Tuesday, August 12, 2014

Analysis of Citations of the Rome Statute in U.S. Federal Case Law

There is widespread hostility to references to international law in U.S. court decisions. It is therefore especially surprising that U.S. federal judges have been discussing the Rome Statute (Statute) in their decisions, and sometimes citing it as an authority.

In between November 9th, 2009 and July 14th, 2014, the International Criminal Court (ICC) and the Rome Statute have been mentioned in U.S. judicial decisions twenty-one times, despite the U.S. not having ratified the Statute. The Fourth Circuit has stated that although the Statute is not binding on the U.S., it “does not lessen its import as an international treaty, and thus, a primary source of the law of nations.” Aziz v. Alcolac, Inc., 653 F.3d 388, 400 (4th Cir. 2011). The Statute appears in various contexts; the five most frequent situations involve the intent (mens rea) standard in aiding and abetting, immunity, corporate liability, defining crimes against humanity and defining war crimes.

The majority of the listed cases involve plaintiffs filing claims under the Alien Tort Claims Act (ATCA). The ATCA allows U.S. federal courts to hear civil suits brought by victims of human right abuses or other international crimes which are in violation of the laws of nations or a treaty that the U.S. has ratified. In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court held that the laws of nations are comprised of international norms that are accepted by the civilized world and defined with specificity. For more information on the cases, visit AMICC's website.

Aiding and Abetting:

Aiding and abetting is a form of secondary actor liability. The issue with this area of law is what level of mens rea is required. Article 25(3)(C) of the Statute provides that a person shall be criminally responsible and liable for punishment if that person facilitates the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing means for its commission. The courts have looked to the Statute because customary international law is unclear on a mens rea requirement for aiding and abetting. The courts have been divided in their interpretation of this requirement.

Some of the decisions use the definition provided in Article 25 of the Statute. See, e.g., Lui Bo Shan v. China Constr. Bank Corp., 2010 U.S. Dist. LEXIS 63938 (S.D.N.Y. June 28, 2010). Other decisions have refused to use the Statute. See, e.g., Du Daobin v. Cisco Sys., 2014 U.S. Dist. LEXIS 22632 (D. Md. Feb. 24, 2014)(the plaintiffs wanted to look at the Rome Statute and apply a lesser mens rea standard of knowledge but the court refused to do so because of a domestic precedent that settled the issue).

However, a few courts have used very strong language in support of the Statute. In Doe v. Drummond Co., 2009 U.S. Dist. LEXIS 132594 (N.D. Ala. Nov. 9, 2009), the court relies in part on the Statute for the appropriate aiding and abetting standard. In Aziz v. Alcolac, Inc., 653 F.3d 388 (4th Cir. 2011), the court concluded that adopting the standard in the Rome Statute “hews as closely as possible to the Sosa limits of requiring any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms the Supreme Court has recognized.” Aziz, 653 F.3d. at 400-401 (Internal citations omitted). The court in Aziz goes on to say that the Statute’s mens rea standard for the crime of aiding and abetting “is more authoritative than that of the ICTY and ICTR Tribunals.” Id. at 400.

The ICC As A Bargaining Chip in the Israel-Palestine Negotiations?

Debate over whether or not the Palestinian Authority (PA) should and will seek access to the International Criminal Court (ICC) has continued to mount, but this time with a new element. In speculating about accomplishing lasting peace between Israel and Palestine, some have suggested that the Authority use it’s potential involvement in the ICC as a bargaining chip in peace negotiations.  In exchange for Israeli concessions in the negotiations, commentators have proposed that the Palestinian Authority freeze it’s pursuit of involvement in the Court and thus forgo jurisdiction of the Court in it’s territory. Read full articles by Daniel Kurtzer here, and by Dennis Ross here.
If nothing else, this war has made abundantly clear that that the current situation between Israel and Palestine is not sustainable. Unless each party recognizes the need for continued diplomacy, these violent encounters will continue to recur every few years. However, it seems that negotiations to end the fighting in Gaza have little chance of success.
In light of this, many propositions have been made regarding how to succeed in the negotiations. These suggestions range from temporarily internationalizing Gaza governance to persuading Israeli Prime Minister Benjamin Netanyahu to declare that Israel’s settlement policy be made consistent with its two-state policy. Commentators include the suggestion that the PA renounce it’s pursuit of ICC jurisdiction in exchange for Israeli concessions.
Since August 5, when ICC Fatou Bensouda Prosecutor met with Palestine Foreign Affairs Minister Riad al-Malki to discuss the different ways a state may accept the jurisdiction of the ICC, whether or not the PA will pursue ICC jurisdiction has remained unclear, but become more likely. Because the United Nation General Assembly recently granted Palestine a new status as a ‘non-member observer state,’ Palestine is very likely to obtain ICC jurisdiction if it ratifies the Court’s Rome Statute. Therefore, the sole determining factor would be whether the Authority will view this as a useful move.
Some have argued that Palestinian authorities would not pursue this route because the Court’s statute requires it to investigate an entire situation in a conflict, not merely the actions of one party. In other words, the ICC could investigate Israeli actions, but it could also open an investigation into Palestinian actions, potentially resulting in a conviction for war crimes on either, both or neither sides. Consequently, it remains unclear whether it would be in the best interests of the Authority to pursue ICC jurisdiction. What remains a concern, however, are the impacts that such an exchange could have on the International Criminal Court.
The conflict between accomplishing peace and achieving justice is an inherent complication of the functions of the Court. However, using the Court as a concession in peace negotiations is an evident lean towards the former, while the Court clearly was intended and has established itself as a means of accomplishing the latter. While this proposed bargain might contribute to a temporary peace in the Israeli-Palestinian region, the consequences of such a concession should be weighed against the alternative: a preliminary investigation into whether or not war crimes and crimes against humanity have been committed, and if so, by whom. The Court’s stated purpose is to end impunity for the perpetrators of the most serious crimes of concern to the international community, and if war crimes have been committed during the conflict in the Israeli-Palestinian region, then making the Court  a pawn in negotiations most certainly hinders such action. Treating the Court this way could also degrade its international standing and its viability.
To complete this brief review of this aspect of the ICC and the Israel and Palestine situation, it is worth noting that the most recent conflict with Gaza is the not the only event which might make Israel subject to a criminal investigation by the Court. In May 2010, six ships of the ‘Gaza Freedom Flotilla’ were boarded and taken over by Israeli Defense Forces in international waters in the Mediterranean Sea. The flotilla, which was organized by the Free Gaza Movement and the Turkish Foundation for Human Rights and Freedoms and Humanitarian Relief, was carrying humanitarian aid and construction materials. It intended to break the Israeli blockade of the Gaza Strip.
As a result of the take-over operation, nine passengers lost their lives and many were injured. One of the vessels boarded by the IDF, the MV Mavi Marmara vessel, was sailing under the flag of the Comoros Islands, which is a State Party to the International Criminal Court. These combined circumstances create a situation that potentially could fall under the jurisdiction of the Court. In May 2013, the Government of the Union of Comoros referred the case to the ICC through an Istanbul-based law firm, urging Prosecutor Bensouda to investigate the incident. While it is unlikely that a prosecution will ensue from this incident, it remains on the Prosecutor’s list of preliminary examinations.

AMICC will continue to track this new element of the possibilities of the ICC as a bargaining chip in the interactions between Israel, Palestine and the Court. We will continue to assess its potential impact on the viability of the Court, and its effect on the Prosecutor’s handling of the question of Israel and Palestine.
Written by Jessica Levy