03 Dec ICC Jurisdiction Over GTMO – One Step Away?
There’ll be much discussion this week in conjunction with the Supreme Court hearing oral arguments on Wednesday in the cases of Boumediene v. Bush and Al Odah v. United States. Most of the conversation will likely (and rightly) focus on the question of the U.S. Constitution’s reach as a matter of U.S. law to detainees in Guantanamo Bay, Cuba (GTMO). But, I’ve got an international law question that follows from the Solicitor General’s position in that case. As it has argued previously in Rasul, the Government has chosen to emphasize that GTMO is not part of U.S. territory, but only leased from Cuba. From an international law standpoint, that’s probably the right analysis and, as such, GTMO lies within Cuba’s territorial sovereignty, not that of the United States.
But, if that’s true, doesn’t that mean that if Cuba ever joined the ICC, the court would have jurisdiction over GTMO per Article 12(2)? Or, could Cuba give permission now for ICC jurisdiction under Article 12(3)? Obviously, it’s a stretch to see either scenario playing out in reality since I imagine Cuba would be reluctant to engage the ICC either as a party or ad hoc, not to mention the political will of the ICC to take up any investigation, particularly in the face of undoubted U.S. hostility. Still, it seems to me that the U.S. policy here of denying certain constitutional rights to detainees extraterritorially operates in some tension with the U.S. policy to limit the circumstances in which U.S. forces would be subject to ICC jurisdiction. The more the U.S. emphasizes GTMO’s outside the United States’ territorial sovereignty, the more it highlights that another state retains sovereignty that it can employ even in the absence of actual control or jurisdiction over such territory. That said, I’m no expert on GTMO’s history (or the 1903 treaty that set it up). So, I’d be interested to know if I am missing something that moves this from a law-exam hypothetical to purely fanciful (if the two can ever be distinguished)?
It’s an interesting point on the potential ICC jurisdiction but I just wanted to make a small comment on the contents of the leasing treaties.
The treaties leasing Guantanamo to the US acknowledge Cuban sovereignty over it but also provide that the US has exclusive jurisdiction over the base, which I think will be key in the forthcoming litigation and actually result in the US Supreme Court rejecting the claim that the base is outside of the US legal system. In Rasul, you may recall, Kennedy J. evoked the ‘unincorporated territory’ notion suggesting that the Court may go down the way of the Insular Cases. There’s a good piece in the current Harvard Law Review that touches on this and my own piece in the Irish Criminal Law Journal from earlier this year, but the argument that the perpetual leasehold status will eventually turn out to be fundamental is certainly not unique to any of us – it’s been going around for a while and I think property lawyers are almost equally as interested in this as human rights lawyers are.
This is indeed be an instance of the current US administration being hoisted on its own petard. I made the point about the ICC potentially receiving jurisdiction over Guantanamo Bay on the basis of Art. 12(3) towards the end of a piece in the most recent issue of the Georgetown Journal of Legal Ethics (in relation to the role of lawyers in war crimes). But if 12(3) begins to be used in such a fashion, I think we can expect it to be amended in the future.
It should also be noted that the question for article 12 purposes is whether Guantanamo is Cuban territory. If it is, then the ICC can be granted jurisdiction under 12(3) over any crimes committed there. Whether or not the US has “exclusive jurisdiction” over the base would be irrelevant from the ICC’s perspective (even though by granting the ICC jurisdiction Cuba might be seen to be violating its obligations under the treaty with the US).
Insofar as torture or other aspects of the treatment of detainees at Guantanamo are contrary to Cuban law, it would appear that Article 4 of the 1903 treaty requires the United States to surrender persons sought for such crimes for prosecution by Cuba.
While there are many allegations regarding US activities in Guantanamo Bay, I was unaware of allegations of genocide or crimes against humanity. I assume if the ICC was involved at all, it would be through war crimes, that is, grave breaches of the Geneva Conventions of 12 August 1949. I think Art. 16-19 would provide a fair amount of protection, however.