NCJ Number
226174
Journal
Journal of Criminal Law and Criminology Volume: 98 Issue: 3 Dated: Spring 2008 Pages: 983-1068
Date Published
2008
Length
86 pages
Annotation
This article examines whether the United States’ ratification of the Rome Statute of the International Criminal Court (ICC) would comply with the U.S. Constitution, notably Article III, Section 1, which pertains to the judicial power of the United States.
Abstract
The authors of this article argue that ratification following adoption of implementing legislation would not violate Article III, Section 1. They propose a ratification strategy that would be grounded in the Article II, Section 2 treaty power and the Article 1, Section 8, Clause 10 Define and Punish Clause of the Constitution. It would also include amendments to the Federal criminal code and military code, so as to ensure the ability of U.S. courts to investigate and prosecute the atrocity crimes that compose the subject-matter jurisdiction of the Rome Statute. Fundamental due process rights are protected by the Rome Statute and its Rules of Procedure and Evidence, and the absence of jury trials before the ICC does not violate the U.S. Constitution. Also, the complementarity regime of the Rome Statute enables the United States to prosecute any American citizen or other individual within its jurisdiction before a jury and in accordance with the full range of due process rights guaranteed by the U.S. Constitution and American jurisprudence. The U.S. Constitution would not bar the United States from agreeing to the Rome Statute’s prohibition of head of state or other high-level immunity from prosecution before the ICC. The proposed ratification strategy would include adoption of declarations, understandings, and provisos that clarify American adherence to its Constitution as a state party to the Rome Statute. 411 notes