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Michael Kelly
Creighton University School of Law
JURIST Guest Columnist

As America positions itself for war in Iraq, much has been said about holding Saddam and his cronies accountable for their past (and probably future) war crimes and crimes against humanity. But not much has been said about the accountability of Americans fighting in Iraq. Could some of them be tried for war crimes?

Certainly. If Americans commit war crimes, they can be tried at home. U.S. soldiers are amenable to the Uniform Code of Military Justice, and domestic courts have jurisdiction over our civilians. This is no small point, as we shall see below.

No international body, however, can exercise jurisdiction over Americans for actions undertaken in Iraq. The idea that the new International Criminal Court, which was created last summer, would be able to try and convict Americans fighting abroad in Iraq as "war criminals" if they engaged in prohibited conduct like rape and murder of civilians is simply incorrect.

Conservative activists, like Rush Limbaugh and former Judge Bork, characterize the ICC as a bogeyman ready to sap U.S. sovereignty and put our troops in jeopardy when they are deployed around the world. But no ICC jurisdiction can attach in Iraq because neither the U.S. nor Iraq are party to the Rome Statute that creates the court (the United States signed the treaty in December 2000, but announced its decision not to ratify in May 2002). Under that treaty, the court's jurisdiction is inextricably linked to whether the crime was committed either on the territory of or by a national of a state that is party to the convention. Neither would be the case in Iraq. The same result obtains for possible military action against other "Axis of Evil" members (North Korea and Iran) and for American forces currently on the ground in Afghanistan, the Philippines and Pakistan - none of which have joined the treaty.

America's ally Great Britain does not, however, enjoy the same immunity. British soldiers could come under the ICC's jurisdiction for their conduct in Iraq precisely because Britain is a party to the Rome Statute. Of course, it is highly unlikely that war crimes would be committed by British forces, or American ones for that matter. But events like No Gun Ree in Korea or Mi Lai in Vietnam do sometimes happen in the fog of war.

The only other way an ICC case can commence over nationals of non-member states is through a U.N. Security Council referral. But America holds such an eventuality in abeyance through its veto power on that body. Checkmate. The ICC cannot get hold of Americans or American troops in Iraq engaging in the three crimes it controls: widespread or systematic crimes against humanity, large-scale or planned war crimes, and genocide.

Even if U.S. troops find themselves in countries that have joined the ICC, perhaps pursuing Iraqi forces into Jordan or chasing al Qaeda operatives into Tajikistan, the court's jurisdiction would be limited by the principle of complimentarity enshrined in the Rome Statute. In other words, if a national court is already handling a case, the ICC must respect that domestic court's jurisdiction. The ICC is designed to assert its own jurisdiction primarily as a gap-filler - in the case of failed states with no functioning judiciary or a corrupt criminal justice system where war crimes are not likely to be brought to trial. America has a fully functioning, competent judiciary.

Although I supported American participation in the ICC in the hope that our involvement in its creation would imbue it with some of our constitutional norms and protections, the government decided against getting involved. Consequently, the administration's policy questions now concern where the court's jurisdiction will operate and when it will attach to Americans. Fortunately for U.S. policymakers, the answer to the latter question is "almost never."

Michael Kelly is Assistant Professor of Law at Creighton University School of Law in Omaha, Nebraska. He is co-author of "Equal Justice in the Balance, Assessing America's Legal Responses to the Emerging Terrorist Threat" (forthcoming Univ. of Mich. Press 2003).

March 17, 2003


JURIST Guest Columnist Michael Kelly is an Assistant Professor of Law at Creighton University School of Law. Professor Kelly is co-author of the book Equal Justice in the Balance: Assessing America's Legal Responses to the Emerging Terrorist Threat (Univ. of Mich. Press 2003). He has published articles on, among other things, reforming the United Nations Security Council, the debate over federal law governing the disposal of ancient human remains, and political downsizing. His Op-Ed Columns have appeared in the Los Angeles Times, Philadelphia Inquirer, San Diego Union Tribune, Detroit News, Chicago Sun-Times and Houston Chronicle. Professor Kelly teaches International Law, International Environmental Law, European Union Law, and Native American Law.

Professor Kelly holds a J.D. from Indiana University School of Law and an LL.M. from Georgetown University Law Center.