In her remarks, McLeod referenced the recent participation of the US in the ICC Review Conference:
Wednesday, June 30, 2010
In her remarks, McLeod referenced the recent participation of the US in the ICC Review Conference:
Tuesday, June 29, 2010
Friday, June 25, 2010
Wednesday, June 23, 2010
Monday, June 21, 2010
Friday, June 18, 2010
Legal Advisor Koh and Ambassador Rapp affirmed that the Review Conference was a success from the standpoint of US. The outcome included a successful stocktaking exercise, the inclusion of pledges by numerous countries - including two from the US - and the adoption of amendments on war crimes and the crime of aggression. Regarding the two amendments, Koh reinterated that they are acceptable to US security and "protected our vital interests."
As to the future of US-ICC relations, Legal Adviser Koh stated the following, “After 12 years, I think we have reset the default on the U.S. relationship with the Court from hostility to positive engagement. In this case, principled engagement worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill.”
Wednesday, June 16, 2010
The Prosecutor will formally charge the two men - both Darfuri rebel commanders - with numerous counts of war crimes including the intentional directing of an attack against a peacekeeping mission. Speaking about the appearance of the men, Prosecutor Ocampo emphasized the obligations of all parties in the Darfuri situation to cooperate fully with the Court under Security Council Resolution 1593.
The two suspects are the second and third individuals to voluntarily appear before the Court. They were charged together with the first to do so, Bahar Idriss Abu Garda, another rebel commander whose charges were dismissed by the court in early 2009 for lack of evidence. The Prosecutor has indicted that his office will soon present additional evidence regarding that case, and will ask the Court to approve a second summons of Mr. Garda. Photo Credit: Chase College
Tuesday, June 15, 2010
In his report, Ocampo emphasized the non-cooperation of the Sudanese government since early 2007. This withholding of assistance violates the decision of the Security Council that Sudan must cooperate fully with the Court. Ocampo requested that the Security Council take measures to ensure the compliance of Sudan with its international obligations.
The United States has repeatedly stated its commitment to ensuring Sudanese government cooperation with the Court in the fight to prosecute the perpetrators of atrocity crimes in Darfur. A summary of the position of the US government in regards to the ICC is here. Photo Credit: UPitt Law School
Monday, June 14, 2010
Friday, June 11, 2010
Check back here soon for AMICC's full report on the second week of the Review Conference.
The second week here in Kampala was dominated by intense negotiations on the crime of aggression, and ultimately a final outcome which will activate the Court’s jurisdiction over it with a vote of the Court’s Assembly of States Parties (ASP) after January 1, 2017. The conference worked through several proposals which attempted to bridge the gap between those countries seeking to limit the ways in which aggression could be brought before the Court and those seeking a more expansive approach to the Court’s jurisdiction over the crime. The week concluded dramatically after midnight of the final day of the conference with the adoption by consensus of the crime of aggression amendment. This was followed by a long round of applause in the plenary hall recognizing the conference’s achievement and finally the closing of the conference at 1:30am Kampala time. The conference also adopted an amendment to Article 8 expanding the Court’s jurisdiction over the use of certain weapons as war crimes in non-international conflicts.
Hurried consultations, contesting proposals, midnight conferences and hectic redrafting filled the last days of the Review Conference. Delegates struggled with the jurisdiction of the ICC over the crime of aggression. This was an issue long foreseen as the most controversial and contentious of these two weeks in the bubble of a luxury resort and conference campus on the shores of Lake Victoria. As the pace picked up for government delegates in one closed meeting after another, it slowed for NGO representatives who could not attend these sessions. In the final rush to an outcome or an impasse NGOs were represented by a few civil society experts on the crime of aggression who have special access to government delegates and ICC officials.
At the center of the debate loomed the image of the United Nations Security Council and its great unpopularity with most countries. The ICC's Rome Statute has a statement in its section on the crime of aggression that reasonably appears to require respect for the Council's UN Charter mission to determine threats to international peace and security. Nonetheless, a large number of states, from past experience quite possibly a clear majority, arrived in Kampala strongly determined to deny the Council any role whatever in the Court's jurisdiction. They believed that role would politicize the Court and compromise its independence and legitimacy. Other countries, such as, but by no means only, the Council's permanent members (including the United States) began the conference equally dug in on the insistence that all situations about aggression should come to the Court only through the Council. They said that the question of an act of aggression is indeed political and that the Council is the right place in the international system to deal with it.
Several problems, circumstances and influences were at work on this polarization during the conference: The preparations for the conferences had failed to even modify stark disagreements in the original text. Quite a few countries were willing to give some, if not an exclusive, place for the Council in the passage of an alleged situation of aggression into the jurisdiction of the ICC. There was considerable concern that the Court is not yet well enough developed institutionally and judicially with the special political and state action aspects of this crime. Almost all participants found the original text and most of the too many proposals made here very complex and technically difficult and often obscure. Unfortunately, the Statute's amendment procedures, generally considered to be among the worst drafted of its provisions, were important in these negotiations.
Probably most important was the almost universal and intense determination of the participants to reach a final outcome here and now after eight years of negotiations in preparations. This was very clear in speeches by governments and in their side comments. Some of the proposals intended to ease a complete outcome showed their sponsors moving sharply away from their previously declared positions.
The final amendment package was an elaborate scheme to bring the crime within the jurisdiction of the Court while making major concessions to powerful countries. Many observed that it will limit significantly the reach of the Court’s jurisdiction with respect to the crime. The major features of the outcome are that the amendment will take effect only after a vote of two-thirds of the ASP after January 1, 2017. The ASP will then be able to decide separately on its activation of Security Council-initiated actions and for situations referred by States Parties and those initiated by the Prosecutor. ICC States Parties must ratify the amendment and then have the option of filing a declaration with the ICC Registrar that it does not accept aggression jurisdiction. Also, once jurisdiction is activated, non-Security Council situations will need to be approved by the entire Pre-Trial Division of the Court. Another provision will prevent the Court from exercising jurisdiction over nationals of non-States Parties or their territories. It also included a mandatory review of the provision seven years after coming into effect in order to examine the performance of the Court with respect to the crime and to make any necessary changes to the provision.
In effect, the provision will shield nationals of non-States Parties, including those of the United States, as well as nationals of States Parties if they are willing to lodge a declaration with the Registrar. This declaration would effectively take those countries and their nationals out of the Court’s jurisdiction over the crime of aggression. Many delegations felt that the final package also conceded too much to the proponents of less expansive ICC jurisdiction over aggression. This is because States Parties will be able to control whether they will be bound by the amendment through their consent to the amendment. The final package was also not completely satisfactory to the permanent members of the Security Council. They would have preferred an exclusive role for the Council in determining a state act of aggression for the purposes of the ICC’s jurisdiction, and they reiterated this position after the adoption of the amendment. These countries have argued over the years that, as a matter of international law under the UN Charter, this role should be exclusive to the Council. The final text does, however, effectively shield P-5 nationals from ICC jurisdiction over aggression.
Following the adoption of the amendment and statements by several countries, State Department Legal Adviser Harold Koh took the floor on behalf of the US to describe how it engaged in all aspects of the Kampala conference, including on stocktaking of the system of international criminal justice and on the amendment proposals. He expressed the appreciation of the US delegation for the warm welcome it received and for the constructive conversations with other conference participants. The US also associated itself with the statements of France and the UK regarding their view of the primacy of the UN Security Council in determining acts of aggression. Further, Koh suggested that constitutional decisions of the magnitude of activating the Court’s jurisdiction over the crime of aggression after January 1, 2017 should be taken in the context of a review conference, not a regular ASP meeting.
The week began with an effort by the United States to repair what was seen by many as a overbearing speech on the previous Friday by Harold Koh (available at: http://www.state.gov/s/l/releases/remarks/142665.htm). It very generally referred to US concerns about the crime of aggression and concluded that it was not very likely that consensus could be achieved. The US was somewhat successful in rebounding from this perceived misstep in an intervention on Monday of the second week which sought to specifically describe those concerns and suggest ways to deal with them. William Lietzau, a senior Pentagon official who participated in the negotiations for the Rome Statute and the accompanying Elements of Crimes document, proposed four interpretive “understandings” about the definition of the crime which would make it more acceptable to the US, and also suggested leaving open for negotiation the elements of the crime for a short period after Kampala. His statement, which is not available, seemed to take into account the developments at the conference and struck a more conciliatory tone that Koh’s previous intervention. Most notably, Lietzau said that the US recognized that it had been absent from the negotiations on aggression for eight years and must therefore live with the practical consequences of that failure to participate.
Lietzau said that the understandings were intended to be modest without bringing any unintended consequences. The Review Conference resolution on the amendment includes some of these understandings. The understandings do not change the agreed definition of the crime of aggression but will guide judges in applying it.
The amendment of Article 8, known as the Belgian amendment, culminated late on Thursday evening. It expands war crimes prohibitions on certain weapons such as poisons, gases and bullets, to non-international conflicts. The use of these weapons in international conflicts was already prohibited under the Rome Statute. In addition, the conference interpreted the amendment provision used, Article 121(5), in such a way that treats alike non-States Parties and States Parties that have not accepted the amendment. This means that the added provisions would not likely reach the nationals of non-States Parties such as the US.
The Review Conference on Thursday also adopted a resolution which stated that it reviewed Article 124 as required by the Statute. That article permits countries upon joining the Rome Statute to opt-out of the Court’s jurisdiction over war crimes for a period of seven years. The conference did not, however, delete the article as suggested by some delegations. As a compromise it decided to review the article again in five years, at an ASP meeting, with a view to deleting it.
The US, throughout most of the two weeks, was effective at presenting itself positively to the conference as a strong supporter of international justice. It spoke of cooperating with the Court more widely but within US legal restrictions. It emphasized its strong desire to support domestic and international justice generally. US Ambassador-at-Large for War Crimes Issues Stephen Rapp declared that the stocktaking exercise of the previous week was “an enormous success” in supporting the cause of international justice. Statements like these and of Lietzau helped to build goodwill, which was especially necessary as the US entered into the intense negotiations on the crime of aggression. Subject to hindsight, it appears now that the US effectively represented its positions without alienating itself from other countries. Our general impression, moreover, is that the US had a satisfactory experience in Kampala that sustained its major interests. It remains on good terms with the Court and learned lessons that will enrich the final stage of making US policy on the ICC.
Thursday, June 10, 2010
Wednesday, June 09, 2010
The conference’s working group on the crime of aggression concluded its work today and forwarded its results, outcomes and potential proposals to the full conference which will meet informally on Thursday morning at 11am Kampala time and determine whether there is a solution that all ICC States Parties can live with. Among the options are separate proposals from Canada and Slovenia, and a third tabled by Argentina, Brazil and Switzerland.
In considering these options, the conference will need to decide whether the Court could act without a determination of the UN Security Council; whether to delay other possible triggers of the Court’s jurisdiction beyond the Review Conference by way of a different amendment procedure or by revisiting the amendment at a later meeting; and whether ICC action on aggression would require the consent of both countries involved in the alleged aggression.
Also under intense negotiation are certain “understandings” about the definition of the crime itself proposed by the United States which are intended to assist in interpreting certain aspects of the definition. They would likely be seen as a sort of legislative history. We won’t know, of course, whether they will be included in a final package which the conference would then decide to adopt either by consensus or, if it can’t agree, by a vote. Whether the conference will get that far is very difficult to say right now.
Tuesday, June 08, 2010
US Delegation in Kampala Lauds Review Conference Stocktaking, Makes Pledges in Support of Justice for Atrocity Crimes
In connection with the stocktaking of international justice, which consisted of two days of events on the four issues of state cooperation with the ICC, the capacity of domestic courts to deal with ICC crimes, victims and affected communities and peace and justice, countries here in Kampala made concrete “pledges” committing themselves to support the ICC and international justice. Over 30 countries that have joined the ICC made pledges. The US was the only non-State Party to make pledges:
- The United States renews its commitment to support rule-of-law and capacity building projects which will enhance states’ ability to hold accountable those responsible for war crimes, crimes against humanity and genocide.
- The United States reaffirms President Obama’s recognition on May 25, 2010 that we must renew our commitments and strengthen our capabilities to protect and assist civilians caught in the LRA’s wake, to receive those that surrender, and to support to bring the LRA leadership to justice.
The ICC has issued arrest warrants for four leaders of the LRA, or Lord’s Resistance Army, of Northern Uganda. Its leaders, including Joseph Kony, are at large and wanted by the ICC for war crimes and crimes against humanity. Click here to read President Obama's statement about the Lord's Resistance Army Disarmament and Northern Uganda Recovery Act of 2009 and its relation to the ICC.
Monday, June 07, 2010
And in some pictures, you might spot familiar AMICC faces...
The AMICC delegation is present at the Review Conference and will continue to send back news and summaries through twitter, facebook, and blog.
Sunday, June 06, 2010
It was a busy and exciting first week here in Kampala at the ICC Review Conference. This part of the conference focused primarily on a special “high-level” segment of statements by eminent ICC supporters as well as a high-level declaration by them; a general debate in which States Parties, Observer States and international and non-governmental organizations expressed their support, commitments and concerns about the Court; a “stocktaking” assessment of the system of international criminal justice for atrocity crimes; and initial and informal discussions on the amendments proposals to be decided next week, including on the crime of aggression.
During the first days of the conference, the United States delegation made several statements and commitments about the Court and its relationship with it. In particular, on Tuesday US Ambassador-at-Large for War Crimes Issues Stephen Rapp made a statement in the general debate in which he reiterated the US desire to cooperate with the ICC on cases in the US national interest, such as its willingness to assist with witness relocation in the Kenya investigation. It also made two concrete “pledges,” or commitments, to cooperate with the Court and to help build the capacity of domestic courts to deal with atrocity crimes. On Wednesday evening, Ambassador Rapp and State Department Legal Adviser Harold Koh, the co-heads of the US delegation, held a press briefing via teleconference.
In addition, on AMICC’s suggestion, Ambassador Rapp made a statement in an NGO meeting on the first day of the conference about nations’ cooperation with the ICC about how non-States Parties can assist the ICC, including through political and diplomatic support; sharing of information; and witness assistance. The US also co-sponsored, with Norway and the Democratic Republic of the Congo (DRC), a meeting on the margins of the conference about the concept of “positive complementarity” which has to do with assistance to domestic judicial systems so that they can deal with ICC crimes. The DRC’s justice minister also thanked the Obama administration for its signing into law US legislation on US policy toward dealing with and bringing to justice Uganda’s Lord’s Resistance Army which is now allegedly in the DRC.
The US, as at the last two Assembly of States Parties (ASP) meetings, was well received by other delegations and by NGOs, though some governments and NGOs have expressed some concern about how the US may influence the negotiations on the crime of aggression. Ambassador Rapp included a very detailed description of American concerns about the proposed amendment on the crime of aggression in his general debate statement, and Legal Adviser Koh elaborated on these in the first substantive working group meeting on the aggression amendment on Friday. In particular, the US and other permanent members of the UN Security Council have expressed a strong preference that any amendment should require an exclusive role for the Security Council in determining that an act of aggression occurred, thereby triggering the Court’s jurisdiction over an aggression situation. A majority of states would prefer that the ICC Prosecutor be permitted to open an investigation, as he or she is able to do with respect to the crimes now under the Court’s jurisdiction. This is possible if the situation is referred to the ICC by the Security Council, a State Party, or if the Prosecutor obtains the permission of a Pre-Trial Chamber to initiate an investigation.
Brazil, Argentina and Switzerland have informally proposed a novel approach to this issue which those countries hope will help bridge the gap between the P-5 and their allies, on one hand, and the vast majority of others that do not want the ICC’s jurisdiction over aggression to be controlled by the Security Council. The idea would be for the Review Conference to use two different amendment procedures which would allow the Court to soon have jurisdiction over aggression exclusively through a Security Council referral. Once 7/8ths of all ICC States Parties agreed to it, a State Party referral or a Pre-Trial Chamber approval of a Prosecutor-initiated investigation could also bring an ICC situation within the Court’s jurisdiction. However, it may take years, if not decades, to reach this next phase. There is also the discussion of a possible “opt-out” for the 1/8th of ICC members that do not wish to join the aggression regime.
Next week the conference will continue its consideration of amendments to Articles 8 and 124 of the Rome Statute. The Belgian proposal seeks to expand to domestic conflicts the use of certain weapons, gases and poisons as Article 8 war crimes in international conflicts. It was approved on Friday by the Working Group on Other Amendments and forwarded to the full conference for consideration next week. The only open question on it relates to how its addition to the Rome Statute will affect States Parties that choose not to accept the amendment. This question, which hinges on the interpretation of Article 121(5), needs to be resolved for the aggression amendment as well.
Article 124, which this Review Conference is required by the Rome Statute to examine but not necessarily delete or amend, permits new States Parties upon joining the ICC to declare that they will not be subject to the ICC’s jurisdiction over war crimes for the first seven years of ICC membership. Initial discussions on Friday indicated that there does not appear to be consensus on amending or deleting it, though Venezuela indicated that it would table an amendment proposal which would eliminate Article 124 after a certain number of years.
The second week here in Kampala will see the climax on the debate on the crime of aggression, and its success or failure in adopting a final amendment on the crime of aggression. There will be extensive negotiations at various degrees of formality. These will include working group meetings, discussions in full plenary meetings, and numerous bilateral or small group meetings. Ambassador Zeid of Jordan, who is chairing the working group and coordinating the negotiation on the crime of aggression, has conducted over 100 bilateral meetings and will do many more next week.
Unlike the other speeches and interventions by the US delegation, Koh’s speech on Friday did not find favor with many government delegations and NGO representatives. Partly this was the result of its awkward organization and internal inconsistency. Many also found in it a demanding and condescending tone. This tone contrasted with the great majority of government interventions on Friday and Zeid’s introductions and summaries on Tuesday and Friday. These anticipated success in the negotiations, praised the quality of the text so far achieved, and pledged flexibility and compromise in the achievement of a strong eventual consensus.
Beginning on Friday, the conference has now gone into a “pressure cooker” phase in which delegates with the influence and contributions of NGO’s will work hard to achieve an amendment on aggression. The complex proposal by Brazil, Argentina and Switzerland is a striking example of this.
This atmosphere will be heightened by the confinement of delegations and NGOs to a relatively small conference venue well away from the rest of Kampala where they will spend 12-18 hour days and where many of them will sleep. As we anticipated, there is considerable emotion and psychological pressure in these negotiations. Germany, Japan, and a number of other countries both developed and developing emphasized their historical and still painful experiences with aggression. An intervention of Kuwait reminded the conference that although traditional interstate aggression is not now as common as in the past, it still exists and is likely to have to be dealt with in the future.
Saturday, June 05, 2010
- Of red-coats and black-robes: The ICC threatens American justice, by Marion Smith, research fellow at the B. Kenneth Simon Center for American Studies at the Heritage Foundation
- The Undefined Crime of Aggression: The U.S. and The International Criminal Court, by Adam Raezler (under the name Jared Huntington), policy analyst at Freedom Alliance, accredited to the Review Conference by the Heritage Foundation
- Exclusive: Constitutionalism vs. Supranationalism - The U.S. and the International Criminal Court, by Adam Raezler (under the name Jared Huntington)
The authors recycle many old arguments against the ICC and its supposed threats to US sovereignty. To learn about responses to them, read AMICC's Case for Conservatives and previous responses to misleading Heritage reports.
Mr. Raezler is also posting daily Freedom Alliance blog reports from the Review Conference which misrepresent what is occurring in Kampala. For the real story, follow AMICC's blog, Facebook and Twitter as well as daily summaries of the international NGO Coalition for the ICC.
Thursday, June 03, 2010
Wednesday, June 02, 2010
In the statement, the US noted that it is committed to advancing the cause of international justice for both moral and international security reasons - this echoes page 48 of the new National Security Strategy here. It confirmed that America will do all that it can to assist the Court in prosecuting its current cases. Finally, it asked for caution from the delegations on the crime of aggression. Photo Credit: ruotoloassoc