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103C
A M E R I C A N B A R
ASSO CI ATI O N
C R I M I N A LJUSTICE
SECTI O N
R E P O R T
T O T H E
HO U SE
O F D E L E G A T E S
R E C O M M E N D A T I O N
1 R E S O L V E D ,Thatthe Congress shouldenactlegislationto require the President to:
2
3 1. Report to the Congress within thirty days after receiving notice
fi-om
the
Intemational
Criminal
Court Prosecutor
that
a
United
States
National
committed an
actwithinthejurisdiction
of
the Intemational CriminalCourt;
6
7
2. Take all
reasonable
stepstoassurethatthe UnitedStates retainsjurisdiction to
8
investigate and,i fnecessary,
prosecute
the alleged act; and
9
10 3 Report promptiy to Congress onsubsequentactionsbythe Intemational Criminal
11 Court
with
respect
to the alleged act.
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R E P O R T
Introduction
The
American
Bar
Association
has a
long
history of developingpolicy
statements
pertaining to
the establishment of a permanent, intemational tribunal to prosecute the most heinous crimes
against humanity. The
Association's policies
have consistently supported estabUshment of an
intemational
criminal
court,
whileacknowledgingthatthere
are certain issues
that
pose barriers
to
UnitedStatesparticipation.
The court's
jurisdiction
and the role of court's prosecutor have
historically
been problematic issues.
While
the Association's pohcies have recognized
these
barriers, they offer at most,
only
general principles
on
how such issues shouldberesolved.
Likewise,
the
Association
has not previously urged
that
the
United
Statesparticipate in an
intemational
criminal
court. Its resolutions have been
limited
in urging the
United
States
to
participate in activities to bring about the establishment of an intemationalcriminalcourt.
However,in its November 18, 2000
Fall
Council
Meeting the
A B A
Criminal
Justice Section
joined
in sponsoring a recommendation, proposed by the Intemational
Law
Section,
urging
full
American
participationinthe Intemational
Criminal
Court(ICCor Court) as set outinthe Rome
Statiite. This recommendation is House of Delegates Report
N o.
105C of the Febraary 2001
Midyear
Meeting.
If adopted by the A B AHouse of Delegates, the recommendation vsdllbe a
major
step
in the evolution of the Association'spolicy
statements
related to the intemational
criminal
coiut.
The recommendation
that
accompanies this report
urges
implementation of a threepoint
legislative
regimen designed to provide the
greatest
possible
assurance
that
the
United
States
exercise
principal jurisdiction
over its nationals, and thereby
minimize
the risk of an
American
national being prosecuted intheI CC.
This
recommendation was adopted by the
Criminal
Justice
Section
in
fiill
consideration of two significant assmnptions. First, the Court is very
likely
to
come into being. Second, whether or not the
United
Stateselects to ratify the Rome Statute, a
policy
must be put
i n
place
to
ensure
that
theUnited
States
exerciseprimaryjurisdictionover its
nationalswithregard
to
theI CC.
Background
In
February 1978 the Association urged the
United
States Department of
State
to open
negotiations for a convention on the estabUshment of an intemationalcriminal courtwith
expressly
limited
jurisdiction (Report No. 102C). In February 1991, the
American
Bar
Association
House of Delegates estabUshed an
A B A Blue
Ribbon Committee on an
Intemational
CriminalCourt
(Report
N o.
8A). The Committee was subsequently appointed and
designated as an
A B ATaskForce.
Inthe wake of the Task Force's work an August 1992poUcy(Report N o. I l l ) was' approved
urging
the
United
States
government to
address
the issues identified in the reports of, both, tiie
A B ATask Force on an Intemational
Criminal
Court, and the
New
YorkStateBar
Association.
TheA B AResolution
contained
in
Report
111
urged
that
the issues raised
in
the
A B ATask
Force
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and
NewYork
Bar
reports
be addressed in the context of establishing an intemational
criminal
court, but noendorsementwasgivento a concreteplan
thatwould
resolve anyofthe paramount
legal
or practical issues.
InAugust 1994, the
A B A
House of Delegates adopted a resolution (Report
N o.
114 C) urging
the UnitedStatesgovernment to
take
an active role in establishing an intemational criminal
court.
This
resolution envisioned a courtwith
two
bases
for jurisdiction:consensualjurisdiction,
received via deference by the
state
in custody of the
suspect,
and mandatory jurisdiction,
authorized byal lnations'
assent
tothe
United
Nations Charter.
In February 1998, a resolution (Report No. 118B) was adopted urging establishment of a
permanent
intemational criminal court, and recommended
that
the United
States
government
continue to play a role in negotiating and drafting a
treaty
establishing a court. It further,
outlined four specific principles, concerningjinisdiction,the initiation of prosecution and due
process
standards,
whichshould guide the creation
of
an intemationalcriminalcourt.
InAugust
1999 the
A B A Criminal
Justice
Section
and Intemational
Law
Section each approved
and submitted to the A B AHouse of Delegates recommendations (ReportNos.113B and 300,
respectively) lu-ging the United
States,
in varied language, to participate in the shaping of a
RomeStatute
that
the
United
Statescould ratify. Bothrecommendations were withdrawn from
the House of Delegates inhopes
that
the two sections could reach a mutually acceptable
recommendation.
Finally,at its November 18, 2000 Fall
Council
Meeting die A B A
Criminal
Justice Section
adopted two recommendations conceming the RomeStatuteon the Intemational
Criminal
Court
(ICC orCourt). Thefirstrecommendation, proposed by the Intemational
Law
Section,urgesthe
United
Statesto ratify the RomeStatute. The second recommendation adopted by theCriminal
Justice
Section
is the subject
of
this report.
United
States
Participation
inthe Intemational
Criminal
Court
OnJuly 17, 1998, a
United
NationsDiplomaticConference concluded negotiation of the Rome
Statuteo f
the Intemational
Criminal
Court (Rome
Statute
or Statute). The
UnitedStates
actively
participated
in
the Conference, and its preparatory meetings, but was unable to support the
final
text agreed upon by the majority of
states
participating. The reservations held by the United
Stateswith
respect
to thefinaltext
o f
theStatuteconcem: the breadth
of
prosecutorial discretion
to initiate investigations and prosecutions proprio mom; the Court's ability to exercise
jtuisdictionover a national of a non-party state;and the planned inclusion of the crime of
aggression
in
the subject
matterjtuisdictionof
the
Court.
Sincethe endofthe Rome Conference, the
United
Statesgovernment has continued toengagein
diplomatic
consultations with other govenmients in an effort to bring
about
an accommodation
thatwould
resolve or alleviate its concems andallowthe
UnitedStates
to
sign
the
Statute.While
U.S.negotiators have realized some success in shaping the Rome
Statute,
most other state
parties,
including
N A T Ocountries and other UnitedStatesallies, have repeatedly rejected the
notion of exemptingpersonsfrom the Court'sjurisdiction. This refusal to exempt has been
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asserted
in the
case
of proposals
involving
nationals of non-party
states
and for government
agents
acting infurtheranceof national foreignpolicyobjectives. One htmdred andseventeen
nations signed the RomeStatute,indicating their intent to proceed with the ratification process.
TheStatuterequires ratification by
sixtyof
the signatory nations in order to come into force. As
of
November 29,2000
twenty-three
nations
have
ratified the Rome
Statute.
Among
the ratifying
nations are Canada, France, Italy and Spain.
IC C
Jurisdiction
The Court envisioned by the Rome
Stamte
is intended only to complement national
jurisdiction.
A ssuch, theStatutesetsout a complexseriesofproceduresand
jurisdictional
foundations
that
Innit the Court's authority and require deferral by the
IC C
to the good faith investigative efforts
and prosecutorial discretionofnational governments. Abriefexaminationofthe RomeStatute's
jurisdictional
process
demonstratesthe need for theUnitedStatesto set a mechanism inplace to
ensure
the investigation and / or prosecution of allegationsunderthe Rome
Statute.
Whether or
not the
United
Statesratifies the
Statute,
thebest
hope
to avoid prosecution of an UnitedStates
national by the IC Cis toensure
that
a
imely,
egitimateprocessis in place to which both the
IC C
and the intemational community can,mgood faith, defer.
Subject MatterJurisdiction
The subject
matterjurisdiction
of the Court is expressly limited to a list ofenumeratedcrimes
withdefinedelements. TheI C Cwould be limited tocasesinvolvinggenocide, crimesagainst
humanity, war crimes, and aggression, committed onlyafterthe entry into force of theStatute
(Rome Statiite
( RS ),
A rts.5,11(1)).
Triggeringthe Court'sJurisdiction
There are tiireemeansbywhichthe Court's
jurisdiction
may be triggered. First, a signatory to
the Rome Statute (State Party) may refer to the Court's Prosecutor for investigation a
circumstance where one or more
of
theenumeratedcrimesappearstohave beencommitted (RS
Art.14). Second, the United Nations Security Council,actingunderChapter VII of the U. N
Charter may refer potential crimes to the Court (RS Art. 13(b).
Third,
the Prosecutor may
initiate apreliminaryinvestigationpropriomoturegarding the alleged commission of
oneof
the
enumerated
offenses. In anyofthethree
instances
the underlying facts
must
bepresentedto the
Pre-TrialChamber by theIC CProsecutor before it can proceed beyond the preliminary
stages
of
investigation.
Consent to Jurisdiction
Withthelimitedexception of a referral by the
U. N.
SecurityCouncil,the Court islimitedin its
ability to exercise jurisdiction without the consent of a sovereign govermnent
that
could
otherwise exercisejurisdictionon itsown.Absent a referral by theU. N.Security
Council,
where
consentis presumed as to certain crimes, the Court may exercise its
jurisdiction
only if one or
moreofthefollowingStates
have
accepted the Court'sjurisdiction:
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(a) TheStatewhere either the alleged conduct occurred, or in the instance of alleged conduct
occurringon
board
avesselor
aircraft, the
Stateof
registration for the craft; or
(b)
The
State
of
which
the person accused
of
the crime
is a
national.
(RS
Art.l2(2)).
A
Statemay accept the
jinisdiction
of the Court by either becoming a party to theStatute(RS
Art. 12(1)), or, ifnot a party to the Statute, by aDeclarationlodgedwiththe Court's Registrar
with
respect
to
the
alleged crimei n
question.
(RS
Art.l2(3)).
ThePre-Trial
Chamber
The Pre-trial Chamber
acts
as a check upon the discretion of the
IC C
Prosecutor. In
matters
involving proprio motu
investigations, challenges to the Court's jurisdiction and
case
admissibility,
determinations must be reached by a majority of the
Pre-Trial
Chamber judges,
whichmust number at least
six.
The
preliminaryinvestigation
of
an
alleged offense
by
tiie
IC C
Prosecutor, whether triggered by
referral
from
a
State
Party or through the Prosecutor's
own
motion,is
followed
by an evaluation
bythePre-TrialChamber. Article15(4) oftieStatutedetails the roleof thePre-TrialChamber
at this
stage:
I f
the
Pre-Trial
Chamber, upon examination of the
request
and the supporting material,
considers
that
thereis a reasonable basis to proceed
with
an investigation, and the
case
appearsto
fall
withinthe
jurisdictionof the
Court, it shall authorize the commencement
ofthe investigation without prejudice tosubsequentdeterminations by the Courtwith
regard to the
jurisdiction
and
admissibility
ofthe case.
Admissibility
Thepreliminarydetermination of
admissibility
(i.e. whether acaseis vsdthin the
jurisdiction
of
the Intemational
Criminal
Court) is covered by
Article
18
of the
Statute.
Upon
a determination
by
the Prosecutor
that
thereexists a reasonable basis to conduct an investigation conceming
conductwhichmay fall under the purview of the Court, the Prosecutor shall notify allState
Parties and
those Stateswhichwould
exercise
jurisdiction
over the alleged
acts
(RS
Art.l8(l)).
Within
one (1) month of such
notification,
aStatemay
inform
theCourt
that
it is conducting, or
has conducted, its
owninvestigation
into the alleged conduct.
(RS Art.
18(2)).
Upon
a
requestby
the State, the Prosecutor
shall
defer
to
theState'sinvestigation
of
the
matter,
absentauthorization
by thePre-TrialChamber, upon application by the Prosecutor, to investigate. (Id.). Either the
State
or the Prosecutor
may
appeal an adverse
Pre-Trial
Chamber
ruling
to the
Appeals
Chamber
on anexpeditedbasis.(RS Art.18(4)).
The Court
shall
determine a
case
isinadmissible, andthusoutsideof its
jurisdiction,
where,int r
alia
a
case
is being, or has been, investigated and/or prosecuted by a
State which
has
jurisdiction.
The
Courtwill
defer to the
State's
investigation and/or prosecution unless the Court
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detennines as outlined inA rticle 17(2)(a-c),
that
the
State
is
unwilling
or unable to genuinely
carry out such investigation and/or prosecution.
Challenges to
JurisdictionorAdmissibility
Challenges to
admissibility
orjurisdictionmay bemadebyeitheranaccused forwhomawarrant
or
summons has been issued
(RS Art.
19(2)(a)); a
State
which
has jurisdiction
over a case,
on
the
grounds
that
it is, or has completed, investigating and/or prosecuting the matter(RS Art.
19(2)(b)); or a
State
from
which
consent is requfred under Article 12 (RS Art. 19(2)(c)). fri
addition, the Prosecutor
may
seek
a
mling
onadmissibilityorjurisdictionfrom
he Court.
Reportingandhivestigating
The Recotmnendation accompanying this Report seeks to provide the maximum possible
assurancethat
the
United States
government
will
take all reasonable
steps
to exercise its
jurisdiction
over
United
Statesnationals, thereby ensuring
that
no
United
Statesnational
will
be
charged and tried by the hitemational
CriminalCoiut.
The reporting requirements advocated
withinthis Recommendation
would
assure
that
both the executive andlegislativebranches are
aware of any noticegivenby the an hitemational
Criminal
Court Prosecutor
that
there
may be
crimes
within
the
jurisdiction
of the ICC
that
may have been committed by a
UnitedStates
national. The requirement
that
the president take allnecessary
steps
toensure
that
the
United
States
retains
primaryjurisdiction
to investigate and prosecute any potential offense by a
United
Statesnational
will
allowthe
United
Statestoassert
that
the
ICC
should defer
to
an ongoing
U.S.
investigation.
A s a signatory to the Rome Statute, the implementation of the legal regimen contemplated by
this Recommendation
goes
far in ensuring
that
the tools are in place to
assertjurisdiction
over
any
United
Statesnationals
that
become subject
to
the Court's reach. In the event
that
the
United
States
is a non-State Party, the proposed resolution
would
serve as a legal
obligation
upon the
executive branch to investigate
all
allegations
involving
its nationals who
could
come before the
Court.
This
obligation
would
inherentlyenhancethe
credibility
ofthe exerciseof
jurisdiction
by
the
UnitedStates
to conduct a complete
investigation,
and
in
the event
that
it is warranted, a
fair
prosecution consistent
witii
Americannotions
of
justice and due process.
Conclusion
Manywho
oppose the
IC C
do so out
of
concem for therisks
nvolvedin
exposing
U.S.
nationals
to intemational
jurisdiction
to be tried foractscommitted in furtherance
ofUnited
Statesforeign
policy. It is in response to this risk
thatUnited
Statesnegotiators have sought, on several
occasions, exemption languagewithinthe RomeStatute
thatwould
exclude members of the
United
States
military and other government
agents
from the
jurisdiction
of the
I CC.
These
attempts
have,
thus
far, been rejected
by
the other signatory nations.
Thosewho
support the
ICC
have addressed the concem over the Court's
jurisdictionby
noting its
complementary nature. In
essence
the supporters point out
that
the Rome Statute, through a
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complexseriesof checks and balances, authorizes the Court's
jurisdiction
only where a country
assertingjtuisdictionrefiises or is unable to conduct a bona fide investigation of the underlying
facts and, where merited, a prosecution. Supporters
would
argue
that
the Court
would
operateas
an incentive for nations to exercise their sovereigntywithintheirown systemofjurisprudence in
investigating and prosecuting the most heinous crimes
against
humanity.
Whether theproponentsoropponentso fthe Court ultimately carry the dayintheUnitedStates,
it
islikely
that
the Court
will
be a reality. The UnitedStateshas
historically
stoodagainstthe
crimes
sought
to be prosecuted by the Court. Its efforts
against
such crimes, often atgreatcost,
haveestabUshed its credibility and commitment to justice within the world community. That
history and the many sacrifices it hasinvolvedcarmot be takenUghtiy. It is a legacy making it
imperativethattheUnitedStates takesthe leadindefinmg its relationship
with
the ICC.
Theprocessurged in this Recommendation is not an ironcladguarantee
that
a
U .S
national
will
not face prosecutionunderthe RomeStatute. The Recormnendationdoes,however, provide the
greatest
possible assinrance
that
the UnitedStateswiUact with sufficient speed and diUgence to
minimizethe risk ofaUnitedStatesnational being brought before the IC Cbecausesuch action
would place the United States in a strong position to
assert
the exercise of its primary
jurisdiction.
RespectfiiUy
submitted.
RalphC . M artin,II
Criminal
Justice Section Chairperson
February, 2001
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G E N E R A L
INFO RM ATI O N
F O R M
ToBe
Appended
to
Reports
with
Recommendations
SubmittingEntity:
Criminal
JusticeSection
C ouncil
Submitted
By :
RalphC .Martin
IE,
Criminal
Justice
Section
Chairperson
1.
Summary
of
Reconmiendation(s).
The reconmiendation
urges
the
United
StatesCongress to
enactlegislation
requiring the
president to take specific actions intended to avoid the exercise of
jurisdiction
over a
United
States
National
by the Intemational
Criminal
Court(ICC )proposed in the Rome
Statute.
Specifically,
the recommendation
urges
legislation reqmring the president to:
report
withinthirty
days
ofreceiving
notice
from
heIC Cprosecutor
that
a
United
States
national may be atargetof prosecution; take allreasonable
steps
toensure
that
theU.S.
retain complete
jurisdiction
and; report to Congress on
subsequent
actions by the ICC
with
respect
to
the
allegedcriminal
act.
2. Approvalby Submitting
Entity.
TheCritninalJustice
Council
approved this resolution, as amended, at itsFall
Meeting,
November 18,2000,inWashington,
DC.
3. Has this or a
similar
recormnendation been submitted to the House or
Board
previously?
This
resolution has not been submitted to the House of Delegates or the
Board
of
Governors.
The
A B A
currently has no
policy calling
for the implementation of
any
such
legislation.
A B A
pohcy related to the Intemational
Criminal
Coiut
is listed under
question 4.
4. What existing
Association
pohcies are relevant to this recommendation and how
would
they be affected by its adoption?
The
following
are relevant
A B Apolicies on
the Intemational
Criminal
Court.
Report
N o.102C(MY78);
Report
N o.
8A
(MY 91);
Report
N o.
111
(AM 92);
Report
N o.
114C(AM 94);
Report
N o.118B(MY98).
The
existingA B Apolicies
would
be
enhanced
by the adoptionofthis recormnendation.
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Sections,
Committees,
Commissions and Forums:
Governmentand
Public
SectorLawyers
Division
Individual Rights and
Responsibihties
Intemational
L awand Practice
JudicialD ivision
Young
Lawyers
D ivision
AfBhated
Organizations:
Judge
Advocates Association
National AssociationofC riminalDefenseLawyers, Inc.
OtherLegal
Organizations
Intemational
Bar Association
Intemational
Criminal
Defense
Attomeys Association
10.
Contact
Person. (Prior to the
meeting.)
StephenA .
Saltzburg
George
Washington University
School
of
Law
720 20*Street,
N W
RoomB-303F
Washington,
D C20006-4306
(202)994-7089
11.
Contact
Person. (Who
willpresent
the
report
to the
House.)
NealR .Sonnett MichaelTh.
Johnson
Law
OfiSces
o fNealR .
Soimett
Merrimack County Attomey
1 Biscayne Tower 163 North
M ainStreet
2 South Biscayne
Blvd
Concord,
N H03301
Suite 2
(603)228-0529
Miami,F L
33131
(305)
358-2000
3