The International Criminal Court and the Obama Administration

Barack Obama

The Obama Administration has adopted what it calls “an integrated approach to international criminal justice,” including the International Criminal Court. There are at least six points to this approach, the first three of which are specifically addressed to the ICC.[1]

First, the U.S. will not be seeking U.S. Senate consent to U.S. ratification of the Rome Statute. In January 2010, U.S. Ambassador at Large for War Crimes, Stephen Rapp, publicly stated that no U.S. president was likely to present the Rome Statute to the U.S. Senate for ratification in the “foreseeable future.” Rapp cited fears that U.S. officials would be unfairly prosecuted and the U.S.’s strong national court system as reasons it would be difficult to overcome opposition to ratification. He did not mention the virtual political impossibility in this Congress to obtaining the two-thirds (67) vote in the Senate that would be necessary for ratification.[2] In addition, in March 2011, the U.S. told the U.N. Human Rights Council at the conclusion of its Universal Periodic Review of the U.S. that the U.S. did not accept the recommendations by a number of States that the U.S. ratify the Rome Statute.[3]

Second, the U.S. Administration will not be seeking statutory changes to U.S. statutes and practices that are hostile to the ICC. This conclusion emerges by implication from the absence of any such proposed legislation and from the same political calculus just mentioned. The Obama Administration, therefore, is living with the laws on the books bolstered by a January 2010 legal opinion from the Justice Department’s Office of Legal Counsel that U.S. diplomatic or “informational” support for particular ICC investigations or prosecutions would not violate U.S. law. Other hand-me-downs of past U.S. actions hostile to the ICC are the U.S.’ 102 Bilateral Immunity Agreements or “BIA”s, whereby the other countries agreed not to turn over U.S. nationals to the ICC. The last of these was concluded in 2007. There is no indication that the U.S. will seek to rescind these agreements or to negotiate new ones.[4]

Third, the U.S. instead has been pursuing a policy of positive engagement with the ICC in various ways. Indeed, the U.S. National Security Strategy of May 2010 stated that as a matter of moral and strategic imperative the U.S. was “engaging with State Parties to the Rome Statute on issues of concern and [is] supporting the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.”[5]

Foremost for positive engagement is the U.S. participation as an observer at meetings of the ICC’s governing body, the Assembly of States Parties. The U.S. did so in November 2009,[6] March 2010,[7] June 2010[8] and December 2010[9] and has announced its intention to do so at the next meeting in December 2011.

In addition to observing the debates and discussion at these meetings, the U.S. has made positive contributions. The U.S. experience in foreign assistance judicial capacity-building and rule-of-law programs, Ambassador Rapp has said, could help the ICC in its “positive complementarity” efforts, i.e., its efforts to improve national judicial systems. Similarly the U.S. experience in helping victims and reconciling peace and justice demands has been offered to assist the ICC.[10] At the June 2010 Review Conference the U.S. made a written pledge to “renew its commitment to support projects to improve judicial systems around the world.” Such improvements would enable national courts to adjudicate national prosecutions of war crimes, crimes against humanity and genocide and thereby make ICC involvement unnecessary. The U.S. also pledged at the Review Conference to “reaffirm President Obama’s recognition . . . that we must renew our commitments and strengthen our capabilities to protect and assist civilians caught in the [Lord Resistance Army’s] wake [in Uganda], to receive those that surrender, and to support efforts to bring the LRA leadership to justice.”[11]

The June 2010 meeting was the important Review Conference that adopted an amendment to the Rome Statute with respect to the crime of aggression; this will be discussed in a future post. Immediately after the Review Conference Ambassador Rapp and State Department Legal Advisor Koh said that U.S. participation at the Review Conference “worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill.” All of this reflected U.S. (a) “support for policies of accountability, international criminal justice, and ending impunity,” (b) the U.S. “policy of principled engagement with existing international institutions” and (c) ensuring that lawful uses of military force are not criminalized.[12]

At the December 2010 meeting, Ambassador Rapp emphasized three ways for the world community to help the important work of the ICC. First was protecting witnesses in cases before the ICC and in other venues from physical harm and death and from bribery attempts. Second was enforcing the ICC arrest warrants and bringing those charged to the Court to face prosecution. Third was improving national judicial systems all over the world. In this regard the U.S. endorsed the recent discussion in the Democratic Republic of the Congo about creating a “mixed chamber” of Congolese and foreign judges in its national judiciary with jurisdiction over genocide, crimes against humanity and war crimes.[13]

The U.S. also is meeting with the ICC’s Prosecutor and other officials to find ways the U.S. can support current prosecutions (consistent with U.S. laws). [14]

As another means of positive engagement with the ICC,  the U.S. has continued to support the March 2005 U.N. Security Council referral of the Sudan (Darfur) situation to the ICC, and the U.S. has refused to support any effort to exercise the Council’s authority to suspend any ICC investigations or prosecutions of Sudanese officials for a 12-month period. In January 2009, Susan Rice, the U.S. Ambassador to the U.N., stated that the U.S. supports “the ICC investigation and the prosecution of war crimes in Sudan, and we see no reason for an Article 16 deferral” by the Council. Following the ICC’s issuance of an arrest warrant for Omar al-Bashir, President of Sudan, in March 2009, Ambassador Rice reiterated U.S. support for the Court on Darfur and the requirement of Sudan to cooperate with the ICC. [15]

More recently, the U.S. supported the use of the ICC with respect to Libya. The previously discussed U.N. Security Council Resolution 1970 that referred the Libyan situation to the ICC Prosecutor was prepared by the U.S. and 10 other Council members.[16] During the Council’s discussion of the resolution, U.S. Ambassador Susan Rice stated, “For the first time ever, the Security Council has unanimously referred an egregious human rights situation to the [ICC].”[17]

Three days after the Security Council resolution on Libya, the U.S. Senate unanimously approved a resolution deploring the situation in Libya and Colonel Gadhafi. This resolution also stated that the Senate “welcomes the unanimous vote of the United Nations Security Council on resolution 1970 referring the situation in Libya to the [ICC] . . . .”[18]

Another means of the U.S.’ positive engagement with the ICC is U.S. public diplomacy supporting the Court–publicly support the arrest and prosecution of those accused by the ICC’s Prosecutor and publicly criticizing those who seek to thwart such arrests. In any event, the U.S. has ceased its hostility and harsh rhetoric against the Court.[19]

Fourth, the U.S. will continue to offer financial support and advice to strengthen other national court systems, particularly in the Democratic Republic of Congo. As previously mentioned, this policy is part of the U.S. positive engagement with the ICC, but it is also part of the broader approach to international criminal justice.[20]

Fifth, the U.S. will continue to support the final work of the ad hoc criminal tribunals for Rwanda and the former Yugoslavia that were established by the U.N. Security Council with limited time periods of existence. The U.S. will do so by providing funding, by supporting their work diplomatically and politically and by providing evidence and concrete support to the prosecutors and defendants. In particular, the U.S. will work in the Security Council “to create a residual mechanism for the ad hoc tribunals that will safeguard their legacy and ensure against impunity for fugitives still at large” after those tribunals cease to exist.[21]

Ambassador Rapp also has noted that the era of the U.N.’s establishing ad hoc and short-lived tribunals like the International Criminal Tribunal for Rwanda to address specific problems was over. Only the ICC would be in business for future problems. Therefore, the U.S. needed to be positively engaged with the ICC.[22]

Sixth, the U.S. has said that it must work with countries that exercise universal jurisdiction (like Spain) when there is some relation between the country and the crime. Exactly what that means is not clear. Ambassador Rapp publicly has endorsed the principle of universal jurisdiction as another way to hold human rights violators accountable. On the other hand, as will be discussed in a future post, Spain has at least two pending criminal cases against high-level U.S. officials under Spain’s statute implementing this jurisdictional principle.[23]

In conclusion, we have seen that there is substance to the claim that the Obama Administration has developed “an integrated approach to international criminal justice.” Although I personally believe the U.S. should become a full-fledged member of the ICC, I recognize the current political impossibility of that happening and believe that the U.S. is doing everything that it can to support the important work of the ICC and other courts that are tackling, in the words of Article 1 of the Rome Statute, the “most serious crimes of international concern.”


[1] Koh, The Challenges and Future of International Justice (Oct. 27, 2010), http://www.state.gov/s/l/releases/remarks/150497.htm; U.S. White House, National Security Strategy at 48 (May 2010), http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf. See Post: The International Criminal Court: Introduction (April 28, 2011)(overview of structure and operation of ICC).

[2] Belczyk, US war crimes ambassador says US unlikely to join ICC in ‘forseeable future,’ Jurist (Jan. 28, 2010), http://jurist.law.pitt.edu/paperchase/2010/01/us-war-crimes-ambassador-says-us.php.

[3] On January 4, 2011, the Human Rights Council’s Working Group on the Universal Periodic Review of the U.S. issued its final report on the UPR of the U.S. It set forth all the recommendations of the States without endorsement by the Working Group as a whole. This report again included the specific recommendations for the U.S. to ratify the Rome Statute. (U.N. Human Rights Council, Report of the Working Group on the Universal Periodic Review–United States of America ¶¶ 92.1, 92.2, 92.16, 92.25, 92.28, 92.36 (Jan. 8, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/100/69/PDF/G1110069.pdf?OpenElement.) On March 8, 2011, the U.S. submitted its response to this final report. Among other things, the U.S. specifically rejected the recommendations that the U.S. ratify the Rome Statute. (U.N. Human Rights Council, Report of the Working Group on the Universal Periodic Review–United States of America: Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review ¶¶  29, 30  (March 8, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/116/28/PDF/G1111628.pdf?OpenElement.) Nevertheless, the Council adopted the Working Group report in March 2011. (U.N. Human Rights Council, HR Council Media: Human Rights Council concludes sixteenth session (March 25, 2011).)

[4] AMICC, The Obama’s Administration’s Evolving Policy Toward the International Criminal Court  (March 4, 2011), http://www.amicc.org/docs/ObamaPolicy.pdf; Congressional Research Service, International Criminal Court Cases in Africa: Status and Policy Issues (March 7, 2011), http://fpc.state.gov/documents/organization/158489.pdf. See Post: The International Criminal Court and the G. W. Bush Administration (May 12, 2011).

[5] U.S. White House, National Security Strategy at 48 (May 2010), http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf.

[6] AMICC, Report on the Eighth Session of the Assembly of States Parties, The Hague, November 2009 http://www.amicc.org/docs/ASP8.pdf; Stephen J. Rapp, Speech to Assembly of States Parties (Nov. 19, 2009), http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/Statements/ICC-ASP-ASP8-GenDeba-USA-ENG.pdf.

[7] AMICC, Report on the Resumed Eighth Session of the Assembly of States Parties, New York, March 2010 (March 31, 2010), http://www.amicc.org/docs/ASP8r.pdf; U.S. Dep’t of State, Statement by Stephen J. Rapp . . . at the Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/138999.htm; U.S. Dep’t of State, Statement by Harold Honju Koh . . . at the . . . Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/139000.htm.

[8] 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.

[9]  U.S. Mission to the U.N., Statement of the U.S.A. by Ambassador Stephen Rapp  to the Assembly of States Parties, (Dec. 7, 2010), http://www.amicc.org/docs/ASP_Rapp_Statement_12072010.pdf;  AMICC, Report on the Ninth Session of the Assembly of States Parties, December 2010, http://www.amicc.org/docs/ASP9.pdf.

[10] AMICC, Report on the Resumed Eighth Session of the Assembly of States Parties, New York, March 2010 (March 31, 2010), http://www.amicc.org/docs/ASP8r.pdf; U.S. Dep’t of State, Statement by Stephen J. Rapp . . . at the Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/138999.htm; U.S. Dep’t of State, Statement by Harold Honju Koh . . . at the . . . Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/139000.htm.

[11] 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. The U.S. pledge about the LRA was prompted by the enactment of the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009. (Wikisource, Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009, http://en.wikisource.org/wiki/ Lord’s_Resistance_Army_Disarmament_and_Northern_Uganda_Recovery_Act_of_2009; U.S. White House, Statement by the President on the Signing of the Lord’s ResistanceArmy Disarmament and Northern Uganda Recovery Act of 2009 (May 24, 2010), http://www.whitehouse.gov/the-press-office/statement-president-signing-

Lords-resistance-army-disarmament-and-northern-uganda-r.

[12] U.S. Dep’t of State, U.S. Engagement with The International Criminal Court and The Outcome of The Recently Concluded Review Conference (June 15, 2010), http://www.state.gov/s/wci/us_releases/remarks/143178.htm.

[13] Id. The ICC currently is investigating and prosecuting cases from the DRC. See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[14]  Id.

[15]    E.g., Statement by President Obama on the Promulgation of Kenya’s New Constitution (Aug. 27,2010), http://www.whitehouse.gov/the-press-office/2010/08/27/statement-president-obama-promulgation-kenyas-new-constitution(“I am disappointed that Kenya hosted Sudanese President Omar al-Bashir in defiance of International Criminal Court arrest warrants for war crimes, crimes against humanity, and genocide. The Government of Kenya has committed itself to full cooperation with the ICC, and we consider it important that Kenya honor its commitments to the ICC and to international justice, along with all nations that share those responsibilities”); U.N. Security Council, Press Release: Briefing Security Council on Sudan, United Nations, African Union Officials Tout Unified Strategy, Linking Peace in Darfur to Southern Sudan Referendum (June 14, 2010),  (U.S. Ambassador Rice told Security Council that there was a need “to bring to justice all those responsible for crimes in Darfur, calling on Sudan to cooperate with the [ICC] and expressing deep concern at the Court’s Pretrial Chamber judges recent decision to refer the issue of Sudan’s non-cooperation to the Council”).

[16] U.N. Security Council  6491st meeting (Feb. 26, 2011). Other Council members (Bosnia & Herzogiva, Colombia, France, Germany, Libya and the U.K.) specifically commended the reference to the ICC. The other four Council members who did not join in drafting the resolution were Brazil, China, India and the Russian Federation. In the meeting, the Indian representative noted that “only” 114 of the 192 U.N. Members were parties to the Rome Statute and that five of the 15 Council members, including three permanent members (China, Russia and U.S.), were not such parties. He went on to emphasize the importance of Article 6 of the resolution’s exempting from ICC jurisdiction nationals of States like India that were not parties to the Rome Statute and its preamble’s stating that the Statute’s Article 16 allowed the Council to postpone any investigation or prosecution for 12 months. (Id.) The Brazilian representative was serving as President of the Council and, therefore, may not have participated in drafting the resolution, but she noted that Brazil was a “long-standing supporter of the integrity and universality of the Rome Statute” and expressed Brazil’s “strong reservation” about Article 6’s exemption of nationals of non-States Parties. (Id.) This suggests that the inclusion of Article 6 was the price of obtaining “yes” votes for the resolution from India, China and the Russian Federation. See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[17] U.N. Security Council  6491st meeting (Feb. 26, 2011).

[18]  ___Cong. Record S1068-69 (March 1, 2011) (S. Res. 85).

[19] Koh, The Challenges and Future of International Justice (Oct. 27, 2010), http://www.state.gov/s/l/releases/remarks/150497.htm.

[20] ICC, Review Conference of the Rome Statute: Pledges (July 15, 2010), http://www2.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-9-ENG-FRA-SPA.pdf.

[21] Belczyk, US war crimes ambassador says US unlikely to join ICC in ‘forseeable future,’ Jurist (Jan. 28, 2010), http://jurist.law.pitt.edu/paperchase/2010/01/us-war-crimes-ambassador-says-us.php.

[22] Id. With the existence of the ICC, there is no need to create future ad hoc tribunals. This fact also avoids the administrative problems ad hoc tribunals face when they near the end of their lives and professional and other staff leave to pursue other opportunities with greater future prospects. (See Amann, Prosecutorial Parlance (9/12/10), http://intlawgrrls.blogspot.com (comments by officials of ICTY and ICTR).)

[23] Belczyk, US war crimes ambassador says US unlikely to join ICC in ‘forseeable future,’ Jurist (Jan. 28, 2010), http://jurist.law.pitt.edu/paperchase/2010/01/us-war-crimes-ambassador-says-us.php.

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.”

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

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.

International Criminal Justice: Introduction

Since the end of World War II, we the peoples of the world, acting through our nation-state governments, have codified or created numerous international human rights norms. This started with 1945’s Charter of the United Nations and 1948’s Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide. Other multilateral human rights treaties have followed, including the International Convention on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[1]

Given the world’s nation-state sovereignty basis, we the peoples of the world have grappled with the very real problem of how to enforce such norms in order to punish violators, to deter future violations, to provide redress to victims and survivors, and to investigate and promulgate the “truth” about past violations. The response has been the creation of various mechanisms, none of which is perfect: state reporting to U.N. Charter and treaty bodies for review, comment and recommendations; complaints by states and individuals to such bodies for recommended solutions; international investigations of specific countries or problems; civil litigation for money damages against violators in domestic courts and international courts like the Inter-American Court of Human Rights; and truth commissions.[2]

Another response has been seeking to subject violators to criminal sanctions (imprisonment) in national courts under the international law principle of universal jurisdiction whereby a nation’s courts have legitimate criminal jurisdiction over genocide, crimes against humanity and war crimes no matter where in the world such crimes were committed. Criminal sanctions have also been imposed by international criminal tribunals like the Nuremberg and Tokyo War Crimes Tribunals at the end of World War II and more recently by so called ad hoc tribunals created by the U.N. Security Council (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)). Even more recently the International Criminal Court (ICC) has been created.[3] Collectively these mechanisms often are referred to as international criminal justice.

In future posts we will examine a Spanish court’s use of the universal jurisdiction principle to commence criminal investigations. In other posts we will analyze the International Criminal Court and its relations with the United States.


[1]  David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, ch. 1 (4th ed. 2009) [“Weissbrodt”].

[2]  Id. , chs. 4-6, 9, 11, 12, 14, 15, 16.

[3]  Id. at 11, 483-586. The text of the Rome Statute, which will be referenced throughout this article, is available at:  http://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf.