A Country I Do Not Recognize
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International prosecutors, of course, do not serve any particular community to which they are accountable. They suffer a corresponding lack of very basic legitimacy. The ICC prosecutor’s detachment from the polities over which he exercises authority exacerbates another of the potential abuses of prosecutorial power highlighted by Jackson. In choosing his or her cases, a prosecutor can also choose his or her defendants: “Therein is the most dangerous power of the prosecutor; that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”79 This danger is real enough in the national or domestic context but is at least checked by the systemic limitations on a prosecutor’s authority. In the end, he must live in the community where he operates and where he can expect that another will one day exercise his power. The ICC prosecutor may be, almost certainly will be, entirely detached from the countries and localities where he exercises his authority. For example, the current ICC prosecutor is a citizen of Argentina. His first investigations, however, will involve actions in Africa, specifically in Uganda and the Democratic Republic of the Congo. Both states have actually requested the prosecutor’s intervention, evidently having concluded that they are unable to handle the cases themselves.80 Nevertheless, in investigating and prosecuting persons in these countries, the prosecutor will bring with him his own national and professional perspectives and assumptions, which may or may not have much in common with those of the accused or of their alleged victims.
It must be emphasized, of course, that the potential for abuse here does not depend on the ICC prosecutor’s acting in bad faith; far from it. America’s own experience, in the 1980s and 1990s, with the now justly discredited Independent Counsel Statute establishes beyond doubt that a prosecutorial authority that has deliberately been separated from the normal institutions of national justice, and that exercises jurisdiction over a particular category of people—can lead to abuses—regardless of how dedicated and honorable individual prosecutors may be. This comparison is not far-fetched if we consider that prosecutors of the U.N. tribunals have seen their raison d’être as the prosecution of senior government officials of sovereign states who, in their view, have committed serious violations of international law and gotten away with it.81 There is little reason to expect that the ICC prosecutor will see his mission differently.
A European Project
Because of these very troubling aspects of the ICC as an institution, the United States has not ratified the Rome Statute and is not likely to become a state-party in the foreseeable future. Although the United States was involved in the original negotiations leading up to the ICC’s creation (seeking all along some effective means of limiting the court’s power), today the ICC’s primary backers are the states of the European Union (EU). The EU’s twenty-five members represent the largest voting bloc in the Rome Statute’s Assembly of States Parties, and eight of the ICC’s eighteen judges are from EU countries. Perhaps not surprisingly, the EU has made ICC “universality” a priority.82
To that end, it has embarked on a worldwide political campaign with the “crucial objective with regard to third States [being] to maximize the political will for the ratification and implementation of the Statute to achieve the desired universality.”83 Among other things, the EU has funded pro-ICC groups in the United States, such as the Coalition for the International Criminal Court, seeking to influence American policy. In addition, it has vigorously opposed the United States’ efforts to obtain a series of “Article 98” agreements, which are designed to protect American citizens from the ICC’s reach unless the Rome Statute is ratified in accord with our own constitutional processes. The EU has also made ICC membership a requirement for new EU member states—going so far as to rebuke Romania, when it was an EU aspirant, for entering an Article 98 agreement with the United States.84
Regrettably, many of the ICC’s proponents, including the states of the EU who know better, claim that the United States is somehow seeking “impunity” under international law by its efforts to protect its citizens from the ICC’s unwarranted and illegal claims.85 Such statements, which suggest that the United States is somehow inherently subject to the ICC’s authority and is attempting to repudiate legally binding obligations, reveal either a cynical strategy to mislead the general public or an appalling ignorance of the actual record of universal jurisdiction as an international law doctrine—perhaps both. Far from the United States’ seeking immunity, or impunity, under international law, its position on the ICC’s jurisdictional claims is far better grounded than that of its opponents.
For states, such as the members of the EU, who already have accepted the subordination of their national institutions and interests to a supernational body, an ICC jurisdiction that can be applied on a uniform and efficient basis may well be acceptable. For the United States, however, whose national existence is justified only by a long-ago claim to the right of self-government, “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness,”86 the acceptance of such a supernational authority would be revolutionary.
It would require the American people to accept that they no longer hold the ultimate authority over their own destiny but that they and their elected representatives must answer to a foreign power over which they have no control and precious little influence. It may be that in the future, a time will come when the peoples of the world do share the same values, interests, and concepts of justice and due process, to an extent that America’s claim to self-government will become superfluous. Judging by present circumstances, however, that day has not yet dawned—and it promises to be a long time in coming.
* * *
1. Alexis de Tocqueville, Democracy in America (Knopf ed. 1951).
2. Morris Greenspan, The Modern Law of Land Warfare 420 (1959).
3. M. Cherif Bassiouni, “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice,” 42 Va. J. Int’l L. 81, 83 (2001).
4. See, e.g., Ian Brownlie, Principles of Public International Law 304–305 (4th ed. 1990).
5. The Trial of Joseph Dawson, Edward Forseith, William May, William Bishop, James Lewis and John Sparkes, at the Old-Bailey, for Felony and Piracy, 8 William III, A.D. 1696, 13 How. St. Tr. 452, 456 (1816) (hereinafter Rex v. Dawson).
6. See Richard Zacks, The Pirate Hunter 333 (2002) (citing contemporary diarist Narcissus Luttrell, A Brief Relation of State Affairs . . . from September 1678 to April 1714 [1857]).
7. Alfred P. Rubin, The Law of Piracy 345 (2d ed. 1998).
8. Id. at 390–391.
9. Privateers who acted under a commission issued by a sovereign state were not considered “pirates” in law, however much their actual activities may have resembled piracy in practice.
10. See Brownlie, supra note 4, at 324. As Professor Brownlie also notes, governmental immunity also is based on the principle of “non-intervention in the internal affairs of other states.” Both of these principles were restated in Article 2 of the United Nations Charter. See U.N. Charter, Ch. I, Art. 2, reprinted in Ian Brownlie, Basic Documents in International Law 1, 3 (4th ed. 1995).
11. See Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir. 1985).
12. Richard Overy, Interrogations: The Nazi Elite in Allied Hands, 1945 6–7 (2001).
13. Id. at 7.
14. Id. at 8.
15. Id. at 10.
16. The Nurnberg Trial, 6 F.R.D. 69, 107.
17. When faced with this undeniable fact, the IMT merely suggested that the Hague Convention, which codified many of the offenses most commonly known as “war crimes,” such as the mistreatment of prisoners of war and the misuse of flags of truce, also did not contain specific criminal charges. Id. at 108. Of course, these offenses were based on long-standing state practice, and already were specifically accepted as criminal acts in at least some of the military codes extant at the time. This simply was not the case for “waging agg
ressive war.”
18. Id. at 107.
19. Id. This was a significant observation on the IMT’s part, effectively emphasizing its character as a tribunal established as an exercise of the German sovereignty, then held by the Allies, rather than as a body established under international law.
20. Id. at 110.
21. Id. at 111.
22. Case Concerning the Arrest Warrant of Apr. 11, 2000 (Democratic Republic of the Congo v. Belgium), 41 I.L.M. 536 (I.C.J. Feb. 14, 2002), at International Court of Justice, http://www.icj-cij.org/icjwww/idochat/icobejudgment/icobe_ijudgment_20020214.pdf.
23. Id. at 60–61.
24. 6 F.R.D. at 110.
25. Like Germany, Japan also surrendered unconditionally in 1945. A tribunal, sitting in Tokyo, was established to try war crimes offenses in the Far East. The charter of this court was adopted by General Douglas McArthur in his capacity as the Supreme Commander for the Allied Powers in Japan, under authority acknowledged in the Japanese Instrument of Surrender, dated September 2, 1945. This document indicated the assent of the Japanese emperor and government to the Potsdam Declaration (July 26, 1945), which made clear that war criminals would be punished. The Potsdam Declaration was made by the United States, Great Britain, and the Nationalist Government of China and stated: “[w]e do not intend that the Japanese shall be enslaved as a race or destroyed as a nation, but stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners.”
26. Eichmann Case, 36 I.L.R. 1, 304 (1968) [hereinafter Eichmann Case].
27. Id. at 279.
28. Id. at 280–281.
29. Under the “protective” principle of international criminal jurisdiction, states assert jurisdiction over individuals acting abroad to attack or undercut the state’s security. As noted by Professor Brownlie, “[n]early all states assume jurisdiction over aliens for acts done abroad which affect the security of the state, a concept which takes in a variety of political offenses, but is not necessarily confined to political acts.” Brownlie, supra note 4, at 304. The “passive personality” principle permits a state to punish acts beyond its territory that harm its own nationals. Although there is more state practice supporting these forms of jurisdiction than universality, common law jurisdictions have been dubious of both, preferring the relative certainties of territorial jurisdiction. See generally, id. at 303–304.
30. Eichmann Case, supra note 26, at 52.
31. Id. at 304.
32. Id. at 287. Argentina also did not champion Eichmann because of his “nationality,” although it did strenuously object to his seizure by Israeli agents on its territory. Ultimately, this issue was worked out diplomatically between the two nations. Id. at 5–7.
In another case involving Israel’s Nazis and Nazi Collaborators (Punishment) Law, the United States Court of Appeals for the Sixth Circuit also accepted universal jurisdiction as an established fact—largely based on claims made in the Restatement (Third) of the Foreign Relations Law of the United States, rather than on any effort to examine the actual practice of states. See Demjanjuk v. Petrovsky, 776 F. 2d 571, 579–583 (6th Cir. 1985). This case was, in fact, not a criminal prosecution but involved the extradition, to Israel, of a man accused of having been an especially brutal guard (“Ivan the Terrible”) at the Treblinka death camp. The court concluded that he was accused of offenses within Israel’s jurisdiction based on the universality principle and duly certified his extradition. The Israeli courts ultimately concluded that Demjanjuk had not been proven to be Ivan the Terrible, and acquitted.
33. R. v. Bow Street Magistrates, 1 App. Cas. 147, 2 All Eng. Rep. 97 (1999).
34. See Statement of Secretary of State for the Home Department to the House of Commons (Mar. 2, 2000), at http://www.publications.parliament.uk/pa
/cm199900/cmhansrd/vo000302/debtext/00302-10.htm#00302-10_spmin0.
35. See BBC News, “Pinochet Wins Legal Costs” (Mar. 6, 2000), at http://news.bbc.co.uk/2/hi/uk_news/667982.stm.
36. See Home Office, Extradition Proceedings Against Senator Pinochet (Sept. 12, 2000), at http://www.homeoffice.gov.uk/docs/pinochet.xhtml
37. See Congo v. Belgium, supra note 22, at 9.
38. Id.
39. Id. at 21.
40. Glenn Frankel, “Belgian War Crimes Law Undone by Its Reach,” Wash. Post, A1 (Sept. 30, 2002).
41. Id.
42. 28 U.S.C. sec. 1350.
43. 28 U.S.C. secs. 1602–1611.
44. 28 U.S.C. sec. 1350.
45. 630 F. 2d 876 (2d Cir. 1980).
46. Id. at 884.
47. Id. at 885.
48. 726 F. 2d 774 (D.C. Cir. 1984).
49. Id. at 823. Congress, at least, took Judge Bork’s criticisms seriously and later passed the Torture Victims Protection Act, Pub. L. No. 102-256, 106 Stat. 73, in 1992. This statute does create a cause of action for official torture and its detailed provisions are an excellent example of the elements that, in other areas, the courts would be required to improvise. In addition, and significantly, Congress imposed a requirement that the plaintiff have exhausted “adequate and available remedies in the place in which the conduct giving rise to the claim occurred.”
50. See, e.g., Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (jurisdiction found under ATCA over claim against leader of Bosnian Serb faction); Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997) (suit against oil company allegedly involved in state-sponsored human rights violations in Burma).
51. 488 U.S. 428 (1980).
52. 28 U.S.C. secs. 1602–1611.
53. 488 U.S. at 442.
54. Id. at 781.
55. Id. at 782.
56. 124 S. Ct. 2739.
57. 504 U.S. 655 (1992).
58. 28 U.S.C. sec. 1346(b)(1), secs. 2671–2680.
59. 124 S. Ct. at 2754.
60. Id. at 2761.
61. Id. at 2761–2762.
62. Id. at 2762.
63. Id. at 2769.
64. Id. at 2772 (Scalia, J., concurring in part and in the judgment).
65. Id. at 2774.
66. See, e.g., Day v. Trans World Airlines, Inc., 528 F.2d 31, 33 (2d Cir. 1975), cert. denied, 429 U.S. 890 (1976) (interpreting provisions of the “Warsaw Convention” dealing with air transport). And, as Justice Scalia pointed out in his Sosa opinion, it is the prerogative of Congress and the president to create and define any private causes of action that may arise from treaties to which the United States is a party. Slip op., supra note 64, at 11–12.
67. 10 Annals of Congress 596, 613–614 (1800).
68. See Declarations and Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, at U.N. High Commissioner for Human Rights, http://www.unhchr.ch/html/menu3/b/treaty1gen.htm.
69. Id.
70. Id.
71. Under the United Nations Charter, all member states agree to carry out Security Council resolutions adopted under Chapter VII, “to maintain or restore international peace and security.” The Yugoslav and Rwandan tribunals were established under such resolutions in 1993 and 1994, respectively.
72. Remarks of Marc Grossman, Under Secretary of State for Political Affairs, to the Center for Strategic and International Studies, Washington, D.C., May 6, 2002.
73. See Lee A. Casey and David B. Rivkin Jr., “The Limits of Legitimacy: The Rome Statute’s Unlawful Application to Non-State Parties,” 44 Va. J. Int’l L. 63 (2003).
74. In this regard, Article 17 provides that the ICC must consider a case “inadmissible” in the court unless the state with jurisdiction over the matter is “unwilling or unable genuinely to carry out the investigation or prosecution.” Rome Statute of the International Criminal Court, art. 17 (July 17, 1998), at United Nations, http://www.un.org/law/icc/statute/romefra.htm. Cases can also be referred to the court by a state, or by the U.N. Security Council.
75. Rome Statute of the International Criminal Court, art. 46.
76. Rules of Procedure and
Evidence, Rule 24.
77. Robert H. Jackson, The Federal Prosecutor, “Speech to Second Annual Conference of United States Attorneys,” Apr. 1, 1940, at http://www.roberthjackson.org/theman2-7-6-1.asp.
78. Id.
79. Id.
80. See “President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC” (Jan. 29, 2004), at International Criminal Court, http://www.icc-cpi.int/newspoint/articles/29.xhtml; “Prosecutor receives referral of the situation in the Democratic Republic of Congo” (Apr. 19, 2004), at International Criminal Court, http://www.icc-cip.int/newspoint/pressreleases/19.xhtml.
81. Canadian Justice Louise Arbour, during her tenure as prosecutor for both the ad hoc U.N. international criminal tribunals, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda, viewed her role as, at least in part, teaching the relevant populations that they had chosen the wrong leaders through democratic processes: “It’s important to permit these people to recognize that they made a very serious error in judgment. In electing these people, they have to let go of them as national heroic figures.” Frontline, “The World’s Most Wanted Man,” interview with Louise Arbour, at http://www.pbs.org/wgbh/pages/frontline/shows/karadzic/interviews/arbour.xhtml.
82. See, e.g., “EU Statement on the Inauguration of the International Criminal Court” (Mar. 13, 2003), at European Union, http://europa.eu.int/comm/external_relations/osce/stment/icc120303.htm. Ironically, of course, the very fact that ICC state parties established the court’s jurisdiction through a treaty is itself an acknowledgment that no such authority exists separate and apart from the consent of individual states. It cannot be universal in character until it has been accepted by all.
83. “EU Action Plan to Follow-up on the Common Position on the International Criminal Court” (May 15, 2002), at European Union, http://europa.eu.int/comm/external_relations/human_rights/doc/icc05_02.htm.