The constitutionality of the rome statute of the international criminal court

David Scheffer*, Ashley Cox

*Corresponding author for this work

Research output: Contribution to journalReview articlepeer-review

15 Scopus citations


In the event that the United States considers ratifying the Rome Statute of the International Criminal Court (ICC), concerns will be raised regarding whether such ratification and U.S. participation in the ICC would comply with the U.S. Constitution. A primary issue is whether such ratification would violate Article III, Section 1 of the Constitution regarding the judicial power of the United States. The authors argue that ratification following adoption of implementing legislation would not violate Article III, Section 1. The ratification strategy proposed in this Article would be grounded in the Article II, Section 2 treaty power and the Article I, Section 8, Clause 10 Define and Punish Clause of the Constitution, and include amendments to the federal criminal code and military code to ensure the ability of U.S. courts to investigate and prosecute the atrocity crimes comprising the subject matter jurisdiction of the Rome Statute. The Article confirms that fundamental due process rights are protected by the Rome Statute and its Rules of Procedure and Evidence, and that the absence of jury trials before the ICC does not violate the Constitution. Nonetheless, the complementarity regime of the Rome Statute enables the United States to prosecute any American citizen or other individual within its jurisdiction before a jury and in accordance with the full range of due process rights guaranteed by the Constitution and American jurisprudence. The United States would not be barred by the Constitution from agreeing to the Rome Statute's prohibition of head of state or other high-level immunity from prosecution before the ICC. The authors propose a ratification strategy that includes adoption of declarations, understandings, and provisos to clarify American adherence to its Constitution as a State Party to the Rome Statute.

Original languageEnglish (US)
Pages (from-to)983-1068
Number of pages86
JournalJournal of Criminal Law and Criminology
Issue number3
StatePublished - Mar 2008

ASJC Scopus subject areas

  • Law


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