United States of America
Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
In 1979, in a diplomatic note addressed to the USSR embassy, the US Department of State stated:
The Department of State requests the cooperation of the Embassy of the USSR in bringing to the attention of the appropriate officials and organs the essential need for … witnesses to testify in the prosecution of war crimes cases in the United States. Without firm assurances on the availability of witnesses the United States Government will be unable to continue these prosecutions. In many cases, therefore, individuals accused of committing serious crimes during 1941–1945 will be allowed to remain free without a proper trial.
We believe that it is in the mutual best interest of the United States and the Union of Soviet Socialist Republics to cooperate to ensure that this result is avoided and that justice is done in these cases.
In 1987, the Deputy Legal Adviser of the US Department of State, referring to Articles 85–89 of the 1977 Additional Protocol I, affirmed: “We support the principle that the appropriate authorities … make good faith efforts to cooperate with one another.”
In 1989, a study prepared by the Deputy Director of the US Office of Special Investigations summarized the Office’s assistance in investigations involving three Second World War Nazi war criminals outside the United States. The study reported that:
At the time of [Klaus Barbie’s] extradition [from Bolivia to France], OSI [Office of Special Investigations] was asked by Attorney General William French Smith to investigate and report on allegations concerning Barbie’s post-war relationship with American military intelligence and the latter’s efforts to prevent his arrest by French authorities …
In 1985, OSI strongly supported an effort with West German and Israeli authorities to locate [Josef] Mengele’s whereabouts …
Prompted by a request from the Anti-Defamation League of B’nai B’rith, OSI undertook a formal inquiry into the relationship between the United States government and convicted criminal Robert Jan Verbelen.
In 1992, a report on Iraqi war crimes (Desert Shield/Desert Storm) prepared under the auspices of the US Secretary of the Army noted: “The obligation to investigate violations of the law of war committed against allied personnel is subject to the consent of the ally in question, particularly if the alleged violations occurred within the territory of the ally.”
As regards alleged Iraqi war crimes, the report stated that to carry out US directives dealing with the investigation and prosecution of war crimes:
An interagency meeting was held on 30 August 1990 … [The participants] understood that any formal war crimes investigation would depend upon authorization by appropriate authority and, depending on the scope of the investigation, might also require the consent of the host nation …
Detachments selected for mobilization were the 199th Judge Advocate Detachment … and the 208th Judge Advocate Detachment … Elements of the 199th arrived in Kuwait City on 1 March 1991, and upon arrival, reestablished contact with the Kuwaiti Ministry of Justice. Then, with the consent of the Ministry, they contacted members of Kuwaiti resistance groups … The Ministry of Justice was also investigating Iraqi actions during the occupation, To avoid duplicate effort, and in the spirit of cooperation, the mission of the 199th evolved into establishing the nature and extent of Iraqi offences rather than building cases for prosecution. One of the goals was to accumulate and organize the evidence in a fashion that would facilitate preparation of criminal cases should prosecution of war criminals at a later date become an option.
According to the Report on US Practice, it is the opinio juris
of the United States that “there is a general obligation to try [persons suspected of war crimes other than members of its own armed forces] or to cooperate with another state willing to try them in accordance with international fair trial standards”.
The report also states: “The United States appears to recognize a general obligation on all states to assist each other in the investigation and prosecution of war crimes.”
The US Military Extraterritorial Jurisdiction Act (2000), under a provision entitled “Delivery to authorities of foreign countries”, provides:
(a) Any person designated and authorized … may deliver a person described in section 3261(a) [“whoever engages in conduct outside the United States that would constitute an offence punishable by imprisonment for more that 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States – (1) while employed by or accompanying the Armed Forces outside the United States; or (2) while a member of the Armed Forces”] to the appropriate authorities of a foreign country in which such person is alleged to have violated section 3261(a) if
(1) appropriate authorities of that country request the delivery of the person to such country for trial for such conduct as an offence under the laws of that country; and
(2) the delivery of such person to that country is authorized by a treaty or other international agreement to which the United States is a party.
The US Intelligence Reform and Terrorism Prevention Act (2004) states with regard to the treatment of aliens who commit acts of torture, extrajudicial killings or other atrocities abroad:
Sec. 5505. Establishment of the Office of Special Investigations.
(a) AMENDMENT OF THE IMMIGRATION AND NATIONALITY ACT.—Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following:
(h)(1) The Attorney General shall establish within the Criminal Division of the Department of Justice an Office of Special Investigations with the authority to detect and investigate, and, where appropriate, to take legal action to denaturalize any alien described in section 212(a)(3)(E) [relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings].
(2) The Attorney General shall consult with the Secretary of Homeland Security in making determinations concerning the criminal prosecution or extradition of aliens described in section 212(a)(3)(E).
(3) In determining the appropriate legal action to take against an alien described in section 212(a)(3)(E), consideration shall be given to—
(A) the availability of criminal prosecution under the laws of the United States for any conduct that may form the basis for removal and denaturalization; or
(B) the availability of extradition of the alien to a foreign jurisdiction that is prepared to undertake a prosecution for such conduct.
The US Law on Judicial Assistance to the ICTY and ICTR (1996) states:
(a) Surrender of Persons. –
(1) Application of United States extradition laws. –
Except as provided in paragraphs (2) and (3), the provisions of chapter 209 of title 18, United States Code, relating to the extradition of persons to a foreign country pursuant to a treaty or convention for extradition between the United States and a foreign government, shall apply in the same manner and extent to the surrender of persons, including United States citizens, to –
(A) the International Tribunal for Yugoslavia, pursuant to the Agreement Between the United States and the International Tribunal for Yugoslavia; and
(B) the International Tribunal for Rwanda, pursuant to the Agreement Between the United States and the International Tribunal for Rwanda.
In 1997, during plenary discussions in the UN General Assembly on a report of the International Criminal Tribunal for the former Yugoslavia (ICTY), the United States stated:
We reaffirm [the ICTY] President Cassese’s request that all States and entities cooperate fully with the [ICTY]. There is no justification for the near-total non-cooperation of Republika Srpska and the Federal Republic of Yugoslavia with the order of the Tribunal, particularly in the apprehension of indictees in areas under their control. The recent cooperation of the Government of Croatia in facilitating the surrender of indictees is commendable, but more cooperation from Croatia is required. The United States will continue to use every tool at its disposal to compel cooperation and to strengthen the capabilities of the [ICTY].
The United States joins with other Member States in continuing to support the work of the war crimes tribunals.
In 1998, in response to the situation in Kosovo, but also referring to the other conflicts in the former Yugoslavia, the US Congress adopted a resolution by unanimous consent stating:
The United States should engage with other members of the North Atlantic Treaty Organization and other interested states in a discussion of measures to be taken to apprehend indicted war criminals and persons indicted for crimes against humanity with the objective of concluding a plan of action that will result in these indictees’ prompt delivery into the custody of the Tribunal.
On 8 May 2006, the US Delegation to the UN Committee against Torture, responded orally to questions regarding US obligations under the 1985 Convention against Torture. On a question concerning the International Criminal Court, the US Department of State Legal Advisor responded:
[I]n response to your question regarding the International Criminal Court, which I will refer to by its acronym the “ICC,” the United States strongly supports accountability for war crimes and crimes against humanity, and is steadfast in its promotion of international justice worldwide. The U.S. position on the ICC is wellknown, and is not relevant here; however, the United States does respect the right of other nations to be party to the ICC. The United States played a key role in drafting the substantive elements of the crimes in the Rome Statute. Furthermore, the United States continues to lead the way in promoting accountability for these atrocities by being the largest financial contributor to both international and domestic war crimes tribunals, by finding that genocide has occurred in Darfur, and by supporting countries in their apprehension of fugitives such as Mladic, Karadic, and Taylor. We do agree that international and domestic mechanisms for accountability are an important method of eradicating torture, among other crimes, and in promoting accountability and the rule of law.
In March 2010, in a speech given at the Annual Meeting of the American Society of International Law, the US State Department’s Legal Adviser stated:
With respect to the U.S. relationship to the ICC [International Criminal Court], let me report on my recent participation in the Resumed 8th Session of ICC Assembly of States Parties in New York, from which I have just returned. Last November, [the US] Ambassador-at-Large for War Crimes and I led an interagency delegation that resumed engagement with the Court by attending a meeting of the ICC Assembly of States Parties (ASP). This was the first time that the United States had attended such a meeting, and this week’s New York meeting continued that November session. As you know, the United States is not party to the Rome Statute, but we have attended these meetings as an observer. Our goal in November was to listen and learn, and by listening to gain a better understanding of the issues being considered by the ASP and of the workings of the International Criminal Court.
Significantly, although during the last decade the U.S. was largely absent from the ICC, our historic commitment to the cause of international justice has remained strong. As you all know, we have not been silent in the face of war crimes and crimes against humanity. As one of the vigorous supporters of the work of the ad hoc tribunals regarding the former Yugoslavia, Rwanda, Cambodia, Sierra Leone, and Lebanon, the United States has worked for decades, and we will continue to work, with other States to ensure accountability on behalf of victims of such crimes. But as some of those ad hoc war crimes tribunals enter their final years, the eyes of the world are increasingly turned toward the ICC. At the end of May, the United States will attend the ASP’s Review Conference in Kampala, Uganda. There are two key items on the agenda: stock-taking and aggression.
In the current situation where the Court has open investigations and prosecutions in relation to four situations, but has not yet concluded any trials, the stock-taking exercise is designed to address ways to strengthen the Court, and includes issues such as state cooperation; complementarity; effect on victims; peace and justice; and universality of membership. Even as a non-State party, the United States believes that it can be a valuable partner and ally in the cause of advancing international justice. Th[is] Administration has been actively looking at ways that the U.S. can, consistent with U.S. law, assist the ICC in fulfilling its historic charge of providing justice to those who have endured crimes of epic savagery and scope. And as [the US] Ambassador [-at-Large for War Crimes] announced in New York, we would like to meet with the Prosecutor at the ICC to examine whether there are specific ways that the United States might be able to support the particular prosecutions that already underway in the Democratic Republic of Congo, Sudan, Central African Republic, and Uganda.
In May 2010, the US President issued the 2010 National Security Strategy, which stated:
: From Nuremberg to Yugoslavia to Liberia, the United States has seen that the end of impunity and the promotion of justice are not just moral imperatives; they are stabilizing forces in international affairs. The United States is thus working to strengthen national justice systems and is maintaining our support for ad hoc
international tribunals and hybrid courts. Those who intentionally target innocent civilians must be held accountable, and we will continue to support institutions and prosecutions that advance this important interest. Although the United States is not at present a party to the Rome Statute of the International Criminal Court (ICC), and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern and are supporting the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.
In June 2010, the co-heads of delegation for an interagency group from the U.S. Government attending the Review Conference for the International Criminal Court (ICC) at Kampala, Uganda, provided a teleconference briefing for US-based journalists. In his introduction, the US Department of State Legal Adviser stated:
So we are here as part of three broader U.S. foreign policy initiatives … [which includes being] here as part of our long-term commitment to promoting accountability by supporting the responsible development of international mechanisms of criminal justice, the Yugoslav tribunal, the Rwanda tribunal, the Sierra Leone tribunal, and the Cambodia tribunal.
The US Ambassador-at-Large for War Crimes Issues then stated:
[O]ur presentation at all of those sessions [introductory meetings and at an intervention during the previous day of the conference] emphasized … our [US] strong support of the Yugoslavia, Rwanda, Sierra Leone courts and other courts in which I myself and so many other Americans were involved; and a recognition that in the future, when it comes to situations where mass atrocities are committed and where there’s no possibility of achieving justice at the national level and you need to go to an international level to have accountability, it is the ICC where that will happen, that the rest of the world is unlikely to create sort of stand-alone institutions, which is the pattern from the 1900s.
For that reason, we want to look for ways to engage with the ICC to make sure that it’s effective. And the four cases that it’s taken on in Africa, through the end of March when we spoke at the conference in New York, in the DRC [Democratic Republic of the Congo], in Uganda, in Sudan, in the Central African Republic, are situations that involve mass atrocities against civilians, situations in which it was far more dangerous to be an innocent woman or child than it was to be a soldier.
As the President said last week – and I quoted this in my speech yesterday – in signing bi-partisan legislation to assist northern Uganda in recovering from the effects of … the Lord’s Resistance Army, we support efforts to bring … the leaders of the LRA to justice. That means for those that are indicted at the ICC that they need to be brought to trial in The Hague. For others, and there are many others and there are some that have been brought here from Congo to Uganda, they need to face justice at the national level. And through our aid and assistance programs, not just now but for the last several years, we’ve been providing assistance to their national justice systems here and elsewhere.
In response to a question, the US Ambassador-at-Large for War Crimes Issues further stated that “we’re going to work to try to find ways that we can, consistent with our law, [assist the ICC in] support [of] these prosecutions to make sure that people that are committing these mass atrocities are held to account.”
In response to a further question, the US Department of State’s Legal Adviser stated: “What we’re here talking about is ways that we can support this court [the ICC] constructively when it works in our interests. And so far, in the cases that it’s taking on, they are in our interest and the interest of all of humankind.”
In June 2010, at a press briefing following the return of the US government delegation from the Review Conference for the International Criminal Court (ICC) held in Kampala, Uganda, the US Department of State’s Legal Adviser stated:
So to paraphrase Churchill, this is not the end, it was not the beginning of the end, but it did feel like the end of the beginning of the U.S’s 12-year relationship with this court. After 12 years, I think we have reset the default on the U.S. relationship with the court from hostility to positive engagement. In this case, principled engagement worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill. As one delegate put it to me, the U.S. was once again seen, with respect to the ICC, as part of the solution and not the problem. The outcome in Kampala demonstrates again principled engagement can protect and advance our interests, it can help the states parties to find better solutions, and make for a better court, better protection of our interests, and a better relationship going forward between the U.S. and the ICC.
In October 2010, at a panel discussion on the Challenges and Future of International Justice, the US Department of State’s Legal Adviser stated:
[T]he United States has an historic commitment to the cause of international justice that dates back to the Nuremburg and Tokyo Tribunals, and which has continued with strong commitment to the ad hoc tribunals regarding the former Yugoslavia, Rwanda, Cambodia, Sierra Leone and Lebanon. Our country has never been silent in the face of war crimes, crimes against humanity and genocide –crimes against the basic code of humanity that call for condemnation in the strongest possible way.
What has this meant in concrete terms? Funding the ad hoc tribunals. Supporting their work, politically and diplomatically. Providing evidence and concrete support to the prosecutors. …
At the same time, however, we should frankly acknowledge that the United States has at times not extended to the International Criminal Court the same support we have provided to the ad hoc tribunals, even as our commitment to international justice in other areas remained strong. …
We supported the ad hoc tribunals, whose days were numbered, but we remained equivocal toward the court that no doubt will become the standing institution for international criminal justice. Our approach to the ICC was incongruent not just with our support for the ad hoc tribunals, but in many ways with respect to some of the work being done by the ICC itself. …
[W]hat has this] Administration done thus far to make our approach to the ICC more congruent with our broader approach to international criminal justice. Three things:
First, in the time we have been in office we have ended the hostility and the harsh rhetoric. …
Second, we began to engage the Assembly of States Parties. …
A third and final area in which we sought to realign our approach was to state our support for all of the court’s prosecutions that are currently underway. We made that announcement in March of this year, at the same time that we announced our desire to meet with the ICC Prosecutor and court officials to find ways we may be able to support the ICC’s current prosecutions.
Since then, we have held a number of these meetings and have found them mutually productive. And although for obvious reasons I am not at liberty to discuss the details, we help where we can, consistent with our laws. One way we have particularly sought to help is through our public diplomacy. You have seen this administration be both quite vocal in its support for bringing persons accused of atrocities by the ICC to justice, and be critical of those who try to thwart that justice. This public diplomacy will continue.
What you quite explicitly do not see from this Administration is U.S. hostility towards the Court. You do not see what international lawyers might call a concerted effort to frustrate the object and purpose of the Rome Statute. That is explicitly not the policy of this administration. Because although the United States is not a party to the Rome Statute, we share with the States parties a deep and abiding interest in seeing the Court successfully complete the important prosecutions it has already begun.