Friday, March 1, 2019

20 Years of the Rome Statute

Logo of International Criminal Court - scales with olive wreath
Source: International Criminal Court

Last year marked the 20th anniversary of the Rome Statute which created the International Criminal Court (the “ICC”), a standing judicial body which would try the worst crimes under international law – namely, war crimes, genocide, crimes against humanity, and crimes of aggression.
The ICC is intended to be a “court of last resort,” utilized when national courts are unwilling or unable to pursue cases. Under the Rome Statute, the ICC has authority to investigate situations (i) located in state parties (countries that have ratified the Rome Statues), (ii) referred by the United States Security Council, or (iii) referred by individual countries themselves. Many are concerned that the ICC may take a broad view of its jurisdiction, which risks limiting the ability of countries to take military action in defense of themselves or their allies, whether or not they are a state party to the Rome Statute.

The United States signed the Rome Statute under the Clinton Administration but never ratified it. The Bush Administration subsequently “unsigned” the treaty when then-Under Secretary of State for Arms Control and International Security John Bolton sent a note to the U.N. Secretary General stating that the United States has no legal obligations under the treaty and has no intentions of ratifying. Shortly thereafter, the American Service Members Protection Act 22 U.S.C. 7421-7433 (also known as "The Hague Invasion Act") was passed, which authorizes the President to use all means necessary to release U.S. personnel who may be detained by the ICC.

Now as National Security Adviser, Bolton has continued his criticism of the ICC. The situation may come to a head as the ICC contemplates opening a formal investigation into the war in Afghanistan, including the actions of U.S. military personnel and allies.