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

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