Benjamin Cardin – dwkcommentaries

U.S. Announces Agreement To Restore Diplomatic Relations with Cuba

On July 1, 2015, the U.S. and Cuba announced an agreement to restore diplomatic relations. This post will discuss the U.S. announcement and reactions.[1] A subsequent post will do the same for the Cuban announcement and reactions.

U.S. Announcement

In the White House’s Rose Garden, President Obama announced the plans to reopen the embassies. Here is what he said:

“More than 54 years ago, at the height of the Cold War, the United States closed its embassy in Havana. Today, I can announce that the United States has agreed to formally re-establish diplomatic relations with the Republic of Cuba, and re-open embassies in our respective countries. This is a historic step forward in our efforts to normalize relations with the Cuban government and people, and begin a new chapter with our neighbors in the Americas.”
“When the United States shuttered our embassy in 1961, I don’t think anyone expected that it would be more than half a century before it re-opened. After all, our nations are separated by only 90 miles, and there are deep bonds of family and friendship between our people. But there have been very real, profound differences between our governments, and sometimes we allow ourselves to be trapped by a certain way of doing things.”
“For the United States, that meant clinging to a policy that was not working. Instead of supporting democracy and opportunity for the Cuban people, our efforts to isolate Cuba despite good intentions increasingly had the opposite effect -– cementing the status quo and isolating the United States from our neighbors in this hemisphere. The progress that we mark today is yet another demonstration that we don’t have to be imprisoned by the past. When something isn’t working, we can -– and will –- change.”
“Last December, I announced that the United States and Cuba had decided to take steps to normalize our relationship. As part of that effort, President Raul Castro and I directed our teams to negotiate the re-establishment of embassies. Since then, our State Department has worked hard with their Cuban counterparts to achieve that goal. And later this summer, Secretary Kerry will travel to Havana formally to proudly raise the American flag over our embassy once more.”
“This is not merely symbolic. With this change, we will be able to substantially increase our contacts with the Cuban people. We’ll have more personnel at our embassy. And our diplomats will have the ability to engage more broadly across the island. That will include the Cuban government, civil society, and ordinary Cubans who are reaching for a better life.”
“On issues of common interest –- like counterterrorism, disaster response, and development -– we will find new ways to cooperate with Cuba. And I’ve been clear that we will also continue to have some very serious differences. That will include America’s enduring support for universal values, like freedom of speech and assembly, and the ability to access information. And we will not hesitate to speak out when we see actions that contradict those values.”
“However, I strongly believe that the best way for America to support our values is through engagement. That’s why we’ve already taken steps to allow for greater travel, people-to-people and commercial ties between the United States and Cuba. And we will continue to do so going forward.”
“Since December, we’ve already seen enormous enthusiasm for this new approach. Leaders across the Americas have expressed support for our change in policy; you heard that expressed by President Dilma Rousseff of Brazil yesterday. Public opinion surveys in both our countries show broad support for this engagement. . . .
“Here in the United States, we’ve seen that same enthusiasm. There are Americans who want to travel to Cuba and American businesses [that] want to invest in Cuba. American colleges and universities . . . want to partner with Cuba. Above all, Americans who want to get to know their neighbors to the south. And through that engagement, we can also help the Cuban people improve their own lives.”
“Americans and Cubans alike are ready to move forward. I believe it’s time for Congress to do the same. I’ve called on Congress to take steps to lift the embargo that prevents Americans from travelling or doing business in Cuba. We’ve already seen members from both parties begin that work. After all, why should Washington stand in the way of our own people?”
“Yes, there are those who want to turn back the clock and double down on a policy of isolation. But it’s long past time for us to realize that this approach doesn’t work. It hasn’t worked for 50 years. It shuts America out of Cuba’s future, and it only makes life worse for the Cuban people.”
So I’d ask Congress to listen to the Cuban people. Listen to the American people. Listen to the words of a proud Cuban-American, Carlos Gutierrez, who recently came out against the policy of the past, saying, ‘I wonder if the Cubans who have to stand in line for the most basic necessities for hours in the hot Havana sun feel that this approach is helpful to them.’”
“Of course, nobody expects Cuba to be transformed overnight. But I believe that American engagement — through our embassy, our businesses, and most of all, through our people — is the best way to advance our interests and support for democracy and human rights. Time and again, America has demonstrated that part of our leadership in the world is our capacity to change. It’s what inspires the world to reach for something better.”
“A year ago, it might have seemed impossible that the United States would once again be raising our flag, the stars and stripes, over an embassy in Havana. This is what change looks like.”
“In January of 1961, the year I was born, when President Eisenhower announced the termination of our relations with Cuba, he said: It is my hope and my conviction that it is ‘in the not-too-distant future it will be possible for the historic friendship between us once again to find its reflection in normal relations of every sort.’ Well, it took a while, but I believe that time has come. And a better future lies ahead.”

The same day Secretary of State John Kerry from Vienna, Austria also discussed the plans, including his intent to travel to Havana for the opening of the embassy later this month. His statement included the following:

“Later this summer, as the President announced, I will travel to Cuba to personally take part in the formal reopening of our United States Embassy in Havana. This will mark the resumption of embassy operations after a period of 54 years. It will also be the first visit by a Secretary of State to Cuba since 1945. The reopening of our embassy . . . is an important step on the road to restoring fully normal relations between the United States and Cuba. Coming a quarter of a century after the end of the Cold War, it recognizes the reality of the changed circumstances, and it will serve to meet a number of practical needs.”
“The United States and Cuba continue to have sharp differences over democracy, human rights, and related issues, but we also have identified areas for cooperation that include law enforcement, safe transportation, emergency response, environmental protection, telecommunications, and migration. The resumption of full embassy activities will help us engage the Cuban Government more often and at a higher level, and it will also allow our diplomats to interact more frequently, and frankly more broadly and effectively, with the Cuban people. In addition, we will better be able to assist Americans who travel to the island nation in order to visit family members or for other purposes.”

In addition, the State Department conducted a special briefing by a senior official on this historic development. This individual said, “We’re confident that our embassy in Havana will be able to operate similar to other embassies operating in restrictive environments. We will be able to meet and exchange opinions with a variety of voices and views both within the government and outside. We’ll be able to engage a broad range of Cuban civil society and citizens.” The conditions for “access to diplomatic facilities, travel of diplomats, and the level of staffing . . . are acceptable for carrying out the core diplomatic functions necessary for implementing the President’s new policy direction on Cuba.” There were not any agreed “constrains or restrictions” on the exact types of programs or facilities that each of our embassies conducts.

According to the State Department spokesperson, there will be future discussions or negotiations with Cuba over human rights, telecommunications, health issues, fugitives, law enforcement, U.S. claims for property expropriation, Cuban claims for damages under the embargo and U.S. broadcasts to the island. Until there is a nomination and confirmation of an ambassador, Jeffrey DeLaurentis will be the charge d’affaires and will lead the embassy.

Also earlier the same day Cuba’s Foreign Ministry confirmed that the head of the US Interests Section in Cuba, Jeffrey DeLaurentis, had delivered to the Acting Foreign Minister, Marcelino Medina, a letter from President Obama to Army General Raul Castro confirming “the restoration of diplomatic relations and the opening of embassies in the respective countries” on or after July 20. Here is the text of that letter:

“I am pleased to confirm, after high-level talks between our two governments, and in accordance with international law and practice, that the United States of America and the Republic of Cuba decided to restore diplomatic relations and permanent diplomatic missions in our respective countries 20 July 2015. This is an important step forward in the normalization process, which started last December, with regard to relations between our two countries and peoples.”
“In making this decision, the United States are encouraged by the mutual intention to enter into friendly and cooperative relations between our two peoples and governments, consistent with the purposes and principles enshrined in the Charter of the United Nations, in particular those relating to equality sovereign states, the settlement of international disputes by peaceful means, respect for the territorial integrity and political independence of States, respect for the equal rights and self-determination of peoples, non-interference in internal affairs States as well as promoting and encouraging respect for human rights and fundamental freedoms for all.”
“The United States and Cuba are parties to the Vienna Convention on Diplomatic Relations, signed in Vienna on April 18, 1961, and the Vienna Convention on Consular Relations, signed in Vienna on April 24, 1963. I am pleased to confirm the understanding the United States that the above conventions apply to diplomatic and consular relations between our two countries.”

Although the U.S. can easily change the plaque on its building in Havana to one proclaiming that it is the Embassy of the United States of America, the State Department has said it needs $6.6 million to retrofit the building to make it suitable as an embassy. This may require a supplemental appropriation by Congress.

The U.S. will need an Ambassador to Cuba, and such an appointment needs to be confirmed by the U.S. Senate. In the meantime, as just noted, the U.S. has a capable career diplomat running the interests section, Jeffrey DeLaurentis, who will be in charge.

Reactions to the Announcement

The announcement of re-establishment of diplomatic relations drew widespread praise. Senator Jeff Flake (Rep., AZ) stated, “It’s long past time for U.S. policy toward Cuba to be associated with something other than five decades of failure. It is difficult to overstate the importance of resuming diplomatic relations ‎with Cuba, in furthering our own national interests, benefiting our relations in the region, and encouraging a positive future for the Cuban people. I am confident that this move will lead to increased travel and contact between U.S. citizens and everyday Cubans, to the benefit of both.” Senator Amy Klobuchar (Dem., MN), a co-sponsor of a bill to expand U.S. travel to Cuba and the author of a bill to lift the trade embargo, said, “This is the first step that must happen in order to lift the embargo.” Democratic Senators Patrick Leahy (VT) and Benjamin Cardin (MD) issued similar positive statements.

Engage Cuba, a bipartisan public policy organization dedicated to coalescing and mobilizing American businesses, non-profit groups and concerned citizens for the purpose of supporting the ongoing U.S.‐Cuba normalization process and enacting legislation to reform U.S. travel and trade restrictions with Cuba, issued a statement of support. It said, “We applaud this important step in bringing the U.S. and Cuba closer together, and urge Congress to hasten the day when American travelers and companies have the freedom to engage with one of our nearest neighbors. Opening embassies in Washington and Havana is an important step toward the day when Americans can make their own decisions on where they travel, and our businesses can compete with the rest of the world. We are making history by making it clear that America’s engagement isn’t a concession, it is a show of strength and the best way to promote our values and create opportunities for both Americans and the Cuban people.”

Moreover, said Engage Cuba, “A vast majority of the American people – and 97% of the Cuban people – support re-establishing diplomatic relations. Today is a great day for the American and Cuban people who seek a brighter future for their two countries. After 54 years of a failed Cold war policy, better days finally lie ahead.”

A similar supportive statement came from the Center for Democracy in the Americas (CDA), which is “devoted to changing U.S. policy toward the countries of the Americas by basing our relations on mutual respect, fostering dialogue with those governments and movements with which U.S. policy is at odds, and recognizing positive trends in democracy and governance” and which is a member of Engage Cuba. CDA stated, “”This is a moment we have been working toward for many years. The restoration of diplomatic relations between our countries is a major achievement that will help to heal decades of mistrust and will open opportunities for the U.S. and Cuba to collaborate on issues of mutual interest like immigration, environmental conservation, and regional trade. We applaud the tireless work of Cuban and U.S. diplomats, policymakers, academics, and activists who have helped make this possible. We are ready to work with all our allies to defend these positive steps initiated by President Obama and to move forward with removing the embargo once and for all.”

The day before this announcement, President Obama held a joint press conference at the White House with the visiting President of Brazil, Dilma Rousseff.[2] In his opening remarks, Obama said, “As President, I’ve pursued a new era of engagement with Latin America where our countries work together as equal partners, based on mutual interest and mutual respect. As we saw at the recent Summit of the Americas, the United States is more deeply engaged in the region than we’ve been in decades, and I believe the relationship between the United States and Latin America is as good as it’s ever been. We’re focused on the future — what we can accomplish together.”

After he had reviewed the many ways that Brazil and the U.S. cooperate, Obama commented, “And finally, we’re working together to uphold democracy and human rights across Latin America. I very much appreciate President Rousseff and Brazil’s strong support for our new opening toward Cuba. I updated Dilma on our progress, including our work to open embassies in Havana and Washington. And I believe that Brazil’s leadership in the region, as well as its own journey to democracy and a market economy can make it an important partner as we work to create more opportunities and prosperity for the Cuban people.”

In her response President Rousseff remarked about “the importance for Latin America of the recent decision made by President Obama and by President Raul Castro, even with the partnership with Pope Francis to the effect of opening up relations with — or resuming relations with Cuba, a very decisive milestone and point in time in U.S. relations with Latin America. It is really about putting an end to the lingering vestiges of the Cold War. And it ultimately elevates the level of the relations between the U.S. and the entire region. May I acknowledge the importance of that gesture to all of Latin America and also to world peace at large. It is an important example of relations to be followed.”

These thoughts were echoed in the subsequent Joint Communique by the two presidents: “President Rousseff praised President Obama’s policy changes towards Cuba, and the Leaders agreed that the latest Summit of the Americas (held in Panama, on April 10 and 11, 2015) demonstrated the region’s capacity to overcome the differences of the past through dialogue, thereby paving the way for the region as a whole to find solutions to the common challenges facing the countries of the Americas.”

As anticipated, however, Senator Marco Rubio (Rep., FL), a Cuban-American, immediately issued a press release condemning the agreement.[3] It said:

“Throughout this entire negotiation, as the Castro regime has stepped up its repression of the Cuban people, the Obama Administration has continued to look the other way and offer concession after concession. The administration’s reported plan to restore diplomatic relations is one such prized concession to the Castro regime. It remains unclear what, if anything, has been achieved since the President’s December 17th announcement in terms of securing the return of U.S. fugitives being harbored in Cuba, settling outstanding legal claims to U.S. citizens for properties confiscated by the regime, and in obtaining the unequivocal right of our diplomats to travel freely throughout Cuba and meet with any dissidents, and most importantly, securing greater political freedoms for the Cuban people. I intend to oppose the confirmation of an Ambassador to Cuba until these issues are addressed. It is time for our unilateral concessions to this odious regime to end.”

Conclusion

I am glad that my recent concern about the delay in announcing resumption of diplomatic relations has been alleviated. This is an important development in the reconciliation of our country with Cuba. Now all advocates for reconciliation need to notify their senators and representatives to oppose any of the measures put forward by Senator Rubio and others to try to block this important move.

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[1] This portion of the post is based upon the following: White House, Statement by the President on the Re-Establishment of Diplomatic Relations with Cuba (July 1, 2015); Letter from Barack Obama [to] Raúl Castro, Granma (July 1, 2015); Letters between Obama and Castro to restore diplomatic relations, el Pais (July 1, 2015); Kerry, Statement on Cuba (July 1, 2015); State Dep’t, Special Briefing on Re-Establishment of Diplomatic Relations with Cuba (July 1, 2015); Baker & Davis, U.S. and Cuba Reach an Agreement to Reopen Embassies, Officials Say, N.Y. Times (June 30, 2015); Schwartz, Córdoba & Lee, U.S., Cuba Reach Agreement to Establish Full Diplomatic Relations, W.S.J. (June 30, 2015); Center for Democracy in Americas, Press Release: CDA Applauds Announcement That U.S. And Cuba Will Reopen Embassies (June 30, 2015); Minister for Foreign Affairs will receive †he Head of †he Section of Interests of the United States, Granma (July 1, 2015); Ayuso, Cuba and the United States announced the reopening of embassies on Wednesday, El Pais (July 1, 2015); Flake, Re-Establishment of Diplomatic Relations with Cuba (June 30, 2015); Engage Cuba, Press Release: Statement from Engage Cuba on Announcement that U.S., and Cuban Embassies Will Re-open (July 1, 2015); Rubio, Rubio Comments On Obama Re-Establishing Diplomatic Relations With Cuba (July 1, 2015)

[2] This portion of the post is based upon the following: White House, Remarks by President Obama and President Rousseff of Brazil in Joint Press Conference (June 30, 2015); White House, Joint Communique by President Barack Obama and President Dilma Rousseff (June 30, 2015); Harris, Leader of Brazil Visits Amid Home Turbulence, N.Y. Times (June 30, 2015).

[3] Senator Rubio in a letter to Secretary Kerry in June “vowed to oppose the confirmation of any ambassador until issues like human rights, fugitive terrorists and billions of dollars of outstanding claims were resolved.” The Senator said it is “important that pro-democracy activities not be sacrificed in the name of ‘diplomacy’ just so that we can change the name of a building from ‘Interest Section’ to ‘Embassy,’ ” Similar negative press releases came from other Cuban-Americas in the Congress: Senator Robert Menendez (Dem., NJ) and Republican Representatives from Florida, Ileana Ros-Lehtinen and Mario Diaz-Balart.

President Obama Rescinds U.S. Designation of Cuba as a “State Sponsor of Terrorism”

On April 14^th President Barack Obama rescinded the U.S. designation of Cuba as a “State Sponsor of Terrorism” and so notified the Congress. This post will review that decision and its background. [1]

As discussed in a prior post, on December 17, 2014, President Obama asked Secretary of State John Kerry to undertake a review of whether the U.S. should rescind this designation while another post reviewed the statutory framework for this process: review and recommendation by the Department of State followed by a decision by the president and notification of such a decision to the Congress with such a decision to become effective 45 days after that notification. Yet another post set forth the reasons why this blogger believes that such past designations of Cuba have been unjustified, absurd, ridiculous.

State Department’s Recommendation

Secretary of State’s Press Statement.

On April 14, 2015, Secretary Kerry publicly announced that the State Department had recommended that the President rescind the designation of Cuba as a “State Sponsor of Terrorism.” His press release stated that last week the “Department submitted a report to the White House recommending, based on the facts and the statutory standard, that President Obama rescind Cuba’s designation as a State Sponsor of Terrorism.”

“This recommendation,” the Statement continued, “reflects the Department’s assessment that Cuba meets the criteria established by Congress for rescission . . . . whether Cuba provided any support for international terrorism during the previous six months, and whether Cuba has provided assurances that it will not support acts of international terrorism in the future.” This conclusion was based, in part, upon “corroborative assurances received from the Government of Cuba.”

Nevertheless, according to the Secretary’s statement, “the United States has had, and continues to have, significant concerns and disagreements with a wide range of Cuba’s policies and actions, [but] these concerns and disagreements fall outside of the criteria for designation as a State Sponsor of Terrorism.”

Department’s Background Briefing.

At a special briefing on April 14^th, a senior State Department official noted, “the Cubans have for a long time shown us many, many, many speeches by their leaders, both Fidel and Raul, in which they have rejected terrorism; many instances, in fact, of terrorist acts that they have decried publicly, I think the latest probably being the Charlie Hebdo incident in France. But certainly, there are lots of incidents that they can point to. And in terms of commitments for the future, they point to both statements by their leadership and ratifications of international treaties, and the assurances that they gave us.”

Another senior official stated, ”the assurances they provide were fairly wide-ranging and fairly high-level. . . . [T]hey addressed the key elements that we know in the past have been a factor. [T]hey also addressed the pledge or the assurances that they will no longer support acts of terrorism in the future.”

One of the officials in response to a journalist question said, “The statutes . . . provide that no rescission can be made if within 45 days after the receipt of the report from the President the Congress enacts a joint resolution on the issue prohibiting the rescission. The President, of course, can veto any such joint resolution and Congress then, of course, can further act to override the veto. . . . Congress has the right to act.”

President Obama’s Decision

That same day (April 14) a White House press release stated the President had “submitted to Congress the statutorily required report and certifications indicating the Administration’s intent to rescind Cuba’s State Sponsor of Terrorism designation.”

This presidential decision was based upon the previously mentioned State Department recommendation that was based on its “careful review of Cuba’s record, which was informed by the Intelligence Community, as well as assurances provided by the Cuban government.”

This press release also stated, “As the President has said, we will continue to have differences with the Cuban government, but our concerns over a wide range of Cuba’s policies and actions fall outside the criteria that is relevant to whether to rescind Cuba’s designation as a State Sponsor of Terrorism. That determination is based on the statutory standard – and the facts – and those facts have led the President to declare his intention to rescind Cuba’s State Sponsor of Terrorism designation. More broadly, the [U.S.] will continue to support our interests and values through engagement with the Cuban government and people.”

The actual presidential message to Congress was even shorter. It stated, “Pursuant to the Constitution and the laws of the United States, and consistent with section 6(j)(4)(B) of the Export Administration Act of 1979, Public Law 96-72, as amended (50 U.S.C. App. 2405(j)), and as continued in effect by Executive Order 13222 of August 17, 2001, I hereby certify, with respect to the rescission of the determination of March 1,
1982, regarding Cuba that:(i) the Government of Cuba has not provided any support for international terrorism during the preceding 6-month period; and

(ii) the Government of Cuba has provided assurances that it will not support acts of international terrorism in the future.

This certification shall also satisfy the provisions of section 620A(c)(2) of the Foreign Assistance Act of 1961, Public Law 87-195, as amended (22 U.S.C. 2371(c)), and section 40(f)(1)(B) of the Arms Export Control Act, PublicLaw 90-629, as amended (22 U.S.C. 2780(f)).”

Reactions to the Decision

Senators Patrick Leahy (Dem., VT), Dick Durbin (Dem., IL) and Benjamin Cardin (Dem., MD) were among those officials who offered immediate support of the decision. Geoff Thale of the Washington Office on Latin America, a private group that promotes democracy in the hemisphere, said: “Taking Cuba off the list of terrorist states is a sensible, and long-overdue step. Whatever U.S. and Cuban differences, the Cuban government has not been a supporter of terrorism. Taking Cuba off the list will remove an unnecessary irritant in the relationship, and perhaps allow us to discuss the real differences we do have in a more serious way. It should help pave the way for normal diplomatic relations.” The same sentiment came from another U.S. NGO focusing on Latin America, the Latin American Working Group.

Josefina Vidal, Cuba’s top diplomat for U.S. Affairs, endorsed the decision. She said, “The Cuban government recognizes the just decision taken by the President of the [U.S.] to eliminate Cuba from a list on which it never should have been included, especially considering that our country has been the victim of hundreds of acts of terrorism that have cost 3,478 lives and disabled 2,099 Cuban citizens. As the Cuban government has reiterated on multiple occasions, Cuba rejects and condemns all acts of terrorism in all their forms and manifestations, as well as any action that is intended to instigate, support, finance or conceal terrorist acts.”

Not surprisingly long time Cuban-American opponents of the U.S.-Cuba rapprochement criticized this decision: U.S. Senators Marco Rubio (Rep., FL) and Robert Menendez (Dem., NJ) and Representatives Ileana Ros-Lehtine (Rep., FL) and Mario Diaz-Balart (Rep., FL).

Rubio’s opposition undercuts his just-announced presidential campaign assertion that the “time has come for our generation to lead the way toward a new American Century.” In contrast, he said, “too many of our leaders and their ideas are stuck in the twentieth century. They are busy looking backward. . . . They look for solutions in yesterday.” Sorry, Senator Rubio, your ideas and solutions for U.S.-Cuba relations “are stuck in the twentieth century . . . in yesterday.” Stop looking backward!

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[1] This post is based upon the sources which are hyperlinked in this post along with the following: Archibold & Davis, Obama Endorses Removing Cuba From Terrorism List, N.Y. Times (April 14, 2015); Reuters, Obama Tells Congress He Plans to Remove Cuba From Terrorism List, N.Y. Times (April 14, 2015), Reuters, Cuba Gave U.S. Assurances It Will Not Support Terrorism in Future: U.S. Officials, N.Y. Times (April 14, 2015); Assoc. Press, Obama to Remove Cuba From State Sponsor of Terror List, N.Y. Times (April 14, 2015); DeJong, Obama removes Cuba from the list of state sponsors of terrorism, Wash. Post (April 14, 2015); Tharoor, After 33 years, the U.S. dropped its claim that Cuba sponsors terrorism. Here’s what it means, Wash. Post (Apr. 14, 2015); Barack Obama announces intent to remove Cuba from list of state sponsors of terrorism, Granma (April 14, 2015); Wash. Office on Latin America, Press Release: White House Announces Cuba’s Removal from ‘State Sponsors of Terror List (April 14, 2015); Latin American Working Group, Statement about Cuba’s removal from list (April 14, 2015); Assoc. Press, Cubans Hail Removal From US List of State Terrorism Sponsors, N.Y. Times (April 15, 2015). The actual State Department recommendation could not be found on the Internet, but when it is so available, another blog post will review that document

Is the International Criminal Court Flawed?

A July 8th New York Times headline proclaims, “Arab Uprisings Point Up Flaw in Global Court.” It erroneously suggests that the people operating the International Criminal Court are stupid or cowardly or that the diplomats who in 1998 drafted the ICC’s governing treaty, the ICC’s Rome Statute, were similarly stupid or cowardly.

The article starts with the facts that the ICC has not initiated an investigation of human rights abuses in Yemen and Syria. That is lamentable, but it is not due to a flaw in the operations of the ICC or the Rome Statute.

It is due instead to the limitations on the Court’s jurisdiction that were intentionally established in the drafting of the Rome Statute because of opposition of states like the U.S. that did not want the Court commencing investigations or criminal prosecutions against their citizens if the state did not ratify that Statute.

That Statute’s Article 12 provides, in part, that the Court has jurisdiction if certain crimes (genocide, crimes against humanity or war crimes) are committed on the territory of a state that is a party to the Rome Statute or by nationals of such a state. Neither Yemen nor Syria is such a party, as is true for all other states in the Mideast except Jordan. Thus, the Court does not have jurisdiction of such an investigation or prosecution under Article 12.

The Rome Statute’s Article 13(b) also provides jurisdiction for the Court if the U.N. Security Council, acting under Chapter VII of the U.N. Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression), refers a situation of suspected crimes of that nature to the ICC even if the state where the conduct occurred or whose nationals are involved had not ratified the Rome Statute. In fact, as the New York Times article points out, the Security Council has twice done so: Sudan (Darfur) and Libya.

However, as most people know, the U.N. Charter that was drafted in 1945 at the end of World War II grants in Article 27(3) a veto on any action by the Council to each of its five permanent members: the U.S., the United Kingdom, France, the Union of Soviet Socialist Republics [now Russia] and the Republic of China. The failure of the ICC to undertake any investigation of the Yemen situation is due to a threatened veto by the U.S. of such a referral.

With respect to Syria, the U.S. in June 2011 reportedly was seeking Russian and Chinese support for a Council referral of the situation to the Court, but that was obviously unsuccessful because no such proposal was actually advanced in the Council. In November 2011 four U.S. Senators (Dick Durbin, Benjamin Cardin, Robert Menendez and Barbara Boxer) sent a letter to the U.S. Ambassador to the U.N. (Susan Rice) asking for such a Security Council referral. They said, “The people of Syria deserve to know that the people of the United States understand their plight, stand behind them, and will work to bring justice to the country.” Security Council referral of Syria to the ICC also has been endorsed by the New York Times.

The next month (December 2011) the U.N. High Commissioner for Human Rights urged the Security Council to make such a referral. But nothing happened, again because of threatened vetoes by Russia and China.

If there is any “flaw” in this structure with respect to Yemen and Syria it is the veto right of the five permanent members of the Security Council. Although many, if not most, of the U.N. members that are not permanent Council members dislike the superior status and veto rights of the permanent Council members and voice various suggestions for reform of the Security Council, expert observers of the U.N. do not think that is at all likely in the near future.

In the meantime, 121 of the 192 U.N. members are now parties to the Rome Statute, and the Court’s governing body (its Assembly of States Parties) is working towards its goal of universal ratification of the Rome Statute. If and when that happened, the Court could initiate investigations and prosecutions with respect to all such parties without Security Council action.

Over the last 60-plus years the peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. The creation and operation of the International Criminal Court and other so-called ad hoc international criminal tribunals are important pieces of this effort. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further development, I am confident, will occur.