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35 New Eng. L. Rev. 421 (2000-2001)


United States courts have only incomplete and uneven jurisdiction, most acquired piecemeal and only in recent years, to prosecute genocide, war crimes and crimes against humanity committed outside our borders. Recent developments in international law and practice-especially the heightened commitment of democracies including the United States to end impunity for atrocities, and the imminent prospect of a permanent International Criminal Court (ICC) with worldwide jurisdiction-suggest the need to expand and rationalize the jurisdiction of U.S. courts to make it coextensive with that of the ICC.

It now appears all but certain that the ICC will come into being in the first years of the 21st century. A treaty to create it was approved in 1998 by a United Nations diplomatic conference in Rome, by a vote of 120 nations in favor, seven opposed and 21 abstentions. Its initial jurisdiction will cover genocide, crimes against humanity and serious war crimes. Sixty ratifications are required for the treaty to go into effect; as of early February 2000, 139 nations (including the United States) have signed the treaty and 28 have ratified.

The United States was one of only seven nations to vote against the treaty. The ensuing debate within the United States has properly focused on whether the United States can and should ratify the treaty or, if not, whether as a non-party the United States should support or oppose the new court. Largely overlooked, however, are two separate but related questions: (1) Should the existing, incomplete jurisdiction of U.S. courts over crimes within the ICC Statute be expanded to ensure that such crimes may also be prosecuted in U.S. courts, under universal jurisdiction or other bases allowed by international law? and (2) Should the existing, incomplete codification in the United States of crimes within the ICC Statute likewise be expanded to ensure that they are also crimes under our national law?

This article suggests that the answer to both questions is yes. Regardless of whether the United States ultimately joins the ICC, U.S. courts should have the jurisdiction and codification necessary to prosecute the crimes within the ICC Statute. ICC jurisdiction is merely "complementary to national criminal jurisdictions," whether or not the nations involved are parties to the ICC. U.S. courts will need jurisdiction coextensive with that of the ICC, then, in order for the United States to be assured that it can exercise its right, even as a non-party, to take preemptive jurisdiction under the ICC Statute. In addition, whether or not we join the ICC, our courts need jurisdiction and laws to ensure that those who commit genocide, crimes against humanity and serious war crimes, and who then come to or are brought to the United States, can be prosecuted here, in the event the ICC cannot or does not take jurisdiction.

The imminence of the ICC thus provides both occasion and stimulus to expand U.S. jurisdictional and criminal laws to cover those crimes within the ICC's initial mandate. Wholly apart from the ICC, however, U.S. laws should be updated to provide for universal jurisdiction to prosecute such serious crimes, if we are to make real our oft-stated commitment to bring to justice those who commit the most serious violations of international human rights and humanitarian law.


Reprinted with permission of the New England Law Review.



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