Monday, November 29, 2010

ICC Heralds Initial Success in Campaign to Recruit Female Lawyers from Africa

Counter to claims by American opponents about the ICC and Africa and about access to the Court for women professionals, this recent press release from the ICC shows the Court being innovative and effective on both counts. In countries – not just in Africa - where as lawyers women are not on an equal footing with men, the ICC is another and welcome professional opportunity. For the Court, women lawyers at its bar are essential to meeting both its Statute’s emphasis on gender equality and the expectations of its States Parties.

ICC in the Media, Update #14

This week the media followed the start of the Jean-Pierre Bemba trial at the ICC. It began with Bemba pleading not guilty to three counts of war crimes and two counts of crimes against humanity, including charges of rape, pillaging and murder committed by his army. The Prosecution's first witness testified to a young girl being raped in front of her mother by Bemba's army, saying that those who did not consent to being raped or pillaged were beaten or shot. The witness was reportedly one of 759 victims who have been authorized to take part in the trial thus far. Bemba has denied having any control over his army while it was in the Central African Republic. In other news, ICC Prosecutor Ocampo recently met with Kenya's President Kibaki and Prime Minister Odinga to discuss with them the next steps toward securing justice for victims of the 2008 post-election violence. Ocampo has said that he will release the names for those to be submitted to the ICC as early as before December 15, 2010, when he is expected to go before ICC judges to request indictments. This is said to depend on whether his request for an open court on that date is accepted. Photo credit: Daily Nation.

Tuesday, November 23, 2010

AMICC Participation in Upcoming ASP meeting in New York, December 6-10

This year’s Assembly of States Parties will be held on December 6-10 at the United Nations in New York City. Representatives from the 114 state parties, several observer states, including the US, and NGOs concerned about the ICC will come together with ICC officials to discuss the financing, governance, and effectiveness of the ICC.

This is a regular session of the ASP, the ICC governing body, the ninth of its kind. Discussions at the meeting will include reviewing and approving the ICC’s annual budget, revisiting the stocktaking aspect of the Review Conference in Kampala earlier this year, reports on the activities and projects of the Trust Fund for Victims, a dialogue about a Strategic plan of action for universal ratification, as well as reviewing the performance of the court, current controversies (including specifically, Sudan), moving forward on working groups dealing with governance, operations of the ASP, and other budget/finance issues including the election of 6 individuals to the Committee on Budget and Finance. In addition, there may be further discussions on the status of the aggression amendment and other amendments of the Rome Statue proposed but not considered at the Review Conference.

AMICC’s main goal during the week of the ASP will be to guarantee that the actions taken by the ASP will help to further a close and productive relationship with the United States and the ICC. If you have questions about any of these issues or you have any suggestions for our advocacy or reporting please contact us. We will be sure to keep you all updated during the week of the ASP through our website and blog as well as Twitter and Facebook. We will also publish a full report on our website at the conclusion of the session. Also, stay tuned to the blog during the week of the ASP for a video interview with US Ambassador-at-Large for War Crimes Issues Stephen J. Rapp.

Monday, November 22, 2010

U.S. Court of Appeals Relies Upon Rome Statute in Case Raising Issue of Corporate Liability Under the Alien Tort Statute

By Duane W. Krohnke
Adjunct Professor, University of Minnesota Law School

In September 2010 the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Pet. Co., 621 F.3d 111 (2d Cir. 2010), pet. for reh'g & reh'g en banc (2d Cir. Oct. 15, 2010), once again relied upon the ICC's Rome Statute in a civil case for money damages under the U.S.' Alien Tort Statute (ATS), 28 U.S.C. § 1350.

The court in a lengthy opinion by Judge Cabranes held (a) that international law was the relevant law for determining whether corporations (or other legal entities) could be held liable under ATS for alleged violations of the law of nations; and (b) that customary international law and hence ATS did not recognize or allow corporate direct or accessory civil liability for human rights violations. The court, therefore, ruled that the complaint against a corporation had to be dismissed.

Important for the latter conclusion was the Rome Statute’s limitation of jurisdiction in Article 25(1) to “natural persons.” Equally important for the Second Circuit was the Rome Conference’s rejection of a French proposal to include corporations and other “juridical” persons in the ICC’s jurisdiction because, according to commentators, corporate criminal liability was rejected by many national legal systems and thus such inclusion in the Rome Statute would eliminate the possibility of national systems’ preempting ICC jurisdiction under the principle of complementarity.

One of the judges in the three-judge panel in Kiobel, Judge Leval, submitted an even lengthier concurring opinion. He agreed that the complaint in its entirety had to be dismissed because it did not allege that the corporate defendants had purposefully aided and abetted the Nigerian government’s alleged violations of human rights. But Judge Leval concluded that international law left to domestic law the issue of whether corporations were civilly liable for aiding and abetting violations of international law and that U.S. law allowed for such liability. Judge Leval acknowledged that the ICC’s jurisdiction was limited to “natural persons” and that the Rome Conference had rejected the idea of extending the ICC’s jurisdiction to corporations and other legal entities. This structure, said Judge Leval, was due to a belief that a corporation could not act with the requisite criminal intent and the inefficacy of criminal punishment for such entities. On the other hand, Judge Leval quoted the Chairman of the Rome Statute’s Drafting Committee as saying that despite the diversity of views about corporate criminal liability, “all positions now accept in some form or another the principle that a legal entity, private or public, can, through its policies or actions, transgress a norm for which the law, whether national or international, provides, at the very least damages.”

The plaintiffs in Kiobel have requested rehearing, and their Petition and its five supporting amici curiae briefs raise serious issues regarding the panel's majority opinion's rejection of corporate liability under ATS. These papers set forth the following arguments as to why corporations should be liable under the ATS:

• The text of the ATS, as adopted in 1789, provided jurisdiction over "all causes" for certain torts against aliens and did not exempt corporations. (Emphasis added.) The statute specified the identity of the plaintiff ("an alien"), but did not specify the identity of the defendant. Moreover, the ATS did not require criminal conduct as a precondition for such a lawsuit. Finally, the weight of the textural and historical evidence suggests that the First Congress in 1789 would have considered corporations to be proper defendants under the ATS.

• The Supreme Court in the Sosa v. Alvarez-Machin, 542 U.S. 692 (2004), held that there must be a violation of international law for a proper claim under the ATS. But Sosa also held that federal common law provides the cause of action and thereby implicitly recognized that international law did not define all aspects of an action under the ATS. In dictum and in a footnote, Sosa stated that lower federal courts should consider "whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual." (542 U.S. at 732 n.20.) This footnote made the uncontroversial point that some, but not all, international norms require state action and that private actors (whether natural persons or corporations) were potentially liable only for those norms that did not require state action. The majority opinion in Kiobel misread this footnote as calling for international law, not domestic law, to provide the specifics on a private cause of action.

• The Second Circuit itself had consistently entertained ATS actions against corporations.

• Other circuit courts also have regularly considered ATS cases against corporations without objection. And the Eleventh Circuit expressly has held that corporations are subject to suit under the ATS.

• International law leaves the question of private civil liability to domestic law and enforcement. Indeed, the Second Circuit itself has recognized this point. In Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995), the court said, "The law of nations generally does not create private causes of action to remedy its violations, but leaves to each nation the task of defining the remedies that are available for international law violations."

• International law also leaves the question of criminal liability primarily to domestic law and enforcement. The relatively new ad hoc international criminal tribunals and the even newer International Criminal Court provide additional and extraordinary means of criminal enforcement when domestic legal systems are unable to do so. Kiobel's majority opinion's reliance on the fact that these international criminal tribunals' jurisdiction is limited to natural persons is misplaced. Indeed, the ICC's Rome Statute in Article 10 provides that its definition of crimes should not be read "as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute." Likewise, that Statute's Article 22(3) states that the limitations on its jurisdiction (including the limit to natural persons) "shall not affect the characterization of any conduct as criminal under international law independently of this Statute." Finally, Article 25(4) of that Statute provides that "[n]o provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law," meaning that States' responsibility to enforce international law through their own domestic legal systems is unaffected.

• Moreover, international law requires states to provide domestic law civil remedies.

• International law in all its forms allows the imposition of civil liability on corporations. This is so in a diverse array of treaties, in general comments by treaty bodies and in a special report to the U.N. Secretary-General on the subject of businesses' human rights obligations. Another source of this principle is the uniform recognition of corporate liability in legal systems around the world.

• In Nuremberg-era jurisprudence and the international trials that took place in occupied Germany after World War II, certain non-natural persons (the Reich Cabinet, the SA, the German High Command, the Leadership Corps of the Nazi Party, the SS with the SD as an integral part and the SS) were indicted with the first three being acquitted and the last three being convicted. In addition, severe sanctions were imposed on some corporations. For example, by directive of the Control Council, I.G. Farben and several insurance companies were dissolved and their assets were liquidated. These facts show how the Kiobel majority erred in concluding that Nuremberg-era jurisprudence did not recognize the liability of corporations for violations of international law.

In addition, the Kiobel Petition asserts that the corporate liability issue was "never raised, briefed, or argued in this case at any point, including this appeal" and that the resulting decision on this issue "subverts accepted standards of appellate process." This procedural argument was supported by an amici curiae brief by nine professors of federal jurisdiction that stated that the panel's majority opinion erroneously treated the corporate liability issue as part of subject matter jurisdiction and that this issue was a merits issue that should not have been resolved sua sponte by the court itself, but only after full briefing and argument by the parties.

We await the circuit court's ruling on the petition and any subsequent rehearing.

Bemba Trial Begins Today in The Hague

Today marks the beginning of the trial for Jean-Pierre Bemba Gombo at the International Criminal Court in The Hague. Mr. Bemba has been charged with two counts of crimes against humanity (rape and murder) and three counts of war crimes (rape, murder, and pillaging). For more information about the accused and the development of the trial check out the ICC Case Information Sheet.

The hearings will be held in open sessions and the proceedings can be streamed (with a 30-minute delay) on the ICC website. Here is the schedule of proceedings so you will be sure not to miss any part of the trial. This week proceedings are being held everyday starting at 9am EST. To watch the proceedings simply click the Video Streaming link under Courtroom I.

Check back often for new developments throughout the duration of this trial.

ICC in the Media, Update #13

Today ex-Vice President Bemba is set to begin his trial at the International Criminal Court. Bemba is accused of commanding an army responsible for mass murder and rape. This trial is the third to be commenced at the international tribunal since 2002. In other news, the ICC has begun preliminary investigations in Nigeria and Honduras, the latter involving last year's military coup of the president. In the Kenya investigation, Luis Moreno Ocampo has confirmed that he has not and will not be using the two witnesses implicated last week by KNHCR. Former Education Minister William Ruto's visit to the Hague has been recently demystified. It has been reported that the visit was one of four requested by the Office of the Prosecutor over the past several weeks. The three other individuals implicated are two unknown Cabinet Ministers and a former top security official. These visits constitute some of the final steps in the Prosecutor's investigation into the post-election violence, which he hopes to present to the Court later next month. Photo Credit: Daily Nation.

Monday, November 15, 2010

ICC in the Media, Update #12

This week the Kenya National Commission on Human Rights (KNCHR) came out in defiance of William Ruto's visit to the Hague. They say that Ruto should be investigated for reportedly persuading three violence witnesses to recant their statements that implicated him in the violence. The ICC Prosecutor has stated that Mr. Ruto's visit the Hague last week, which was widely thought to be an attempt to clear his name, did not change the course of the investigation. A recent poll revealed that public support in Kenya for the ICC's involvment is greater than ever before. It found that 68% of Kenyans support the ICC, up from 54% in June. Recent articles in Kenyan media have urged the government to set up a local tribunal to work alongside the ICC by prosecuting guilty individuals not named by the ICC. In other news, Omar al-Bashir of Sudan continues to travel internationally, despite the ICC warrant for his arrest. This week Sudan's President is traveling to Saudi Arabia, a non-member state, to perform the Muslim pilgrimage. Photo credit: Daily Nation.

The Future of International Justice

Harold Koh, US State Department Legal Advisor, in a speech in New York last month described how the United States is committed to creating a lasting partnership with the International Criminal Court. He stated that “although the United States is not a party to the Rome Statute, we share with the States parties a deep and abiding interest in seeing the Court successfully complete the important prosecutions it has already begun.” 

Harold Koh - Zuma Press
However, he pointed out that challenges still remain for the United States and international justice. These include: lingering questions about how the crimes of aggression amendment was adopted, how to best plan for the phase-out of the UN's ad hoc tribunals for the former Yugoslavia and Rwanda, and how ICC States Parties should cooperate to arrest fugitives. He emphasized that addressing these issues will be an integral part of the Obama Administration's agenda.

This statement is another positive note in the developing relationship between the US and the Court. The US is beginning to take positive action to make changes that they believe will benefit both this country and the court as a whole. Koh ended his presentation by emphasizing that “for the U.S. relationship with the International Criminal Court, Kampala…we have much important work now to do to develop that relationship in the months and years ahead.”

Friday, November 12, 2010

U.N. Human Rights Council Session Recommends U.S. Join the International Criminal Court

By Duane W. Krohnke
Provisional Organizer, Minnesota Alliance for the ICC

In November 2010 the United States submitted itself to its first Universal Periodic Review by the United Nations Human Rights Council. The hearing for this UPR was held on November 5th in Geneva, Switzerland, and on November 9th, the Council debated the outcome of this UPR. Materials regarding this UPR are available at

The draft report of this UPR that was prepared for the November 9th meeting contained recommendations to the U.S. from the Council members and observer States. The U.S. is to respond to these recommendations by the next Council meeting in March 2011, which will adopt the outcome report on this UPR. (U.N. Human Rights Council, Draft Report of the Working Group on the Universal Periodic Review: United States of America, ¶ 93 (Nov. 10, 2010).)

Almost all of the members recommended that the U.S. ratify or accede to the many multilateral human rights treaties that it has not joined. There were also numerous recommendations for the U.S. to revoke the reservations and declarations the U.S. has made to those human rights treaties it has ratified or acceded to. (Id. ¶¶ 92.1-92.50.)

Nine members and observer States (Austria, Costa Rica, Cyprus, France, Germany, Hungary, Iran, Japan and Venezuela) specifically recommended that the U.S. ratify the ICC's Rome Statute while 17 others (Algeria, Bolivia, Brazil, China, Holy See, Indonesia, Libya, Namibia, Nicaragua, Nigeria, Republic of Korea, Slovakia, Sudan, Thailand, Timor-Leste, Uruguay and Viet Nam) made a general recommendation that the U.S. do so for all or all "core" human rights treaties that the U.S. has not joined, which presumably included the Rome Statute. (Id.¶¶ 21, 50, 62, 82, 92.1, 92.2, 92.6, 92.7, 92.8, 92.9, 92.16, 92.17, 92.19, 92.20, 92.24, 92.25, 92.28, 92.36, 92.37-92.43, 92.175; OHCR Extranet (Namibia, Nigeria, Timor-Leste).)

The Council was created in 2006 by the U.N. General Assembly. It is "responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner." To that end, it is also responsible for addressing "situations of violations of human rights, including gross and systematic violations" and making "recommendations thereon." The Council is guided by "the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development." (U.N. Gen. Ass'bly Res. 60-251, Arts. 2-4 (Apr. 3, 2006).) The Council has 47 member states that are chosen from U.N. member states for three-year terms by the U.N. General Assembly. (Id., Arts. 7-9.) (See generally U.N. Human Rights Council,

One of the methods used by the Council for these ends is Universal Periodic Review "based on objective and reliable information, of the fulfillment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States." This is to be done with "a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned." (Id., Art. 5(e).) (See generally U.N. Human Rights Council, Universal Periodic Review,

The written record for the UPR of the U.S. included (a) a report by the U.S. itself; (b) the U.N. High Commissioner for Human Rights' compilation of information about the U.S. from the reports of human rights treaty bodies, special procedures and other U.N. documents; and (c) submissions from 103 "stakeholders," including human rights NGOs. (U.N. Human Rights Council, National report submitted . . . [by] United States of America (Aug. 23, 2010); U.N. Human Rights Council, Compilation Prepared by the Office of the High Commissioner for Human Rights …--United States of America (Aug. 12, 2010); U.N. Human Rights Council, Summary Prepared by the Office of the High Commissioner for Human Rights …--United States of America (Oct. 14, 2010).) (These documents are all available at

Sunday, November 07, 2010

ICC in the Media, Update #11

This week France approved the extradition of Callixte Mbarushimana, wanted by the ICC for war crimes and crimes against humanity in the Democratic Republic of the Congo. Mbarushimana is scheduled to be transfered to the facilities at the ICC within the next month. In Kenya, this week suspended Higher Education Minister William Ruto spent three days at the ICC voluntarily giving his account of the post-election violence in order to "set the record straight." The Kenya investigation is also progressing domestically with Lady Justice Kalpana Rawal, mandated by the ICC, set to interview ten security chief witnesses starting on November 24.

Jean-Pierre Bemba's appeal was knocked down on Tuesday, clearing the way for the trial to take place. Bemba is charged with crimes against humanity and war crimes as leader of the Movement for the Liberation of Congo, which launched widespread attacks on civilians in the Central African Republic between October 2002 and March 2003. With this appeal as the final hurdle, the trial is now scheduled to begin later this year. In the ongoing Lubanga trial, the court gave the prosecutor until Friday to justify its withholding of witness testimony from the defense. In the meantime, however, the court will continue to hear testimony from witnesses and intermediaries on Monday, November 8.

Monday, November 01, 2010

ICC in the Media, Update #11

Earlier this week ICC President Sang-Hyun Song addressed the U.N. General Assembly highlighting the many achievements of the ICC over the past year, and the challenges it faces. In particular he urged the nations to cooperate in arresting the eight individuals wanted by the court for war crimes, crimes against humanity and genocide. As we mentioned several weeks ago, a Kenyan business man brought a case to a Mombasa court challenging the authority of the ICC under Kenya's new constitution. The High Court in Mombassa ruled that it has no jurisdiction to question the authority of the ICC in Kenya and denied the man's request. The controversy surrounding the ICC's request for evidence from high-level security officials has seemingly been resolved this week. The government issued a special gazette on Monday that will allow the ICC to interview the officers and record them on video. However, the officers have been permitted to decline to answer questions that they believe may implicate them or compromise national security. In other news, the Intergovernmental Authority for Development Conference (Igad) has been moved from Kenya, a member state of the ICC, to Ethiopia, a non-member state. Many suspect that the move was made to assist the attendance of Omar al-Bashir, and to absolve responsibility for Kenya to arrest him if he chooses to attend. In the wake of this decision a senior member of Sudan's ruling party has stated that the government will "never" cooperate with the ICC. Finally, the Lubanga trial, which has now resumed, has been temporarily slowed again. Witness testimony, which was scheduled to be presented this week, has been postponed because the witnesses weren't ready to take the stand. The trial court ruled that the trial would resume on Monday. Photo credit: BBC News.