Monday, April 04, 2005

State Department Briefing on the ICC and Darfur; Some Thoughts on ICC Jurisdiction

Following is an excerpt from the State Department press briefing from April 1st in which Richard Boucher discussed Security Council Resolution 1593 (transcribed, along with state comments, here), referring the Darfur situation to the ICC (see also the press release from the ICC itself, with links to other resources, here).

Some of the questions focus on whether the Security Council referral is a novel basis for jurisdiction (see, especially the part I highlighted). While the Q&A on this was a bit muddled, I think the short answer is that such a referral is not a novel legal theory—it was contemplated in Article 13(b) of the Rome Statute. (I consider this further below the press briefing excerpt) The Security Council has always had significant powers under Chapter VII of the UN Charter, which covers threats to the peace. What we see here is how the Security Council may work together with the ICC to address such matters.

QUESTION: Can you explain why it is that the U.S. Government believes that citizens of Sudan, which signed the Rome Statute, but has not ratified it and therefore is not a state party to it, should be subject to its jurisdiction, when the crux of the American argument is that U.S. citizens should not be subject to its jurisdiction because the United States is not a state party to it?

MR. BOUCHER: You might understand that I think this is the third time you’ve asked this question today, and so my answer might be similar to the answer that previous officials, including the Secretary of State, have given to you to this question.

The United States believes very firmly in accountability for the crimes that have been committed in Sudan. We thought it was very important that the UN Security Council take action. As you know, we have explored, along with some of the Africans who have supported the idea, of an African-led tribunal that can do that, but all of us keeping to the fundamental point that it is vital to ensure accountability.

This is a Security Council action. This is an action where the Security Council has determined the crimes that have been committed need to be prosecuted, and the Security Council has determined what the appropriate forum is for those prosecutions. To that extent, it is similar to some of the other decisions that the Security Council has made; it's just in a different court.

Second of all, I think the circumstances in Sudan, Darfur in particular, have been extraordinary and need to be addressed. Other states that are not party to this, including the United States, have appropriate judicial and legal vehicles to address crimes that might have occurred. The United States itself is in the process of prosecuting crimes or allegations against Americans who might have committed abuses in Iraq. And we’re demonstrating, I think, to the world now that we do follow up on our own on those things.

No such mechanism exists in Sudan. We explored whether a mechanism like that could be established in Africa. There wasn’t sufficient support for that. And there is a mechanism that many members supported in terms of doing that before the International Criminal Court. And so we abstained because we think it is very important that these crimes are prosecuted.

QUESTION: Did the Security Council stay within the rules when it did what it did last night? In other words, there’s a treaty here. I don’t think that the Security Council has the power to go beyond what the treaty says. Was there an overreach by the Council in this regard?

MR. BOUCHER: I think first of all, that would have to be a question the treaty would have to – treaty members, parties, would have to try to answer. If there is any legal question, I have not seen one raised. Certainly, the nine members of the Council, I think it is, or parties to the treaty, didn’t think so.

We have -- I mean, it was important to us in this resolution to achieve two things, and that we did achieve: one was accountability for the crimes, and two was protection for Americans who are not party to the treaty.

The fact that this was done, and I think you’ll see this in the explanation of the vote we gave in the UN and other statements that we have made, the fact that this was done by the Security Council is important to us, but nonetheless, we still have our fundamental objections to the Rome Statute and the International Criminal Court, and therefore, we wanted to build in certain protections. Those are built in for nationals of states not party. The resolution also recognizes that absent the consent of the state involved or a Security Council referral that persons of states not party to the Rome Statute should not be subject to ICC jurisdiction.

The resolution also takes note of Article 98 agreements within the scope of the Rome Treaty. As you know, we signed a number of those, I think over 100 -- or 99, sorry, Article 98 agreements the United States has already entered into.

QUESTION: Do you have one with Sudan?

MR. BOUCHER: No. The other thing that is recognized is that none of the expenses incurred in the referral on the prosecution would be borne by the UN members, but rather they'll be borne by parties to the Rome Statute. So in that way it protects, I think, our position on the Rome Statute, the International Criminal Court, but fundamentally what it achieves is something very, very important to all of us, and that's it achieves accountability for the crimes of Darfur.

QUESTION: But let me follow up. You note that the resolution states that states that are not party must give their consent; therefore, if Sudan does not give its consent, and I believe it has not yet, no Sudanese citizen could be tried and therefore there would be no accountability for Sudanese citizens at all. Why --

MR. BOUCHER: Well, I --

QUESTION: No -- may I finish my question?

MR. BOUCHER: It's based on a false premise. I can stop you there.


MR. BOUCHER: I just said absent consent or referral by the Security Council --

QUESTION: Excuse me --

MR. BOUCHER: In this case, we have referral by the Security Council.

QUESTION: Excuse me, but to go to the rest of the question -- and forgive me for that error -- why should not Sudan continue to argue what is essentially your position, that because they're not a state party their citizens shouldn't be subject?

MR. BOUCHER: Because, first of all, Sudan doesn't have a mechanism to show that there can and will be accountability for these crimes; and second of all, because the international community has looked at this situation and decided that this is the appropriate way to ensure prosecution of some horrible abuses and crimes, crimes that we have called genocide.

QUESTION: But, Richard, doesn't this set precedent for the future in that, you know, any country that is not a party to the ICC at some point may be referred by the Security Council to the ICC? And there are certainly plenty of countries in the world that don't have the internal mechanisms to deal with such an issue, like Zimbabwe, for example, or there are several others that I could name.

MR. BOUCHER: As I said, the resolution itself recognizes that absent consent from the state or referral from the Security Council that parties, persons from states that are not a party, won't be subject to this. But under those circumstances, they could be. So it's -- yes, it establishes a practice. As I think many of you know, one of our fundamental problems the United States has had, going back to the previous administration, I would add, with the Rome Statute has been the lack of Security Council oversight to begin with.

QUESTION: And just one more. Do you have a reason to believe that Americans could be accused of involvement in crimes in Darfur, which is why you wanted to have this protection clause?

MR. BOUCHER: No, absolutely not. We have -- I think if you go back to Security Council resolutions, if I remember correctly, Liberia might have been the first, but there have been several Security Council resolutions that one way or the other have dealt with this kind of protection, it's been fundamental to the United States to achieve that when we deploy people overseas. But that in no way implies that we think Americans are committing crimes. And if they did, of course, they would be subject to American prosecution.

Following are two of the key articles (emphases added) on jurisdictional issues from the Rome Statute. Note that the requirement of being a Party to the ICC statute, discussed in Article 12, does not apply to the Security Council referral mechanism in subsection (b) of Article 13. Reading these articles together, one may see that the Security Council may, at its discretion, use the ICC as its mechanism of investigation and adjudication in cases regardless as to whether the states involved are parties to the Rome Statute. While the Bush Administartion seems to prefer closer oversight of the ICC by the Security Council and, as such, this referral can be seen as consistent with US comments regarding how the ICC could best do its job (with prior approval of the Security Council rather than independently), this can also be seen as a cause for potential concern: the reinforcement of the idea that nationals who are neither from State Parties nor operating within a State Party can nonetheless (with Security Council approval) be tried by the ICC. (Though of course there is little real concern that nationals of the U.S., U.K., Russia, China, or France would ever be tried as their country could veto any such referral.)

Article 12
Preconditions to the exercise of jurisdiction

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.

2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.

3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

Article 13
Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.


Anonymous Anonymous said...

This is a very interesting post, Chris. I wanted to raise a further point. The resolution raises an interesting question that was asked, but I think not answered at this week-end's ASIL panel on international criminal tribunals: can the Security Council assert any sort of control over the ICC's handling of a case that is the subject of a referral?

In operative paragraph 8, the Council "invites the Prosecutor to address the Council within three months of the date of adoption of this resolution and every six months thereafter on actions taken
pursuant to this resolution." And in debate over the resolution, the US representative stated:
"Consistent with our long-standing views about the appropriate role of the Security Council, we expect that, by having the Security Council refer the situation in Darfur to the ICC, firm political oversight of the process will be exercised. The Council’s action today plays an important role in that regard. We expect that the Council will continue to exercise such oversight as investigations and prosecutions pursuant to the referral proceed."

What kind of "oversight" could the Council exercise? I suppose the most obvious situation would be if the Prosecutor sought evidence, witnesses or other sorts of cooperation from non-state parties, which are specifically exempted from cooperation in the resolution. The US might seek a resolution quashing a request for documents or testimony by a witness. The US might also seek Council intervention if the Prosecutor were to begin investigating acts by officials of other states. There are reports, for example, that the rebel movements in the Darfur region have been supported by other states in the Horn of Africa. Finally, the US might object to particular legal theories used by the Prosecutor, such as an expansive theory of command responsibility.

Could the Security Council shape or wholly curtail an ICC investigation? That requires a longer analysis, but Charter article 103 would suggest that it could. On the other hand, when the United States proposed Resolution 1422, by which the Council requested the ICC not to prosecute UN peacekeepers whose states had not ratified the Rome Statute, many states argued that this was effectively an amendment to Article 16 of the Statute and that the Council lacked authority to alter pre-existing treaty obligations in this manner.

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