Rome Statute of the ICC – dwkcommentaries

Are International Criminal Tribunals Successful?

Michael Ignatieff, a former Harvard professor and expert on international human rights and a former leader of Canada’s Liberal Party, in a recent issue of The New York Review of Books expressed a gloomy view of the post-World War II development of international criminal tribunals.

The actions of the U.S. and other great powers have contributed to his negativity. He says, “America is exceptional in combining standard great-power realism with extravagant idealism about the country’s redemptive role in creating international order. . . . [The] US has promoted universal legal norms and the institutions to enforce them, while seeking by hook or by crook to exempt American citizens, especially soldiers, from their actual application. From Nuremberg onward, no country has invested more in the development of international jurisdiction for atrocity crimes and no country has worked harder to make sure that the law it seeks for others does not apply to itself.”

This negative assessment is buttressed by the new memoir by David Scheffer (All the Missing Souls: A Personal History of the War Crimes Tribunals). Scheffer, who was one of the leading U.S. diplomats involved in the negotiations that created these tribunals, recounts the U.S. resistance to (i) providing U.S. intelligence information to the ICTY; (ii) seeking to arrest the most egregious defendants for the ICTY; and (III) having U.S. citizens, especially soldiers, being subject to the jurisdiction of the International Criminal Court (ICC). A review of this book is the nominal subject of this essay by Ignatieff.

Scheffer’s post-mortem on his frustrations as the lead U.S. diplomat at the Rome Conference that produced the Rome Statute for the ICC is especially instructive on why the U.S. voted against that treaty at the conclusion of the conference and more generally on the U.S. process for negotiating and ratifying multilateral treaties.

According to Scheffer, there were four main reasons for the inability of the U.S. to advance its positions at the Rome Conference and its eventual vote against the treaty at the conference’s conclusion. U.S. military officials failed to know and understand other nations’ perspectives on the ICC and to explain to other nations the role of the U.S. military after the end of the Cold War. Nevertheless the U.S. military’s opposition to the ICC dictated the terms of the unsuccessful U.S. negotiating positions at the conference. In addition, the U.S. government was unable to make timely policy decisions on key issues being negotiated for the treaty. Thirdly, there are always distractions and other matters clamoring for the attention of the President and his top advisors; for President Clinton and the Rome Conference it was the Monica Lewinsky scandal. Finally, Republican Senators Jesse Helms of North Carolina and Rod Grams of Minnesota, who were vehemently opposed to the idea of an ICC, attended the Rome Conference to make their views known to other governments.

Scheffer also provides important background information on two developments after the Rome Conference that remind us that there are important issues for a treaty like the Rome Statute after its terms have been adopted. First, he successfully pressed for significant U.S. participation in the drafting of the ICC’s Rules of Procedure and Evidence and the Elements of Crimes that helped to alleviate some of the U.S. concerns regarding due process at the new court. Second, Scheffer also was successful in lobbying for the U.S.’ signing the Rome Statute before the end of 2000 (the last possible date for a state’s signing the treaty), which he did on behalf of the U.S. at the U.N. headquarters in New York City on December 31st (a very wintery Sunday New Year’s Eve Day). He, however, was not pleased with some of the details of President Clinton’s signing statement that said the treaty had “significant flaws” and that he would not be submitting the treaty to the Senate for advice and consent. The latter point, says Scheffer, was unnecessary since the Clinton presidency was almost over and since it usually takes years to prepare a treaty for submission to the Senate.

Ignatieff’s negative assessment of the U.S. split personality on this subject is also supported by the fact that the U.S. has been actively involved in the post-1945 negotiation of treaties that establish or codify international human rights norms, but has not ratified 16 such treaties, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the Rome Statute of the International Criminal Court. Moreover, the U.S. has subjected its ratification of 10 of 16 such treaties to reservations, declarations and understandings that attempt to limit the application of such treaties to the U.S. (David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process at 136-66 (3d ed. 2001).)

We have seen this phenomenon in a prior post‘s examination of the U.S. ratification of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and by another post’s noting that Protocol II to the Geneva Conventions has been languishing in the U.S. Senate for 25 years with no action on presidential requests for advice and consent to U.S. ratification of that treaty. Other posts examined the policies toward the ICC in the Clinton, George W. Bush and Obama Administrations.

According to Ignatieff, the development of mechanisms of international criminal justice “was supposed to rescue the possibility of universal justice from the revenge frenzies, political compromises, and local partialities of national justice.” This has not been the case, however, in his opinion, because “international justice turns out to be as much the prisoner of international politics as national justice is of national politics. Indeed, given the stakes, international justice may be more partial, that is, more politicized, than national justice.”

Therefore, he wonders if the creation of the international criminal tribunals—Yugoslavia, Rwanda, Cambodia, Sierra Leone, and the ICC —has been worth the effort and costs. From 1993 through 2009, he says, these tribunals collectively cost their donors $3.43 billion, but only 131 convictions were obtained.

In the next breath, however, Ignatieff seems to say that the tribunals have been worth all the trouble. He says that no one now is dying from atrocity crimes in Bosnia, or in Cambodia, Sierra Leone, or Rwanda, which have had special international criminal tribunals. “Justice—imperfect, partial, expensive—has been done and even been seen to be done. In these places, murderous rages have subsided. Some have reconciled. States have achieved stability. People are moving on. One of the reasons for this may be that in some cases justice was done.”

Although I share Ignatieff’s view of the imperfections of the mechanisms of international criminal justice and of U.S. (and other great powers’) resistance to application of such institutions or norms to themselves, I do not agree with his more pessimistic assessment of the development of international criminal tribunals.

First, he pulls the number of convictions at 131 from a table of results (as of December 31, 2010) in the Scheffer book without mentioning or considering these tribunals’ other results according to that table . Nor does Ignatieff attempt to update the table.

Let me first update that table and then discuss the overall results of these tribunals. My examination on April 1, 2012, of the websites for these tribunals revealed the following results with respect to individuals who have been charged with crimes by said tribunals:

Tribunal	Pre-Trail	Trial	Convicted (includes pending appeals)	Withdrawn/Dismissed/Acquitted/ Deceased	Referred to Nat’l Court	At Large	TOTAL
ICTY	2	16	81	49	13	0	161
ICTR	1	3	62	14	3	9	92
Special Ct.-Sierra Leone	0	1	8	2	0	1	12
Extra Chambers Cambodia	5	4	1	0	0	0	10
ICC	7	3	1	6	0	11	28
TOTAL	15	27	153	71	16	21	303

According to this table, Ignatieff understates the convictions by 22, but more importantly he ignores the 16 who have been referred to national courts, the 42 who are still in pre-trial or trial proceedings and the 21 who are still fugitives. Thus, there eventually may be additional convictions for the crimes that have been charged. Moreover, these courts are not machines to produce convictions; they are intended to provide due process guarantees to those charged with crimes, and the 71 individuals who have had charges withdrawn or dismissed or who have been acquitted or who have died before their trials could be completed suggest that these courts have been operating fairly.

Second, Ignatieff ignores the fact that the existence and operation of these tribunals have given incentives and programs to various countries to improve their judicial systems so that eventually they can try individuals for the crimes within the jurisdiction of these international courts. Indeed, 16 of the individuals who have been charged with crimes by these tribunals have had their cases transferred to national court systems. As previously noted, the ICC’s Rome Statute has provisions incorporating the principle of complementarity whereby the ICC defers to national prosecutions by competent national judicial systems.

Third, Ignatieff also ignores the fact that these tribunals have been important in developing a more elaborate international law regarding genocide, crimes against humanity and war crimes, and their precedents can be and are being used by other courts and agencies involved in cases or other proceedings regarding international human rights.

Fourth, Ignatieff fails to acknowledge that these tribunals are only one part of a complex, interactive global struggle against impunity for the worst crimes of concern to the international community. Various posts already have discussed many of these pieces to the puzzle, and a prior post summarized this interactive network

Finally, in my opinion, these tribunals have been successful for the foregoing reasons. The peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further developments, I am confident, will occur.

International Criminal Court and Victims of Genocide, Crimes Against Humanity and War Crimes

The Rome Statute of the International Criminal Court (ICC) has several unique provisions for victims. First, victims may participate in cases before the Court. Second, victims are entitled to reparations from those convicted by the Court, and the Court has a fund and procedures for victims to obtain reparations from the Court itself.

Victims’ Participation in Proceedings

Under the Statute’s Article 68(3), the Court “shall permit [victims’] views and concerns to be presented and considered at [various] stages of the proceedings . . .and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” In doing so, the Court, under Article 68(1), “shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses . . . [having] regard to all relevant factors, including age, gender . . . and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children.”

To carry out these provisions, the Court has created the Office of Public Counsel for Victims that seeks to ensure effective participation of victims in the proceedings before the Court by providing legal support and assistance to the legal representatives of victims and to victims. Members of the Office also may be appointed as legal representatives of victims, providing their services free of charge.

Victims’ Right to Reparations

Article 75(1)-(2) of the Rome Statute provides that the Court “shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation” and “may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.”

Pursuant to that provision, the Court’s Assembly of States Parties has adopted Rules of Procedure and Evidence. Its Rule 97 (1) provides that the Court ” may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both” in light of ” the scope and extent of any damage, loss or injury.” In addition, Rule 97(2) allows the Court to ” appoint appropriate experts to assist it in determining the scope, extent of any damage, loss and injury to, or in respect of victims and to suggest various options concerning the appropriate types and modalities of reparations.

To assist in the reparations effort, the Statute’s Article 79(1) directs the Court’s Assembly of States Parties to establish a Trust Fund “for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims.”

Such a trust fund (Trust Fund for Victims (TFV)) has been created, the first of its kind in the global movement to end impunity and promote justice. The TFV addresses and responds to the physical, psychological, or material needs of the most vulnerable victims. It raises public awareness and mobilizes people, ideas and resources. It funds innovative projects through intermediaries to relieve the suffering of the often forgotten survivors. The TFV, for example, is providing a broad range of support in northern Uganda and the Democratic Republic of Congo – including access to reproductive health services, vocational training, trauma-based counseling, reconciliation workshops, reconstructive surgery and more – to over 80,000 victims of crimes under the ICC’s jurisdiction.

In light of the conviction of Thomas Lubanga Dyilo, the TFV Board of Directors recently decided to increase the Fund to 1.2 million Euros. The Board also called upon the Court and States Parties to intensify efforts to identify and freeze assets of persons accused before the ICC, for the eventual purpose of financing Court-ordered reparations.

U.N. Human Rights Council’s Universal Periodic Review of the United States’ Human Rights Record

HumanRtsCouncilchamber — U.N. Human Rights council Chamber

The U.N. Human Rights Council since 2006 has been an important arm of the United Nations in recognizing and helping to enforce international human rights norms in the world. One of the ways it does this is its “Universal Periodic Review” (UPR) of individual U.N. member states.

The UPR is universal in that all 193 U.N. members and all human rights norms are reviewed once every four years. Such Review is to be “based on objective and reliable information, of the fulfillment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States.” This is to be done with “a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned.”

The UPR process involves (a) the state’s submission of a report to the Council, (b) submission of written questions and recommendations to the state from other states and stakeholders (human rights NGO’s, etc.), (c) a hearing by the Council, (d) the preparation of a draft report on the state by a Council working group, (e) the state’s comments on that report, (f) another hearing before the Council and (g) the Council’s adoption of a report on the outcome of the UPR.

In August 2010 the U.S. submitted its first UPR report to the Council. Three months later the Council considered this report and other documentation. The hearing for this UPR was held on November 5th in Geneva, Switzerland, and on November 9th, the Council debated the outcome of this UPR. The U.S. was represented at these meetings by high-level officials of the State Department and of other departments.

On January 4, 2011, the Council’s Working Group on the Universal Periodic Review of the U.S. issued its final report on this UPR. It set forth a compilation of all the 228 recommendations of the states, many of which were repetitive and some of which related to very specific issues with individual countries. These recommendations were not endorsed by the Working Group as a whole. The following is a summary of the major recommendations:

ratify or accede to (without reservations) the many multilateral human rights treaties that the U.S. has not joined, including the International Criminal Court’s Rome Statute;
revoke the reservations and declarations the U.S. has made to those human rights treaties it has ratified or acceded to;
abolish or reduce the use of capital punishment (the death penalty);
close the Guantanamo Bay detention facility;
prosecute and punish U.S. personnel who commit torture and other human rights violations and take measures to eliminate torture and compensate victims of past torture;
improve conditions for inmates in U.S. prisons;
improve U.S. laws and practices regarding immigrants;
recognize and implement the U.N. Declaration on the Rights of Indigenous Peoples;
increase efforts to combat racial discrimination and inequalities; and
establish an independent national human rights institute.

On March 8, 2011, the U.S. submitted its written response to this final report. Ten days later (March 18th), the Council held its final hearing [paragraphs 721-56, 772] on the UPR of the U.S.

The U.S. representatives opened the hearing by stating that the UPR “has been a useful tool to assess how the USA can continue to improve in achieving its own human rights goals” and that the U.S. had carefully reviewed all 228 recommendations and made detailed written comments on the recommendations. The U.S. then summarized its detailed responses to the following nine major groups of recommendations:

The U.S. supports recommendations concerning improving civil rights and anti-discrimination. It noted that the U.S. had adopted the Don’t Ask, Don’t Tell Repeal Act and that the Department of Justice had established a Fair Lending Unit and had increased its enforcement of laws prohibiting discrimination in voting, employment, public accommodations and education and hate crimes.
With respect to recommendations about criminal justice, the U.S. continued to work to ensure protection of the rights of detainees and inmates in its jails and prisons, and the State of Illinois had abolished the death penalty.
With respect to the rights of indigenous peoples, the U.S. committed itself to improve tribal consultations, and in December 2010 President Obama announced U.S. support for the U.N. Declaration of the Rights of Indigenous Peoples.
With respect to national security, the U.S. stated that it abides by all applicable law, including those respecting humane treatment, detention and use of force and will not tolerate torture or inhumane treatment of detainees wherever they are held. The U.S. also has reiterated its intention to close the Guantanamo Bay detention facility and its commitment to not treat entire communities as a threat to national security based upon their race, religion or ethnicity. The U.S. also announced the Administration’s intent to adhere to the humane treatment and fair trial standards of the Additional Protocol I to the Geneva Conventions and to seek the advice and consent of the U.S. Senate to U.S. ratification of the Additional Protocol II to the Geneva Conventions.
With respect to immigration, the U.S. was accepting many of the recommendations, was reviewing its handling of “emergent” immigration cases and was improving immigration detainee access to medical care.
With respect to economic, social, cultural and environmental rights, the U.S. noted that it had established a commission to examine disparities in educational opportunities and address children’s needs in distressed communities and that it had made grants to support health centers and improve access to health care by the uninsured.
The U.S. has long been a leader in fighting against human trafficking and recently had launched a media campaign in Mexico and Central America with information on the dangers of human trafficking and how to avoid becoming a victim. The U.S. also was a leader in workplace protections and was strengthening efforts to respond to gender wage differences and to educate the public about the civil rights of immigrant workers.
The U.S. was committed to a robust domestic implementation of its international human rights obligations.
The U.S. also had “pushed” for Senate advice and consent to ratification of a number of human rights and other treaties, including Protocol II to the Geneva Conventions.[1] But in its written comments on the recommendations the U.S. specifically rejected the recommendations that the U.S. ratify the ICC’s Rome Statute.

The hearing then was opened for comments by the Council’s members and other states. Ten states did so: Cuba, Iran, Venezuela, Algeria, China, Russia, Egypt, Bolivia, Morocco and Botswana. Thereafter 10 other relevant stakeholders, including Human Rights Watch, made comments. The U.S. then made a brief closing comment, saying that the “UPR process is an opportunity to shape an agenda for future work. Human rights are American core values and interests . . . [and] the U.S. focuses on the substance of a process of continuing self-examination and dialogue.”

The Council then adopted without a vote its working group’s report on the outcome of the UPR of the U.S. Note that the Council did not make any factual findings or determinations of violations or recommendations. It merely facilitated the process.

In addition to the final Working Group report and the U.S. response thereto, the written record for the UPR of the U.S. included (a) a report by the U.S. itself; (b) the U.N. High Commissioner for Human Rights’ compilation of information about the U.S. from the reports of human rights treaty bodies, special procedures and other U.N. documents; and (c) submissions from 103 “stakeholders,” including human rights NGOs. The submission by a coalition of U.S. human rights NGOs on the subject of immigration and asylum was prepared by Minnesota’s Advocates for Human Rights.

Finally it should be noted that from 2006 through 2008 during the George W. Bush Administration, the U.S. did not participate in the Council’s activities, but since then in the Obama Administration it has done so. This includes the U.S. seeking membership on the Council in 2009 and being elected to such status for a term that ends on December 31, 2012.

[1] Protocol II to the Geneva Conventions was submitted to the U.S. Senate on January 29, 1987, by President Reagan, and on March 7, 2011, President Obama urged “the Senate to act as soon as practicable on . . . Protocol [II], to which 165 States are a party. An extensive interagency review concluded that United States military practice is already consistent with the Protocol’s provisions. Joining the treaty would not only assist us in continuing to exercise leadership in the international community in developing the law of armed conflict, but would also allow us to reaffirm our commitment to humane treatment in, and compliance with legal standards for, the conduct of armed conflict.” Nevertheless, there has been no actionwhatsoever on this treaty by the Senate Committee on Foreign Relations or the Senate itself in the 25 years after its submission to that body. This is not surprising given the political composition of the Senate and the constitutional requirement for a two-thirds (67) vote for the Senate to give its advice and consent to ratification of a treaty.

International Criminal Court’s New Judges Take Office

On March 9th, five new judges of the International Criminal Court (ICC) were sworn in at a ceremony held at the seat of the Court in The Hague. The are Judges Howard Morrison (United Kingdom), Anthony T. Carmona (Trinidad and Tobago), Olga Herrera Carbuccia (Dominican Republic), Robert Fremr (Czech Republic) and Chile Eboe-Osuji (Nigeria).

The other judge who was elected at the December 2011 meeting of the Court’s Assembly of States Parties, Judge Miriam Defensor-Santiago (Republic of the Philippines), was unavailable due to personal circumstances and will be sworn in later.

The ICC has a bench of 18 judges who are nationals of States Parties to the Court’s Rome Statute. Judges are chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. The election of the judges takes into account the need for the representation of the principle legal systems of the world, a fair representation of men and women, and equitable geographical distribution.