Posted 9:06 PM by Robert

The ICC Simply Must Go III

My prior posts here and here and here were not correct - or at were least misleading - in an important respect.

Saddam Hussein falls within what is sometimes called the "traveling dictator" exception to International Criminal Court (ICC) jurisdiction. That is, because Iraq is not a party to the Rome Statute that establishes the ICC, he cannot be prosecuted by the ICC for any crimes committed within Iraq, no matter where he travels. He can be prosecuted for war crimes committed in countries that are signatories to the Rome Statute and otherwise covered by ICC jurisdiction. However, it is by no means clear that Saddam Hussein has committed crimes subject to ICC jurisdiction in Rome Statute member states. Kuwait, for example, is a signatory to the Rome Statute - but ICC jurisdiction is not very retroactive and doesn't cover crimes committed ten years ago. Although it is by no means clear (at least to me) that Hussein has not committed ICC covered crimes in Rome Statute member states, it would not be enough to cite acts of genocide and terror committed by him within Iraq in order to prosecute him in the ICC.

On the other hand, the US, also a non-party, can be prosecuted when it acts within a signatory state.

Two further perverse points:

First, if Iraq were a signatory to the Rome Treaty, the ICC could not promise him immunity. In this sense it is non-pragmatic.

Second, and also perversely, although Iraq is not a signatory, Hussein could consent under Article 12(3) of the Rome Statute to jurisdiction of the ICC, thereby exposing the US to ICC jurisdiction.

At this time, it is simply not clear to me whether a post-Hussein government of Iraq could consent to ICC jurisdiction over Hussein retroactively.

In my prior posts, I had to some extent confused the jurisdiction of the ICC with the jurisdiction of the International Criminal Tribunal For the Former Yugoslavia - which claims jurisdiction over war crimes committed within the former Yugoslavia without that country having agreed to any treaty or other act establishing the court. I apologize to my readers for that sloppiness.

UPDATE:

Further research shows that a post-Hussein government of Iraq could consent to ICC jurisdiction retroactively - thereby exposing Hussein to ICC jurisdiction for prior crimes committed after July 1, 2002, when the ICC's jurisdiction began. Because there almost certainly will be a new government of Iraq in a short while, it appears that neither France nor Bahrain nor any other party to the Rome Statute could have granted Saddam Hussein safe haven with assurances against his future ICC prosecution for crimes committed by him in Iraq post July 1, 2002. Indeed, if Hussein had left Iraq before the current War began on terms acceptable to the US, a new government of Iraq capable of consenting to retroactive ICC jurisdiction over Hussein would have been an immediate certainty. This appears to make the ICC a substantial obstacle to encouraging the departure of dictators - even where their country has not signed the Rome Statute.

A related question: If post-Hussein Iraq consents to ICC jurisdiction retroactively, would such consent necessarily expose the US to ICC jurisdiction - or could a post-Hussein government simply consent to ICC jurisdiction over Hussein? This question appears not to have a clear answer under the Rome Statute.

FURTHER UPDATE: The United Nations must try President Bush and his allies as war criminals, a top Indonesian politician demanded Monday.

Because neither the US nor Iraq is party to the Rome Statute, the ICC could not be used for this purpose. However, if a government of Iraq or the US were to consent to retroactive jurisdiction, a criminal trial of President Bush before the ICC and brought by its unaccountable prosecutors would be permitted by the Rome Statute.