"U.S. Drops Plan to Exempt G.I.'s from U.N. Court"

Frederic L. Kirgis
July 01, 2004
            Under the headline quoted above, the New York Times on June 23 reported that the United States bowed to opposition within the U.N. Security Council and dropped its effort to obtain a Security Council resolution that would immunize its troops from prosecution in the International Criminal Court (ICC). [1]   It is important to understand just what this does and does not mean, particularly in the context of the continued presence of substantial numbers of U.S. military personnel in Iraq after the sovereign Interim Government of Iraq took office on June 28.
            The ICC's subject matter jurisdiction is limited to certain egregious crimes:  genocide, crimes against humanity and war crimes as spelled out in the ICC Statute and supplemental documents regarding the Elements of Crimes. [2]   Thus, not all acts that would be criminal under U.S. law would fall within the ICC's jurisdiction, whether or not a Security Council resolution is adopted.
            The United States is not a party to the ICC Statute.   That, alone, does not necessarily immunize U.S. nationals from the Court's jurisdiction for crimes covered by its Statute.  For example, the Security Council, by adopting a resolution under Chapter VII of the U.N. Charter, could refer to the ICC a situation in which one or more of the relevant crimes appears to have been committed by a U.S. national (or anyone else), [3] but the United States could veto such a resolution and thus preclude the Court from asserting jurisdiction.
            Without any Security Council resolution, if the conduct occurs in a state that is a party to the Statute or that has accepted the jurisdiction of the Court with respect to the crime in question, the Court would have jurisdiction if any state party refers the situation to the Court, or if the Court's prosecutor initiates an investigation after obtaining authorization from the Pre-Trial Chamber of the Court. [4]   Iraq, like the United States, is not currently a party to the Statute, but presumably the sovereign Interim Government of Iraq--or a later Government of Iraq--could decide to become a party, or could accept by special declaration the Court's jurisdiction with respect to one or more of the crimes covered by the Statute retrospectively from July 1, 2002.  If Iraq accepts by special declaration, U.S. military personnel in Iraq as early as March 2003, when Operation Iraqi Freedom began, could conceivably become subject to the Court's jurisdiction if a state party to the Statute refers a situation involving them to the Court or if the prosecutor initiates an investigation.  If Iraq becomes a party to the ICC absent such a special declaration, U.S. personnel in Iraq could be investigated only for crimes committed on Iraqi territory after Iraq joins the Court.
            Recognizing the possibility that situations involving U.S. military personnel anywhere abroad (not just in Iraq) could be referred to the Court even though they are participating in U.N-authorized operations, the United States persuaded the Security Council in 2002 and 2003 to adopt resolutions based on Article 16 of the ICC Statute.  According to that article, "No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the [U.N.] Charter, has requested the Court to that effect; that request may be renewed by the Council under the same conditions."  There is doubt whether Article 16 contemplates Security Council blanket requests made before a particular investigation or prosecution is even contemplated.  Article 16 could be read to apply only to specific situations that could, if investigated or prosecuted, exacerbate an existing threat to the peace or breach of the peace.  Nevertheless, the resolutions adopted in 2002 and 2003 made blanket requests as to acts or omissions by personnel from a state not a party to the ICC Statute when those personnel are participating in a United Nations-authorized operation.  What the United States abandoned on June 23, 2004, was the attempt to renew the resolution for another year.  Had it been adopted, it would have applied to the U.S. military personnel in Iraq even after the transfer of sovereignty, since the U.N. Security Council in Resolution 1546 (on June 8, 2004) authorized the continuation of the multinational force in Iraq as established under its earlier Resolution 1511 (October 16, 2003).
            Even though United States personnel in Iraq are not protected after June 30 by a Security Council resolution under Article 16 of the ICC Statute, other provisions of the Statute could inhibit ICC prosecution.  Article 98(2) of the Statute provides, "The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender."  The United States has entered into agreements to this effect with some 90 other countries, and it could do so with the sovereign Interim Government of Iraq and with any later Government of Iraq.  It could be done by a provision in a Status of Forces Agreement with Iraq or by means of a separate agreement. [5]   In either event, the agreement would not defeat the Court's jurisdiction, but the Court would be instructed by its own Statute not to proceed with a request for the surrender of an accused person without the consent of the person's own government.
            Finally, Article 17 of the ICC Statute requires the Court to determine that a case is inadmissible if: "(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 [another Article, dealing with double jeopardy; or] the case is not of sufficient gravity to justify further action by the Court."  So long as the United States, acting in good faith, investigates conduct that could come within the ICC's subject matter jurisdiction, and prosecutes by court martial or other recognized means when the facts warrant it, the ICC presumably would dismiss any proceeding based on the same conduct by the same person.
About the Author: 
Frederic L. Kirgis is Law Alumni Professor at Washington and Lee University School of Law.  He has written books and articles on international law, and is an honorary editor of the American Journal of International Law.  The author is grateful to Mark Drumbl and David Scheffer for their extremely helpful comments on a draft of this Insight.  Any errors or omissions are the author's own.
[1]   N.Y. Times, June 24, 2004, p. A1.
[2]   The ICC has jurisdiction only if the crime was committed after July 1, 2002.
[3]   ICC Statute art. 13(b).
[4]   ICC Statute arts. 12(2)(a) & 13(a).
[5]   See Mayur Patel, ASIL Insight:  The Legal Status of Coalition Force in Iraq After the June 30 Handover (March 2004).