The International Criminal Court and the Clinton Administration

During the Clinton Administration, the United States supported the idea of creating an international criminal court and was a major participant at the Rome Conference that produced the Rome Statute. At the conclusion of that Conference in July 1998, the Rome Statute was approved by a vote of 120 to 7. The seven negative votes were cast by the United States, Iraq, Israel, Libya, People’s Republic of China, Qatar and Yemen.[1]  These were the reasons advanced for the U.S. negative vote:

  • The U.S. wanted an ICC that was controlled by the U.N. Security Council where the U.S. as a permanent member had a veto. Although the U.S. was able to get some provisions in the Statute that gave the Security Council certain rights vis-à-vis the ICC, the Statute allowed the Court to proceed with investigations and prosecutions based upon referrals by member states and upon the prosecutor’s own initiative.
  • The Statute left open the possible assertion of the Court’s jurisdiction over nationals of a non-State Party such as the U.S.[2]

On December 31, 2000 (two and a half years after the Rome Conference and in the last month of his Presidency), however, President Clinton signed the treaty on behalf of the U.S. His formal statement on this action said that he did so “to reaffirm our strong support for international accountability and for bringing to justice perpetrators of genocide, war crimes and crimes against humanity” and for the U.S. “to remain engaged in making the ICC an instrument of impartial and effective justice.”  On the other hand, President Clinton stated that the U.S. was not “abandoning our concerns about serious flaws in the treaty.” Foremost was the Court’s ability to “claim jurisdiction over personnel of states that have not [ratified the treaty].” Therefore, he said, he “will not, and do not recommend that my successor submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied.” Therefore, in the last month of his Presidency, President Clinton did not submit the Rome Statute to the Senate.[3]


[1] There also were 21 countries that abstained on the final vote on the Rome Statute. (Wikipedia, Rome Statute of the International Criminal Court, http://en.wikipedia.org/wiki/Rome_Statute_of_the_International_Criminal_Court.

[2] Scharf, Results of the Rome Conference for an International Criminal Court, ASIL Insights  (Aug. 1998), http://www.asil.org/insigh23.cfm; Wedgwood, Fiddling in Rome: America and the International Criminal Court, Foreign Affairs (Nov/Dec. 1998).

[3] President Clinton, Statement on Signature of the International Criminal Court Treaty  (12/31/00), http://www.amicc.org/docs/Clinton_sign.pdf; Congressional Research Service, U.S. Policy Regarding the International Criminal Court (29/08/96),  http://fpc.state.gov/documents/organization/73990.pdf. Under Article II, Section 2 of the U.S. Constitution, the President has the “Power, by and with the Advice and Consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”

The International Criminal Court: Libya Investigation Status

On May 4th the ICC Prosecutor reported to the U.N. Security Council regarding the status of his office’s investigation of “the situation in Libya since February 15, 2011.”[1] (As noted in a prior post, the ICC is investigating the Libya situation by virtue of the February 26, 2011, U.N. Security Council’s unanimous Resolution referring the situation in Libya to the ICC.[2])

The Prosecutor in his May 4th report said that soon he would be submitting his first application to the Court’s Pre-Trial Chamber for the issuance of arrest warrants in this investigation. The first such application will be against three individuals who appear to bear the greatest criminal responsibility for crimes against humanity in Libya since February 15th. These would be “those who ordered, incited, financed, or otherwise planned the commission of the alleged crimes.” He did not give the names of the three, but it is expected that one will be Colonel Muammar al-Gaddafi.

According to the Prosecutor, the evidence provided a reasonable basis to believe that the regime’s security forces have been systematically shooting and killing at least 500 to 700 peaceful protesters and injuring many more, using the same modus operandi in multiple locations. In addition, the security forces are engaged in persecution by systematic arrests, torture, killings and enforced disappearances of civilians who have participated in demonstrations, or who are considered disloyal to the regime or who have talked to international media, activists or journalists.

Such conduct, if established at trial, constitutes crimes against humanity under Article 7 of the Court’s Rome Statute: “widespread or systematic attack directed against any civilian population, with [the accused’s] knowledge of the attack [involving] murder; . . . torture; . . . persecution against any identifiable group . . . on political . . . grounds . . .; [or] enforced disappearance of persons.”

The Prosecutor reported that such charges would be admissible in the ICC because there was no national investigation or prosecution of individuals for such conduct and there were no “interests of justice” that called for the Prosecutor not to investigate or prosecute individuals for these crimes.

The Prosecutor also noted that his office was still investigating other crimes against humanity as well as war crimes in Libya and implied that is office might be seeking other arrest warrants.

All 15 members of the Security Council at the May 4th meeting complimented the Prosecutor for his immediate, professional and thorough investigation of the Libyan situation and stressed the importance of further investigation and prosecutions. Interestingly the Indian representative said the Prosecutor should not be influenced by “non-judicial considerations” and should investigate the conduct of both sides to the conflict. More ominously, the South African representative said that the Prosecutor should investigate any actions by the NATO coalition that “fall outside the scope of [the Security Council’s resolutions on Libya]” and that violate the provisions of the Rome Statute.

By referring the Libyan situation to the Court, the Security Council clearly saw the ICC’s investigation and prosecution as one of several means to try to stop the horrible repression in Libya in addition to the Security Council’s establishing an arms embargo, travel ban, asset freeze and military imposition of a “no-fly zone” and authorizing “all necessary measures” to protect civilians.

On the other hand, some see ICC investigations and prosecutions as making it more difficult to end what has become a Libyan civil war in that they provide an additional motivation for Gaddafi and others to fight to the bitter end.[3]  At the May 4th Security Council meeting, the Chinese representative said the ICC needed to remember that “peaceful dialogue and negotiations are the best way forward towards a political solution to the crisis,” and the Nigerian representative made similar comments, saying that the prosecution must be “carefully calibrated to support the ongoing political efforts to find a peaceful solution.”

Stay tuned for further developments in Libya and at the ICC in The Hague.


[1]  ICC Press Release, The Office of the Prosecutor will request an arrest warrant against three individuals in the first Libya case (May 4, 2011, http://www2.icc-cpi.int/NR/exeres/DCBD3E2C-C592-4FB8-B7CB-E18E67F692D1.htm; ICC, First Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011) (May 4, 2011); U.N. Security Council, 6528th Meeting (May 4, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/321/42/PDF/N1132142.pdf?OpenElement. For background on the ICC, see Post: The International Criminal Court: Introduction (April 28, 2011).

[2]  Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[3]  Sands, The ICC arrest warrants will make Gaddafi dig in his heals, Guardian (May 4, 2011), http://www.guardian.co.uk/commentisfree/2011/may/04/icc-arrest-warrants-libya-gaddafi/print

The International Criminal Court: Investigations and Prosecutions

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

International Criminal Justice: Introduction

Since the end of World War II, we the peoples of the world, acting through our nation-state governments, have codified or created numerous international human rights norms. This started with 1945’s Charter of the United Nations and 1948’s Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide. Other multilateral human rights treaties have followed, including the International Convention on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[1]

Given the world’s nation-state sovereignty basis, we the peoples of the world have grappled with the very real problem of how to enforce such norms in order to punish violators, to deter future violations, to provide redress to victims and survivors, and to investigate and promulgate the “truth” about past violations. The response has been the creation of various mechanisms, none of which is perfect: state reporting to U.N. Charter and treaty bodies for review, comment and recommendations; complaints by states and individuals to such bodies for recommended solutions; international investigations of specific countries or problems; civil litigation for money damages against violators in domestic courts and international courts like the Inter-American Court of Human Rights; and truth commissions.[2]

Another response has been seeking to subject violators to criminal sanctions (imprisonment) in national courts under the international law principle of universal jurisdiction whereby a nation’s courts have legitimate criminal jurisdiction over genocide, crimes against humanity and war crimes no matter where in the world such crimes were committed. Criminal sanctions have also been imposed by international criminal tribunals like the Nuremberg and Tokyo War Crimes Tribunals at the end of World War II and more recently by so called ad hoc tribunals created by the U.N. Security Council (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)). Even more recently the International Criminal Court (ICC) has been created.[3] Collectively these mechanisms often are referred to as international criminal justice.

In future posts we will examine a Spanish court’s use of the universal jurisdiction principle to commence criminal investigations. In other posts we will analyze the International Criminal Court and its relations with the United States.


[1]  David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, ch. 1 (4th ed. 2009) [“Weissbrodt”].

[2]  Id. , chs. 4-6, 9, 11, 12, 14, 15, 16.

[3]  Id. at 11, 483-586. The text of the Rome Statute, which will be referenced throughout this article, is available at:  http://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf.

Former U.N. High Commissioner for Human Rights Supports U.N. Security Council on Libya

Mary Robinson, the former U.N. High Commissioner for Human Rights (1997-2002), this week expressed her support of the recent U.N. Security Council’s actions on Libya.[1]

On February 26, 2011, the Council unanimously adopted Resolution 1970, which among other things, referred the Libyan situation since February 15, 2011, to the International Criminal Court’s Prosecutor, directed the Libyan authorities to cooperate fully with the Court and Prosecutor and invited the Prosecutor to make periodic reports about his actions in this matter to the Council.[2] This action, Robinson said, was unusual, but demonstrated the usefulness of having a permanent international criminal court that could be called upon in ongoing situations involving the most serious crimes of international concern and that could help to stop those crimes before they become worse. She also recognized, on the other hand, that the referral might complicate efforts to get Colonel Gadhafi and others to abdicate power by fleeing to another country because of the possibility of criminal charges by the ICC.

Less than three weeks later, the Council, 10 to 0 (with 5 abstentions), approved Resolution 1973, which authorized U.N. members to take all necessary measures to protect civilians under threat of attack in Libya by establishing a no-fly zone, but excluding a foreign occupation force.[3] Robinson asserted that this action was a proper exercise of the emerging international principle of the duty or right to protect or humanitarian intervention because of the imminent threat by the Gadhafi regime to kill many of its own people, especially in Benghazi. She also cautioned against expanding these military measures into intervention on the ground.

In addition, Robinson applauded this year’s “Arab Spring.” The uprisings in the Middle East included many women and demonstrate, she said, that men and women all over the world want human dignity, freedom and human rights as well as a decent living. The desire for human rights is indeed universal. It is not some Western set of values that is imposed on other societies.

Mary Robinson is also the former President of Ireland (1990-97). In 2002 she founded Realizing Rights: The Ethical Globalization Initiative that aimed “to put human rights standards at the heart of global governance and policy-making and to ensure that the needs of the poorest and most vulnerable are addressed on the global stage.”[4] After that organization finished its work in 2010, Robinson founded The Mary Robinson Foundation–Climate Justice for “thought, leadership, education and advocacy on the struggle to secure global justice for those many victims of climate change who are usually forgotten – the poor, the disempowered and the marginalised across the world.”[5]


[1] Robinson’s remarks at the University of Minnesota and on Minnesota Public Radio are available at http://minnesota.publicradio.org/display/web/2011/04/08/midmorning1; http://cce.umn.edu/LearningLife/Listen-to-Past-Events/index.html (forthcoming).

[2] U.N. Security Council, 6491st meeting (Feb. 26, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/245/28/PDF/N1124528.pdf?OpenElement; U.N. Security Council, Resolution 1970 (2011) ¶¶ 4-8 (Feb. 26, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/245/58/PDF/N1124558.pdf?OpenElement.

[3] U.N. Security Council, 6498th meeting (March 17, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/PRO/N11/267/18/PDF/N1126718.pdf?OpenElement; U.N. Security Council, Resolution 1973 (2011) ¶¶ 4-8 (March 17, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/268/39/PDF/N1126839.pdf?OpenElement. The five Security Council members that abstained were Brazil, China, Germany, India and the Russian Federation.

[4] Realizing Rights: The Ethical Globalization Initiative, http://www.realizingrights.org.

[5] The Mary Robinson Foundation–Climate Justice, http://www.mrfcj.org.