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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.

1


22/30

103C

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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103C

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

2


24/30

103C

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:

3


25/30

103C

(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

4


26/30

103C

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

5


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103C

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

6


28/30

103C

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.

1


29/30


30/30

103C

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

combined 2001 aba policies on the icc

Documents