[Senate Hearing 105-724]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 105-724


 
 IS A U.N. INTERNATIONAL CRIMINAL COURT IN THE U.S. NATIONAL INTEREST?

=======================================================================

                                HEARING

                               BEFORE THE

                SUBCOMMITTEE ON INTERNATIONAL OPERATIONS

                                 OF THE

                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE

                       ONE HUNDRED FIFTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 23, 1998

                               __________

       Printed for the use of the Committee on Foreign Relations


 Available via the World Wide Web: http://www.access.gpo.gov/congress/senate



                      U.S. GOVERNMENT PRINTING OFFICE
 50-976 cc                   WASHINGTON : 1998
_______________________________________________________________________
           For sale by the U.S. Government Printing Office, 
 Superintendent of Documents, Congressional Sales Office, Washington, DC 20402




                     COMMITTEE ON FOREIGN RELATIONS

                 JESSE HELMS, North Carolina, Chairman
RICHARD G. LUGAR, Indiana            JOSEPH R. BIDEN, Jr., Delaware
PAUL COVERDELL, Georgia              PAUL S. SARBANES, Maryland
CHUCK HAGEL, Nebraska                CHRISTOPHER J. DODD, Connecticut
GORDON H. SMITH, Oregon              JOHN F. KERRY, Massachusetts
CRAIG THOMAS, Wyoming                CHARLES S. ROBB, Virginia
ROD GRAMS, Minnesota                 RUSSELL D. FEINGOLD, Wisconsin
JOHN ASHCROFT, Missouri              DIANNE FEINSTEIN, California
BILL FRIST, Tennessee                PAUL D. WELLSTONE, Minnesota
SAM BROWNBACK, Kansas
                     James W. Nance, Staff Director
                 Edwin K. Hall, Minority Staff Director

                                 ------                                

                SUBCOMMITTEE ON INTERNATIONAL OPERATIONS

                     ROD GRAMS, Minnesota, Chairman
JESSE HELMS, North Carolina          DIANNE FEINSTEIN, California
SAM BROWNBACK, Kansas                CHRISTOPHER J. DODD, Connecticut
GORDON H. SMITH, Oregon              JOHN F. KERRY, Massachusetts

                                  (ii)



                            C O N T E N T S

                              ----------                              
                                                                   Page

Bolton, Hon. John R., Former Assistant Secretary of State for 
  International Organization Affairs; Senior Vice President, 
  American Enterprise Institute, Washington, D.C.................    28
Casey, Lee A., Attorney, Hunton & Williams, Washington, D.C......    32
Scharf, Michael P., Professor of Law, and Director, Center for 
  International Law and Policy, New England School of Law, 
  Boston, Massachusetts..........................................    34
Scheffer, Hon. David J., Ambassador-at-Large for War Crimes 
  Issues; Accompanied by Mary Ellen Warlow, U.S. Department of 
  Justice........................................................     9

                                Appendix

Additional Questions Submitted for the Record by the Committee to 
  Ambassador David J. Scheffer...................................    45

Prepared Statements of Hearing Witnesses

    Prepared Statement of John R. Bolton.........................    48
    Prepared Statement of Lee A. Casey...........................    64
    Prepared Statement of Michael P. Scharf......................    72

Additional Statements Submitted for the Record

    Statement Submitted by The Lawyers Committee for Human Rights    75
    Statement Submitted by Richard Dicker of Human Rights Watch..    76

Related Documents

    Rome Statute of the International Criminal Court.............    79
    Statement of the United States Delegation to the Preparatory 
      Committee on the Establishment of an International Criminal 
      Court......................................................   129
    Statement of the United States Delegation on Elements of 
      Offenses...................................................   129
    Proposal Submitted by the United States of America on 
      Elements of Offences for the International Criminal Court..   131
    Reference Paper Submitted by the United States of America on 
      Rules of Evidence of the International Criminal Court......   142
    Statement of the United States Delegation on ``Article 11 
      bis--Preliminary Rulings Regarding Admissibility''.........   145
    Proposal Submitted by the United States of America on Article 
      11 bis.--Preliminary Rulings Regarding Admissibility.......   147
    The Concerns of the United States Regarding the Proposal for 
      a Proprio Motu Prosecutor..................................   147

                                 (iii)



 IS A U.N. INTERNATIONAL CRIMINAL COURT IN THE U.S. NATIONAL INTEREST?

                              ----------                              


                        THURSDAY, JULY 23, 1998

                               U.S. Senate,
          Subcommittee on International Operations,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The subcommittee met at 10:08 a.m., in room SD-419, Dirksen 
Senate Office Building, Hon. Rod Grams, chairman of the 
subcommittee, presiding.
    Present: Senators Helms, Grams, Ashcroft, Feinstein, and 
Biden.
    Senator Grams. I apologize for being late, but I would like 
to call this hearing of the International Operations 
Subcommittee on the creation of the international court into 
session. I do have an opening statement; and I would like to 
defer to my colleague from California, Senator Feinstein, and 
then we would hear from our panel this morning. Thank you very 
much.
    Well, Ambassador Scheffer, I want to thank you for making 
the effort to come before this committee so soon after the 
completion of the U.N. conference in Rome. I understand that 
you probably have not had time to fully recover from what was 
by all accounts a grueling round of negotiations on the 
creation of the International Criminal Court.
    However, given this court claims universal jurisdiction--in 
other words, the right to prosecute United States citizens even 
though the U.S. is not a party to the treaty--it is important 
for Congress and the American people to become apprised of the 
details regarding the court sooner rather than later.
    Now, while I am relieved that the administration voted 
against the treaty in Rome, I am convinced that it is not in 
itself sufficient to safeguard our Nation's interests. The 
United States must aggressively oppose this court each step of 
the way, because the treaty establishing an international 
criminal court is not just bad, but I believe it is also 
dangerous.
    The proposed ICC is not a part of the international system. 
It sits alone and above the system, and that is by design. At 
present international law regarding peace and security is 
largely whatever the Security Council says that it is. With the 
creation of the International Criminal Court, that will no 
longer be the case.
    This is a great victory for the critics of the Security 
Council that have finally achieved their goal of diluting the 
power of the permanent five with the realization that their 
bids to increase the number of permanent members were destined 
to ultimately fail. They found a way to circumvent the 
authority of the Security Council altogether; and ironically, 
by undermining the role of the Security Council, this court 
could have the effect of destabilizing the international arena 
instead of securing it.
    Supporters of this court can proclaim that it will act as a 
deterrent against the commission of war crimes and other 
atrocities, but the evidence I believe points to the contrary. 
Saddam Hussein and the next Pol Pot will not be deterred by the 
indictments of the International Criminal Court any more than 
Bosnian Serb strongmen have been deterred by their indictments 
by the Yugoslav War Crimes Tribunal when they undertook their 
massacre.
    The fact remains, the most effective deterrent is the 
threat of military action; and this court is undermining the 
ability of the United States to do that very thing. The ICC may 
issue a series of indictments, but unless these war criminals 
are defeated and they are stripped of their power, they will 
never be brought to justice.
    It is ironic that the same countries which look to the 
United States to be the global enforcer have now created a 
court which inhibits our ability to project force. By claiming 
universal jurisdiction, this treaty will force us to reconsider 
the deployment of our troops around the world, even though we 
are not a party to the treaty. At the very least, we will have 
to renegotiate our status of force arrangements.
    In some circumstances, as our Secretary of Defense 
reportedly noted, we may decide that the best policy is to 
withdraw our troops; and when the international community comes 
to us requesting that American soldiers participate in a 
peacekeeping mission, we will have to factor into our 
calculations the threat of our soldiers being turned over to 
the ICC.
    A Dutch delegate offered faint praise of this international 
criminal court stating--and I quote--``I won't say we gave 
birth to a monster, but the baby has some defects.'' Well, I 
respectfully disagree, the International Criminal Court is a 
monster.
    First, the ICC will have the final determination over 
whether it has jurisdiction over the case. Under a system of 
complementarity, the ICC can override the decision of a 
nation's judicial system and it can pursue a case if it decides 
that a State is unwilling or unable to do so. In other words, 
if an ICC prosecutor wanted to investigate and charge the 
President of the United States for a bombing raid like the one 
President Reagan conducted in Libya, our only way to prevent 
the case from going forward would be to have our own Justice 
Department investigate the President. If the U.S. Government 
then declined to prosecute, it would still be up to the 
judgment of the ICC whether to prosecute and pursue the case.
    A decision by the International Criminal Court to prosecute 
Americans for military action would not be the first time that 
an international court tried to undercut our pursuit of our 
national security interests. In 1984, the World Court ordered 
the U.S. to respect Nicaragua's borders and to halt the mining 
of its harbors by the CIA. In 1986, the World Court found our 
country guilty of violations of international law through its 
support of the Contras and ordered the payment of reparation to 
Nicaragua. Needless to say, we ignored both of those rulings.
    Second, the International Criminal Court prosecutor will 
have the power to initiate prosecutions without a referral from 
the Security Council or state parties. There will be no 
effective screen against politically motivated prosecutions 
from being brought forward.
    Third, the judges will not be confined to those from 
democratic countries with rule of law. The judges will be 
elected by a super majority of the state parties. Given that, 
the group of 77 developing countries in the U.N. General 
Assembly, which routinely vote against the United States and 
which is really more like 160 countries, could represent such a 
majority. This is not much of a screen.
    As for eligibility to service, the U.S. proposal to require 
judges to have both criminal trial and international law 
experience was rejected as too high of a bar to meet. Of 
course, the ICC judges must possess all of the qualifications 
required in their respective states for appointment to the 
highest judicial offices, and I wonder what that means in Sudan 
or in Iran.
    Finally, it turns the functioning of the Security Council 
on its head and, I think, sets a very bad precedent. The 
Security Council must act affirmatively to stop a prosecutor 
from taking up a case. This means that the U.S. loses its veto, 
and it would need to convince a majority of members to vote 
with us to stop the International Criminal Court from 
proceeding.
    Supporters of this treaty are banking on the fact that the 
United States will allow this court to flourish and gain 
legitimacy over time. We must not allow that to happen. Even if 
it is weak at its inception, the Court's scope and its power 
can and will grow. This court will be an international 
institution without checks or balances, accountable to no state 
or institution for its actions, and there will be no way to 
appeal its decisions except through the Court itself.
    Whatever lines are drawn in Rome can be erased or redrawn 
at some future date by a majority of state parties, and as the 
head of the Swiss delegation pointed out, the rules of the 
Court will be developed over time by the Court itself through 
custom and precedent.
    Now, we must affirm that the United States will not cede 
its sovereignty to an institution which claims to have the 
power to override the United States legal system and to pass 
judgment on our foreign policy actions. We must refuse to allow 
our soldiers and Government officials to be exposed to trial 
for promoting the national security interests of the United 
States and deny the international court's self-declared right 
to investigate, prosecute, convict, and punish U.S. citizens 
for supposed crimes committed on American soil which is 
arguably unconstitutional.
    The only fail-safe way to ensure these results is to make 
sure that this treaty never is ratified by the 60 nations 
necessary for it to go into force. Should this court come into 
existence, we must have a firm policy of total non-cooperation, 
no funding, no acceptance of its jurisdiction, no 
acknowledgement of its rulings, and absolutely no referral of 
cases by the Security Council.
    I think we can all agree that the current U.N. and ad hoc 
tribunal system is imperfect. It is certainly inefficient. The 
need to set up an administrative, investigative, and judicial 
structure in each case creates a number of bureaucratic hurdles 
and significant delays in getting these tribunals up and 
operating.
    Many supporters of an international criminal court point to 
these failings as evidence that a permanent court is needed. 
However, this treaty does not create a permanent architecture 
to support the current tribunal system. It creates an 
independent international body with unprecedented power, super 
national power, and I for one am not willing to trade the 
sovereignty of this country for gains in efficiency, no matter 
how noble the cause.
    Mr. Ambassador, the U.S. lost the big battles over 
universal jurisdiction, the self-initiating prosecutor, a 
Security Council screen, the crime of aggression, and state 
consent. I hope that now the administration will actively 
oppose this court to make sure that it shares the same fate as 
the League of Nations and collapses without U.S. support for 
this court truly I believe is the monster and it is the monster 
that we need to slay.
    I want to thank you.
    Senator Feinstein.
    Senator Feinstein. I would like to begin by thanking you, 
Mr. Chairman, for conducting this hearing so quickly after the 
vote in Rome last week.
    Frankly, I am of two minds regarding the hearing and the 
International Criminal Court that emerged from the Rome 
conference.
    On one hand, I truly believe the President is correct when 
he said that nations all around the world who value freedom and 
tolerance should establish a permanent international court to 
prosecute, with the support of the United Nations Security 
Council, serious violations of humanitarian law. And, as we 
approach the 21st century, I think we have got to make it 
really clear that individuals who participate in serious crimes 
against humanity cannot act with impunity. I had hoped we 
learned this lesson in World War II, and too many times in this 
century, even since World War II, we have witnessed the terror 
of genocide, of mass rape, and of ethnic cleansing. With the 
explicit labeling and recognition of war crimes and crimes 
against humanity, including significantly such acts as rape and 
sexual slavery, the establishment of an international criminal 
court would send a strong message to those contemplating 
committing such crimes and, I believe, could play an 
instrumental role in making sure that the sordid chapter of 
human history in which such acts are employed is brought to a 
close.
    On the other hand, I share the concerns which ultimately 
led the United States to determine that it could not support 
the draft statute that emerged in Rome. And I think the 
chairman of this subcommittee has rather forcefully made those 
points. None of us would like to see a court that frivolously 
prosecutes Americans or which acts with politics, not justice, 
as its motivating force. I think the question is, to what 
degree is a member of the armed forces that might be deployed 
abroad really subject to this kind of politics, if one chooses 
to play it, by giving the prosecutor some kind of untrammeled 
authority?
    But it seems to me that the bottom line of the Rome 
conference is that the United States is still left facing what 
Ambassador Scheffer, in a speech this past September, termed 
``a gap in international criminal justice.'' This gap exists 
because of the lack of an international criminal court. This 
gap, in my mind, should be filled.
    There can be little doubt that the problem of filling this 
gap is a complex one, and that it is extremely difficult to 
arrive at an effective and a nonpolitical solution. The effort 
by Ambassador Scheffer and others in Rome is testament to these 
difficulties, but I truly believe that the victims of the 
atrocities and the war crimes of this century demand our 
continued effort.
    Thus, although some may see the result of Rome as an end to 
the International Criminal Court, I would like to think that we 
remain still at a crossroads, and that if the other members of 
the international community go forward with the endeavor, the 
United States might still seek amendments and might one day be 
able to join them. I have been one that has been very 
concerned, particularly with the former Yugoslavia, in writing 
letters to the President, in writing letters to the Secretary-
General of the United Nations, that the war criminals, the 
Karadzics and the Mladics of the world, must be brought to 
justice. So, it is with some irony that I now find myself 
questioning some of the strictures laid down in Rome with 
respect to the development of this court.
    It seems to me that reasonable people ought to be able to 
agree on a set of definitions and on a protocol and a procedure 
that in effect would take the political maneuverings out of the 
designation of war criminal and set certain specific beginning 
causes with which we all agree as the kind of opening to really 
test the value of an international criminal court. Apparently 
that is not going to happen.
    So, I view our present predicament with some amount of 
dismay. To many in the world, whether we like it or not, this 
country sometimes acts wrongly and we think we are always 
right, and I share that belief. But if you are talking about an 
international criminal court, we have to take those things 
where we can agree and move them forward onto the agenda and 
into the domain of the development of this court.
    So, I look with great interest to see what Ambassador 
Scheffer has to say today and then be able to ask some 
questions. I thank you, Mr. Chairman.
    Senator Grams. Thank you, Senator. We have also been joined 
by Senator Helms. Senator?
    Senator Helms. Thank you very much, Mr. Chairman, for 
putting up with me this morning. I try not to make long 
speeches, but this one is one that I think deserves a lot of 
discussion and a lot of contemplation. I thank you for calling 
this hearing, the subject of which is exceedingly significant, 
and I hope I may be forgiven by those who feel that I am 
talking too long.
    Now, I do not agree with the able and charming Senator from 
California. We do not agree always, but I respect her always.
    It is no secret that the United States walked away from 
this treaty negotiated in Rome to establish a permanent United 
Nations international criminal court. That was certainly the 
right thing for you to do. I appreciate your having done it.
    I am aware that the administration was eager to sign that 
treaty, so the very fact that you, Mr. Ambassador, declined to 
do so speaks volumes about how unwise this treaty adopted in 
Rome really is.
    Since the signing ceremony, several governments have made 
clear their belief that the United States will eventually 
succumb to international pressure and join the Court.
    Now, let me be clear, at least from one Senator's position, 
the Rome treaty is irreparably flawed. The statute purports to 
give this international court jurisdiction over American 
citizens even if the United States refuses to sign or ratify 
the treaty. It empowers this court to sit in judgment of the 
United States foreign policy. It creates an independent 
prosecutor accountable to no government or institution for his 
actions, and it represents a massive dilution of the United 
Nations Security Council's powers and of United States veto 
power within that Security Council. In short, this treaty 
represents a very real threat to our military personnel and to 
our citizens and certainly to our national interests.
    Mr. Ambassador, I commend you for voting no on this fatally 
flawed treaty, but I also must be clear, rejecting this treaty 
is not enough. The United States must fight this treaty. 
Canadian Foreign Minister Lord Ashworthy asked you a pretty 
good question in Rome. He said--and I quote--``The question is 
whether the United States treats the Court with benign neglect 
or whether they''--the United States--``are aggressively 
opposed.'' He is right about that.
    Now, what galls me is that we sent American personnel 
overseas twice in this century, along with expenditure of 
billions of dollars, to save the bacon of countries who voted 
against us in this regard. And I damned well resent that, and 
they better get used to the notion that there are several of us 
in the Senate who feel the same way.
    But we must, Mr. Ambassador, I think be aggressively 
opposed to this court, and let me cite just a few examples why 
I say that.
    The treaty includes in one of its ``core crimes'' something 
called the crime of aggression. The countries negotiating the 
treaty in Rome were unable to reach agreement on just what 
constitutes a crime of aggression. Well, I think I can 
anticipate what will constitute a crime of aggression in the 
eyes of this court. It will be a crime of aggression when the 
United States of America takes any military action to defend 
the national interest of the American people unless the United 
States first seeks and receives the permission of the United 
Nations. And I say baloney to that.
    So, what this court proposes to do is this. It will sit in 
judgment of the national security policy of the United States. 
Now, just imagine what would have happened if this court had 
been in place during the U.S. invasion of Panama or the U.S. 
invasion of Grenada or the United States bombing of Tripoli. In 
none of those cases, did the United States seek permission from 
the United Nations to defend our interest. So long as there is 
breath in me, the United States will never--and I repeat never, 
never--allow its national security decisions to be judged by 
any international criminal court.
    Now, we all know the history of how in the 1980's the World 
Court attempted to declare U.S. support for the Nicaraguan 
contras to be a violation of international law. The Reagan 
administration simply ignored the World Court because the World 
Court had no jurisdiction and no authority in this matter.
    Well, this court declared that the American people are 
under its jurisdiction no matter what the U.S. Government says 
or does about it. So, you see the delegates in Rome included a 
form of universal jurisdiction in the Court's statute. This 
means that even if the United States never signs the treaty and 
even if the United States refuses to ratify it, the countries 
participating in this court will regard American soldiers and 
citizens to be within the jurisdiction of this international 
criminal court. And again, I say baloney. That, Mr. Chairman, 
is nonsense in short. It is an outrage that will have grave 
consequences for our bilateral relations with every one of the 
countries that signs and ratifies this treaty, and they better 
understand this at the outset.
    I understand that Germany was the intellectual author of 
this universal jurisdiction provision. Mr. Chairman, we have 
thousands of American soldiers stationed in Germany right now. 
Will the German Government now consider those American forces 
under the jurisdiction of the International Criminal Court?
    Now, I support keeping forces in Germany but not if Germany 
insists on exposing them to the jurisdiction of the ICC. The 
administration will now have to renegotiate our status of 
forces agreements with Germany and other signatory states, and 
we must make clear to these governments that their refusal to 
do so will force us to reconsider our ability to station forces 
on their territory, participate in peacekeeping operations, and 
meet our Article 5 commitments under the NATO charter. We will 
have no choice about that.
    Because this court has such wide-ranging implications for 
the United States and the American people, I shall seek 
assurances from the Secretary of State on the following points.
    One, Article 13(b) permits a case to be referred to this 
court by the Security Council. The United States must never 
vote in favor of such a referral, Mr. Ambassador.
    The United States will not provide any assistance 
whatsoever to the Court or to any other international 
organization in support of the Court either in funding or in-
kind contributions or other legal assistance.
    The United States shall not extradite any individual to the 
Court or directly or indirectly refer a case to the Court.
    The United States shall include in all of its bilateral 
extradition treaties a provision that prohibits a treaty 
partner from extraditing U.S. citizens to this court.
    The United States shall renegotiate all of its status of 
forces agreements to include a provision that prohibits a 
treaty partner from extraditing U.S. soldiers to this court and 
will not station American forces in any country that refuses to 
accept such a prohibition.
    The United States shall not permit a U.S. soldier to 
participate in any NATO, United Nations, or other international 
peacekeeping mission until the United States has reached 
agreement with all of our NATO allies and the United Nations 
that no United States soldier will be subject to the 
jurisdiction of this court.
    Mr. Chairman, I have been accused by advocates of this 
court of engaging in 18th century thinking. One of the smart 
columnists who knows it all said that the other day. Well, I 
find this to be a compliment. It was 18th century thinking that 
gave us our Constitution. It was 18th century thinking that 
gave us the fundamental protections of our Bill of Rights. And 
I will gladly stand with James Madison and the rest of our 
Founding Fathers over that collection of ne'er do wells in Rome 
any day of the week.
    If Madison and the other Founding Fathers were here today, 
I believe that they would support the assertion that any treaty 
which undermines those constitutional procedures and 
protections, as this one clearly does, will be dead on arrival 
when it reaches the Foreign Relations Committee. Let us close 
the casket right now, Mr. Ambassador.
    Thank you, Mr. Chairman.
    Senator Grams. Thank you very much, Senator Helms. Senator 
Ashcroft?
    Senator Ashcroft. Thank you, Mr. Chairman. I want to 
associate myself, to the extent that I am eligible to do so, 
with the chairman of the full committee. I thought that was an 
outstanding presentation.
    I want to thank you, Mr. Chairman, for holding this 
hearing. The International Criminal Court in my judgment 
represents a clear and continuing threat to the national 
interests of the United States despite our decision not to 
participate.
    I might add that I am very pleased that the administration 
has made the wise decision not to participate, but I think it 
is important to consider carefully what the chairman of the 
full committee has just reiterated, that some complicit 
cooperation in the operation of a court in which we did not 
fully participate in forming could be as damaging as full 
participation. Therefore, our need to be vigilant in this 
respect is continuing. I was pleased that the United States 
voted against the passage of this global criminal court.
    However, I do remain concerned that the danger posed by 
this court has not passed. The administration has already come 
under criticism for its rejection of the Court and there will 
be considerable pressure from proponents of the Court for the 
administration to reconsider its opposition. Even more 
disturbing is the possibility that the Court would assert 
jurisdiction over American soldiers despite America's refusal 
to join the Court. The Court's claim of universal jurisdiction 
smacks of arrogance and creates deep concerns about how the 
United States will interact with this court and how the Court's 
existence could cloud decisions about when to deploy American 
soldiers.
    The administration should just say no to any efforts to get 
the United States to reconsider or to signal any degree of 
compliance, formal or informal, with the Court.
    As a member of the Senate Foreign Relations Committee and 
as Chairman of the Subcommittee on the Constitution, Federalism 
and Property Rights, I find the International Criminal Court 
profoundly troubling. If there is one critical component of 
sovereignty, it is the authority to define crimes and 
punishment. This court strikes at the heart of sovereignty by 
taking this fundamental power away from individual countries 
and giving it to international bureaucrats.
    No aspect of the Court is more troubling, however, than the 
fact that it has been framed without any apparent respect for--
and indeed in direct contravention of--the United States 
Constitution.
    First and foremost, I remain concerned by the possibility 
that Americans could be dragged before this court and denied 
the protection of the Bill of Rights. Even more fundamentally, 
I am concerned that the administration participated in these 
negotiations without making any effort to insist that the 
proposed international criminal court incorporate and honor the 
Bill of Rights. Even if one concedes that such a court might be 
needed, which I emphatically do not, we should certainly insist 
on respect for the Bill of Rights.
    The proposed court negotiated in Rome neither reflects nor 
guarantees the protections of the Bill of Rights. The 
administration was right to reject the Court and must remain 
steadfast in its refusal to join a court that stands as a 
rejection of America's constitutional values.
    Had the administration indicated a desire to join this 
court, I had already signaled that I would have held hearings 
in the Constitution Subcommittee to examine the constitutional 
issues raised by the International Criminal Court in more 
detail. In light of the administration's current position, 
these hearings might prove to be unnecessary. I am speaking of 
hearings in the Judiciary Committee's Subcommittee on the 
Constitution which I have the privilege of chairing.
    However, if there is any indication that the administration 
may reconsider its position, I stand ready to hold hearings in 
the Judiciary Committee.
    I have a longer statement. It might be hard for you to 
believe, but I do, and I would like to submit it for the 
record.
    Senator Grams. Without objection.
    Senator Ashcroft. And if I have time, I would like to have 
the opportunity to direct some questions to the Ambassador.
    [The prepared statement of Senator Ashcroft follows:]

                 Prepared Statement of Senator Ashcroft

    Mr. Chairman, I want to thank you for holding this hearing. the 
International Criminal Court represents a clear and continuing threat 
to the national interest of the United States, despite our decision not 
to participate. I was pleased that the United States voted against 
final passage of this global criminal court. However, I remain 
concerned that the danger posed by this Court has not passed.
    The Administration has already come under criticism for its 
rejection of the Court, and there will be considerable pressure from 
proponents of the Court to reconsider the Administration's opposition. 
Even more disturbing is the possibility that the Court would assert 
jurisdiction over American soldiers, despite the American refusal to 
join the Court. The Court's claim to universal jurisdiction smacks of 
arrogance and creates deep concerns about how the United States will 
interact with this Court and how the Court's existence could cloud 
decisions about when to deploy American soldiers. The Administration 
should ``just say no'' to any efforts to get the United States to 
reconsider or to signal any degree of compliance--formal or informal--
with the Court.
    As both a Member of the Senate Foreign Relations Committee and as 
Chairman of the Subcommittee on the Constitution, Federalism and 
Property Rights, I find the International Criminal Court profoundly 
troubling. If there is one critical component of sovereignty it is the 
authority to define crimes and punishments. This Court strikes at the 
heart of sovereignty by taking this fundamental power away from 
individual countries and giving it to international bureaucrats.
    There are other aspects of this Court that are equally troubling. 
As examples, the authorization of international independent 
prosecutors, the expense of such a permanent court, and the lack of any 
clear limits on the Court's jurisdiction are all alarming. But no 
aspect of this Court is more troubling than the fact that it has been 
framed without any apparent respect for--indeed, in direct 
contravention of--the United States Constitution.
    As Chairman of the Constitution Subcommittee, I have a number of 
particular concerns about the Court. First and foremost, I remain 
concerned by the possibility that Americans could be dragged before 
this Court and denied the protections of the Bill of Rights.
    Even more fundamentally, I am concerned that the Administration 
participated in these negotiations without making any effort to insist 
that the proposed International Criminal Court incorporate and honor 
the Bill of Rights. Even if one concedes that we need an International 
Criminal Court--which I emphatically do not--we should certainly insist 
on respect for the Bill of Rights as the price of American admission.
    America's ideals and values are ascendant in the post-Cold War 
world. America's position as world leader is, in no small part, a 
product of a Constitution that is the envy of the world. The 
Administration should be justly proud of that Constitution and should 
have insisted that those principles form the cornerstone for any 
International Criminal Court. That unfortunately was not the official 
position of this Administration.
    In the United States, there is a right to a jury of your peers. In 
the United States, there is a privilege against self-incrimination. In 
the United States, we have eliminated the prospect of criminal 
liability for ill-defined common law crimes. In the United States, the 
Constitution limits the authority of prosecutors. None of these 
protections will be guaranteed for defendants brought before this 
international star chamber.
    The proposed Court negotiated in Rome neither reflects nor 
guarantees the protections of the Bill of Rights. The Administration 
was right to reject the Court and must remain steadfast in its refusal 
to join a court that stands as a rejection of American constitutional 
values.
    Had the Administration indicated a desire to join this Court, I 
would have held hearings in the Constitution Subcommittee to examine 
the constitutional issues raised by this Court in more detail. In light 
of the Administration's current position, those hearings may prove 
unnecessary. I do, however, have a few questions for Ambassador 
Scheffer today about where the Administration plans to go from here, 
and if there is an any indication that the Administration may 
reconsider its position, I stand ready to hold hearings.
    The United States can never lessen its commitment to ensuring that 
this Court does not pose a threat to the constitutional rights of 
American citizens. We must never trade away American sovereignty and 
the Bill of Rights so that international bureaucrats can sit in 
judgment of the United States military and our criminal justice system.
    In Monday's New York Times, there is an opinion piece in which 
Anthony Lewis chastises the United States for missing a historic 
opportunity by failing to vote in favor of the International Criminal 
Court. The author states that the vote to form the International 
Criminal Court ``will be seen as a turn in the road of history.'' That 
is perhaps the only point in the piece with which I agree. The approval 
of this Court was indeed ``a turn in the road of history.'' By ceding 
the authority to define and punish crimes, many nations took an 
irrevocable step to the loss of national sovereignty and the reality of 
global government. I, for one, am heartened to see that the United 
States took the right turn on the road of history, and I will work hard 
to ensure that there is no backtracking.

    Senator Grams. Thank you very much.
    Ambassador, we want to welcome you. I know you just 
returned to the States from Rome earlier this week and have put 
in some long days. We appreciate your being here this morning 
and we look forward to your statement. Go ahead, sir.

 STATEMENT OF HON. DAVID J. SCHEFFER, AMBASSADOR-AT-LARGE FOR 
   WAR CRIMES ISSUES; ACCOMPANIED BY MARY ELLEN WARLOW, U.S. 
                     DEPARTMENT OF JUSTICE

    Ambassador Scheffer. Thank you, Mr. Chairman and Mr. 
Chairman and Senator Feinstein and Senator Ashcroft. Thank you 
for the opportunity to discuss with the committee the 
developments in Rome this summer relating to the establishment 
of a permanent international criminal court. As you know, I had 
the pleasure of being joined by a number of committee staffers 
during the Rome conference, and I am sure they brought back to 
you their own perspectives on the negotiations.
    Mr. Chairman, no one can survey the events of this decade 
without profound concern about worldwide respect for 
internationally recognized human rights. We live in a world 
where entire populations can still be terrorized and 
slaughtered by nationalistic butchers and undisciplined armies. 
We have witnessed this in Iraq, in the Balkans, and in Central 
Africa. Internal conflicts dominate the landscape of armed 
struggle, and impunity too often shields the perpetrators of 
the most heinous crimes against their own people and others. As 
the most powerful nation committed to the rule of law, we have 
a responsibility to confront these assaults on humankind. One 
response mechanism is accountability, namely to help bring the 
perpetrators of genocide, crimes against humanity, and war 
crimes to justice. If we allow them to act with impunity, then 
we will only be inviting a perpetuation of these crimes far 
into the next millennium. Our legacy must demonstrate an 
unyielding commitment to the pursuit of justice.
    That is why, since early 1995, U.S. negotiators labored 
through many ad hoc and preparatory committee sessions at the 
United Nations in an effort to craft an acceptable statute for 
a permanent international criminal court using as a foundation 
the draft statute prepared by the International Law Commission 
in 1994. Our experience with the establishment and operation of 
the International Criminal Tribunals for the former Yugoslavia 
and Rwanda had convinced us of the merit of creating a 
permanent court that could be more quickly available for 
investigations and prosecutions and more cost efficient in its 
operation. But we always knew how complex the exercise was, the 
risks that would have to be overcome, and the patience that we 
and others would have to demonstrate to get the document right. 
We were, after all, confronted with the task of fusing the 
diverse criminal law systems of nations and the laws of war 
into one functioning courtroom in which we and others had 
confidence criminal justice would be rendered fairly and 
effectively. We also were drafting a treaty-based court in 
which sovereign governments would agree to be bound by its 
jurisdiction in accordance with the terms of its statute. How 
so many governments would agree with precision on the content 
of those provisions would prove to be a daunting challenge. 
When some other governments wanted to rush to conclude this 
monumental task, even as early as the end of 1995, the United 
States pressed successfully for a more methodical and 
considered procedure for the drafting and examination of texts.
    The United States delegation arrived in Rome on June 13th 
with critical objectives to accomplish in the final text of the 
statute. Our delegation included highly talented and 
experienced lawyers and other officials from the Departments of 
State and Justice, the Office of the Secretary of Defense, the 
Joint Chiefs of Staff, the U.S. mission to the United Nations, 
and from the private sector. America can be proud of the 
tireless work and major contributions that these individuals 
made to the negotiations.
    Among the objectives we achieved in the statute of the 
Court were the following:

   an improved regime of complementarity, meaning 
        deferral to national jurisdictions, that provides 
        significant protection, although not as much as we had 
        sought;
   a role preserved for the U.N. Security Council, 
        including the affirmation of the Security Council's 
        power to intervene to halt the Court's work;
   sovereign protection of national security 
        information that might be sought by the Court;
   broad recognition of national judicial procedures as 
        a predicate for cooperation with the Court;
   coverage of internal conflicts, which comprise the 
        vast majority of armed conflicts today;
   important due process protections for defendants and 
        suspects;
   viable definitions of war crimes and crimes against 
        humanity, including the incorporation in the statute of 
        elements of offenses (We are not entirely satisfied 
        with how the elements have been incorporated in the 
        treaty, but at least they will be a required part of 
        the Court's work. We also were not willing to accept 
        the wording proposed for war crimes covering the 
        transfer of population into occupied territory);
   some progress on recognition of gender issues;
   acceptable provisions based on command 
        responsibility and superior orders;
   rigorous qualifications for judges;
   acceptance of the basic principle of state party 
        funding;
   an Assembly of States Parties to oversee the 
        management of the Court;
   reasonable amendment procedures; and
   a sufficient number of ratifying states before the 
        treaty can enter into force, namely 60 governments have 
        to ratify the treaty.

    The U.S. delegation also sought to achieve other objectives 
in Rome that in our view are critical. I regret to report that 
certain of these objectives were not achieved and therefore we 
could not support the draft that emerged on July 17th.
    First, while we successfully defeated initiatives to 
empower the Court with universal jurisdiction, a form of 
jurisdiction over non-party states was adopted by the 
conference despite our strenuous objections. In particular, the 
treaty specifies that, as a precondition to the jurisdiction of 
the Court over a crime, either the state of territory where the 
crime was committed or the state of nationality of the 
perpetrator of the crime must be a party to the treaty or have 
granted its voluntary consent to the jurisdiction of the Court. 
We sought an amendment to the text that would have required 
both of these countries to be party to the treaty or, at a 
minimum, would have required that only the consent of the state 
of nationality of the perpetrator be obtained before the Court 
could exercise jurisdiction. We asked for a vote on our 
proposal, but a motion to take no action was overwhelmingly 
carried by the vote of participating governments in the 
conference.
    We are left with consequences that do not serve the cause 
of international justice. Since most atrocities are committed 
internally and most internal conflicts are between warring 
parties of the same nationality, the worst offenders of 
international humanitarian law can choose never to join the 
treaty and be fully insulated from its reach absent a Security 
Council referral. Yet multinational peacekeeping forces 
operating in a country that has joined the treaty can be 
exposed to the Court's jurisdiction even if the country of the 
individual peacekeeper has not joined the treaty. Thus, the 
treaty purports to establish an arrangement whereby U.S. armed 
forces operating overseas could be conceivably prosecuted by 
the international court even if the United States has not 
agreed to be bound by the treaty. Not only is this contrary to 
the most fundamental principles of treaty law, it could inhibit 
the ability of the United States to use its military to meet 
alliance obligations and participate in multinational 
operations, including humanitarian interventions to save 
civilian lives. Other contributors to peacekeeping operations 
will be similarly exposed.
    Mr. Chairman, the U.S. delegation certainly reduced 
exposure to unwarranted prosecutions by the international court 
through our successful efforts to build into the treaty a range 
of safeguards that will benefit not only us but also our 
friends and allies. But serious risks remain because of the 
document's provisions on jurisdiction.
    Our position is clear. Official actions of a non-party 
state should not be subject to the Court's jurisdiction if that 
country does not join the treaty, except by means of Security 
Council action under the U.N. Charter. Otherwise, the 
ratification procedure would be meaningless for governments. In 
fact, under such a theory, two governments could join together 
to create a criminal court and purport to extend its 
jurisdiction over everyone everywhere in the world. There will 
necessarily be cases where the international court cannot and 
should not have jurisdiction unless the Security Council 
decides otherwise. The United States has long supported the 
right of the Security Council to refer situations to the Court 
with mandatory effect, meaning that any rogue state could not 
deny the Court's jurisdiction under any circumstances. We 
believe this is the only way under international law and the 
U.N. Charter to impose the Court's jurisdiction on a non-party 
state. In fact, the treaty reaffirms this Security Council 
referral power. Again, the governments that collectively adopt 
this treaty accept that this power would be available to assert 
jurisdiction over rogue states.
    Second, as a matter of policy, the United States took the 
position in these negotiations that states should have the 
opportunity to assess the effectiveness and impartiality of the 
Court before considering whether to accept its jurisdiction. At 
the same time, we recognize the ideal of broad ICC 
jurisdiction. Thus, we were prepared to accept a treaty regime 
in which any state party would need to accept the automatic 
jurisdiction of the Court over the crime of genocide, as had 
been recommended by the International Law Commission in 1994. 
We sought to facilitate U.S. participation in the treaty by 
proposing a 10-year transitional period following entry into 
force of the treaty and during which any state party could opt 
out of the Court's jurisdiction over crimes against humanity 
and war crimes. We were prepared to accept an arrangement 
whereby at the end of the 10-year period, there would be three 
options: to accept the automatic jurisdiction of the Court over 
all of the core crimes, to cease to be a party, or to seek an 
amendment to the treaty extending its opt-out protection. We 
believe such transition period is important for our Government 
to evaluate the performance of the Court and to attract a broad 
range of governments to join the treaty in its early years. 
While we achieved the agreement of the permanent members of the 
Security Council for this arrangement, as well as appropriate 
protection for non-party states, other governments were not 
prepared to accept our proposal. In the end, an opt-out 
provision for 7 years for war crimes only was adopted.
    Unfortunately, because of the extraordinary way the Court's 
jurisdiction was framed at the last moment, a country willing 
to commit war crimes could join the treaty and opt out of war 
crimes jurisdiction for 7 years, while a non-party state could 
deploy its soldiers abroad and be vulnerable to assertions of 
jurisdiction.
    Further, under the amendment procedures, States Parties to 
the treaty can avoid jurisdiction over acts committed by their 
nationals or on their territory for any new or amended crimes. 
This is protection we successfully sought. But as the 
jurisdiction provision is now framed, it purports to extend 
jurisdiction over non-party states for the same new or amended 
crimes.
    The treaty also creates a proprio motu, or self-initiating 
prosecutor, who on his or her own authority, with the consent 
of two judges, can initiate investigations and prosecutions 
without referral to the Court of a situation either by a 
government that is a party to the treaty or by the Security 
Council. We opposed this proposal, as we are concerned that it 
will encourage overwhelming the Court with complaints and risk 
diversion of its resources, as well as embroil the Court in 
controversy, political decisionmaking, and confusion.
    In addition, we are disappointed with the treatment of the 
crime of aggression. We and others had long argued that such a 
crime had not been defined under customary international law 
for purposes of individual criminal responsibility. We also 
insisted, as did the International Law Commission in 1994, that 
there had to be a direct linkage between a prior Security 
Council decision that a State had committed aggression and the 
conduct of an individual of that State. The statute of the 
Court now includes a crime of aggression, but leaves it to be 
defined by a subsequent amendment to be adopted 7 years after 
entry into force of the treaty. There is no guarantee that the 
vital linkage with a prior decision by the Security Council 
will be required by the definition that emerges, if in fact a 
broadly acceptable definition can be achieved. We will do all 
we can to ensure that such linkage survives.
    We also joined with many other countries during the years 
of negotiation to oppose the inclusion of crimes of terrorism 
and drug crimes in the jurisdiction of the Court on the grounds 
that this could undermine more effective national efforts. We 
had largely prevailed with this point of view only to discover 
on the last day of the conference that the Bureau's final text 
suddenly stipulated, in an annexed resolution that would be 
adopted by the conference, that crimes of terrorism and drug 
crimes should be included within the jurisdiction of the Court, 
subject only to the question of defining the relevant crimes at 
a review conference in the future. This last minute insertion 
in the text greatly concerned us and we opposed the resolution 
with a public explanation. We said that while we had an open 
mind about future consideration of crimes of terrorism and drug 
crimes, we did not believe that including them will assist in 
the fight against these two evil crimes. To the contrary, 
conferring jurisdiction on the Court could undermine essential 
national and transnational efforts, and actually hamper the 
effective fight against these crimes. The problem, we said, was 
not prosecution, but rather investigation. These crimes require 
an ongoing law enforcement effort against criminal 
organizations and patterns of crime with police and 
intelligence resources. The Court will not be equipped 
effectively to investigate and prosecute these types of crimes.
    Finally, we were confronted on July 17th with a provision 
stipulating that no reservations to the treaty would be 
allowed. We had long argued against such a prohibition and many 
countries had joined us in that concern. We believe that at a 
minimum there were certain provisions of the treaty, 
particularly in the field of state cooperation with the Court, 
where domestic constitutional requirements and national 
judicial procedures might require a reasonable opportunity for 
reservations that did not defeat the intent or purpose of the 
treaty.
    Mr. Chairman, the administration hopes that in the years 
ahead other governments will recognize the benefits of 
potential American participation in the Rome treaty and correct 
the flawed provisions in the treaty.
    In the meantime, the challenge of international justice 
remains. The United States will continue as a leader in 
supporting the common duty of all law-abiding governments to 
bring to justice those who commit heinous crimes in our own 
time and in the future. The hard reality is that the 
international court will have no jurisdiction over crimes 
committed prior to its actual operation. So more ad hoc 
judicial mechanisms will need to be considered. We trust our 
friends and allies will show as much resolve to pursue the 
challenges of today as they have to create the future 
international court.
    Thank you, Mr. Chairman.
    Senator Grams. Thank you very much, Mr. Scheffer, for your 
statement and for your work, and again thank you very much for 
appearing before this committee this morning.
    We have just been joined by Senator Biden. Would the 
Senator want to make an opening statement before we go to 
questions?
    Senator Biden. No, thank you.
    Senator Grams. Thank you.
    I think we will just hold the questioning to 5-minute 
rounds so we can get across the board to everybody in a short 
period of time.
    But I would just like to start off by asking a few 
questions, Mr. Scheffer. As we have talked about this morning, 
there are a lot of bad provisions in this treaty, and in some 
of your closing remarks you called them flawed. I was 
wondering, which ones made it impossible for the United States 
to vote to approve this treaty? In your opinion what were some 
of the major flaws?
    Ambassador Scheffer. Well, the major flaws were definitely, 
shall I call it, the de facto universal jurisdiction which 
emerged from the treaty which would expose the nationals 
operating, particularly in official actions for governments 
which are not party to the treaty--would expose those 
individuals to the jurisdiction of the treaty. That was a flaw 
that we simply could not accept.
    A further flaw was what would be the initial exposure of a 
State to the jurisdiction of the Court if it became a State 
Party to the Court. We deeply believed that there needed to be 
a transitional period that was reasonable and that could 
facilitate our own interests in the Court, as well as the 
interests of other major countries that have large militaries 
and are deploying those militaries in peacekeeping operations 
around the world. We did not achieve the totality of what would 
have been needed for us to seriously consider that.
    Furthermore, the independent prosecutor, which is now 
incorporated in the statute, was of deep, deep concern to us. 
We spent much of the second week of the conference arguing 
against this proposal. We circulated a detailed paper in four 
languages to dispute the merits of this proposal, and we 
actually had a fair number of countries supporting us in this.
    In the end that proposal, when combined with these two 
others, were the most serious issues; but I must say that there 
were other issues in the statute that would have caused us to 
have to come back to Washington with the document for a very 
serious review of it before considering signing it, because 
there were pockets of issues throughout the statute which, 
particularly the way it was handled the final day, were thrown 
in and done so with such swiftness that the best we could have 
done was simply come back to Washington with the document and 
ask everyone to examine it.
    Senator Grams. I think there are many that believe this is 
an effort that goes around the Security Council, in other 
words, mutes our veto power and authority. Would you clarify 
the relationship of the Security Council to this court?
    Ambassador Scheffer. Yes. The Security Council has primary 
responsibility under the U.N. Charter for international peace 
and security and no subsequent treaty can change that reality. 
It has primary responsibility. We argued for many years that 
that primary responsibility requires that if there is a matter 
that is brought to the Court that is within the jurisdiction of 
the Security Council under the U.N. Charter, the Security 
Council should have a prior review of whether or not that 
matter should be linked into a judicial process, particularly 
when the Security Council itself is seeking to address that 
matter of international peace and security. That position did 
not attract any significant support for many years, but we 
continued to pursue it.
    What we discovered in Rome by the third week was the 
absolute critical requirement that we at least preserve in the 
statute itself a recognition by the Court and the judges of the 
Court, so that there is none of this judicial interpretation in 
later years, that the Security Council has an unfettered right 
and power under the U.N. Charter to halt the Court's work if it 
deems that is necessary. We at least had to preserve that in 
the treaty. We were not able to preserve our longstanding 
position on the right of the Security Council review of matters 
that come before the Court. We simply had no votes for it other 
than a handful. But at least we had to preserve the right of 
intervention by the Security Council in the statute and we were 
able to achieve that.
    I think in the future what needs to be seriously considered 
is a recognition by all governments that the Security Council 
will need to do what it needs to do under the U.N. Charter. It 
will have to exercise the powers that it has under the U.N. 
Charter, and we may not know yet what the totality of those 
powers are in connection with this court. We may have to 
experience this if the treaty in fact enters into force. But I 
want to leave no mistake here that the U.S. Government and this 
administration fully understand and have advocated the full 
sweep of powers that the Security Council has under the U.N. 
Charter.
    Senator Grams. Thank you very much.
    Senator Feinstein.
    Senator Feinstein. Thank you, Mr. Chairman.
    I wanted to go to your second area of major problems, the 
exposure issue, if I could, for a minute. You raise the issue 
that a United States soldier, for example, as part of a 
peacekeeping mission, might do something which could lead to 
charges being filed against him or her. As I understand it, the 
bar is set fairly high regarding the Court's ability to indict 
or try someone for war crimes. For crimes against humanity, for 
example, Article 7 of the treaty calls for either widespread or 
systematic activity and that the activity be pursuant to state 
policy. Does this rule out the danger that a random incident, 
even one with genuine harm, could be prosecuted?
    Or, if the concern is over a possible war crime charge 
because of civilian casualties resulting from a United States 
operation, Article 8, section b, subparagraph iv specifies that 
the offending nation would need to intentionally launch an 
attack with the knowledge that it would cause incidental 
civilian damage and that the use of force has to be clearly 
excessive to the military goal.
    So, under what circumstances do you see a United States 
soldier, for example, or a United States policy subject to 
prosecution under this statute?
    Ambassador Scheffer. Thank you, Senator Feinstein. That is 
a very relevant question. It is one that occupied us hourly and 
daily for years.
    I must say that I think one achievement that we can be very 
proud of in this statute--I think there are many actually, but 
the provisions on crimes against humanity and war crimes were 
scrubbed and negotiated with tireless effort by U.S. 
negotiators, including in Rome. If I can just signal my 
gratitude to the lawyers not only from the State Department, 
but from the Joint Chiefs of Staff and the Office of the 
Secretary of Defense, who labored extremely hard to get this 
right.
    What you have just pointed to is what we worked hard to 
achieve, which is, if I may put it bluntly, a magnitude test 
for the triggering of charges of crimes against humanity or war 
crimes such that this court should not be dealing with isolated 
commissions of crimes. It should be dealing with a high level 
of criminal activity on a widespread massive scale. That is 
what this court should be dealing with. While we have great 
confidence that the U.S. armed forces are not in the business 
of committing these types of crimes--that is not what they are 
trained to do; that is not what we ask them to do--nonetheless, 
we know from hard experience that because of our global 
deployments, because of the responsibilities that we take on 
overseas, there will inevitably be referrals to this court that 
seek to bring us to the bar of justice of this court simply 
because we have deployed our military and used it.
    Now, we would hope that in response to any such referral, 
we could easily defeat it because it has not met that test that 
you just pointed out in either crimes against humanity or war 
crimes and that it could be easily defeated on that ground 
alone, or that we could easily show that, under the 
complementarity principle. We will look into this matter. We 
will investigate it. We will determine whether or not there is 
a basis for prosecution of these crimes, and that will be the 
end of it, that the Court will recognize the legitimacy of our 
legal system and the decision even not to prosecute of our 
legal system.
    The problem is that it is not a guarantee, obviously, that 
frivolous and politically motivated charges will nonetheless be 
brought against us; and we have to be extremely careful that, 
first of all, we have some time period in which we can witness 
how this court operates, whether it operates in a politically 
motivated way, but second that we have enough safeguards in the 
treaty to prevent any unjustified and unwarranted prosecution 
of Americans before the Court.
    Senator Feinstein. I have a followup question, but I will 
wait for the next round. Thank you very much.
    Senator Grams. Thank you, Senator.
    Senator Helms.
    Senator Helms. George Washington is often quoted as warning 
for future generations to beware of entangling alliances. There 
is only one problem with that. He did not say it. Thomas 
Jefferson did. But in any case, whoever said it----
    Senator Biden. I am willing to forgive him. Are you not?
    Senator Helms. Pardon?
    Senator Biden. I said I am willing to forgive him, having 
done something like that myself. [Laughter.]
    Senator Helms. Let the record show that Joe Biden and I 
agree on something.
    Seriously, the trouble is about this business, you cannot 
pin down all of the details of what you would do in theoretical 
cases. I do not know how you would negotiate a thing like that, 
but I am flat-footed in my opposition to it.
    Let me get to another subject. Bill Cohen, former Senator, 
now the distinguished Secretary of Defense, is said to have met 
with key U.S. allies--and I do not know who those would be 
under the circumstances--in which Secretary Cohen indicated 
that a treaty containing universal jurisdiction would require 
the United States to reconsider the presence of U.S. troops in 
those countries.
    My question is, did that conversation or meeting take 
place?
    Ambassador Scheffer. Well, Mr. Chairman, I will have to let 
Secretary Cohen and his spokesmen answer that directly to you. 
I think I can answer it generally though.
    We certainly did talk with other governments about this 
treaty. That was our job.
    Senator Helms. And about that aspect of it.
    Ambassador Scheffer. I can only say that it would be 
logical to assume that the consequences of our future posture 
in other countries is not only on our mind, but needs to be on 
their minds as well.
    Now, I was not party to any particular conversation that 
Secretary Cohen had, so I do not know precisely what he said.
    Senator Helms. Well, were you party to any conversations 
that you had with our allies on that subject?
    Ambassador Scheffer. Yes. In Rome I did speak with other 
allies, and I raised this issue----
    Senator Helms. About that subject.
    Ambassador Scheffer. Yes. I raised this issue with them.
    Senator Helms. What was their reaction?
    Ambassador Scheffer. Well, I think their reaction was one 
of concern. I hope that it was one of profound concern, and I 
discussed this issue for the express purpose of hoping that 
these delegates would communicate with their capitals about the 
concerns that we are expressing.
    Senator Helms. It is my understanding that Germany--correct 
me if I am wrong--currently will not extradite its nationals to 
the United States or any other country with which it has a 
bilateral extradition treaty due to statutory and 
constitutional prohibitions. Is that correct?
    Ambassador Scheffer. I do not know if that is correct with 
respect to Germany. I would have to get back to you. Is that 
correct? Yes.
    Senator Helms. She says it is correct?
    Ambassador Scheffer. Yes. That is my Justice Department 
lawyer. She says it is correct.
    Senator Helms. I have to ask my folks too.
    In fact--and I believe the lady will confirm this--neither 
do the following OECD member countries: Austria, Belgium, 
Brazil, Bulgaria, Denmark, Finland, France, Greece, Hungary, 
Iceland, Luxembourg, Mexico, Norway, Switzerland, and Turkey. 
Is that not correct?
    Ambassador Scheffer. Is it not correct that they would not 
extradite their citizens to our country? Is that the question?
    Senator Helms. That is my question. My understanding.
    Ambassador Scheffer. That is a long list.
    We may have to get back to you, Mr. Chairman. We will get 
back to you with an answer to that.
    Senator Helms. Let us assume that just even one of them is 
correct. I think you will find that every one is correct. How 
would any other country carry out its obligations under the 
treaty given these constitutional impediments?
    Ambassador Scheffer. Well, a very good question. There are 
provisions in this treaty that would require governments to 
change their national laws in order to comply with the 
provisions of this treaty, particularly with respect to the 
surrender or transfer of individuals on their territory to the 
treaty. There would have to be changes in certain national laws 
to facilitate that and the implementing legislation.
    Senator Helms. You bet.
    Ambassador Scheffer. So, those countries do have to 
confront that. I suspect that at least some of those countries 
have to deal with that particular issue in the future.
    Senator Helms. My time is just about up, but I want to 
commend you for your work over there and your testimony here 
this morning. You did not try to color it in any way. You laid 
out the facts, and I appreciate that.
    Thank you, Mr. Chairman.
    Ambassador Scheffer. Thank you.
    Senator Grams. Thank you very much.
    Senator Biden.
    Senator Biden. Thank you, Mr. Chairman.
    It may surprise you. Senator Helms and I agree on a lot 
more than just George Washington and Thomas Jefferson.
    Senator Helms. Well, of course we do.
    Senator Biden. But one of the things we agree on actually 
is the approach you have taken to this treaty. First of all, 
you did a great job. Second, you reached the right conclusion 
for our country.
    Third, I would try to put it in perspective. There are 
roughly 10 signatures. No one has ratified, and you have got to 
get 60 countries ratifying for it to take effect. So, hopefully 
between here and there, there will be some major changes. The 
reason I mention that is all of the questions are speculative 
and the answers are going to have to be speculative because 
this treaty is not in force yet and it is a long way from being 
in force.
    So, I want to explore with you one issue that was raised by 
the chairman of the full committee, and that is the purported 
de facto universal jurisdiction. Article 12 of the Court 
statute creates the possibility that non-parties will be 
subject to the jurisdiction of the Court. Now, that raises 
serious concern about the U.S. forces deployed overseas in 
countries which are parties to the Court. U.S. forces overseas 
could face prosecution by the Court even though we are not a 
signatory.
    I realize that has been raised already, but it seems to me 
that if this treaty goes into effect we may have to review the 
status of forces agreements now in place to ensure that 
adequate protections are in place. It seems to me--let me just 
ask the question rather than tell you what I think.
    Is the administration, to the best of your knowledge, 
planning to undertake such a review prior to this treaty 
gaining 60 countries ratifying and it coming into force?
    Ambassador Scheffer. Thank you, Senator Biden, very much.
    We have already started to have discussions about that 
within the administration. We have simply not reached any 
policy decisions. We are still catching our breath after a long 
5 weeks.
    But we have already started discussions about the fate of 
the status of forces agreements. We have started looking at 
them. We have looked at provisions within the statute itself 
that may guide us toward encouraging other states to help us 
amend these agreements so that they do not find themselves in 
an unacceptable bind because they need to recognize themselves 
that they need to address this issue directly, their own status 
of forces agreements with us.
    Senator Biden. In my experience spanning more than 2 
decades on this committee, nothing gets the attention of our 
friends like discussing the status of forces agreements we have 
with them. There is a facetious ring to what I just said, but I 
mean it sincerely. It seems to me that I need not tell you, as 
talented as you are, how we should go about impacting on the 
final outcome of this treaty, but I respectfully suggest that 
if at the highest levels there were the beginning of 
discussions about status of forces agreements with our allies, 
most of whom did not go along with us in the way we viewed the 
treaty, that we may very well get them to focus on aspects of 
the treaty I suspect they have not really fully focused on--
their governments. You know how to do your job better than I 
know how you should do your job, but I suspect that may be a 
useful thing.
    Ambassador Scheffer. Senator, if I may point your attention 
and the committee's attention to Article 98, section 2 of the 
statute, I think that is one provision we will be focusing on 
in terms of your question.
    Senator Biden. Why do you not tell me what that is since I 
do not have it in front of me?
    Ambassador Scheffer. It deals with cooperation with respect 
to waiver of immunity and consent to surrender, and it is a 
very important provision that I think we will need to be 
pointing out to other governments, particularly as it relates 
to our status of forces agreements.
    Senator Biden. That says, ``The Court may not proceed with 
a request for surrender or assistance which would require the 
requested State to act inconsistently with its obligations 
under international law with respect to the State or diplomatic 
immunity of a person or property of a third State, unless the 
Court can first obtain the cooperation of that third State for 
the waiver of the immunity.'' Is that what you are referring 
to?
    Ambassador Scheffer. Yes, although you may have a text 
there which was preceding the final text. There are a few word 
changes, but that is essentially the text, yes.
    Senator Biden. Well, I would also note and, Mr. Chairman, I 
will conclude by saying in the absence of the chairman of the 
full committee, I say nonetheless for the record, this is 
something he feels very strongly about. This is a treaty that 
is a long way from becoming law, and we are holding hearings on 
it. We have time for it, but we do not have time to have 
hearings on the Comprehensive Test Ban Treaty. We do not have 
time to have hearings on things that are really current. I 
would hope my Republican friends would focus on about 12 
treaties that require urgent attention up or down for us and we 
not spend a lot more time on something that I predict to you is 
not going to come to fruition anyway, and if it does, it is a 
long way off.
    But I thank you for your hard work and your staff. You did 
a great job according to my staff and Senator Helms' staff who 
spent time over there observing. So, thank you.
    Ambassador Scheffer. Thank you, Senator.
    Senator Grams. Thank you very much. But it is never too 
early to begin.
    Senator Biden. That is true. That is why we should be doing 
the Comprehensive Test Ban Treaty right now.
    Senator Grams. Thank you, Senator.
    Ambassador, we talked a little bit just a while ago about 
the relationship of the Security Council to this Court. I would 
like to followup on that question and ask, will this 
administration support Security Council referrals to the ICC if 
the treaty has not been ratified by the United States?
    Ambassador Scheffer. I do not know, Senator. We have not 
had a policy decision on that. It is somewhat premature at this 
stage. We know that this Court is many years in the distant 
future, if at all. We do need to have discussions within the 
administration about exactly what our approach will be in the 
coming years. I can assure you that that is a key checklist 
item for that discussion.
    Senator Grams. It is always costs that are important as 
well. The treaty calls for funding by the parties to the treaty 
and also by the U.N. Now, is there any way that funding could 
be provided to the ICC by the United Nations aside from when 
cases are referred by the Security Council?
    Ambassador Scheffer. As the committee staff who were there 
know, this was a very tortuously negotiated provision. We had 
basically the entire world confronting us on this issue. I 
should not say the entire, but there were large numbers of 
countries that wanted this court to be funded strictly by the 
United Nations, out of the U.N. budget. We had to point to them 
time and time again that that did not make sense, that you 
cannot ask governments which are not party to this treaty to, 
nonetheless, pay for it through the U.N. budget. We were very 
clear with them that we did not think the U.S. Congress would 
facilitate this at all.
    So, we went through several stages of negotiation and there 
was one stage which suggested that the initial funding of the 
Court, i.e., for the first 2 or 3 years of the Court's 
operation, at least that should be U.N. funding. And we said, 
no, that is not correct either because once again, you will 
have many countries which are not party to this treaty and yet 
you are asking the U.N. to pay for it through their assessments 
to the United Nations budget. We defeated that.
    The language which resulted in the document--and what 
number is the article now, if someone can remind me? Here it 
is. Article 115. They renumbered all the articles on us the 
last day, so you can imagine those of us who lived with certain 
article numbers for many months have had to reeducate 
ourselves.
    Article 115 is crafted in such a way that it does provide 
the possibility for funds provided for the United Nations, but 
only if the General Assembly has so determined that the United 
Nations wishes to make that contribution to the Court. Of 
course, we have the opportunity to weigh in within that context 
in New York.
    But we also worded this so that the focus is on U.N. 
contributions for Security Council referrals to the Court, 
since the Security Council would have made the decision. But it 
is not wording that perfectly satisfies how we would have 
preferred this result. We had sought assessed contributions by 
States Parties--period. But this was the language that was 
finally achieved in the negotiations.
    Senator Grams. You are right. There are many in Congress 
who would not approve of that type of funding.
    This treaty authorizes the Court's prosecutors, as we have 
talked about here a little bit already this morning, to 
initiate cases; and that is something that the U.S. is 
aggressively opposed to. Are the safeguards contained in the 
treaty over the prosecutor adequate to prevent what we would 
call politicizing of the prosecution?
    Ambassador Scheffer. Well, I think the arguments we made 
for 5 weeks stand today. We had great concern. We continue to 
have great concern over the potential politicalization of the 
prosecutor. Now, this is an argument that at times we found 
others had difficulty grasping; so let me, if I may, for one 
minute explain this.
    The prosecutor undoubtedly is going to have to become not 
only the receiver of an enormous amount of information in this 
capacity, he will have to decide and he will have to make 
judgments as to what he pursues and what he does not pursue for 
investigative purposes. In the end, those kinds of judgments by 
the prosecutor will inevitably be political judgments because 
he is going to have to say no to a lot of complaints, a lot of 
individuals, a lot of organizations that believe very strongly 
that crimes have been committed, but he is going to have to say 
no to them. When he says no to them and yes to others and he is 
deluged with these, he may find that he ends up making some 
political decisions. Even if he has to go to the Pretrial 
Chamber and get the approval of at least two of the three 
judges in the Pretrial Chamber, in the end you have three 
individuals making that decision.
    We have always argued that this court, first of all, should 
deal only with the referral of large scale commission of these 
crimes and that it will be inevitable that when you have a 
large scale commission of crimes, I think we have a fairly high 
degree of confidence that at least one state party or the 
Security Council will deem it meritorious to refer that 
situation to the Court.
    The value of having a government refer it or the Security 
Council refer it is they are accountable to somebody. They are 
accountable either to their people, their populace, for doing 
so, or the Security Council is accountable to the United 
Nations system. We believe that that fundamental principle of 
accountability should be at the core of referrals to this 
court.
    Senator Grams. Thank you. I have a followup, but I will 
wait until my next round of questioning.
    Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman.
    Mr. Ambassador, after listening carefully to your testimony 
and reading it, it would appear to me that the treaty is 
effectively dead as far as the United States is concerned 
unless major changes are made to it. Would you agree with that?
    Ambassador Scheffer. Well, I would say that we are not 
prepared to go forward with this treaty in its current form. We 
are simply not prepared to do so.
    Senator Feinstein. I would interpret that to say, really, 
that as far as the United States is concerned, it is 
effectively dead.
    I wanted to ask you a question also about some of the 
initial press stories that came out after the Rome decision 
which held that one of the countries that might be affected by 
this statute was Israel, and that Israel really might run afoul 
of it because of the occupied territories clause included in 
Article 8(2)(b)(viii). Can you explain that clause, the 
precedent for it in international law, and give us your 
understanding of whether Israel would or would not face 
potential jeopardy before the Court?
    Ambassador Scheffer. Yes, Senator, I would be glad to.
    This was a provision in the treaty which we spent an 
enormous amount of our time on. We consulted very closely with 
the Government of Israel consistently about this provision. We 
talked with many other countries about it. It is a provision 
which was very popular with certain groups of countries to 
include in this treaty.
    We had opposed it from the very beginning in discussions 
that began two years ago because we did not feel that there was 
customary international law yet that attached this kind of 
activity to individuals for criminal responsibility. Rather in 
the Geneva Convention, it is a State responsibility issue, 
i.e., transferring your population into an occupied territory 
is an issue that relates to State responsibility. We felt that 
given its very, very political context and the fact that there 
are actually many governments in the world that one might look 
to with respect to this kind of activity, that we needed to 
keep it at the level of State responsibility and not seek to 
bring it into the area of individual responsibility or 
culpability, criminal culpability.
    Now, we argued that for a long time, but none of our 
European colleagues and other countries around the world 
accepted this argument. It was strongly advocated for inclusion 
in the statute.
    Senator Feinstein. Let me just understand that.
    Ambassador Scheffer. Yes.
    Senator Feinstein. Are you effectively saying, yes, Israel 
could run afoul of the Court under the present structure as 
proposed?
    Ambassador Scheffer. Well, first, I think it is because of 
this issue, along with other issues, that Israel joined us in 
voting against this treaty.
    Senator Feinstein. So, may I interpret your answer as being 
yes?
    Ambassador Scheffer. Well, again I always want to turn to 
the Government of Israel to answer that question for its own 
position, but----
    Senator Feinstein. Well, I am asking you for your 
interpretation.
    Ambassador Scheffer [continuing]. My interpretation is that 
Israel would stand at risk with this provision in terms of 
exposure to this court.
    Now, we had many discussions on this, including with our 
good friends from Israel, and there was an insertion into the 
statute that went beyond even the Geneva Protocol I of 1977 
which does identify as a grave breach of the protocol the 
transfer by the occupying power of parts of its own civilian 
population into the territory it occupies. That is identified 
as a grave breach in the 1977 Geneva Protocol I, and Israel was 
very involved in those negotiations in 1977.
    What we found unacceptable at the end was the insertion of 
three words into the statute that appears no where in the 
Geneva protocol. The statute now reads: ``The transfer, 
directly or indirectly, by the occupying power of parts of its 
own civilian population into the territory it occupies.'' What 
does directly or indirectly, and where does that come from? 
That we could not accept and neither could Israel accept those 
three words. I must say that if Israel had brought this issue 
up for a vote directly on Friday evening of last week, we were 
going to intervene, speak against the provision, and vote 
against it, but Israel chose not to.
    Senator Feinstein. May I just make one other statement 
along this line? To me then it is rather clear that this 
provision, directly or indirectly, strikes directly at Israel 
and the West Bank. What surprises me about it is, this was 
agreed to by our European allies?
    Ambassador Scheffer. Yes.
    Senator Feinstein. I find that quite remarkable.
    Let me ask one final question. What chances do you give to 
whether the statute can be ratified by 60 nations?
    Ambassador Scheffer. Well, there were more than 60 
governments that comprised the group called the ``like-minded 
group'' in these negotiations that were very strong advocates 
of the Court. So, I do not know what will come of the actions 
of those 60-plus countries who had very strong affirmative 
views about this court, but they certainly know that they have 
got a group of 60, or more than 60 actually in the end, that 
were in the right frame of mind for ratification.
    Senator Feinstein. So that we know the real world in which 
we are playing, on a scale of 1 to 10, are you saying you would 
rank at 10 the chances that this will be ratified?
    Ambassador Scheffer. Well, I think it is very close to 10 
for ultimate entry into force. I think the real question is how 
many years it will take. Remember that the requirement in each 
government will be what needs to be adopted domestically in 
order to conform their national criminal codes and other 
provisions to the requirements of cooperation of this statute 
and also the war crimes definitions, because one thing that I 
think every government will want to be able to demonstrate is 
that under the principle of complementarity in this statute, 
they have the capability to investigate and prosecute these 
crimes domestically under their domestic law. That will require 
some changes in domestic law for them to be able to demonstrate 
that capability. So, this will be a long process.
    Senator Feinstein. Thank you, Mr. Chairman. One other 
question?
    Senator Grams. Sure, go ahead.
    Senator Feinstein. Just one question. I wanted to ask you 
quickly about the Pretrial Chamber process and what specific 
rights a State or individual would have to appeal a decision of 
the Court to prosecute a given case. If a frivolous charge were 
to be leveled against, say, a United States citizen and the 
prosecutor, say, for whatever reason determines an 
investigation was warranted, are there options that a third 
party would have to bring exculpatory information before the 
Court at that stage to close down the investigation or does 
that just proceed?
    Ambassador Scheffer. If I may, I would like to ask my 
colleague who negotiated that provision to answer it for you, 
if I may.
    Senator Feinstein. I would be happy to.
    Ambassador Scheffer. It is Molly Warlow from the Department 
of justice. Molly, could you possibly address that question?
    Ms. Warlow. There are various provisions that would be at 
issue. First, as a general matter, there is a general provision 
that the prosecutor is not strictly speaking an adversarial 
position. He has a responsibility to also look into exculpatory 
information which is a provision that we put in.
    However, one of our main objectives was to set the stage 
very early on for a State to be able to challenge the 
competence of the Court, particularly with respect to the 
admissibility of the case, which means the Court is without 
jurisdiction if the national authorities are themselves 
pursuing the case. Under the provision that we worked very hard 
to achieve, the state has standing simply by notifying the 
prosecutor of their own interest in prosecuting and 
investigating to achieve a deferral of the case.
    At that point, the burden lies with the prosecutor to go 
forward and seek a ruling from the Pretrial Chamber which has 
then the burden of showing that the national proceedings are, 
either the system is in collapse, or that the national 
proceedings are a sham.
    So, one of our main objectives was to have a very early 
opportunity to present these issues and the right to intercede 
does not depend on whether you are a State Party or not.
    Senator Feinstein. Do you feel that that is adequate?
    Ms. Warlow. It is extremely useful. There is an opportunity 
to appeal it, but of course one of our main themes was the 
concern that overall complementarity in and of itself may not 
be sufficient to meet our interests. It certainly is a much 
better regime than we had going in Rome. We fought off an 
effort at the last minute to remove that provision, much to our 
surprise. And at other stages there can be challenges to 
jurisdiction as well. So, generally states can act on behalf of 
their nationals to proceed in these matters.
    Senator Feinstein. Thank you very much. I would like to 
just say thank you to you, Ambassador. I think you certainly 
acted in the best interests of our Nation at this stage, and I 
appreciate it very much.
    Ambassador Scheffer. Thank you, Senator Feinstein.
    Senator Grams. Mr. Ambassador, just a couple of quick 
questions following up and clarifying. We talked about 
politicizing a prosecution, some of the decisions that might 
have to be made by the Council. In what areas is the prosecutor 
given sole discretion in a case?
    Ambassador Scheffer. In bringing the case or----
    Senator Grams. Bringing the case or furthering the 
prosecution or the investigation itself.
    Ambassador Scheffer [continuing]. Well, certainly in 
triggering the mechanism of the Court to launch widespread 
investigations of a situation, he is given, well, near complete 
independence to do that as long as he can persuade two judges 
in the Pretrial Chamber to agree with him. So, he has to 
demonstrate to the judges that there is a premise here for 
investigation, that this rises to the level of jurisdiction of 
this court, and if the judges agree with him, then he can 
launch into those investigative activities.
    Now, once he is launched, whether by his own accord or by 
referral by the Security Council or by a State Party to the 
treaty, he does have a wide range of provisions in the statute 
that check him along the way. The Pretrial Chamber itself has 
numerous opportunities to examine the course of his work and to 
influence the course of his investigative work. This is 
something that is very common to the civil law governments that 
we were dealing with and they felt comfortable with it and we 
actually saw some merit in it for purposes of an international 
court.
    But in addition to that, we have a lot of provisions on 
cooperation with States, part 9 of the statute, which do 
provide him and the Court with a guide path for how to make 
requests for cooperation with States. That is a very detailed 
set of provisions, but it certainly is the case that the 
prosecutor cannot simply walk into other countries and start 
investigating. He has to work in a cooperative manner with 
other countries. He has to fulfill documentary requirements, 
and he has to work with other governments in order to achieve 
his investigative objectives. So, it is not a completely 
independent prosecutor with access throughout the world.
    And we worked very, very hard on these provisions so that 
national judicial procedures would have to be recognized by the 
prosecutor in the pursuit of his work. I think where we felt 
that we would have preferred more progress in the statute is 
that not only national judicial procedures, but in some cases 
national law itself, including constitutional law, needed to be 
recognized by the prosecutor. But I think that the phrase 
``national judicial procedures'' which is peppered throughout 
the cooperation provisions we hope will provide for an 
adequate, shall we say, cooperative check on the prosecutor's 
ability to investigate on foreign territory. We want him to be 
able to do so. If the Court is an adequate functioning court, 
he needs to do his job, but he needs to do it with full respect 
for national judicial procedures and the constitutional 
requirements of other countries.
    Senator Grams. So, acting on a complaint or a charge or 
through a Security Council directive, but he could also 
initiate himself such an investigation.
    Ambassador Scheffer. Yes, and that we opposed of course in 
Rome, the latter.
    Senator Grams. One final question then just to sum this up. 
Do you believe that the Constitution permits the U.S. 
Government to delegate its authority to prosecute Americans for 
crimes committed on U.S. soil to the International Criminal 
Court?
    Ambassador Scheffer. Well, I believe that is one of the 
issues that we wanted to bring back to Washington, and it is 
also one of the reasons why we were so insistent on pressing 
for a reservations clause in this treaty because we knew that 
that issue ultimately had to be resolved in discussions back 
here in Washington as to our ability to address that very 
specific issue, the crime being committed on U.S. territory by 
a U.S. citizen. It is not unprecedented. In the past crimes 
committed by U.S. citizens on U.S. territory have in fact been 
prosecuted elsewhere in the world with our consent; but we 
wanted to bring that issue back, and we wanted a reservations 
option in the treaty so that there would be ample opportunity 
for the United States to meet its constitutional requirements 
in reviewing this treaty.
    Senator Grams. But you said with our consent, that this 
would not happen without our consent or it has happened in the 
past.
    Ambassador Scheffer. Yes, I would have to provide that to 
you, Senator, but I am told that there are examples in the past 
where U.S. nationals who have committed crimes on U.S. 
territory have in fact been prosecuted overseas.
    Senator Grams. You will furnish that.
    Ambassador Scheffer. Yes, I will furnish that to you, 
Senator.
    Senator Grams. Well, Ambassador, I want to thank you very 
much for taking your time to be here this morning and for your 
answers. I also just have a note that Senator Ashcroft, who had 
to leave, would also like to submit some written questions to 
you, sir. So, I am going to leave the record open until the 
close of business today, and we would appreciate a prompt 
response to those questions if possible. Thank you very much, 
Mr. Ambassador, and thanks you for your time.
    I would like to now call our second panel for the hearing 
this morning, and they are the Honorable John Bolton, former 
Assistant Secretary of State for International Organization 
Affairs, now Senior Vice President of American Enterprise 
Institute in Washington, D.C.; also Mr. Lee Casey, an attorney 
at Hunton & Williams, in Washington, D.C.; and also Mr. Michael 
P. Scharf, Professor of Law and Director, Center for 
International Law and Policy, New England School of Law, in 
Boston, Massachusetts.
    Gentlemen, welcome. Thank you very much for also joining us 
this morning. If you have opening statements, the committee 
would now entertain those, and we could start from left to 
right. Mr. Bolton, if you would.

 STATEMENT OF HON. JOHN BOLTON, FORMER ASSISTANT SECRETARY OF 
   STATE FOR INTERNATIONAL ORGANIZATION AFFAIRS; SENIOR VICE 
   PRESIDENT, AMERICAN ENTERPRISE INSTITUTE, WASHINGTON, D.C.

    Mr. Bolton. Thank you very much, Mr. Chairman. I have a 
prepared statement which I would ask to be incorporated in the 
record.
    It is a pleasure to testify today on the somewhat misnamed 
International Criminal Court. In fact, what the Rome conference 
has actually done is create not only a court, but also a 
powerful and unaccountable piece of an executive branch: the 
prosecutor.
    Unfortunately, support for the ICC concept is based largely 
on emotional appeals to an abstract ideal of an international 
judicial system, unsupported by any meaningful evidence, and 
running contrary to sound principles of international crisis 
resolution. Moreover, for some, faith in the ICC rests largely 
on an unstated agenda of creating ever more comprehensive 
international structures to bind nation states in general and 
one nation state in particular. Regrettably, the Clinton 
administration's naive support for the ICC has left the U.S. in 
a worse position internationally than if we had simply declared 
our principled opposition in the first place.
    Many people have been led astray by analogizing the ICC to 
the Nuremberg trials and the mistaken notion that the ICC 
traces its intellectual lineage directly to those tribunals. 
However, examining what actually happened at Nuremberg easily 
shows these contentions to be wrong, and we can learn important 
lessons why the ICC, as presently conceived, can never perform 
effectively in the real world.
    Nuremberg occurred after complete and unambiguous military 
victories by allies who shared juridical and political norms 
and a common vision for reconstructing the defeated Axis powers 
as democracies. The trials were intended as part of an overall 
process, at the conclusion of which the defeated states would 
acknowledge that the trials were prerequisites for their 
readmission to civilized circles. They were not just political 
score settling or continuing the war by other means. Moreover, 
the Nuremberg trials were effectively and honorably conducted. 
Just stating these circumstances shows how different was 
Nuremberg from so many contemporary circumstances, where not 
only is the military result ambiguous, but so is the political, 
and where war crimes trials are seen simply as extensions of 
the military and political struggle under judicial cover.
    ICC supporters also support that Nuremberg was only an 
after-the-fact event that would not deter others from 
committing future crimes against humanity. They believe simply 
that if you abhor genocide, war crimes, and crimes against 
humanity, you should support the ICC. This logic is flatly 
wrong for three compelling reasons.
    First, all available historical evidence demonstrates that 
the Court and the prosecutor will not achieve their central 
goal, the deterrence of heinous crimes, because they do not and 
should not have sufficient authority in the real world. Beneath 
the optimistic rhetoric of the ICC's proponents, there is not a 
shred of evidence to support their deterrence theories. 
Instead, it is simply a near religious article of faith.
    It is incredibly striking, therefore, that faith is about 
all they have to support their argument. Rarely has so sweeping 
a proposal for restructuring international life had so little 
empirical evidence to support it. One ICC advocate said in Rome 
that ``the certainty of punishment can be a powerful 
deterrent.'' I think that statement is probably correct, but 
unfortunately it has little or nothing to do with the ICC.
    In many respects the ICC's advocates fundamentally confuse 
the appropriate roles of political and economic power, 
diplomatic efforts, military force, and legal procedures. No 
one disputes that the barbarous actions under discussion are 
unacceptable to civilized peoples. The real issue is how and 
when to deal with these acts, and that is not simply or even 
primarily a legal exercise. The ICC's advocates make a 
fundamental error by trying to transform matters of power and 
force into matters of law. Misunderstanding the appropriate 
roles of force, diplomacy, and power in the world is not just 
bad analysis, but bad and potentially dangerous policy for the 
United States.
    Recent history is unfortunately rife with cases where 
strong military force or the threat of force failed to deter 
aggression or gross abuses of human rights. Why we should 
believe that bewigged judges in the Hague will prevent what 
cold steel has failed to prevent remains entirely unexplained.
    Even viewed in the light most favorable to the ICC, this 
debate is almost solely about predictions. Without more, 
predictions alone are insufficient to support radical change in 
the international order.
    Needless to say, I do not view the argument in the most 
favorable light. Existing empirical evidence in the military 
sphere argues convincingly that a weak and distant legal body 
will have no deterrent effect on the hard men like Pol Pot and 
Saddam Hussein most likely to commit crimes against humanity. 
Holding out the prospect of ICC deterrence to those who are 
already weak and vulnerable is simply fanciful.
    Second, the ICC's advocates mistakenly believe that the 
international search for justice is everywhere and always 
consistent with the attainable political resolution of serious 
political and military disputes, whether between or within 
States, and the reconciliation of hostile neighbors. In the 
real world, as opposed to theory, justice and reconciliation 
may be consistent, or they may not be. Our recent experience in 
situations as diverse as Bosnia, Rwanda, South Africa, 
Cambodia, and Iraq argue in favor of a case-by-case approach 
rather than the artificially imposed uniformity of the ICC. And 
I have laid out in my prepared testimony at some length the 
specifics of these cases and why they demonstrate from reality 
today why the Court is not appropriate.
    Third, tangible American interests are at risk. I believe 
that the ICC's most likely future is that it will be weak and 
ineffective and eventually ignored, because naively conceived 
and executed. There is, of course, another possibility, that 
the Court and the prosecutor, either as established now or as 
potentially enhanced, will be strong and effective. In that 
case, the U.S. may face a much more serious danger to our 
interests, if not immediately, then in the long run.
    Let there be no mistake. Our main concern from the U.S. 
perspective is not that the prosecutor will indict the 
occasional U.S. soldier who violates our own values and laws 
and his or her military training and doctrine by allegedly 
committing a war crime. Our main concern should be for the 
President, the cabinet officers on the National Security 
Council, and other senior leaders responsible for our defense 
and foreign policy. They are the real potential targets of the 
ICC's politically unaccountable prosecutor and that is the real 
problem of universal jurisdiction.
    I have demonstrated I think in my testimony the crisis of 
legitimacy we face now with the International Court of Justice 
and the U.N. Commission on Human Rights which are held in low 
esteem, not just in the United States, but around the world.
    I have also dealt with the overwhelming repudiation by the 
Rome conference of the American position supporting even a 
minimal role for the Security Council. Implicit weakening of 
the Security Council is a fundamental new problem created by 
the ICC, an important reason alone why the ICC should be 
rejected. The Council now risks both having the ICC interfering 
in its ongoing work and even more confusion among the 
appropriate roles of law, politics, and power in settling 
international disputes.
    The ICC has its own problems of legitimacy. Its components 
do not fit into a coherent international structure that clearly 
delineates how laws are made, adjudicated, and enforced, 
subject to popular accountability, and structured to protect 
liberty. Just being out there in the international system is 
unacceptable and indeed almost irrational unless one 
understands the hidden agenda of many NGO's supporting the ICC.
    There is real vagueness over the ICC's substantive 
jurisdiction, although one thing is emphatically clear: This is 
not a court of limited jurisdiction. We should take a systems 
approach to the ICC, judging not only what we see before us 
now, but look forward to what might be added in the long run. 
Only if we are willing to travel the entire path shall we take 
the first step, and I can testify to that from my own years in 
the vineyards of U.N. matters.
    I have laid out in my prepared testimony question after 
question after question of the vagueness of the statute. I will 
just touch on one.
    The statute's definition of genocide could not be accepted 
by the U.S. Senate in its present form unless the Senate were 
to reverse the 1986 reservations and understandings that 
attached to the Genocide Convention.
    Consider second the Israeli problem, which has been 
discussed here, concerning its conduct in the West Bank and 
Gaza. This is a perfect example of politicizing this supposedly 
independent legal institution right from its inception and a 
clear marker of future problems.
    I cannot predict whether the first case will be brought 
against the United States or Israel. I suspect it will be a 
race to the Courthouse door.
    Apart from these problems with existing provisions and the 
vague and uncertain development of customary international law, 
consider all of the other crimes on the waiting list: 
aggression, terrorism, embargoes, courtesy of Cuba; drug 
trafficking, and so on. This is the unstated agenda of the 
NGO's, as Mr. Crawford's statement, which I quote in my 
prepared testimony, demonstrates. The Court's range is 
enormous.
    Let me just quote one provision of the statute. This is one 
of the few provisions that is, unfortunately, clear, Article 
119. I am quoting. ``Any dispute concerning the judicial 
functions of the Court shall be settled by the decision of the 
Court.'' That is pretty straightforward and pretty frightening.
    The troubling substantive problems are overshadowed by the 
governance structures of the Court and the prosecutor. One of 
the executive branch's strongest powers is the law enforcement 
power. In the United States we accept this enormous power 
because we separate it from the adjudicative power and because 
we render it politically accountable through Presidential 
elections and congressional oversight. There has been a lot of 
talk about how all of our European allies supported this court. 
Europeans may feel comfortable with the ICC structure, no 
political accountability and no separation of powers, but that 
is a major reason why they are Europeans and we are not.
    What to do next is obviously the critical question. Whether 
the ICC survives and flourishes depends in large measure on the 
United States. We should not allow this sentimentality 
masquerading as policy to achieve indirectly what was rejected 
in Rome. We should oppose any suggestion that we cooperate, 
help fund, or generally support the work of the prosecutor. We 
should isolate and ignore the ICC.
    Specifically, I propose for the United States policy--I 
have got a title for it. I think it is one the Clinton 
administration will understand toward the ICC. I call it the 
Three Noes: no financial support, directly or indirectly; no 
collaboration; and no further negotiations with other 
governments to improve the statute.
    This approach is likely to maximize the chances that the 
ICC will wither and collapse, which should be our objective. 
The ICC is fundamentally a bad idea. It cannot be improved by 
technical fixes as the years pass, and in fact it is more 
likely than not to worsen. We have alternative approaches and 
methods consistent with American national interests, as I have 
previously outlined, and we should follow them.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Bolton appears in the 
appendix on page 45.]
    Senator Grams. Mr. Bolton, thank you very much for your 
comments and testimony. Mr. Casey, your statement please.

    STATEMENT OF LEE A. CASEY, ATTORNEY, HUNTON & WILLIAMS, 
                        WASHINGTON, D.C.

    Mr. Casey. Yes, sir. Thank you. I also have a written 
statement that I ask to be submitted for the record.
    Senator Grams. Without objection, it will be entered as 
read.
    Mr. Casey. Thank you.
    One of the oldest principles of American government is that 
Americans accused of criminal offenses within the judicial 
power of the United States must be tried in their own courts 
with all of the guarantees mandated in the Bill of Rights. This 
principle was first articulated when the Founders of our 
Republic declared its independence and catalogued the outrages 
that they believed justified revolution and war. They noted 
three of particular interest to us here today where, in the 
Declaration of Independence, they accused the King and 
Parliament of subjecting us to a jurisdiction foreign to our 
constitution and unacknowledged by our laws, depriving us in 
many cases of the benefits of trial by jury, and of 
transporting us beyond the seas to be tried for pretended 
offenses. After the revolution, the Founders ensured that 
Americans would never again be transported beyond the seas for 
trial by requiring in the Constitution that all crimes be tried 
by jury in the State where the said crime shall have been 
committed. This guarantee was stated not once but twice in the 
Constitution in Article II, section 2 and in the sixth article 
of amendment.
    American participation in the ICC treaty would have 
violated this fundamental principle. Ambassador David Scheffer 
and his colleagues and the American delegation to the Rome 
conference can be justly proud of the fact that when the 
extreme demands and intransigence of the supporters of a 
permanent international criminal court became evident, they 
kept faith with the Founders of our Republic and with the 
American people, refusing to sign a treaty that would again 
have subjected Americans to a foreign jurisdiction able to 
transport them beyond the seas to be prosecuted without the 
benefits of trial by jury.
    Ambassador Scheffer and his delegation, as well as the 
Americans in the nongovernmental community who traveled to Rome 
to oppose creation of a permanent international criminal court 
with the power to prosecute Americans, deserve the grateful 
thanks of the American people. These individuals worked hard on 
our behalf in Rome and suffered the petulant and childish 
attempts of ICC supporters to smear their efforts and to 
discredit the position of the United States. The extremity of 
their demands may be judged by the results they achieved, for 
it takes a rare talent indeed to drive the United States and 
Israel onto the same ground as China and Libya.
    The Senate and the whole American people should support the 
administration in its firm objection of the ICC treaty and 
particularly in its unequivocal denial that the ICC has any 
lawful power over Americans either at home or abroad. The ICC's 
claim to jurisdiction over the nationals of any state that has 
not joined this treaty are entirely unsupported in the accepted 
rules of international law. There is in fact no precedent in 
international law or practice for the exercise of jurisdiction 
by such a court over the nationals of a State that has not 
acceded to the treaty creating the Court itself.
    In attempting to subject Americans to the jurisdiction of 
the ICC, the ICC states are in fact attempting to act as an 
international legislature, a power they do not have and a power 
that is fundamentally at odds with the guarantee of the 
sovereign equality of States memorialized in the United Nations 
Charter. This attempt to subject Americans to the authority of 
a court the United States has not accepted nothing less than a 
concerted challenge to American sovereignty, the right of the 
American people to govern themselves. If the ICC may call 
American and military officials to account for their actions on 
behalf of the United States in a criminal court, then those 
individuals are no longer ultimately accountable to us, the 
people of the United States, but to the prosecutor and judges 
of the ICC. As Alexis de Tocqueville wrote in the last century, 
``He who punishes the criminal is the real master of society.''
    This action, led in large part by like-minded States whose 
own rights of self-government have been preserved and 
guaranteed by American blood and treasure and which have 
sheltered in the lee of American power these 50 years past 
brings to mind the words of British Prime Minister Lord 
Palmerston when asked to name Britain's permanent friends in a 
world where it was the sole global power. ``England,'' he 
replied, ``has no permanent friends, only permanent 
interests.''
    The extravagant and illegal claims of the ICC states to 
exercise jurisdiction over the United States and her citizens 
and the actions of our allies in supporting these claims might 
lead many Americans to support a withdrawal from our global 
responsibilities. We must resist this temptation and heed 
Palmerston's counsel. However faithless our friends, we too 
have permanent worldwide interests; and these interests dictate 
that that the United States remain engaged on the world stage. 
We cannot allow the foolish actions of our allies to achieve 
what the Soviet Union in all of its expanse and power never 
could: to drive the United States back into isolation on the 
North American continent.
    However, it now has become imperative for the United States 
to make clear to the ICC and the States who have signed this 
treaty that it will not honor any claims to authority over 
American citizens, that it considers such pretensions to be 
unfounded in law, and that any attempt to assert such power 
will be vigorously resisted and ultimately frustrated with all 
of the United States' considerable resources.
    Thank you.
    [The prepared statement of Mr. Casey appears in the 
appendix on page 61.]
    Senator Grams. Mr. Casey, thank you very much.
    Mr. Scharf.

STATEMENT OF MICHAEL P. SCHARF, PROFESSOR OF LAW, AND DIRECTOR, 
CENTER FOR INTERNATIONAL LAW AND POLICY, NEW ENGLAND SCHOOL OF 
                   LAW, BOSTON, MASSACHUSETTS

    Mr. Scharf. Thank you, Mr. Chairman. Since I am the baby 
face on this panel, let me begin my remarks by telling you a 
little bit about my background so that you will not assume that 
these are the remarks of naive advocacy for an international 
criminal court.
    Before the creation of Ambassador Scheffer's role, 
Ambassador-at-Large for War Crimes Issues, that job at the 
State Department was the responsibility of a young lawyer from 
1989 to 1993. That lawyer was myself. Since leaving the State 
Department in 1993, I have been the author of the three major 
books on the Yugoslavia Tribunal, the Rwanda Tribunal, and then 
there is my Pulitzer Prize nominated Balkan Justice.
    So, I speak not as a naive advocate, but I give you I think 
a different view than you have gotten today. I am going to be 
the lone discordant voice in this anti-international criminal 
court chorus.
    In the 1950's, people were worried about who lost China. I 
think in 10 years, people are going to look back at this event 
and say, who lost the International Criminal Court? I think as 
Senator Helms' views today indicated, this issue is going to be 
much broader than our participation in the Court. It may be the 
beginning of a whole new round of U.S. isolationism.
    We need to begin, of course, with the case for a permanent 
international criminal court. This body voted several times in 
favor in principle for such a court in recognition of the fact 
that in the last 100 years, during this decade, 170 million 
people have been killed by crimes of genocide, crimes against 
humanity, and war crimes, according to Professor Rummel's Death 
by Government.
    We live in a golden age of impunity in which a person 
stands a better chance of being prosecuted for killing 1 person 
than for killing 100,000 or a million people. And the failure 
to prosecute, to bring these people to justice encourages 
future dictators, future genocidal maniacs. Remember Hitler's 
famous words on the eve of the invasion of Poland in 1939 when 
his generals were squeamish about what he was asking him to do. 
He said, do not worry. ``After all, who today remembers the 
fate of the Armenians?'' And what he was saying was that the 
Armenians were slaughtered, a million of them, in the world's 
first genocide and there was no prosecution. The Turks were 
given amnesty in the Treaty of Lausanne; and because of that, 
Hitler could tell his followers, do not worry, we will get away 
with this too. There will be no international prosecutions.
    After Nuremberg, there was a hope that there would be a 
permanent Nuremberg, that people like Hitler everywhere around 
the world would be prosecuted in an international criminal 
court; but because of the Cold War, this was not to be. The 
failure to prosecute Pol Pot, Idi Amin, Saddam Hussein have 
only encouraged acts like Karadzic and Milosevic. There is no 
proof that an international court is an effective deterrent, 
but not having an international criminal court is definitely an 
encouragement.
    Now we have seen two ad hoc tribunals that have become 
successful to everybody's great surprise, including my own, 
with the Yugoslavia Tribunal now having 31 of the indictees in 
custody out of 61 and the Rwanda Tribunal doing even better 
with 25 indictees out of 35 in custody, including all of the 
major genocidal leaders. These international criminal courts 
can work. They can have a deterrent value.
    Unfortunately, the hope that the Security Council would 
continue to create such courts was dashed when the Security 
Council experienced what David Scheffer calls tribunal fatigue. 
In other words, creating new courts for every situation, 
appointing new prosecutors, electing new judges, creating new 
courtrooms is so expensive, so politically exhausting that the 
Security Council could not do it. That is why the world turned 
to the idea of a permanent international criminal court and 
that is why a permanent international criminal court as a 
concept is still worth pursuing.
    So, what went wrong in Rome?
    First of all, we have to remember that in Rome there was a 
tension between the United States, which wanted a Security 
Council controlled court, and the rest of the world, virtually 
every other country, which wanted a court that no country's 
individuals could be immune from.
    In Rome they created a two-track system. One track was 
Security Council referral, and this was always the more 
important, the more significant of the two tracks because the 
Security Council could obligate every country in the world to 
comply. The Security Council could enforce the obligation with 
economic embargoes, with the freezing of assets which were so 
effective in the Haiti situation, and even with authorizing the 
use of force like with the NATO troops in Bosnia. So, the 
Security Council controlled track always was the real 
international criminal court for all intents and purposes.
    The other court, the court which requires the independent 
prosecutor or complaints by States, requires compliance of 
countries in good faith, and there are many reasons why 
countries are not always going to comply unless you have some 
enforcement built in. So, no one ever thought that was going to 
be the important part of the Court.
    Nonetheless, the United States insisted on protections from 
that part, from that second track, and the United States got 
just about everything it insisted on. We saw the laundry list 
on page 2 of David Scheffer's testimony today.
    First, the United States got something known as 
complementarity with teeth. That means that not only can the 
Court in principle not prosecute when a domestic court is 
investigating or prosecuting, but specifically the Court for 6 
months must defer prosecution and investigation if any State 
says it is investigating and a State can appeal that.
    Second, as Senator Feinstein suggested, the limit of war 
crimes to serious and the addition of plan or policy to the 
definition of war crimes means that no U.S. soldier in a U.N. 
peacekeeping force can be prosecuted for these war crimes. That 
is not a real issue.
    Third, the safeguard against an independent prosecutor, 
what some U.S. officials have referred to as the international 
Ken Starr problem, is in Article 15 which requires the approval 
of a three-judge pretrial panel before the independent 
prosecutor can launch an investigation and this too is subject 
to an appeal before the whole tribunal.
    And fourth, as David Scheffer said, the Security Council 
can vote to postpone the investigation or a prosecution for up 
to 12 months, renewable if the Security Council thinks it is in 
the world's interest to do so.
    These protections were sufficient for the other major 
powers, specifically the United Kingdom, France, and Russia. 
The deal-breaker for the United States we have heard is the 
U.S. insistence that the State of nationality must consent to 
the Court's jurisdiction. Well, the reason that was the deal-
breaker is because every situation around the world where this 
court would be effective would not apply. Because, think about 
it: Is Yugoslavia going to consent to Milosevic's trial? Will 
Iraq consent to Saddam Hussein? Would Cambodia have consented 
to Pol Pot? So, no wonder the other countries of the world felt 
that that was not a reasonable demand.
    And where does that leave us now?
    You have to understand that there is enormous world support 
for this international criminal court. I think the other 
members of the panel have tried to downplay this. David 
Scheffer was, I think, honest when he tells you that there are 
more than 60 countries that are already ready to ratify it. I 
have to tell you honestly that this thing is going to happen 
very quickly. There are already 20 countries that have signed 
and the pace is so fast that it is like the Rights of the Child 
Convention. That is the fastest convention that was ever 
ratified coming out of the U.N.
    As a non-party, as a country that did not sign and will not 
go along with it, the U.S. does not have to cooperate with the 
tribunal. That is true. But we have heard today that the U.S. 
is not immune from the tribunal. U.S. soldiers who commit 
crimes abroad, U.S. officials who commit crimes abroad who are 
visiting a foreign country could be apprehended, and there 
could be indictments even though the U.S. has not signed.
    Now, by not signing on, the U.S. cannot participate in the 
preparatory conference which is going to draft the rules of 
procedure and the definition of crimes. That will be further 
elaborated. The U.S. cannot participate in the selection of the 
prosecutor to make sure that the prosecutor is not someone who 
is subject to politicization. The U.S. cannot nominate judges 
or vote for judges or determine funding. The U.S. has pulled 
itself out of the process just at the time when the U.S. ought 
to continue to be engaged.
    Because of the adverse fallout, the U.S. probably will not 
be able to employ the Security Council track of the tribunal 
which was, in the United States view, the whole reason why such 
an ad hoc tribunal on a permanent basis was worthwhile.
    In the final analysis, I think the U.S. may have lost more 
than it preserved by voting against the International Criminal 
Court, and I think it is very telling which other countries 
joined the U.S. there were at least 7 countries that voted 
against and there were 120 that voted in favor. Those countries 
are not countries that I want our country keeping company with. 
They are Iran, Iraq, Libya, China, and Yemen, and only Israel 
was the only ally of the United States, for its own reasons, 
that voted no.
    Now, there are other issues that I am happy to address 
during the question and answer. I see my time is up, but I 
would like to say that there is another side to some of the 
questions that have been raised. The constitutionality of the 
Court, the protections of the Bill of Rights, the applications 
of citizens of a non-Party State, and the issue that Senator 
Feinstein raised about the occupying powers all have another 
side; and I am happy either to talk about that today or to 
submit further written answers to those questions.
    Thank you.
    [The prepared statement of Mr. Scharf appears in the 
appendix on page 69.]
    Senator Grams. Thank you very much, Mr. Scharf, for your 
statement.
    I was hoping that I would be considered the baby face of 
the hearing.
    Or Senator Feinstein.
    I would like to for courtesy defer Senator Feinstein to 
begin this round of questions.
    Senator.
    Senator Feinstein. Well, thank you very much.
    I think this has been a very interesting discussion, and I 
really hope that people sitting in the audience have gotten as 
much out of it as I have. You really see how something with 
good intent becomes subject to an enormous problem.
    Let me begin, if I might, with Mr. Scharf because I think 
you had a difficult role here. You were really sort of the only 
note of positiveness about this court in all these hours.
    I do not understand really why you feel there is an 
incentive for the United States to continue in this situation; 
because what is clear is that the die is really cast, and 
unless you have a much more developed link to the Security 
Council, it seems to me that nothing else you do really makes 
any difference if you are going to have that independent 
prosecutor. I mean, we have learned about independent 
prosecutors, at least I have, in this country, and I do not 
think they are always such a good idea, to be honest with you. 
So, could you comment on that question?
    Mr. Scharf. Yes, certainly.
    Even though the United States is now the lone super power, 
the greatest economic and military power in the world, we are 
not alone in the world, and what other countries do does make a 
difference, contrary to what some people might wish or hope. 
The other countries in the world made it clear early on that 
there was going to be an international criminal court. There 
will be such a court and the U.S. will have to deal with that. 
Early on the United States correctly decided to engage, to make 
a major effort to try to turn this court into something that we 
could live with. And David Scheffer should be applauded; 
because, really, the United States bullied its way into getting 
the U.S. stamp on almost every single provision in the 
International Criminal Court statute. It is really a U.S. 
statute with just a couple of exceptions, a couple of things 
that we did not get.
    But what I am saying is that we are going to have a court 
anyway. It could be a negative influence on the United States 
if we do not engage, if we do not continue to be part of the 
process. If we do continue to be part of the process, either 
through trying to get new amendments, to get further 
protections, or living with the protections that we did get--
and I think they have been downplayed today. I think the 
successes of the U.S. delegation were enormous and the rest of 
the countries in the world were surprised at the last minute 
that the U.S. could not accept those because when you go into a 
negotiation, no one thinks they are going to get everything, 
and the U.S. got about 95 percent. It was enough for France. It 
was enough for the United Kingdom. It was enough for Russia. 
Perhaps we could revisit this and decide that with some 
modifications, this is enough for us, but I think the 
alternative is going to be a disaster.
    Senator Feinstein. Thank you. Well, finish that. A disaster 
in what respect?
    Mr. Scharf. In that we will not be participating. If we are 
worried about a politicized court by not being involved in the 
process of creating its rules of procedure and electing its 
judges and appointing its prosecutor, we are going to get just 
what we fear. But in the Yugoslavia context where we were 
engaged, the president of the Yugoslavia Tribunal is a U.S. 
Federal Court former judge. The prosecutor of the Yugoslavia 
Tribunal is our friend and ally Canada. We have a court that we 
are very comfortable with and we can live with because we have 
engaged in that court. Why should we disengage in this court?
    Senator Feinstein. Well, you have heard comments on both 
sides of the aisle here today that now the United States should 
begin to reexamine its force structure and commitment to other 
nations.
    Mr. Scharf. I have heard the beginnings of an isolationist 
movement today, and it frankly scares me. If you follow what 
Senator Helms is suggesting, the Court is still going to be a 
reality. Not every one of those 60 countries is going to be 
bullied by the United States. And we are going to end up 
disengaging our military forces from NATO, from the United 
Nations peacekeeping? I mean, this would not be in our best 
interests just over the International Criminal Court.
    What you also have to understand is the day of the vote on 
this court there was 15 minutes of cheering. When 120 countries 
voted in favor, there was a strong, strong belief that this 
Court was in the world's best interest. And this Court is going 
to happen.
    Senator Feinstein. Could we ask the other two witnesses to 
comment on this?
    Mr. Bolton. Yes, I would appreciate the opportunity.
    It is fanciful to say that the United States' abstaining 
from dealing with the Court will result in a disaster for this 
country. The result will be that the Court will have no 
legitimacy, that the Europeans in their frequently and 
unfortunately cynical fashion will make sure that it really 
does not affect them, and most of the world will pay it lip 
service and ignore it.
    The only way to get the attention of the rest of the world 
after the spectacle in Rome that Mr. Scharf just described--
then I want to come back to the 15 minutes of cheering--the 
only way to restore respect is to say, you made that court, you 
live with it.
    Now, I was stunned when I read in the newspapers about the 
cheering after the take-no-action motion on the U.S. amendment 
to have non-States Party defendants not subject to 
jurisdiction. It recalled to me nothing so much as two votes in 
the General Assembly of the United Nations from what I had 
thought were the old days, the bad old days, and I am thinking 
of two, one in 1971 and one in 1975.
    The one in 1975 was when the General Assembly adopted the 
resolution equating Zionism with racism, a resolution which I 
am proud to say in the Bush administration we got the General 
Assembly to repeal. But in 1975 there was sustained cheering in 
the General Assembly after Zionism was declared to be racism, 
and Senator Moynihan, then Ambassador, went to the podium and 
said the United States will never abide by this resolution. We 
will never accept it. We will never adhere to it, which was a 
statement of high principle, which we adhered to until we got 
it repealed. So, that is one answer.
    The second was the 1971 vote in the General Assembly when, 
contrary to the U.N. Charter, the representatives of Taiwan 
were expelled and the Peoples Republic of China were inserted, 
and at that point that was the event that led then Ambassador 
Bush, after he left the United Nations, to write as the title 
of his book on his experiences, The Light that Failed.
    Now, I had hoped that with the end of the Cold War, the 
majority in the General Assembly had gotten over those kinds of 
silliness; but I must say I interpreted that sustained applause 
in Rome to be a thumb in the eye of the United States. They 
enjoyed every minute of it, and it would be humiliating for the 
United States now to go back to that majority who care about 
this court and say, gee, please let us talk to you about it 
some more. We should isolate it and ignore it.
    Senator Grams. Mr. Casey.
    Mr. Casey. Senator, if I might add on one point. Mr. Scharf 
suggests that unless we participate in the Court, we are 
effectively going to be stuck with it and not be a player. The 
fact is that this Court's assertions of authority over 
Americans is illegal. We have talked a lot today about 
universal jurisdiction, and everyone always used the term 
loosely. In fact, this Court does not have universal 
jurisdiction. That is a concept of customary international law 
that allows States to assert jurisdiction over individuals who 
have committed certain very narrowly defined crimes, piracy, 
the slave trade, perhaps war crimes, perhaps genocide, much 
more narrowly defined than in the statute.
    In fact, this Court's assertion of jurisdiction over the 
citizens of countries who have not become a member to the 
treaty is entirely unprecedented. This Court is entirely a 
matter of treaty. It is a creature of this treaty. Unless we 
join the treaty, it cannot exercise jurisdiction over the 
United States or its citizens.
    Senator Feinstein. Thank you very much. It is a very 
interesting discussion. Thank you all very much.
    Senator Grams. Mr. Scharf, I would just like to begin 
questioning with you on this one subject. You have used I think 
some very obvious examples of prosecution for war crimes, 
genocide, et cetera with names like Hitler, Pol Pot, et cetera. 
But what about the real possibility of real abuse by this Court 
seeping in the politicizing of prosecution? That is what I 
think most people are concerned about. If the Court would 
define and remain focused on just those type of atrocities, I 
do not think most would have concerns, but when you open this 
up to politicizing the decisions by one or three or the review 
by the same on those decisions, I think that is what has the 
concern of abuse of this Court.
    Mr. Scharf. Well, I think the statute of the Court has five 
levels of protections built into it to try to prevent the Court 
from being politicized. Every country in the world was worried, 
not just the United States, about a body that might be 
politicized and one day would turn on that country. Therefore, 
there was support for our protections.
    Let us look at a case study. Let us say the United States 
does something very controversial. It decides to invade another 
country. The rest of the world does not think that that was in 
self-defense and decides to indict our Secretary of Defense or 
even our President. What would happen under that scenario?
    Well, what would happen is at the first level, the United 
States would say this is not part of the Court's jurisdiction 
because this is not a serious war crime, and if the prosecutor 
does his or her job, they will decide, no, this is not what the 
Court was about. This is not a serious war crime. This is not 
of the level of genocide. This is a peacekeeping effort. This 
is something that is appropriate. But we cannot trust the 
prosecutor to do his job. You do not know.
    So, then the prosecutor has to go to the three-judge panel, 
and you hope that two of those judges will see the light. But 
if they do not, then you have to go to the full panel of all of 
the judges. During this time period, the United States can stop 
it in other ways. If we do our own investigation like a 
Lieutenant Calley, what if our Secretary of Defense was doing a 
rogue operation? We could investigate and we could decide to 
prosecute, in which case it turns off the Court, or we could 
decide that there is no grounds for prosecution, but that we 
made that decision in good faith, which also turns off the 
Court and that decision is appealable.
    Finally, we can go to our friends on the Security Council 
and say, look, you do not want your leaders to be brought 
before the Court. Join us in voting to turn off the Court. The 
five permanent members are very likely to join us, and if we 
can get four out of the other nine members to do so, then the 
Security Council can stop.
    These are all protections to prevent just that kind of 
scenario from coming about.
    Senator Grams. Mr. Bolton, Mr. Scharf had said earlier in 
his statement that the U.S. would not be immune from this 
court. That has some concern I think for many. Article 27 of 
the Rome treaty requires that the Court apply equally to all 
persons without any distinction based on official capacity. In 
your opening statement, you stated that the main concern of the 
U.S. should be that the President, cabinet officials, and other 
senior leaders responsible for defense, for foreign policy 
decisions would be the potential targets of an independent 
prosecutor.
    So, my question to you, and again echoing ``not immune,'' 
do you believe the existence of this court would have a 
chilling effect on the decision made by our U.S. senior 
officials from the President, cabinet members, et cetera, kind 
of always like looking over their shoulder?
    Mr. Bolton. Well, let me say first I agree with Mr. Casey's 
assessment, that because the United States is not going to be a 
party to the statute of Rome, that nothing they do--nothing--
has any jurisdiction over us. There is simply no basis for it 
at all and we can and should ignore it.
    But in the event that we either joined at some point or 
that a subsequent administration or this administration does 
not share that analysis, I think these vague, ambiguous, and 
expansive provisions could well have a chilling effect on top 
decisionmakers, and I can guarantee you that the lawyers in the 
State Department and the Pentagon are going to be reading it 
very carefully all the time.
    If I might read one section of this on--or two sections, 
individual criminal responsibility. It says in Article 25, a 
person shall be criminally responsible and liable for 
punishment for a crime within the jurisdiction of the Court if 
that person ``orders, solicits, or induces the commission of 
such a crime.'' Orders, solicits, or induces. That is what 
military chains of command do.
    You have cited Article 27. I think everybody should read 
that as well, especially in the Senate, because it also says 
expressly that members of a government or parliament or elected 
representative are not immune either. So, if you were to 
declare war, when aggression finally gets defined at some point 
down the road and it is determined to be an act of aggression 
and therefore a criminal element, conceivably Members of 
Congress who voted to declare war could be liable as well.
    I just want to say again one other thing, Senator, I think 
you mentioned in your opening statement and others have 
commented on. Article 120 says, ``No reservations may be made 
to this Statute.'' I think very clearly the people who wrote 
that in were worried about the Senate quite frankly which 
writes reservations to almost every international convention 
that the United States agrees to, not the least of which was 
the Genocide Convention that I mentioned before. The fact that 
they would try to strip you of your ability to write 
reservations and understandings in the U.S. accession to this 
law, I find very, very troubling.
    I think if you have to read the long-term precedential 
value of Rome, it is that we have some very tough sledding 
ahead and that we need strong diplomacy from the President to 
prevent this thing from getting even worse than it was in Rome.
    Senator Grams. Senator Feinstein.
    Senator Feinstein. No. I think that completes it. Again, I 
think, Mr. Chairman, it is a very interesting hearing and there 
is a lot of food for thought. Thank you three gentlemen very 
much.
    Senator Grams. I have just a couple of quick ones.
    Senator Feinstein. You will have to excuse me.
    Senator Grams. Mr. Casey, Ambassador Scheffer remarked that 
there were examples of Americans committing crimes on U.S. 
soils who were prosecuted abroad. He said he is going to give 
us some information on that. What I was wondering, could you 
think of any such examples?
    Mr. Casey. Well, I would be very interested to see what 
they submit. The only way that Americans can be prosecuted 
abroad for what they do in the United States is if what they 
have done is to intentionally attempt to bring about a criminal 
effect overseas, and therefore the overseas nation may be able 
to exercise extraterritorial jurisdiction and ask for their 
extradition.
    There is only one case I can think of where this actually 
happened, and it is a case involving an individual in 
Connecticut--the cite is actually in my written statement--who 
solicited and planned the murder of someone. I think it was in 
Montreal, and the Canadian authorities, of course, asked for 
his extradition and the individual was indeed extradited. 
Again, there that individual purposefully set out to bring 
about an illegal effect in another country. So, under the rules 
of jurisdiction, it was appropriate and constitutional to send 
them overseas.
    One thing to keep in mind is under the ICC treaty, this 
would reach crimes committed in the United States by Americans 
against Americans.
    In addition, it should also be kept in mind that the most 
likely means by which the Court will attempt to reach our high 
officials, our leaders is through a theory of command 
responsibility. Well, under a theory of command responsibility, 
you do not need any intent to bring about illegal effect 
overseas. All that has to happen is that American troops 
overseas commit a crime. If you are in the chain of command, 
you are on the hook.
    Senator Grams. Mr. Scharf.
    Mr. Scharf. Can I just address that issue as well?
    Senator Grams. Sure.
    Mr. Scharf. I think there is another side to it.
    First of all, I would ask you to try to get a copy of the 
National Judicial Conference report that was prepared in 1992 
on the Permanent International Criminal Court because they 
addressed the constitutionality of the Court. They addressed 
this issue, and citing the case of Ex parte Quirin, which is a 
U.S. Supreme Court case, they found that this argument which 
had been raised and made was not consistent with today's 
precedent, existing precedent, before the Supreme Court. Yes, 
in fact, there is no constitutional bar for the United States 
to participate in an international tribunal and even to send 
its citizens to the tribunal. And in Ex parte Quirin, there 
were several Yugoslavs who were actually of U.S. citizenship 
that were sent to an international tribunal.
    Senator Grams. Just a couple of brief questions and I know 
I will let you go.
    But, Mr. Scharf, I will start with you again. There are 
many who wonder why we want to replace the current courts 
dealing with war crimes, genocide, et cetera, even though they 
might be inefficient, exhaust a lot of people politically at 
the U.N. putting these together, but why do we need to replace 
them with an ICC? There were a number of war crimes committed 
when the Yugoslav Tribunal had already issued indictments 
against perpetrators. So, what makes you think that the ICC 
indictments would have any different effect or would be a 
stronger deterrent to what we currently have?
    Mr. Scharf. Well, that is because when the Yugoslavia 
Tribunal was established, most people in the world, including 
the Bosnian Serbs, thought it was a joke. They thought it was 
just the major powers trying to paper over their failure to 
intervene to stop the atrocities.
    It was not until after the Srebrenica massacre that the 
Yugoslavia Tribunal began to apprehend individuals and to bring 
those people to justice. Now you have got major generals, you 
have got major leaders, and you have even got Karadzic, who is 
increasingly likely to be apprehended. And now it is a 
completely different situation. People are now taking that 
seriously, and when a tribunal is taken seriously, when it 
becomes effective, then it becomes a deterrent, and that is the 
difference between now and before.
    Now, I think the ad hoc tribunal approach was the best 
possible approach. I had wished that the Security Council would 
continue to create ad hoc tribunals for all the other 
situations. Unfortunately, the other countries in the world 
felt that it would be better to have a permanent institution. 
Once that decision was made, the United States lost its ability 
to use the Security Council through the ad hoc approach. Now, 
as Senator Feinstein said, we are left with a tremendous gap if 
we do not join in the permanent international criminal court 
and at least try to revise that into something that we can live 
with.
    Senator Grams. Mr. Casey, I think many believe this treaty 
was supposed to codify international law, not create new 
international law.
    Mr. Casey. Yes.
    Senator Grams. Are there any areas where you think the 
treaty really overstepped those bounds?
    Mr. Casey. Yes, Mr. Chairman, many areas. The definitions 
of crimes against humanity and of genocide, of aggression, 
which is yet to be defined, and of war crimes themselves all 
are far broader than that recognized in customary international 
law.
    To take an example, under the crimes against humanity 
definition, there is a provision that would make it criminal to 
impose essentially humiliating conditions on people based on 
their ethnicity. Again, that is unprecedented in international 
law and it is subject to basically any kind of meaning and 
application the Court might wish to put on it.
    Another example, and in fact a good example, in the 
definition of genocide, there is also essentially a mental 
distress element added in that the United States rejected when 
it ratified that treaty, and that in fact is not contained in 
the statutory definition of genocide that the Congress enacted 
to carry it out.
    So, there are really many areas where the definitional 
section is far broader than international law currently is.
    Senator Grams. Just one final question, Mr. Bolton. I would 
like to just wrap it up. Two things really. I noted that you 
had made a statement that the Clinton administration in their 
naive support--I do not know if that was referring to getting 
involved at all in the negotiations in Rome or what it meant, 
but maybe you can explain that.
    But also, as I mentioned in my opening statement, I believe 
that this court I think makes an end run around the Security 
Council. When we talk about not being involved, I do not think 
we would have a very strong voice as we have had in some of the 
tribunals in getting some people that we trust or are 
comfortable with on these courts, but when you leave it open to 
160 or 185 countries to be able to choose who would sit on 
these courts and how we would respect those. Could you just 
quickly address those?
    Mr. Bolton. Certainly, Mr. Chairman. When the 
administration came in, as you may recall, it declared its 
foreign policy to be something that they labeled assertive 
multilateralism. Now, I for one never understood what assertive 
multilateralism was, but I did take an element of it to be more 
reliance on getting Security Council authorization for elements 
of U.S. foreign policy. Almost from the beginning, just a month 
after the inauguration, the administration sought Security 
Council creation of the first war crimes tribunal. They saw it 
quite clearly at the time as an ad hoc first step toward the 
creation of a permanent international criminal court.
    So, this path of international negotiation that has gone on 
almost for six years now is something that they concede right 
from the beginning. Ambassador Scheffer has written numerous 
times on the subject, both before and after he took office. He 
said, while he was in office in 1996--I am quoting from an 
article of his in Foreign Policy--``The ultimate weapon of 
international judicial intervention would be a permanent 
international criminal court.'' And he goes on to say, ``In the 
civilized world's box of foreign policy tools, this will be a 
shiny, new hammer to swing in the years ahead.'' I think what 
happened is the administration let the genie out of the bottle 
and the genie took the hammer and broke their nose.
    Senator Grams. With that, I want to thank you very much.
    I appreciate you gentlemen being here, and I think we will 
probably be hearing more from you in the future because I 
expect that this is going to be a controversial debate and we 
would draw on your expertise and your comments in the future. 
So, I want to thank you very much for your time.
    Mr. Casey. Thank you, Mr. Chairman.
    Mr. Scharf. Thank you.
    Mr. Bolton. Thank you.
    [A statement submitted by The Lawyers Committee for Human 
Rights appears in the appendix.]
    Senator Grams. The hearing is completed.
    [Whereupon, at 12:37 p.m., the subcommittee was adjourned.]



                            A P P E N D I X

                              ----------                              



   Additional Questions Submitted for the Record by the Committee to 
                      Ambassador David J. Scheffer

                Questions Submitted by Senator Ashcroft

Clarification of the Administration's Position on the Court
    Question.  Does the Administration have any current plans to try to 
modify the agreement reached in Rome to enable American participation?

    Answer. Of course we would welcome modification of the agreement to 
make it acceptable to the United States. At this stage, however, it 
would be premature to attempt to assess whether and to what extent 
modification of the treaty might be feasible.

    Question.  Does the Administration have any plans to cooperate--
informally or formally--with the Court during the ratification phase or 
after that phase should the requisite number of countries agree to 
participate?

    Answer. The Administration has no plans to cooperate with the Court 
at this stage. We do not anticipate that this question will arise until 
the treaty enters into force and such a Court is created or, at least, 
until some future time if and when entry into force is foreseeable.

    Question.  What will our posture be with allies who are considering 
whether to sign on to the treaty?

    Answer. As I stated in my testimony, the Administration opposes the 
treaty in its current form. While much of the treaty is very good, we 
strongly oppose certain critical elements. We are of course 
particularly concerned about those elements which could affect U.S. 
nationals who are conducting legitimate activities overseas. Our 
overall posture with allies beyond these aspects is under active 
consideration at this time.
Possible Trial of Americans
    Question. Assuming the Court is approved by the requisite number of 
countries, would it be possible for the Court to assert jurisdiction 
over American soldiers?

    Answer. The text of the treaty provides that the Court could have 
jurisdiction over an alleged crime occurring in a given country if that 
country is a party to the Statute or has accepted the exercise of 
jurisdiction by the Court with respect to the crime in question by 
declaration. In such a case, therefore, the Court might seek to assert 
jurisdiction over American soldiers, assuming the other requirements 
were met.
    (In view of our overall position as noted, the answers to this and 
the following questions are based on the premise that the United States 
itself has not joined the treaty. The question of Security Council 
referral of a matter will also not be considered, as the United States 
would have to agree to any such referral.)

    Question.  Again, assuming the Court is approved by the requisite 
number of countries, would it be possible for the Court to assert 
jurisdiction over American soldiers for acts committed on American 
soil?

    Answer. The Statute requires the consent of either the State on the 
territory of which the conduct in question occurred or the State of 
which the person being investigated or prosecuted is a national. 
Accordingly, if the territorial State is the United States, the Court 
could claim to assert jurisdiction only if the soldier, although in the 
U.S. armed services, was of a foreign nationality and the foreign 
government in question had joined the Statute or accepted the court's 
jurisdiction by declaration.

    Question. Can you envision circumstances in which the 
Administration would ever consent to the voluntary transfer of an 
American citizen to the jurisdiction of the Court for actions committed 
on American soil?

    Answer. If the citizen in question for some reason affirmatively 
wished to be tried by the Court, a question of possible ``voluntary'' 
transfer could be presented. We do not envision circumstances under 
which a U.S. citizen would be transferred against that person's will to 
the jurisdiction of the Court for actions committed on American soil.
United States Reaction to Assertion of Jurisdiction over Americans
    Question. Has the Administration considered how it would react to a 
situation in which the court asserted jurisdiction over an American 
citizen?

    Answer. The Administration opposes the ``extraordinary'' 
jurisdiction provisions of the treaty which purport to confer 
jurisdiction over official U.S. actions or actions within the United 
States without the consent of the United States. Accordingly, the 
United States would not accept such an assertion of jurisdiction, which 
violates a fundamental principle of international law.

    Question.  Would the Administration ever consider conducting its 
own investigation of an incident over which the International Court had 
asserted jurisdiction to satisfy the concept of complementary and to 
avoid an open conflict with the Court?

    Answer. The United States condemns genocide, crimes against 
humanity, and war crimes as a matter of strong and long-standing 
national policy wholly unrelated to this or any other international 
court. Accordingly, in the event that a non-frivolous allegation were 
made that such a crime had been committed by an American soldier or 
within the jurisdiction of the United States, we would expect that the 
appropriate United States authorities would investigate such an 
incident as a matter of course. The question of what the Administration 
might do in the case of a frivolous claim, if the Court came into 
existence and if the Court were to give credence to such a claim, is 
too remote and speculative at this time. As a matter of general 
principle, we would expect any United States Administration to take 
such actions as it thought best in order to protect the interests of 
the United States and its citizens.

    Question.  In a situation in which the Court asserted jurisdiction 
over an American citizen, would the Administration plan to appear 
before the Court to contest jurisdiction or would it simply refuse to 
recognize the Court's asserted jurisdiction?

    Answer. For similar reasons, this is too remote and speculative a 
question at this stage. The same basic principles noted in response to 
the prior two questions would appear relevant here as well.
Constitutional Concerns with the Trial of Americans
    Question.  If the Court were to assert jurisdiction over an 
American soldier for actions taken on American soil, how could the 
trial of that individual be reconciled with the requirement of Article 
III, section 2 of the Constitution that ``[t]he trial of all Crimes, 
except in Cases of Impeachment, shall be by jury; and such trial shall 
be held in the State where the said Crimes shall have been committed''?

    Answer. For reasons noted above, this specific scenario seems 
particularly unlikely. Given the jurisdictional provisions of the 
Statute, there would seem to be greater opportunities for the Court to 
seek to assert jurisdiction in relation to actions occurring outside 
the territory of a non-party State than in relation to actions 
occurring within its territory. In general, however, we note that in 
very rare instances persons within the United States have been 
extradited to foreign countries in connection with crimes occurring 
abroad, where the particular actions of the individuals in question 
were performed within the United States. For example, in Austin v. 
Healey, 5 F.3d 598 (2d Cir. 1993), a U.S. citizen was extradited to the 
United Kingdom for conspiring from New York to commit a murder in the 
UK. For its part, in the case of transnational crimes such as drug 
trafficking, the United States has regularly sought the extradition of 
persons from various countries for actions which may have largely been 
performed in those countries, for example in leading and directing 
major drug cartels.

    Question.  In such a trial, how could the other constitutional 
rights of criminal defendants be guaranteed?

    Answer. As noted in response to the previous question, we do not 
believe that U.S. Constitutional rights necessarily apply to trials by 
foreign authorities outside the United States. This is well settled in 
extradition practice. In general, however, we note that the United 
States, along with other countries, worked vigorously to see that the 
ICC Statute incorporated adequate due process protections for 
defendants. This is not an aspect of the treaty that we consider to be 
seriously deficient or flawed.

    Question.  What about a situation in which the Court asserts 
jurisdiction over an American soldier for actions taken abroad? Should 
such a soldier have the same protections that would be guaranteed to 
him by the Constitution if his actions were taken on United States 
soil? Should he enjoy the same protections applicable to him in a court 
martial proceeding?

    Answer. The Administration believes strongly that U.S. soldiers 
should be tried by U.S. authorities and not by the Court. The Court is 
supposed to assert jurisdiction only in the event of a fundamental 
break-down in national institutions, such that the national authorities 
do not investigate and prosecute the commission of these crimes. Since 
the United States does and will continue to investigate and, where 
there are grounds to do so, prosecute such crimes, intervention by such 
a Court would not be warranted.
Enforced Pregnancy Issues
    Question.  As you know, the language in the treaty concerning 
enforced pregnancy was of great concern to many individuals. At the 
beginning of the process in Rome, this term was undefined, which led to 
the concern that it might be used to try to attack national policies 
concerning pregnancy and abortion. Fortunately, the negotiations in 
Rome produced a narrow definition of this term so that it expressly 
does not apply to national policies on pregnancy. What role did the 
United State play in the negotiations over this term? Did the United 
States take a formal position in favor of any particular definition of 
that term?

    Answer. The United States was consistently supportive of finding a 
definitional solution that could be adopted with the agreement of all 
concerned, as was ultimately the case. The United States was of the 
view that the definition of crimes within the Statute should in all 
cases be clear, precise, and strictly limited to acts which were 
recognized as criminal under customary international law. Questions of 
individual rights or social policies, whatever their merits or 
demerits, were wholly outside the proper scope of the Statute. The 
United States could have envisioned a definition within the main text 
of the Statute that was somewhat simpler than that ultimately adopted, 
which focused on the unlawful detention of a woman forcibly made 
pregnant. At the same time, however, the U.S. view was that this 
definition and all others should be further elaborated in an Annex 
specifying the ``Elements of Crimes'' which could in general help to 
ensure that all crimes within the jurisdiction of the Court were 
understood to be limited to well-established crimes.

                               __________
                Prepared Statements of Hearing Witnesses

                  Prepared Statement of John R. Bolton

                      I. Introduction and Summary

    Mr. Chairman and members of the Subcommittee, I want to thank you 
for the opportunity to testify before you today on the somewhat-
misnamed ``International Criminal Court'' (the ``ICC,'' or ``the 
Court''). In fact, what delegates to the recently concluded conference 
in Rome have done is created not only a Court, but also a powerful and 
unaccountable piece of an ``executive'' branch: the Prosecutor.
    Unfortunately, international support for an ICC of some kind is 
based largely on emotional (and sometimes irrational) appeals to an 
abstract ideal of an international judicial system, unsupported by any 
meaningful evidence, and, frequently running contrary to sound 
principles of international crisis resolution. Moreover, for some, 
faith in the ICC is motivated largely by a publicly-muted or unstated 
agenda of creating evermore-comprehensive international organizations 
to bind nation states in general, and one nation state in particular. 
Regrettably, the Administration's own naive support for the concept of 
an ICC has now left the United States in a far weaker position 
internationally than if we had simply declared our principled 
opposition to the very concept in the first place.
    The basic logic of the Statute of Rome's proponents is that if you 
abhor genocide, war crimes, and crimes against humanity, you should 
support the ICC. This logic is flatly wrong, for three compelling 
reasons:
    First, all available historical evidence demonstrates that the 
Court and the Prosecutor will not achieve their central goal--the 
deterrence of heinous crimes--because they do not (and should not) have 
sufficient authority in the real world. Beneath the optimistic rhetoric 
of ICC's proponents, there is not a shred of evidence to support the 
deterrence theories of the Court's advocates. Moreover, their attempted 
analogy to the deterrence of domestic law-enforcement systems is naive, 
unfounded and disingenuous.
    Second, the roles envisioned for the Court and the Prosecutor 
fatally confuse the appropriate roles of law and politico-military 
power in international affairs, to the detriment of the ICC's own 
goals, and to the national interests of the United States should the 
ICC, contrary to every likelihood, actually prove effective. There are, 
in any event, important and very viable alternatives to an ICC in 
international problem solving that should not be abandoned.
    Third, the larger objectives of many ICC supporters run contrary to 
American interests in accountable, constitution-based government, and 
should be regarded as incompatible with the fundamental attributes of 
our political system, our foreign policy interests, and, over the long 
term, our national independence.
    Our main concern here, from the American perspective, is not that 
the Prosecutor will target for indictment the isolated U.S. soldier who 
violates our own laws and values, and his or her military training and 
doctrine, by allegedly committing a war crime. Our main concern should 
be for the President, the Cabinet officers who comprise the National 
Security Council, and other senior civilian and military leaders 
responsible for our defense and foreign policy. They are the real 
potential targets of the politically unaccountable Prosecutor created 
in Rome.
    The millenarian rhetoric of the ICC's supporters will not withstand 
scrutiny, and the United States should be quite content that it will 
not be a State Party to the Rome Statute of the International Criminal 
Court. The ICC is a fundamentally bad idea, which cannot be improved by 
technical fixes as the years go by. Indeed, if the range of proposals 
suggested in Rome, but not included in the final Statute, is any 
indication, the Statute will only get worse, not better.
    In this testimony, I will expand on the reasons why the ICC is a 
flawed, naive and potentially dangerous institution, and also recommend 
a policy approach for the United States for the years ahead, on the 
assumption that the ICC now actually gets off the ground. That policy 
should essentially be to isolate and ignore the Court and its 
Prosecutor by not providing any U.S. support--political or financial--
for the exercise of their treaty authority. The United States should 
seek to preserve the relative role of the UN Security Council in the 
system of international organizations, and now permit the Court and the 
Prosecutor to erode its position. Moreover, the U.S. can and should 
seek approaches and mechanisms outside of and alternative to the ICC to 
advance American interests in dispute resolutions around the world.

     II. The ``Nuremberg Analogy'' Misreads and Misapplies History

    A substantial part of the emotional appeal of an ICC is the 
mistaken notion that it traces its intellectual lineage directly back 
to the Nuremberg (and Tokyo) war crimes trials after World War II. \1\ 
ICC supporters argue that its trials of alleged war criminals will 
perform the same functions as the Nuremberg tribunals, and are 
therefore justified.
---------------------------------------------------------------------------
    \1\ These courts were known formally as the ``International 
Military Tribunal'' (``IMT'') at Nuremberg and the ``International 
Military Tribunal for the Far East'' (``IMTFE'').
---------------------------------------------------------------------------
    However, by examining, even briefly, what actually happened at 
Nuremberg, not only are these contentions easily shown to be wrong, but 
also we can learn important lessons why the ICC as presently conceived 
can never perform effectively in the real world. The successes achieved 
by Nuremberg must be understood in its context, which understanding 
will in turn show why the ICC is almost certain to fail.
    First, the Nuremberg trials were conducted in the aftermath of a 
war that resulted in the complete military and political victory of the 
winners, and the unconditional surrender of the losers. Unlike our more 
recent experiences, there was no ambiguity in the result of World War 
II. In politico-military terms, the enemy forces had been routed or 
destroyed in battle after battle, on land, at sea and in the air, and 
there was absolutely no question--in their minds or in ours--about the 
extent of their military defeat. Their existing governmental systems 
had been shattered essentially beyond repair, and their prior political 
leaderships were disgraced. The economic systems of the enemy states 
had been shattered, and they faced an extended military occupation by 
forces from the victorious powers.
    Moreover, in legal terms, preparations for war crimes trials 
enjoyed certain enormously important advantages. Essentially all of the 
prospective defendants were in the custody of the victorious powers 
(other, of course, than those who had died in the closing days of the 
War). There was no question of trials in absentia. Additionally, 
because of the visible and massive presence of Allied forces, victims 
of the crimes and other potential witnesses were free from intimidation 
and the fear of retribution for their testimony, or from the 
possibility of conspiracies to suborn perjury or otherwise frustrate 
the tribunals' efforts. Finally, large quantities of physical and 
documentary evidence (whether helpful to the prosecution or the 
defense) were in the possession of the victors, or were easily 
obtainable. Accordingly, there was little or no risk of destruction or 
tampering of such evidence while investigative and pre-trial efforts 
were underway.
    Second, and more broadly, the principal managers of Nuremberg, the 
British and the Americans, almost completely shared political and 
juridical norms, both in the immediate aftermath of the War, and in 
their long-term vision for the futures of the defeated enemy states. 
Because of their shared legal traditions, the Allies were quickly able 
to agree on the appropriate legal standards and procedures to be 
applied. The tribunals' jurisdictional mandates themselves were 
selective and limited, and the prosecutorial and judicial authorities 
had the highest integrity and professional abilities. All of the 
prosecutions and the adjudications were controlled exclusively by 
officials of the victorious military coalitions.
    Most significantly, the trials were not narrowly conceived to be 
exercises in ``settling scores.'' The Allies had an agreed-upon vision 
of what the post-Occupation governments of the defeated states would 
be, and the war-crimes trials were a key element of the necessary 
transformation to a new society. This transformation was implemented 
through numerous channels--not just the war crimes trials--including 
everything from the complete rewriting of the constitutions of the 
defeated nations to programs of ``denazification'' at all levels of 
society. The victorious Allies desired, and these factors (particularly 
the extended military occupation) encouraged the endorsement by the 
vanquished of the legitimacy of the Nuremberg process and its results. 
Indeed, in Germany, once restored to full sovereignty, national 
institutions continued to prosecute alleged war criminals. Thus, the 
Allies were successful in their efforts to internalize among the 
defeated populations the recognition and acquiescence of their prior 
governments' and leaders' culpability, and thereby prevented the 
fostering of a post-Versailles ``sellout'' mythology.
    Simply restating this history, even in summary fashion, 
demonstrates the unique confluence of circumstances that permitted the 
successful prosecution of war crimes at Nuremberg to contribute to the 
political and social transformations of the societies of the defeated 
states, and to their reconciliation with their former adversaries. 
While no one of the factors mentioned could confidently be said to be 
completely sufficient for future successful war crimes prosecutions, we 
can predict with some degree of confidence that several of them might 
be necessary. Perhaps most important was the unambiguous military 
relationship between winners and losers, post-World War II, and the 
high degree of shared values among the key winners.

        III. The Deterrence Argument Has No Empirical Foundation

    Careful analysis of the Nuremberg experience (rather than simply 
its rhetorical deployment for emotional purposes) is usually precluded 
by the assertion of ICC proponents that Nuremberg was an inadequate 
post-facto response. They argue instead for the deterrent value of 
having an on-the-shelf Court and Prosecutor, contending that the 
absence of a permanent ICC is the real problem. So central is the 
deterrence argument to ICC advocates that it has become a near-
religious article of faith among them.
    It is incredibly striking, therefore, that faith is about all they 
have to support their argument. Rarely, if ever, has so sweeping a 
proposal for restructuring international life had so little empirical 
evidence to support it. Instead, the assertion that deterrence will 
follow inevitably from the risen Court is simply made without a shred 
of supporting evidence. Merely as one example, Mr. William Pace told 
the Rome Conference that: ``[i]f we succeed it means the establishment 
of a court which will prevent the slaughter, rape murder of millions of 
people during the next century.'' \2\ Mr. Benjamin B. Ferencz was 
closer to being accurate when he said ``[t]he certainty of punishment 
can be a powerful deterrent.'' \3\ But his assertion about the ICC 
comes no closer to making punishment a certainty than any other wishful 
thinking.
---------------------------------------------------------------------------
    \2\ Statement of William Pace to the Rome Conference, June 15, 
1998. (This statement, like others quoted in this testimony, can be 
found at http://www.un.org/icc.)
    \3\ Statement of Benjamin B. Ferencz of the Pace Peace Center, June 
16, 1998. Mr. Ferencz also told the Rome Conference that ``[olutmoded 
traditions of State sovereignty must not derail the forward movement.''
---------------------------------------------------------------------------
    In many respects, the ICC's advocates fundamentally confuse the 
appropriate roles of political (and often economic) power, diplomatic 
efforts, military force and legal procedures. No one seriously disputes 
that the barbarous actions and heinous crimes about which ICC 
supporters correctly complain are acceptable to civilized peoples. The 
real issue is how and when to deal with these acts, and this is not 
simply an exercise in taxonomy, characterizing this as a legal problem, 
and that as political problem, and the other as a military problem. The 
ICC's advocates make a fundamental error in trying to transform matters 
of power and force into matters of law. \4\ Misunderstanding the 
appropriate roles of force, diplomacy and power in the world is not 
just bad analysis, but bad and potentially dangerous policy for the 
United States.
---------------------------------------------------------------------------
    \4\ Mr. Pace's statement, once again, provides an excellent example 
of the near-theological fervor of this conviction. He asked the Rome 
Conference: ``Will we replace the centuries-old rule of impunity with 
the rule of just law? . . . Will the ICC be the formal war-related 
victim of the Twentieth Century, or a major advance in replacing the 
rule of force with the rule of law in the Twenty-first Century?''
---------------------------------------------------------------------------
    Recent history is unfortunately filled with cases where even strong 
military force or the threat of force has failed to deter aggression or 
the commission of gross abuses of human rights. Why we should believe 
that bewigged judges in the Hague will prevent what cold steel has 
failed to prevent remains entirely unexplained.
    There are, of course, cases where ICC proponents argue that the 
``world community'' has failed to pay adequate attention, or failed to 
intervene in a sufficiently timely fashion to prevent genocide or other 
crimes against humanity. The new Court and Prosecutor, it is said, will 
now guarantee against similar failures in the future. But this is 
surely fanciful. Deterrence ultimately depends on perceived 
effectiveness, and, as discussed more fully below, the ICC is most 
unlikely to be that. In those cases where, in particular, the West was 
unwilling to intervene militarily before, as in Rwanda, to prevent the 
possibility of crimes against humanity as they are happening, why will 
a potential perpetrator feel deterred by the mere possibility of 
distant legal action?
    Moreover, even if administratively competent by its own standards, 
the ICC's authority is likely to be far too attenuated to make the 
slightest bit of difference either to the potential perpetrators of 
crimes against humanity or to the outside world. For example, the 
knowledge of the ``world community'' will certainly be far more 
complete and up-to-the-minute than the ICC, and its political decision 
to intervene will have to crystallize far more quickly than the 
Prosecutor can prosecute. Thus, absent other factors tending to support 
international intervention, the ICC is not going to alter that balance, 
as all will plainly see in short order after the Court and Prosecutor 
begin operations.
    Even viewed in the light most favorable to the ICC's advocates, 
this debate is solely about predictions. Without more, predictions 
alone (and blind faith is really a better description of what ICC 
advocates are pursuing) are insufficient to support radical changes in 
the international order.
    Needless to say, of course, I do not view the argument in this 
light. I believe that the empirical evidence that does exist in the 
military sphere argues strongly that a weak and distant legal body will 
have no deterrent effect on the hard men like Saddam Hussein or Pol Pot 
most likely to commit crimes against humanity. Holding out the prospect 
of ICC deterrence to those who truly are already weak and vulnerable is 
nothing but a cruel joke.

   IV. Post-Conflict Justice and Reconciliation May--Or May Not--Be 
                               Consistent

                   There Are Alternatives To The ICC

    It is by no means clear that the international search for 
``justice'' is everywhere and always consistent with the attainable 
political resolution of serious political and military disputes, 
whether between or within states. It may be, or it may not be. Indeed, 
human conflict over time teaches that, unfortunately for moralists and 
legal theoreticians, there is more likely than not to be a series of 
tradeoffs among inconsistent objectives that mere mortal policy makers 
will have to undertake. This is a painful and unpleasant realization to 
face, confronting us as it does with the irritating facts of human 
complexity, contradictions, and imperfections. Some elect to ignore 
these troubling intrusions of reality, but those judging the merits of 
the ICC do not have (or should not follow) that option.
    As described above, Nuremberg seems to have accommodated acceptably 
both the search for justice and the transformation and reconciliation 
of the defeated enemy states with the victors. Others may as well, but, 
as demonstrated above in the examples of Bosnia and Rwanda, others may 
not. Thus, what experience we have accumulated argues in favor of a 
case-by-case approach rather than the artificially imposed uniformity 
of the ICC.
    One ongoing experiment that is worth following closely is South 
Africa's Truth and Reconciliation Commission. In the aftermath of the 
evil, destructive, and frequently deadly, system of apartheid, the new 
government faced the difficult tasks of shifting political power from a 
white minority to a black majority, establishing and legitimizing truly 
democratic governmental institutions, and dealing with earlier crimes 
and wrongs. One option certainly would have been widespread 
prosecutions against those who perpetrated widespread human rights 
abuses under the guise of enforcing apartheid. The new government felt 
that while so doing might have produced feelings of vindicated (if 
long-denied) justice among some segments of the population, it might 
have produced also corresponding feelings of persecution and unfairness 
among those targeted for prosecutions.
    Instead, the new government decided to follow a different model, 
establishing the Truth and Reconciliation Commission as a way of 
dealing with the unlawful acts of the prior government. Under the 
Commission's charter those who may have committed human rights abuses, 
both from the apartheid government and the anti-apartheid movement, 
have the opportunity to come before the Commission and confess their 
past misdeeds. Assuming they confess truthfully and fully, the 
Commission can in effect pardon them from prosecution. \5\ This 
approach is intended to make public more of the truth of the apartheid 
regime in the most credible fashion, to elicit thereby admissions of 
guilt, and then to permit society to move ahead without the continued 
opening of old wounds that trials, appeals and endless recriminations 
might bring.
---------------------------------------------------------------------------
    \5\ This condition is obviously both important and controversial, 
and deserves more extended discussion than is possible within the scope 
of this testimony.
---------------------------------------------------------------------------
    I do not argue that the South African approach should be followed 
everywhere, or even necessarily that it is the correct solution for 
South Africa. Indeed, since the process is ongoing, it would only be 
prudent not to draw overlarge conclusions from the existing body of 
work of the Truth and Reconciliation Commission. But it is certainly 
not too early to conclude that the approach now being followed by South 
Africa is radically different from that contemplated by the proposed 
ICC, which seeks vindication, punishment, and retribution as its goals, 
as is the case for most criminal law-enforcement institutions.
    It may well be that, under some circumstances, neither exact 
retribution nor the whole truth is the desired outcome of the parties 
to a dispute. In many former Communist countries, for example, citizens 
are today wrestling with the question of how to handle the involvement 
of its citizens in secret police activities of the prior regimes. So 
extensive was the informing, spying and compromising in some societies 
that a tacit decision has been made that the complete opening of secret 
police and Communist Party files once promised will either not be made 
or will be made with exquisite slowness over a long period of time. In 
effect, these societies have chosen a kind of ``amnesia,'' at least for 
some time into the future, because it is simply too difficult for them 
to sort out relative degrees of past wrongs, and because of their 
desire simply to move ahead into whatever the future holds.
    One need not agree with these decisions to have at least some 
respect for the complexity of the moral and political problems they 
must face. Only those most completely certain of their own moral 
standing, or most confident in their ability to judge the conduct of 
others in difficult circumstances, however, can reject the amnesia 
alternative out of hand. Once again, our experience should counsel for 
a prudent approach that does not invariably insist on international 
adjudication to an alternative that the parties to a dispute might 
themselves ultimately agree upon. Indeed, with an ICC ``on the shelf,'' 
one can predict that one or more disputants might well try to invoke 
the ICC's jurisdiction at an opportune moment, and thus--ironically--
make more complicated the ultimate settlement of a dispute.
    A further alternative, of course, is for the parties to a dispute 
themselves to try their own alleged war criminals. The ICC's proponents 
usually only ignore or overlook this possibility, either because it is 
inconvenient to their objectives, or because it utilizes national 
judicial systems and agreements among (or within) nation states to 
implement effectively. Here, one important contemporary example is 
Cambodia. Although the Khmer Rouge genocide is frequently offered as an 
example of why the ICC is needed, its proponents never address the 
question of why the Cambodians and Cambodian judicial institutions 
should not try and adjudicate allegations of war crimes by Cambodians 
against each other. (The implications of this option in the context of 
Bosnia are discussed below.)
    Cambodia is again split by intense political disputes so divisive 
that the UN General Assembly decided last September to leave the 
Cambodia seat vacant rather than decide between the competing factions. 
As before, these factions seek to internationalize their dispute, each 
obviously hoping that external political intervention will tip the 
domestic political scales in its favor. The earlier international 
effort in Cambodia fell apart when it lost touch with actually trying 
to bring the Cambodian factions into genuine agreement, instead of 
solely agreeing to the words on a piece of diplomatic paper. By so 
doing, among other things, they inevitably prolonged the disputes among 
Cambodians.
    Contributing to that prolongation is that idea that an 
international war crimes tribunal is needed. Instead, Cambodians should 
consider judging their own criminals themselves. There is a strong 
argument that to obtain the full cathartic benefit of war crimes 
trials, a nation must be willing to take on the responsibility 
ofjudging its own (as Germany, and some others, did to an extent after 
Nuremberg). To create an international tribunal for the task implies 
immaturity on the part of Cambodians and paternalism on the part of the 
international community. Repeated interventions by global powers are no 
substitute for the Cambodians coming to terms with themselves, as some 
of their leaders have clearly recognized. Indeed, the Far Eastern 
Economic Review recently editorialized that ``It would appear that 
continued foreign paternalism only delays Cambodians over their own 
affairs. Pol Pot's death teaches us that the weakest imperialism is 
also the most dangerous.'' \6\
---------------------------------------------------------------------------
    \6\ ``Pol Pot: Death be not proud,'' Far Eastern Economic Review, 
April 30, 1998, page 78, column 2.
---------------------------------------------------------------------------
    It may well be that nations, entirely on their own, will not have 
the entire wherewithal to mount successful war crimes prosecutions, and 
that international assistance and support for national law-enforcement 
efforts will be necessary. In such cases, the best source for such 
assistance, at least in the first instance, is almost surely regional 
organizations rather than the United Nations or another global body. 
(Indeed, in the example of Cambodia, the ASEAN countries are perfectly 
suited for exactly this role.) The central point, under any analysis, 
however, is certainly that a permanent ICC may actually hinder or 
prevent the comprehensive resolution of internal or international 
problems, thus proving yet again the importance of utilizing the 
readily available alternatives.

V. Recent Crises Demonstrate That Case-By-Case Treatment Is The Proper 
                Approach To Alleged International Crimes

    Proponents of the Court and Prosecutor assert that the recent 
histories with the two ad hoc war crimes tribunals established by the 
Security Council, for Bosnia and Rwanda, demonstrate why a permanent 
ICC is necessary. They further assert that circumstances where ad hoc 
tribunals were not created, such as Cambodia, also support creating an 
ICC. The actual evidence turns out to prove precisely the contrary 
point, namely that our current knowledge demonstrates why it is wildly 
premature to extrapolate from the limited, and highly unsatisfactory 
experience with ad hoc tribunals to a standing Court and Prosecutor.
    In Bosnia, the ad hoc war crimes court was established long before 
the Dayton Agreement. In fact, it serves thereby as example of how a 
decision to detach war crimes from the underlying political reality 
advances neither the goal of a political resolution to the its 
particular crisis nor the goal of punishment for war criminals. Even 
today, functioning in the context of Dayton, the tribunal is not, and 
probably cannot achieve its declared objectives. Moreover, if it could, 
it is by no means clear that such a ``success'' would complement or 
advance the political goals of a free, coherent and independent Bosnia, 
not to mention reconciliation among the Bosnian factions.
    Unlike Nuremberg, in Bosnia, there are no clear winners and no 
clear losers. Indeed, in many respects the war in Bosnia is no more 
over than it is in other parts of the former Yugoslavia, such as 
Kosovo. Thus, the future status of the warring parties, their 
respective politico-military postures, and their levels of political 
support are afar from clear. Their prior leaderships, or persons 
closely associated with them, are still in power, and likely to remain 
so for the foreseeable future. Within Bosnia itself, there is every 
reason to believe that ethnic separation and de facto partition is a 
result more likely than national reconciliation, given the long 
histories among the factions. Moreover, there is quite clearly no 
consensus among then intervening powers, with the Russian Federation 
taking a very different, and far more protective view of Serbian 
interests than that taken by any Western European power or the United 
States.
    Significantly, there is no agreement, either among the Bosnian 
factions nor among the external intervening powers about how the war 
crimes tribunals fit into the overall political disagreement and its 
potential resolution. Indeed, Bosnia is virtually a case study of how 
the insistence on making legal process a higher priority than the basic 
political resolution can adversely affect both the legal and political 
sides of the equation. Merely as one example, it is far from clear that 
war crimes trials will result in the expiation of war-time hostilities. 
Press reporting over the years since the Yugoslav tribunal was created 
seems to show almost without contradiction that Serbs regard the 
tribunal as hopelessly biased against them, thus helping to reaffirm 
the long-standing Serbian view that they are not understood or 
appreciated by Western Europe. Croats are outraged that some of their 
fellows have been indicted at all, because of the implicit equating of 
them as war criminals along with the Serbs, and the Bosnian Moslems see 
the whole process as inadequately vindicating their claims of 
oppression at the hands of both Serbs and Croats.
    In short, and very much unlike Nuremberg, much of the Yugoslav war 
crimes process seem to be about score settling rather than a more 
disinterested search for justice that will contribute to political 
reconciliation. There may well be legitimate disagreement with the 
perspective that score settling is in fact what is happening in 
Yugoslavia, but this is a case where it only takes one to tango. If one 
side--most likely the Serbs--believe that they are being unfairly 
treated, and hold this view strongly, then the ``search for justice'' 
will have harmed the cause of Bosnian national reconciliation. All 
outside observes might disagree with this assessment, but the outside 
observers do not live in Bosnia. While the Yugoslav war-crimes process 
is still obviously incomplete, its progress to date is not encouraging.
    This assessment, moreover, does not even address the tribunal's 
continuing inability to bring prominent defendants into custody, to 
obtain and compel testimony from material witnesses, to prevent the 
destruction and tampering of documentary and physical evidence, or even 
to reach what is quite likely multiple ongoing conspiracies to obstruct 
justice. Moreover, this failure is continuing contemporaneously with 
the presence of thousands of heavily-armed foreign forces, including 
those of the United States, on Bosnian territory. Governments of the 
troop-contributing countries, for various reasons, have, to date at 
least, not been willing to undertake the likely-necessary sustained 
military operations that would be necessary to provide support for the 
Yugoslav tribunal that might make it at least somewhat more effective. 
\7\
---------------------------------------------------------------------------
    \7\ After the Dayton Agreement, it was not until June 10, 1997, 
that the first IFOR military action to apprehend indicted war criminals 
took place. See Richard Holbrooke, To End a War, Random House (1998), 
at p. 190.
---------------------------------------------------------------------------
    One may certainly complain about this lack of resolve, as many 
proponents of the ICC do, including those within the Clinton 
Administration. But those more skeptical of the ICC are also entitled 
to ask: ``If not in Bosnia, where?'' If the political will, say, to 
risk the lives of troops to apprehend alleged war criminals in Bosnia 
does not exist, where will it suddenly spring to life on behalf of the 
nascent ICC? These are questions it would be particularly important to 
address to those European and other governments in Rome's group of so-
called ``like minded nations'' that pushed so ardently for the creation 
of the ICC.
    Moreover, the option of the Bosnians themselves trying their own 
war criminals of whatever stripe, mentioned as a possibility above, is 
not even seriously discussed. One reason, of course, is that, at the 
time of Dayton, the ongoing Hague tribunal was already a fact of life 
that some parties did not want to have modified. More troubling, and 
less welcome for public discussion, is the fact that Dayton did not 
really accomplish mush more than a defacto partition of Bosnia. Bluntly 
stated, if Bosnian Serbs, Croats and Moslems had really reached a true 
meeting of the minds at Dayton, they would have agreed on how to 
resolve the question of war crimes allegations. That they did not is a 
straightforward admission that Dayton simply papered over, and almost 
certainly only temporarily, the underlying causes of past and future 
conflicts. Thus, the Hague tribunal has not only not contributed to a 
comprehensive solution in Bosnia, but may well be a factor inhibiting 
such a result. An ICC with jurisdiction over former Yugoslavia would 
only inhibit it further.
    The experience of the Rwanda war crimes tribunal is even more 
discouraging. There, widespread corruption and mismanagement in that 
tribunal's affairs have led many simply to hope that it expires quietly 
before doing more damage. At least as equally troubling, however, is 
the clear impression many have that score settling among Hutus and 
Tutsis is the principle focus of the Rwanda tribunal. In fact, one 
estimate of potential defendants in war crimes prosecutions was once 
put at 60,000, which leads one to ask whether the tribunal is not 
simply war by other means, at least in the view of some.
    In addition to the cases of Bosnia and Rwanda where war crimes 
tribunals are not only troubled, but which actually undercut the 
argument for creating an ICC, there is at least one example where the 
non-existence of a tribunal likewise demonstrates the risks of a 
permanent Court and Prosecutor: Iraq. Iraq's August, 1990 invasion of 
Kuwait unquestionably qualifies as an unjustifiable act of aggression, 
and there is little debate, at least in the West, that the Iraqis 
committed any number of acts which would be illegal under the Statue of 
Rome, as now written. Yet, by conscious decision, neither the United 
States nor any other power, including Kuwait, has seriously sought to 
create a war crimes tribunal for crimes in the Persian Gulf War.
    Iraq thus illustrates the case where valid prudential 
considerations dictate against the automatic launching of war crimes 
investigations and trial, at least for the foreseeable future. The 
reasons are clear: this is a case to abjure war crimes prosecutions 
because the appropriate circumstances are not yet present. Unlike 
Nuremberg, the victorious coalition in the Persian Gulf never had as 
its goal the unconditional surrender of Saddam Hussein and his removal 
from power. \8\ Accordingly, the coalition did not destroy the existing 
government of Iraq, its forces never occupied Iraqi territory any 
longer than was necessary to accomplish their military mission of 
ousting Iraq from Kuwait, and they had no plans whatever to transform 
Iraqi society from a dictatorship to a democracy. Thus, war crimes 
trials from the coalition's military perspective formed no part of its 
long-range strategy. \9\
---------------------------------------------------------------------------
    \8\ Whether this should have been the goal, of course, is the 
subject of an ongoing debate, but it is not decisively important for 
present purposes
    \9\ At one point in the immediate aftermath of the Persian Gulf 
War, the Bush Administration believed that the threat of war-crimes 
indictment and prosecution would be more likely to spur anti-Saddam 
activity, especially within the Iraqi military, than proceeding with 
trials in absentia. To date, of course, such activity has clearly been 
insufficient because Saddam remains in power. Whether at a point of 
future confrontation with Iraq a revival of the threat might have some 
impact remains to be seen.
---------------------------------------------------------------------------
    It is nonetheless certainly true that Kuwait and its citizens, and 
many others, suffered enormous losses because of the Iraqi invasion, 
and, as the victims still feel entitled to vindication and restitution 
or damages where possible. But war crimes prosecutions have been 
foregone even in their cases, and for good reasons. Most importantly, 
for the present at least, the key defendants, from Saddam on down are 
not in custody, nor is potentially dispositive documentary and physical 
evidence which is still in the hands of the Iraqi government and 
military. Prosecuting the alleged war criminals in absentia is 
therefore the only possibility, and this approach raises enormous 
potential risks. Specifically, in absentia prosecutions could give rise 
to ``Versailles syndrome'' feelings of injustice and persecution by the 
West, both among the Iraqi population in particular and generally 
throughout the Arab world. Whether this ``Versailles'' reaction would 
have been fair and accurate is not, of course, particularly helpful, 
since this is another case where it only takes one to tango. \10\
---------------------------------------------------------------------------
    \10\ Article 63.1. of the Statute of Rome provides that ``[t]he 
accused shall be present during the trial.'' While such a provision 
prevents in absentia trials, it does not prevent indictments from being 
issued against alleged perpetrators when they are not in custody, and 
even when there is no likelihood that they will or even can be brought 
into custody in the future. Thus, the risk of the ICC fostering a 
``Versailles syndrome'' remains strong.
---------------------------------------------------------------------------
    These concededly brief sketches of three pertinent case studies 
make it clear, at a minimum, that the questions whether, how, and under 
what circumstances, to initiate war crimes prosecutions are far from 
being susceptible to uniform, one-size-fits-all decision-making. Our 
contemporary experience therefore counsels strongly against locking in 
a permanent Court and Prosecutor in the absence of more compelling 
experience and circumstances.

 VI. The Mandate and Structure of the ICC are Likely to be Contrary to 
                           American Interests

    I believe that the foregoing analysis demonstrates that the most 
likely outcome for the new ICC is that it will be weak and ineffective, 
and eventually ignored, because it is naively conceived and executed.
    There is, of course, another possibility: that the Court and the 
Prosecutor (either as currently established by the Statute of Rome, or 
as potentially enhanced to take account of the preceding point) will be 
strong and effective. In that case, the United States may face a much 
more serious problem, because then they may very likely be dangerous to 
American interests, if not imminently, certainly in long-range 
precedential terms.
    This seeming paradox stems from the nature of the authority sought 
to be transferred to the ICC by the Statute of Rome. This would be a 
transfer that, at least according to some, simultaneously purports to 
(1) create authority outside of (and arguably superior to) the U.S. 
Constitution; and (2) inhibit the full constitutional autonomy of all 
three branches of the U.S. government, and, indeed, of all states party 
to the Statute. Advocates of the ICC do not often publicly assert that 
these transfers are central to their stated goals, but in fact they 
must be for the Court and Prosecutor to be completely effective. While 
the Statute of Rome appears indistinguishable from other international 
treaties such as those creating NATO and the WTO, it is in fact quite 
different. And it is precisely for these reasons that, strong or weak 
in its actual operations, the ICC has unacceptable consequences for the 
United States. It is, in fact, a stealth approach to eroding 
constitutionalism.
A. The Problem of Legitimacy
    First, we must begin with the existing universe of international 
organizations dealing with human rights and legal norms, or at least 
those within the UN system, and assess their efficacy and legitimacy 
from the American perspective. Their record is not encouraging. To the 
contrary, assessing the record of analogous United Nations 
institutions, we find considerable evidence for concern about the 
operations of a new one such as the ICC. Moreover, here, right at the 
outset of the inquiry, we come upon the first anomaly. With virtually 
no debate in Rome, and with the full endorsement of the Clinton 
Administration, supporters of an ICC have created it by treaty as an 
organization outside of the United Nations system. \11\
---------------------------------------------------------------------------
    \11\ Article 2 of the Rome Statute provides that ``[t]he Court 
shall be brought into relationship with the United Nations through an 
agreement to be approved by the Assembly of States Parties to this 
Statute and thereafter concluded by the President of the Court on its 
behalf.'' This very language, of course, demonstrates that the ICC does 
not presently stand in any relation to the UN. From the context of 
other language in the Statute (such as the provisions concerning 
financing in Part 12), and from numerous comments made by ICC 
supporters during several years of negotiation, it is plain that the 
``relationship'' contemplated is nothing like the relationship of the 
ICJ or the specialized agencies or the IAEA to the main UN.
---------------------------------------------------------------------------
    This result was far from inevitable. The United Nations Charter 
establishes the International Court of Justice (``ICY') as one of the 
six principal organs of the UN system, but the Charter clearly 
contemplates the possibility of additional judicial bodies. \12\ 
Nonetheless, the ICC's proponents rejected that option. In response to 
a press inquiry in Rome, UN Secretary General Kofi Annan offered this 
explanation:
---------------------------------------------------------------------------
    \12\ Article 92 provides that the ICJ will be ``the principal 
judicial organ of the United Nations'' (emphasis added), thus implying 
the permissibility that lesser judicial entities might be created 
subsequently.
---------------------------------------------------------------------------
        ``I think in a way an attempt to set up an independent 
        international criminal court that is not seen as a UN organ is 
        also an attempt to reinforce and enhance the independence of 
        the Court. Often when organizations (even thought the ICI is 
        quite removed) are attached to the General Assembly we have 
        heard the accusations that it is either politicized or is 
        likely to be politicized. . . . [I]f one wants a court to 
        operate independently and have its own rules of procedure 
        without interference from political institutions and 
        governments, . . . I think setting it up as an independent 
        court, a stand alone court, . . . should reinforce a sense of 
        independence and lack of politicization, and I think it is a 
        plus rather than a negative.'' \13\
---------------------------------------------------------------------------
    \13\ Quoted from the transcript of the Secretary General's press 
conference at the opening of the Rome Conference, June 15, 1998
---------------------------------------------------------------------------
    Whatever the reasons why the recently concluded Rome conference 
decided not to establish the ICC as a UN body, that conscious choice by 
the delegations, and by the States which become party to the Statute of 
Rome, will have significant consequences for the governance of the ICC 
as well. Most notably for present purposes, separating the ICC from the 
UN should mean unambiguously that the ICC must be self-financing 
through contributions from States party to the Statute, not from the UN 
membership at large. The expenses of the ICJ, by contrast, are borne by 
the United Nations, as the UN Charter and the ICJ Statute expressly 
provide. \14\ Accordingly, no one can seriously argue that the United 
States has any financial responsibility whatsoever for the future 
operations of the Court and Prosecutor, whether through mandatory 
assessments or voluntary contributions. \15\
---------------------------------------------------------------------------
    \14\ Article 33 of the ICJ Statute provides that: ``The expenses of 
this Court shall be borne by the United Nations in such a manner as 
shall be decided by the General Assembly.'' Article 17(1) of the UN 
Charter provides in complementary fashion that: ``The General Assembly 
shall consider and approve the budget of the Organization.''
    \15\ The back door to American financing for the ICC, even if the 
United States never ratifies the Statute of Rome, is already written 
into Article 115. It provides that the United Nations shall make 
available funds ``in particular in relation to the expenses incurred 
due to referrals by the Security Council.'' If the Yugoslavia and 
Rwanda Tribunals are consolidated into the ICC, right from the outset 
they will constitute the bulk of the ICC's work, and therefore the bulk 
of its funding requirements. Accordingly, the United States would not 
save any money by transferring these tribunals away from the 
jurisdiction of the Security Council.
    Note also Article 115's use of the phrase ``in particular.'' These 
words imply that while UN funding for referred cases is automatic, the 
Statute also contemplates other situations where the UN may provide 
funding. Since the United States is assessed twenty-five percent of the 
regular UN budget, every case in which the UN contributes to the ICC 
from that budget, the US will be paying a major share.
---------------------------------------------------------------------------
    More fundamentally, separating the ICC from the ICJ at least 
tacitly acknowledges that the ICJ has failed to garner the kind of 
legitimacy that the ICJ's founders had hoped for in 1945. In some 
respects, this is more than ironic, because much of what was said about 
the ICJ in 1945 anticipates what the ICC's supporters have recently 
said about it. The drafting committee of the San Francisco Conference 
responsible for the ICJ reported that it:

        ``. . . ventures to foresee a significant role for the new 
        Court in the international relations of the future. The 
        judicial process will have a central place in the plans of the 
        United Nations for the settlement of international disputes by 
        peaceful means. . . . It is confidently anticipated that the 
        jurisdiction of this tribunal will be extended as time goes on, 
        and past experience warrants the expectation that its exercise 
        of this jurisdiction will commend a general support. . . . In 
        establishing the International Court of Justice, the United 
        Nations hold before a war-stricken world the beacons of Justice 
        and Law and offer the possibility of substituting orderly 
        judicial processes for the vicissitudes of war and the reign of 
        brutal force.'' \16\
---------------------------------------------------------------------------
    \16\ Quoted in Bruno Simma, ed., The Charter of the United Nations: 
A Commentary, Oxford University Press (1984), at pp. 980-81.

These touching sentiments were not borne out in practice for the ICJ, 
which has been largely ineffective when invoked, and more often ignored 
in significant international disputes. Indeed, the United States 
withdrew from the mandatory jurisdiction of the ICJ, and it has lower 
public legitimacy in the United States than even the rest of the UN 
system.
    Among the several reasons why the ICJ is held in such low repute, 
and what is candidly admitted at least privately in international 
circles, is the highly politicized nature of its decisions. Although 
ICJ judges are supposed to function independently of their national 
government, their election by the UN General Assembly is a highly 
politicized matter, involving horse trading among and within the UN's 
regional and other political groupings. Once elected, the judges are 
expected to vote, and typically do vote, along highly predictable 
national lines (except in the most innocuous of cases). Thus, the ICJ's 
failure to generate widespread international respect and legitimacy on 
``civil'' matters may well be the most powerful explanation why the 
ICC's supporters chose to establish their new institutions outside the 
UN system. \17\
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    \17\ Because the Statute of the ICJ ``forms an integral part of the 
[UN] Charter,'' under Article 92, amending the Statute would have 
triggered the full panoply of requirements for amending the Charter 
itself. Pursuant to Article 108 of the Charter, such a process would 
require: (1) a two-thirds vote of the General Assembly; and (2) having 
the amendment ``ratified in accordance with their respective 
constitutional processes by two thirds of the Members of the United 
Nations, including all of the Permanent Members of the Security 
Council.''
    Thus, under the Charter amendment procedure, Permanent Member, such 
as the United States, could have effectively vetoed any changes. There 
is no doubt that the desire to avoid the U.S. (and possibly other 
Permanent Member) veto was a powerful, though publicly unspoken, 
incentive for ICC supporters to create an entirely new organization.
---------------------------------------------------------------------------
    Another contributing factor in making the ICC independent of the UN 
was quite likely the massive failure to achieve legitimacy of the UN's 
principal human rights body, the UN Human Rights Commission (``UNHRC'' 
or ``the Commission''). Despite unrelenting, bipartisan American 
efforts over the years to make the Commission successful, we are 
routinely treated with the spectacle of a human rights watchdog that 
includes among its membership nations like Cuba, Iraq and Iran. 
Impotent on the full range of issues, from the massacre in Tienanmen 
Square to ethnic cleansing in the former Yugoslavia, the UNHRC is a 
classic UN operation: considerable talk and paper, but, unfortunately, 
very little of value produced.
    In recent years, where the Commission has been active and 
productive, it has been unaccountably focused on finding fault with the 
United States. This year, for example, three UNHRC rapporteurs will 
have visited us, to investigate our record on ``religious 
persecution,'' violence against women, and the death penalty. The UN 
report on America's use of the death penalty has already been issued, 
and provides clear evidence both of how the UNHRC now operates, and on 
what we may expect analogously from the ICC. Notably, the rapporteur's 
actual mandate only covered ``extrajudicial, summary or arbitrary 
executions,'' but he interpreted this to mean all applications of the 
death penalty in America.
    He effectively admitted his unstated agenda when he said that 
``information concerning the extension of the scope and the 
reintroduction of death penalty statutes in several states'' partly 
prompted his visit. Incredibly, he recommends that our government 
should ``include a human rights component in training programs for 
members of the judiciary,'' and that our police should receive 
``training on international standards on law enforcement and human 
rights.'' Where did these recommendations come from? At least in part, 
they came from the rapporteur's belief that the United Nations had 
already found the US to be retrograde on the death penalty: ``The 
United Nations has gradually shifted from the position of a neutral 
observer . . . to a position favouring the eventual abolition of the 
death penalty.'' \18\
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    \18\ It should, therefore, come as no surprise that the Statute of 
Rome makes no provision for the death penalty for any offense, 
including genocide.
    Indeed, and most ironically, Mary Robinson, the UN High 
Commissioner for Human Rights, said in her opening remarks to the Rome 
Conference on June 15: ``I would look for the Court to include 
provision for efforts to rehabilitate those it convicts.'' High 
Commissioner Robinson does not elaborate on her vision about how to 
rehabilitate those convicted of genocide, war crimes or crimes against 
humanity.
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    Many in America would be surprised to find that the UN had a 
position on the death penalty at all, let alone one so profoundly 
different from that so emphatically, and so democratically, expressed 
here. But the UN High Commissioner for Human Rights would undoubtedly 
greet this American attitude with scorn, a failure by the United States 
to ``recognize the need to rise above narrow definitions of national 
self interest.''
B. The Elimination of the Security Council Role in ICC Affairs
    Although few Americans would be surprised by the implicit 
acknowledgement of problems with UN legitimacy by ICC supporters, most 
would be stunned to learn of the overwhelming repudiation of the 
Security Council by delegates to the Rome Conference. Almost alone 
among significant UN governing bodies, the Security Council does enjoy 
a significant level of legitimacy among American policy makers. And yet 
is was precisely the Security Council--where the Clinton Administration 
has focussed so much of its efforts over the past six years--where the 
Administration found the greatest resistance to its position.
    In fact, one could analyze what happened in Rome to be--for the 
Administration--the completely unintended consequences of its own basic 
policies, starting literally from the Administration's first days in 
office. Security Council Resolution 808, which created an international 
criminal tribunal for Yugoslavia, was adopted on February 22, 1993, 
just slightly over a month after the Inauguration. The Rwanda tribunal 
followed thereafter, created by Security Council Resolution 935 in 
July, 1994. The Administration clearly intended, and stated frequently, 
that these individual tribunals were not only justifiable on their own 
merits. They were also intended as building blocks in the foundation of 
what became the ICC, and, indeed, for an even larger agenda. Over two 
years ago, David 3. Scheffer wrote:

        ``The ultimate weapon of international judicial intervention 
        would be a permanent international criminal court (ICC). . . .
        The ad hoc war crimes tribunals and the proposal for a 
        permanent international criminal court are significant steps 
        toward creating the capacity for international judicial 
        intervention. In the civilized world's box of foreign policy 
        tools, this will be a shiny new hammer to swing in the years 
        ahead.'' (emphasis added) \19\
---------------------------------------------------------------------------
    \19\ David J. Scheffer, ``International Judicial Intervention,'' 
Foreign Policy (Spring, 1996) 34, at 48-51.

    By overwhelmingly repudiating the Administration's position, which 
had itself been modified and weakened during the negotiations, the Rome 
Conference has substantially minimized, if not effectively eliminated, 
the Security Council from any role in its affairs. \20\ Since the 
Council is charged by Article 24 of the UN Charter with ``primary 
responsibility for the maintenance of international peace and 
security,'' it is more than passing strange that the Council and the 
ICC are now to operate virtually independent of one another. Strange, 
that is, only if one is unfamiliar with the agenda of many governments 
and Non-Governmental Organizations (``NGOs'') supporting the ICC, whose 
agenda has for years included a downgrading of the Security Council, 
and especially the weakening of the importance of the veto power of the 
Council's five Permanent Members.
---------------------------------------------------------------------------
    \20\ The limited renaming role for the Security Council in the ICC 
is found in Article 16 of the Statute ofRome, which provides that:

    ``No investigation or prosecution may be commenced or proceeded 
with under this Statute for a period of 12 months after the Security 
Council, in a resolution adopted under Chapter VII of the Charter of 
the United Nations, has requested the Court to that effect; that 
request may be renewed by the Council under the same conditions.''

    This provision, of course, totally reverses the appropriate 
functioning of the Security Council. It seriously undercuts the role of 
the five Permanent Members of the Council, and radically dilutes their 
veto power. This was precisely the objective of the ICC's proponents.
    Under Article 16 of the Statute, the Prosecutor is free to 
investigate, indict and try before the Court completely at will, unless 
and until the Security Council acts. But in requiring and affirmative 
vote of the Council to stop the Prosecutor and the Court, the Statute 
slants the balance of authority from the Council to the ICC. Moreover, 
a veto by a Permanent Member of such a restraining Council resolution 
leaves the ICC completely unsupervised.
    For the United States, faced with the possibility of an overzealous 
or politically motivated Prosecutor, the protection afforded by our 
veto has been eliminated. In effect, the UN Charter has been implicitly 
amended without being approved pursuant to Chapter XVIII of the UN 
Charter. In particular, this drastic erosion of the U.S. position will 
not be subject to Senate review.
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    This implicit weakening of the Security Council is a fundamental 
new problem now created by the ICC, and an important reason why the ICC 
should be rejected. The Council now risks both having the ICC 
interfering in its ongoing work, and the confusion, discussed above, 
between the appropriate roles of law, politics and power in settling 
international disputes.
C. The ICC's Own Problems of Legitimacy
    But it is not just the ICC's detrimental impact on the Security 
Council, or its troubling intellectual antecedents in the ICJ and the 
UNHRC that should concern us, important though they may be. The Court 
and the Prosecutor themselves have problems of legitimacy, which not 
only will not remedy the problems of the existing UN institutions, but 
which will simply reduce further their already diminished standing. The 
Clinton Administration has never seriously addressed these issues 
because it has been such a vociferous advocate of ``a'' Court that it 
likely does not take these issues seriously. I believe that there is 
substantial opinion to the contrary outside of the Administration, and 
that should warrant extensive debate in Congress now about how to treat 
the ICC when it actually comes into existence within the next few 
years.
    The ICC's principal difficulty is that its components do not fit 
into a coherent ``constitutional'' structure that clearly delineates 
how laws are made, adjudicated and enforced, subject to popular 
accountability and structured to protect liberty. Instead, the Court 
and the Prosecutor are simply ``out there'' in the international 
system, ready to start functioning when the Statute of Rome comes into 
effect. Consistent with American standards of constitutional order, 
this approach is unacceptable. It would also seem entirely irrational 
unless we understand the true motives of many of the ICC's proponents, 
as discussed more fully below.
            1. Substantive Problems
    The first key problem of legitimacy for the ICC for Americans is 
that there is insufficient clarity or agreement over the substantive 
jurisdiction of the Court and the Prosecutor. This is--most 
emphatically--not a Court of limited jurisdiction.
    Even for genocide, the oldest codified among the three crimes 
specified in the Statute of Rome, as approved, there is hardly complete 
clarity in what it means. Although vague statutory terms can sometimes 
be clarified by judicial interpretation, even for the crime of genocide 
as enacted into positive U.S. law, there has been virtually no judicial 
elaboration. Moreover, the Senate could not even accept the Statute of 
Rome's definition of genocide, unless it was prepared to reverse the 
position it took just a few years ago in giving approval to the 
Genocide Convention of 1948.
    When the Senate approved the Genocide Convention on February 19, 
1986, it attached two reservations, five understandings and one 
declaration. One reservation, for example, requires the specific 
consent of the United States before any dispute involving the U.S. can 
be submitted to the International Court of Justice. One of the 
understandings limits the definition of ``mental harm'' in the 
Convention to ``permanent impairment of mental faculties through drugs, 
torture or similar techniques.'' Another understanding provides that 
the Convention should not be understood to function automatically as an 
extradition treaty. Two other understandings are of especial importance 
here. One was intended to protect American servicemen and women, and 
provides that:

        ``. . . acts in the course of armed conflicts committed without 
        the specific intent [required by the Convention] are not 
        sufficient to constitute genocide as defined by this 
        Convention.''

The other, even more directly pertinent here, provides that:

        ``. . . with regard to the reference to an international penal 
        tribunal in article VI of the Convention, the United States 
        declares that it reserves the right to effect its participation 
        in any such tribunal only by a treaty entered into specifically 
        for that purpose with the advice and consent of the Senate.'' 
        (emphasis added) \21\
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    \21\ See American Society of International Law, 28 International 
Legal Materials 754 (Number 3, May, 1989), at p. 782.
---------------------------------------------------------------------------
    By contrast, Article 120 of the Statute of Rome provides explicitly 
and without any exceptions that ``No reservations may be made to this 
Statute.'' Thus, confronted with a definition of ``genocide'' in the 
Statute of Rome that does not take into account the Senate's existing 
reservations, understandings and declaration, the Senate would not have 
the adoption of attaching them to any possible ratification of the 
Statute. In effect, to accept the Statute, the Senate would have to 
reverse the position it took as recently as 1986. Moreover, Senators 
should take careful note of the reservation quoted above in the ``penal 
tribunal'' that we can now clearly identify as the ICC, which requires 
Senate approval of any ``participation'' in that body.
    For the other two broadly defined crimes (war crimes and crimes 
against humanity), the vagueness is even greater, as is the 
accompanying risk that an activist Court and Prosecutor can broaden the 
Statute's language in an essentially unchallengeable fashion. It is 
precisely the risk to potential defendants that has led our Supreme 
Court to invalidate criminal statutes which fail to give adequate 
notice of exactly what they prohibit under the ``void for vagueness'' 
doctrine. Unfortunately for the unwary, ``void for vagueness'' is a 
peculiarly American invention.
    Much of the media attention to the American negotiating position on 
the ICC concentrated on the risks perceived by the Pentagon to American 
peacekeepers stationed around the world. As real as those risks may be, 
however, no one should operate under the illusion that our basic 
concern should be only with a handful of peacekeepers.
    Our real concern should be for the President and his top advisers. 
For example, consider some of the following provisions of the Statute 
of Rome. The definition of ``war crimes'' includes, for example:

        ``intentionally directing attacks against the civilian 
        population as such or against individual civilians not taking 
        direct part in hostilities; [and]
        ``intentionally launching an attack in the knowledge that such 
        attack will cause incidental loss of life or injury to 
        civilians or damage to civilian objects or widespread, long-
        term and severe damage to the natural environment which would 
        be clearly excessive in relation to the concrete and direct 
        overall military advantage anticipated; . . .'' \22\
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    \22\ Statute of Rome, Article 8.2(b)(i) and (iv).

A fair reading of these provisions leaves one unable to answer with 
confidence the question whether the United States was guilty of war 
crimes for its aerial bombing campaigns over Germany and Japan in World 
War II. Indeed, if anything, a straightforward reading of the language 
probably indicates that the Court would find the U.S. guilty. A 
fortiori, these provisions seem to imply that the U.S. would have been 
guilty of a war crime for dropping atomic bombs on Hiroshima and 
Nagasaki. \23\
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    \23\ Some governments and NGOs proposed in Rome that the use of 
nuclear weapons be specifically prohibited. While these proposals were 
not accepted, the existing language in the Statute, including other 
language not quoted herein, can certainly give rise to arguments about 
the ``criminal'' effects of nuclear weapons to those seeking to outlaw 
them
---------------------------------------------------------------------------
    Even apart from these incredibly important general questions, 
consider further some of the elements of the offenses just quoted.

   What is to constitute ``knowledge'' that an attack ``will 
        cause incidental loss of life or injury to civilians''? Second-
        guessing long after the fog of battle lifts is an arm-chair 
        exercise well suited for academics and theorists, but ill-
        suited to military or political decision makers whose failure 
        to make the right command decisions can endanger their own 
        forces.
   What is to constitute ``long-term and severe damage to the 
        natural environment,'' surely a new crime to most militaries in 
        the world? While we might agree that the oil fires set by Iraq 
        as it was being forced out of Kuwait would meet this test, what 
        else would? Is sustained bombardment enough? Is the use of all 
        nuclear weapons now a war crime? Would the Iraqis have a 
        defense that they were justified by exigent military 
        circumstances?
   What is to constitute the ``clearly excessive'' damage 
        required by the last phrase in subparagraph (b)? What are the 
        standards, and how are they to be agreed upon?

There are similar problems in numerous other provisions as well. 
Subparagraph (k), for example, forbids ``destroying or seizing the 
enemy's property unless such destruction or seizure be imperatively 
demanded by the necessities of war.'' A law professor could spend weeks 
taking his class through hypotheticals trying to figure out what that 
provision might mean.
    Moreover, as we are all very much aware, simply the fact of 
launching massive criminal investigations can have an enormous 
political impact. Although subsequent indictments and later convictions 
are unquestionably more serious still, a zealous independent Prosecutor 
can have a dramatic impact simply by calling witnesses and gathering 
documents, without ever bringing formal charges.
    Perhaps the most intriguing is the prohibition in subparagraph (p) 
against ``committing outrages upon personal dignity, in particular 
humiliating and degrading treatment.'' Were the problems with the 
Statute of Rome not so gravely serious, one could imagine this 
provision as the subject of endless efforts at humor.
    Worse even than the vague and elastic provisions in the Statute is 
what is included only by general reference. Thus, for example, the 
definition of crimes against humanity, after listing several elements, 
includes the catch-all phrase ``other inhumane acts of a similar 
character intentionally causing great suffering, or serious injury to 
body or to mental or physical health.'' How will this phrase be 
interpreted, and will there be any way to countermand the Court if its 
interpretation is unacceptable? Who will advise the President that he 
is unambiguously safe from the retroactive imposition of criminal 
liability if he guesses wrong on an ``inhumane acts''? Is even the 
defensive use of a nuclear weapon an ``inhumane act''?
    Perhaps worst of all is that we are nowhere near the end of the 
list of prospective ``crimes'' that can be added to this Statute. Many 
were suggested at Rome, and commanded support from many participating 
nations. Most popular among those was the crime of ``aggression,'' 
which is now declared criminal, but not yet defined by the Statute. 
\24\ Although frequently not hard to identify, ``aggression'' can at 
times be something in the eye of the beholder. Thus, Israel justifiably 
feared that its pre-emptive strike in the Six Day War almost certainly 
would have be the subject of a complaint to the Prosecutor, and quite 
likely resulted in a case brought against top Israeli officials as 
individuals. Israel, therefore, was one of the few governments that 
voted with the United States against the Statute. \25\
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    \24\ Article 5.2 of the Statute provides that the Court ``shall 
exercise jurisdiction over the crime of aggression once a provision is 
adopted in accordance with'' the Statute's amendatory provisions. This 
extraordinary procedure apparently did not trouble the delegates at 
Rome.
    \25\ Israel also objected to a provision (Article 8.2.)(viii)) 
which makes it a war crime to effect ``the transfer, directly or 
indirectly, by the Occupying Power of parts of its own civilian 
population into the territory it occupies, or the deportation or 
transfer of all parts of the population of the occupied territory 
within or outside this territory.''
    The inclusion of Article 8.2.(b)(viii) is an excellent example of 
the politicization of what is masquerading as a purely legal and 
judicial process. It is the kind of effort to gain political advantage 
out of the manipulation of the Statute, the Court and the Prosecutor 
that we can expect to see no end of.
---------------------------------------------------------------------------
    The list goes on and on. Ever-helpful Cuba offered the ``crime'' of 
embargoes, and others suggested terrorism, drug trafficking and so on. 
Some crimes against humanity do not appear to have been discussed, but 
might have been offered had the Conference gone on longer. What about 
the legality of a nation's ``one-child-per-family'' policy? Was that 
prohibited by the characterization of religious persecution as a 
``crime against humanity, or does it have to be spelled out in terms? 
Are forced abortions considered a crime under the genocide prohibition 
against ``imposing measures intended to prevent births within [a 
national] group''?
    One major problem here is the uncertainty about the latitude and 
flexibility of the Court's interpretative authority once it begins 
issuing decisions. We should certainly, therefore, be concerned by the 
weeping language of Article 119 of the Statute, which provides that 
``[a]ny dispute concerning the judicial functions of the Court shall be 
settled by the decision of the Court.'' This provision is short and to 
the point, and troubling because of exactly what it says. But another, 
and more fundamental problem stems from the decentralized and 
unaccountable way in which international law, and particularly 
customary international law, evolves. Thus, during the Conference's 
opening statements, Japan's Permanent UN Representative said 
approvingly that:

        ``The war crimes which are considered to have become part of 
        customary international law should also be included, while 
        crimes which cannot be considered as having been crystallized 
        into part of customary international law should be outside the 
        scope of the Court.'' \26\
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    \26\ Statement of Hisashi Owada, Head of Delegation of Japan, June 
15, 1998.

While this statement is sound as far as it goes, it expresses quite 
cogently the way in which customary international law evolves, or 
``crystallizes.'' It is another of those international law phenomena 
that just happens ``out there,'' among academics and NGO activists. 
While the historical understanding of customary international law was 
that it evolved from the practices of nation-states over long years of 
development, today we have theorists who write approvingly of 
``spontaneous customary international law'' that develops among the 
cognoscenti almost overnight. If this is where the Court and the 
Prosecutor begin to move, there is serious danger ahead.
    But even beyond this risk is the larger agenda of many of the ICC 
supporters, of the nearly endless articulation of ``international law'' 
that continues ineluctably and inexorably to reduce the international 
discretion and flexibility of nation states, and the United States in 
particular. We should not be misled, in judging the Statute of Rome, by 
examining simply the substantive crimes contained in the final 
document. We have been put on very clear notice that this list is 
illustrative only, and just the start. We should have no 
misapprehensions that, when some urge the U.S. to sign on to the 
Statue, that we are talking about a defined and limited substantive 
jurisdiction. The NGOs and others ``have only just begun.''
    Some delegates to the Rome Conference fully understood the long-
term agenda, and urged caution lest the Statute as adopted attempt to 
carry too much weight too early. The representative of the 
International Law Commission (``ILC''), which started work on an ICC 
statute six years ago, said unambiguously in his opening comments that:

        ``The revised Draft Statute is making a major effort to 
        consolidate expand and develop substantive international law, 
        relying only to a very limited extent on the droit acquis [the 
        existing law].'' \27\
---------------------------------------------------------------------------
    \27\ Statement of Professor James Crawford, International Law 
Commission, June 15, 1998.

After making this favorable reference, the ILC representative went on 
---------------------------------------------------------------------------
to warn that:

        ``I only hope that the praiseworthy efforts to develop the law, 
        and associated matters such as remedies for victims, do not 
        turn out to stand in the way of the main objective, the very 
        creation of a viable and effective independent Court. Let us 
        not be deflected from that goal, and if necessary let us think 
        about ways in which new developments in substantive law and 
        even new crimes can be brought within the jurisdiction of the 
        Court as time passes and the law progresses Let us not make 
        ``the best'' the enemy of ``the good.'' Let us not make the 
        best--a fully developed international criminal code--the enemy 
        of the good--a permanent international criminal court.'' 
        (emphasis added)

This statement demonstrates clearly why we should take a ``systems 
analysis'' approach to the Statute of Rome and the Court and the 
Prosecutor it creates. We should not judge only by what we see before 
us today, but look forward to what might be added to it over a long 
time horizon. Only if we are willing to travel the entire path should 
we take the first step. Otherwise, we should prevent the consequences 
by denying the assumptions, and not endorse the work of the ICC even 
indirectly.
            2. Problems of Sovereignty
    As troubling as are the substantive and jurisdictional problems 
discussed above, they are, if anything, overshadowed by the problems 
raised by the governance structures and mechanisms that the Statute 
creates in the form of the Court and the Prosecutor. \28\ Many 
advocates of the ICC have commented unfavorably that the United States 
has not been able to join many of its democratic allies in signing on 
to the Statute of Rome, and it is important to explain why that is so.
---------------------------------------------------------------------------
    \28\ The nomenclature is important in this connection. We all make 
the mistake of lapsing into referring to this subject as ``the Court.'' 
Americans tend to believe that the judiciary is, as Professor Alexander 
Bickel once characterized it, ``the least dangerous branch,'' and 
references to ``the Court'' have a benign ring to them. I have tried in 
these prepared remarks to refer to ``the Court and the Prosecutor'' to 
emphasize linguistically what I believe is the less attractive reality 
created by the Statute of Rome.
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    We are not considering here a relatively passive court such as the 
ICJ, which can adjudicate only with the consent of the parties, or when 
the Security Council or the General Assembly asks it for an advisory 
opinion. We are considering, in the guise of the Prosecutor, a powerful 
and legitimate element of executive power, the law-enforcement power. 
Law-enforcement is a necessary element of national governments. To my 
knowledge, never before has the United States been asked to seriously 
consider placing any law-enforcement power outside of the complete 
control of our national government.
    Very briefly stated, the American concept of separation of powers, 
imperfect though it is, reflects the settled belief that liberty is 
best protected when, to the maximum extent possible, the various 
authorities legitimately exercised by government are placed in separate 
branches. So structuring the national government, the Framers believed, 
would prevent the excessive accumulation of power in a limited number 
of hands, thus providing the greatest protection for individual 
liberty.
    Continental European constitutional structures do not, by and 
large, reflect a similar set of beliefs. They do not so thoroughly 
separate judicial from executive powers, just as their parliamentary 
systems do not so thoroughly separate executive from legislative 
powers. That, of course, is entirely their prerogative, and 
substantially explains why they appear to be comfortable with the ICC's 
structure, which so closely melds prosecutorial and judicial functions, 
in the European fashion. They may be able to support such an approach, 
but the United States should not.
    In addition, our Constitution provides that the exercise of 
executive power will be rendered accountable to the general public in 
two ways. First, the law-enforcement power is exercised by a President 
(or by the President's agents) who must be elected. The President is 
constitutionally charged with the responsibility to ``take Care that 
the Laws be faithfully executed,'' \29\ and the Supreme Court has 
characterized the Attorney General as ``the hand of the President'' in 
fulfilling that constitutional function. In short, the authority of the 
actual law enforcers stems constitutionally directly from the only 
elected executive official. Second, Congress, all of whose members are 
popularly elected, both through its statute-making authority and 
through the appropriations process can exercise significant influence 
and oversight.
---------------------------------------------------------------------------
    \29\ U.S. Constitution, Article II, Section 3.
---------------------------------------------------------------------------
    In Continental European parliamentary systems, these sorts of 
political checks are either greatly attenuated or even entirely absent. 
Once again, the Europeans may feel comfortable with such system, but we 
do not and we should not. They obviously also feel comfortable 
extending it to a structure such as the Court and Prosecutor as created 
in Rome. The United States, however, should never consciously accept 
such an approach. The Statute's Prosecutor is accountable to no one. 
Indeed, he or she will answer to no superior executive power, elected 
or unelected. Nor is there any legislature anywhere in sight, elected 
or unelected, in the Statute of Rome. The Prosecutor, and his or her as 
yet uncreated investigatory, arresting and detaining apparatus, is 
answerable only to the Court, and then only partially.
    This structure utterly fails, by long-standing American principles, 
to provide sufficient accountability to warrant vesting the Prosecutor 
with the enormous power of law enforcement that the ICC's supporters 
have obtained. Political accountability is utterly different from 
``politicization,'' which we can all agree should form no part of the 
decisions of either the Prosecutor or the Court. At present, however, 
the ICC has almost no political accountability, and enormous risk of 
politicization. Americans should find this unacceptable.
    Let me stress again that this analysis has but limited relevance to 
the notion that we fear isolated prosecutions of individual American 
military personnel around the world. It has everything to do with the 
fear of unchecked, unaccountable power, as Americans should clearly 
understand. Coincidentally, of course, the United States has, in the 
past two decades, had considerable experience with the concept of 
``independent counsels.'' It is an experience that strongly argues 
against repetition in an international treaty.
            3. The Statute of Rome Purported Protections Are Wholly 
                    Unsatisfactory
    The ICC's supporters nonetheless argue that there are protections 
built into the Statue of Rome that should permit the United States to 
accept it. I now briefly consider several of these provisions.
    First, the advocates argue that the doctrine of ``complementarity'' 
embodied in the Statute helps ensure that the Court's jurisdiction and 
the Prosecutor's zeal will not grow arbitrary or too large, and that 
national justice systems are not truly threatened with displacement. 
``Complementarity,'' like so much else connected with the ICC, is 
simply an assertion, utterly unproven and untested. Since no one has 
any actual experience with the Court, of course, no one can say with 
complete certainty what will happen. This is hardly a sound basis on 
which to make a major change in American foreign policy.
    In fact, ``complementarity,'' if it has any real substance, argues 
against creating the ICC in the first place. If most national judicial 
systems are capable of addressing the substantive crimes the Statute 
proscribes, then that demonstrates why, at most ad hoc judicial 
tribunals are necessary. Indeed, it is precisely the judicial systems 
which the ICC would likely supplant (such as Bosnia, or possibly 
Cambodia) where the international effort should be to encourage the 
parties to the underlying dispute to come to grips with the judicial 
implications finding a comprehensive solution to their disagreements. 
Moreover, it is not at all clear that a Prosecutor might not consider 
something like South Africa's Truth and Reconciliation Commission 
inadequate, or a ruse, and commence investigations on his own motion. 
Removing key elements of the dispute, especially those emotional and 
contentious issues having to do with war crimes and crimes against 
humanity, undercuts the very kind of development that these peoples, 
victims and perpetrators alike, will have to resolve if they are ever 
to live peacefully together.
    Second, although supposedly a protection for the independence of 
the ICC, the provisions about the automatic jurisdiction of the Court 
and the Prosecutor are troubling. They form a clear break from the 
basic doctrine of the ICJ, where ``[j]urisdiction without the consent 
of the parties does not exist.'' \30\ Moreover, because States Party to 
the Statute may refer situations where crimes have been committed to 
the Prosecutor, we can virtually guarantee that some will, from the 
very outset, seek to use the Court for political purposes. The 
inability of non-States Party to block prosecutions of their nationals, 
a key defeat for the United States at Rome, will prevent us from 
thwarting these efforts at their initial stages, and almost guarantee 
controversy and problems for our foreign policy for years to come.
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    \30\ Simma, supra, at p. 987.
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    For example, is there any doubt whatever that Israel will be the 
target of a referral from a State Party concerning conditions and 
practices by the Israeli Defense Forces in the West Bank and Gaza? The 
United States, with near-continuous bipartisan support for many years, 
has attempted to minimize the disruptive role that the United Nations 
has all too often played in the Middle East peace process. As if that 
were not difficult enough, we now face the prospect of the Prosecutor 
and the Court interjecting themselves into extremely delicate matters 
at inappropriate times. Here is an excellent example of where the 
trashing of the Security Council's role in the affairs of the ICC can 
have a tangible and highly detrimental impact on the conduct of our 
foreign policy.
    Third, the supposed ``independence'' of the Prosecutor and the 
Court, as extensively discussed above, is more a source of concern for 
the United States than an element of protection. Indeed, 
``independent'' bodies in the UN system (such as the UN Human Rights 
Commission) have often demonstrated themselves to be more highly 
policitized than some of the explicitly political organs. Political 
accountability, by contrast, which is almost totally absent from the 
ICC scheme for the Court and the Prosecutor, would have been a real 
protection. Instead, we may now face the prospect, as might be 
predicted by the ``public choice'' analysis of Gordon Tullock and James 
Buchanan, that the ICC will be ``captured'' not by governments but by 
NGOs and others with narrow special interests, and the time to pursue 
them.

    VII. Conclusion: We Should Isolate and Ignore the Court and the 
                               Prosecutor

    Confronted as we are with the fact of the ICC, the United States 
must now decide what its prospective policy toward it should be. 
Undoubtedly, there will be those arguing that we should accept the fait 
accompli, and begin to work with the Court and the Prosecutor. They 
will argue that, on a case-by-case basis, it may actually serve 
American interests, and that we should work for its long-term 
improvement. They will even argue that we should provide voluntary 
financial support and the secondment of investigators and prosecutors. 
The Administration may even make these arguments today.
    Whenever they are made, they should be emphatically rejected.
    Whether the ICC survives and flourishes or not depends in large 
measure on the attitude of the United States. We should not allow this 
sentimentality masquerading as policy to achieve indirectly what we 
have successfully blocked frontally. Specifically:
   We should not support any effort to consolidate the work of 
        the existing tribunals for Yugoslavia and Rwanda into the ICC. 
        If the ICC becomes operational before these tribunals have 
        concluded their work, they should be allowed to finish under 
        Security Council supervision.

   We should reject any effort to have UN members who are not 
        States Party to the Statute of Rome pay for any portion of the 
        ICC's expenses. \31\
---------------------------------------------------------------------------
    \31\ Indeed, the funding question provides a separate reason not to 
refer the ongoing Yugoslav and Rwanda matters to the ICC, for the 
reasons explained in footnote 12.
---------------------------------------------------------------------------
   We should veto any effort in the Security Council to 
        participate in the ICC's work. If the role originally proposed 
        for the Council was unacceptable to the ICC's founders, then 
        they can work with some other UN body or regional 
        organizations.
   We should oppose the cooperation of other organizations to 
        which the United States belong, such as NATO, from cooperating 
        with the ICC. This would simply be doing indirectly what we 
        have already declined to do directly by not signing the Statute 
        of Rome. \32\
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    \32\ Moreover, the Senate has already spoken to the issue of 
participation in the ICC's work, at least in part, in its existing 
reservations to the Genocide Convention, as discussed above.

These steps may seem difficult to take, but it is critical that our 
attention not be diverted from the objective of ensuring that the 
potential problems posed by the ICC do not in the future become real 
problems. Keeping our distance will confine the ICC to a limited 
domain, and hopefully avoid some of the risks described in the 
---------------------------------------------------------------------------
foregoing testimony.

                               __________

                   Prepared Statement of Lee A. Casey

                            I. Introduction

    There are serious constitutional and policy objections to American 
participation in the International Criminal Court (``ICC'') Treaty. The 
fundamental constitutional objection is that, under the ICC Treaty, 
American nationals would be subject to prosecution and trial in an 
international court for offenses otherwise within the judicial power of 
the United States, and, at the same time, Americans brought before this 
court would not enjoy the basic guarantees of the Bill of Rights, 
including the right to trial by jury. As a matter of policy, U.S. 
participation would empower an international institution that is not 
accountable to the American electorate to investigate and judge the 
actions taken by our military and civilian officials. In this, such 
participation would represent an unprecedented cession of our right to 
self-government.

                II. Constitutional Objections to the ICC

A. The Federal Judicial Power Cannot be Subordinated to an Extra-
        Constitutional Institution Allowing that Institution to 
        Prosecute American Nationals
    If the United States joined the ICC Treaty regime, this court would 
have the legal right to investigate and prosecute Americans for alleged 
crimes falling into four categories of offenses: (1) genocide; (2) 
crimes against humanity; (3) war crimes; and (4) aggression. \1\ The 
ICC would have jurisdiction over these offenses whether they were 
committed in the United States or abroad. Each of these offenses -- to 
the extent they exist at all as defined in the ICC Statute -- is 
currently within the legislative and judicial authority of the United 
States. See U.S. Const. Art. I, Sec. 8, cl. 9; Art. III, Sec. 2. q. 
Kadic v. Karcuizic, 70 F.3d 232 (2d Cir. 1995), cert. denied, 518 U.S. 
1005 (1996) (civil suit alleging various violations of international 
humanitarian norms may be brought in court of the United States, so 
long as defendant is properly served within the Court's jurisdiction).
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    \1\ Under the ICC Statute as agreed in Rome, the ``crime'' of 
aggression would be included within the ICC's jurisdiction. However, 
the delegates in Rome could not agree on any definition of this crime. 
Consequently, the Court will not be able to prosecute such crimes until 
the States Parties to the treaty agree on a definition. ICC Statue, 
Art. 5(2).
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    Under the Constitution, however, only the States and the Federal 
Government have the authority to prosecute and try individuals for 
offenses committed in the United States, and they may do so only in 
accordance with the guarantees contained in the Bill of Rights. In 
particular, the judicial power of the United States is vested in the 
Supreme Court, and in lower federal courts as may be established by 
Congress. U.S. Const., Art. III, Sec. 1. This power cannot be exercised 
by any body or institution that is not a court of the United States. 
This was made clear by the Supreme Court in the landmark case of Ex 
parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
    In that case, the Court reversed a civilian's conviction in a 
military tribunal, which did not provide the guarantees of the Bill of 
Rights, holding that ``[e)very trial involves the exercise of judicial 
power,'' and that the military court in question could exercise ``no 
part of the judicial power of the country. That power was vested by the 
Constitution `in one Supreme Court and such inferior courts as the 
Congress may from time to time ordain and establish,' '' pursuant to 
Article III of the Constitution. Id. at 119-121.
    This reasoning is equally and emphatically applicable to the ICC. 
The ICC would not, and could not, exercise the judicial power of the 
United States -- without which it could not prosecute or try Americans 
for criminal offenses allegedly committed in the United States -- as 
its statute would empower it to do.
    This constitutional objection to U.S. participation in the ICC 
Treaty can best be illustrated through the use of a hypothetical, shorn 
of the emotional overlay inherent in a ``war crimes'' court: The Bill 
of Rights undoubtedly impedes efficient enforcement of the drug laws. 
Could the Federal Government enter a treaty with Mexico, Canada, and 
the Bahamas, establishing an offshore ``Special Drug Control Court,'' 
which would prosecute and try drug offenses committed in any of these 
countries, and which would provide only minimal due process, not 
incorporating all of the Constitution's guarantees? Fortunately, the 
Supreme Court has never faced this case. If such a case arose, however, 
the application of In re Milligan's rule and reasoning would require 
the invalidation of the treaty as a matter of United States domestic 
law. \2\
---------------------------------------------------------------------------
    \2\ The fact that a treaty is involved does not change this 
analysis or conclusion. As the Supreme Court wrote more than a century 
ago: ``The treaty power, as expressed in the Constitution, is in terms 
unlimited except by those restraints which are found in that instrument 
against the action of the government or of its departments.  . . . It 
would not be contended that it extends so far as to authorize what the 
Constitution forbids.'' De Geofroy v. Riggs, (1890).
    In addition, the fact that international law is involved, which 
generally is considered also to be a part of U.S. law, also would not 
change this result. Specifically with respect to the ``laws of war,'' 
the Supreme Court has stated that: ``[w]e do not make the laws of war 
but we respect them so far as they do not conflict with the commands of 
Congress or the Constitution.'' In re Yamashita (1946) (emphasis 
added).
    Missouri v. Holland, 252 U.S. 416 (1920) is not to the contrary. In 
that case, the Supreme Court upheld a treaty with Britain regulating 
migratory birds, against a constitutional attack claiming that the 
treaty infringed the sovereign rights of the States under the 10th 
Amendment. Justice Holmes reasoned that the power to enter such a 
treaty, even if not specifically provided for among Congress' 
enumerated powers in the Constitution, could be inferred from the 
residual authority of the United States under the treaty-making power. 
He acknowledged, however, that there were some things the Federal 
Government could not do in a treaty, because such action might violate 
some other provision of the Constitution, noting that ``[t]he treaty in 
question does not contravene any prohibitory words to be found in the 
Constitution. The only question is whether it is forbidden by some 
invisible radiation from the general terms of the Tenth Amendment.'' 
Id. at 433-34. The guarantees provided to criminal defendants in the 
Bill of Rights are far more precise, and in mandatory language. A point 
made clear in Mr. Justice Black's plurality decision in Reid v. Covert, 
354 U.S. 1 (1957), a case where the Supreme Court ruled that an 
American civilian could not be subjected to trial in a military court 
overseas, even though an international agreement between Britain and 
the United States appeared to allow such a trial. On that occasion, 
Black wrote that ``[a]t the beginning we reject the idea that when the 
United States acts against its citizens overseas, it can do so free of 
the Bill of Rights.'' Id. at 5-6.
---------------------------------------------------------------------------
    Of course, this hypothetical presents precisely the case raised by 
the ICC Treaty. The Bill of Rights cannot be avoided by the simple 
expedient of allowing the prosecution of Americans in an extra-
constitutional court. As Justice Black stated in Reid V. Covert, 354 
U.S. at 5-6, ``[t]he United States is entirely a creature of the 
Constitution. Its power and authority have no other source. It can only 
act in accordance with all the limitation imposed by the 
Constitution.''
B. If the United States Were to Join the ICC Treaty Regime. ICC 
        Prosecutions of Americans for Crimes Allegedly Committed 
        Overseas Also Would be Unconstitutional
    If the United States were to accede to the ICC Treaty, ICC 
prosecutions of Americans for offenses committed overseas also would be 
unconstitutional. If the United States became a ``State Party'' to the 
ICC Treaty, its involvement with the Court would be sufficient to 
trigger the requirements of the Bill of Rights -- guarantees that the 
ICC simply does not provide. This analysis and result was suggested by 
the Supreme Court in a case decided only last month.
    In United States v. Balsys, 1998 U.S. LEMS 4210 (S.Ct. 1998), a 
case involving the investigation of an individual accused of war crimes 
in Lithuania during World War II, the Supreme Court ruled that the 
Fifth Amendment right against self-incrimination did not apply to a 
Justice Department interrogation of Balsys, because he would be 
prosecuted, if at all, in a foreign court. However, the Court offered a 
hypothetical in which a different result might obtain:

        If the United States and its allies had enacted substantially 
        similar criminal codes aimed at prosecuting offenses of 
        international character, and if it could be shown that the 
        United States was granting immunity from domestic prosecution 
        for the purpose of obtaining evidence to be delivered to other 
        nations as prosecutors of a crime common to both countries, 
        then an argument could be made that the Fifth Amendment should 
        apply based on fear of foreign prosecution simply because that 
        prosecution was not fairly characterized as distinctly 
        ``foreign.'' The point would be that the prosecution was as 
        much on behalf of the United States as of the prosecuting 
        nation.  . . .

1998 U.S. LEXIS 4210 at *57-58.
    This would, of course, be exactly the case with the ICC. If the 
United States became a ``State Party'' to the ICC Treaty, it would be a 
full participant in establishing the Court, in selecting its judges, in 
financing its operation, and sitting on its Assembly of States Parties. 
Consequently, any prosecutions undertaken by the Court -- whether 
involving the actions of Americans in the United States or overseas -- 
would be ``as much on behalf of the United States as of'' any other 
State party. Since the guarantees of the Bill of Rights would not be 
available in the ICC, the United States could not participate in, or 
facilitate, any such court.
    This may appear to be a paradoxical result to some. However, it 
always must be remembered that the United States Government is bound by 
a Constitution that denies it many of the powers, vis-a-vis its own 
nationals, that are enjoyed by other states with respect to theirs. 
There simply are some things that our government cannot do because the 
Constitution forbids it.
C. The ICC Would Not Provide Guarantees to Americans Comparable to 
        Those Mandated by the Bill of Rights
    ICC supporters often claim that this court would provide rights to 
the accused equivalent to the guarantees found in the Bill of Rights, 
and that the constitutional objection to arraigning Americans in the 
ICC would thereby be eliminated. This is incorrect. The ICC would not 
provide defendants with rights comparable to those guaranteed in the 
Bill of Rights -- far from it.
    First and foremost, the right to trial by a jury in the State and 
district where the crime occurred would not be preserved in the ICC. 
This, however, is one of the most critical rights enjoyed by Americans, 
and its importance in our system of government cannot be overstated. 
The right to trial by jury is not merely a means of determining facts 
in a judicial proceeding, but is a fundamental check on the use and 
abuse of power vis-a-vis the individual. As Justice Joseph Story 
explained: ``The great object of a trial by jury in criminal cases is 
to guard against a spirit of oppression and tyranny on the part of 
rulers, and against a spirit of violence and vindictiveness on the part 
of the people.'' Joseph Story, Commentaries on the Constitution of the 
United States 656-58 (1833) (Carolina Academic Press ed. 1987). It is 
``part of that admirable common law, which had fenced round, and 
interposed barriers on every side against the approaches of arbitrary 
power.'' Id.
    This right was, in fact, considered to be so important by the 
Founding Generation that it was guaranteed not once but twice in the 
Constitution. Under Article III, the Constitution requires that ``[t]he 
trial of all Crimes . . . shall be by Jury; and such Trial shall be 
held in the State where the said Crimes shall have been committed.'' 
U.S. Art. III, Sec. 2. This unequivocal guarantee was repeated in the 
Bill of Rights, where the Sixth Amendment requires that ``[i]n all 
criminal prosecutions, the accused shall enjoy the right to a speedy 
and public trial, by an impartial jury of the State and district 
wherein the crime shall have been committed.'' U.S. Const. Amend. VI.
    As noted above, the requirement that all criminal trials be by 
jury, and that all trials take place in the State and district where 
the crime occurred, was not added to the Constitution by accident. 
Rather, the Framer's included this key requirement in the Constitution 
as a reaction to their own recent history. In the years before the 
Revolution, Americans faced the real possibility of transportation 
overseas for trial. The British Government had claimed the right to 
prosecute Americans in British courts overseas, and instituted a 
practice of arraigning Americans before ``vice-admiralty'' courts for 
criminal violations of the navigation and trade laws. These courts were 
not English Common Law courts. Like the ICC, they followed the Civil 
Law, ``inquisitorial,'' system, where guilt or innocence was determined 
by judges alone and rights of confrontation and counsel were highly 
restricted. See generally Thomas C. Barrow, Trade and Empire: The 
British Customs Service in Colonial America 1660-1775 256 (1967); Don 
Cook, The Long Fuse: How England Lost the American Colonies 1760-1785 
59 (1995). In addition, Parliament also had decreed that Americans 
could be transported to England on treason charges -- a claim that 
prompted immediate denials from colonial legislatures. See United 
States v. Cabrales, 118 S.Ct. 1772, 1774 & n.1 (1998).
    Consequently, when the Founders of our Republic declared its 
independence, and they catalogued in the Declaration of Independence 
the outrages that they believed justified revolution and war, they 
noted three of particular interest. They accused King George and his 
Parliament of:

   ``subjecting us to a jurisdiction foreign to our 
        constitution and unacknowledged by our laws'';
   ``depriving us, in many Cases, of the Benefits of Trial by 
        Jury''; and of
   ``transporting us beyond the Seas to be tried for pretended 
        Offences.''
See Declaration of Independence (July 4, 1776).

    At the time the Constitution was adopted, the Framers sought to 
preserve the right to trial by jury, and to eliminate the danger that 
Americans might be tried far from their homes, by requiring that trials 
be conducted in the state and district where the crime was committed. 
As Justice Story explained,

        The object of this clause is to secure the party accused from 
        being dragged to a trial in some distant state, away from his 
        friends, and witnesses, and neighborhood; and thus subjected to 
        the verdict of mere strangers, who may feel no common sympathy, 
        or who may even cherish animosities, or prejudices against him.
Story, Commentaries on the Constitution, supra at 658.

    Of course, if the United States were to join the ICC Treaty, 
Americans again would face transportation beyond the seas for judgment, 
without the benefits of trial by jury, in a court that would not 
guarantee the other rights we all take so much for granted -- and where 
the judges may well ``cherish animosities, or prejudices against'' 
them.
    Trial by jury is not, of course, the only right guaranteed to 
Americans that would not be respected in the ICC. For example, 
Americans brought before this court would only notionally enjoy rights 
to a speedy trial and to confront and cross-examine witnesses. The ICC 
would not guarantee these rights in any form recognizable or acceptable 
in the United States. For instance, our right of confrontation includes 
the right to know the identity of hostile witnesses, and to exclude 
``hearsay'' evidence that does not fall within a recognized exception 
to the general rule. On the international level, however, this is not 
the case. In the International Criminal Tribunal for the Former 
Yugoslavia at the Hague, a court widely viewed as a model for the 
proposed ICC, both anonymous witnesses and extensive hearsay evidence 
have been allowed at criminal trials. See Michael P. Scharf, Balkan 
Justice 7, 67, 108-09 (1997). \3\
---------------------------------------------------------------------------
    \3\ In the 1996 trial of Dusko Tadic before the ICTY, hearsay 
evidence was permitted, and several witnesses were allowed to give 
evidence on an anonymous basis. Id. at 108-09.
---------------------------------------------------------------------------
     By the same token, the ICC would not preserve the right to a 
speedy trial. In the United States, a defendant has a right to be 
brought to trial within 70 days. There would be no such limit in the 
ICC. Again, international practice here falls far short of American 
requirements. For example, the Yugoslav Tribunal Prosecutor actually 
has argued that up to five years would not be too long to wait in 
prison for a trial. See Prosecutor v. Aleksovski (Prosecution Response 
to the Defence Motion for Provisional Release para. 3.2.5.) (ICTY Case 
No. IT-95-1411-PT) (14 Jan. 1998). More disturbing still, there is 
caselaw in the European Court of Human Rights arguably supporting such 
a rule. W. v. Switzerland, Series A, No. 254 (1993) (4 years of 
pretrial detention accepted); Neumeister v. Austria, Series A, No. 8 
(1968) (three year pre-trial detention acceptable, and up to seven 
years not too long to try a criminal case). Such rules mock the 
presumption of innocence.
D. Cases Where the Supreme Court Has Allowed the Extradition of 
        Americans for Trial Abroad Do Not Suggest that the ICC Would Be 
        Constitutional.
    ICC defenders who claim that the Constitution would not prohibit 
U.S. participation point to extradition cases, where the Supreme Court 
has ruled that the Bill of Rights does not prohibit the surrender of 
American citizens for trial in foreign tribunals. See, e.g., Neely v. 
Henkel, 180 U.S. 109 (1901). These cases, however, involve instances 
where Americans have committed crimes abroad, or where their actions in 
the United States are intended to achieve a criminal effect in another 
country. \4\ As the Neely Court reasoned:

    \4\ See United States v. Melia, 667 F.2d 300 (2d Cir. 1981) 
(individual whose actions took place in the United States subject to 
extradition where acts were intended to produce criminal effect in 
another country.)
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        When an American citizen commits a crime in a foreign country 
        he cannot complain if required to submit to such modes of trial 
        and to such punishment as the laws of that country may 
        prescribe for its own people, unless a different mode be 
        provided for by treaty stipulations between that country and 
        the United States.
Id. at 123.
    However, the ICC Treaty would be much more than an extraordinary 
extradition treaty. It would subject the territory and citizens of the 
United States to the jurisdiction of the ICC, would subordinate the 
United States' judicial authority to the ICC in cases within its 
jurisdiction, and would require the United States to surrender its 
citizens for trial and punishment. In particular, the ICC would have 
jurisdiction over crimes committed by Americans against other Americans 
in the United States, without any affects abroad. Although it may seem 
unlikely that crimes within the ICC's jurisdiction, ``war crimes,'' 
``crimes against humanity,'' ``genocide,'' could take place in the 
United States, as a matter of law, such crimes can take place anywhere. 
The ICC Treaty's constitutionality must be assessed based upon the 
nature and scope of the power it vests in that court, not upon the 
likelihood that this power will be used in any particular manner.
    It should be noted, however, that the likelihood of such 
prosecutions will depend entirely upon the ICC's own interpretation of 
its jurisdiction. Like other courts, international tribunals claim the 
right to determine whether or not a particular matter falls within 
their authority -- the principle of competence de la competence, the 
right of courts to rule on their own jurisdiction. See Prosecutor v. 
Tadic (Decision on the Defence Motion for Interlocutory Appeal on 
Jurisdiction) para.para. 18-22 (ICTY Appeals Chamber) (2 Oct.1995). 
This principle is, in fact, found in Article 19 of the ICC's Statute, 
which provides that ``[t]he court shall satisfy itself that it has 
jurisdiction in any case brought before it.''
    The potential for mischief here is obvious. It should be remembered 
that the ICC Statute contains very broad definitions of such offenses 
as ``crimes against humanity'' and ``genocide,'' and that these 
offenses could well be interpreted to cover certain uses of force by 
the U.S. government against its citizens, or to reach what we call 
``hate'' crimes. If a prosecutor hostile to the United States, or 
merely interested in making the ICC's prosecutions appear ``balanced,'' 
determined to investigate U.S. officials, the United States would be 
unable to prevent this investigation -- and any resulting prosecutions 
-- if it were a State Party to the ICC Treaty.
    Moreover, the most likely theory under which the ICC would 
prosecute American officials on account of military actions overseas 
would be ``superior authority'' or ``command responsibility.'' Under 
this theory of liability, no specifically intended effect by the 
defendant beyond the territory United States might be required. It 
arguably is sufficient that alleged violations of the laws of war were 
committed by U.S. forces overseas, and that the individual was in a 
position of authority over those troops. Cf In re Yamashita 327 U.S. 1 
(1946).
E. The Principle of ``Complementarity'' Would Not Prevent the Trial of 
        Americans by the ICC
    ICC supporters often claim that the principle of 
``Complementarity'' would protect Americans from prosecution and trial 
by the ICC, and so also would resolve the constitutional impediments to 
U.S. accession to the ICC Treaty. This too is incorrect, and the 
Clinton Administration wisely did not accept this illusory guarantee in 
Rome.
    Under Article I of the ICC's Statute, the Court's jurisdiction is 
stated to be ``complementary to national criminal jurisdictions,'' 
meaning that only if national jurisdictions are unwilling or unable to 
bring an accused individual to justice will the ICC act. Under Article 
17 of the Statute, the ICC is empowered to make determinations of 
whether a State is unwilling or unable to carry out an investigation 
and prosecution. In particular, ``[i]n order to determine unwillingness 
in a particular case,'' the Court will consider whether the national 
proceedings ``were not or are not being conducted independently or 
impartially and they were or are being conducted in a manner which, in 
the circumstances, is inconsistent with an intent to bring the person 
concerned to justice.'' See ICC Statute Art. 17.
    This provision is an open invitation for the Court to examine each 
decision by the United States not to pursue some alleged offense by its 
military or civilian officials. Under the American constitutional 
system, decisions on whether to prosecute both military and civilian 
personnel are a matter for the Executive Branch. See Morrison v. Olsen, 
487 U.S. 654, 691 (1988) (``There is no real dispute that the 
[investigative and prosecutorial] functions performed by the 
independent counsel are `executive' in the sense that they are law 
enforcement functions that typically have been undertaken by officials 
within the Executive Branch.''). Since the individuals, military and 
civilian, most likely to be accused of offenses within the ICC's 
authority also are Executive Branch personnel, directly accountable to 
the President as Chief Executive and Commander-in-Chief of the Armed 
Forces, it might be said that the decision not to pursue a case in the 
United States can never be ``independent'' or ``impartial.'' Upon this 
pretext, the ICC would be in a position to examine each and every use 
of American military power to determine whether, in its view, offenses 
within its authority have been committed. Thus, the principle of 
``complementarity'' would be no bar to the arraignment of Americans 
before the ICC, if the United States were to join the ICC Treaty 
regime.

 III. Policy Objections to U.S. Participation in the ICC Treaty Regime

    In addition to the very serious constitutional impediments to U.S. 
participation in the ICC Treaty regime, there are important policy 
considerations that militate against such participation.
A. Surrender of American Sovereignty
    The erection of an international authority with substantive power 
over individual Americans in general, and American military and 
civilian officials in particular, represents a profound surrender of 
American sovereignty -- the right of self-government. Today, the 
elected officials of the United States are responsible for their 
actions to the laws of the United States and to the electorate. If the 
United States were to ratify the ICC Treaty, these individuals could 
then be held accountable for their actions to the ICC in a very real 
and immediate way -- through criminal prosecution and punishment. As 
Alexis de Tocqueville wrote in the last century, ``[h]e who punishes 
the criminal is  . . . The real master of society.'' See 1 Alexis de 
Tocqueville, Democracy in America 282-83 (Reeve trans. 1948 ed.), 
quoted in Reid v. Covert, 354 U.S. at 10 n.13.
    At the same time, the ICC would not be accountable to the people of 
the United States for its own actions. For example, no action taken by 
the American people, or their elected representatives, could alter in 
any way a decision of the ICC. This is extraordinary power. Even when 
the Supreme Court has resolved a constitutional question, the American 
people, through their representatives in the Congress and the States, 
are free to amend to Constitution in order to reverse the Court's 
determination. By contrast, there would be no appeal from decisions of 
the ICC. This lack of accountability is fundamentally at odds with the 
principle of popular sovereignty and self-government upon which the 
American Republic is founded.
B. National Security Concerns With the ICC
    Ratification of the ICC Treaty also would pose a direct threat to 
American national security interests. As explained above, although the 
ICC would, in principle, be limited in its jurisdiction, the 
application of that jurisdiction would be entirely within the Court's 
discretion. Violations of international humanitarian norms are very 
often in the eye of the beholder. Saddam Hussein, for example, would 
agree that war crimes were committed during the 1991 Persian Gulf War. 
In his view, however, the United States and its coalition allies were 
the perpetrators of these offenses, not himself.
    Moreover, the offenses over which the proposed ICC would have 
jurisdiction are broadly defined. For example, under the ICC Statute 
``War Crimes'' include ``[i]ntentionally launching an attack in the 
knowledge that such attack will cause incidental loss of life or injury 
to civilians or damage to civilian objects or widespread, long-term and 
severe damage to the natural environment which would be clearly 
excessive in relation to the concrete and direct overall military 
advantage anticipated.'' This standard is emphatically subjective, as 
it calls for a consideration of whether a particular military action 
was justified when balanced with the damage it may have caused. The 
application of this standard would put the ICC prosecutor and judges in 
the position of reviewing and judging any American military action 
which may result in civilian casualties, and determining for themselves 
whether it was justified. In the process, the ICC could demand the 
surrender of American officials for trial, to determine if -- in its 
unreviewable opinion -- this standard was met.
    The danger that the ICC might be used as a political tool against 
the United States is neither fanciful nor alarmist. The United States 
has interests and responsibilities around the world and the possibility 
that a prosecutor and bench staffed by individuals hostile to the 
United States or its interests is quite real. The Cold War is over, but 
the United States still has enemies and competitors. Indeed, as the 
World's only superpower, it is viewed with suspicion by many states, 
and with outright hostility by more than a few. All would have an equal 
vote in selecting the ICC's personnel if they choose to ratify the 
treaty.
    Moreover, any assumption that the ICC would not be subject to 
politics may charitably be described as naive. The proof of the 
pudding, they say, is in the eating. The United Nations has been a 
political institution since its founding. Throughout the Cold War, the 
United Nations General Assembly ran a cottage industry of anti-
Americanism. For example, as Allan Gerson, an aide to United States 
Ambassador to the United Nations Jeanne Kirkpatrick, wrote: ``What 
seemed beyond doubt in the winter and spring of 1981 was that the 
United Nations was at war with the United States, that the United 
States was not faring well, and that it was no accident that its 
fortunes around the world were at an equally low ebb.'' Allan Gerson, 
The Kirkpatrick Mission: Diplomacy Without Apology, America at the 
United Nations 1981-1985 xii (Free Press 1991). \5\
---------------------------------------------------------------------------
    \5\ The U.S. was not, of course, the only target. Its allies came 
in for their share of this treatment. This was particularly true of 
Israel. As the Israeli Foreign Ministry has explained ``the UN was used 
for years as a battleground for political warfare against Israel. The 
21 Arab states, with the aid of Islamic countries, the non-aligned camp 
and the former Communist bloc, constituted an `automatic majority,' 
assuring the adoption of anti-Israel resolutions in the General 
Assembly.'' (Israel Ministry of Foreign Affairs, Israel Among the 
Nations: United Nations, www.israel-mfa.gov.il/facts/nations/
fnation9.html).
---------------------------------------------------------------------------
    Of course, some of this can be attributed to the Cold War and the 
``bloc voting'' it caused at the UN. However, it shows in stark terms 
the potential of international institutions to become the political 
tools of our opponents. Moreover, the United Nations has provided 
additional recent proof of its general attitude towards the United 
States. Since October, 1997, a number of United Nations ``rapporteurs'' 
have travelled throughout the United States to investigate ``human 
rights abuses.'' In particular, these individuals have investigated the 
use of capital punishment, religious intolerance, and women in the 
prison system in the United States. See ``Human Rights Probes Irk 
U.S.,'' Wash. Times, June 29, 1998, p. 1. There would, however, be one 
dramatic difference between the United Nations and the ICC -- the ICC 
would have real and direct power to judge, and to punish, American 
officials and citizens who may displease its prosecutors and judges. 
There would be no appeal from the Court's decisions to any other 
authority.
    ICC defenders suggest that fears of an overreaching court are ill-
founded. One of the ICC's strongest advocates, former Canadian Justice 
and current Yugoslav Tribunal Prosecutor Louise Arbour, has argued that 
``there is more to fear from an impotent than from an overreaching 
Prosecutor . . . an institution should not be constructed on the 
assumption that it will be run by incompetent people, acting in bad 
faith from improper purposes.'' See Statement by Justice Louise Arbour 
to the Preparatory Committee on the Establishment of an International 
Criminal Court (Dec. 8, 1997).
    This, of course, is fundamentally at odds with the most basic 
tenets of American government. Indeed, if there is one particular 
American contribution to the art of statecraft, it is the principle -- 
incorporated into the very fabric of our Constitution -- that the 
security of our rights cannot be trusted to the integrity of our 
leaders. By its nature, power is capable of abuse and people are, by 
nature, flawed. As Madison wrote in the Federalist in support of strong 
separation of powers:

        It may be a reflection on human nature, that such devices 
        should be necessary to control the abuses of government. But 
        what is government itself, but the greatest of all reflections 
        on human nature? If men were angels, no government would be 
        necessary.  . . . In framing a government which is to be 
        administered by men over men, the great difficulty lies in 
        this: you must first enable the government to control the 
        governed; and in the next place oblige it to control itself.
The Federalist No. 51 (James Madison) 347, 349 (J.E. Cooke ed. 1961).

    The ICC would not be obliged to control itself. In fact, the ICC 
would invite the exercise of arbitrary power by its very design. As an 
institution, it would act as policeman, prosecutor, judge, jury, and 
(potentially) jailor -- all of these functions would be performed by 
its personnel, with only bureaucratic divisions of authority. As noted 
above, there would be no appeal from its judgments to any other 
authority. If the ICC abused its power, the individual defendant would 
have no legal recourse.
    From first to last, the ICC would be judge in its own case. At the 
same time, the ICC would exercise the most fundamental power of 
government -- the administration of criminal justice. The rights of 
individuals before it would depend entirely upon its will -- good or 
bad. The Administration was correct to refuse to sign the ICC Treaty.

   IV. Automatic Application of the ICC Treaty to the United States, 
                 Without its Consent, Would be Illegal

    The ICC Treaty, as agreed at the recently concluded Rome 
Conference, would allow the ICC to exercise its jurisdiction over 
Americans even though the United States has failed to sign and ratify 
the ICC Treaty. This assertion of power is unprecedented and entirely 
unsupported in international law.
    The ICC is to be established by treaty, and one of the most basic 
principles of the law of treaties is that States cannot be bound to a 
treaty without their consent. See Vienna Convention on the Law of 
Treaties, Art. 34, reprinted in Louis Henkin, et al., Basic Documents 
Supplement to International Law: Cases and Materials 94 (3d ed. 1993) 
(``A treaty does not create either obligations or rights for a third 
State without its consent.''); Restatement (Third) of The Foreign 
Relations Law of the United States Sec. 324 (1987) (same). 
Consequently, that court cannot exercise its jurisdiction over American 
nationals without the express consent of the United States. This 
consent has been refused.
    Any claim by the ICC, or the States Parties to the ICC Treaty, that 
the Court is entitled to exercise its power over American nationals, 
whether military or civilian, would also be fundamentally inconsistent 
with the United Nations Charter. The United Nations Charter guarantees 
the sovereign equality of states. See U.N. Charter, Art. 2, Cl. 1., 
(``The Organization is based on the principle of the sovereign equality 
of all its Members.''), reprinted in Ian Brownlie, Basic Documents in 
International Law 1, 3 (4th ed. 1995). This sovereign equality 
includes, among other things, the fundamental principles that ``(a) 
States are juridically equal; (b) Each State enjoys the rights inherent 
in full sovereignty; (c) Each State has the duty to respect the 
personality of other States.'' See U.N. General Assembly's Declaration 
on Principles of International Law Concerning Friendly Relations and 
Cooperation Among States in Accordance with the Charter of the United 
Nations, reprinted in Brownlie, supra, at 36, 44.
    By asserting the jurisdiction of the ICC, an institution that is 
entirely a creature of the ICC Treaty and has no foundation in 
customary international law, the ICC Treaty States Parties have 
violated these principles. In particular, they have attempted to act as 
an international legislature, imposing legal obligations and perils on 
the citizens of the United States without the consent of their 
government. This action is illegal. Consequently, any attempt by the 
ICC to exercise its jurisdiction over the citizens or nationals of the 
United States would constitute a grave violation of international law. 
The United States can, and should, take all necessary actions to ensure 
that American citizens are not seized and brought before this tribunal 
for alleged offenses purportedly within its jurisdiction.V. Conclusion
    United States participation in the ICC Treaty Regime would be 
unconstitutional. It would subject Americans to prosecution and trial 
in an extra-constitutional court, under the auspices of the United 
States as a State Party to the ICC Treaty, for criminal offenses 
otherwise within the judicial authority of the United States. Moreover, 
Americans brought before the ICC would not be accorded the guarantees 
of the Bill of Rights, especially the right to trial by jury in the 
State and district where the crime took place.
    In addition, United States accession to the ICC Treaty would 
constitute an unprecedented surrender of American sovereignty -- the 
right of the people of the United States to self-government. It would 
subject the elected and appointed officials of the United States, both 
civilian and military, to the review and judgment of an international 
institution in no way accountable for its actions to the American 
people.
    The Administration was right to refuse to sign this flawed treaty. 
The United States would now be entirely within its rights under the 
recognized principles of international law to oppose, and to frustrate, 
any attempt by the ICC, or States Parties to the ICC Treaty, to reach 
American nationals.

                               __________

                Prepared Statement of Michael P. Scharf

    Good morning, Mr. Chairman and distinguished Senators. I am Michael 
P. Scharf. I am currently Professor of Law and Director of the Center 
for International Law and Policy at the New England School of Law. From 
1989-1993, I served as the Attorney-Adviser in the Office of the Legal 
Adviser of the U.S. Department of State with responsibility for the 
issue of a permanent international criminal court. I am the author of 
four books about international criminal tribunals, including the 
Pulitzer Prize nominated Balkan Justice. A fuller biography is 
attached.
    Going into the Rome Diplomatic Conference, both the U.S. Congress 
and the Administration in principle recognized the need for a permanent 
international criminal court. Any discussion of what happened in Rome 
must begin by recalling the case for such an institution.
    In his book, Death by Government, Professor Rudi Rummel, who was 
nominated for the Nobel Peace Prize, documented that 170 million 
civilians have been victims of war crimes, crimes against humanity, and 
genocide during the 20th Century. We have lived in a golden age of 
impunity, where a person stands a much better chance of being tried for 
taking a single life than for killing ten thousand or a million. Adolf 
Hitler demonstrated the price we pay for failing to bring such persons 
to justice. In a speech to his commanding generals on the eve of his 
campaign into Poland in 1939, Hitler dismissed concerns about 
accountability for war crimes and acts of genocide by stating, ``Who 
after all is today speaking about the destruction of the Armenians.'' 
He was referring to the fact that the Turkish leaders were granted 
amnesty in the Treaty of Lausanne for the genocidal murder of one 
million Armenians during the First World War. After the Second World 
War, the international community established the Nuremberg Tribunal to 
prosecute the major Nazi war criminals and said ``Never Again.!''--
meaning that it would never again sit idly by while crimes against 
humanity were committed. Shortly thereafter, the U.N. began work on the 
project to establish a permanent Nuremberg Tribunal.
    But because of the cold war, the pledge of ``never again'' quickly 
became the reality of ``again and again'' as the world community failed 
to take action to bring those responsible to justice when 2 million 
people were butchered in Cambodia's killing fields, 30,000 disappeared 
in Argentina's Dirty War, 200,000 were massacred in East Timor, 750,000 
were exterminated in Uganda, 100,000 Kurds were gassed in Iraq, and 
75,000 peasants were slaughtered by death squads in El Salvador. Just 
as Adolf Hitler pointed to the world's failure to prosecute the Turkish 
leaders, Radovan Karadzic and Ratko Mladic were encouraged by the 
world's failure to bring Pol Pot, Idi Amin, and Saddam Hussein to 
justice for their international crimes.
    Then, in the summer of 1992, genocide returned to Europe just when 
the U.N. Security Council was freed of its cold war paralysis. Against 
great odds, a modern day Nuremberg Tribunal was established in The 
Hague to prosecute those responsible for atrocities in the Former 
Yugoslavia. Then a year later, genocide reared its ugly head again, 
this time in the small African country of Rwanda where members of the 
ruling Hutu tribe massacred 800,000 members of the Tutsi tribe. In the 
aftermath of the bloodshed, Rwanda's Prime Minister-designate (a Tutsi) 
pressed the Security Council: ``Is it because we're Africans that a 
similar court has not been set up for the Rwanda genocide.'' The 
Council responded by establishing a second international war crimes 
Tribunal in Arusha, Tanzania.
    With the creation of the Yugoslavia and Rwanda Tribunals, there was 
hope that ad hoc tribunals would be set up for crimes against humanity 
elsewhere in the world. Genocidal leaders and their followers would 
have reason to think twice before committing atrocities. But then 
something known in government circles as ``Tribunal fatigue'' set in. 
The process of reaching agreement on the tribunal's statute, electing 
judges, selecting a prosecutor and staff, negotiating headquarters 
agreements and judicial assistance pacts, and appropriating funds 
turned out to be too time consuming and politically exhausting for the 
members of the Security Council. A permanent international criminal 
court was universally hailed as the solution to the problems that 
afflict the ad hoc approach. As President Clinton said on the eve of 
the Rome Conference: ``We have an obligation to carry forward the 
lessons of Nuremberg . . . Those accused of war crimes, crimes against 
humanity and genocide must be brought to justice . . . There must be 
peace for justice to prevail, but there must be justice when peace 
prevails.''
    So what went wrong in Rome? Why at the last minute did the United 
States Delegation feel compelled to join a handful of rogue States and 
notorious human rights violators such as Iran, Libya, China, and Iraq 
in voting against the statute for a Permanent International Criminal 
Court, while all of our allies (except Israel) voted in favor of the 
Court?
    Rome represented a tension between the United States, which sought 
a Security Council-controlled Court, and most of the other countries of 
the world which felt no country's citizens who are accused of war 
crimes or genocide should be exempt from the jurisdiction of a 
permanent international criminal court. The justification for the 
American position was that, as the world's greatest military and 
economic power, more than any other country the United States is 
expected to intervene to halt humanitarian catastrophes around the 
world. The United States' unique position renders U.S. personnel 
uniquely vulnerable to the potential jurisdiction of an international 
criminal court. In sum, the Administration feared that an independent 
ICC Prosecutor would turn out to be (in the words of one U.S. official) 
an ``international Ken Starr.''
    The rest of the world was in fact somewhat sympathetic to the 
United States' concerns. What emerged from Rome was a Court with a two-
track system of jurisdiction. Track One would constitute situations 
referred to the Court by the Security Council. This track would create 
binding obligations on all states to comply with orders for evidence or 
the surrender of indicted persons under Chapter VII of the U.N. 
Charter. This track would be enforced by Security Council imposed 
embargoes, the freezing of assets of leaders and their supporters, and/
or by authorizing the use of force. It is this track that the United 
States favored, and would be likely to utilize in the event of a future 
Bosnia or Rwanda. The second track would constitute situations referred 
to the Court by individual countries or the ICC Prosecutor. This track 
would have no built in process for enforcement, but rather would rely 
on the good-faith cooperation of the Parties to the Court's statute. 
Everyone recognized that the real power was in the first track. But the 
United States still demanded protection from the second track of the 
Court's jurisdiction. Thus, the following protective mechanisms were 
incorporated into the Court's Statute at the urging of the United 
States:
    First of all, the Court's jurisdiction under the second track would 
be based on a concept known as ``complementarity,'' which was defined 
as meaning the Court would be a last resort which comes into play only 
when domestic authorities are unable or unwilling to prosecute. Under 
this principle, for example, the Court would not have had jurisdiction 
over the infamous My Lai massacre since the United States convicted Lt. 
Calley and prosecuted his superior officer, Captain Medina.
    Second, the ICC Statute specifies that the Court would have 
jurisdiction only over ``serious'' war crimes that represent a 
``policy.'' Thus, random acts of U.S. personnel, such as the downing of 
the Iran Airbus by the USS Vincennes, would not be subject to the 
Court's jurisdiction.
    Third, the Statute guards against spurious complaints by the ICC 
prosecutor by requiring the approval of a three-judge pre-trial chamber 
before the prosecution can launch an investigation. And the decision of 
the chamber is subject to interlocutory appeal to the Appeals Chamber.
    Fourth, the Statute allows the Security Council to affirmatively 
vote to postpone an investigation or case for up to twelve months, on a 
renewable basis. This gives the United States and the other members of 
the Security Council a collective (though not individual) veto over the 
Court where the Council is seized of a matter.
    Finally, the Diplomatic Conference adopted the U.S. proposals for 
the selection of judges to ensure against a politicized Court. While 
researching my book, Balkan Justice, I observed the first trial before 
the Yugoslavia Tribunal in The Hague. I can tell you that those judges 
were truly independent. They did not in any way reflect the 
predispositions of their home countries. The selection process produced 
a bench made up of the most distinguished international jurists in the 
world. And the Yugoslavia Tribunal's jurisprudence to date reflects a 
respect for the rights of the defendant every bit as strong as that 
found in U.S. courts. The experience with the Yugoslavia Tribunal can 
give us comfort that a permanent international criminal tribunal would 
be no Kangaroo court.
    The United States Delegation played hard ball in Rome and got just 
about everything it wanted. These protections proved sufficient for 
other major powers including the United Kingdom, France and Russia. But 
without what would amount to an iron clad exemption for U.S. 
servicemen, the United States felt compelled to force a vote, and 
ultimately to vote against the Court. The final vote on the Statute was 
120 in favor, 7 against, with 21 abstentions. I understand that the 
delegates loudly cheered for fifteen minutes when the tally was 
announced. I'm told that a few of the members of the U.S. Delegation 
had tears in their eyes.
    The ICC Statute will come into force when 60 countries ratify it, 
which given the overwhelming vote in favor, should be within a 
relatively short period of time. Where does that leave us? Within five 
years the world will have a permanent international criminal court even 
without U.S. support. As a non-party, the U.S. will not be bound to 
cooperate with the Court. But this does not guarantee complete immunity 
from the Court. It is important to understand that U.S. citizens, 
soldiers, and officials could still be indicted by the Court and even 
arrested and surrendered to the Court while they are visiting a foreign 
country which happens to be a party to the Court's Statute.
    Moreover, by failing to sign the Statute, the U.S. will be 
prevented from participating in the preparatory committee which will 
draft the Court's Rules of Procedure and further define the elements of 
the crimes within the Court's jurisdiction. Also, by failing to sign 
the Statute, the U.S. will be prevented from nominating a candidate for 
the Court's bench, participating in the selection of the Court's 
Prosecutor and judges, or voting on its funding. The most important 
question, which cannot be answered at this time, is whether the adverse 
diplomatic fallout from the United States' action in Rome will 
ultimately prevent it from being able to utilize the first track of the 
Court's jurisdiction: that is, Security Council referral of cases.
    The worst thing about the U.S. decision to break consensus and vote 
against the permanent international criminal court is that the Rome 
conference will end up sending a mixed message to future war criminals 
and genocidal leaders. The U.S. action may be viewed as evidence that 
the world's greatest power does not support the international effort to 
bring such persons to justice. A future Adolf Hitler may point to the 
U.S. action in telling his followers that they need not fear being held 
accountable.
    In the final analysis, the U.S. may have lost far more than it 
gained by voting against the ICC Statute. After having won so many 
battles in Rome, it is not clear why the U.S. Delegation did not 
declare victory and vote in favor of the Court (though ratification may 
have had to await a more favorable political climate). There's still 
time for a change of heart. After all, it took the United States over 
thirty years to ratify the 1948 Genocide Convention. But we finally did 
the right thing.
    Thank you.

                               __________
             Additional Statements Submitted for the Record

     Statement Submitted by The Lawyers Committee for Human Rights

    The Treaty to Establish A Permanent International Criminal Court

                             July 22, 1998

    The Lawyers Committee for Human Rights submits this statement on 
the International Criminal Court (ICC) to the International 
Organizations Subcommittee of the Senate Committee on Foreign 
Relations. Since 1978, the Lawyers Committee for Human Rights has 
worked to promote international human rights. Its programs focus on 
analyzing and building the legal institutions and structures that will 
guarantee human rights in the long term. The Lawyers Committee played a 
leading role in keeping the ICC negotiating process on track toward 
crafting a statute that will preserve the integrity of the ICC. Through 
analyses of the legal and political issues and active consultation with 
key negotiators, we worked to mobilize support for a strong and 
credible court that will punish heinous international crimes and deter 
future atrocities. Although the Rome treaty falls short of what we 
advocated for, it does provide a framework of international justice for 
future generations. This court is squarely in the national interest of 
the United States and deserves its support.
Background
    In the 50 years since the Nuremberg trials, genocide, crimes 
agalnst humanity and serious war crimes have been committed in many 
parts of the world. The perpetrators usually escaped justice because 
there was no court able and willing to hold them accountable. The Court 
will have jurisdiction to prosecute those suspected of the most serious 
international crimes whenever a national government is unable or 
unwilling to do so.
    The negotiations concluded in Rome on July 17 reflected widespread 
international consensus that a permanent court must be established.
Why An ICC Is Needed
    Experience has demonstrated that the worst human rights criminals, 
especially those in positions of authority, are rarely called to 
account by their own governments. The U.N. Security Council established 
the ad hoc tribunal for the former Yugoslavia precisely because 
national authorities were uniikely to punish those responsible for 
atrocities. Even when the political will exists, as in Rwanda, fair 
prosecution is often impossible because conflicts have disrupted or 
even destroyed a country's judicial system.
    The ICC will not prevent all future human rights violations. But it 
will provide a forum to prosecute the most heinous international crimes 
when national systems are unable or unwilling to do so. It will also 
serve to deter those who would commit genocide, crimes against humanity 
and war crimes, by confronting them with the threat of punishment. It 
would offer redress to victims where national courts cannot provide it. 
It would strengthen peace and end the cycle of violence, by offering 
justice as an alternative to revenge. And it would contribute to the 
process of reconciliation, by replacing the stigma of collective guilt 
with the catharsis of individual accountability. But unlike the ad hoc 
tribunals, which can raise questions of selective justice and political 
motivations, the legitimacy of a permanent ICC created by treaty by 
U.N. member nations would not be open to challenge. The Court would 
have the same mandate wherever the crimes under its jurisdiction are 
committed.
    The ICC is in the national interest of the United States. A court 
capable of effectively stepping in when national judicial systems are 
unwilling or unable to prosecute those who commit genocide, crimes 
against humanity or serious war crimes will help deter those crimes. 
Increased deterrence will lessen the chances that U.S. military 
personnel will need to be deployed in response to future Bosnias. And 
an effective court will help deter the commission of war crimes against 
U.S. military personnel when they are deployed overseas.
Safeguards Against Inappropriate Prosecutions
    Some have raised the concern that the Court might become a tool for 
politically motivated prosecutions of Americans, especially military 
personnel deployed abroad. This concern is legitimate, but the final 
treaty contains provisions that address this concern. Four important 
safeguards in the treaty are designed to protect against inappropriate 
investigations of U.S. citizens, and would do so without sacrificing 
the Court's independence.
    First, the subject matter jurisdiction of the Court will be limited 
to the most egregious international crimes: genocide, crimes against 
humanity and serious war crimes. This limited jurisdiction necessarily 
will restrict the investigations that the Prosecutor can undertake to 
claims that those crimes have been committed. Nothing in the Court's 
limited jurisdiction would permit the prosecutor to investigate 
allegations of other types of wrongdoing. The United States was very 
involved in defining those crimes and including high thresholds to 
ensure that the Court deals only with the most serious offenses.
    Second, and perhaps most important, the ICC will cede jurisdiction 
to the national courts of countries willing and able to prosecute 
individuals who commit these crimes. Under the principle of 
``complementarity,'' the Court will be empowered to act only when 
national judicial systems are not available to do so. Thus, a case will 
be inadmissible before the ICC whenever a State is exercising, or has 
exercised, its national jurisdiction over a case. By the treaty's 
terms, the ICC will have not have jurisdiction when a national 
investigation is taking place or has occurred. This means that whenever 
a State does carry out its obligation to investigate, even if it 
decides not to prosecute, the ICC cannot intercede. The oniy exceptions 
are when a State intentionally tries to avoid its international 
obligations by willingly shielding a criminal from responsibility, as 
is the case now with many of the indicted war criminals in the former 
Yugoslavia, or where the judicial system has collapsed, as in the case 
in Rwanda. Quite simply, the Court is neither designed nor intended to 
supplant independent and effective judicial systems such as the U.S. 
military and civilian courts.
    Third, judicial oversight will ensure prosecutorial accountability. 
The treaty already provides for early judicial review of both the 
merits of a case and whether a national judicial system is available. 
The U.S. delegation succeeded in further strengthening these safeguards 
during the negotiations.
    Finally, safeguards in the election and removal of the Prosecutor 
and Deputy Prosecutor provide accountability. The treaty requires that 
they be ``persons of high moral character [and] be highly competent in 
and have extensive practical experience in the prosecution or trial of 
criminal cases.'' The natural counterpart to election of the Prosecutor 
and Deputy Prosecutors is their removal, which the treaty allows by 
vote of a majority of states parties.
    The United States has a national interest in an effective ICC as 
well as an interest in protecting against inappropriate prosecutions 
before such a court. These interests are not mutually exclusive. The 
final ICC treaty preserves both interests. The United States should not 
unnecessarily sacrifice the national interest in promoting 
international justice in the mistaken belief that an independent court 
might act irresponsibly. The safeguards outlined above--especially the 
principle of complementarity--will promote an independent and effective 
court while protecting against inappropriate prosecutions.

                               __________

      Statement Submitted by Richard Dicker of Human Rights Watch

    The urgent need for this International Criminal Court (ICC) has 
been underscored by the spectacular failure of national court systems 
to hold those accused of the most serious crimes under international 
law accountable for their acts. The United States had strongly 
supported the Courts' creation up until the final negotiations. A 
foundational principle of this Court is that it will only operate in 
situations where a national jurisdiction is ``unable or unwilling'' to 
bring the perpetrators of genocide, crimes against humanity, and war 
crimes to justice. Before the ICC could try a case, the Court's 
Prosecutor must prove that the national authorities were acting ``with 
the intent to shield an individual from international criminal 
responsibility.'' This threshold provides a strong safeguard against 
unnecessary prosecutions.
    Human Rights Watch, one of the world's largest non-governmental 
monitors of violations of human rights and the laws of war, believes 
this Court has tremendous potential to deter atrocities and provide 
justice to the victims of the world's most heinous atrocities. It is 
for this reason that we profoundly regret the failure of the United 
States to support the treaty that was overwhelmingly adopted in Rome, 
and take recent diplomatic statements threatening ``active opposition'' 
on the part of the United States to the treaty to be misguided and 
indeed, contrary to this nation's interest in world peace and justice.
    The claim that the statute is ``overreaching'' in that it purports 
to bind non-States Parties through the exercise of jurisdiction over 
their nationals is a gross mischaracterization. To begin with, it does 
not ``bind'' non-States Parties or impose upon them any novel 
obligations under international law. What it does do, is permit the ICC 
to exercise jurisdiction over the nationals of non-States Parties where 
there is a reasonable basis to believe they have committed the most 
serious international crimes. There is nothing novel about such a 
result. The core crimes in the ICC treaty are crimes of universal 
jurisdiction--that is, they are so universally condemned, that any 
nation in the world has the authority to exercise jurisdiction over 
suspects and perpetrators, without the consent of that individual's 
state of nationality. Thus, in the extremely unlikely event that a U.S. 
service person were to commit such a crime abroad, that State would be 
able to investigate and prosecute the individual without U.S. consent.
    Nor is there anything unusual about the conferral of jurisdiction 
over nationals of non-State Parties through the mechanism of treaty 
law. The United States is party to a dozen anti-terrorism treaties that 
provide universal jurisdiction for these crimes,and empower States 
Parties to investigate and prosecute perpetrators of any nationality 
found within their territory. The United States has exercised 
jurisdiction over foreigners on the basis of such treaties,without the 
consent of their state of nationality. Indeed, the United States 
extradites and surrenders its own citizens all the time to be tried by 
foreign courts that are not subjects to the United States Constitution 
or its Bill of Rights. There is no Constitutional impediment to this, 
and indeed, there would be no such hurdle to the surrender of U.S. 
nationals to an international tribunal either. The one innovation of 
the ICC treaty is that it similarly allows states on whose territories 
these crimes were committed to allow the ICC to proceed in lieu of the 
state itself. Given that the ICC will follow the highest international 
standards of procedural fairness and protection of defendants' rights, 
this may often be preferable to having the accused tried in a foreign 
national court.
    It is of more than semantic importance to underscore that non-
States Parties are not ``bound'' by the ICC treaty. The treaty does not 
impose any duty on non-States Parties that they are not already bound 
to fulfill. All nations are already obligated to investigate and punish 
anyone who commits genocide, crimes against humanity, or the most 
serious war crimes, and this fact is reflected in the treaty's 
complementarity provisions that bar the ICC from acting where a State 
is taking up this task. Although it is possible for citizens of a non-
State Party to come before the ICC, the state itself incurs no new 
obligations, and indeed, not even the obligation of cooperation with 
the Court, unless the referral comes from the Security Council itself.
    The United States in particular objected to the inclusion of the 
consent or ratification of the state on whose territory the crime was 
committed as satisfying the preconditions to jurisdiction, and proposed 
that only the state of nationality of the suspect be able to satisfy 
the precondition through its consent or ratification of the treaty. 
Such a narrow door to the ICC's exercise of its powers would exclude 
virtually any world-class criminal. No one imagines Saddam Hussein 
consenting to his own prosecution for war crimes committed in Kuwait.
    In fact, such a narrow basis for the exercise of jurisdiction would 
have operated as a powerful disincentive for states to ratify the 
treaty--a sort of ``poison pill'' to ensure the ICC never became 
operational. If refraining from ratifying the Court's statute were the 
on sure-fire way of guaranteeing that no citizen was ever the subject 
of an ICC prosecution, many states would think long and hard about 
ratifying at all. It would not make sense, therefore,for the United 
States to stake its position vis-a-vis the Court on this issue if it 
otherwise favored joining the treaty.
    In contrast, the current formulation that allows either the state 
where the crime was committed or the state of the suspect's nationality 
to act as the ``door'' to jurisdiction provides an additional incentive 
to ratification. Governments that want to insure redress should they 
ever be invaded and subjected to these atrocities can ratify this 
treaty, secure in the knowledge that this ``insurance'' will only 
operate should their nation be rendered incapable of enforcing justice 
in its own courts.
    The United States has also objected to the power of the prosecutor 
to act independently to initiate the investigation of matters on the 
basis of information from sources such as victims, United Nations 
personnel, or non-governmental groups, arguing that this would 
overwhelm the prosecutor and transform the office into a human rights 
ombudsperson. Yet it advanced no solution to this problem, though many 
have been suggested, including panels of experts to screen out 
frivolous or marginal cases. And indeed, the United States succeeded in 
imposing a powerful check on the prosecutor's power to commence 
investigation of a matter by subjecting it to a rigorous process of 
challenge by an affected State and review by successive levels of the 
ICC--all without prejudice to the State's ability to also challenge the 
investigation of any individual suspect's case.
    In fact, the United States won myriad concessions at the 
negotiations that are reflected throughout the body of the treaty, in 
terms of the threshold definitions of crimes, and the opt-out provision 
for war crimes generally, that constrict the reach of the Court to a 
considerable degree and make the chances of prosecution of a United 
States citizen extremely remote indeed. It is notable that other world 
powers widely deployed abroad, such as France, the United Kingdom and 
Russia, did not see this treaty as exposing their nationals to 
frivolous or malicious prosecutions; and it is our hope that the United 
States will ultimately come to this point of view.
                               __________
                           Related Documents

            Rome Statute of the International Criminal Court

                                                       A/CONF.183/9
                                                       17 July 1998
United Nations

United Nations Diplomatic Conference of Plenipotentiaries on the 
    Establishment of an International Criminal Court

Rome, Italy
15 June-17 July 1998

    [Adopted by the United Nations Diplomatic Conference of 
Plenipotentiaries on the Establishment of an International Criminal 
Court on 17 July 1998.]

                                PREAMBLE

            The States Parties to this Statute,

    Conscious that all peoples are united by common bonds, their 
cultures pieced together in a shared heritage, and concerned that this 
delicate mosaic may be shattered at any time,

    Mindful that during this century millions of children, women and 
men have been victims of unimaginable atrocities that deeply shock the 
conscience of humanity,

    Recognizing that such grave crimes threaten the peace, security and 
well-being of the world,

    Affirming that the most serious crimes of concern to the 
international community as a whole must not go unpunished and that 
their effective prosecution must be ensured by taking measures at the 
national level and by enhancing international cooperation,

    Determined to put an end to impunity for the perpetrators of these 
crimes and thus to contribute to the prevention of such crimes, 
Recalling that it is the duty of every State to exercise its criminal 
jurisdiction over those responsible for international crimes, 
Reaffirming the Purposes and Principles of the Charter of the United 
Nations, and in particular that all States shall refrain from the 
threat or use of force against the territorial integrity or political 
independence of any State, or in any other manner inconsistent with the 
Purposes of the United Nations,

    Emphasizing in this connection that nothing in this Statute shall 
be taken as authorizing any State Party to intervene in an armed 
conflict in the internal affairs of any State,

    Determined to these ends and for the sake of present and future 
generations, to establish an independent permanent International 
Criminal Court in relationship with the United Nations system, with 
jurisdiction over the most serious crimes of concern to the 
international community as a whole,

    Emphasizing that the International Criminal Court established under 
this Statute shall be complementary to national criminal jurisdictions, 
Resolved to guarantee lasting respect for the enforcement of 
international justice,

    Have agreed as follows:

                   PART 1. ESTABLISHMENT OF THE COURT

                               Article 1

                               The Court

    An International Criminal Court (``the Court'') is hereby 
established. It shall be a permanent institution and shall have the 
power to exercise its jurisdiction over persons for the most serious 
crimes of international concern, as referred to in this Statute, and 
shall be complementary to national criminal jurisdictions. The 
jurisdiction and functioning of the Court shall be governed by the 
provisions of this Statute.

                               Article 2

           Relationship of the Court with the United Nations

    The Court shall be brought into relationship with the United 
Nations through an agreement to be approved by the Assembly of States 
Parties to this Statute and thereafter concluded by the President of 
the Court on its behalf.

                               Article 3

                           Seat of the Court

    1. The seat of the Court shall be established at The Hague in the 
Netherlands (``the host State'').

    2. The Court shall enter into a headquarters agreement with the 
host State, to be approved by the Assembly of States Parties and 
thereafter concluded by the President of the Court on its behalf.

    3. The Court may sit elsewhere, whenever it considers it desirable, 
as provided in this Statute.

                               Article 4

                  Legal status and powers of the Court

    1. The Court shall have international legal personality. It shall 
also have such legal capacity as may be necessary for the exercise of 
its functions and the fulfilment of its purposes.

    2. The Court may exercise its functions and powers, as provided in 
this Statute, on the territory of any State Party and, by special 
agreement, on the territory of any other State.

         PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW

                               Article 5

              Crimes within the jurisdiction of the Court

    1. The jurisdiction of the Court shall be limited to the most 
serious crimes of concern to the international community as a whole. 
The Court has jurisdiction in accordance with this Statute with respect 
to the following crimes:

          (a) The crime of genocide;

          (b) Crimes against humanity;

          (c) War crimes;

          (d) The crime of aggression.

    2. The Court shall exercise jurisdiction over the crime of 
aggression once a provision is adopted in accordance with articles 121 
and 123 defining the crime and setting out the conditions under which 
the Court shall exercise jurisdiction with respect to this crime. Such 
a provision shall be consistent with the relevant provisions of the 
Charter of the United Nations.

                               Article 6

                                Genocide

    For the purpose of this Statute, ``genocide'' means any of the 
following acts committed with intent to destroy, in whole or in part, a 
national, ethnical, racial or religious group, as such:

          (a) Killing members of the group;

          (b) Causing serious bodily or mental harm to members of the 
        group;

          (c) Deliberately inflicting on the group conditions of life 
        calculated to bring about its physical destruction in whole or 
        in part;

          (d) Imposing measures intended to prevent births within the 
        group;

          (e) Forcibly transferring children of the group to another 
        group.

                               Article 7

                        Crimes against humanity

    1. For the purpose of this Statute, ``crime against humanity'' 
means any of the following acts when committed as part of a widespread 
or systematic attack directed against any civilian population, with 
knowledge of the attack:

          (a) Murder;

          (b) Extermination;

          (c) Enslavement;

          (d) Deportation or forcible transfer of population;

          (e) Imprisonment or other severe deprivation of physical 
        liberty in violation of fundamental rules of international law;

          (f) Torture;

          (g) Rape, sexual slavery, enforced prostitution, forced 
        pregnancy, enforced sterilization, or any other form of sexual 
        violence of comparable gravity;

          (h) Persecution against any identifiable group or 
        collectivity on political, racial, national, ethnic, cultural, 
        religious, gender as defined in paragraph 3, or other grounds 
        that are universally recognized as impermissible under 
        international law, in connection with any act referred to in 
        this paragraph or any crime within the jurisdiction of the 
        Court;

          (i) Enforced disappearance of persons;

          (j) The crime of apartheid;

          (k) Other inhumane acts of a similar character intentionally 
        causing great suffering, or serious injury to body or to mental 
        or physical health.

    2. For the purpose of paragraph 1:

          (a) ``Attack directed against any civilian population'' means 
        a course of conduct involving the multiple commission of acts 
        referred to in paragraph 1 against any civilian population, 
        pursuant to or in furtherance of a State or organizational 
        policy to commit such attack;

          (b) ``Extermination'' includes the intentional infliction of 
        conditions of life, inter alia the deprivation of access to 
        food and medicine, calculated to bring about the destruction of 
        part of a population;

          (c) ``Enslavement'' means the exercise of any or all of the 
        powers attaching to the right of ownership over a person and 
        includes the exercise of such power in the course of 
        trafficking in persons, in particular women and children;

          (d) ``Deportation or forcible transfer of population'' means 
        forced displacement of the persons concerned by expulsion or 
        other coercive acts from the area in which they are lawfully 
        present, without grounds permitted under international law;

          (e) ``Torture'' means the intentional infliction of severe 
        pain or suffering, whether physical or mental, upon a person in 
        the custody or under the control of the accused; except that 
        torture shall not include pain or suffering arising only from, 
        inherent in or incidental to, lawful sanctions;

          (f) ``Forced pregnancy'' means the unlawful confinement, of a 
        woman forcibly made pregnant, with the intent of affecting the 
        ethnic composition of any population or carrying out other 
        grave violations of international law. This definition shall 
        not in any way be interpreted as affecting national laws 
        relating to pregnancy;

          (g) ``Persecution'' means the intentional and severe 
        deprivation of fundamental rights contrary to international law 
        by reason of the identity of the group or collectivity;

          (h) ``The crime of apartheid'' means inhumane acts of a 
        character similar to those referred to in paragraph 1, 
        committed in the context of an institutionalized regime of 
        systematic oppression and domination by one racial group over 
        any other racial group or groups and committed with the 
        intention of maintaining that regime;

          (i) ``Enforced disappearance of persons'' means the arrest, 
        detention or abduction of persons by, or with the 
        authorization, support or acquiescence of, a State or a 
        political organization, followed by a refusal to acknowledge 
        that deprivation of freedom or to give information on the fate 
        or whereabouts of those persons, with the intention of removing 
        them from the protection of the law for a prolonged period of 
        time.

    3. For the purpose of this Statute, it is understood that the term 
``gender'' refers to the two sexes, male and female, within the context 
of society. The term ``gender'' does not indicate any meaning different 
from the above.

                               Article 8

                               War crimes

    1. The Court shall have jurisdiction in respect of war crimes in 
particular when committed as a part of a plan or policy or as part of a 
large-scale commission of such crimes.

    2. For the purpose of this Statute, ``war crimes'' means:

          (a) Grave breaches of the Geneva Conventions of 12 August 
        1949, namely, any of the following acts against persons or 
        property protected under the provisions of the relevant Geneva 
        Convention:

                  (i) Willful killing;

                  (ii) Torture or inhuman treatment, including 
                biological experiments;

                  (iii) Willfully causing great suffering, or serious 
                injury to body or health;

                  (iv) Extensive destruction and appropriation of 
                property, not justified by military necessity and 
                carried out unlawfully and wantonly;

                  (v) Compelling a prisoner of war or other protected 
                person to serve in the forces of a hostile Power;

                  (vi) Willfully depriving a prisoner of war or other 
                protected person of the rights of fair and regular 
                trial;

                  (vii) Unlawful deportation or transfer or unlawful 
                confinement;

                  (viii) Taking of hostages.

          (b) Other serious violations of the laws and customs 
        applicable in international armed conflict, within the 
        established framework of international law, namely, any of the 
        following acts:

                  (i) Intentionally directing attacks against the 
                civilian population as such or against individual 
                civilians not taking direct part in hostilities;

                  (ii) Intentionally directing attacks against civilian 
                objects, that is, objects which are not military 
                objectives;

                  (iii) Intentionally directing attacks against 
                personnel, installations, material, units or vehicles 
                involved in a humanitarian assistance or peacekeeping 
                mission in accordance with the Charter of the United 
                Nations, as long as they are entitled to the protection 
                given to civilians or civilian objects under the 
                international law of armed conflict;

                  (iv) Intentionally launching an attack in the 
                knowledge that such attack will cause incidental loss 
                of life or injury to civilians or damage to civilian 
                objects or widespread, long-term and severe damage to 
                the natural environment which would be clearly 
                excessive in relation to the concrete and direct 
                overall military advantage anticipated;

                  (v) Attacking or bombarding, by whatever means, 
                towns, villages, dwellings or buildings which are 
                undefended and which are not military objectives;

                  (vi) Killing or wounding a combatant who, having laid 
                down his arms or having no longer means of defence, has 
                surrendered at discretion;

                  (vii) Making improper use of a flag of truce, of the 
                flag or of the military insignia and uniform of the 
                enemy or of the United Nations, as well as of the 
                distinctive emblems of the Geneva Conventions, 
                resulting in death or serious personal injury;

                  (viii) The transfer, directly or indirectly, by the 
                Occupying Power of parts of its own civilian population 
                into the territory it occupies, or the deportation or 
                transfer of all or parts of the population of the 
                occupied territory within or outside this territory;

                  (ix) Intentionally directing attacks against 
                buildings dedicated to religion, education, art, 
                science or charitable purposes, historic monuments, 
                hospitals and places where the sick and wounded are 
                collected, provided they are not military objectives;

                  (x) Subjecting persons who are in the power of an 
                adverse party to physical mutilation or to medical or 
                scientific experiments of any kind which are neither 
                justified by the medical, dental or hospital treatment 
                of the person concerned nor carried out in his or her 
                interest, and which cause death to or seriously 
                endanger the health of such person or persons;

                  (xi) Killing or wounding treacherously individuals 
                belonging to the hostile nation or army;

                  (xii) Declaring that no quarter will be given;

                  (xiii) Destroying or seizing the enemy's property 
                unless such destruction or seizure be imperatively 
                demanded by the necessities of war;

                  (xiv) Declaring abolished, suspended or inadmissible 
                in a court of law the rights and actions of the 
                nationals of the hostile party;

                  (xv) Compelling the nationals of the hostile party to 
                take part in the operations of war directed against 
                their own country, even if they were in the 
                belligerent's service before the commencement of the 
                war;

                  (xvi) Pillaging a town or place, even when taken by 
                assault;

                  (xvii) Employing poison or poisoned weapons;

                  (xviii) Employing asphyxiating, poisonous or other 
                gases, and all analogous liquids, materials or devices;

                  (xix) Employing bullets which expand or flatten 
                easily in the human body, such as bullets with a hard 
                envelope which does not entirely cover the core or is 
                pierced with incisions;

                  (xx) Employing weapons, projectiles and material and 
                methods of warfare which are of a nature to cause 
                superfluous injury or unnecessary suffering or which 
                are inherently indiscriminate in violation of the 
                international law of armed conflict, provided that such 
                weapons, projectiles and material and methods of 
                warfare are the subject of a comprehensive prohibition 
                and are included in an annex to this Statute, by an 
                amendment in accordance with the relevant provisions 
                set forth in articles 121 and 123;

                  (xxi) Committing outrages upon personal dignity, in 
                particular humiliating and degrading treatment;

                  (xxii) Committing rape, sexual slavery, enforced 
                prostitution, forced pregnancy, as defined in article 
                7, paragraph 2 (f), enforced sterilization, or any 
                other form of sexual violence also constituting a grave 
                breach of the Geneva Conventions;

                  (xxiii) Utilizing the presence of a civilian or other 
                protected person to render certain points, areas or 
                military forces immune from military operations;

                  (xxiv) Intentionally directing attacks against 
                buildings, material, medical units and transport, and 
                personnel using the distinctive emblems of the Geneva 
                Conventions in conformity with international law;

                  (xxv) Intentionally using starvation of civilians as 
                a method of warfare by depriving them of objects 
                indispensable to their survival, including wilfully 
                impeding relief supplies as provided for under the 
                Geneva Conventions;

                  (xxvi) Conscripting or enlisting children under the 
                age of fifteen years into the national armed forces or 
                using them to participate actively in hostilities.

          (c) In the case of an armed conflict not of an international 
        character, serious violations of article 3 common to the four 
        Geneva Conventions of 12 August 1949, namely, any of the 
        following acts committed against persons taking no active part 
        in the hostilities, including members of armed forces who have 
        laid down their arms and those placed hors de combat by 
        sickness, wounds, detention or any other cause:

                  (i) Violence to life and person, in particular murder 
                of all kinds, mutilation, cruel treatment and torture;

                  (ii) Committing outrages upon personal dignity, in 
                particular humiliating and degrading treatment;

                  (iii) Taking of hostages;

                  (iv) The passing of sentences and the carrying out of 
                executions without previous judgement pronounced by a 
                regularly constituted court, affording all judicial 
                guarantees which are generally recognized as 
                indispensable.

          (d) Paragraph 2 (c) applies to armed conflicts not of an 
        international character and thus does not apply to situations 
        of internal disturbances and tensions, such as riots, isolated 
        and sporadic acts of violence or other acts of a similar 
        nature.

          (e) Other serious violations of the laws and customs 
        applicable in armed conflicts not of an international 
        character, within the established framework of international 
        law, namely, any of the following acts:

                  (i) Intentionally directing attacks against the 
                civilian population as such or against individual 
                civilians not taking direct part in hostilities;

                  (ii) Intentionally directing attacks against 
                buildings, material, medical units and transport, and 
                personnel using the distinctive emblems of the Geneva 
                Conventions in conformity with international law;

                  (iii) Intentionally directing attacks against 
                personnel, installations, material, units or vehicles 
                involved in a humanitarian assistance or peacekeeping 
                mission in accordance with the Charter of the United 
                Nations, as long as they are entitled to the protection 
                given to civilians or civilian objects under the law of 
                armed conflict;

                  (iv) Intentionally directing attacks against 
                buildings dedicated to religion, education, art, 
                science or charitable purposes, historic monuments, 
                hospitals and places where the sick and wounded are 
                collected, provided they are not military objectives;

                  (v) Pillaging a town or place, even when taken by 
                assault;

                  (vi) Committing rape, sexual slavery, enforced 
                prostitution, forced pregnancy, as defined in article 
                7, paragraph 2 (f), enforced sterilization, and any 
                other form of sexual violence also constituting a 
                serious violation of article 3 common to the four 
                Geneva Conventions;

                  (vii) Conscripting or enlisting children under the 
                age of fifteen years into armed forces or groups or 
                using them to participate actively in hostilities;

                  (viii) Ordering the displacement of the civilian 
                population for reasons related to the conflict, unless 
                the security of the civilians involved or imperative 
                military reasons so demand;

                  (ix) Killing or wounding treacherously a combatant 
                adversary;

                  (x) Declaring that no quarter will be given;

                  (xi) Subjecting persons who are in the power of 
                another party to the conflict to physical mutilation or 
                to medical or scientific experiments of any kind which 
                are neither justified by the medical, dental or 
                hospital treatment of the person concerned nor carried 
                out in his or her interest, and which cause death to or 
                seriously endanger the health of such person or 
                persons;

                  (xii) Destroying or seizing the property of an 
                adversary unless such destruction or seizure be 
                imperatively demanded by the necessities of the 
                conflict;

          (f) Paragraph 2 (e) applies to armed conflicts not of an 
        international character and thus does not apply to situations 
        of internal disturbances and tensions, such as riots, isolated 
        and sporadic acts of violence or other acts of a similar 
        nature. It applies to armed conflicts that take place in the 
        territory of a State when there is protracted armed conflict 
        between governmental authorities and organized armed groups or 
        between such groups.

    3. Nothing in paragraphs 2 (c) and (d) shall affect the 
responsibility of a Government to maintain or re-establish law and 
order in the State or to defend the unity and territorial integrity of 
the State, by all legitimate means.

                               Article 9

                           Elements of Crimes

    1. Elements of Crimes shall assist the Court in the interpretation 
and application of articles 6, 7 and 8. They shall be adopted by a two-
thirds majority of the members of the Assembly of States Parties.

    2. Amendments to the Elements of Crimes may be proposed by:

          (a) Any State Party;

          (b) The judges acting by an absolute majority;

          (c) The Prosecutor.

    Such amendments shall be adopted by a two-thirds majority of the 
members of the Assembly of States Parties.

    3. The Elements of Crimes and amendments thereto shall be 
consistent with this Statute.

                               Article 10

    Nothing in this Part shall be interpreted as limiting or 
prejudicing in any way existing or developing rules of international 
law for purposes other than this Statute.

                               Article 11

                     Jurisdiction ratione temporis

    1. The Court has jurisdiction only with respect to crimes committed 
after the entry into force of this Statute.

    2. If a State becomes a Party to this Statute after its entry into 
force, the Court may exercise its jurisdiction only with respect to 
crimes committed after the entry into force of this Statute for that 
State, unless that State has made a declaration under article 12, 
paragraph 3.

                               Article 12

             Preconditions to the exercise of jurisdiction

    1. A State which becomes a Party to this Statute thereby accepts 
the jurisdiction of the Court with respect to the crimes referred to in 
article 5.

    2. In the case of article 13, paragraph (a) or (c), the Court may 
exercise its jurisdiction if one or more of the following States are 
Parties to this Statute or have accepted the jurisdiction of the Court 
in accordance with paragraph 3:

          (a) The State on the territory of which the conduct in 
        question occurred or, if the crime was committed on board a 
        vessel or aircraft, the State of registration of that vessel or 
        aircraft;

          (b) The State of which the person accused of the crime is a 
        national.

    3. If the acceptance of a State which is not a Party to this 
Statute is required under paragraph 2, that State may, by declaration 
lodged with the Registrar, accept the exercise of jurisdiction by the 
Court with respect to the crime in question. The accepting State shall 
cooperate with the Court without any delay or exception in accordance 
with Part 9.

                               Article 13

                        Exercise of jurisdiction

    The Court may exercise its jurisdiction with respect to a crime 
referred to in article 5 in accordance with the provisions of this 
Statute if:

          (a) A situation in which one or more of such crimes appears 
        to have been committed is referred to the Prosecutor by a State 
        Party in accordance with article 14;

          (b) A situation in which one or more of such crimes appears 
        to have been committed is referred to the Prosecutor by the 
        Security Council acting under Chapter VII of the Charter of the 
        United Nations; or

          (c) The Prosecutor has initiated an investigation in respect 
        of such a crime in accordance with article 15.

                               Article 14

                Referral of a situation by a State Party

    1. A State Party may refer to the Prosecutor a situation in which 
one or more crimes within the jurisdiction of the Court appear to have 
been committed requesting the Prosecutor to investigate the situation 
for the purpose of determining whether one or more specific persons 
should be charged with the commission of such crimes.

    2. As far as possible, a referral shall specify the relevant 
circumstances and be accompanied by such supporting documentation as is 
available to the State referring the situation.

                               Article 15

                               Prosecutor

    1. The Prosecutor may initiate investigations proprio motu on the 
basis of information on crimes within the jurisdiction of the Court.

    2. The Prosecutor shall analyse the seriousness of the information 
received. For this purpose, he or she may seek additional information 
from States, organs of the United Nations, intergovernmental or non-
governmental organizations, or other reliable sources that he or she 
deems appropriate, and may receive written or oral testimony at the 
seat of the Court.

    3. If the Prosecutor concludes that there is a reasonable basis to 
proceed with an investigation, he or she shall submit to the Pre-Trial 
Chamber a request for authorization of an investigation, together with 
any supporting material collected. Victims may make representations to 
the Pre-Trial Chamber, in accordance with the Rules of Procedure and 
Evidence.

    4. If the Pre-Trial Chamber, upon examination of the request and 
the supporting material, considers that there is a reasonable basis to 
proceed with an investigation, and that the case appears to fall within 
the jurisdiction of the Court, it shall authorize the commencement of 
the investigation, without prejudice to subsequent determinations by 
the Court with regard to the jurisdiction and admissibility of a case.

    5. The refusal of the Pre-Trial Chamber to authorize the 
investigation shall not preclude the presentation of a subsequent 
request by the Prosecutor based on new facts or evidence regarding the 
same situation.

    6. If, after the preliminary examination referred to in paragraphs 
1 and 2, the Prosecutor concludes that the information provided does 
not constitute a reasonable basis for an investigation, he or she shall 
inform those who provided the information. This shall not preclude the 
Prosecutor from considering further information submitted to him or her 
regarding the same situation in the light of new facts or evidence.

                               Article 16

                Deferral of investigation or prosecution

    No investigation or prosecution may be commenced or proceeded with 
under this Statute for a period of 12 months after the Security 
Council, in a resolution adopted under Chapter VII of the Charter of 
the United Nations, has requested the Court to that effect; that 
request may be renewed by the Council under the same conditions.

                               Article 17

                        Issues of admissibility

    1. Having regard to paragraph 10 of the Preamble and article 1, the 
Court shall determine that a case is inadmissible where:

          (a) The case is being investigated or prosecuted by a State 
        which has jurisdiction over it, unless the State is unwilling 
        or unable genuinely to carry out the investigation or 
        prosecution;

          (b) The case has been investigated by a State which has 
        jurisdiction over it and the State has decided not to prosecute 
        the person concerned, unless the decision resulted from the 
        unwillingness or inability of the State genuinely to prosecute;

          (c) The person concerned has already been tried for conduct 
        which is the subject of the complaint, and a trial by the Court 
        is not permitted under article 20, paragraph 3;

          (d) The case is not of sufficient gravity to justify further 
        action by the Court.

    2. In order to determine unwillingness in a particular case, the 
Court shall consider, having regard to the principles of due process 
recognized by international law, whether one or more of the following 
exist, as applicable:

          (a) The proceedings were or are being undertaken or the 
        national decision was made for the purpose of shielding the 
        person concerned from criminal responsibility for crimes within 
        the jurisdiction of the Court referred to in article 5;

          (b) There has been an unjustified delay in the proceedings 
        which in the circumstances is inconsistent with an intent to 
        bring the person concerned to justice;

          (c) The proceedings were not or are not being conducted 
        independently or impartially, and they were or are being 
        conducted in a manner which, in the circumstances, is 
        inconsistent with an intent to bring the person concerned to 
        justice.

    3. In order to determine inability in a particular case, the Court 
shall consider whether, due to a total or substantial collapse or 
unavailability of its national judicial system, the State is unable to 
obtain the accused or the necessary evidence and testimony or otherwise 
unable to carry out its proceedings.

                               Article 18

              Preliminary rulings regarding admissibility

    1. When a situation has been referred to the Court pursuant to 
article 13 (a) and the Prosecutor has determined that there would be a 
reasonable basis to commence an investigation, or the Prosecutor 
initiates an investigation pursuant to articles 13 (c) and 15, the 
Prosecutor shall notify all States Parties and those States which, 
taking into account the information available, would normally exercise 
jurisdiction over the crimes concerned. The Prosecutor may notify such 
States on a confidential basis and, where the Prosecutor believes it 
necessary to protect persons, prevent destruction of evidence or 
prevent the absconding of persons, may limit the scope of the 
information provided to States.

    2. Within one month of receipt of that notice, a State may inform 
the Court that it is investigating or has investigated its nationals or 
others within its jurisdiction with respect to criminal acts which may 
constitute crimes referred to in article 5 and which relate to the 
information provided in the notification to States. At the request of 
that State, the Prosecutor shall defer to the State's investigation of 
those persons unless the Pre-Trial Chamber, on the application of the 
Prosecutor, decides to authorize the investigation.

    3. The Prosecutor's deferral to a State's investigation shall be 
open to review by the Prosecutor six months after the date of deferral 
or at any time when there has been a significant change of 
circumstances based on the State's unwillingness or inability genuinely 
to carry out the investigation.

    4. The State concerned or the Prosecutor may appeal to the Appeals 
Chamber against a ruling of the Pre-Trial Chamber, in accordance with 
article 82, paragraph 2. The appeal may be heard on an expedited basis.

    5. When the Prosecutor has deferred an investigation in accordance 
with paragraph 2, the Prosecutor may request that the State concerned 
periodically inform the Prosecutor of the progress of its 
investigations and any subsequent prosecutions. States Parties shall 
respond to such requests without undue delay.

    6. Pending a ruling by the Pre-Trial Chamber, or at any time when 
the Prosecutor has deferred an investigation under this article, the 
Prosecutor may, on an exceptional basis, seek authority from the Pre-
Trial Chamber to pursue necessary investigative steps for the purpose 
of preserving evidence where there is a unique opportunity to obtain 
important evidence or there is a significant risk that such evidence 
may not be subsequently available.

    7. A State which has challenged a ruling of the Pre-Trial Chamber 
under this article may challenge the admissibility of a case under 
article 19 on the grounds of additional significant facts or 
significant change of circumstances.

                               Article 19

 Challenges to the jurisdiction of the Court or the admissibility of a 
                                  case

    1. The Court shall satisfy itself that it has jurisdiction in any 
case brought before it. The Court may, on its own motion, determine the 
admissibility of a case in accordance with article 17.

    2. Challenges to the admissibility of a case on the grounds 
referred to in article 17 or challenges to the jurisdiction of the 
Court may be made by:

          (a) An accused or a person for whom a warrant of arrest or a 
        summons to appear has been issued under article 58;

          (b) A State which has jurisdiction over a case, on the ground 
        that it is investigating or prosecuting the case or has 
        investigated or prosecuted; or

          (c) A State from which acceptance of jurisdiction is required 
        under article 12.

    3. The Prosecutor may seek a ruling from the Court regarding a 
question of jurisdiction or admissibility. In proceedings with respect 
to jurisdiction or admissibility, those who have referred the situation 
under article 13, as well as victims, may also submit observations to 
the Court.

    4. The admissibility of a case or the jurisdiction of the Court may 
be challenged only once by any person or State referred to in paragraph 
2. The challenge shall take place prior to or at the commencement of 
the trial. In exceptional circumstances, the Court may grant leave for 
a challenge to be brought more than once or at a time later than the 
commencement of the trial. Challenges to the admissibility of a case, 
at the commencement of a trial, or subsequently with the leave of the 
Court, may be based only on article 17, paragraph 1 (c).

    5. A State referred to in paragraph 2 (b) and (c) shall make a 
challenge at the earliest opportunity.

    6. Prior to the confirmation of the charges, challenges to the 
admissibility of a case or challenges to the jurisdiction of the Court 
shall be referred to the Pre-Trial Chamber. After confirmation of the 
charges, they shall be referred to the Trial Chamber. Decisions with 
respect to jurisdiction or admissibility may be appealed to the Appeals 
Chamber in accordance with article 82.

    7. If a challenge is made by a State referred to in paragraph 2 (b) 
or (c), the Prosecutor shall suspend the investigation until such time 
as the Court makes a determination in accordance with article 17.

    8. Pending a ruling by the Court, the Prosecutor may seek authority 
from the Court:

          (a) To pursue necessary investigative steps of the kind 
        referred to in article 18, paragraph 6;

          (b) To take a statement or testimony from a witness or 
        complete the collection and examination of evidence which had 
        begun prior to the making of the challenge; and

          (c) In cooperation with the relevant States, to prevent the 
        absconding of persons in respect of whom the Prosecutor has 
        already requested a warrant of arrest under article 58.

    9. The making of challenge shall not affect the validity of any act 
performed by the Prosecutor or any order or warrant issued by the Court 
prior to the making of the challenge.

    10. If the Court has decided that a case is inadmissible under 
article 17, the Prosecutor may submit a request for a review of the 
decision when he or she is fully satisfied that new facts have arisen 
which negate the basis on which the case had previously been found 
inadmissible under article 17.

    11. If the Prosecutor, having regard to the matters referred to in 
article 17, defers an investigation, the Prosecutor may request that 
the relevant State make available to the Prosecutor information on the 
proceedings. That information shall, at the request of the State 
concerned, be confidential. If the Prosecutor thereafter decides to 
proceed with an investigation, he or she shall notify the State in 
respect of the proceedings of which deferral has taken place.

                               Article 20

                             Ne bis in idem

    1. Except as provided in this Statute, no person shall be tried 
before the Court with respect to conduct which formed the basis of 
crimes for which the person has been convicted or acquitted by the 
Court.

    2. No person shall be tried before another court for a crime 
referred to in article 5 for which that person has already been 
convicted or acquitted by the Court.

    3. No person who has been tried by another court for conduct also 
proscribed under articles 6, 7 or 8 shall be tried by the Court with 
respect to the same conduct unless the proceedings in the other court:

          (a) Were for the purpose of shielding the person concerned 
        from criminal responsibility for crimes within the jurisdiction 
        of the Court; or

          (b) Otherwise were not conducted independently or impartially 
        in accordance with the norms of due process recognized by 
        international law and were conducted in a manner which, in the 
        circumstances, was inconsistent with an intent to bring the 
        person concerned to justice.

                               Article 21

                             Applicable law

    1. The Court shall apply:

          (a) In the first place, this Statute, Elements of Crimes and 
        its Rules of Procedure and Evidence;

          (b) In the second place, where appropriate, applicable 
        treaties and the principles and rules of international law, 
        including the established principles of the international law 
        of armed conflict;

          (c) Failing that, general principles of law derived by the 
        Court from national laws of legal systems of the world 
        including, as appropriate, the national laws of States that 
        would normally exercise jurisdiction over the crime, provided 
        that those principles are not inconsistent with this Statute 
        and with international law and internationally recognized norms 
        and standards.

    2. The Court may apply principles and rules of law as interpreted 
in its previous decisions.

    3. The application and interpretation of law pursuant to this 
article must be consistent with internationally recognized human 
rights, and be without any adverse distinction founded on grounds such 
as gender, as defined in article 7, paragraph 3, age, race, colour, 
language, religion or belief, political or other opinion, national, 
ethnic or social origin, wealth, birth or other status.

               PART 3. GENERAL PRINCIPLES OF CRIMINAL LAW

                               Article 22

                        Nullum crimen sine lege

    1. A person shall not be criminally responsible under this Statute 
unless the conduct in question constitutes, at the time it takes place, 
a crime within the jurisdiction of the Court.

    2. The definition of a crime shall be strictly construed and shall 
not be extended by analogy. In case of ambiguity, the definition shall 
be interpreted in favour of the person being investigated, prosecuted 
or convicted.

    3. This article shall not affect the characterization of any 
conduct as criminal under international law independently of this 
Statute.

                               Article 23

                         Nulla poena sine lege

    A person convicted by the Court may be punished only in accordance 
with this Statute.

                               Article 24

                   Non-retroactivity ratione personae

    1. No person shall be criminally responsible under this Statute for 
conduct prior to the entry into force of the Statute.

    2. In the event of a change in the law applicable to a given case 
prior to a final judgement, the law more favourable to the person being 
investigated, prosecuted or convicted shall apply.

                               Article 25

                   Individual criminal responsibility

    1. The Court shall have jurisdiction over natural persons pursuant 
to this Statute.

    2. A person who commits a crime within the jurisdiction of the 
Court shall be individually responsible and liable for punishment in 
accordance with this Statute.

    3. In accordance with this Statute, a person shall be criminally 
responsible and liable for punishment for a crime within the 
jurisdiction of the Court if that person:

          (a) Commits such a crime, whether as an individual, jointly 
        with another or through another person, regardless of whether 
        that other person is criminally responsible;

          (b) Orders, solicits or induces the commission of such a 
        crime which in fact occurs or is attempted;

          (c) For the purpose of facilitating the commission of such a 
        crime, aids, abets or otherwise assists in its commission or 
        its attempted commission, including providing the means for its 
        commission;

          (d) In any other way contributes to the commission or 
        attempted commission of such a crime by a group of persons 
        acting with a common purpose. Such contribution shall be 
        intentional and shall either:

                  (i) Be made with the aim of furthering the criminal 
                activity or criminal purpose of the group, where such 
                activity or purpose involves the commission of a crime 
                within the jurisdiction of the Court; or

                  (ii) Be made in the knowledge of the intention of the 
                group to commit the crime;

          (e) In respect of the crime of genocide, directly and 
        publicly incites others to commit genocide;

          (f) Attempts to commit such a crime by taking action that 
        commences its execution by means of a substantial step, but the 
        crime does not occur because of circumstances independent of 
        the person's intentions. However, a person who abandons the 
        effort to commit the crime or otherwise prevents the completion 
        of the crime shall not be liable for punishment under this 
        Statute for the attempt to commit that crime if that person 
        completely and voluntarily gave up the criminal purpose.

    4. No provision in this Statute relating to individual criminal 
responsibility shall affect the responsibility of States under 
international law.

                               Article 26

          Exclusion of jurisdiction over persons under eighteen

    The Court shall have no jurisdiction over any person who was under 
the age of 18 at the time of the alleged commission of a crime.

                               Article 27

                    Irrelevance of official capacity

    1. This Statute shall apply equally to all persons without any 
distinction based on official capacity. In particular, official 
capacity as a Head of State or Government, a member of a Government or 
parliament, an elected representative or a government official shall in 
no case exempt a person from criminal responsibility under this 
Statute, nor shall it, in and of itself, constitute a ground for 
reduction of sentence.

    2. Immunities or special procedural rules which may attach to the 
official capacity of a person, whether under national or international 
law, shall not bar the Court from exercising its jurisdiction over such 
a person.

                               Article 28

            Responsibility of commanders and other superiors

    In addition to other grounds of criminal responsibility under this 
Statute for crimes within the jurisdiction of the Court:

    1. A military commander or person effectively acting as a military 
commander shall be criminally responsible for crimes within the 
jurisdiction of the Court committed by forces under his or her 
effective command and control, or effective authority and control as 
the case may be, as a result of his or her failure to exercise control 
properly over such forces, where:

          (a) That military commander or person either knew or, owing 
        to the circumstances at the time, should have known that the 
        forces were committing or about to commit such crimes; and

          (b) That military commander or person failed 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.

    2. With respect to superior and subordinate relationships not 
described in paragraph 1, a superior shall be criminally responsible 
for crimes within the jurisdiction of the Court committed by 
subordinates under his or her effective authority and control, as a 
result of his or her failure to exercise control properly over such 
subordinates, where:

          (a) The superior either knew, or consciously disregarded 
        information which clearly indicated, that the subordinates were 
        committing or about to commit such crimes;

          (b) The crimes concerned activities that were within the 
        effective responsibility and control of the superior; and

          (c) The superior failed 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.

                               Article 29

              Non-applicability of statute of limitations

    The crimes within the jurisdiction of the Court shall not be 
subject to any statute of limitations.

                               Article 30

                             Mental element

    1. Unless otherwise provided, a person shall be criminally 
responsible and liable for punishment for a crime within the 
jurisdiction of the Court only if the material elements are committed 
with intent and knowledge.

    2. For the purposes of this article, a person has intent where:

          (a) In relation to conduct, that person means to engage in 
        the conduct;

          (b) In relation to a consequence, that person means to cause 
        that consequence or is aware that it will occur in the ordinary 
        course of events.

    3. For the purposes of this article, ``knowledge'' means awareness 
that a circumstance exists or a consequence will occur in the ordinary 
course of events. ``Know'' and ``knowingly'' shall be construed 
accordingly.

                               Article 31

             Grounds for excluding criminal responsibility

    1. In addition to other grounds for excluding criminal 
responsibility provided for in this Statute, a person shall not be 
criminally responsible if, at the time of that person's conduct:

          (a) The person suffers from a mental disease or defect that 
        destroys that person's capacity to appreciate the unlawfulness 
        or nature of his or her conduct, or capacity to control his or 
        her conduct to conform to the requirements of law;

          (b) The person is in a state of intoxication that destroys 
        that person's capacity to appreciate the unlawfulness or nature 
        of his or her conduct, or capacity to control his or her 
        conduct to conform to the requirements of law, unless the 
        person has become voluntarily intoxicated under such 
        circumstances that the person knew, or disregarded the risk, 
        that, as a result of the intoxication, he or she was likely to 
        engage in conduct constituting a crime within the jurisdiction 
        of the Court;

          (c) The person acts reasonably to defend himself or herself 
        or another person or, in the case of war crimes, property which 
        is essential for the survival of the person or another person 
        or property which is essential for accomplishing a military 
        mission, against an imminent and unlawful use of force in a 
        manner proportionate to the degree of danger to the person or 
        the other person or property protected. The fact that the 
        person was involved in a defensive operation conducted by 
        forces shall not in itself constitute a ground for excluding 
        criminal responsibility under this subparagraph;

          (d) The conduct which is alleged to constitute a crime within 
        the jurisdiction of the Court has been caused by duress 
        resulting from a threat of imminent death or of continuing or 
        imminent serious bodily harm against that person or another 
        person, and the person acts necessarily and reasonably to avoid 
        this threat, provided that the person does not intend to cause 
        a greater harm than the one sought to be avoided. Such a threat 
        may either be:

                  (i) Made by other persons; or

                  (ii) Constituted by other circumstances beyond that 
                person's control.

    2. The Court shall determine the applicability of the grounds for 
excluding criminal responsibility provided for in this Statute to the 
case before it.

    3. At trial, the Court may consider a ground for excluding criminal 
responsibility other than those referred to in paragraph 1 where such a 
ground is derived from applicable law as set forth in article 21. The 
procedures relating to the consideration of such a ground shall be 
provided for in the Rules of Procedure and Evidence.

                               Article 32

                    Mistake of fact or mistake of law

    1. A mistake of fact shall be a ground for excluding criminal 
responsibility only if it negates the mental element required by the 
crime.

    2. A mistake of law as to whether a particular type of conduct is a 
crime within the jurisdiction of the Court shall not be a ground for 
excluding criminal responsibility. A mistake of law may, however, be a 
ground for excluding criminal responsibility if it negates the mental 
element required by such a crime, or as provided for in article 33.

                               Article 33

                Superior orders and prescription of law

    1. The fact that a crime within the jurisdiction of the Court has 
been committed by a person pursuant to an order of a Government or of a 
superior, whether military or civilian, shall not relieve that person 
of criminal responsibility unless:

          (a) The person was under a legal obligation to obey orders of 
        the Government or the superior in question;

          (b) The person did not know that the order was unlawful; and

          (c) The order was not manifestly unlawful.

    2. For the purposes of this article, orders to commit genocide or 
crimes against humanity are manifestly unlawful.

          PART 4. COMPOSITION AND ADMINISTRATION OF THE COURT

                               Article 34

                          Organs of the Court

    The Court shall be composed of the following organs:

          (a) The Presidency;

          (b) An Appeals Division, a Trial Division and a Pre-Trial 
        Division;

          (c) The Office of the Prosecutor;

          (d) The Registry.

                               Article 35

                           Service of judges

    1. All judges shall be elected as full-time members of the Court 
and shall be available to serve on that basis from the commencement of 
their terms of office.

    2. The judges composing the Presidency shall serve on a full-time 
basis as soon as they are elected.

    3. The Presidency may, on the basis of the workload of the Court 
and in consultation with its members, decide from time to time to what 
extent the remaining judges shall be required to serve on a full-time 
basis. Any such arrangement shall be without prejudice to the 
provisions of article 40.

    4. The financial arrangements for judges not required to serve on a 
full-time basis shall be made in accordance with article 49.

                               Article 36

           Qualifications, nomination and election of judges

    1. Subject to the provisions of paragraph 2, there shall be 18 
judges of the Court.

    2. (a) The Presidency, acting on behalf of the Court, may propose 
an increase in the number of judges specified in paragraph 1, 
indicating the reasons why this is considered necessary and 
appropriate. The Registrar shall promptly circulate any such proposal 
to all States Parties.

          (b) Any such proposal shall then be considered at a meeting 
        of the Assembly of States Parties to be convened in accordance 
        with article 112. The proposal shall be considered adopted if 
        approved at the meeting by a vote of two-thirds of the members 
        of the Assembly of States Parties and shall enter into force at 
        such time as decided by the Assembly of States Parties.

          (c) (i) Once a proposal for an increase in the number of 
        judges has been adopted under subparagraph (b), the election of 
        the additional judges shall take place at the next session of 
        the Assembly of States Parties in accordance with paragraphs 3 
        to 8 inclusive, and article 37, paragraph 2;

                  (ii) Once a proposal for an increase in the number of 
                judges has been adopted and brought into effect under 
                subparagraphs (b) and (c) (i), it shall be open to the 
                Presidency at any time thereafter, if the workload of 
                the Court justifies it, to propose a reduction in the 
                number of judges, provided that the number of judges 
                shall not be reduced below that specified in paragraph 
                1. The proposal shall be dealt with in accordance with 
                the procedure laid down in subparagraphs (a) and (b). 
                In the event that the proposal is adopted, the number 
                of judges shall be progressively decreased as the terms 
                of office of serving judges expire, until the necessary 
                number has been reached.

    3. (a) The judges shall be chosen from among persons of high moral 
character, impartiality and integrity who possess the qualifications 
required in their respective States for appointment to the highest 
judicial offices.

          (b) Every candidate for election to the Court shall:

                  (i) Have established competence in criminal law and 
                procedure, and the necessary relevant experience, 
                whether as judge, prosecutor, advocate or in other 
                similar capacity, in criminal proceedings; or

                  (ii) Have established competence in relevant areas of 
                international law such as international humanitarian 
                law and the law of human rights, and extensive 
                experience in a professional legal capacity which is of 
                relevance to the judicial work of the Court;

          (c) Every candidate for election to the Court shall have an 
        excellent knowledge of and be fluent in at least one of the 
        working languages of the Court.

    4. (a) Nominations of candidates for election to the Court may be 
made by any State Party to this Statute, and shall be made either:

                  (i) By the procedure for the nomination of candidates 
                for appointment to the highest judicial offices in the 
                State in question; or

                  (ii) By the procedure provided for the nomination of 
                candidates for the International Court of Justice in 
                the Statute of that Court. Nominations shall be 
                accompanied by a statement in the necessary detail 
                specifying how the candidate fulfils the requirements 
                of paragraph 3.

          (b) Each State Party may put forward one candidate for any 
        given election who need not necessarily be a national of that 
        State Party but shall in any case be a national of a State 
        Party.

          (c) The Assembly of States Parties may decide to establish, 
        if appropriate, an Advisory Committee on nominations. In that 
        event, the Committee's composition and mandate shall be 
        established by the Assembly of States Parties.

    5. For the purposes of the election, there shall be two lists of 
candidates:

          List A containing the names of candidates with the 
        qualifications specified in paragraph 3 (b) (i); and

          List B containing the names of candidates with the 
        qualifications specified in paragraph 3 (b) (ii).

    A candidate with sufficient qualifications for both lists may 
choose on which list to appear. At the first election to the Court, at 
least nine judges shall be elected from list A and at least five judges 
from list B. Subsequent elections shall be so organized as to maintain 
the equivalent proportion on the Court of judges qualified on the two 
lists.

    6. (a) The judges shall be elected by secret ballot at a meeting of 
the Assembly of States Parties convened for that purpose under article 
112. Subject to paragraph 7, the persons elected to the Court shall be 
the 18 candidates who obtain the highest number of votes and a two-
thirds majority of the States Parties present and voting.

          (b) In the event that a sufficient number of judges is not 
        elected on the first ballot, successive ballots shall be held 
        in accordance with the procedures laid down in subparagraph (a) 
        until the remaining places have been filled.

    7. No two judges may be nationals of the same State. A person who, 
for the purposes of membership in the Court, could be regarded as a 
national of more than one State shall be deemed to be a national of the 
State in which that person ordinarily exercises civil and political 
rights.

    8. (a) The States Parties shall, in the selection of judges, take 
into account the need, within the membership of the Court, for:

                  (i) The representation of the principal legal systems 
                of the world;

                  (ii) Equitable geographical representation; and

                  (iii) A fair representation of female and male 
                judges.

          (b) States Parties shall also take into account the need to 
        include judges with legal expertise on specific issues, 
        including, but not limited to, violence against women or 
        children.

    9. (a) Subject to subparagraph (b), judges shall hold office for a 
term of nine years and, subject to subparagraph (c) and to article 37, 
paragraph 2, shall not be eligible for re-election.

          (b) At the first election, one third of the judges elected 
        shall be selected by lot to serve for a term of three years; 
        one third of the judges elected shall be selected by lot to 
        serve for a term of six years; and the remainder shall serve 
        for a term of nine years.

          (c) A judge who is selected to serve for a term of three 
        years under subparagraph (b) shall be eligible for re-election 
        for a full term.

    10. Notwithstanding paragraph 9, a judge assigned to a Trial or 
Appeals Chamber in accordance with article 39 shall continue in office 
to complete any trial or appeal the hearing of which has already 
commenced before that Chamber.

                               Article 37

                           Judicial vacancies

    1. In the event of a vacancy, an election shall be held in 
accordance with article 36 to fill the vacancy.

    2. A judge elected to fill a vacancy shall serve for the remainder 
of the predecessor's term and, if that period is three years or less, 
shall be eligible for re-election for a full term under article 36.

                               Article 38

                             The Presidency

    1. The President and the First and Second Vice-Presidents shall be 
elected by an absolute majority of the judges. They shall each serve 
for a term of three years or until the end of their respective terms of 
office as judges, whichever expires earlier. They shall be eligible for 
re-election once.

    2. The First Vice-President shall act in place of the President in 
the event that the President is unavailable or disqualified. The Second 
Vice-President shall act in place of the President in the event that 
both the President and the First Vice-President are unavailable or 
disqualified.

    3. The President, together with the First and Second Vice-
Presidents, shall constitute the Presidency, which shall be responsible 
for:

          (a) The proper administration of the Court, with the 
        exception of the Office of the Prosecutor; and

          (b) The other functions conferred upon it in accordance with 
        this Statute.

    4. In discharging its responsibility under paragraph 3 (a), the 
Presidency shall coordinate with and seek the concurrence of the 
Prosecutor on all matters of mutual concern.

                               Article 39

                                Chambers

    1. As soon as possible after the election of the judges, the Court 
shall organize itself into the divisions specified in article 34, 
paragraph (b). The Appeals Division shall be composed of the President 
and four other judges, the Trial Division of not less than six judges 
and the Pre-Trial Division of not less than six judges. The assignment 
of judges to divisions shall be based on the nature of the functions to 
be performed by each division and the qualifications and experience of 
the judges elected to the Court, in such a way that each division shall 
contain an appropriate combination of expertise in criminal law and 
procedure and in international law. The Trial and Pre-Trial Divisions 
shall be composed predominantly of judges with criminal trial 
experience.

    2. (a) The judicial functions of the Court shall be carried out in 
each division by Chambers.

          (b) (i) The Appeals Chamber shall be composed of all the 
        judges of the Appeals Division;

                  (ii) The functions of the Trial Chamber shall be 
                carried out by three judges of the Trial Division; 
                (iii) The functions of the Pre-Trial Chamber shall be 
                carried out either by three judges of the Pre-Trial 
                Division or by a single judge of that division in 
                accordance with this Statute and the Rules of Procedure 
                and Evidence;

          (c) Nothing in this paragraph shall preclude the simultaneous 
        constitution of more than one Trial Chamber or Pre-Trial 
        Chamber when the efficient management of the Court's workload 
        so requires.

    3. (a) Judges assigned to the Trial and Pre-Trial Divisions shall 
serve in those divisions for a period of three years, and thereafter 
until the completion of any case the hearing of which has already 
commenced in the division concerned.

          (b) Judges assigned to the Appeals Division shall serve in 
        that division for their entire term of office.

    4. Judges assigned to the Appeals Division shall serve only in that 
division. Nothing in this article shall, however, preclude the 
temporary attachment of judges from the Trial Division to the Pre-Trial 
Division or vice versa, if the Presidency considers that the efficient 
management of the Court's workload so requires, provided that under no 
circumstances shall a judge who has participated in the pre-trial phase 
of a case be eligible to sit on the Trial Chamber hearing that case.

                               Article 40

                       Independence of the judges

    1. The judges shall be independent in the performance of their 
functions.

    2. Judges shall not engage in any activity which is likely to 
interfere with their judicial functions or to affect confidence in 
their independence.

    3. Judges required to serve on a full-time basis at the seat of the 
Court shall not engage in any other occupation of a professional 
nature.

    4. Any question regarding the application of paragraphs 2 and 3 
shall be decided by an absolute majority of the judges. Where any such 
question concerns an individual judge, that judge shall not take part 
in the decision.

                               Article 41

                Excusing and disqualification of judges

    1. The Presidency may, at the request of a judge, excuse that judge 
from the exercise of a function under this Statute, in accordance with 
the Rules of Procedure and Evidence.

    2. (a) A judge shall not participate in any case in which his or 
her impartiality might reasonably be doubted on any ground. A judge 
shall be disqualified from a case in accordance with this paragraph if, 
inter alia, that judge has previously been involved in any capacity in 
that case before the Court or in a related criminal case at the 
national level involving the person being investigated or prosecuted. A 
judge shall also be disqualified on such other grounds as may be 
provided for in the Rules of Procedure and Evidence.

          (b) The Prosecutor or the person being investigated or 
        prosecuted may request the disqualification of a judge under 
        this paragraph.

          (c) Any question as to the disqualification of a judge shall 
        be decided by an absolute majority of the judges. The 
        challenged judge shall be entitled to present his or her 
        comments on the matter, but shall not take part in the 
        decision.

                               Article 42

                      The Office of the Prosecutor

    1. The Office of the Prosecutor shall act independently as a 
separate organ of the Court. It shall be responsible for receiving 
referrals and any substantiated information on crimes within the 
jurisdiction of the Court, for examining them and for conducting 
investigations and prosecutions before the Court. A member of the 
Office shall not seek or act on instructions from any external source.

    2. The Office shall be headed by the Prosecutor. The Prosecutor 
shall have full authority over the management and administration of the 
Office, including the staff, facilities and other resources thereof. 
The Prosecutor shall be assisted by one or more Deputy Prosecutors, who 
shall be entitled to carry out any of the acts required of the 
Prosecutor under this Statute. The Prosecutor and the Deputy 
Prosecutors shall be of different nationalities. They shall serve on a 
full-time basis.

    3. The Prosecutor and the Deputy Prosecutors shall be persons of 
high moral character, be highly competent in and have extensive 
practical experience in the prosecution or trial of criminal cases. 
They shall have an excellent knowledge of and be fluent in at least one 
of the working languages of the Court.

    4. The Prosecutor shall be elected by secret ballot by an absolute 
majority of the members of the Assembly of States Parties. The Deputy 
Prosecutors shall be elected in the same way from a list of candidates 
provided by the Prosecutor. The Prosecutor shall nominate three 
candidates for each position of Deputy Prosecutor to be filled. Unless 
a shorter term is decided upon at the time of their election, the 
Prosecutor and the Deputy Prosecutors shall hold office for a term of 
nine years and shall not be eligible for re-election.

    5. Neither the Prosecutor nor a Deputy Prosecutor shall engage in 
any activity which is likely to interfere with his or her prosecutorial 
functions or to affect confidence in his or her independence. They 
shall not engage in any other occupation of a professional nature.

    6. The Presidency may excuse the Prosecutor or a Deputy Prosecutor, 
at his or her request, from acting in a particular case.

    7. Neither the Prosecutor nor a Deputy Prosecutor shall participate 
in any matter in which their impartiality might reasonably be doubted 
on any ground. They shall be disqualified from a case in accordance 
with this paragraph if, inter alia, they have previously been involved 
in any capacity in that case before the Court or in a related criminal 
case at the national level involving the person being investigated or 
prosecuted.

    8. Any question as to the disqualification of the Prosecutor or a 
Deputy Prosecutor shall be decided by the Appeals Chamber.

          (a) The person being investigated or prosecuted may at any 
        time request the disqualification of the Prosecutor or a Deputy 
        Prosecutor on the grounds set out in this article;

          (b) The Prosecutor or the Deputy Prosecutor, as appropriate, 
        shall be entitled to present his or her comments on the matter;

    9. The Prosecutor shall appoint advisers with legal expertise on 
specific issues, including, but not limited to, sexual and gender 
violence and violence against children.

                               Article 43

                              The Registry

    1. The Registry shall be responsible for the non-judicial aspects 
of the administration and servicing of the Court, without prejudice to 
the functions and powers of the Prosecutor in accordance with article 
42.

    2. The Registry shall be headed by the Registrar, who shall be the 
principal administrative officer of the Court. The Registrar shall 
exercise his or her functions under the authority of the President of 
the Court.

    3. The Registrar and the Deputy Registrar shall be persons of high 
moral character, be highly competent and have an excellent knowledge of 
and be fluent in at least one of the working languages of the Court.

    4. The judges shall elect the Registrar by an absolute majority by 
secret ballot, taking into account any recommendation by the Assembly 
of States Parties. If the need arises and upon the recommendation of 
the Registrar, the judges shall elect, in the same manner, a Deputy 
Registrar.

    5. The Registrar shall hold office for a term of five years, shall 
be eligible for re-election once and shall serve on a full-time basis. 
The Deputy Registrar shall hold office for a term of five years or such 
shorter term as may be decided upon by an absolute majority of the 
judges, and may be elected on the basis that the Deputy Registrar shall 
be called upon to serve as required.

    6. The Registrar shall set up a Victims and Witnesses Unit within 
the Registry. This Unit shall provide, in consultation with the Office 
of the Prosecutor, protective measures and security arrangements, 
counselling and other appropriate assistance for witnesses, victims who 
appear before the Court and others who are at risk on account of 
testimony given by such witnesses. The Unit shall include staff with 
expertise in trauma, including trauma related to crimes of sexual 
violence.

                               Article 44

                                 Staff

    1. The Prosecutor and the Registrar shall appoint such qualified 
staff as may be required to their respective offices. In the case of 
the Prosecutor, this shall include the appointment of investigators.

    2. In the employment of staff, the Prosecutor and the Registrar 
shall ensure the highest standards of efficiency, competency and 
integrity, and shall have regard, mutatis mutandis, to the criteria set 
forth in article 36, paragraph 8.

    3. The Registrar, with the agreement of the Presidency and the 
Prosecutor, shall propose Staff Regulations which include the terms and 
conditions upon which the staff of the Court shall be appointed, 
remunerated and dismissed. The Staff Regulations shall be approved by 
the Assembly of States Parties.

    4. The Court may, in exceptional circumstances, employ the 
expertise of gratis personnel offered by States Parties, 
intergovernmental organizations or non-governmental organizations to 
assist with the work of any of the organs of the Court. The Prosecutor 
may accept any such offer on behalf of the Office of the Prosecutor. 
Such gratis personnel shall be employed in accordance with guidelines 
to be established by the Assembly of States Parties.

                               Article 45

                           Solemn undertaking

    Before taking up their respective duties under this Statute, the 
judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the 
Deputy Registrar shall each make a solemn undertaking in open court to 
exercise his or her respective functions impartially and 
conscientiously.

                               Article 46

                          Removal from office

    1. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or 
the Deputy Registrar shall be removed from office if a decision to this 
effect is made in accordance with paragraph 2, in cases where that 
person:

          (a) Is found to have committed serious misconduct or a 
        serious breach of his or her duties under this Statute, as 
        provided for in the Rules of Procedure and Evidence; or

          (b) Is unable to exercise the functions required by this 
        Statute.

    2. A decision as to the removal from office of a judge, the 
Prosecutor or a Deputy Prosecutor under paragraph 1 shall be made by 
the Assembly of States Parties, by secret ballot:

          (a) In the case of a judge, by a two-thirds majority of the 
        States Parties upon a recommendation adopted by a two-thirds 
        majority of the other judges;

          (b) In the case of the Prosecutor, by an absolute majority of 
        the States Parties;

          (c) In the case of a Deputy Prosecutor, by an absolute 
        majority of the States Parties upon the recommendation of the 
        Prosecutor.

    3. A decision as to the removal from office of the Registrar or 
Deputy Registrar shall be made by an absolute majority of the judges.

    4. A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy 
Registrar whose conduct or ability to exercise the functions of the 
office as required by this Statute is challenged under this article 
shall have full opportunity to present and receive evidence and to make 
submissions in accordance with the Rules of Procedure and Evidence. The 
person in question shall not otherwise participate in the consideration 
of the matter.

                               Article 47

                         Disciplinary measures

    A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy 
Registrar who has committed misconduct of a less serious nature than 
that set out in article 46, paragraph 1, shall be subject to 
disciplinary measures, in accordance with the Rules of Procedure and 
Evidence.

                               Article 48

                       Privileges and immunities

    1. The Court shall enjoy in the territory of each State Party such 
privileges and immunities as are necessary for the fulfilment of its 
purposes.

    2. The judges, the Prosecutor, the Deputy Prosecutors and the 
Registrar shall, when engaged on or with respect to the business of the 
Court, enjoy the same privileges and immunities as are accorded to 
heads of diplomatic missions and shall, after the expiry of their terms 
of office, continue to be accorded immunity from legal process of every 
kind in respect of words spoken or written and acts performed by them 
in their official capacity.

    3. The Deputy Registrar, the staff of the Office of the Prosecutor 
and the staff of the Registry shall enjoy the privileges and immunities 
and facilities necessary for the performance of their functions, in 
accordance with the agreement on the privileges and immunities of the 
Court.

    4. Counsel, experts, witnesses or any other person required to be 
present at the seat of the Court shall be accorded such treatment as is 
necessary for the proper functioning of the Court, in accordance with 
the agreement on the privileges and immunities of the Court.

    5. The privileges and immunities of:(a) A judge or the Prosecutor 
may be waived by an absolute majority of the judges;

          (b) The Registrar may be waived by the Presidency;

          (c) The Deputy Prosecutors and staff of the Office of the 
        Prosecutor may be waived by the Prosecutor;

          (d) The Deputy Registrar and staff of the Registry may be 
        waived by the Registrar.

                               Article 49

                   Salaries, allowances and expenses

    The judges, the Prosecutor, the Deputy Prosecutors, the Registrar 
and the Deputy Registrar shall receive such salaries, allowances and 
expenses as may be decided upon by the Assembly of States Parties. 
These salaries and allowances shall not be reduced during their terms 
of office.

                               Article 50

                     Official and working languages

    1. The official languages of the Court shall be Arabic, Chinese, 
English, French, Russian and Spanish. The judgements of the Court, as 
well as other decisions resolving fundamental issues before the Court, 
shall be published in the official languages. The Presidency shall, in 
accordance with the criteria established by the Rules of Procedure and 
Evidence, determine which decisions may be considered as resolving 
fundamental issues for the purposes of this paragraph.

    2. The working languages of the Court shall be English and French. 
The Rules of Procedure and Evidence shall determine the cases in which 
other official languages may be used as working languages.

    3. At the request of any party to a proceeding or a State allowed 
to intervene in a proceeding, the Court shall authorize a language 
other than English or French to be used by such a party or State, 
provided that the Court considers such authorization to be adequately 
justified.

                               Article 51

                    Rules of Procedure and Evidence

    1. The Rules of Procedure and Evidence shall enter into force upon 
adoption by a two-thirds majority of the members of the Assembly of 
States Parties.

    2. Amendments to the Rules of Procedure and Evidence may be 
proposed by:

          (a) Any State Party;

          (b) The judges acting by an absolute majority; or

          (c) The Prosecutor.

    Such amendments shall enter into force upon adoption by a two-
thirds majority of the members of the Assembly of States Parties.

    3. After the adoption of the Rules of Procedure and Evidence, in 
urgent cases where the Rules do not provide for a specific situation 
before the Court, the judges may, by a two-thirds majority, draw up 
provisional Rules to be applied until adopted, amended or rejected at 
the next ordinary or special session of the Assembly of States Parties.

    4. The Rules of Procedure and Evidence, amendments thereto and any 
provisional Rule shall be consistent with this Statute. Amendments to 
the Rules of Procedure and Evidence as well as provisional Rules shall 
not be applied retroactively to the detriment of the person who is 
being investigated or prosecuted or who has been convicted.

    5. In the event of conflict between the Statute and the Rules of 
Procedure and Evidence, the Statute shall prevail.

                               Article 52

                        Regulations of the Court

    1. The judges shall, in accordance with this Statute and the Rules 
of Procedure and Evidence, adopt, by an absolute majority, the 
Regulations of the Court necessary for its routine functioning.

    2. The Prosecutor and the Registrar shall be consulted in the 
elaboration of the Regulations and any amendments thereto.

    3. The Regulations and any amendments thereto shall take effect 
upon adoption unless otherwise decided by the judges. Immediately upon 
adoption, they shall be circulated to States Parties for comments. If 
within six months there are no objections from a majority of States 
Parties, they shall remain in force.

                 PART 5. INVESTIGATION AND PROSECUTION

                               Article 53

                     Initiation of an investigation

    1. The Prosecutor shall, having evaluated the information made 
available to him or her, initiate an investigation unless he or she 
determines that there is no reasonable basis to proceed under this 
Statute. In deciding whether to initiate an investigation, the 
Prosecutor shall consider whether:

          (a) The information available to the Prosecutor provides a 
        reasonable basis to believe that a crime within the 
        jurisdiction of the Court has been or is being committed;

          (b) The case is or would be admissible under article 17; and

          (c) Taking into account the gravity of the crime and the 
        interests of victims, there are nonetheless substantial reasons 
        to believe that an investigation would not serve the interests 
        of justice.

    If the Prosecutor determines that there is no reasonable basis to 
proceed and his or her determination is based solely on subparagraph 
(c) above, he or she shall inform the Pre-Trial Chamber.

    2. If, upon investigation, the Prosecutor concludes that there is 
not a sufficient basis for a prosecution because:

          (a) There is not a sufficient legal or factual basis to seek 
        a warrant or summons under article 58;

          (b) The case is inadmissible under article 17; or

          (c) A prosecution is not in the interests of justice, taking 
        into account all the circumstances, including the gravity of 
        the crime, the interests of victims and the age or infirmity of 
        the alleged perpetrator, and his or her role in the alleged 
        crime;

    The Prosecutor shall inform the Pre-Trial Chamber and the State 
making a referral under article 14 or the Security Council in a case 
under article 13, paragraph (b), of his or her conclusion and the 
reasons for the conclusion.

    3. (a) At the request of the State making a referral under article 
14 or the Security Council under article 13, paragraph (b), the Pre-
Trial Chamber may review a decision of the Prosecutor under paragraph 1 
or 2 not to proceed and may request the Prosecutor to reconsider that 
decision.

          (b) In addition, the Pre-Trial Chamber may, on its own 
        initiative, review a decision of the Prosecutor not to proceed 
        if it is based solely on paragraph 1 (c) or 2 (c). In such a 
        case, the decision of the Prosecutor shall be effective only if 
        confirmed by the Pre-Trial Chamber.

    4. The Prosecutor may, at any time, reconsider a decision whether 
to initiate an investigation or prosecution based on new facts or 
information.

                               Article 54

   Duties and powers of the Prosecutor with respect to investigations

    1. The Prosecutor shall:

          (a) In order to establish the truth, extend the investigation 
        to cover all facts and evidence relevant to an assessment of 
        whether there is criminal responsibility under this Statute, 
        and, in doing so, investigate incriminating and exonerating 
        circumstances equally;

          (b) Take appropriate measures to ensure the effective 
        investigation and prosecution of crimes within the jurisdiction 
        of the Court, and in doing so, respect the interests and 
        personal circumstances of victims and witnesses, including age, 
        gender as defined in article 7, paragraph 3, and health, and 
        take into account the nature of the crime, in particular where 
        it involves sexual violence, gender violence or violence 
        against children; and

          (c) Fully respect the rights of persons arising under this 
        Statute.

    2. The Prosecutor may conduct investigations on the territory of a 
State:

          (a) In accordance with the provisions of Part 9; or

          (b) As authorized by the Pre-Trial Chamber under article 57, 
        paragraph 3 (d).

    3. The Prosecutor may:

          (a) Collect and examine evidence;

          (b) Request the presence of and question persons being 
        investigated, victims and witnesses;

          (c) Seek the cooperation of any State or intergovernmental 
        organization or arrangement in accordance with its respective 
        competence and/or mandate;

          (d) Enter into such arrangements or agreements, not 
        inconsistent with this Statute, as may be necessary to 
        facilitate the cooperation of a State, intergovernmental 
        organization or person;

          (e) Agree not to disclose, at any stage of the proceedings, 
        documents or information that the Prosecutor obtains on the 
        condition of confidentiality and solely for the purpose of 
        generating new evidence, unless the provider of the information 
        consents; and

          (f) Take necessary measures, or request that necessary 
        measures be taken, to ensure the confidentiality of 
        information, the protection of any person or the preservation 
        of evidence.

                               Article 55

               Rights of persons during an investigation

    1. In respect of an investigation under this Statute, a person:

          (a) Shall not be compelled to incriminate himself or herself 
        or to confess guilt;

          (b) Shall not be subjected to any form of coercion, duress or 
        threat, to torture or to any other form of cruel, inhuman or 
        degrading treatment or punishment; and

          (c) Shall, if questioned in a language other than a language 
        the person fully understands and speaks, have, free of any 
        cost, the assistance of a competent interpreter and such 
        translations as are necessary to meet the requirements of 
        fairness;

          (d) Shall not be subjected to arbitrary arrest or detention; 
        and shall not be deprived of his or her liberty except on such 
        grounds and in accordance with such procedures as are 
        established in the Statute.

    2. Where there are grounds to believe that a person has committed a 
crime within the jurisdiction of the Court and that person is about to 
be questioned either by the Prosecutor, or by national authorities 
pursuant to a request made under Part 9 of this Statute, that person 
shall also have the following rights of which he or she shall be 
informed prior to being questioned:

          (a) To be informed, prior to being questioned, that there are 
        grounds to believe that he or she has committed a crime within 
        the jurisdiction of the Court;

          (b) To remain silent, without such silence being a 
        consideration in the determination of guilt or innocence;

          (c) To have legal assistance of the person's choosing, or, if 
        the person does not have legal assistance, to have legal 
        assistance assigned to him or her, in any case where the 
        interests of justice so require, and without payment by the 
        person in any such case if the person does not have sufficient 
        means to pay for it;

          (d) To be questioned in the presence of counsel unless the 
        person has voluntarily waived his or her right to counsel.

                               Article 56

  Role of the Pre-Trial Chamber in relation to a unique investigative 
                              opportunity

    1. (a) Where the Prosecutor considers an investigation to present a 
unique opportunity to take testimony or a statement from a witness or 
to examine, collect or test evidence, which may not be available 
subsequently for the purposes of a trial, the Prosecutor shall so 
inform the Pre-Trial Chamber.

          (b) In that case, the Pre-Trial Chamber may, upon request of 
        the Prosecutor, take such measures as may be necessary to 
        ensure the efficiency and integrity of the proceedings and, in 
        particular, to protect the rights of the defence.

          (c) Unless the Pre-Trial Chamber orders otherwise, the 
        Prosecutor shall provide the relevant information to the person 
        who has been arrested or appeared in response to a summons in 
        connection with the investigation referred to in subparagraph 
        (a), in order that he or she may be heard on the matter.

    2. The measures referred to in paragraph 1 (b) may include:

          (a) Making recommendations or orders regarding procedures to 
        be followed;

          (b) Directing that a record be made of the proceedings;

          (c) Appointing an expert to assist;

          (d) Authorizing counsel for a person who has been arrested, 
        or appeared before the Court in response to a summons, to 
        participate, or where there has not yet been such an arrest or 
        appearance or counsel has not been designated, appointing 
        another counsel to attend and represent the interests of the 
        defence;

          (e) Naming one of its members or, if necessary, another 
        available judge of the Pre-Trial or Trial Division to observe 
        and make recommendations or orders regarding the collection and 
        preservation of evidence and the questioning of persons;

          (f) Taking such other action as may be necessary to collect 
        or preserve evidence.

    3. (a) Where the Prosecutor has not sought measures pursuant to 
this article but the Pre-Trial Chamber considers that such measures are 
required to preserve evidence that it deems would be essential for the 
defence at trial, it shall consult with the Prosecutor as to whether 
there is good reason for the Prosecutor's failure to request the 
measures. If upon consultation, the Pre-Trial Chamber concludes that 
the Prosecutor's failure to request such measures is unjustified, the 
Pre-Trial Chamber may take such measures on its own initiative.

          (b) A decision of the Pre-Trial Chamber to act on its own 
        initiative under this paragraph may be appealed by the 
        Prosecutor. The appeal shall be heard on an expedited basis.

    4. The admissibility of evidence preserved or collected for trial 
pursuant to this article, or the record thereof, shall be governed at 
trial by article 69, and given such weight as determined by the Trial 
Chamber.

                               Article 57

             Functions and powers of the Pre-Trial Chamber

    1. Unless otherwise provided for in this Statute, the Pre-Trial 
Chamber shall exercise its functions in accordance with the provisions 
of this article.

    2. (a) Orders or rulings of the Pre-Trial Chamber issued under 
articles 15, 18, 19, 54, paragraph 2, 61, paragraph 7, and 72 must be 
concurred in by a majority of its judges.

          (b) In all other cases, a single judge of the Pre-Trial 
        Chamber may exercise the functions provided for in this 
        Statute, unless otherwise provided for in the Rules of 
        Procedure and Evidence or by a majority of the Pre-Trial 
        Chamber.

    3. In addition to its other functions under this Statute, the Pre-
Trial Chamber may:

          (a) At the request of the Prosecutor, issue such orders and 
        warrants as may be required for the purposes of an 
        investigation;

          (b) Upon the request of a person who has been arrested or has 
        appeared pursuant to a summons under article 58, issue such 
        orders, including measures such as those described in article 
        56, or seek such cooperation pursuant to Part 9 as may be 
        necessary to assist the person in the preparation of his or her 
        defence;

          (c) Where necessary, provide for the protection and privacy 
        of victims and witnesses, the preservation of evidence, the 
        protection of persons who have been arrested or appeared in 
        response to a summons, and the protection of national security 
        information;

          (d) Authorize the Prosecutor to take specific investigative 
        steps within the territory of a State Party without having 
        secured the cooperation of that State under Part 9 if, whenever 
        possible having regard to the views of the State concerned, the 
        Pre-Trial Chamber has determined in that case that the State is 
        clearly unable to execute a request for cooperation due to the 
        unavailability of any authority or any component of its 
        judicial system competent to execute the request for 
        cooperation under Part 9.

          (e) Where a warrant of arrest or a summons has been issued 
        under article 58, and having due regard to the strength of the 
        evidence and the rights of the parties concerned, as provided 
        for in this Statute and the Rules of Procedure and Evidence, 
        seek the cooperation of States pursuant to article 93, 
        paragraph 1 (j), to take protective measures for the purpose of 
        forfeiture in particular for the ultimate benefit of victims.

                               Article 58

 Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons 
                               to appear

    1. At any time after the initiation of an investigation, the Pre-
Trial Chamber shall, on the application of the Prosecutor, issue a 
warrant of arrest of a person if, having examined the application and 
the evidence or other information submitted by the Prosecutor, it is 
satisfied that:

          (a) There are reasonable grounds to believe that the person 
        has committed a crime within the jurisdiction of the Court; and

          (b) The arrest of the person appears necessary:

                  (i) To ensure the person's appearance at trial,

                  (ii) To ensure that the person does not obstruct or 
                endanger the investigation or the court proceedings, or

                  (iii) Where applicable, to prevent the person from 
                continuing with the commission of that crime or a 
                related crime which is within the jurisdiction of the 
                Court and which arises out of the same circumstances.

    2. The application of the Prosecutor shall contain:

          (a) The name of the person and any other relevant identifying 
        information;

          (b) A specific reference to the crimes within the 
        jurisdiction of the Court which the person is alleged to have 
        committed;

          (c) A concise statement of the facts which are alleged to 
        constitute those crimes;

          (d) A summary of the evidence and any other information which 
        establish reasonable grounds to believe that the person 
        committed those crimes; and

          (e) The reason why the Prosecutor believes that the arrest of 
        the person is necessary.

    3. The warrant of arrest shall contain:

          (a) The name of the person and any other relevant identifying 
        information;

          (b) A specific reference to the crimes within the 
        jurisdiction of the Court for which the person's arrest is 
        sought; and

          (c) A concise statement of the facts which are alleged to 
        constitute those crimes.

    4. The warrant of arrest shall remain in effect until otherwise 
ordered by the Court.

    5. On the basis of the warrant of arrest, the Court may request the 
provisional arrest or the arrest and surrender of the person under Part 
9.

    6. The Prosecutor may request the Pre-Trial Chamber to amend the 
warrant of arrest by modifying or adding to the crimes specified 
therein. The Pre-Trial Chamber shall so amend the warrant if it is 
satisfied that there are reasonable grounds to believe that the person 
committed the modified or additional crimes.

    7. As an alternative to seeking a warrant of arrest, the Prosecutor 
may submit an application requesting that the Pre-Trial Chamber issue a 
summons for the person to appear. If the Pre-Trial Chamber is satisfied 
that there are reasonable grounds to believe that the person committed 
the crime alleged and that a summons is sufficient to ensure the 
person's appearance, it shall issue the summons, with or without 
conditions restricting liberty (other than detention) if provided for 
by national law, for the person to appear. The summons shall contain:

          (a) The name of the person and any other relevant identifying 
        information;

          (b) The specified date on which the person is to appear;

          (c) A specific reference to the crimes within the 
        jurisdiction of the Court which the person is alleged to have 
        committed; and

          (d) A concise statement of the facts which are alleged to 
        constitute the crime.

    The summons shall be served on the person.

                               Article 59

               Arrest proceedings in the custodial State

    1. A State Party which has received a request for provisional 
arrest or for arrest and surrender shall immediately take steps to 
arrest the person in question in accordance with its laws and the 
provisions of Part 9.

    2. A person arrested shall be brought promptly before the competent 
judicial authority in the custodial State which shall determine, in 
accordance with the law of that State, that:

          (a) The warrant applies to that person;

          (b) The person has been arrested in accordance with the 
        proper process; and

          (c) The person's rights have been respected.

    3. The person arrested shall have the right to apply to the 
competent authority in the custodial State for interim release pending 
surrender.

    4. In reaching a decision on any such application, the competent 
authority in the custodial State shall consider whether, given the 
gravity of the alleged crimes, there are urgent and exceptional 
circumstances to justify interim release and whether necessary 
safeguards exist to ensure that the custodial State can fulfil its duty 
to surrender the person to the Court. It shall not be open to the 
competent authority of the custodial State to consider whether the 
warrant of arrest was properly issued in accordance with article 58, 
paragraph 1 (a) and (b).

    5. The Pre-Trial Chamber shall be notified of any request for 
interim release and shall make recommendations to the competent 
authority in the custodial State. The competent authority in the 
custodial State shall give full consideration to such recommendations, 
including any recommendations on measures to prevent the escape of the 
person, before rendering its decision.

    6. If the person is granted interim release, the Pre-Trial Chamber 
may request periodic reports on the status of the interim release.

    7. Once ordered to be surrendered by the custodial State, the 
person shall be delivered to the Court as soon as possible.

                               Article 60

                  Initial proceedings before the Court

    1. Upon the surrender of the person to the Court, or the person's 
appearance before the Court voluntarily or pursuant to a summons, the 
Pre-Trial Chamber shall satisfy itself that the person has been 
informed of the crimes which he or she is alleged to have committed, 
and of his or her rights under this Statute, including the right to 
apply for interim release pending trial.

    2. A person subject to a warrant of arrest may apply for interim 
release pending trial. If the Pre-Trial Chamber is satisfied that the 
conditions set forth in article 58, paragraph 1, are met, the person 
shall continue to be detained. If it is not so satisfied, the Pre-Trial 
Chamber shall release the person, with or without conditions.

    3. The Pre-Trial Chamber shall periodically review its ruling on 
the release or detention of the person, and may do so at any time on 
the request of the Prosecutor or the person. Upon such review, it may 
modify its ruling as to detention, release or conditions of release, if 
it is satisfied that changed circumstances so require.

    4. The Pre-Trial Chamber shall ensure that a person is not detained 
for an unreasonable period prior to trial due to inexcusable delay by 
the Prosecutor. If such delay occurs, the Court shall consider 
releasing the person, with or without conditions.

    5. If necessary, the Pre-Trial Chamber may issue a warrant of 
arrest to secure the presence of a person who has been released.

                               Article 61

                Confirmation of the charges before trial

    1. Subject to the provisions of paragraph 2, within a reasonable 
time after the person's surrender or voluntary appearance before the 
Court, the Pre-Trial Chamber shall hold a hearing to confirm the 
charges on which the Prosecutor intends to seek trial. The hearing 
shall be held in the presence of the Prosecutor and the person charged, 
as well as his or her counsel.

    2. The Pre-Trial Chamber may, upon request of the Prosecutor or on 
its own motion, hold a hearing in the absence of the person charged to 
confirm the charges on which the Prosecutor intends to seek trial when 
the person has:

          (a) Waived his or her right to be present; or

          (b) Fled or cannot be found and all reasonable steps have 
        been taken to secure his or her appearance before the Court and 
        to inform the person of the charges and that a hearing to 
        confirm those charges will be held.

    In that case, the person shall be represented by counsel where the 
Pre-Trial Chamber determines that it is in the interests of justice.

    3. Within a reasonable time before the hearing, the person shall:

          (a) Be provided with a copy of the document containing the 
        charges on which the Prosecutor intends to bring the person to 
        trial; and

          (b) Be informed of the evidence on which the Prosecutor 
        intends to rely at the hearing.

    The Pre-Trial Chamber may issue orders regarding the disclosure of 
information for the purposes of the hearing.

    4. Before the hearing, the Prosecutor may continue the 
investigation and may amend or withdraw any charges. The person shall 
be given reasonable notice before the hearing of any amendment to or 
withdrawal of charges. In case of a withdrawal of charges, the 
Prosecutor shall notify the Pre-Trial Chamber of the reasons for the 
withdrawal.

    5. At the hearing, the Prosecutor shall support each charge with 
sufficient evidence to establish substantial grounds to believe that 
the person committed the crime charged. The Prosecutor may rely on 
documentary or summary evidence and need not call the witnesses 
expected to testify at the trial.

    6. At the hearing, the person may:

          (a) Object to the charges;

          (b) Challenge the evidence presented by the Prosecutor; and

          (c) Present evidence.

    7. The Pre-Trial Chamber shall, on the basis of the hearing, 
determine whether there is sufficient evidence to establish substantial 
grounds to believe that the person committed each of the crimes 
charged. Based on its determination, the Pre-Trial Chamber shall:

          (a) Confirm those charges in relation to which it has 
        determined that there is sufficient evidence; and commit the 
        person to a Trial Chamber for trial on the charges as 
        confirmed;

          (b) Decline to confirm those charges in relation to which it 
        has determined that there is insufficient evidence;

          (c) Adjourn the hearing and request the Prosecutor to 
        consider:

                  (i) Providing further evidence or conducting further 
                investigation with respect to a particular charge; or

                  (ii) Amending a charge because the evidence submitted 
                appears to establish a different crime within the 
                jurisdiction of the Court.

    8. Where the Pre-Trial Chamber declines to confirm a charge, the 
Prosecutor shall not be precluded from subsequently requesting its 
confirmation if the request is supported by additional evidence.

    9. After the charges are confirmed and before the trial has begun, 
the Prosecutor may, with the permission of the Pre-Trial Chamber and 
after notice to the accused, amend the charges. If the Prosecutor seeks 
to add additional charges or to substitute more serious charges, a 
hearing under this article to confirm those charges must be held. After 
commencement of the trial, the Prosecutor may, with the permission of 
the Trial Chamber, withdraw the charges.

    10. Any warrant previously issued shall cease to have effect with 
respect to any charges which have not been confirmed by the Pre-Trial 
Chamber or which have been withdrawn by the Prosecutor.

    11. Once the charges have been confirmed in accordance with this 
article, the Presidency shall constitute a Trial Chamber which, subject 
to paragraph 8 and to article 64, paragraph 4, shall be responsible for 
the conduct of subsequent proceedings and may exercise any function of 
the Pre-Trial Chamber that is relevant and capable of application in 
those proceedings.

                           PART 6. THE TRIAL

                               Article 62

                             Place of trial

    Unless otherwise decided, the place of the trial shall be the seat 
of the Court.

                               Article 63

                  Trial in the presence of the accused

    1. The accused shall be present during the trial.

    2. If the accused, being present before the Court, continues to 
disrupt the trial, the Trial Chamber may remove the accused and shall 
make provision for him or her to observe the trial and instruct counsel 
from outside the courtroom, through the use of communications 
technology, if required. Such measures shall be taken only in 
exceptional circumstances after other reasonable alternatives have 
proved inadequate, and only for such duration as is strictly required.

                               Article 64

               Functions and powers of the Trial Chamber

    1. The functions and powers of the Trial Chamber set out in this 
article shall be exercised in accordance with this Statute and the 
Rules of Procedure and Evidence.

    2. The Trial Chamber shall ensure that a trial is fair and 
expeditious and is conducted with full respect for the rights of the 
accused and due regard for the protection of victims and witnesses.

    3. Upon assignment of a case for trial in accordance with this 
Statute, the Trial Chamber assigned to deal with the case shall:

          (a) Confer with the parties and adopt such procedures as are 
        necessary to facilitate the fair and expeditious conduct of the 
        proceedings;

          (b) Determine the language or languages to be used at trial; 
        and

          (c) Subject to any other relevant provisions of this Statute, 
        provide for disclosure of documents or information not 
        previously disclosed, sufficiently in advance of the 
        commencement of the trial to enable adequate preparation for 
        trial.

    4. The Trial Chamber may, if necessary for its effective and fair 
functioning, refer preliminary issues to the Pre-Trial Chamber or, if 
necessary, to another available judge of the Pre-Trial Division.

    5. Upon notice to the parties, the Trial Chamber may, as 
appropriate, direct that there be joinder or severance in respect of 
charges against more than one accused.

    6. In performing its functions prior to trial or during the course 
of a trial, the Trial Chamber may, as necessary:

          (a) Exercise any functions of the Pre-Trial Chamber referred 
        to in article 61, paragraph 11;

          (b) Require the attendance and testimony of witnesses and 
        production of documents and other evidence by obtaining, if 
        necessary, the assistance of States as provided in this 
        Statute;

          (c) Provide for the protection of confidential information;

          (d) Order the production of evidence in addition to that 
        already collected prior to the trial or presented during the 
        trial by the parties;

          (e) Provide for the protection of the accused, witnesses and 
        victims; and

          (f) Rule on any other relevant matters.

    7. The trial shall be held in public. The Trial Chamber may, 
however, determine that special circumstances require that certain 
proceedings be in closed session for the purposes set forth in article 
68, or to protect confidential or sensitive information to be given in 
evidence.

    8. (a) At the commencement of the trial, the Trial Chamber shall 
have read to the accused the charges previously confirmed by the Pre-
Trial Chamber. The Trial Chamber shall satisfy itself that the accused 
understands the nature of the charges. It shall afford him or her the 
opportunity to make an admission of guilt in accordance with article 65 
or to plead not guilty.

          (b) At the trial, the presiding judge may give directions for 
        the conduct of proceedings, including to ensure that they are 
        conducted in a fair and impartial manner. Subject to any 
        directions of the presiding judge, the parties may submit 
        evidence in accordance with the provisions of this Statute.

    9. The Trial Chamber shall have, inter alia, the power on 
application of a party or on its own motion to:

          (a) Rule on the admissibility or relevance of evidence; and

          (b) Take all necessary steps to maintain order in the course 
        of a hearing.

    10. The Trial Chamber shall ensure that a complete record of the 
trial, which accurately reflects the proceedings, is made and that it 
is maintained and preserved by the Registrar.

                               Article 65

                  Proceedings on an admission of guilt

    1. Where the accused makes an admission of guilt pursuant to 
article 64, paragraph 8 (a), the Trial Chamber shall determine whether:

          (a) The accused understands the nature and consequences of 
        the admission of guilt;

          (b) The admission is voluntarily made by the accused after 
        sufficient consultation with defence counsel; and

          (c) The admission of guilt is supported by the facts of the 
        case that are contained in:

                  (i) The charges brought by the Prosecutor and 
                admitted by the accused;

                  (ii) Any materials presented by the Prosecutor which 
                supplement the charges and which the accused accepts; 
                and

                  (iii) Any other evidence, such as the testimony of 
                witnesses, presented by the Prosecutor or the accused.

    2. Where the Trial Chamber is satisfied that the matters referred 
to in paragraph 1 are established, it shall consider the admission of 
guilt, together with any additional evidence presented, as establishing 
all the essential facts that are required to prove the crime to which 
the admission of guilt relates, and may convict the accused of that 
crime.

    3. Where the Trial Chamber is not satisfied that the matters 
referred to in paragraph 1 are established, it shall consider the 
admission of guilt as not having been made, in which case it shall 
order that the trial be continued under the ordinary trial procedures 
provided by this Statute and may remit the case to another Trial 
Chamber.

    4. Where the Trial Chamber is of the opinion that a more complete 
presentation of the facts of the case is required in the interests of 
justice, in particular the interests of the victims, the Trial Chamber 
may:

          (a) Request the Prosecutor to present additional evidence, 
        including the testimony of witnesses; or

          (b) Order that the trial be continued under the ordinary 
        trial procedures provided by this Statute, in which case it 
        shall consider the admission of guilt as not having been made 
        and may remit the case to another Trial Chamber.

    5. Any discussions between the Prosecutor and the defence regarding 
modification of the charges, the admission of guilt or the penalty to 
be imposed shall not be binding on the Court.

                               Article 66

                        Presumption of innocence

    1. Everyone shall be presumed innocent until proved guilty before 
the Court in accordance with the applicable law.

    2. The onus is on the Prosecutor to prove the guilt of the accused.

    3. In order to convict the accused, the Court must be convinced of 
the guilt of the accused beyond reasonable doubt.

                               Article 67

                         Rights of the accused

    1. In the determination of any charge, the accused shall be 
entitled to a public hearing, having regard to the provisions of this 
Statute, to a fair hearing conducted impartially, and to the following 
minimum guarantees, in full equality:

          (a) To be informed promptly and in detail of the nature, 
        cause and content of the charge, in a language which the 
        accused fully understands and speaks;

          (b) To have adequate time and facilities for the preparation 
        of the defence and to communicate freely with counsel of the 
        accused's choosing in confidence;

          (c) To be tried without undue delay;

          (d) Subject to article 63, paragraph 2, to be present at the 
        trial, to conduct the defence in person or through legal 
        assistance of the accused's choosing, to be informed, if the 
        accused does not have legal assistance, of this right and to 
        have legal assistance assigned by the Court in any case where 
        the interests of justice so require, and without payment if the 
        accused lacks sufficient means to pay for it;

          (e) To examine, or have examined, the witnesses against him 
        or her and to obtain the attendance and examination of 
        witnesses on his or her behalf under the same conditions as 
        witnesses against him or her. The accused shall also be 
        entitled to raise defences and to present other evidence 
        admissible under this Statute;

          (f) To have, free of any cost, the assistance of a competent 
        interpreter and such translations as are necessary to meet the 
        requirements of fairness, if any of the proceedings of or 
        documents presented to the Court are not in a language which 
        the accused fully understands and speaks;

          (g) Not to be compelled to testify or to confess guilt and to 
        remain silent, without such silence being a consideration in 
        the determination of guilt or innocence;

          (h) To make an unsworn oral or written statement in his or 
        her defence; and

          (i) Not to have imposed on him or her any reversal of the 
        burden of proof or any onus of rebuttal.

    2. In addition to any other disclosure provided for in this 
Statute, the Prosecutor shall, as soon as practicable, disclose to the 
defence evidence in the Prosecutor's possession or control which he or 
she believes shows or tends to show the innocence of the accused, or to 
mitigate the guilt of the accused, or which may affect the credibility 
of prosecution evidence. In case of doubt as to the application of this 
paragraph, the Court shall decide.

                               Article 68

Protection of the victims and witnesses and their participation in the 
                              proceedings

    1. The Court shall take appropriate measures to protect the safety, 
physical and psychological well-being, dignity and privacy of victims 
and witnesses. In so doing, the Court shall have regard to all relevant 
factors, including age, gender as defined in article 2, paragraph 3, 
and health, and the nature of the crime, in particular, but not limited 
to, where the crime involves sexual or gender violence or violence 
against children. The Prosecutor shall take such measures particularly 
during the investigation and prosecution of such crimes. These measures 
shall not be prejudicial to or inconsistent with the rights of the 
accused and a fair and impartial trial.

    2. As an exception to the principle of public hearings provided for 
in article 67, the Chambers of the Court may, to protect victims and 
witnesses or an accused, conduct any part of the proceedings in camera 
or allow the presentation of evidence by electronic or other special 
means. In particular, such measures shall be implemented in the case of 
a victim of sexual violence or a child who is a victim or a witness, 
unless otherwise ordered by the Court, having regard to all the 
circumstances, particularly the views of the victim or witness.

    3. Where the personal interests of the victims are affected, the 
Court shall permit their views and concerns to be presented and 
considered at stages of the proceedings determined to be appropriate by 
the Court and in a manner which is not prejudicial to or inconsistent 
with the rights of the accused and a fair and impartial trial. Such 
views and concerns may be presented by the legal representatives of the 
victims where the Court considers it appropriate, in accordance with 
the Rules of Procedure and Evidence.

    4. The Victims and Witnesses Unit may advise the Prosecutor and the 
Court on appropriate protective measures, security arrangements, 
counselling and assistance as referred to in article 43, paragraph 6.

    5. Where the disclosure of evidence or information pursuant to this 
Statute may lead to the grave endangerment of the security of a witness 
or his or her family, the Prosecutor may, for the purposes of any 
proceedings conducted prior to the commencement of the trial, withhold 
such evidence or information and instead submit a summary thereof. Such 
measures shall be exercised in a manner which is not prejudicial to or 
inconsistent with the rights of the accused and a fair and impartial 
trial.

    6. A State may make an application for necessary measures to be 
taken in respect of the protection of its servants or agents and the 
protection of confidential or sensitive information.

                               Article 69

                                Evidence

    1. Before testifying, each witness shall, in accordance with the 
Rules of Procedure and Evidence, give an undertaking as to the 
truthfulness of the evidence to be given by that witness.

    2. The testimony of a witness at trial shall be given in person, 
except to the extent provided by the measures set forth in article 68 
or in the Rules of Procedure and Evidence. The Court may also permit 
the giving of viva voce (oral) or recorded testimony of a witness by 
means of video or audio technology, as well as the introduction of 
documents or written transcripts, subject to this Statute and in 
accordance with the Rules of Procedure and Evidence. These measures 
shall not be prejudicial to or inconsistent with the rights of the 
accused.

    3. The parties may submit evidence relevant to the case, in 
accordance with article 64. The Court shall have the authority to 
request the submission of all evidence that it considers necessary for 
the determination of the truth.

    4. The Court may rule on the relevance or admissibility of any 
evidence, taking into account, inter alia, the probative value of the 
evidence and any prejudice that such evidence may cause to a fair trial 
or to a fair evaluation of the testimony of a witness, in accordance 
with the Rules of Procedure and Evidence.

    5. The Court shall respect and observe privileges on 
confidentiality as provided for in the Rules of Procedure and Evidence.

    6. The Court shall not require proof of facts of common knowledge 
but may take judicial notice of them.

    7. Evidence obtained by means of a violation of this Statute or 
internationally recognized human rights shall not be admissible if:

          (a) The violation casts substantial doubt on the reliability 
        of the evidence; or

          (b) The admission of the evidence would be antithetical to 
        and would seriously damage the integrity of the proceedings.

    8. When deciding on the relevance or admissibility of evidence 
collected by a State, the Court shall not rule on the application of 
the State's national law.

                               Article 70

             Offences against the administration of justice

    1. The Court shall have jurisdiction over the following offences 
against its administration of justice when committed intentionally:

          (a) Giving false testimony when under an obligation pursuant 
        to article 69, paragraph 1, to tell the truth;

          (b) Presenting evidence that the party knows is false or 
        forged;

          (c) Corruptly influencing a witness, obstructing or 
        interfering with the attendance or testimony of a witness, 
        retaliating against a witness for giving testimony or 
        destroying, tampering with or interfering with the collection 
        of evidence;

          (d) Impeding, intimidating or corruptly influencing an 
        official of the Court for the purpose of forcing or persuading 
        the official not to perform, or to perform improperly, his or 
        her duties;

          (e) Retaliating against an official of the Court on account 
        of duties performed by that or another official;

          (f) Soliciting or accepting a bribe as an official of the 
        Court in conjunction with his or her official duties.

    2. The principles and procedures governing the Court's exercise of 
jurisdiction over offences under this article shall be those provided 
for in the Rules of Procedure and Evidence. The conditions for 
providing international cooperation to the Court with respect to its 
proceedings under this article shall be governed by the domestic laws 
of the requested State.

    3. In the event of conviction, the Court may impose a term of 
imprisonment not exceeding five years, or a fine in accordance with the 
Rules of Procedure and Evidence, or both.

    4. (a) Each State Party shall extend its criminal laws penalizing 
offences against the integrity of its own investigative or judicial 
process to offences against the administration of justice referred to 
in this article, committed on its territory, or by one of its 
nationals;

          (b) Upon request by the Court, whenever it deems it proper, 
        the State Party shall submit the case to its competent 
        authorities for the purpose of prosecution. Those authorities 
        shall treat such cases with diligence and devote sufficient 
        resources to enable them to be conducted effectively.

                               Article 71

               Sanctions for misconduct before the Court

    1. The Court may sanction persons present before it who commit 
misconduct, including disruption of its proceedings or deliberate 
refusal to comply with its directions, by administrative measures other 
than imprisonment, such as temporary or permanent removal from the 
courtroom, a fine or other similar measures provided for in the Rules 
of Procedure and Evidence.

    2. The procedures governing the imposition of the measures set 
forth in paragraph 1 shall be those provided for in the Rules of 
Procedure and Evidence.

                               Article 72

              Protection of national security information

    1. This article applies in any case where the disclosure of the 
information or documents of a State would, in the opinion of that 
State, prejudice its national security interests. Such cases include 
those falling within the scope of article 56, paragraphs 2 and 3, 
article 61, paragraph 3, article 64, paragraph 3, article 67, paragraph 
2, article 68, paragraph 6, article 87, paragraph 6 and article 93, as 
well as cases arising at any other stage of the proceedings where such 
disclosure may be at issue.

    2. This article shall also apply when a person who has been 
requested to give information or evidence has refused to do so or has 
referred the matter to the State on the ground that disclosure would 
prejudice the national security interests of a State and the State 
concerned confirms that it is of the opinion that disclosure would 
prejudice its national security interests.

    3. Nothing in this article shall prejudice the requirements of 
confidentiality applicable under article 54, paragraph 3 (e) and (f), 
or the application of article 73.

    4. If a State learns that information or documents of the State are 
being, or are likely to be, disclosed at any stage of the proceedings, 
and it is of the opinion that disclosure would prejudice its national 
security interests, that State shall have the right to intervene in 
order to obtain resolution of the issue in accordance with this 
article.

    5. If, in the opinion of a State, disclosure of information would 
prejudice its national security interests, all reasonable steps will be 
taken by the State, acting in conjunction with the Prosecutor, the 
Defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, 
to seek to resolve the matter by cooperative means. Such steps may 
include:

          (a) Modification or clarification of the request;

          (b) A determination by the Court regarding the relevance of 
        the information or evidence sought, or a determination as to 
        whether the evidence, though relevant, could be or has been 
        obtained from a source other than the requested State;

          (c) Obtaining the information or evidence from a different 
        source or in a different form; or

          (d) Agreement on conditions under which the assistance could 
        be provided including, among other things, providing summaries 
        or redactions, limitations on disclosure, use of in camera or 
        ex parte proceedings, or other protective measures permissible 
        under the Statute and the Rules.

    6. Once all reasonable steps have been taken to resolve the matter 
through cooperative means, and if the State considers that there are no 
means or conditions under which the information or documents could be 
provided or disclosed without prejudice to its national security 
interests, it shall so notify the Prosecutor or the Court of the 
specific reasons for its decision, unless a specific description of the 
reasons would itself necessarily result in such prejudice to the 
State's national security interests.

    7. Thereafter, if the Court determines that the evidence is 
relevant and necessary for the establishment of the guilt or innocence 
of the accused, the Court may undertake the following actions:

          (a) Where disclosure of the information or document is sought 
        pursuant to a request for cooperation under Part 9 or the 
        circumstances described in paragraph 2, and the State has 
        invoked the ground for refusal referred to in article 93, 
        paragraph 4:

                  (i) The Court may, before making any conclusion 
                referred to in subparagraph 7 (a) (ii), request further 
                consultations for the purpose of considering the 
                State's representations, which may include, as 
                appropriate, hearings in camera and ex parte;

                  (ii) If the Court concludes that, by invoking the 
                ground for refusal under article 93, paragraph 4, in 
                the circumstances of the case, the requested State is 
                not acting in accordance with its obligations under the 
                Statute, the Court may refer the matter in accordance 
                with article 87, paragraph 7, specifying the reasons 
                for its conclusion; and

                  (iii) The Court may make such inference in the trial 
                of the accused as to the existence or non-existence of 
                a fact, as may be appropriate in the circumstances; or

          (b) In all other circumstances:

                  (i) Order disclosure; or

                  (ii) To the extent it does not order disclosure, make 
                such inference in the trial of the accused as to the 
                existence or non-existence of a fact, as may be 
                appropriate in the circumstances.

                               Article 73

                  Third-party information or documents

    If a State Party is requested by the Court to provide a document or 
information in its custody, possession or control, which was disclosed 
to it in confidence by a State, intergovernmental organization or 
international organization, it shall seek the consent of the originator 
to disclose that document or information. If the originator is a State 
Party, it shall either consent to disclosure of the information or 
document or undertake to resolve the issue of disclosure with the 
Court, subject to the provisions of article 72. If the originator is 
not a State Party and refuses consent to disclosure, the requested 
State shall inform the Court that it is unable to provide the document 
or information because of a pre-existing obligation of confidentiality 
to the originator.

                               Article 74

                     Requirements for the decision

    1. All the judges of the Trial Chamber shall be present at each 
stage of the trial and throughout their deliberations. The Presidency 
may, on a case-by-case basis, designate, as available, one or more 
alternate judges to be present at each stage of the trial and to 
replace a member of the Trial Chamber if that member is unable to 
continue attending.

    2. The Trial Chamber's decision shall be based on its evaluation of 
the evidence and the entire proceedings. The decision shall not exceed 
the facts and circumstances described in the charges and any amendments 
to the charges. The Court may base its decision only on evidence 
submitted and discussed before it at the trial.

    3. The judges shall attempt to achieve unanimity in their decision, 
failing which the decision shall be taken by a majority of the judges.

    4. The deliberations of the Trial Chamber shall remain secret.

    5. The decision shall be in writing and shall contain a full and 
reasoned statement of the Trial Chamber's findings on the evidence and 
conclusions. The Trial Chamber shall issue one decision. When there is 
no unanimity, the Trial Chamber's decision shall contain the views of 
the majority and the minority. The decision or a summary thereof shall 
be delivered in open court.

                               Article 75

                         Reparations to victims

    1. The Court shall establish principles relating to reparations to, 
or in respect of, victims, including restitution, compensation and 
rehabilitation. On this basis, in its decision the Court may, either 
upon request or on its own motion in exceptional circumstances, 
determine the scope and extent of any damage, loss and injury to, or in 
respect of, victims and will state the principles on which it is 
acting.

    2. The Court may make an order directly against a convicted person 
specifying appropriate reparations to, or in respect of, victims, 
including restitution, compensation and rehabilitation. Where 
appropriate, the Court may order that the award for reparations be made 
through the Trust Fund provided for in article 79.

    3. Before making an order under this article, the Court may invite 
and shall take account of representations from or on behalf of the 
convicted person, victims, other interested persons or interested 
States.

    4. In exercising its power under this article, the Court may, after 
a person is convicted of a crime within the jurisdiction of the Court, 
determine whether, in order to give effect to an order which it may 
make under this article, it is necessary to seek measures under article 
93, paragraph 1.

    5. A State Party shall give effect to a decision under this article 
as if the provisions of article 109 were applicable to this article.

    6. Nothing in this article shall be interpreted as prejudicing the 
rights of victims under national or international law.

                               Article 76

                               Sentencing

    1. In the event of a conviction, the Trial Chamber shall consider 
the appropriate sentence to be imposed and shall take into account the 
evidence presented and submissions made during the trial that are 
relevant to the sentence.

    2. Except where article 65 applies and before the completion of the 
trial, the Trial Chamber may on its own motion and shall, at the 
request of the Prosecutor or the accused, hold a further hearing to 
hear any additional evidence or submissions relevant to the sentence, 
in accordance with the Rules of Procedure and Evidence.

    3. Where paragraph 2 applies, any representations under article 75 
shall be heard during the further hearing referred to in paragraph 2 
and, if necessary, during any additional hearing.

    4. The sentence shall be pronounced in public and, wherever 
possible, in the presence of the accused.

                           PART 7. PENALTIES

                               Article 77

                          Applicable penalties

    1. Subject to article 110, the Court may impose one of the 
following penalties on a person convicted of a crime under article 5 of 
this Statute:

          (a) Imprisonment for a specified number of years, which may 
        not exceed a maximum of 30 years; or

          (b) A term of life imprisonment when justified by the extreme 
        gravity of the crime and the individual circumstances of the 
        convicted person.

    2. In addition to imprisonment, the Court may order:

          (a) A fine under the criteria provided for in the Rules of 
        Procedure and Evidence;

          (b) A forfeiture of proceeds, property and assets derived 
        directly or indirectly from that crime, without prejudice to 
        the rights of bona fide third parties.

                               Article 78

                     Determination of the sentence

    1. In determining the sentence, the Court shall, in accordance with 
the Rules of Procedure and Evidence, take into account such factors as 
the gravity of the crime and the individual circumstances of the 
convicted person.

    2. In imposing a sentence of imprisonment, the Court shall deduct 
the time, if any, previously spent in detention in accordance with an 
order of the Court. The Court may deduct any time otherwise spent in 
detention in connection with conduct underlying the crime.

    3. When a person has been convicted of more than one crime, the 
Court shall pronounce a sentence for each crime and a joint sentence 
specifying the total period of imprisonment. This period shall be no 
less than the highest individual sentence pronounced and shall not 
exceed 30 years' imprisonment or a sentence of life imprisonment in 
conformity with article 77, paragraph 1 (b).

                               Article 79

                               Trust Fund

    1. A Trust Fund shall be established by decision of the Assembly of 
States Parties for the benefit of victims of crimes within the 
jurisdiction of the Court, and of the families of such victims.

    2. The Court may order money and other property collected through 
fines or forfeiture to be transferred, by order of the Court, to the 
Trust Fund.

    3. The Trust Fund shall be managed according to criteria to be 
determined by the Assembly of States Parties.

                               Article 80

  Non-prejudice to national application of penalties and national laws

    Nothing in this Part of the Statute affects the application by 
States of penalties prescribed by their national law, nor the law of 
States which do not provide for penalties prescribed in this Part.

                      PART 8. APPEAL AND REVISION

                               Article 81

 Appeal against decision of acquittal or conviction or against sentence

    1. A decision under article 74 may be appealed in accordance with 
the Rules of Procedure and Evidence as follows:

          (a) The Prosecutor may make an appeal on any of the following 
        grounds:

                  (i) Procedural error,

                  (ii) Error of fact, or

                  (iii) Error of law;

          (b) The convicted person or the Prosecutor on that person's 
        behalf may make an appeal on any of the following grounds:

                  (i) Procedural error,

                  (ii) Error of fact,

                  (iii) Error of law, or

                  (iv) Any other ground that affects the fairness or 
                reliability of the proceedings or decision.

    2. (a) A sentence may be appealed, in accordance with the Rules of 
Procedure and Evidence, by the Prosecutor or the convicted person on 
the ground of disproportion between the crime and the sentence;

          (b) If on an appeal against sentence the Court considers that 
        there are grounds on which the conviction might be set aside, 
        wholly or in part, it may invite the Prosecutor and the 
        convicted person to submit grounds under article 81, paragraph 
        1 (a) or (b), and may render a decision on conviction in 
        accordance with article 83;

          (c) The same procedure applies when the Court, on an appeal 
        against conviction only, considers that there are grounds to 
        reduce the sentence under paragraph 2 (a).

    3. (a) Unless the Trial Chamber orders otherwise, a convicted 
person shall remain in custody pending an appeal;

          (b) When a convicted person's time in custody exceeds the 
        sentence of imprisonment imposed, that person shall be 
        released, except that if the Prosecutor is also appealing, the 
        release may be subject to the conditions under subparagraph (c) 
        below;

          (c) In case of an acquittal, the accused shall be released 
        immediately, subject to the following:

                  (i) Under exceptional circumstances, and having 
                regard, inter alia, to the concrete risk of flight, the 
                seriousness of the offence charged and the probability 
                of success on appeal, the Trial Chamber, at the request 
                of the Prosecutor, may maintain the detention of the 
                person pending appeal;

                  (ii) A decision by the Trial Chamber under 
                subparagraph (c) (i) may be appealed in accordance with 
                the Rules of Procedure and Evidence.

    4. Subject to the provisions of paragraph 3 (a) and (b), execution 
of the decision or sentence shall be suspended during the period 
allowed for appeal and for the duration of the appeal proceedings.

                               Article 82

                     Appeal against other decisions

    1. Either party may appeal any of the following decisions in 
accordance with the Rules of Procedure and Evidence:

          (a) A decision with respect to jurisdiction or admissibility;

          (b) A decision granting or denying release of the person 
        being investigated or prosecuted;

          (c) A decision of the Pre-Trial Chamber to act on its own 
        initiative under article 56, paragraph 3;

          (d) A decision that involves an issue that would 
        significantly affect the fair and expeditious conduct of the 
        proceedings or the outcome of the trial, and for which, in the 
        opinion of the Pre-Trial or Trial Chamber, an immediate 
        resolution by the Appeals Chamber may materially advance the 
        proceedings.

    2. A decision of the Pre-Trial Chamber under article 57, paragraph 
3 (d), may be appealed against by the State concerned or by the 
Prosecutor, with the leave of the Pre-Trial Chamber. The appeal shall 
be heard on an expedited basis.

    3. An appeal shall not of itself have suspensive effect unless the 
Appeals Chamber so orders, upon request, in accordance with the Rules 
of Procedure and Evidence.

    4. A legal representative of the victims, the convicted person or a 
bona fide owner of property adversely affected by an order under 
article 73 may appeal against the order for reparations, as provided in 
the Rules of Procedure and Evidence.

                               Article 83

                         Proceedings on appeal

    1. For the purposes of proceedings under article 81 and this 
article, the Appeals Chamber shall have all the powers of the Trial 
Chamber.

    2. If the Appeals Chamber finds that the proceedings appealed from 
were unfair in a way that affected the reliability of the decision or 
sentence, or that the decision or sentence appealed from was materially 
affected by error of fact or law or procedural error, it may:

          (a) Reverse or amend the decision or sentence; or

          (b) Order a new trial before a different Trial Chamber.

    For these purposes, the Appeals Chamber may remand a factual issue 
to the original Trial Chamber for it to determine the issue and to 
report back accordingly, or may itself call evidence to determine the 
issue. When the decision or sentence has been appealed only by the 
person convicted, or the Prosecutor on that person's behalf, it cannot 
be amended to his or her detriment.

    3. If in an appeal against sentence the Appeals Chamber finds that 
the sentence is disproportionate to the crime, it may vary the sentence 
in accordance with Part 7.

    4. The judgement of the Appeals Chamber shall be taken by a 
majority of the judges and shall be delivered in open court. The 
judgement shall state the reasons on which it is based. When there is 
no unanimity, the judgement of the Appeals Chamber shall contain the 
views of the majority and the minority, but a judge may deliver a 
separate or dissenting opinion on a question of law.

    5. The Appeals Chamber may deliver its judgement in the absence of 
the person acquitted or convicted.

                               Article 84

                   Revision of conviction or sentence

    1. The convicted person or, after death, spouses, children, parents 
or one person alive at the time of the accused's death who has been 
given express written instructions from the accused to bring such a 
claim, or the Prosecutor on the person's behalf, may apply to the 
Appeals Chamber to revise the final judgement of conviction or sentence 
on the grounds that:

          (a) New evidence has been discovered that:

                  (i) Was not available at the time of trial, and such 
                unavailability was not wholly or partially attributable 
                to the party making application; and

                  (ii) Is sufficiently important that had it been 
                proved at trial it would have been likely to have 
                resulted in a different verdict;

          (b) It has been newly discovered that decisive evidence, 
        taken into account at trial and upon which the conviction 
        depends, was false, forged or falsified;

          (c) One or more of the judges who participated in conviction 
        or confirmation of the charges has committed, in that case, an 
        act of serious misconduct or serious breach of duty of 
        sufficient gravity to justify the removal of that judge or 
        those judges from office under article 46.

    2. The Appeals Chamber shall reject the application if it considers 
it to be unfounded. If it determines that the application is 
meritorious, it may, as appropriate:

          (a) Reconvene the original Trial Chamber;

          (b) Constitute a new Trial Chamber; or

          (c) Retain jurisdiction over the matter,

with a view to, after hearing the parties in the manner set forth in 
the Rules of Procedure and Evidence, arriving at a determination on 
whether the judgement should be revised.

                               Article 85

            Compensation to an arrested or convicted person

    1. Anyone who has been the victim of unlawful arrest or detention 
shall have an enforceable right to compensation.

    2. When a person has by a final decision been convicted of a 
criminal offence, and when subsequently his or her conviction has been 
reversed on the ground that a new or newly discovered fact shows 
conclusively that there has been a miscarriage of justice, the person 
who has suffered punishment as a result of such conviction shall be 
compensated according to law, unless it is proved that the non-
disclosure of the unknown fact in time is wholly or partly attributable 
to him or her.

    3. In exceptional circumstances, where the Court finds conclusive 
facts showing that there has been a grave and manifest miscarriage of 
justice, it may in its discretion award compensation, according to the 
criteria provided in the Rules of Procedure and Evidence, to a person 
who has been released from detention following a final decision of 
acquittal or a termination of the proceedings for that reason.

       PART 9. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE

                               Article 86

                     General obligation to cooperate

     States Parties shall, in accordance with the provisions of this 
Statute, cooperate fully with the Court in its investigation and 
prosecution of crimes within the jurisdiction of the Court.

                               Article 87

              Requests for cooperation: general provisions

    1. (a) The Court shall have the authority to make requests to 
States Parties for cooperation. The requests shall be transmitted 
through the diplomatic channel or any other appropriate channel as may 
be designated by each State Party upon ratification, acceptance, 
approval or accession.

    Subsequent changes to the designation shall be made by each State 
Party in accordance with the Rules of Procedure and Evidence.

          (b) When appropriate, without prejudice to the provisions of 
        subparagraph (a), requests may also be transmitted through the 
        International Criminal Police Organization or any appropriate 
        regional organization.

    2. Requests for cooperation and any documents supporting the 
request shall either be in or be accompanied by a translation into an 
official language of the requested State or in one of the working 
languages of the Court, in accordance with the choice made by that 
State upon ratification, acceptance, approval or accession.

    Subsequent changes to this choice shall be made in accordance with 
the Rules of Procedure and Evidence.

    3. The requested State shall keep confidential a request for 
cooperation and any documents supporting the request, except to the 
extent that the disclosure is necessary for execution of the request.

    4. In relation to any request for assistance presented under Part 
9, the Court may take such measures, including measures related to the 
protection of information, as may be necessary to ensure the safety or 
physical or psychological well-being of any victims, potential 
witnesses and their families. The Court may request that any 
information that is made available under Part 9 shall be provided and 
handled in a manner that protects the safety and physical or 
psychological well-being of any victims, potential witnesses and their 
families.

    5. The Court may invite any State not party to this Statute to 
provide assistance under this Part on the basis of an ad hoc 
arrangement, an agreement with such State or any other appropriate 
basis.

    Where a State not party to this Statute, which has entered into an 
ad hoc arrangement or an agreement with the Court, fails to cooperate 
with requests pursuant to any such arrangement or agreement, the Court 
may so inform the Assembly of States Parties or, where the Security 
Council referred the matter to the Court, the Security Council.

    6. 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.

    7. Where a State Party fails to comply with a request to cooperate 
by the Court contrary to the provisions of this Statute, thereby 
preventing the Court from exercising its functions and powers under 
this Statute, the Court may make a finding to that effect and refer the 
matter to the Assembly of States Parties or, where the Security Council 
referred the matter to the Court, to the Security Council.

                               Article 88

             Availability of procedures under national law

    States Parties shall ensure that there are procedures available 
under their national law for all of the forms of cooperation which are 
specified under this Part.

                               Article 89

                   Surrender of persons to the Court

    1. The Court may transmit a request for the arrest and surrender of 
a person, together with the material supporting the request outlined in 
article 91, to any State on the territory of which that person may be 
found and shall request the cooperation of that State in the arrest and 
surrender of such a person. States Parties shall, in accordance with 
the provisions of this Part and the procedure under their national law, 
comply with requests for arrest and surrender.

    2. Where the person sought for surrender brings a challenge before 
a national court on the basis of the principle of ne bis in idem as 
provided in article 20, the requested State shall immediately consult 
with the Court to determine if there has been a relevant ruling on 
admissibility. If the case is admissible, the requested State shall 
proceed with the execution of the request. If an admissibility ruling 
is pending, the requested State may postpone the execution of the 
request for surrender of the person until the Court makes a 
determination on admissibility.

    3. (a) A State Party shall authorize, in accordance with its 
national procedural law, transportation through its territory of a 
person being surrendered to the Court by another State, except where 
transit through that State would impede or delay the surrender.

          (b) A request by the Court for transit shall be transmitted 
        in accordance with article 87. The request for transit shall 
        contain:

                  (i) A description of the person being transported;

                  (ii) A brief statement of the facts of the case and 
                their legal characterization; and

                  (iii) The warrant for arrest and surrender;

          (c) A person being transported shall be detained in custody 
        during the period of transit;

          (d) No authorization is required if the person is transported 
        by air and no landing is scheduled on the territory of the 
        transit State;

          (e) If an unscheduled landing occurs on the territory of the 
        transit State, that State may require a request for transit 
        from the Court as provided for in subparagraph (b). The transit 
        State shall detain the person being transported until the 
        request for transit is received and the transit is effected; 
        provided that detention for purposes of this subparagraph may 
        not be extended beyond 96 hours from the unscheduled landing 
        unless the request is received within that time.

    4. If the person sought is being proceeded against or is serving a 
sentence in the requested State for a crime different from that for 
which surrender to the Court is sought, the requested State, after 
making its decision to grant the request, shall consult with the Court.

                               Article 90

                           Competing requests

    1. A State Party which receives a request from the Court for the 
surrender of a person under article 89 shall, if it also receives a 
request from any other State for the extradition of the same person for 
the same conduct which forms the basis of the crime for which the Court 
seeks the person's surrender, notify the Court and the requesting State 
of that fact.

    2. Where the requesting State is a State Party, the requested State 
shall give priority to the request from the Court if:

          (a) The Court has, pursuant to articles 18 and 19, made a 
        determination that the case in respect of which surrender is 
        sought is admissible and that determination takes into account 
        the investigation or prosecution conducted by the requesting 
        State in respect of its request for extradition; or

          (b) The Court makes the determination described in 
        subparagraph (a) pursuant to the requested State's notification 
        under paragraph 1.

    3. Where a determination under paragraph 2 (a) has not been made, 
the requested State may, at its discretion, pending the determination 
of the Court under paragraph 2 (b), proceed to deal with the request 
for extradition from the requesting State but shall not extradite the 
person until the Court has determined that the case is inadmissible. 
The Court's determination shall be made on an expedited basis.

    4. If the requesting State is a State not Party to this Statute the 
requested State, if it is not under an international obligation to 
extradite the person to the requesting State, shall give priority to 
the request for surrender from the Court, if the Court has determined 
that the case is admissible.

    5. Where a case under paragraph 4 has not been determined to be 
admissible by the Court, the requested State may, at its discretion, 
proceed to deal with the request for extradition from the requesting 
State.

    6. In cases where paragraph 4 applies except that the requested 
State is under an existing international obligation to extradite the 
person to the requesting State not Party to this Statute, the requested 
State shall determine whether to surrender the person to the Court or 
extradite the person to the requesting State. In making its decision, 
the requested State shall consider all the relevant factors, including 
but not limited to:

          (a) The respective dates of the requests;

          (b) The interests of the requesting State including, where 
        relevant, whether the crime was committed in its territory and 
        the nationality of the victims and of the person sought; and

          (c) The possibility of subsequent surrender between the Court 
        and the requesting State.

    7. Where a State Party which receives a request from the Court for 
the surrender of a person also receives a request from any State for 
the extradition of the same person for conduct other than that which 
constitutes the crime for which the Court seeks the person's surrender:

          (a) The requested State shall, if it is not under an existing 
        international obligation to extradite the person to the 
        requesting State, give priority to the request from the Court;

          (b) The requested State shall, if it is under an existing 
        international obligation to extradite the person to the 
        requesting State, determine whether to surrender the person to 
        the Court or extradite the person to the requesting State. In 
        making its decision, the requested State shall consider all the 
        relevant factors, including but not limited to those set out in 
        paragraph 6, but shall give special consideration to the 
        relative nature and gravity of the conduct in question.

    8. Where pursuant to a notification under this article, the Court 
has determined a case to be inadmissible, and subsequently extradition 
to the requesting State is refused, the requested State shall notify 
the Court of this decision.

                               Article 91

              Contents of request for arrest and surrender

    1. A request for arrest and surrender shall be made in writing. In 
urgent cases, a request may be made by any medium capable of delivering 
a written record, provided that the request shall be confirmed through 
the channel provided for in article 87, paragraph 1 (a).

    2. In the case of a request for the arrest and surrender of a 
person for whom a warrant of arrest has been issued by the Pre-Trial 
Chamber under article 58, the request shall contain or be supported by:

          (a) Information describing the person sought, sufficient to 
        identify the person, and information as to that person's 
        probable location;

          (b) A copy of the warrant of arrest; and

          (c) Such documents, statements or information as may be 
        necessary to meet the requirements for the surrender process in 
        the requested State, except that those requirements should not 
        be more burdensome than those applicable to requests for 
        extradition pursuant to treaties or arrangements between the 
        requested State and other States and should, if possible, be 
        less burdensome, taking into account the distinct nature of the 
        Court.

    3. In the case of a request for the arrest and surrender of a 
person already convicted, the request shall contain or be supported by:

          (a) A copy of any warrant of arrest for that person;

          (b) A copy of the judgement of conviction;

          (c) Information to demonstrate that the person sought is the 
        one referred to in the judgement of conviction; and

          (d) If the person sought has been sentenced, a copy of the 
        sentence imposed and, in the case of a sentence for 
        imprisonment, a statement of any time already served and the 
        time remaining to be served.

    4. Upon the request of the Court, a State Party shall consult with 
the Court, either generally or with respect to a specific matter, 
regarding any requirements under its national law that may apply under 
paragraph 2 (c). During the consultations, the State Party shall advise 
the Court of the specific requirements of its national law.

                               Article 92

                           Provisional arrest

    1. In urgent cases, the Court may request the provisional arrest of 
the person sought, pending presentation of the request for surrender 
and the documents supporting the request as specified in article 91.

    2. The request for provisional arrest shall be made by any medium 
capable of delivering a written record and shall contain:

          (a) Information describing the person sought, sufficient to 
        identify the person, and information as to that person's 
        probable location;

          (b) A concise statement of the crimes for which the person's 
        arrest is sought and of the facts which are alleged to 
        constitute those crimes, including, where possible, the date 
        and location of the crime;

          (c) A statement of the existence of a warrant of arrest or a 
        judgement of conviction against the person sought; and

          (d) A statement that a request for surrender of the person 
        sought will follow.

    3. A person who is provisionally arrested may be released from 
custody if the requested State has not received the request for 
surrender and the documents supporting the request as specified in 
article 91 within the time limits specified in the Rules of Procedure 
and Evidence. However, the person may consent to surrender before the 
expiration of this period if permitted by the law of the requested 
State. In such a case, the requested State shall proceed to surrender 
the person to the Court as soon as possible.

    4. The fact that the person sought has been released from custody 
pursuant to paragraph 3 shall not prejudice the subsequent arrest and 
surrender of that person if the request for surrender and the documents 
supporting the request are delivered at a later date.

                               Article 93

                       Other forms of cooperation

    1. States Parties shall, in accordance with the provisions of this 
Part and under procedures of national law, comply with requests by the 
Court to provide the following assistance in relation to investigations 
or prosecutions:

          (a) The identification and whereabouts of persons or the 
        location of items;

          (b) The taking of evidence, including testimony under oath, 
        and the production of evidence, including expert opinions and 
        reports necessary to the Court;

          (c) The questioning of any person being investigated or 
        prosecuted;

          (d) The service of documents, including judicial documents;

          (e) Facilitating the voluntary appearance of persons as 
        witnesses or experts before the Court;

          (f) The temporary transfer of persons as provided in 
        paragraph 7;

          (g) The examination of places or sites, including the 
        exhumation and examination of grave sites;

          (h) The execution of searches and seizures;

          (i) The provision of records and documents, including 
        official records and documents;

          (j) The protection of victims and witnesses and the 
        preservation of evidence;

          (k) The identification, tracing and freezing or seizure of 
        proceeds, property and assets and instrumentalities of crimes 
        for the purpose of eventual forfeiture, without prejudice to 
        the rights of bona fide third parties; and

          (l) Any other type of assistance which is not prohibited by 
        the law of the requested State, with a view to facilitating the 
        investigation and prosecution of crimes within the jurisdiction 
        of the Court.

    2. The Court shall have the authority to provide an assurance to a 
witness or an expert appearing before the Court that he or she will not 
be prosecuted, detained or subjected to any restriction of personal 
freedom by the Court in respect of any act or omission that preceded 
the departure of that person from the requested State.

    3. Where execution of a particular measure of assistance detailed 
in a request presented under paragraph 1, is prohibited in the 
requested State on the basis of an existing fundamental legal principle 
of general application, the requested State shall promptly consult with 
the Court to try to resolve the matter. In the consultations, 
consideration should be given to whether the assistance can be rendered 
in another manner or subject to conditions. If after consultations the 
matter cannot be resolved, the Court shall modify the request as 
necessary.

    4. In accordance with article 72, a State Party may deny a request 
for assistance, in whole or in part, only if the request concerns the 
production of any documents or disclosure of evidence which relates to 
its national security.

    5. Before denying a request for assistance under paragraph 1 (l), 
the requested State shall consider whether the assistance can be 
provided subject to specified conditions, or whether the assistance can 
be provided at a later date or in an alternative manner, provided that 
if the Court or the Prosecutor accepts the assistance subject to 
conditions, the Court of the Prosecutor shall abide by them.

    6. If a request for assistance is denied, the requested State Party 
shall promptly inform the Court or the Prosecutor of the reasons for 
such denial.

    7. (a) The Court may request the temporary transfer of a person in 
custody for purposes of identification or for obtaining testimony or 
other assistance. The person may be transferred if the following 
conditions are fulfilled:

                  (i) The person freely gives his or her informed 
                consent to the transfer; and

                  (ii) The requested State agrees to the transfer, 
                subject to such conditions as that State and the Court 
                may agree.

          (b) The person being transferred shall remain in custody. 
        When the purposes of the transfer have been fulfilled, the 
        Court shall return the person without delay to the requested 
        State.

    8. (a) The Court shall ensure the confidentiality of documents and 
information, except as required for the investigation and proceedings 
described in the request.

          (b) The requested State may, when necessary, transmit 
        documents or information to the Prosecutor on a confidential 
        basis. The Prosecutor may then use them solely for the purpose 
        of generating new evidence;

          (c) The requested State may, on its own motion or at the 
        request of the Prosecutor, subsequently consent to the 
        disclosure of such documents or information. They may then be 
        used as evidence pursuant to the provisions of Parts 5 and 6 
        and in accordance with the Rules of Procedure and Evidence.

    9. (a) (i) In the event that a State Party receives competing 
requests, other than for surrender or extradition, from the Court and 
from another State pursuant to an international obligation, the State 
Party shall endeavour, in consultation with the Court and the other 
State, to meet both requests, if necessary by postponing or attaching 
conditions to one or the other request.

                  (ii) Failing that, competing requests shall be 
                resolved in accordance with the principles established 
                in article 90.

          (b) Where, however, the request from the Court concerns 
        information, property or persons which are subject to the 
        control of a third State or an international organization by 
        virtue of an international agreement, the requested States 
        shall so inform the Court and the Court shall direct its 
        request to the third State or international organization.

    10. (a) The Court may, upon request, cooperate with and provide 
assistance to a State Party conducting an investigation into or trial 
in respect of conduct which constitutes a crime within the jurisdiction 
of the Court or which constitutes a serious crime under the national 
law of the requesting State.

          (b) (i) The assistance provided under subparagraph (a) shall 
        include, inter alia:

                          (1) The transmission of statements, documents 
                        or other types of evidence obtained in the 
                        course of an investigation or a trial conducted 
                        by the Court; and

                          (2) The questioning of any person detained by 
                        order of the Court;

                  (ii) In the case of assistance under subparagraph (b) 
                (i) (1):

                          (1) If the documents or other types of 
                        evidence have been obtained with the assistance 
                        of a State, such transmission shall require the 
                        consent of that State;

                          (2) If the statements, documents or other 
                        types of evidence have been provided by a 
                        witness or expert, such transmission shall be 
                        subject to the provisions of article 68.

          (c) The Court may, under the conditions set out in this 
        paragraph, grant a request for assistance under this paragraph 
        from a State which is not a Party to the Statute.

                               Article 94

     Postponement of execution of a request in respect of ongoing 
                      investigation or prosecution

    1. If the immediate execution of a request would interfere with an 
ongoing investigation or prosecution of a case different from that to 
which the request relates, the requested State may postpone the 
execution of the request for a period of time agreed upon with the 
Court. However, the postponement shall be no longer than is necessary 
to complete the relevant investigation or prosecution in the requested 
State. Before making a decision to postpone, the requested State should 
consider whether the assistance may be immediately provided subject to 
certain conditions.

    2. If a decision to postpone is taken pursuant to paragraph 1, the 
Prosecutor may, however, seek measures to preserve evidence, pursuant 
to article 93, paragraph 1 (j).

                               Article 95

 Postponement of execution of a request in respect of an admissibility 
                               challenge

    Without prejudice to article 53, paragraph 2, where there is an 
admissibility challenge under consideration by the Court pursuant to 
articles 18 or 19, the requested State may postpone the execution of a 
request under this Part pending a determination by the Court, unless 
the Court has specifically ordered that the Prosecutor may pursue the 
collection of such evidence pursuant to articles 18 or 19.

                               Article 96

   Contents of request for other forms of assistance under article 93

    1. A request for other forms of assistance referred to in article 
93 shall be made in writing. In urgent cases, a request may be made by 
any medium capable of delivering a written record, provided that the 
request shall be confirmed through the channel provided for in article 
87, paragraph 1 (a).

    2. The request shall, as applicable, contain or be supported by the 
following:

          (a) A concise statement of the purpose of the request and the 
        assistance sought, including the legal basis and the grounds 
        for the request;

          (b) As much detailed information as possible about the 
        location or identification of any person or place that must be 
        found or identified in order for the assistance sought to be 
        provided;

          (c) A concise statement of the essential facts underlying the 
        request;

          (d) The reasons for and details of any procedure or 
        requirement to be followed;

          (e) Such information as may be required under the law of the 
        requested State in order to execute the request; and

          (f) Any other information relevant in order for the 
        assistance sought to be provided.

    3. Upon the request of the Court, a State Party shall consult with 
the Court, either generally or with respect to a specific matter, 
regarding any requirements under its national law that may apply under 
paragraph 2 (e). During the consultations, the State Party shall advise 
the Court of the specific requirements of its national law.

    4. The provisions of this article shall, where applicable, also 
apply in respect of a request for assistance made to the Court.

                               Article 97

                             Consultations

    Where a State Party receives a request under this Part in relation 
to which it identifies problems which may impede or prevent the 
execution of the request, that State shall consult with the Court 
without delay in order to resolve the matter. Such problems may 
include, inter alia:

          (a) Insufficient information to execute the request;

          (b) In the case of a request for surrender, the fact that 
        despite best efforts, the person sought cannot be located or 
        that the investigation conducted has determined that the person 
        in the custodial State is clearly not the person named in the 
        warrant; or

          (c) The fact that execution of the request in its current 
        form would require the requested State to breach a pre-existing 
        treaty obligation undertaken with respect to another State.

                               Article 98

Cooperation with respect to waiver of immunity and consent to surrender

    1. The Court may not proceed with a request for surrender or 
assistance which would require the requested State to act 
inconsistently with its obligations under international law with 
respect to the State or diplomatic immunity of a person or property of 
a third State, unless the Court can first obtain the cooperation of 
that third State for the waiver of the immunity.

    2. The Court may not proceed with a request for surrender which 
would require the requested State to act inconsistently with its 
obligations under international agreements pursuant to which the 
consent of a sending State is required to surrender a person of that 
State to the Court, unless the Court first obtain the cooperation of 
the sending State for the giving of consent for the surrender.

                               Article 99

             Execution of requests under articles 93 and 96

    1. Requests for assistance shall be executed in accordance with the 
relevant procedure under the law of the requested State and, unless 
prohibited by such law, in the manner specified in the request, 
including following any procedure outlined therein or permitting 
persons specified in the request to be present at and assist in the 
execution process.

    2. In the case of an urgent request, the documents or evidence 
produced in response shall, at the request of the Court, be sent 
urgently.

    3. Replies from the requested State shall be transmitted in their 
original language and form.

    4. Without prejudice to other articles in this Part, where it is 
necessary for the successful execution of a request which can be 
executed without any compulsory measures, including specifically the 
interview of or taking evidence from a person on a voluntary basis, 
including doing so without the presence of the authorities of the 
requested State Party if it is essential for the request to be 
executed, and the examination without modification of a public site or 
other public place, the Prosecutor may execute such request directly on 
the territory of a State as follows:

          (a) When the State Party requested is a State on the 
        territory of which the crime is alleged to have been committed, 
        and there has been a determination of admissibility pursuant to 
        articles 18 or 19, the Prosecutor may directly execute such 
        request following all possible consultations with the requested 
        State Party;

          (b) In other cases, the Prosecutor may execute such request 
        following consultations with the requested State Party and 
        subject to any reasonable conditions or concerns raised by that 
        State Party. Where the requested State Party identifies 
        problems with the execution of a request pursuant to this 
        subparagraph it shall, without delay, consult with the Court to 
        resolve the matter.

    5. Provisions allowing a person heard or examined by the Court 
under article 72 to invoke restrictions designed to prevent disclosure 
of confidential information connected with national defence or security 
shall also apply to the execution of requests for assistance under this 
article.

                              Article 100

                                 Costs

    1. The ordinary costs for execution of requests in the territory of 
the requested State shall be borne by that State, except for the 
following, which shall be borne by the Court:

          (a) Costs associated with the travel and security of 
        witnesses and experts or the transfer under article 93 of 
        persons in custody;

          (b) Costs of translation, interpretation and transcription;

          (c) Travel and subsistence costs of the judges, the 
        Prosecutor, the Deputy Prosecutors, the Registrar, the Deputy 
        Registrar and staff of any organ of the Court;

          (d) Costs of any expert opinion or report requested by the 
        Court;

          Costs associated with the transport of a person being 
        surrendered to the Court by a custodial State; and

          (f) Following consultations, any extraordinary costs that may 
        result from the execution of a request.

    2. The provisions of paragraph 1 shall, as appropriate, apply to 
requests from States Parties to the Court. In that case, the Court 
shall bear the ordinary costs of execution.

                              Article 101

                           Rule of speciality

    1. A person surrendered to the Court under this Statute shall not 
be proceeded against, punished or detained for any conduct committed 
prior to surrender, other than the conduct or course of conduct which 
forms the basis of the crimes for which that person has been 
surrendered.

    2. The Court may request a waiver of the requirements of paragraph 
1 from the State which surrendered the person to the Court and, if 
necessary, the Court shall provide additional information in accordance 
with article 91. States Parties shall have the authority to provide a 
waiver to the Court and should endeavour to do so.

                              Article 102

                              Use of terms

    For the purposes of this Statute:

          (a) ``surrender'' means the delivering up of a person by a 
        State to the Court, pursuant to this Statute.

          (b) ``extradition'' means the delivering up of a person by 
        one State to another as provided by treaty, convention or 
        national legislation.

                          PART 10. ENFORCEMENT

                              Article 103

       Role of States in enforcement of sentences of imprisonment

    1. (a) A sentence of imprisonment shall be served in a State 
designated by the Court from a list of States which have indicated to 
the Court their willingness to accept sentenced persons.

          (b) At the time of declaring its willingness to accept 
        sentenced persons, a State may attach conditions to its 
        acceptance as agreed by the Court and in accordance with this 
        Part.

          (c) A State designated in a particular case shall promptly 
        inform the Court whether it accepts the Court's designation.

    2. (a) The State of enforcement shall notify the Court of any 
circumstances, including the exercise of any conditions agreed under 
paragraph 1, which could materially affect the terms or extent of the 
imprisonment. The Court shall be given at least 45 days' notice of any 
such known or foreseeable circumstances. During this period, the State 
of enforcement shall take no action that might prejudice its 
obligations under article 110.

          (b) Where the Court cannot agree to the circumstances 
        referred to in subparagraph (a), it shall notify the State of 
        enforcement and proceed in accordance with article 104, 
        paragraph 1.

    3. In exercising its discretion to make a designation under 
paragraph 1, the Court shall take into account the following:

          (a) The principle that States Parties should share the 
        responsibility for enforcing sentences of imprisonment, in 
        accordance with principles of equitable distribution, as 
        provided in the Rules of Procedure and Evidence;

          (b) The application of widely accepted international treaty 
        standards governing the treatment of prisoners;

          (c) The views of the sentenced person; and

          (d) The nationality of the sentenced person;

          (e) Such other factors regarding the circumstances of the 
        crime or the person sentenced, or the effective enforcement of 
        the sentence, as may be appropriate in designating the State of 
        enforcement.

    4. If no State is designated under paragraph 1, the sentence of 
imprisonment shall be served in a prison facility made available by the 
host State, in accordance with the conditions set out in the 
headquarters agreement referred to in article 3, paragraph 2. In such a 
case, the costs arising out of the enforcement of a sentence of 
imprisonment shall be borne by the Court.

                              Article 104

             Change in designation of State of enforcement

    1. The Court may, at any time, decide to transfer a sentenced 
person to a prison of another State.

    2. A sentenced person may, at any time, apply to the Court to be 
transferred from the State of enforcement.

                              Article 105

                      Enforcement of the sentence

    1. Subject to conditions which a State may have specified in 
accordance with article 103, paragraph 1 (b), the sentence of 
imprisonment shall be binding on the States Parties, which shall in no 
case modify it.

    2. The Court alone shall have the right to decide any application 
for appeal and revision. The State of enforcement shall not impede the 
making of any such application by a sentenced person.

                              Article 106

 Supervision of enforcement of sentences and conditions of imprisonment

    1. The enforcement of a sentence of imprisonment shall be subject 
to the supervision of the Court and shall be consistent with widely 
accepted international treaty standards governing treatment of 
prisoners.

    2. The conditions of imprisonment shall be governed by the law of 
the State of enforcement and shall be consistent with widely accepted 
international treaty standards governing treatment of prisoners; in no 
case shall such conditions be more or less favourable than those 
available to prisoners convicted of similar offences in the State of 
enforcement.

    3. Communications between a sentenced person and the Court shall be 
unimpeded and confidential.

                              Article 107

           Transfer of the person upon completion of sentence

    1. Following completion of the sentence, a person who is not a 
national of the State of enforcement may, in accordance with the law of 
the State of enforcement, be transferred to a State which is obliged to 
receive him or her, or to another State which agrees to receive him or 
her, taking into account any wishes of the person to be transferred to 
that State, unless the State of enforcement authorizes the person to 
remain in its territory.

    2. If no State bears the costs arising out of transferring the 
person to another State pursuant to paragraph 1, such costs shall be 
borne by the Court.

    3. Subject to the provisions of article 108, the State of 
enforcement may also, in accordance with its national law, extradite or 
otherwise surrender the person to the State which has requested the 
extradition or surrender of the person for purposes of trial or 
enforcement of a sentence.

                              Article 108

     Limitation on the prosecution or punishment of other offences

    1. A sentenced person in the custody of the State of enforcement 
shall not be subject to prosecution or punishment or to extradition to 
a third State for any conduct engaged in prior to that person's 
delivery to the State of enforcement, unless such prosecution, 
punishment or extradition has been approved by the Court at the request 
of the State of enforcement.

    2. The Court shall decide the matter after having heard the views 
of the sentenced person.

    3. Paragraph 1 shall cease to apply if the sentenced person remains 
voluntarily for more than 30 days in the territory of the State of 
enforcement after having served the full sentence imposed by the Court, 
or returns to the territory of that State after having left it.

                              Article 109

              Enforcement of fines and forfeiture measures

    1. States Parties shall give effect to fines or forfeitures ordered 
by the Court under Part 7, without prejudice to the rights of bona fide 
third parties, and in accordance with the procedure of their national 
law.

    2. If a State Party is unable to give effect to an order for 
forfeiture, it shall take measures to recover the value of the 
proceeds, property or assets ordered by the Court to be forfeited, 
without prejudice to the rights of bona fide third parties.

    3. Property, or the proceeds of the sale of real property or, where 
appropriate, the sale of other property, which is obtained by a State 
Party as a result of its enforcement of a judgement of the Court shall 
be transferred to the Court.

                              Article 110

          Review by the Court concerning reduction of sentence

    1. The State of enforcement shall not release the person before 
expiry of the sentence pronounced by the Court.

    2. The Court alone shall have the right to decide any reduction of 
sentence, and shall rule on the matter after having heard the person.

    3. When the person has served two thirds of the sentence, or 25 
years in the case of life imprisonment, the Court shall review the 
sentence to determine whether it should be reduced. Such a review shall 
not be conducted before that time.

    4. In its review under paragraph 3, the Court may reduce the 
sentence if it finds that one or more of the following factors are 
present:

          (a) The early and continuing willingness of the person to 
        cooperate with the Court in its investigations and 
        prosecutions;

          (b) The voluntary assistance of the person in enabling the 
        enforcement of the judgements and orders of the Court in other 
        cases, and in particular providing assistance in locating 
        assets subject to orders of fine, forfeiture or reparation 
        which may be used for the benefit of victims; or

          (c) Other factors establishing a clear and significant change 
        of circumstances sufficient to justify the reduction of 
        sentence, as provided in the Rules of Procedure and Evidence.

    5. If the Court determines in its initial review under paragraph 3 
that it is not appropriate to reduce the sentence, it shall thereafter 
review the question of reduction of sentence at such intervals and 
applying such criteria as provided for in the Rules of Procedure and 
Evidence.

                              Article 111

                                 Escape

    If a convicted person escapes from custody and flees the State of 
enforcement, that State may, after consultation with the Court, request 
the person's surrender from the State in which the person is located 
pursuant to existing bilateral or multilateral arrangements, or may 
request that the Court seek the person's surrender. It may direct that 
the person be delivered to the State in which he or she was serving the 
sentence or to another State designated by the Court.

                  PART 11. ASSEMBLY OF STATES PARTIES

                              Article 112

                       Assembly of States Parties

    1. An Assembly of States Parties to this Statute is hereby 
established. Each State Party shall have one representative in the 
Assembly who may be accompanied by alternates and advisers. Other 
States which have signed the Statute or the Final Act may be observers 
in the Assembly.

    2. The Assembly shall:

          (a) Consider and adopt, as appropriate, recommendations of 
        the Preparatory Commission;

          (b) Provide management oversight to the Presidency, the 
        Prosecutor and the Registrar regarding the administration of 
        the Court;

          (c) Consider the reports and activities of the Bureau 
        established under paragraph 3 and take appropriate action in 
        regard thereto;

          (d) Consider and decide the budget for the Court;

          (e) Decide whether to alter, in accordance with article 36, 
        the number of judges;

          (f) Consider pursuant to article 87, paragraphs 5 and 7, any 
        question relating to non-cooperation;

          (g) Perform any other function consistent with this Statute 
        or the Rules of Procedure and Evidence.

    3. (a) The Assembly shall have a Bureau consisting of a President, 
two Vice-Presidents and 18 members elected by the Assembly for three-
year terms.

          (b) The Bureau shall have a representative character, taking 
        into account, in particular, equitable geographical 
        distribution and the adequate representation of the principal 
        legal systems of the world.

          (c) The Bureau shall meet as often as necessary, but at least 
        once a year. It shall assist the Assembly in the discharge of 
        its responsibilities.

    4. The Assembly may establish such subsidiary bodies as may be 
necessary, including an independent oversight mechanism for inspection, 
evaluation and investigation of the Court, in order to enhance its 
efficiency and economy.

    5. The President of the Court, the Prosecutor and the Registrar or 
their representatives may participate, as appropriate, in meetings of 
the Assembly and of the Bureau.

    6. The Assembly shall meet at the seat of the Court or at the 
Headquarters of the United Nations once a year and, when circumstances 
so require, hold special sessions. Except as otherwise specified in 
this Statute, special sessions shall be convened by the Bureau on its 
own initiative or at the request of one third of the States Parties.

    7. Each State Party shall have one vote. Every effort shall be made 
to reach decisions by consensus in the Assembly and in the Bureau. If 
consensus cannot be reached, except as otherwise provided in the 
Statute:

          (a) Decisions on matters of substance must be approved by a 
        two-thirds majority of those present and voting provided that 
        an absolute majority of States Parties constitutes the quorum 
        for voting;

          (b) Decisions on matters of procedure shall be taken by a 
        simple majority of States Parties present and voting.

    8. A State Party which is in arrears in the payment of its 
financial contributions towards the costs of the Court shall have no 
vote in the Assembly and in the Bureau if the amount of its arrears 
equals or exceeds the amount of the contributions due from it for the 
preceding two full years. The Assembly may, nevertheless, permit such a 
State Party to vote in the Assembly and in the Bureau if it is 
satisfied that the failure to pay is due to conditions beyond the 
control of the State Party.

    9. The Assembly shall adopt its own rules of procedure.

    10. The official and working languages of the Assembly shall be 
those of the General Assembly of the United Nations.

                           PART 12. FINANCING

                              Article 113

                         Financial Regulations

    Except as otherwise specifically provided, all financial matters 
related to the Court and the meetings of the Assembly of States 
Parties, including its Bureau and subsidiary bodies, shall be governed 
by this Statute and the Financial Regulations and Rules adopted by the 
Assembly of States Parties.

                              Article 114

                          Payment of expenses

    Expenses of the Court and the Assembly of States Parties, including 
its Bureau and subsidiary bodies, shall be paid from the funds of the 
Court.

                              Article 115

        Funds of the Court and of the Assembly of States Parties

    The expenses of the Court and the Assembly of States Parties, 
including its Bureau and subsidiary bodies, as provided for in the 
budget decided by the Assembly of States Parties, shall be provided by 
the following sources:

          (a) Assessed contributions made by States Parties;

          (b) Funds provided by the United Nations, subject to the 
        approval of the General Assembly, in particular in relation to 
        the expenses incurred due to referrals by the Security Council.

                              Article 116

                        Voluntary contributions

    Without prejudice to article 115, the Court may receive and 
utilize, as additional funds, voluntary contributions from Governments, 
international organizations, individuals, corporations and other 
entities, in accordance with relevant criteria adopted by the Assembly 
of States Parties.

                              Article 117

                      Assessment of contributions

    The contributions of States Parties shall be assessed in accordance 
with an agreed scale of assessment, based on the scale adopted by the 
United Nations for its regular budget and adjusted in accordance with 
the principles on which that scale is based.

                              Article 118

                              Annual audit

    The records, books and accounts of the Court, including its annual 
financial statements, shall be audited annually by an independent 
auditor.

                         PART 13. FINAL CLAUSES

                              Article 119

                         Settlement of disputes

    1. Any dispute concerning the judicial functions of the Court shall 
be settled by the decision of the Court.

    2. Any other dispute between two or more States Parties relating to 
the interpretation or application of this Statute which is not settled 
through negotiations within three months of their commencement shall be 
referred to the Assembly of States Parties. The Assembly may itself 
seek to settle the dispute or make recommendations on further means of 
settlement of the dispute, including referral to the International 
Court of Justice in conformity with the Statute of that Court.

                              Article 120

                              Reservations

    No reservations may be made to this Statute.

                              Article 121

                               Amendments

    1. After the expiry of seven years from the entry into force of 
this Statute, any State Party may propose amendments thereto. The text 
of any proposed amendment shall be submitted to the Secretary-General 
of the United Nations, who shall promptly circulate it to all States 
Parties.

    2. No sooner than three months from the date of notification, the 
next Assembly of States Parties shall, by a majority of those present 
and voting, decide whether to take up the proposal. The Assembly may 
deal with the proposal directly or convene a Review Conference if the 
issue involved so warrants.

    3. The adoption of an amendment at a meeting of the Assembly of 
States Parties or at a Review Conference on which consensus cannot be 
reached shall require a two-thirds majority of States Parties.

    4. Except as provided in paragraph 5, an amendment shall enter into 
force for all States Parties one year after instruments of ratification 
or acceptance have been deposited with the Secretary-General of the 
United Nations by seven-eighths of them.

    5. Any amendment to article 5 of this Statute shall enter into 
force for those States Parties which have accepted the amendment one 
year after the deposit of their instruments of ratification or 
acceptance. In respect of a State Party which has not accepted the 
amendment, the Court shall not exercise its jurisdiction regarding a 
crime covered by the amendment when committed by that State Party's 
nationals or on its territory.

    6. If an amendment has been accepted by seven-eighths of States 
Parties in accordance with paragraph 4, any State Party which has not 
accepted the amendment may withdraw from the Statute with immediate 
effect, notwithstanding paragraph 1 of article 127, but subject to 
paragraph 2 of article 127, by giving notice no later than one year 
after the entry into force of such amendment.

    7. The Secretary-General of the United Nations shall circulate to 
all States Parties any amendment adopted at a meeting of the Assembly 
of States Parties or at a Review Conference.

                              Article 122

          Amendments to provisions of an institutional nature

    1. Amendments to provisions of the Statute which are of an 
exclusively institutional nature, namely, article 35, article 36, 
paragraphs 8 and 9 article 37, article 38, article 39, paragraphs 1 
(first two sentences), 2 and 4, article 42, paragraphs 4 to 9, article 
43, paragraphs 2 and 3, and articles 44, 46, 47 and 49, may be proposed 
at any time, notwithstanding article 121, paragraph 1, by any State 
Party. The text of any proposed amendment shall be submitted to the 
Secretary-General of the United Nations or such other person designated 
by the Assembly of States Parties who shall promptly circulate it to 
all States Parties and to others participating in the Assembly.

    2. Amendments under this article on which consensus cannot be 
reached shall be adopted by the Assembly of States Parties or by a 
Review Conference, by a two-thirds majority of States Parties. Such 
amendments shall enter into force for all States Parties six months 
after their adoption by the Assembly or, as the case may be, by the 
Conference.

                              Article 123

                         Review of the Statute

    1. Seven years after the entry into force of this Statute the 
Secretary-General of the United Nations shall convene a Review 
Conference to consider any amendments to this Statute. Such review may 
include, but is not limited to, the list of crimes contained in article 
5. The Conference shall be open to those participating in the Assembly 
of States Parties and on the same conditions.

    2. At any time thereafter, at the request of a State Party and for 
the purposes set out in paragraph 1, the Secretary-General of the 
United Nations shall, upon approval by a majority of States Parties, 
convene a Review Conference.

    3. The provisions of article 121, paragraphs 3 to 7, shall apply to 
the adoption and entry into force of any amendment to the Statute 
considered at a Review Conference.

                              Article 124

                         Transitional Provision

    Notwithstanding article 12 paragraph 1, a State, on becoming a 
party to this Statute, may declare that, for a period of seven years 
after the entry into force of this Statute for the State concerned, it 
does not accept the jurisdiction of the Court with respect to the 
category of crimes referred to in article 8 when a crime is alleged to 
have been committed by its nationals or on its territory. A declaration 
under this article may be withdrawn at any time. The provisions of this 
article shall be reviewed at the Review Conference convened in 
accordance with article 123, paragraph 1.

                              Article 125

       Signature, ratification, acceptance, approval or accession

    1. This Statute shall be open for signature by all States in Rome, 
at the headquarters of the Food and Agriculture Organization of the 
United Nations, on 17 July 1998. Thereafter, it shall remain open for 
signature in Rome at the Ministry of Foreign Affairs of Italy until 17 
October 1998. After that date, the Statute shall remain open for 
signature in New York, at United Nations Headquarters, until 31 
December 2000.

    2. This Statute is subject to ratification, acceptance or approval 
by signatory States. Instruments of ratification, acceptance or 
approval shall be deposited with the Secretary-General of the United 
Nations.

    3. This Statute shall be open to accession by all States. 
Instruments of accession shall be deposited with the Secretary-General 
of the United Nations.

                              Article 126

                            Entry into force

    1. This Statute shall enter into force on the first day of the 
month after the 60th day following the date of the deposit of the 60th 
instrument of ratification, acceptance, approval or accession with the 
Secretary-General of the United Nations.

    2. For each State ratifying, accepting, approving or acceding to 
the Statute after the deposit of the 60th instrument of ratification, 
acceptance, approval or accession, the Statute shall enter into force 
on the first day of the month after the 60th day following the deposit 
by such State of its instrument of ratification, acceptance, approval 
or accession.

                              Article 127

                               Withdrawal

    1. A State Party may, by written notification addressed to the 
Secretary-General of the United Nations, withdraw from this Statute. 
The withdrawal shall take effect one year after the date of receipt of 
the notification, unless the notification specifies a later date.

    2. A State shall not be discharged, by reason of its withdrawal, 
from the obligations arising from this Statute while it was a Party to 
the Statute, including any financial obligations which may have 
accrued. Its withdrawal shall not affect any cooperation with the Court 
in connection with criminal investigations and proceedings in relation 
to which the withdrawing State had a duty to cooperate and which were 
commenced prior to the date on which the withdrawal became effective, 
nor shall it prejudice in any way the continued consideration of any 
matter which was already under consideration by the Court prior to the 
date on which the withdrawal became effective.

                              Article 128

                            Authentic texts

    The original of this Statute, of which the Arabic, Chinese, 
English, French, Russian and Spanish texts are equally authentic, shall 
be deposited with the Secretary-General of the United Nations, who 
shall send certified copies thereof to all States.

    IN WITNESS WHEREOF, the undersigned, being duly authorized thereto 
by their respective Governments, have signed this Statute. DONE at 
Rome, this 17th day of July 1998.

                               __________

Statement of the United States Delegation to the Preparatory Committee 
        on the Establishment of an International Criminal Court

                                                    March 23, 1998.

    The United States is deeply concerned that at this late stage of 
the proceedings of the Preparatory Committee, certain fundamental 
tenets of International Humanitarian Law applicable to non-
international armed conflict are still being questioned. It would be 
regrettable if, before Rome, the Preparatory Committee could not reach 
an understanding on the deletion of a number of brackets.

   To facilitate our progress in Rome, the United States 
        strongly believes that the bracketed text ``in armed conflict'' 
        should be deleted from the definition of crimes against 
        humanity (paragraph 1, on page 32 of the Zutphen draft). 
        Contemporary international law makes it clear that no war nexus 
        for crimes against humanity is required. (The United States 
        distributed a paper examining this issue on March 25, 1996.) 
        The United States believes that crimes against humanity must be 
        deterred in times of peace as well as in times of war and that 
        the ICC Statute should reflect this principle.
   Section C of the definition of war crimes (on page 28 of the 
        Zutphen draft), which incorporates common Article 3 of the 
        Geneva Conventions, is currently bracketed. In our view, it is 
        essential that those brackets be removed. The United States 
        strongly believes that serious violations of the elementary 
        customary norms reflected in common Article 3 should be the 
        centerpiece of the ICC's subject matter jurisdiction with 
        regard to non-international armed conflicts.
   Finally, the United States urges that there should be a 
        section, in addition to Section C, covering other rules 
        regarding the conduct of hostilities in non-international armed 
        conflicts. It is good international law, and good policy, to 
        make serious violations of at least some fundamental rules 
        pertaining to the conduct of hostilities in non international 
        armed conflicts a part of the ICC's jurisdiction.


    The United States is eager to work with other delegations to build 
strong consensus on these matters

                               __________

   Statement of the United States Delegation on Elements of Offenses

                                          United States Delegation,
                                                     April 3, 1998.


    On Friday, March 27th, the U.S. delegation submitted a paper to the 
Preparatory Committee as an illustration of how a set of criminal 
elements, annexed to the Statute, might appear. We solicited, and have 
received comments on this paper, and have since submitted the paper as 
a conference document which is forthcoming as DP 11. (It may not be 
translated by the end of the Preparatory Committee meeting)

    The overwhelming majority of comments have been positive with 
respect to the need to define crimes with the clarity, precision and 
specificity many jurisdictions require for criminal law. This is 
consistent with adherence to the principle of nullum crimen sine lege 
and the desires for specificity in the definition of crimes expressed 
in reports from earlier Preparatory Committee meetings. We have also 
received some critical comments, however, or perhaps more 
appropriately--expressions of cautious reservation, due to the 
necessarily late submission of our proposed annex and what some see as 
a potential to delay negotiation of the treaty in Rome.

    I would like to take a moment to address these concerns directly.

    We hope for a successful conclusion of a diplomatic conference in 
Rome. We view our proposal regarding a criminal elements annex as being 
entirely consistent with and, in fact, advancing the constructive 
approach our delegations have taken to achieve that aim.

    The United States continues to believe that the inclusion of an 
annex which lays out criminal elements is a fundamental requirement for 
a successful criminal statute. We understand that different criminal 
justice systems function with different levels of specificity, but if 
the International Criminal Court is to enjoy the widespread acceptance, 
recognition and respect that it must have to function appropriately, it 
must not have standards of criminal justice that are less rigorous than 
those of its member states. Considering the seriousness of the crimes 
and penalties in these cases, specificity becomes an issue of 
fundamental fairness.

    Addressing the issue of timing, let me explain why we have just now 
introduced DP 11 as opposed to at an earlier time. The answer is 
closely related to the fact that we could only submit a template or 
model and not a specific proposal. The task of listing elements of 
offenses is logically accomplished subsequent to reaching consensus on 
the list of crimes. However, at this juncture, such consensus has not 
been achieved. Therefore, the United States has prepared this document 
to serve as a potential template or model for a parallel effort in Rome 
or follow-on negotiations of a more technical nature.

    More than two years ago, there was widespread agreement that the 
statute would need to define crimes with the clarity and precision of a 
criminal statute. While there may be different perceptions of what the 
terms ``clarity'' and ``precision'' really mean, there can be no 
disagreement that the current formulations of crimes do not contain the 
requisite specificity. Our current list of crimes in the draft statute 
uses language frequently drawn directly from Hague or Geneva 
Conventions. While accommodating some concerns of the international 
lawyer, these conventional formulations are not crafted so as to 
address the needs of the criminal practitioner.

    Moving beyond the timing of our proposal, I would like to address 
the issue of the potential for delay. No one has suggested a less 
ambitious goal than completion in Rome, but likewise we should accept 
nothing less than a thorough comprehensive treaty. We should not allow 
ourselves to conclude that any necessary effort is simply ``too hard to 
complete in Rome. Nevertheless. we have attempted to accommodate the 
concerns of other delegations by maintaining an attitude of flexibility 
on the specific procedures or mechanism by which the annex could be 
adopted. We have made several references to the criminal elements in 
the draft text, coupling them with the terms, ``rules of evidence and 
procedure.'' The specific mechanism for adopting an elements annex must 
still be clarified.

    While timing may be a point for discussion, we believe that the 
status of the elements as a constituent part of the statute should be 
presumed. The essence of this entire effort is the preeminence of the 
rule of law. This law binds alleged perpetrators as well as the 
prosecutors and judges that make them accountable. The elements must be 
a part of the statute; they carry with them the rigor that gives a 
criminal tribunal its authority as an institution under the law.

    Some argue that those bred in civil law have found the common law 
character of the elements paper difficult. We sympathize with their 
concerns and are happy to consult with them. Consultations thus far 
lead us to believe that it would be possible to make this paper broadly 
acceptable to a wide range of delegations. It may be that the best way 
of proceeding in Rome would be to charge a group of experts drawn from 
different legal systems to finalize the elements text for adoption, as 
an annex to the Statute, at the end of the Rome conference.

    Some delegations may believe that the task of reaching consensus on 
elements is a daunting one, given the short time available. They may 
believe that discussions about the elements will be as complex as the 
discussions we had about principles of criminal law and the list of 
crimes. But the elements are meant to be simple and practical. In fact, 
the removal of any perceived ambiguity in the current crime list could 
facilitate agreement on that list. They are something readily familiar 
to criminal practitioners, a necessary guide to prosecutors of what 
must be proved, and to defense counsel of what must be defended 
against.

    Conversely, some have argued that there is no controversy regarding 
what the elements are, and thus, negotiating them is an unnecessary 
task. If this is the case, then we should reach quick agreement at 
Rome, without any controversial discussion. However, if there are some 
points of disagreement in the elements, then discussion and agreement 
on them become even more important. How can we ask the global community 
to accept the jurisdiction of a court, when we cannot even agree on the 
precise nature of the criminal activity that would be subject to it?

    The U.S. delegation strongly urges other delegations to take a 
close look at the criminal elements paper that we have proposed. We 
must ensure that our endeavors are oriented toward establishment of a 
responsible permanent international criminal justice system. We cannot 
abandon the task in the face of difficulties, and leave it for the 
court. We will elect judges to judge, not to legislate.

    In conclusion, we do not believe the court should become 
operational before the elements are adopted. And this, of course, is 
also true about the need to adopt rules of evidence and procedure 
before the court becomes operational. Our proposal is designed to 
create a truly viable and effective permanent court that deserves the 
authority and responsibility we give it.

                                 ______
                                 

   Proposal Submitted by the United States of America on Elements of 
             Offences for the International Criminal Court

                                                A/AC.249/1998/DP.11
                                                       2 April 1998
                                                  Original: English
Preparatory Committee on the Establishment of an International Criminal 
    Court
16 March-3 April 1998

           Proposal Submitted by the United States of America

       Elements of Offenses for the International Criminal Court

    1. The attached reference paper is submitted to the Preparatory 
Committee as an illustration of how a set of criminal elements, annexed 
to the Statute, might appear.

    2. The March-April and August 1996 Proceedings of the Preparatory 
Committee reported that ``[t]here was general agreement that the crimes 
within the jurisdiction of the Court should be defined with the 
clarity, precision and specificity required for criminal law in 
accordance with the principle of legality (nullum crimen sine lege).'' 
Significant attention was given to the concept that articles dealing 
with crimes should identify ``the essential elements of the offenses 
and the minimum qualitative and quantitative requirements.'' The 
Committee reported, ``[t]he definition of war crimes should clearly 
indicate in what circumstances, by which perpetrators and against which 
victims certain acts would constitute such crimes.'' \1\
---------------------------------------------------------------------------
    \1\ Official Records of the General Assembly, Fifty-first Session, 
Supplement No. 22 (A/51/22) par. 52-53.)

    3. The United States believes that elements of the crimes should be 
set forth in an annex to the Statute to provide the clarity and 
precision required to adequately instruct the Prosecutor and Court, to 
ensure respect for the rights of the accused. Current formulations of 
crimes in the Zutphen Draft Statute (A/AC.249/1998/L.13) tie norms to 
treaty formulations but fail to provide a useful tool to the 
practitioner. We believe criminal elements can give teeth to the 
---------------------------------------------------------------------------
concept of nullum crimen sine lege.

    4. The task of listing elements of offenses is logically 
accomplished subsequent to reaching consensus on the list of crimes. 
However, at this juncture, such consensus may not be achieved prior to 
the Diplomatic Conference. Therefore, the United States has prepared 
this present document to serve as a potential template for a parallel 
effort in establishing elements for the eventual list of crimes under 
the Court's jurisdiction. This effort could facilitate agreement on a 
list of crimes by removing fear that ambiguous terminology will be 
unfavorably interpreted by a judge. The existence of elements could 
provide a level of assurance that will allow consensus to develop for 
certain crimes and bolster the credibility of the Court.

    5. These elements were drafted for a list of some 52 offenses found 
in the Zutphen draft that we believe are fairly widely accepted. They 
are consolidated here in a list of 32 substantive offenses. Reference 
to the statute's formulation can be found in the ``definition'' section 
of each listing in this document. However, this is not meant to be a 
statement of support for or against any crime. Likewise, we are not 
necessarily bound to the substance of the provisions herein. Our goal 
is to facilitate discussion to reach what we believe is an achievable 
goal, and one that may allow many more countries eventually to join the 
statute.
Annex

       Elements of Offenses for the International Criminal Court

A. Genocide

          a. Definition: Any of several acts committed with the intent 
        to destroy in whole or in part, a national, ethnic, racial or 
        religious group, as such.

          b. Elements:

                  (i) That the accused committed one or more of the 
                following acts against a person in a national, ethnic, 
                racial, or religious group, because of that person's 
                membership in that group:

                          a. Killing;

                          b. Causing serious bodily or mental harm;

                          c. Deliberately inflicting conditions of life 
                        calculated to bring about physical destruction 
                        of the group in whole or in part;

                          d. Imposing measures intended to prevent 
                        births within the group; or

                          e. Forcibly transferring children of the 
                        group to another group.

                  (ii) That when the accused committed such act, the 
                accused had the intent to take part in a plan to 
                destroy such group in whole or in part.
B. Crimes Against Humanity
1. General comments

    The following comments apply to all of Part B:

          (a) A crime against humanity means any of the following acts 
        when committed as part of a widespread or systematic attack 
        against a civilian population: extermination, murder, torture, 
        arbitrary imprisonment, arbitrary deportation, enslavement, 
        rape and other forms of sexual abuse, including enforced 
        prostitution, and enforced disappearance of persons.

          (b) In contrast to war crimes, crimes against humanity need 
        not take place during an armed conflict.

          (c) All crimes against humanity require deliberate and 
        purposeful action. Additionally, they share the element of 
        being crimes constituent within a widespread or systematic 
        attack. The accused need not be personally responsible for the 
        widespread or systematic nature of the entire attack.

          (d) ``Widespread'' means the attack is massive in nature and 
        directed against a large number of individuals.

          (e) ``Systematic'' means the attack constitutes or is part 
        of, consistent with or in furtherance of, a policy or concerted 
        plan, or repeated practice over a period of time.
2. Murder

          (a) Definition from Statute. Murder.

          (b) Elements:

                  (i) That the accused intended to kill or cause death 
                to one or more non-combatant persons;

                  (ii) That the accused killed or caused the death of 
                one or more persons;

                  (iii) That the killing was arbitrary and without 
                lawful justification; and

                  (iv) That the killing was carried out as part of a 
                widespread or systematic attack.

          (c)  Comment. Since this offense requires deliberate and 
        purposeful action, the thought of taking life must be 
        consciously conceived and the act or omission by which it was 
        taken must be intended.
3. Extermination

          (a) Definition: Extermination.

          (b) Elements:

                  (i) That the accused intended to kill or cause to be 
                killed a group of people, a population, or a large 
                portion of a population;

                  (ii) That the accused killed or caused to be killed 
                one or more people;

                  (iii) That the killing was deliberate and 
                premeditated; and

                  (iv) That the killing was carried out as part of a 
                widespread or systematic attack.

          (c) Comments:

                  (i) An accused may be found guilty of this offense if 
                he imposed unlawful living conditions that were 
                intended to be seriously injurious to health and safety 
                and that were calculated to bring about death of a 
                large portion of a population. An intentional failure 
                to provide essential food, shelter, and medical care 
                may be sufficient for a conviction. A siege or embargo 
                conducted according to the laws of armed conflict is 
                not extermination under this Statute.

                  (ii) Extermination is distinguished from genocide in 
                that it does not require targeting the population to be 
                based solely on nationality, race, ethnicity, or 
                religion.
4. Enslavement

          (a) Definition: Enslavement.

          (b) Elements:

                  (i) That the accused intended to own or cause to be 
                owned one or more persons and the fruits of their 
                labour;

                  (ii) That one or more persons was forced to do labor 
                without any compensation;

                  (iii) That the accused exerted ownership rights over 
                one or more persons so as to deprive them of all 
                individual rights; and

                  (iv) That the enslavement was carried out as part of 
                a widespread or systematic attack.

          (c) Comment. The detention or internment of protected 
        persons, defined in accordance with the Geneva Conventions of 
        1949, does not constitute enslavement under this Statute.
5. Unlawful Imprisonment

          (a) Definition: Imprisonment in flagrant violation of 
        international law or fundamental legal norms.

          (b) Elements:

                  (i) That the accused intended to imprison or cause to 
                be imprisoned a group of people, a population, or part 
                of a population, with the knowledge that such 
                imprisonment was unlawful;

                  (ii) That the accused unlawfully imprisoned or caused 
                to be imprisoned one or more persons;

                  (iii) That in carrying out the imprisonment, the 
                accused systematically conducted or caused to be 
                carried out arrests, detentions, or use of sham legal 
                process that departed substantially from established 
                indispensable governing norms; and

                  (iv) That the imprisonment was carried out as part of 
                a widespread or systematic attack.

          (c) Comments:

                  (i) Upon a prima facia showing by the defense, the 
                prosecutor has the burden of proving that imprisonment 
                was not carried out for some lawful purpose. The 
                following cases do not constitute arbitrary 
                imprisonment: the lawful detention of persons after 
                conviction by a competent court; the lawful arrest or 
                detention of persons for non-compliance with the lawful 
                order of a court or in order to secure fulfillment of 
                any obligation prescribed by law; and the lawful 
                detention of persons for the prevention of the 
                spreading of infectious diseases or to otherwise 
                safeguard health and safety.

                  (ii) Since this offense requires deliberate and 
                purposeful action, a good faith belief that the 
                imprisonment was lawful would undermine the intent 
                element of the offense.
6. Torture

          (a) Definition: Torture.

          (b) Elements:

                  (i) That the accused intended to cause death, serious 
                injury or severe pain to one or more persons;

                  (ii) That the accused committed acts resulting in the 
                infliction of severe physical or mental pain or 
                suffering upon one or more persons;

                  (iii) That the accused, at the time of such acts, had 
                the intent to inflict severe physical or mental pain or 
                suffering;

                  (iv) That the acts did not arise from or were not 
                inherent in or incidental to lawful sanctions; and

                  (v) That the acts were carried out as part of a 
                widespread or systematic attack.
7. Deportation

          (a) Definition: Deportation or forcible transfer of 
        population.

          (b) Elements:

                  (i) That the accused intended to wrongfully deport or 
                transfer a population or group of people from their 
                lawful place of residence;

                  (ii) That the accused knew of population or group's 
                lawful residence in the place from which the accused 
                expelled them;

                  (iii) That the accused caused a population or group 
                to be forcibly moved from their lawful place of 
                residence without justification based on security 
                considerations or other imperative reason of public 
                welfare; and

                  (iv) That the forcible movement was carried out as 
                part of a widespread or systematic attack.

          (c) Comment. The ``wrongfulness'' of the intent element and 
        the lack of justification for the movement preclude prosecution 
        for justified movements such as:

                  (i) Any movement of a population according to Article 
                49, of the First Geneva Convention, 1949;

                  (ii) Any movement in case of an emergency or calamity 
                threatening the life or well-being of the population;

                  (iii) Any service of punishment lawfully imposed;

                  (iv) Any movement required as a necessary adjunct of 
                a lawful internment.
8. Rape, Sexual Abuse, or Enforced Prostitution.

          (a) Definition: Rape or other sexual abuse of comparable 
        gravity, or enforced prostitution.

          (b) Elements:

                  (i) That the accused intended to attack a person or 
                persons through acts of a sexual nature;

                  (ii) That the accused committed or caused to be 
                committed one of the following acts by force:

                          a. Rape;

                          b. Sexual abuse; or

                          c. Enforced prostitution; and

                  (iii) That the acts were committed as part of a 
                widespread or systematic attack.

          (c) Comments:

                  (i) ``Rape'' is the forcible penetration, however 
                slight, of any part of the body of another by the 
                accused's sexual organ, or forcible penetration, 
                however slight, of the anal or genital opening of 
                another by any object.

                  (ii) ``Sexual abuse'' is any contact of a sexual 
                nature by force or threat of force of comparable 
                gravity to rape. It specifically includes the offenses 
                of sexual mutilation, enforced pregnancy, and enforced 
                sterilization.

                  (iii) ``Sexual mutilation'' is forcibly causing 
                serious physical injury to the victim's sexual organs.

                  (iv) ``Enforced prostitution'' is intentional sexual 
                enslavement wherein the ``forcible'' element need not 
                be present for each individual sex act, but is 
                generally present regarding a mandated occupation that 
                involves acts of a sexual nature related to rape or 
                sexual abuse.

                  (v) ``Committed by force'' means the sexual act was 
                accomplished by force or threat of force against the 
                victim or a third person. The threat of force can be 
                either express or implied, and must place the victim in 
                reasonable fear that he or she or a third person will 
                be subjected to violence, detention, duress, or 
                psychological oppression if the victim does not comply. 
                Evidence of consent may negate the necessary force 
                element. However, consent may not be inferred if 
                resistance would have been futile, if the victim was 
                forcibly detained, where resistance is overcome by 
                threats of death or great bodily harm, or where the 
                victim is unable to resist because of the lack of 
                mental or physical faculties.
9. Persecution

          (a) Definition: Persecution against any identifiable group or 
        collectivity on political, racial, national, ethnic, cultural 
        or religious grounds and in connection with other crimes within 
        the jurisdiction of the Court.

          (b) Elements:

                  (i) That the accused intended to deprive an 
                identifiable group of persons of life, liberty or 
                security of person;

                  (ii) That the accused unlawfully and directly 
                deprived one or more members of that group of life, 
                liberty or security or person;

                  (iii) That the deprivation caused death, serious 
                physical or mental injury or a complete loss of human 
                dignity;

                  (iv) That the deprivation was motivated by the target 
                group's political, racial, national, ethnic, cultural 
                or religious affiliation;

                  (v) That the deprivation was carried out in 
                conjunction with one or more of the other crimes 
                against humanity described in this statute and as part 
                of a widespread or systematic attack.

          (c) Comments:

                  (i) The ``directly'' requirement in the second 
                element of this offense necessitates that the accused's 
                actions be the proximate cause of any deprivation. 
                Crimes of omission such as allowing starvation to take 
                place would not be crimes against humanity under this 
                section.

                  (ii) The intent element of this offense requires both 
                an intent to deprive and a motivation that is based on 
                a group's political, racial, national, ethnic, cultural 
                or religious affiliation.
C. War Crimes
1. General Comments

    The following comments apply to all of Part C:

          (a) Military necessity. The principle of military necessity 
        authorizes that use of force, not otherwise specifically 
        prohibited by the law of armed conflict, required for mission 
        accomplishment or submission of the enemy.

          (b) Collateral damage. Collateral Damage includes that 
        incidental injury or additional damage that was not intended by 
        an attack or course of action. It is not unlawful to cause 
        incidental injury or death to civilians, or collateral damage 
        to civilian objects, during an attack upon a legitimate 
        military objective. The principle of proportionality, however, 
        may prohibit some attacks on legitimate military objectives 
        that would cause excessive collateral damage or injury.

          (c) Proportionality. The principle of proportionality 
        prohibits attacks which are expected to cause incidental loss 
        of civilian life, injury to civilians, damage to civilian 
        objects, or a combination thereof, which would be clearly 
        excessive in relation to the overall military advantage 
        anticipated.

          (d) Evaluation of intent element in war crimes. In several 
        cases, there is a particular mens rea requirement for war 
        crimes which involves a level of knowledge of the commander or 
        other accused. Decisions by military commanders and others 
        responsible for planning, deciding upon or executing attacks 
        can only be judged on the basis of their assessment of the 
        information reasonably available to them under the 
        circumstances at the relevant time.
2. Willful Killing

          (a) Definition: Willful killing; killing or wounding a 
        combatant who, having laid down his arms or having no longer a 
        means of defense, has surrendered at discretion; Violence to 
        life and person, in particular murder of all kinds.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an international armed conflict;

                  (ii) That a certain person, protected under one or 
                more of the Geneva Conventions of 1949 is dead;

                  (iii) That at the time of the act or omission, the 
                accused knew or should have known that the victim was 
                protected under one or more of the Geneva Conventions 
                of 1949;

                  (iv) That the death resulted from the act or omission 
                of the accused; and

                  (v) That, at the time of the killing, the accused had 
                the intent to kill or inflict great bodily harm upon 
                the victim or another similarly protected person.

          (c) Comments:

                  (i) This offense requires deliberate and purposeful 
                action. The act or omission must have been accompanied 
                by an intent to kill or cause great bodily harm, 
                accompanied by knowledge of the intended victim's 
                status.

                  (ii) Willful killing encompasses faults of omission. 
                The omission must have been intended to cause death or 
                great bodily harm. Again, if death is the foreseeable 
                consequence of such omission, intent can be inferred. 
                Examples include giving instructions for food rations 
                of prisoners of war to be reduced to such a point that 
                malnutrition causes death and allowing wounded persons 
                to die for want of reasonably available medical care.
3. Torture

          (a) Definition: Torture; violence to life and person, in 
        particular cruel treatment and torture; Willfully causing great 
        suffering, or serious injury to body or health.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an armed conflict;

                  (ii) That the accused committed acts resulting in the 
                infliction of severe physical or mental pain or 
                suffering upon one or more persons;

                  (iii) That the accused, at the time of such acts, had 
                the intent to inflict severe physical or mental pain or 
                suffering;

                  (iv) That the acts did not arise from or was not 
                inherent in or incidental to lawful sanctions.
4. Inhuman treatment

          (a) Definition: Willfully causing great suffering or serious 
        injury to body or health; violence to life and person, in 
        particular mutilation; inhuman treatment, including biological 
        experimentation; subjecting persons who are in the power of an 
        adverse Party to physical mutilation or to medical or 
        scientific experiments of any kind that are neither justified 
        by the medical, dental, or hospital treatment of the person 
        concerned nor carried out in his interest, and that causes 
        death to or seriously endangers the health of such person or 
        persons; committing outrages upon personal dignity, in 
        particular humiliating and degrading treatment.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an armed conflict;

                  (ii) That the accused committed an act against a 
                certain person or subjected that person to a particular 
                medical or biological procedure or treatment;

                  (iii) (for inhuman treatment) That the act was 
                intended to, and did in fact, subject the victim to 
                mutilation, severe indignities, pain, or extreme 
                suffering grossly out of proportion to the treatment 
                expected of one human being from another; or

                  (iii) (for biological experimentation) That the 
                intent of the procedure or treatment was non-
                therapeutic and was neither justified by medical reason 
                nor carried out in the victim's interest; and

                  (iv) (for both inhuman treatment and biological 
                experimentation) That the act or treatment caused death 
                or serious injury to the mental or physical health of 
                the victim.
5. Extensive destruction or wrongful appropriation

          (a) Definition: Extensive destruction and appropriation of 
        property, not justified by military necessity and carried out 
        unlawfully and wantonly; Destroying or seizing the property of 
        an adversary unless such destruction or seizure be imperatively 
        demanded by the necessitates of the conflict; Pillaging a town 
        or place, even when taken by assault.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an armed conflict;

                  (ii) That the accused willfully or recklessly 
                destroyed, damaged, or appropriated certain real or 
                personal property; and

                  (iii) That the amount of destruction, damage, or 
                wrongful appropriation was clearly excessive, not 
                justified by military necessity, and carried out 
                wantonly.

          (c) Comments:

                  (i) The wantonness requirement takes this offense 
                beyond a mere intentional destruction or appropriation 
                in excess of that required by military necessity and 
                necessitates proof of a significantly heightened malice 
                or arbitrary disregard for the rights of the victims.

                  (ii) Causing collateral damage cannot constitute this 
                offense. Likewise, destruction or appropriation 
                justified by military necessity is not unlawful.

                  (iii) Wrongful Appropriation means taking property 
                from its lawful owner, or any other person with a 
                greater possessory interest than the accused, with the 
                intent to permanently deprive.
6. Compelling hostile acts

          (a) Definition: Compelling a prisoner of war or other 
        protected person to serve in the forces of a hostile power; 
        compelling the nationals of the hostile party to take part in 
        the operations of war directed against their own country, even 
        if they were in the belligerent's service before the 
        commencement of the war.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an international armed conflict;

                  (ii) That the accused coerced a certain person, by 
                act or threat, to engage in hostile acts against that 
                person's own country; and

                  (iii) That the person coerced was a prisoner of war 
                or a civilian protected by one or more of the Geneva 
                Conventions of 1949.

          (c) Comment: Implicit in the second element is the fact that 
        the acts compelled do not constitute lawful prisoner of war or 
        civilian labor as defined by articles 49-57 of (Geneva) 
        Convention (III) Relative to the Treatment of Prisoners of War, 
        1949 and articles 51 and 52 of (Geneva) Convention (IV) 
        Relative to the Protection of Civilian Persons in Time of War, 
        1949.
7. Denying judicial guarantees

          (a) Definition: Willfully depriving a prisoner of war or 
        other protected person of the rights of a fair and regular 
        trial; declaring abolished, suspended or inadmissible in a 
        court of law the rights and actions of the nationals of the 
        hostile party; the passing of sentences and the carrying out of 
        executions without previous judgment pronounced by a regularly 
        constituted court, affording all judicial guarantees which are 
        generally recognized as indispensable.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an armed conflict;

                  (ii) That the accused allowed judicial proceedings to 
                be concluded which resulted in some punishment of a 
                certain prisoner of war or civilian within the 
                accused's control;

                  (iii) That the accused intended to deprive the person 
                of a fair and regular trial; and

                  (iv) (for international armed conflicts) That such 
                act was performed without according the person a fair 
                and regular trial as defined by the Third and Fourth 
                Geneva Conventions of 1949; or

                  (iv) (for non-international armed conflicts) That 
                such act was performed without judgment by a regularly 
                constituted court or without the most manifestly 
                indispensable judicial guarantees.

          (c) Comment: For international armed conflicts, the substance 
        of this offense is the violation of one or more of the penal 
        provisions of articles 82-88; 99-108 of (Geneva) Convention 
        (III) Relative to the Treatment of Prisoners of War, 1949, and 
        articles 64-78 of (Geneva) Convention (IV) Relative to the 
        Protection of Civilian Persons in Time of War, 1949. For non-
        international armed conflict, the elements of the offense are 
        only met when the combined violations of penal provisions rise 
        to the level of indispensable judicial guarantees requisite for 
        the most fundamental judicial norms, as provided in Common 
        Article 3(d) of the Geneva Conventions of 1949.
8. Deportation

          (a) Definition: Unlawful deportation, transfer, or unlawful 
        confinement; Ordering the displacement of a civilian population 
        other than that represented by the forces of the accused.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an international armed conflict;

                  (ii) That the accused held, confined, or otherwise 
                restrained the liberty of a person or expelled a person 
                from the territory in which that person resides for 
                purposes other than lawful internment;

                  (iii) That the person was a civilian protected under 
                one or more of the Geneva Conventions of 1949;

                  (iv) That the accused knew of the person's status as 
                a lawful resident of the territory of the State; and

                  (v) (for cases of deportation or transfer) That the 
                deportation or transfer was not conducted for security 
                purposes or any other lawful reason; or

                  (vi) (for cases of unlawful confinement) that the 
                restraint was not undertaken for security purposes and 
                was effected without affording the procedural and 
                substantive protections prescribed in the Fourth Geneva 
                Convention of 1949.

          (c) Comment: Occupying powers are authorized, for reasons of 
        security, to intern civilians in some situations in accordance 
        with Articles 78-104 of (Geneva) Convention (IV) Relative to 
        the Protection of Civilian Persons in Time of War of 1949. It 
        is the prosecutor's burden to prove that internment of 
        civilians was not undertaken for security purposes once a prima 
        facia case is made for that defense.
9. Taking hostages

          (a) Definition: Taking of hostages.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an armed conflict;

                  (ii) That the accused seized, detained or otherwise 
                held hostage a certain noncombatant person;

                  (iii) That the accused threatened to injure, kill, or 
                continue to detain such person; and,

                  (iv) That the act was performed with the intent to 
                compel a state, an international intergovernmental 
                organization, a natural or juridical person, or a group 
                of persons to do or refrain from doing any act as an 
                explicit or implicit condition for the safe release of 
                the person.

          (c) Comment: This offense is distinguished from unlawful 
        confinement by the additional element that the accused 
        threatened to prolong the hostage's detention or to put him or 
        her to death in exchange for some act by a third party. It is 
        not constrained by the need for the victim to be a protected 
        person or for the offense to take place during international 
        armed conflict.
10. Attacking civilians

          (a) Definition: Intentionally directing attacks against the 
        civilian population as such, as well as individual civilians 
        not taking direct part in hostilities.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an armed conflict;

                  (ii) That the accused intentionally directed an 
                attack against one or more civilians;

                  (iii) That the accused intended the object of the 
                attack to be one or more civilians;

                  (iv) That the civilian or civilians against whom the 
                attack was directed were not taking part in hostilities 
                or located in proximity to, or within, a lawful 
                military objective at the time the attack was 
                initiated; and

                  (v) That the attack resulted in death or harm to one 
                or more civilians.

          (c) Comments:

                  (i) Since this offense requires deliberate and 
                purposeful action, causing incidental injury or 
                collateral damage does not constitute attacking 
                civilians.

                  (ii) Military objective. Military objectives are 
                those objects which by their nature, location, purpose 
                or use make an effective contribution to military 
                action and whose total or partial destruction, capture 
                or neutralization, in the circumstances ruling at the 
                time, offers a definite military advantage.
11. Causing disproportionate damage

          (a) Definition: Intentionally launching an attack in the 
        knowledge that such attack will cause incidental loss of life 
        or injury to civilians or damage to civilian objects or 
        widespread, long-term, and severe damage to the natural 
        environment that would be excessive in relation to the concrete 
        and direct overall military advantage anticipated.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an international armed conflict;

                  (ii) That the accused launched an attack

                  (iii) That the attack resulted in collateral damage 
                or incidental injury;

                  (iv) That the collateral damage or incidental injury 
                was manifestly excessive in relation to the overall 
                military advantage anticipated;

                  (v) That the accused knew that such collateral injury 
                or damage would be disproportionate to the military 
                advantage gained.

          (c) Comments:

                  (i) The knowledge element is key to proportionality 
                analysis for this offense. Since the evaluation is 
                necessarily subjective, the proportionality knowledge 
                threshold must be high and analysis must be based on 
                the perspective of the accused prior to the attack.

                  (ii) Military advantage includes all benefits ranging 
                from tactical goals to overall campaign objectives.
12. Attacking an undefended locality

          (a) Definition: Attacking or bombarding, by whatever means, 
        towns, villages, dwellings or buildings that are undefended.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an international armed conflict;

                  (ii) That the accused launched an attack against a 
                certain undefended locality;

                  (iii) That the attack was not justified by military 
                necessity; and

                  (iv) That at the time of the offense, the accused 
                knew that the object of the attack was an undefended 
                locality.

          (c) Comments:

    An ``undefended locality'' is any inhabited place near or in a zone 
where armed forces are in contact which is open for occupation by an 
adverse Party and has been declared undefended by appropriate 
authorities of a party to the conflict. This declaration shall be 
addressed to the adverse party and such a locality shall fulfill the 
following conditions:

          (a) All combatants, as well as mobile weapons and mobile 
        military equipment must have been evacuated;

          (b) No hostile use shall be made of fixed military 
        installations or establishments;

          (c) No acts of hostility shall be committed by the 
        authorities or by the population; and

          (d) No activities in support of military operations shall be 
        undertaken.
13. Improper use of a flag, symbol or uniform

          (a) Definition: Making improper use of a flag of truce, of 
        the flag or of the military insignia and uniform of the enemy 
        or of the United Nations, as well as of the distinctive emblems 
        of the Geneva Conventions, resulting in death or serious 
        personal injury; Killing or wounding treacherously individuals 
        belonging to the hostile nation or army.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an international armed conflict;

                  (ii) That the accused wrongfully used a flag of 
                truce, the flag of the enemy or of the United Nations, 
                or the distinctive emblems of the Geneva Conventions; 
                or wrongfully used the military insignia and uniform of 
                the enemy or of the United Nations while engaging in 
                attacks.

                  (iii) That the wrongful use of one or more of these 
                items was intended to cause death, serious personal 
                injury, or capture; and

                  (iv) That death, serious personal injury, or capture 
                occurred as a direct result of the accused's actions or 
                wrongful misrepresentations.
14. Attacking protected objects

          (a) Definition: Intentionally directing attacks against 
        buildings dedicated to religion, art, science or charitable 
        purposes, historic monuments, hospitals and places where the 
        sick and wounded are collected, provided they are not being 
        used at the time for military purposes;

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an armed conflict;

                  (ii) That the accused directed an attack against one 
                or more of the following: a building dedicated to 
                religion, art, science or charitable purposes, an 
                historic monument, or a hospital or place where the 
                sick and wounded are collected;

                  (iii) That the accused specifically intended such 
                attack and its natural consequences with respect to the 
                object of the attack;

                  (iv) That the object of attack was not being used for 
                military purposes at the time of the attack; and

                  (v) That the accused knew the object of attack was 
                not being used for military purposes at the time of the 
                attack.
15. Perfidy

          (a) Definition: Killing or wounding treacherously individuals 
        belonging to the hostile nation or army; killing or wounding 
        treacherously a combatant adversary.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an armed conflict;

                  (ii) That the accused intended to kill or wound a 
                combatant adversary;

                  (iii) That the accused committed an act resulting in 
                the death or wounding of a combatant adversary;

                  (iv) That the accused intended the death or wounding 
                to be accomplished by securing the confidence of a 
                military adversary to believe himself to be entitled 
                to, or obliged to accord, protection under the law of 
                war, with intent to betray that confidence; and

                  (v) That the death or wounding occurred as a direct 
                result of the accused's wrongful misrepresentations.
16. Denying quarter

          (a) Definition: Declaring that no quarter will be given.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an armed conflict;

                  (ii) That the accused was a person in command or had 
                authority over certain forces;

                  (iii) That the accused declared to those subordinate 
                forces that no quarter be given the enemy;

                  (iv) That in so declaring, the accused intended that 
                his or her subordinates refuse quarter to the enemy; 
                and

                  (v) That the refusal to accept surrender was not 
                justified by military necessity.

          (c) Comment:

                  (i) Denial of quarter is the refusal to accept an 
                enemy's surrender when it is reasonable to do so.

                  (ii) Bringing a preponderance of force to bear 
                against enemy military objectives or enemy personnel 
                does not constitute denial of quarter. Neither is a 
                commander obligated to offer an opportunity to 
                surrender before carrying out an attack, since surprise 
                or speed may be critical to the success of the attack.
17. Sexual Offenses

          (a) Definition: Committing rape, sexual slavery, enforced 
        prostitution, enforced pregnancy, enforced sterilization, and 
        any other form of sexual violence also constituting a grave 
        breach of the Geneva Conventions.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an armed conflict;

                  (ii) That the accused intended to commit a certain 
                sexual act upon a certain person or forced that person 
                to engage in a certain sexual act;

                  (iii) That the accused committed or caused to be 
                committed one of the following acts by force:

                          a. rape;

                          b. sexual abuse; or

                          c. enforced prostitution; and

                  (iv) That the acts were committed as part of a 
                widespread or systematic attack.

          (c) Comments:

                  (i) ``Rape'' is the forcible penetration, however 
                slight, of any part of the body of another by the 
                accused's sexual organ, or forcible penetration, 
                however slight, of the anal or genital opening of 
                another by any object.

                  (ii) ``Sexual abuse'' is any contact of a sexual 
                nature by force or threat of force of comparable 
                gravity to rape. It specifically includes the offenses 
                of sexual mutilation, enforced pregnancy, and enforced 
                sterilization.

                  (iii) ``Sexual mutilation'' is forcibly causing 
                serious physical injury to the victim's sexual organs.

                  (iv) ``Enforced prostitution'' is intentional sexual 
                enslavement wherein the ``forcible'' element need not 
                be present for each individual sex act, but is 
                generally present regarding a mandated occupation that 
                involves acts of a sexual nature related to rape or 
                sexual abuse.

                  (v) ``Committed by force'' means the sexual act was 
                accomplished by force or threat of force against the 
                victim or a third person. The threat of force can be 
                either express or implied, and must place the victim in 
                reasonable fear that he or she or a third person will 
                be subjected to violence, detention, duress, or 
                psychological oppression if the victim does not comply. 
                Evidence of consent may negate the necessary force 
                element. However, consent may not be inferred if 
                resistance would have been futile, if the victim was 
                forcibly detained, where resistance is overcome by 
                threats of death or great bodily harm, or where the 
                victim is unable to resist because of the lack of 
                mental or physical faculties.
18. Immunizing an area with protected persons

          (a) Definition: Utilizing the presence of a civilian or other 
        protected persons to render certain points, areas or military 
        forces immune from military operations.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an international armed conflict;

                  (ii) That at the time of the offense, the accused was 
                defending a military objective from likely attack;

                  (iii) That the accused either caused the military 
                objective, civilian personnel or other persons 
                protected under one of the Geneva Conventions of 1949 
                to be moved so that the military objective and the 
                civilian personnel, or other protected persons would be 
                either located together or otherwise positioned so that 
                an attack against the military objective would 
                seriously endanger the civilian personnel or other 
                protected persons; and

                  (iv) That the accused's actions were intended to 
                shield military objectives from attack, to shield, 
                favor or impede military operations, or to otherwise 
                undermine the adversary's will to attack or continue an 
                attack.
19. Attacking objects displaying a protective emblem

          (a) Definition: Intentionally directing attacks against 
        buildings, material, medical units and transport, and personnel 
        using, in conformity with international law, the distinctive 
        emblems of the Geneva Conventions;

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an armed conflict;

                  (ii) That the accused directed an attack against a 
                building, material, a medical unit or transport, or 
                person that was properly displaying a distinctive 
                protective emblem of the Geneva Conventions;

                  (iii) That the accused knew the object of attack was 
                properly displaying a distinctive protective emblem of 
                the Geneva Conventions;

                  (iv) That the object of attack was not being used for 
                a military purpose at the time of the attack; and

                  (v) That the accused did not believe that the object 
                of attack was being used for a military purpose at the 
                time of the attack.
20. Starvation

          (a) Definition: Intentionally using starvation of civilians 
        as method of warfare by depriving them of objects indispensable 
        to their survival, including willfully impeding relief supplies 
        as provided for under the Geneva Conventions;

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an international armed conflict;

                  (ii) That the accused engaged in an act or omission 
                calculated to attack, destroy, remove, or render 
                useless objects indispensable to the nourishment and 
                survival of the civilian population;

                  (iii) That the accused's act or omission was intended 
                for the specific purpose of denying nourishment 
                necessary for the survival of the civilian population 
                of the adverse party; and

                  (iv) That as a result of the accused's acts, one or 
                more persons died from starvation.
21. Using illegal weapons

          (a) Definition: Employing the following weapons, projectiles 
        and material and methods of warfare which are calculated to 
        cause superfluous injury or unnecessary suffering: (i) poison 
        or poisoned weapons, (ii) asphyxiating, poisonous or other 
        gases, and all analogous liquids, materials or devices, (iii) 
        bullets which expand or flatten easily in the human body, such 
        as bullets with a hard envelope which does not entirely cover 
        the core or is pierced with incisions, (iv) bacteriological 
        (biological) agents or toxins for hostile purposes or in armed 
        conflict, (v) chemical weapons as defined in and prohibited by 
        the 1993 Convention on the Prohibition of the Development, 
        Production, Stockpiling and Use of Chemical Weapons and On 
        Their Destruction.

          (b) Elements:

                  (i) That the alleged offense took place during the 
                course of an international armed conflict;

                  (ii) That the accused knowingly used one of the 
                following weapons against an adversary in that armed 
                conflict:

                          a. Poison or poisoned weapons;

                          b. Asphyxiating, poisonous or other gases, 
                        and all analogous liquids, materials or 
                        devices;

                          c. Bullets which expand or flatten easily in 
                        the human body;

                          d. Bacteriological agents or toxins;

                          e. Chemical weapons; and

                  (iii) That at the time of the offense, the accused 
                knew the weapon was banned under international law.

          (c) Comments:

                  (i) ``Chemical weapons'' means chemical weapons as 
                defined in and prohibited by the 1993 Convention on the 
                Prohibition of the Development, Production, Stockpiling 
                and Use of Chemical Weapons and On Their Destruction. 
                It does not include Riot Control Agents as they are 
                defined in that Convention.

                  (ii) Bacteriological agents or toxins means any 
                microbial or other biological agent or toxin, whatever 
                their origin or method of production.

                               __________

 Reference Paper Submitted by the United States of America on Rules of 
              Evidence of the International Criminal Court

                                                A/AC.249/1998/DP.15
                                                       3 April 1998
                                                  Original: English
Preparatory Committee on the Establishment of an International Criminal 
    Court
16 March-3 April 1998.

             Reference Paper Submitted by the United States

         Rules of Evidence of the International Criminal Court

    The attached reference paper is submitted to the Preparatory 
Committee as an illustration of how rules of evidence, contained within 
the Court's rules promulgated under Article 43 of the Statute, might 
appear.

    Article 62 of the draft Statute addresses the law of evidence to be 
applied by the Court. Following extended debate on Article 62 during 
the past week, it now appears that many of the criteria for determining 
the relevance and admissibility of evidence will not be set forth in 
the Statute, but instead will be deferred to the rules. This Paper is 
intended to suggest potential structure and content of the rules of 
evidence.

    A number of the draft provisions are derived, with appropriate 
modifications, from the Rules of Procedure and Evidence of the Tribunal 
for the Former Yugoslavia (``ICTY rules''), and the Draft Set of Rules 
of Procedure and Evidence for the International Criminal Court prepared 
by the delegations of Australia and the Netherlands (A/AC.249/L.2) 
(``A/NL rules''), and these sources are noted. In addition, we have 
included explanatory notes where we thought it appropriate to highlight 
significant issues that will need to be considered in preparing the 
rules.

                                 ______
                                 

                           Rules of Evidence

                        (see Statute Article 62)

Rule 1: General Provisions
            (derived from ICTY rule 89; A/NL rule 105)

    (1) The rules of evidence set forth in this Section, together with 
Article 62 of the Statute, shall govern the proceedings before a 
Chamber.

    (2) The rules of evidence set forth in this Section shall be 
interpreted to ensure fairness to the parties and to the end that the 
truth may be ascertained and cases justly decided.

    (3) Where not otherwise provided for in this Section, a Chamber 
shall apply rules of evidence that will best favor a fair determination 
of the matter before it.

    (4) A Chamber may admit any relevant evidence that it deems to be 
reliable and have probative value. Irrelevant evidence shall not be 
admitted.

    (5) Relevant evidence may nonetheless be excluded for good cause, 
including that it would constitute a needless presentation of 
cumulative evidence, or result in undue delay.

    (6) A Chamber may exclude evidence if its probative value is 
substantially outweighed by the need to ensure a fair trial.

    (7) A Chamber may request verification of the authenticity of 
evidence.
Rule 2: Testimony of Witnesses
            (derived from ICTY rule 90; A/NL rule 106)

    (1) Before testifying, every witness shall make the following 
solemn declaration: ``I solemnly declare that I will speak the truth, 
the whole truth and nothing but the truth.''


          [N.B.: This rule governs a solemn declaration made by a 
        witness, other than the accused. A number of delegations 
        expressed support for a provision ensuring that an accused may 
        make an unsworn statement at trial. The above rule does not 
        seek to address this issue, which would have to be treated in 
        the Statute or separately in the Rules.]


    (2) A child who, in the opinion of the Chamber, does not understand 
the nature of a solemn declaration, may testify without that formality, 
if the Chamber is of the opinion that the child is sufficiently mature 
to be able to report the facts of which he has knowledge and that he 
understands the duty to tell the truth. A judgement cannot be based on 
such testimony alone.

    (3) If scientific, technical, or other specialized knowledge will 
assist the Chamber to understand the evidence or to determine a fact in 
issue, a witness qualified as an expert by knowledge, skill, 
experience, training, or education may testify thereto in the form of 
an opinion or otherwise.

    (4) Other than an expert or an investigator responsible for a 
party's investigation, a witness who has not yet testified shall not be 
present when the testimony of another witness is given. However, a 
witness who has heard the testimony of another witness shall not for 
that reason alone be disqualified from testifying.

    (5) A witness may decline to make any statement that might tend to 
incriminate him. The Chamber may, however, compel the witness to answer 
the question. Testimony compelled in this way shall not be used as 
evidence in a subsequent prosecution against the witness for any 
offence other than [contempt or] perjury, and the Chamber may order 
such protective measures as may be necessary to effect this result.
Rule 3: Live Testimony By Means of Video or Audio Link

    (1)Witnesses shall, in principle, be heard directly by the Chambers 
unless a Chamber permits otherwise under this Rule of Rule 4.

    (2) In the interests of justice and to facilitate the orderly and 
efficient progression of the proceedings, a Chamber may permit an out-
of-court witness to testify, notwithstanding his physical absence, by 
live audio link, video link, or other technology.

    (3) The examination of the out-of-court witness shall be conducted 
in accordance with the provisions of the rules governing examination of 
witnesses at trial. If the State in which the out-of-court witness is 
located restricts the procedures under which the testimony is given, 
the testimony shall be admitted only if the procedures used do not 
prejudice the rights of the parties and are otherwise in substantial 
conformity with the Statute and Rules.
Rule 4: Recorded Testimony
            (derived from ICTY rule 71)

    (1) In exceptional circumstances and in the interests of justice, a 
Chamber may order that testimony be taken and recorded, by audiotape, 
videotape, transcript, or other similar means in advance of trial. The 
recorded testimony may be admitted at trial if, for good reason, the 
witness cannot be present at the time of trial.

    (2) The party seeking to take and preserve testimony shall apply to 
the Chamber in writing and shall state the name and whereabouts of the 
person whose recorded testimony is sought, the date and place at which 
the recorded testimony is to be taken, the matters on which the person 
is to be examined, and the exceptional circumstances involved.

    (3) If the Chamber grants the application, the party at whose 
request the recorded testimony is to be taken shall give reasonable 
notice to the other party, who shall have the opportunity to cross-
examine the person to be examined. The parties shall attend the 
examination, or participate by means of audio link, video link, or 
other similar technology.

    (4) The Chamber may appoint a judge to preside over the 
examination, which shall be conducted pursuant to the Rules governing 
testimony of a witness at trial. If the State in which the witness is 
located restricts the procedures under which the examination proceeds, 
the testimony shall be admitted only if the procedures used do not 
prejudice the rights of the parties and are otherwise in substantial 
conformity with the Rules.

    (5) When recorded testimony is taken at the request of the 
Prosecutor or an indigent accused, the Chamber may order that the Court 
will bear the expense involved.
Rule 5: Written and Oral Statements

    (1) Where a witness is unavailable or where the interests of 
justice otherwise so require, the Chamber may admit prior written or 
oral witness statements in lieu of testimony. Such statements shall be 
given such weight as deemed appropriate by the Chamber. A judgement 
cannot be based on such testimony alone.

    (2) When a written or recorded statement or part thereof is 
introduced by a party, the Chamber may consider any other part or any 
other written or recorded statement of the witness which in fairness 
also ought to be considered.
Rule 6: Documentary and Other Evidence

    (1) The Chamber may admit documents, including records reflecting 
official acts or regularly conducted activity, so long as the records 
have substantial guarantees of trustworthiness.

    (2) The Chamber may admit summaries, charts, or other demonstrative 
evidence if such evidence will assist in clarifying the issues under 
consideration.
Rule 7: Confessions
            (derived from ICTY rule 92; A/NL rule 108)

    (1) A confession or admission by the accused given during 
questioning by the Prosecutor and recorded pursuant to Rule ----, \1\ 
shall be presumed to have been given voluntarily unless the contrary is 
proved.
---------------------------------------------------------------------------
    \1\ The Rules of Procedure could require the Prosecutor to record 
statements of the accused, in the same manner as ICTY rule 43. If such 
a rule is promulgated, a presumption in favor of voluntariness could be 
provided for as above.

    (2) A confession or admission by the accused that has not been 
recorded pursuant to Rule ---- shall not be excluded if the 
circumstances establish that it was voluntarily given.
Rule 8: Evidence of Consistent Pattern of Conduct
            (derived from ICTY rule 93; A/NL rule 108)

    Evidence of a consistent pattern of conduct by the accused may be 
admitted in the interests of justice.


          [N.B. Other provisions in the Statute or Rules will provide 
        for disclosure of such evidence prior to trial.]
Rule 9: Evidence in Cases of Sexual Assault
            (derived from ICTY rule 96; A/NL rule 113)

In cases of sexual assault:

    (1) No corroboration of the victim's testimony shall be required.

    (2) Past sexual conduct of the victim shall not be admitted in 
evidence, except where exclusion would violate the fundamental rights 
of the accused. Before admitting evidence of a victim's past sexual 
conduct, the Chamber shall satisfy itself through an offer of proof 
made in camera that the evidence meets the requirements of this 
paragraph.

    (3) Sexual conduct of the accused may be admitted [if relevant to 
show motive, opportunity, intent, identity, plan or absence of 
mistake].


          [N.B.: ICTY Rule 96 (ii) permits consent as a defense in 
        certain limited circumstances. Consideration of consent as a 
        defense may more properly be treated in relation to defining 
        crimes of sexual violence or general principles of criminal 
        law.]
Rule 10: Lawyer-Client Privilege
            (derived from ICTY rule 97; A/NL rule 115)

    All communications between lawyer and client shall be regarded as 
privileged and consequently not subject to disclosure, unless:

          (a) the client consents to such disclosure; or

          (b) the client disclosed the content of the communication to 
        a third party.
Rule 11: Agreements as to Admission
            (derived from A/NL rule 111)

    (1) The defence and the prosecution may agree that a fact, the 
contents of a document, or the expected testimony of a witness should 
be considered as evidence by the Chamber.

    (2) In the interest of justice, the Chamber may decline to accept 
an agreement under paragraph (1).

    (3) After an agreement has been accepted, a party may withdraw from 
it only if permitted to do so by the Chamber.

    (4) An agreement between the defence and prosecution that a 
witness, if called to testify, would give certain testimony or that a 
document, if offered in evidence, has certain contents does not 
constitute an admission of the truth of the testimony or the contents 
of the document.

                               __________

    Statement of the United States Delegation on ``Article 11 bis--
             Preliminary Rulings Regarding Admissibility''

                                                      April 3, 1998

               Statement of the United States Delegation

                                   on

    ``Article 11 bis--Preliminary Rulings Regarding Admissibility''

                       (A/AC.249/19981WG.3/DP.2)

    The United States has long believed that a core purpose of an 
international criminal court must be to advance a simple norm: 
countries should bring to justice those who commit genocide, crimes 
against humanity, and war crimes, or turn suspects over to someone who 
will, such as an impartial and effective international court. The 
permanent court must ensure that national legal systems with the will 
and ability to prosecute persons who commit these crimes are permitted 
to do so, while guaranteeing that perpetrators of these crimes acting 
in countries without competent, functioning legal systems nonetheless 
will be held accountable. Where national legal systems can assume their 
responsibilities, then the permanent court should not be the court of 
first resort.

    In that spirit, on March 25, 1998, the U.S. delegation submitted a 
proposal to strengthen the principle of complementarity in the draft 
statute of the proposed international criminal court. Although, we join 
other delegations in strongly supporting the provisions of Articles 11 
and 12 of the Zutphen draft, and indeed actively participated in the 
drafting of them last year, it has never been clear how the principles 
of Article 11 would be effected when matters are first referred to the 
court. It has become evident in recent months that many delegations 
support a procedure whereby overall matters are referred to the court 
following which the prosecutor would investigate and seek indictments 
against individual suspects. If that becomes the adopted procedure, 
then we believe that the principle of complementarity should be 
recognized at the outset of any referral of a matter to the court in 
addition to the investigation of individual cases by the prosecutor.

    The U.S proposal states that when a matter has been referred to the 
court, the Prosecutor would make such referral known by public 
announcement and by notification to all States Parties. Public 
acknowledgment of a referral of large-scale ``matters'', as opposed to 
the filing of a complaint against in individual suspect, should not be 
objectionable. Investigations by the Prosecutor of individual suspects 
can, of course, remain confidential and need not be publicized. When 
the referral is made known, a State may step forward and inform the 
Prosecutor that it is undertaking the responsibility to investigate its 
own citizens or others within its jurisdiction who may have committed 
crimes in the referred matter.

    At this stage the Prosecutor has two choices. The Prosecutor can 
defer to the national investigation because of his or her belief that 
the State has the ability and will to undertake its responsibility. We 
believe that when the Prosecutor has made a decision to defer, there 
should be some reasonable period--we have suggested six months or a 
year--before the decision is revisited.

    Alternatively, the Prosecutor can determine at the outset that the 
State is unwilling or unable genuinely to carry out the investigation 
and prosecutions; in other words, the criteria for admissibility appear 
to apply. In that event, the Prosecutor would seek confirmation from 
the Pre-Trial Chamber and, if the judges concur, the Prosecutor would 
launch the investigation.

    We have provided that the Pre-Trial Chamber's preliminary ruling 
could be appealed to the Appeals Chamber, where a super-majority of the 
judges of the Appeals Chamber would need to approve the Prosecutor's 
commencement of investigation.

    The Prosecutor will need the cooperation of States in order to 
investigate alleged crimes. We believe that our proposal reflects 
reality, namely, that a State that is willing and capable to 
investigate such crimes should not be burdened with, and indeed may 
resist, cooperation with an ICC investigation not merited under the 
principles of complementarity. On the other hand, States that have no 
intention of investigating the crimes or cooperating with the 
Prosecutor will proceed with their own agenda regardless of the court's 
orders for access to witnesses and evidence.

    The U.S. delegation has begun to receive comment on our proposal. 
We appreciate these comments and look forward to further consultations 
with delegations and the non-governmental community. For example, we 
are considering several delegations' suggestion that there should be an 
exception to the period of deferral when the circumstances which led 
the Prosecutor to defer have changed significantly. Also, we understand 
the concerns raised that no procedure should be adopted that would 
encourage the destruction of evidence or permit a State to thwart the 
pursuit of justice. Further, we accept the obvious right of appeal from 
the Pre-Trial Chamber by either party. We would emphasize that our 
proposal does not contravene the principle that a person or State may 
challenge admissibility only once. Article 12(3) concerns challenging 
admissibility of an individual case regarding an individual suspect, 
and we strongly support it. Our proposal relates to the overall matter 
that has been referred to the court at a much earlier stage, when no 
particular suspects have been identified and one is dealing with a 
State's right to launch full-scale investigations.

    This proposal is extremely important to the United States 
Government. In our view, it takes account of our interest in protecting 
against unwarranted investigation and prosecution of persons who are 
being investigated by their own national authorities, while ensuring 
the prosecution of those who should be brought before an international 
court. Our proposal also seeks to honor a fundamental tenet of the 
principle of complementarity, namely, that at the outset of a referral 
of an overall matter, a State can assert its responsibility to enforce 
the law itself provided it is capable and willing to do so.

                                 ______
                                 

Proposal Submitted by the United States of America on Article 11 bis.--
              Preliminary Rulings Regarding Admissibility

                                            A/AC.249/1998/WG.3/DP.2
                                                      25 March 1998
                                                  Original: English
Preparatory Committee on the Establishment of an International Criminal 
    Court
16 March-3 April 1998
Working Group on Complementarity and Trigger Mechanism

           Proposal Submitted by the United States of America

      Article 11 bis. Preliminary rulings regarding admissibility

    1. When a matter has been referred to the Court pursuant to article 
6 and the Prosecutor has determined that there would be a sufficient 
basis to commence an investigation of the matter, the Prosecutor shall 
make such referral known by public announcement and by notification to 
all States Parties.

    2. Within [ ] days of the public announcement of such referral, a 
State may inform the Court that it is investigating its nationals or 
others within its jurisdiction with respect to criminal acts that 
allegedly were committed in the context of the matter referred to the 
Court and that may constitute offences described in article 5. At the 
request of that State, the Prosecutor shall defer to the State's 
investigation of such persons unless the Prosecutor determines that 
there has been a total or partial collapse or unavailability of the 
State's national judicial system, or the State is unwilling or unable 
genuinely to carry out the investigation and prosecutions. Before the 
Prosecutor may commence investigation of such persons, the Prosecutor 
must obtain a preliminary ruling from a Pre-Trial Chamber confirming 
the Prosecutor's determination. The Prosecutor's deferral to the 
State's investigation shall be open for review by the Prosecutor [six 
months] [one year] after the date of deferral.

    3. A preliminary ruling of the Pre-Trial Chamber confirming the 
Prosecutor's determination may be appealed to the Appeals Chamber by 
the State concerned. If the preliminary ruling is appealed by the 
State, [two thirds] [all] of the judges of the Appeals Chamber must 
confirm that ruling before the Prosecutor may commence the 
investigation and seek indictments.

    4. When the Prosecutor has deferred an investigation pursuant to 
section 2, the Prosecutor may request that the State concerned report 
periodically on the progress of its investigations and any subsequent 
prosecutions. States Parties shall respond to such requests without 
undue delay.

    5. That a State has challenged a preliminary ruling under the 
present article shall not prejudice its right to challenge 
admissibility of a case under article 12 \1\ [or to withhold its 
consent to the exercise of jurisdiction under article 7].
---------------------------------------------------------------------------
    \1\ Article 12(4) should be revised to require a vote by two thirds 
of the judges of the Appeals Chamber to decide that a case is 
admissible.

---------------------------------------------------------------------------
                               __________

Statement of the United States Delegation Expressing Concerns Regarding 
               the Proposal for a Proprio Motu Prosecutor

The Concerns of the United States Regarding the Proposal for a Proprio 
                            Motu Prosecutor

                                                      June 22, 1998

    The United States strongly supports an effective ICC Prosecutor who 
will be able to exercise independent judgment and who will be perceived 
as impartial and fair. The Prosecutor must have independent discretion 
to decide, free of any outside influence and based on the evidence 
collected, what charges to file against which people.

    The United States is strongly of the view that the principles of 
prosecutorial independence and effectiveness are not only fully 
consistent with, but ultimately will be best served by, the structure 
proposed by the ICC under which the Prosecutor's authority to embark on 
an investigation is triggered by a referral by a State or the Security 
Council. It is our firm view that the proposal for a proprio motu 
prosecutor--one tasked with responding to any and all indications that 
a crime within the potential jurisdiction of the Court may have been 
committed--not only offers little by way of advancing the mandate of 
the Court and the principles of prosecutorial independence and 
effectiveness, but also will make much more difficult the Prosecutor's 
central task of thoroughly and fairly investigating the most egregious 
of crimes.

    As an initial matter, we reiterate the longstanding position of the 
United States that no one, not the Security Council, not States, not 
any entity nor individual, should be able to control the direction of 
the Prosecutor's investigation by referring a particular case against a 
particular person. That is why the United States has and will continue 
to press for the formula that referrals from States and the Security 
Council must be referrals of overall situations. It must lie with the 
Prosecutor to determine whether a crime has been committed and by whom; 
the referral mechanism cannot purport to limit the Prosecutor's 
decisions on such matters.

    Moreover, our thinking about the appropriate role of the Prosecutor 
and our concern about the proprio motu proposal are very much guided by 
the overriding principle set forth in the preamble that the mandate of 
the ICC is ``to exercise jurisdiction only over the most serious crimes 
of concern to the international community as a whole.''

    Maintaining that threshold is essential to the credibility, wide 
acceptance and efficiency of the Court. Certainly, part of the broad 
consensus in moving towards jurisdiction limited to ``core crimes'' is 
the desire that the Court and its Prosecutor focus on crimes that can 
fairly be said to be ``crimes of concern to the international community 
as a whole.'' Yet the definitions of those crimes do not necessarily 
exclude conduct which will not rise to the standard articulated in the 
preamble. This is particularly the case with war crimes, a category 
covering a wide range of criminal conduct which may occur during 
conflict, and crimes against humanity, which are broadly defined.

    Thus, it is essential that there be some screen to distinguish 
between crimes which do rise to the level of concern to the 
international community and those which do not. The only rational and 
workable proposal to date--even if it may fall short of the perfect--is 
to look to States, and in appropriate cases the Security Council, to 
speak for what is ``of concern to the international community as a 
whole.'' For the United States, it is inappropriate and ultimately 
unworkable to suggest that this role is better vested in a single 
individual, the ICC Prosecutor.

    The United States has listened carefully to the arguments made by 
proponents of the proprio motu prosecutor, but we are unpersuaded.

    First, we reject as entirely cynical the notion that the community 
of States is so lacking in moral and political courage that when faced 
with an atrocity meriting the attention of the Court, not one State 
will respond. Indeed, quite the opposite has been demonstrated by the 
United States and other States which have worked hard to establish and 
support the work of the ad hoc tribunals, and which are in Rome to 
facilitate future prosecutions through the establishment of a permanent 
court. Moreover, it is wrong to argue that States' unwillingness to 
invoke the ICC's jurisdiction is presumptively foreshadowed by the past 
reluctance of States--absent an ICC--to take on national prosecutions 
of atrocities committed thousands of miles away. To the contrary, the 
ICC will provide an alternative to overcome the variety of legal, 
political, practical and resource difficulties which have made States 
reluctant, if not unable, to take on these prosecutions themselves. 
Experience with the International Court of Justice also does not 
provide useful guide, since the International Court of Justice cannot 
conduct criminal prosecutions at all.

    Second, we find overly simplistic the argument that the State and 
Security Council referral approach offers only an improperly 
politicized Prosecutor, while the proprio motu approach assures a 
pristinely impartial Prosecutor whose work will be without any 
political dimension.

    In much of the discussion regarding the proprio motu Prosecutor, 
the term ``political'' has been used in an entirely pejorative sense to 
mean actions that are partisan or self-interested. Even with that 
particular gloss, however, there is no basis in experience to say that 
States act only on the basis of partisanism and self interest, while 
individuals and organizations--those authorized to bring allegations to 
the proprio motu Prosecutor--are per se beyond such motives or bias. 
Surely both categories can, in the pejorative sense, act 
``politically,'' and we would be naive to ignore the considerable 
political pressure that organizations will bring to bear on the 
Prosecutor in advocating that he or she take on the causes which they 
champion. Thus, we cannot exclude that organizations as well as States 
can, in the pejorative sense, seek to act politically and apply 
political pressure on the Prosecutor. However, a significant difference 
is the accountability of States--as opposed to individuals and 
organizations--when they do so in the international context.

    In the United States' view, the discussion regarding the proprio 
motu Prosecutor has also ignored the extent to which State and Security 
Council referral in fact has a ``political'' component which is 
beneficial, if not essential, to the work of the Prosecutor. In making 
referrals, States are expressing political will and political support 
for the Prosecutor and his work; they are signaling to other States the 
level of their concern about the situation at issue and their 
commitment to stand behind and assist the Prosecutor both directly, and 
in his or her dealings with other States, including those likely to be 
hostile to the Prosecutor's investigation.

    This involvement of States is critical. Under the proprio motu 
model, we fear it will become too easy for States Parties to abdicate 
their responsibilities and simply leave it to individuals, 
organizations and the Prosecutor himself to initiate cases without the 
starting foundation of political will and commitment only States can 
provide. The Prosecutor then can become isolated, and abandoned to deal 
in a difficult international arena without the clear, continuing 
involvement of States Parties in affirming his or her work.

    In addition, we do not find persuasive the argument that a proprio 
motu Prosecutor will be able to decide whether to pursue investigations 
based solely on legal criteria and thereby avoid questions going to his 
or her impartiality or independence. If the Prosecutor has authority--
and indeed the responsibility--to pursue all facially credible 
allegations coming from individuals or organizations, there will surely 
be many more complaints than the Prosecutor can possibly handle. 
Without the screen of a State and Security Council referral mechanism, 
the volume of complaints will expand significantly, including those 
that will prove to be inappropriate bases for prosecution. These will 
include some directed against particular individuals for personal 
reasons and some motivated by improper political considerations; some 
will relate to situations that are not sufficiently serious to come 
within the Court's proper jurisdiction; and some will involve matters 
already being dealt with by national authorities, but with results 
disappointing to particular individuals or organizations.

    Many of those complaints may, at least facially, meet the legal 
criteria to initiate an investigation suggested in the draft Statute--
``a reasonable basis'' or ``any other substantiated information''--so 
that the Prosecutor will not be able to use a simple legal checklist to 
choose which of several complaints to pursue. Thus, the Prosecutor will 
be required to make decisions of policy in addition to those of law.

    Admittedly, some such exercise of prosecutorial discretion will be 
necessary and appropriate even in the context of a State referral 
regime. However, in the proprio motu setting, the exercise of 
prosecutorial discretion--something not universally accepted and all 
the more suspect in politically charged settings--will become a 
frequent and essential step in preserving the proper functioning and 
focus of the Court.

    Thus, we fear that by considerably expanding the number of 
instances in which the Prosecutor must choose to decline complaints 
that appear unlikely to result in meritorious prosecutions, we 
inevitably will undermine perceptions of his or her impartiality and 
subject the Prosecutor to incessant criticism by groups and individuals 
who disagree with his choices. We are also concerned that this volume 
of complaints will tend to embroil the Court in debate about the outer 
limits of its jurisdiction--creating controversy that will in fact 
weaken, not strengthen, the essential foundation of consensus for the 
Court.

    In sum, the proprio motu proposal risks routinely drawing the 
Prosecutor into making difficult public policy decisions which the 
Prosecutor is neither well-equipped nor inclined to make. In our view, 
these initial public policy decisions are best made by political 
bodies, freeing the Prosecutor to deal for the most part with the law 
and the facts.

    Nor does it assuage our concerns to require judges to approve the 
Prosecutor's proprio motu decisions. Judges are equipped to review 
legal matters. Their competence involves legal questions of 
admissibility and jurisdiction under the Statute, and we expect it 
would be rare that the Prosecutor's decisions would be unlawful under 
the Statute. To the extent judges would be questioning the Prosecutor's 
judgment in choosing to investigate on other than legal grounds, the 
judges' review would simply substitute their own personal or policy 
preferences for that of the Prosecutor. Moreover, in that event they, 
like the Prosecutor, would find perceptions of their impartiality and 
fairness undermined.

    Finally, the United States is deeply concerned by the tremendous 
resource implications of the proprio motu proposal and the extent to 
which it will transform the nature of the Prosecutor's office. One need 
only look at the volume of complaints lodged with human rights 
organizations to understand how debilitating it will be to make the 
Prosecutor responsive to all possible allegations of conduct coming 
within the framework of the Statute. In 1997, nearly 30,000 
communications were submitted under the U.N. Human Rights Commission's 
``Resolution 1503'' procedures and another 1,200 under the first option 
protocol of the ICCPR. The experience of other international bodies is 
similar. In its first two sessions in the Spring of this year, the 
European Commission of Human Rights was called upon to deal with 1500 
applications.

    Thus, even if the Prosecutor receives only a fraction of these 
numbers of communications, his office will need to be enormously 
expanded, and at tremendous additional cost. We have an idea of the 
costs entailed in investigating and prosecuting ``core'' crimes. The 
budgets the two ad hoc tribunals were $98 million for 1997 and $127 
million for 1998.

    If States impose a structure which will flood the Prosecutor's 
office with thousands of allegations, they must then be prepared to 
give the Prosecutor the resources to discharge his proprio motu 
authority responsibly, even if that means--as we believe it ultimately 
will--that the Prosecutor's preliminary inquiries will show the vast 
majority of complaints unworthy of further investigation. Moreover, 
States must recognize that in most instances, the Prosecutor will be 
turning to States for information to determine the credibility of 
allegations and whether they are being handled at the national level. 
Thus the costs and frustrations that will come with the proprio motu 
scenario will in the long run fall on States as well. Accordingly, it 
is the United States' view that the incremental benefits, if any, of a 
Prosecutor with unfettered investigative authority are significantly 
outweighed by the costs involved and diminution of the Prosecutor's 
focus and efficiency.

    The United States has carefully considered the arguments in favor 
of a proprio motu Prosecutor and is well aware of their appeal. 
However, we believe that after careful scrutiny, other factors emerge 
which give rise to serious practical and policy concerns. The United 
States has offered this paper with the hope that other delegations 
might give further thought to the respective merits of the proprio motu 
proposal and what we believe is on balance the better approach--albeit 
not perfect--of making referrals from States, and in appropriate cases 
the Security Council, the starting point for the Prosecutor's work.