Academic journal article Journal of Criminal Law and Criminology

The Constitutionality of the Rome Statute of the International Criminal Court

Academic journal article Journal of Criminal Law and Criminology

The Constitutionality of the Rome Statute of the International Criminal Court

Article excerpt

A decade has elapsed since the final text of the Rome Statute of the International Criminal Court (ICC) (1) was approved at the conclusion of a diplomatic conference in Rome, Italy. (2) Legal scholars have written a great deal since then about whether or not the Rome Statute would meet U.S. constitutional requirements if the United States were to become a State Party to it. (3) Despite the American opposition to the ICC during the Bush Administration (2001-2009), (4) there remains the possibility that in the future a new Presidential administration and the Senate, with support from the House of Representatives, will find reason to seriously consider ratification of the Rome Statute. (5) If that were to occur, we believe the constitutional issues that undoubtedly would be raised require careful examination. In this Article we hope to demonstrate that concerns about compliance with the U.S. Constitution were the United States to ratify the Rome Statute are largely without merit. (6) Where there may be some residual difficulties on the constitutional front, we offer suggestions for how to accommodate particular concerns through U.S. legislation and with U.S. declarations, understandings, and provisos to the Rome Statute as part of the ratification process. (7)

This Article addresses nine areas of inquiry into the Rome Statute and U.S. constitutional law. Part I provides relevant background on the Rome Statute and American policy on the ICC as a predicate to the more focused discussion on constitutional issues. Part II explains the significance of the Rome Statute's complementarity doctrine, which offers the United States the first opportunity to investigate any U.S. citizen who may become an ICC target, and by so doing require the ICC to refrain from exercising jurisdiction. Under such circumstances, a U.S. citizen would be prosecuted pursuant to U.S. law and all of the protections afforded by the Constitution. Part III examines whether an Article III court is the only constitutionally valid forum within which to prosecute an American citizen for a criminal act falling within the subject matter jurisdiction of the ICC. Part IV addresses whether the United States can use the Article II treaty power to enter into treaties that provide for extradition of American citizens to foreign courts. Part V explores whether the "define and punish" power of Congress allows the United States to participate in the ICC. Part VI focuses on whether the ICC's denial of any constitutionally-protected due process rights, particularly trial by jury, introduces an insurmountable constitutional obstacle to U.S. participation in the ICC. Part VII discusses whether the due process rights afforded by the ICC could withstand Supreme Court review with respect to any American citizen prosecuted by the ICC. Part VIII examines whether official immunities would be a bar to U.S. compliance with Article 27 of the Rome Statute. Finally, Part IX recommends concrete steps that could be taken now and in the future to ease remaining concerns about the constitutionality of the Rome Statute. The Conclusion summarizes some of the major points made in this Article.

I. FUNDAMENTAL PRINCIPLES AND AMERICAN POLICY

The International Criminal Court is the first permanent judicial body that seeks universal participation by nations in its objective to bring leading perpetrators of genocide, crimes against humanity, serious war crimes, and aggression, together known as "atrocity crimes," (8) to justice. During the last fifteen years, international courts have advanced international criminal justice in regional contexts and within the narrow jurisdictional mandates of the International Criminal Tribunals for the former Yugoslavia (ICTY) (9) and Rwanda (ICTR), (10) the Special Court for Sierra Leone, (11) the Extraordinary Chambers in the Courts of Cambodia, (12) and war crimes courts in Bosnia Herzegovina, (13) Kosovo, (14) and Timor-Leste. (15) While those tribunals were evolving, the international community embraced the idea of a permanent criminal court that in most respects would obviate the need for the time-consuming and costly creation of specialized international or hybrid (part national, part international) courts for individual atrocity situations as they erupt anywhere in the world. …

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