CLOSING
THE
GAPS
IN
UNITED STATES
LAW
AND
IMPLEMENTING
THE
ROME STATUTE:
A
COMPARATIVE
APPROACH
Michael
P.
Hatchell"
1.
THE
COMPARATIVE
APPROACH
............................
A.
Introduction
.......................................
..
I.
FIVE
STATES'
APPROACHES
TO
RATIFYING
THE
ROME STATUTE
...
A
.
Canada
........................................... .
B
.
A
ustralia
..........................................
C. United
Kingdom
.................................... ..
D
.
Germ
any
.......................................... .
E
. F
rance
........................................... .
Ill.
THE
UNITED
STATES'
PERSPECTIVE
..........................
A.
Discussion
of
United
States'Interests
................... .
B.
United
States'
Fears
................................. .
IV
.
COMPARISON
...........................................
A.
What
the
United
States Can
Learn
From
the
Different
Approaches
.....
..........................
2
17
B.
United
States'
Gaps
...........
1.
Genocide
...............
2.
Crimes
Against
Humanity
..
3.
W ar
Crimes
.............
C.
Conclusion
..................
V.
ANNEXES
.......................
ANNEX
1
-
CANADA
...................
ANNEX
2
-
AUSTRALIA
.................
ANNEX
3
-
UNITED
KINGDOM
...........
ANNEX
4
-
GERMANY
..................
*
The author
would
like
to
thank Ambassador
David Scheffer
for
his
profound
insight
and
assistance
with the
development
of
this paper
and
Dr. Angela
Morales
for
her
patience
and
comments
while
reading various drafts.
An
earlier version
of
this
article
was
presented
at
a
conference
at
Cambridge
University,
UK
in
August
of
2005.
The
author
is
an
attorney
in Connecticut
who
recently
graduated
from the
L.L.M.
program
in
International
Law
at the
George
Washington University
Law
School in
Washington, DC.
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
184
ILSA
Journal
of
International
&
Comparative Law
[Vol.
12:183
I.
THE
COMPARATIVE
APPROACH
A.
Introduction
This
paper
provides
a
comparative
framework
to
analyze
the extent
to
which five
major
democracies
Canada,
United
Kingdom,
Australia,
Germany,
and
France-incorporated
the
subject
matter
jurisdiction
Articles
of
the
Rome
Statute
of
the
International
Criminal
Court ("Rome
Statute")
through
their
domestic
legislative
processes
while
ratifying
the Rome
Statute,
and
what,
if
anything,
the
United
States
can
interpret
from
the
five
distinct
approaches.
By
examining what
deviations
the
states
made from
the
wording
in
the
Rome
Statute,
how
variant the
deviations
are,
and
what
the
rationale
for
such
variations
are,
a
picture
will
emerge which
could provide
guidance
to
the United
States,
were
it
to
aspire
to
incorporate
the Rome
Statute crimes
into the
federal
criminal code, amend
Title
18
of
the
United
States
Code,
and
thus
assure United
States
primacy
over
the
International Criminal
Court
("ICC")
complementarity
jurisdiction.
Through
the
use
of
comparative
analysis,
it
is
plausible
to
reason
whether it
would
be
feasible for
the
United
States
to
build
off
the
examples,
close
the
gaps in
the United
States
Code,'
and
ultimately
ratify
the
Rome
Statute.
There appears
to
be
a
balancing
act
inherent
in
the
ratification
of
the
Rome
Statute.
2
On
one
hand,
there
is
the
Rome Statute
itself
which
details the
requirements
for
incorporation
into the
ICC
regime,
the
meaning
and
purpose
of
which
must
be
included
in
the
domestic
code
of
the
ratifying
states
in
order
to
obtain
jurisdiction
over
the
ICC
crimes.
3
While,
at
the same
time,
there
are
political
and
legal
considerations
all
of
which require
the
governments
to
modify
the
wording
of
the
Rome
Statute's
Articles
to
conform
to
the
states'
individual
circumstances.
4
However,
too
great
a
deviation
from
the meaning
1.
See
Douglass
Cassel,
Empowering
United
States
Courts
to
Hear
Crimes within
the
Jurisdiction
of
the
International
Criminal
Court,
35
NEw
ENG.
L.
REv.
421
(2001)
(discussing the
gaps
in
the federal
criminal code
as
they pertain
to federal
jurisdiction
over Genocide, Crimes
Against Humanity,
and
War
Crimes).
2.
See
Rome
Statute
of
the International
Criminal
Court, United
Nations Diplomatic
Conference
of
Plenipotentiaries
on
the
Establishment
of
an
International Criminal
Court,
July
17,
1998,
U.N.
Doc.
A/CONF.
183/9
(1998),
2187
U.N.T.S.
90
(1998)
[hereinafter
Rome
Statute];
see
also
Jennifer
Schense
&
Donald
K.Piragoff,
Commonalities
and
Differences
in
the
Implementation
of
the
Rome
Statute,
in
NATIONAL
LEGISLATION INCORPORATING
INTERNATIONAL
CRIMES
245
(Matthias
Neuner
ed.,
2003)
(discussing
the
differences
of
each
state's
approach depending
on unique
legal,
constitutional
and
due
process
criteria).
3.
Rome Statute,
supra
note
2,
arts.
5-8
(covering
the
crimes
of
"Genocide,"
"War
Crimes,"
and
"Crimes
Against
Humanity").
4.
Id.
The
Rome
Statute
is
therefore somewhat
analogous
to
a
model
treaty
in
that
the
Articles
do
not
have
to
be incorporated verbatim
into
the
domestic
legal
code
of
the
ratifying
state.
The practical
impossibility
of
the
exercise,
due
to
the
vastness
of
criminal
codes
worldwide, requires
that some
flexibility
be
expected.
The
interesting question
is
how
much
flexibility
will
be
allowed before
the
domestic
statute
falls
outside
the
meaning
and
purpose
of
the
Rome
Statute.
It should
prove
very
interesting
to
observe
how the
Hatchell
and
purpose
of
the
Rome
Statute's
Articles
could
produce
a
situation
whereby
the
applicability
of
the treaty
would be
called
into
question.
The
balancing
act
between
the
intended
purpose
and
meaning
of
the Rome
Statute and
the
unique
domestic
requirements
could presumably
be
too great
for some
countries,
and
subsequent
ICC
and
domestic
court
decisions
will
analyze
these instances
as
they
arise
and
the
ICC
jurisprudence
matures.
It
would be
reasonable
to
assume
that
the
ICC
would
take
the
unique
circumstances
of
each
country
into
consideration
when called
upon
to
interpret
the
implementing
legislation,
in
essence,
passing
judgment
over
whether
the state
in
question
has
the
legal
capability
to
genuinely
carry
out
an investigation
or
prosecution
pursuant
to
Articles
17
and
18
of
the
Rome Statute.
The
international
community
assembled
through
the
auspices
of
the United
Nations
in
December
of
1989'
to
voice
its
concern
about
worldwide
impunity
for
hostis
humani
generis,
6
and
began
to
conceptualize
a
permanent
judicial
organ
focused
on
the
most
heinous
crimes
that exist.
7
Instead
of
fashioning
ad
hoc
tribunals
for
different
instances
of
grave
crimes
that
focus
on
specific
regions
or
conflicts,
as
was
done
in
Rwanda,
the
Balkans,
the
Special
Court
for
Sierra
Leone,
or
even
a
hybrid
court,
and
as
we
are
currently
witnessing
in
young
court
handles
the
instances
where certain
countries
have
strayed
too far
outside the
boundaries
of
the
Rome
Statute.
This
scenario gives
rise
to
many complex
questions
beginning with
whether
the
state
actually
ratified the
treaty.
5. ANTONIO
CASSESE, INTERNATIONAL
CRIMINAL
LAW,
340-44
(2003);
see
also
KRISTINA
MISKOWIAK,
THE
INTERNATIONAL
CRIMINAL
COURT:
CONSENT,
COMPLEMENTARITY
AND
COOPERATION
13
(2000).
6.
Filartiga
v.
Pena-Irala,
630
F.2d
876,
890
(2d
Cir.
1980).
7.
Patrick
Zahnd,
How
the
International
Criminal
Court
Should
Help Implement
International
Humanitarian
Law,
in
INTERNATIONAL
CRIMES,
PEACE,
AND
HuMAN
RIGHTS:
THE
ROLE
OF
THE
INTERNATIONAL
CRIMINAL
COURT
43
(Dinah
Shelton
ed.,
2000);
see
M.
Cherif
Bassiouni,
The
International
Criminal
Court
In Historical
Context,
99
ST.
LOUIs-WARSAW
TRANSATLANTIC
L.J.
55;
The
preamble
of
the
Rome
Statute
states:
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....
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....
Rome
Statute,
supra
note
2,
pmbl.
2005]
186
ILSA
Journal
of
International
&
Comparative
Law
[Vol.
12:183
Cambodia,
a
more
permanent
solution
was
conceived,
one
which ultimately
became the
constitutive
agreement
for
the
ICC
known
as
the
Rome
Statute.
In
June and
July
of
1998,
plenipotentiaries
from around
the
globe met
in
Rome
for
five
weeks with
the
single
purpose
of
formulating
a
multilateral
agreement
that
would
end impunity
for
the
perpetrators
of
the
most
heinous
crimes,
bringing
the
hope
of
justice
to
those
who
suffered
and
those
who
continue
to
suffer,
from the
most
wretched
acts
of
humankind.
9
To make
the
multilateral treaty-drafting
exercise
even more
difficult,
it
was
ultimately
decided
that
no
reservations
were
allowed
to
be
lodged.
l
The
disparate
ideologies that
many
states have
had
in
the
past
to
multilateral
agreements
were
generally
quelled
by
their
ability
to
register
their
disagreements
with
reservations
which
are
included
in
the
treaty
document.
The
Rome
Statute
was
to
be
different,
however,
and
debates
occurred
regarding
a
state's
ability
to
lodge
formal
reservations,"
as
is
permitted
by
the
Vienna
Convention on
the
Law
of
Treaties.
2
In
the end,
the
states were
left
with
lodging
merely
understandings.
3
The
Rome
Statute entered
into force
on
July
1,
2002,
with
the
8.
Rome Statute,
supra
note
2,
pmbl.
9.
Bassiouni,
supra
note
7,
at
55.
10.
David
J.
Scheffer
et
al.,
Panel:
The
Foreign
Affairs
Consequences
of
America's
Absence,
8
UCLA
J.
INT'L
L.
&
FOREIGN
AFF.
17,
39
(2003)
(stating
that
"one
of
our great defeats
in
Rome,
was
the
fact
that
we
failed to get a
reservations
clause
into the treaty.");
David
J.
Scheffer,
Staying
the
Course
with
the
International
Criminal
Court,
35
CORNELL
L.
REV.
47,
84
(2002) (stating
"[T]he
United
States
opposed
such
a
prohibition
prior
to
and
during
the
Rome
Conference.");
see
also
Rome
Statute,
supra
note
2,
art.
120
(stating
plainly
that
no
reservations
are
to
be
allowed;
similar
to the
debate
regarding treaties
of
this
nature,
i.e.,
Convention
against Torture,
etc., the
argument
is
posited that,
how
could
anyone have
a
reservation
about
the
"clear illegality"
of
such
acts.).
11.
As
a
rule,
no reservations may
be
made
to
the
Rome Statute.
Rome Statute,
supra
note
2,
art.
120.
However,
a
state
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
(War
Crimes)
when
a crime
is
alleged
to
have
been
committed
by
its
nationals
or
on
its
territory.
Id.
art.
124
(Transitional
Provision).
This provision
is
a
compromise achieved by
the
Rome
Conference
at
the
expense
of
ensuring that
one
state
supported
the
Rome Statute.
See
generally
HUMAN
RIGHTS
WATCH,
WORLD
REPORT:
INTERNATIONAL
CRIMINAL
COURT
(1999).
This
compromise
is
justified
by
the
fact
that
the
"group
of
like-minded
states" succeeded
in
obtaining support
in
prohibiting
the
possibility
of
making
reservations
to
the Statute.
Id.
This
compromise,
being
a
result
of
very hot
debates,
is
one
of
the
most important
principles
of
the
Statute.
Id.;
see
also
MERAB
TURAVA,
OPEN
SOCIETY--GEORGIA
FOUNDATION,
ANALYSIS
OF
COMPATIBILITY
OF
THE
GEORGIAN
LEGISLATION
WITH THE
STATUTE
OF
THE
INTERNATIONAL
CRIMINAL
COURT
(2001),
available
at
http://www.osgf.ge/interlaw/ICC
-O0.htm
(last
visited
Oct.
7,
2005).
12.
Vienna Convention
on the
Law
of
Treaties,
arts.
19-21,
May
23,
1969, 1155
U.N.T.S.
331,
336-7
[hereinafter
Vienna
Convention].
13.
The
importance
of
noting
the
distinctions
between
the
two
is
crucial.
A
reservation
binds
the
reserving
states'
obligations
of
a
treaty
with
regard
to
all
signatory
states.
BARRY
E.
CARTER
ET
AL.,
INTERNATIONAL
LAW
114-120
(4th
ed.,
2003).
An
understanding
merely
creates
legal
obligations
for
the
Hatchell
sixtieth
ratifier
at
a
seemingly
unprecedented
pace.'
4
Currently,
there are
ninety-eight
countries
that
have
ratified
the
Rome
Statute.
5
The
Rome
Statute
was
indeed
an
amalgam
of
the
states'
disparate
ideo-
logies
with
a
single purpose,
to
constitute
a
permanent
forum for
the
inter-
national
community
to
bring
the
worst
of
criminals
to
justice.
The
ICC
was
going
to
be
a
place to
end
impunity
for
only
the
most
heinous
crimes.
Many
states
prior
to ratifying
the Rome
Statute,
including
the
United
States,
did
not
have
the domestic
legal
framework
in
place
to
either
exercise
jurisdiction
at
the
national
court
level, or
their
criminal
codes
were
silent
or
incomplete
with
regard
to
the
underlying
criminal
offences.
The
necessity
for
legislation,
entitling
states'
domestic
jurisdiction,
so
that
their
courts
could
be
an
appro-
priate forum
was
made evident
in
Rome.
Germany
had
expressed
the
possibility
that
the
ICC may
promote
the
beginning
of
a
harmonization
process
of
international
criminal
law
amongst
states.
6
These gaps
in
jurisdiction
have
allowed
for
the
imperfect administration
of
justice
and,
in
certain
situations,
have
not created
mandatory
activation
ofjurisdiction
or
prosecutorial
authority.
The
Rome
Statute
was supposed
to
propose
a
cure
for this
inequality
and
be
the
world's
court
for
war
crimes,
crimes
against
humanity,
genocide,
and aggres-
sion.
Each
state's
ICC
implementing
legislation
is
ripe
with
political,
legal,
and
distinctive
domestic
concerns.
By distinguishing
the
states'
final
legislative
products,
the
United
States
can
begin
to
conceptualize
not
only
what
sections
of
the
Rome
Statute
have
been
modified
through
states'
domestic
legislation,
seeing
what
issues
are
generally
in
play,
but
also
to
see
whether
the
United
States
can
replicate
the
dual successes
of
other
democracies,
protecting
individual
national
interests and
becoming
a
member
of
the
ICC
regime.
Passing
legislation
which
would
incorporate
Articles
5
through
8
of
the
Rome
Statute
into the
United
States'
federal
criminal
law
would
not mandate
United
States
cooperation
with the ICC.
Congress
can
propose
atrocity
crime
legislation
which
does not mention
the
Rome
Statute
or
the
ICC. The
Rome
Statute
is
not
a
self-executing
treaty
and,
therefore,
would
still
require
the
reserving
state
to its
own
treaty
obligations.
Id.
Had
the
United States
been
able to lodge a
reservation
to
the
Rome
Statute,
that
accordingly
did
not
defeat the
object
or purpose
of
the
statute
itself,
ratification
of
the
Rome Statute
might
have
already
occurred.
Id.
14.
See
Rome
Statute,
supra
note
2;
see
also
COALITION
FOR
THE
INTERNATIONAL
CRIMINAL
COURT,
STATE
SIGNATURES
AND
RATIFICATIONS
CHART
(2005),
http://www.iccnow.org/countryinfo/worldsigsandratifications.html
(last
visited
Sept.
23,
2005)
(containing
the
most
up
to
date tally
of
ratified
states)
[hereinafter
SIGNATURES
&
RATIFICATIONS].
15.
SIGNATURES
&
RATIFICATIONS,
supra
note
14
(The
Dominican Republic
ratified the
Rome
Statute
on
May
13,
2005,
bringing
the
total
number
of
States
that
are
parties
to
the Statute
to
99;
139
States
are
signatories).
16.
Schense
&
Piragoff,
supra
note
2,
at
249.
2005]