complementarity – dwkcommentaries

International Criminal Court: The U.S. and the ICC

We just reviewed the status of the investigative situations and cases of the International Criminal Court (ICC) and other ICC developments. Now we look at developments in U.S.-ICC relations.[1]

U.N. Security Council. On October 17, 2012, the U.N. Security Council had a general discussion on the promotion and strengthening of the rule of law in the maintenance of international peace and security with emphasis on the role of the ICC.

U.S. Ambassador to the U.N., Susan Rice, said at that meeting that “strengthening the global system of accountability for the worst atrocities remains an important priority for the [U.S.]. President Obama has emphasized that preventing mass atrocities and genocide is a core national security interest and core moral responsibility for our nation. We are committed to bringing pressure to bear against perpetrators of atrocities, ensuring accountability for crimes committed, and prioritizing the rule of law and transitional justice in our efforts to respond to conflict.”

Rice added that the U.S. “recognize[s] that the ICC can be an important tool for accountability. We have actively engaged with the ICC Prosecutor and Registrar to consider how we can support specific prosecutions already underway, and we’ve responded positively to informal requests for assistance. We will continue working with the ICC to identify practical ways to cooperate – particularly in areas such as information sharing and witness protection – on a case-by-case basis, as consistent with U.S. policy and law.”

Another important point for Rice was the need “to improve cooperation and communication between the Security Council and the Court. For example, the Council should monitor the developments in situations it refers to the Court, since the ICC may face dangers in conducting its work. However, we must also recognize that the ICC is an independent organization. This status raises concerns about proposals to cover its expenses with UN-assessed funding.” In addition, she said, the “interests of peace, security and international criminal justice are best served when the Security Council and the ICC operate within their own realms but work in ways that are mutually reinforcing. We should not accept the false choice between the interests of justice and the interests of peace.”

Assembly of States Parties. The U.S. continues to participate as an observer at meetings of the Court’s governing body, the Assembly of States Parties. At its November 2012 meeting, for example, major speeches were made by U.S. Ambassador-at-Large Stephen J. Rapp of the Department of State’s Office of Global Criminal Justice and Harold Koh, who then was U.S. Department of State Legal Advisor.

Ambassador Rapp said the U.S. had “worked diligently to promote an end to impunity” and had been “supporting the work of the ICC in each of its current cases.” He then outlined the following priorities for the Court and its supporters:

“First, it is essential that the fugitives who currently remain at large in the ICC’s cases are apprehended . . . and that the witnesses who testify and the victims who wish to participate in the proceedings are assured of their safety.” The U.S. uses “an array of tools to advance the causes of apprehension and witness protection.”
Second, “it is crucial that members of the international community continue to reinforce the legal norms and prohibitions that lead to the creation of institutions such as the ICC.” One example is the U.S. establishment of the Atrocities Prevention Board that was discussed in a prior post.
Third, “we must continue to strive to improve our system of international justice. . . . [The ICC needs] to build a solid jurisprudence, navigate challenges that arise in international cooperation, and establish legitimacy . . . as a fair and efficient criminal justice institution that makes prudent decisions in the cases it pursues, and those it declines to pursue.”
Fourth, “we all must continue to recognize that the ICC cannot and must not operate alone. States retain primacy, both legal and moral, in ensuring justice for grave crimes. Justice closer to the victims is always preferable, in a system that can account for local laws and custom, in a familiar language, and in an accessible setting. Even where the ICC does operate, tremendous work will remain to be done at the national level. . . . [The U.S.] looks forward to continuing to collaborate in promoting this crucial work.”[2]

Legal Advisor Koh said the Court was “an important forum” for advancing U.S. national security and humanitarian interests. It “can help increase stability and thus decrease the need for more costly military interventions in the future.”

Koh reviewed the five stages of the historical development of international criminal justice: (1) International Criminal Justice 1.0: The Nuremberg Trials that worked to establish the principles of legitimacy, professionalism, cooperation, and legality; (2) International Criminal Justice 2.0: The Ad Hoc Tribunals; (3) International Criminal Justice 3.0: The Hybrid Tribunals; (4) International Criminal Justice 4.0: The ICC; and (5) International Criminal Justice 5.0: The Future.

After reviewing the history of U.S. relations with the ICC, Koh discussed four important issues for the Court’s future. First, it needs to continue to develop the practice of positive complementarity so that the ICC is the court of last resort with fewer cases. Second, the ICC established important precedents with its first conviction (Lubanga of the DRC) and establishment of procedures and principles for reparations for victims in that case. Third, the ICC must build up its resources and capacities; it must function in a fair and transparent manner with able and unbiased prosecutors and judges; national judicial systems must be bolstered to reduce the ICC’s burdens; it must improve cooperation with states and enhance the efficiency and effectiveness of its prosecutions; and it should be cautious about moving forward with the amendment on the crime of aggression that was adopted at the Kampala Review Conference.

Koh concluded with more general comments about the future. He said the challenge is “to build the accountability agenda of the past seventy years into a sustained ‘Smart Power Approach’ to international criminal justice that sees accountability as part of a broader approach to diplomacy, development, rule of law, and atrocities prevention.”

New U.S. Statute To Assist ICC. On January 15th, President Obama signed The Department of State Rewards Program Update and Technical Corrections Act of 2012 (S.2318). The President said the new law “will enhance the ability of the U.S. Government to offer monetary rewards for information that leads to the arrest or conviction of foreign nationals accused by international criminal tribunals of atrocity-related crimes, and of individuals involved in transnational organized crime.” The President added, “This powerful new tool can be used to help bring to justice perpetrators of the worst crimes known to human kind. . . . We have made unmistakably clear that the United States is committed to seeing war criminals and other perpetrators of atrocities held accountable for their crimes, and today’s legislation can help us achieve that goal.

The new law declares “the sense of Congress that the rewards program of the Department of State should be expanded in order to … target other individuals indicted by international, hybrid or mixed tribunals for genocide, war crimes, or crimes against humanity.” It then goes on to authorize the State Department to pay rewards for “the transfer to or conviction by an international criminal tribunal … of any foreign national accused of war crimes, crimes against humanity, or genocide, as defined under the statute of such tribunal.”

Two provisions of the law show a continuing wariness about the ICC. One requires that 15 days before announcing a reward for the arrest of a particular foreign national accused of those crimes, the State Department must submit a report to Congress explaining why the arrest would be in the national security interest of the United States. The other declares that the law does not authorized activities precluded under the American Servicemembers’ Protection Act.

On April 3rd this new law was used when the U.S. offered to pay up to $5 million for information leading to the arrest, transfer or conviction of four ICC fugitives: Joseph Kony, Dominic Ongwen and Okot Odhiambo of the Lord’s Resistance Army in Uganda and Sylvestre Mudacumura of the Democratic Republic of the Congo. The names will be broadcast on radio and appear on reward posters printed in the languages of the fugitives’ countries, he said. “The offer of rewards for I.C.C. fugitives will be the biggest step we’ve taken toward engagement and support” for the court, Ambassador Rapp said.

[1] The website of the American Non-Governmental Coalition for the International Criminal Court (AMICC) has additional details about U.S. relations with the ICC, Congress and the ICC, U.S. law regarding the ICC, analysis and opinion about the U.S. and the ICC.

[2] As a prior post reported, Ambassador Rapp also addressed the Assembly on the subject of complementarity.

International Criminal Court: Other Developments

We just reviewed the current status of the investigative situations and cases of the International Criminal Court (ICC). [1] Now we look at two other major issues facing the ICC–Syria and Palestine, last year’s meeting of the Court’s Assembly of States Parties and the Chief Prosecutor’s statement about this month’s being genocide awareness month.

Syria. As we know from many news sources, popular demonstrations against Syrian President Bashar al-Assad commenced in March 2011 and immediately grew throughout the country. In April 2011, the Syrian Army was deployed to quell the uprising, and soldiers were ordered to open fire on demonstrators. After months of military sieges, the protests evolved into an armed rebellion. By January 2013 the U.N. estimated the war’s death toll had exceeded 60,000, and a month later this figure was updated to 70,000. Another 6,000 reportedly were killed in March 2013.

To respond to this horrible suffering, many have called for the ICC to become involved. One who has repeatedly done so is the U.N. High Commissioner for Human Rights, Navi Pillay. Here are some examples:

During a debate on Syria by the U.N. Human Rights Council in February 2012, she said she believed that the situation of Syria should be referred to the ICC by the U.N. Security Council.

On June 7, 2012, she said, “We continue to witness a serious deterioration of the human rights situation in Syria, which demands our full attention and engagement.” There is evidence of “a pattern of widespread or systematic attacks against civilian populations, and may amount to crimes against humanity and other international crimes. There are indications that the situation in Syria – at least in certain areas – amounts to an internal armed conflict. This would have legal implications, triggering the possibility of commission of war crimes, in addition to crimes against humanity. It makes the call I made to the Security Council to consider referring the case of Syria to the International Criminal Court even more urgent.”

At a February 13, 2013, Security Council meeting, she said, “The lack of consensus on Syria and the resulting inaction has been disastrous and civilians on all sides have paid the price. We will be judged against the tragedy that has unfolded before our eyes.” She said that referring Syria to the ICC could have a very significant preventive effect because it “would send a clear message to both the government and the opposition that there will be consequences for their actions”.

In January 2013, 58 countries signed a joint statement calling for such a referral. In response at least five Security Council members voiced support for same– France, Britain, Australia, Luxembourg and South Korea. The next month, February 2013, U.N. human rights investigator Carla del Ponte said the “time has come” for the Security Council to refer war crimes in Syria to the ICC for prosecution. Similar calls for referral have come from Amnesty International and Human Rights Watch.

The Syrian government obviously opposes such a referral. In January 2013 it said it “regrets the persistence of these countries [that signed the joint statement favoring referral] in following the wrong approach and refusing to recognize the duty of the Syrian state to protect its people from terrorism imposed from abroad.” The statement also accused some of the countries signing the statement of “deceit and double standards” in blaming Syria while financing, training and hosting “terrorists.”

Because Syria is not a state party to the ICC’s Rome Statute, the only way for the Syrian situation to get before the ICC is by a referral from the U.N. Security Council. But so far that has been impossible because Russia and China as permanent members of the Council would veto such a referral as they already have vetoed resolutions to impose sanctions on Syria.[2] For example, this past January the Russian Foreign Ministry said the joint request by over 50 countries for such a referral was “ill-timed and counterproductive to resolving the main task at this moment: an immediate end to the bloodshed in Syria.”

Palestine. In November 2012 the U.N. General Assembly, 138 to 9 with 41 abstentions, voted to grant non-member observer state status to the Palestinian Authority. Those voting “No” included Israel, U.S. and Canada. The abstainers included the U.K. and Germany.

Israel and the U.S. are concerned that the Palestinian Authority (PA) may use its new U.N. status to try a press for an ICC investigation of Israeli practices in the occupied territories. The PA could: (1) attempt to become a State Party at the ICC by ratifying the Rome Statute and then referring alleged crimes to the ICC; or (2) remain a non-State Party but make a declaration accepting the Court’s jurisdiction over a particular set of crimes.

In either option the PA would have to refer an entire situation or train of events to the ICC that would permit the ICC Prosecutor to investigate or prosecute any crime within that situation allegedly committed by anyone, including alleged crimes by Palestinians against Israelis.

The State Party option would require the PA to ratify the Rome Statute and then present a document certifying the ratification to the U.N. Secretary-General, who is responsible for administering the Rome Statute. He would have to decide whether the PA was a state competent to ratify. Should he so decide, the Prosecutor and the rest of the ICC would be obliged to proceed as with any other State Party.

In the non-State Party option of a declaration of acceptance of jurisdiction followed by a referral, the ICC Prosecutor would have to make the first decision on whether the PA was a state competent to make the referral. This decision could be challenged in the Pre-Trial Chamber by the PA, or by another state involved in the situation giving rise to the referral, such as Israel.

The PA has in fact already tried this option by submitting a report of alleged crimes and declaration of acceptance of jurisdiction to the ICC Prosecutor in 2009. In April 2012, however, the Prosecutor released a statement that at he was not empowered to decide on the PA’s statehood status. Instead, the Prosecutor said, a U.N. body such as the Security Council or the General Assembly, or the ICC’s Assembly of States Parties, would have to make this determination. After the General Assembly’s recent action, the press has reported that the current Prosecutor is giving the earlier PA declaration further consideration.

Assembly of States Parties. Last November the Assembly of States Parties (ASP) held its 11th session and adopted a budget and made certain elections.

The ASP approved an amendment to the Court’s Rules of Procedure (new Rule 132 bis) that will permit a single judge to perform the functions of a Trial Chamber for the purposes of trial preparation. The amendment was agreed by consensus and is expected to expedite ICC trial preparation.

The ASP also had a general discussion of complementarity, i.e., the principle and practice of the ICC’s deferring to criminal prosecutions in national court systems. Helen Clark, the former prime minister of New Zealand and current administrator of the U.N. Development Program, spoke about the role international development agencies, such as UNDP and others, can contribute to domestic capacity for dealing with ICC crimes. She also urged governments to take responsibility to deliver justice.

U.S. Ambassador-at-Large for Criminal Justice, Stephen J. Rapp, congratulated the ASP for this crucial discussion on both the policy and practice of complementarity. He stressed the importance to governments – States Parties and non-States Parties alike – to strengthen domestic judicial capacity in a manner that is both concerted and coordinated. He also said the U.S. supports ICC prosecutions and building national justice systems by funding support of complementarity; using the tools of diplomacy to support complementarity; providing technical and legal assistance to national systems; and improving fugitive tracking efforts.

There also was discussion about an initiative to adopt a treaty on crimes against humanity that has been prepared by the Whitney R. Harris World Law Institute at the Washington University in St. Louis School of Law.

Genocide Awareness Statement by Prosecutor. In light of this April’s being genocide awareness month, the Court’s Chief Prosecutor called on “all States, whether parties to the Rome Statute or not, to cooperate with the ICC in seeking/pursuing accountability for genocide.” In particular, this meant enforcing the ICC’s warrant for the arrest of Sudanese President Omar al Bashir, who is charged with “genocide by killing, causing serious bodily injury or mental harm and by deliberating inflicting conditions of life calculated to bring about the physical destruction of the Fur, Masalit and Zaghawa ethnic groups in Darfur.”

[1] Many posts have covered the ICC.

[2] Some prior posts have discussed possible ICC consideration of the Syrian situation (here and here).