Friday, May 12, 2017

US-ICC Advocacy Points from the ASIL Annual Meeting

At 9 AM, on April 13th, 2017, in the Hyatt Regency Capitol Hill, a panel for a session titled “International Law and the Trump Administration: National and International Security” was faced with a complicated question. It was not the last discussion about  the future of the International Criminal Court (ICC) at the 111th American Society of International Law (ASIL) Annual Meeting. Many more questions and answers were posed during the meeting, as international criminal law experts looked into their crystal balls and made predictions about the Court’s future.  The Annual Meeting featured a significant number of panels on the subject of ICC. Even in panels not directly about international criminal law, legal experts were quick to bring up the subject of international criminal law and the ICC.
The increased focus on the ICC at the ASIL  2017 Annual Meeting is a heartening development for supporters of the ICC, in the United States and around the world. This increased attention appears to reflect a demand for more information on the ICC, which the current administration’s scorn for international institutions may have sparked. The future of international criminal justice and the Court, itself, were topics of discussion at ASIL, reflecting widespread concern for the ICC’s future within the American and international legal community.
Some of the key topics were the US-ICC relationship, the role of victims in international criminal justice, and the ICC’s relations with African states. While recurring concerns about the ICC surfaced across the panels, notable figures like ICC prosecutor Fatou Bensouda addressed these concerns about the Court’s efficacy or costs by looking at its successes and the costs of conflict. Most of the discussions were solution-oriented.  
The critical yet future-oriented nature of these panels is extremely relevant to AMICC’s advocacy. The panel on “Building Trust in International Law and Institutions” is especially pertinent for the United States’s relationship with the Court in light of controversial preliminary examinations in Afghanistan.  This panel on fostering trust started with the most basic question: whose trust is it? This existential question is inextricably linked with the values and purposes of international law and its institutions.
The panel on whether the ICC should privilege global or local justice raised important questions on whether global and local goals are at odds, and to what extent global justice truly addresses local needs. One matter was inescapable. The question that no panelist could ignore: what comes next? There is widespread discussion on the ICC’s role going forward. This daunting question was broached more generally in the panel on “International Law and the Trump Administration” and more specifically in the “Future of International Criminal Justice” panel.
In the “Future of International Criminal Justice” panel, the panelists approached the topic from a variety of angles. Prosecutor Fatou Bensouda, Theodor Meron, and UN Assistant Secretary General for Legal Affairs Stephen Mathias all addressed the concerns of high costs and inefficiency, and that the resolution of these structural challenges is essential to ensuring a bright future for institutions like the ICC. Susana SáCouto on the other hand chose to focus on the current role of victims in international criminal justice, where she believes the system has fallen short.

The question asked at the “International Law and the Trump Administration” panel referred to reports from earlier in the week that the Trump Administration endorsed the ICC; speculation over future Trump policy towards the Court ensued. Yet, the potential “endorsement” was only a convoluted interpretation of a response by Sean Spicer at the White House Press Briefing on April 10, 2017. Yet, this speculation over Trump’s future approach to the ICC came at a time when few indicators exist.
“Q: Thank you, Sean.  President Trump has spoken out extensively about the crimes of Bashar al-Assad in Syria.  Does the President consider Assad a war criminal?  And does he believe Assad should eventually appear before the ICC?”
“MR. SPICER:  I think right now the focus is twofold.  One is defeating ISIS, and the second is creating the political environment necessary for the Syrian people to have new leadership there.  I don't think that there’s -- I can't imagine a stable and peaceful Syria where Bashar al-Assad is in power.  I think we all recognize that that happens -- and there can be a multipronged approach; we are ensuring that ISIS is contained and that there’s a de-escalation of the proliferation of chemical weapons, at the same time, creating the environment for a change of leadership.
Q    Does the President believe Assad has committed a war crime?
“MR. SPICER:  I think that there is a court that decides those things.  And obviously, there’s a reason that -- well, I clearly -- the actions -- when you take an action against the people that he has, and I think we feel unbelievably confident in the intelligence that we have.  But again, that would be something for a court to decide.”
John Bellinger, the former legal advisor to the Bush administration, answered the question. His underlying argument: it is too early to predict the nature of the Trump administration's’ relationship with the ICC. Bellinger did not view Spicer’s remarks as an endorsement. This seems to be an accurate assessment, particularly given the remarks by Sean Spicer, which revealed little evidence of a Trump policy towards the ICC. At first, when asked about whether Trump thought that Assad should go to the ICC, Spicer said nothing about the ICC—neither indicating favor nor opposition. When asked, whether the President thought Assad committed a war crime, Sean Spicer, responded: “I think there is a court that decides those things.” The speculation of whether Spicer indicated endorsement from the administration results from the remark “that would be something for a court to decide.” However, Spicer did not directly address the ICC in his response; when speaking, he refers to “a court,” not a particular court like the ICC. He may not want to discuss the ICC directly, or he may not know or understand what the ICC is.  Spicer may not know the Trump administration’s attitudes on the ICC because the administration has not yet formulated an approach or has not prioritized the Court.
While the remark is unlikely to mean endorsement of the Court, the remark does reveal that, at least to Spicer’s knowledge, the ICC has not received significant internal attention from the administration. The Office of the Press Secretary is not gearing up to deliver messages about the ICC. No impending action is ready. If they were getting ready to take action against the ICC, it would be ill-advised for Spicer to say, “that would be something for a court to decide.”
Bellinger does not dismiss the chance that there could be “a roll-back” to the approach of the Bush administration in its first term. Bellinger remarked that there were some indicators: Trump has blatantly expressed his dislike of international institutions, and we can recognize an impulse in this administration to attack these institutions with little to no understanding of what or how these international institutions operate. He referred to the draft executive order; which if it had come to fruition would have set up a committee to provide Trump recommendations on funding cuts to some international institutions, including the ICC, which the US does not fund. The inclusion of the ICC represents a negligent misunderstanding of the US-ICC relationship, but it also indicates that some anti-ICC sentiment, however small and misinformed, might be residing in the White House.
Such misinformed decisions could continue. The panelists lamented earlier in the panel that Trump was showing a disregard for international law and Bellinger remarked that pictures show the absences of lawyers in the room during major decisions. Yet, this should be expected given that, like many key state department positions, the top legal advisor positions have yet to be appointed. However, Bellinger also emphasized that the administration's’ approach may be determined by the individuals in his administration. So, until the vacancies for some the officials in charge of ICC policy are filled by the Trump Administration, it might be difficult to determine what voices and opinions Trump will be listening to. In the meantime, it may depend on Secretary of State Rex Tillerson; but the individual who is appointed as the Trump Administration’s legal advisor will have an incredibly important role in determining the administration’s approach to the ICC. It appears that the individual appointed might not be in complete opposition to the ICC and could be a positive influence on Trump policy: Earlier in the panel, Bellinger noted that “centrist lawyers” were filling spots in the administration, and later Bellinger noted that there are conservatives in Congress who support the ICC’s work. There is, as was stated at the beginning, “a ray of hope.”
At the end of a panel on the future of international criminal justice, came a question relevant to the future of the International Criminal Court and AMICC’s advocacy: How does the Court procure universality?
Prosecutor Fatou Bensouda responded that she hoped the Court’s credibility would lead states to join.  Her role in credibility-building: fulfilling and strictly following her mandate. She explained that there can be “no room for fear or favor” when prosecuting Rome Statute crimes. The Court would respect the principle of complementarity and she would not prosecute individuals who already were under the jurisdiction of national courts willing and able to prosecute them.
The answer comes at an interesting time. The preliminary investigation in Afghanistan has led the prosecutor to US nationals for the torture of detainees. If an investigation is opened against United States military or intelligence officials, this would be the first instance of the Court pursuing American nationals. If the prosecutor responds “without fear or favor” to evidence of torture by the United States, as her mandate dictates, what will be the outcome?
        Prosecutor Bensouda also emphasized the importance of future universality for addressing concerns about the lack of jurisdiction over Rome Statute crimes committed in non-party states by non-party state nationals . The prosecutor expressed concerns about the criticism of the Court for its lack of jurisdiction because some mistook it as a double-standard without understanding that the Court has limited jurisdiction according to the statute. As we know, with the exception of Security Council referrals, the Court cannot exert jurisdiction over a non state party’s territory unless it involves crimes committed by state party nationals. Hence, as certain states, like the United States, refrain from joining the Court, impediments to jurisdiction will continue to exist. The prosecutor’s emphasis on universality motivates AMICC to continue advocating for the United States’ full support of the ICC.
This misconception reflects another reason for our advocacy: the wider problem of misinformation about the Court. The issues that many perceive as deficiencies of the Court are actually caused by state omissions. Yet, in today's clash of fake news and alternative facts, civil society organizations like AMICC must diligently dispel misinformation that would lead to anti-ICC sentiment. The global populace needs to be better informed about the ICC in order to better support its efforts against impunity.

Written by Taylor Ackerman and Meredith Sullivan

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