by Kevin Jon Heller
The US submission to the ASP has finally appeared. It is not very long — about 1.5 pages — but manages to pack in a good number of false claims and bizarre interpretations of the Rome Statute.
In terms of falsity, the US repeats its longstanding claim that the Court has no jurisdiction over the nationals of non-state parties, even when those nationals are responsible for an international crime committed on the territory of a state party (p. 1):
As an initial matter, and as we have consistently emphasized, the United States is not a party to the Rome Statute and has not consented to any assertion of ICC jurisdiction, nor has the Security Council taken action under Chapter VII of the UN Charter to establish jurisdiction over U.S. personnel. It is a fundamental principle of international law that a treaty is binding only on its parties and that it does not create obligations for non-parties without their consent. The Rome Statute cannot be interpreted as disposing of rights of the United States as a non-Party without U.S. consent.
This is wrong, for reasons Dapo Akande has patiently explained. It’s also completely hypocritical, because the US had no objection to the Special Court for Sierra Leone (SCSL) prosecuting Charles Taylor, a Liberian national, even though the SCSL was created by an international agreement — between the UN and Sierra Leone — to which Liberia was not a party. Indeed, the current US submission emphasises that it was “one of the most vocal supporters for the creation of tribunals to try those most responsible for atrocities committed in Rwanda and Sierra Leone.”
The most bizarre argument in the submission has to do with the principle of complementarity (p. 1):
Additionally, we are concerned about any ICC determination — as required by the Rome Statute’s core principle of complementarity — on, for example, the genuineness of U.S. legal proceedings without United States consent. The principle of complementarity fundamentally limits the ICC’s exercise of jurisdiction to those cases in which a State is genuinely unwilling or unable to comply with its duties, such as those under the Geneva Conventions, to investigate and prosecute war crimes, genocide, and crimes against humanity. Just as we have not consented to jurisdiction over our personnel, we have not consented to the ICC’s evaluation of our own accountability efforts.
This is literally nonsense. The ICC would only formally assess complementarity in the context of a specific prosecution of an American national — and would only do so (practically, if not because of a legal limitation) if the US decided to challenge the admissibility of a case. So the US would have to “consent” to the Court examining the genuineness of American proceedings if it wanted to head off a prosecution. Beyond that, consent has nothing to do with complementarity.
I will avoid making snarky comments about the US’s claim (p. 2) that it “has undertaken numerous, vigorous efforts to determine whether its personnel have violated the law and, where there have been violations, has taken appropriate actions to hold its personnel accountable.” But I can’t let the following claim (p. 2) go unremarked:
Indeed, we note the irony that in seeking permission to investigate the actions of U.S. personnel, the Prosecutor appears to have relied heavily upon information from investigations that the United States Government itself decided to make public. We question whether pursuing this investigation will make other countries less willing or able to engage in similar examinations of their own actions and to be transparent about the results.
This is, well… ironic. The OTP’s request to open an investigation into Afghanistan notes multiple times (see para. 27 for an example) that the US refused to cooperate with the preliminary examination. And the request relies very heavily on the executive summary of the Senate Intelligence Committee’s “Study of the Central Intelligence Agency’s Detention and Interrogation Program” — which the White House and CIA tried desperately to keep from ever seeing the light of day.
All that said, I am delighted by the following statement in the US submission (p. 1; emphasis mine):
The principle of complementarity fundamentally limits the ICC’s exercise of jurisdiction to those cases in which a State is genuinely unwilling or unable to comply with its duties, such as those under the Geneva Conventions, to investigate and prosecute war crimes, genocide, and crimes against humanity.
The US has now formally acknowledged that it has a duty under international law “to investigate and prosecute war crimes, genocide, and crimes against humanity”! That is a bold and progressive claim, especially with regard to crimes against humanity, for which there is no treaty that demands either investigation or prosecution. I imagine that position will come as something of a surprise to the parts of the US government that were not involved in drafting the submission…
The US’s ASP submission: wrong, bizarre, but surprisingly — and probably inadvertently — progressive.