JUSTICE - No. 65

6 No. 65 JUSTICE country of nationality is unwilling or unable to investigate allegations of egregious crimes by their national.... In signing, however, we are not abandoning our concerns about significant flaws in the treaty. In particular, we are concerned that when the court comes into existence, it will not only exercise jurisdiction over personnel of states that have ratified the treaty, but also claim jurisdiction over personnel of states that have not. With signature, however, we will be in a position to influence the evolution of the court. Without signature, we will not….The United States should have the chance to observe and assess the functioning of the Court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor submit the Treaty to the Senate for advice and consent to ratification. 10 This statement highlighted some of the most important concerns, apart from those having to do with due process (which were mainly American concerns), created by the Rome Statute. 11 These concerns remain today. II. ICC Jurisdiction National courts decide if they have jurisdiction. International courts are no different. 12 The Rome Statute’s jurisdictional provisions contain a number of parts. Unlike, for example, the International Court of Justice, which decides cases referred by states “and all matters specially provided for in the Charter of United Nations or in treaties and conventions in force,” 13 the ICC exercises jurisdiction pursuant to complicated criteria flowing from the fact that states agree to its exercise of jurisdiction by becoming parties to the Rome Statute. Once a party, a state loses its right to withdraw consent, unless it withdraws from the Rome Statute. Even withdrawing from the Rome Statute would not insulate a state’s nationals from ICC jurisdiction. The ICC has jurisdiction over nationals of a state party to the Rome Statute who are accused of genocide, crimes against humanity, war crimes, and (under different conditions) the crime of aggression. Second, the ICC has jurisdiction over persons of whatever nationality committing such crimes on the territory, vessel, or aircraft of a state party. A state that is not a party to the Rome Statute may accept ICC jurisdiction by declaration “lodged with the Registrar.” 14 Third, a state party to the Rome Statute (or a non-state party lodging a special declaration) may refer one of the enumerated crimes to the ICC. So may the UN Security Council. Finally, the ICC may decide to exercise jurisdiction with respect to, but not as a result of, an investigation independently initiated by the prosecutor. 15 Therefore, the fact that a state is not a party to the Rome Statute is no guarantee that its nationals will not appear before it as defendants. For example, the United States has been conducting military operations in Afghanistan, a state party to the Rome Statute. Thus, Afghanistan was able to ask the ICC to investigate allegations of war crimes by U.S. personnel in Afghanistan. 16 The Rome Statute preamble emphasizes “that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdiction.” 17 Article 17 provides in its first paragraph that 10. Associated Press,“Clinton’s Words: ‘The Right Action’,” N.Y. T IMES , Jan. 1, 2001, available at https://www.nytimes . com/2001/01/01/world/clinton-s-words-the-right-action. html. It is difficult to reconcile President Clinton’s action with respect to signature and the requirements of international law. See supra note 1. 11. U.S. concerns also involved double jeopardy, the right to jury trial, and the integrated character of all the parts of the ICC. In addition, American representatives in diplomatic meetings highlighted the lack of real accountability of the ICC. 12. For example, the International Court of Justice decides disputes as to whether it has jurisdiction: ICJ Statute, 33 UNTS 993, Art. 36, para. 6 (1945). 13. Supra note 12, ICJ Statute, Art. 36, para. 1. 14. UNGA, Rome Statute of the International Criminal Court (last amended 2010), July 17, 1998, ISBN No. 92-9227-227- 6, available at : https://www.refworld.org/docid/3ae6b3a84. html, Art. 12, para. 3 15. Supra note 14, Rome Statute, Art. 15, para. 1. “Proprio motu,”a term imported from Canon Law. 16. E.g. Saphora Smith and Abigail Williams,“U.S. Personnel to be Investigated for Alleged War Crimes in Afghanistan,”NBC N EWS , Mar. 5, 2020, available at https:// www.nbcnews.com/news/world/icc-approves-probe-u- s-personnel-alleged-war-crimes-afghanistan-n1150276 17. Supra note 14, Rome Statute Preamble, para. 10. 18. Supra note 14, Rome Statute Art. 17, para. 1.