Protecting the protectors: can the United States successfully exempt U.S. persons from the International Criminal Court with U.S. Article 98 agreements?

• Author: Dietz, Jeffrey S.

1. THE UNITED STATES AND INTERNATIONAL TRIBUNALS A. International Crimes and the United States B. International Crimes by U.S. Persons C. U.S. Article 98 Agreements II. PROCEDURE OF THE INTERNATIONAL CRIMINAL COURT III. OBLIGATIONS UNDER THE ROME STATUTE A. Good Faith and Object and Purpose B. The Rome Statute's Object and Purpose C. Preliminary Arguments 1. Guarantee Clauses 2. Bilateral U.S. Article 98 Agreements IV. ANALYSIS OF U.S. ARTICLE 98 AGREEMENTS A. U.S. Jurisdiction 1. Members of the U.S. Armed Forces and Civilians Who Accompany Them 2. U.S. Nationals 3. U.S. Officials or Employees B. The "Sending State" Controversy C. Ways to Improve U.S. Article 98 Agreements 1. U.S. Jurisdiction L 2. Extradition Agreements and Intent to Prosecute 3. Bilateral U.S. Article 98 agreements V. CONCLUSION Thank you, American Servicemember, for fighting on the final frontiers of freedom to dutifully protect our nation. We appreciate your work, Madam Diplomat, for traveling to far off lands to honorably represent the United States. Your work to keep the fighting force running, Mr. Contractor, is greatly appreciated. However, after you complete your duties abroad, be careful of where you travel. Unless the United States prevails in exempting U.S. persons from the jurisdiction of the International Criminal Court (ICC), (1) visiting the wrong foreign country could land you before a foreign court, stripped of your customary constitutional guarantees. (2)

   In the face of ratification of the ICC, (3) the United States has begun to pursue exemption for U.S. officials, employees, and military personnel through bilateral agreements with other nations. (4) These bilateral agreements, also known as U.S. Article 98 agreements, bind the other nation to not transfer accused U.S. persons (6) to the ICC. (7) While the United States fully intends to investigate and prosecute U.S. persons accused of genocide, crimes against humanity, and war crimes, these agreements are meant to allow the United States to pursue justice, rather than to hand the duty over to the ICC. (8)

   Critics of these U.S. Article 98 agreements, such as James Crawford (9) and the European Union (EU), argue that the agreements undermine the purpose of the ICC and are contrary to the International Law of Treaties. (10) The United States argues that the ICC was meant to have concurrent jurisdiction with other nations and that the Rome Statute contemplates the agreements. (11) The lack of U.S. constitutional safeguards for the accused before the ICC, compels the United States to block ICC jurisdiction. (12)

   The U.S. Article 98 agreements effectively immunize only a limitedly defined group of U.S. persons from ICC jurisdiction. The shortfalls of this immunization lie in U.S. criminal jurisdiction and the ambiguous definition of "sending State" (13) in Article 98 of the Rome Statute. In the end, the ICC or the International Court of Justice (ICJ) will decide the validity of these agreements. (14) The United States will likely continue to pursue Article 98 agreements to exempt U.S. persons from the jurisdiction of the ICC, but the United States should also take measures to improve the effectiveness of these bilateral treaties.

   This comment evaluates the legality of the U.S. Article 98 agreements with respect to the Rome Statute. Part I examines the history of U.S. Article 98 agreements and the United States's attempts to avoid ICC jurisdiction. Part II reviews the procedure of the ICC. Part III evaluates the obligations different states incur under the Rome Statute. Finally, Part IV analyzes the legality of the U.S. Article 98 agreements and suggests solutions to improve their success.

1. THE UNITED STATES AND INTERNATIONAL TRIBUNALS

   The United States has established a tradition of involvement with international justice. The United States has supported both the use of foreign national courts to try their citizens for international acts, (15) and has supported international tribunals to try the accused before multinational courts of the world. (16)

   When it comes to U.S. persons, the "United States has consistently demonstrated a willingness to discipline its own" (17) and continues to endeavor to exempt U.S. persons from the jurisdiction of foreign courts. (18) Fears that political rivals of the United States might use international courts to harass U.S. leaders, (19) combined with a commitment to preserving for U.S. persons the fair trial guarantees of the Bill of Rights, (20) have stoked the flames to keep the United States out of the ICC. To achieve that end, the United States has resorted to signing U.S. Article 98 agreements, Status of Forces Agreements (SOFAs), (21) and other extradition agreements. (22)

   1. International Crimes and the United States

      The United States has long been interested in codifying wartime conduct and punishing violators, but it has been inconsistent in asserting who should judge the accused. In 1863 during the Civil War, the United States created a model manual for conduct during wartime, prompting other nations to follow suit. (23) While the 1899 Hague Convention (24) established the first treaty of the modern era to address war crimes, the concept of crimes during war was not common until World War I. (25)

      In 1907, the United States, along with other nations, dealt with the laws and customs of war including limitations imposed on belligerents. (26) Later, at the close of World War I, France, Great Britain, and Belgium called for international war crimes tribunals to punish the Central Powers (27) for cruel behavior during the war. (28) However, because the United States advocated that each nation's own military tribunals punish its own war criminals, these international tribunals did not occur. (29)

      Despite the Allies's attempts (30) to use international tribunals to punish violations of the laws of war, the tribunals could not proceed without U.S. support, and the Allies reluctantly allowed Germany to try its own alleged war criminals in Germany's Supreme Court. (31)

      The first international military tribunal was held after World War II at Nuremberg, conducted by the victorious Allies, and endorsed by the United States. (32) Later in the Pacific, U.S. General Douglas MacArthur, as the Supreme Commander of the Allied Powers, established the International Military Tribunal for the Far East (IMTFE) in 1946. (33)

      Notwithstanding U.S. support of these international tribunals following horrific acts of genocide committed by the Axis Powers in World War II, the United States did not fully support the Genocide Convention. (34) While President Harry Truman heartily endorsed the Convention in 1949, it took forty years for the U.S. Congress to ratify. (35) One of the Congressional complaints was that the international definition of genocide by the treaty would "replace domestic laws with international law" and violate the U.S. Constitution. (36) The United States's weak support of the Genocide Convention has left the United States "hoping that some other nation would file a case [against genocidal regimes] at the ICJ." (37)

      Despite the failure to fully support the Genocide Convention, the United States did support the United Nations (UN) in the 1993 creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY) as a response to genocidal tragedies in the former Yugoslavia. (38) Later, in response to the genocide committed in Rwanda (39) and requests from the new Rwandan government, the UN established the International Criminal Tribunal, Rwanda (ICTR) in 1994. (40) Recently, however, the Bush Administration has been leading the United States to support national courts, to the exclusion of international tribunals, in order to bring Iraqi oppressors to justice. (41)

   2. International Crimes by U.S. Persons

      The United States has firmly committed to holding its own criminals individually responsible for their international crimes. (42) For war crimes committed in Vietnam, the United States prosecuted and convicted U.S. Army Lieutenant William L. Calley, Jr. (43) For the "sadistic, blatant, and wanton criminal abuses" (44) inflicted on Iraqi detainees at Abu Ghraib prison in Iraq from October to December 2003, the United States has charged seven U.S. Army soldiers, has suspended the Brigadier General in charge of the prison, and has investigated culpability from the lowest ranking soldier all the way up to the U.S. Secretary of Defense. (45)

      The United States traditionally expects immunity for visiting forces, (46) and has gone so far as to seek exemption from foreign bodies of justice for U.S. persons deployed in foreign countries, opting to try them in U.S. courts instead. (47) In order to preserve the U.S. system of criminal justice for U.S. persons, the United States negotiated with the other North Atlantic Treaty Organization (NATO) countries following World War II to establish SOFAs. (48) In subsequent SOFAs modeled after the NATO SOFA, (49) the United States has not sought to exempt all Violations. (50) In most agreements defining the status of U.S. persons in a foreign nation, the United States usually maintains exclusive jurisdiction over military crimes or offenses related to the performance of official duty. (51)

      Initially, the SOFAs also extended to the "civilian component" of the visiting armed forces. (52) After the U.S. Supreme Court found trying these civilians in a military court-martial unconstitutional, the lack of U.S. federal court jurisdiction meant that the civilians would be tried in the host nation courts. (53) However, absent these SOFAs or other Article 98 agreements, a "sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction. (54)

      The United States continues working to exempt U.S. persons from the jurisdiction of foreign courts because of fears that enemies of the United States may...