Scholarship Saturday: Governing without consent - choice of law conundrums in prosecutions at the ICC when the accused is from a country that has not signed the Rome Statute

This week, Scholarship Saturday is enthused to present a piece from Columbia Law School student Jackson Rubinowitz commenting on a recent article published in the Military Law Review by U.S. Army Major  Kevin M. Junius.

Mr. Rubinowitz' work begins below the "read more" break.

- Isaac Kennen, Scholarship Editor

On July 17, 1998, in an effort to combat international crime, 120 States signed onto the Rome Statute, the treaty that established the International Criminal Court (ICC). While a significant portion of the developed world has signed on and became party states, thereby subjecting themselves to the jurisdiction of the ICC and the substantive law of the Rome Statute, there are some notable exceptions, including the United States. Since the ICC began operations in 2002, complicated issues of international law have arisen involving the treatment of non-party state nationals. There are two main questions: first, when can the ICC exercise jurisdiction over non-party state nationals? And second, if the ICC does exercise jurisdiction over such individuals, should the court apply the substantive law of the Rome Statute or customary international law (CIL)?
 
In a recent article published by the United States Army Judge Advocate General Corps’ Military Law Review, Exercise Jurisdiction at the Edge—What Happens Next? An Analysis of International Criminal Court Substantive Law as Applied to Non-Party State Nationals, U.S. Army Major Kevin M. Junius makes a compelling argument that if the ICC exercises jurisdiction over non-party state nationals, “it must limit the substantive law to those portions of the Rome Statute that constitute CIL or are consistent with applicable non-party state treaty obligations.” Major Junius’ principal arguments are that (1) applying the Rome Statute where it exceeds the bounds of CIL imposes new obligations on third party states, violating the tenet of international law that treaties only impose legal obligations upon their signatories, and (2) because the ICC asserts the ability to exercise jurisdiction over non-party state nationals retroactively, those individuals do not have proper notice of the applicability of the Rome Statute to their conduct at the time of their alleged crimes.

The issue of notice is especially troubling when it is unclear whether the requirements of the Rome Statute actually exceed the bounds of CIL. In the case of an unsettled issue of substantive law under the Rome Statute, a non-party state national would have to foresee (1) that they could be subject to ICC jurisdiction, (2) that the ICC would apply the Rome statute’s substantive law, and (3) that the ICC would resolve an unsettled question of law under the Rome Statute in a manner inconsistent with settled CIL. One such example is the issue of successor liability – liability for commanders who fail to punish subordinates for criminal conduct committed before that commander’s appointment to command. This commentary uses the issue of successor liability as a thought exercise to buttress Major Junius’ argument that the ICC’s retroactive assertion of jurisdiction over non-party state nationals and imposition of Rome Statute substantive law constitutes a brazen violation of fair notice requirements under international law.
 
Retroactive application of the Rome Statute’s substantive law to non-party state nationals fails to provide adequate notice to the accused.
 
The ICC purports to have jurisdiction over non-party state nationals, even for crimes that were neither committed in the territory of a party state or against the national of a party state, through two mechanisms. First, under article 13(b) of the Rome Statute, the ICC will exercise jurisdiction when one of a number of crimes enumerated in article 5 of the statute “appears to have been committed” and the United Nations Security Council (UNSC) refers the situation to the prosecutor. Second, article 11 of the Rome statute allows a non-party state to give the ICC jurisdiction over crimes committed in that state’s territories by nationals of a different non-party state. This is known as “ad hoc consent.” Under either of these jurisdictional mechanisms, applying the Rome Statute’s substantive law in a way that exceeds the bounds of CIL gives rise to a fundamental notice violation. The ICC does not have jurisdiction over the accused until either referral by the UNSC or ad hoc consent of the relevant non-party state. Therefore, at the time the alleged crime is committed, the accused does not know that the Rome Statute applies to his or her conduct.
 
Successor liability
 
The availability of successor liability under CIL and the Rome Statute sheds light on the troubling notice issues that could result from the ICC’s retroactive exercise of jurisdiction over non-party state nationals. Generally, commanders can be held responsible for the crimes of their subordinates under both CIL and the Rome Statute. (Major Junius’ article explains, however, that there are nuanced distinctions to the mens rea required for command responsibility prosecutions.) A more complicated issue is whether a commander can be held liable for failing to punish subordinates who committed crimes before the commander was appointed to his/her position. As this column has discussed previously, despite arguments to the contrary, the concept of successor liability is not viable under CIL. See Isaac Kennen, Scholarship Saturday: The President’s power to pardon – is it limited by a duty under international law to punish war criminals? (citing historical decisions requiring that any “duty to punish” must be tied to the “duty to prevent,” and ruling against successor liability theories generally).

However, the issue is not clear cut, and the most recent case to decide against allowing successor liability was not an ICC case, and it was a close decision. See Prosecutor v. Hadžihasanović (Case No. IT-01-47-AR72, 16 July 2003) (International Criminal Tribunal for the Former Yugoslavia Appeals Chamber rejecting successor liability in a 3-2 majority). Under the Rome Statute, there is less guidance. The plain language of Article 28(a)(ii) does not clarify the state of successor liability because it states that a commander can be criminally responsible for failing to “take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.” (emphasis added). Nothing in this language speaks directly to whether these duties apply to crimes committed in the past or to commanders who were not yet in command at the time. However, expert commentary has suggested that the above language obligates a commander to “take corrective action when he or she becomes aware that violations are about to occur or have occurred.”Carol Fox, Closing a Loophole in Accountability for War Crimes: Successor Commanders’ Duty to Punish Known Past Offenses, 55 Case W. Rsrv. L. Rev. 443 (2004) (quoting William J. Fenrick, “Article 28 Responsibility of commanders and other superiors” in Mark Klamberg (ed.), Commentary on the Rome Statute of the International Criminal Court, 2017, p. 289.) This at least implies that Article 28 covers failure to punish conduct committed in the past. Whether or not this duty applies to successor commanders is simply unmentioned.
 
Ambiguity adds to fair notice concerns for non-party state nationals
 
The ambiguous state of Article 28 gives rise to the possibility that the ICC could interpret the Rome Statute to allow for successor liability, thereby departing from CIL. Major Junius’ concern was that the ICC could apply the Rome Statute’s substantive law, in a way that exceeds the bounds of CIL, to individuals who were not subject to ICC jurisdiction at the time of the relevant conduct and who therefore had no way of knowing their actions would be scrutinized under the Rome Statute. The ambiguity of Article 28 exacerbates these fair notice concerns to an extreme level. As a practical example, consider the perspective of a non-party state commander deciding whether he or she has a legal duty to punish a subordinate for crimes committed in a non-party state’s territory before the commander was appointed to his or her current position. That commander would need the incredible foresight to predict that (1) he or she might be subject to ICC jurisdiction, (2) the ICC might apply Article 28 of the Rome Statute, and (3) the ICC might interpret the ambiguous language of Article 28 to hold him or her accountable under successor liability, even though such a theory is expressly unavailable under CIL.
 
Conclusion
 
It is admittedly unlikely that the ICC’s first decision regarding successor liability under Article 28 will involve a non-party state national operating outside the territory of any party state. However, the possibility of such an outcome sheds light on the fair notice shortcomings that can arise if the ICC continues to insist on applying Rome Statute substantive law where it departs from CIL in cases against non-party state nationals over whom the court only attained jurisdiction retroactively.

Jackson Rubinowitz

J.D. Candidate at Columbia Law School