"U.S. Drops
Plan to Exempt G.I.'s from U.N. Court"
By Frederic L. Kirgis
July 2004
Under the headline quoted above,
the New York Times on June 23 reported that
the United States bowed to opposition within
the U.N. Security Council and dropped its
effort to obtain a Security Council resolution
that would immunize its troops from prosecution
in the International Criminal Court (ICC).
[1] It is important to understand just
what this does and does not mean, particularly
in the context of the continued presence of
substantial numbers of U.S. military personnel
in Iraq after the sovereign Interim Government
of Iraq took office on June 28.
The ICC's subject matter jurisdiction
is limited to certain egregious crimes: genocide,
crimes against humanity and war crimes as
spelled out in the ICC Statute and supplemental
documents regarding the Elements of Crimes. [2] Thus, not all acts that would be criminal
under U.S. law would fall within the ICC's
jurisdiction, whether or not a Security Council
resolution is adopted.
The United States is not a party
to the ICC Statute. That, alone, does not
necessarily immunize U.S. nationals from the
Court's jurisdiction for crimes covered by
its Statute. For example, the Security Council,
by adopting a resolution under Chapter VII
of the U.N. Charter, could refer to the ICC
a situation in which one or more of the relevant
crimes appears to have been committed by a
U.S. national (or anyone else),
[3] but the United States could veto
such a resolution and thus preclude the Court
from asserting jurisdiction.
Without any Security Council
resolution, if the conduct occurs in a state
that is a party to the Statute or that has
accepted the jurisdiction of the Court with
respect to the crime in question, the Court
would have jurisdiction if any state party
refers the situation to the Court, or if the
Court's prosecutor initiates an investigation
after obtaining authorization from the Pre-Trial
Chamber of the Court.
[4] Iraq, like the United States, is
not currently a party to the Statute, but
presumably the sovereign Interim Government
of Iraq--or a later Government of Iraq--could
decide to become a party, or could accept
by special declaration the Court's jurisdiction
with respect to one or more of the crimes
covered by the Statute retrospectively from
July 1, 2002. If Iraq accepts by special
declaration, U.S. military personnel in Iraq
as early as March 2003, when Operation Iraqi
Freedom began, could conceivably become subject
to the Court's jurisdiction if a state party
to the Statute refers a situation involving
them to the Court or if the prosecutor initiates
an investigation. If Iraq becomes a party
to the ICC absent such a special declaration,
U.S. personnel in Iraq could be investigated
only for crimes committed on Iraqi territory
after Iraq joins the Court.
Recognizing the possibility that
situations involving U.S. military personnel
anywhere abroad (not just in Iraq) could be
referred to the Court even though they are
participating in U.N-authorized operations,
the United States persuaded the Security Council
in 2002 and 2003 to adopt resolutions based
on Article 16 of the ICC Statute. According
to that article, "No investigation or
prosecution may be commenced or proceeded
with under this Statute for a period of 12
months after the Security Council, in a resolution
adopted under Chapter VII of the [U.N.] Charter,
has requested the Court to that effect; that
request may be renewed by the Council under
the same conditions." There is doubt
whether Article 16 contemplates Security Council
blanket requests made before a particular
investigation or prosecution is even contemplated.
Article 16 could be read to apply only to
specific situations that could, if investigated
or prosecuted, exacerbate an existing threat
to the peace or breach of the peace. Nevertheless,
the resolutions adopted in 2002 and 2003 made
blanket requests as to acts or omissions by
personnel from a state not a party to the
ICC Statute when those personnel are participating
in a United Nations-authorized operation.
What the United States abandoned on June 23,
2004, was the attempt to renew the resolution
for another year. Had it been adopted, it
would have applied to the U.S. military personnel
in Iraq even after the transfer of sovereignty,
since the U.N. Security Council in Resolution
1546 (on June 8, 2004) authorized the continuation
of the multinational force in Iraq as established
under its earlier Resolution 1511 (October
16, 2003).
Even though United States personnel
in Iraq are not protected after June 30 by
a Security Council resolution under Article
16 of the ICC Statute, other provisions of
the Statute could inhibit ICC prosecution.
Article 98(2) of the Statute provides, "The
Court may not proceed with a request for surrender
which would require the requested State to
act inconsistently with its obligations under
international agreements pursuant to which
the consent of a sending State is required
to surrender a person of that State to the
Court, unless the Court can first obtain the
cooperation of the sending State for the giving
of consent for the surrender." The United
States has entered into agreements to this
effect with some 90 other countries, and it
could do so with the sovereign Interim Government
of Iraq and with any later Government of Iraq.
It could be done by a provision in a Status
of Forces Agreement with Iraq or by means
of a separate agreement.
[5] In either event, the agreement would
not defeat the Court's jurisdiction, but the
Court would be instructed by its own Statute
not to proceed with a request for the surrender
of an accused person without the consent of
the person's own government.
Finally, Article 17 of the ICC
Statute requires the Court to determine that
a case is inadmissible if: "(a) The case
is being investigated or prosecuted by a State
which has jurisdiction over it, unless the
State is unwilling or unable genuinely to
carry out the investigation or prosecution;
(b) the case has been investigated by a State
which has jurisdiction over it and the State
has decided not to prosecute the person concerned,
unless the decision resulted from the unwillingness
or inability of the State genuinely to prosecute;
(c) the person concerned has already been
tried for conduct which is the subject of
the complaint, and a trial by the Court is
not permitted under [another Article, dealing
with double jeopardy; or] the case is not
of sufficient gravity to justify further action
by the Court." So long as the United
States, acting in good faith, investigates
conduct that could come within the ICC's subject
matter jurisdiction, and prosecutes by court
martial or other recognized means when the
facts warrant it, the ICC presumably would
dismiss any proceeding based on the same conduct
by the same person.
About the Author:
Frederic L. Kirgis is Law Alumni Professor
at Washington and Lee University School of
Law. He has written books and articles on
international law, and is an honorary editor
of the American Journal of International Law.
The author is grateful to Mark Drumbl and
David Scheffer for their extremely helpful
comments on a draft of this Insight. Any
errors or omissions are the author's own.
[5] See Mayur Patel, ASIL Insight: The
Legal Status of Coalition Force in Iraq
After the June 30 Handover (March 2004).
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