The International Criminal Court Treaty: Description, Policy Issues, and Congressional Concerns

The International Criminal Court Treaty: Description, Policy Issues, and Congressional Concerns

Order Code RL30020
CRS Report for Congress
Received through the CRS Web
The International Criminal Court Treaty:
Description, Policy Issues, and
Congressional Concerns
January 6, 1999
(name redacted)
Research Associate in Global Issues
Foreign Affairs and National Defense Division
Congressional Research Service ˜ The Library of Congress

ABSTRACT
The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court (ICC) concluded five weeks of negotiations on July 17, 1998 in
Rome, Italy, by adopting an agreement to establish a permanent international war crimes
court. This report discusses the events leading to the creation of a permanent international
criminal tribunal and U.S. perspectives on the Court including: problematic provisions in the
ICC Treaty, congressional considerations, and potential implications for U.S. foreign policy.
This report will be updated as events warrant.

The International Criminal Court Treaty:
Description, Policy Issues and Congressional Concerns
Summary
The United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court (ICC) concluded five weeks of
negotiations on July 17, 1998 in Rome, Italy, by adopting an agreement to establish
a permanent international criminal court. Of the more than 160 nations that
participated in the Rome Conference, 120 nations voted to adopt the Rome Statute
of the International Criminal Court, 7 nations voted against it, while 21 nations
abstained. The United States rejected the final document primarily because of the
broad jurisdictional powers granted to the Court.
The Court's powers would include the authority to prosecute people from
countries that do not sign and ratify the ICC Treaty. As a result, U.S. military
personnel stationed on foreign soil might be subject to investigations and prosecutions
by the ICC even if the United States does not become a party to the ICC Treaty. Due
to the fact that the global deployment of U.S. military personnel exceeds any other
country, U.S. officials are apprehensive over whether American armed forces may be
likely candidates for frivolous or politically motivated referrals.
Advocates of the ICC Treaty assert that sufficient safeguards exist to limit the
Court's jurisdiction. Notwithstanding this assertion, the Clinton Administration is not
prepared to sign the ICC Treaty in its current form. Ultimately, the Administration
will have to determine what role, if any, the United States should assume concerning
its relationship to the ICC Treaty and the Court. Even though the Administration has
not submitted the ICC Treaty to the U.S. Senate for its advice and consent, several
members of the Senate Foreign Relations Committee have expressed their strong
opposition to it. Any subsequent consideration of the ICC Treaty is unlikely unless
corrective measures are taken to amend the Court's jurisdictional powers.
Before the ICC can begin operating, 60 nations must become parties to the treaty
through formal ratification or accession procedures - a process that may take years.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Origin of the ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Purpose of a Permanent International Criminal Tribunal . . . . . . . . . . . 2
International Conference in Rome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Composition and Administration of the ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Role and Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
International Response to U.S. Concerns . . . . . . . . . . . . . . . . . . . . . . . . . 11
Potential Politicization of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Proponent’s Perspectives Towards the ICC . . . . . . . . . . . . . . . . . . . . . . . 13
Problematic Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Crimes within the Court’s Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The ICC's Jurisdiction and U.S. Sovereignty . . . . . . . . . . . . . . . . . . . . . . 16
Limits Placed on the ICC's Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The ICC’s Procedural Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Case Referrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Rights of the Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Financial Obligations of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
The Relationship between the ICC and the United Nations . . . . . . . . . . . . 20
Congressional Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Appendix A: Comparison of the U.S. position with the 60 LMS . . . . . . . . 27
Appendix B: Administrative Structure of the ICC . . . . . . . . . . . . . . . . . . 29
Appendix C: Pentagon Letter to Military Attaches . . . . . . . . . . . . . . . . . . 30
Appendix D: Subject Matter Jurisdiction of the ICC . . . . . . . . . . . . . . . . . 34
Appendix E: War Tribunal Comparison Chart . . . . . . . . . . . . . . . . . . . . . 43
This report was written under the general direction of (name redacted) of the Foreign
Affairs and National Defense Division.

The International Criminal Court Treaty:
Description, Policy Issues, and
Congressional Concerns
Introduction
Propelled in part by recent reports of genocide and other alleged war crimes,
efforts to establish a permanent international criminal court have moved forward with
the finalization of the Rome Statute of the International Criminal Court. Although the
United States generally supports the concept of an ICC, the United States objects to
the current form of the Court and refused to sign the ICC Treaty. In addition, several
members of the Senate Foreign Relations Committee have stated their objections to
the text of the ICC Treaty. After a brief discussion of the events leading to the
creation of a permanent international criminal tribunal, this report will explore U.S.
perspectives on the Court, problematic provisions in the ICC Treaty, political
considerations being evaluated by the United States toward the ICC Treaty, and
potential implications for U.S. foreign policy.
The world community convened at a United Nations sponsored Diplomatic
Conference in Rome, Italy, from June 15 to July 17, 1998 to establish an ICC to
investigate and prosecute allegations of war crimes. The document, known as the
Rome Statute of the International Criminal Court,1 was overwhelmingly adopted by
the participating governments. The Statute sets out the provisions of the Court and
comprises the body of the ICC Treaty. The Clinton Administration originally
supported the creation of such a tribunal during the three years of preparatory
discussions, but the final statute adopted by the plenipotentiaries was rejected by the
United States. Although 71 nations have signed the ICC Treaty, the United States is
not one of the signatories and must decide what action, if any it will take toward the
ICC Treaty.2
The
1
Rome Statute can be found in its entirety on the United Nations website, http://www.un.org/icc/
. For information and developments from proponents of the Court, the following websites are also
useful: http://igc.apc.org/icc/ (the Coalition for an International Criminal Court) and
http://www.lchr.org/icc/icc_bro.htm (the Lawyers Committee for Human Rights). For articles from
opponents of the Court, see http://www.cato.org/pubs/pas/pa-311.html (the Cato Institute).
2Adopting a treaty signifies an agreement by the participating States to the final language of the
document, whereas signing a treaty indicates a State's preliminary intent to assent to the provisions
of the document.

CRS-2
Origin of the ICC
The Purpose of a Permanent International Criminal Tribunal
The impetus to create a standing war crimes tribunal began as a response to
World War II and the disruption it brought to international peace and security.
Individual criminal responsibility for war crimes, genocide, and crimes against
humanity was first adjudicated in the Nuremberg and Tokyo military tribunals. These
trials determined that individuals have international duties that transcend their national
obligations and as a result should be held accountable for their actions. Recognizing
the international dimension of these crimes in conjunction with these historic trials,
there were calls to create a standing war crimes tribunal to adjudicate future
incidences of such atrocities. Many envisioned a permanent tribunal as perhaps a
partial solution to deter future violations and punish those responsible for committing
widespread and systematic killing. Bringing perpetrators of war crimes to justice was
also intended to diminish the threat their actions pose to international peace and
security. The legacy of internal civil wars in the 1970s and the subsequent creation
3
in the 1990s of U.N. Security Council ad hoc tribunals for the former Yugoslavia and
4
Rwanda exemplified the necessity for a deterrent judicial institution to ensure tha
5
t
perpetrators of war crimes could no longer act with impunity. These events coupled
with the political convergence of internationally-minded groups including
humanitarian, legal, and non-governmental organizations, helped forge transnational
pressure to enhance international humanitarian law.
The international community initially attempted to address war crimes through
agreements aimed at mitigating wartime behavior. The codification of international
rules to govern armed conflict and to outlaw attacks on civilians began in the
nineteenth century.
6 These efforts significantly progressed in 1899, when twenty-six
sovereign States convened at the Hague for the International Peace Conference and
again eight years later, in 1907, when the Second Hague Peace Conference was held.
These conferences produced a series of Hague Conventions and Declarations detailing
the laws and customs of war. Although
7
the U.S. delegation during both conferences
Such as the internal conflicts in Cambodia, Burundi, Algeria, Congo, and Iraq.
3
For
4
a more general discussion, see Bosnia War Crimes: The International Criminal Tribunal for the
Former Yugoslavia and U.S. Policy, (name redacted), Raphael Perl, and (name redacted)
,
CRS Report 96-404 F, updated April 23, 1998.
For
5
background information, see Rwanda: U.N. Security Council Resolutions Texts and Votes --
1993-1994, Marjorie Ann Brown, CRS Report 94-602 F, July 26, 1994 and Rwandan Crisis: a
Chronology, Theodros Dagne, CRS Report 95-773 F, July 5, 1995.
Examples
6
of unilateral sovereign attempts to address war crimes dates back to the 4th century B.C.
where Indian writings refer to the treatment of prisoners of war. The United States first addressed
war crimes during the American Civil War. In 1863, President Lincoln issued war instructions as
General Orders No. 100, Instructions for the Government of Armies of the United States in the Field.
These instructions, commonly referred to as The Lieber Code, are regarded as a model for the
humane laws of warfare.
Convention
7
(I) on the Pacific Settlement of Disputes (July 29, 1899); Convention (II) with Respect
to the Laws and Customs of War on Land (29 July 1899); Declaration (I) to Prohibit for the Term
(continued...)

CRS-3
advocated that international disputes should be settled by binding arbitration or
judicial process, minimal consideration was given to such suggestions.
A serious initiative to establish an international criminal tribunal first arose in the
treaties ending World War I. The 1919 Treaty of Versailles provided for the creation
8
of a multinational tribunal to try the German Emperor, Kaiser Wilhelm II, “for a
supreme offense against morality and the sanctity of treaties.” This Treaty also
granted the Allies the power to try 21,000 German citizens for war crimes.9
However, no transnational tribunal was created and limited war crimes trials were
conducted by German courts -- only 13 out of the 901 accused were convicted.
Kaiser Wilhelm II fled to Holland and was never tried because the Dutch refused to
extradite him. Contemporaneously, the Treaty of Sèvres attempted to expand war
10
crimes trials to include crimes against humanity. This Treaty contained provisions
11
allowing any State to prosecute these crimes, regardless of its involvement in World
War I. This was unprecedented. The Treaty of Sèvres, however, was never ratified
and ultimately was superceded by the 1923 Lausanne Peace Treaty1 which abandoned
2
these penal provisions.
These early attempts to create international tribunals to address criminal acts
committed during wartime did little to deter such crimes or encourage compliance
with the laws of war. The lack of enforcement of the Hague Conventions coupled
with the reality that no judicial body existed to adjudicate these international crimes
led the League of Nations to consider establishing a High Court of International
Justice to try individuals for international crimes. The proposed court never came to
(...continued)
7
of Five Years the Launching of Projectiles and Explosives from Balloons, and other New Methods
of a Similar Nature (July 29, 1899); Declaration (II) Concerning Asphyxiating Gases(July 29, 1899);
Declaration (III) Concerning Expanding Bullets (July 29, 1899); Convention (III) Relative to the
Opening of Hostilities (October 18, 1907); Convention (IV) Respecting the Laws and Customs of
War on Land (October 18, 1907); Convention (V) Respecting the Rights and Duties of Neutral
Powers and Persons in Case of War on Land (October 18, 1907); Convention (VI) Relating to the
Status of Enemy Merchant Ships at the Outbreak of Hostilities (October 18, 1907); Convention (VII)
Relating to the Conversion of Merchant Ships into War-Ships (October 18, 1907); Convention (VIII)
Relative to the Laying of Automatic Submarine Contact Mines (October 18, 1907); Convention (IX)
Concerning Bombardment by Naval Forces in Time of War (October 18, 1907); Convention (X) for
the Adaption to Maritime War of the Principles of the Geneva Convention (October 18,
1907);Convention (XI) Relative to Certain Restrictions with Regard to the Exercise of the Right of
Capture in Naval War (October 18, 1907); Convention (XIII) Concerning the Rights and Duties of
Neutral Powers in Naval War (October 18, 1907); and Declaration (XIV) Prohibiting the Discharge
of Projectiles and Explosives from Balloons (October 18, 1907).
Treaty
8
of Peace Between the Allied Powers and Germany (Treaty of Versailles), June 28, 1919, 2
Bevans 43.
Id.
9
The penal clauses of Part VII, Articles 227-230 provided for the punishment of war criminals.
Treaty
10
of Peace Between the Allied Powers and Turkey (Treaty of Sèvres), Aug. 10, 1920, (never
entered into force).
Id.
11
Article 230 conferred prosecution for those “responsible for the massacres committed during
the continuance of the state of war on territory which formed part of the Turkish Empire,” namely,
against the Armenians.
Treaty
12
of Peace Between the Allied Powers and Turkey (Treaty of Lausanne), June 24, 1923, 28
L.N.T.S. 11.

CRS-4
fruition. Recognition of individual responsibility for crimes against
13
humanity was
not realized until the end of World War II.
After World War II, the Nuremberg and Tokyo military war crimes tribunals set
the stage for efforts to create a permanent court. The Allied Powers after World War
II reached an agreement on a Protocol for establishing an International Military
Tribunal aimed at punishing those responsible for committing crimes against peace,
war crimes, and crimes against humanity. Individual responsibility for "egregious"
14
violations of human rights was adjudicated for the first time in history. The
recognition of crimes against humanity was one of Nuremberg’s legacies as was the
development of substantive norms and principles of international criminal law.
However, the principles of international law recognized by the Charters and the
Tribunals of Nuremberg and Tokyo remained to be adopted by the rest of the
international community. In 1947, the U.N. General Assembly established the
International Law Commission (ILC) designating the ILC’s objective as “the
promotion of the progressive development of international law and its codification.”
The ILC was directed to formulate principles of international law that were
recognized in the Charter of the Nuremberg Tribunal and to prepare a draft code of
offences against the peace and security of mankind. Shortly thereafter, the U.N
15
.
General Assembly “invite[d] the International Law Commission to study the
desirability and possibility of establishing an international judicial organ for the trial
of persons charged with genocide or other crimes . . . [and] request[ed] the
International Law Commission . . . to pay attention to the possibility of establishing
a Criminal Chamber of the International Court of Justice.”16
After preliminary consideration of the ILC's report on international criminal
jurisdiction, the U.N. General Assembly formed a 17-Member Special Committee to
draft proposals for an international criminal court. A draft statute for an ICC was
17
completed in 1951 and revised in 1953. The following year, the Special Committee
submitted its draft statute of an ICC concurrently with the ILC’s Code of Crimes
Against the Peace and Security of Mankind to the U.N. General Assembly.
Consideration of both proposals was postponed because the legal definition of the
Other
13
attempts by the League of Nations also failed. The 1937 Convention for the Prevention and
Punishment of Terrorism called for the creation of an international criminal court as did the
Convention for the Creation of an International Criminal Court. Neither entered into force. 19
LEAGUE OF NATIONS O.J. 23 (1938), 19 LEAGUE OF NATIONS O.J. 37 (1938).
On
14
January 12, 1942, a public declaration by the “governments in exile” of nations overrun by the
Nazis made clear that one of the principal aims of the war was “the punishment through the channel
of organized justice, of those guilty or responsible for these crimes.”
Although
15
the ILC was initially asked to prepare a Code of Crimes Against the Peace and Security
of Mankind, the following year its task was expanded to study the possibility of creating an
international judicial organ. U.N. General Assembly Resolutions 177(II) (Nov. 21, 1947) and
260(III)(B) (Dec. 9, 1948).
16Id. The 1948 Genocide Convention, the 1949 Geneva Conventions and the 1977 Additional
Protocols called for establishment of a permanent court, but such action was hindered for decades
by the highly polarized international atmosphere and the reluctance of governments to accept
international legal jurisdiction.
U.N. General Assembly Resolution 489 (V)(Dec. 12, 1950).
17

CRS-5
“crime of aggression,” was deemed a necessary antecedent condition to their
completion; a definition for which there was no consensus. Consequently, the U.N.
General Assembly formed a 19-Member Special Committee to define "aggression."18
An agreeable definition did not result from this endeavor. Subsequent committees
were established in 1967 and 1971 to undertake the task of defining "aggression."19
Efforts to establish an ICC were stalled during the Cold War and eventually
waned. In the ensuing political climate, nations were reluctant to subject themselves
to international criminal judicial review. In 1989 Trinidad and Tobago reignited the
campaign to create a permanent international criminal court when it requested that
establishment of such a court be placed on the agenda of the U.N. General
Assembly. International interest intensified in the 1990s with the outbreak o
20
f
hostilities and allegations of egregious crimes and atrocities in the former Yugoslavia
and Rwanda. The U.N. Security Council resolutions establishing the ad hoc tribunals
of the former Yugoslavia and
21
Rwanda22 further supported arguments for a standing
war crimes court. During this period,
23
work resumed on drafting a new ICC statute.
The U.N. General Assembly in 1995 established a Preparatory Committee to
continue drafting a statute for an international criminal court to be taken up by the
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of
an International Criminal Court in Rome, Italy.24
International Conference in Rome
Meeting from June 15 to July 17, 1998, delegates from 160 nations worked to
create a permanent international criminal court to prosecute suspected perpetrators
of war crimes. Following contentious negotiations, 120 nations voted to adopt the
Rome Statute of the ICC, seven nations voted against it, and 21 nations abstained.
Prior to the vote, the U.S. delegation made a final attempt to introduce an
U.N. General Assembly Resolution 895 (IX) (Dec. 4, 1954).
18
U.N.
19
General Assembly Resolutions 2330 (XXII) (Dec. 18, 1967) and 2781 (XXVI) (Dec. 3, 1971).
20At the time, Trinidad and Tobago was looking for help with the country’s international drug
trafficking problem.
The
21
International Criminal Tribunal for the Former Yugoslavia (ICTY) was created by U.N.
Security Council Resolution 827 on May 23, 1993. According to the Statute of the Tribunal, which
is appended to Resolution 827, the Tribunal has the power to prosecute "persons responsible for
serious violations of international humanitarian law committed in the territory of the former
Yugoslavia since 1991." S.C. Res 827, U.N. SCOR, 3217th mtg., U.N. Doc. S/RES/827 (1993).
22The International Criminal Tribunal for Rwanda (ICTR) was created by U.N. Security Council
Resolution 955 on November 8, 1994. The ICTR's mandate, as laid out in its Statute (an annex to
Resolution 955), is to prosecute persons responsible for "serious violations of international
humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such
violations committed in the territory of neighboring states" during 1994. S.C. Res. 955, U.N. SCOR,
3453rd mtg., U.N. Doc. S/RES/955 (1994).
Th
23
e political and logistical problems posed by the ad hoc tribunals of the former Yugoslavia and
Rwanda have led some observers to contend that this form of judicial intervention has not been
fruitful. Other observers have viewed the ICTY and the ICTR as an appropriate testing ground for
a permanent criminal international judicial body.
Yearbook of the United Nations 1995 (Vol. 49) at 1328.
24

CRS-6
amendment25 seeking to limit the application of the Court's jurisdiction over non-
States Parties. A non-action vote was requested by Norway and granted: by a vote
of 113-17 with 25 abstentions, no action was taken to consider the U.S. amendment.
During the Rome Conference, the United States found itself at odds with most
of its allies, many of them part of a group colloquially referred to as the "60 Like-
minded States (LMS)." This group of nations advocated a powerful an
26
d
independent Court that was not dependant on the United Nations Security Council.
The positions put forward by the group of "60 Like-minded States" in conjunction
with the influence of the non-governmental organization community created a
27
n
atmosphere that isolated the United States and its proposals. The contributions of
28
the non-governmental organization community were instrumental in forging this
historic document. More than 200 non-governmental organizations were represented
worldwide. Collectively, these organizations were viewed as the largest delegation
at the Rome Conference, albeit without any voting power.
The Rome Statute will remain open for signature in New York, at United
Nations Headquarters, until December 31, 2000. As of January 6, 1999, 71 States
29
have signed the Statute: Albania, Andorra, Angola, Antigua and Barbuda, Australia,
Austria, Belgium, Bolivia, Burkina Faso, Cameroon, Canada, Chile, Colombia,
Congo, Costa Rica, Cote d'Ivoire, Croatia, Cyprus, Denmark, Djibouti, Ecuador,
Eritrea, Finland, France, Gabon, Gambia, Germany, Georgia, Ghana, Greece,
Honduras, Iceland, Ireland, Italy, Jordan, Kyrgyzstan, Lesotho, Liberia, Liechtenstein,
Lithuania, Luxembourg, Macedonia, Madagascar, Mali, Malta, Mauritius, Monaco,
Namibia, Netherlands, New Zealand, Niger, Norway, Panama, Paraguay, Portugal,
Samoa, San Marino, Senegal, Sierra Leone, Slovakia, Slovenia, Solomon Islands,
Two
25
amendments were proposed prior to the final vote. India also put forward an amendment
which consisted of two proposals regarding 1) the role of the U.N. Security Council and 2) the
inclusion of a list of weapons in the war crimes definition. India opposed the U.N. Security Council
powers to bind non-Party States and to block case investigations for 12 month periods. It also sought
to ban weapons it considered a serious violation to the laws and customs of international armed
conflict. Incorporation of weapons of mass destruction into the Rome Statute would have made the
use of nuclear, chemical and biological weapons a prosecutable war crime. Consideration of this
amendment was also defeated by a non-action vote of 114-16 with 20 abstentions.
There
26
is no definitive listing of this group, but the following nations are deemed to have
participated in this coalition: Andorra, Argentina, Austria, Belgium, Benin, Bosnia-Herzegovina,
Brazil, Brunei, Bulgaria, Burkina Faso, Burundi, Canada, Costa Rica, Chile, Congo (Brazzaville),
Cote d'Ivoire, Croatia, Czech Republic, Denmark, Egypt, Estonia, Finland, Gabon, Georgia,
Germany, Ghana, Greece, Hungary, Iceland, Ireland, Italy, Jordan, Latvia, Lesotho, Liechtenstein,
Lithuania, Luxembourg, Malawi, Malta, Namibia, Netherlands, New Zealand, Norway, Phillippines,
Poland, Portugal, Republic of Korea, Romania, Samoa, Senegal, Sierra Leone, Slovakia, Slovenia,
Solomon Islands, South Africa, Spain, Swaziland, Sweden, Switzerland, Trinidad and Tobago,
United Kingdom, Venezuela, and Zambia.
An
27
example of the influence of non-governmental organizations during the Rome Conference is
illustrated by the approval of an independent prosecutor. During the preparatory meetings and
during the Rome negotiations, they were strong advocates that the prosecutor should be allowed to
initiate an investigation based on his or her own findings.
See
28
Appendix A for a comparison of the positions advocated by the United States and the 60 LMS.
The
29
Rome Statute remained in Rome at the Ministry of Foreign Affairs of Italy for signature until
October 16, 1998; thereafter it was moved to the United Nations.

CRS-7
South Africa, Spain, Sweden, Switzerland, Tajikistan, United Kingdom, Venezuela,
Zambia, and Zimbabwe. For the ICC Treaty to enter into force, 60 States must ratify
it.30
Although the long standing U.S. position has been the promotion of the rule of
law in both domestic and international systems of justice, the international community
pushed the jurisdictional and investigative powers of the Court further than the
Clinton Administration was willing to accept. The United States objected to, among
other things, the broad powers of the Court to prosecute U.S. military personnel.
Regardless of whether the United States becomes a party to the ICC Treaty, this
Court, as constituted, would have the authority to claim jurisdiction over U.S. citizens
in matters pertaining to allegations of war crimes. Consent of a citizen's country was
a provision the United States strongly advocated, but that effort was rebuffed by
other delegations. The United States attempted to offset this provision by backing a
proposal giving the permanent members of the U.N. Security Council veto power
over case investigations, but the international community also rejected this proposal
in favor of a more independent court, free from the control of major governments,
creating what some see as an international superordinate organization. Had its
proposal been accepted, the United States could have used its veto power to protect
U.S. servicemen from what it perceived to be politically motivated prosecutions.
Composition and Administration of the ICC
If constituted, the ICC will have judicial authority over international criminal
matters and individuals. The mandate of the Court will be to investigate and enforce
international law concerning allegations of genocide, crimes against humanity, war
crimes, and aggression (Article 5). Individuals are to be brought before the Court
only for these war-related charges when nations are unable or unwilling to adjudicate
these crimes under their national judicial systems. Adjudication of these crimes is not
retroactive;
31 only crimes committed after the ICC Treaty enters into force are within
the purview of its jurisdiction (Article 24). The maximum penalty the Court may
impose on an individual is life imprisonment (Article 77).32
The 128-article ICC Treaty is comprised of the Preamble and thirteen parts: 1)
Establishment of the Court; 2) Jurisdiction, Admissibility and Applicable Law; 3)
General Principles of Criminal Law; 4) Composition and Administration of the Court;
5) Investigation and Prosecution; 6) The Trial; 7) Penalties; 8) Appeal and Revision;
9) International Cooperation and Judicial Assistance; 10) Enforcement; 11) Assembly
of States Parties; 12) Financing; and, 13) Final Clauses.

30 Instruments of acceptance, approval or accession are also valid. All instruments must be deposited
with the Secretary General of the United Nations (Article 125).
Consequently,
31
suspected war crimes committed prior to the creation of the Court such as those in
the territories of Cambodia under Pol Pot’s regime or in Iraq under Saddam Hussein would not be
subject to ICC adjudication.
32In addition to the penalty of imprisonment, the Court may also order fines and the forfeiture of
proceeds, property, and assets derived from the crime.

CRS-8
Article 34 divides the administration of the ICC into four organs: 1) the
Presidency; 2) three judicial chambers; 3) the Office of the Prosecutor; and, 4) the
Registry. Eighteen judges from eighteen different countries will be elected by parties
to the Treaty to serve in the three judicial chambers (Article 36). The Chambers
include the Pre-Trial Division with a minimum of six judges, the Trial Division with
a minimum of six judges, and the Appeals Division which will consist of the President
and four judges (Article 39). Judges must be nationals of a State party to the ICC
Treaty. When electing judges, consideration is to be given to the representation of
principal legal systems of the world, equitable geographical distribution, gender
balance, and expertise on violence against women and children (Article 36). Th
33
e
Prosecutor will also be elected and may be assisted by Deputy Prosecutors so long as
they are not of the same nationality (Article 42). The Registry serves as the principal
administrator of the Court (Article 43). For an illustration of the administrative
structure of the Court, see Appendix B.
Prior to the operation of the Court, Annex I of the Addendum to the Rome
Statute calls for the establishment of a Preparatory Commission. The role of th
34
e
Preparatory Commission is to provide the practical arrangements for the establishment
of the Court and to prepare draft texts. The drafts pertain to provisions outlined in
35
the ICC Treaty which remain undefined, but are necessary prior to a functioning
Court.
The seat of the ICC will be in the Hague, Netherlands, where the World Court,
(formally known as International Court of Justice (ICJ)), also resides. The ICJ is
currently the principal permanent international judicial institution and has jurisdiction
to hear disputes between countries on civil matters. In addition to adjudicatin
36
g
interstate cases, the ICJ gives advisory opinions on international legal questions when
This
33
qualification corresponds with the inclusion of violent crimes against women in the definition
of crimes against humanity. The issue of violence against women has received greater political
visibility in the international arena since such acts were reported in Bosnia. As a result, rape was
listed as a crime in the ICTY and ICTR Statutes as well as enforced prostitution in the ICTR Statute.
The Rome Statute further specified sexually related crimes; Article 7 (g) lists crimes such as rape,
sexual slavery, forced pregnancy, enforced sterilization, enforced prostitution, and other forms of
sexual violence of comparable gravity.
The
34
addendum to the Rome Statute is known as the Final Act of the United Nations Diplomatic
Conference of Plenipotentiaries on the Establishment of an International Criminal Court. The
Preparatory Commission is scheduled to meet from February 16-26, 1999, July 26-August 13, 1999,
and November 29-December 17, 1999.
These
35
draft texts include: 1) rules of procedure and evidence; 2) elements of crimes; 3) relationship
between the ICC and the United Nations; 4) agreement governing the headquarters of the Court; 5)
financial regulations and rules; 6) agreement on the privileges and immunities of the ICC; 7) first
year budget; 8) rules of procedure for the Assembly of States Parties; and, 9) definition and elements
of the crime of aggression. Final Act of the United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal Court, Annex I (F)(5), July 17,
1998.
Statute
36
of the International Court of Justice, June 26, 1945, 59 Stat. 1055, T.S. No. 993, 3 Bevans
1179. Article 34(1) stipulates that “only States may be parties in cases before the Court.” The ICJ
Statute is an integral part of the Charter of the United Nations. States must consent to ICJ
jurisdiction.

CRS-9
requested by an organ or agency of the United Nations. These advisory opinions are
consultative and nonbinding.
U.S. Role and Perspective
The United States has historically supported efforts to establish a permanent war
crimes tribunal in addition to being an avid proponent of past ad hoc war tribunals.
The military tribunals of Nuremberg and Tokyo, and more recently, the ICTY and the
ICTR were U.S. backed efforts. During the formation of these tribunals, the United
States consistently worked with its European and U.N. Security Council allies to
bring perpetrators of war crimes to justice. The United States continued this effort
during the preparatory drafting of the ICC Statute and played a significant role in
formulating numerous provisions of the draft statute. The aim of the United States,
along with its allies, was to develop a permanent international criminal judicial
institution to replace ad hoc war crimes tribunals, to augment the existing rule of
international law, and to prevent the repetition of the types of outrages committed in
Bosnia, Rwanda, Cambodia, and Iraq.
The Clinton Administration endorsed the general idea of an ICC during the
preparatory stages of the Court's formulation. While speaking at the United Nations
in September of 1997, President Clinton stated that “[b]efore the century ends, we
should establish a permanent international court to prosecute the most serious
violations of humanitarian law.” Howe
37
ver, the Administration withdrew its support
for the final statute because it concluded that the treaty failed to sufficiently protect
U.S. interests. This claim rested on the purported political implications of the Court
for the United States.
David Scheffer, the United States Ambassador-at-Large for war crimes led the
38
U.S. delegation at the 1998 Rome Conference. Even though the U.S. delegatio
39
n
was successful in achieving many of its objectives,40 key provisions of the Rome
Statute raised concerns about the impartiality of the Court. At the core of the U.S.
objection to the ICC Treaty is the fear that other nations would use the ICC as a
political forum to challenge actions deemed legitimate by responsible governments.
White
37
House Office of the Press Secretary, Remarks by the President to the 52nd session of the U.N.
General Assembly, September, 22, 1997.
38David Scheffer was appointed by President Clinton in June of 1997 to be the first United States
Ambassador-at-Large for war crimes issues.
Officials
39
from the Office of the Secretary of Defense, the Joint Chiefs of Staff, Department of State,
Department of Justice, the U.S. Mission to the United Nations, and individuals from the private
sector were members of the U.S. negotiating team.
Some
40
of these objectives included: 1) protection of national security information; 2) judicial rules
of procedure; 3) coverage of internal conflicts; 4) comprehensive definitions of crimes; 5)
amendment procedures; 6) stringent judicial qualifications; 7) State Party funding of the Court; 8)
gender issue recognition; 9) due process protections; 10) U.N. Security Council power to intervene
in a case; 11) greater protection to defer a case to national jurisdictions; 12) incorporation of
elements of crimes; 13) sufficient number of ratifying States for the treaty to enter into force; 14)
reasonable command responsibility and superior orders provisions; and, 15) management of the
Court by an Assembly of States Parties.

CRS-10
Pentagon officials are particularly apprehensive over the ICC’s jurisdiction over the
U.S. armed forces. They are concerned that U.
41
S. military personnel will be targeted
for criminal investigation by adversaries. This is disconcerting since the United States
has the largest number of troops deployed overseas who are often the first to be
utilized in troubled areas around the globe--periodically at the request of the
international community. This makes possible a situation in which the United States
would be drawn into a hostile region and then become subject to court action.
Therefore, this places U.S. servicemen potentially more at risk for frivolous referrals
or politically motivated attacks vis-à-vis the ICC.
The jurisdictional provisions of the Court are pivotal to many of the interrelated
U.S. concerns. The provisions of the ICC Treaty extend the Court’s jurisdiction to
nonparticipating countries. Therefore, if the United States does not ratify this Treaty,
its troops could still be subject to the Court’s jurisdiction. Hypothetically, such
complaints could be lodged against U.S. personnel serving in multinational
peacekeeping operations overseas. For instance, if U.S. peacekeepers stationed in a
foreign country are alleged to have committed war crimes, that country could refer
the case to the ICC. The country would have the authority to refer the case because
the alleged crimes occurred on its territory. Therefore, the Court could claim
jurisdiction over U.S. nationals because the country where the alleged crimes
transpired is a party to the ICC Treaty or, if it is not a party to the treaty, voluntarily
consents to the ICC's jurisdiction for that particular case.
42
The United States has maintained that a country's consent to the prosecution of
its nationals should be required unless the Security Council refers the case to the
Court. Typically, situations may come before the U.N. Security Council when they
pose a threat to international peace and security. When deciding which situations
43
the U.N. Security Council will consider, the United States, along with four other
permanent members of the U.N. Security Council, has a determinative influence.
44
The United States sought to require U.S. Security Council case referral to the ICC
so it could exercise its veto power when deliberating over potential cases. This case
referral deference to the U.N. Security Council was one of the assurances the United
States sought to avoid what it feared could be the politicization of the Court. In the
U.S. view, granting case referral authority to countries without the consent of the
national's government and to the independent prosecutor dilutes the role of the
Security Council and increases the possibility of potentially unwarranted legal charges.
Prior
41
to the Rome Conference, the Pentagon distributed a memorandum to more than 100 foreign
military attaches in Washington, D.C. A reproduction of this memorandum is available in Appendix
C.
Not
42
in all cases would current U.S. Status of Forces Agreements (SOF) protect U.S. troops; such
determinations are dependent on existing SOF provisions. The issue of renegotiating SOF is
discussed later in this report.
Pursuant
43
to its powers under Chapter VII of the U.N. Charter, the Security Council can adopt
binding resolutions on Member States in the interest of maintaining or restoring international peace
and security.
44In accordance with Article 27 (3) of the United Nations Charter, “[d]ecisions of the Security
Council . . . shall be made by an affirmative vote of nine members including the concurring votes
of the permanent members . . . .”

CRS-11
Critics contend that allowing U.S. veto authority would have created the very
politicization the United States finds objectionable.
The ineligibility of nonparticipating States to adopt a 7-year immunity from the
prosecution of war crimes is another effect of the Statute's jurisdictional provisions.
Stated plainly, countries that are bound by the treaty are given the option of adopting
a transitional provision. This provision allows them to “opt-out” of any investigations
or prosecutions for war crimes for the first 7 years after the treaty enters into force.
Conversely, nationals of States not party to the treaty are immediately subject to war
crimes prosecutions because nonparticipating States are not entitled to this transitional
opt-out provision. For instance, if a country is a party to the treaty, it can choose to
adopt the transitional provision anytime during the first 7 years the treaty is in force
and its citizens will be immune from war crimes prosecutions via the ICC during that
7-year period. Whereas if the U.S. does not participate in the treaty, it will not be
eligible for this immunity resulting in possible war crimes prosecutions by the ICC of
U.S. citizens if the treaty enters into force.
Furthermore, the amendment procedures would allow States that are bound to
the ICC Treaty to reject jurisdiction on crimes that may subsequently be added to the
Treaty. Again, countries that are not bound to the ICC Treaty would be subject to
the Court’s jurisdiction over these new crimes. Ambassador Scheffer maintains that
the ICC does not afford nonparticipating nations the same jurisdictional protections
as party States. A related point of contention for the United States was the scope and
timeframe of the opt-out provision. The United States supported a longer transitional
provision so countries could assess the effectiveness and impartiality of the Court.
A 10-year time period was advocated in which countries could elect to opt out of the
war crimes and crimes against humanity provisions. This would give countries
sufficient time to make such a determination.
Finally, the jurisdictional provisions of the Court raise questions about the
international treaty regime. One of the basic tenets of international treaty law is that
treaties are binding on parties to the agreement. To assert that a treaty extend
45
s
beyond the parties, as is proposed by the ICC Treaty, essentially nullifies the
ratification process required to assent to the terms of a treaty.
International Response to U.S. Concerns
International perspectives regarding the U.S. position on the ICC vary, but many
feel that U.S. fears are overblown. Some countries contend that even if unwarranted
charges were lodged, the ICC Treaty has sufficient built-in safeguards to protect
against such frivolous claims. Frequent references are made to the predominant U.S.
role in meting out justice in the military tribunals following WWII, as well as its
advocacy of the ad hoc tribunals for the former Yugoslavia and Rwanda. Other
nations contend that given the current U.S. position, the United States has
relinquished its position as a global moral leader. Lastly, the United States has been
criticized for arrogance in subordinating international justice in favor of its own
Vienna
45
Convention on the Law of Treaties, U.N. Doc. A/CONF. 39/27, May 23, 1969, (entered
into force Jan. 27, 1980), Articles 34-38.

CRS-12
national interests. U.S. citizens have been accused of and are capable of committing
atrocities.
46 Supporters of the Court contend that it would be unfair to hold the
United States to a different standard of justice.
As a result, U.S. policymakers are left with the consequences of a document
which is internationally supported. Statements made by representatives such a
47
s
Ernst Sucharipa of Austria who spoke on behalf of the European Union and its
associated States of Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania,
Poland, Romania, Slovakia and Slovenia, Cyprus, and Iceland is indicative of the
prevailing international sentiment. “The Rome Statute represented a great
achievement . . . the Court would make the world a safer, more just and a more
peaceful place. The culture of impunity had no place in the world. The purpose of
the Court was not only to prosecute and punish those who perpetrated heinous crimes
but, through its existence, it would deter and prevent individuals from committing
them in the first place. The Court, indeed, would add a new dimension to
international relations, in general, and to the effectiveness of international law, in
particular.”
48 Other statements further exemplified international support for the ICC
Treaty, specifically, Trevor Pascal Chimimba, representing Malawi said "the
international community had managed to put in place the missing link in the
international legal order. While the Rome Statute was not a perfect document, it was
nevertheless a product of well crafted compromises; an outcome of laborious
negotiations; and above all, an instrument that signified in a clear and unequivocal way
the political will of all to bring an end to impunity. The process itself was as
significant as the outcome was monumental."49
Potential Politicization of the Court
Despite laudatory international views, U.S. disagreement with the expansion of
criminal jurisdiction reflects concerns that the Court will function in a political rather
than judicial capacity. Some U.S. officials are conc
50
erned that the ICC could provide
On
46
March 16, 1968, more than 400 Vietnamese civilians were killed by American ground troops
in the My Lai massacre during the Vietnam War. Charges were brought against numerous
individuals, but most were dismissed. Only commanding officer Lt. Calley was court-martialed and
convicted. In 1971, he was sentenced to life imprisonment. Shortly thereafter, his sentence was
reduced to 20-years and then to 10-years. Three years after his conviction, Lt. Calley was paroled.
John P. MacKenzie, Calley Appeal Rejected, The Washington Post, April 6, 1976, A1, A6.
47A prevailing international perspective of many countries is that the ICC Treaty supports the
necessary framework of a permanent tribunal, one that can evolve and be modified. For comments
by country representatives, see generally, U.N. Press Releases GA/L/3077-78, October 21, 1998 and
GA/L/3079-80, October 22, 1998.
U.N. Press Release GA/L/3077, October 21, 1998.
48
Id.
49
50The current controversy regarding the case of former Chilean President Augusto Pinochet is
particularly demonstrative regarding the potential expansion of international judicial jurisdiction.
Spain has requested the arrest and extradition of Augusto Pinochet from England so it may try him
for the crimes of genocide, terrorism and torture associated with his rule. Spain asserts the right to
try Augusto Pinochet based on various international conventions and its domestic laws which allow
for the prosecution of specific crimes no matter where they occurred or the nationality of the victims.
(continued...)

CRS-13
countries or individuals51 harboring anti-American sentiments with a venue to
denounce its military or peacekeeping activities. This fear would have been minimized
if not for the Court’s judicial authority to claim jurisdiction over U.S. citizens based
on the consent of other countries. For example, countries disagreeing with
responsible U.S. military actions on their territory could lodge charges against
American troops in an attempt to avert international attention from the conflict or to
hamstring U.S. military or foreign policy initiatives. Another possible political
manipulation could arise if a failing leader levied charges in an attempt to energize
support or regain political power. Hypothetically, in an attempt to subvert U.S.
diplomatic efforts to end the fighting in Kosovo, U.S. peacekeepers stationed in the
region could become the target of politically motivated charges.
Regardless of these assertions, the potential that nations may elect to wage their
political battles in this judicial forum has the United States assessing how to safeguard
American legal rights overseas. One outcome might be the restriction of future U.S.
foreign policy initiatives involving military alliance obligations and multinational
operations. Protection of U.S. troops from frivolous, false or politically motivated
accusations is paramount to the current U.S. position.
Proponent’s Perspectives Towards the ICC
Proponents of the Court while acknowledging that the Rome Statute is flawed,
nonetheless, hail it as an historic agreement that can be amended to improve its
effectiveness. Advocates of the Court also maintain that there are enough safeguards
to allay U.S. concerns. Some observers have commented that the interests of U.S.
citizens would be better protected if the United States became a party to the ICC
Treaty. Under this scenario, the United States could adopt the opt-out provision
protecting U.S. citizens from war crimes for 7 years and be eligible to reject the
Court's jurisdiction over newly added crimes. Seven years after the ICC Treaty enters
into force, amendments to the treaty may be proposed. At that time, they argue, the
United States could work within the framework of the agreement to address its
concerns over contentious provisions. Currently, the United States does no
52
t
consider this a viable option.
Backers of the ICC Treaty additionally contend that U.S. adamance during the
negotiations strengthened many provisions, specifically: the priority given to national
(...continued)
50
Critics maintain that Spain's claim of jurisdiction over Augusto Pinochet amounts to judicial
activism framed under the rubric of international humanitarian law.
51For example, in 1967, anti-war activist Bertrand Russell assembled a like-minded coalition of
international observers and created The International War Crimes Tribunal to adjudicate alleged
American war crimes during the Vietnam War. These proceedings were held under the auspices of
the Bertrand Russell Peace Foundation. It had no international authority over governments or
individuals. See generally, John Duffett, ed., introduction by Bertrand Russell, foreword by Ralph
Schoenman, Against the Crime of Silence: Proceedings of the Russell International War Crimes
Tribunal: Stockholm, Copenhagen.
In
52
accordance with Article 127, a State may withdraw from the ICC Treaty one year after receipt
of written notification by the Secretary-General of the United Nations unless a longer timeframe is
otherwise specified by the withdrawing State.

CRS-14
courts to prosecute cases, due process protections, and Pre-Trial Chamber approval
of the actions of the Prosecutor. These factors in conjunction with the assertion that
the crimes to be adjudicated before the ICC are not those typically committed by U.S.
forces further reduces the probability of the prosecution of U.S. nationals.

Advocates also point to three factors that threaten to weaken the Court in
bringing alleged perpetrators to justice. The first is U.S. nonparticipation in this
international criminal judicial institution, the second is the problem of “traveling
dictators” and the third is the 7-year opt-out clause for war crimes. Without U.S.
backing, many fear that the ICC will not achieve the legitimacy needed to carry out
its mandate. Additionally, the Rome Statute lacks a provision to allow a country that
has custody of an accused perpetrator to initiate a case. Heads of State or former
Heads of State may be free to travel to other countries without fearing capture and
surrender to the ICC. For instance, if Saddam Hussein commits war crimes against
his own people in Iraq, and then travels on vacation to a neighboring State or seeks
medical care in a sympathetic country, the custodial State has no authority to
surrender Saddam Hussein to the Court for prosecution. Because the crimes were
committed in Iraq, Saddam Hussein would either have to consent to his own
prosecution or Iraq would have to be a party to the ICC Treaty. Both scenarios
appear unlikely. Finally, allowing countries to opt out of war crimes prosecutions for
7 years gives governments immunity from these crimes during the 7-year period. As
mentioned previously, if a country were a party to the ICC Treaty, its citizens could
arguably commit war crimes for the first 7 years of the Court's existence, and they
would be immune from prosecution for these crimes by the ICC.
In spite of the provisional weakness of the ICC Treaty, the international
community overwhelmingly voted to adopt the Rome Statute. Although 71 States
have signed it, ratification by the requisite number of States may be complicated and
time consuming. Some outstanding factors that
53
may prove decisive include whether
the ICC provisions comply with the municipal law of States and whether countries
54
are willing to confront the political implications presented by the provisions of the
55
ICC Treaty.
Signing
53
a treaty is an indication of a State’s preliminary intent to assent to the provisions of the
document. It must be followed by ratification in accordance with each country's domestic procedures
for ratification.
A
54
frequently cited example is a country's laws pertaining to extradition. For example, some
countries have very strict laws regarding extradition while others countries are not parties to
extradition treaties and/or conventions. This consideration is significant because the Court will have
to rely on international cooperation when it requests the delivery or transfer of alleged perpetrators
for prosecution. A recent illustration of the complexities of extradition is the case of former
President Augusto Pinochet of Chile. Pinochet's extradition rests on whether the requirements of
British extradition law are met. Consideration will be given to "whether the offenses are extradition
crimes, whether the request is properly authenticated, whether the offenses are of a political
character, and any compassionate circumstances." For more about the Pinochet case, see supra 50.
55One frequently cited example pertains to Israel. The inclusion of “[t]he transfer directly or
indirectly [emphasis added] by the Occupying Power of parts of its own civilian population into the
territory it occupies . . . ” in the definition of war crimes would arguably make Israel’s settlement
in the West Bank and Gaza Strip a war crime. Article 8(2)(b)(viii).

CRS-15
Problematic Provisions
The following section describes the major provisions of the ICC Treaty. These
provisions focus on the determinations made by the plenipotentiaries in Rome and are
distinguished from the U.S. position during the Rome negotiations.
56
Crimes within the Court’s Jurisdiction
Before the ICC can hear a criminal case, it must have jurisdiction over both the
crime and the alleged perpetrator of the crime. Crimes which can be brought before
the ICC (subject matter jurisdiction) are limited to "serious crimes of concern to the
international community," namely, genocide, crimes against humanity, war crimes,
57
58
and “aggression.” If the ICC Treaty enters into force, these crimes will not be subject
to any statute of limitations (Article 29). For a complete listing of the actual acts that
determine these crimes, see Appendix D. In addition to these core crimes
59
,
international terrorism and illicit drug trafficking may come within the purview of the
Court 7 years after the ICC Treaty enters into force.60
U.S. Rationale. While the
U.S. Position during the Rome Conference
United States supported the
core crimes of genocide, war
<
Opposed the inclusion of "aggression" as
crimes, and crimes against
a crime within the Court's jurisdiction.
humanity as within the Court's
jurisdiction, it opposed the
<
Opposed the inclusion of international
inclusion of the crime of
terrorism and illicit drug trafficking
“aggression” because of the lack
within the Court's jurisdiction.
of a generally ac-cepted
5 This
6
information has been gathered from U.N. documents, State Department materials, and the
non-governmental organization community.
Precedents
57
for the definition of crimes against humanity can be found in the Nuremberg Charter,
the Tokyo Charter, the Yugoslavia Tribunal Statute, and the Rwanda Tribunal Statute.
Precedents
58
for the definition of war crimes can be found in the 1899 and 1907 Hague Conventions
and Regulations and the four 1949 Geneva Conventions and Additional Protocols.
In
59
accordance with Article 8, war crimes may occur during international armed conflicts (Article
8(2)(b)) as well as internal conflicts (Article 8(2)(c-f). The United States along with a majority of
countries supported the inclusion of internal conflicts, but differed as to the circumstances under
which the ICC would have jurisdiction. For a comparison, see Appendix A.
60The Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court, otherwise referred to as the Addendum to the
Rome Statute, recognizes that the crimes of international terrorism and illicit drug trafficking pose
a serious threat to international peace and security. Based on the lack of a consensus during the
Rome negotiations on acceptable definitions for these crimes, the Final Act recommends that a
Review Conference be convened 7 years after the treaty enters into force. Its role is to define these
crimes for their inclusion in the list of crimes that may be adjudicated by the Court. Final Act of the
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International
Criminal Court, Annex I (E), July 17, 1998.

CRS-16
definition.
61 Pursuant to the U.N. Charter, acts of ag-gression fall within the mandate
of the U.N. Security Council.62 As a result, the application of this crime when
determining an individual’s accountability is problematic. The United States also
sought to exclude the crimes of international terrorism and illicit drug trafficking from
the Court's jurisdiction asserting that the Court’s scope should be limited to the most
egregious crimes. U.S. opposition to the inclusion of these crimes was also
predicated on the position that national law enforcement efforts to adjudicate these
crimes are more effective. In this view, nations are better equipped to investigate
these complex crimes by using their own domestic legal agencies and intelligence
resources to uncover crime organizations.
The ICC's Jurisdiction and U.S. Sovereignty
Jurisdiction over an individual is dependent on whether the ICC can exercise its
authority to prosecute the alleged perpetrator of the crime. The manner in which the
ICC would be able to employ its jurisdictional powers is based on the three
preconditions set out in Article 12 of the Rome Statute:
1. A State which becomes a Party to this Statute accepts the jurisdiction of
the Court with respect to the [core] crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise
63
its jurisdiction if one or more of the following States are Parties to this
Statute or have accepted the jurisdiction of the Court in accordance with
paragraph 3:
(a) The State on the territory of which the conduct in question occurred or,
if the crime was committed on board a vessel or aircraft, the State of
registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is
required under paragraph 2, that State may, by declaration lodged with the
Registrar, accept the exercise of jurisdiction by the Court with respect to
the crime in question.64
The
61
importance of this definition should not be overlooked. It might ultimately redefine or modify
both the concept and conduct of warfare.
62General Assembly Resolution 3314 (XXIX) is frequently cited as a source for the definition of
aggression. This resolution only determines acts of aggression by States and not individuals.
63Article 13(a) states "[a] situation in which one or more of such crimes appears to have been
committed is referred to the Prosecutor by a State Party in accordance with article 14." Article 13(c)
states "[t]he Prosecutor has initiated an investigation in respect of such a crime in accordance with
Article 15."
Three
64
types of jurisdiction are evident in this provision: 1) inherent jurisdiction, 2) jurisdiction by
state consent, and 3) universal jurisdiction. Article 12(1) is an example of inherent jurisdiction. A
State automatically accepts the Court’s jurisdiction over the core crimes upon ratification of the ICC
(continued...)

CRS-17
U.S. Rationale. The most
U.S. Position during the Rome Conference
contentious issue the United
States addressed in Rome was
<
Supported consent of non-party States
the preconditions to jurisdic-
prior to the prosecution of their
tion, because it directly affects
nationals.
national sovereignty. The U.S.
position was advocated to
<
Supported automatic jurisdiction only for
protect U.S. military personnel
the crime of genocide for States that
stationed on foreign soil from
ratify the ICC Treaty.
prosecution without the consent
of the U.S. government. Allow-
<
Proposed a 10-year transitional provision
ing case investigations of U.S.
to opt-out of the Court’s jurisdiction for
citizens based on the consent of
crimes against humanity and war crimes.
other countries was an unac-
ceptable outcome for the United
States. The requirement of
nonratifying State consent was to prevent the Court from proceeding if the
government of the accused refused to accede to ICC jurisdiction.65 The U.S.
positions on automatic jurisdiction and the opt-out provision were advocated to allow
countries to assess the effectiveness and impartiality of the Court before committing
to its absolute jurisdiction. The United States’ position that automatic jurisdiction be
applicable only to genocide was based on its belief that the most egregious crime
should not be subject to State consent. Support for assenting to automatic
jurisdiction for the most egregious crime while providing a transitional period for war
crimes and crimes against humanity also had national sovereignty implications. It was
argued that by preserving voluntary acceptance of the Court’s jurisdiction for 10
years, countries would be given sufficient time to objectively observe the neutrality
of the ICC. The United States proposed that at the end of this period, States party
to the ICC would have to either: 1) accept automatic jurisdiction over all core crimes,
2) cease to be a party to the ICC Treaty, or 3) seek to amend the opt-out provision.
Limits Placed on the ICC's Jurisdiction
To allay concerns over the erosion of national sovereignty, limits were placed on
the Court’s claim of jurisdiction over a specific case. Paragraph 10 of the Preamble
and Article 1 ensure that nations are the primary adjudicators of their own citizens by
(...continued)
64
Treaty. Article 124, referred to as the opt-out provision, gives States Parties the option of
temporarily opting out of war crimes. If a State chooses to adopt this provision, the ICC would have
inherent jurisdiction over genocide and crimes against humanity for that State until the opt-out
period lapses. Thereafter, it would have inherent jurisdiction over all core crimes. Articles 12(2)
and 12(3) are comprised of consent jurisdiction and a form of universal jurisdiction. State consent
jurisdiction mandates that interested States give their consent to be bound while the principle of
universal jurisdiction extends the power to exercise jurisdiction over a State regardless of whether
it voluntarily accedes to jurisdiction. It is this form of de facto universal jurisdiction that the United
States vehemently opposes.
65During the negotiations, this position was reserved by the United States pending the decision on
the role of the U.N. Security Council.

CRS-18
declaring the Court as "complementary to national criminal jurisdictions." This
concept of complementarity basically holds that a country’s national criminal system
has the principal responsibility for adjudicating alleged perpetrators of war crimes.
Cases will only be brought before the ICC when national systems are not functioning
or are ineffective, thereby complementing, not replacing national courts. For instance,
when a State is unwilling to administer the law or unable to do so due to State
collapse, the ICC can step in to adjudicate.
66
Article 18 of the Rome Statute grants States the right to challenge the Court’s
jurisdiction. This right can be asserted if a State that has primary jurisdiction is
currently prosecuting or investigating the case. This challenge is also applicable for
previously investigated or prosecuted cases. Th
67
e Statute requires that any challenge
must be made prior to the ICC's trial of the accused.
The power to defer prosecutions for a period of twelve months is granted to the
U.N. Security Council under Article 16 of the Rome Statute. The five permanent
members of the U.N. Security Council must unanimously agree to defer a
prosecution. Following agreement, a resolution must be adopted in accordance with
Chapter VII of the Charter of the United Nations. These deferral periods are
renewable on an unlimited basis.
U.S. Rationale. To protect
U.S. Position during the Rome Conference
American military personnel
from politically motivated pro-
<
Advocated that the ICC should be
secutions, the United States
prohibited from proceeding with a
sought to assure that the U.N.
“situation” that the U.N. Security
Security Council maintain case
Council is addressing under its Chapter
referral authority. U.N. Charter
VII powers, unless the UN Security
Chapter VII powers pertain to
Council expressly states otherwise.
threats or breaches of inter-
national security. Since such
"situations" would come before
the U.N. Security Council, the United States as one of five permanent members could
withhold approval, thereby vetoing and ultimately halting an investigation. This
would grant any of the permanent U.N. Security Council members veto power over
case-related investigations. Additionally, the United States wanted to preserve the
U.N. Security Council’s role and its powerful position on the Council in the work of
the Court without marginalizing the permanent member's powers.
66Article 17 of the Rome Statute declares under what circumstances the ICC can exercise
complementarity as well as when a case is inadmissible before the Court. The decision to deem a
nation’s trial limited in its extent or invalid will rely on factual determinations to be made by the
Court. No standards for such a determination are included in this provision.
This
67
provision in conjunction with Article 20 protects individuals against double jeopardy (being
tried for the same crime twice). Another effect of this provision should not be dismissed, the
possibility for potential manipulations of the judicial process. Some have questioned whether this
challenge will be used by governments to shield alleged perpetrators by either delaying an ICC
prosecution or conducting so-called sham trials.

CRS-19
The ICC’s Procedural Structure
Some procedural aspects of the Court were patterned after its predecessors, but
many procedural provisions were expanded to enhance the effectiveness of the judicial
process. For a comparison of the ICC’s organizational and procedural structure with
prior tribunals, see Appendix E.
Case Referrals
In accordance with Article 13, cases may be referred to the Court by a State
Party to the ICC Treaty, the U.N. Security Council or the Prosecutor. Although the
Prosecutor is granted authority to trigger an investigation, this authority is constrained
by compulsory judicial approval. Prior to proceeding with an investigation, the
Prosecutor must present case evidence to the judges in the Pre-Trial Chamber for
review.
U.S. Rationale. Prosecu-
U.S. Position during the Rome Conference
torial autonomy was rejected
by the United States on the
<
Advocated that only the U.N. Security
grounds that one individual with
Council or a State Party to the ICC
so much power may take up
Treaty should have the authority to
frivolous or politically moti-
trigger investigations. The Prosecutor's
vated complaints. An analogous
role is to investigate cases that have been
contention was that legitimate
referred.
actions taken by responsible
governments should not be
subject to case determinations
made by a potentially over-
zealous prosecutor. Furthermore, the possibility of overwhelming the court with
complaints is also likely because information for alleged crimes may come from
various sources, i.e. case referrals are no longer limited to States or the U.N. Security
Council. Consequently, the Prosecutors Office could become embroiled in political
decision-making.68
Rights of the Accused
Articles 20, 55, 63, 66, and 67 grant criminal justice safeguards to the alleged
perpetrator, many of which were modeled after the due process protections
guaranteed to defendants by the U.S. judicial system. Although the United States
fervently advocated the inclusion of these rights, potential problems may arise as to
whether these rights afford synonymous rights as those guaranteed to U.S. citizens
under the First and Fourth Amendments of the U.S. Constitution. Under the Rome
Statute, the rights of the accused become effective once an investigation by the
Prosecutor is commenced. Such assurances include the right:
! not to incriminate one’s self;
This
68
position is perhaps an international reflection of the domestic debate occurring in the United
States over the prosecutorial powers of the Independent Counsel.

CRS-20
! to an attorney;
! to remain silent;
! not to be compelled to testify or confess guilt;
! not to be subjected to coercion;
! not to be subjected to arbitrary arrest or detention;
! to be awarded an interpreter;
! to a public hearing;
! to be present at trial;
! to be informed of the charges brought against one;
! to be questioned in the presence of counsel;
! to be presumed innocent at trial;
! not to be tried twice for the same crime (double jeopardy);
! to an appeal;
! to adequate time to prepare one’s defense;
! to be tried without undue delay; and
! to confront one’s accuser.
69
Financial Obligations of the Court
In accordance with Article 100, the Court will bear costs relating to travel,
security, transfer of individuals in custody, transport of an individual being
surrendered, translation, interpretation, transcription, expert opinions, and expert
reports.70 Travel fees apply to witnesses, experts, and the staff of any organ of the
Court. States will bear the costs when executing requests from the Court.
Projections for the effective functioning of the ICC range from US$10 to $80 million
a year, depending on whether the Court is adjudicating a situation. For comparative
purposes, collectively, the ICTY and ICTR operate on approximately $100 million
annually. They are funded from U.N. General Assembly assessments. The ICJ
operates on roughly $10 million annually, its operating costs are apportioned in the
United Nations’ regular budget. The ICC’s funding will be derived from multiple
sources which are discussed in the following section.
The Relationship between the ICC and the United Nations
The Court’s ultimate relationship with the United Nations was left undetermined.
Article 2 of the Rome Statute maintains that the ICC's relationship with the United
Nations will be addressed in a subsequent "agreement to be approved by the Assembly
of States Parties to . . . [the Rome] Statute and thereafter concluded by the President
of the Court . . . ." The four outstanding possibilities are 1) a treaty body of the
United Nations; 2) an independent international organization; 3) a subsidiary body of
the United Nations; or, 4) a principal organ of the United Nations. Many delegations
Article
69
68 provides for an exception to the right to confront one’s accusers. Witnesses may be
protected when the alleged crime involves sexual violence, gender violence, and violence against
children. In such cases, the Court may conduct closed proceedings or the presentation of evidence
by electronic or other special means. In addition to these victims rights, Article 75 establishes
principles of reparations to victims in the form of restitution, compensation and rehabilitation.
Article 79 establishes a trust fund for such reparations.
The Court will also bear costs related to staffing. These amounts have yet to be determined.
70

CRS-21
during the Rome Conference advocated a close relationship between the ICC and the
United Nations arguing that such a relationship would enhance the Court’s
effectiveness, but no consensus among the delegations was reached.
Another factor that will influence the ICC’s relationship with the United Nations
is the source of the ICC’s funding. Articles 115-117 of the Treaty adopted a hybrid
approach whereby financing for the Court may come from three sources: 1) assessed
contributions from by States Parties, 2) funds provided by the United Nations which
is funded by Member Nations, and 3) voluntary contributions made by Governments,
international organizations, individuals, corporations and other entities. The
assessment of contributions from States Parties is to be in accordance with an agreed
scale of assessment predicated on the scale adopted by the United Nations for its
regular budget.
U.S. Rationale. Primarily,
U.S. Position during the Rome Conference
the United States sought to
avoid subjecting the Court to
<
Supported the ICC as an independent
possible political manipulation.
treaty-based organization.
A Court closely linked with the
United Nations might become
<
Supported the position that the ICC
mired in its bureaucracy and
should be funded by States party to the
give the United Nations, a poli-
ICC Treaty.
tical institution, some control
over a judicial institution. Ad-
ditionally, any dependence on
the U.N. regular budget for
funding might compromise the independent functioning of the Court. Sole funding
by States Parties would arguably guard against any such manipulations.
Congressional Considerations
The dual objectives of the United States during the Rome Conference were to
continue to promote international justice while securing legal protection for American
citizens. The end result of the Rome Conference in the opinion of many U.S.
politicians was a flawed statute which may pose unfortunate consequences to U.S.
71
national interests. The Administration is left to consider what options are available
to protect U.S. military personnel during peacekeeping and multilateral military
action. Can the U.S. prevent its citizens from being brought before the Court without
U.S. government consent? Although the Administration has not submitted the ICC
Treaty to the U.S. Senate for consideration, several Members have expressed their
views toward the ICC.
71Article 120 of the Statute forbids reservations to the treaty. Therefore, the United States must
either adopt or reject the treaty in its entirety. Reservations are specific qualifications or stipulations
which change a country's obligations to a treaty without altering the actual language of the treaty.

CRS-22
Most recently, the Omnibus Appropriations Act of 1998 expresse
72
d
congressional misgivings about the ICC. It restricts U.S. accession to any new
international tribunal except pursuant to a treaty or congressional statute. It reflects
the wariness many Members have toward the Rome Statute. It is distinctive from
previous legislative measures relating to an international criminal court in that it grants
no legal effect to the jurisdiction of a tribunal. Basically, the Act seeks to protect
U.S. citizens, U.S. property, and acts committed on U.S. territory from the
jurisdiction of an international criminal court.
Prior to enactment of this legislation, the Senate Foreign Relations Committee
held a post-conference hearing on the ICC on July 23, 1998. The Senate Foreign
Relations Committee is the Committee of jurisdiction in matters of advice and consent
to treaty ratification. Committee members uniformly agreed that the U.S. delegation
correctly concluded to vote against the Rome Statute. A bipartisan group of
lawmakers aired their concerns regarding:
! the infringement of U.S. sovereignty by trying citizens of countries that do not
participate in the treaty;
! the effectiveness of the ICC in trying suspected perpetrators of war crimes;
! insufficient due process protections accorded to U.S. citizens before this
tribunal;
! the diminished role of the U.N. Security Council;
! U.S. funding for this newly created international legal body; and
! U.S. ally support for the Rome Statute.
73
Senator Rod Grams (R, MN) stated that the ICC Treaty is not “sufficient to
safeguard our nation’s interests. The United States must aggressively oppose this
Court each step of the way, because the treaty establishing the International Criminal
Court is not just bad, it is dangerous.” Senator Diane Feinstein (D, CA) expressed
concern that the Court would act politically and not on behalf of justice. Although
acknowledging the need for an ICC, she was ultimately concerned about the exposure
of U.S. military personnel to the jurisdiction of the Court. ‘Would random incidents
and civilian casualties subject them to frivolous prosecutions?’ She recommended
that the United States seek to amend this document. Committee Chairman Senator
Jesse Helms (R, NC) declared that the “Rome Treaty is irreparably flawed.” He
advised that “rejecting this treaty is not enough. The United States must fight this
treaty.” He suggested that the United States seek assurances from allies that they
would not hand over U.S. military personnel to the Court and proposed renegotiating
U.S. Status of Forces Agreements (SOF). Senator Joseph Biden (D, DE) reiterated
this concern. He questioned whether the Administration was planning to review
current SOF agreements. Senator John Ashcroft (R, MO) was dismayed by th
74
e
P.L.105-277, § 2502.
72
Specifically, Germany, Canada, the Netherlands, Britain, and France.
73
The
74
renegotiation of SOF agreements has been identified as one of the few affirmative actions the
United States could take to protect its servicemen if the Statute is implemented. Article 98 (2) of the
Rome Statute prohibits the Court from proceeding "with a request for surrender which would require
the requested State to act inconsistently with its obligations under international agreements pursuant
(continued...)

CRS-23
jurisdictional provisions of the Rome Statute and said it “smacks of arrogance” and
was framed without adequate consideration for the U.S. Constitution. As Chairman
of the Senate Judiciary Subcommittee on Constitution, Federalism, and Property
Rights, he stated his plans to address these constitutional issues in that subcommittee.
Some of the suggested options that emerged from the hearing include:
! continue to negotiate for more favorable provisions;
! amend objectionable provisions in 7 years;
! ignore the court by no further participation;75
! block the treaty by deterring other governments from ratifying the treaty;
! alter U.S. diplomatic posture towards governments that ratify the treaty;
! renegotiate SOF agreements;
! reconsider the commitment of U.S. troops to international missions; and
! disregard the Court and its decisions once it begins to operate.
In a speech to the U.N. General Assembly on October 21, 1998, Ambassador
Scheffer confirmed that "the United States will not sign the treaty in its present form.
Nor is there any prospect of our signing the present treaty text in the future." As to
the options that were being considered, he stated that "we have heard it suggested
that the United States should exercise 'benign neglect' or that we should wait until the
Review Conference 7 years after entry into force of the treaty -- a conference to
which the United States, as a non-party, would not be entitled to fully participate. We
have rejected both of these options . . . [w]e would prefer, however, a policy of
positive and forward-looking engagement. . . ." One possible venue in which the
United States could continue its dialogue with other governments would be U.S.
participation in the ICC Preparatory Commission. As a signatory to the Final Act in
Rome,
76 the United States is eligible to participate in the Commission. Any possible
participation was qualified by Ambassador Scheffer, asserting that "it is essential that
the Preparatory Commission afford the opportunity for governments to address their
more fundamental concerns."
(...continued)
74
to which the consent of a sending State is required . . . ." The ICC provisions do not supersede or
negate Status of Forces Agreements between the United States and a host nation.
Regardless
75
of whether the United States acquiesces to the provisions outlined in the Rome Statute,
an international effort continues toward the establishment of the ICC. A signing ceremony was held
in Rome, Italy on October 7, 1998. Two weeks later, the U.N. General Assembly met on October
21 and 22, 1998 to discuss the Rome Statute. Another meeting was held the following month at
Westminister Palace in England for States that have already signed the document. This is not the
first time that the international community has worked to establish a multilateral treaty without the
support of the United States. The Rome Conference was the second time in less than one year that
the U.S. found itself isolated from the consensus of the international community; the first was during
the negotiations for a land mine treaty. The international community forged ahead without the
United States to create the Ottawa Landmine Treaty.
76The Final Act is a document that was signed by the nations that participated in conference
negotiations. It acknowledges the events that transpired at the Rome Conference.

CRS-24
In evaluating available options, the Administration will likely consider prior
congressional legislation and resolutions. H.J. Resolution 89, introduced in the 105
77
th
Congress, called on the President "to support and fully participate in negotiations at
the United Nations and especially in the preparatory committee to establish an
international criminal court with jurisdiction over international crimes . . . [and]
provide any assistance necessary to expedite the establishment of such a court." In
addition, the Foreign Relations Act for Fiscal Years 1994 and 1995, contained three
78
sections pertaining to the establishment of an international criminal court. Section
517 expressed the sense of the Senate supporting the establishment of an international
criminal court. It declared that such a court would serve American and world
interests and instructed the U.S. delegation to advance this proposal at the United
Nations. Sections 518 and 519, introduced by Senator Helms, prohibited U.S
79
.
consent to any international criminal court treaty under the following conditions:
80
SEC. 518. INTERNATIONAL CRIMINAL COURT PARTICIPATION
The United States Senate will not consent to the ratification of a treaty providing for
United States participation in an international criminal court with jurisdiction over
crimes of an international nature which permits representatives of any terrorist
organization, including but not limited to the Palestine Liberation Organization, or
citizens, nationals or residents of any country listed by the Secretary of State under
section 6(j) of the Export Administration Act of 1979 as having repeatedly provided
support for acts of international terrorism, to sit in judgement on American citizens.
SEC. 519. PROTECTION OF FIRST AND FOURTH AMENDMENT RIGHTS
The United States Senate will not consent to the ratification of any Treaty providing
for United States participation in an international criminal court with jurisdiction
over crimes of an international character unless American citizens are guaranteed,
in the terms establishing such a court, and in the court's operation, that the court will
take no action infringing upon or diminishing their rights under the First and Fourth
Amendments of the Constitution of the United States, as interpreted by the United
States.
This
77
joint resolution was introduced on July 30, 1997 by Representatives Joseph P. Kennedy, James
A. Leach, William D. Delahunt, Fortney Pete Stark, Michael R. McNulty, Lane Evans, and Lynn
C. Woolsey. H.J. Res. 89 was referred to the House Committee on International Relations. It
received no further action.
P.L. 103-236, §§ 517-519 (April 30, 1994).
78
79Sen. Helms initially introduced three amendments, but the first was defeated. It would have
stricken the provision that supports the establishment of an international criminal court.
Legislat
80
ion relating to an international criminal court began with the 99th Congress and typically
incorporates two themes: 1) support for the establishment of an ICC and 2) the protection of U.S.
Constitutional guarantees. For a discussion of congressional action from the 99th -102nd Congress
(1985-1992), see An International Criminal Court?, Daniel Hill Zafren, CRS Report 93-298 A,
revised March 9, 1993.

CRS-25
Sen. Helms's concerns were based on his objections to the "internationalization of
justice" and encroachment upon the constitutional liberties of U.S. citizens. H
81
e
reiterated these concerns prior to the Rome Conference. In a letter to Secretary of
State, Madeline Albright, he again raised the issues of constitutional due process and
the judicial make-up of a court that would have
82
the power to sit in judgment of U.S.
citizens.
Implications
Despite U.S. efforts, some observers contend that many of the compromises
made to finalize the key provisions of the Rome Statute place U.S. national interests
at risk. As a result, the Clinton Administration is not prepared to sign the ICC Treaty
in its current form. Additionally, any subsequent consideration is unlikely unless
corrective measures are taken to amend the jurisdictional powers of the Court.
The political paradox created by the ICC provisions may have a direct
consequence on U.S. military alliance participation. The United States, as a major
contributor to international peacekeeping missions, is often called upon to commit
U.S. forces to such missions. Because the jurisdictional reach of the ICC may extend
to American citizens without U.S. consent, U.S. military leaders may be apprehensive
about future commitment of troops. Legal assurances by U.S. allies not to surrender
U.S. citizens to the Court via protective SOF provisions might abate this concern.
How might this affect our NATO military commitments? What effect will this have
on future U.S. peacekeeping and military operations? How will this effect our
relationship with allies or other treaty obligations? How will America respond if its
citizens are summoned before this international judicial institution?
The gap in international criminal justice has been repeatedly acknowledged as
have the complexities of creating a transnational tribunal melding various legal and
political systems. The efforts in Rome were a testament to these difficulties.
Although there is widespread agreement that individuals responsible for genocide,
ethnic cleansing, mass killings, torture, and other crimes against humanity should be
punished, the outstanding question is whether the Rome Statute in its present form
creates the proper judicial body to adjudicate these cases. If the ICC Treaty does not
come into force or takes years to establish, the sole international avenue to address
occurrences of war crimes or future cases of egregious international crimes remains
U.N. Security Council establishment of ad hoc tribunals as was done in the cases of
81The debate as to whether the creation of an international criminal court is unconstitutional is
beyond the scope of this report. However, the treatment of extradition proceedings under United
States law is frequently cited as an example of the constitutionality of U.S. citizens being charged
and adjudicated by foreign legal systems.
82Of particular concern is the possible eligibility of individuals from rogue countries to sit in
judgment of Americans. Article 36(4) of the ICC Treaty maintains that only nationals of States Party
to the treaty can be nominated to be judges. Rogue countries would first have to consent to the
jurisdiction of the Court. Additionally, before representatives of these countries could judge citizens
of other nations, they would have to be deemed qualified (Article 36 (3)) and elected by other States
Parties to the ICC Treaty (Article 36(5-6)).

CRS-26
the ICTY and the ICTR. Although these ad hoc tribunals provide a venue t
83
o
prosecute suspected perpetrators, the deterrent effect associated with a permanent
institution is not achieved. Some proponents argue that a permanent institution would
eliminate the need to continually establish ad hoc tribunals. They are concerned about
the effectiveness of conflict specific, ad hoc bodies created long after atrocities have
been committed.
The Administration must decide how to proceed during this interim period.
What course of action, if any, should it take toward the ICC Treaty? Although
Congress has no immediate direct role,84 it will expect to be consulted during this
decision making process. Expressions of congressional attitude toward various
policies can occur directly through legislation concerning the role of the United States
vis-à-vis the Court or indirectly via the “power of the purse.” Aside from these
possible congressional considerations, the Administration must consider its remaining
alternatives. Can the United States renegotiate problematic provisions of this
document before it enters into force? Can the United States influence its allies or
come to an understanding regarding the workings of the Court? What will result if
the United States chooses to do nothing by ignoring or not participating in the Court?
What type of relationship will result between the United States and an established
ICC? Ultimately, the Administration is left with the consequences of a document that
it views as flawed and a threat to U.S. national sovereignty.
The
83
United States continues to look at ad hoc tribunals as a way to address war crimes, particularly
in Iraq. In the 102 C
nd
ongress, the U.S. Senate passed the Persian Gulf War Criminals Prosecution
Act of 1991. It called for the “Permanent Representative of the United States to the United Nations,
to propose to the Security Council the establishment of an international criminal tribunal for the
prosecution of Persian Gulf criminals . . . .” If this effort fails, as an alternative, “the Congress urges
the President to work with the partners in the coalition of nations participating in Operation Desert
Storm to establish such a tribunal.” This bill was referred jointly to the House Committees on
Foreign Affairs and the Judiciary. Additionally, three congressional resolutions were introduced
in the 105th Congress pertaining to Iraq. All called for the adoption of a U.N. Security Council
resolution to establish an international criminal tribunal to prosecute Saddam Hussein. H. Con. Res.
137 was introduced on January 27, 1998, S. Res. 179 was introduced on February 23, 1998, and S.
Con Res. was introduced on March 2, 1998. None was adopted.
If
84
the Administration submits this treaty or an amended version of it, the Senate will ultimately
decide whether to give its advice and consent to ratification.

CRS-27
APPENDICES
Appendix A: Comparison of the U.S. position with the 60 LMS
PRINCIPAL ISSUES DIVIDING THE UNITED STATES AND
THE “60 LIKE-MINDED STATES”
United States
“Like-minded” nations
Role of the U.N.
Seeks to prohibit the
Supported what is
Security Council
ICC from proceeding
referred to as the
with a “situation” that
Singapore proposal
the U.N. Security
which allows the U.N.
Council is addressing
Security Council to
under its Chapter VII
delay or forestall an
powers, unless the UN
investigation with the
Security Council
support of all of the five
expressly states
permanent members of
otherwise. As a result,
the U.N. Security
each permanent member
Council.
of the U.N. Security
Council would have veto
authority over U.N.
Security Council case-
related investigations.
Independent Prosecutor
Only the U.N. Security
The ICC prosecutor
Council or an individual
should have the same
State should have the
authority as individual
authority to trigger case
States and the U.N.
investigations. The role
Security Council to
of the ICC Prosecutor
trigger case
should be to investigate
investigations. The
cases that are referred by
prosecutor may use
States or the U.N.
information obtained
Security Council.
from various sources to
proceed with an
investigation. This
includes, but is not
limited to individuals and
non-governmental
organizations.

CRS-28
PRINCIPAL ISSUES DIVIDING THE UNITED STATES AND
THE “60 LIKE-MINDED STATES”
United States
“Like-minded” nations
Internal Conflicts
War crimes committed
The ICC should have
during internal conflicts
the jurisdictional power
in pursuit of a "plan or
to investigate and
policy" should be within
prosecute all war crimes
the ICC’s jurisdiction,
committed in internal
but isolated incidents
conflicts.
should be excluded from
the purview of the
Court.
Universal Jurisdiction
The ICC should not have
The ICC should have
universal jurisdiction
universal jurisdiction
over alleged war
over alleged war
criminals if their home
criminals.
State is not a party to
the ICC Treaty or does
not give its consent to an
investigation.85
Automatic Jurisdiction
The ICC should only
The ICC should have
have automatic
automatic jurisdiction to
jurisdiction for the crime
prosecute all of the core
of genocide. Advocated
crimes, i.e. genocide,
a 10-year opt-out
war crimes and crimes
provision allowing
against humanity.
States that ratify the
treaty to "opt out" of
investigations pertaining
to war crimes or crimes
against humanity during
the opt-out period.
85The U.S. delegation officially reserved its position on acquiring State consent during the Rome
Conference pending the outcome of the role of the U.N. Security Council.

CRS-29
Appendix B: Administrative Structure of the ICC

Administration
of the ICC
Presidency
(President,
First Vice
Office of the
President, and
Prosecutor
Second Vice
President)
Deputy
Chambers
Registry
Prosecutor
Staff
Prosecutors

Victims and
Pre-Trial
Trial
Appeal
Staff
Investigators
Assistants
Witnesses Unit

Minimum of 6
Minimum of 6
President
4 judges
judges
judges

CRS-30
Appendix C: Pentagon Letter to Military Attaches
The Pentagon distributed a memorandum to more than 100 foreign military
attaches in Washington, D.C. on March 31 and April 1, 1998. Ministries of Defense
worldwide were asked to support the Pentagon’s positions on various proposed ICC
provisions. A reproduction follows.
Urgent Request for Engagement with Counterparts on the
International Criminal Court (ICC)
Rmks/1. This message has been cleared by the Department of State.
2. The USG [United States Government] supports in principle the creation of a
standing International criminal court to prosecute perpetrators of war crimes,
Genocide, and crimes against humanity. However, the proposed court, if not
constituted properly, could profoundly affect military troops and commanders.
International negotiations on the treaty to create the court are ongoing and will
culminate in a full diplomatic Conference to conclude negotiations on the treaty in
Rome in June-July 1998. JS/OSD [Joint Staff/Office of the Secretary of Defense]
have been closely involved in the work of the US delegation. However,
internationally this is the exception rather than the rule, as most delegations are made
up exclusively of MFA [Ministry of Foreign Affairs] representatives, with little if any
military participation.
3. Purpose: the intent of this message is to request addressees to engage their high
level military and ministry of defense contacts to facilitate maximum MOD/CHOD
[Ministry of Defense/Chief of Defense] and host nation command awareness of the
ICC issues and to garner support on key equities that are critical to all militaries.
CINCS [Commander-in-Chiefs] are asked to raise this issue during meetings with
their military counterparts and other appropriate foreign officials. Request CINCS
pass this message and guidance to USDRS [United States Defense
Representatives]/country reps to facilitate engagement with their military and MOD
contacts. DATTS [Defense Attaches], in coordination with chiefs of mission, should
discuss the issue with military commanders and high-level ministry of defense officials.
4. Background: with impetus from the Nuremberg trials, the concept of a permanent
ICC has been discussed since WWII. However, the effort was derailed by cold war
politics. Recent events, such as the UN Security Council forming war crimes tribunals
after the atrocities in Rwanda and the former Yugoslavia, provided momentum for
creating a permanent court. President Clinton (in two speeches at the UN and
recently in Kigali) and senior administration officials have publicly supported the
creation of the court.
5. Military equity: the primary military equity is to protect troops and commanders
from inappropriate investigation and prosecution. Unlike most treaty regimes, the
ICC would directly affect individual troops vice governments. Individual servicemen
and women could be vulnerable to inappropriate investigation and prosecution even
if a country had not joined the treaty, and even if their own military justice system had

CRS-31
investigated and acquitted or determined not to prosecute them. Therefore, troops
of all militaries could be affected, not just of those countries that sign the treaty.
6. The following talking points are provided to highlight critical issues and the US
positions on them in your discussions with counterparts:
A. Preventing and prosecuting war crimes, crimes against humanity and
genocide is a critically important priority for the U.S.
-- every nation has responsibility to prevent and punish war crimes. We should
all take our national and international responsibilities seriously, and hold others
accountable for doing the same.
-- we should also support international efforts in this regard. For example, the
US, and others, have provided important resources and personnel in support of the
Bosnia and Rwanda war crimes tribunals.
-- the U.S. is committed to replace the ad hoc approach to international war
crimes tribunals with a standing court that can address future Cambodias or
Yugoslavias.
B. States bear primary responsibility for prosecuting and punishing these crimes,
but this international system has been supplemented by ad hoc international tribunals.
The US supports complementing this system by establishing a permanent tribunal for
these crimes, which could fill gaps in national jurisdiction in those situations (such as
Bosnia or Rwanda) where a functioning national legal system is not available, whether
because of civil war, collapse of government or other breakdown. The ICC would
be available in such a circumstance, helping to deter war criminals who might
otherwise believe that the breakdown of government will allow them to evade
accountability.
C. Negotiations for an ICC are being conducted in New York 16 March to 3
April, and will culminate in a diplomatic conference to conclude a treaty in Rome in
July 1998. The US is committed to the successful establishment of a court. But we
are also intent on avoiding the creation of the wrong kind of court.
D. We are concerned that an ICC lacking appropriate limits and checks and
balances could be used by some governments and organizations for politically
motivated purposes. Since war crimes make up the majority of offenses subject to the
jurisdiction of the court, actions of armed forces are the most likely target of frivolous
referrals or politically-targeted or otherwise inappropriate prosecutions. We are
concerned about proposals that could subject military personnel of countries that
abide by the laws of armed conflict and have national mechanisms to enforce
compliance with them by their service members to ICC criminal investigation for
actual or threatened military action. We must preclude the creation of a so-called
'proprio motu' (independent) prosecutor with unbridled discretion to start
investigations. We are also especially concerned that some delegations have
supported overly broad and vague definitions of war crimes. We strongly recommend
that you take an active interest in the negotiations regarding an international criminal
court.

CRS-32
E. We have several specific concerns in the current negotiations:
Jurisdiction
States with highly developed national legal systems -- who have the right and duty to
investigate and, if appropriate, prosecute crimes the ICC will deal with -- should not
be overruled by the court.
-- the relationship of states to the court is one of central importance to the
United States. We have reserved on whether the state of the nationality of the
accused should have a prior right of consent to a prosecution. The draft treaty must
ensure that citizens are protected from arbitrary or frivolous charges, or any other
form of inappropriate investigation or prosecution.
-- appropriate jurisdictional provisions (complementarity) would require that the
ICC defer to a responsible state's right and duty to investigate and, if merited,
prosecute its nationals. We ask that you support our positions in this regard.
-- overall, the ICC scheme must ensure that the ICC cannot be a vehicle for
interfering with responsibilities of states with demonstrated ability to investigate and
discipline their service members who break the laws of armed conflict, or for
advancing politicized or controversial charges.
-- for example, many nations have well-developed systems of military and civilian
justice, and they take seriously preventing and prosecuting war crimes. If the
negotiations yielded a structure that allowed these nations' personnel to be brought
before the ICC in spite of the determinations of these nations' justice systems, they
would not have produced a well-conceived court. We would oppose a structure that
yielded such a result.
-- there should be an appropriate role in the exercise of ICC jurisdiction for the
UN Security Council, on which the members of the United Nations have conferred
primary responsibility for the maintenance of international peace and security. These
are crimes which by their nature implicate issues of international security.
-- the prosecutor should act only on cases that have been properly referred to the
ICC. However, he or she should have the necessary leeway to fully investigate and
prosecute cases that have been properly referred.
Definition of crimes
-- we also must protect the legitimacy of the court by limiting it to crimes that
are universally recognized as crimes and are firmly established in international law.
It must not be used to push the envelope of international law, or to advance the
definition of crimes that are themselves politically controversial.
-- the list of crimes must be limited to (1) war crimes, (2) genocide, and (3)
crimes against humanity. Moreover, a mere reference to customary norms is
insufficient and fosters excessive ambiguity. We ask that you specifically support the
inclusion of an annex listing specific elements for each crime.

CRS-33
-- we understand the laudable intent of some who would support inclusion of
the offense of aggression in the statute. However, this offense is necessarily political
in nature, and its inclusion only encourages use of the court as a political tool. The
concept of aggression as a crime by a person inevitably would be the subject of
dispute. Aggression can best and most effectively be handled by the UN Security
Council and international structures currently in place.
State cooperation and national security
The draft statute for an ICC naturally encourages state cooperation with court
requests for documents and evidence. However, the ICC's jurisdiction is primarily
over individuals, not states. A state's legitimate right to assert national security
reasons for refusing to turn over sensitive material should not be subject to a
contravening court order by the ICC. We encourage you to support a strong national
security exception to the statute's state cooperation regime.
Rules of evidence and procedure
Obviously this court will represent an amalgam of various criminal law traditions.
Rules of evidence and procedure are the nuts and bolts of justice. Regardless of the
substance of rules, we ask you to support us in recommending that they be made a
constituent part of the statute prior to its opening for signature, so that the rights of
potential defendants are not left to the vagaries of disparate judges.
F. We ask you to support these critical positions. MOD engagement is
particularly important because military personnel would be significantly affected by
an ICC.
(End talking points)
7. There remains only a short amount of time before the Rome Diplomatic conference
in June-July to raise awareness of this issue in the international military community
and ensure broad support for our concerns.
8. For DIA [Defense Intelligence Agency]. Request retransmit this message on DIA
AIGS [refers to selected group designations] 7008 and 7017 to all DIA DATTS.
9. OSD/JCS POCS [points of contact] for additional information: OSD:
Pedrozo/CDR/OUSDP/ [Office of the Under Secretary of Defense (Policy)](703)
614-9710; JCS: LTCOL Koslov, J-5[ Director for Strategic Plans and Policy], Global
Div, [redacted], dsn 227-5738, unclassified fax [redacted] {dsn 224}; or
MAJ Lietzau, OCJCS [Office of the Chairman of the Joint Chiefs of Staff] {Legal
Counsel}, [redacted] dsn 227).

CRS-34
Appendix D: Subject Matter Jurisdiction of the ICC
ICC Subject Matter Jurisdiction
Crime
Definition
Genocide
Any of the following acts committed with
intent to destroy, in whole or in part, a
national, ethnical, racial or religious group,
(Article 6)
as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to
members of the group;
(c) Deliberately inflicting on the group
conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent
births within the group;
(e) Forcibly transferring children of the
group to another group.

CRS-35
ICC Subject Matter Jurisdiction
Crime
Definition
Crimes Against Humanity
Any of the following acts when committed as
part of a widespread or systematic attack
directed against any civilian population, with
(Article 7)
knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of
population;
(e) Imprisonment or other severe deprivation
of physical liberty in violation of fundamental
rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual
violence of comparable gravity;
(h) Persecution against any identifiable
group or collectivity on political, racial,
national, ethnic, cultural, religious, gender as
defined in paragraph 3, or other grounds that
are universally recognized as impermissible
under international law, in connection with
any act referred to in this paragraph or any
crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar
character intentionally causing great
suffering, or serious injury to body or to
mental or physical health.

CRS-36
ICC Subject Matter Jurisdiction
Crime
Definition
War Crimes
1. The Court shall have jurisdiction in respect
of war crimes in particular when committed
as a part of a plan or policy or as part of a
(Article 8)
large-scale commission of such crimes.
2. For the purpose of this Statute, "war
crimes" means:
(a) Grave breaches of the Geneva
Conventions of 12 August 1949, namely, any
of the following acts against persons or
property protected under the provisions of the
relevant Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including
biological experiments;
(iii) Wilfully causing great suffering, or
serious injury to body or health;
(iv) Extensive destruction and appropriation
of property, not justified by military necessity
and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other
protected person to serve in the forces of a
hostile Power;
(vi) Wilfully depriving a prisoner of war or
other protected person of the rights of fair
and regular trial;
(vii) Unlawful deportation or transfer or
unlawful confinement;
(viii) Taking of hostages.
(b) Other serious violations of the laws and
customs applicable in international armed
conflict, within the established framework of
international law, namely, any of the
following acts:
(i) Intentionally directing attacks against the
civilian population as such or against
individual civilians not taking direct part in
hostilities;
(ii) Intentionally directing attacks against
civilian objects, that is, objects which are not
military objectives;

CRS-37
ICC Subject Matter Jurisdiction
Crime
Definition
(iii) Intentionally directing attacks against
personnel, installations, material, units or
vehicles involved in a humanitarian
assistance or peacekeeping mission in
accordance with the Charter of the United
Nations, as long as they are entitled to the
protection given to civilians or civilian
objects under the international law of armed
conflict;
(iv) Intentionally launching an attack in the
knowledge that such attack will cause
incidental loss of life or injury to civilians or
damage to civilian objects or widespread,
long-term and severe damage to the natural
environment which would be clearly
excessive in relation to the concrete and
direct overall military advantage anticipated;
(v) Attacking or bombarding, by whatever
means, towns, villages, dwellings or
buildings which are undefended and which
are not military objectives;
(vi) Killing or wounding a combatant who,
having laid down his arms or having no
longer means of defence, has surrendered at
discretion;
(vii) Making improper use of a flag of truce,
of the flag or of the military insignia and
uniform of the enemy or of the United
Nations, as well as of the distinctive emblems
of the Geneva Conventions, resulting in
death or serious personal injury;
(viii) The transfer, directly or indirectly, by
the Occupying Power of parts of its own
civilian population into the territory it
occupies, or the deportation or transfer of all
or parts of the population of the occupied
territory within or outside this territory;
(ix) Intentionally directing attacks against
buildings dedicated to religion, education,
art, science or charitable purposes, historic
monuments, hospitals and places where the
sick and wounded are collected, provided
they are not military objectives;
(x) Subjecting persons who are in the power
of an adverse party to physical mutilation or
to medical or scientific experiments of any
kind which are neither justified by the
medical, dental or hospital treatment of the

CRS-38
ICC Subject Matter Jurisdiction
Crime
Definition
persons;
(xi) Killing or wounding treacherously
individuals belonging to the hostile nation or
army;
(xii) Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemy's
property unless such destruction or seizure be
imperatively demanded by the necessities of
war;
(xiv) Declaring abolished, suspended or
inadmissible in a court of law the rights and
actions of the nationals of the hostile party;
(xv) Compelling the nationals of the hostile
party to take part in the operations of war
directed against their own country, even if
they were in the belligerent's service before
the commencement of the war;
(xvi) Pillaging a town or place, even when
taken by assault;
(xvii) Employing poison or poisoned
weapons;
(xviii) Employing asphyxiating, poisonous
or other gases, and all analogous liquids,
materials or devices;
(xix) Employing bullets which expand or
flatten easily in the human body, such as
bullets with a hard envelope which does not
entirely cover the core or is pierced with
incisions;
(xx) Employing weapons, projectiles and
material and methods of warfare which are of
a nature to cause superfluous injury or
unnecessary suffering or which are inherently
indiscriminate in violation of the
international law of armed conflict, provided
that such weapons, projectiles and material
and methods of warfare are the subject of a
comprehensive prohibition and are included
in an annex to this Statute, by an amendment
in accordance with the relevant provisions set
forth in articles 121 and 123;
(xxi) Committing outrages upon personal
dignity, in particular humiliating and
degrading treatment;

CRS-39
ICC Subject Matter Jurisdiction
Crime
Definition
sterilization, or any other form of sexual
violence also constituting a grave breach of
the Geneva Conventions;
(xxiii) Utilizing the presence of a civilian or
other protected person to render certain
points, areas or military forces immune from
military operations;
(xxiv) Intentionally directing attacks against
buildings, material, medical units and
transport, and personnel using the distinctive
emblems of the Geneva Conventions in
conformity with international law;
(xxv) Intentionally using starvation of
civilians as a method of warfare by depriving
them of objects indispensable to their
survival, including wilfully impeding relief
supplies as provided for under the Geneva
Conventions;
(xxvi) Conscripting or enlisting children
under the age of fifteen years into the
national armed forces or using them to
participate actively in hostilities.
(c) In the case of an armed conflict not of an
international character, serious violations of
article 3 common to the four Geneva
Conventions of 12 August 1949, namely, any
of the following acts committed against
persons taking no active part in the
hostilities, including members of armed
forces who have laid down their arms and
those placed hors de combat by sickness,
wounds, detention or any other cause:
(i) Violence to life and person, in particular
murder of all kinds, mutilation, cruel
treatment and torture;
(ii) Committing outrages upon personal
dignity, in particular humiliating and
degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the
carrying out of executions without
previous judgement pronounced by a
regularly constituted court, affording
all judicial guarantees which are generally
recognized as indispensable.

CRS-40
ICC Subject Matter Jurisdiction
Crime
Definition
(d) Paragraph 2 (c) applies to armed
conflicts not of an international character and
thus does not apply to situations of internal
disturbances
and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a
similar nature.
(e) Other serious violations of the laws and
customs applicable in armed conflicts not of
an international character, within the
established framework of international law,
namely, any of the following acts:
(i) Intentionally directing attacks against the
civilian population as such or against
individual civilians not taking direct part in
hostilities;
(ii) Intentionally directing attacks against
buildings, material, medical units and
transport, and personnel using the distinctive
emblems of the Geneva Conventions in
conformity with international law;
(iii) Intentionally directing attacks against
personnel, installations, material, units or
vehicles involved in a humanitarian
assistance or peacekeeping mission in
accordance with the Charter of the United
Nations, as long as they are entitled to the
protection given to civilians or civilian
objects under the law of armed conflict;
(iv) Intentionally directing attacks against
buildings dedicated to religion, education,
art, science or charitable purposes, historic
monuments, hospitals and places where the
sick and wounded are collected, provided
they are not military objectives;
(v) Pillaging a town or place, even when
taken by assault;
(vi) Committing rape, sexual slavery,
enforced prostitution, forced pregnancy, as
defined in article 7, paragraph 2 (f), enforced
sterilization, and any other form of sexual
violence also constituting a serious violation
of article 3 common to the four Geneva
Conventions;
(vii) Conscripting or enlisting children under
the age of fifteen years into armed forces or

CRS-41
ICC Subject Matter Jurisdiction
Crime
Definition
(viii) Ordering the displacement of the
civilian population for reasons related to the
conflict, unless the security of the civilians
involved or imperative military reasons so
demand;
(ix) Killing or wounding treacherously a
combatant adversary;
(x) Declaring that no quarter will be given;
(xi) Subjecting persons who are in the power
of another party to the conflict to physical
mutilation or to medical or scientific
experiments of any kind which are neither
justified by the medical, dental or hospital
treatment of the person concerned nor carried
out in his or her interest, and which cause
death to or seriously endanger the health of
such person or persons;
(xii) Destroying or seizing the property of an
adversary unless such destruction or seizure
be imperatively demanded by the necessities
of the conflict;
(f) Paragraph 2 (e) applies to armed conflicts
not of an international character and thus
does not apply to situations of internal
disturbances
and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a
similar nature. It applies to armed conflicts
that take place in the territory of a State when
there is protracted armed conflict between
governmental authorities and organized
armed groups or between such groups.
3. Nothing in paragraphs 2 (c) and (d) shall
affect the responsibility of a Government to
maintain or re-establish law and order in the
State or to defend the unity and territorial
integrity of the State, by all legitimate means.

CRS-42
ICC Subject Matter Jurisdiction
Crime
Definition
Aggression
The Court shall exercise jurisdiction
over the crime of aggression once a
provision is adopted in accordance
with articles 121 and 123 defining the
crime.

CRS-43
Appendix E: War Tribunal Comparison Chart
Organizational and Procedural Distinctions between War Crimes Tribunals
Nuremberg
Tokyo
ICTY
ICTR
ICC
Organization
Creating Entity
Allied Powers of
Special
U.N. Security
U.N. Security
U.N. Diplomatic
World War II
proclamation by the
Council
Council
Conference
Supreme
Commander of the
Allied Powers,
Douglas MacArthur
Creation Method
Charter
Charter
U.N. Security
U.N. Security
Treaty
Council Resolution
Council Resolution
827
955
Mandate
To prosecute
To prosecute Far
To prosecute
To prosecute
To prosecute
German atrocities
Eastern atrocities
persons responsible
persons responsible
persons responsible
committed in
committed during
for serious
for serious
for the most serious
Occupied Europe
World War II.
violations of
violations of
crimes of
during World War
international
international
international
II.
humanitarian law
humanitarian law
concern.
committed in the
committed in the
territory of the
territory of Rwanda
former Yugoslavia
and Rwandan
since 1991.
citizens responsible
for such violations
committed in the
territory of
neighboring states
during 1994.

CRS-44
Organizational and Procedural Distinctions between War Crimes Tribunals
Nuremberg
Tokyo
ICTY
ICTR
ICC
Subject Matter
1) Crimes against
1) Crimes against
1) Grave breaches of
1) Genocide
1) Genocide
Jurisdiction
peacea
peaceb
the 1949 Geneva
2) Crimes against
2) Crimes against
2) War crimes
2) Conventional war
Conventions
humanity
humanity
3) Crimes against
crimes
2) Violations of the
3) Violations of
3) War crimes
humanity
3) Crimes against
laws or customs
Article 3 common
4) Aggression
humanity
of war
to the Geneva
3) Genocide
Conventions and
4) Crimes against
of Additional
humanity
Protocol II.
Established
August 8, 1945
January 19, 1946
May 23, 1993
November 8, 1994
Not in force
Adjudication Period
November 1945-
1946-1949
Ongoing
Ongoing
Not in force
October 1946
Chambers
1) Military Tribunal
1) Military Tribunal
1) Trial
1) Trial
1) Pre-Trial
2) Appeals
2) Appeals
2) Trial
3) Appeals
Judges
4c
11d
14e
14e
18
Prosecutor(s)
4
1f
1g
1g
1
Crimes against peace included "[the] planning, preparation, initiation or waging of a war of aggression
a
."
This definition was expanded to include "[the] planning, preparation, initiation or waging of a
b
declared or undeclared war of aggression."
The tribunal consisted of four judges from the four Allied Powers, the United States, Great Britain, France, and the Soviet Union.
c
The
d
tribunal was composed of judges from the eleven nations that had been at war with Japan, namely: Australia, Canada, China, Great Britain, the Netherlands,
New Zealand, Soviet Union, United States, France, India, and the Phillippines.
The ICTY and ICTR share the same Appeals Judges.
e
The
f
Chief Commander of the Allied Powers appointed an American as Chief Counsel. Each of the countries that had been at war with Japan could appoint an
Associate Counsel.
The ICTY and ICTR share the same Chief Prosecutor, currently Justice Louise Arbour (Canada).
g

CRS-45
Organizational and Procedural Distinctions between War Crimes Tribunals
Nuremberg
Tokyo
ICTY
ICTR
ICC
Funding
Allied Powers
Allied Nations
1)U.N. regular
1) U.N. regular
1)State Parties
budget
budget
2)United Nations
2) Voluntary
2) Voluntary
3)Voluntary
contributions
contributions
contributionsh
Location
Nuremberg,
Tokyo, Japan
Hague in the
Arusha, Tanzania
Hague in the
Germany
Netherlands
Netherlands
Procedures
Statute of
none
none
none
none
nonei
limitations
Case referrals
Allied Powers
Allied Nations
1) U.N. Security
1) U.N. Security
1) State Parties
Council
Council
2) U.N. Security
2) Prosecutor
2) Prosecutor
Council
3) Prosecutor
Trials in abstentia
Yes
Yes
No
No
No
Right against self-
No
No
Yes
Yes
Yes
incrimination
Right to confront
Noj
No
Yesk
Yes
Yes
accusor(s)
Right to examine
No
No
Yes
Yes
Yes
evidence
Voluntary contributions may be made by Governments, international organizations, individual, corporations, and other entities.
h
iOnce the treaty enters into force.
jThe extensive use of ex parte affidavits did not give the accused the opportunity to test the veracity of his accusors.
Alt
k
hough the resolution grants the defendant the right to confront his or her accusor, the Trial Chamber has ruled in the Dusko Tadic case that the identity of
several witnesses could be withheld indefinitely.

CRS-46
Organizational and Procedural Distinctions between War Crimes Tribunals
Nuremberg
Tokyo
ICTY
ICTR
ICC
Rules of procedure
Yes
Yes
Yesl
Yesl
Yesm
and evidence
Protection against
No
No
Yesn
Yes
Yes
double jeopardy
Specified crimes
No
No
Yes
Yes
Yes
against women
Right to an appeal
No
No
Yes
Yes
Yes
Court of Appeals
No
No
Yeso
Yes
Yes
Maximum Penalty
Death
Death
Life imprisonment
Life imprisonment
Life imprisonment
lThe ICTY and ICTR share the same Rules of Procedure.
Art
m
icle 51 of the Rome Statute provides for Rules of Procedure. A two-thirds majority of members of the Assembly of States must approve the rules prior to
its entry into force.
nAlthough the Statute protects against double jeopardy, the Prosecutor may appeal an acquittal creating a scenario where an individual may be tried twice.
A separate Court for Appeals is provided for in the Statute, but because judges rotate between chambers, arguably the Appeals Court is inherently invalid.
o

EveryCRSReport.com
The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the
Library of Congress, charged with providing the United States Congress non-partisan advice on
issues that may come before Congress.
EveryCRSReport.com republishes CRS reports that are available to al Congressional staff. The
reports are not classified, and Members of Congress routinely make individual reports available to
the public.
Prior to our republication, we redacted names, phone numbers and email addresses of analysts
who produced the reports. We also added this page to the report. We have not intentional y made
any other changes to any report published on EveryCRSReport.com.
CRS reports, as a work of the United States government, are not subject to copyright protection in
the United States. Any CRS report may be reproduced and distributed in its entirety without
permission from CRS. However, as a CRS report may include copyrighted images or material from a
third party, you may need to obtain permission of the copyright holder if you wish to copy or
otherwise use copyrighted material.
Information in a CRS report should not be relied upon for purposes other than public
understanding of information that has been provided by CRS to members of Congress in
connection with CRS' institutional role.
EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim
copyright on any CRS report we have republished.