(Editor’s note: This article is part of a joint symposium hosted by Just Security and Articles of War. The symposium addresses topics discussed at a workshop held at The George Washington University Law School concerning U.S. cooperation with the International Criminal Court’s Ukraine investigation. Laura Dickinson’s introductory post is available here.)
A quarter century ago today the Rome Statute of the International Criminal Court (ICC) was completed following years of negotiations. I led the U.S. delegation in those talks. The Clinton Administration decided not to support the final text of the treaty on July 17, 1998, but after two more years of talks on supplemental documents, I signed the treaty on behalf of the United States on December 31, 2000. Despite the fact that 123 nations, including almost every American ally, have joined the ICC, the United States has not yet ratified the Rome Statute and thus has not become party to the ICC. That fact need not be the final chapter. The time has finally arrived to acknowledge some evolutionary developments and move towards American ratification of the treaty.
There is longstanding American policy that while the United States remains a non-party State to the Rome Statute, the ICC has no jurisdiction over U.S. nationals for actions undertaken even on the territory of a State Party of the Rome Statute. The same standard would apply to any other non-party State (like Russia) and its nationals acting on State Party territory (or territory of a non-party State—like Ukraine—that has fallen under the jurisdiction of the ICC voluntarily or because of a UN Security Council mandate). I term this the “immunity interpretation,” which makes it difficult for the United States to fully embrace the ICC’s investigations of Russian suspects for atrocity crimes (war crimes, crimes against humanity, genocide) committed in Ukraine.
The immunity interpretation reached its peak under the Trump Administration, with the threat and, in two cases, imposition of sanctions against key personnel of the ICC and foreigners. President Joe Biden repealed the executive order authorizing such sanctions on April 2, 2021, though Secretary of State Antony J. Blinken stated, “We maintain our longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.”
The immunity interpretation, however, is archaic, counter-productive, and largely rejected worldwide. I should know, as I presented the immunity interpretation before the 1999 annual meeting of the American Society of International Law. While the position articulated some logical premises, it also defied the core principle of criminal law, which is territorial jurisdiction. It ignored the decision-making authority of a sovereign government when entering a treaty regime, including to confer criminal jurisdiction to an international court.
In December 2019, during a hearing on the Afghanistan situation before the ICC Appeals Chamber, I spoke as an amicus and publicly rejected the immunity interpretation, whatever its original merit, as an argument that has been overtaken by customary international law. I elaborated on the point in a May 2021 article.
After three decades of rapid development in international criminal law and in tribunal-building and jurisprudence to enforce the law, it is implausible that a non-party State can invade a State Party, commit atrocity crimes that fall within the jurisdiction of the Rome Statute, and essentially enjoy immunity for doing so. To do so rewards the non-party State’s with impunity while rendering meaningless the State Party’s membership in the ICC. Professor Leila Sadat has persuasively countered the immunity interpretation by focusing on the conferral authority of governments in her forthcoming article in the Notre Dame Law Review.
In Washington, D.C., I have attended meetings recently where retired senior officials of the U.S. Government, particularly having held legal positions, have reversed their own positions and believe the United States should abandon the archaic immunity interpretation. Granted, the Russian invasion of Ukraine has proven to be an inflection point on the issue. At some stage the hypocrisy of the matter must be acknowledged. It simply is implausible to keep arguing the immunity interpretation with a straight face when the criminal assault against Ukraine and its people is so blatant, so widespread, so deadly, so destructive, and so persistent and while the U.S. Congress and the Biden Administration have evolved to support efforts, such as the ICC investigations, to hold Russian officials accountable under international criminal law.
The ICC cannot exercise jurisdiction over Ukraine for the crime of aggression because of the constraint built into Article 15bis(5) of the Rome Statute. This creature of the Kampala Amendments process in 2010, at the time strongly supported by the United States and some other major powers, reads, “In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.” Consider for a moment how surreal that sounds, particularly if one recites it to the mother of a young girl who died from the impact of a Russian missile fired from across the border in Russia and hitting a civilian neighborhood in Ukraine.
There is a solution to the particular problem of the crime of aggression. Official U.S. statements condemning the Russian aggression against Ukraine ring rather hollow when the Biden Administration fails to support the creation, through a procedure involving a UN General Assembly resolution and a treaty between the United Nations and Ukraine, of an international Special Tribunal for Ukraine on the Crime of Aggression that can deny head of state immunity. Instead, the United States has opted for “an internationalized national court” in the Ukrainian legal system some day for the crime of aggression—a weak option that invites head of state immunity and hardly deters massive and continuous acts of aggression by Russia against Ukraine.
Recently, I attended a closed-door meeting in Washington with a senior government lawyer and, when asked, that official simply could not answer the question of why the Biden Administration would continue to uphold the longstanding and awkwardly hypocritical immunity interpretation, particularly in light of both the Russian actions against Ukraine and the Administration’s support for new laws that enable U.S. cooperation with the ICC to investigate Russian conduct. It also proves difficult to explain the ICC’s investigation, without any noticeable U.S. objection, of Myanmar officials, whose country is a non-party State, for atrocity crimes against the Rohingya who were persecuted and forcibly deported onto the territory of neighboring Bangladesh, a State Party, beginning in 2017.
I firmly believe that whatever the merits of the immunity interpretation 25 years ago, it has been overtaken by the march of customary international law combining both state practice and opinio juris, by judicial decisions, by persuasive scholarly work, by a renewed recognition of fundamental principles of criminal law and of sovereign decision-making, and frankly by common sense. Related to the immunity interpretation is the debate playing out in Washington over the implementation of ICC cooperation legislation that President Biden signed into law on December 29, 2022. Administration officials have delivered tortured testimony before Senate committees in recent months when confronted by Senators over the failure of the Administration to follow through on cooperation efforts with the ICC that are mandated by U.S. law regarding the Court’s investigation of Russian atrocity crimes in Ukraine.
In a recent Senate Appropriations defense subcommittee hearing, Senators Lindsay Graham (R-SC) and Dick Durbin (D-IL) pressed Secretary of Defense Lloyd Austin on the Pentagon’s resistance to the legal mandate. Austin said that he was concerned about the issue of reciprocity. Such views are old think and reflect the concern that someday the tables will be turned and the ICC will be investigating and prosecuting U.S. actions and that we would not want other governments to cooperate with the ICC in its investigative work. The cooperation train left the station decades ago. All of America’s allies, with the exception of Israel and Turkey, are States Parties to the Rome Statute and are obligated to cooperate with ICC investigations.
But there is no comparison in modern times with what is transpiring in Ukraine. Ambassador-at-Large for Global Criminal Justice Beth Van Schaack answered Austin quite effectively when asked on the PBS NewsHour recently. She said, “I think there is virtually no equivalency or comparison to what Russia has done here to anything that might involve U.S. personnel or service members. We have a full-scale war of aggression being committed through the systematic and widespread commission of war crimes, crimes against humanity. There’s no comparison here. And so I do not see a concern that this would set any sort of a precedent that might redound badly to the United States.”
Austin’s statement also reflects a presumption that should be challenged. During the Clinton Administration, my instructions as the U.S. chief negotiator of the Rome Statute were based on the intent of building an international criminal court which the United States one day would join. The instructions were not to negotiate for six years to build a court that the United States would never join. When I signed the Rome Statute, the intent was to signal that the United States would remain on deck with the treaty and work towards one day joining the Court, not to stand in permanent opposition to it.
President Bill Clinton conceded in his signing statement that the treaty would not (during Clinton’s remaining three weeks in office) and should not be submitted by his successor to the Senate until “fundamental concerns are satisfied,” a primary one being to “observe and assess the functioning of the court.” That opportunity to “observe and assess” began on July 1, 2002, when the ICC became operational following ratification of the Rome Statute by 60 nations. We have had 21 years to “observe and assess” and while there are some imperfections in the workings of the ICC, as there are with every legal system, the ICC’s professionalism and track record merit Washington’s respect.
In any event, U.S. policy towards the ICC today should not be premised on, structured, or implemented as if the United States intends to be a permanent non-party State. Such isolation was never the Clinton Administration’s position and never reflected my negotiating instructions.
The immunity interpretation was not advanced by the United States in order to permanently keep the United States out of the ICC, but rather to explain its status and non-exposure to ICC jurisdiction until Washington ratified the treaty. Otherwise, why did we negotiate and sign the treaty?
Rationalizations for permanent non-party status may attract the support of those seeking that outcome, but such thinking defies all that was negotiated into the Rome Statute and its supplemental documents to protect U.S. interests, including due process protections, complementarity, Security Council backstop under Article 16, precise definitions of the crimes, judicial oversight of the Prosecutor’s investigations, tough admissibility standards, high approval requirements for amendments, precise rules of procedure and evidence, comprehensive elements of crimes, and much more.
If the United States were to become a State Party of the Rome Statute, the immunity interpretation would become irrelevant—a non-issue—for the United States even if Washington wished to argue its merits for Israel, Turkey, Pakistan, North Korea, China, Iran, Myanmar, Libya, Egypt, Russia, Belarus, India, Saudi Arabia, Indonesia, Cuba, and other non-party States.
Those who express concerns about “reciprocity” unfortunately convey an intimidated attitude about the ICC. Rather than be on the defensive about the ICC, the U.S. Government and particularly the Pentagon should take the offensive and recognize how the ICC in fact advances critical U.S. values, particularly against an aggressor State like Russia. The United States can weigh in and influence gravity requirements at the ICC and how the Prosecutor can best utilize his discretion, not to mention placing an American judge on the bench and perhaps one day greeting an American chief prosecutor. Washington can use its diplomatic clout to advance ICC investigative and prosecutorial objectives globally and in ways that are compatible with U.S. foreign policy and global security needs. The ICC should become part of this nation’s lawfare strategy. In other words, Washington should weaponize the ICC for worthy objectives—such as justice in Ukraine and Darfur—that reflect critical American values rather than taking an anemic defensive posture towards the Court.
The Pentagon should embrace the duty of the law and when necessary justify the conduct of warfare to Congress, to the public, and even to the courts during the adjudication of relevant cases. A skeptical fear of being accused of atrocity crimes is a long way from the reality of credibly being investigated or prosecuted for such international crimes. The world has changed, and any presumption of the right to commit atrocity crimes, or to be shielded from accountability, is quite antiquated. If the U.S. military dared to plan and implement genocide, crimes against humanity, or serious war crimes anywhere in the world, then such action would demand investigation and prosecution at home with enforcement of federal and military law.
Article 18 of the Rome Statute, which as a negotiator I proposed and largely drafted, is intended to give a country like the United States the opportunity to seize the reins of justice and hold onto them without interference by the ICC. We should take that option seriously if the need arises, but which actually should not arise because U.S. armed forces and indeed our civilian leadership should never be engaged in the planning and commission of atrocity crimes and certainly not of the magnitude that could trigger ICC jurisdiction. One has to think counter-intuitively to enter the world of ICC paranoia, namely that the United States must never become a State Party because it should be at liberty to act with permanent impunity as a non-party State or that the United States should be free to plan and commit atrocity crimes without consequence even if it were to become a State Party, so the Rome Statute should somehow permit that outcome.
What do we have to fear from the ICC? I would argue that scenarios of illegal American conduct overseas or at home should never come to pass, but if they did, then the response must be first and foremost the enforcement of U.S. law, be it federal criminal law or the Uniform Code of Military Justice, or both, and adherence to Congressional oversight. The United States could become a pillar of complementarity and leadership in the ICC if some in Washington were not so intimidated by fear of ICC scrutiny.
Lawmakers still have work to do on complementarity. For many years, Senator Durbin has advanced legislation to fill the gaps in federal criminal law for genocide, war crimes, and crimes against humanity. If the gaps can be filled, then the United States can demonstrate its capacity to investigate and prosecute the atrocity crimes found in the Rome Statute and thus, if addressed properly, avoid ICC scrutiny. This is the same goal shared by our allies, which are almost all States Parties to the Rome Statute, and many have amended their criminal codes accordingly.
Durbin has almost reached the finish line. Laws of essentially universal jurisdiction have been adopted for commission of genocide and war crimes. The next step should be the Crimes Against Humanity bill, which Durbin introduced on July 12 as an amendment to S. 2226 authorizing appropriations for fiscal year 2024 for the Department of Defense. One should not expect a mirror image of Section 7 of the Rome Statute in the Durbin bill, but if adopted it will be the first opportunity to bring crimes against humanity into the federal criminal code.
Administration and Congressional negotiators should be able to get it over the finish line this year given the impetus afforded by the Russia-Ukraine war, the recent enactment of the Justice for Victims of War Crimes Act, and the new legal authority for cooperation with ICC investigations in Ukraine. Senator Charles Grassley of Iowa (R-IA) stepped forward in 2022 to co-sponsor the Justice for Victims of War Crimes Act and thus build bi-partisan support for it.
Even though at present the United States is not a State Party to the Rome Statute, the consequence of these legislative acts would be that any Russian soldier or government official involved in atrocity crimes in Ukraine and who steps foot in the United States, including Disney World with his family, would risk arrest and prosecution in federal criminal court for the crime of genocide, war crimes, or crimes against humanity. Even though President Vladimir Putin, Foreign Minister Sergey Lavrov, and Defense Minister Sergei Shoigu, if they dared to visit the United States, could claim head of state immunity as the most senior officials of the Russian Government and thus avoid sustained arrest, the fact that a federal criminal indictment and an arrest warrant could be issued would present legal jeopardy and public shaming none of them may wish to risk. Of course, if the United States were a State Party to the Rome Statute, any ICC arrest warrant against such individuals should be honored if they were to visit this country.
In so many discussions I have had about the ICC and U.S. policy over the years, particularly dialogues with foreign scholars, lawyers, think tankers, diplomats, and journalists, there arises the constant refrain that American invocations about international criminal justice fall on deaf ears overseas, particularly in the Global South, because of the foreign perception of double standards. The complaint centers on the United States negotiating treaties like the Rome Statute that it then does not ratify. In their view, the U.S. military sometimes acts illegally on a large-scale, such as the Anglo-American invasion of Iraq in 2003 and the use of torture in Afghanistan, foreign black sites, and Guantanamo during the so-called war on terror. These are very deep scars.
While I was negotiating the Rome Statute, other negotiators often would press me in sidebar discussions about perceived American hypocrisy and the peculiar American failure to commit. They would remind me that they re-opened the Convention on the Law of the Sea at President Ronald Reagan’s insistence to revise the deep sea mining provisions. But once they met U.S. demands and ratified the treaty amendments, the United States never followed through with ratification of that critical treaty. And yet today our government relies heavily on the rights protected by that treaty, albeit claiming they are customary international law, to ensure U.S. commercial and military access on the seas. Our foreign friends are not pacified and are quite cynical. There is deep resentment that the United States intensively negotiates international treaties, signs many of them, and then often fails to follow through with ratification.
The United States would begin to overcome the double-standards perception, which cripples our influence on so many fronts, including international criminal justice, if the U.S. Senate were to follow through on major treaties that the United States took the lead in negotiating and then often signed. These include the Convention on the Law of the Sea, Additional Protocols I and II of the 1949 Geneva Conventions, the Convention on the Rights of Persons with Disabilities, and, yes, the Rome Statute of the International Criminal Court. All but one of these treaties have been languishing for decades.
For example, it has been 23 years since the United States signed the Rome Statute. Despite some flaws in its performance, the ICC has demonstrated its credibility, competence, fairness in protecting due process rights, reasoned jurisprudence, and a mixture of convictions and acquittals. It also is demonstrating every day its relevance in a highly dynamic and violent world. All of Europe and Latin America, most of Africa, the Caribbean and Central America, and a good number of Asian and Pacific nations are committed to a credible ICC.
White House and Congressional support for ICC investigations in Ukraine is an encouraging signal of more open minds about the ICC in the Executive Branch and on Capitol Hill. The Biden Administration should take the following steps now to advance American engagement with the ICC and pave the way for U.S. ratification of the Rome Statute:
1. The Crimes Against Humanity bill should be navigated towards adoption in the Senate and the House of Representatives as a bipartisan initiative to close an increasingly inexplicable gap in federal criminal law and better insulate the United States from ICC scrutiny. The White House should signal its intention to sign an acceptable bill into law.
2. The Biden Administration should undertake a thorough review of the American Service Members Protection Act and determine what provisions, if any, should remain U.S. law as the government considers ratification of the Rome Statute.
3. The Biden Administration should cease use of the immunity interpretation when discussing the Rome Statute, the ICC, and U.S. policy. There is no need to explicitly reject the immunity interpretation, but there is an imperative need now to stop defining U.S. policy as being anchored in it. A simple explanation would be that the immunity interpretation no longer guides U.S. policy.
4. The State Department should send a letter to the United Nations, as depository of the Rome Statute, to withdraw the George W. Bush Administration’s letter of May 6, 2002, which states the intention of the United States not to become a party to the Rome Statute and to abandon any obligations as a signatory party. Those statements undermine U.S. foreign policy objectives and are embarrassing even to read in 2023. The letter remains a beacon of hopelessness for other countries seeking to understand the U.S. posture towards the ICC. Fortunately, the U.S. signature has never been removed from the Rome Statute but no longer should be soiled by such statements. A fresh State Department letter would send a powerful signal that the United States is shedding this symbol of weakness.
5. The United States should take the lead in the U.N. Security Council to ensure that the fresh investigation by the ICC Prosecutor of the recent atrocity crimes in Darfur can be fully resourced and supported by the Council under the UN Charter Chapter VII enforcement authority of UN Security Council Resolution 1593 of March 31, 2005, which referred the Darfur situation of 18 years ago to the ICC and which the United States enabled at the time. This would demonstrate that the Biden Administration not only is interested in supporting ICC investigations of the atrocity crimes in Ukraine but also is backing other designated ICC investigations, notably in Darfur. Further, the State Department should indicate its clear support for the ICC investigation of atrocity crimes committed against the Rohingya and seek Congressional authorization for that assistance, similar to what has been obtained for investigation of the Ukraine situation.
6. The National Security Council should chair an inter-agency task force to draft “declarations” to the Rome Statute that would address key U.S. interests, including adherence to the U.S. Constitution and to full complementarity within the U.S. judicial system. Senators undoubtedly would craft their own declarations, and those would be critical to consider, in part to ensure that none of them rise to the level of reservations, which are prohibited by the Rome Statute to all States Parties. But the initiative to draft declarations, which many nations have employed for the Rome Statute, would be a pragmatic and constructive means to mold acceptable terms for ratification of the Rome Statute.
7. President Biden should use the occasion of his address before the UN General Assembly in September to express his intention to take the necessary steps with consultations and legislation on Capitol Hill so that the United States can ratify the Rome Statute with bipartisan support in the U.S. Senate. (He will need 67 out of 100 votes to achieve U.S. ratification.) Everyone knows this will take time (likely years) to achieve but the stated intention will boost American credibility and blunt the double standards criticism that constrains U.S. foreign policy aims.
My hope is that it will not take another 25 years before the United States is part of the International Criminal Court. The fact that it took the United States 40 years to ratify the Convention on the Prevention and Punishment of the Crime of Genocide is a dishonorable precedent in American history and we should strive not to repeat it. Atrocity crimes are the scourge of our times and the United States should be proudly and confidently at the forefront of bringing the perpetrators of such heinous acts to justice.
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Amb. David Scheffer is a former U.S. Ambassador at Large for War Crimes Issues. He currently serves as Senior Fellow at the Council on Foreign Relations and Professor of Practice at Arizona State University.
Photo credit: UN photo