Read on Twitter
1. Short thread on this bit of the U.S. statement opposing ICC jurisdiction over international crimes committed in Palestine.
https://twitter.com/StateDeptSPOX/status/1357844884238041088
https://twitter.com/StateDeptSPOX/status/1357844884238041088
2. The U.S. *has* long taken the position that agents of a State who commit war crimes, crimes against humanity, or genocide are immune from prosecution by international courts without their State's consent.
https://www.justsecurity.org/55111/intl-criminal-courts-afghanistan-probe-international-law-commission/
https://www.justsecurity.org/55111/intl-criminal-courts-afghanistan-probe-international-law-commission/
3. Critically, this official immunity applies when the crimes are committed in the territory, and against the nationals, of a State Party to the ICC.
4. The UN Security Council can override that immunity (but the U.S. has a veto).
Or the State whose agents committed the international crimes can waive that immunity and consent to the Court's jurisdiction (don't hold your breath).
Or the State whose agents committed the international crimes can waive that immunity and consent to the Court's jurisdiction (don't hold your breath).
5. It's a grotesque position.
And it has nothing to do with 'protecting sovereignty', as is sometimes claimed. The whole point is to limit the sovereign rights of the State where the crimes occur.
It just protects States whose agents kill people in other countries.
And it has nothing to do with 'protecting sovereignty', as is sometimes claimed. The whole point is to limit the sovereign rights of the State where the crimes occur.
It just protects States whose agents kill people in other countries.
6. There is a bit of good news.
The International Law Commission has taken the view that there is no immunity from *foreign* criminal jurisdiction for international crimes.
If States agree, then logically the U.S. position on *international* jurisdiction should fall apart.
The International Law Commission has taken the view that there is no immunity from *foreign* criminal jurisdiction for international crimes.
If States agree, then logically the U.S. position on *international* jurisdiction should fall apart.
7. The ICC recently found that officials of non-Party States enjoy no "personal" immunity from arrest and surrender to the Court.
With a few tweaks, the basic rationale of that decision should deny "functional" immunity for international crimes committed on behalf of a State.
With a few tweaks, the basic rationale of that decision should deny "functional" immunity for international crimes committed on behalf of a State.
8. To sum up, the U.S. position is disgraceful, and increasingly untenable as a matter of law.
But, hey, points for consistency.
But, hey, points for consistency.
