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.

 

 

 

 

 

 

 

 

 

 

International Criminal Court: Recent Developments

International Criminal Court

There have been significant recent developments at the International Criminal Court (ICC) with respect to Libya, the Democratic Republic of the Congo, Kenya, Sudan/Darfur, the Office of the Prosecutor, the campaign to add more States Parties to the Court’s Rome Statute and commentary on one of the Statute’s provisions.

Libya

ICC Report to Security Council. On May 16th the ICC Chief Prosecutor, Luis Moreno-Ocampo, made his semi-annual and last report on the situation in Libya to the U.N. Security Council. This was discussed in a prior post.

Postponement of Surrender of Saif Al-Islam Gaddafi. On June 1st the ICC’s Pre-Trial Chamber decided that Libya may postpones its execution of the Court’s request for the surrender of Saif Al-Islam Gaddafi , pending the Court’s final determination of Libya’s challenge to the admissibility of the case.

Libyan Detention of ICC Personnel. On June 6th four ICC staff members arrived in Libya to meet with Mr. Gaddafi to discuss his legal representation before the ICC. They were Melinda Taylor, an attorney who works in the ICC’s office of public defense and who was appointed to act as one of two interim lawyers for Mr. Qaddafi; an interpreter, Helene Assaf, from Lebanon; and Alexander Khodakov, a former Russian diplomat, and Esteban Losilla, a Spanish lawyer, who were sent to find out whether Mr. Qaddafi wanted counsel of his own choosing. Their visit had been agreed to by Libya.

The next day (June 7th), however, the four people were detained by Libyan authorities. The ICC protested their detention and demanded their immediate release.

However, as of June14th they were still being detained. They are accused of bringing a camera disguised as a pen and suspicious documents–letters for Gaddafi from allegedly dangerous people who are supporters of the old regime and a page with drawings that looked like codes. They also had three blank pages that were signed by Mr. Gaddafi. The Libyan authorities say they will not be released until Ms. Taylor answers questions about her dealings with Mr. Gaddafi.

In addition, as of June 14th the Libyan attorney general had said he had decided that Ms. Taylor and Ms. Assaf could be held for up to 45 days awaiting the results of his inquiry into possible “threats to national security.” The other two could leave Libya, but had chosen to stay to support their colleagues. The National Transitional Council has said that it was powerless to release the four individuals or influence the investigation

On June 15th the ICC issued a press release announcing that on the 12th (with the cooperation of Libyan officials) representatives of the ICC had met with the four individuals, who said they were in good health and had been well treated. The press release also made conciliatory comments that the ICC welcomed  the Libyan assistance, that the ICC was “very keen to address any regrettable misunderstandings on either side about the delegation’s mandate and activities during its mission in Libya” and that the ICC hoped “the release of the four detained persons will take place with no delay, in the spirit of the cooperation that has existed between the Court and the Libyan authorities.”

Democratic Republic of the Congo

Thomas Lubanga. On June 13th the ICC’s Trial Chamber held its hearing on the sentencing of Mr. Lubanga, who had been found guilty of war crimes regarding child soldiers. The Prosecutor asked for a sentence of 30 years imprisonment because of the seriousness of the crimes and the presence of these aggravating factors: (1) Lubanga as the top leader bears the greatest responsibility for the actions of the UPC militia; (2) his recruitment of children included particularly cruel treatment; (3) girls were recruited as sex slaves and were daily victims of rape by commanders and soldiers; and (4) children needed to be protected against violence and injuries and for their right to education.

Germain Katanga and Mathieu Ngudjolo Chui. The trial of these two gentlemen recently concluded, and the Trial Chamber’s judgment will be issued in the next several months. An interesting analysis of one of the issues raised in this case has been provided by Jennifer Easterday, a Ph.D. Researcher for the Jus Post Bellum project at the Grotius Centre for International Legal Studies at the University of Leiden in the Netherlands. That issue is whether the Trial Chamber may re-classify a conflict from international to non-international armed conflict or visa versa.

Callixte Mbarushimana. On May 30th, the ICC’s Appeals Chamber unanimously dismissedthe Prosecution’s appeal of the Pre-Trial Chamber’s refusal to confirm charges against Callixte Mbarushimana. The Appeals Chamber found that the Pre-Trial Chamber may evaluate ambiguities, inconsistencies, contradictions or credibility doubts in the evidence in determining whether to confirm charges under article 61 of the Rome Statute. The Appeals Chamber emphasized that “the confirmation of charges hearing exists to ensure that cases and charges go to trial only when justified by sufficient evidence” and that article 61(7) of the Rome Statute requires the Pre-Trial Chamber to evaluate whether the evidence is sufficient to establish substantial grounds to believe the person committed each of the crimes charged.

The Appeals Chamber also rejected the Prosecutor’s contention that under article 25(3)(d) of the Rome Statute, the contribution of an accused individual must be “significant”, because the alleged error did not materially affect the decision of the Pre-Trial Chamber. One of the three appellate judges, however, stated that the Pre-Trial Chamber erred in finding that the contribution to the crimes must be significant under article 25(3)(d) of the Rome Statute.

An NGO has observed that the decisions in the Callixte case are indicative of a more significant problem regarding gender-based crimes. It asserts that “more than half of all charges for gender-based crimes which reach the confirmation stage are not being successfully confirmed[;] no other category of charges before the ICC faces this level of dismissal and contention.”

Sylvestre Mudacumura. On May 31st the ICC’s Pre-Trial Chamber unanimously dismissedin limine (without examining the merits), the Prosecutor’s application for a warrant of arrest against Mr Sylvestre Mudacumura, considering that this application “fell short of the proper level of specificity” in describing the alleged crimes “for which the person’s arrest is sought”. The Chamber said the Prosecutor’s application did not provide “proper counts or any other kind of accompanying description of the specific facts underlying the crimes” and failed to “set out the specific references to the alleged crimes” as requested by the Rome Statute.

On June 13th the ICC Prosecutor submitted an amended application for an arrest warrant against Mr. Mucadumura, for five counts of crimes against humanity (murder, inhumane acts, rape, torture and persecution) and nine counts of war crimes (attack against a civilian population, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging and outrage upon personal dignity). The Prosecution said it considers Mr. Mudacumura the Supreme Commander of the FDLR-FOCA, one of the most active militias in the Kivu Provinces of the DRC, and is allegedly responsible for a campaign of violence targeting civilians in these provinces.

Kenya

On May 24th, the ICC’s Appeals Chamber unanimously rejected challenges to the ICC’s jurisdiction in the two Kenyan cases. It said that the interpretation and existence of an ‘organizational policy’ for certain crimes against humanity under the Rome Statute relate to the substantive merits of these cases, not whether the Court has subject-matter jurisdiction. Therefore, the Chamber found that the ICC has subject-matter jurisdiction over the alleged crimes.

Sudan/Darfur

On June   the ICC Prosecutor reported on the situation in Sudan/Darfur to the U.N. Security Council. This was discussed in a prior post.

New Chief Prosecutor

ICC Prosecutor Basouda

On June 15th, Fatou Bousouda, the ICC’s new Chief Prosecutor, officially took office. In her acceptance of this position, she said she was “humbled” by her appointment, and promised to continue pursuing all cases that fall under the court’s jurisdiction. Other major  points in her speech were the following:

  • “The one thing which every one of you can rest assured of is that I will be the Prosecutor of all the 121 States Parties, acting in full independence and impartiality. Justice, real justice, is not a pick‐and‐choose system. To be effective, to be just and to be a real deterrent, the Office of the Prosecutor’s activities and decisions will continue to be based solely on the law and the evidence.”
  • “Thanks to the tireless efforts and the commitment of Luis Moreno‐Ocampo, [her predecessor, there is now] . . .  a well‐respected and sound functioning Office [of the Prosecutor], with almost 300 staff from 80 countries, 7 situations under investigation, 14 cases before the Chambers, 7 preliminary examinations and one verdict.”
  • “As I speak, massive crimes continue to be committed in Darfur (Sudan); Joseph Kony and the Lord’s Resistance Army’s acts of violence continue unabated in central Africa. . . . In total, 11 arrest warrants remain outstanding. Nothing short of arresting all those against whom warrants have been issued will ensure that justice is done for millions of victims of . . . [their] crimes. . . .”

The Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia and a former ICC Deputy Prosecutor, Serge Brammertz, has emphasized the urgent need for the new ICC Chief Prosecutor to have the support of states in arresting the Court’s fugitives. He stressed the need for universal acceptance of the ICC as one way to combat the concern about its current exclusive concentration on African situations. Another of his suggestions for the new ICC Chief Prosecutor was doing more  to strengthen national court systems that are capable of handling the crimes that are within the ICC’s jurisdiction under the principle of complementarity.

Because the ICC cannot respond to atrocities the world over, Brammertz says, the U.N. should use the work of international fact-finding and investigatory commissions as bases “for choosing the right follow-up action, whether technical help to the affected country, setting up hybrid national/international structures, or referring the situation to the ICC.”  There also needs to be standard procedures for collecting and storing evidence or conducting interviews as well as a permanent operational infrastructure for such commissions.

A columnist for London’s Guardian newspaper suggested the following priorities for the new Prosecutor:

  1. Rebuild ICC relations with Africa. All of the Court’s active investigations and prosecutions come from Africa, and many Africans believe the Court is anti-African. Bensouda, herself an African, should consult more frequently with the African Union and work to restore confidence in the Court.
  2. Prosecute cases in other regions. She should continue pending preliminary _– into Columbia, Afghanistan, Georgia, Honduras and North Korea and seek permission to start an investigation of Syria. She also should work to increase the number of Arab nations that are States Parties.
  3. Restore transparency to the internal and external practices of the ICC. She should create clear and public processes for launching investigations and issuing arrest warrants, particularly in cases where she acts proprio motu – exercising her discretion to launch investigations of her own initiative.
  4. Improve witness protection and investigatory techniques.
  5. Improve investigatory techniques. The ICC needs to avoid over-reliance on NGOs that are not trained in interrogation and evidence gathering.

ICC States Parties

The ICC is engaged in a campaign for universal adoption of its Rome Statute to persuade the remaining 72 U.N. Members that are not States Parties to join the 121 that already have done so. This campaign, it has been suggested, could be strengthened by using the U.N. Human Rights Council’s Universal Periodic Review process to press those 72 members on the subject.

As previously noted, the U.S. in the Obama Administration is now a member of the U.N. Human Rights Council, and its participation is credited with helping to increase international scrutiny of human rights abusers.

Other

Under Article 53 of the Rome Statute,  the ICC’s Prosecutor may, in certain circumstances, decline to press charges “in the interests of justice,” and the Office of the Prosecutor (OTP) has issued a policy paper on this provision.

Linda M. Keller, Associate Professor at Thomas Jefferson School of Law in San Diego, recently has explored an ongoing debate over whether the OTP should adopt ex ante guidelines for prosecutorial discretion in order to increase transparency and legitimacy, especially with respect to the “interests of justice” provision. She compared this provision of the Rome Statute with a similar provision in New York and concluded that (1) “requiring a written rationale regarding exercise of discretion does not necessarily yield thorough or convincing explanations, undermining arguments that the legitimacy of the ICC will be enhanced by public explanations of prosecutorial discretion; ” (2)  “such explanations may backfire when the balancing of nebulous factors leads to apparently inconsistent or arbitrary reasoning and results, which may undercut the credibility of the decision-maker;” and (3) “the lack of a guiding theory to drive the interpretation of ambiguous criteria can lead to more confusion than clarity when there is no agreement on the theoretical justifications for prosecution.”

Dr. Kamari Maxine Clarke, Associate Professor of Anthropology at Yale University and a Research Associate at its Law School, also has written about the “interests of justice” provision in May 18 and 19 posts.