Secretary Pompeo’s Reactions to U.S. Commission on Unalienable Rights’ Report     

On July 16, Secretary of State Michael Pompeo gave an immediate response [1] to the Report of the U.S. Commission on Unalienable Rights that was summarized in a prior post.  Now we look at some of the significant points of Pompeo’s response.

Pompeo’s Introduction by Chair Glendon’s 

Chair Mary Ann Glendon said that the importance of the Commission’s work has been highlighted by several recent developments. First, Freedom House recently reported that “political and civil rights worldwide have declined this year for the 14th consecutive year and that half the world’s population – 4 billion people – currently live under autocratic or quasi-authoritarian regimes.”[3] Second, “some powerful countries are now openly challenging the basic premises of the great post-World War II human rights project, and by challenging the premises, they are undermining the already fragile international consensus behind the ideas that no nation should be immune from outside scrutiny of how it treats its own citizens and that every human being is entitled to certain fundamental rights simply by virtue of being human.” Third, “Another set of threats to human freedom and dignity are emerging in technological advances – artificial intelligence, biotechnology, data collection, sophisticated surveillance techniques.” Fourth, “millions of women and men are suffering arbitrary imprisonment, torture, and those women and men are looking to the United States as a beacon of hope and encouragement.”

Pompeo’s Speech

“These . . . unalienable rights . . . are a foundation upon which this country was built. They are central to who we are and to what we care about as Americans.”

“America’s founders didn’t invent the ‘unalienable rights,’ but stated very clearly in the Declaration of Independence that they are held as ‘self-evident’ that human beings were ‘created equal’  and ‘endowed by their Creator with certain unalienable rights… among [those] are Life, Liberty, and the Pursuit of Happiness.’”

The report emphasizes foremost among these rights are property rights and religious liberty. No one can enjoy the pursuit of happiness if you cannot own the fruits of your own labor, and no society – no society can retain its legitimacy or a virtuous character without religious freedom.” (Emphasis added.)

“Our founders knew that faith was also essential to nurture the private virtue of our citizens.”

George Washington, in “his now famous letter from 1790, . . .  to the Jews of Newport,. . .  proudly noted that the United States ‘gives to bigotry no sanction, to persecution no assistance.’” But “our founders also knew the fallen nature of mankind. [As] Alexander Hamilton wrote in Federalist 10: ‘Men are ambitious, vindictive, rapacious.’ So in their wisdom, they established a system that acknowledged our human failings, checked our worst instincts, and ensured that government wouldn’t trample on these unalienable rights.”

“Limited government structured into our documents protects these rights. As the [Commission] report states, ‘majorities are inclined to impair individual freedom, and public officials are prone to putting their private preferences and partisan ambitions ahead of the public interest.’”

In 1838, Abraham Lincoln, then a 28-year-old lawyer, gave a moving speech to the local young man’s lyceum in Springfield, Illinois, when he said, ‘We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us.’

“This is still true of America today. America is fundamentally good and has much to offer the world, because our founders recognized the existence of God-given, unalienable rights and designed a durable system to protect them.”

“The . . . societal upheavals that are currently roiling our nation . . .directly ties to our ability to put our founding principles at the core of what we do as Americans and as diplomats all across the world.”

[We must admit, however,] “that at our nation’s founding our country fell far short of securing the rights of all. The evil institution of slavery was our nation’s gravest departure from these founding principles. We expelled Native Americans from their ancestral lands. And our foreign policy, too, has not always comported with the idea of sovereignty embedded in the core of our founding.”

“But . . . the nation’s founding principles gave us a standard by which we could see the gravity of our failings and a political framework that gave us the tools to ultimately abolish slavery and enshrine into law equality without regard to race. . . . From Seneca Falls, to Brown vs. Board of Education, to the peaceful marches led by Dr. Martin Luther King Jr., Americans have always laid claims to their promised inheritance of unalienable rights.”

The New York Times’s 1619 Project – so named for the year that the first slaves were transported to America – wants you to believe that our country was founded for human bondage, that America’s institutions continue to reflect the country’s acceptance of slavery at our founding. . . [and] that Marxist ideology [correctly says] America is only the oppressors and the oppressed. [This 1619 Project] is a slander on our great people. Nothing could be further from the truth of our founding and the rights about which this report speaks.”  (Emphasis added.)

The Commission rejects these notions and “reminds us [of] a quote from Frederick Douglas, himself a freed slave, who saw the Constitution as a ‘glorious, liberty document.’”

“If we truly believe . . . that rights are unalienable, inviolate, enduring, indeed, universal, just as the founders did, then defending them ought to be the bedrock of our every diplomatic endeavor.”

“Our dedication to unalienable rights doesn’t mean we have the capacity to tackle all human rights violations everywhere and at all times. Indeed, our pursuit of justice may clash with hard political realities that thwart effective action.”

“Americans have not only unalienable rights, but also positive rights, rights granted by governments, courts, multilateral bodies. Many are worth defending in light of our founding; others aren’t.”

Prioritizing which rights to defend is also hard. [According to a research group, there are] 64 human rights-related agreements, encompassing 1,377 provisions, between the United Nations and the Council of Europe alone. That’s a lot of rights. And the proliferation of rights is part of the reason why this report is so important.” This report “has provided us the [following] essential questions to ask:

  • Are our foreign policy decisions rooted in our founding principles?
  • Are the decisions consistent with our constitutional norms and procedures?
  • Are they rooted in the universal principles of the Universal Declaration of Human Rights [UDHR]?
  • Does a new rights claim . . .represent a clear consensus across different traditions and across different cultures, as the Universal Declaration did, or is it merely a narrower partisan or ideological interest?”

The great and noble human rights project of the 20th century, [however.] is in crisis. Authoritarian regimes perpetrate gross human rights violations every day, all around the world. Too many human rights advocacy groups have traded proud principles for partisan politics. And we see multilateral human rights bodies failing us. The United Nations Human Rights Council does the bidding of dictators and averts its gaze from the worst human rights offenses of our times. [In addition,] international courts too have largely abandoned unalienable rights. The International Criminal Court is training its sights on Americans and Israelis, not the ayatollahs of the world. And the incurious media rarely examines any of these failings.”(Emphasis added.)

“The vital 20th century human rights project has come unmoored, and it needs a re-grounding. The Commission’s work marks an important contribution to America’s effort to address this human rights crisis, and it’s a good time to do so.”

[As the report says,] “we must cultivate the ‘seedbeds of human rights.’ Free and flourishing societies cannot be nurtured only by the hand of government. They must be nurtured through patriotic educators, present fathers and mothers, humble pastors, next-door neighbors, steady volunteers, honest businesspeople, and so many other faithful, quiet citizens.” (Emphasis added.)

We have the responsibility to educate and advocate. Our diplomatic posts all over the world have human rights officers working to promote American values. We can shine a light on abuses, and as we do when we issue our annual reports, we take stock of the world’s efforts on religious freedom, on human rights, and on human trafficking.” (Emphasis added.)

We too can empower the people of other nations to further their social and economic rights. Our USAID does this essential work, as does our W-GDP program, which helps women flourish as entrepreneurs. Women, sadly, suffer the most human rights abuses. We can help them do better.” (Emphasis added.)

“We can work productively too with other nations. We’ve done that. We’ve worked with 60-plus nations to help the Venezuelan people recover democracy from the Maduro dictatorship.”

We also “ have punitive tools too, such as sanctions that we’ve levied on human rights abusers in Iran and in Cuba, and a recent advisory that we put out about Xinjiang and companies doing business there. We want to make sure that no American business is knowingly benefiting from slave labor.” (Emphasis added.)

“But to do so effectively, we must insist on the rightness and the relevance of America’s founding principles. Surely, if America loses them, she loses her soul and our capacity to do good around the world.”

“I am confident that the American star will shine across the heavens, so long as we keep a proper understanding of unalienable rights at the center of our unending quest to secure freedom for our own people and all of mankind. The report that you worked on will ensure that we have a better chance to accomplish that.”

Glendon-Pompeo Conversation

Immediately after Pompeo’s speech, Chair Glendon and Pompeo had a brief conversation.  One of her questions was: “Why is human rights advocacy is such an important part of our national interest?”

Pompeo responded, “Our capacity to have influence around the world . . . stems from our confidence in ourselves and our deep commitment to the fact that this nation is exceptional, because we rallied around this idea of unalienable rights. [We have developed annual ministerial meetings to gather] religious leaders of all faiths from all around the world. It’s the largest gathering of religious leaders every year to talk about these set of rights and religious freedom. . . . Some two-thirds of the people in the world live in places that are extremely challenged with the absence of religious freedom and religious liberty, the simple chance to exercise their conscientious views on faith.” (Emphasis added.)

Yet Another Pompeo Speech

On July 17th (the very next day after the above speech], Pompeo and his wife were in West Des Moines, Iowa for a speech—”My Faith, My Work, My Country”[3]— at the Family Leader Summit.[4] Here a few things he said.

“We [at the State Department] have a responsibility to keep you all safe. We advocate too for American businesses abroad, and help create jobs in every state in the union. And we represent your principles. We’ve executed a foreign policy that American families in Des Moines, in Dubuque, and in Davenport can believe in. It’s a pro-national security foreign policy focused on America. It’s a pro-religious freedom foreign policy. And it’s a 100 percent pro-life foreign policy.” (Emphasis added.)

Later, he added, “America sets the tone for the rest of the world in this respect, and our administration has defended the rights of unborn like no other administration in history. Abortion quite simply isn’t a human right. It takes a human life. You all – you all know this. The Psalmist says in Psalm 139: ‘You knit me together in my mother’s womb.’ This is when life begins, full stop. So we’ve reinstated the Mexico City Policy, so that not a single dime of American taxpayer money will ever go to a foreign NGO that performs active abortions anywhere in the world. In the fall of last year, . . . Secretary Azar at Health and Human Services and I, we mobilized 20 countries to deliver a joint statement at the UN criticizing pro-abortion language in UN documents. This has not happened before. We said clearly that “there is no international right to an abortion.” (Emphasis added.)

He also had extensive negative comments about China and Iran and positive words about Israel.

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[1] State Dep’t, Pompeo Speech: Unalienable Rights and the Securing of Freedom (July 16, 2020)[“Pompeo Speech”].  (The above post highlights some points for discussion in a subsequent post.) See also Pompeo, American diplomacy must again ground itself in the nation’s founding principles, Wash. Post (July 16, 2020); Assoc. Press, Pompeo Says US Should Limit Which Human Rights It Defends, N.Y. Times (July 16, 2020)

[2]  Freedom House, Freedom in the World 2020: A Leaderless Struggle for Democracy..

[3] State Dep’t, Pompeo Speech: My Faith, My Work, My Country (July 17, 2020). 

[4] The Family Leader, which is based in Urbandale IA, is an organization that is focused on marriage as “a permanent lifelong commitment between a man and a woman;” on sanctity of life for “protection of life from conception to natural death;” on affirming “ sexual relations within the bond of marriage, and oppose distortions of sexuality or special rights to those practicing distorted sexual behavior.” (The Family Leader, Issues we are focused on.)

 

Human Rights Commentaries by Mary Ann Glendon, Chair of the Commission on Unalienable Rights

A prior post reviewed the limited public record (to date) of the first meeting on October 23 of the Commission on Unalienable Rights.

To gain a better understanding of what to expect from the Commission, this blog will examine two recent commentaries on human rights by, and an interview of, the Commission’s Chair, Mary Ann Glendon, the Learned Hand Professor of Law at the Harvard Law School, the author of a major book about the development of the Universal Declaration of Human Rights (UDHR) [1] and a prominent Roman Catholic who was U.S. Ambassador to the Vatican in the George W. Bush Administration. The Conclusion will evaluate her comments and those made by others at the first meeting.

Reclaim Human Rights (August 2016) [2]

Glendon began this article by acknowledging that she had been a participant in the Ramsey Colloquium’s 1998 affirmation of the UDHR as “the most available discourse for cross-cultural deliberation about the dignity of the human person” and as making “possible a truly universal dialogue about our common human future.” [3] She also affirmed she was “a longtime supporter of the cautious use of rights language, and a frequent critic of its misuses.”

Nevertheless, Glendon said that a 2016 criticism of human rights by R.R. Reno, the editor of First Things, [4] caused her to “ponder whether the noble post-World War II universal human rights idea has finally been so manipulated and politicized as to justify its abandonment by men and women of good will.”

According to Glendon, by “1998, governments and human-rights organizations alike were ignoring the fact that the UDHR was constructed as an integrated document whose core fundamental rights were meant to be ‘interdependent and indivisible.’ [However, by 1998, the] sense of the interdependence among rights and the connections between rights and responsibilities was fading.” Moreover, “a host of special-interest groups [were inspired] to capture the moral force and prestige of the human-rights project for their own purposes. . . .[The] core of basic human rights that might be said to be universal was being undermined by ‘multiplying the number of interests, goods, and desires that are elevated to the status of rights.”

As a result, by 2016, she argues, “the post-World War II dream of universal human rights risks dissolving into scattered rights of personal autonomy.”

Reno’s criticism of human rights, Glendon continues, emphasizes “the way that human rights as an ideology detracts from the difficult and demanding work of politics.” This is especially true in the U.S., she says, as “judicially-created rights have displaced political judgements that could and should have been left to the ordinary processes of bargaining, education, persuasion, and voting.” This has damaged “the American democratic experiment” by making it more difficult to correct an unwise judicial decision, intensifying “the politicization of the judicial selection process,” depriving “the country of the benefits of experimentation with different solutions to difficult problems” and accelerating “the flight from politics.”

Glendon concludes by urging “church leaders and people of good will to make every effort to connect the human-rights project to an affirmation of the essential interplay between individual rights and democratic values. We should insist on the connection between rights and responsibilities. And we should foster an appreciation of the ultimate dependence of rights upon the creation of rights-respecting cultures.”

 “Renewing Human Rights” (February 2019) [5]

“When Eleanor Roosevelt and a small group of people gathered at the behest of the U.N. in early 1947 to draft the world’s first ‘international bill of rights’” (the subsequent UDHR), the “idea that some rights could be universal—applicable across all the world’s different societies—was controversial.”

“Yet in the decades that followed, the UDHR . . . successfully challenged the view that sovereignty provided an iron shield behind which states could mistreat their people without outside scrutiny.”

“But now . . . the international human rights idea is in crisis, losing support both at home and abroad. Good intentions, honest mistakes, power politics, and plain old opportunism have all played a role in a growing skepticism, and even a backlash.”

As Glendon sees it, “there were three stages” to this change: [1] a pick-and-choose attitude toward rights initiated by the two superpowers in the Cold War era [U.S. and U.S.S.R.]; [2] an over-extension of the concept once the human rights idea showed its moral force; and [3] a forgetfulness of the hard-won wisdom of the men and women who had lived through two world wars.”

“The end of the Cold War increased the influence of human rights. American predominance, Western ideological ascendancy, a series of atrocities and conflicts, and a growing role for the United Nations and other international actors spurred the rapid growth of human rights activism in the 1990s. By the 2000s, there were many human rights organizations, including specialists, activists, agencies for monitoring and enforcement, and academic journals.”

These changes brought about “an interventionist approach, backed by Western—especially American—power. . . .  The establishment of state-like institutions such as the International Criminal Court (which the United States ultimately did not endorse), and doctrines such as the ‘Responsibility to Protect,’ reflected this shift. They increased the human rights field’s ability to frame the international agenda and set global standards. . . .  This encouraged an expansion in the number of basic rights.”

“Given that individual rights were gaining ascendancy, the role of social institutions and non-­individualistic values were deemphasized. A one-size-fits-all approach triumphed over the idea of a common standard that could be brought to life in a variety of legitimate ways. The indivisibility and inter­dependence of fundamental rights were ­forgotten.”

Some states now object to “uniform methods of interpreting and implementing” human rights treaties and to “supra­national institutions. They are remote from the people whose lives they affect. They lack public scrutiny and accountability, are susceptible to lobbying and political influence, and have no internal checks and balances.”

According to Glendon, the following “four major principles that the UDHR’s framers followed [in 1947-48] can reinvigorate the human rights idea in our own time:”

  • Modesty concerning universality. “The framers wisely confined themselves to a small set of principles so basic that no country or group would openly reject them. This was essential not only in order to gain broad political support within the U.N., but also to ensure that the Declaration would have deep and long-lasting support across vastly different cultures, belief systems, and political ideologies.”
  • Flexible universalism.” The UDHR framers “understood that there would always be different ways of applying human rights to different social and political contexts, and that each country’s circumstances would affect how it would fulfill its requirements.” For example, . . . [UDHR’s] Article 22 provides: ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’ (Emphasis added.) Another example is Article 14, which states, ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution,’ but is silent on how that right should be protected.
  • Interdependence of basic rights.” The UDHR makes it clear “that everyone’s rights depend on respect for the rights of others, on the rule of law, and on a healthy civil society. . . . The framers of the [UDHR] did not expect uniform management of tensions or conflicts between rights. . . . [and instead] assumed that communities must balance the weight of claims of one right versus another before determining the best course of action.” Only a few rights do not allow such variation: “protections for freedom of religion and conscience” as well as “prohibitions of torture, enslavement, degrading punishment, . . .retroactive penal measures, and other grave violations of human dignity.”
  • “Subsidiarity.” Emphasis on “the primacy of the lowest level of implementation that can do the job, reserving national or international actors for situations where smaller entitles are incapable.” This principle, as stated in the UDHR’s Proclamation, also calls on “every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms.”

Glendon concludes by arguing for a new human rights goal: “the systematic elimination of a narrow set of evils for which a broad consensus exists across all societies. This would at least include “protections against genocide; slavery; torture; cruel, inhuman, or degrading treatment or punishment; retroactive penal measures; deportation or forcible transfer of population; discrimination based on race, color, sex, language, religion, nationality, or social origin; and protection for freedom of conscience and religion.”

Glendon Interview [6]

On August 3, 2019, Glendon was interviewed by Jack Goldsmith, another Harvard Law School professor of international law. Here are her comments that were not already expressed in the above articles.

She said there was confusion and crisis in human rights with roughly half of the world’s population without any rights and exasperated by disappointing performance of international human rights institutions.

Socrates said that definition of terms was the beginning of wisdom, and this is especially important since human rights are now important parts of U.S. foreign policy.

The concept of “unalienable rights,” which the printer of the original Declaration of Independence substituted for Thomas Jefferson’s draft’s use of “inalienable,” has evolved with the U.S. Bill of Rights (the first ten amendments to the Constitution) and the words of Abraham Lincoln and Martin Luther King, Jr.

While the U.S. Declaration of Independence talked about “laws of nature” or pre-political rights, the UDHR is grounded in the world’s religious and philosophical traditions.

Glendon emphasized the civil and political rights in the UDHR were interdependent with economic and social rights and pointed to the New Deal and the preambles of many U.S. statutes on economic and social issues as expressing this interdependence. This also is stated in Article 22 of the UDHR: ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’” (Emphasis added.) This provision rejected the Soviet Union’s position that the state was solely responsible for such rights with Eleanor Roosevelt saying during the deliberations over the UDHR that no one had figured out how to do that without loss of freedom.

Another emphasis of Glendon was on the UDHR Proclamation’s words: ‘every individual and every organ of society, Keeping the [UDHR] constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of [U.N.] Member States themselves and among the peoples of territories under their jurisdiction.” Or as Judge Learned Hand said, ‘The spirit of liberty will die if not in the hearts of the people.’

Reactions

 Glendon’s primary focus in these two articles and interview is the UDHR, which is mentioned as one of two  guiding authorities for the Commission on Unalienable Rights, but Glendon has less to say about the U.S. Declaration of Independence, which is the other guiding authority for this Commission.

We all should seek to follow her emphasizing the UDHR’s interdependency of civil and political rights with economic and social rights and the importance of every individual and every organ of society striving by teaching and education to promote respect for human rights and freedoms.

The UDHR indeed is an important international human rights instrument. But it is a declaration adopted by the U.N. General Assembly in 1948. It does not by itself establish legal obligations on any nation state or other person.

In any event, Glendon says nothing about another provision of the UDHR’s Proclamation: “every individual and every organ of society , keeping this Declaration constantly in mind, shall strive . . . by progressive measures, national and international, to secure [these rights and freedoms] universal and effective recognition and observance.” (Emphasis added.) In other words, the UDHR itself contemplated that there should be additional measures, including national legislation and international treaties, to secure the rights and freedoms articulated in the UDHR and, by implication, that these other measures will include “rights” language. Moreover, under the principle of “flexible universalism,” a developed and wealthy country like the U.S. could well find ways to secure the rights mentioned in the UDHR that are more complex than those in other countries.

A similar principle for the Commission exists in the U.S. Declaration of Independence.  It says, as the Commission emphasizes, “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness.” But the very next sentence of the U.S. Declaration says, but the Glendon and the Commission ignore, “That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” (Emphasis added.) In other words, the U.S. Declaration contemplates that the not yet established U.S. government subsequently will enact statutes that protect the unalienable rights, only three of which are specifically mentioned in the Declaration.[7] These are not “ad hoc” rights as Secretary Pompeo likes to say.

As a result, after the 1948 adoption of the UDHR, various U.N. organizations have drafted and adopted many international human rights treaties,[8] and the U.S. federal and state governments have adopted many human rights statutes and regulations.

This obvious point is surprisingly overlooked by Glendon when she lauds UDHR’s Article 14 on the right to asylum as an example of flexible universalism because it does not say how that right should be protected. But the 1951 Convention Relating to the Status of Refugees that entered into force on April 22, 1954, defines”refugee” and specifies many conditions for that protection while limiting reservations under Article 42. Presumably she is not arguing that this treaty was a mistake.

Indeed, we should all celebrate, not complain as Secretary Pompeo likes to do, that there has been such proliferation or in Glendon’s words, “too much contemporary emphasis on ‘rights’ language. These arguments by Pompeo and Glendon can be seen as underhanded ways to cut back or eliminate rights that they do not like, which I assume would include abortion and LGBQ rights. Such rights constantly are criticized by her church (Roman Catholic) and by the Commission’s creator, Secretary of State Michael Pompeo, and others in the State Department.[9]

Criticism of Glendon’s apparent adherence to traditional Roman Catholic teachings on some of these issues comes from her successor as U.S. Ambassador to the Vatican in the Obama Administration, Miguel Diaz, along with 128 Catholic activists and leaders, in a letter opposing the Commission. [10] They said, “Our faith and our commitment to the principles of democracy require us to view every person on earth as a full human being. We staunchly support the fundamental human rights of all people and proudly carry on the long tradition in our country of advocating for expanding human rights around the world. Our concern is that this Commission will undermine these goals by promoting a vision of humanity that is conditional, limiting, and based on a very narrow religious perspective that is inconsistent with the beliefs and practices of billions in this country and around the world. Our faith and our commitment to the principles of democracy require us to view every person on earth as a full human being. We staunchly support the fundamental human rights of all people and proudly carry on the long tradition in our country of advocating for expanding human rights around the world,” they write. “Our concern is that this Commission will undermine these goals by promoting a vision of humanity that is conditional, limiting, and based on a very narrow religious perspective that is inconsistent with the beliefs and practices of billions in this country and around the world. Of most urgent concern is that the composition of the Commission indicates that it will lead our State Department to adopt policies that will harm people who are already vulnerable, especially poor women, children, LGBTI people, immigrants, refugees, and those in need of reproductive health services. This is being done “in the name of a very partial version of Christianity that is being promoted by the current Administration.” “All human beings,” however, “have been created in God’s image and all have been endowed by their Creator with the fundamental right to Life, Liberty, and the pursuit of Happiness. No person speaking in the name of government or in the name of God can do so to undermine or to deny this right.”

Nor does Glendon discuss how to resolve conflicts among rights. For example, the U.S. Declaration’s mention of “life” as one of the “unalienable rights” is taken by some, and probably Glendon, as a basis for arguing there should be no right to an abortion. But an abortion may be necessary to protect an expectant woman’s right to “life” or her “pursuit of happiness.”  How are those conflicts resolved? That is why we have federal and state and international courts and agencies to resolve these conflicts or disputes.

The previously cited “four major principles” of the UDHR are worthy of remembering and guiding future human rights, internationally and domestically.

Glendon, however, fails to acknowledge the continued use of the “flexible universalism” principle in human rights treaties that allow for their ratification by nation states with reservations for at least some of the treaty’s provisions. And, of course, a state may chose not to ratify a treaty and thereby not be bound by any of its provisions. [11] Moreover, there are mechanisms for other states and international agencies to address these reservations and non-ratifications. For example, in the U.H. Human Rights Council’s Universal Periodic Review process, the Council and other states may, and do, make recommendations for states to withdraw reservations or ratify certain treaties. The same was done by the Council’s predecessor, the U.N. Human Rights Committee.[12]

The words of Professor Michael McConnell from the Commission’s first meeting should also be remembered in this evaluation of its ongoing work. He warned that the term “‘unalienable rights,’ which comes to us from our country’s protestant reform traditions, has never had a common or precise definition. The phrase identifies a philosophical concept, rather than a concrete set of rights.  And while the concept often prioritizes freedom of religion, McConnell cautioned that our founders were ultimately more concerned with freedom of conscience, which includes but is not limited to a narrow understanding of religious freedom.”

“McConnell also recognized the implicit failures of this philosophical approach.  While the term ‘unalienable rights’ makes for inspirational prose, the philosophical concept behind it embraced our country’s original sin of slavery and denied women full standing in society. Concepts of equal protection could not, and did not, exist at this time, under this philosophical tradition.”

Andrea Schmitt of the Center for American Progress who attended  the Commission’s first meeting also had words of wisdom for the Commission. She said, “It is simply wrong-headed and ultimately self-defeating to create an artificial human rights hierarchy — one that strips away the universality of human rights and puts a limited number of political and religious rights above all others.  Indeed, this enterprise stands to harm religious freedom itself, as it gives philosophical justification to theocratic governments and religious majority populations who are, by far, the leading persecutors of religious minorities around the world.”

We all should thank Professor Glendon for her expertise and willingness to serve as Chair of the Commission. Those of us interested in international human rights need to carefully follow the Commission’s deliberations and eventual reports and express our agreements and disagreements with respect and reasoned arguments.

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[1] Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2001); The Importance of the Universal Declaration of Human Rights, dwkcommentaries.com (July 11, 2019).

[2] Glendon, Reclaim Human Rights, First Things (Aug. 2016).

[3] The Ramsey Colloquium apparently published reflections about early Christianity’s treatment of homosexuality. (Graeser, The Ramsey Colloquium and Other First Things Resources, Mars Hill Audio (June 29, 2001).

[4] Reno, Against Human Rights, First Things (May 2016). Reno is a former professor of theology and ethics at Creighton University, a Jesuit institution until 2010 when he became the editor of First Things. In 2004 at age 45 he left the Episcopal Church to join the Roman Catholic Church and  describes himself as a theological and political conservative. First Things, which describes itself as“America’s most influential journal of religion and public life,” is published by the Institute on Religion and Public Life, an interreligious, nonpartisan research and educational 501(c)(3) organization. The Institute was founded in 1989 by Richard John Neuhaus and his colleagues to confront the ideology of secularism, which insists that the public square must be ‘naked,’ and that faith has no place in shaping the public conversation or in shaping public policy.” The Institute’s mission is to articulate a governing consensus that supports: a religiously pluralistic society that defends human dignity from conception to natural death; a democratic, constitutionally ordered form of government supported by a religiously and morally serious culture; a vision of freedom that encourages a culture of personal and communal responsibility; and loyalty to the Western tradition that provides a basis for responsible global citizenship.”

[5]  Glendon & Kaplan, Renewing Human Rights, First Things (Feb. 2019) The co-author, Seth D. Kaplan, is a professorial lecturer at the Paul H. Nitze School of Advanced International Studies at John Hopkins University. He is a consultant to organizations such as the World Bank, USAID, State Department, United Nations and African Development Bank.

[6] Howell, The Lawfare Podcast: Mary Ann Glendon on Unalienable Rights, Lawfare (Aug. 3, 2019).

[7] See The U.S. Declaration of Independence’s Relationship to the U.S. Constitution and Statutes, dwkcommentaries.com (July 5, 2019).

[8] As of 2009, there were at least the following significant multilateral human rights treaties: (1) U.N. Charter; (2) International Covenant on Economic, Social and Cultural Rights; (3) First Optional Covenant to the International Covenant on Civil and Political Rights; (4) Covenant on the Prevention and Punishment of the Crime of Genocide; (5) Convention Relating to the Status of Refugees; (6) Protocol Relating to the Status of Refugees; (7) International Convention on the Elimination of All Forms of Racial Discrimination; (8) Convention on the Elimination of All Forms of Discrimination against Women; (9) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (10) Convention on the Rights of the Child; (11) Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the elimination of the death penalty; (12) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; (13) Statute of the International Court; and (14) International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. (Weissbrodt, Ni Aoláin, Fitzpatrick & Newman, International Human Rights: Law, Policy, and Process at 33-35 (Lexis/Nexis 4th edition 2009).)

[9] See, e.g.,  U.S. Opposition to “Abortion” and “Sexual and Reproductive Health and Rights” at U.N. High-Level Meeting, dwkcommentaries.com (Sept. 25, 2019).

[10] White, Former U.S. envoy to Vatican opposes new commission headed by predecessor, Crux (Jul. 23, 2019).

[11] Under international law, “A State may, when signing, ratifying, accepting, approving, or acceding to a treaty, formulate a reservation unless (a) the reservation is prohibited by a treaty; (b) the treaty provides that only specified reservations, which do not include the reservation  in question, may be made; or (c) in cases not falling under sub-paragraphs (a) or (b), the reservation is incompatible with the object and purpose of the treaty.” (Vienna Convention on the Law of Treaties, arts. 19 (1980); id. Arts. 2(1) (d),20, 21, 22 )  See also,e.g., these posts to dwkcommentaries.com: Multilateral Treaties Signed, But Not Ratified, by the U.S., dwkcommentaries.com (Feb. 12, 2013); Multilateral Human Rights Treaties That Have Not Been Signed and Ratified by the U.S., dwkcommentaries.com (Feb. 16, 2013).

[12] See, e.g., these posts to dwkcommentaries.com: U.H. Human Rights Committee’s Review of U.S. Human Rights (April 19, 2014); U.N. Human Rights Committee’s Hearings About U.S. Human Rights (April 21, 2014); U.N. Human Rights Committee‘s Concluding Observations on U.S. Human Rights (April 24, 2014); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: Background (June 12, 2018); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: The Pre-Hearing Papers (June 12, 2018); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: The UPR Hearing (June 16, 2018); U.N. Human Rights Council’s Final Consideration of Cameroon’s Universal Periodic Review (Sept. 20, 2018).

 

 

 

Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: The Pre-Hearing Papers               

This year Cameroon’s human rights record is a subject of its third  Universal Periodic Review (UPR) by the U.N. Human Rights Council in Geneva, Switzerland. A prior post reviewed the nature of the UPR process. Now we look at the pre-hearing papers for this UPR while future posts will cover the May 16 UPR hearing and then the results of the UPR.

Cameroon’s Third UPR Pre-Hearing Papers

 Prior to the May 16, 2018, hearing on Cameroon’s UPR, the following materials have been translated from their original language into five other languages and made available on the Council’s website: (a) Cameroon’s National Report to the Council; (b) the U.N. High Commissioner for Human Rights’ Compilation of U.N. Information on Cameroon; and (c) the Council’s Working Group on the Universal Periodic Review’s Summary of Stakeholders’ submissions on Cameroon.

Cameroon’s National Report[1]

In the section “Implementation of recommendations from previous cycles,” it discussed ratification of various international human rights instruments, including the following: (a) persons charged with the crime of genocide under the Code of Military Justice “shall be tried by the military courts;” (b) the instruments for the ratification of the Optional Protocol to the [Torture convention] are being deposited; (c) the International Convention for the Protection of All Persons from Enforced Disappearance has been signed and is in process of ratification.

Paragraph 66 states, “the 2016/17 school year has been subject to some disruptions in the North-West and South-West regions occasioned by the actions taken by a number of trade unions, including teachers’ unions.” (Emphasis added.)

Paragraph 98 states, “Efforts to ensure access to justice have included the continuation of mobile court hearings in areas where there are no established courts to speak of.” (Emphasis added.)

Paragraph 112, it stated, “The realization of human rights in Cameroon is a work in progress, as security and economic constraints still limit their enforcement in certain areas. . . . In October 2017, there were around 236,000 internally displaced persons and 332,000 refugees scattered throughout the East, Adamaoua and Far North Regions of Cameroon. (Emphasis added.)

Paragraph 113 stated, “The social crisis in the North-West and South-West Regions, which was triggered in late 2016 by the mobilization of a number of teachers’ and lawyers’ unions, has also interfered with the enforcement of certain human rights.” (Emphasis added.)

Paragraph 115 states, “Dialogue, the obligation to preserve the integrity of the national territory, its people and their property, as well as to promote conciliation, have shaped the response to the aforementioned social crisis. If the crisis is to be resolved, all persons must show good will in working to live together more harmoniously. To this end, in addition to the steps taken to address the demands made by these unions, the institutional framework has been enhanced by the establishment of the National Commission for the Promotion of Bilingualism and Multiculturalism (annex 16).” (Emphasis added.)

Paragraph 116 states, “increased support in the fight against terrorism and a more equal sharing of the burden of caring for refugees and managing internally displaced populations are being requested, as is increased support for national efforts to consolidate social harmony.” (Emphases added.)

U.N. Information about Cameroon[2]

This report summarized comments about Cameroon from various U.N. agencies, including the following comments relating to the Francophone-Anglophone disputes:

  • In November 2017, several special procedure mandate holders warned the Government of Cameroon to engage with representatives of the anglophone population in a meaningful political dialogue and halt renewed violence in the south-west and north-west, where the country’s anglophone minority was reportedly suffering worsening human rights violations. They urged the Government to adopt all necessary measures consistent with Cameroon’s human rights obligations to end the cycle of violence. Up to 17 people had reportedly been killed and dozens wounded and arrested in demonstrations in the country’s anglophone regions since 1 October 2017. The special procedure mandate holders were disturbed by reports of a series of measures taken by the national authorities, including curfews, a ban on public meetings, and other restrictions aimed at preventing peaceful protests. Excessive use of force by the security services, injuries, mass arrests, arbitrary detentions, torture and other ill-treatment had been reported.” (Para. 22; emphasis added.)
  • The special procedure mandate holders asked the Government to take effective measures to prosecute and sanction all those responsible for such violations. The appeal for . . . action came nearly a year after other United Nations human rights experts publicly urged the Government to halt violence against the anglophone minority, following reports that anglophone protesters in Buea and Bamenda had suffered undue force. The special procedure mandate holders also denounced any use of violence against members of the security forces, after reports that several had been killed. Since December 2016, the special procedure mandate holders have repeatedly raised concerns directly with the Government of Cameroon, and continue to monitor and seek clarification of the alleged human rights violations in the north-west and south-west of the country.” (Para. 23; emphases added.)
  • “The Human Rights Committee raised its concern at the alleged existence of secret detention facilities that were not subject to oversight of any kind.” (Para. 26.)
  • “The Committee against Torture recommended that Cameroon put an end to the practice of incommunicado detention and ensure that no one is detained in secret or unauthorized places, including unlisted military detention centers. Cameroon should investigate the existence of such places and detainees should be released or transferred to official places of detention.” (Para. 27.)
  • “The Committee against Torture stressed that the State should ensure that all allegations of excessive use of force, extrajudicial executions, ill-treatment and arbitrary arrest by State officials during or after the demonstrations in the anglophone region are the subject of an impartial investigation, that those responsible are prosecuted and, if found guilty, punished, and that victims obtain redress.” (Para. 28; emphasis added.)
  • “The Committee against Torture requested Cameroon to put in place, as soon as possible, a programme to protect witnesses and victims of torture. (Para. 29; emphasis added.)
  • “The Human Rights Committee urged Cameroon to lift any unnecessary restrictions on the freedom of assembly and the freedom to demonstrate, in particular for members of the country’s English-speaking minority.” (Para. 33; emphasis added.)
  • “UNESCO noted that Cameroon had suspended Internet services in the country’s Northwest and Southwest regions after a series of protests that had resulted in violence and the arrest of community leaders.” (Para. 37; emphasis added.)

Stakeholders’ Submissions[3]

Sharp criticisms of Cameroon from various groups were registered in 54 paragraphs. The following focused on human rights violations against Cameroonian Anglophones.

“Southern Cameroons Public Affairs Committee indicated that the Anglophone minority suffered a policy of ongoing discrimination, including the prohibition of the use of their language in daily public life. It further noted that discrimination has been used in various sectors including education, employment and access to justice. It recommended ending discrimination and the harassment of Anglophones and adopting an antidiscrimination legislation and policy.” (Para. 10; emphasis added.)

“Plateforme EPU noted the adverse consequences that the crisis in the Englishspeaking parts of the country has had on the economy, in particular because of the shutdown of Internet access for several months.” Para. 15; emphasis added.)

“JS2 noted that the anti-terrorism legislation allowed for Cameroonian to be charged in military courts and to face death penalty if their sponsored terrorism, which contravenes the right to a fair trial. JS2 was concerned by the lack of impartiality and independence of the military courts as well as the vague definition of terrorism. It recommended revising the anti-terrorism bill in accordance with international human rights obligations.  Amnesty International raised similar concerns and urged Cameroon to provide a definition of terrorism in line with international human rights standards and to limit the use of the military courts.” (Para. 18; emphasis added.)

“JS4 expressed concern about the increase in the number of death sentences being handed down by Cameroonian courts, especially in the northern part of the country.JS4 criticized the vague, general laws on terrorism, which are used as grounds for arresting defenders of the rights of the English-speaking minority.JS4 noted that persons on death row in Cameroon are denied their rights and are subjected to inhuman treatment and torture. JS4 recommended that Cameroon should take all necessary steps to amend the counter-terrorism law of 2014 and the Penal Code of 2016 to eliminate the death penalty. JS4 also recommended that the authorities should ensure that the rights of persons sentenced to death are respected, in particular by ensuring that proceedings are conducted transparently and that defendants are assisted by counsel.” (Para. 19; emphasis added.)

“The Southern Cameroons Public Affairs Committee reported that security forces have been using excessive force toward citizens, including torture and harass, and arbitrary arrested and detained incommunicado for prolonged periods without trial. It recommended ending all use of arbitrary arrest and detention of citizens, and use of torture or other cruel treatment.  It further urged that Cameroon investigate into allegations, and prosecute those responsible for the violence against Anglophones.” (Para. 20; emphases added.)

“JS2 noted that many persons were arbitrary arrested and held in horrific conditions following the riots in the English-speaking regions of country. JS2 urged Cameroon to work with the judicial system to ensure detention periods are not excessive, subject the conduct of arrests to strict conditions and to ensure that national criminal legislation on arrest is compatible with international human rights standards.” (Para. 23; emphasis added.)

“Plateforme EPU pointed out that some individuals are still being held illegally in prisons in the wake of the crisis in the English-speaking parts of the country.” (Para. 24; emphasis added.)

“SCAPAC indicated that English language was excluded in courts and that Anglophones have been deprived of access to justice and an effective justice remedy. SCAPAC further noted that many Anglophone detainees are not informed of the charged for which they were accused. (Para. 26; emphases added.)

“JS7 noted that in 2017, the government ordered the suspension of internet services in the Northwest and Southwest Anglophone regions of Cameroon, following the protest against the dominance of French language in Cameroon. It recommended that Cameroon refrain from shutting down internet communication, take actions to adopt a law on access to information and further implement legal safeguards to prevent unlawful surveillance.” (Para. 28; emphasis added.)

“JS2 and JS5 noted that Cameroon continues to show high levels of intolerance towards human rights defenders who are critical of the government, especially in the context of the Anglophone crisis.” (Para. 31; emphasis added.)

“Amnesty International noted that Cameroon have continued to restrict the rights to freedom of expression, association and peaceful assembly, in particular during the protests in the Anglophone regions.” (Para. 32; emphasis added.)

“The Committee to protect journalist (CPJ) regretted that criminal defamation legislation against journalist continues to exist in Cameroon. CPJ noted that Cameroon is using the anti-terror law to prosecute journalist in military court, in particular since the unrest in English-speaking regions. It was concerned by the overly broad provisions of the law and the potential abuse of political opponents and the right to freedom of expression.” (Para. 33; emphasis added.)

“SCAPAC noted that Cameroon has taken measures to exclude Anglophones from participation in government and employment in the public services and to shut down the internet in the South in violation to the right to free speech and access to information. It recommended to release journalists and to ensure a favorable climate for the activities of human rights defender. The Law Society of England and Wales found it regrettable that the anti-terrorism law is used to bring proceeding against human rights defenders. It recommended that Cameroon should respect the rights to freedom of association and assembly and provide human rights defenders the protection required to carry out their functions. Plateforme EPU made the same observations on the counter-terrorism law and expressed concern about the law’s adverse effects on freedom of expression.” (Para. 35; emphasis added.)

“CPJ also noted that Cameroon led an internet shutdown in the English-speaking regions and suspended broadcast permission for several Medias. It recommended Cameroon to ensure an environment conducive to press freedom by revising the antiterrorism law and decriminalizing defamation. It further recommended that Cameroon ensure that arrests and detention comply with international human rights law and to maintain internet access across the entire country.” (Para. 36; emphasis added.)

In the context of the government’s response to the Anglophone crisis, Front Line Defenders reported the deteriorating environment for the activities of human rights defenders in Cameroon. It also noted that human rights defenders were victims of threats, intimidation, smear campaigns and physical attacks.87It regretted the adoption of the antiterrorism law, which further increase the chance for human rights activist to be charged in military courts and to face the death penalty. It also noted the continued violation of freedom of assembly. Front Line Defenders urged Cameroon to review and amend the 2014 anti-terrorism law to ensure that its provisions are not used to restrict freedom of expression or association and to take actions to put an end to the arbitrary arrest and detention of human rights defenders. It further recommended that Cameroon guarantee the exercise of the right to freedom of peaceful assembly and a safe environment for human rights defenders by ending the harassment against human rights defenders and bringing perpetrators to justice. Plateforme EPU made the same observations concerning infringements of freedom of expression and of the rights of human rights defenders.” (Para. 37; emphases added.)

“The Southern Cameroons Public Affairs Committee further indicated that Anglophones have been marginalized and assimilated in the sphere of education. It recommended to protect linguistic heritage of the Anglophones and ensure that education is adapted to their cultural heritage.” (Para. 44; emphasis added.)

Advance Questions for Cameroon[4]

 The following advance questions were submitted by other Council members:

Member Questions
Belgium 1.Does Cameroon plan to sign and ratify the UN human rights conventions to which it is not yet party?

2.Does the Cameroonian Government plan to ratify the Rome Statute of the International Criminal Court, the APIC or align its national legislation with the Rome Statute?

3.In the previous UPR, Belgium recommended that Cameroon investigate cases of police violence against persons because of their actual or perceived sexual orientation. What measures has the Cameroon authorities taken in this regard?

4. How does the Cameroonian government guarantee freedom of expression on the Internet in all parts of the country?

5. Does the Cameroonian government intend to continue the de facto moratorium on the execution of the death penalty, including the application of the anti-terrorism law?

6. What measures is the Government of Cameroon taking to put an end to the escalation of violence, arbitrary arrests and ill-treatment of State agents in the English-speaking areas of the country, and to ensure that after an independent investigation and impartial, those responsible are prosecuted and victims get redress? (Emphasis added.)

Brazil 1.The Committee on the Elimination of Discrimination against Women (CEDAW) has expressed concern about the persistence of gender-based violence. What efforts is Cameroon planning to make to address this situation and improve the socio-cultural status of women?

2.What measures is Cameroon taking to protect children from sexual exploitation, violence, and early or forced marriages?

Germany 1.In the past, repeated allegations for violating human rights have been made against the security forces of Cameroon. How does the government ensure that human rights standards are met by the police and the military? (Emphasis added.)

2.What position does the Cameroonian government have towards international criminal law? Will there be any steps to ratify the Rome Statute in the near future?

3.The humanitarian situation in Cameroonian prisons has worsened in recent years due to progressive overcrowding. What measures is the Cameroonian government planning to improve in the short and medium term?

Liechtenstein 1.What steps has Cameroon taken to ratify the Rome Statute in its 2010 version?

2.What steps has Cameroon taken to join the Code of Conduct regarding Security Council action against genocide, crimes against humanity or war crimes, as elaborated by the Accountability, Coherence and Transparency Group (ACT)?

Portugal 1.Does Cameroon plan to sign and ratify the UN human rights conventions to which it is not yet party?

2.Has the State under review established a “national mechanism for implementation, reporting and follow-up” covering UPR recommendations, but also recommendations / observations made by the Treaty Organs? Human Rights, Special Procedures and relevant regional mechanisms? If so, could the State under review briefly share its experience in establishing such a mechanism, including difficulties encountered and lessons learned, as well as plans or needs for strengthening the mechanism in the future?

Slovenia 1.With regard to our recommendation from the 2nd cycle of the UPR on the elimination of female genital mutilation, we would like to request information on the efforts taken by the government in this regard.

2.When will the government establish the minimum age for marriage as 18 for both girls and boys?

United Kingdom

of G.B. & N. I

1.What steps has the government of Cameroon taken to complete an investigation into security forces’ handling of peaceful student protest at the University of Buea on 29 November 2016, to hold to account those responsible and to support victims?  (Emphasis added.)

2.What steps will the government of Cameroon take to address human trafficking, particularly of young women, for forced labor and sexual exploitation?

3.What steps is the government of Cameroon taking to ensure fair trials for Anglophone detainees and separatist leaders extradited from Nigeria who have been held incommunicado since January this year?  (Emphasis added.)

4.What steps is the government taking to promote freedom of expression, including improving access to information and ensuring a free media.

Conclusion

This blogger’s Cameroonian friends have emphasized that their Francophone brothers and sisters constitute roughly two-thirds of the population and control the central government; that Francophone teachers who do not know the English language are being sent into schools in the Anglophone areas of the country and forcing students to take examinations in the French language which they do not know; that Francophone judges who do not know the English language and the laws of the Anglophone areas are also being sent into these areas and deciding cases under French-language laws; and that the central government’s military forces are being sent into Anglophone areas and destroying villages and crops, thereby forcing those individuals to flee into nearby cities.

As a result, this post has emphasized the allegations of human rights violations being suffered by the Anglophones.

Future posts will examine the hearing and the final report.

=============================

[1] U.N. Hum. Rts. Council, National report: Cameroon (Mar. 5, 2018) https://documents-dds-

[2] U.N. Hum. Rts. Council, Compilation on Cameroon: Report of the Office of the U.N. High Commissioner for Human Rights (Mar. 12, 2018).

[3] U.N. Hum. Rts. Council, Summary of Stakeholders’ submissions on Cameroon (Feb. 28, 2018).

[4] U.N. Hum. Rts. Council, Advance Questions to Cameroon (First Batch); U.N. Hum. Rts. Council, Advance Questions to Cameroon (Second Batch).

 

Salvadoran Responses to Invalidation of Its Amnesty Law

As reported in a prior post, the Supreme Court of El Salvador in July 2016 invalidated the country’s 1993 Amnesty Law that had barred criminal prosecution of the most serious violations of human rights during their civil war.

In response the Salvadoran government is preparing legislation to implement that decision and replace that Amnesty Law. In addition, there have been recent important developments regarding three of those violations: (1) the 1980 assassination of Archbishop Oscar Romero; (2) the 1981 El Mozote massacre; and (3) the 1987 assassination of human rights advocate Herbert Anaya Sanabria. All of these developments originally were posted in Tim’s El Salvador Blog and are re-posted or incorporated here with permission.[1]

New Legislation

The Salvadoran government is preparing draft legislation to implement the court ruling and replace the amnesty law. According to an article in Salvador’s El Faro newspaper, the Salvadoran government is seeking advice on such a new law from Juanita Goebertus, an expert Colombian lawyer who participated in the peace accords signed by the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) in 2016. [2]

The key issue is what crimes that were committed during the war are not protected from prosecution and those that are so protected.  The ruling of the court only nullified the amnesty law as it applied to “crimes against humanity.”

Tim’s El Salvador Blog suggests the only crimes against humanity and perhaps war crimes are not exempt from prosecution, but I think that is too narrow. An apparent quotation from the Supreme Court decision in that Blog says the non-exemption applies to “the cases contained in the report of the Truth Commission, as well as those others of equal or greater gravity and transcendence.”

The Rome Statute of the International Criminal Court provides in Article 1 that it shall have “jurisdiction over persons for the most serious crimes of international concern,” which are specified (with definitions) in Articles 6, 7 and 8 as “crimes against humanity,” “war crimes,” and “the crime of genocide.”[3]

According to Tim’s Blog, another issue to be addressed in the new legislation is “whether perpetrators of crimes against humanity will face criminal punishment including jail time.” A Salvadoran newspaper “suggests that both ARENA and the FMLN would like legislation in which the possibility of jail time is eliminated.  What is left unclear is what process will exist to judge responsibility for these crimes and what reparations might be available to victims.    Nor is it clear if the victims have had a voice in defining any of this process.”

Romero Assassination

On March 23–the day before the 37th anniversary of the assassination of Archbishop Romero–“human rights lawyers filed a petition with a court in the capital of San Salvador to reopen the case of this assassination.   They are asking the court to proceed judicially to establish the facts and the responsible parties for this horrible crime.” [4]

El Mozote Massacre

Previous posts have discussed the 1981 massacre  near the Salvadoran village of El Mozote and various legal proceedings regarding this atrocity. [5]

“Twenty ex-members of El Salvador’s military, including high-ranking generals, [this March] have been cited to appear in court in San Francisco Gotera, in Morazan department, in connection with the 1981 El Mozote massacre. On March 29 a Salvadoran court held a hearing to notify nine of these men, including former Defense Minister Jose Guillermo Garcia, ex-chief-of staff Rafael Flores, five other former colonels and two others who did not appear in court that they are being investigated for their alleged roles in the El Mozote massacre. Former Defense Minister Garcia had no comments to the court or the press regarding this development. On March 30 an additional nine former military officials were similarly notified. [6]

This is the first case in a court in El Salvador involving El Mozote and the first case to proceed after last year’s nullification of the 1993 Amnesty Law.”

“The cited officers include  general José Guillermo García, ex-minister of defense; general Rafael Flores Lima, ex-chief of the Joint Chiefs of Staff of the Armed Forces; Colonel Jaime Flores Grijalva, ex-commander of the Third Infantry Brigade; General Juan Rafael Bustillo, ex-commander of the Salvadoran Air Force; and other lower ranking officers involved in the events.”

“The crimes alleged include murders, aggravated rape, kidnapping, acts of terrorism and other offenses.”

“The actions of the judge in San Francisco Gotera responds to a petition by the legal team for the victims headed by Tutela Legal ‘María Julia Hernández.’    The human rights lawyers have complained about the slow, passive approach being taken by the Attorney General’s office which has not moved the case forward despite the removal of the Amnesty Law and a judgment of the Inter-American Court for Human Rights requiring the government of El Salvador to investigate and prosecute these crimes against humanity.”[7]

“The December 1981 El Mozote massacre was perhaps the worst atrocity of El Salvador’s twelve year civil war.  All but one of the civilians taking refuge in the small village of El Mozote, more than 800 men, women, children and babies, were brutally killed by the Salvadoran army.  It is a tragedy the world must never forget.”

Assassination of Human Rights Advocate Herbert Anaya Sanabria

“Salvadoran Attorney General Douglas Meléndez announced that his office is reopening the case involving the 1987 assassination of human rights advocate Herbert Anaya Sanabria.According to an Amnesty International Report in 1988, his killing, carried out by men in plain clothes using silencers on their guns, followed repeated harassment and threats directed at Anaya himself and at other independent human rights monitors in El Salvador.” 

“Although a trial convicted an ERP guerrilla member,Jorge Miranda, for the murder, most believe that the assassination was carried out by government forces. Miranda was released from prison because of the now invalidated Amnesty Law, but the Attorney General said that Miranda would need to be tried again and that if any relative or other interested persons had information about other material actors or intellectual authors of the crime, the prosecutors would pursue any leads.”

Conclusion

We will be paying close attention to Tim’s El Salvador Blog to keep us apprised of further developments on these matters.

===============================================

[1] Amnesty or restorative justice?, Tim’s El Salvador Blog (Mar. 28, 2017); Oscar Romero–37 years after his assassination, Tim’s El Salvador Blog (Mar. 24, 2017); Court cites high military commanders in El Mozote massacre case, Tim’s El Salvador Blog (Mar. 15, 2017); Salvador Attorney General opens new war crimes case, Tim’s El Salvador Blog (Mar. 22, 2017); Historic first step towards justice at El Mozote, Tim’s El Salvador Blog (Mar. 31, 2017). Congratulations and appreciation for Tim’s faithful publication of his blog for the last 13 years.

[2] Rauda, Presidencia busca una nueva ley que permita a los criminales de guerra evitar la cárcel, El Faro (Mar. 26, 2017).

[3] The Rome Statute also includes in Article 5(1) (d) “the crime of aggression” as within the jurisdiction of the ICC, but it was not defined until the States Parties did so at the Review Conference of June 2010, and its ratification and applicability is a complex subject that does not need to be addressed here since the crime of aggression seems less relevant to instances of civil war like El Salvador’s.

 

[4] There have been numerous posts about Romero and his assassination. See posts listed in the “Oscar Romero” section of List of Posts to dwkcommentaries–Topical: EL SALVADOR.

[5] See posts listed in the “El Mozote Massacre” section of List of Posts to dwkcommentaries–Topical: EL SALVADOR. A recent article describes the aftermath of the massacre. (Maslin, The Salvadoran Town That Can’t Forget, The Nation (Mar. 30, 2017).)

[6] Ramos, El Mozote sienta en el banquillo al general del Ejército más oscuro, El Faro (Mar. 30, 2017).; Rauda, Pedro Chicas resurrects to prosecute those responsible for El Mozote, El Faro (Apr. 1, 2017)(Google translate).

[7] The decision of the Inter-American Court of Human Rights regarding the El Mozote massacre was discussed in this post: The el Mozote Massacre: Inter-American Court of Human Rights Determines El Salvador Violated the American Convention on Human Rights, dwkcommentaries.com (Dec. 16, 2012).

 

 

Exploring Sub-Saharan African History

 I am currently taking a brief course, “Sub-Saharan African History to Colonialism,” to learn about such history “from many angles: anthropological, historical, geographic, cultural, and religious. From human origins through the populating of the continent, the great civilizations, the slave trades, to the beginning of European domination.” Offered by the University of Minnesota’s Osher Lifelong Learning Institute (OLLI), the course’s instructor is Tom O’Toole, Emeritus Professor of Sociology and Anthropology of Minnesota’s St. Cloud State University.

Why does this Euro-American septuagenarian take this course? Foremost, I know virtually nothing about this history and want to know more. I also realize that I have various direct and indirect connections with Africa.

The most immediate precipitating cause is reading the discussion of the names of African and African-American intellectuals and historical figures that were discovered at Howard University by African-American author Ta-Nehisi Coates and recounted in his book “Between the World and Me” and my realizing that I did not know virtually any of these people. This book also has prompted me to research and investigate my own notions of race, including my recent posts about statements from the American Anthropological Association about race’s non-scientific basis and historical and cultural background. Further posts about notions of race are forthcoming.

I learned more about one of these figures of African history this spring when my 10th-grade grandson wrote a History Day paper on Mansa Musa, who was a 14th century Emperor or King of Mali. Moreover, one of my sons knows more about this history from his having studied African history and Swahili at the University of Minnesota and from spending a semester in Kenya with a program of the National Outdoor Leadership School and then a week on his own living with a Maasai tribesman in that country.

Coates also legitimately castigates the U.S. history of slavery and its lasting impacts on our country. This has underscored my interest in the importation of slaves from Africa to the Western Hemisphere. This was part of Lawrence Hill’s fascinating novel “The Book of Negroes” (“Someone Knows My Name”), about which I have written. Moreover, I have visited Matanzas, Cuba and Salvador, Brazil, which were major ports of importation of African slaves to work on sugar plantations in those countries.

I have a number of friends from West Africa (Cameroon, Nigeria and Ghana) and visited Cameroon on a mission trip from Minneapolis’ Westminster Presbyterian Church. There I learned about the country’s having been a German colony (Kamerun) in the 19th century and then having French and British administration under League of Nations mandates after Germany was stripped of its African colonies by the 1919 Treaty of Versailles ending World War I. Forty-plus years later Cameroon became an independent country with the joinder of the Francophone and Anglophone territories. Yet life today in the country is still affected by the language and cultural differences from the French and British governance and less so by the previous 30-plus years of German rule.

I also have visited Namibia, Botswana and South Africa focused primarily on observing their magnificent wildlife and nature, but also the prison on Robben Island, where Nelson Mandela and other African National Congress leaders were imprisoned during the years of apartheid. In addition, I had the opportunity to see and hear Mandela speak at a 2003 celebration of the centennial of the Rhodes Scholarships held at Westminster Hall in London and to see him escorted through the Hall’s audience, only 10 feet from me and my wife, by Bill Clinton and Tony Blair.

The visit to South Africa also included stopping at Cecil Rhodes’ Cottage and Museum at Mulzenberg overlooking False Bay and the Indian Ocean at the southwest corner of the country. (My interest in Cecil Rhodes, the Founder of the Scholarships, and his 19th century involvement in South Africa and Rhodesia (now known as Zimbabwe) stems from being a Rhodes Scholar who was “up” at Oxford, 1961-1963, and from my gratitude for being a beneficiary of his largess.)

While co-teaching international human rights law at the University of Minnesota Law School, I learned about the International Criminal Court, whose initial cases all came from Africa, thereby prompting some resistance from African leaders who thought this was anti-African discrimination. (I have written many blog posts about the ICC.) Previously I had been a pro bono lawyer for two Somali men’s successful applications for asylum in the U.S.

Other indirect connections are provided by three Grinnell College classmates. One became a professor of African history. Another served in Africa with the Peace Corps in Ethiopia, where he met his English wife serving in a similar British program and where they both frequently return to participate in a project of preparing and distributing audio textbooks for blind students. The third classmate, also in the Peace Corps, served in Mali, where he was involved in smallpox eradication. In addition, one of my Grinnell roommates from Chicago now lives in South Africa.

All of these direct and indirect connections with Africa provided additional motivation to learn more about its history. In a subsequent post I will attempt to summarize the key points of this brief exploration of African history.

 

 

 

 

 

 

 

 

 

 

 

 

 

The Birth of the Word “Genocide”

Raphael Lemkin
Raphael Lemkin

In the fall of 1944, the word “genocide” appeared for the very first time in the book “Axis Rule in Occupied Europe” by Raphael Lemkin, a Polish lawyer who lost most of his family in the Holocaust and who fled to the U.S. in 1941. The book, which was published by the Carnegie Endowment for International Peace, introduced the word as “A New Term and New Conception for Destruction of Nations.”[1]

Lemkin was inspired to create the term after listening to a 1941 radio speech by Winston Churchill, who talked about “the barbaric fury of the Nazis” and the world being “in the presence of a crime without a name.” Lemkin considered and then rejected terms like “barbarity,” “vandalism,” and “ethnocide.” Finally he created the word “genocide” by combining the Greek “genos” meaning “people” or “nation” with the Latin-derived suffix “-cide” for “killing.”

Lemkin then embarked on the mission of convincing governments to use the term to define a new crime under international law. In 1948 the United Nations General Assembly agreed with its approval of the Convention on the Prevention and Punishment of the Crime of Genocide. As of October 27, 2014, there are 146 states that are parties to this treaty.[2]

The treaty defines the crime of “genocide” as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (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; (d) Imposing measures intended to prevent births within the group; [or] (e) Forcibly transferring children of the group to another group.”

Now genocide is one of the crimes that is within the jurisdiction of the International Criminal Court and within the customary international law principle of universal jurisdiction whereby any state may prosecute an individual for the crime regardless of where the crime occurred.

A new documentary film, “Watchers of the Sky,” brings Lemkin’s creative process to the screen by animating pages of his notebooks and by telling the stories of contemporary crusaders like Samantha Power, the U.S. Ambassador to the United Nations and the author of a book about post-World War II commissions of genocide, “A Problem from Hell.”

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[1] This post is based upon the citations embedded above and upon Ben Zimmer, How ‘Genocide’ Was Coined, W.S. J. (Oct. 27, 2014). The Carnegie Endowment for International Peace was created by Andrew Carnegie in the early 20th century as discussed in a prior post.

[2] Although the Convention was unanimously adopted by the General Assembly in 1948 and signed two days later for the U.S. by President Harry Truman, it was not ratified by the U.S. until 1988 as discussed in a prior post.

Palestine Has Decided To Join the International Criminal Court

Dr. Hanan Ashrawi
Dr. Hanan Ashrawi

On September 2nd at the United Nations headquarters, Dr. Hanan Ashraw, a member of the executive committee of the Palestine Liberation Organization (PLO), said that Palestine has decided to join the International Criminal Court (ICC).

Ever since Palestine obtained observer-state status at the U.N. in late 2012, over Israeli and U.S. opposition, Palestine’s government has threatened to join the Court as a way to prosecute Israeli actions in the occupied territories. But the PLO deferred a decision, Dr. Ashrawi said, in order to give U.S.-led diplomacy a chance to succeed.

The deferral also gave the P.L.O. leadership the opportunity to convince other Palestinian political factions, including the militants, that they would have more to gain than to lose from joining the ICC, including subjecting Palestinian factions, including Hamas, to its jurisdiction. The PLO leadership, Dr. Ashrawi said, “wanted to ensure that all factions are O.K. with it,” and now they are.

As a prior post reported, Palestine with observer-state status at the U.N. is eligible to join the ICC. The U.S. and Israel are opposed to such membership, but they cannot prevent it from happening.

Later this month, the Palestinians are planning another move to put more pressure on Israel. This will be a motion to have the U.N. Security Council demand that Israel end its occupation of Palestinian territory within three years. If such a motion is made, the U.S. is expected to veto the measure. Anticipating such a veto, the Palestinians may put the issue before the U.N. General Assembly, where Palestine has wide support.

 

 

 

 

 

 

 

International Criminal Court Prosecutor: ICC has No Jurisdiction Over Alleged War Crimes in Palestine (Gaza)

International Criminal Court
International Criminal Court

On September 2, 2014, the International Criminal Court Prosecutor, Fatou Bensouda, issued a statement, “The Public Deserves to know the Truth about the ICC’s Jurisdiction over Palestine.” The conclusion? The Court has no jurisdiction over any claims arising out of events in Palestine.

As the statement says, the “Rome Statute, the ICC’s founding treaty, is open to participation by states. [The] Prosecutor . . . can only investigate and prosecute crimes committed on the territory or by the nationals of states that have joined the ICC Statute or which have otherwise accepted the jurisdiction of the ICC through an ad hoc declaration to that effect pursuant to article 12-3 of the Statute.” Those requirements for ICC jurisdiction have not been satisfied. Here are the predicates for that conclusion:

  • In 2009 the Palestinian Authority sought to   accept the ICC’s jurisdiction, but the Prosecutor in April 2012 after “thorough analysis and public consultations” concluded that the Palestinian Authority’s “observer entity” status at the UN at that time meant that it could not sign up to the Rome Statute. As Palestine could not join the Rome Statute, the former Prosecutor concluded that it could not lodge an article 12-3 declaration bringing itself under the ambit of the treaty either, as it had sought to do. “  (Emphases added.)
  • On November 29, 2012, Palestine’s status was upgraded by the UN General Assembly (UNGA) to “non-member observer State” through the adoption of resolution 67/19. The [Prosecutor’s] Office examined the legal implications of this development for its purposes and concluded that while this change did not retroactively validate the previously invalid 2009 declaration lodged without the necessary standing, Palestine could now join the Rome Statute.”[1]
  • “To date, [however,] the Rome Statute is not one of the treaties that Palestine has decided to accede to, nor has it lodged a new declaration [accepting the Court’s jurisdiction] following the November 2012 UNGA resolution.”
  • “It is a matter of public record that Palestinian leaders are in the process of consulting internally on whether to do so; the decision is theirs alone to make and the ICC Prosecutor cannot take this decision for them.”

If the requirements for jurisdiction over events in Palestine were established, the Prosecutor said she “will vigorously pursue those – irrespective of status or affiliation – who commit mass crimes that shock the conscience of humanity.”

Finally, the statement said, “The Office of the Prosecutor of the ICC has never been in a position to open such an investigation for lack of jurisdiction. We have always, clearly and publicly, stated the reasons why this is so.” Indeed, in November 2013, the Office of the Prosecutor released its Report on Preliminary Examination Activities 2013, which on pages 53-54 set forth basically the same analysis and conclusion in the just released statement.

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[1] A prior post discussed the U.N. General Assembly resolution upgrading Palestine’s status and the resulting Prosecutor’s investigation of that development on ICC jurisdiction. Earlier posts in 2011 and 2012 also touched on the jurisdictional issue regarding Palestine while another post provided an introduction to the ICC..

Are the International Criminal Court’s Kenyan Cases Collapsing?

 

Uhuru Kenyatta
Uhuru Kenyatta
William Ruto
William Ruto

 Today before a cheering crowd of 60,000 in a Nairobi stadium, Uhuru Kenyatta and William Ruto were inaugurated as the new president and deputy president of Kenya. In his inaugural speech Kenyatta made a  veiled reference to the pending charges against him and other Kenyans in the International Criminal Court (ICC) when he said, ““Kenya will strive to uphold our international obligations” but that these obligations must be based on “mutual respect.”

Also in attendance was Uganda’s president, Yoweri Museveni, who told the crowd he applauded Kenyans for rejecting the “blackmail” of the ICC, which was steered by “arrogant actors” to “install leaders of their choice in Africa and eliminate those they don’t like.”

As discussed in a prior post, both Kenyatta and Ruto and another Kenyan (Joseph Arap Sang) are scheduled to go to trial in the next three months before the ICC in the Hague on charges of crimes against humanity in connection with violent deaths after the Kenyan election in 2007.

Now there are rumblings that suggest these three cases are collapsing not long after three other Kenyan cases had been terminated. [1]

The key case is Kenyatta’s. The Office of the Prosecutor (TOP) recently informed the Court that four of the 12 witnesses against Kenyatta have recanted their testimony because of security threats and fears of retaliation against their families.[2]

In response Kenyatta’s lawyers have asserted that the charges against their client were based on false evidence and have asked the ICC’s Trial Chamber to refer the case to the Pre-Trial Chamber for reconsideration of its January 2012 decision confirming the charges.

On April 5th the ICC Prosecutor issued a public statement deploring “the recent stream of sensationalist reports in the Kenyan media, on the level of witness cooperation [in these cases]. Witness protection remains one of our highest priorities. The Office will therefore not be drawn into any public speculation on the status of witnesses.  The courage and integrity of witnesses are essential to the Court’s determination of the truth, which is at the heart of justice. It is in the interest of all concerned to allow justice to take its course.”

A long-time observer of Kenya has said that the Kenyan Supreme Court’s March 30th validation of the election of Kenyatta “secured Kenya’s place as a shining international symbol of impunity” and that the ICC “case against Kenyatta now seems doomed.” According to this observer, witness intimidation and bribery “will only escalate, and it’s hard to see any Kenyan being brave — or foolhardy — enough now to take the witness stand against a head of state.”

This observer even thought “the failure of the Kenyatta case may be the first chime of the death knell for the I.C.C.”

We will have to stay tuned to see what happens in these cases. For this supporter of the Court, the outlook is not bright.


[1]  The Court’s Pre-Trial Chamber has refused to confirm charges against two other Kenyans (Henry Kiprono Kosgey and Mohammed Hussein Ali), and in March 2013 the Office of the Prosecutor withdrew the charges against another Kenyan (Francis Kirimi Muthaura) because of problems with prosecution witnesses, including alleged bribery. These cases also were discussed in the prior post.

[2] The same problem has emerged with at least one of the witnesses against the other two defendants (Ruto and Sang).

 

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

International Criminal Court
International Criminal Court

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.

Susan Rice
Susan Rice

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.

Stephen Rapp
Stephen Rapp

 

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]
Harold Koh
Harold Koh

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.