The International Criminal Court and the George W. Bush Administration

George W. Bush

Following the lead of the Clinton Administration, the Bush Administration declined to submit the Rome Statute to the Senate for ratification. [1]

Moreover, in May 2002, the U.S. notified the U.N. Secretary General, as depositary of the Rome Statute, of the U.S. intent not to ratify the treaty.[2] The U.S. undoubtedly did so in order to prevent liability under Article 18 of the Vienna Convention on the Law of Treaties that provides, “A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when . . . it has signed the treaty . . . until it shall have made its intention clear not to become a party to the treaty. . . .”[3]

The Bush Administration thereafter conducted a major campaign against the ICC. The campaign included a statute that originated with Senator Jesse Helms, then Chairman of the Senate Foreign Relations Committee, and that had what became known as the “Hague invasion clause,” authorizing the use of U.S. military force to retrieve any U.S. citizens held by the ICC. The U.S. also sought and obtained so-called bilateral immunity agreements with countries that were States Parties to the Rome Statute whereby they would not turn over any U.S. personnel to the ICC. Other federal legislation called for cancelling any foreign military aid to countries that would not sign such agreements.[4]

However, the Bush Administration, especially in its second term, softened its stance on the ICC.  In March 2005, the U.S. abstained on the U.N. Security Council vote to refer the Sudan/Darfur situation to the ICC, thereby allowing the resolution to pass. The Administration also granted waivers from cancellation of foreign military aid.[5]


[1] See Post: The International Criminal Court and the Clinton Administration (May 11, 2011).

[2] Letter, John R. Bolton (U.S. Under Secretary of State for Arms Control and International Security) to U.N. Secretary-General Kofi Annan (5/6/02), http://archives.cnn.com/2002/US/05/06/court.letter.text/index.html.

[4]  E.g., AMICC, U.S. Administrative Update, http://www.amicc.org/usinfo/administration.html; AMICC, U.S. Congressional Update, http://www.amicc.org/usinfo/congressional.html.

[5] Id.

The International Criminal Court and the Clinton Administration

During the Clinton Administration, the United States supported the idea of creating an international criminal court and was a major participant at the Rome Conference that produced the Rome Statute. At the conclusion of that Conference in July 1998, the Rome Statute was approved by a vote of 120 to 7. The seven negative votes were cast by the United States, Iraq, Israel, Libya, People’s Republic of China, Qatar and Yemen.[1]  These were the reasons advanced for the U.S. negative vote:

  • The U.S. wanted an ICC that was controlled by the U.N. Security Council where the U.S. as a permanent member had a veto. Although the U.S. was able to get some provisions in the Statute that gave the Security Council certain rights vis-à-vis the ICC, the Statute allowed the Court to proceed with investigations and prosecutions based upon referrals by member states and upon the prosecutor’s own initiative.
  • The Statute left open the possible assertion of the Court’s jurisdiction over nationals of a non-State Party such as the U.S.[2]

On December 31, 2000 (two and a half years after the Rome Conference and in the last month of his Presidency), however, President Clinton signed the treaty on behalf of the U.S. His formal statement on this action said that he did so “to reaffirm our strong support for international accountability and for bringing to justice perpetrators of genocide, war crimes and crimes against humanity” and for the U.S. “to remain engaged in making the ICC an instrument of impartial and effective justice.”  On the other hand, President Clinton stated that the U.S. was not “abandoning our concerns about serious flaws in the treaty.” Foremost was the Court’s ability to “claim jurisdiction over personnel of states that have not [ratified the treaty].” Therefore, he said, he “will not, and do not recommend that my successor submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied.” Therefore, in the last month of his Presidency, President Clinton did not submit the Rome Statute to the Senate.[3]


[1] There also were 21 countries that abstained on the final vote on the Rome Statute. (Wikipedia, Rome Statute of the International Criminal Court, http://en.wikipedia.org/wiki/Rome_Statute_of_the_International_Criminal_Court.

[2] Scharf, Results of the Rome Conference for an International Criminal Court, ASIL Insights  (Aug. 1998), http://www.asil.org/insigh23.cfm; Wedgwood, Fiddling in Rome: America and the International Criminal Court, Foreign Affairs (Nov/Dec. 1998).

[3] President Clinton, Statement on Signature of the International Criminal Court Treaty  (12/31/00), http://www.amicc.org/docs/Clinton_sign.pdf; Congressional Research Service, U.S. Policy Regarding the International Criminal Court (29/08/96),  http://fpc.state.gov/documents/organization/73990.pdf. Under Article II, Section 2 of the U.S. Constitution, the President has the “Power, by and with the Advice and Consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”

Barack Obama, Bill Clinton, Mattie Stepanek and Five Judges

On April 30th at the University of Chicago Law School’s reunion week-end , two of its distinguished graduates, Geoffrey Stone and Robert Barnett, spoke about some interesting people with whom they have interacted: Barack Obama, Bill Clinton, Mattie Stepanek and five judges (Circuit Judges J. Skelly Wright and Minor Wisdom and U.S. Supreme Court Justices William Brennan, Byron White and Elena Kagan).

Geoffrey Stone

Geoffrey Stone

Geoffrey R. Stone is a 1971 graduate of the Law School, law clerk to U.S. Circuit Judge J. Skelly Wright (1971-72) and U.S. Supreme Court Justice William Brennan (1973). In 1973 he returned to the Law School to join its faculty where he has been ever since. He was Dean of the Law School (1987-93) and Provost of the University (1993-2002). He is now the Edward H. Levi Distinguished Service Professor at the Law School.[1]

Barack Obama

Stone recounted the story of the Law School’s recruitment of Barack Obama to join the faculty. In 1991 Michael McConnell, then a professor at the Law School and now at the Stanford Law School, told Professor Douglas Baird, who was the chairman of the faculty appointments committee at the time, about Obama, then an impressive editor at the Harvard Law Review who was doing an excellent job editing McConnell’s submission. Baird reached out to Obama and asked him about teaching, and Obama agreed to come for interviews at the Law School.[2]

Stone recalled that when he met Obama for the first time, Barack at age 26 already had a real political persona. “It was partly a kind of magnetism, partly a kind of grace, a sense of his own presence. You couldn’t mistake that you were with somebody who thought he was somebody—not in a bad way, but in a compelling way.” After Obama left, Stone’s secretary said,” He’s going to be governor of Illinois someday.”

The Law School then made an offer to Obama to be a full-time assistant professor. Obama refused the offer as he already had plans to write a book on voting rights. So Stone and Baird took a different approach and offered Obama a Law and Government Fellowship, which would allow him to work on his book and would perhaps lead him to develop an interest in teaching. Obama accepted the offer and began the fellowship in the fall of 1991. The book, instead of being about voting rights, was the autobiographical  Dreams of My Father.

The next year Obama became a Lecturer (and a Senior Lecturer in 1996) and continued to teach at the Law School until he was elected to the U.S. Senate in 2004. Obama taught “Constitutional Law III: Equal Protection,” “Voting Rights and the Democratic Process,” and a seminar entitled “Current Issues in Racism and the Law.” After his election as President, glowing comments were made about his time at the Law School:

  • Stone said, “As a teacher and colleague, [Obama] was always curious, probing, open-minded, and rigorous.”
  • Professor Baird said, “From the open and robust debates [Obama] generated in every class to the many more informal displays of his tenacious mind and incisive wit, it was a great privilege to have had Barack Obama with us for twelve years.”
  • Davis Strauss, the Gerald Ratner Distinguished Service Professor of Law, offered that “at the Law School we have known for a long time . . . that Barack Obama is both amazingly gifted and a deeply human person.”

Elena Kagan

Stone also hired Elena Kagan for the Law School’s faculty (1991-95), and he joked that he has the distinction of being the only law school dean who hired two people who later became President of the U.S. and an Associate Justice of the U.S. Supreme Court.

Judge Wright and Justice Brennan

Stone said it was a great privilege to be a law clerk for both of these judges, who made him feel like he was a part of their families. Brennan was usually a very cheerful man to one and all in the Supreme Court building.

Robert Barnett

Robert Barnett

Robert B. Barnett is also a 1971 graduate of the University of Chicago Law School and a former law clerk for Circuit Judge Minor Wisdom (1971-72) and U.S. Supreme Court Justice Byron White (1972-73). Barnett is now a partner in the Washington, D.C. law firm of Williams and Connolly, LLP. He was ranked Number One on Washingtonian magazine’s list of “Washington’s Best Lawyers” and as one of “The 100 Most Influential Lawyers in America” by The National Law Journal. He represents major corporations in litigation matters, corporate work, contracts, crisis management, transactions, government relations, and media relations.[3]

Mr. Barnett is also one of the premier authors’ representatives in the world. His clients have included Barack Obama, Bill Clinton, George W. Bush, Hillary Rodham Clinton, Laura Bush, Bob Woodward, Lynne Cheney, Alan Greenspan, James Patterson, Katharine Graham, Daniel Silva, Tim Russert, Stephen White, Barbara Streisand, George Will, Art Buchwald, James Carville, Mary Matalin, William Bennett, Mary Higgins Clark, Cokie Roberts, several former U.S. Secretaries of State, numerous U.S. Senators, Tony Blair of the United Kingdom, Queen Noor of Jordan and Benazir Bhutto of Pakistan. He is also one of the leading representatives of many famous television news correspondents and producers. Mr. Barnett also provides legal counsel to former government officials in conjunction with their transitions to the private sector. [4]

His legal practice as an authors’ representative, he said, grew out of his helping Geraldine Ferraro prepare for the vice presidential candidates debate in 1984 when he played the role of George H.W. Bush in practice debates. After the Ronald Reagan-George H.W. Bush ticket defeated the Mondale-Ferraro team, she wrote a book about her political experiences and hired Barnett as her lawyer in negotiating a contract with the publisher. This was his first book publishing deal.[5]

Judge Minor Wisdom and Justice Byron White

Judge Wisdom, much like Judge Skelly Wright, was a warm human being and an excellent judge. Justice White, while also an excellent judge, was more formal and reserved. But not on the basketball court where White, a former professional  football and basketball player, regularly challenged the law clerks in hard-fought games.

Bill Clinton

In response to a question about who were the most impressive people he had met and worked with, Barnett said there were two people.

The first was Bill Clinton. Clinton, he said, knew more people than anyone else. And Clinton knew more about more subjects and with greater depth than anyone he has ever met.

Mattie Stepanek

Mattie Stepanek

The second person named by Barnett was surprising to me in that he did not name one of the other famous people he had represented. Instead he said it was someone I had never heard of: Mattie (whose last name I could not catch). Barnett said that Mattie was a young poet who had appeared on the Oprah Winfrey television show, and Barnett had had the privilege of negotiating an excellent book deal for him. Mattie was an exceptionally gifted and brave person, Barnett said, adding that Mattie had died of a rare form of muscular dystrophy at age 13.

After I got home and googled “Barnett & Mattie & Oprah,” I discovered Mattie’s last name was Stepanek and learned more about him.[6] He had published six books of poetry and one book of essays, all of which had been on the New York Times‘ bestsellers lists. He also had become a peace advocate and motivational speaker and had testified on Capitol Hill on behalf of peace, people with disabilities and children with life-threatening conditions. Over 1,300 people attended his funeral, and former President Jimmy Carter delivered the eulogy. Carter said,

“We have known kings and queens, and we’ve know presidents and prime ministers, but the most extraordinary person whom I have ever known in my life is Mattie Stepanek. His life philosophy was “Remember to play after every storm” and his motto was: “Think Gently, Speak Gently, Live Gently.” He wanted to be remembered as “a poet, a peacemaker, and a philosopher who played.”


[1]  Univ. Chicago Law School, Geoffrey R. Stone, http://www.law.uchicago.edu/faculty/stone-g. Edward H. Levi was the Dean of the Law School (1950-62), Provost of the University (1962-68), President of the University (1968-75) and U.S. Attorney General (1975-77). (Wikipedia, Edward H. Levi, http://en.wikipedia.org/wiki/Edward_H._Levi.)

[2]  Stone’s comments about Obama are supplemented by the following: U. Chi. Law School Press Release:  Former Senior Lecturer Barrack Obama Elected President of the United States (Nov. 4, 2008), http://www.law.uchicago.edu/news/staff110408; Hundley, Faculty Discuss Their Time as Obama’s Colleagues (Chic. Trib. March 22, 2009), http://www.law.uchicago.edu/news/faculty032209; Mordfin, From the Green Lounge to the White House, The Record Online (Spring 2009), http://www.law.uchicago.edu/alumni/magazine/spring09/greenloungetowhitehouse.

[3]  Williams & Connolly, Robert Barnett, http://www.wc.com/rbarnett.

[4]  Id.; Montgomery, Washington lawyer Bob Barnett is the force behind many political book deals, Wash. Post., March 7, 2010.

[5] Mr. Barnett has worked on eight national presidential campaigns, focusing on debate preparation for the Democratic candidates in 1976, 1980, 1984, 1988, 1992, 2000, 2004 and 2008. He played the role of George H.W. Bush in practice debates with Michael Dukakis in 1988, and practice-debated Bill Clinton more than 20  times during the 1992 campaign. In 2000, he played the role of Dick Cheney in practices with Joe Lieberman. In 2004, he played the role of Dick Cheney in practices with John Edwards. In 2000 and 2006, he assisted Hillary Rodham Clinton with her Senate debate preparations and helped prepare her for 23 presidential primary debates in 2008. Id.

[6] Wikipedia, Mattie Stepanek, http://en.wikipedia.org/wiki/Mattie_Stepanek;Mattie Stepanek’s Personal Website, .http://www.mattieonline.com/.

The International Criminal Court: Libya Investigation Status

On May 4th the ICC Prosecutor reported to the U.N. Security Council regarding the status of his office’s investigation of “the situation in Libya since February 15, 2011.”[1] (As noted in a prior post, the ICC is investigating the Libya situation by virtue of the February 26, 2011, U.N. Security Council’s unanimous Resolution referring the situation in Libya to the ICC.[2])

The Prosecutor in his May 4th report said that soon he would be submitting his first application to the Court’s Pre-Trial Chamber for the issuance of arrest warrants in this investigation. The first such application will be against three individuals who appear to bear the greatest criminal responsibility for crimes against humanity in Libya since February 15th. These would be “those who ordered, incited, financed, or otherwise planned the commission of the alleged crimes.” He did not give the names of the three, but it is expected that one will be Colonel Muammar al-Gaddafi.

According to the Prosecutor, the evidence provided a reasonable basis to believe that the regime’s security forces have been systematically shooting and killing at least 500 to 700 peaceful protesters and injuring many more, using the same modus operandi in multiple locations. In addition, the security forces are engaged in persecution by systematic arrests, torture, killings and enforced disappearances of civilians who have participated in demonstrations, or who are considered disloyal to the regime or who have talked to international media, activists or journalists.

Such conduct, if established at trial, constitutes crimes against humanity under Article 7 of the Court’s Rome Statute: “widespread or systematic attack directed against any civilian population, with [the accused’s] knowledge of the attack [involving] murder; . . . torture; . . . persecution against any identifiable group . . . on political . . . grounds . . .; [or] enforced disappearance of persons.”

The Prosecutor reported that such charges would be admissible in the ICC because there was no national investigation or prosecution of individuals for such conduct and there were no “interests of justice” that called for the Prosecutor not to investigate or prosecute individuals for these crimes.

The Prosecutor also noted that his office was still investigating other crimes against humanity as well as war crimes in Libya and implied that is office might be seeking other arrest warrants.

All 15 members of the Security Council at the May 4th meeting complimented the Prosecutor for his immediate, professional and thorough investigation of the Libyan situation and stressed the importance of further investigation and prosecutions. Interestingly the Indian representative said the Prosecutor should not be influenced by “non-judicial considerations” and should investigate the conduct of both sides to the conflict. More ominously, the South African representative said that the Prosecutor should investigate any actions by the NATO coalition that “fall outside the scope of [the Security Council’s resolutions on Libya]” and that violate the provisions of the Rome Statute.

By referring the Libyan situation to the Court, the Security Council clearly saw the ICC’s investigation and prosecution as one of several means to try to stop the horrible repression in Libya in addition to the Security Council’s establishing an arms embargo, travel ban, asset freeze and military imposition of a “no-fly zone” and authorizing “all necessary measures” to protect civilians.

On the other hand, some see ICC investigations and prosecutions as making it more difficult to end what has become a Libyan civil war in that they provide an additional motivation for Gaddafi and others to fight to the bitter end.[3]  At the May 4th Security Council meeting, the Chinese representative said the ICC needed to remember that “peaceful dialogue and negotiations are the best way forward towards a political solution to the crisis,” and the Nigerian representative made similar comments, saying that the prosecution must be “carefully calibrated to support the ongoing political efforts to find a peaceful solution.”

Stay tuned for further developments in Libya and at the ICC in The Hague.


[1]  ICC Press Release, The Office of the Prosecutor will request an arrest warrant against three individuals in the first Libya case (May 4, 2011, http://www2.icc-cpi.int/NR/exeres/DCBD3E2C-C592-4FB8-B7CB-E18E67F692D1.htm; ICC, First Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011) (May 4, 2011); U.N. Security Council, 6528th Meeting (May 4, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/321/42/PDF/N1132142.pdf?OpenElement. For background on the ICC, see Post: The International Criminal Court: Introduction (April 28, 2011).

[2]  Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[3]  Sands, The ICC arrest warrants will make Gaddafi dig in his heals, Guardian (May 4, 2011), http://www.guardian.co.uk/commentisfree/2011/may/04/icc-arrest-warrants-libya-gaddafi/print

No to Minnesota Constitutional Amendment on Taxes

Republican state legislators are now proposing to amend the Minnesota Constitution to require a super-majority vote (60%) in the Legislature to approve most tax increases.[1]

This is a stupid idea.   Have they not read about the many fiscal problems California has due to its imprudent requirement for super-majority legislative votes to approve a budget? The U.S. Senate is hamstrung due to its outdated and unconstitutional rules that impose a de facto super-majority vote (again 60%) to do almost anything.[2]  Minnesota even has difficulties passing a budget under normal rules.

Our Legislature needs to operate on a simple democratic principle–the majority rules.

The proposed constitutional amendment stems from the understandable, but mistaken, view that whatever a person earns is due entirely to his own efforts. On the contrary, every one of us owes whatever success one has to a multitude of other people, to a “cloud of witnesses.”[3] Warren Buffett often remarks on his great fortune to have been born in the U.S. We are all in this together. We are our brothers and sisters’ keeper.[4]


[1] Kazuba, Raising the bar on raising taxes, StarTribune, May 3, 2011, at B7.

[2] See Post: The Abominable Rules of the U.S. Senate (04/06/11).

[3]  The Bible, Hebrews 12:1.

[4] A slightly different version of this post was published as a letter to the editor in the StarTribune (May 7, 2011), http://www.startribune.com/opinion/letters/121416799.html?page=all&prepage=1&c=y#continue.

The International Criminal Court: Investigations and Prosecutions

All of the ICC’s initial six investigations come from Africa.

Uganda, Democratic Republic of Congo and Central African Republic. Three of the investigations arise from submissions to the Court by three of its African States Parties–Uganda, the Democratic Republic of the Congo and the Central African Republic. These ICC investigations have led to the issuance of 10 arrest warrants. One of the subjects from Uganda died of natural causes. Five of the subjects of these warrants remain at large. Three of the Congolese subjects (Lubanga, Katanga and Chui) are now on trial at the ICC, with the closing arguments in the ICC’s first trial (Lubanga) scheduled for this coming August. In addition, the trial of Jean-Pierre Bemba for actions in the Central African Republic started this past November.[1]

Kenya. Another investigation relates to Kenya. On November 26, 2009, the Prosecutor on his own initiative asked the Pre-Trial Chamber for permission to open an investigation into post-election violence in Kenya in 2007-2008 as possible crimes against humanity. On March 31, 2010, that Chamber approved that application. A year later–March 8, 2011, the Pre-Trial Chamber authorized the issuance of summonses to six individuals.[2]

Darfur (Sudan) and Libya. The last two investigations –Darfur (Sudan) and Libya– arise from submissions to the Court by the U.N. Security Council under Article 13(b) of the Rome Statute and Chapter VII of the U.N. Charter. (The latter gives the Council responsibility for the maintenance of “international peace and security.”)

In the Darfur (Sudan) situation, the Court has issued seven arrest warrants against six persons. One of the subjects (Bahr Idriss Abu Garda) appeared voluntarily at the Court and was in pre-trial proceedings, but on February 8, 2010, the Pre-Trial Chamber declined to confirm the charges against him, thus ending his case subject to reopening by the Prosecutor if there is additional evidence to support the charges. Two others (both Darfur rebel commanders) voluntarily surrendered themselves to the ICC, and in March 2011, the Pre-Trial Chamber confirmed the charges against them and committed them to trial. Three others remain at large, and one of them (Sudanese President Omar Hassan Ahmed Al Bashir) is the current head of state.[3]

As the Security Council resolution on Darfur itself noted, the Council under Article 16 of the Rome Statute has the power to stop anyinvestigation or prosecution” by the ICC  for a period of 12 months after the Council adopts a resolution to that effect under Chapter VII of the U.N. Charter and to renew such a resolution ad infinitum. Yet in the over five years after its referral of the Darfur situation to the Court, the Council has not chosen to exercise this power after being kept advised of developments by the Prosecutor’s personal biannual reports to the Council.[4] This refusal to defer the prosecution of President Bashir is despite requests to do so from African and Arab states.

The last of the six ICC investigations relates to the current situation in Libya. On February 26, 2011, the U.N. Security Council adopted Resolution 1970 that, among other things, referred the Libyan situation since February 15, 2011, to the ICC’s Prosecutor, directed the Libyan authorities to cooperate fully with the Court and Prosecutor and invited the Prosecutor to make periodic reports about his actions in this matter to the Council. The resolution also stated that “nationals, current or former officials or personnel from a State outside [Libya], which is not a party to the Rome Statute . . . shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in [Libya] established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.”[5]

Two days later (February 28th) the Prosecutor stated that he had to decide whether to open an investigation regarding Libya and that he was collecting information to determine whether the necessary conditions for the Court’s jurisdiction were satisfied. [6] Another four days passed, and the Prosecutor on March 3rd announced that he was opening such an investigation.[7]

On May 4th the Prosecutor will report to the Security Council on the status of his Libyan investigation, including a possible request to the Pre-Trial Chamber to issue arrest warrants against those who appear to bear the greatest responsibility for crimes in Libya.

Preliminary examinations. In addition to these six investigations, the Office of the Prosecutor has conducted or currently is conducting preliminary examinations or analyses of situations in a number of other countries to determine if requests to the Pre-Trial Chamber should be made to commence investigations. These countries include Afghanistan, Chad, Colombia, Cote d’Ivorie, Georgia, Guinea, (Gaza) Palestine, Honduras and Nigeria. With respect to Afghanistan, which is a State Party to the Rome Statute, the Prosecutor has said that his office was looking into accusations of war crimes and crimes against humanity by the Taliban and by the U.S. and its allies.[8]

The Prosecutor also has declined to commence certain investigations that had been suggested by outsiders, and under Article 15(6) of the Statute the Prosecutor publicly has stated the reasons for these declinations. Two such instances are Iraq and Venezuela.

The ICC is well on the way to establishing itself as an important actor in the interactive global struggle against impunity for the worst violators of international human rights.


[3] ICC Press Release, Pre-Trial Chamber I declines to confirm the charges against Bahar Idriss Abu Garda (Feb. 8, 2010), http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/news%20and%20highlights/pr495?lan=en-GB.

[4]  See AMICC, ICC Prosecutor Reports to the United Nations, http://www.amicc.org/icc_activities.html#unreports. These reports include discussions of the Prosecutor’s efforts (a) to determine whether Sudan has capable domestic institutions and procedures to handle the crimes in question and (b) to address whether the “interests of justice” call for continuation or termination of the investigations.

[5] U.N. Security Council, 6491st meeting (Feb. 26, 2011); U.N. Security Council, Resolution 1970 (2011)  ¶¶ 4-8 (Feb. 26, 2011).

[6] ICC, Statement by the Office of the Prosecutor on situation in Libya (Feb. 28, 2011).

[7]  ICC, ICC Prosecutor to open an investigation in Libya (March 2, 2011).

[8]  ICC, Office of the Prosecutor, http://www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor; Lauria, Court Orders Probe of Afghan Attacks, Wall St. J., Sept. 10, 2009; ICC Office of Prosecutor, Letter to Deputy High Commissioner for Human Rights (Jan. 12, 2010) (alleged crimes during the conflict in Gaza in December 2008 and January 2009), http://www2.icc-cpi.int/NR/rdonlyres/FF55CC8D-3E63-4D3F-B502-1DB2BC4D45FF/281439/LettertoUNHC1.pdf; ICC Office of the Prosecutor, ICC Prosecutor confirms situation in Guinea under examination (Oct. 14,  2009), http://www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor/Comm+and+Ref/Guinea.

The International Criminal Court: Introduction

The ICC commenced operations as a permanent international institution on July 1, 2002, after 60 states had ratified its treaty (the Rome Statute). Now 116 states are States Parties for the Court.[1] The following is a geographical breakdown of those States Parties:

States Parties?

Yes No Total
Africa[2]    32 15   47
Asia[3]    15 37   52
Europe[4]    40   4   44
Latin America[5]    26   7   33
Middle East[6]      2 13   15
North America[7]      1   1     2
TOTAL[8] 116 77 193

Under the Rome Statute, the ICC has jurisdiction over the following crimes: genocide, crimes against humanity and war crimes (Arts. 5-8).[9] The Statute provides detailed definitions of those crimes, which are very important developments in the relatively new area of international criminal law. Once in operation, the Court developed its Rules of Procedure and Evidence and The Elements of Crimes that provide additional due process protections for those accused of crimes by the Court.[10] These also are important contributions to this area of the law and to the ongoing global struggle against impunity for human rights violators.

An important exception to ICC jurisdiction over the above crimes exists under Article 17(1) where:

(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 article 20, paragraph 3 . . . .” [11]

The above exception to ICC jurisdiction is known, in ICC parlance, as the principle of “complementarity.” In other words, the ICC is a court of last resort. To further this limited role, the ICC has been engaged in helping certain states to improve their own judicial ability to handle ICC-type cases. This is often referred to as “positive complementarity” within ICC circles.[12]

The ICC has 18 judges who are elected by the ICC’s Assembly of States Parties for a term of nine years. Seven are from Europe (and Other); five, Africa; four, Latin America and Caribbean; and two, Asia. The judges are assigned to the following three divisions of the Court:

  • The Pre-Trial Division, which has responsibility for various matters before trial. Six judges with predominantly criminal trial experience are assigned to this division, and they conduct the business in chambers of one or three judges.
  • The Trial Division, which has responsibility for conducting the trials. Eight judges with predominantly criminal trial experience are assigned to this division, and they conduct the business in chambers of three judges.
  • The Appeals Division, which has responsibility for handling any appeals from the other divisions. Five judges are assigned to this division, and all five judges conduct the appeals in the Appeals Chamber.[13]

An inherent problem for the ICC is its lack of an international police or military force to arrest subjects of warrants. But under Articles 59 and 89 of the Statute, a State Party has an obligation “to take steps to arrest” the person and to follow its own appropriate judicial procedure to determine the propriety of delivering the person to the ICC. This obligation obtains for any State Party where the subject may be found, not just the State Party where the alleged crime occurred. In addition, the Court under Article 89(1) may request the arrest of a subject by “any State on the territory of which that person may be found.”[14]

The Court’s Prosecutor is elected by the Assembly of State Parties for a single nine-year term. (Art. 42(4).) The Prosecutor has authority to conduct investigations into situations that are referred to the Court by the U.N. Security Council or a State Party under Articles 13(b) and 14 of the Rome Statute or upon his or her own initiative (proprio motu) under Article 15(1).

Under the Rome Statute the Prosecutor is invested with specific duties regarding investigations and prosecutions and is subject to various checks and balances from the Pre-Trial Chamber and others (States Parties and the U.N. Security Council when making referrals). All of these provisions are some of the protections provided to those who are accused by the ICC and should provide comfort to those like some in the U.S. who believe that there are no checks on a hypothetically biased Prosecutor.

The governing body for the ICC is the previously mentioned Assembly of States Parties, in which each party has one vote. This is separate and distinct from the United Nations or its General Assembly or Security Council or any other U.N. organ. (Art. 112.)

Future posts will discuss the Court’s current situations and cases, the 2010 Review Conference and definition of the crime of aggression and the U.S.’ relations with the Court.



[1]  ICC, The States Parties to the Rome Statute, http://www.icc-cpi.int/Menus/ASP/states+parties. This is the Court’s own website, which has extensive information about the ICC. Another useful website is the official one about the Rome Conference of 1998 that developed the treaty that governs the Court (the Rome Statute): http://untreaty.un.org/cod/icc/index.html. The list of States Parties has been updated to June 22, 2011.

[2] Seychelles will become the 31st African state to join the ICC on November 1, 2010. The principal African states that are notICC members are Algeria, Angola, Eritrea, Ethiopia, Libya, Rwanda, Somalia, Sudan and Zimbabwe. (Compare id. with U.N., List of Member States of United Nations,http://www.un.org/en/members/index.shtml.

[3] The principal Asian states that are not ICC members are China, Democratic Republic of Korea, India, Indonesia, Iran, Malaysia, Myanmar, Pakistan, Philippines, Thailand and Viet Nam. Id.

[4] The principal European states that are not ICC members are Belarus, the Russian Federation and Ukraine. Id.

[5]  The principal Latin American and Caribbean states that are not ICC members are Cuba, El Salvador, Guatemala and Nicaragua.  Id.

[6]  The only Middle Eastern states that are ICC members are Cyprus and Jordan.  Id.

[7]  Canada is the only North American state that is an ICC member. The U.S.A. is the only North American state that is not an ICC member.  Id.

[8]  There are 192 members of the U.N., and a non-member of the U.N. (Cook Islands) is an ICC State Party. Thus, the total number of states in the table is 193. Id.

[9]  The Rome Statute also grants the ICC jurisdiction over the crime of aggression, but since that crime was not defined in the Statute, the Court could not exercise that jurisdiction. (Art. 5(2).) At the Court’s 2010 Review Conference, such a definition was added. This will be the subject of a future post.

[11] Article 20(3) of the Rome Statute lifts the bar of prior prosecution in a domestic court when it was not in good faith, i.e., when it was done “for the purpose of shielding the person concerned from criminal responsibility for [ICC] crimes” or when it was not “conducted independently or impartially . . . and  [WAS] . . . conducted in a manner which. In the circumstances, was inconsistent with an intent to bring the person concerned to justice.”

[12] E.g., ICC, Resolution on Complementarity (RC/Res. 1 June 8, 2010), http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.1-ENG.pdf; AMICC, Report on the Review Conference of the International Criminal Court (June 25, 2010), http://www2.icc-cpi.int/Menus/ICC/Home; http://www.amicc.org.

[13] Rome Statute, Arts. 34-41; ICC, Chambers, http://www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Chambers. (One-third of the first set of judges only had a term of three years; another third, six years; and the final third, the full nine-year term. (Art. 36(9)(b).)

[14] The recent Review Conference adopted a declaration that reemphasized the obligation of States Parties to arrest those subject to ICC arrest warrants. (ICC, Declaration on cooperation (RC/Decl.2 June 8, 2010), http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Decl.2-ENG.pdf.