dwkcommentaries

Supporting International Criminal Justice and the International Criminal Court

Another outgrowth of my eight years of teaching the international human rights law course at the University of Minnesota Law School was an expanding knowledge of, and interest in, international criminal justice, in general, and the International Criminal Court (ICC), in particular.[1]

The general topic of international criminal justice covers the efforts of national and international courts to impose criminal penalties on those who are convicted of committing the worst crimes: genocide, crimes against humanity and war crimes.[2] My interest in this topic is shown by the 14 posts on this topic to date.[3] Similarly my interest in the ICC is demonstrated by the 18 posts on this topic to date.[4]

I have put this interest into action in several ways.

I have served as the Provisional Organizer of the Minnesota Alliance for the ICC, which is a member of the American Non-Governmental Organizations Coalition for the ICC (AMICC). This Coalition is committed to achieving through education, information, promotion and an aroused public opinion full U.S. support for the ICC and the earliest possible U.S. ratification of the Court’s Rome Statute.[5] Some of my papers about the ICC and the Rome Statute are posted on the AMICC website.[6]

Professor Barbara Frey and I assisted the Human Rights Committee of the Minnesota State Bar Association (MSBA) in developing and presenting a resolution on the ICC that was adopted by the Association’s governing body in September 2010. That resolution stated that the MSBA “urges the [U.S.] Government to take steps towards ratification of the Rome Statute by expanding and broadening [U.S.] interaction with the [ICC], including cooperation with the Court’s investigations and proceedings. The MSBA also calls on the [U.S.] Government to participate in all future sessions of the [ICC’s] governing body, the Assembly of States Parties.”[7]

In September 2010 I also presented a paper about the U.S.’ relationship with the ICC at a symposium at the University of Minnesota Law School.[8] The true highlight of the symposium was the appearance of the ICC’s Prosecutor, Luis Moreno-Ocampo. He said that when he was chosen as the Prosecutor in 2003, he told its judges that the best situation for the Court would be to have no cases. That would mean that there were no serious crimes in the world or that national courts by themselves were addressing these crimes. At the symposium he reviewed the history of the Court and its current investigations and prosecutions.[9]

In March 2011 I participated in a debate at a meeting at the University of Minnesota Law School that was hosted by the Federalist Society, Law School Democrats and InternationalLaw Society. The issue was whether the U.S. should become a member of the ICC. [10] The key points of that debate were the following:

Professor Eugene Kontorovich of Northwestern University School of Law asserted that U.S. membership in the ICC would be unconstitutional. U.S. membership would expose U.S. citizens to trials without the structures of an Article III court. In such trials defendants would not have certain procedural rights guaranteed by the Constitution, such as the right to a grand jury. He based his constitutional argument on the U.S. refusal in the early 19th century to join international slave-trading courts or commissions organized by Great Britain.[11]

Professor Kontorovich also argued that the ICC was a failure: the sluggishness of the trial process, the failure to convict any defendant, and the absence of empirical research demonstrating meaningful deterrent effects. The ICC, he said, could actually extend conflict by inhibiting peace deals when militants or regimes see international criminal prosecution as unavoidable in spite of ceasing or surrendering. He was also critical of the recent aggression amendment to the Rome Statute.

I responded that the U.S. Constitution does not bar U.S. membership in the ICC. I referred to the U.S. Supreme Court’s decision in Missouri v. Holland that endorsed a broad interpretation of the President’s constitutional treaty power subject to the U.S. Senate’s advice and consent. I said I had not had an opportunity to review Professor Kontorovich’s early 19th century sources for his constitutional argument, but in doing so anyone should have at least two overriding questions in mind: (a) was U.S. resistance to the slave-trading courts due to Southerners’ desire to preserve slavery and (b) was U.S. resistance to such courts due to a desire to avoid entanglement with Great Britain so soon after our Revolutionary War and the War of 1812.[12]

I then argued the U.S. should ratify the Rome Statute for the following additional reasons: (1) the Court will prosecute and punish those guilty of the most serious crime; (2) the Court provides deterrence from such crimes; (3) the Court promulgates the truth about these crimes; (4) the Court assists victims; and (5) the Court is active and appears to be permanent, making U.S. involvement pragmatic.

International criminal justice needs the support of all citizens of the world. Going forward, the ICC is the most important institution for holding violators of international rights accountable for their actions.

[1] See Post: Teaching the International Human Rights Law Course (July 1, 2011).

[2] See Post: International Criminal Justice: Introduction (April 26, 2011).

[3] These posts can be accessed by double-clicking on “International Criminal Justice” in the Tag Cloud (dwkcommentariestags) to the right of this post.

[4] These posts can be accessed by double-clicking on “International Criminal Court” in the Tag Cloud (dwkcommentariestags) to the right of this post.

[5] AMICC, Mission Statement, http://www.amicc.org/mission.html.

6] Krohnke, US FEDERAL COURTS RELY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT IN CIVIL CASES (Nov. 9, 2009); Krohnke, U.S. Court of Appeals Relies Upon Rome Statute in Case Raising Issue of Corporate Liability under the Alien Tort Statute (Nov. 22, 2010), http://amicc.blogspot.com/2010/11/us-court-of-appeals-relies-upon-rome.html; Krohnke, U.N. Human Rights Council Recommends U.S. Join the International Criminal Court (Nov. 12, 2010), http://amicc.blogspot.com/2010/11/un-human-rights-council-session.html; Krohnke, Symposium on International Criminal Justice at the University of Minnesota Highlights the Importance of the International Criminal Court (Oct. 4, 2010), http://amicc.blogspot.com/2010/10/symposium-on-international-criminal.html.

[7] MSBA, Resolution regarding the ICC (Sept. 17, 2010), http://www.mnbar.org/committees/humanrights.

[8] Many of the points of the symposium paper have been set forth in other postings to this blog. Post: The International Criminal Court and the Clinton Administration (May 11, 2011); Post: The International Criminal Court and the G. W. Bush Administration (May 12, 2011); Post: The International Criminal Court and the Obama Administration (May 13, 2011); Post: The International Criminal Court: The Crime of Aggression (May 15, 2011).

[9] Krohnke, Symposium on International Criminal Justice at the University of Minnesota Highlights the Importance of the International Criminal Court (Oct. 4, 2010), http://amicc.blogspot.com/2010/10/symposium-on-international-criminal.html; Univ. Minn. Journal of Law & Inequality, 2010 Symposium: “International Wrongs, International Rights: The Use of Criminal Law to Protect Human Rights” (Sept. 28, 2010), http://www.law.umn.edu/lawineq/symposiummain/september-2010-agenda.

[10] Rau & Shepherd, AMICC Representative Participates in University of Minnesota Law School Debate on the US Involvement in the ICC (March 28, 2011), http://amicc.blogspot.com/2011/03/amicc-representative-in-minnesota.html.

[11] Kontorovich, The Constitutionality of International Courts: The Forgotten Precedent of Slave Trade Tribunals, 158 U. Penn. L. Rev. 39 (2009).

[12] After the debate, I discovered that a Stanford University Law School professor had written a rebuttal to Professor Kontorovich’s interpretation of the U.S. refusal to join the British-led international courts or commissions with respect to slave trading. In essence, she argued that in the early 19th century slave trading was not against international law. Instead, only Great Britain and the U.S. had recently banned such activities. Thus, the proposed international courts or commissions potentially would be trying U.S. citizens under U.S. law. That was the source, and a legitimate one, for U.S. refusal to join such tribunals at that time. (Martinez, International Courts and the U.S. Constitution: Re-Examining the History (2011), http://www.pennumbra.com/issues/article.php?aid=306.

Teaching the International Human Rights Course

After I had audited the International Human Rights Law course at the University of Minnesota Law School in the Fall of 2001, Professor David Weissbrodt asked if I wanted to help him teachthe course. Given the vast disparity between his and my knowledge of the field, I thought he was joking. “David,” I said, “you don’t need any help.” But he persisted, and I relented and accepted his offer. I then served as an Adjunct Professor at the Law School for nine years, 2002-2010.

The course continued to have the same outline and structure that I had experienced in my auditing the course in the Fall of 2001,[1] and we continued to use the same book.[2] Professors Weissbrodt and Frey still taught most of the class sessions and later were joined by another expert in the field, Fionnuala D. Ní Aoláin.[3]

Professor Weissbrodt and I decided that I would teach two class sessions. One was on refugee and asylum law that built on my experience as a pro bono asylum lawyer. The other was on civil litigation over foreign human rights abuses in U.S. federal courts that took advantage of my considerable experience litigating civil cases in these courts.

Each year to prepare for my two class sessions, I conducted legal research to learn about the many new developments in order to write supplements for the chapters on these subjects. I also assisted in the rewriting of these chapters for the fourth edition of the book that came out in 2009.[4] I thereby continued to use my legal research and writing skills.

This involvement also guided my online reading of various U.S. and foreign newspapers and periodicals and to the creation of a system for email distribution of interesting articles on human rights to friends and colleagues. Many of these articles later became incorporated into the annual supplements for the two chapters that I prepared.

I decided that I would use moot courts for my two class sessions. For refugee and asylum law, four students volunteered to be lawyers for an asylum applicant and the U.S. Government for closing arguments before me, acting as an Immigration Judge in the Minnesota office of the Immigration and Naturalization Service (INS and n/k/a Citizenship and Immigration Services (CIS). For the other session, four additional students volunteered to be the lawyers for a corporate defendant and a foreign plaintiff in a civil lawsuit in the U.S. District Court for the District of Minnesota. The moot court was before me acting as the district judge on the defendant’s motion to dismiss the plaintiff’s complaint alleging the corporation had aided and abetted human rights violations in a foreign country.

In addition to being one way to learn about the substantive law, the moot courts, in my opinion, had other advantages. I thought that the moot court approach would show the students how they could become involved in international human rights while engaged in a regular legal practice in the Twin Cities or anywhere else in the U.S. Given the strength of the international human rights program at the University of Minnesota Law School, many of its graduates have gone on to be lawyers for various U.N. agencies and international human rights NGOs, but most graduates become ordinary practicing lawyers. I also wanted to emphasize the importance of a lawyer’s work at the trial court level, rather than the typical law school moot court experience of arguing before a mock appellate court like the Minnesota or U.S. Supreme Court. Most litigators have much more experience at the trial court level and rarely, if ever, argue a case before the highest court of the state or the U.S. Finally it gave the participating students the opportunity to practice and develop their oral advocacy skills.

For each of the moot court sessions, I held preparatory meetings with the student-lawyers. I gave them guidance on what to expect and answered their questions about the substantive and procedural issues. A strong enjoyable mentorship relationship developed from this total experience.

As part of the moot court exercises, I emphasized to all the students the importance of a lawyer’s knowing the background and views of the judges before whom they appear.

The hypothetical district judge in the lawsuit over foreign human rights violations, for example, had excellent credentials. Appointed for life by the President with the advice and consent of the Senate, the judge was intelligent, honest, hard-working, fair and with a lot of experience on many kinds of civil and criminal cases. The judge, however, had never studied international human rights and along with the fellow judges in his court and his supervising court (the Eighth Circuit Court of Appeals) has never had a case like this under the Alien Tort Statute. As a result, the lawyers for this moot court needed to explain the case thoroughly and clearly. (Fortunately the judge had a law clerk who had studied the subject at the University of Minnesota Law School.)

The hypothetical immigration judge, on the other hand, has tried many asylum cases and has a thorough knowledge of the relevant law. This judge also was intelligent, honest, hard-working and fair. As a result, in this moot court there is no need to explain asylum law to the immigration judge. Instead, the attorney needs to focus on the facts of the instant case. Such judges, it should be noted, do not have lifetime appointments. Instead, they are appointed by the U.S. Attorney General as attorneys in the Department of Justice with no fixed term of office and are subject to discretionary removal and transfer by the Attorney General.

Soon after the classes were over, I sent email critiques of the students’ performance. Invariably the students rose to the challenge and made excellent arguments. I also usually issued a hypothetical decision on the dismissal motion and on the asylum request.

I also attended many other class sessions and the presentations by outside speakers in the course as well as various conferences at the Law School. As a result, I continued to learn more about the field.

Outside the classroom I was available to talk with students about the course and more generally about practicing law and other issues. I welcomed this opportunity to learn more about those who were getting ready to pursue various legal careers. I especially enjoyed getting to know the many foreign students in the course, some of whom were Hubert Humphrey Fellows. (My wife and I also volunteered to be a host family for Fellows from Ecuador, El Salvador and Brazil.)

Museum of the Republic, Rio de Janeiro, Brazil, 10.5.09 — Museum of Republic, Rio de Janeiro

DSCN3432 — Profs. Duane Krohnke & Elizabeth Sussekind @ Museum of Republic

My friendship with a Humphrey Fellow from Brazil resulted in her inviting me to participate in a symposium at the Museum of the Republic in Rio de Janeiro in the Fall of 2009. The symposium was the concluding event to commemorate the 20th anniversary of the Brazilian constitution of 1988 that ended its military dictatorship. This symposium focused on Memory and Justice, and my paper on the Truth Commission for El Salvador provided a Latin American perspective on Brazil’s not having had a similar truth commission.[5]

I thoroughly enjoyed these many aspects of having been an adjunct professor. I never would have had these experiences if I had continued practicing law after 2001. I, therefore, view them as confirmation of the wisdom of my decision to retire from lawyering that year.[6]

[1] See Post: Auditing the International Human Rights Law Course (June 30, 2011).

[2] David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process (3d ed. 2001).

[3] University of Minnesota Law School, Fionnuala D. Ní Aoláin, http://www.law.umn.edu/facultyprofiles/niaolainf.html.

[4] David Weissbrodt, Fionnuala D. Ní Aoláin, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process (4th ed. 2009).

[5] Museu da Republica, Memoria e Justica (2009).

[6] Post: Retiring from Lawyering (April 22, 2011).

Auditing the International Human Rights Course

In the Fall of 2001, after retiring from Faegre & Benson, I audited the International Human Rights Law course at the University of Minnesota Law School.[1] Although I had gained some knowledge of refugee and asylum law from my pro bono asylum work,[2] I knew very little about the rest of the field. Through this experience at the Law School I started to learn about other aspects of this area of law and developed a continuing interest in trying to keep up with new developments in the field.

The course was lead by Professor David Weissbrodt, a world authority on the subject and now the first and only Regents Professor at the UM Law School.[3] He was the main author of the book that we used.[4] Some classes were taught by Professor Barbara Frey, whom I had met when she was the Executive Director of Minnesota Advocates for Human Rights (n/k/a Advocates for Human Rights) and had taken its training course in asylum law.[5]

The topics for the course were the following: (a) drafting, ratification and implementation of international human rights treaties; (b) state reporting under such treaties; (c) U.N. Charter-based mechanisms to address human rights violations; (d) humanitarian intervention; (e) international human rights fact-finding; (f) criminal liability for human rights violations; (g) regional human rights systems (Inter-American and European); (h) refugee and asylum law; (i) U.S. federal court litigation over foreign human rights violations; (j) use of international human rights treaties and law in litigation over U.S. issues; and (k) causes of human rights violations.

The course used different teaching styles. Some classes were the traditional law school Socratic questioning by the professor. Others were lectures while some involved role playing by the students. One class was a mock hearing before the U.S. Senate Foreign Relations Committee on whether the Senate should give its advice and consent to U.S. ratification of an international human rights treaty. The course also had an unusual structure. The class met once a week for two hours on Friday morning immediately followed by another hour when we were joined by an undergraduate human rights class for presentations by outside speakers on various related topics.

[1] University of Minnesota Law School, International Human Rights, http://www.law.umn.edu/current/coursedetails.html?course=23.

[2] Post: Becoming a Pro Bono Asylum Lawyer (May 24, 2011).

[3] University of Minnesota Law School, David S. Weissbrodt, http://www.law.umn.edu/facultyprofiles/weissbrodtd.html.

[4] David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process (3d ed. 2001).

[5] University of Minnesota, Barbara A. Frey, http://hrp.cla.umn.edu/about/people.htm; Post: Becoming a Pro Bono Asylum Lawyer (May 24, 2011).

Practitioner in Residence

UILaw — University of Iowa College of Law

For three days in February 1986 I was the practitioner in residence at the University of Iowa College of Law. I helped teach a class, made a presentation to a faculty seminar, gave a speech to an assembly of students and faculty and talked to a student group and a legal clinic seminar.[1]

Professor Patrick Bauer, a friend and former colleague at the Faegre & Benson law firm in Minneapolis, taught a first-year civil procedure class that I joined. The topic was Rule 11 of the Federal Rules of Civil Procedure that requires an attorney who submits a pleading, written motion or other paper to a federal district court to make an implicit representation that it was not presented for an “improper purpose,” that is was “warranted by existing law or by a nonfrivolous argument” for changing the law and that its factual contentions had or were likely to have “evidentiary support.” [2]

The problem for the class that day was posed by a recent case in which the court had denied a defense motion to dismiss a complaint and had directed defense counsel to submit a brief as to why they should not be subject to Rule 11 sanctions for their dismissal motion. The court thereafter decided that such sanctions were appropriate and imposed a fine on the defense counsel (in an amount to be determined). The violation of Rule 11, according to the court, occurred because the dismissal motion was not warranted by existing law and because the lawyers had not made a reasonable inquiry to determine if the motion was warranted by existing law.[3]

In the civil procedure class, I played the role of a law firm partner soliciting input and advice from his associate lawyers (played by the students) on preparing a complaint for a new civil lawsuit. Professor Bauer at the blackboard wrote down Rule 11 issues that were created by the ideas put forward by the associates.

“Sue the Bastard! Ruminations on American Litigiousness” was the title of my presentation to a faculty seminar. I had prepared this paper while on my sabbatical leave at Grinnell College. I discussed what I saw as the causes and effects of such litigiousness and suggested changes in our legal system and national psyche.[4]

An assembly of faculty and students was the forum for my speech, “The Pilgrimage of a Hired Gun–The First Twenty Years.” Accepting the challenge of Judge Frank M. Coffin for lawyers and judges to make “interiorly revealing” comments about their professional lives,[5] I discussed my first 20 years of practicing law and my search for meaning and spiritual values in a litigator’s life.

The first five years were my apprenticeship period when I was learning how to be a litigator and how to function in two large law firms in two new cities while also becoming a father to two sons. The self-sufficient, inner-directed person I thought I was had found a home in the well-paid, high-powered, eminently secular law firm.

The next five years I saw as my yuppie period. I was becoming more proficient as a lawyer. I advanced to partner at Faegre & Benson. We bought an upper-middle-class home. Still no room for a spiritual, religious life.

The next four or five years or so, in retrospect, was a time of mid-life crisis. I was increasingly skeptical of the significance of what I was doing for a living while facing personal challenges.

I started to sort out these problems over the next five years and started to integrate the various aspects of my life. In 1981 I joined Minneapolis’ Westminster Presbyterian Church and started to re-discover a spiritual life.[6] In 1982 I took a sabbatical leave from my law firm to teach at Grinnell College.[7] In 1984, I organized a liberal arts seminar for lawyers at the College.[8] I started to do research about two lawyers whom I admired: Joseph Welch and Edward Burling.[9] Being a practitioner in residence also gave me the opportunity to reflect on these issues and to share these thoughts with others.

I concluded my “Pilgrimage” speech by saying, “I embrace the tools of the trade [and] the craftsman’s pride in a job well done and let go of the omni-competent, omnipotent attitude of the successful lawyer.”

Little did I know at the time of this speech that my then just-starting involvement in the Sanctuary Movement case[10] would be an integrative experience that would lead to my becoming a pro bono asylum attorney,[11] my making a life-changing pilgrimage to El Salvador[12] and my becoming an adjunct professor of international human rights law at the University of Minnesota Law School.[13]

While a practitioner in residence at the Iowa College of Law in February 1986, I also spoke to a meeting of the Christian Legal Society on “Legal Issues Arising Out of the Sanctuary Movement and Government Infiltration of the Churches.” This was an account of the federal criminal case against leaders of the Sanctuary Movement and the Government’s disclosure that it had sent under-cover agents into worship services and Bible-study meetings at Arizona churches involved in the Movement. I also discussed the just-filed civil case against the U.S. Government over “the spies in the churches” by the American Lutheran Church and the Presbyterian Church (U.S.A.).[14]

Another activity at the Iowa College of Law was attending a legal clinic seminar. I talked about the American Bar Association’s Model Rules of Professional Conduct for lawyers and legal malpractice.[15] I shared my opinion that legislatures and courts were in the process of altering the balance between a lawyer’s role as advocate and the role as officer of the court to give greater importance to the latter. One example was the previously mentioned court’s imposing sanctions on lawyers for arguments that were not deemed in accordance with established law. I attributed this shift to increasing legal fees and the costs of litigation, the public perception that litigation processes had been abused and the knowledge that some lawyers are dishonest. This rebalancing carried with it a risk of diminishing a lawyer’s responsibilities to a client and hence an increased risk of malpractice. I concluded with this quotation: “Clients are entitled to much. They are entitled to dedication, diligent preparation, undivided loyalty, superb research, the most zealous advocacy and even sleepless nights; but they are not entitled to the corruption of our souls . . . . We do not lie, we do not cheat, we do not suborn, and we do not fabricate. We do not lie to clients. We do not lie for clients.”[16]

[1] Duane Krohnke Is First Daum Practitioner in Residence, Iowa Advocate, Fall/Winter 1985-86, at 15. The widow of F. Arnold Daum, a 1934 graduate of the Iowa College of Law and a senior partner in a Wall Street law firm, established the F. Arnold Daum Visiting Practitioner’s Program in the Law College to support bringing leading practitioners to the law school to appear in classes and exchange ideas with faculty and students. I was the first such practitioner to participate in this program.

[2] Fed. R. Civ. Pro. 11.

[3] Golden Eagle Distributing Corp. v. Burroughs Corp., 103 F.R.D. 124 (N.D. Cal. 1984).

[4] Post: A Sabbatical Leave from Lawyering (May 26, 2011).

[5] Post: A Liberal Arts Seminar for Lawyers (May 28, 2011).

[6] Post: Minneapolis’ Westminster Presbyterian Church (April 6, 2011).

[7] Post: A Sabbatical Leave from Lawyering (May 326, 2011).

[8] Post: A Liberal Arts Seminar for Lawyers (May 28, 2011).

[9] Post: Adventures of a History Detective (April 5, 2011).

[10] Post: The Sanctuary Movement Case (May 22, 2011).

[11] Post: Becoming a Pro Bono Asylum Lawyer (May 24, 2011).

[12] Post: My Pilgrimage to El Salvador, April 1989 (May 25, 2011).

[13] Post: My First Ten Years of Retirement (April 23, 2011).

[14] Post: The Sanctuary Movement Case (May 22, 2011)(account of the churches’ completed case against the Government).

[15] Krohnke, A Litigator’s Comments on the ABA Model Rules of Professional Conduct and Attorney Malpractice (Feb. 1986).

[16] Miller, A Report on the Morals and Manners of Advocates, 29 Cath. Law. 103, 108 (1984).

Minnesota’s Federal Court

Fedctmpls — Federal Courthouse, Minneapolis

mpls-typical-courtroom — Courtroom, Federal Courthouse, Minneapolis

The United States District Court for the District of Minnesota is the federal court in the State. It and the 93 other U.S. district courts are the trial courts of the federal court system. Within limits set by Congress and the Constitution, the district courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters.[1]

The Minnesota federal court has four federal courthouses in St. Paul, Minneapolis, Duluth and Fergus Falls although the last one does not have any regularly assigned federal judges.[2]

The Minnesota court has seven judgeships authorized by federal statutes. There are 670 other such federal district court judgeships in the U.S. All of the people who hold these judgeships are appointed for life by the President of the U.S. after advice and consent of the U.S. Senate.[3] They exercise the full powers of the district courts.

Five of the seven U.S. District Judges for the Minnesota court have their chambers at the Minneapolis federal courthouse; they are Joan N. Ericksen, Michael J. Davis, John R. Tunheim, Patrick J. Schiltz and Ann D. Montgomery. In the St. Paul federal courthouse they are Donovan W. Frank and Susan Richard Nelson. They are joined by four Senior U.S. District Judges, who also continue to take cases: Donald D. Alsop, Paul A. Magnuson and Richard H. Kyle in St. Paul and David S. Doty in Minneapolis.[4]

The Court also has nine United States Magistrate Judges, who are appointed by the Judges of the U.S. District Court for a term of eight years and who are eligible for reappointment to successive terms. The Magistrate Judges at the U. S. District Court in St. Paul are Janie S. Mayerson, Jeanne J. Graham, Jeffrey J. Keyes and Tony N. Leung; at the Minneapolis federal courthouse they are Arthur J. Boylan (Senior Magistrate Judge), Franklin L. Noel and Steven F. Rau. Leo J. Brisbois serves in the Duluth federal courthouse; and Mary Kay Klein is part-time in Bemidji.[5] The magistrate judges have more limited roles then the judges and may try cases only with the consent of the parties.[6]

In 1986 the District Court appointed District Judge Diana E. Murphy and me as co-chairs of the Bicentennial of the Constitution Committee for the District of Minnesota. We produced a history of the Court and sponsored and organized a seminar on constitutional law, a lecture and discussion on “Religion and the Constitution” and videotaped interviews of the sitting judges.[7]

[1] United States Courts, District courts, http://www.uscourts.gov/FederalCourts/; 28 U.S.C. ch. 85 (jurisdiction). The more populous states have more than one federal district court. For example, the State of New York has four: Northern, Southern, Eastern and Western Districts. (28 U.S.C. § 112.)

[2] U.S. Dist. Ct., D. Minn., Courthouses, http://www.mnd.uscourts.gov/Courthouses.shtml.

[3] U.S. Dist. Ct., D. Minn., Judges, http://www.mnd.uscourts.gov/judges.shtml; United States Courts, Federal Judgeships, http://www.uscourts.gov/JudgesAndJudgeships/.

[4] Id.

[5] Id.

[6] 28 U.S.C. ch.43.

[7] Murphy & Krohnke, The Minnesota Federal Court Embarks on Bicentennial Projects, Hennepin Lawyer, May-June 1987 at 10; History of the U.S. Court for the District of Minnesota (1989), http://www.mnd.uscourts.gov/History. Since October 1994, Judge Murphy has been a U.S. Circuit Judge on the U.S. Court of Appeals for the Eighth Circuit, which handles appeals from the Minnesota federal court as well as the federal district courts in North Dakota, South Dakota, Nebraska, Missouri and Arkansas. (Eighth Circuit Court of Appeals Judges, http://www.ca8.uscourts.gov/newcoa/judge.htm; 28 U.S.C. § 41; 28 U.S.C. ch. 83.) Appeals from the Eighth Circuit go to the U.S. Supreme Court when the latter agrees to take the case. (28 U.S.C. § 1254.)

International Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments

On June 27th, the ICC’s Pre-Trial Chamber issued warrants of arrest for Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi for crimes against humanity (murder and persecution) allegedly committed across Libya from 15 February 2011 until at least 28 February 2011, through the State apparatus and Security Forces.[1]

The Chamber concluded that there are reasonable grounds to believe that the three suspects committed the alleged crimes and that their arrests appear necessary in order to ensure their appearances before the Court; to ensure that they do not continue to obstruct and endanger the Court’s investigations; and to prevent them from using their powers to continue the commission of crimes within the jurisdiction of the Court.

Apprehending the suspects will be a particular challenge for the ICC and its supporters. U.N. Security Council Resolution 1970 that referred the situation to the Court obligates the Libyan authorities to cooperate with the ICC. However, Gaddafi and the Libyan leadership have given no indication that they would cooperate at all with the Court. The warrants could also make it more difficult for Gaddafi to negotiate an exit into exile since he has few friends globally and all current 114 ICC States Parties are under an obligation to arrest him. Moreover, it is clear from this and other cases that the ICC Prosecutor and judges believe that they are obliged to proceed with a case referred by the Security Council if the evidence justifies it.

This challenge to the international community could prove an important opportunity for U.S. leadership and support to the Court. The U.S. has been working publicly to engage with the Court and support ICC cases. In particular, it has backed the Court’s effort to investigate and prosecute recent crimes in Libya. The arrest warrants issued today provide a new and concrete opportunity to advance U.S. national interests and to support international criminal justice. For this reason and since July 17 is International Justice Day, the American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC) has created an International Justice Day alert action. It urges President Obama to help fulfill the mandate of Resolution 1970 by helping to carry out the arrest warrants issued today. Please sign and submit the letter to the President: http://www.change.org/petitions/ask-president-obama-to-support-the-icc-on-libya-and-help-arrest-gaddafi.

Two other recent developments should be mentioned.

Last week, on June 24th, Tunisia filed its documents acceding to the Court’s Rome Statute. Effective September 1, 2011, it will be the 116th State Party to the Statute.[2]

On June 23rd, the ICC Prosecutor announced that he had made a formal application to the Court’s Pre-Trial Chamber for authorization of an investigation of possible crimes against humanity and war crimes in the Ivory Coast since November 28, 2010.[3]

[1] ICC Press Release, Pre-Trial Chamber I issues three warrants of arrest for Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdulla Al-Senussi(June 27, 2011); Simons, Hague Court Issues Warrant for Qaddafi for War Crimes, N.Y. Times (June 27, 2011). See Post: International Criminal Court: Investigations and Prosecutions (April 25, 2011); Post: International Criminal Court: Libya Investigation Status (May 8, 2011); Post: International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011); Post: International Criminal Court: Investigation of Gang-Rape in Libya (May 17, 2011). The Libyan situation was referred to the ICC by the U.N. Security Council. (Id.)

[2] ICC Press Release, Tunisia becomes the 116th State to join the ICC’s governing treaty, the Rome Statute (June 24, 2011).

[3] ICC Press Release, ICC Prosecutor requests judges for authorization to open an investigation in Cote d’Ivoire (June 23, 2011).

International Criminal Court: The Upcoming Election of Its Prosecutor

This coming December the Assembly of States Parties of the International Criminal Court (ICC) will also elect a new Prosecutor for a single term of nine years.[1]

The Prosecutor is in charge of the management and administration of the Office of the Prosecutor (OTP). That Office is “responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court.”[2]

The Rome Statute sets forth the following necessary personal qualifications for the Prosecutor:

“High moral character;”
“Highly competent in and . . . extensive practical experience in the prosecution or trial of criminal cases;” and
Excellent knowledge of, and fluency in, one of the Court’s two “working languages” (English and French). [3]

Note that there is no requirement that the Prosecutor come from one of the Court’s States Parties. As a result, technically a U.S. citizen with the above qualifications would be eligible for election to this position, but given the history of the U.S. relationship with the Court and the global involvement of the U.S., most observers think it highly unlikely that a U.S. citizen could be, or should be, chosen for this job.

Six international human rights NGOs have advanced recommended selection criteria for the next ICC Prosecutor. Their doing so was in the context of what they saw as the challenges facing the ICC and its Prosecutor. The ICC’s work is done in a highly politicized international environment. The Prosecutor has to prioritize investigations and prosecutions to advance the Court’s goals, including victims’ right to justice. The Prosecutor must direct a diverse group of highly qualified people in a wide variety of complex and specialized tasks in the OTP. The Prosecutor must make trials relevant and meaningful for affected communities. The Prosecutor must promote complementarity, i.e., national investigations and prosecutions of crimes within the ICC’s jurisdiction. The Prosecutor must cooperate with other organs of the ICC to continue to build the institution.[4]

With all of these challenges in mind, Human Rights Watch (HRW) and the other five NGOs recommended the following criteria for selecting the next ICC Prosecutor in addition to the individual’s meeting the statutory requirements:

Demonstrated experience of professional excellence in complex criminal cases. This is most important since the primary role of the Prosecutor is to conduct factually provable and legally sound prosecutions and trials. Former judges may meet this criterion too.
Demonstrated ability to act with independence and impartiality in the exercise of professional duties. This criterion requires demonstrated experience with, or an understanding of, international relations and other institutions relevant to the work of the OTP.
Demonstrated professional excellence in institutional mangament. The Prosecutor must also develop a positive work environment in a multi-cultural environment. Delegation and supervision have to be balanced.
Demonstrated experience in working with other bodies or agencies to achieve a common goal. This involves resolving disputes or tensions.
Demonstrated experience in communicating effectively to a wide variety of constituencies.[5]

HRW also has made suggestions regarding the OTP’s “preliminary examinations” of possible situations for possible investigation by the OTP. More can be done by the OTP in these examinations, says HRW, to encourage national authorities to undertake investigations and prosecutions of possible crimes. One way to do this, according to HRW, is for the OTP to issue interim reports on the status of such examinations. This is consistent with the Rome Statute’s desire to promote “complementarity.”[6]

Just this year the ICC has been asked to shoulder more burdens with the U.N. Security Council’s referral of the current situation in Libya to the ICC.[7] Thus, it is critically important to the world for the ICC to be strengthened in every way, including the election of a fully qualified new Prosecutor.

[1] Rome Statute, Art. 42; Post: The International Criminal Court: Introduction (April 28, 2011); ICC, Election of Prosecutor–2011, http://www.icc-cpi.int/Menus/ASP/Elections/Prosecutor/Prosecutor.htm. As previously discussed, in December 2011 the Assembly of States Parties will also elect six new judges. (SeePost: The International Criminal Court: Basics of Its Upcoming Judicial Election (June 23, 2011); Post: The International Criminal Court: Required and Recommended Qualifications for Its Judges (June 24, 2011).)

[2] Rome Statute, Art. 42(1), (2).

[3] Rome Statute, Arts. 42(3), 50(2).

[4] Human Rights Watch, ICC: Selection Criteria for the Next Prosecutor to Meet the Challenges Ahead (March 18, 2011), http://www.hrw.org/en/news/2011/03/18/icc-selection-criteria-next-prosecutor-meet-challenges-ahead. The five other NGOs are Federation Internationale des Ligues des Droits de l’Homme, International Center for Transitional Justice, International Crisis Group, Institute for Security Studies and Open Society Justice Initiative. The International Coalition for the International Criminal Court also actively participated in preparing this statement, but with 2,500 members, it was not possible to seek global endorsement. Id.

[5] Id.

[6] Human Rights Watch, ICC: Prosecutor Can Spur National Trials, Deter Crimes (June 15, 2011) http://www.hrw.org/en/news/2011/06/15/icc-prosecutor-can-spur-national-trials-deter-crimes. See Post: The International Criminal Court: Introduction (April 28, 2011); Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[7] See 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: Three Liban Arrest Warrants Sought (May 16, 2011); Post: The International Criminal Court: Investigation of Gang-Rape in Libya (May 16, 2011).

International Criminal Court: Required and Recommended Qualifications for ICC Judges

We have seen that six of the 18 judges of the International Criminal Court (ICC) will be elected this December by its Assembly of States Parties. The requirements for equitable geographical and gender balance of the Court and for representation of the principal legal systems in the world have been discussed.[1]

Now we examine the more fascinating subject of the required and recommended personal qualifications for these judgeships.

The Rome Statute sets forth the following necessary personal qualifications:[2]

High moral character;
Impartiality;
Integrity;
Possessing the qualifications required by their States for appointment to their highest judicial offices;
Excellent knowledge of the Court’s two “working languages” (English and French) and fluency in at least one of these languages;
Established competency in either (a) “criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in similar capacity, in criminal proceedings” (the List A candidates) or (b) “relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court” (the List B candidates);[3] and
At least some of the judges need to have “legal expertise on specific issues, including, but not limited to, violence against women or children.”[4]

In addition, Human Rights Watch has set forth certain other qualifications it deems important to enable the ICC to fulfill its overall mandate to combat “the most serious crimes of international concern.”[5] These additional qualifications are the following:

Substantial experience in criminal trials. This really is an emphasis of the statutory requirement that the List A judges have “experience, whether as judge, prosecutor, advocate or in similar capacity, in criminal proceedings.” Thus, Human Rights Watch suggests that at least five of the six new judges come from the A List candidates.
The capacity and willingness to meet the demands of adjudicating cases over a nine-year term. The new judges, it is suggested, must “possess the capacity (including stamina) and motivation to meet the many demands on [ICC] judges . . . over a full nine-year term.” In other words, the ICC judgeships are not sinecures to reward distinguished national judges at the end of their careers.
Commitment to ongoing training. The new judges should “value continuing legal education and . . . [be] willing to participate in initiatives [to promote] . . . legal innovation and coordination among all judicial chambers [of the Court] in adjudicating complex questions relating to law and policy.”

Implicit in the recommendations by Human Rights Watch is the need for the ICC continually to find ways to improve its efficiency, i.e., its ability to dispose of cases expeditiously. The same challenge faces the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) in their final months, as was discussed at a recent U.N. Security council meeting.[6] Specific suggested changes for improving ICC efficiency have been put forward by one of the six ICC judges to be replaced in this election, Judge Fulford from the U.K.[7] Another set of such recommendations recently has been advanced by the War Crimes Research Office at American University’s Washington College of Law.[8]

I concur in the Human Rights Watch suggested qualifications, but believe that greater emphasis needs to be placed on the importance of electing new ICC judges with previous international criminal law experience. There are important differences between domestic and international criminal trials, and there is now a group of former judges, prosecutors and advocates who already have had such international experience at the ICC, ICTR, ICTY and other similar tribunals. To use a U.S. baseball analogy, look for major league free agents in addition to finding capable minor leaguers to promote to the big leagues. It is encouraging that all four of the first nominees have such international experience.[9]

The importance of this judicial election also had been recognized by the International Coalition for the International Criminal Court. It has called for the nomination of the most highly-qualified jurists for these positions.[10] In addition, the Coalition has established the Independent Panel on ICC Judicial Elections. This Panel was charged with providing “an independent assessment of whether each judicial candidate fulfills the qualifications established by Article 36 of the Rome Statute.” The five Panel members are all distinguished people with international legal experience.[11]

Just this year the ICC has been asked to shoulder more burdens with the U.N. Security Council’s referral of the current situation in Libya to the ICC.[12] Thus, it is critically important to the world for the ICC to be strengthened in every way, including the election of six fully qualified new judges.

[1] See Post: The International Criminal Court: Basics of Its Upcoming Judicial Elections (June __, 2011).

[2] Rome Statute, Arts. 36(3), 38(8)(b), 50(2).

[3] List A judges are supposed to be at least nine in number; the List B judges, at least five. (Rome Statute, Art. 36(5).) All six of the retiring judges came from the A List. Of the six to be elected this December at least two must come from the A List while no one has to be from the B List. (See Post: The International Criminal Court: Basics of Its Upcoming Judicial Elections (June 23, 2011).)

[4] The author does not know of any legal issue that has been identified for judicial expertise other than the one specified in this Article of the Statute.

[5] Human Rights Watch, ICC: Recommendations for Nominating and Electing Candidates to Serve as Judges (May 18, 2011), http://www.hrw.org/en/news/2011/05/18/icc-recommendations-nominating-and-electing-candidates-serve-judges; Rome Statute, Art. 1.

[6] See Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011).

[7] Id.

[8] SaCouto, How to speed up ICC Proceedings (June 21, 2011), http://intlawgrrls.blogspot.com/2011/06; War Crimes Research Office, Expediting Proceedings at the International Criminal Court (June 2011), http://www.wcl.american.edu/warcrimes/icc/documents/.

[9] See Post: The International Criminal Court: Basics of its Upcoming Judicial Election (June 23, 2011).

[10] International Coalition for the International Criminal Court, Global Coalition Calls on States to Nominate the Most Highly-Qualified Judicial Candidates for the ICC (June 21, 2011), http://www.coalitionfortheicc.org/documents/.

[11] Independent Panel on ICC Judicial Elections, http://iccindependentpanel.org/. The Panelists are (i) The Honorable Hans Corell, former Judge of Appeal and former U.N. Under-Secretary-General for Legal Affairs and Legal Counsel; (ii) The Honorable Justice Richard Goldstone, former Chief Prosecutor for the ICTR and ICTY; (iii) Judge O-Gon Kwon, Vice President of the ICTY and former Presiding Judge at the Daegu High Court; (iv) Dr. Cecilia Medina Quiroga, Co-Director of the Human Rights Centre at the University of Chile and former President of the Inter-American Court of Human Rights; and (v) The Honorable Patricia Wald, former Chief Judge of the United States Court of Appeals for the District of Columbia and former Judge of the ICTY.

[12] See 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: Three Liban Arrest Warrants Sought (May 16, 2011); Post: The International Criminal Court: Investigation of Gang-Rape in Libya (May 16, 2011).

International Criminal Court: Basics of Its Upcoming Judicial Election

The International Criminal Court (ICC) has 18 judges, each of whom serves only one term of nine years. In December of 2011 six new judges will be elected by the Court’s governing body, the Assembly of States Parties.[1]

Aside from specified and recommended personal qualifications for these judgeships,[2] there are requirements that judges come from the current 115 States Parties, that no State may have more than one judgeship and that there be equitable geographical and gender representation on the Court. There is also a requirement that the Court have representation of the “principal legal systems of the world.”[3]

Of the six judges who will be replaced in the upcoming elections, three are female and three are male. Two are from Latin America (Brazil and Costa Rica), two from Africa (Mali and Uganda) and two from Western Europe and Other (France and the U.K.)[4]

Given the Rome Statute’s requirement for considerations of geographical and gender equity and for certain proportions for Lists A and B judges, the upcoming elections will seek to elect up to 2 females and at least 4 males who come from the A List (at least 4) and the B List (no more than 2) from the following geographical areas:

Africa: 2 from 28 African States Parties (31 -3 (Botswana, Ghana and Kenya, which already are represented on the Court));

Latin America: 2 from 24 Latin American and Caribbean States Parties (26 – 2 (Argentina and Bolivia, which already are represented on the Court)); and

Western Europe & Other States Parties: 2 from 22 Western European/Other States Parties (25 – 3 (Belgium, Finland, and Germany, which already are represented on the Court)).[5]

Nominees for these six positions must come from the 115 States Parties (with no more than one nomination from each such State) during the period June 13 through September 2, 2011. Each nomination must have a statement specifying how the individual meets the personal requirements of the Rome Statute.[6]

As of June 22, 2011, there were the following four nominations:[7]

Judge John Bankole Thompson of Sierra Leone. He has been a Judge of the High Court of Sierra Leone and of the Trial Chamber of the Special Court for Sierra Leone. He also has been a law professor in his country and in the U.S. (University of Akron School of Law, Kent State University and Eastern Kentucky University. He holds LLB, M.A. and Ph. D. degrees in law from Cambridge University.

Bruno Cathala of France. He has been the ICC’s Registrar and its Director of Common Services; Deputy Registrar of the ICTY; president of two regional French courts and one of its juvenile courts. He also has been Deputy Director of a French government department for judicial protection of juveniles. He hold degrees from France’s Institutes of Higher National Defense Studies and of Higher Internal Security Studies and a post-graduate pre-PhD diploma in Private Law from the School of Law, University of Paris.

Chile Eboe-Osujl of Nigeria. He has been an advocate in criminal cases in the courts of Nigeria and Canada and a prosecutor at the ICTR and the Special Court for Sierra Leone. He has served as an advisor to the U.N. High Commissioner for Human Rights and to the Nigerian delegation to the ICC’s Review Conference on the crime of aggression. He has taught international criminal law at the University of Ottawa. He has special experience and expertise regarding violence against women and children.

Gberdao Gustave Kam of Burkina Faso. He has been an ad litem judge for the ICTR and a judge in several courts in his country. He also has served in his country’s Ministry of Justice.

The more fascinating issue of the specified and recommended personal qualifications for these positions will be discussed in a future post.

[1] See Post: The International Criminal Court: Introduction (April 28, 2011); Rome Statute, Art. 36 (1), (9); ICC, Election of six judges–December 2011, http://www2.icc-cpi.int/Menus/ASP/Elections/Judges/2011/2011.htm.

[2] A future post will discuss the Rome Statute’s specified qualifications for judgeships as well as recommended qualifications proposed by civil society.

[3] Rome Statute, Art. 36 (7), (8)(a).

[4] International Coalition for the International Criminal Court, Information about the Nomination and Election of Six New Judges and the Prosecutor, New York, December 2011, http://www.coalitionfortheicc.org/documents/.

[5] Id.

[6] Rome Statute, Art. 36 (4)

[7] ICC, Election of six judges–December 2011, http://www2.icc-cpi.int/Menus/ASP/Elections/Judges/2011/2011.htm.

International Criminal Justice: U.S. Reportedly Failed To Detain Rwandan Indictee of Spanish Court

In May 2011 Justus Majyambere, a major in the Rwandan Defense Forces, apparently visited the U.S. Military Staff College at Fort Leavenworth, Kansas as an official representative of his government. The purpose of the visit was to obtain ideas for starting a military college in Rwanda.[1]

That sounds like a positive development.

But Majyambere is under indictment by a Spanish court for alleged involvement in the killing of nine employees of a Spanish NGO in Rwanda and the Democratic Republic of the Congo. Therefore, he is under an Interpol “red notice,” a worldwide bulletin that is roughly equivalent to an arrest warrant. As a result, he reportedly was arrested upon his recent arrival in the U.S., but mysteriously was not detained and sent to Spain.[2]

If all of this is true, it is contrary to repeated statements by U.S. Ambassador-at-Large for War Crimes, Stephen Rapp, about U.S. supporting the arrest of fugitives from international criminal justice.[3] It is also contrary to the global goal of punishing and deterring violations of international humanitarian and human rights law.

[1] Rosen, U.S. Hosted Alleged Rwandan War Criminal for Military Visit, (June 20, 2011), http://www.theatlantic.com/international/archive/2011/06/us-hosted-alleged-rwandan-war-criminal-for-military-visit/240679/.

[2] Id.

[3] See Post: The International Criminal Court and the Obama Administration (May 13, 2011); Post: The International Criminal Court: Possible U.N. Security Council Referral of Syrian Human Rights Abuses to ICC (June 18, 2011).