The International Criminal Court, The United States, & George W. Bush

My last diary was on the possibility of George W. Bush pardoning himself for any crimes he may have committed against the United States during his tenure as President. There were many interesting comments made in that diary. The ones I was most intrigued by revolved around the potential international prosecution of George Bush in the International Criminal Court (ICC). These comments inspired me to look into the ICC, Rome Statutes and the possibility of President Bush being prosecuted in that court. I am going to focus on the theoretical possibility of this happening because I believe that even if it were possible that it would be highly improbable.

Background on the ICC-US relationship

The relationship between the US and the ICC is a complicated one. Traditionally the US has been one of the biggest supporters of international justice. America has played a major role in many of the most important international trials and tribunals during the 20th century. These trials include the ones at Nuremburg and Tokyo following WWII as well as ad hoc tribunals for Yugoslavia, Rwanda and Sierra Leone. When it comes to the ICC the US takes a completely different posture. The US has been one of the most aggressive opponents of the ICC taking numerous steps to shield both our citizens and others from the reach of the court. These steps include Bilateral Immunity Agreements (BIA), also known as “Article 98” agreements and the American Service Member Protection Act (http://www.state.gov/t/pm/rls/othr/misc/23425.htm) (ASPA).

The BIA’s are also reffered to as Article 98 agreements. So called after the clause in Article 98 bars the ICC from requesting the surrender of a person which, "would require the requested State to act inconsistently with its obligations under international agreements". These agreements negotiated between the US and other nations are meant to shield US citizens from the ICC. This is not always achieved. For Example, the Council of the European Union adopted a common position, permitting member states to enter into Article 98 agreements with the United States, but only concerning U.S. military personnel, U.S. diplomatic or consular officials, and persons extradited, sent to their territories by the United States with their permission. The agreement did not include the general protection of U.S. nationals that the United States sought. In addition, the common position provided that any person protected from ICC prosecution by such agreements would have to be prosecuted by the United States. Since this agreement was reached in 2002 a total of 100 countries have signed similar agreements with the US.

ASPA is a more aggressive step in protecting US citizens from the court. It contained a number of provisions, including prohibitions on the United States providing military aid to countries that ratified the treaty establishing the court. There were a number of exceptions to this, including NATO members, major non-NATO allies as well as countries which entered into an agreement with the United States not to hand over U.S. nationals to the court. It also included a provision authorizing the President to use military force to rescue any US national held by the court.

The United States signed the treaty in 2000 in order to continue influencing the development of the court for as long as possible before the court came into existence. President Bush unsigned the treaty in May of 2002 before the court came into existence 1 July 2002.

It is hard to gauge how opposed the United States has been to the ICC. The US played a major role in negotiating the treaty that establishes the court from its inception until the treaty was voted upon. The US would very much like to have the court but we would not like to be subject to it without our consent on a case by case basis. Those familiar with the US legal system will know that a person is allowed to sue the government only by the governments consent in a doctrine called Sovereign Immunity. This has been reformed somewhat in the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party. These acts though are not a general waiver and the government still holds a great deal of oversight.

During the negotiations over the treaty that would establish the court the United States made a significant impact. In testimony before congress (available here because it wont let me set up a link-www.iccnow.org/documents/1stSesPrepComSenatecfr.pdf) Ambassador David J. Sheffer, US Ambassador for War Crimes, highlighted the following as the successes the US achieved in negotiations:

•an improved regime of complementarities, meaning deferral to national jurisdictions, that provides significant protection, although not as much as we had sought;
•a role preserved for the U.N. Security Council, including the affirmation of the Security Council’s power to intervene to halt the Court’s work;
•sovereign protection of national security information that might be sought by the Court;
•broad recognition of national judicial procedures as a predicate for cooperation with the Court;
•coverage of internal conflicts, which comprise the vast majority of armed conflicts today;
•important due process protections for defendants and suspects;
•viable definitions of war crimes and crimes against humanity, including the incorporation in the statute of elements of offenses (We are not entirely satisfied with how the elements have been incorporated in the treaty, but at least they will be a required part of the Court’s work. We also were not willing to accept the wording proposed for war crimes covering the transfer of population into occupied territory);
•some progress on recognition of gender issues;
•acceptable provisions based on command responsibility and superior orders;
•rigorous qualifications for judges;
•acceptance of the basic principle of state party funding;
•an Assembly of States Parties to oversee the management of the Court;
•reasonable amendment procedures; and
•a sufficient number of ratifying states before the treaty can enter into force, namely 60 governments have to ratify the treaty.

Of the things above the US negotiated for, the extension of war crimes to include internal conflict due process guarantees for defendants, recognition of gender issues, and rigorous qualifications for judges should be considered very important and positive. The US also made sure that crimes against humanity would not require a link to aggressive war as had been the previous precedent. If the US had chosen to kill the court entirely it had multiple opportunities to do so which it passed up. Unfortunately, in the end the US feels it did not get enough control and veto power over the court to make it safe to join.

The United States was very set on getting Security Council control over the court. The original International Law Commission draft for the ICC placed the court firmly under the purview of the Security Council. The language explicitly stated that the court could not address anything being addressed by the Security Council without the Council’s permission. During the negotiations over the Rome Statutes, the countries not on the Security Council were upset by this and wanted to have a Court more independent of the Council.

The final language adopted in Rome allows the Security Council to intervene against an investigation with a resolution. The resolution needs a nine-vote majority and unanimous consent from the five permanent members. This option was not enough for the US. US concerns over the constructed language of jurisdiction were enough that unless we held a guarantee that we could intervene to protect US nationals we would not ratify the treaty. We did not get the assurance and did not ratify the treaty.

The State Department has an official list of problems with the treaty. There are two major concerns. The first is the Court’s jurisdiction over nationals whose countries are not party to the treaty. The jurisdiction of the Court extends where, “the accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court; The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court”. This would allow for the prosecution of US personnel on peacekeeping missions in countries that are party to the Rome Statutes. Consider if Afghanistan were party to the treaty. Many of the collateral casualties that have occurred could trigger prosecution.

Another concern expressed is over the topic of aggression. The court holds jurisdiction over the crime of aggressive war. However, the definition of what constitutes aggressive war has yet to be defined. The prevailing opinion of what US critics believe will constitute the crime of aggression is stated by Senator Helms author of the ASPA,

“The countries negotiating the treaty in Rome were unable to reach agreement on just what constitutes a crime of aggression. Well, I think I can anticipate what will constitute a crime of aggression in the eyes of this court. It will be a crime of aggression when the United States of America takes any military action to defend the national interest of the American people unless the United States first seeks and receives the permission of the United Nations. And I say baloney to that.”

Clearly, the invasion of Iraq would fall under this heading. So would several other US military excursions including the air strikes against targets in Pakistan taken earlier this year. The US would not like to be prosecuted for those actions.

The one that most fits with concerns over control is the powers given to the prosecutors of the ICC. The prosecutor may initiate investigations on their own discretion, proprio motu. The lack of control given the Security Council combined with the powers of the prosecutor gives rise to a fear of politically motivated prosecutions. This is a view espoused by Senator Rod Grams of Minnesota at the Congressional hearing on the Rome Statutes two days after their finalization where Sheffer gave his testimony,

“Under a system of complementarity, the ICC can override the decision of a nation’s judicial system and it can pursue a case if it decides that a State is unwilling or unable to do so. In other words, if an ICC prosecutor wanted to investigate and charge the President of the United States for a bombing raid like the one President Reagan conducted in Libya, our only way to prevent the case from going forward would be to have our own Justice Department investigate the President. If the U.S. Government then declined to prosecute, it would still be up to the judgment of the ICC whether to prosecute and pursue the case”.

The safeguard against a political prosecution is that the prosecution may only proceed if two ICC judges do not vote against it. This is not enough for US critics as they maintain that there is still a potential for the judges to be from non-democratic non-friendly states.

In addition to concerns over potential political prosecutions, there are also concerns over potential conflicts with the US Constitution. The Rome Statutes forbid any reservations and so countries wishing to become party to the treaty have to bring their national laws, including constitutions, into line with the requirements of the treaty. This has already happened in Ireland where a national referendum was held to determine whether Ireland would modify their constitution and be a part of the court or not. There is some resistance to the constitutional amendments that would be needed in the US to bring us in agreement with the Rome Statutes.

Certainly, the Rome Statute has no protection against unreasonable searches and seizures as enumerated in the fourth amendment. Furthermore, its guarantee of witness examination may be limited more than the U.S. constitutional right to confrontation would allow. The International Criminal Tribunal for Yugoslavia (ICTY) permitted the prosecution to withhold from the defense the identities of certain witnesses. The ICTY allowed use of written evidence that troubled a former U.S. federal judge serving on it. Perhaps the most important is the absence of a jury. The verdicts for the trials will be derived from three judge panels. In addition, the prosecutor as well as the defense may appeal the verdict. These appeals must be to the Court itself though and this is another factor that troubles US critics.

I am not a fan of these differences and prefer our standards in many of these cases. I also have grave doubts about the viability of amending our constitution to comply with the ICC standards. We have to eliminate several amendments. I am more concerned about the process differences and amending the constitution than about the possibility of political prosecution.

The ICC and George Bush: The Crimes

The first question to answer when talking about Bush and the ICC is whether he may be held liable for a crime under the Rome Statutes. The answer to this is an unequivocal yes.

Article Eight of the Rome Statute exhaustively defines war crimes subject to ICC enforcement, specifically crimes involving international and internal armed conflicts. Jurisdiction will only apply when the crimes are committed as part of a plan, or committed on such a large scale as to adversely impact international interests. The Geneva Conventions provide definitions for war Crimes. There are two incidents that easily qualify as war crimes. The torture that occurred at Abu Graib and Guantanamo.

Under the Rome Statute, the torture of prisoners in Iraq and Cuba would rightfully be deemed war crimes, as torture is clearly prohibited by Article 8(2)(ii). Guantanamo is the easiest case to make against Bush himself. With the release of several administration memos on the subject the nature of the torture was revealed to be systematic and thus would trigger the ICC action if the Court has jurisdiction. The ICC should definitely be triggered if it has jurisdiction, especially as the US has refused to initiate any action against those responsible for the torture.

Question of Jurisdiction

The odds of the US joining the ICC, even under an Obama administration, are not high. What other options are there? According to the Rome Statutes there are only four legitimate bases upon which ICC jurisdiction could be valid: universal jurisdiction over all core crimes, a state's ratification of the Rome Statutes, referral to the ICC by the United Nations Security Council or an existing customary norm allowing extension of jurisdiction from states to the ICC over non-signatories. Let us take them one at a time.

The first possibility for extending jurisdiction over US nationals is that the court somehow applies to everyone everywhere. This is not going to be accepted by the US. The only two crimes that are subject under this doctrine are slavery and piracy. Two have jurisdiction under this doctrine a common definition must be recognized by an overwhelming majority of states. This is not true for war crimes and the doctrine has not been used for the previous war crimes trials used as models for the ICC. This suggests that the ICC does not have, or claim, universal jurisdiction. Its own statement of limited jurisdiction also supports this to nationality of parties or rimes committed on the territory of parties. Precedent is not in favor of universal jurisdiction for the ICC.

Extending the reach of treaties over non-signatories is not a popular idea in international treaty law. The Vienna Convention on the Law of Treaties ("VCLT") states, "every treaty in force is binding upon the parties to it and must be performed by them in good faith" and “A treaty does not create either obligations or rights for a third State without its consent". David Scheffer agrees with the idea that non-signatories are not held to the treaties of others saying,

"I can tell you that it would be [a] bizarre, utterly bizarre consequence for governments to think that this treaty can be adopted and brought into force with the presumption that it will cover governments that have not joined the treaty regime. . . . That is unheard of in treaty law."

Scheffer is not completely correct as international treaty law apparently does allow non-signatories to be bound under an international custom.

The level of precedent and agreement required to set an international custom sets the bar very high when trying to extend the ICC over the US. The establishment of an international custom requires an overwhelming majority of states to accede to that custom. It would also require that the US have shown no resistance to the custom. The two governing cases where non-signatories were not held to treaties each featured the non-signatory clearly stating that they were not held to the treaty and a prolonged silence that proceeded the signatories complaint. It suggests that unless signatories take aggressive action to enforce the treaty at the earliest possibility the non-signatories will be exempted. The US has been adamant about not being bound by the treaty and the international community has so far failed to act in regards to the torture at Gitmo or Abu Graihb suggesting they agree.

The situation in the Sudan with the indictment of President Omar Al Bashir is different than the potential situation with George W. Bush. It is true that Sudan, like the US, is not a signatory to the Rome Statutes. However, in 2005, the UN Security Council passed Resolution 1593 11-0 referring the situation in Sudan to an ICC prosecutor. This is the expressed way to bring non-signatories under the jurisdiction of the ICC. If a similar resolution were passed regarding the US then George W. Bush might become subject to the ICC. That such a resolution would pass is not at all likely. It is interesting to note that the US could probably get the two additional votes to block any referrals it strenuously objected to.

Conclusion

Bush is not going to be tried by the ICC. We have agreements with enough countries party to the treaty that he can travel where he wants even if indicted. The only way Bush comes to justice is through our own system. Getting him in front of the ICC is too complicated because of the jurisdictional problems. Unless we allow a Security Council referral for him it is just not going to happen.