One of the key principles of criminal law is that its substance and reach should be public and transparent. But that’s not always the case with international criminal law—at least, not when the law is made on the hoof in a diplomatic rush.
Thus, while the Obama administration has struck a friendly tone toward the decade-old International Criminal Court and its penal jurisdiction over various acts of war, it will need to be mindful that the Court’s long-arm jurisdiction may reach to unexpected places and protagonists. When the bell tolls, it may affect our own troops.
One of the curious features of the so-called “Rome Statute” of the Hague-based International Criminal Court—created in a five-week treaty conference in July 1998, and now enjoying a new prosecutor who hails from South Africa—is an unprecedented “looking backward” jurisdictional rule that purports to authorize the Court to investigate and prosecute wartime events occurring even before the country in question joined the court. This oddity—article 12(3)—was added to the treaty in the midnight hours, on the very last night of the conference, by an unnamed member of the treaty “Bureau,” without any chance for discussion or debate before an adopting vote was taken on the whole text the next morning. It has no legislative history and no named author.
In particular, article 12(3) of the Rome treaty allows a state to hang outside the treaty regime until it believes it has an actionable case against another party—at which time the state can retrospectively authorize the court to proceed “with respect to the crime in question.” This type of “pick-and-pay” was seen by at least some observers to have the potential for abuse since a strategic player could attempt to limit the court’s jurisdiction to focus only on the alleged misdeeds of its adversary, without regard to its own behavior. This fault was conceded by the treaty parties after the fact, with the adoption of a post-Rome procedural rule that requires the court’s registrar to warn the referring party that sauce for the goose is sauce for the gander – i.e., that its own goose may be cooked. In particular, the rule states that a whole “situation” would be subject to investigation and potential prosecution by the Court.
The maladroit nature of this treaty article was noted by at least one commentator shortly after the Rome treaty was adopted. The after-the-fact patchwork rule seemed to quiet the matter, but only until a military conflict erupted in the Gaza Strip between Israel and the de facto Hamas authorities from December 2008 to January 2009. The UN Human Rights Council soon appointed former Yugoslav tribunal prosecutor Richard Goldstone to engage in a quick-step report on the facts of the conflict, an exercise that Judge Goldstone later frankly conceded was hurried and constrained by the presence of Hamas forces in the very setting where testimony had to be taken. Soon after the military operation, a delegation of the Palestinian National Authority (PNA) also visited the Hague court to demand that an international criminal investigation be opened under article 12(3) of the Rome Statute. This was, perhaps, an abstract attempt by the PNA to assert authority in a setting where Hamas had almost entirely usurped its power. But it posed the question whether there would be a one-legged stool on which the International Criminal Court would sit in an attempt to investigate Israel’s military conduct while leaving Hamas alone.
This vexing referral sat in the former ICC prosecutor’s inbox for more than two years until his term was over—running down the clock, so it seemed, to avoid political controversy for the court. Unusual for a justice official, he conducted numerous ‘public’ consultations and debates on the matter, including at academic conferences. But only on the immediate eve of his departure from The Hague in late 2011 did the prosecutor—a politically-agile Argentinian lawyer named Luis Moreno-Ocampo—announce that he had concluded that the referral could not be entertained because Palestine was not yet a state within the sense of the Rome treaty, and therefore was not eligible to make use of article 12(3).
Nonetheless, Mr. Ocampo openly invited the General Assembly to consider the admission of a Palestinian state as a non-member observer at the United Nations—plainly suggesting that even less than full UN membership might suffice for a future criminal referral, and that a General Assembly vote itself could create the legal status of statehood.
The departing prosecutor, with a foot out the door, did not discuss the Madrid Roadmap process for peace, and its provision that statehood was a matter for final round negotiations—to be handled only after security on the ground was well established—nor did he discuss the fact that UN membership requires the concurrence of the five permanent members of the UN Security Council (consensus that was absent given US opposition). The General Assembly promptly took up the prosecutor’s seductive suggestion, and over US protest and in the face of numerous abstentions, voted that Palestine would be admitted as a UN observer state.
What this means is anyone’s surmise. Article 12(3) was likely designed for abstaining states that change their mind about the Hague court, but not entities that failed to gain recognition as states at the time of the events in question. Nonetheless, the possibility of a referral to the Hague court for any future martial events is left hanging.
Regardless of one’s views about Israel and the Palestinian territories, this is not an abstract matter for the United States. For the whole import of Article 12(3) is to allow a non-member state to make a referral to the International Criminal Court of a specific matter—and to do so regardless of the ICC membership or non-membership of the adversary it accuses. Even states that would be reluctant to submit themselves to the general governance of the ICC could decide that the tribunal is a strategically useful tool to make a point, and could instigate an accusatory criminal investigation in a particular case.
Thus, Washington political leaders and the public are well-advised to recognize that—though the United States is likely to remain in the posture of an increasingly cooperative non-member state—our country could find itself the subject of an opportunistic article 12(3) referral as well. There is no consensus on various issues of how wars are fought, including particular rules of engagement, and our military doctrine does not always match those of our friends or adversaries. Some issues of proportionality and target selection are not matters we would willingly remit to international judges who have no military experience. The United States acts throughout the world on matters that include counter-piracy, counterterrorism, and old-fashioned threats by states. Whether it is drone warfare or military target selection in a conventional air campaign, now that the pump is primed and the issue has become salient, any one of those states could make a one-off and one-time referral to the Court on the basis of the place of a military or security encounter. The jurisdiction of the International Criminal Court, under its statute, is sufficiently established either by the place of the event or the nationality of the alleged perpetrator. Article 12(3) does not apparently require that a state accept the full jurisdiction of the Court going forward, only that it wishes to refer a particular “crime” or “situation.”
Slipping in a provision such as article 12(3), late in the night of a hurried treaty conference, was not the best recipe for building long-term American support for the International Criminal Court. And even the Obama administration may find that its choice of military tactics and good faith actions are at times reviewed through an unsympathetic lens.
 Ruth Wedgwood, “The United States and the International Criminal Court: Achieving a Wider Consensus Through the ‘Ithaca Package’,” Cornell International Law Journal 32 (1999): 535–541.