Why The Time Has Come For The U.S. To Ratify The Rome Statute

By Jordan Federer

Photo: Vincent van Zeijst

In early October, John Kerry publicly called for a war crimes investigation into the bombings in Aleppo by both the Russian and Syrian governments, suggesting that the United States and other Security Council members should refer these actions to the International Criminal Court (ICC). Kerry’s comments, however, remind us of the irony of the United States’ position with respect to the ICC’s enabling piece of legislation, namely the Rome Statute – a document the United States helped negotiate and recognizes as customary international law but has yet to ratify itself. As a result of today’s unique political and legal considerations, now may be as good a time as ever for the United States to finally match its actions to its words and become a party to the Rome Statute.

Political Considerations

The present political climate may provide sufficient justification to ratify the Rome Statute. Congress recently overrode President Obama’s veto to enact the Justice Against Sponsors of Terrorism Act (JASTA), which carves out an additional exception to the Foreign Sovereign Immunity Act (FSIA).

While Congress’ legislative purpose in passing JASTA was well-intentioned (allowing 9/11 victims’ families to sue Saudi Arabia in U.S. federal court), President Obama and legal experts have widely condemned the bill for its international ramifications. Specifically, because the protections granted under foreign sovereign immunity are rooted in international reciprocity, critics warn that the bill might cause Saudi Arabia and other states to adopt similar pieces of legislation. Such legislation would expose the United States to greater legal action in foreign jurisdictions, which is particularly problematic since the United States is one of the primary beneficiaries of foreign sovereign immunity.

To mitigate increased exposure to international litigation, the United States should consider ratifying the Rome Statute. Becoming a party to the ICC can send a strong signal to the international community that the United States is still committed to developing strong diplomatic relationships with foreign governments despite the potentially detrimental effects of JASTA. Ratification would likely be seen as an act of good faith and prevent further political alienation of the United States internationally (which could be exacerbated by the results of the election). Furthermore, ratification of the Rome Statute would put political pressure on Russia to follow suit, as it has not yet adopted the Rome Statute either. Considering the particularly challenging political environment in which the U.S. State Department is currently operating, the United States can use its ratification of the Rome Statute as both leverage in political negotiations in the Middle East and as a tool to blunt the potentially damaging effects JASTA.

Legal Considerations

First, the ICC is a court of limited jurisdiction. Pursuant to the Rome Statute, the ICC has complementary jurisdiction, meaning only if a state is genuinely unwilling or unable to adjudicate the claim appropriately will the ICC hear the case. Thus, even if the United States is overexposed to litigation for claims brought by other states to the ICC, the Court will only adjudicate the case if the United States is unwilling or unable to investigate – a reasonably high bar to hurdle. Therefore, the practical legal effect of the U.S. ratification would be minimal.

Second, the United States already accepts the contents of the Rome Statute (i.e. genocide, crimes against humanity, etc.) as binding through the notion of customary international law. Although not self-executing under the U.S. Constitution, customary international law is given great deference in domestic courts through the “Charming Betsy canon,” which states courts will interpret statutes so as to avoid conflict with customary international law. As a result, the final ratification of the Rome Statute, the negotiations of which the United States was actively involved, would not reflect any material change in legal substance.

Third, critics cite the lack of participation by three Security Council members (China, Russia, and the United States) as one of the main reasons for the ICC’s shortcoming as an effective legal forum. The Rome Statute allows Security Council members to refer states to the ICC, but they avoid litigation themselves by exercising their right to veto Security Council decisions and declining to become parties to the Rome Statute. Therefore, if the United States is truly an advocate of human rights (as its rhetoric suggests), ratifying the Rome Statute superpower would be a significant step towards granting the ICC the legitimacy it desperately needs.

A valid counterargument to the United States’ ratification of the Rome Statute is that it may expose the U.S. government to global, politicized lawsuits (particularly from Russia or the Middle East) considering its unique position in international matters. However, the ICC is a court of complementary jurisdiction, so more claims against the United States will not necessarily translate into a greater number of adjudicated cases under the ICC’s narrow jurisdiction. Additionally, the ICC does not have a track record of effectively enforcing its decisions. Enforcement has largely been left to political rather than legal measures (i.e. international sanctions and U.N. resolutions). As a result, even if the ICC entered a judgment against the United States., the risk of being the subject of an enforced decision is somewhat low.

Given the recent passing of JASTA against the backdrop of the aforementioned legal justifications, John Kerry should seriously consider whether the opportunity for the United States to join the ICC is finally ripe.