ICC Related US Case Law

CASE LAW CITING 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, at times, US federal courts have relied on the Rome Statute in civil cases. Between November 9th, 2009 and July 14th, 2014, the ICC and the Rome Statute were mentioned in 21 U.S. judicial decisions. Most often the appear in decisions involving "the intent (mens rea) standard in aiding and abetting, immunity, corporate liability, defining crimes against humanity and defining war crimes." The Rome Statute was also cited as an authoritative statement of the law during the Bush Administration, which was hostile to the Court. This occurred in, at least, 31 cases between 1999 and 2009.  

 

The following U.S. judicial decisions between 2009-2014 cite the Rome Statute in support:

  1. Doe v. Drummond Co., 2009 U.S. Dist. LEXIS 132594 (N.D. Ala. Nov. 9, 2009)

  2. Lui Bo Shan v. China Constr. Bank Corp., 2010 U.S. Dist. LEXIS 63938 (S.D.N.Y. June 28, 2010)

  3. Karunamunige Chamila Krishanthi v. Rajakumara Rajaratnam, 2010 U.S. Dist. LEXIS 88788

    (D.N.J. Aug. 26, 2010)

  4. Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011)

  5. Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011)

  6. Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012)

  7. Sikhs for Justice v. Nath, 893 F. Supp. 2d 598 (S.D.N.Y. 2012)

  8. United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012)

  9. Sexual Minorities Uganda v. Lively, 960 F. Supp. 304 (D. Mass. 2013)

  10. Bahlul v. United States, 2014 U.S. App. LEXIS 13287 (D.C. Cir. July 14, 2014)

 

The following U.S. judicial decisions between 2009-2014 mention the ICC or Rome Statute, but do not rely on it:

  1. Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011)

  2. Velvez v. Sanchez, 693 F.3d 308 (2d Cir. 2012)

  3. Devi v. Rajapaksa, 2012 U.S. Dist. LEXIS 127825 (S.D.N.Y. Sept. 4, 2012)

  4. Manoharan v. Rajapaksa, 845 F. Supp. 2d 260 (D.D.C. 2012)

  5. Wanjiru v. Holder, 705 F.3d 258 (7th Cir. 2013)

  6. Gathungu v. Holder, 725 F.3d 900 (8th Cir. 2013)

  7. Buckner v. Shumlin, 2013 U.S. Dist. LEXIS 175612 (D. Vt. Dec. 13, 2013)

  8. Doe v. Nestle USA, Inc., 738 F.3d 1048 (9th Cir. 2013)

  9. Du Daobin v. Cisco Sys., 2014 U.S. Dist. LEXIS 22632 (D. Md. Feb. 24, 2014)

  10. United States v. Chhun, 744 F.3d 1110 (9th Cir. 2014)

  11. De Leon v. City of San Antonio, 2014 U.S. Dist. LEXIS 94510 (W.D. Tex. May 23, 2014)   

 

 

AMERICAN SERVICE-MEMBERS' PROTECTION ACT

(ASPA) OF 2002

 The American Service-Members' Protection Act (ASPA) is current law, although it has been amended since its original 2002 version. The current ASPA includes:

 

  • Prohibition on cooperation with the International Criminal Court

  • Restrictions on US participation in UN peacekeeping operations

  • Prohibition on direct or indirect transfer of classified national security information, including law enforcement information, to the International Criminal Court, even if no American is accused of a crime

  • Preauthorized authority to free members of the armed forces of the US and certain other persons detained or imprisoned by or on behalf of the international criminal court (the so-called "Hague Invasion" clause; which earned the ASPA its nickname: "The Hague Invasion Act")

 

The original version banned military assistance to ICC state parties unless they concluded Article 98 agreements, also known as bilateral immunity agreements (BIAs), with the US. This provision resulted in significant criticism, particularly from the Department of Defence said that the BIA campaign undermined national security goals.

 

However, the ASPA allows waivers to these provisions; and much is left up to the president's discretion. The Dodd Amendment is one such catch-all that enables waivers for the restrictions of the ASPA. It states:

 

"Nothing in this title shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosevic, Osama bin Laden, other members of Al Queda, leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity."

 

 

 ASPA AMENDMENTS

 

The ASPA has been criticized both from the international community and from many within the United States

By January 2008, prohibition of US military assistance to ICC States Parties refusing BIAs had been repealed.

 

October 17, 2006: President Bush signed into law an amendment to ASPA as part of the John Warner National Defense Authorization Act for Fiscal Year 2007 removing IMET restrictions for all nations. President Bush has early issued waivers of these same IMET prohibitions with respect to some nations.

 

On January 22, 2008 Congress again amended ASPA to eliminate FMF restrictions on nations refusing BIAs. President Bush signed this FMF amendment into law on January 28, 2008. 

 
 

THE NETHERCUTT AMENDMENT

What was the Nethercutt Amendment?

Former Representative George Nethercutt's so-called "Nethercutt Amendment" to the Foreign Operations, Export Financing, and Related Programs Appropriations Act suspended Economic Support Fund (ESF) assistance to ICC States Parties who refuse bilateral immunity agreements (BIAs) with the US or have not been provided a Presidential waiver.

 

Why was it implemented?

It was intended to extend the reach of ASPA to cut non-military assistance, in addition to IMET and FMF assistance.

 

What was its result?

It ended up hurting key relationships. However, the Nethercutt provision did permit waivers.

 

When was it in force?

The Nethercutt Amendment was first signed into law in December 2004, and required annual renewal. It was renewed twice in 2006 and 2008, but not in 2007. However, it was not renewed in the FY 2009 omnibus appropriations bill, Public Law No. 111-8, which was signed into law by President Obama on March 11, 2009. 

 

How did its non-renewal impact the BIA campaign?

 Its expiration and subsequent non-renewal impacted the BIA campaign, by eliminating US anti-ICC sanctions.

All three ICC crimes over which the Court can currently exercise jurisdiction - war crimes, crimes against 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.

War Crimes

Some but not all war crimes may be prosecuted by US civil courts, whether committed within or outside of the US, but only when:

 

  1. The victim is a US national or member of the US armed forces (18 USC § 2441[b]); or

  2. 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 §§ 1128781116 , 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 trade.

    • 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

 

Genocide

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 STATUTORY ANOLOGUES TO ICC CRIMES 

 

PUBLIC LAW NO. 106-113, §§ 705-706

The Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 prohibits funds from the Foreign Relations Authorization Act "or any other act" from being used by or for the support of the ICC, or to extradite a United States citizen to a foreign country obligated to cooperate with the ICC unless the US receives guarantees that that person won't be sent to the ICC. It also states that the US "shall not become a party to the International Criminal Court except pursuant to a treaty made under Article II, section 2, clause 2 of the Constitution of the United States."​​​ These sections remain US law and have been interpreted to prevent any US funds from going to the ICC. The current US administration interprets this law as only permitting in-kind support to the Court.

 
 
 

OTHER ICC LAW

Additionally, two laws prohibiting US funding of the ICC were passed during the Bush administration but have subsequently expired and were not renewed:

Another anti-ICC law was passed but then repealed:

 

Senate ICC-Related Reservations and Understandings

The US Senate, in providing its two-thirds advice and consent to ratification as required by the US Constitution, made a number of reservations and understandings relevant to the ICC. These Senate actions, which were on treaties and agreements on mutual criminal assistance, extradition and other forms of bilateral and international cooperation, were another form of anti-ICC action taken by a US legislative body. These treaties remain in effect and thus the reservations and understanding remain intact as well.

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