Tuesday, August 12, 2014

Analysis of Citations of the Rome Statute in U.S. Federal Case Law

There is widespread hostility to references to international law in U.S. court decisions. It is therefore especially surprising that U.S. federal judges have been discussing the Rome Statute (Statute) in their decisions, and sometimes citing it as an authority.

In between November 9th, 2009 and July 14th, 2014, the International Criminal Court (ICC) and the Rome Statute have been mentioned in U.S. judicial decisions twenty-one times, despite the U.S. not having ratified the Statute. The Fourth Circuit has stated that although the Statute is not binding on the U.S., it “does not lessen its import as an international treaty, and thus, a primary source of the law of nations.” Aziz v. Alcolac, Inc., 653 F.3d 388, 400 (4th Cir. 2011). The Statute appears in various contexts; the five most frequent situations involve the intent (mens rea) standard in aiding and abetting, immunity, corporate liability, defining crimes against humanity and defining war crimes.

The majority of the listed cases involve plaintiffs filing claims under the Alien Tort Claims Act (ATCA). The ATCA allows U.S. federal courts to hear civil suits brought by victims of human right abuses or other international crimes which are in violation of the laws of nations or a treaty that the U.S. has ratified. In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court held that the laws of nations are comprised of international norms that are accepted by the civilized world and defined with specificity. For more information on the cases, visit AMICC's website.

Aiding and Abetting:

Aiding and abetting is a form of secondary actor liability. The issue with this area of law is what level of mens rea is required. Article 25(3)(C) of the Statute provides that a person shall be criminally responsible and liable for punishment if that person facilitates the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing means for its commission. The courts have looked to the Statute because customary international law is unclear on a mens rea requirement for aiding and abetting. The courts have been divided in their interpretation of this requirement.

Some of the decisions use the definition provided in Article 25 of the Statute. See, e.g., Lui Bo Shan v. China Constr. Bank Corp., 2010 U.S. Dist. LEXIS 63938 (S.D.N.Y. June 28, 2010). Other decisions have refused to use the Statute. See, e.g., Du Daobin v. Cisco Sys., 2014 U.S. Dist. LEXIS 22632 (D. Md. Feb. 24, 2014)(the plaintiffs wanted to look at the Rome Statute and apply a lesser mens rea standard of knowledge but the court refused to do so because of a domestic precedent that settled the issue).

However, a few courts have used very strong language in support of the Statute. In Doe v. Drummond Co., 2009 U.S. Dist. LEXIS 132594 (N.D. Ala. Nov. 9, 2009), the court relies in part on the Statute for the appropriate aiding and abetting standard. In Aziz v. Alcolac, Inc., 653 F.3d 388 (4th Cir. 2011), the court concluded that adopting the standard in the Rome Statute “hews as closely as possible to the Sosa limits of requiring any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms the Supreme Court has recognized.” Aziz, 653 F.3d. at 400-401 (Internal citations omitted). The court in Aziz goes on to say that the Statute’s mens rea standard for the crime of aiding and abetting “is more authoritative than that of the ICTY and ICTR Tribunals.” Id. at 400.

The ICC As A Bargaining Chip in the Israel-Palestine Negotiations?

Debate over whether or not the Palestinian Authority (PA) should and will seek access to the International Criminal Court (ICC) has continued to mount, but this time with a new element. In speculating about accomplishing lasting peace between Israel and Palestine, some have suggested that the Authority use it’s potential involvement in the ICC as a bargaining chip in peace negotiations.  In exchange for Israeli concessions in the negotiations, commentators have proposed that the Palestinian Authority freeze it’s pursuit of involvement in the Court and thus forgo jurisdiction of the Court in it’s territory. Read full articles by Daniel Kurtzer here, and by Dennis Ross here.
If nothing else, this war has made abundantly clear that that the current situation between Israel and Palestine is not sustainable. Unless each party recognizes the need for continued diplomacy, these violent encounters will continue to recur every few years. However, it seems that negotiations to end the fighting in Gaza have little chance of success.
In light of this, many propositions have been made regarding how to succeed in the negotiations. These suggestions range from temporarily internationalizing Gaza governance to persuading Israeli Prime Minister Benjamin Netanyahu to declare that Israel’s settlement policy be made consistent with its two-state policy. Commentators include the suggestion that the PA renounce it’s pursuit of ICC jurisdiction in exchange for Israeli concessions.
Since August 5, when ICC Fatou Bensouda Prosecutor met with Palestine Foreign Affairs Minister Riad al-Malki to discuss the different ways a state may accept the jurisdiction of the ICC, whether or not the PA will pursue ICC jurisdiction has remained unclear, but become more likely. Because the United Nation General Assembly recently granted Palestine a new status as a ‘non-member observer state,’ Palestine is very likely to obtain ICC jurisdiction if it ratifies the Court’s Rome Statute. Therefore, the sole determining factor would be whether the Authority will view this as a useful move.
Some have argued that Palestinian authorities would not pursue this route because the Court’s statute requires it to investigate an entire situation in a conflict, not merely the actions of one party. In other words, the ICC could investigate Israeli actions, but it could also open an investigation into Palestinian actions, potentially resulting in a conviction for war crimes on either, both or neither sides. Consequently, it remains unclear whether it would be in the best interests of the Authority to pursue ICC jurisdiction. What remains a concern, however, are the impacts that such an exchange could have on the International Criminal Court.
The conflict between accomplishing peace and achieving justice is an inherent complication of the functions of the Court. However, using the Court as a concession in peace negotiations is an evident lean towards the former, while the Court clearly was intended and has established itself as a means of accomplishing the latter. While this proposed bargain might contribute to a temporary peace in the Israeli-Palestinian region, the consequences of such a concession should be weighed against the alternative: a preliminary investigation into whether or not war crimes and crimes against humanity have been committed, and if so, by whom. The Court’s stated purpose is to end impunity for the perpetrators of the most serious crimes of concern to the international community, and if war crimes have been committed during the conflict in the Israeli-Palestinian region, then making the Court  a pawn in negotiations most certainly hinders such action. Treating the Court this way could also degrade its international standing and its viability.
To complete this brief review of this aspect of the ICC and the Israel and Palestine situation, it is worth noting that the most recent conflict with Gaza is the not the only event which might make Israel subject to a criminal investigation by the Court. In May 2010, six ships of the ‘Gaza Freedom Flotilla’ were boarded and taken over by Israeli Defense Forces in international waters in the Mediterranean Sea. The flotilla, which was organized by the Free Gaza Movement and the Turkish Foundation for Human Rights and Freedoms and Humanitarian Relief, was carrying humanitarian aid and construction materials. It intended to break the Israeli blockade of the Gaza Strip.
As a result of the take-over operation, nine passengers lost their lives and many were injured. One of the vessels boarded by the IDF, the MV Mavi Marmara vessel, was sailing under the flag of the Comoros Islands, which is a State Party to the International Criminal Court. These combined circumstances create a situation that potentially could fall under the jurisdiction of the Court. In May 2013, the Government of the Union of Comoros referred the case to the ICC through an Istanbul-based law firm, urging Prosecutor Bensouda to investigate the incident. While it is unlikely that a prosecution will ensue from this incident, it remains on the Prosecutor’s list of preliminary examinations.

AMICC will continue to track this new element of the possibilities of the ICC as a bargaining chip in the interactions between Israel, Palestine and the Court. We will continue to assess its potential impact on the viability of the Court, and its effect on the Prosecutor’s handling of the question of Israel and Palestine.
Written by Jessica Levy


Thursday, July 17, 2014

UN International Justice Day Event Features ICC Problems As Well As Progress

Speakers frankly described both the ICC’s difficulties and its achievements in celebrating International Justice Day at the UN on July 17. ICC president Judge Sang-Hyun Song and Ambassador Tiina Intelmann , president of the Court’s ’s Assembly of States Parties, detailed, among other subjects the Court’s carrying out of the founding values it shares with the United Nations, its commitment to punish and deter atrocities,  its successful completion of its first cases, and its progress in involving victims in its work. Their praise framed unusually frank statements of the Court’s problems as it starts fully functioning. They especially emphasized in describing relations with member states the failure to enforce the Court’s arrest warrants, inadequate resources to carry the Court’s currently full case load, and reluctance to give the Court political support –especially in the face of attacks on it. The speakers were clear that the ICC itself bears much of the responsibility for these failings.

This candor actually made the celebration stronger and more profound. This candor by two senior officials showed the health of the Court in being able to constructively criticize itself as well its member states.  The audience came to see the Court of course as an object of approval, but even more as an institution actively improving itself.

Written by John Washburn

Thursday, July 10, 2014

Lubanga Final Conviction Prompts Praise and Criticism for First ICC Cases: Responses for U.S. Advocacy

Debate over the Court’s performance in its first generation of cases has mounted again after the end of the first case by the final conviction of Congolese warlord Thomas Lubanga on June 24. With more convictions imminent, praise and criticism of that performance are likely to continue and become more pointed in the United States as well as elsewhere. Here are background and suggestions American ICC supporters may find useful in dealing with these as they come up in our advocacy.

The most important problems about the Court shown by these early cases have to do with enforcement of the Court’s warrants and orders, evenhandedness in investigating alleged atrocities by all sides in a conflict, slowness in conducting trials, the handling of evidence, and the complete absence of any cases from outside Africa. The ability of the ICC to deal with these questions varies with their origin: some come from the design of the Court in its Rome Statute, some from procedures and processes that the ICC created and can fix, and others are created by relations between the Court and nations which are either or both member states or the scene of crimes. Also, we need to keep in mind that this was the beginning - the Court encountered these issues for the first time. What you do for the first time, you often have trouble doing right.
Enforcement is a difficulty built into the nature of the Court. Like most international organizations, it has no police or paramilitary to make others act on its orders. It must depend on the cooperation of nations, especially member states with Rome Statute obligations. This period saw plenty of failures and several actions, by members and non-members alike, to honor ICC arrest warrants. The most evident and disheartening example of failure was the international ignoring of the warrant to arrest Sudanese president Omar al-Bashir on charges of committing atrocities in Darfur. By contrast, Belgium promptly arrested Jean-Pierre Bemba, wanted by the ICC for crimes by his militia in the Central African Republic.

Thursday, June 26, 2014

Iran and the International Criminal Court

The question of Iran’s interest in joining the International Criminal Court (ICC) is being presented again by its new policy of greater openness to the rest of the world and its current dealings with the west. AMICC constituents may as a result encounter this development in their advocacy. Iran has publically voiced its support for the Court numerous times and could benefit from ratifying the Rome Statute. Iran vigorously participated in the negotiations of the Rome Statute and is a signatory. In the 2010 ICC Review Conference in Kampala, Iran sent a delegation to participate and once again expressed its support for the Court.

For the first time in decades, political channels between Iran and the United States are open. While the two countries work towards finding a solution to Iran’s nuclear program, the international community now watches to see if the unlikely duo will cooperate to combat the Islamic militant group in Iraq.  Despite its faults, Iran is a relatively stable country in a region marked by chaos.  In recent history, Iran fell victim to war crimes committed by Saddam Hussein, it has long felt that he was not held accountable for his crimes. Today, Iran faces another threat by an extremist Sunni militant group.  Ratifying the Rome Statute would aid in preventing impunity for crimes that this group is committing.

Participation in the Court would also serve another new Iranian goal: acceptance internationally as a responsible country. If Iran truly desires to productively participate in international relations, it must demonstrate to the world that it is trustworthy. Mohammad Javad Zarif, Iran’s Minister of Foreign Affairs, described President Rouhani’s policy as one that “values accountability, transparency, and honesty in dealing with the populace and implies a willingness to reform and improve existing policies.” Becoming a member of the Court would aid in accomplishing such a goal by making its peaceful intentions clear. However, if Iran were to join the Court, the country would thereby accept the Court’s jurisdiction which would hold it accountable for the crimes it commits. 

In 2017, the Court is likely to acquire jurisdiction over the crime of aggression. Iran has repeatedly voiced its support for the inclusion of the crime of aggression in the Court’s Rome Statute. Officials from both the Ministry of Foreign Affairs and the Judicial Power have described crimes of aggression as “the most important international crimes.” During the Iran-Iraq war, which Iran considered a war of aggression, Iraqi forces killed at least 300,000 Iranians and injured more than 500,000. Despite multiple pleas to the United Nations Security Council (UNSC) by the Iranians, the UNSC never found that Iraq had started a war of aggression. Iran’s support for the ICC’s jurisdiction over the crime of aggression is the result of its resentment of Saddam Hussein’s impunity. Had such a court been available to Iran, it would not have had to rely on the UNSC for justice.

Tuesday, June 24, 2014

Global Summit to End Sexual Violence in Conflict

AMICC participated in the Global Summit "End Sexual Violence in Conflict" in London, June 10-13. The Summit buzzed with writing and speaking about the International Criminal Court (ICC), including events featuring Court officials such as prosecutor Bensouda.
We attended because the strong emotional and moral response from the political left and right alike to sexual violence as a tactic in war is very valuable to our advocacy. We can use this emotional response to draw the indifferent and the doubtful to the Court. Sexual violence in conflict is a signature crime in the ICC’s jurisprudence which has new and advanced standards and definitions for it. For example, and as frequently mentioned at the Summit, the Court’s Rome Statute, in a breakthrough for international law, specifically recognizes rape as a separate crime, rather than as part of some other general crime (e.g., assault)  - the traditional definition.

The British government organized the Summit through its Foreign Secretary William Hague who co-hosted with Angelina Jolie. Its purpose was to attract government ministers and other high-ranking officials and to get their commitment to act on sexual violence in conflict. It aimed to produce, from governmental and NGO meetings (AMICC was in several of these), numerous practical recommendations for actions.  It succeeded on all counts. At least for now, the world is paying more attention to the crime. Many countries have committed in the Summit’s closing documents to acting against sexual violence. But conference commitments tend to fade away unless there is persistent and effective follow-up. The Summit organizers seemed to hope that NGOs would take up this task.

The US had a substantial presence at the Summit. Secretary of State John Kerry delivered the closing keynote speech with fervor suggesting a strong personal commitment against the crime. Led by Ambassador for Global Criminal Justice Stephen Rapp, the American official group had representatives from USAID and several bureaus in the State Department. Six American academics spoke at various panels and working sessions. This presence and Kerry’s speech made clear a US government open intention to join ICC action against the crime. This intention can give us further access to the government for discussion and collaboration about the ICC.
Written by John Washburn, AMICC Convener

Tuesday, June 03, 2014

Politics in the Security Council: About Syria, Not the International Criminal Court

The New York Times has it close, but not quite right, about the US and the International Criminal Court in its June 3 piece, “Politics Seen Undercutting Credibility of a Court” (read here).  This was prompted, like a lot of similar comments, by the failure in the UN Security Council of a resolution to refer atrocities in Syria to the Court.  

Despite the impression given by the article, France, not the United States, led this effort. All Council members knew well that China and Russia would veto. Most joined France in wanting to use the resolution to isolate and condemn them for their position on Syrian atrocities. With patience, adroit drafting, adept diplomacy and support from fellow Council permanent members the USA and Britain, France won votes for its resolution from 13 members of the total Security Council members. Supporting speeches, including the American one, condemned China and Russia harshly and directly. No one hearing these remarkably emotional and hard-hitting statements could possibly have agreed with the Times that they politicized the notion of international criminal justice or undermined its credibility. The speeches marked the success of a collective attack on Syria’s supporters, not a single-handed United States effort “to skewer its foes.”

In its relations with the ICC, the United States is shackled by legislation. These laws ban the country from giving money either directly or through the United Nations to the Court, allow US support to it only in cases that are “in the American national interest” and block the Court’s jurisdiction over US service members. However, the United States has never declared an ICC case to be not in the national interest. 

Nonetheless, the United States did give a political coloration to the draft resolution on Syria by insisting on language about the American national interest, denying UN funds to the Court and keeping the Golan Heights out of the ICC’s jurisdiction. Argentina and Chad rightly called out the US on these restrictions. If the United States continues to do this, some ICC supporters believe that, rather than compromise its efficiency and independence, the Court should refuse to accept Security Council referrals that contain these limitations.

The United States is one among many members and friendly nations that fail to enforce ICC arrest warrants and other orders. This is a general problem for the Court with which a caucus in the Court’s governing body is grappling now. The United States should join in carrying out any sensible solution the caucus achieves.

The infamous bilateral immunity agreements strong-armed by the Bush administration indeed remain technically in effect, but are feared by other countries no longer, now that Congress has removed the threat of stopping military aid to them. However, the agreements should go for good, lest some future administration try to restore the threat. Abandoning them might start if countries offended by the agreements began to withdraw from them.

As the Times explains, the US has a good and ever-growing relationship in support of the ICC. This now needs a firm foundation of policy, consistently applied, to support this good practice.

Written by John Washburn, AMICC Convener

Thursday, May 29, 2014

Russia and China block UN Security Council referral of Syria to the ICC

On Thursday 22 May, the UN Security Council voted on a resolution to refer the situation in Syria to the International Criminal Court for possible prosecution of war crimes and crimes against humanity committed during the conflict. Vetoes by China and Russia prevented the UN Security Council from adopting the resolution. All the other 13 members of the Council, including the United States, voted in favor.

France drafted the resolution and managed to generate the wide support of nearly 60 states through its skillful diplomacy. Its introduction of the resolution to the Council was powerful and directly addressed China and Russia and their refusal to act on the situation of Syria. France emphasized that the severity of Syria’s situation calls for a unified international response, where Russia and China are the only ones obstructing any such action. The statements by the other Council members confronted at length and in detail the horrors of the atrocities and suffering in Syria, all pointing to the shamefulness of the vetoes in this context. France hereby successfully achieved its objective to isolate and condemn Russia and China for their failure to act.

Both Chad and Argentina who supported the resolution, also criticized the resolution in their statements. They pointed out that the resolution allowed nationals of other non-member states, such as the U.S., to stay immune from ICC jurisdiction over crimes committed on Syrian territory. Moreover, they highlighted that the resolution banned any UN funding of the costs for the Court from the referral. Had the referral been adopted, the Court might not have been able to afford the money to pursue the cases.

Samantha Power, United States Ambassador to the UN, delivered a particularly strong and emotional statement. It included the story of one victim’s suffering, who was present during the meeting himself.  According to Russia and China, the statement by the U.S. was hypocritical because the U.S. had so far not continued to pursue a political solution to Syria’s situation. However, the other Council members mostly agreed that the effort for a political solution in meetings in Geneva had failed, and several cited the resignation statement of the UN Special Envoy for Syria. The emotional power of the Syrian situation evoked by Ambassador Power and most other Council members only enhanced the isolation of Russia and China and kept the debate almost entirely clear of any other political concerns. This was France’s main objective and its success was clear in the petulant tone of the closing statements by China and Russia.

The full transcript of the UN Security Council meeting can be found here.

  Written by Laura van Esterik