ABLE BUT UNWILLING: THE PRINCIPLE OF COMPLEMENTARITY AS A SAFEGUARD OF AMERICAN SOVEREIGNTY IN THE INTERNATIONAL CRIMINAL COURT’S QUEST TO END IMPUNITY

By Shannon Hale LL.B., Queen’s University Belfast

Introduction

The International Criminal Court’s (“ICC”) investigation into alleged war crimes in Afghanistan infringes on American sovereignty insofar as the United States has not consented to the Court’s jurisdiction.[1] The position of the United States is clear. In response to the ICC launching an investigation, the National Security Advisor of the United States, John Bolton, declared, “the ICC is already dead to us.”[2] As this paper demonstrates, there are measures available to the United States to safeguard against interference from the ICC. Yet, absent political resolve from the current administration, the ICC investigation will likely proceed with international approval, despite American opposition.

Two issues are relevant to this discussion. The first issue concerns consent. The United States is unequivocal that, as a matter of international law, the Rome Statute cannot supersede its rights without its consent. Since the United States has not ratified the Rome Statute, the ICC lacks jurisdiction to intervene.[3] The second issue pertains to the principle of complementarity enshrined in the Rome Statute, which dictates if a state is willing and able to prosecute nationals for serious international crimes, the ICC cannot launch a parallel investigation.[4] The Trump administration stresses this principle should preclude any investigation since “the U.S. judicial system is more vigorous, more fair, and more effective than the ICC.”[5]

Scholars debate the American position, especially with respect to the issue of consent. One school of thought, led by Michael Newton, asserts states limit the Court’s jurisdiction because they authorize the ICC to intervene through delegating power to the Court. The ICC cannot act beyond the scope of this authority. Consequently, the ICC cannot force states to violate international obligations that pre-existed before they signed the Rome Statute.[6]

An opposing school of thought adopts a more universal, normative approach. Under this perspective, the ICC does not derive its jurisdiction from the delegation of states’ authority. Rather, the ICC’s jurisdiction is “grounded in international law.”[7] As a matter of international law, the ICC holds individuals accountable for international crimes if states default on their obligations by refusing to investigate or prosecute individuals “on behalf of the international community.”[8]

Independent of this discussion, the crux of the debate between the United States and the ICC concerns the principle of complementarity, which precludes an ICC investigation if the United States is willing and able to investigate and, if necessary, prosecute its nationals.[9] Consistent with previous administrations, the Trump administration is reluctant to investigate the allegations levied against American nationals in Afghanistan. Several domestic and international arrangements reinforce this perception. These measures include the introduction of the American Service-Members’ Protection Act 2002 (“ASPA”), the proliferation of Article 98 bilateral agreements, and the threat of imposing economic sanctions or exercising the United States’ veto power as a member of the United Nations Security Council (“UNSC”).[10] As the paper clarifies, continued obstruction may justify the ICC’s investigation.[11]

The paper begins with an overview of the ICC’s jurisdiction under the Rome Statute. Following that, it discusses the role of consent and whether states, by delegating their authority, limit the ICC’s jurisdiction. Next, the paper considers the principle of complementarity as a form of recourse to protect American sovereignty. This section analyses the ability and willingness of the United States to investigate or prosecute its nationals for alleged war crimes in Afghanistan. As part of this analysis, the paper examines measures the United States has adopted to protect itself from the ICC’s scrutiny and assesses their merits. The final section concludes the arguments addressed in this paper.

A Primer on the International Criminal Court

            To understand the controversy between the United States and the ICC, it is necessary to investigate the source and limits of the ICC’s authority. The Rome Statute established the ICC in July 1998, although the Court became operational only once the requisite amount of states ratified the treaty in July 2002. Notably, the United States declined to ratify the Rome Statute and has remained vocally opposed to the mandate of the ICC.[12]

            Article 5 of the Rome Statute gives the ICC jurisdiction over “the most serious crimes of concern to the international community as a whole.”[13] These crimes fall under four categories: genocide, crimes against humanity, war crimes, and the crime of aggression.[14] In addition, Article 13 specifies three instances in which the ICC may initiate investigations into individuals allegedly culpable for these crimes. Either a state party or the UNSC may refer crimes to the ICC Prosecutor. Alternatively, the ICC Prosecutor may launch an investigation.[15]

Problematically for the United States, the ICC has jurisdiction over crimes committed on the territory of state parties or if the accused is a national of a party state.[16] Afghanistan is an ICC state party.[17] Per Article 12, the ICC has jurisdiction over Article 5 crimes committed on Afghanistan’s territory, even if the perpetrators are nationals of non-party states. Although the ICC Prosecutor has initiated an independent investigation, Afghanistan’s referral of alleged war crimes, including those implicating the United States, could also authorize an investigation.[18] Whether American officials actually committed war crimes is not the focus of this paper. Rather, the paper considers whether the ICC’s investigation is legitimate, considering the United States has not ratified the Rome Statute and has already investigated some officials for their conduct in Afghanistan.

Consent as a Shield not a Sword

The United States has adamantly opposed the ICC’s jurisdiction over its nationals. Purely on the basis of consent, since the United States has not ratified the Rome Statute, any interference from the ICC infringes its sovereignty even though Article 12(2)(a) of the Rome Statute authorizes the ICC to investigate crimes committed on the territory of state parties.[19] The primacy of consent is a fundamental principle of international law. In S.S. Lotus, the court explained any obligations imposed on states must “emanate from their own free will” expressed in customary or conventional international law.[20] Newton insists the ICC does not have “independent or omnipotent” authority since it derives its jurisdiction exclusively from the delegation of states’ sovereign power.[21] Considering the legitimacy of the ICC’s investigation solely through the lens of consent precludes further analysis. The United States does not accept the Court’s jurisdiction. Therefore, any action on the part of the ICC affecting American nationals infringes American sovereignty.

However, accepting the premise the ICC has a broader mandate to hold individuals accountable when states default on their international obligations, the question becomes whether Afghanistan, as an ICC state party, could restrict the ICC’s jurisdiction by concluding non-surrender agreements with the United States. If the answer to this question is affirmative, these agreements prevent the ICC from exercising jurisdiction over American nationals for allegedly committing Article 5 crimes. Otherwise, the United States has lost an important safeguard and cannot prevent the ICC from investigating its nationals, even though it is a non-party state.[22]

To retain exclusive jurisdiction over American personnel, the United States negotiated non-surrender agreements with Afghanistan pursuant to Article 98 of the Rome Statute. Article 98(1) prohibits state parties from surrendering Americans to the ICC if non-surrender agreements are in effect. As Monique Cormier argues, Afghanistan will breach these agreements if the ICC proceeds with its investigation.[23]

Scholars debate whether the non-surrender agreements prevent the ICC from investigating substantive matters of law regarding the allegations against American personnel. Cormier suggests the non-surrender agreements prohibit the ICC from asking Afghanistan to surrender American nationals and “have [no] bearing over whether the ICC may lawfully exercise [its] jurisdiction.”[24] The ICC agrees. In the decision considering the Prosecutor’s request to authorize the investigation, the ICC declared non-surrender agreements “[do] not impact on the exercise of jurisdiction by the Court.”[25] Notwithstanding concerns the ICC pronounced on the limits of its jurisdiction, opponents of Cormier’s argument challenge these assumptions on the basis states delegate their authority to the ICC through consent, which they may revoke at any time.[26]

For instance, Newton accepts the premise of state-delegated authority to argue the Rome Statute co-exists with states’ treaty obligations.[27] According to this view, the ICC does not possess universal jurisdiction to prosecute “all potential perpetrators in all circumstances.”[28] Rather, Afghanistan ratified the Rome Statute “limited by [its] pre-existing treaty constraints.”[29] As a result, Newton concludes that under the non-surrender agreements Afghanistan granted American personnel “full immunity” for crimes committed on its territory and could not delegate this jurisdiction to the ICC.[30] Yet, critics of this view cite Article 120, which forbids reservations to the Rome Statute, to argue non-surrender agreements do not curtail the ICC’s jurisdiction.[31]

Notwithstanding the primacy of consent, interpreting the ICC’s jurisdiction through a universalist perspective is more persuasive than Newton’s state-delegated authority approach in light of the Court’s overarching mandate to prevent impunity. The underlying assumption of the universalist theory is punishment for international crimes does not depend on the will of sovereign states. As Carsten Stahn explains, when states prosecute individuals for international crimes, they do so “on behalf of the international community.”[32] Hans-Peter Kaul agrees states have universal jurisdiction over “international core crimes” and are free to do “collectively what they have the power to do individually.”[33] In this respect, the Rome Statute does not impose obligations on non-party states, although it may impact their interests.[34] According to this perspective, if states renege on their obligations to prosecute their nationals for atrocity crimes, the ICC has authority to intervene.[35]

This view has merits. For instance, a consent-based perspective frustrates the ICC’s mandate to prosecute the most serious crimes.[36] As Cormier hypothesizes, bilateral non-surrender agreements could lead to the “inconsistent and potentially unfair” application of the ICC’s jurisdiction, resulting in “impunity for some individuals” but not others based on their type of employment.[37] This outcome contradicts Article 27(1), which states the Rome Statute applies “equally to all persons without distinction based on official capacity.”[38]

More problematically, consent-based theories risk creating perverse incentives for states to withdraw from, or refuse to ratify, the Rome Statute to protect their nationals from prosecution. Nationals from countries, such as Sudan or Libya, could have evaded responsibility for atrocities under this rationale.[39] This outcome offends states’ international obligations to prevent impunity for the most serious crimes. As David Scheffer emphasizes, “no democratic government – certainly not the United States of America – could champion such impunity.”[40]

Although a universalist approach requires states’ consent to justify ICC intervention, for instance by ratifying the Rome Statute, interpreting the ICC’s mandate in a broader sense legitimizes the Court’s authority to decide matters of substantive law, even for non-party states.[41] From this perspective, non-surrender agreements cannot preclude the ICC from investigating allegations of war crimes. As the International Court of Justice held, “immunity from jurisdiction … does not mean … impunity in respect of any crimes….”[42] Adopting the court’s reasoning, immunity from prosecution under Afghani courts does not prevent the ICC from ruling on whether American officials committed offences in Afghanistan.[43] Consequently, while non-surrender agreements preclude Afghanistan’s assistance with this investigation, they do not prevent the ICC from proceeding with an investigation, even though this outcome technically infringes American sovereignty as a non-party state.[44]

The Principle of Complementarity Protects American Interests

            Apart from the primacy of consent, the principle of complementarity is the strongest safeguard of American sovereignty because it prioritizes the United States’ jurisdiction over its nationals. According to the classical position, complementarity ensures the primacy of states’ jurisdiction.[45] Mark Ellis observes this principle operates as a “procedural and substantial” defence against perceived infringements of state sovereignty.[46] Yet, the classical view prevents the ICC from taking “an active role in crisis management and conflict resolution” because it relegates the ICC to passively operate as a “backstop” to states’ jurisdiction.[47]

Article 1 of the Rome Statute gives the ICC jurisdiction to prosecute Article 5 crimes.[48] Complementarity gives the ICC concurrent jurisdiction over these crimes when states fail to take any action. Using Colombia, Kenya, and Darfur as examples, Stahn argues complementarity cannot achieve its objectives when states defy their international obligations and the ICC “is forced to stand still.”[49] On this basis, the ICC must have concurrent jurisdiction to intervene if states default on their international obligations.[50] Moreover, concurrent jurisdiction recognizes the “balance between safeguarding the primacy of domestic proceedings vis-à-vis the International Criminal Court … and the goal of the Rome Statute to ‘put an end to impunity.’”[51]

In this case, the ICC’s intervention is controversial because the United States has taken measures to review the actions of its personnel in Afghanistan and does not agree further action from the ICC is justified.[52] Moreover, the Rome Statute codified the principle of complementarity, yet the United States is not an ICC state party. Nevertheless, there is an argument the principle of complementarity is a widely accepted international norm. Despite not ratifying the Rome Statute, the United States negotiated for the inclusion of this principle in the Treaty, arguably to protect its sovereignty interests.[53] Moreover, the signatories of the Rome Statute represent nearly two-thirds of the countries in the world.[54] As state parties, they have endorsed this principle codified in Article 17. Viewed as a matter of customary international law, the principle of complementarity applies in this instance even though the United States does not recognize the ICC’s authority or that of the Rome Statute.[55]

Adopting a dynamic view of the ICC’s mandate, the United States’ reluctance to act invites the ICC to intervene. The United States has unequivocally denounced the ICC’s investigation as “utterly unfounded [and] unjustifiable.”[56] In Katanga, the Court explained the ICC “must be able to step in” if states fail to investigate or prosecute nationals responsible for Article 5 crimes.[57] Article 17 of the Rome Statute authorizes the ICC to proceed with an investigation if the United States cannot or will not investigate or prosecute its nationals.[58] Although the United States has an incentive to initiate proceedings in domestic courts to deter the ICC’s interference, it seems unlikely this outcome will materialize.[59]

At issue is whether the United States is willing and able to investigate or prosecute its nationals for allegedly committing Article 5 crimes in Afghanistan. Article 17 of the Rome Statute creates a disjunctive test where the ICC may intervene if the United States is either unwilling or unable to conduct an investigation. States and scholars contest the definitions of “willing” and “able,” especially because the ICC retains discretion over whether states meet the criteria.[60] This paper uses the common definition of these terms applied in the international humanitarian law context to analyze the United States’ position. Based on these interpretations, the ICC argues the United States has not sufficiently demonstrated the case is inadmissible before the Court.[61] Consequently, the ICC believes the principle of complementarity necessitates an investigation. Notably, the ICC’s investigation does not conflict with Afghanistan’s jurisdiction, since Afghanistan has not initiated investigations against international forces.[62]

            The United States is able but unwilling to prosecute its nationals for alleged war crimes. On the surface, the United States does not meet the criteria for inability. The Rome Statute characterizes inability as a state being “unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings” as a result of the “total or substantial collapse or unavailability of its national judicial system.”[63] Ellis categorizes inability according to four broad areas consisting of states experiencing conflict, political unrest or economic crisis, transition, or the absence of an independent and impartial judiciary.[64] The United States does not fall under any of these categories.

Crucially, the United States has a longstanding commitment to the rule of law, is not suffering from domestic conflict or a military coup, and has a functioning, independent, and impartial legal system that respects due process.[65] Moreover, constitutional limits placed on the three branches of government serve as further oversight mechanisms.[66] Several avenues are available through which the United States could investigate its nationals, including the court-martial process, Department of the Army Inspector General reviews, and Congressional investigations. Clearly, American courts are not suffering from the structural challenges inviting the ICC’s intervention in other post-conflict regions, such as Sudan.[67]

Nonetheless, from a technical perspective, American courts cannot investigate or prosecute nationals for alleged war crimes without amendments to domestic laws. Scheffer explains the United States should amend federal criminal laws under Title 18 of the United States Code 2012 and Title 10 of the Uniform Code of Military Justice 1950 to reflect the elements of Article 5 crimes enumerated in the Rome Statute. Otherwise, American civil and military courts lack the jurisdiction to initiate proceedings.[68] It seems unlikely the ICC would decide inability on this basis alone. Yet, the Court retains discretion to make case-by-case decisions.[69] This issue could serve as an aggravating though not determinative factor in the ICC’s admissibility analysis.

In contrast, the United States demonstrates a persistent unwillingness to investigate or prosecute its nationals for committing alleged war crimes in Afghanistan. Article 17(2) of the Rome Statute defines unwillingness according to three categories: investigations conducted in a manner that “shield[s] the person concerned from criminal responsibility” for Article 5 crimes; “unjustified delay[s] in the proceedings” that obstruct justice; or, investigations conducted in a non-independent or non-impartial manner.[70]

The United States is most susceptible to the ICC’s intervention on the basis of undue delay. In Katanga, the Court held Article 17 applies to states’ inaction. Otherwise, individuals would evade punishment on the basis states were “theoretically willing and able to investigate and to prosecute the case” but had “no intention of doing so.”[71] The ICC found the United States’ investigations were inadequate because they considered only individuals who acted outside the scope of their authorization and excluded those who acted in good faith. Moreover, the ICC lacked sufficient information to determine if the United States properly conducted these reviews.[72] Most problematically, the United States has not investigated “the criminal responsibility of those who developed, authorised or bore oversight responsibility” for the alleged activities committed in Afghanistan, such as high-level Central Intelligence Agency (“CIA”) officials.[73]

Concerns persist over the limited prosecutions resulting from the reports commissioned by the United States investigating detainee abuse.[74] For instance, the Schlesinger Report was the only report that reviewed “the chain of command extending to Secretary Rumsfeld.”[75] Although the Schlesinger Report found “institutional and personal responsibility at higher levels” for detainee abuse, the United States took limited action in response.[76] Yet, the assertion of some scholars like Julie Martin that the “lack of independent and impartial inquiry into responsibility” equates similar concerns surrounding the Sudanese government’s investigation into Darfur is dubious.[77] Moreover, limited prosecutions resulting from these investigations do not necessarily warrant the ICC’s intervention. The chief concern of Article 17 is procedural not substantive.[78]

The United States’ investigations demonstrate some willingness to examine allegations of abuse. For instance, the United States provided details of investigations and subsequent prosecutions in several reports, including the Schlesinger Report, a 2006 report on Department of Defense Directed Investigations of Detainee Abuse, the United States’ periodic report to the Committee Against Torture, and the United States’ 2015 update for the Human Rights Committee.[79] In this respect, the investigations could serve a valuable “truth-finding” purpose.[80] Arguably, these measures suggest a higher degree of willingness to investigate than that exhibited by the Sudanese government.

Despite these actions, the United States has not demonstrated good faith efforts to investigate all of the allegations against its personnel. For instance, the United States reviewed incidents where CIA activities directly resulted in detainee abuse, but did not consider situations where officials acted within the scope of their authorization. Moreover, prosecutions resulted only “where CIA interrogations actually resulted in death in custody.”[81] The investigations focused on lower ranking officials and did not evaluate the actions of individuals with oversight responsibility for the CIA’s activities.[82] The investigations also failed to pinpoint individual responsibility for these allegations. Attributing responsibility to “unclear policy guidance, insufficient training, and command failures” suggests a general unwillingness on the part of the United States to hold individual Americans criminally responsible.[83]

Arguably, the scope and outcome of the investigations are consistent with the American view that the ICC does not have jurisdiction over its government or its nationals. Nevertheless, it is evident the United States is unwilling to conduct investigations beyond the measures already taken. The United States’ reliance on non-surrender agreements and the ASPA demonstrate concentrated efforts to thwart cooperation with the ICC.[84] The ASPA forbids cooperation with the ICC and section 2008 authorizes the President to “use all means necessary and appropriate” to secure the release of Americans “detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”[85] Furthermore, the Trump administration continues to denounce the ICC’s legitimacy, which further frustrates the overarching mandate of the Court to prevent impunity.[86]

Technically, the alleged war crimes are admissible before the ICC because the United States has not investigated, nor has plans to investigate, most individuals connected to the allegations. Moreover, the investigations already carried out do not satisfy the complementarity requirements under Article 17.[87] Although the ICC’s intervention infringes American sovereignty, since the United States has not consented to this course of action, it is justified in the international community’s broader pursuit of bringing perpetrators of the worst crimes to justice. Whether the ICC should devote its limited resources to these investigations, considering the gravity of atrocities being committed in other theatres of conflict, is another matter.[88]

Conclusion

The United States is able yet unwilling to investigate its nationals for allegedly committing war crimes in Afghanistan. Interpreting the United States’ actions through a consent-based lens dismisses the possibility of intervention by the ICC because the nature of the investigations is left to the government’s discretion. However, adopting a more universal view of the ICC’s mandate to act when states default on their international obligations sanctions the ICC’s intervention under the principle of complementarity.[89] The Trump administration’s reliance on non-surrender agreements and the ASPA reinforce the perception the United States will not cooperate with the ICC or review the conduct of its personnel beyond those who acted outside the scope of their authority.[90] In view of these considerations, the ICC has concurrent jurisdiction to intervene. Arguably, a failure to act in this instance could frustrate the broader aim of the Rome Statute to “put an end to impunity.”[91] Although the ICC could intervene in this case without infringing American sovereignty, notwithstanding the issue of consent, whether the Court should intervene or allocate its limited resources to more pressing priorities is subject to debate.

Bibliography

Table of Cases

Prosecutor v Katanga, Judgment on the Appeal of Mr Katanga against the Oral Decision of Trial Chamber 11 of 12 June 2009 on the Admissibility of the Case, Appeals Chamber, Case No ICC-01/04-01/07-1497, 25 September 2009

Request for Authorization of an Investigation Pursuant to Article 15, Situation in the Islamic Republic of Afghanistan (ICC-02/17-7-Red), Pre-Trial Chamber III, 20 November 2017

S.S. Lotus (Fr v Turk), 1927 PCIJ (ser A) No 10

The Prosecutor v Uhuru Muigai Kenyatta, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute,”Case No ICC-01/09-02/11-274, ICC Appeals Chamber, 30 August 2011

Table of Legislation

Rome Statute of the International Criminal Court, (adopted 17 July 1998, entered into force 1 July 2002, ISBN No 92-9227-2276)

The American Service-Members Protection Act 2002 (USA)

Vienna Convention on the Law of Treaties, (adopted 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331)

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Arrest Warrant of 11 April 2000 (Dem Rep Congo v Belg), Judgment, 2002 ICJ Rep 1

Cassese, A, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) Eur J Intl L 144

Coalition for the International Criminal Court, ‘Factsheet: Status of US Bilateral Immunity Agreements (BIAs)’ (11 December 2006)

Cormier, M,  ‘Can the ICC Exercise Jurisdiction over US Nationals for Crimes Committed in the Afghanistan Situation?’ (2018) JICJ 1

Dahlman, C, ‘The Function of Opinio Juris in Customary International Law’ (2012) Nordic J of Intl L 327

Dickerson, A, ‘Who’s in Charge Here – International Criminal Court Complementarity and the Commanders’ Role in Courts-Martial’ (2007) Naval L Rev 141

Ellis, M, ‘The International Criminal Court and its Implication for Domestic Law and National Capacity Building’ (2002) Florida J Intl L 215

Gannon, K, ‘Afghans submit 1.17 million war crimes claims to international court’ Independent (17 February 2018) https://www.independent.co.uk/news/world/middle-east/afghanistan-war-crimes-claims-victims-millions-submitted-court-isis-taliban-a8214301.html accessed 22 November 2018

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ICC, ‘The States Parties to the Rome Statute’ https://www.asp.icc-cpi.int accessed 22 November 2018

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Lederer, E, ‘UN chief asks security council to refer Syria to International Criminal Court’ CTV (26 January 2018) https://www.ctvnews.ca/world/un-chief-asks-security-council-to-refer-syria-to-international-criminal-court-1.3778007 accessed 17 January 2019

Martin, J, ‘The International Criminal Court: Defining Complementarity and Diving Implications for the United States’ (2006) Loyola U Chi Intl L Rev 107

Newton, M, ‘How the International Criminal Court Threatens Treaty Norms’ (2016) Vand J Transntl L 371

Scheffer, D, ‘Staying the Course with the International Criminal Court’ (2001) Cornell Intl L J 47

Sekulow, J A and Robert Weston Ash, ‘An Unlawful Overreach: Trying Nationals of Non-Consenting, Non-Party States before the International Criminal Court’ (2014) Florida J Intl L 1

Stahn, C, ‘Taking Complementarity Seriously’ in Carsten Stahn and Mohamed El Zeidy (eds), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge University Press 2014)

Stahn, C, ‘The ICC, Pre-Existing Jurisdictional Treaty Regimes, and the Limits of the Nemo Dat Quod Non Habet Doctrine – A Reply to Michael Newton’ (2016) Vand J Transntl J 443

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[1] White House, ‘Protecting American Constitutionalism and Sovereignty from the International Criminal Court,’ National Security & Defense Fact Sheet (10 September 2018)

[2] ‘Speech Transcript: John Bolton on US Policy Toward the International Criminal Court’ The Epoch Times (10 September 2018) https://www.theepochtimes.com/speech-transcript-john-bolton-on-u-s-policy-toward-the-international-criminal-court_2656808.html accessed 21 November 2018

[3] White House Fact Sheet (n 1)

[4] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002, ISBN No 92-9227-2276), art 17

[5] Transcript (n 2)

[6] Michael Newton, ‘How the International Criminal Court Threatens Treaty Norms’ (2016) Vand J Transntl L 371, 374-375

[7] Carsten Stahn, ‘The ICC, Pre-Existing Jurisdictional Treaty Regimes, and the Limits of the Nemo Dat Quod Non Habet Doctrine – A Reply to Michael Newton’ (2016) Vand J Transntl J 443, 448

[8] Ibid

[9] Rome Statute (n 4), art 17

[10] White House Fact Sheet (n 1)

[11] Julie Martin, ‘The International Criminal Court: Defining Complementarity and Diving Implications for the United States’ (2006) Loyola U Chi Intl L Rev 107, 125

[12] Mark Ellis, ‘The International Criminal Court and its Implication for Domestic Law and National Capacity Building’ (2002) Florida J Intl L 215, 215-216

[13] Rome Statute (n 4), art 5

[14] ibid

[15] ibid, art 13

[16] ibid, art 12

[17] ICC, ‘The States Parties to the Rome Statute’ https://www.asp.icc-cpi.int accessed 22 November 2018

[18] Kathy Gannon, ‘Afghans submit 1.17 million war crimes claims to international court’ Independent (17 February 2018) https://www.independent.co.uk/news/world/middle-east/afghanistan-war-crimes-claims-victims-millions-submitted-court-isis-taliban-a8214301.html accessed 22 November 2018; Rome Statute (n 4), arts 8(2), 13

[19] Jay Alan Sekulow and Robert Weston Ash, ‘An Unlawful Overreach: Trying Nationals of Non-Consenting, Non-Party States before the International Criminal Court’ (2014) Florida J Intl L 1, 4

[20] S.S. Lotus (Fr v Turk), 1927 PCIJ (ser A) No 10, para 44

[21] Newton (n 6) 374-375

[22] Rome Statute (n 4), arts 1, 12

[23] Monique Cormier, ‘Can the ICC Exercise Jurisdiction over US Nationals for Crimes Committed in the Afghanistan Situation?’ (2018) JICJ 1, 12

[24] Cormier (n 23) 13

[25] Request for Authorization of an Investigation Pursuant to Article 15, Situation in the Islamic Republic of Afghanistan (ICC-02/17-7-Red), Pre-Trial Chamber III, 20 November 2017, para 46

[26] Sekulow (n 19) 4; Vienna Convention on the Law of Treaties, (adopted 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331), art 34

[27] Newton (n 6) 396

[28] ibid 398

[29] ibid 404

[30] ibid 408

[31] Cormier (n 23) 15

[32] Stahn (n 7) 447-448

[33] Hans-Peter Kaul, ‘Preconditions to the Exercise of Jurisdiction’ in Antonio Cassese, Paola Gaeta and John RWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press 2002) 583, 587

[34] Dapo Akande, ‘The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits’ (2003) J Intl Crim Just 618, 620

[35] Stahn (n 7) 448

[36] Rome Statute (n 4), art 1

[37] Cormier (n 23) 18

[38] Rome Statute (n 4), art 27(1)

[39] ICC, ‘Situations under investigation’ https://www.icc-cpi.int/Pages/Situations.aspx accessed 22 November 2018

[40] David Scheffer, ‘Staying the Course with the International Criminal Court’ (2001) Cornell Intl L J 47, 52-53

[41] Antonio Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) Eur J Intl L 144, 160

[42] Arrest Warrant of 11 April 2000 (Dem Rep Congo v Belg), Judgment, 2002 ICJ Rep 1, para 60

[43] ibid

[44] Cormier (n 23) 13

[45] Carsten Stahn, ‘Taking Complementarity Seriously’ in Carsten Stahn and Mohamed El Zeidy (eds), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge University Press 2014) 252; Martin (n 11) 108

[46] Ellis (n 12) 219

[47] Stahn (n 45) 255

[48] Rome Statute (n 4), art 1

[49] Stahn (n 45) 255

[50] ibid 234

[51] Prosecutor v Katanga, Judgment on the Appeal of Mr Katanga against the Oral Decision of Trial Chamber 11 of 12 June 2009 on the Admissibility of the Case, Appeals Chamber, Case No ICC-01/04-01/07-1497, 25 September 2009, para 85

[52] Ellis (n 12) 222

[53] Daniel Thomas, ‘Rejecting the US challenge to the International Criminal Court: Normative entrapment and compromise in EU policy-making’ (2009) Intl Polt 376, 379-380

[54] ICC State Parties (n 17)

[55] Christian Dahlman, ‘The Function of Opinio Juris in Customary International Law’ (2012) Nordic J of Intl L 327, 336

[56] Transcript (n 2)

[57] Katanga (n 51), para 85

[58] Rome Statute (n 4), art 17(1)(a)

[59] Stahn (n 7) 447

[60] Rome Statute (n 4), arts 17(2), (3)

[61] Request for Authorization (n 25), para 295

[62] ibid, para 289

[63] Rome Statute (n 4), art 17(3)

[64] Ellis (n 12) 238

[65] ibid 238-239; Rome Statute (n 4), art 17(2)(c); United States Courts, ‘Court Role and Structure’ www.uscourts.gov/about-federal-courts/court-role-and-structure accessed 27 November 2018; United States Courts, ‘Overview – Rule of Law’ www.uscourts.gov/educational-resources/educational-activities/overview-rule-law accessed 27 November 2018

[66] Martin (n 11) 124

[67] ibid 122-124, 111

[68] Scheffer (n 40) 88

[69] Martin (n 11) 109

[70] Rome Statute (n 4), art 17(2)

[71] Katanga (n 51), para 79

[72] Request for Authorization (n 25), para 297

[73] ibid, para 300

[74] ibid, para 305

[75] Martin (n 11) 125-126, 129

[76] Hon James Schlesginer, ‘Final Report of the Independent Panel to Review DoD Detention Operations’ 24 August 2004, 5

[77] Martin (n 11) 111, 129, 131

[78] Rome Statute (n 4), art 17; Allen Dickerson, ‘Who’s in Charge Here – International Criminal Court Complementarity and the Commanders’ Role in Courts-Martial’ (2007) Naval L Rev 141, 165-166; Martin (n 11) 133

[79] Request for Authorization (n 25), paras 303-306

[80] Dickerson (n 78) 164, 166

[81] Request for Authorization (n 25), para 328

[82] ibid, para 312

[83] ibid, paras 303-304, 306, 308

[84] Coalition for the International Criminal Court, ‘Factsheet: Status of US Bilateral Immunity Agreements (BIAs)’ (11 December 2006)

[85] The American Service-Members Protection Act 2002 (USA), §§2004, 2007-2008

[86] Rome Statute (n 4), art 1

[87] The Prosecutor v Uhuru Muigai Kenyatta, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute,”Case No ICC-01/09-02/11-274, ICC Appeals Chamber, 30 August 2011, paras 1, 40

[88] Edith Lederer, ‘UN chief asks security council to refer Syria to International Criminal Court’ CTV (26 January 2018) https://www.ctvnews.ca/world/un-chief-asks-security-council-to-refer-syria-to-international-criminal-court-1.3778007 accessed 17 January 2019

[89] Rome Statute (n 4), art 17; Stahn (n 45) 255

[90] Request for Authorization (n 25), para 297

[91] Katanga (n 51), para 85