	Introduction

The International Criminal Court ("ICC" or "Court") is the first permanent international court with jurisdiction to prosecute individuals for "the most serious crimes of concern to the international community." Since its inception, the ICC has received referrals for investigations from three States Parties and one referral from the United Nations Security Council. In particular, this report seeks to address the concern that the ICC might assert jurisdiction over U.S. nationals by providing insight into (1) how the ICC and Prosecutor determine whether the ICC has jurisdiction over the situations under preliminary investigation; (2) how the Prosecutor and ICC determine whether a situation would be admissible as a case before the ICC; (3) the basis for concerns that the ICC has the authority to request the surrender of a U.S. national; and (4) steps taken by the United States to prevent or deter the ICC from exercising jurisdiction over U.S. nationals. The History of U.S. Policy Toward the ICC

While the U.S. executive branch initially supported the idea of creating an international criminal court and was a major participant at the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court ("Rome Conference"), which produced the Statute, the United States ultimately voted against the Statute. The United States stated that its primary objection to the treaty is the potential for the ICC to assert jurisdiction over both U.S. civilian policymakers and U.S. soldiers charged with "war crimes" even if the United States does not ratify the Rome Statute. The Obama Administration seems to have continued this approach and has started engaging directly with the ICC. Article 17: Issues of Admissibility

Even if the ICC has jurisdiction over a case, it may be precluded from hearing it if the case is inadmissible under Article 17, which states: 
the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court. The proliferation of Article 98 Agreements has triggered a vigorous international debate over when and whether Article 98 prevents the ICC from requesting that a State Party arrest and surrender a person in its territory. Iraq

In 2006, the Office of the Prosecutor concluded its preliminary investigation into alleged offenses committed in Iraq. Selected Situations Undergoing Preliminary Analysis by the Prosecutor

			Afghanistan

				Preliminary Analysis in Afghanistan

On September 9, 2009, Prosecutor Moreno-Ocampo confirmed that his office was gathering information about possible war crimes committed by NATO soldiers, U.S. soldiers, and both Taliban and al Qaeda insurgents in Afghanistan. The ICC's jurisdiction over any alleged crimes would come solely from the PNA's declaration as neither Israel nor the PNA are States Parties to the Rome Statute. The United States has generally opposed ICC involvement in investigating alleged crimes committed during the December 2008-January 2009 conflict between Israel and Hamas in the Gaza Strip. Executive Branch Policy

Although remaining opposed to United States becoming a State Party to the Rome Statute, the Bush Administration in its second term took actions that evidenced an acceptance of the work and importance of the ICC in bringing perpetrators of atrocities to justice. The Obama Administration has undertaken an interagency review of its ICC policy and is expected to complete the review and make public its conclusions sometime in 2010. Ambassador Rosemary DiCarlo, U.S. Alternate Representative to the United Nations for Special Political Affairs, stated in the Security Council on December 4, 2009, "Although the United States is not a party to the Rome Statute, the United States was pleased to participate last week for the first time as an observer to the Assembly of States Parties to the Rome Statute. Recent Congressional Action

Although several provisions in legislation opposing U.S. adherence to and support for the ICC Statute remain in effect, recent Congresses have eliminated or refrained from renewing sanctions provisions that affect U.S. assistance for countries that are ICC States Parties. Although these actions could be interpreted as indicating a change in Congress's position toward the ICC, the changes might also be interpreted as being primarily rooted in a concern that sanctions may have begun to hurt U.S. interests.
The International Criminal Court (ICC) is the first permanent international court with jurisdiction to prosecute individuals for "the most serious crimes of concern to the international community." Currently, 110 countries are States Parties to the ICC. Since its inception in 2002, the ICC has received three referrals for investigations by States Parties and one referral from the United Nations Security Council.
While the U.S. executive branch initially supported the idea of creating an international criminal court, the United States ultimately voted against the Statute of the ICC (the "Rome Statute") and informed the United Nations that the United States did not intend to become a State Party to the Rome Statute. The United States' primary objection to the treaty has been the potential for the ICC to assert jurisdiction over U.S. civilian policymakers and U.S. soldiers charged with "war crimes."
This concern has been highlighted with recent preliminary investigations by the ICC's Prosecutor into alleged war crimes in the Middle East and Afghanistan. In 2006, the ICC's Office of the Prosecutor completed a preliminary investigation into alleged war crimes in Iraq, finding that the information did not establish sufficient grounds for the Prosecutor to launch a formal investigation into the situation. In 2009, the Office of the Prosecutor confirmed that it was conducting another preliminary investigation into possible war crimes committed by NATO soldiers, U.S. soldiers, and both Taliban and al Qaeda insurgents in Afghanistan. That same year, the Palestinian National Authority (PNA) sought the ICC's jurisdiction over alleged crimes committed during the Gaza conflict of December 2008/January 2009, and the United Nations Commission of Inquiry on Gaza issued a report recommending that the Security Council refer the situation to the ICC Prosecutor if Israel and the PNA did not undertake appropriate national level investigations and prosecutions.
The United States has taken both diplomatic and domestic actions with the potential to affect the ICC's authority over U.S. citizens. On a diplomatic level, the United States has concluded bilateral immunity agreements (BIAs) with many ICC States Parties to prevent other countries from surrendering U.S. citizens to the ICC without U.S. consent under Article 98 of the Rome Statute. These agreements have generated a vigorous debate over when and whether obligations in international agreements preempt an ICC request to a State Party for the arrest and surrender of a person in its territory. However, the ICC, in which the Rome Statute vests the sole responsibility for interpreting the Statute's text, has remained silent on the question, neither validating nor refuting the U.S. position that BIAs or any agreement creating similar obligations preempt an ICC request to surrender.
Although remaining opposed to U.S. ratification of the Rome Statute, the Bush Administration in its second term took actions that suggested its support for some ICC activities. The Obama Administration has also taken a more supportive stance toward the ICC and has begun to engage directly with the Court. The Obama Administration is currently reviewing its ICC policy and is expected to announce its conclusions sometime in 2010. Similarly, actions by Congress have eliminated or chosen not to extend provisions affecting U.S. assistance for countries that are ICC States Parties. Although these actions seem to soften Congress's position on the ICC, the changes might also be interpreted as a decision to reverse sanctions that were perceived as hurting U.S. interests.