Genocide – Page 2 – dwkcommentaries

United States Ratification of the Genocide Convention

On December 11, 1946, the United Nations General Assembly in its first session unanimously adopted a resolution affirming that “genocide is a crime under international law which the civilized world condemns” and requesting the U.N. Economic and Social Council “to undertake the necessary studies, with a view to drawing up a draft convention [treaty] on the crime of genocide.”

Thereafter that Council established a U.N. Committee on Genocide to prepare a draft of such a treaty. The draft that subsequently was approved by that Committee and other U.N. agencies had been prepared at the U.S. Department of State by a U.S. diplomat, John Maktos, who also served as the Chair of the U.N. Committee.

On December 9, 1948, by unanimous action of the U.N. General Assembly that draft was adopted as the Genocide Convention. Two days later (December 11th) President Harry Truman signed the treaty on behalf of the United States.

Six months later (June 16, 1949) President Truman transmitted the treaty to the U.S. Senate and requested its advice and consent to ratification. In his transmittal message, President Truman said the General Assembly’s approval of the treaty was “one of the important achievements” of its first session and that the U.S. had played “a leading part” in that accomplishment. The Senate’s approval would demonstrate that the U.S. was “prepared to take effective action on its part to contribute to the establishment of principles of law and justice.”

Such Senate action, however, did not happen until early 1986, and it was not ratified by the U.S. until late 1988 or nearly 40 years after its adoption by the U.N. General Assembly and its signature by the U.S.[1]

Here are some of the highlights or lowlights of the Genocide Convention’s journey to U.S. ratification.

In January and February of 1950 a subcommittee of the Senate Foreign Relations Committee held hearings on the treaty and favorably reported it to the full Committee in May 1950. The full Committee, however, took no action on the treaty, and it did not reach the Senate floor. For the next 20 years the treaty apparently gathered dust in the files of the Foreign Relations Committee.

That changed on February 19, 1970, when President Richard Nixon reiterated a presidential request for Senate advice and consent to ratification. His message to the Senate stated that the U.S. had “played a leading role in the negotiation” of the treaty and that “ratification at this time . . . would be in the national interest” of the U.S. and would demonstrate “our country’s desire to participate in the building of international order based on law and justice.”

In response to President Nixon’s request, the Senate Foreign Relations Committee in 1970 held hearings on the treaty and favorably reported the treaty to the entire Senate. The latter, however, took no action.

The Foreign Relations Committee did the same in 1971, 1973, 1976 and 1978, but it was not until February 19, 1986, that the Senate voted, 83 to 11, to give its advice and consent to such ratification.[2] It did so with two reservations that required specific U.S. consent for the submission of any dispute involving the treaty to the International Court of Justice and that stated the supremacy of the U.S. Constitution over any of the treaty’s provisions. The Senate also imposed five understandings limiting the meaning of certain parts of the treaty. Finally the Senate declared that the instrument of U.S. ratification could not be deposited until after the U.S. adopted implementing legislation required by Article V of the treaty.[3]

That implementing legislation was adopted on November 4, 1988, with President Ronald Reagan’s signature of the Genocide Implementation Act of 1987, 18 U.S.C. § 1091. That statue makes genocide a crime for offenses committed within the U.S. or by U.S. nationals. The statute imposes punishment of life imprisonment and a fine of not more than $1 million or both for genocide by killing; imprisonment up to 20 years or a fine of not more than $1 million or both for other acts of genocide; and imprisonment up to five years or a fine up to $500,000 or both for incitement of genocide. There is no statute of limitations for these crimes.

When President Reagan signed the statute, he made a public statement that by this signing the U.S. would “bear witness to the past and learn from its awful example, and to make sure that we’re not condemned to relive its crimes. . . . During the Second World War, mankind witnessed the most heinous of crimes: the Holocaust.” Reagan added that he was “delighted to fulfill the promise made by Harry Truman to all the peoples of the world, and especially the Jewish people. I remember what the Holocaust meant to me as I watched the films of the death camps after the Nazi defeat in World War II. Slavs, Gypsies, and others died in the fires, as well. And we’ve seen other horrors this century — in the Ukraine, in Cambodia, in Ethiopia. They only renew our rage and righteous fury, and make this moment all the more significant for me and all Americans.”

Reagan concluded by saying that the “timing of the enactment is particularly fitting, for we’re commemorating a week of remembrance of the Kristallnacht, the infamous ‘night of broken glass,’ which occurred 50 years ago on November 9, 1938. That night, Nazis in Germany and Austria conducted a pogrom against the Jewish people. By the morning of November 10th, scores of Jews were dead, hundreds bleeding, shops and homes in ruins, and synagogues defiled and debased. And that was the night that began the Holocaust, the night that should have alerted the world of the gruesome design of the Final Solution.”

On November 25, 1988 (three weeks after the adoption of that federal statute), President Ronald Reagan deposited notice of U.S. ratification with the U.N. Secretary-General. This constitutes the actual act of ratification.[4]

The 40 year delay between U.S. signing and ratification apparently was the result of many factors. Many Senators were hostile to approving any treaty that might be deemed to infringe on U.S. sovereignty. Some were concerned, especially during the Korean War and the Vietnam War, that U.S. officials might come under frivolous accusations of genocide. Others worried that if the U.S. ratified, it would be obligated to send military forces to distant countries to enforce it. Others felt the Convention’s definition of genocide was unclear. The American Bar Association opposed it through 1977. Some Southern Senators were concerned that genocide charges might result from the region’s history of segregation, lynching, and Ku Klux Klan activities. In addition, although the treaty was not retroactive, some feared it would be used to define the nineteenth century U.S. treatment of Native Americans as genocide.[5]

The Genocide Convention went into force on January 12, 1951, after 20 states had ratified or acceded to the treaty. Today 142 states are parties thereto.

This tale of the belated U.S. ratification of an important multilateral human rights treaty shows the complexity of the negotiation and adoption of such treaties and of their ratification by the U.S. There is a similar history of the U.S. ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[1] See David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Fran Newman, International Human Rights: Law, Policy, and Process at 139-40 (4th ed. LexisNexis 2009).

[2] In January and February 1974 the Senate debated the treaty, but there were insufficient votes to stop debate and proceed to vote on the treaty itself.

[3] I have not had the opportunity to research the original historical record regarding the U.S. and this treaty during these years. I ask anyone who has knowledge of the details of this record, to share that knowledge with a comment to this post.

[4] In accordance with Article 20 of the Vienna Convention on the Law of Treaties, 12 states thereafter objected to or commented unfavorably on the U.S. reservation regarding the supremacy of the U.S. Constitution while three states objected to the U.S. reservation regarding submission of disputes to the International Court of Justice.

[5] Perhaps a more complete analysis of the historical record on the ratification of this treaty can be found in Lawrence LeBlanc, The United States and the Genocide Convention (Durham, NC; Duke Univ. Press 1991). Again I ask anyone who has knowledge of the details of this record, to share that knowledge with a comment to this post.

Minneapolis and St. Paul Declare the U.S.-Dakota War of 1862 “Genocide”

The Minnesota Twin Cities of Minneapolis and St. Paul recently adopted resolutions declaring that the U.S.-Dakota War of 1862 was “genocide.”[1]

Minneapolis did so on December 14, 2012. Unanimously introduced and adopted, the City Council’s resolution commenced by stating that the War “led to the mass execution of 38 Dakota, the largest in the history of the United States, and the genocide of the Dakota people.” The resolution also said, “Indigenous women, children and elderly were held in a concentration camp at the base of Fort Snelling, separated from the men, before being exiled to reservations in neighboring states and Canada, and later being stripped of their culture and traditions in boarding schools and subjected to white culture and religions.”

With these factual predicates, the Minneapolis resolution declared that:

“every effort must be made to ensure that the Dakota perspective is presented during the year 2012-2013, through discussions at forums, events, symposia, conferences and workshops, to include the complex issues listed above;”

“the City of Minneapolis works to promote the well-being and growth of the American Indian community, including Dakota People;”

“these efforts during the years 2012 and 2013 will mark the beginning of future dialogues and efforts to rectify the wrongs that were perpetrated during, and since, the year 1862, a tragic and traumatic event for the Dakota People of Minnesota;” and

“the year 2012-2013 is hereby designated “The Year of the Dakota: Remembering, Honoring, and Truth-Telling,” from December 26, 2012 to December 26, 2013.”

St. Paul joined its sister city on January 9, 2013, with a nearly identical resolution by its city council. It labeled the War as the start of “the genocide of the Dakota people” that included holding them after the war “in a concentration camp at the base of Fort Snelling.” This resolution declared 2013 as “the Year of the Dakota.

In addition, the St. Paul resolution directed “the City of Saint Paul and its Parks and Recreation Department . . . [to] work with the Dakota Bdote Restoration Consortium to identify, name, and interpret sacred Native American sites at and nearby the sacred Bdote from the confluence of the Mississippi and Minnesota rivers to Mounds Park; including listing, mapping, identifying Dakota site names in the Great River Passage Plan, and participating in on-going collaborative research to further describe, dually name, publicize, and interpret significant Dakota sites in the Great River Passage Park Implementation;”

Afterwards these resolutions were praised by some. Chris Mato Nunpa, a retired professor and Dakota advocate from Granite Falls, said, “What I regard as significant and important is that key terms were used … I really am elated and excited I have lived long enough to see something like this happen here.”

Others were critical of calling the War “genocide” of the Dakota people. State Representative Dean Urdahl, a longtime history teacher whose ancestors were involved in the war and who has introduced resolutions urging Congress to repeal the Dakota Exclusion Act, said he did not think “the terms genocide and concentration camp accurately portray what it was without further explanation. Horrible things happened, but it wasn’t completely one-sided.”

Comments

Although I am sympathetic to the intent of these resolutions, it has to be noted that in 1862 “genocide” was not a concept or a defined crime in U.S. or international law.

The word itself was created in 1944 by Raphael Lemkin, a Polish lawyer, in his work Axis Rule in Occupied Europe. It became a legal concept after World War II with the 1948 adoption of the Convention on the Prevention and Punishment of the Crime of Genocide. Thus, there never has been, and never could have been, any official adjudication with the attendant due process protections that any individuals or governmental agencies in 1862 were guilty of the crime of genocide.

If that Convention or treaty had been in effect in 1862, then there are several candidates for prosecution for such a crime.

First, as already mentioned in an earlier post, then Minnesota Governor Alexander Ramsey in a public speech to the Minnesota Legislature in September 1862 proclaimed: “The Sioux Indians of Minnesota must be exterminated or driven forever beyond the borders of the State. . . . They must be regarded and treated as outlaws. If any shall escape extinction, the wretched remnant must be driven beyond our borders and our frontier garrisoned with a force sufficient to forever prevent their return.” (Emphasis added.)

Today this statement would be a crime under Article III (c) of the Genocide Convention as a “[d]irect and public incitement to commit genocide,” which is defined, in part, in Article II (a) of that treaty as “killing members of [an ethnical or racial] group” with “intent to destroy, in whole or in part, [the group].”

Second, as discussed in another prior post, during the War, U.S. General John Pope, who was in charge of ending the uprising, said his purpose was “to utterly exterminate the Sioux [Dakota]. They are to be treated as maniacs and wild beasts.” (Emphasis added.) The next year the federal government offered a bounty of $25 per scalp for every Dakota Indian found in Minnesota.

This statement and action would be a basis for charges of the crime of “incitement to commit genocide” against General Pope and the U.S. federal government albeit only human beings, not legal entities, are subject to criminal liability under this treaty.

Third, other possible hypothetical charges under Article III of this treaty would be against individuals (conceivably both white and Dakota people) for acts of “genocide,” “conspiracy to commit genocide,” “complicity in genocide” and “attempt[s] to commit genocide.” For this broader purpose, “genocide” is defined, in part, in Article II of that treaty as committing any of the following acts with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group:”

(a) “Killing members of the group;”
(b) “Causing serious bodily or mental harm to members of the group;”
(c) “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”

The key issue in any such hypothetical case would be whether the individuals acted with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” (Emphasis added.)

[1] This account of the two resolutions is based upon the following: Melo, St. Paul City Council commemorates U.S.-Dakota War of 1862, Pioneer Press (Jan. 9, 2013); Duchschere, St. Paul follows Minneapolis in labeling U.S.-Dakota War as ‘genocide,’ StarTribune (Jan. 10, 2013); Steinmann, Year of the Dakota Resolution passed in St. Paul, denouncing genocide, Daily Planet (Jan. 10, 2013).

Personal Reflections on the U.S.-Dakota War of 1862

When I moved to Minnesota at age 30 in 1970, I had no knowledge of the U.S.-Dakota War of 1862 or the execution by hanging of some of the Indian leaders of that war. I had not grown up in the State and had not been exposed to its history, and although I had majored in history in college and had studied U.S. history, the War was not covered.

By the time I went to church on October 7, 2012, I was aware that during the U.S. Civil War there had been a short war with the Indians in Minnesota and that subsequently some of the Indian leaders were hanged in Mankato, Minnesota. That was the sum total of my knowledge of these events.

The moving worship service that day at Minneapolis’ Westminster Presbyterian Church was devoted to remembering that War and its aftermath, especially its impact on the Dakota people. The beautiful Indian music and the sermons by Westminster’s Senior Minister, Rev. Dr. Timothy Hart-Andersen, and by Jim Bear Jacobs made me realize that the War and the executions of the Indian leaders were important events that had lasting effects to this day at least upon the Dakota people and Native Americans more generally.

I immediately wanted to share this moving and beautiful worship service with others by writing a blog post about it. I soon realized that there was so much to say about the service itself that I would have to break it up into three posts. I also realized that I needed to know more about the War and about the commemoration this year of the 150^th anniversary of the War. This lead to my researching and writing separate posts on these subjects and another about the contemporaneous reaction to the War by my second great-grandfather, Rev. Charles E. Brown.

The additional research turned up the September 1862 exhortation by Minnesota Governor Alexander Ramsey for “extermination” of the Dakota Indians. The same disgusting clamor also was made that year by U.S. General John Pope, who was in charge of ending the uprising. Pope said his purpose was “to utterly exterminate the Sioux [Dakota]. They are to be treated as maniacs and wild beasts.” The next year the federal government offered a bounty of $25 per scalp for every Dakota Indian found in Minnesota.

The evident anger and fear of the white settlers perhaps are akin to that experienced by the American people after the attacks of September 11, 2001. Nevertheless, as noted in a prior post, these public incitements, if made today, would constitute one form of the crime of genocide under international law.

The impact of the War on Native Americans is only one of the many ways in which what has become the dominant culture of the U.S. has denigrated Native Americans. The result is high incidences of public school drop-outs, alcoholism and suicide among Native Americans. All of this reminded me of the testimony in the Minneapolis school desegregation case by a Native American educator who said he was a “well-balanced schizophrenic,” i.e., he had one foot in Native culture and the other in the dominant culture.

Another insight into Native culture was provided by my recent reading of Louise Erdrich’s The Round House, which was awarded the 2012 National Book Prize for fiction. One of the central events in the novel is the violent rape of a Native woman by a white man on an Indian reservation in North Dakota in 1988, and the resulting legal problem as to whether the federal or Native American courts had jurisdiction to investigate and prosecute the crime.

In an Afterword, Erdrich, who lives in Minneapolis not far from my home, cites a 2009 Amnesty International report that points out that 1 in 3 Native women will be raped in her lifetime, that 86% of such rapes and sexual assaults are by non-Native men and that few are ever prosecuted.

The novel also discusses something I never learned in law school or in 35 years of practicing law. In Johnson v. McIntosh, 21 U.S. 543 (1823), the U.S. Supreme Court, in an opinion by Chief Justice John Marshall, stated that radical title to U.S. land was obtained by European powers upon their “discovery” of the land and that the U.S. government inherited such title upon the adoption of the Declaration of Independence in 1776. In this context, “tribes of Indians inhabiting this country were fierce savages.”

Two other U.S. Supreme Court cases were also mentioned in the novel as bearing on the jurisdictional issue presented by the fictional rape. In Worcester v. Georgia, 31 U.S. 515 (1832), Chief Justice John Marshall for the Court decided that the federal government had the sole right of dealing with the Indian nations in North America. Nearly 1.5 centuries later the Supreme Court in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), determined that Indian tribal courts did not have inherent criminal jurisdiction to try and to punish non-Indians and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.

This research, thinking and writing prompted further reflection on the subject of memory and the October 7^th Scripture—Numbers 15: 37-41:

“The Lord said to Moses: Speak to the Israelites, and tell them to make fringes on the corners of their garments throughout their generations and to put a blue cord on the fringe at each corner. You have the fringe so that, when you see it, you will remember all the commandments of the Lord and do them, and not follow the lust of your own heart and your own eyes. So you shall remember and do all my commandments, and you shall be holy to your God. I am the Lord your God, who brought you out of the land of Egypt, to be your God: I am the Lord your God.”

God understands that we humans are forgetful and that individuals and especially groups of people need reminders of important things. Indeed, constant, physical reminders like fringes on the corners of your garments are useful because of our forgetfulness and our sinfulness. Similarly many Christians wear necklaces and pins with crosses for the same reason and to proclaim that they are Christians.

Such practices and the re-telling of important stories also help educate the omnipresent newcomers to the faith or the history. They help to keep the faith or history alive. That certainly happened at the October 7^th worship service and at the Minnesota History Center’s exhibit about the War and the other events to commemorate the 150^th anniversary of the War.

For the same reasons the various ways in which Salvadoran Archbishop Oscar Romero is remembered are important. So too the Holocaust museums in Washington, D.C. and around the world help us remember the horrors of the Nazi persecution of the Jews.

At the same time, my reaction to the October 7^th Westminster worship service suggests another phenomenon. Memory can be asymmetrical. Most white Anglo-Saxons like myself have or had no memory or understanding of the U.S.-Dakota War. For the Dakota people and Native Americans generally, on the other hand, the War and the executions of the Dakota 38 is an ever-present, painful memory. Thus, this worship service and the events commemorating the War are especially important ways of trying to break through the ignorance of the dominant culture.[1]

My reactions to this worship service also help me understand that the third-part of the Westminster worship service—Responding to the Word—does not end when you leave the sanctuary after the service. It should continue in how you live your life and how you continue to think about and probe the meaning of the Word that day. My contemplation of this worship service and the Word will continue beyond this posting.

[1] A recent article discussed this asymmetrical phenomenon in the context of an individual’s new love for another person. It said that human beings are prone to “hedonic adaptation, a measurable and innate capacity to become habituated or inured to most life changes” and that “[h]edonic adaptation is most likely when positive experiences are involved . . . . We’re inclined–psychologically and physiologically–to take positive experiences for granted.”

Should the International Criminal Court Indict George W. Bush and Tony Blair over Iraq?

On September 2nd Desmond Tutu, a Nobel Peace Prize Laureate and the retired South African Anglican Archbishop, said, “The immorality of the United States and Great Britain’s decision to invade Iraq in 2003, premised on the lie that Iraq possessed weapons of mass destruction, has destabilized [sic] and polarised [sic] the world to a greater extent than any other conflict in history.” Therefore, Tutu continued, “In a consistent world, those responsible for this suffering and loss of life [George W. Bush and Tony Blair] should be treading the same path as some of their African and Asian peers who have been made to answer for their actions [at the International Criminal Court] in the Hague.”

These remarks in London’s Observer newspaper followed Tutu’s withdrawal last week as a speaker at a conference in South Africa because Tony Blair was also to be a conference speaker.

Tony Blair immediately responded to Tutu’s comments. Blair said, Tutu had repeated “the old canard that we lied about the intelligence [on Iraq] is completely wrong as every single independent analysis of the evidence has shown.” In addition, according to Blair, “to say [as Tutu had] that the fact that Saddam massacred hundreds of thousands of his citizens is irrelevant to the morality of removing him is bizarre.” Finally Blair claimed that “despite the problems, Iraq today has an economy three times or more in size with child mortality rate cut by a third of what it was.”

However morally appropriate Tutu was on his criticism of the decision to start the Iraq war, his call for ICC prosecution of Bush and Blair is not legally well founded.

That was the legal conclusion on February 9, 2006, by the ICC’s Office of the Prosecutor in response to many communications expressing concern regarding the launching of military operations and the resulting human loss. This conclusion was documented in a detailed memorandum by the ICC Prosecutor that set forth the following reasons:

The ICC did not have jurisdiction over any actions by Iraqi or U.S. citizens because Iraq and the U.S. were not States Parties to the Court’s Rome Statute.
Although the Court had jurisdiction over the crime of “aggression” under the Statute’s Article 5, that crime had not yet been defined and thus could not be a basis for any charges.[1]
Although there was information indicating war crimes of intentional killing and inhuman treatment had been committed, the information did not suggest that they were “part of a plan or policy or as part of a large-scale commission of such crimes” as required by Article 8 of the Statute.
There was no information that the Coalition forces had an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”, as required in the Statute’s definition of the crime of genocide (Article 6).
There was no information of “a widespread or systematic attack directed against any civilian population” as required in the Statute’s definition of crimes against humanity (Article 7).

Therefore, the Office of the Prosecutor stated the statutory requirements for initiating a formal investigation of the situation in Iraq had not been satisfied.[2]

[1] As discussed in a prior post, a definition of the crime of aggression was agreed to at the Court’s June 2010 Kampala Review Conference, but its actual use by the Court will not happen until after January 1, 2017 and only if there is a two-thirds vote of approval of the amendment by the Court’s Assembly of States Parties and ratification of the amendment by at least 30 States Parties.

[2] There are many posts about the ICC on this blog. To find them, just click on “International Criminal Court” in the tag cloud to the right of this post.

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.

U.S. Establishes Atrocities Prevention Board

On April 23, 2012, President Obama formally established the U.S. Atrocities Prevention Board (APB), a standing, inter-agency body responsible for coordinating policy on preventing mass atrocities and responding to genocide, war crimes and crimes against humanity.

The President announced that the APB will help the U.S. government identify and address atrocity threats, and it will oversee institutional changes that will make the U.S. more nimble and effective on these issues. The intelligence community will collect and analyze information that allows the U.S. to improve its anticipation, understanding, and counters to atrocity threats. U.S. diplomats will encourage more robust multilateral efforts to prevent and respond to atrocities. The U.S. military and civilian workforce will be better equipped to prevent and respond to atrocities.

The APB also will promote new kinds of targeted sanctions; denial of entry to the U.S. of perpetrators of serious violations of human rights or humanitarian law or other atrocities; “surging” of specialized expertise in civilian protection on a rapid response basis in crisis situations; and blocking the flow of money to abusive regimes. In addition, the APB will monitor agencies’ compilation of after-action “lessons-learned” reports to record key innovations, areas of success, and issues requiring future work in the area of atrocity prevention and response. The USAID will award grants for innovative technologies that strengthen the U.S. government’s capacity for early warning, prevention, and response with respect to mass atrocities.

This presidential statement further announced efforts to hold accountable perpetrators of mass atrocities and genocide by strengthening the U.S. ability to prosecute perpetrators of atrocities found in the U.S. and to use immigration laws and immigration-fraud penalties to hold accountable perpetrators of mass atrocities.

In addition, the U.S. will support national, hybrid, and international mechanisms (including, among other things, commissions of inquiry, fact-finding missions, and tribunals) that seek to hold accountable perpetrators of atrocities when doing so advances U.S. interests and values, consistent with the requirements of U.S. law. This will include witness protection measures and technical assistance in connection with foreign and international prosecutions. The Administration will seek additional statutory authority to make reward payments for information that leads to the arrest of foreign nationals indicted for war crimes, crimes against humanity, or genocide by international, hybrid, or mixed criminal tribunals.

As the ad hoc international criminal tribunals and hybrid courts are nearing the end of their lives and as the permanent International Criminal Court (ICC) has jurisdiction over the crime of genocide, crimes against humanity and war crimes, the APB has let it be known that it will be continuing the Obama Administration’s policy of positive engagement with the ICC by assisting the ICC in accordance with this presidential statement.

The Chair of the APB is Samantha Power, the U.S. National Security Council Senior Director for Multilateral Affairs and Human Rights and the Pulitzer Prize-winning author of A Problem from Hell, a study of the U.S. foreign-policy response to genocide. Other APB members are senior officials from the Departments of State, Defense, Justice, and Homeland Security, and government entities such as the U.S. Agency for International Development, the U.S. Mission to the United Nations, the Office of the Director of National Intelligence, the Central Intelligence Agency, and the Office of the Vice President. U.S. Ambassador-at-Large for Global Criminal Justice Stephen Rapp will also work closely with the APB.

The APB met for the first time on April 23rs at the White House. This was followed by panel presentations by experts and government officials, as well as interactions with civil society. Earlier in the day at the U.S. Holocaust Museum, President Obama said that the work of the APB, the first of its kind, is “not an afterthought,” and that preventing atrocity crimes “is not a sideline in our foreign policy.”

The APB owes its genesis to an August 2011 Presidential Study Directive declaring that “[p]reventing mass atrocities and genocide is a core national security interest and a core moral responsibility” of the U.S. Therefore, the Directive called for the establishment of the APB “to coordinate a whole of government approach to preventing mass atrocities and genocide.” The objectives of such a board were to “ensure: (1) that our national security apparatus recognizes and is responsive to early indicators of potential atrocities; (2) that departments and agencies develop and implement comprehensive atrocity prevention and response strategies in a manner that allows ‘red flags’ and dissent to be raised to decision makers; (3) that we increase the capacity and develop doctrine for our foreign service, armed services, development professionals, and other actors to engage in the full spectrum of smart prevention activities; and (4) that we are optimally positioned to work with our allies in order to ensure that the burdens of atrocity prevention and response are appropriately shared.”

International Criminal Justice: Winding Down Two Ad-Hoc Criminal Tribunals

We have seen that two of the institutions of international criminal justice are the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY). They are both so-called ad hoc tribunals that were created by the U.N. Security Council.[1]

Both were created with the clear expectation that they would not be permanent institutions. Instead, they had set terms of existence that have had to be extended. Those termination dates are now July 1, 2012 (ICTR) and July 1, 2013 (ICTY). To cope with their anticipated unfinished business when they cease to exist, the Security Council created another institution with the awkward title of the International Residual Mechanism for Criminal Tribunals (IRMCT).[2]

On June 6, 2011, the Security Council heard from the ICTR and ICTY on the status of their efforts to complete their work by the above dates. Despite their diligent efforts, both tribunals face difficulties in meeting the deadlines.[3]

One problem is the recent arrests of defendants (Mladic for ICTY and Munyagishari for ICTR) and the resulting preparations for, and conducting, their trials.

Another problem for both tribunals is the departure of professional staff members who understandably are seeking new jobs with ongoing institutions, rather than be left standing on a sinking ship. One solution to this problem that was suggested at the recent Security Council meeting was paying retention bonuses to those who stay until the tribunals are terminated. Good idea, but what is the source of the funds to pay such bonuses? The tribunals are paid for by the Security Council, which always has difficulties in obtaining funds for its budget.

One way to help get their work done by their end dates is to refer as many remaining cases as possible to national courts. Both tribunals are doing so.

These inherent administrative difficulties that are associated with ending the ad hoc tribunals are one set of reasons for the establishment of the permanent International Criminal Court. Since it is a permanent body, it will not experience these problems.[4] In addition, unlike the ad hoc tribunals, the ICC, once established, is able to take on current problems like Libya.[5]

All three of these institutions, however, share the difficult challenge of trying to shorten the time required for trials. Given the nature of the crimes within the jurisdiction of these bodies, this is not easy. For example, the ICC has jurisdiction over defined “war crimes,” which require proof of certain acts when “committed as part of a plan or policy or as part of a large-scale commission of such crimes.” Such proof is not simple.[6]

Thus, the recent Security Council meeting included discussion of the need for the ICTR and ICTY to have greater judicial efficiency while still providing due process to the defendants. The tribunals’ representatives talked about the recent introduction of electronic filing, amendments to their rules of procedure and evidence and improved case management techniques, limiting amendments to the grounds for appeal, organization of judgment drafting and prioritization of work. There were no details of these efforts provided at the Security Council meeting, but although they sound good, they seem an inadequate response to me. More promising were suggestions on this subject from one of the ICC judges:

Have court-appointed experts present reports regarding context, background, general circumstances of alleged offenses and peripheral facts.

Use depositions for less central areas of evidence.

Increase use of video links to hear some witnesses.

Require parties for each witness to identify areas of undisputed and of disputed testimony.

Amend the Rome Statute to allow a single judge to hear some parts of trial instead of the three judges now required for all aspects of a trial.

Examine whether the ICC is efficiently operating and using its funds.

Develop expedited procedures for interlocutory appeals.[7]

Another problem was presented by the ICTR. It continues to face difficulties in relocating acquitted defendants and convicted individuals who have served their sentences.

The Security Council meeting was attended by a representative of the government of Rwanda, which is not a member of the Council. He raised a separate issue. He said of utmost concern to his government was the “scourge of genocide denial by some in the academic and legal professions, including ICTY defense lawyers, [who] are leading an international campaign to misrepresent, misinterpret and openly deny that, in 1994, there was a genocide perpetrated against the Tutsi in Rwanda. . . . Such attempts . . . are . . . not only morally reprehensible, but also a violation of the ethics and rules of professional conduct for attorneys. . . . The Government of Rwanda will . . . continue to ensure that, without prejudice or favor, any individual who engages in revisionism or denial of [this] . . . genocide . . . be brought to justice in accordance with the Rwandan Constitution and other legal instruments.”

This Rwandan statement is not an idle threat. In 2010 Rwandan authorities arrested and jailed for nearly three weeks a defense lawyer before the ICTR, Peter Erlinder of Minnesota, for allegedly denying that genocide had happened.[8] Such threats and charges, I submit, are infringements of a defendant’s right to counsel and of the lawyer’s duty zealously to represent his client. The Minnesota State Bar Association stood up for Erlinder with a resolution that urged the Rwandan government “to drop all charges against him based on actions taken in the course of his professional representation of his clients in Rwanda and the exercise of his internationally recognized rights to freedom of expression, belief, association and assembly, and . . . to allow him to continue his legal representation and the exercise of his rights to freedom of expression, belief, association and assembly without further intimidation, hindrance, harassment or improper influence.”[9]

Despite all of these administrative problems, the French Ambassador to the U.N. at the recent Council meeting reminded us all that the recent arrests of Mladic and the Rwandan fugitive and the continued efforts to find and prosecute those charged with these grave crimes send “an important message.” For “all of those who today still try to come to power–or stay in power–by ordering and planning attacks against civilians, to all those who, when faced with an international criminal justice arrest warrant . . ., think that they can count on weariness or inaction on the part of the [Security] Council [or the international criminal tribunals], [t]hey are mistaken.”

[1] See: Post: International Criminal Justice: Introduction (April 26, 2011); Post: International Criminal Justice: Mladic To Face Charges at ICTY (May 27, 2011); Post: International Criminal Justice: Mladic Update (June 1, 2011).

[2] See Post: International Criminal Justice: The Residual Mechanism for Criminal Tribunals (May 28, 2011).

[3] U.N. Security Council, 6545th Meeting (June 6, 2011); U.N. Security Council, Press Release: Arrests of Long-Sought Fugitives Commended in Security Council, But Challenges to Completing Work in War Crimes Tribunals Dominate Briefings by Officials (June 6, 2011).

[4] See Post: International Criminal Court: Introduction (April 28, 2011); Post: International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[5] 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 Libyan Arrest Warrants Sought (May 16, 2011).

[6] Rome Statute for ICC, Art. 8(1).

[7] ICC Judge Adrian Fulford, The Reflections of a Trial Judge (Dec. 16, 2010).

[8] Kron & Gettleman, American Lawyer for Opposition Figure Is Arrested, N.Y. Times (May 28, 2010); Ward, Hearing could end Erlinder’s “holding pattern” in Rwanda, StarTrib. (June 6, 2010); Herb, Erlinder is sent to prison after Rwanda denies bail, StarTrib. (June 7, 2010); Diaz, Erlinder essay on Rwanda has defense nervous, StarTrib. (June 11, 2011); Herb & Diaz, Erlinder acknowledges suicide attempt in jail, StarTrib. (June 15, 2010); Herb & Diaz, Rwanda frees Peter Erlinder on bail, StarTrib. (June 17, 2010); Diaz & Herb, Nightmare over, Erlinder’s home, StarTrib. (June 22, 2010); Kron, U.S. Lawyer Is Barred from Rwanda Tribunal Work, N.Y. Times (April 22, 2011).

[9] Minn. State Bar Ass’n, General Assembly Resolution (June 25, 2010). Professor Erlinder has written an account of his arrest and jailing which, he says, was due to his having used discovery proceedings to uncover original documents in U.N. and U.S. Government archives that confirm that the victors in the four-year Rwandan war have told the story of the violence that occurred during that war; he also criticizes the record of the ICTR as one-sided prosecution. (Erlinder, The UN Security Council Ad Hoc Rwanda Tribunal: International Justice or Juridically-Constructed “Victor’s Impunity”?, 4 DePaul J. Soc. Justice 131 (2010).) Erlinder also has created the Rwanda Documents Project to collect and make available primary source materials from international and national agencies, governments, and courts that relate to the political and social history of Rwanda from 1990 to the present. (Rwanda documents project, http://www.rwandadocumentsproject.net/gsdl/cgi-bin/library.)

International Criminal Justice: Mladic Update

On May31st Ratko Mladic arrived at The Hague and immediately was locked up in the Dutch prison used by the International Criminal Tribunal for the former Yugoslavia (ICTY).[1]

In the five days since his arrest and ordered extradition on May 26th,[2] Mladic appealed the Serbian court’s order of extradition to The Hague. The appeal asserted that he is physically and mentally unfit for trial. On May 31st the appeal was rejected.[3]

The following is a summary of the ICTY charges facing Mladic:

Genocide and complicity in genocide: for leading Bosnian Serb forces who massacred 8,000 Muslim men and boys in Srebrenica in 1995 and ethnically cleansed towns and villages in Bosnia of non-Serbs throughout the 1992-95 Bosnian war.
Crimes against humanity by persecution on the basis of religion: for killing, torturing, raping, deporting and illegally imprisoning Muslims and Croats.
War crimes by extermination, murder and cruel treatment: for widespread killing of non-Serb civilians in towns and villages targeted by Bosnian Serb forces and for the deadly campaign of sniping and shelling of civilians during the 44-month siege of the Bosnian capital, Sarajevo.
War crimes by taking hostages: for taking hostage United Nations military observers and peacekeepers. [4]

Through his son Mladic has denied that he ordered the massacre at Srebrenica.[5]

Now attention is being paid to how Mladic was able for so long to avoid arrest and whether those who aided his evasion of legal process are liable for crimes.[6]

Mladic still has supporters in Serbia, and on May 29th around 10,000 of them rallied in Belgrade to protest the arrest and threatened extradition of Mladic to the ICTY at The Hague. The crowd also demanded the resignation of the Serbian president, Boris Tadic, whom they called a traitor to Serbia for his willingness to hand over alleged war criminals to the tribunal.[7]

The ICTY has jurisdiction over perpetrators of atrocities committed during the Balkan wars of the 1990s, including grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity. It has indicted 161 ethnic Serbs, Croats and Muslims, the majority of whom are Serbs. The following summarizes the status of these 161 cases:[8]

Concluded cases:	Convicted & sentenced	64
	Acquitted	13
	Referred to national court	13
	Withdrawn/deceased	36
	*SUBTOTAL*	*126*
Pending Cases:	Appeal after trial	16
	At trial	14
	Pre-trial	4
	At large	1
	*SUBTOTAL*	35
*TOTAL*		*161*

[1] Simons, Mladic Arrives in the Hague, N.Y. Times (May 31, 2011), http://www.nytimes.com/2011/06/01/world/europe/01serbia.html?ref=world&pagewanted=print.

[2] See Post: International Criminal Justice: Mladic To Face Charges at ICTY (May 27, 2011).

[3] Carvajal, Mladic Appeals Extradition on Health Ground, N.Y. Times (May 31, 2011), http://www.nytimes.com/2011/05/31/world/europe/31serbia.html?ref=world; Carvajal, Mladic Extradition Appeal Rejected, N.Y. Times (May 31, 2011), http://www.nytimes.com/2011/06/01/world/europe/01serbia.html?hp.

[4] Associated Press, A Summary of War Crimes Charges Against Mladic, N.Y. Times (May 31, 2011), http://www.nytimes.com/aponline/2011/05/31/world/europe/AP-EU-Mladic-The-Charges-Glance.html?hp; ICTY, Case Information Sheet: Ratko Mladic, http://www.icty.org/x/cases/mladic/cis/en/cis_mladic_en.pdf.

[5] Beaumont & Meikle, Ratko Mladic denies ordering Srebrenica massacre, says his son, Guardian (May 30, 2011), http://www.guardian.co.uk/world/2011/may/29/ratko-mladic-denies-ordering-srebrenica-massacre.

[6] Carvajal & Erlanger, Serb Fugitve Slowly Starved of Friends and Cash, N.Y. Times (May 29, 2011), http://www.nytimes.com/2011/05/30/world/europe/30mladic.html?ref=world.

[7] Erlanger, Demonstrators Rally Against Mladic Extradition, N.Y. Times (May 29, 2011), http://www.nytimes.com/2011/05/30/world/europe/30serbia.html?ref=world.

[8] ICTY, Key Figures, http://www.icty.org/sections/TheCases/KeyFigures; Associated Press, An Overview of the Yugoslav War Crimes Court, N.Y. Times (May 31, 2011), http://www.nytimes.com/aponline/2011/05/31/world/europe/AP-EU-Mladic-Tribunal-Glance.html?ref=world. See also Post: International Criminal Justice: Introduction (April 26, 2011); Post: International Criminal Justice: The International Residual Mechanism for Criminal Tribunals (May 28, 2011).
.

International Criminal Justice: Mladic To Face Charges at ICTY

On May 26, Ratko Mladic was arrested in Serbia and will be extradited to The Hague in the Netherlands. He is the former Bosnian Serb general held responsible for the massacre of some 8,000 Muslim men and boys at Srebrenica in 1995. At The Hague he will face charges of genocide, crimes against humanity and war crimes by the International Criminal Tribunal for the former Yugoslavia (ICTY).[1]

[1] Reuters,Ratko Mladic to Face Tribunal on Genocide Charges, N.Y. Times (May 26, 2011); Bilefsky & Carvajal, Serbia Says Jailed Mladic Will Face War Crimes Trial, N.Y. Times (May 26, 2011); Rhode & Burns, Executions Were Mladic’s Signature, and Downfall, N.Y. Times (May 26, 2011); ICTY, Statement of the Office of the Prosecutor on the Arrest of Ratko Mladic, (May 26, 2011) http://www.icty.org/sid/10670 (contains link to full text of indictment of Mladic); Editorial, End of the Line, N.Y. Times (May 26, 2011); Carvajal, Serbian Court Backs Transfer of Mladic to Hague, N.Y. Times (May 27, 2011); Carvajal, Left Ill by Fugitive Life, Mladic Hopes to Avoid Hague, N.Y. Times (May 27, 2011).

The International Criminal Court: Investigations and Prosecutions

All of the ICC’s initial six investigations come from Africa.

Uganda, Democratic Republic of Congo and Central African Republic. Three of the investigations arise from submissions to the Court by three of its African States Parties–Uganda, the Democratic Republic of the Congo and the Central African Republic. These ICC investigations have led to the issuance of 10 arrest warrants. One of the subjects from Uganda died of natural causes. Five of the subjects of these warrants remain at large. Three of the Congolese subjects (Lubanga, Katanga and Chui) are now on trial at the ICC, with the closing arguments in the ICC’s first trial (Lubanga) scheduled for this coming August. In addition, the trial of Jean-Pierre Bemba for actions in the Central African Republic started this past November.[1]

Kenya. Another investigation relates to Kenya. On November 26, 2009, the Prosecutor on his own initiative asked the Pre-Trial Chamber for permission to open an investigation into post-election violence in Kenya in 2007-2008 as possible crimes against humanity. On March 31, 2010, that Chamber approved that application. A year later–March 8, 2011, the Pre-Trial Chamber authorized the issuance of summonses to six individuals.[2]

Darfur (Sudan) and Libya. The last two investigations –Darfur (Sudan) and Libya– arise from submissions to the Court by the U.N. Security Council under Article 13(b) of the Rome Statute and Chapter VII of the U.N. Charter. (The latter gives the Council responsibility for the maintenance of “international peace and security.”)

In the Darfur (Sudan) situation, the Court has issued seven arrest warrants against six persons. One of the subjects (Bahr Idriss Abu Garda) appeared voluntarily at the Court and was in pre-trial proceedings, but on February 8, 2010, the Pre-Trial Chamber declined to confirm the charges against him, thus ending his case subject to reopening by the Prosecutor if there is additional evidence to support the charges. Two others (both Darfur rebel commanders) voluntarily surrendered themselves to the ICC, and in March 2011, the Pre-Trial Chamber confirmed the charges against them and committed them to trial. Three others remain at large, and one of them (Sudanese President Omar Hassan Ahmed Al Bashir) is the current head of state.[3]

As the Security Council resolution on Darfur itself noted, the Council under Article 16 of the Rome Statute has the power to stop any “investigation or prosecution” by the ICC for a period of 12 months after the Council adopts a resolution to that effect under Chapter VII of the U.N. Charter and to renew such a resolution ad infinitum. Yet in the over five years after its referral of the Darfur situation to the Court, the Council has not chosen to exercise this power after being kept advised of developments by the Prosecutor’s personal biannual reports to the Council.[4] This refusal to defer the prosecution of President Bashir is despite requests to do so from African and Arab states.

The last of the six ICC investigations relates to the current situation in Libya. On February 26, 2011, the U.N. Security Council adopted Resolution 1970 that, among other things, referred the Libyan situation since February 15, 2011, to the ICC’s Prosecutor, directed the Libyan authorities to cooperate fully with the Court and Prosecutor and invited the Prosecutor to make periodic reports about his actions in this matter to the Council. The resolution also stated that “nationals, current or former officials or personnel from a State outside [Libya], which is not a party to the Rome Statute . . . shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in [Libya] established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.”[5]

Two days later (February 28th) the Prosecutor stated that he had to decide whether to open an investigation regarding Libya and that he was collecting information to determine whether the necessary conditions for the Court’s jurisdiction were satisfied. [6] Another four days passed, and the Prosecutor on March 3rd announced that he was opening such an investigation.[7]

On May 4th the Prosecutor will report to the Security Council on the status of his Libyan investigation, including a possible request to the Pre-Trial Chamber to issue arrest warrants against those who appear to bear the greatest responsibility for crimes in Libya.

Preliminary examinations. In addition to these six investigations, the Office of the Prosecutor has conducted or currently is conducting preliminary examinations or analyses of situations in a number of other countries to determine if requests to the Pre-Trial Chamber should be made to commence investigations. These countries include Afghanistan, Chad, Colombia, Cote d’Ivorie, Georgia, Guinea, (Gaza) Palestine, Honduras and Nigeria. With respect to Afghanistan, which is a State Party to the Rome Statute, the Prosecutor has said that his office was looking into accusations of war crimes and crimes against humanity by the Taliban and by the U.S. and its allies.[8]

The Prosecutor also has declined to commence certain investigations that had been suggested by outsiders, and under Article 15(6) of the Statute the Prosecutor publicly has stated the reasons for these declinations. Two such instances are Iraq and Venezuela.

The ICC is well on the way to establishing itself as an important actor in the interactive global struggle against impunity for the worst violators of international human rights.

[1] ICC, Situations and Cases, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/.

[2] ICC, Situation in the Republic of Kenya, http://www2.icc-cpi.int/Menus/ASP/ReviewConference/Rome+Statute+amendment+proposals.htm

[3] ICC Press Release, Pre-Trial Chamber I declines to confirm the charges against Bahar Idriss Abu Garda (Feb. 8, 2010), http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/news%20and%20highlights/pr495?lan=en-GB.

[4] See AMICC, ICC Prosecutor Reports to the United Nations, http://www.amicc.org/icc_activities.html#unreports. These reports include discussions of the Prosecutor’s efforts (a) to determine whether Sudan has capable domestic institutions and procedures to handle the crimes in question and (b) to address whether the “interests of justice” call for continuation or termination of the investigations.

[5] U.N. Security Council, 6491st meeting (Feb. 26, 2011); U.N. Security Council, Resolution 1970 (2011) ¶¶ 4-8 (Feb. 26, 2011).

[6] ICC, Statement by the Office of the Prosecutor on situation in Libya (Feb. 28, 2011).

[7] ICC, ICC Prosecutor to open an investigation in Libya (March 2, 2011).

[8] ICC, Office of the Prosecutor, http://www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor; Lauria, Court Orders Probe of Afghan Attacks, Wall St. J., Sept. 10, 2009; ICC Office of Prosecutor, Letter to Deputy High Commissioner for Human Rights (Jan. 12, 2010) (alleged crimes during the conflict in Gaza in December 2008 and January 2009), http://www2.icc-cpi.int/NR/rdonlyres/FF55CC8D-3E63-4D3F-B502-1DB2BC4D45FF/281439/LettertoUNHC1.pdf; ICC Office of the Prosecutor, ICC Prosecutor confirms situation in Guinea under examination (Oct. 14, 2009), http://www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor/Comm+and+Ref/Guinea.