18/19, T. Kolu, ‘United States and the International Criminal Court’s Jurisdiction over Non-Party State Nationals: A Critical Assessment of The US Position in regard to the ICC’s Jurisdiction over Non-Party State Nationals in light of the Afghanistan Situation’

Author: Tuisku Kolu


  1. Introduction

On the 3rd of November 2017, the International Criminal Court’s (ICC) Prosecutor Bensouda requested the Pre-Trial Chamber (PTC) to authorise a formal investigation into the situation in Afghanistan,[1] which would mark the first investigation into United States(US) nationals by the ICC. This is of relevance to the international legal field, as the US has long opposed the inclusion of US nationals within the jurisdiction of the Court. Due to the current vehemence of the US against the ICC and the scrutiny of the international community, the decision of the PTC may have a considerable impact on the future of the Court. The Trump Administration has taken a notably hostile approach towards the ICC in reaction to this.  In September 2018, John Bolton, the US national Security Advisor, made a speech at the Federalist Society, regarding the ICC’s potential authorisation of the Afghanistan investigation. This included several threats for specific action against the staff of the ICC and States which cooperate with the Court, and stating that the US would take ‘any means necessary’ to retrieve a detained US national expected to face proceedings before the ICC. These threats are supported by the claim that the ICC launching proceedings against US citizens is unjustified and illegal.[2] Although an extensive subject regarding several elements of legal consideration, this paper will focus on the claim that it is inadmissible under international law for the ICC to claim jurisdiction over nationals who are not party to the Rome Statute, when committing crimes on the territory of a Party State. In assessing this, it will be illustrated that this position is incompatible with a proper application of international law. While this discussion is limited in the interest of conciseness, this evaluation is written as an illustration of the legal issues at hand in the current hostility of the US to the international legal order, and how international law can be used as a scope to question the statements and actions of States.

  1. Jurisdiction over Nationals of Non-Party States

When discussing the Courts ability to claim jurisdiction over crimes committed by US nationals on the territory of Party States, John Bolton stated:

“The Court in no way derives these powers from any grant of consent by non-parties to the Rome Statute. Instead, the ICC is an unprecedented effort to vest power in a supranational body without the consent of either nation-states or the individuals over which it purports to exercise jurisdiction.” [3]

This claim is often reiterated by many opponents of the Court, arguing that the ICC’s jurisdiction for investigation and prosecution of Non-Party States’ nationals is invalid under treaty law without the consent of that State. Here, it will argued that the ICC does not require Non-Party State consent to exercise jurisdiction over crimes committed by individuals on the territory of Party States, as this power derives from the territorial jurisdiction of the Party State where the alleged crime was committed. This will be illustrated in three parts: First, the point of contention in the US position regarding jurisdiction under the Rome Statute and the relevant treaty law rule will be briefly clarified. Second, it will be illustrated that ICC jurisdiction over Non-Party nationals is not in violation of the treaty law principle in question, but rather derives from territorial jurisdiction. Third, it will be illustrated that delegation of criminal jurisdiction by States in international treaties over nationals of Non-Party States to international tribunals without that State’s consent is supported in international precedent.

2.1 ICC Jurisdiction and International Treaty Law

The former U.S. Ambassador-at-Large for War Crime Issues, David Scheffer, testified in 1998 that a treaty which gives the power to an international court to prosecute an individual, whose State of nationality is not a Party to said treaty, for actions overseas is “contrary to the most fundamental principles of treaty law.”[4] This claim refers to the jurisdiction set in Article 12(2)(a) of the Rome Statute, which allows the ICC to exercise jurisdiction over an individual if the alleged crime occurred on the territory of a Party State, [5] without a requirement of consent from the State of nationality, even when this State is not party to the Statute.[6] In regard to the ‘most fundamental principles of treaty law’, Schaffer is referring to Article 34 of the Vienna Convention of the Law of Treaties (VCLT) which establishes the principle that a treaty cannot bind a non-Party State without their consent.[7]

2.2 Basis in Party State Territorial Jurisdiction

Article 12(2) (a) of the Rome Statute does not violate article 34 of VCLT, as this does not establish a binding obligation or right to the relevant non-Party State. Article 12(2)(a) does not impose obligations on Non-Party States, but rather establishes the ICC’s jurisdiction over individuals in the territory of State Parties. Hence, it relates to the obligations of individuals and is not in violation of treaty law. While the prosecution of a national may affect their State’s interests, this does not equate to an obligation. Though it can be argued that principles of law established in the Rome Statute, such as complementarity, create incentives for Non-Party States to take certain actions to avoid negative affects to their interests, this does not impose an obligation with consequential legal responsibility for failing to take such actions. In establishing jurisdiction over international crimes committed on the territory of Party States, Article 12(2)(a) effectively delegates the territorial jurisdiction of Party States to the ICC.[8] Territorial jurisdiction is a well-known principle of international law, where individuals are subject to the criminal jurisdiction of the State whose territory they are in, including that which arises from a treaty obligation acceded to by the territorial State. While one could argue that a State has a sovereign interest tied to its nationals, this does not provide basis for exclusive criminal jurisdiction when they are abroad.[9] When an individual travels abroad they are held accountable to the law of the State they are in.

2.3 Delegation of Criminal Jurisdiction

The US position that the exercise of jurisdiction by the ICC over Non-Party State nationals is illegal without State consent has been further supported by two arguments regarding the delegation of criminal jurisdiction by the Party States. First, it is claimed that States do not possess the power to delegate criminal jurisdiction over non-nationals without the State of nationality’s consent. Second, it is argued that an international tribunal does not have the authority to exercise jurisdiction over Non-Party State nationals over acts that were committed in the pursuit of official state policy. An analysis of international precedent, however, can dispel both positions.

2.3.1 Legality of Delegation

Advocates for the US position argue that it is illegitimate for a State to delegate their criminal jurisdiction over non-nationals without their State’s consent.[10] However, when assessing international principle and precedent, it appears valid and common in international law for such delegation to take place.[11] First, this claim does not take into account the plethora of treaties in which States do exactly that. For example, the US itself is party to many such treaties, including: the 1949 Geneva Conventions, the 1958 Law of the Sea Convention, the 1970 Hijacking Convention, and the 1979 Hostage Taking Convention.[12] US courts have asserted extensive jurisdiction based on these.[13] For example, in the case of United States v Yunis, the United States Court of Appeals asserted jurisdiction over a national of a Non-Party State (without that State’s consent) for hijacking a foreign plane in a Party State.[14] Nearly all States are party to at least one treaty permitting delegation of criminal jurisdiction in this manner, and have shown particular willingness to do so with regard to crimes that concern the international community as a whole.[15]

However, advocates of the US position maintain that even if such delegation is permitted between States, it is invalid under international law for States to delegate domestic criminal jurisdiction to an international tribunal. This is because the consequence of a judgment by an international tribunal is fundamentally different to that of a foreign domestic court, due to the greater political impact and weight of the judgment. Therefore, the ability to delegate jurisdiction between States over crimes of international concern without the consent of the State of nationality cannot be equivalent to customary law affirming delegation of jurisdiction to international tribunals.[16] However, where States are able to individually prosecute crimes of concern to the international community without territorial or national nexus, it logically follows that States should have the ability to take collective action in regard to those concerns, absent a specific rule to the contrary. Such collective action could take the form of setting up an international tribunal with the joint authority of those States to prosecute such crimes, like the ICC.[17] Not only is there no rule to the contrary, precedent supports such collective action. There are several instances of delegation of criminal jurisdiction by States through treaty to international tribunals, including over nationals of Non-Party States without said State’s consent,[18] two of which will be briefly considered.

First, The ICTY was created by Security Council resolution[19] under its Chapter VII powers in the UN Charter, exercising the powers delegated to it by UN Member States collectively. The ICTY’s ultimate legal basis is Article 25 of the UN Charter.[20] At the time, the Federal Republic of Yugoslavia (FRY) was not a member of the UN, and hence not party to the Charter.[21] In particular, FRY did not consent to the exercise of jurisdiction in relation to Kosovo,[22] and the ICTY reported to the Security Council repeatedly that FRY obstructed its work there.[23] Hence, this was an international tribunal that was ultimately treaty based, to which jurisdiction was delegated over nationals of a Non-Party State without that State’s consent.[24] The US was heavily involved with the establishment of the ICTY.[25]

Second, the Special Court of Sierra Leone (SCSL) was created under a treaty between the UN and Sierra Leone for serious international crimes committed on its territory.[26] The Court’s Statute did not limit its jurisdiction concerning non-nationals. This led to the successful prosecution of Charles Taylor, a non-national and the head of State of Liberia, for participation in the armed conflict in Sierra Leone.[27] Liberia did not consent to this.[28] Hence, this illustrates another treaty based tribunal, to which jurisdiction was delegated over nationals of a Non-Party State without that State’s consent, with support from the US.[29]

Both of these examples illustrate that States, including the US, have created and supported international tribunals with delegated criminal jurisdiction over nationals of Non-Party States without that State’s consent, suggesting the general acceptance of the lawfulness of such delegation.[30]

2.3.2 Acts of Official State Policy

Some further contend that an international tribunal cannot lawfully be delegated criminal jurisdiction over acts committed by nationals of a Non-Party State in pursuit of an official State policy, as such a case would have considerable implications to the interests of that State.[31] Particularly due to the nature of international crimes, it is reasonable to assert that cases before the ICC will relate to questions of the legality of State acts and policy. An adverse decision may cause political embarrassment, particularly when the decision suggests that an official State policy was unlawful. Arguably, although the case is formally an exercise of jurisdiction over the individual, the State of nationality is also implicated as a party to the dispute due to the subject matter at hand. As such, the Court would effectively wield jurisdiction over the State without its consent. Therefore, the delegation of such a case would violate the Monetary Gold doctrine, requiring that an international tribunal cannot exercise jurisdiction where a Non-Party State’s rights and responsibilities form the very subject matter of the dispute without State consent.[32]

However, in the case of the ICC, this doctrine would not be violated, even where the accused acted in pursuant an official State policy of a Non-Party State. The Monetary Gold doctrine renders a case inadmissible where a judgment requires a court to decide on the rights and responsibilities of the Non-Party State without its consent.[33] The ICC, in deciding cases that include acts in pursuit of an official State policy, is not required to make pronouncements on the responsibility of that State. This is because the very purpose of international criminal responsibility is to separate the responsibility of individuals who ordered, directed or committed the crimes from the responsibility of the State. While State responsibility may flow from crimes done in pursuit of official policy, the ICC does not engage in determinations about a State’s legal responsibility, and does not need to do so to convict individuals for war crimes, crimes against humanity or genocide. While crimes against humanity and genocide may require evidence of larger scale planning and preparation by a collective body – potentially a State – the definition of those crimes is not dependent on establishing the legal responsibility of said body.[34] While those committing war crimes could be soldiers or officials acting in pursuit of official State policy,[35] this also does not require the pronouncement of the State’s legal responsibility.

Hence, the pronouncement of an individual’s criminal responsibility does not require a decision regarding the State’s. This position is entrenched in the Rome Statute, which states in Article 25(4): “No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.” Note, though an ICC judgment may have political repercussions, a case is not rendered inadmissible because it only implicates the interests of a Non-Party State.[36]

  1. Concluding Remarks

The ICC can legally exercise jurisdiction over Non-Party State nationals where they have committed international crimes on the territories of Party States without the State of nationality’s consent. This authority derives from the territorial criminal jurisdiction of the Party States and as such does not place obligations on Non-Party States, and is not in violation international treaty law. Moreover, the delegation of criminal jurisdiction by States over non-nationals to international tribunals is established in precedent, and it is not made inadmissible through the Monetary Gold doctrine simply by involving the interests of the Non-Party State. Therefore, the fact that a national of a Non-Party State committed the alleged crimes on the territory of a Party State would not render an investigation or charges inadmissible and this jurisdiction remains valid. The opposition of the US against investigations into its own nationals must be considered in light of the role the US has played in the development of international criminal law previously. For example, it has contributed to the formation of the ad hoc tribunals of Yugoslavia, Rwanda, and the SCSL. Notably, the US has promoted international accountability, but only where these bodies have a limited jurisdictional reach that does not include US nationals. The current hostility towards accountability for international crimes committed by its own nationals renders the US’s position as questionable. In its previous role of contributing to the growth of international justice, the US must consider the loss it will suffer to its legitimacy at the international level, in its attempts to fight against the investigation of war crimes. This joins one of many recent moves by the US, which has brought much of the international community to question any reliance that should be placed with the contentious nation.

[1] ICC, Public redacted version of “Request for authorisation of an investigation pursuant to article 15”, 20 November 2017, ICC-02/17-7-Conf-Exp (PTC III), from the ICC database at https://www.icc-cpi.int/CourtRecords/CR2017_06891.PDF Accessed 18/10/2018 (Request for Authorization)

[2] John Bolton, Speech at the Federalist Society: ‘Protecting American Constitutionalism and Sovereignty from International Threats’, (10/09/2018), from Just Security database at https://www.justsecurity.org/60674/national-security-adviser-john-bolton-remarks-international-criminal-court/ Accessed 21/09/2018

[3] Bolton Speech (n2)

[4] David Scheffer’s statement in… Hearing Before the Subcommittee on International Operations of the Committee on Foreign Relations United States Senate (July 23/07/1998), 105th Congress 2nd Session, S.HRG.105-724, from Us Government Publishing Office database at https://www.govinfo.gov/content/pkg/CHRG-105shrg50976/pdf/CHRG-105shrg50976.pdf Accessed 18/10/2018, p.13

[5] Rome Statute of the International Criminal Court,(17/07/1998) ISBN No. 92-9227-227-6,  art 12(2)(a)

[6] Request for Authorization (n1), para.44

[7] Vienna Convention on the Law of Treaties, (23/05/1969) United Nations, Treaty Series, vol.1155/No.18232, (VCLT), p.331

[8] Dapo Akande, ‘The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits’ (2003), Vol.1/Issue.3  Journal of International Criminal Justice, p.610-650, at https://academic.oup.com/jicj/article/1/3/618/2188874 Accessed 26/11/2018, p.620-1

[9] Michael P. Scharf, ‘the ICC’s Jurisdiction Over the Nationals of Non-Party States: A Critique of the U.S. Position’, (2001). Paper.257, Case Western Reserve University Faculty Publications, p.69-117, at http://scholarlycommons.law.case.edu/faculty_publications/257 Accessed 18/10/2018, p.72-75, 98, 110

[10] Madeline Morris, ‘High Crimes and Misconceptions: the ICC and Non-Party States’ (2001), Vol. 64/No.1, Law and Contemporary Problems, p.13-66 at  https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1200&context=lcp Accessed 13/12/2018, p.27; Ruth Wedgwood, ‘The Irresolution of Rome’(2001), Vol.63/No.1, Law and Contemporary Problems, p. from Duke Law Scholarship Repository, p.139-215 at https://scholarship.law.duke.edu/lcp/vol64/iss1/10/ Accessed 05/12/2018, p.199-200

[11] Akande (n8), p.622

[12] For more see: Scharf (n9), p.99; Akande (n8), p.623-624

[13]  Scharf (n9), p.101; Akande (n8), p.624

[14] United States v Yunis, Appeal of conviction, 924 F2d 1086, No 89-3208, 288 US App DC 129, ILDC 1476 (US 1991), 29th January 1991, US

[15] Akande (n8), p.624-5

[16] Morris (n10), p.29-47

[17] Akande (n8), p.626

[18] For breakdown of examples see Akande (n8), p.627-633

[19] UN Security Council, Security Council resolution 827 (1993) [International Criminal Tribunal for the former Yugoslavia (ICTY)], 25/05/1993, S/RES/827 (1993), from RefWorld database at https://www.refworld.org/docid/3b00f21b1c.html Accessed 05/10/2018

[20] Akande (n8), p.628

[21] See UN Security Council, Security Council resolution 777 (1992) [Federal Republic of Yugoslavia], 19/09/1992, S/RES/777 (1992), from RefWorld database at https://www.refworld.org/docid/3b00f2832c.html Accessed 21/10/2018; and UN General Assembly, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 03/02/1992, A/RES/47/135,GA Res. 47/1(1992), from RefWorld database at https://www.refworld.org/docid/3ae6b38d0.html Accessed 21/10/2018

[22] Akande (n8), p.630-1

[23] For example see:  ICTY OTP, ‘Statement by the Office of the Prosecutor: “The Prosecutor does not accept the refusal by the FRY to allow Kosovo investigations”’, ICTY Press Release CC/PIU/351-E (7 October 1998), from ICTY online archives at http://www.icty.org/en/press/statement-office-prosecutor-prosecutor-does-not-accept-refusal-fry-allow-kosovo-investigations Accessed 10/12/2018; Gabrielle Kirk McDonald, ‘Letter from President McDonald to the President of the Security Council.’, ICTY Press release JL/PIU/356-E(22 October 1998), from ICTY online archives at http://www.icty.org/en/press/letter-president-mcdonald-president-security-council Accessed 10/12/2018; Gabrielle Kirk McDonald, ‘Judge Gabrielle Kirk McDonald, President of the International Criminal Tribunal for the Former Yugoslavia addresses the United Nations Security Council.’, ICTY Press Release JL/PIU/371-E (8 December 1998), from ICTY online archives at http://www.icty.org/en/press/judge-gabrielle-kirk-mcdonald-president-international-criminal-tribunal-former-yugoslavia Accessed 10/12/2018

[24] Akande (n8), p.629

[25] John P. Cerone, ‘Dynamic Equilibrium: The evolution of Us Attitudes towards International Criminal Courts and Tribunals’(2007), Vol.18/No.2, European Journal of International Law, p.277–315, at https://academic.oup.com/ejil/article/18/2/277/361986 Accessed 10/12/2018, p.288-290

[26] Agreement Between The United Nations and the Government of Sierra Leone on the Establishment of a special Court for Sierra Leone(SCSL) (16/01/2002), from SCSL database at http://www.rscsl.org/Documents/scsl-agreement.pdf Accessed 10/12/2018

[27] Prosecutor v. Charles Ghankay Taylor (Judgement), SCSL-03-1-T, SCSL, 18/05/2012, from SCSL database at http://www.rscsl.org/Documents/Decisions/Taylor/1283/SCSL-03-01-T-1283.pdf Accessed 15/11/2018

[28] Liberia challenged this regarding immunity before the ICJ: ICJ Press Release No.2003/26 (05/09/2003), from ICJ database, at https://www.icj-cij.org/files/press-releases/0/000-20030805-PRE-01-00-EN.pdf Accessed 10/12/2018

[29] Among other shows of support such as financial contribution, the US voted in favor of establishing the Court in the UN Security Council, Security Council resolution 1315 (2000) [on establishment of a Special Court for Sierra Leone], 14/08/2000, S/RES/1315 (2000), from Refworld database at https://www.refworld.org/docid/3b00f27814.html Accessed 20/10/2018; Cerone (n25), p.305

[30] Akande (n8),, p.634

[31] Morris(n10), p.14-15, 20-21, 25; Wedgwood (n10), p.199-200

[32] Monetary Gold Removed From Rome in 1943 (Italy v France, United Kingdom and United States),(15/06/1954) Judgment, ICJ Reports 1954, General List No.19, (ICJ), from WorldCourts database at  http://www.worldcourts.com/icj/eng/decisions/1954.06.15_monetary_gold.htm Accessed 15/11/2018, (Monetary Gold) para.19; Akande (no.8), p625;

[33] Monetary Gold (n34), para.37

[34] The nexus requirement for genocide is under art 6 (intent to destroy group), and for crimes against humanity under art 7 (widespread or systematic attack) of the Rome Statute.

[35] Akande (n8), p.634

[36] Akande (n8), p.635-367

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