the history and potential constitutionality of the International Criminal Court

An article titled "The Constitutionality of the Rome Statue of the International Criminal Court," [pdf]* by David Scheffer and Ashley Cox, found in the Spring 2008 Journal of Criminal Law and Criminology, is absolutely essential reading for any LDer considering the merits of the January / February resolution. In a sweeping analysis of the ICC's history, judicature and relation to the U.S Constitution, the authors attempt to show how, with a few minor tweaks to U.S. law and policy, ratifying the Rome Statute would be constitutionally permissible.

The ICC follows a tradition of international tribunals established to punish the perpetrators of war crimes, such as courts for the former Yugoslavia and Rwanda. But why the need for a permanent establishment?

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 timeconsuming and costly creation of specialized international or hybrid (part national, part international) courts for individual atrocity situations as they erupt anywhere in the world. Although the United Nations Security Council had created and empowered the ICTY and ICTR under the U.N. Charter's Chapter VII enforcement authority, the only way a permanent court with broad jurisdiction would be established was through the treaty process whereby sovereign nations consented to the investigation and prosecution, under certain circumstances, of their own nationals before a global court of criminal law. Because criminal prosecutions are traditionally a national prerogative, this would be no easy task to accomplish on an international platform.

One of the major Neg arguments is that by "submitting" to the jurisdiction of the ICC (or an ICC-like entity) the United States would give up its sovereignty. How the ICC respects sovereignty has to be a critical part of any affirmative case.

Consider, first of all, that the US has been involved in Court procedures, even though the U.S. is not a signatory State.

[T]he United States actively participated in further negotiations on the Rules of Procedure and Evidence and the Elements of Crime for the ICC. Both of these documents, upon which the U.S. delegation had insisted in Rome and to which the delegation had made major contributions, such as preparing the first draft of the Elements of Crimes and leading negotiations thereafter, were adopted by consensus, joined by the United States, in June 2000.

Furthermore, it's important to note that the ICC, at least as it stands, is not composed of hostile nations with an anti-American agenda.

As of October 1, 2008, there will be 108 State Parties to the Rome Statute. These include almost every major ally of the United States, many nations that are considered friends, and none that are characterized as evil, Communist, or adversarial. They consist of all but one of the European Union nations, Canada, Mexico, most of Latin America and the Caribbean, a majority of African countries, and sixteen Asia-Pacific nations, including Australia, Japan, and the Republic of Korea.

It's also important to understand the limitations on the jurisdiction of the ICC.

The ICC is not a court of universal jurisdiction that can prosecute anyone who has committed an atrocity crime anywhere in the world. There are usually certain preconditions to personal jurisdiction: the individual charged with atrocity crimes must be a national of a State Party to the ICC, or the territory on which the crime was committed must belong to a State Party to the ICC. If the Security Council refers the situation to the ICC, however, these preconditions do not apply: a national of a nonparty State may be prosecuted, and the crimes need not be committed on the territory of a State Party. Finally, a non-party State may file a declaration with the ICC inviting it to investigate a situation in which the crimes occurred in its territory or one or more of its nationals are suspected of having perpetrated such crimes.

Thus, the ICC focuses on prosecuting crimes in nations where the extant judicial system is incapable. Since its inception,

[t]he ICC has accepted four atrocity crimes situations for investigation and prosecution and issued indictments in most of them: the Democratic Republic of the Congo, regarding which arrests have been made and pre-trial proceedings are underway, Uganda, the Central African Republic, and Darfur.

How might the United States be affected were it to join?

Provided U.S. judicial authorities act with foresight and professional objectivity, and provided federal criminal law is amended to fully cover atrocity crimes, there should be no reason for the ICC to determine that the United States is, following the language of the Rome Statute, either "unwilling or unable genuinely" to carry out an investigation or prosecution of a suspect, thus entitling the ICC to find the case admissible and to seek custody of the suspect.This feature of the Rome Statute reflects the overriding presumption in the negotiations that the ICC would focus its attention on situations where national legal systems are devastated, perhaps practically nonexistent, in the wake of conflict and atrocities or where cynical governments, perhaps implicated in the horrors, show no ability to bring their own perpetrators of atrocity crimes to justice. As it happens, three of the four situations currently before the ICC are selfreferrals, made by governments that decided to refer internal atrocity situations to the ICC because of inadequate domestic legal capabilities, or for political reasons, to confront rebel movements head-on with international justice.

This cuts both ways. The affirmative can argue that there is minimal risk that the ICC will attempt to prosecute a U.S. national, since the U.S. judicial system will largely take care of things. (But see below.) Meanwhile, the Negative might use this to argue that, therefore, it's largely unnecessary for the U.S. to join.

The Affirmative response should be threefold: first, to argue that the U.S. would add further legitimacy to the Court; second, to describe the current treaties the U.S. has signed that place international considerations at the forefront; and third, to note that the ICC covers crimes outside the framework of U.S. law.

The ICC was neither conceived nor established for the purpose of "emasculating constitutional courts." The subject matter jurisdiction embodied in the Rome Statute consists exclusively of international crimes, only some of which are codified in U.S. law. These are crimes of concern to the entire international community, striking at the heart of humankind. Much of the subject matter jurisdiction in the Rome Statute, particularly crimes against humanity and some war crimes, does not exist in federal criminal law and even in U.S. military law, so there would be no transfer of jurisdiction of existing Article III power with respect to those crimes if the United States were to ratify the Rome Statute.

The authors cite the crime against humanity of "persecution," a designation for "ethnic cleansing." No such domestic classification exists; furthermore, "U.S. law may not even provide jurisdiction over the U.S. national who commits such an atrocity crime on foreign territory." Hence, the Aff may argue, the need to join the ICC, or something like it.

The authors also note, in passing, a feature of the Rome Statute that might not square with certain retributive views of justice.

The sentencing provisions of the Rome Statute do not permit the death penalty, which might have attracted troublesome scrutiny under constitutional law if it had been included as a sentencing option.

Last, if an Affirmative is concerned about Constitutionality, which, I'd argue, is another potentially powerful Negative line of attack, we have another critical question: what part of the Constitution might allow the United States to let an international court to try American citizens for crimes against humanity?

The Constitution is a document of enumerated powers, and there is a very powerful one that often goes unnoticed. Article I, Section 8, Clause 10 of the Constitution grants Congress the power to "define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." Particularly with respect to atrocity crimes, it would be an entirely logical and warranted exercise of such constitutional power to create, in concert with other governments, an international criminal court that defines, prosecutes, and punishes such incontrovertible "Offences against the Law of Nations," namely, atrocity crimes, and to legislate that such an international court's judgments and sentences be given effect in the United States to the same extent as they are recognized by and enforced in other State Parties to the Rome Statute.

There's much more to digest in the article than I've been able to mention in this brief review. Its summary of the ICC's history is one of the most accessible I've read, and its treatment of the Constitutional matter is nuanced and provocative. Ignore it at your own peril.

Questions or thoughts? Fire away in the comments.

*Update: Krista Stone-Manista writes,

Hi Mr. Anderson,

I'm a former LD debater, now a third-year law student, and the Editor-in-Chief of the Journal of Criminal Law and Criminology. I wanted to thank you for reviewing the Scheffer/Cox article and let you know that it's now available in PDF on our website.

Excellent. Thanks!