ACSBlog: The Blog of the American Constitution Society

by Daniel Kotler, Editor at Large

On January 31, 2007, a court in Munich, Germany issued warrants for the arrest of 13 CIA agents accused of kidnapping Khaled el-Masri, a German citizen, and bringing him to Afghanistan to be tortured as part of the United States's extraordinary rendition program. The United States has refused to cooperate with these warrants, and German prosecutor acknowledges that in practice it will be difficult to arrest the CIA agents, whose true identities are probably not known. El-Masri has also brought civil suit in the U.S. against several CIA employees; the case is currently at the US appellate court.

Germany is not the only country whose prosecutors have sought to bring the CIA to justice for alleged crimes against its citizens. Italian prosecutors have also sought indictments against CIA agents, though unlike Germany, Italian law permits trials in abstentia. Interestingly, Germany and Italy, like the U.S., have both refused to sign the recent UN treaty which would ban extraordinary rendition.

A Canadian citizen who was allegedly a victim of extraordinary rendition--and whose plight and innocence of terrorism connections were affirmed by a Canadian investigation--has also brought suit in the U.S. against the U.S. government.

In recent years, the United States has expended considerable energy to avoid prosecution of American forces abroad by opposing and seeking immunity from the International Criminal Court. The U.S. signed but never ratified, and then nullified its signature on, the Rome Statute which created the Court. The U.S. has pressured other countries to make bilateral agreements promising not to extradite or bring charges against any US citizens to the ICC. U.S. Congress has even gone so far as to pass the so-called Hague Invasion Act, requiring the U.S. military to intervene to rescue any U.S. citizen held for trial by the ICC. American opposition to the ICC has stemmed largely from fear of politically motivated prosecutions, and fear of a poorly run court. Human Rights Watch summarizes typical defenses of the ICC here, though the issues remain controversial. 

In accordance with the Rome Statute, the ICC has subject matter jurisdiction (i.e. authority to hear cases concerning) over only four crimes: genocide, crimes against humanity, war crimes, and aggression. These are all international crimes, as opposed to domestic crimes which violate the laws of an individual state (even if some acts, such as theft, violate the domestic law of most states, they are not necessarily international crimes). Since the crime of aggression has never been defined, the ICC in practice has jurisdiction over only three particularly heinous crimes. Moreover, the ICC cannot hear a case if a state's domestic court hears the case in good faith.

In contrast, domestic courts of foreign states such as Germany and Italy might assert jurisdiction over any case involving crimes under their domestic law committed on their territory. Indeed, the US has negotiated a number of agreements which expressly permit a country hosting U.S. troops to exercise jurisdiction over those troops in exchange for agreement that the U.S. retains jurisdiction over the troops for actions in the course of the troops' official duties. For detailed discussions of these agreements, in general and in the context of ICC, see Egan, John, "The Future of Criminal Jurisdiction over the deployed American Soldier: Four Major Trends in Bilateral U.S. Status of Forces Agreements," 20 Emory Int'l L. Rev. 291 (Spring 2006); Rosenfeld, Erik, "Application of the U.S. Status of Forces Agreements to Article 98 of the Rome Statute," 2 Wash. U. Global Stud. L. Rev. 273 (Winter 2003). Additionally, some courts have begun exercising extraterritorial jurisdiction when their nationals are the victims of crimes which occur outside the state's territory. One example of the use of extraterritorial jurisdiction against a former head of state is the U.S.'s own prosecution of Manuel Noriega. See, e.g., Hasson, Adam Isaac, "Extraterritorial Jurisdiction and Sovereign Immunity on Trial: Noriega, Pinochet, and Milosevic--Trends in Political Accountability and Transnational Criminal Law," 25 B.C. Int'l & Comp. L. Rev. 125 (Winter 2002). Because el-Masri was allegedly kidnapped in the Balkans, the recent German warrants appear to be such an exercise. Moreover, Additionally, under the doctrine of universal jurisdiction, foreign domestic courts may have jurisdiction to try certain international crimes which don't have any connection to that state or that state's citizens.

Some reports have suggested that the U.S. has been softening its opposition to the ICC recently, recognizing the court's utility in preventing some of the more heinous atrocities. Nonetheless, the U.S. continues to oppose ICC jurisdiction over Americans.