would Frame U.S. Troops,” Army Times 63, Issue 3 (12 August 2002):

50.

180. See James Graff, “America Is Not Pleased,” Time Atlantic 160 (8 July

2002): 36.

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Dateline Washington

General Watson to the ICC?

The President Must Decide Soon!

Donald A. MacCuish, EdD

and

Tomislav Ruby

Lieutenant Colonel, USAF

The following is a fictional account of what many leaders in

today’s military fear is in store for officers and politicians in the

United States. The year is 2007, and the United States has concluded a short military campaign to protect a minority population facing a humanitarian disaster in the Eastern Mediterranean. The North Atlantic Treaty Organization (NATO) strongly

condemned the atrocities being committed and sought to stem

the flow of refugees into their countries, which they feared

might be a conduit for terrorists to enter Western Europe under

the guise of fleeing oppression. Under a United Nations (UN)

resolution, a US Air Force lieutenant general led a Coalition force

of aircraft attacking the terrorist infrastructure and paramilitary

forces to stop the humanitarian disaster. In the course of the

conflict, discipline issues raised by the American forces became

legal issues for the International Criminal Court (ICC), which

came into existence 60 days after the Treaty of Rome was ratified by the 60th country on 11 April 2002. The treaty came into

force on 1 July 2002. It ultimately became a serious political debate in capitals throughout the world.

This fictional account is merely one hypothetical scenario

and is not a prediction of future political and legal dilemmas.

Given the ongoing war on terrorism and the ratification of the

Rome Treaty establishing an ICC, the authors followed one logical train.

71
The Oval Office

The president sat in the Oval Office behind his great desk. On

the couches and chairs opposite him sat the vice president, the

secretary of state, the attorney general, the secretary of defense,

the White House counsel, the speaker of the House, the House

minority leader, and the Senate majority and minority leaders.

The atmosphere was serious, though without tension. The day

before, the realization had hit most of these leaders that the

United States, while remaining the lone superpower, was being

challenged. This challenge came not on a battlefield but through

an international court that the United States had strongly opposed. Beyond the actual case being presented against a US Air

Force general who had been retired for more than a year before

this meeting, America’s allies were calling for the United States

to do something it vowed never to do—hand over a US citizen to

the ICC for trial on a charge of war crimes.

Lt Gen Keith Watson had led a coalition of states in the bombing of radical Islamist terrorist forces that had taken control of

the Lebanese government and were driving out the Maronite

Christian population from Beirut.1 As the senior Coalition commander responsible for the conduct of air operations, General

Watson approved the target list on a daily basis and signed the

air tasking order (ATO), the legal military order setting out the

entire plan of operations for the next cycle of the air portion of

the conflict. He had devised a brilliant plan to utilize precision

air attacks in conjunction with Coalition special operations

forces to seek out and destroy terrorist leadership cells and their

infrastructure.2 At the end of the war, he retired with distinction. Then came the accusations by independent observers and

even within the US military that the general was negligent in his

command, failing to protect innocent civilians. As the joint force

commander, General Watson was personally responsible for approving all targets and therefore was personally accountable.

On numerous occasions during the conflict, targets of dubious

military value had been attacked resulting in the loss of innocent civilian lives. Of these, one case in particular captured the

attention of the ICC.

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Today, the president of the United States must decide not

merely the general’s future, but the military and international

future of the United States as well.

Morality and Warfare:

Implications for the War Fighter

Nineteen months earlier, four pilots gathered in their wing’s

mission-planning cell the afternoon before their next combat

mission over Beirut. The flight lead, Capt Jimmy Boscomb,

known to his fellow flyers by his call sign, “Maple,” picked up

the folder for his mission and gathered his pilots around the

mission-planning table. They laid out the mission orders and

pictures of the target taken the day before by an unmanned

aerial vehicle,3 a former police station that paramilitary guerrilla units had used as a local headquarters when terrorizing

the local minority population. They checked the threat maps to

see where the enemy surface-to-air missiles (SAM) were located and to determine the best route through the threats to

the target. When their intelligence officer, Lt Sandy Mason,

walked in for their premission planning briefing, the pilots

turned and gave her their attention.

Lieutenant Mason went through her checklist, briefing the

most current developments in the conflict, the disposition of

forces, the target significance, and threats to the mission.

Newly included in the briefing format were collateral damage

considerations.4 Boscomb asked the intelligence officer to go

over the target significance one more time. She said that the target, a police station, which was attacked and damaged three

days prior, was a key command post for terrorist forces attacking the local population. Boscomb’s orders were to lead his flight

of four F-16s to drop a pair of 2,000-pound laser-guided smart

bombs on the police station. The target, which was seriously

damaged in the previous attack, still had part of the roof and

two walls standing. From the imagery, it was clear that the

building was unusable, but perhaps it could be cleaned out at

some point in the future. The real issue, however, was the collateral damage consideration. The police building was adjacent to a hospital complex that included a “sanatorium,” the

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regional name for a retirement home.5 The one wall of the

sanatorium closest to the police station was destroyed, but the

target photos of the police station showed the sanatorium had

sheets of plastic or some other covering over the exposed wall,

indicating that the sanatorium was still occupied.

Captain Boscomb gathered his pilots around him and looked

more closely at the pictures. Together with the intelligence officer and her targets specialists, they agreed that the retirement home was not abandoned after the first attack. Furthermore, after checking additional sources, the intelligence officer

found that higher headquarters saw no activity at the police

station over the last three days.

Boscomb looked hard at Lieutenant Mason. He asked her to

call her counterparts at the Combined Air Operations Center

(CAOC), the headquarters of the air war, and find out why this

target was still on the list given its damage and its proximity

to the retirement home. When the intelligence officer made the

call, the targets officer at the CAOC said that although there

was no observed activity at the police station, there may have

been activity that was unobserved and until the building was

completely destroyed, there was no way to ensure it would not

be used to command paramilitaries. 

Boscomb once again canvassed his flight. None of the pilots

felt strongly about the need to hit this target, but they were

very uncomfortable with questioning orders for what to attack.

There was a staff member at the CAOC who was responsible

for target selection. The commander of the air campaign and

the commander of Coalition forces were responsible for making the determination of what is moral and what is the appropriate level of use of force when noncombatants are involved.

But, these were old people next to a target already heavily

damaged. Therefore, the flight lead took his concerns to the

squadron and wing commanders, Lt Col “Mack” Shell and Col

“Billy” Jack. 

Maple told his commanders he was concerned with being

sought by the ICC for war crimes if they attacked that target.

They mentioned the apartment block that had been hit by a

flight earlier in the week. It had targeted a printing press and

publishing house, resulting in the loss of numerous civilian

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lives.6 The squadron and wing commanders were not overly

concerned with the collateral damage implications but decided

to call the CAOC to ask the question. 

When the wing commander called and talked to the CAOC

director, the answer that he delivered from General Watson

was that this was an air tasking order, not a request.7 The wing

commander could hardly disagree and told Captain Boscomb

to complete his planning and fly the mission as ordered. The

pilots and their intelligence personnel finished the planning,

and the fliers went back to their trailers for the mandatory

crew rest.

The next day, after flying the mission, the four pilots walked

into the operations building for their debriefing by intelligence.

They said they made it to the target area, but threat reactions

to enemy SAMs and poor visibility precluded them from dropping their bombs on the intended target. Instead, they destroyed

their back-up target, a depot out in the countryside away from

any villages.

After reviewing the video from the jets for information that

could be of intelligence value, the intelligence officer saw that

the intended target looked visible and not obscured by weather.

She called the squadron commander in to see the tapes, after

which the commander called the four pilots into his office and

grounded them. The four explained that they decided before

flying the mission that they could not bring themselves to attack a target that was already hit, since that would have resulted in numerous old people being killed or wounded.

Lieutenant Colonel Shell went to talk to Colonel Jack, who

was irate at the thought of his officers disobeying orders during the conduct of combat operations. The wing commander

called General Watson, commander of the Coalition forces of

Operation Restore Dignity and senior US Air Force commander

in the operation. Colonel Jack informed General Watson of the

incident that morning and recommended he, General Watson,

give each of the pilots an Article 15 under the Uniform Code of

Military Justice (UCMJ).8 General Watson agreed that would

be the best course of action. He told Colonel Jack he would not

make the penalty so stiff as to cause a backlash among the

fliers.

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General Watson, after conferring with his staff judge advocate (SJA) about his options, decided to offer each officer an

Article 15 and ground them from flying pending a board of inquiry after the war to determine whether they should ever fly

again in the Air Force. He called the four pilots in together and

told them he intended to impose nonjudicial punishment

under Article 15. He recommended that before they made any

decision on this matter that they first visit the area defense

counsel’s office and talk the matter over with the area defense

counsel. Then, the four fliers did something nobody expected.

They all refused the nonjudicial punishment in favor of a trial

by court-martial.9 General Watson was barely able to control

himself as he explained how much more trouble they faced in

a trial by jury of their peers. They all said they understood and

were willing to take their chances.

General Watson then called to inform Colonel Jack of the pilots’ decision. Colonel Jack was stunned at the decision of the

pilots and asked the general what he planned to do now. General Watson said he was going to exercise his right to hold a

trial at his level of command and later convened a general

court-martial at his headquarters.10 The court members consisted of Air Force officers selected from the theater of operations equal to or higher in rank than the accused. The area defense counsel and his team performed admirably in defense of

the pilots, but the prosecution mounted a vigorous case against

the pilots for refusing orders.11 The CAOC, after all, has a large

staff to determine target importance, and the commanders of

the operation, not their subordinates, are responsible for the

decisions of what is an acceptable level of noncombatant casualties weighed against target necessity. The court members

deliberated only 90 minutes before returning four guilty verdicts. The pilots were dismissed from the service. Since the officers were sentenced to dismissal from the service, an appeal

to the Air Force Court of Criminal Appeals was automatic.

That court affirmed the findings and sentences imposed on

the pilots.

The message that went from that trial to the forces was

clearly received. For the most part, the pilots flying combat

missions agreed with the verdict. They had things like getting

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to the target and returning home alive to worry about without

doing someone else’s job for them. But, the four pilots did not

accept the verdict. They obtained civilian counsel12 and petitioned the US Court of Appeals for the Armed Forces in Washington, D.C., to hear their appeal.13 The court agreed, as the

operation in Lebanon continued. 

On appeal, the defense argued that the laws of war, specifically The Hague Convention IV of 1907 and the Geneva Conventions of 1949 as well as the annual Law of Armed Conflict

(LOAC) training that all US military pilots receive, forbid disproportionate noncombatant loss of life.14 The fliers’ counsel

argued that the Geneva Conventions as well as precedent set

at Nuremberg forbid officers from carrying out unlawful orders.15

They argued that the order to attack that police station was

unlawful given the high likelihood of deaths to retirees in the

sanatorium when the objective against the target was achieved

on a previous bombing mission.16

The defense counsel then turned its attention to United States

v. New.

17 Counsel reminded the court that in the New case, the

court cited United States v. Trani and noted the long-standing

principle of military law that the command of a superior officer

is clothed with presumption of legality and that the burden of establishing the converse devolves upon the defense.18 Counsel

then noted that at least as early as 1917, the manuals for courtsmartial reinforced the notion that a military member could disobey the order of a superior provided the order would cause injury to a third party, was a breach of law and a crime, and could

correct an injury or crime.19 Counsel also observed that if the defendants had carried out the attack on the abandoned police station, then the likelihood existed that a large number of noncombatants would be injured or killed as a result of bombing a target

whose value was, at best, highly questionable.

Counsel then reminded the court that Articles 90, 91, and 92

of the UCMJ not only recognize the right, but the obligation, of

service members to obey lawful orders. Thus, individuals have

an equal responsibility and obligation to disobey illegal orders.

Counsel asked: “How do service members determine the lawfulness of an order?” “What is the standard?” “Where do we find

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this standard?” and “Where do we find the answers to all these

questions?” The answers are ubiquitous.

Defense then informed the court that there was a political

side to this matter as well and asked the court to reaffirm the

principle that the courts should decline to review political

questions. 

The Air Force appellate counsel responded that there were

no political issues here and defense’s argument was spurious.

The Air Force then went on to argue that if subordinates down

the ranks questioned every order made by senior officers, military order and discipline would surely collapse. While agreeing

that officers were forbidden from carrying out illegal orders,

the prosecution stated that good order and discipline would

collapse, and no operations could be carried out if officers

questioned every order they were given. The court deliberated.

In its decision to overturn the conviction of the pilots and

order their reinstatement by the Air Force with no future

repercussions against the officers for their actions, the court

emphasized two points. First, the court agreed with the Air Force

that the notion that both executive and legislative branches by

funding and mandating programs that stressed military

ethics, character, and moral decision making was too much of

a stretch for any court to entertain. However, the court did

agree with defense’s position that not only did each of the services expect all their members to disobey illegal orders but provided them with the tools to base such decisions in their respective training and education programs. This is especially

true, noted the court, with regards to the officer corps. Why

else, the court reasoned, would each of the service academies

have departments and centers dedicated to character development or military ethics? The Department of Defense, the court

added, has sponsored the Joint Services Conference on Professional Ethics (JSCOPE) since 1995.20 The conference stresses

issues relating to morality and war. In addition, the professional development publications of each of the services routinely include discussions of moral decision making. Officer

professional military education institutions, particularly those

of the Air Force, noted the court, include courses and research

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projects focusing on the notion of just war.21 The case made by

the defense was compelling.

The appellate judges went on to state that the officers did

exercise due diligence in this case. They declared that, given

the previous convictions of foreign military officers in international courts, it was entirely reasonable for these pilots to question the legality of this order to attack a seriously damaged police station that only “might” be used at some undetermined

time in the future when considering the proximity of the retirement home.

The judges agreed that, having ratified The Hague and Geneva

Conventions, the United States vowed to uphold the treaty requirements. Furthermore, they agreed that, although there is

a large staff specifically assigned to turn political decisions

into military strategies for any operation, the pilots made the

right decision to question the target’s significance. Given the

facts, the senior leadership at the CAOC should have reconsidered the target based on a stricter interpretation of the just

war doctrine of double effect. Referring to learning materials

used at Air Command and Staff College, the judges wrote that

double effect requires that four criteria be satisfied. First, the

act itself must be a legitimate act of war. Second, the direct

outcome of the act must satisfy the standard of moral acceptability. Third, the intended outcome must be in and of itself

good. And, fourth, the good effect far outweighs the destructive consequences. The judges then noted that there is a significant difference between foreseeable and unfortunate consequences, and positive effect is proportionally greater than

any potential evil effect. In other words, they stated the action

could not be a backdoor means to injure or punish the innocent for an act of their government or actions of others.22

Aftermath and Consequences

What ensued from this decision, closely monitored by military officers, foreign governments, and nongovernmental organizations, was a political bombshell that shook capitals

worldwide. The NATO countries that had opposed bombing in

populated areas away from the region of ethnic cleansing felt

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vindicated. The commanders and political leaders who had to

make the decisions about what is a proportional number of acceptable noncombatant casualties against the necessity of a

target or objective realized how much more difficult their jobs

became. The president and secretary of defense decided to approve targets themselves to forego another trial.23 Human rights

organizations were ecstatic over the appellate court’s decision

and made the most serious overtures towards criminalizing

military behavior. In addition, there were large demonstrations

in Paris, Berlin, Frankfurt, Amsterdam, and several other European cities supporting the decision.

Within four months of the end of combat operations, a coalition of human rights organizations, as well as several present

members of the UN Security Council that ratified the Rome

Treaty, petitioned the chief prosecutor of the ICC to investigate

the incident and take action under the auspices of the Rome

Treaty to prosecute war criminals.24 The petitioners pointed out

that the US military appeals court, although stopping short of

calling the order to bomb the police station illegal, found cause

for the pilots to question the order. If the order were unlawful,

should the person responsible for the order be held accountable? argued the human rights groups. After all, Sky News

had reported that, after that target was questioned by the four

pilots and the ensuing court-martial, 17 additional targets

were removed from the master target file for lack of military

necessity.

The prosecutor decided to broadly interpret her powers, as

this would constitute a precedent-setting case. She sought approval from the pretrial chamber to conduct a full investigation of the allegations of General Watson’s conduct.25 Although

the prosecutor acknowledged that the United States was not a

party to the treaty establishing the ICC, she successfully argued for the full investigation on the following points:

1. A party to the convention had initiated the request.

2. Since one or more of the aged civilians involved in the situation were citizens of a party to the Treaty of Rome, the court

should have jurisdiction in the case. 

3. Since the United States was a party to both The Hague

and Geneva Conventions and a signatory to Protocol 1 relating

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to the Protection of Victims of International Armed Conflicts,

the court could and ought to exercise jurisdiction if the United

States did not act on its own.26

4. Given the number of nations that have signed the treaty

and the growing support for the investigation by the world

community, it is obvious that the Treaty of Rome is considered

Customary International Law.27

5. Since the victorious Allied Powers at Nuremberg upheld

the principle of command responsibility, and since the General Assembly of the UN affirmed the principles of international law addressed by the Nuremberg Tribunals, which were

further validated by the subsequent trials of Gen Tomoyuki

Yamashita and Capt Ernest Medina, General Watson as the

Air Component commander must be held accountable for the

actions of Coalition Air Forces in Lebanon.28

The pretrial chamber readily agreed with the arguments set

forth by the prosecutor.29 The investigation continued. Shortly

thereafter, the prosecutor presented her findings to the pretrial chamber, which after a close consideration of the prosecutor’s information, found reasonable grounds for a case against

General Watson and issued a summons to appear.30

The president at first ignored the request, but as the request

was made public in European capitals and their newspapers,

the administration was increasingly asked to respond to the

request by friendly governments.31 Of course, as a nonparty to

the Rome Treaty, the president declined to dignify the request,

which would only further lend credence to a process that the

United States has always believed would be used against it politically. And, now it appeared that was just the case. 

The secretary of defense, in consultation with the president,

decided not to prosecute General Watson, because no one was

actually harmed in the planned reattack on the police station,

as the pilots actually dropped their bombs on an alternate target away from noncombatants. Besides, the general has since

retired, and nobody in the administration felt this was the

right course of action. At that point, the pretrial chamber, acting on the request of the chief prosecutor, asked the United

States to surrender General Watson to the jurisdiction of the

court for trial.

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Thus, the general effectively could not leave the United States

because all countries that are parties to the ICC are obligated

to hand over to the court those who have been summoned by

the court.32 He retired to his family’s farm in Wisconsin to tend

his dairy cows and await his fate.

The first phone call the president received came from the

prime minister (PM) of Great Britain. The PM urged his old

friend to open a case against the general and find, as they surely

would, that no laws had been broken.33 That way the ICC would

be satisfied, and the United States could preserve its public

opposition to the treaty. Furthermore, it would set an example

for other countries to see that the United States practices what

it preaches. The president thanked his old friend before hanging up. He then convened a meeting of key decision makers

and advisors in the Oval Office.

Back in the Oval Office

The secretary of defense took the opportunity to speak first.

“Mr. President, if we turn Watson over to this court, it will be a

sham. I don’t know of any general that will ever want to command an operation knowing that he can be put on trial in The

Hague for his decisions. We could face a mass resignation of our

senior leadership. And with the potential flare ups in this terror

war, we need our most experienced senior leaders commanding

forces, not younger officers promoted to fill the holes.”34

Answered the secretary of state, “We all clearly understand

that point. But there are at least two issues on my mind here.

First, how do we continue to ensure our own safety in the

world with these terrorist cells still active and planning on hitting us all over the world if we don’t have access to basing? We

have been receiving messages in most of our embassies that

our access will immediately disappear if we shield General

Watson. Of course, there are a few who are on our side, but

that doesn’t leave us with many options. Second, we are about

to lose our UN Human Rights seat again, and this time we’re

unlikely to get it back. The international implications of not

turning the general over are far greater than most people, even

in this room, I’d dare be so bold as to suggest, have envisioned.

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Everything from international sports to preferential trade agreements will suffer.”35

The vice president looked over to the attorney general and

said, “Countries are screaming that the law does not change

based on the rank of the officer implicated. We say the same

thing here, but damn it, we didn’t take his rank into account

when we decided in this room that he was not guilty of a war

crime. This is a political farce! Doesn’t anyone remember . . .

we didn’t bomb that building! . . . There was no attack!” 

“I raised that very point, sir, when I talked with the chief

prosecutor before driving over here,” said the attorney general.

“Her reply to me is that I missed the second point she originally made before the pretrial chamber.”

“And exactly what was that?” asked an irritated vice president. “Well, when the Appeals Court overturned the verdict and

sentences, that simply opened the door. She reminded me that

the ‘abandoned,’ her words, not mine, police station was in fact

previously attacked and civilians died. She went on to mention

that she thought it disturbing that right after the court martial, 17 targets were suddenly reevaluated and removed from

the target list. She reasoned that if we just happened to notice

that such a large number of targets lacked military necessity

after the trial, there is sufficient reason to believe that there

were at least as many such targets before the pilots did their

duty.”

“That line of reasoning is nonsense!” said the vice president.

“They’re trying to get to us through this court to undermine

our military capability in a way they could not ever hope to do

on a battlefield.” 

“That may be,” the attorney general answered, for “whatever

the military implications, our laws conflict on this issue. Although we have not tried the general here in the United States,

I am confident he would never be convicted under the UCMJ.

Yet, although we never ratified the ICC,36 we have a long history of supporting war crimes tribunals.37 Legally we can make

a strong case against the prosecutor and the pretrial chamber

on the notion that we made a bona fide examination of the alleged war crime.38 Of course, the prosecutor will argue that we

did not. This is a political decision, not a legal one. I believe

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there is sufficient cause under present law to either turn Watson over to the ICC, or to never turn him over. But also understand that, while we did not ratify the treaty, and even

though the conflict took place in a country that did not ratify

the treaty, because some of the dead were from countries that

are a party to the Treaty, within the bounds of the treaty the

ICC had justification to indict the general.”39

After a few moments of silence in which everyone chewed

over the attorney general’s words, the president looked over to

the speaker and nodded. Then the speaker of the House

added, “Mr. President, both houses of Congress are nearly unified. The sense among the electorate is that the rest of the

world can take a hike, as long as we can defend ourselves.

With a few exceptions, members from both sides of the aisle in

both houses strongly oppose extradition. If the General were

ordered extradited by the administration, both houses would

feel compelled to issue a joint resolution condemning the extradition. We’re trying to keep the members in line as best we

can, but many, not only on the other side of the aisle, would

see a cut in many of the administration’s highest nondefense

priorities a logical form of protest.” 

“That’s beautiful,” said the president. “Just beautiful.” 

“The problem,” said the secretary of defense, “is that state is

right. We’re having trouble defending ourselves as it is even

after targeting the terrorist cells abroad. If we do not have access to basing around the world and have our former allies on

board with us, then no Western country will ever be able to

prevent these people from forming, training, planning, and

carrying out their terror against us from rogue states or states

they take over. The world is not as simple as it was at the beginning of the last century when armies lined up like football

teams to see who was stronger. We got to this point because

the world has changed while our political will and military

strategy have not caught up.”

“I can’t believe all this hassle over one reversal by the Court

of Appeals for the Armed Forces,” said the president.

“As I said earlier, Mr. President, that was only the catalyst,” the

attorney general interjected. “The issue is the civilian casualties, however large or small, that are reinforced by four pilots

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who refused to obey what they believed was an illegal order. If

there was one, how many more were there? If four pilots had

the gumption to say no, why not the others?”

“Okay! Okay!” responded the frustrated president, catching

his breath. “What are my options and what are the consequences of those options?” he asked. Then looking over to his

counsel, he said, “Tony, take notes for me.” 

The vice president spoke first. “I see three options. We can

formally investigate the conduct of decision making in the

headquarters and, if warranted, try the general in a courtmartial. We can turn him over to the ICC. Alternatively, we can

ignore the request from the ICC. Of course each of these comes

with consequences, both domestically and internationally.” All

present nodded in agreement.

“OK, what about the option to try the general here at home?”

“First off, from a military standpoint,” answered the secretary of defense, “we’d face the possibility of mass resignations

by the senior military and civilian leadership. On the other hand,

my staff believes that there would be a greater percentage of

officers, especially in the field grade and lower general officer

ranks that would be in favor of an open investigation and trial,

in the hopes that Watson would be cleared, perhaps, but justice

served, at the very least. It would undoubtedly put some very

serious strain on the personnel system and our decisions for

command positions in the future conduct of any war or, for

that matter, any UN-sponsored action.” 

“If we tried General Watson by court-martial and he was acquitted, would the ICC let it rest, or would they come after

him?” asked the president.

The secretary of state answered flatly, “They’d better let it

rest. Under the treaty, the ICC must accept a national court

decision unless there is cause to believe it was a contrived

trial. They’ll respect any decision we make.”40

The president spoke up. “If we do try the General, and I’m

not saying he should be or shouldn’t be tried, but if we tried

him, wouldn’t we look like we were forced to do it? Wouldn’t

that be the same as handing him over? I mean, if we do this

openly, he may well be convicted, and that would be something we’d have to be prepared to answer. We said no to the

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initial investigation, but now are considering allowing him to

be tried. If we do this, we may never be able to prevent such a

scenario again.” 

“Mr. President, is that necessarily a bad thing?” asked the

attorney general. “We need not remind other countries about

laws unless we are willing to comply with our own, let alone

international laws.”

“Its the long-term military consequences I’m concerned

about,” noted the graved-faced president. The secretary of defense was agitated, but still spoke quietly. He had an entire military to think about and all that went with it. “We are swimming

in bad waters here. We have no idea what will result from our decisions. My counsel tells me the domestic law here is very unclear. There is no clear-cut rule for determining proportionality.

That is what command means, making that decision in each

case. For goodness sake, it is a war. If we tried him and he was

found guilty, that might make some governments and some

activists happy, but it would scare military leaders around the

world to death, even those who are in favor of a trial. I’d bet 10

dollars on that.”

“The future international consequences of a guilty verdict

would be the same as an acquittal.” The secretary of state was

thinking deeply as he spoke. “The problem is that if we try him,

regardless the outcome, pressure will mount from all quarters

in all future wars for a strict legal checklist to be followed,

rather than the creativity that has won wars in the past.41 Our

adversaries have already tried to use our own laws against us

and any trial would embolden them even more in the future.”42

“OK.” The president looked around the room and stood up

to go get some coffee at the side table. He talked as he poured

his coffee. “Trying him here is looking like a tough option. What

else can we do?” 

“The next option,” said the vice president, “is extraditing

General Watson to The Hague to stand trial before the ICC. Not

something we would have thought to discuss two years ago.

Let’s hear what you all think the consequences of this course

of action would be.” 

The attorney general spoke first. “Mr. President, I am most

uncomfortable with this option because we clearly have laws

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on the books that this case could be tried under, namely the

UCMJ. We have a judicial system here that is far less political

than most assume the ICC to be, true or not. If we send the

General to The Hague, there is no telling what would happen.

If he is, in fact guilty of a crime, we should find that out here

in our own judicial system.” 

All looked towards the secretary of state who said, “I think

there would be a near split in the international community.

Many would hail an extradition as the consummation of global

international law. They would then have the precedent necessary to request and receive the extraditions of hundreds of indictees worldwide. They would say that the United States has

finally put its money where its mouth is when urging other

states to extradite their accused war criminals. From an international relations standpoint, that one aspect would be

good. On the other hand, there would be many other states

that would, at best, grudgingly accept this extradition and

criticize the United States for not taking care of its own problem, especially given the tradition of jurisprudence the attorney general just cited. It would mean as much as domestic

turmoil for them as it would for us.” 

Turning to the speaker, the president asked, “What about

Congress?”

“Mr. President,” said the speaker, “there would be a grueling

debate on the issue. I can speak for the House, and I am sure

the Senate would be equally concerned.” Both Senate leaders

nodded. “Many of the very members who opposed the treaty in

the first place would argue that we cannot let our national security interests be decided in foreign capitals or by human

rights organizations. Others, however, would gladly accept the

extradition to show we are not trying to be unilateralists. It

would be a fierce debate, but I’m afraid both chambers would

oppose extradition with a joint resolution.”

The vice president said, “Mr. President, no matter what your

decision, there are going to be some Americans praising you

for it and others who will rake you over the coals.” Then, he

dropped the bombshell, “The American Civil Liberties Union

has made it perfectly clear that they will defend the General

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and bring a suit in the District Court here in D.C. to block any

extradition.” 

A startled attorney general looked at the vice president and

asked, “Do we know why?”

“They agree that the general’s right to a fair trial by his peers

would be jeopardized by sending him overseas for an action

not found to be criminal under US law.”

Then the president asked, “What if he was acquitted in The

Hague?” 

The secretary of state answered, “There would, of course, be

those who claim the court is merely a tool of American hegemony, but they would not carry the day. Far more likely,

everyone would breathe a sigh of relief that it was all over and

hope that something like this never happens again.”

“Would he be acquitted at the ICC?” the president asked to

nobody in particular. 

The attorney general answered, “From what I know of this

case, he’d be acquitted here and very likely also in The Hague.

There is very little black and white here. The main ICC case is

built upon the ruling of the Court of Appeals for the Armed

Forces, who never actually said the general committed a crime,

only that there was cause for the officers to believe the order

may have been unlawful. One more thing, Mr. President, even

if the general was acquitted, the prosecutor can appeal the acquittal.43 So, an acquittal does not necessarily mean an acquittal, at least as we know it.”

Then the vice president wondered aloud, “What if he were

convicted at The Hague?”

“The only possible action we could take, Mr. President,” said

the secretary of state, trying to find something positive in such

a scenario, “would be to stand up and say that, even as a nonsignatory, the United States does not shield people from their

crimes, and set it as an example for the world to follow.”

“What would be the future implications of that?” asked the

president.

“Well, I think it would be hard to find people who desired to

achieve command rank in the military,” said the secretary of

state “and don’t think this is only a problem for us. You think

about which country’s officers would want to command a

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coalition or go into uncertain operations of the kind we have

fought in the last decade. This may be the worst thing to happen to those that need the most protection. By trying to protect everyone from harm, military officers worldwide will fear

to go into certain areas or follow certain strategies for fear of

hurting noncombatants. All the while bad guys will cleanse

entire areas while military leaders wait for orders from civilians

who have not had to make those decisions in the past.”

“That sounds like an even tougher option,” said the president. “What’s left?”

The vice president continued. “Domestically, I’m not confident that the citizenry would be comfortable in merely ignoring the indictment. There is strong concern these days with

equality of treatment, and frankly, it might indeed look like we

have something to hide.”

The secretary of state spoke up next. “If we chose to ignore

the indictment, there would be essentially two responses internationally. The first is that the international community

would have their bluff called, and they would go quietly. There

might be some minor demonstrations in certain capitals, but

governments might not see this as an issue to push us on. If that

were the case, we could ride out the storm within a few months.”

“On the other hand, and I think more likely, there would be

strong condemnation in the UN and within NATO. There might

be very vocal and very public cries for resolutions pressuring

us to turn Watson over.”

“NATO has already pushed for a restructuring of the command relationships to put non-US officers in the command

billets of Allied Forces Southern Europe,”44 said the secretary

of defense. “This would be the reason and we’d likely lose the

vote big.” 

“Furthermore, we would have to face the possibility that in

any future conflicts, or even continuations of our war on terrorism, countries may not join the coalition under US leadership if we protect Watson,” said the secretary of state.

“That’s balderdash, and we all know it,” replied an angry

secretary of defense. “We’re the only ones able to lead any combat coalition anywhere in the world. Unless these countries all

decided not to fight, which would be fine by many within my

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department, they’d need our logistics capability to support

and sustain them in any operations.”

“How likely is it that they’d all either demand alternative

coalition leadership, or stay at home in future fights?” asked

the vice president. 

“Well, you all know how hard they’ve been pressing me both

in my visits abroad and on the phone,” answered the president. “Most of the leaders understand the position we’re in, although they disagree with us. It is their parliaments that are

pushing them, and they will likely follow their popular sentiment.” 

“Mr. President, if I may?” It was the House speaker seeking

the attention of the president, saying, “The Armed Services

Committee staffers have been hearing rumblings from within

the uniformed services for an airing about this. Sort of a desire to seek accountability and either clear the guy or clean up

the image, which the leadership just below the top levels says

needs to be repaired.”

The secretary of defense spoke in calm, but measured words.

“This is true, but I don’t want mention of it outside private deliberations. We can’t have staffers on the Hill talking to the

media about problems within the ranks, especially in this time

of high operations tempo. The fact is, Mr. President, that many

of our lower-ranking generals and colonels think that ignoring

the issue would make their jobs all the more difficult if the

situation isn’t dealt with openly. This is in contrast to many of

the senior generals who want to see no investigation at all.

This is at least as important an issue as the international considerations, in my mind.”

“Anything else that can happen under the Ignore option?”

asked the vice president.

“Well, Mr. President,” said the secretary of state, “it is possible that there would be intense diplomatic and military to military pressure below the level of media attention. Other countries might put pressure on American business interests. We

might see some disengagement of talks at certain diplomatic

levels, and may see many of our military exercise opportunities abroad reduced. While not openly vocal, this may be, in

fact, more damaging in a real sense.”

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The vice president summed it up. “The unknown ramifications of how to determine future actions based on past silence

will weigh on both government and military leaders. How will

we deal, in this very room, with future decisions if we remain

silent on this issue? This is probably the most uncomfortable

option for all with the greatest long-term implications. Silence

may set a precedent that nobody will want, but that nobody

may be able to avoid.”

The room was filled with silence as the president’s advisors

sat back and looked to the president for a decision. 

Then the secretary of state spoke once again, “Excuse me

Mr. President. There is one more thing I failed to mention. The

United States has always taken the lead in issues of this sort.

We were the ones to push for war crimes tribunals at the end

of the World War II. We are the ones who pushed for the affirmation of the tribunals at the UN in 1946. We did the same for

Rwanda and Yugoslavia. We got a black eye for failing to ratify

the Rome Treaty. And, we’ve caught hell around the world with

our Article 98 Agreements.45 I really do not have any idea what

the fallout will be if we say no again. I’m sorry, Mr. President,

but I just had to . . .” as his chin slowly dropped onto his chest

and his voice drifted off into mumbled silence.

“Alright, my head’s starting to hurt,” said the president, indicating that the meeting had come to an end. “I’m going to

think about this. We’ll get back together, maybe tomorrow or

at the latest the day after.”

Notes

1. Intelligence reports noted that al-Qaida was attempting to regroup in

Lebanon. Numerous other news outlets, to include the London Times and

Wall Street Journal, reported similar stories. See “UPI Hears . . .,” Washington Times, 25 March 2002.

2. The strategy executed by the US Central Command and the coalition

against terrorism in Afghanistan broke conventional expectations by relying

not on massive airpower alone, nor massive ground attacks, but precision attacks against specific terrorist objectives through a synergy of special operations forces working in concert with air power dropping precision munitions.

3. See The Federation of American Scientists at http://www.fas.org/irp/

program/collect/predator.htm for details on the capabilities of the Predator

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uninhibited aerial vehicle and discussion of its role both in the Kosovo war

as well as in Afghanistan.

4. The standard intelligence premission briefing format has expanded in

some wings to include collateral damage estimates and implications for the

planners to consider.

5. Several hospitals (Nis, Dragisa Misovi, and Surdulica) and an old age

home (Surdulica) were damaged or destroyed during attacks. See “NATO/Federal Republic of Yugoslavia ‘Collateral Damage’ or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force,” a report

written by Amnesty International, http://web.amnesty.org/library/print/

ENGEUR700182000. See also Jeffrey L. Gingras and Tomislav Z. Ruby,

“Morality in Modern Aerial Warfare,” unpublished manuscript, Montgomery,

Ala.: Air Command and Staff College, 2000, http://research.maxwell.af.mil/

papers/student/ay2000/acsc/html/00-205.pdf. In Operation Allied Force,

the NATO air war over Serbia, NATO forces targeted and attacked in the

town of Surdulica, a Serbian police station used by paramilitaries who were

ethnically cleansing the Albanian population from the area. The police station shared a perimeter with a retirement home and was hit on more than

one occasion. Human Rights Watch questioned NATO regarding the importance of the target. In an official memorandum to Human Rights Watch,

NATO explained that the police station was a legitimate target, but the organization did not mention any scale of proportionality of noncombatant casualties against the necessity of that target. In just war theory, the notion of

proportionality is the second of two key elements of jus in bello, or the just

conduct in war. Proportionality is essentially a cost benefits analysis of a

specific operation or act in war. The destruction caused must not be greater

than the justified military outcome or end.

6. During the air war over Serbia, NATO spokesman Jamie Shea acknowledged that 11 people were killed and more than 20 injured when one

of 20 bombs targeted on a publishing house in the town of Novi Pazar, Serbia, went long and hit an apartment building across the street. See “NATO’s

Bombing Blunders,” BBC News, on-line, 1 June 1999, 7.

7. The same response was given by a general officer to a wing commander in Desert Storm after questioning the wisdom of sending unprotected strikers into a heavily defended part of Iraq.

8. An Article 15 is the highest level of nonjudicial punishment offered

under the Uniform Code of Military Justice and must be included in officers’

official service records. For officers to receive Article 15s on their records virtually means never being promoted beyond their present rank. There have,

of course, been a few exceptions.

9. Under the UCMJ, military personnel are not obligated to accept an Article 15, nonjudicial punishment. They have the right to request trial by

court-martial wherein they may be exonerated, found guilty, or receive an

even harsher punishment. Even if an individual is exonerated, the individual might still face an administrative discharge.

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10. Before a general court-martial is convened, the military will first conduct an Article 32 investigation. This is the military equivalent to a civilian

grand jury. For reasons of brevity, this article assumes that an Article 32 investigation has been conducted and the investigating officer recommended

that this case go to trial.

11. There is no firm rule on joinder of related cases. Depending on the

facts and circumstances, individuals could be tried together or separately.

In this particular case, trying the officers together was a logical approach

based on all the facts and circumstances surrounding it.

12. Military counsel is provided free of charge to all military personnel

tried in a military court. Free counsel continues throughout the appeals

process. The service member always has the option of personally hiring civilian counsel, which the pilots chose to do in this case.

13. See the court Web site, http://www.armfor.uscourts.gov/.

14. Article 22 of Hague IV (1907) states that “the rights of belligerents to

adopt means of injuring the enemy is not unlimited.” Article 27 states that

“as far as possible,” charitable buildings, hospitals, etc., are to be spared. All

four of the Geneva Conventions of 1949 note that noncombatants are protected persons. The United States is not a party to Protocol I (1977) of the

Geneva Conventions of 1949. Article 51, paragraph 1, states that the civilian population shall not be the object of attack. Paragraph 5 (b) identifies an

indiscriminate attack as an attack that may be expected to cause incidental

loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and

directed military advantage anticipated. Air Force Instruction 51–401 governs

LOAC training program. At a minimum, this Air Force Instruction requires

that every member of the Air Force undergo annual training on the laws and

customs of war as stipulated by The Hague and Geneva Conventions. In addition, a member of the Air Force who believes that a possible violation of

LOAC has occurred must immediately report the incident to his or her commanding officer. Any commander who has received a report of noncompliance with or a breach of LOAC must immediately report all facts to the appropriate staff judge advocate (emphasis in original).

15. In discussing LOAC and Nuremberg, one cannot fail to mention the

incident at My Lai, Viet Nam in January 1968, and the killing of several hundred noncombatants (men, women, and children) by US forces. Of the 25 officers and enlisted personnel originally charged, three were court-martialed—

two were acquitted, and the third, Lt William Calley, was convicted. None of

the three was charged for violations of either international law or LOAC. All

were charged under the UCMJ. Calley was convicted for violation of Article

118, murder. Nonetheless, the courts validated several convention and LOAC

provisions. First, the obligation to disobey illegal orders was affirmed. Second, the concept that a commander is responsible for the actions of subordinates (superior accountability) and must take all reasonable steps to insure compliance with LOAC was validated.

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16. Anthony Cordesman argued that every officer has the moral responsibility for every other officer’s decisions. This standard would support the

fliers’ questioning of proportionality in this scenario. See Anthony Cordesman, “The Moral and Ethical Challenges of Modern War’’ (paper presented to

the US Army War College’s 21st Annual Strategy Conference, 9 April 2002).

17. See United States v. New, 55M.J. 95 (2001), decided on 13 June 2001.

In this case, Army Spec. Michael G. New appealed his conviction for disobeying a lawful order.

18. In addition to United States v. New, see also United States v. Trani,

1952 CMA LEXIS 826, 1 U.S.C.M.A. 293, 3 C.M.R. 27 (1952).

19. In addition to United States v. New, see also paragraph 415, Manual

for Courts-Martial, United States, 1917, at 210, which sets a high standard

for disobeying an order.

20. For additional information about JSCOPE, see http://www.usafa.af.

mil/jscope/. Many of the papers presented at the JSCOPE Conferences are

readily available online at this web address.

21. Maj Jerry Swift, one of our ACSC students, researched and submitted his findings in “The Teaching of Morality in Warfighting in Today’s Officer Corps” in partial fulfillment of our Morality and War elective requirement

in 2001. His paper is available at https://research.maxwell.af.mil/papers/

ay2001/acsc/01-208.pdf.

22. See Michael Walzer, Just and Unjust Wars (New York: Basic Books,

1977), 151–60, and Michael Carlino, “The Moral Limits of Strategic Attack,”

Parameters 32, no. 1 (Spring 2002): 15–29, for a discussion of the doctrine of

double effect and the strict scale of proportionality allowable within warfare. 

23. Beginning with the air war over Serbia, target graphics were designed

for briefing at the White House for presidential approval. The graphics included pictures of the target, the significance of the target, and an estimate

of noncombatant casualties given the type of weapons recommended.

24. See the International Criminal Tribunal for Yugoslavia Weekly Press

Briefing, 5 May 1999, http://www.un.org/icty/briefing/PB050599.htm. A

spokesman stated that the Office of the Prosecutor “was satisfied that it had

jurisdiction over the 19 NATO members.” 

25. Under Article 14 of the Treaty of Rome, “a state party may refer to the

prosecutor a situation in which one or more crimes within the jurisdiction

of the Court appear to have been committed. . . .” Article 15, paragraph 1,

of the treaty authorizes the prosecutor to initiate an investigation. Paragraph 3 of the same article requires that the prosecutor to seek approval

from the pretrial chamber to proceed with an investigation provided there is

a reasonable basis to conduct an investigation.

26. “Protocol Additional to the Geneva Conventions of 12 August 1949,

and relating to the Protection of Victims of International Armed Conflicts

(Protocol I), 8 June 1977,” http://www.icrc.org/ihl.nsf/7c4d08d9b287a4214

1256739003e636b/f6c8b9fee14a77fdc125641e0052b079?OpenDocument.

Article 51, paragraph 4, prohibits indiscriminate attacks on the civilian population. Paragraph 5 defines the types of attacks that are considered indis94

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criminate. Subparagraph 5(b) states “an attack which may be expected to

cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the

concrete and direct military advantage anticipated.”

27. Article 38 of section 4 states that “Treaties and Third States of the

United Nations Convention on the Law of Treaties” (dated 23 May 1969), which

entered into force on 27 January 1980, become binding on a third state

when that treaty becomes recognized as a customary rule of international

law. The criteria determining when something becomes customary is open

to speculation.

28. At the end of World War I, the Commission on the Responsibility of

the Authors of the War and on Enforcement of Penalties established the principle of command responsibility (superior accountability). Col Kenneth

Howard, the military judge, validated superior accountability during the trial

of Gen Tomoyuki Yamashita in 1946 and as previously documented in note

15 above during the trial of Captain Medina (My Lai). For an in-depth review

of this issue, see Leslie C. Green, “War Crimes, Crimes against Humanity, and

Command Responsibility,” http://www.nwc.navy.mil/press/Review/1997/

spring/art2sp97.htm.

29. Article 34 of the Rome Statute addresses the organization of the

court: Presidency, Appeals Division, Trial Division, Pre-Trial Division, and

Office of the Prosecutor and the Registry. The pretrial chamber is comprised

of three judges from the Pre-Trial Division. The rules of procedure and evidence discuss the duties and responsibilities of the members of the court.

The pretrial chamber handles all of the pre-trial matters of the court. See

http://www.iccnow.org/buildingthecourt.html.

30. Article 58 of the Rome Statue states that the pretrial chamber may

issue a warrant of arrest or a summons to appear before the ICC on the application of the prosecutor upon being satisfied that there are reasonable

grounds to believe that a crime within the jurisdiction of the court has been

committed.

31. See Robert W. Tucker, “The International Criminal Court Controversy,” World Policy Journal 18, no. 2 (Summer 2001). The ICC may only take

jurisdiction if a state is unwilling or unable to investigate and prosecute.

32. Under the provisions of part 9 to the statute, the court has the authority to ask all other “States parties” for cooperation. Countries that are a

party to the statute are then obligated to assist in the apprehension of persons sought by the court.

33. See Jonathan I. Charney, “International Criminal Law and the Role

of Domestic Courts,” The American Journal of International Law 95, no. 1 (January 2001): 120–24, for a discussion of the pressure which can be applied

to countries to conduct bona fide examinations, or turn the indicted over.

34. In his testimony before the Senate Foreign Relations Committee on

23 July 1998, David Scheffer, US ambassador at large for war crimes issues,

stated that the establishment of the court could “inhibit the ability of the

United States to use its military to meet alliance obligations and participate

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in multilateral operations, including humanitarian interventions to save

civilian lives.” See http://www.state.gov/www/policy_remarks/1998/980723

_scheffer_icc.html.

35. The United States was voted off the 53-nation Human Rights Commission on 3 May 2001. According to the Reuters News Service, which interviewed

Joanna Weschler, the UN representative of Human Rights Watch, “Many voters

resented the poor US voting record on issues like land mines and availability of

AIDS drugs.” See http://news.bbc.co.uk/hi/english/ world/americas/newsid_

1311000/1311468.stm, BBC News, 3 May 2001. According to the BBC News,

the United States regained a seat on the Human Rights Commission in a secret ballot. See http://news.bbc.co.uk/hi/english/world/americas/newsid_

1958000/1958406.stm, 29 April 2002.

36. On 31 December 2000, Pres. Bill Clinton signed the Treaty of Rome to

leave open the option for the United States to offer future changes in the

treaty. Had he not signed the treaty, the United States would have no voice

in determining any of the rules or procedures governing the operation of the

court. On 6 May 2002, the United States notified the secretary-general of the

United Nations that the United States had not intended to ratify the Treaty

of Rome and was therefore not bound by it provisions. For additional details,

see http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/

chapterXVIII/treaty10.asp.

37. The United States was instrumental in establishing the Nuremberg

War Crimes Trials as well as the War Crimes Trials in the Pacific after World

War II. The United States was also a key player for the International Criminal Tribunals for Rwanda and the Former Yugoslavia.

38. The ICC Statute, Article 17, states that a case is not admissible to the

ICC if a bona fide examination of the alleged crime was undertaken and disposed of by the state. However, there is no precedent as to what constitutes

a “bona fide examination” or disposition by the state.

39. See Tucker, “The International Criminal Court Controversy,” World

Policy Journal, Summer 2001, 71–81. Tucker argues that “Indeed the United

States extradites and surrenders its own citizens all the time to be tried by

foreign courts that are not subject to the US Constitution or its Bill of

Rights.”

40. According to Article 20 of the Rome Statute, a person tried by another

court cannot be tried by the ICC unless the court believes “the proceedings

of the other court: (a) were for the purpose of shielding the person concerned

from criminal responsibility for crimes within the jurisdiction of the court;

or (b) Otherwise (sic) were not conducted independently or impartially in accordance with the norms of due process recognized by international law and

were conducted in a manner which, in the circumstances, was inconsistent

with an intent to bring the person concerned to justice.”

41. For a detailed discussion of “lawfare” in future conflicts, see Col

Charles Dunlap, Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts (paper presented at the Humanitarian Challenges

Military Intervention Conference, Washington, D.C., 29 November 2001.

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42. Mary Anastasia O’Grady reported that it is not uncommon for insurgents to either bribe or force peasants to file false charges against competent military commanders to force them from their positions. All the while,

they themselves are committing atrocities and other human rights violations. See Mary Anastasia O’Grady, “What About Colombia’s Terrorists?”

Wall Street Journal, 5 October 2001.

43. Rule 111 of the rules of procedure and evidence allow the prosecutor

to appeal the trial chamber’s acquittal of a suspect if certain conditions are

satisfied.

44. Since 1997, France has made numerous public statements about

wanting a European commander in NATO’s southern headquarters in

Naples, Italy. Presently, the overall commander, as well as the air and naval

commanders for NATO’s southern region are Americans. See the Center For

Defense Information, Weekly Defense Monitor, No. 2 (24 July 1997), http://

www.cdi.org/weekly/1997/Issue2/#2, and “A New Dialogue Between Equals,”

Time 194, no. 4 (27 January 1997), http://www.time.com/time/magazine/

1997/int/970127/europe.a_new.html for more details.

45. Under the Treaty of Rome, Article 98(2), agreements allow a country

to enter into jurisdictional-routing agreements that take precedent over the

Treaty of Rome. Many of America’s allies and nongovernment organizations

contend that these so-called agreements not only violate the intent but the

letter of Article 98 as well.

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99

State Signature

Ratification,

Accession (a)

State Party

Number

Afghanistan 10 Feb 2003 (a) 89

Albania 18 Jul 2002 31 Jan 2003 88

Algeria 28 Dec 2000

Andorra 18 Jul 1998 30 Apr 2001 30

Angola 7 Oct 1998

Antigua and Barbuda 23 Oct 1998 18 Jun 2001 34

Argentina 8 Jan 1999 8 Feb 2001 28

Armenia 1 Oct 1999

Australia 9 Dec 1998 1 Jul 2002 75

Austria 7 Oct 1998 28 Dec 2000 26

Bahamas 29 Dec 2000

Bahrain 11 Dec 2000

Bangladesh 16 Sep 1999

Barbados 8 Sep 2000 10 Dec 2002 87

Belgium 10 Sep 1998 28 Jun 2000 13

Belize 5 Apr 2000 5 Apr 2000 8

Appendix

Signatories and Ratifications to the Rome Statute of the ICC*

*This list is current as of 19 May 2005.

**Ten countries deposited their instrument of ratification simultaneously at a special UN ceremony on 11 April 2002, crossing the threshold of 60 ratifications needed for the Rome Statute to

enter into force. Due to their concerted efforts, each country was designated the 60th State

Parties member.
100

State Signature

Ratification,

Accession (a)

State Party

Number

Benin 24 Sep 1999 22 Jan 2002 49

Bolivia 17 Jul 1998 27 Jun 2002 71

Bosnia and Herzegovina 17 Jul 2000 11 Apr 2002 60**

Botswana 8 Sep 2000 8 Sep 2000 18

Brazil 7 Feb 2000 20 Jun 2002 69

Bulgaria 11 Feb 1999 11 Apr 2002 60**

Burkina Faso 30 Nov 1998 16 Apr 2004 93

Burundi 13 Jan 1999 21 Sep 2004 95

Cambodia 23 Oct 2000 11 Apr 2002 60**

Cameroon 17 Jul 1998

Canada 18 Dec 1998 7 Jul 2000 14

Cape Verde 28 Dec 2000

Central African Republic 7 Dec 1999 3 Oct 2001 41

Chad 20 Oct 1999

Chile 11 Sep 1998

Colombia 10 Dec 1998 5 Aug 2002 77

Comoros 22 Sep 2000

Congo 17 Jul 1998 3 May 2004 94

Costa Rica 7 Oct 1998 7 Jun 2001 33
101

State Signature

Ratification,

Accession (a)

State Party

Number

Côte d’Ivoire 30 Nov 1998

Croatia 12 Oct 1998 21 May 2001 32

Cyprus 15 Oct 1998 7 Mar 2002 55

Czech Republic 13 Apr 1999

Democratic Republic of Congo 8 Sep 2000 11 Apr 2002 60**

Denmark 25 Sep 1998 21 Jun 2001 35

Djibouti 7 Oct 1998 5 Nov 2002 82

Dominica 12 Feb 2001 a 29

Dominican Republic 8 Sep 2000 13 May 2005 99

Timor Leste 6 Sep 2002 a 79

Ecuador 7 Oct 1998 5 Feb 2002 52

Egypt 26 Dec 2000

Eritrea 7 Oct 1998

Estonia 27 Dec 1999 30 Jan 2002 50

Fiji 29 Nov 1999 29 Nov 1999 5

Finland 7 Oct 1998 29 Dec 2000 27

France 18 Jul 1998 9 Jun 2000 12

Gabon 22 Dec 1998 20 Sep 2000 21

Gambia 4 Dec 1998 28 Jun 2002 73
102

State Signature

Ratification,

Accession (a)

State Party

Number

Georgia 18 Jul 1998 5 Sep 2003 92

Germany 10 Dec 1998 11 Dec 2000 25

Ghana 18 Jul 1998 20 Dec 1999 6

Greece 18 Jul 1998 15 May 2002 67

Guinea 7 Sep 2000 14 Jul 2003 91

Guinea-Bissau 12 Sep 2000

Guyana 28 Dec 2000 24 Sep 2004 97

Haiti 26 Feb 1999

Honduras 7 Oct 1998 1 Jul 2002 76

Hungary 15 Jan 1999 30 Nov 2001 47

Iceland 26 Aug 1998 25 May 2000 10

Iran (Islamic Republic of) 31 Dec 2000

Ireland 7 Oct 1998 11 Apr 2002 60**

Israel 31 Dec 2000

Italy 18 Jul 1998 26 Jul 1999 4

Jamaica 8 Sep 2000

Jordan 7 Oct 1998 11 Apr 2002 60**

Kenya 11 Aug 1999 15 Mar 2005 98

Kuwait 8 Sep 2000
103

State Signature

Ratification,

Accession (a)

State Party

Number

Kyrgyzstan 8 Dec 1998

Latvia 22 Apr 1999 28 Jun 2002 74

Lesotho 30 Nov 1998 6 Sep 2000 16

Liberia 17 Jul 1998 22 Sep 2004 96

Liechtenstein 18 Jul 1998 2 Oct 2001 40

Lithuania 10 Dec 1998 12 May 2003 90

Luxembourg 13 Oct 1998 8 Sep 2000 19

Macedonia (F.Y.R) 7 Oct 1998 6 Mar 2002 54

Madagascar 18 Jul 1998

Malawi 2 Mar 1999 19 Sep 2002 81

Mali 17 Jul 1998 16 Aug 2000 15

Malta 17 Jul 1998 29 Nov 2002 85

Marshall Islands 6 Sep 2000 7 Dec 2000 24

Mauritius 11 Nov 1998 5 Mar 2002 53

Mexico 7 Sep 2000

Monaco 18 Jul 1998

Mongolia 29 Dec 2000 11 Apr 2002 60**

Morocco 8 Sep 2000

Mozambique 28 Dec 2000
104

State Signature

Ratification,

Accession (a)

State Party

Number

Namibia 27 Oct 1998 25 Jun 2002 70

Nauru 13 Dec 2000 12 Nov 2001 45

Netherlands 18 Jul 1998 17 Jul 2001 37

New Zealand 7 Oct 1998 7 Sep 2000 17

Niger 17 Jul 1998 11 Apr 2002 60**

Nigeria 1 Jun 2000 27 Sep 2001 39

Norway 28 Aug 1998 16 Feb 2000 7

Oman 20 Dec 2000

Panama 18 Jul 1998 21 Mar 2002 56

Paraguay 7 Oct 1998 14 May 2001 31

Peru 7 Dec 2000 10 Nov 2001 44

Philippines 28 Dec 2000

Poland 9 Apr 1999 12 Nov 2001 46

Portugal 7 Oct 1998 5 Feb 2002 51

Republic of Korea 8 Mar 2000 13 Nov 2002 83

Republic of Moldova 8 Sep 2000

Romania 7 Jul 1999 11 Apr 2002 60**

Russian Federation 13 Sep 2000

Saint Lucia 27 Aug 1999
105

State Signature

Ratification,

Accession (a)

State Party

Number

Saint Vincent and the Grenadines 3 Dec 2002 a 86

Samoa 17 Jul 1998 16 Sep 2002 80

San Marino 18 Jul 1998 13 May 1999 3

Sao Tome and Principe 28 Dec 2000

Senegal 18 Jul 1998 2 Feb 1999 1

Serbia and Montenegro 19 Dec 2000 6 Sep 2001 38

Seychelles 28 Dec 2000

Sierra Leone 17 Oct 1998 15 Sep 2000 20

Slovakia 23 Dec 1998 11 Apr 2002 60**

Slovenia 7 Oct 1998 31 Dec 2001 48

Solomon Islands 3 Dec 1998

South Africa 17 Jul 1998 27 Nov 2000 23

Spain 18 Jul 1998 24 Oct 2000 22

Sudan 8 Sep 2000

Sweden 7 Oct 1998 28 Jun 2001 36

Switzerland 18 Jul 1998 12 Oct 2001 43

Syrian Arab Republic 29 Nov 2000

Tajikistan 30 Nov 1998 5 May 2000 9

Tanzania (United Rep.) 29 Dec 2000 20 Aug 2002 78
106

State Signature

Ratification,

Accession (a)

State Party

Number

Thailand 2 Oct 2000

Trinidad and Tobago 23 Mar 1999 6 Apr 1999 2

Uganda 17 Mar 1999 14 Jun 2002 68

Ukraine 20 Jan 2000

United Arab Emirates 27 Nov 2000

United Kingdom 30 Nov 1998 4 Oct 2001 42

United States of America 31 Dec 2000

Uruguay 19 Dec 2000 28 Jun 2002 72

Uzbekistan 29 Dec 2000

Venezuela 14 Oct 1998 7 Jun 2000 11

Yemen 28 Dec 2000

Zambia 17 Jul 1998 13 Nov 2002 84

Zimbabwe 17 Jul 1998