International Criminal Court

Accountability in law is a cornerstone for more stable societies. Both domestically and internationally holding those who step away from the law accountable deters the future perpetration of crimes. Justice mechanisms that work together bolster that effort and enhance efficiencies that breed confidence in assured justice. Since the invasion by the Russian Federation into Ukraine, there has been broad-based and useful discussion by practitioners and the academy on how best to account for Russian aggression and consequent war crimes and crimes against humanity. The International Criminal Court (ICC) has stepped in with investigations at all levels regarding war crimes, crimes against humanity, and genocide, yet it is constrained by a jurisdictional challenge related to the crime of aggression. Other justice mechanisms are being considered to account for the aggression. The various options being considered range from a hybrid arrangement with Ukraine, a regional European approach, and a United Nations-created international tribunal similar to the successful UN Special Court for Sierra Leone. Only the international approach avoids the jurisprudential challenges that arise with head-of-state immunity. This is significant and is causing the international community to lean towards an international tribunal. As the focus will be on a sitting president this immunity is significant and needs to be addressed. Importantly, there are concerns about cost, efficiencies, and consensus. The international community will favor the effort that is efficient and managed effectively. The lessons learned in the creation of the UN Special Court for Sierra Leone show that an international approach such as a Special Tribunal for Ukraine on the Crime of Aggression can meet all these concerns. With the establishment of the Special Court for Sierra Leone, the international community set the cornerstone for similar efficient efforts for accountability, including the investigation, indictment, arrest, and prosecution of a sitting head of state for aggression, President Vladimir Putin. The international community has made the important decision that President Vladimir Putin and his political and military leadership must be held accountable for the crime of aggression. How this is done remains open, yet the Republic of Ukraine strongly favors a UN-created international tribunal. The important indictment of President Vladimir Putin for war crimes and crimes against humanity last month by the ICC showed the world that the indictment of a sitting head of state for international crimes is the path forward for a more stable world order and to warn those tyrants and dictators who choose violation of law as a policy. This indictment by the ICC has changed history for the rest of the 21st century. 2023 will go down as the year democracies used the law to check aggression, war crimes, crimes against humanity, and genocide. A Special Tribunal for Ukraine on the Crime of Aggression will be an important adjunct to the ICC’s efforts in seeking justice for the Ukrainian people. There are some who worry or are concerned that the creation of another justice mechanism will counter efforts by the International Criminal Court and lessen its stature as the world’s permanent international criminal court. These concerns are groundless as in fact having an aggression tribunal will enhance the ability of the ICC to do its work and show that two courts can work together to support one another in accountability for Russian crimes. One of us has detailed the means of a cooperative relationship between the aggression tribunal and the ICC, as well as funding options, https://www.justsecurity.org/83757/forging-a-cooperative-relationship-between-intl-crim-court-and-a-special-tribunal-for-russian-aggression-against-ukraine/. The hard fact remains that the ICC cannot prosecute the most serious of those crimes—the aggression by the Russian Federation. Some argue that the Rome Statute can be amended to address this, yet that would take too much time to adequately deal with the current and ongoing aggression. Frankly, time is of the essence. An aggression tribunal must be created in 2023 to bolster the current indictment issued by the ICC. Of note, this aggression tribunal will be mandated to work with the International Criminal Court. A draft UN General Assembly Resolution and creative statute, along with a strategic plan, put together by the Global Accountability Project (GAN), with other entities, contemplates a close working relationship with the ICC. The aggression tribunal will be required to enter into appropriate memoranda of cooperation and mutual support with the ICC. The plan put together by GAN has a liaison office that has personnel from both courts working in each other’s offices to insure investigators and trial counsel are sharing appropriate criminal information. The plan also requires the liaison office to create appropriate relationships with the European Union, NATO, and the Prosecutor General in Ukraine. The focus for all of this is mutual collaboration and cooperation. With all this being said, it is now time to continue our international efforts to create the UN Special Tribunal for Ukraine on the Crime of Aggression with a clear aim of doing so in 2023. This will send an important signal to President Putin and all the other tyrants in the world that aggression is not a viable foreign policy tool. We should take heart, as we have put together a plan and we have a history that clearly shows that this can be done successfully, efficiently, and immediately. Let’s get started.

The last Congress delivered a big win for atrocity accountability by passing the Justice for Victims of War Crimes Act, which President Joe Biden signed into law in January of this year. The law closed several critical loopholes in U.S. law on atrocity crimes, adding jurisdiction over war crimes committed abroad when the perpetrator is present in the United States, regardless of the nationality of the perpetrator or victim, and eliminating the statute of limitations for most war crimes (a significant practical barrier to enforcement). These changes brought U.S. law far closer to its obligations under international law, including the Geneva Conventions. While there has not previously been a U.S. prosecution using the war crimes statute, the numerous examples of individuals accused of war crimes ending up in the United States suggest that with due attention and resources, these changes can bolster the United States’ ability to deliver some measure of justice to more victims of atrocities. But even with progress on war crimes, current U.S. law still severely limits the role U.S. courts can play in holding perpetrators of atrocity crimes accountable because of a significant gap in the legal framework for crimes against humanity (which often occur outside of any war context). Crimes against humanity involve a specific set of grave human rights violations committed as part of a widespread or systematic attack against a civilian population (more on that below). If the United States is serious about fighting impunity for the repeated patterns of atrocities committed in Ukraine and many other situations around the world, it should close the crimes against humanity loophole in U.S. law as soon as possible. Momentum for Atrocity Accountability The political will to finally reform U.S. law on war crimes stemmed in large part from bipartisan efforts in both Congress and the executive branch to ensure working paths exist to pursue accountability for atrocities committed in Ukraine. In a September Senate Judiciary Committee hearing, DOJ and DHS officials testified that addressing gaps in U.S. law would expand the tools available to U.S. authorities, and expand access to justice for victims of atrocities, without which the United States would effectively be a “safe haven” for certain types of human rights violators. The hearing raised several other shortcomings of U.S. law on atrocities (including clarifying the extraterritorial applicability of the Alien Tort Statute, the subject of another proposed bill last session that did not advance). Though the hearing again demonstrated bipartisan interest in expanding U.S. jurisdiction over war crimes and crimes against humanity, only the war crimes fixes were achieved during that session, leaving the void for crimes against humanity intact and U.S. agencies and courts without adequate options to provide justice for victims of those crimes. Several experts, civil society coalitions, professional associations, and human rights advocates have repeatedly raised the problem (including a Working Group on Crimes Against Humanity within the American Bar Association chaired by Ambassador Scheffer). An initial bill was introduced by Senator Dick Durbin and colleagues in 2010 (past hearings here, here, here). Since then, cases pursued in some of the many national jurisdictions that already have crimes against humanity laws have provided compelling evidence of their utility: there have been multiple prosecutions of ISIS members in Germany for crimes committed against the Yezidis, cases filed by victims’ advocates in Argentina for crimes committed against the Rohingya and Uyghurs, and criminal cases against Syrian regime officials, all for crimes against humanity. In fact, crimes against humanity was the most common charge (66) found in Trial International’s 2022 report on universal jurisdiction cases, compared to 34 war crimes and 25 genocide charges. Despite their frequency and despite consistent U.S. policy supporting atrocity accountability and prosecutions abroad, the U.S. government does not have its own legal authority to criminally prosecute perpetrators of crimes against humanity, even when alleged perpetrators are in the United States. This leaves a unique category of atrocities vulnerable to impunity. The Crimes Against Humanity Gap in U.S. Law A patchwork of U.S. law currently gives federal authorities the tools to prosecute perpetrators of war crimes (bolstered by the legislative updates described above), genocide, and the specific crimes of recruitment/use of child soldiers and torture, which now all include jurisdiction when the offender is present in the United States (among other jurisdictional bases, coverage of which remains inconsistent among the statutes). Of those statutory tools, only the torture statute has so far been used to pursue criminal accountability in the United States (Ross Roggio, Michael Sang Correa, Charles “Chuckie” Taylor,  Jr., the only conviction so far, and Sulejman Mujagic, who was charged but extradited). Additional existing federal laws punish isolated crimes (such as individual acts of murder) in limited circumstances, but these laws often do not cover crimes committed abroad, even when perpetrators are found in the United States. Because of these limitations, prosecutors often resort to using immigration violations such as fraud and false statements (the utility of which is also limited by statutes of limitation) to prosecute and/or remove suspected international criminals from the United States. In many of these cases, involvement in crimes against humanity form the basis of the fraud allegations and evidence outlined in court. As one example, Liberian warlord Mohammed Jabbateh was convicted of immigration fraud and perjury in 2018 rather than for the most serious crimes that victim testimony demonstrated he and his fighters committed against civilians (murder, enslavement and sexual enslavement, torture, conscription of child soldiers, persecution, and other inhumane acts—all amounting to crimes against humanity) during Liberia’s first civil war. These efforts can physically remove perpetrators from U.S. soil, but they often do not result in appropriate penalties fitting the scale and criminality of atrocities. Prosecuting the conduct that constitutes atrocities as “common” crimes or through immigration violations, as a sort of workaround, does not adequately recognize and respond to the unique social harm and extent of victimization inflicted on communities through widespread, systematic atrocities, and may not elicit the perpetrator’s full culpability. And although some alleged perpetrators have been prosecuted for crimes against humanity or other crimes in their home countries after being deported, others have not and thus may escape justice altogether. Lastly, as Ambassador Scheffer has previously noted, the lack of crimes against humanity provisions in the U.S. legal framework also means that if Americans are allegedly involved in crimes against humanity, either as perpetrators or as victims, the United States’ inability to investigate and prosecute those atrocities at the appropriate level of gravity could mean that there will either be no accountability for those crimes, or that prosecutions will be pursued in other legal venues, such as in the national courts of other countries or international tribunals with jurisdiction, rather than U.S. courts. Crimes Against Humanity Laws Respond to Atrocity Situations that War Crimes Laws and Genocide Do Not As defined in Article 7 of the Rome Statute of the International Criminal Court (ICC), crimes against humanity include certain acts (such as killing, extermination, torture, sexual violence, and persecution) when committed as part of a widespread or systematic attack against the civilian population. Crimes against humanity can include attacks against civilians during war (and therefore may overlap in part with war crimes), but they also cover a distinct set of crimes that occur in “peacetime,” leaving many cases unaddressed by war crimes laws (see USCIRF’s Legislation Factsheet). Crimes against humanity also uniquely recognize the use of a State or organizational policy to attack civilians, which Ambassador Beth Van Schaack noted in written testimony makes crimes against humanity laws “critical” for promoting accountability for senior leaders, who “are often instrumental in the design and execution of the state or organizational policy through which mass atrocities are committed.” And crimes against humanity include many atrocities that do not fit the limited technical legal definition of genocide. Research by Professor Leila Sadat has found that many modern atrocities are solely prosecuted as crimes against humanity — 30% of ICC cases have included only crimes against humanity charges. Because elements of crimes against humanity also often manifest as indicators and precursor acts for other atrocities, occurring before the onset of armed conflicts or more developed plans to destroy entire populations (what Sadat has called an “atrocity cascade”), crimes against humanity laws are also important tools for atrocity prevention. War Crimes War crimes, in contrast, are limited to serious violations of international humanitarian law occurring in the context of an armed conflict (drawn from various international legal sources including the Hague Conventions, Geneva Conventions and their Additional Protocols). Even with recent legislative changes, the provisions of the U.S. Code on war crimes do not include all war crimes under international law, and some were also decriminalized through the Military Commissions Act of 2006. Rome Statute Article 8 contains an extensive illustrative list of war crimes, but it also demonstrates key challenges in their prosecution, which first requires a determination that violence has risen to the level of an “armed conflict,” and then whether the armed conflict is “international” or “non-international” in order to determine which exact rules apply as well as a potential nexus of the relevant conduct to the conflict. What’s more, as Ambassador Stephen Rapp previously noted, courts may deem crimes committed far from the “battlefield” not to be “war crimes,” even when they occur during an armed conflict. Those same challenges do not arise for crimes against humanity. Crimes against humanity charges can also cover unique conduct of comparable gravity to war crimes. The crime of forced marriage, for example, which often occurs within the context of armed conflicts, but is not well captured by enumerated war crimes, has been successfully prosecuted in international courts as a crime against humanity (most recently in the Ongwen case at the ICC). Additional examples include post-election violence (e.g., ICC investigations in Kenya and Cote D’Ivoire); violence against peaceful protestors (e.g., 2009 stadium massacre in Guinea); and mass killings, enforced disappearance, torture, and deportation outside of armed conflicts (e.g., extra-judicial killings as part of the Philippines so-called “war on drugs,” or torture committed against perceived political opponents in Venezuela, or post-coup crimes in Myanmar). Genocide The challenges in prosecuting atrocities as genocide have been clearly articulated by experts (ex. here, here, here, here, here), and research on past U.S. atrocity determinations. Those challenges include the difficulty obtaining sufficient evidence of the highly specific “intent to destroy” a population as well as the limited protected groups covered by the Genocide Convention. Whether an atrocity qualifies as a genocide is often the subject of much public debate, government deliberation, and even judicial deliberation, with questions over classification sometimes clouding the atrocity response. Importantly, it is very likely that acts falling short of the threshold or specific circumstances recognized as genocide within international law would constitute crimes against humanity. The crime of persecution, for example, has existed in international criminal law since the Nuremberg trials, and as part of the law of subsequent international tribunals including the ICC. Like the crime of genocide, the crime against humanity of persecution focuses on acts committed against particular groups based on perceived identity, with discriminatory intent (a lower threshold than the “specific intent to destroy” required for genocide), yet covers more recognized grounds (political, racial, national, ethnic, cultural, religious, gender or other grounds that are “universally recognized as impermissible under international law”) than the crime of genocide. Numerous past cases have exemplified the utility of crimes against humanity at capturing atrocities that were difficult to include within the limited definition of genocide, such as atrocities by the Khmer Rouge in Cambodia against particular political or social groups (not protected groups under the Genocide Convention); and the ICTR Media Case, where charges of persecution as a crimes against humanity allowed prosecutors to include broadcasts by Hutu extremists that helped direct the killing of Hutus politically-aligned with Tutsis. Present day examples include mass violence against political, social, or other groups not covered by the Genocide Convention or where evidence of genocidal intent is difficult to obtain (e.g., extensive crimes against the Uyghurs, which a UN’s report suggested “may constitute international crimes, in particular crimes against humanity”) and gender-based persecution (e.g., escalating attacks on rights of women and girls in Afghanistan), among others. Impact on Accountability for Crimes Against Humanity in Ukraine and Beyond The crimes against humanity loophole in U.S. law leaves the United States unprepared to deal with the slate of potential atrocities occurring in Ukraine and other situations, leaving the United States a safe harbor for perpetrators who come into U.S. jurisdiction. As exemplified above, there are many atrocity crimes not covered by war crimes or genocide statutes, for which having a crimes against humanity statute would be necessary to secure criminal accountability. One does not need to look hard for examples of these crimes occurring in ongoing atrocity situations today. In Ukraine, for example, the OSCE mission of experts’ reports have already concluded that some patterns of violence committed in Ukraine (“targeted killing, rape, abductions, or massive deportations of civilians”) qualified as widespread or systematic attacks against a civilian population likely to constitute crimes against humanity. In 2020, before the invasion, the previous ICC Prosecutor had already found a reasonable basis to believe that war crimes and crimes against humanity had been committed in Ukraine as part of earlier situations, including alleged crimes such as persecution on political grounds and enforced disappearances occurring “in the context of the period leading up to and during the (ongoing) occupation of Crimea.” With the war ongoing, we cannot say for sure that all international crimes committed related to the conflict will be best captured by criminal laws on war crimes alone. Is the systematic targeting of certain groups of Ukrainian civilians, for example, better captured by crimes against humanity charges? Would attacks and violence against activists or dissidents critical of the war or against other persecuted groups within Russia, for which different officials might be highly responsible, rise to the level of crimes against humanity?  Could the “filtration system” and systematic deportation of Ukrainians to Russia, or crimes committed against Ukrainians after their deportation ,best be captured by crimes against humanity? Department of Justice Director of Human Rights Enforcement Strategy and Policy and Counselor for War Crimes Accountability Eli Rosenbaum raised this last concern during the September 2022 hearing (see recording at 1:27:50), noting the possibility that potential ambiguities in other areas of international law make this “another instance in which it would be very helpful to have crimes against humanity on American law books at long last.” Critically, we do not know which perpetrators or victims of atrocities may end up in the United States and fall under U.S. jurisdiction, when perpetrators already in the country will be recognized by law enforcement or even victim communities, or for which specific crimes U.S. law enforcement authorities will be able to obtain sufficient evidence. Having statutes on genocide and war crimes but not crimes against humanity unnecessarily ties the hands of U.S. investigators and prosecutors when opportunities arise. Closing loopholes in the legal framework is therefore one way that the United States can stand up for justice in Ukraine and beyond. Conclusion There is no hierarchy of atrocity crimes. Genocide, war crimes, and crimes against humanity all describe and capture different forms of criminal conduct the international community has deemed unacceptable under any circumstances.  Crimes against humanity focuses on heinous crimes systematically targeting civilians on a massive scale, through abuses of power by States or other organizations. Just as the crime of genocide is an important repudiation of attempts to destroy communities, crimes against humanity also has important expressive value: it elicits truth about the scale of planning and preparation, recognizes unique harm and the targeting of protected groups, and includes acts that fall outside the technical bounds of genocide or war crimes, yet are atrocities nonetheless. Closing the loophole on crimes against humanity in U.S. law would combat the perception that the same universal international legal obligations do not apply to all countries equally, or that victims of some crimes are more deserving of justice than others. And when human rights activists and experts in Ukraine are advocating for Ukraine to shore up their own domestic law on atrocities, correcting a critical flaw in U.S. law only strengthens U.S. credibility and ability to lead. Such a legislative reform would make good on expressed commitments to pursue justice, as updating the war crimes statute did, and help ensure that perpetrators of any atrocities cannot find a safe haven in the United States. It would also give U.S. government lawyers the tools they need to effectuate investigations and deliver justice for victims, including when the U.S. government  has special if not unique access to witnesses, evidence, or the perpetrators themselves. The United States was instrumental in drafting definitions of crimes against humanity as part of the post-WWII Nuremberg and Tokyo tribunals, and as part of its leadership in negotiating the statutes of international ad hoc tribunals and the ICC Statute. During recent diplomatic discussions on a potential crimes against humanity treaty in 2021 and 2022, the United States delegation said the absence of a treaty addressing crimes against humanity was a “critical gap in the international legal framework” that the United States “strongly believe[d] should be addressed.” It is past time to live up to that commitment and fill the crimes against humanity gap in the United States’ own law. Disclaimer: The views expressed herein represent the opinions of the authors. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities.

[Editor’s Note: This article is part of a Just Security series, Prosecuting the Crime of Aggression Against Ukraine. All articles in the series can be found here.] The proposal for a Special Tribunal for the Crime of Aggression (STCoA), one with singular jurisdiction to investigate and prosecute individual leaders responsible for the Russian military’s aggression against Ukraine, has given rise to concern that such a tribunal would compete with the International Criminal Court (ICC) for resources, evidence, arrest warrants, and defendants. Another point of view is that the STCoA would strengthen the ICC’s own investigations and follow through with action on a core crime of the Rome Statute of the ICC — aggression — the one place where the ICC lacks jurisdiction over Russian actions in Ukraine. Establishment of the STCoA can and should advance the efficient and comprehensive application of international criminal justice in the months and years ahead. In this Just Security series, I and several colleagues explain the merits of creating the STCofA through a treaty entered into by the United Nations and the Government of Ukraine (“UN-Ukraine treaty”). The ICC cannot exercise jurisdiction for the crime of aggression against Ukraine due to an exemption for nationals of non-party States (such as Russia) in Article 15bis(5) of the Rome Statute. Thus, the task of investigating and prosecuting the crime of aggression inflicted upon Ukraine must be carried out in a newly-created international tribunal like the STCoA (the choice my colleagues and I and others advocate), the Ukrainian courts, or national courts in other countries exercising appropriate universal jurisdiction. Others will discuss the immunity of defendants that pose special obstacles to trying the crime of aggression in Ukrainian or other national courts. In this article, I explain why the STCoA we have proposed should be a vehicle of cooperation, rather than competition, with the ICC.  1. Sharing Defendants Like the ICC, the STCoA would narrow its investigations and prosecutions to the senior political and military leaders of the Russian Federation, and possibly some oligarchs, because the crime of aggression is strictly a leadership crime. At the STCoA, Russian President Vladimir Putin and his Kremlin cohort of senior military and political advisers could be investigated for planning and executing the invasions of Ukraine in 2014 and again in 2022 (possibly including Belarus leaders) with acts of aggression constituting manifest violations of the U.N. Charter. Before the ICC, the same leadership group would be investigated for the progeny crimes arising from aggression, namely large-scale commission of war crimes, the crimes against humanity committed as part of a widespread or systematic attack against the Ukrainian civilian population, and possibly incitement to commit genocide and forcible transfers of Ukrainian children to Russia. There is nothing incoherent about two international courts, the ICC and the STCoA, investigating the same individuals for the different crimes that fall within their respective subject matter jurisdictions. No Russian leader should escape the reach of international criminal law for any of the atrocity crimes (including aggression) committed against and in Ukraine. Why, for the sake of minimizing challenging litigation, should an army general be investigated for crimes against humanity in Bucha and yet escape investigation for his part in the high leadership group that planned before Feb. 24, 2022 the war of aggression against Ukraine? Why should a senior Russian official involved only in planning aggression against Ukraine essentially be immune from investigation and prosecution by a credible tribunal created under the auspices of the United Nations? Or what if he were deeply involved in both, but the evidentiary proof is insufficient to indict for war crimes committed during the conflict? It is simply implausible to bury in a black hole any accountability for the crime of aggression when the evidence of an egregious act of aggression has been so blatantly revealed in the recent history of Ukraine.  The worry, of course, is that the same individual cannot be in the custody of and on trial before these two tribunals at the same time. It’s true, no one can be two places at once, but this is not an unmanageable problem for national court systems across the globe. Indeed, prosecutions in different courts and across jurisdictions are common. Today, Harvey Weinstein stands trial before a Los Angeles court for rape and sexual assault following his conviction for these crimes against different individuals before a New York court in 2020. Charged individuals often stand trial multiple times, sequentially, before different domestic courts exercising their respective jurisdictions, or through extradition procedures between the courts of different countries. There is no reason that also cannot be the case in the practice of international criminal tribunals. The criminal procedure almost certainly will require many years to hold sequential trials before the ICC and the STCoA, but that is the reality of international jurisprudence. The Rome Statute’s double jeopardy provision, Article 20(3) (“Ne bis in idem”), presents a critical challenge. It requires that, “No person who has been tried by another court for conduct also proscribed under article 6, 7, 8 or 8bis shall be tried by the Court with respect to the same conduct unless” various stipulated flaws existed in the original trial. Article 8bis defines the crime of aggression before the ICC and likely would be replicated in the STCoA Statute. Interestingly, even though the ICC cannot prosecute the crime of aggression with respect to the Ukraine situation, Article 20(3) may require the ICC to consider the STCoA’s initial prosecution of the crime of aggression against an individual in determining whether the same defendant can be charged by the ICC for conduct that overlaps both the crime of aggression and any other of the Rome Statute crimes: genocide, crimes against humanity, and war crimes.  For example, if a Russian general is tried before the STCoA for the crime of aggression because he plotted with other Kremlin leaders the military invasion of Ukraine in early 2022, but the same conduct approving the aggression plan also included, within that plan, strategizing the large-scale commission of war crimes by Russian forces inside Ukraine following the initial act of aggression, then Article 20(3) might be read by at least some ICC judges to prevent prosecution of the general for planning the commission of war crimes in Ukraine, whether or not he was convicted or acquitted before the STCoA on the charge of aggression. However, if the Russian general was prosecuted by the STCoA for the crime of aggression and his conduct examined by the STCoA did not involve plotting war crimes as part of the plan of aggression, but rather his intent to commit war crimes arose weeks or months later in Ukraine independently of his original participation in the plan to invade Ukraine, then Article 20(3) should be no impediment to ICC prosecution of him for war crimes.  Further, Article 20(2) of the Rome Statute explicitly states, “No person shall be tried by another court for a crime . . . for which that person has already been convicted or acquitted by the Court.” Thus, any verdict rendered by the ICC prior to a STCoA trial of the same person would reserve to the STCoA a subsequent prosecution of the crime of aggression since that person would not have been prosecuted by the ICC in the Ukraine situation for the crime of aggression. This would presumably encourage cooperation between the two courts for the ICC to prosecute first any person of interest to both courts.  Obtaining custody of indicted fugitives, most likely residing in Russia, should be strengthened with the existence of two arrest warrants, one for aggression and the second for other atrocity crimes. At some point, military or political leaders or oligarchs who are stigmatized and weakened with two incriminating arrest warrants issued by these international criminal tribunals may begin to lose favor domestically and pressures will mount to pitch them abroad to face the trials awaiting them in The Hague (as was the case with Slobodan Milošević and Charles Taylor). This will be particularly true if nations continue to enforce at least some sanctions against Russia after the war ends and refuse to lift them until the indicted fugitives are surrendered to either tribunal in The Hague. 2. Cooperation Overall, the most critical issue is whether the two courts can negotiate a cooperative relationship agreement where competing investigations, arrest warrants, seizure operations, and custody of leadership suspects likely in Russia can be organized and trials scheduled first before one court and then before the second court. While a special agreement on cooperation doubtless would be required between the ICC and the STCoA, an important treaty that could greatly facilitate the process already exists.  Since the STCoA would be a U.N.-backed criminal tribunal under the UN-Ukraine treaty, there would be a plausible argument that the Relationship Agreement between the International Criminal Court and the United Nations (“Relationship Agreement”) should apply to the relationship between the STCoA and the ICC. Indeed, the UN-Ukraine treaty could explicitly stipulate this and apply Articles 15-20 (“Cooperation and judicial assistance”) of the Relationship Agreement to the STCoA. This would help establish a working partnership between the ICC and STCoA.  The Relationship Agreement actually works to the advantage of the ICC and thus should help dispel concerns about a competing STCoA. The United Nations, and by extension the STCoA, is required to cooperate with the ICC and “to provide to the Court such information or documents as the Court may request pursuant to Article 86, paragraph 6, of the [Rome] Statute.” In turn, that provision reads: “The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.” The reverse flow of evidence — from the ICC to the STCoA — would not be required unless negotiated between the two parties.  Article 18 of the Relationship Agreement would require the STCoA to undertake very close cooperation with the ICC prosecutor and to enter “into such arrangements or, as appropriate, agreements as may be necessary, to facilitate such cooperation” particularly when the ICC prosecutor exercises “duties and powers with respect to investigation and seeks the cooperation of the United Nations in accordance with” the Rome Statute’s Article 54 (“Duties and powers of the Prosecutor with respect to investigations”).  Given the near certainty that investigations of top Russian officials for crimes in both tribunals will entail retrieval and use of classified information provided from a variety of sources (such as communications intercepts obtained by the STCoA and any mole identified within the Kremlin), the ICC and the STCoA can be guided by Articles 18(3) and 18(4) of the Relationship Agreement, which read as follows: Article 18(3): The United Nations and the [ICC] Prosecutor may agree that the United Nations provide documents or information to the Prosecutor on condition of confidentiality and solely for the purpose of generating new evidence and that such documents or information shall not be disclosed to other organs of the Court or to third parties, at any stage of the proceedings or thereafter, without the consent of the United Nations.  Article 18(4): The [ICC] Prosecutor and the United Nations or its programmes, funds and offices concerned may enter into such arrangements as may be necessary to facilitate their cooperation for the implementation of this article, in particular in order to ensure the confidentiality of information, the protection of any person, including former or current United Nations personnel, and the security or proper conduct of any operation or activity of the United Nations. It will be essential that whoever is selected as the STCoA prosecutor have the recognized intent, experience, and demeanor to forge a respectful and cordial working relationship with ICC prosecutor Karim Kahn, who earlier this year began a nine-year term. The STCoA prosecutor also should confirm, in advance, the binding requirements of the Relationship Agreement and any other cooperative arrangement or agreement forged between the two courts and the STCoA’s obligation to comply with them. The last thing proponents of justice want is two strong-willed prosecutors bickering over procedures of cooperation. But that is quite easily avoided. Invoking the Relationship Agreement and any further agreement negotiated and entered into between the STCoA and the ICC should provide for a solid and mutually beneficial working relationship between the two institutions. 3. Funding There is understandable concern about how the STCoA would be funded and whether such funding would be at the expense of the financial requirements of the ICC. The ICC is an assessed body, and thus its 2022 budget of Euro 154,855,000 will be paid with the assessments charged to States Parties of the Rome Statute. The ICC Prosecutor also has sought voluntary contributions, including for the Ukraine investigation. However, it would be unjust for the ICC to seek a disproportionate amount of voluntary contributions for Ukraine at the expense of the many investigations underway of other situations under its jurisdiction. Anyway, there is a limit to what governments would voluntarily contribute to the ICC, either for Ukraine or other situations, because States Parties view assessments as covering their obligations to the ICC in each year’s budget that is negotiated and approved by the ICC Assembly of State Parties, without having to supplement those assessments with voluntary contributions. Prosecutor Kahn may seek a higher authorized budget for his office, and thus require higher assessments from States Parties for next year, to cover the extraordinary expenses of the Ukraine investigation. He would be right to be concerned that the governments that authorize funding for the STCoA may balk at the appeal for higher ICC assessments to cover the Ukraine investigation. There are at least three ways to approach this dilemma. First, the STCoA should be viewed as a de facto extension of the ICC for purposes of investigating and prosecuting the crime of aggression in general, a core crime already embedded in the Rome Statute and that is a central purpose of the ICC. The STCoA would establish the first road map for such investigations and prosecutions of the crime of aggression and that process would benefit the long-term goals of the ICC, particularly if the two courts can cooperate pursuant to the Relationship Agreement and any other specific arrangements or agreements between them. Thus, voluntary funding for the STCoA should be viewed as a down payment on the skills and experience needed by and benefiting the ICC in the long run to litigate the crime of aggression under the Court’s jurisdiction. The STCoA’s track record also can inspire amendment of the Rome Statute to broaden the ICC’s jurisdiction on the crime of aggression in situations like Ukraine.  Second, while it would be ideal for the STCoA’s annual budget to be covered by the regular UN budget (and hence the annual assessments charged to all U.N. Member States), that is a highly unlikely scenario. Requiring U.N. funding, like the International Criminal Tribunals for the former Yugoslavia and Rwanda enjoyed as U.N. Security Council Chapter VII subsidiary organs, would only act as an accelerant for a firestorm of opposition by Russia and China and their friends in the U.N. General Assembly to an initiative to create the STCoA, much less pay for it. Further, the Administrative and Budget Committee (Fifth Committee) of the U.N. General Assembly normally acts on consensus to approve all budgetary matters. That consensus likely would never be achieved for a U.N. allocation of assessed funds to the STCoA or even for any subvention from U.N. funds to cover shortfalls in STCoA voluntary funding (which were approved in the past for the Extraordinary Chambers in the Courts of Cambodia and the Special Court for Sierra Leone). Proponents of the STCoA would also never want to place its annual budget on such unsure footing.  These realities point toward a voluntarily-funded STCoA. Organization for Economic Co-operation and Development (OECD) countries that have taken strong stands opposing the Russian aggression against Ukraine should be willing to contribute significant voluntary funding for the establishment and operation of the STCoA. These nations include the United Kingdom, Canada, the United States, the Baltic States, the Netherlands, South Korea, Poland, Germany, France, Japan, Australia, and the Scandinavian countries. The European Union also might be a willing contributor. Taiwan, in a show of solidarity with the governments opposing aggression against Ukraine, also could contribute to the effort.   Special fundraising diplomacy by experts from the United Nations and the Government of Ukraine will be necessary to corral the essential funding, but there are ample precedents. Similar endeavors were required for years to raise the voluntary public funds to cover the annual budgets of the Extraordinary Chambers in the Courts of Cambodia, the Special Court for Sierra Leone, and the Special Tribunal for Lebanon — all tribunals established by treaty between the United Nations and the respective government. (For full disclosure: I was the U.N. Secretary-General’s Special Expert on U.N. Assistance to the Khmer Rouge Trials (2012-2018)). While a nation’s assessments to the ICC often came up in discussions about raising additional funds for these tribunals, government officials understand the distinction between the two and why a multilateral effort to raise voluntary funds for investigation and prosecution of situations of atrocity crimes not falling within the jurisdiction of the ICC is an objective worthy of the government’s support, however small the contribution. Third, I recently co-authored a soon-to-be-released report for the U.S. Holocaust Memorial Museum that examines use of the social bond market for meeting some of the budget requirements of the ICC and organizations dedicated to meeting the needs of victims of atrocity crimes. An earlier Just Security article, presaged some of the factors covered in the report. There may be good reason to explore floating a social bond to cover the annual operating expenses of the STCoA (as well as a different social bond to cover some of the ICC’s annual budget). Social investors would be identified to spur their interest in the STCoA social bond while governments with AAA, AA, or A sovereign credit ratings in the market could be approached to guarantee the bond and attract further commitments from the social investors.  Each year the proceeds of the social bond would be invested by expert managers in a manner that would secure, with investment earnings, part if not all of the operating expenses of the STCoA as well as a discounted interest rate that would be owed annually to the social investors. Enough funds would remain in the investment account to repay the principal to the social investors at the end of the social bond’s term unless the bond principal is rolled over for continued payment of the operating expenses of the STCoA and payment of the discounted interest rate to the social investors each year. The social investors could be a range of institutions, such as pension funds and insurance companies, and wealthy individuals (including among the Ukrainian diaspora). The guarantors of the social bond could include, in addition to some key governments, regional organizations, and even high net worth individuals (again, including among the Ukrainian diaspora). Given the broad international opposition to the Russian aggression against Ukraine, there should be little difficulty in identifying qualified and interested social investors as well as a pool of possible guarantors. Since the social investor pool for the STCoA most likely would not include governments, there would be no pressure on those governments to decide between providing appropriated funds to support their assessments to the ICC and social investor commitments to the STCoA. Any government that would qualify as an A-category guarantor of the social bond would, if it guaranteed the social bond, carry a contingent liability for the amount it agrees to cover in the guarantee. However, given the relatively conservative manner in which the social bond’s proceeds would be managed each year, a call on the guarantee would be highly unlikely. If the guarantee from A-category sovereign credit governments proves too difficult to arrange, the Government of Ukraine could put up some collateral from State assets to underpin its own guarantee of the social bond. Thus, on the three issues of sharing defendants, cooperating together in pursuit of international criminal justice, and managing funding requirements, the co-existence of the ICC and the STCoA is not only possible, but imperative for the future of Ukraine and its right to achieve accountability for the full range of atrocity crimes, including aggression, committed against it in recent years. 

This year we commemorate the 75th anniversary of the verdict of the Nuremberg Tribunal: on 30 September and 1 October 1946, the International Military Tribunal (IMT) delivered its Judgement in the trial against the most high-ranking political and military leaders of the German Nazi regime. On this occasion, the Leuven Transitional Justice Blog commissioned a special series to examine the lasting legacy of the Nuremberg Trials. In this seventh instalment, David J. Scheffer looks back on the influence of the Nuremberg precedent on the subsequent drafting processes of the statutes of international courts. The influence of the London Charter and Nuremberg principles on international criminal tribunal-building since 1993 has been profound and lasting. As I wrote in my memoir, All the Missing Souls: A Personal History of the War Crimes Tribunals: “The charters of the Nuremberg and Tokyo international military tribunals were the templates for the drafting endeavours of the modern tribunals. They confirmed the core definitions of crimes against humanity and war crimes and set the stage for the Geneva Conventions in 1949. The military tribunals deprived leaders of any immunity from prosecution and soldiers of the defence of superior orders. Their charters insisted on due process protections for the defendants, regardless of how repulsive or guilty they appeared.” As a statute-drafter and negotiator on behalf of the United States Government during the 1990’s in the creation of five tribunals (the International Criminal Tribunals for former Yugoslavia (ICTY) and Rwanda (ICTR), the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court (ICC)), I relied upon the London Charter and Nuremberg principles as the opening template for fundamental principles of law and due process. The endeavour, of course, evolved with successive tribunal statutes that were negotiated and drafted, as each one built upon the experience of immediately preceding statutes.  But the London Charter and Nuremberg principles stood guard, essentially, as the gold standard that I relied upon as a reminder of the origins of international criminal law that must be engraved for the ages. During the initial weeks of the Clinton Administration in early 1993, I happened to be reading The Anatomy of the Nuremberg Trials: A Personal Memoir, by Telford Taylor, a senior U.S. prosecutor at Nuremberg. The book had just been published and I devoured it as I began my work as Senior Adviser and Counsel to the new U.S. Permanent Representative to the United Nations, Dr. Madeleine Albright. We were thrust immediately into dealing with the atrocities of the Balkans War, which I have written about in The Sit Room: In the Theater of War and Peace.  Ambassador Albright led in the U.N. Security Council to create an international criminal tribunal quickly to bring perpetrators of atrocity crimes (genocide, crimes against humanity, and war crimes) in the Balkans to justice. The precedents of the London Charter and Nuremberg principles loomed foremost in our minds as we sought, and obtained, Security Council approval and then as the statute of the ICTY was negotiated and drafted. Indeed, on 22 February 1993, which was the day Resolution 808 authorising the establishment of the ICTY was approved, Ambassador Albright told her Security Council colleagues: “There is an echo in this chamber today. The Nuremberg principles have been reaffirmed. We have preserved the long-neglected compact made by the community of civilised nations 48 years ago in San Francisco to create the United Nations and enforce the Nuremberg principles. The lesson that we are all accountable to international law may have finally taken hold in our collective memory. The debates over the state of international law that so encumbered the Nuremberg Trials will not burden this tribunal.”  I drafted those words for her with Taylor’s book on my desk, reminding me of the powerful precedent of almost a half century earlier and upon which the ICTY would be built. On 13 May 1993, Ambassador Albright convened a working session at the U.S. Mission to the United Nations in New York of academic and practitioner experts to review various draft statutes of the ICTY, as a final draft would soon be put to a vote in the Security Council. I invited Telford Taylor, who was teaching at Columbia University, to join the session. He would be the voice of Nuremberg. Taylor stressed the criticality of the documentary record that underpinned the prosecution of the Nuremberg cases. He foresaw, correctly, a more difficult task in the Balkans, where the ICTY would need to rely much more on witness testimony. One can draw a straight line between many of the London Charter provisions and what appeared in the ICTY statute. The London Charter had become well established as the plausible template for an international criminal tribunal (despite the Nuremberg court being a military tribunal) that had avoided attracting much academic or political objections over the decades since the Nuremberg Trials. That point was critical to ICTY drafters, including the U.N. lawyers who produced the final draft. To garner a unanimous Security Council vote on 25 May 1993, for Resolution 827, the argument had to prevail that the ICTY statute essentially reflected customary international law principles emerging from the London Charter. Since the major legal debate would be about whether the Security Council had the legal authority under the U.N. Charter to create an international criminal tribunal as a subsidiary organ, we wanted any concerns about the substantive character of the ICTY statute to be minimal and successfully rebuttable. So, to ground the ICTY statute in the London Charter and the legacy of Nuremberg was essential. In the drafting of the ICTR statute, one Nuremberg issue that served as a precedent for what to avoid reared its head: collective culpability. As I wrote in All the Missing Souls: “The Rwandans also wanted to cover groups as well as individuals in the tribunal statute. This would have meant that mere membership in a Hutu group, such as the National Police, Coalition for the Defence of the Republic, Democratic Republican Movement, or murderous Interahamwe, would have subjected an individual to criminal liability. The same tactic was employed in 1945 with the London Charter, which empowered the Nuremberg Tribunal to define as criminal any group or organisation to which any defendant appearing in Nuremberg belonged. In the end, the Nuremberg Tribunal declared three of six organisations named in the indictment as criminal in character. But no one else at the table wanted to go down that path in Rwanda, as it pointed toward collective culpability—precisely what we argued must not be the future of justice in the Balkans or Rwanda. The Rwandan negotiators backed down.” During the long years of negotiations leading to the Rome Statute of the ICC, the Nuremberg precedent was a persistent touchstone of reference and reliance. As the U.S. Ambassador at Large for War Crimes Issues during the second term of the Clinton Administration, I led the U.S. delegation to the U.N. talks. I vividly recall the many times that the German delegation would invoke the Nuremberg precedent to emphasise the imperative of creating the ICC, particularly with respect to the crime of aggression. The Japanese delegation, on the other hand, invoked both the Nuremberg and the Tokyo Tribunals’ precedents to emphasise the due process protections that all defendants before the ICC must be accorded. The early objection to and longstanding criticism of the Nuremberg Trials as “victor’s justice” reverberated throughout the years of negotiation of the Rome Statute and to the present day regarding the ICC. While the ICC is a broadly subscribed treaty-based institution of presumptively objective application to all individuals and nations falling within its jurisdiction, the fact that some major powers and populous nations remain outside of its reach for all intents and purposes points to the argument of impunity for the “victors”. The People’s Republic of China, United States, Russia, India, Pakistan, Turkey, Myanmar, Indonesia, Thailand, Vietnam, Saudi Arabia, Israel, Iran, South Sudan, Eritrea, or Ethiopia, for example, can play victor in their internal repression or foreign military adventures without necessarily attracting accountability before the ICC. Thus, the claim of “victor’s justice” has persisted, albeit differently conceived, with the precedent of Nuremberg its stepfather. Remarkably, one of the American prosecutors, Ben Ferencz, at Nuremberg survived long enough to have relentless influence on the creation and operation of the ICC and, in particular, the Rome Statute’s long journey to codify the crime of aggression. The aim to prosecute aggression dominated Justice Robert H. Jackson’s approach to the initial Nuremberg Trials and Ferencz carried forth that mandate as he lobbied for its inclusion in the Rome Statute. I first met Ferencz when the ICC negotiations commenced at the United Nations in 1995. He skilfully lobbied me in my role as the U.S. negotiator for years thereafter. The memory of Nuremberg shaped all that he said, including long into the 21st century as the definition of and procedural requirements to prosecute the crime of aggression finally were agreed to and codified at the Review Conference of the Rome Statute convened in Kampala, Uganda, in 2010. Nuremberg is a “forever legacy” that will continue to shape the growth of international criminal law. I have no doubt that a century from now judges will cite the London Charter, the Nuremberg principles, and the jurisprudence of the Nuremberg Trials as they render justice in the wake, tragically, of further atrocity crimes.

(This article is part of a series on a proposed Convention on the Prevention and Punishment of Crimes Against Humanity, due to be considered in discussions now scheduled to resume on Oct. 13 in the Sixth Committee, the U.N. General Assembly’s primary forum for discussion of legal questions.) The enactment of U.S. legislation on crimes against humanity would strengthen the prospect of the United States one day seriously considering ratification of the proposed Convention on the Prevention and Punishment of Crimes Against Humanity. In testimony before the U.S. Commission on International Religious Freedom on Sept. 30, I sought to explain the importance of the legislation currently being crafted on Capitol Hill. I was joined at the hearing by Professor Leila Sadat, who focused on the convention’s many attributes. The following narrative is drawn from my testimony. At the Nuremberg Trials following World War II, the Holocaust was first and foremost prosecuted by U.S. prosecutors as a crime against humanity with deeply embedded religious origins. If one surveys the atrocity crimes committed in recent decades and currently (namely genocide, crimes against humanity, and war crimes), religious violence stands out as a core element of many of these prejudicial assaults against multitudes of victims. Recall the persecution of the Muslim Cham community by the Khmer Rouge in Cambodia in the late 1970s, Bosnia in the early 1990s, Sudan for decades, ISIS and its rampage through the Middle East several years ago, including against the Yazidis, and today the Uyghurs in China, the Rohingya in Myanmar, and continuing religious turmoil in Nigeria, Kashmir, Yemen, Armenia-Azerbaijan, Ethiopia, the Holy Land, and Northern Ireland. Not everything that has transpired in these religion-stoked situations constitutes crimes against humanity, but this atrocity crime has left and continues to inflict far more scars on humankind than other international crimes. The World Economic Forum reported in 2019 that religious violence across the globe is rising. That trend continues to this day. So this is reality knocking on our door. Many of the criminal acts in the category of crimes against humanity have been employed in religious conflicts: widespread or systematic commission of murder, extermination, forcible transfer of population, torture, and mass rape or other forms of sexual violence, not to mention persecution that can underpin ethnic cleansing on religious grounds and unspecified “inhumane acts” that are confirmed by courts. Indeed, the London Charter that created the International Military Tribunal for the Nuremberg Trials and the Rome Statute that established the International Criminal Court (ICC) explicitly codified religious persecution as a crime against humanity. Gap in U.S. Criminal Law Regrettably, not only is there no convention on the prevention and punishment of crimes against humanity, there is a gap in U.S. federal criminal law regarding such violations, which do not exist in the U.S. Code, even though federal courts often have invoked crimes against humanity as enforceable customary international law in civil law matters. As recently as Sept. 15, the U.S. District Court in the Eastern District of Pennsylvania granted summary judgment in a civil lawsuit brought in February 2018 by survivor victims against a former Liberian warlord, Moses W. Thomas, for torture under the Torture Victim Protection Act and for both war crimes and crimes against humanity under the Alien Tort Statute. The plaintiffs survived a July 1990 massacre at a Lutheran Church in Monrovia, Liberia, during that country’s civil war. Thomas, accused of supervising the slaughter, returned from the United States to Liberia two years ago. If there had been a crimes against humanity statute in federal criminal law in 2018, Thomas could have been detained awaiting trial. Further, were the United States to codify such criminal penalties, it would be well-placed to participate in the future in the proposed Convention on the Prevention and Punishment of Crimes Against Humanity as having already achieved its domestic requirements. The United States thus could serve as a leader to encourage prosecution of this body of atrocity crimes in national courts globally. One can no longer logically argue that crimes against humanity, committed on such a large scale, should be absent from the federal criminal code, as if they merit the imprint of impunity. Frankly, this is an antiquated omission that could be viewed by others as an ever- shining green light to commit crimes against humanity without fear of U.S. criminal justice. For many years, I and others have pointed to this glaring gap in federal criminal law. Senator Dick Durbin, chairman of the Senate Judiciary Committee, has long labored on legislation to codify and criminalize crimes against humanity, which is the draft bill that merits getting across the finish line for filing in this Congress. The American Bar Association Working Group on Crimes Against Humanity, which I chair and of which Professor Sadat and Professor Beth Van Schaack (a Just Security executive editor) are members, has been working to advance a crimes against humanity bill since 2015. The draft legislation also would correct a couple of other gaps in federal law to ensure criminal liability under U.S. law of non-American perpetrators of war crimes waged against anyone anywhere in the world if such alien perpetrators are present in the United States, and to bar from admission to the United States any alien who engaged in the commission of war crimes or crimes against humanity. The United States should not be a safe haven for perpetrators of crimes against humanity during religious conflicts overseas or, for that matter, to advance any cause anywhere. A government cannot speak of religious freedom abroad – much less of seeking to defend it — if the same government is providing shelter to the very individuals who deny such religious freedom by committing crimes against humanity against those whose religious persuasion is different from their own. The interests of victims of crimes against humanity remain paramount. Provided jurisdictional requirements are met, the U.S. legal system should be structured to enable the Department of Justice to meet victims’ yearning for accountability. Impunity for American Citizens? Nor would it be plausible to permit an American citizen to commit crimes against humanity at home or abroad without being subject to criminal punishment under U.S. law. We have not accepted any such impunity for the commission of genocide, torture, or war crimes (including recruiting, enlisting, or conscripting children in an armed force or group or using children to participate actively in hostilities), and there is no rational argument why we should exclude crimes against humanity from the list of crimes that Americans must not commit or tolerate. We should be setting the example, particularly in the face of authoritarian regimes across the globe. Further, just as federal criminal statutes pertaining to genocide, war crimes, and torture do not carve out the U.S. military from their reach, neither should the crimes against humanity bill. While crimes against humanity (and their tough contextual requirements) are not explicitly designated as such in the “punitive articles” of the Uniform Code of Military Justice, there are a number of violations in such punitive articles that can be found (or interpreted to fall) within the corpus of crimes against humanity. A federal criminal law would ensure — as with genocide, war crimes, and torture — that there is no loophole in federal law permitting the commission of crimes against humanity. If there were to be an intentional command decision to commit crimes against humanity and to do so as part of a known widespread or systematic attack against a civilian population — a scenario I would find shockingly un-American — then there must be an unambiguous means of accountability under U.S. law. Even if one remains concerned about the exposure of American nationals to compliance with such international law, I would emphasize this point: Although the United States is not a State Party to the Rome Statute, the nation would be foolish not to have a crimes against humanity law to enforce on its own will. The principle of complementarity under the Rome Statute applies to both States Parties and non-party States to the treaty. Where a country has the capacity in its criminal law to investigate and prosecute crimes against humanity — as crimes against humanity and not lesser crimes — then that country can avoid ICC scrutiny for any such crimes allegedly committed by its nationals, provided the government proceeds in good faith to investigate and, if merited, prosecute any such individuals. U.S. Needlessly Exposed to Scrutiny by ICC This principle serves the interests of a non-party State, such as the United States, because the ICC may seek to investigate U.S. nationals if there are allegations that those individuals committed crimes against humanity on the territory of a State Party to the Rome Statute. The Court must respect the United States when it responds in good faith that it will investigate alleged crimes against humanity, just as it can currently do with respect to alleged genocide and war crimes if suspected by the Court, provided there is federal law enabling its law enforcement authorities to investigate and prosecute crimes against humanity. If there is no such law, then the ICC can ignore American protestations and claim that the United States lacks the legal capacity to undertake the task, which the Court then may proceed to undertake on its own. There are 104 countries, including all but one of the United States’ 27 NATO allies, that have codified crimes against humanity in their criminal codes. A large majority of these 104 countries are States Parties to the Rome Statute. National laws empower such countries to exercise their full complementarity rights under the Rome Statute, essentially requiring the Court to “back off.”  The United States oddly remains, because of this gap in federal law, needlessly exposed to scrutiny by the ICC. All that being said, the legislation is primarily aimed at the more prominent objective of ensuring that alien perpetrators of crimes against humanity find no sanctuary in the United States. Finally, David Miliband, president and chief executive officer of the International Rescue Committee, recently wrote and was interviewed about a new “age of impunity.”  The absence of  a crimes against humanity law in the U.S. federal criminal code certainly exemplifies that description of our times. It is almost a clarion call to those who commit such atrocities that the United States remains available for refuge, or even a quick visit to Disney World, without fear of prosecution. One might describe the United States as “Impunity World” for such world-class criminals. A crimes against humanity bill should not be a heavy lift on Capitol Hill. It should be viewed as a bipartisan, non-partisan imperative for the sake of humankind. The modest part that the United States can play in this global challenge is to criminalize commission of crimes against humanity — in the same spirit as our lawmakers already have done for individual acts of genocide, torture, and war crimes — and thus provide a path to justice for the victims in particular.

Almost seven years following the inaugural Arguendo essays, little has changed to alter the three proposals set forth in my own essay of June 3, 2014, which I address shortly.  No doubt the relationship between the United States government and the International Criminal Court (ICC) slid into a dark pit during the Trump administration when National Security Adviser John Bolton and Secretary of State Mike Pompeo took aggressive stances against the ICC, both in their rhetoric and with sanctions against staff and supporters of the Court who were threatened and inflicted by Executive Order 13928.  The rhetorical aim appeared to be literally to destroy the ICC.  The rationales used by these officials constituted the “big lie” of international criminal justice during those years. Fortunately, balanced reasoning returned with the arrival of the Joe Biden administration and Secretary of State Antony J. Blinken, who announced recission of Executive Order 13298 on April 2, 2021.  I joined some of my successor ambassadors who managed US relations with the ICC in the past to co-author an article in The Hill on May 4, 2021, that welcomes the shift back to a more constructive American future with the Court and to introduce the just released comprehensive report of the ASIL [American Society of International Law] Task Force on Policy Options for US Engagement with the ICC.  Both Blinken and the ASIL Task Force report acknowledged the long-standing position of the US government that personnel of non-party States to the Rome Statute of the ICC are not subject to the jurisdiction of the ICC.  This view—the immunity interpretation—is qualified when the UN Security Council refers a situation covering such individuals to the ICC Prosecutor under Article 13(b) of the Rome Statute of the ICC or the non-party State accepts the exercise of jurisdiction by the Court pursuant to Article 12(3) of the Rome Statute. One should recognize that use of the term “personnel” rather than “nationals” of non-party States refers to military, diplomatic, and other government-employed individuals and does not include other nationals of the civilian population.   The official US position, which I presented as the US negotiator of the Rome Statute in the 1990s, has become an outlier view as it means that non-party State personnel (and sometimes the point is broadened to nationals) can commit atrocity crimes on the territory of a State Party and claim immunity before the ICC for such crimes.  The logic of that position is difficult to grasp for most States Parties and legal scholars as it invites blatant commission of genocide, crimes against humanity, war crimes, and aggression on State Party territory (thus establishing the ICC’s territorial jurisdiction under Article 12(2)(a) of the Rome Statute) by non-party State personnel without any realistic accountability even though that State Party delegated criminal prosecutions for atrocity crimes to the ICC under the Rome Statute and its own domestic law.  Pre-Trial Chamber III of the ICC ruled in the Bangladesh/Myanmar situation that the Court has territorial jurisdiction if part of the alleged criminal conduct, which in that situation allegedly originated with non-party State Myanmar, takes place on a State Party’s territory, such as Bangladesh.  But there has been no explicit ruling by the ICC on the Court’s personal jurisdiction over the nationals or personnel of non-party States committing atrocity crimes on the territory of a State Party. In my view, which I first expressed as an amicus on December 6, 2019, before the ICC Appeals Chamber during a hearing about interpreting the Rome Statute on a different issue in connection with the Afghanistan situation, the development of customary international law has overtaken the immunity interpretation even though some persistent objectors remain.  What is often lost in the entire debate is the simple proposition that if the United States were to become a State Party to the Rome Statute, as originally intended, then the argument about immunity from the ICC for personnel of a non-party State committing atrocity crimes on the territory of a State Party would be extinguished for the United States.  If the presumption is that the United States will never become a State Party to the Rome Statute, then one might want to hold onto the immunity interpretation.  But that was never the intent of the US delegation negotiating the Rome Statute.  Our intent was to build safeguards into the Rome Statute, which we did, that would protect the United States as a State Party and for the pre-ratification years during which the United States remained a non-party State.  Thus, the argument about protecting personnel of non-party States was advanced to address only the period during which the United States, in particular, would not be a State Party.  There was no presumption that the United States forever would be outside of the Rome Statute regime.  The simple solution is for the United States to become a State Party and for the immunity interpretation to become a historical footnote.  Our ally, Israel, may have decided recently or years ago that it will never become a State Party to the Rome Statute and thus it would want to employ the immunity interpretation indefinitely.  But that certainly did not appear to be the intention of Israel’s negotiators in the 1990s, as reflected in Israel’s signature of the Rome Statute hours after I signed the treaty on behalf of the United States on December 31, 2000.  The prospect loomed that our respective countries would relatively soon become States Parties to the Rome Statute, but in the meantime we shared a common view about our non-exposure to the Rome Statute’s jurisdiction until the day each of our governments joined the Court.  Now, 23 years later, I would argue that custom (as well as common sense) creates a new dynamic that works against a particular interpretation of international law that no longer has a compelling rationale in the realm of atrocity crimes.  Even if the immunity interpretation still holds merit, then one must take sides: either the United States continues to invoke the long-standing argument as an interim protective step before soon becoming a State Party to the Rome Statute, or one advances that view for the purpose of perpetually remaining outside of the Rome Statute’s body of States Parties, which now number 123 countries and most of America’s allies and friends.  When I employed the argument representing the United States, it was for the former purpose and never for the latter premise.  Indeed, an ancillary purpose of the immunity interpretation was to incentivize governments to join the Rome Statute, knowing that their actions prior to ratification, including those of their personnel, would not be scrutinized by the Court.  But that is a time-limited incentive that becomes disingenuous if decades pass without commitment.  Today, I believe the United States should move towards ratification of the Rome Statute as a near-term goal and thus shorten the lifespan of the immunity interpretation in Washington.  Turning to the three proposals set forth in my Arguendo essay of 2014, which remain relevant today, Secretary of State Blinken should convey a letter to the United Nations, as depository of the Rome Statute, to reaffirm the US signature on the Rome Statute and this country’s obligation as a signatory nation not to take steps to undermine the Rome Statute.  That would send a powerful signal to the rest of the world that the United States has resumed its leadership in international criminal justice.  Second, work on the crimes against humanity bill has resumed on Capitol Hill this year under the leadership of Senator Dick Durbin (D-IL), chairman of the Senate Committee on the Judiciary.   The Working Group on Crimes Against Humanity (convened by the ABA), which I chair, is deeply involved in advising on the draft of the bill and seeing acceptable text through to adoption as a long overdue law.  There is no morally defensible argument left as to why this gap remains in federal criminal law.  A Crimes Against Humanity Act would enable the United States to exercise its own investigative and prosecutorial authority over perpetrators of crimes against humanity falling within US jurisdiction, thus effectively avoiding ICC scrutiny and ensure, as already is the case with genocide and war crimes, that these individuals do not roam freely on US territory.    Finally, the very complex and violent situation between Israel and Palestine, and now even within Israel itself between Jewish and Arab citizens, begs for an overall peace agreement.  If such a treaty were to be negotiated, then the ICC should be factored into the agreed deal as proposed in my 2014 essay.  Since then, the ICC accepted Palestine, which is a non-member observer State at the United Nations, as a State Party for the purposes of the Rome Statute and launched an investigation of alleged atrocity crimes following referral by Palestine.  That is even more reason to use the opportunity of a peace agreement, which is so desperately needed now, to introduce the ICC into the negotiations and resolve points of serious contention.  The ICC Prosecutor remains seized with the State of Palestine situation and likely will be requested to investigate the violence of 2021.  Palestine can use its leverage as the referring State Party to the ICC to influence the overall strategy of the Prosecutor within the context of a negotiated peace treaty and perhaps an Article 98(2) non-surrender agreement between Israel and a fully recognized nation of Palestine that would emerge from a two-State deal.   Atrocity crimes are not abating in the world and accountability for them is only sporadically being pursued, much less achieved.  The United States still has unique influence, alliances, and commitment to the rule of law to turn the tide against atrocity crimes.  The ICC is a good place to start, again. 

President Biden’s recognition of the Armenian genocide, inflicted over a century ago with an estimated 1.5 million deaths, acknowledges historical facts and rejects Turkey’s long campaign of denialism. The president deserves praise for delivering such a clear statement and, in doing so, underscoring the United States’ commitment to confront genocide. As former diplomats committed to justice for mass atrocities, we have worked collectively for the better part of the last three decades on behalf of the American people to build, support and staff numerous tribunals to prosecute perpetrators of genocide, crimes against humanity and war crimes against thousands, sometimes millions, of innocent people. America has led before and we must continue to champion the pursuit of international justice for such atrocity crimes. The American Society of International Law just issued a Task Force report, U.S. Options for Engagement with the ICC, describing this country’s far-reaching support to international justice over the last 75 years and advocating tangible and constructive options for U.S. policy towards the permanent International Criminal Court (ICC). It should be noted that one of us, Todd Buchwald, helped author the report. Despite aberrant episodes of withdrawal, Washington has repeatedly projected — through diplomacy, legislation, presidential directives, military manuals, strategic messaging and targeted appropriations — America’s strong national interests in promoting human rights, the rule of law and accountability for those responsible for mass atrocities. Bipartisan support for these underlying values has deep roots, including in the United States’ instrumental role in establishing the Nuremberg and Tokyo tribunals to try major war criminals after World War II and its critical support for tribunals prosecuting perpetrators of atrocity crimes in Rwanda, former Yugoslavia, Sierra Leone, Timor-Leste and Cambodia.  American efforts to buttress international criminal justice must include engagement with the ICC. The United States negotiated the creation of this institution and signed the court’s treaty in 2000 but never ratified it. Washington has not joined the more than 120 states, including almost all our allies and friends, as a member of the court. Nonetheless, save in the court’s very early years, the United States embraced a pragmatic approach in which Washington worked with the court and its supporters on issues of common interest, recognizing that there would be issues on which our interests would diverge.   The court’s investigations of the situations in Afghanistan (including some torture allegations against U.S. personnel) and Palestine (based on the court’s finding that Palestine need not qualify as a state under international law before the court exercises jurisdiction) present such issues and undoubtedly will remain contentious. But such disagreements must not translate into reflexive rejectionism of everything the court touches, as in the Trump administration. Far too much of the court’s work serves U.S. interests to make such an approach viable or productive. The United States learned this lesson as it confronted genocide in Darfur. A policy course correction generated a constructive relationship that enabled the Security Council to refer genocidal atrocities in Darfur to the court. The Obama administration facilitated the surrender of long-time fugitives from justice to the court — efforts that served American interests by incapacitating individuals accused of committing the worst crimes known to humankind. The United States doubtless will need to turn to the court again to enforce the proposition that atrocity crimes must be prosecuted.  This was an underlying message when Secretary of State Antony J. Blinken recently announced the lifting of Trump-era sanctions against the court that were widely seen as counterproductive and anathema to the rule of law and American values. The Biden administration should keep turning the page and return to a pragmatic approach to the court that is consistent with American interests and with our long-standing support for global rule of law and accountability.  The United States, its allies, and friends need the court in our collective toolbox for responding to crises where widespread atrocity crimes are being perpetrated and other options do not exist. We should work with our allies to improve the court’s effectiveness and the focus on its core mission, as proposed in a recent independent expert review. Current realities beckon. As the U.S. government surveys the world, Russian troops intimidate Ukraine, Venezuelans endure life-threatening government policies, Syrians and Yazidis cry out for justice, Rohingya flee Myanmar’s military, Uyghurs are cruelly interned in Chinese camps and atrocities rage in Ethiopia’s Tigray region. The ICC needs reform, but a turbulent future demands that we recognize the court for what it is: a critical pillar in the framework of international accountability and atrocity prevention. We would be foolish to pretend otherwise. The authors served respectively as U.S. ambassadors for global criminal justice in the Clinton, George W. Bush and Obama administrations. The views expressed are solely their own and do not necessarily reflect any institution with which they are associated.