The International Criminal Court: Three Libyan Arrest Warrants Sought

Today the ICC’s Prosecutor, Luis Moreno-Ocampo, announced that his Office had applied to the Pre-Trial Chamber of the Court for the issuance of arrest warrants against Col. Gaddafi, his son Saif al-Islam, and intelligence chief Abdullah al-Sanussi.[1]

The charges are crimes against humanity by murder and persecution against civilians in Libya since February 15, 2011. They are a result of the Prosecutor’s investigations into this situation, pursuant to the U.N. Security Council’s referral of the matter to the ICC.[2]

The Prosecutor said that his office had evidence showing that Col Gaddafi had “personally, ordered attacks on unarmed Libyan civilians.” The evidence also shows, the Prosecutor said, that Gaddafi’s forces “attacked Libyan civilians in their homes and in the public space, repressed demonstrations with live ammunition, used heavy artilleryagainst participants in funeral processions, and placed snipers to kill those leaving mosques after the prayers.”

The evidence also shows, according to the Prosecutor, that such persecution is ongoing and that Gaddafi forces ” prepare lists with names of alleged dissidents,” who “are being arrested, put into prisons in Tripoli, tortured and made to disappear.”

These crimes, added the Prosecutor, had been, and were being, committed with the goal of preserving Gaddafi’s “absolute authority” under “a systematic policy of suppressing any challenge to his authority.” The evidence also shows that Gaddafi himself gave the orders, that his son organized the recruitment of mercenaries to carry out the orders and that Sanussi participated in the attacks against demonstrators.

We now await the decision of the Pre-Trial Chamber on the application for these arrest warrants.


[1]  BBC News, ICC prosecutor seeks warrant for Gaddafi (May 16, 2011), http://www.bbc.co.uk/news/world-africa-13408931; Simons, International Court Prosecutor Seeks Warrants for Qaddafi, N.Y. Times (May 16, 2011), http://www.nytimes.com/2011/05/17/world/africa/17hague.html?_r=1&hp=&pagewanted=print; Borger, Gaddafis named as war crimes suspects by international criminal court, Guardian (May 16, 2011), http://www.guardian.co.uk/world/2011/may/16/gaddafis-war-crimes-suspects; ICC, Statement: ICC Prosecutor Press Conference on Libya (May 16, 2011), http://www.icc-cpi.int/menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20statements/statement/statement%20icc%20prosecutor%20press%20conference%20on%20libya%2016%20may%202011?lan=en-GB; Human Rights Watch, Libya: ICC Prosecutor Names First Suspects (May 16, 2011), http://www.hrw.org/en/news/2011/05/16/libya-icc-prosecutor-names-first-suspects.

[2]  See Post: The International Criminal Court: Introduction (April 28, 2011); Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011); Post: The International Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International Criminal Court and the Obama Administration (May 13, 2011).

The International Criminal Court: The Crime of Aggression

As previously mentioned, the Rome Statute granted the ICC jurisdiction over the crime of genocide, crimes against humanity and war crimes.[1]

In addition, the Rome Statute also assigned “the crime of aggression” to the ICC. But the diplomats at the Rome Conference that drafted the Statute could not agree on a definition of this crime. As a result, the Statute’s Article 5(2) provided that the Court could exercise jurisdiction over this crime only after there was an amendment to the Statute “defining the crime and setting out the conditions under which the Court shall exercise jurisdiction.”

In June 2010 the Review Conference of the States Parties adopted an amendment to the Rome Statute to add a definition of the crime of aggression.[2]  Amazingly the U.S. news media had virtually no coverage of this important Conference or its adoption of the amendment for the crime of aggression.

The amendment states that “aggression” means “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” This makes clear that the crime applies only to a country’s highest officials.

The term “act of aggression” too is defined in the amendment as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations . . . [including]

  • (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;
  • (b)  Bombardment by the armed forces of a State against the territory of another  State or the use of any weapons by a State against the territory of another State;
  • (c)  The blockade of the ports or coasts of a State by the armed forces of another State;
  • (d)  An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
  • (e)  The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
  • (f)  The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
  • (g)  The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.”

The amendment also has “statements of understandings” of the scope of these provisions. One of them provides that “in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself.”

This amendment, however, will not take effect unless and until 30 States Parties have ratified or accepted the amendment.  In addition, the Court cannot exercise such jurisdiction unless and until there has been an affirmative vote of two-thirds of the Assembly of States Parties to approve the amendment after January 1, 2017. As a result, the amendment will not be circulated for ratification unless and until there is such an affirmative vote after January 1, 2017.

Moreover, the amendment will only apply to crimes of aggression that were committed one year after the ratification or acceptance of the amendment by 30 States Parties. In addition, there are the following other conditions or limitations on the ICC for this crime:

  • ICC States Parties that ratify the amendment have the option of filing a declaration with the ICC that they do not accept aggression jurisdiction.
  • Another provision will prevent the Court from exercising jurisdiction over nationals of non-States Parties or persons for alleged aggression on their territories.
  • Also, once jurisdiction is activated, non-Security Council situations will need to be approved by the entire Pre-Trial Division of the Court.

The amendment also included a mandatory review of the provision seven years after coming into effect in order to examine the performance of the Court with respect to the crime and to make any necessary changes to the provision.

Many of these conditions or limitations on jurisdiction over the crime of aggression were the result of lobbying at the Review Conference by the U.S. observers.

As a result of these conditions or limitations as well as the crime’s definition itself, most believe that U.S. officials could never be prosecuted for the crime of aggression because the U.S. is not a party to the Rome Statute and even if it became a party it could declare that it did not accept the aggression jurisdiction.  Indeed, immediately after the Review Conference, U.S. State Department Legal Advisor, Harold Koh, stated that the U.S. successfully had pressed at the Conference for the addition of safeguards that “ensure total protection for our Armed Forces and other U.S. nationals” with respect to this crime.[3]

Finally, there are many who believe it is highly unlikely that the ICC ever will prosecute anyone for this crime for similar reasons.[4]


[1] Post: The international Criminal Court: Introduction (April 28, 2011).

[2] ICC Review Conference, Rome Statute Amendment on the Crime of Aggression (RC/Res.6 June 11, 2010), http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf; AMICC, Report on the Review Conference of the International Criminal Court (June 25, 2010), http://www2.icc-cpi.int/Menus/ICC/Home; http://www.amicc.org; Oosterveld, Assessing the ICC conference, (June 13, 2010), http://intlawgrrls.blogspont.com; Van Schaack, Understanding Aggression (June 24, 2010), http://intlawgrrls.blogspont.com; Van Schaack, Understanding Aggression II (June 26, 2010), http://intlawgrrls.blogspont.com; Van Schaack, Question on the ICC aggression filter (July 24, 2010), http://intlawgrrls.blogspont.com; Van Schaack, The Aggression Negotiations (Sept. 2, 2010), http://intlawgrrls.blogspont.com.  (As previously mentioned, under Article 5(1) (d) of the Rome Statute, the ICC has had jurisdiction over the “crime of aggression.” However, it could not exercise such jurisdiction because the states that were negotiating the Statute could not agree on the definition of that crime. Instead, under Article 5(2), a future definition of that crime was to be developed that is “consistent with the relevant provisions of the [U.N.] Charter,” and especially its Chapter VII regarding the Security Council.)

[3] U.S. Dep’t of State, U.S. Engagement with The International Criminal Court and The Outcome of The Recently Concluded Review Conference (June 15, 2010), http://www.state.gov/s/wci/us_releases/remarks/143178.htm.

[4]  Murphy, Gulliver No Longer Quivers: U.S. Views on and the Future of the International Criminal Court, 44 Int’l Lawyer 1123, 1127-32 (2010).

The International Criminal Court and the Obama Administration

Barack Obama

The Obama Administration has adopted what it calls “an integrated approach to international criminal justice,” including the International Criminal Court. There are at least six points to this approach, the first three of which are specifically addressed to the ICC.[1]

First, the U.S. will not be seeking U.S. Senate consent to U.S. ratification of the Rome Statute. In January 2010, U.S. Ambassador at Large for War Crimes, Stephen Rapp, publicly stated that no U.S. president was likely to present the Rome Statute to the U.S. Senate for ratification in the “foreseeable future.” Rapp cited fears that U.S. officials would be unfairly prosecuted and the U.S.’s strong national court system as reasons it would be difficult to overcome opposition to ratification. He did not mention the virtual political impossibility in this Congress to obtaining the two-thirds (67) vote in the Senate that would be necessary for ratification.[2] In addition, in March 2011, the U.S. told the U.N. Human Rights Council at the conclusion of its Universal Periodic Review of the U.S. that the U.S. did not accept the recommendations by a number of States that the U.S. ratify the Rome Statute.[3]

Second, the U.S. Administration will not be seeking statutory changes to U.S. statutes and practices that are hostile to the ICC. This conclusion emerges by implication from the absence of any such proposed legislation and from the same political calculus just mentioned. The Obama Administration, therefore, is living with the laws on the books bolstered by a January 2010 legal opinion from the Justice Department’s Office of Legal Counsel that U.S. diplomatic or “informational” support for particular ICC investigations or prosecutions would not violate U.S. law. Other hand-me-downs of past U.S. actions hostile to the ICC are the U.S.’ 102 Bilateral Immunity Agreements or “BIA”s, whereby the other countries agreed not to turn over U.S. nationals to the ICC. The last of these was concluded in 2007. There is no indication that the U.S. will seek to rescind these agreements or to negotiate new ones.[4]

Third, the U.S. instead has been pursuing a policy of positive engagement with the ICC in various ways. Indeed, the U.S. National Security Strategy of May 2010 stated that as a matter of moral and strategic imperative the U.S. was “engaging with State Parties to the Rome Statute on issues of concern and [is] supporting the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.”[5]

Foremost for positive engagement is the U.S. participation as an observer at meetings of the ICC’s governing body, the Assembly of States Parties. The U.S. did so in November 2009,[6] March 2010,[7] June 2010[8] and December 2010[9] and has announced its intention to do so at the next meeting in December 2011.

In addition to observing the debates and discussion at these meetings, the U.S. has made positive contributions. The U.S. experience in foreign assistance judicial capacity-building and rule-of-law programs, Ambassador Rapp has said, could help the ICC in its “positive complementarity” efforts, i.e., its efforts to improve national judicial systems. Similarly the U.S. experience in helping victims and reconciling peace and justice demands has been offered to assist the ICC.[10] At the June 2010 Review Conference the U.S. made a written pledge to “renew its commitment to support projects to improve judicial systems around the world.” Such improvements would enable national courts to adjudicate national prosecutions of war crimes, crimes against humanity and genocide and thereby make ICC involvement unnecessary. The U.S. also pledged at the Review Conference to “reaffirm President Obama’s recognition . . . that we must renew our commitments and strengthen our capabilities to protect and assist civilians caught in the [Lord Resistance Army’s] wake [in Uganda], to receive those that surrender, and to support efforts to bring the LRA leadership to justice.”[11]

The June 2010 meeting was the important Review Conference that adopted an amendment to the Rome Statute with respect to the crime of aggression; this will be discussed in a future post. Immediately after the Review Conference Ambassador Rapp and State Department Legal Advisor Koh said that U.S. participation at the Review Conference “worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill.” All of this reflected U.S. (a) “support for policies of accountability, international criminal justice, and ending impunity,” (b) the U.S. “policy of principled engagement with existing international institutions” and (c) ensuring that lawful uses of military force are not criminalized.[12]

At the December 2010 meeting, Ambassador Rapp emphasized three ways for the world community to help the important work of the ICC. First was protecting witnesses in cases before the ICC and in other venues from physical harm and death and from bribery attempts. Second was enforcing the ICC arrest warrants and bringing those charged to the Court to face prosecution. Third was improving national judicial systems all over the world. In this regard the U.S. endorsed the recent discussion in the Democratic Republic of the Congo about creating a “mixed chamber” of Congolese and foreign judges in its national judiciary with jurisdiction over genocide, crimes against humanity and war crimes.[13]

The U.S. also is meeting with the ICC’s Prosecutor and other officials to find ways the U.S. can support current prosecutions (consistent with U.S. laws). [14]

As another means of positive engagement with the ICC,  the U.S. has continued to support the March 2005 U.N. Security Council referral of the Sudan (Darfur) situation to the ICC, and the U.S. has refused to support any effort to exercise the Council’s authority to suspend any ICC investigations or prosecutions of Sudanese officials for a 12-month period. In January 2009, Susan Rice, the U.S. Ambassador to the U.N., stated that the U.S. supports “the ICC investigation and the prosecution of war crimes in Sudan, and we see no reason for an Article 16 deferral” by the Council. Following the ICC’s issuance of an arrest warrant for Omar al-Bashir, President of Sudan, in March 2009, Ambassador Rice reiterated U.S. support for the Court on Darfur and the requirement of Sudan to cooperate with the ICC. [15]

More recently, the U.S. supported the use of the ICC with respect to Libya. The previously discussed U.N. Security Council Resolution 1970 that referred the Libyan situation to the ICC Prosecutor was prepared by the U.S. and 10 other Council members.[16] During the Council’s discussion of the resolution, U.S. Ambassador Susan Rice stated, “For the first time ever, the Security Council has unanimously referred an egregious human rights situation to the [ICC].”[17]

Three days after the Security Council resolution on Libya, the U.S. Senate unanimously approved a resolution deploring the situation in Libya and Colonel Gadhafi. This resolution also stated that the Senate “welcomes the unanimous vote of the United Nations Security Council on resolution 1970 referring the situation in Libya to the [ICC] . . . .”[18]

Another means of the U.S.’ positive engagement with the ICC is U.S. public diplomacy supporting the Court–publicly support the arrest and prosecution of those accused by the ICC’s Prosecutor and publicly criticizing those who seek to thwart such arrests. In any event, the U.S. has ceased its hostility and harsh rhetoric against the Court.[19]

Fourth, the U.S. will continue to offer financial support and advice to strengthen other national court systems, particularly in the Democratic Republic of Congo. As previously mentioned, this policy is part of the U.S. positive engagement with the ICC, but it is also part of the broader approach to international criminal justice.[20]

Fifth, the U.S. will continue to support the final work of the ad hoc criminal tribunals for Rwanda and the former Yugoslavia that were established by the U.N. Security Council with limited time periods of existence. The U.S. will do so by providing funding, by supporting their work diplomatically and politically and by providing evidence and concrete support to the prosecutors and defendants. In particular, the U.S. will work in the Security Council “to create a residual mechanism for the ad hoc tribunals that will safeguard their legacy and ensure against impunity for fugitives still at large” after those tribunals cease to exist.[21]

Ambassador Rapp also has noted that the era of the U.N.’s establishing ad hoc and short-lived tribunals like the International Criminal Tribunal for Rwanda to address specific problems was over. Only the ICC would be in business for future problems. Therefore, the U.S. needed to be positively engaged with the ICC.[22]

Sixth, the U.S. has said that it must work with countries that exercise universal jurisdiction (like Spain) when there is some relation between the country and the crime. Exactly what that means is not clear. Ambassador Rapp publicly has endorsed the principle of universal jurisdiction as another way to hold human rights violators accountable. On the other hand, as will be discussed in a future post, Spain has at least two pending criminal cases against high-level U.S. officials under Spain’s statute implementing this jurisdictional principle.[23]

In conclusion, we have seen that there is substance to the claim that the Obama Administration has developed “an integrated approach to international criminal justice.” Although I personally believe the U.S. should become a full-fledged member of the ICC, I recognize the current political impossibility of that happening and believe that the U.S. is doing everything that it can to support the important work of the ICC and other courts that are tackling, in the words of Article 1 of the Rome Statute, the “most serious crimes of international concern.”


[1] Koh, The Challenges and Future of International Justice (Oct. 27, 2010), http://www.state.gov/s/l/releases/remarks/150497.htm; U.S. White House, National Security Strategy at 48 (May 2010), http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf. See Post: The International Criminal Court: Introduction (April 28, 2011)(overview of structure and operation of ICC).

[2] Belczyk, US war crimes ambassador says US unlikely to join ICC in ‘forseeable future,’ Jurist (Jan. 28, 2010), http://jurist.law.pitt.edu/paperchase/2010/01/us-war-crimes-ambassador-says-us.php.

[3] On January 4, 2011, the Human Rights Council’s Working Group on the Universal Periodic Review of the U.S. issued its final report on the UPR of the U.S. It set forth all the recommendations of the States without endorsement by the Working Group as a whole. This report again included the specific recommendations for the U.S. to ratify the Rome Statute. (U.N. Human Rights Council, Report of the Working Group on the Universal Periodic Review–United States of America ¶¶ 92.1, 92.2, 92.16, 92.25, 92.28, 92.36 (Jan. 8, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/100/69/PDF/G1110069.pdf?OpenElement.) On March 8, 2011, the U.S. submitted its response to this final report. Among other things, the U.S. specifically rejected the recommendations that the U.S. ratify the Rome Statute. (U.N. Human Rights Council, Report of the Working Group on the Universal Periodic Review–United States of America: Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review ¶¶  29, 30  (March 8, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/116/28/PDF/G1111628.pdf?OpenElement.) Nevertheless, the Council adopted the Working Group report in March 2011. (U.N. Human Rights Council, HR Council Media: Human Rights Council concludes sixteenth session (March 25, 2011).)

[4] AMICC, The Obama’s Administration’s Evolving Policy Toward the International Criminal Court  (March 4, 2011), http://www.amicc.org/docs/ObamaPolicy.pdf; Congressional Research Service, International Criminal Court Cases in Africa: Status and Policy Issues (March 7, 2011), http://fpc.state.gov/documents/organization/158489.pdf. See Post: The International Criminal Court and the G. W. Bush Administration (May 12, 2011).

[5] U.S. White House, National Security Strategy at 48 (May 2010), http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf.

[6] AMICC, Report on the Eighth Session of the Assembly of States Parties, The Hague, November 2009 http://www.amicc.org/docs/ASP8.pdf; Stephen J. Rapp, Speech to Assembly of States Parties (Nov. 19, 2009), http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/Statements/ICC-ASP-ASP8-GenDeba-USA-ENG.pdf.

[7] AMICC, Report on the Resumed Eighth Session of the Assembly of States Parties, New York, March 2010 (March 31, 2010), http://www.amicc.org/docs/ASP8r.pdf; U.S. Dep’t of State, Statement by Stephen J. Rapp . . . at the Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/138999.htm; U.S. Dep’t of State, Statement by Harold Honju Koh . . . at the . . . Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/139000.htm.

[8] AMICC, Report on the Review Conference of the International Criminal Court (June 25, 2010), http://www2.icc-cpi.int/Menus/ICC/Home; http://www.amicc.org.

[9]  U.S. Mission to the U.N., Statement of the U.S.A. by Ambassador Stephen Rapp  to the Assembly of States Parties, (Dec. 7, 2010), http://www.amicc.org/docs/ASP_Rapp_Statement_12072010.pdf;  AMICC, Report on the Ninth Session of the Assembly of States Parties, December 2010, http://www.amicc.org/docs/ASP9.pdf.

[10] AMICC, Report on the Resumed Eighth Session of the Assembly of States Parties, New York, March 2010 (March 31, 2010), http://www.amicc.org/docs/ASP8r.pdf; U.S. Dep’t of State, Statement by Stephen J. Rapp . . . at the Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/138999.htm; U.S. Dep’t of State, Statement by Harold Honju Koh . . . at the . . . Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/139000.htm.

[11] AMICC, Report on the Review Conference of the International Criminal Court (June 25, 2010), http://www2.icc-cpi.int/Menus/ICC/Home; http://www.amicc.org. The U.S. pledge about the LRA was prompted by the enactment of the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009. (Wikisource, Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009, http://en.wikisource.org/wiki/ Lord’s_Resistance_Army_Disarmament_and_Northern_Uganda_Recovery_Act_of_2009; U.S. White House, Statement by the President on the Signing of the Lord’s ResistanceArmy Disarmament and Northern Uganda Recovery Act of 2009 (May 24, 2010), http://www.whitehouse.gov/the-press-office/statement-president-signing-

Lords-resistance-army-disarmament-and-northern-uganda-r.

[12] U.S. Dep’t of State, U.S. Engagement with The International Criminal Court and The Outcome of The Recently Concluded Review Conference (June 15, 2010), http://www.state.gov/s/wci/us_releases/remarks/143178.htm.

[13] Id. The ICC currently is investigating and prosecuting cases from the DRC. See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[14]  Id.

[15]    E.g., Statement by President Obama on the Promulgation of Kenya’s New Constitution (Aug. 27,2010), http://www.whitehouse.gov/the-press-office/2010/08/27/statement-president-obama-promulgation-kenyas-new-constitution(“I am disappointed that Kenya hosted Sudanese President Omar al-Bashir in defiance of International Criminal Court arrest warrants for war crimes, crimes against humanity, and genocide. The Government of Kenya has committed itself to full cooperation with the ICC, and we consider it important that Kenya honor its commitments to the ICC and to international justice, along with all nations that share those responsibilities”); U.N. Security Council, Press Release: Briefing Security Council on Sudan, United Nations, African Union Officials Tout Unified Strategy, Linking Peace in Darfur to Southern Sudan Referendum (June 14, 2010),  (U.S. Ambassador Rice told Security Council that there was a need “to bring to justice all those responsible for crimes in Darfur, calling on Sudan to cooperate with the [ICC] and expressing deep concern at the Court’s Pretrial Chamber judges recent decision to refer the issue of Sudan’s non-cooperation to the Council”).

[16] U.N. Security Council  6491st meeting (Feb. 26, 2011). Other Council members (Bosnia & Herzogiva, Colombia, France, Germany, Libya and the U.K.) specifically commended the reference to the ICC. The other four Council members who did not join in drafting the resolution were Brazil, China, India and the Russian Federation. In the meeting, the Indian representative noted that “only” 114 of the 192 U.N. Members were parties to the Rome Statute and that five of the 15 Council members, including three permanent members (China, Russia and U.S.), were not such parties. He went on to emphasize the importance of Article 6 of the resolution’s exempting from ICC jurisdiction nationals of States like India that were not parties to the Rome Statute and its preamble’s stating that the Statute’s Article 16 allowed the Council to postpone any investigation or prosecution for 12 months. (Id.) The Brazilian representative was serving as President of the Council and, therefore, may not have participated in drafting the resolution, but she noted that Brazil was a “long-standing supporter of the integrity and universality of the Rome Statute” and expressed Brazil’s “strong reservation” about Article 6’s exemption of nationals of non-States Parties. (Id.) This suggests that the inclusion of Article 6 was the price of obtaining “yes” votes for the resolution from India, China and the Russian Federation. See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[17] U.N. Security Council  6491st meeting (Feb. 26, 2011).

[18]  ___Cong. Record S1068-69 (March 1, 2011) (S. Res. 85).

[19] Koh, The Challenges and Future of International Justice (Oct. 27, 2010), http://www.state.gov/s/l/releases/remarks/150497.htm.

[20] ICC, Review Conference of the Rome Statute: Pledges (July 15, 2010), http://www2.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-9-ENG-FRA-SPA.pdf.

[21] Belczyk, US war crimes ambassador says US unlikely to join ICC in ‘forseeable future,’ Jurist (Jan. 28, 2010), http://jurist.law.pitt.edu/paperchase/2010/01/us-war-crimes-ambassador-says-us.php.

[22] Id. With the existence of the ICC, there is no need to create future ad hoc tribunals. This fact also avoids the administrative problems ad hoc tribunals face when they near the end of their lives and professional and other staff leave to pursue other opportunities with greater future prospects. (See Amann, Prosecutorial Parlance (9/12/10), http://intlawgrrls.blogspot.com (comments by officials of ICTY and ICTR).)

[23] Belczyk, US war crimes ambassador says US unlikely to join ICC in ‘forseeable future,’ Jurist (Jan. 28, 2010), http://jurist.law.pitt.edu/paperchase/2010/01/us-war-crimes-ambassador-says-us.php.

The International Criminal Court and the George W. Bush Administration

George W. Bush

Following the lead of the Clinton Administration, the Bush Administration declined to submit the Rome Statute to the Senate for ratification. [1]

Moreover, in May 2002, the U.S. notified the U.N. Secretary General, as depositary of the Rome Statute, of the U.S. intent not to ratify the treaty.[2] The U.S. undoubtedly did so in order to prevent liability under Article 18 of the Vienna Convention on the Law of Treaties that provides, “A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when . . . it has signed the treaty . . . until it shall have made its intention clear not to become a party to the treaty. . . .”[3]

The Bush Administration thereafter conducted a major campaign against the ICC. The campaign included a statute that originated with Senator Jesse Helms, then Chairman of the Senate Foreign Relations Committee, and that had what became known as the “Hague invasion clause,” authorizing the use of U.S. military force to retrieve any U.S. citizens held by the ICC. The U.S. also sought and obtained so-called bilateral immunity agreements with countries that were States Parties to the Rome Statute whereby they would not turn over any U.S. personnel to the ICC. Other federal legislation called for cancelling any foreign military aid to countries that would not sign such agreements.[4]

However, the Bush Administration, especially in its second term, softened its stance on the ICC.  In March 2005, the U.S. abstained on the U.N. Security Council vote to refer the Sudan/Darfur situation to the ICC, thereby allowing the resolution to pass. The Administration also granted waivers from cancellation of foreign military aid.[5]


[1] See Post: The International Criminal Court and the Clinton Administration (May 11, 2011).

[2] Letter, John R. Bolton (U.S. Under Secretary of State for Arms Control and International Security) to U.N. Secretary-General Kofi Annan (5/6/02), http://archives.cnn.com/2002/US/05/06/court.letter.text/index.html.

[4]  E.g., AMICC, U.S. Administrative Update, http://www.amicc.org/usinfo/administration.html; AMICC, U.S. Congressional Update, http://www.amicc.org/usinfo/congressional.html.

[5] Id.

The International Criminal Court and the Clinton Administration

During the Clinton Administration, the United States supported the idea of creating an international criminal court and was a major participant at the Rome Conference that produced the Rome Statute. At the conclusion of that Conference in July 1998, the Rome Statute was approved by a vote of 120 to 7. The seven negative votes were cast by the United States, Iraq, Israel, Libya, People’s Republic of China, Qatar and Yemen.[1]  These were the reasons advanced for the U.S. negative vote:

  • The U.S. wanted an ICC that was controlled by the U.N. Security Council where the U.S. as a permanent member had a veto. Although the U.S. was able to get some provisions in the Statute that gave the Security Council certain rights vis-à-vis the ICC, the Statute allowed the Court to proceed with investigations and prosecutions based upon referrals by member states and upon the prosecutor’s own initiative.
  • The Statute left open the possible assertion of the Court’s jurisdiction over nationals of a non-State Party such as the U.S.[2]

On December 31, 2000 (two and a half years after the Rome Conference and in the last month of his Presidency), however, President Clinton signed the treaty on behalf of the U.S. His formal statement on this action said that he did so “to reaffirm our strong support for international accountability and for bringing to justice perpetrators of genocide, war crimes and crimes against humanity” and for the U.S. “to remain engaged in making the ICC an instrument of impartial and effective justice.”  On the other hand, President Clinton stated that the U.S. was not “abandoning our concerns about serious flaws in the treaty.” Foremost was the Court’s ability to “claim jurisdiction over personnel of states that have not [ratified the treaty].” Therefore, he said, he “will not, and do not recommend that my successor submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied.” Therefore, in the last month of his Presidency, President Clinton did not submit the Rome Statute to the Senate.[3]


[1] There also were 21 countries that abstained on the final vote on the Rome Statute. (Wikipedia, Rome Statute of the International Criminal Court, http://en.wikipedia.org/wiki/Rome_Statute_of_the_International_Criminal_Court.

[2] Scharf, Results of the Rome Conference for an International Criminal Court, ASIL Insights  (Aug. 1998), http://www.asil.org/insigh23.cfm; Wedgwood, Fiddling in Rome: America and the International Criminal Court, Foreign Affairs (Nov/Dec. 1998).

[3] President Clinton, Statement on Signature of the International Criminal Court Treaty  (12/31/00), http://www.amicc.org/docs/Clinton_sign.pdf; Congressional Research Service, U.S. Policy Regarding the International Criminal Court (29/08/96),  http://fpc.state.gov/documents/organization/73990.pdf. Under Article II, Section 2 of the U.S. Constitution, the President has the “Power, by and with the Advice and Consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”

Barack Obama, Bill Clinton, Mattie Stepanek and Five Judges

On April 30th at the University of Chicago Law School’s reunion week-end , two of its distinguished graduates, Geoffrey Stone and Robert Barnett, spoke about some interesting people with whom they have interacted: Barack Obama, Bill Clinton, Mattie Stepanek and five judges (Circuit Judges J. Skelly Wright and Minor Wisdom and U.S. Supreme Court Justices William Brennan, Byron White and Elena Kagan).

Geoffrey Stone

Geoffrey Stone

Geoffrey R. Stone is a 1971 graduate of the Law School, law clerk to U.S. Circuit Judge J. Skelly Wright (1971-72) and U.S. Supreme Court Justice William Brennan (1973). In 1973 he returned to the Law School to join its faculty where he has been ever since. He was Dean of the Law School (1987-93) and Provost of the University (1993-2002). He is now the Edward H. Levi Distinguished Service Professor at the Law School.[1]

Barack Obama

Stone recounted the story of the Law School’s recruitment of Barack Obama to join the faculty. In 1991 Michael McConnell, then a professor at the Law School and now at the Stanford Law School, told Professor Douglas Baird, who was the chairman of the faculty appointments committee at the time, about Obama, then an impressive editor at the Harvard Law Review who was doing an excellent job editing McConnell’s submission. Baird reached out to Obama and asked him about teaching, and Obama agreed to come for interviews at the Law School.[2]

Stone recalled that when he met Obama for the first time, Barack at age 26 already had a real political persona. “It was partly a kind of magnetism, partly a kind of grace, a sense of his own presence. You couldn’t mistake that you were with somebody who thought he was somebody—not in a bad way, but in a compelling way.” After Obama left, Stone’s secretary said,” He’s going to be governor of Illinois someday.”

The Law School then made an offer to Obama to be a full-time assistant professor. Obama refused the offer as he already had plans to write a book on voting rights. So Stone and Baird took a different approach and offered Obama a Law and Government Fellowship, which would allow him to work on his book and would perhaps lead him to develop an interest in teaching. Obama accepted the offer and began the fellowship in the fall of 1991. The book, instead of being about voting rights, was the autobiographical  Dreams of My Father.

The next year Obama became a Lecturer (and a Senior Lecturer in 1996) and continued to teach at the Law School until he was elected to the U.S. Senate in 2004. Obama taught “Constitutional Law III: Equal Protection,” “Voting Rights and the Democratic Process,” and a seminar entitled “Current Issues in Racism and the Law.” After his election as President, glowing comments were made about his time at the Law School:

  • Stone said, “As a teacher and colleague, [Obama] was always curious, probing, open-minded, and rigorous.”
  • Professor Baird said, “From the open and robust debates [Obama] generated in every class to the many more informal displays of his tenacious mind and incisive wit, it was a great privilege to have had Barack Obama with us for twelve years.”
  • Davis Strauss, the Gerald Ratner Distinguished Service Professor of Law, offered that “at the Law School we have known for a long time . . . that Barack Obama is both amazingly gifted and a deeply human person.”

Elena Kagan

Stone also hired Elena Kagan for the Law School’s faculty (1991-95), and he joked that he has the distinction of being the only law school dean who hired two people who later became President of the U.S. and an Associate Justice of the U.S. Supreme Court.

Judge Wright and Justice Brennan

Stone said it was a great privilege to be a law clerk for both of these judges, who made him feel like he was a part of their families. Brennan was usually a very cheerful man to one and all in the Supreme Court building.

Robert Barnett

Robert Barnett

Robert B. Barnett is also a 1971 graduate of the University of Chicago Law School and a former law clerk for Circuit Judge Minor Wisdom (1971-72) and U.S. Supreme Court Justice Byron White (1972-73). Barnett is now a partner in the Washington, D.C. law firm of Williams and Connolly, LLP. He was ranked Number One on Washingtonian magazine’s list of “Washington’s Best Lawyers” and as one of “The 100 Most Influential Lawyers in America” by The National Law Journal. He represents major corporations in litigation matters, corporate work, contracts, crisis management, transactions, government relations, and media relations.[3]

Mr. Barnett is also one of the premier authors’ representatives in the world. His clients have included Barack Obama, Bill Clinton, George W. Bush, Hillary Rodham Clinton, Laura Bush, Bob Woodward, Lynne Cheney, Alan Greenspan, James Patterson, Katharine Graham, Daniel Silva, Tim Russert, Stephen White, Barbara Streisand, George Will, Art Buchwald, James Carville, Mary Matalin, William Bennett, Mary Higgins Clark, Cokie Roberts, several former U.S. Secretaries of State, numerous U.S. Senators, Tony Blair of the United Kingdom, Queen Noor of Jordan and Benazir Bhutto of Pakistan. He is also one of the leading representatives of many famous television news correspondents and producers. Mr. Barnett also provides legal counsel to former government officials in conjunction with their transitions to the private sector. [4]

His legal practice as an authors’ representative, he said, grew out of his helping Geraldine Ferraro prepare for the vice presidential candidates debate in 1984 when he played the role of George H.W. Bush in practice debates. After the Ronald Reagan-George H.W. Bush ticket defeated the Mondale-Ferraro team, she wrote a book about her political experiences and hired Barnett as her lawyer in negotiating a contract with the publisher. This was his first book publishing deal.[5]

Judge Minor Wisdom and Justice Byron White

Judge Wisdom, much like Judge Skelly Wright, was a warm human being and an excellent judge. Justice White, while also an excellent judge, was more formal and reserved. But not on the basketball court where White, a former professional  football and basketball player, regularly challenged the law clerks in hard-fought games.

Bill Clinton

In response to a question about who were the most impressive people he had met and worked with, Barnett said there were two people.

The first was Bill Clinton. Clinton, he said, knew more people than anyone else. And Clinton knew more about more subjects and with greater depth than anyone he has ever met.

Mattie Stepanek

Mattie Stepanek

The second person named by Barnett was surprising to me in that he did not name one of the other famous people he had represented. Instead he said it was someone I had never heard of: Mattie (whose last name I could not catch). Barnett said that Mattie was a young poet who had appeared on the Oprah Winfrey television show, and Barnett had had the privilege of negotiating an excellent book deal for him. Mattie was an exceptionally gifted and brave person, Barnett said, adding that Mattie had died of a rare form of muscular dystrophy at age 13.

After I got home and googled “Barnett & Mattie & Oprah,” I discovered Mattie’s last name was Stepanek and learned more about him.[6] He had published six books of poetry and one book of essays, all of which had been on the New York Times‘ bestsellers lists. He also had become a peace advocate and motivational speaker and had testified on Capitol Hill on behalf of peace, people with disabilities and children with life-threatening conditions. Over 1,300 people attended his funeral, and former President Jimmy Carter delivered the eulogy. Carter said,

“We have known kings and queens, and we’ve know presidents and prime ministers, but the most extraordinary person whom I have ever known in my life is Mattie Stepanek. His life philosophy was “Remember to play after every storm” and his motto was: “Think Gently, Speak Gently, Live Gently.” He wanted to be remembered as “a poet, a peacemaker, and a philosopher who played.”


[1]  Univ. Chicago Law School, Geoffrey R. Stone, http://www.law.uchicago.edu/faculty/stone-g. Edward H. Levi was the Dean of the Law School (1950-62), Provost of the University (1962-68), President of the University (1968-75) and U.S. Attorney General (1975-77). (Wikipedia, Edward H. Levi, http://en.wikipedia.org/wiki/Edward_H._Levi.)

[2]  Stone’s comments about Obama are supplemented by the following: U. Chi. Law School Press Release:  Former Senior Lecturer Barrack Obama Elected President of the United States (Nov. 4, 2008), http://www.law.uchicago.edu/news/staff110408; Hundley, Faculty Discuss Their Time as Obama’s Colleagues (Chic. Trib. March 22, 2009), http://www.law.uchicago.edu/news/faculty032209; Mordfin, From the Green Lounge to the White House, The Record Online (Spring 2009), http://www.law.uchicago.edu/alumni/magazine/spring09/greenloungetowhitehouse.

[3]  Williams & Connolly, Robert Barnett, http://www.wc.com/rbarnett.

[4]  Id.; Montgomery, Washington lawyer Bob Barnett is the force behind many political book deals, Wash. Post., March 7, 2010.

[5] Mr. Barnett has worked on eight national presidential campaigns, focusing on debate preparation for the Democratic candidates in 1976, 1980, 1984, 1988, 1992, 2000, 2004 and 2008. He played the role of George H.W. Bush in practice debates with Michael Dukakis in 1988, and practice-debated Bill Clinton more than 20  times during the 1992 campaign. In 2000, he played the role of Dick Cheney in practices with Joe Lieberman. In 2004, he played the role of Dick Cheney in practices with John Edwards. In 2000 and 2006, he assisted Hillary Rodham Clinton with her Senate debate preparations and helped prepare her for 23 presidential primary debates in 2008. Id.

[6] Wikipedia, Mattie Stepanek, http://en.wikipedia.org/wiki/Mattie_Stepanek;Mattie Stepanek’s Personal Website, .http://www.mattieonline.com/.

The International Criminal Court: Libya Investigation Status

On May 4th the ICC Prosecutor reported to the U.N. Security Council regarding the status of his office’s investigation of “the situation in Libya since February 15, 2011.”[1] (As noted in a prior post, the ICC is investigating the Libya situation by virtue of the February 26, 2011, U.N. Security Council’s unanimous Resolution referring the situation in Libya to the ICC.[2])

The Prosecutor in his May 4th report said that soon he would be submitting his first application to the Court’s Pre-Trial Chamber for the issuance of arrest warrants in this investigation. The first such application will be against three individuals who appear to bear the greatest criminal responsibility for crimes against humanity in Libya since February 15th. These would be “those who ordered, incited, financed, or otherwise planned the commission of the alleged crimes.” He did not give the names of the three, but it is expected that one will be Colonel Muammar al-Gaddafi.

According to the Prosecutor, the evidence provided a reasonable basis to believe that the regime’s security forces have been systematically shooting and killing at least 500 to 700 peaceful protesters and injuring many more, using the same modus operandi in multiple locations. In addition, the security forces are engaged in persecution by systematic arrests, torture, killings and enforced disappearances of civilians who have participated in demonstrations, or who are considered disloyal to the regime or who have talked to international media, activists or journalists.

Such conduct, if established at trial, constitutes crimes against humanity under Article 7 of the Court’s Rome Statute: “widespread or systematic attack directed against any civilian population, with [the accused’s] knowledge of the attack [involving] murder; . . . torture; . . . persecution against any identifiable group . . . on political . . . grounds . . .; [or] enforced disappearance of persons.”

The Prosecutor reported that such charges would be admissible in the ICC because there was no national investigation or prosecution of individuals for such conduct and there were no “interests of justice” that called for the Prosecutor not to investigate or prosecute individuals for these crimes.

The Prosecutor also noted that his office was still investigating other crimes against humanity as well as war crimes in Libya and implied that is office might be seeking other arrest warrants.

All 15 members of the Security Council at the May 4th meeting complimented the Prosecutor for his immediate, professional and thorough investigation of the Libyan situation and stressed the importance of further investigation and prosecutions. Interestingly the Indian representative said the Prosecutor should not be influenced by “non-judicial considerations” and should investigate the conduct of both sides to the conflict. More ominously, the South African representative said that the Prosecutor should investigate any actions by the NATO coalition that “fall outside the scope of [the Security Council’s resolutions on Libya]” and that violate the provisions of the Rome Statute.

By referring the Libyan situation to the Court, the Security Council clearly saw the ICC’s investigation and prosecution as one of several means to try to stop the horrible repression in Libya in addition to the Security Council’s establishing an arms embargo, travel ban, asset freeze and military imposition of a “no-fly zone” and authorizing “all necessary measures” to protect civilians.

On the other hand, some see ICC investigations and prosecutions as making it more difficult to end what has become a Libyan civil war in that they provide an additional motivation for Gaddafi and others to fight to the bitter end.[3]  At the May 4th Security Council meeting, the Chinese representative said the ICC needed to remember that “peaceful dialogue and negotiations are the best way forward towards a political solution to the crisis,” and the Nigerian representative made similar comments, saying that the prosecution must be “carefully calibrated to support the ongoing political efforts to find a peaceful solution.”

Stay tuned for further developments in Libya and at the ICC in The Hague.


[1]  ICC Press Release, The Office of the Prosecutor will request an arrest warrant against three individuals in the first Libya case (May 4, 2011, http://www2.icc-cpi.int/NR/exeres/DCBD3E2C-C592-4FB8-B7CB-E18E67F692D1.htm; ICC, First Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011) (May 4, 2011); U.N. Security Council, 6528th Meeting (May 4, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/321/42/PDF/N1132142.pdf?OpenElement. For background on the ICC, see Post: The International Criminal Court: Introduction (April 28, 2011).

[2]  Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[3]  Sands, The ICC arrest warrants will make Gaddafi dig in his heals, Guardian (May 4, 2011), http://www.guardian.co.uk/commentisfree/2011/may/04/icc-arrest-warrants-libya-gaddafi/print