US Statutory Analogues to ICC Crimes
All three ICC crimes over which the Court can currently exercise jurisdiction - war crimes, crimes agaisnt humanity and genocide - are all punishable under US law. Under the principle of complementarity, the ICC must defer to genuine national investigations and prosecutions provided that the proceedings are not intended to shield the accused from justice. The capacity of the US to investigate and try individuals for atrocity crimes, regardless of how they are labeled, means that justice can be served in US courts.
Some but not all war crimes may be prosecuted by US civil courts, whether committed within or outside of the US, but only when:
- The victim is a US national or member of the US armed forces (18 USC § 2441[b]); or
- The perpetrator is a former service member or a civilian accompanying the military overseas (18 USC §§ 3261-3267)
US Military courts have universal jurisdiction over war crimes to the extent permitted by international law, with the exception of some cases involving civilians.
- GRAVE BREACHES OF GENEVA CONVENTIONS, Rome Statute Article 8(2)(a): 18 USC § 2441(c)(1) defines war crimes as conduct "defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party."
- OTHER SERIOUS VIOLATIONS OF THE LAWS AND CUSTOMS APPLICABLE IN INTERNATIONAL ARMED CONFLICT, Rome Statute Article 8(2)(b): 18 USC §§ 2441(c)(1), (2), (3). 18 USC § 2441(c)(2) specifically defines a war crime as conduct "prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907."
- CASES OF AN ARMED CONFLICT NOT OF INTERNATIONAL CHARACTER, Rome Statute Articles 8(2)(c), (e): 18 USC § 2441(c)(3) defines war crimes of non-international armed conflict as conduct "which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party."
- WAR CRIMES COMMITTED BY OR AGAINST MEMBERS OF US ARMED FORCES OR A US NATIONAL, Rome Statute Article 8 generally: 18 USC §§ 3261-3267 extends jurisdiction to cover certain military and civilian persons who while "employed by or accompanying the Armed Forces outside the United States or while [members] of the Armed Forces" commit serious crimes under Title 18 (if such acts would be crimes if committed within the jurisdiction of the US), excluding civilians who are "national[s] of or ordinarily resident in the host nation" and active military members unless the crimes has been committed with one or more civilian defendant. Former military members are also covered. These statutes also allow for the extradition of such individuals to the country where the crime occurred under applicable treaties and international agreements.
In addition, under the Child Soldiers Accountability Act of 2008, Public Law 110-340 (October 3, 2008), US Courts may prosecute individuals for the recruitment or use of child soldiers under the age of 15, a war crime under the Rome Statute, if the crime is committed in whole or in part the US or if the offender is a US national, legal alien, habitual resident or is brought to or found in the US after the crime occurred.
Crimes Against Humanity
The United States does not have any current statutory provisions that specifically address the concept of "crimes against humanity." If committed in the US or by members of the US military most Article 7 crimes would violate domestic US criminal or military laws. If committed outside of the US, such crimes may be prosecuted in US civil courts only if they involve torture, attempted torture, or certain forms of international terrorism.
- MURDER, Rome Statute Article 7(1)(a):
- 18 USC § 32, acts of violence against aircraft and individuals on aircrafts where such acts will likely endanger the safety of the aircraft.
- 18 USC § 33, destruction of persons operating or maintaining motor vehicles committed with the "intent to endanger the safety of any person on board or anyone who believes will board."
- 18 USC § 37, violence at international airports.
- 18 USC § 115, murder of immediate family members of US officials, judges, law enforcement officers, etc., with the intent to interfere with, intimidate, or retaliate against such an official, while engaged in performance of official duties or with intent to retaliate against him or her.
- 18 USC § 844(f)(3), action causing malicious damage to or destruction of any building, vehicle or other personal or real property owned or possessed or leased by the US by means of fire or explosive.
- 18 USC § 930(c), killing of a person by someone knowingly possessing or causing to be present firearms or other dangerous weapons in a federal facility or in the course of an attack on such a facility.
- 18 USC § 1111, "murder" defined as "unlawful killing of a human being with malice aforethought."
- 18 USC § 1114, killing of any officer or employee of the US or any agency thereof while such an officer or employee is engaged in official duties and anyone assisting them.
- 18 USC §§ 112, 878, 1116, threats and violence against a foreign official, official guest, or internationally protected person.
- 18 USC § 1119, murder of a US national by a US national outside the United States.
- 18 USC § 1203, hostage taking.
- 18 USC § 1651, piracy (not necessarily including murder) as defined by the law of nations, committed on the high seas.
- 18 USC § 1652, murder or any act of hostility against US citizens committed by a citizen of the US on the high seas under color of authority of any state.
- 18 USC § 1653, acts of piracy by aliens.
- 18 USC § 2280, violence against ships.
- 18 USC § 2281, violence fixed maritime platforms.
- 18 USC § 2332, killing of a US national while outside of the US.
- 18 USC § 2332(a), unlawful use of weapons of mass destruction (other than chemical weapons).
- 18 USC § 2332(b), acts of terrorism transcending national boundaries.
- EXTERMINATION, Rome Statute Article 7(1)(b): No specific US statutory provision covers extermination. However, 18 USC § 242 (deprivation of rights under color of law) punishes those individuals who willfully subjects those individuals to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States on account of race, color or alienage.
- ENSLAVEMENT, Rome Statute Article 7(1)(c): Comparable US statutory provisions in Title 18, Chapter 77 (Peonage and Slavery) include:
- 18 USC § 1581, holding or returning a person to a condition of peonage; arresting any person with intent to return him or her to such status; or obstructing enforcement of this section.
- 18 USC § 1582, preparing or sailing vessels for slave trade.
- 18 USC § 1583, enticement into slavery.
- 18 USC § 1584, sale into involuntary servitude.
- 18 USC § 1585, seizure, detention, transportation of persons from a foreign shore with the intent to make them a slave.
- 18 USC § 1586, voluntary service on vessels involved in the slave.
- 18 USC § 1587, penalizing captains, master or commanders of a vessel that has a slave on board.
- 18 USC § 1588, penalizing those masters, owners or persons of any vessel who receives on board any person with the knowledge or intent that he or she is to be taken outside of the US to be held or sold as a slave.
- 18 USC § 242, the willful subjection of individuals to the deprivation of any rights, privileges or immunities guaranteed under the color of law.
- DEPORTATION, Rome Statute Article 7(1)(d): The only comparable statutory provision is 18 USC § 1201, which covers the unlawful seizing, confining, inveigling, decoying, kidnapping, abducting or carrying away and holding for ransom or reward "or otherwise" any person, or conspiracies or attempts to do the same.
- IMPRISONMENT, Rome Statute Article 7(1)(e): Analogous US law includes 18 USC § 242, as discussed above under "Enslavement" and 18 USC § 1201, as discussed above under "Deportation."
- TORTURE, Rome Statute Article 7(1)(f): 18 USC § 2340(A) similarly defines torture "as an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."
- RAPE, SEXUAL SLAVERY, ENFORCED PROSTITUTION, FORCED PREGNANCY, ENFORCED STERILIZATION, Rome Statute Article 7(1)(g):
- 18 USC § 2421, knowingly transporting any individual with the intent that such an individual engage in prostitution or any sexual activity for which a person can be charged with a criminal offense.
- 18 USC § 2422, knowingly persuading, inducing, enticing or coercing any individual to travel to engage in prostitution or any sexual activity for which a person can be charged with a criminal offense.
- 18 USC § 2423, knowingly transporting an individual under 18 years of age with the intent that he or she engage in prostitution or any sexual activity for which a person can be charged with a criminal offense.
Previously Proposed Crimes Against Humanity Legislation
18 USC § 1091(d), as amended by the Genocide Accountability Act of 2007, Public Law 110-151 (December 21, 2007), allows for the prosecution of genocide in US courts if the crime is committed in whole or in part the US or if the offender is a US national, legal alien or habitual resident.
US Case Law Citing to the Rome Statute
At the June 12, 2003 UN Security Council meeting on the renewal of Resolution 1422 (providing immunity from the jurisdiction of the ICC to peacekeepers from non-State Parties), US Ambassador James Cunningham said, "[t]he ICC is not 'the law.'" However, there are at least 31 US federal judicial cases from as long ago as 1999 and as recent as October 2009 that cite to the ICC's Rome Statute as an authoritative statement of the law. They come from several different district courts as well as the Ninth and Eleventh Circuits. Notable highlights include:
- US v. Duarte-Acero, in which the Eleventh Circuit contrasted International Covenant on Civil and Political Rights (ICCPR) Article 14(7)'s allowance of successive prosecutions in different countries with the ICC Draft Statute of 1994's prohibition of trials before any other court for criminal acts for which that person has been tried by the ICC.
- Ford v. Garcia, in which the Eleventh Circuit referred to Rome Statute Article 28 to support its finding of plain error in the giving of a command responsibility instruction.
- Wiwa v. Royal Dutch Petroleum et al., in which the US District Court for the Southern District Court of New York referred to Rome Statute Article 7 as an authoritative definition of crimes against humanity and determined that the facts of the case satisfied that definition.
- Mehinovic et al. v. Vuckovic, in which the US District Court for the Northern District of Georgia referred to Rome Statute Article 7 as an authoritative definition of crimes against humanity, including the crime of rape; referred to Article 5 as an example of the absolute prohibition on genocide; and referred to Article 25 to demonstrate that it is well established that those who "assist in the commission of acts prohibited by international law may be held individually responsible."
- Tachiona v. Mugabe, in which the US District Court for the Southern District of New York referred to Rome Statute Article 27 as authoritative evidence that foreign government agents no longer have absolute defenses against litigation "challenging their private conduct as crimes against humanity or other egregious abuses of human rights contravening international norms."
- Presbyterian Church of Sudan v. Talisman Energy, in which the US District Court for the Southern District of New York reproduced Rome Statute Article 25(3) in its entirety to demonstrate the well established nature of complicit liability (including solicitation, inducement, aiding and abetting, etc.) for international law violations.
- Jane Doe I, et al. v. Liu Qi. Et al., in which the US District Court for the Northern District of California referred to the Rome Statute twice in its ruling; once to make a distinction between imposition of criminal liability on military commanders and non-military leaders and then again to refer to the failure of such leaders or commanders to prevent abuses from being committed by their subordinates.
- Khulumani v. Barclay Nat'l Bank, in which the US Court of Appeals for the Second Circuit relied on Article 25(3)(c) of the Rome Statute in determining whether corporations could be held liable for such alleged aiding and abetting. In a 2-1 ruling, the court found that the Rome Statute constitutes "an authoritative expression of the legal views of a great number of States."