IntLawGrrls: United States' cooperation & the ICC

IntLawGrrls cite AMICC sources for recent post on US cooperation with the ICC. Check out the full post here:
United States' cooperation & the ICC

Ending Impunity for Gender Based Violence

The historic UNSC resolution 1325 celebrates its tenth anniversary on October 31, 2010. This extraordinary document was the first to emphasize the essential nature of women in securing peace and ending conflict. The resolution requires all parties involved in conflict to respect women's rights and to support their participation in peace negotiations and in post-conflict reconstruction.


Sec. of State Hillary Clinton speaks at the UNSC about US commitment to end gender violence.

UN Photo/Paulo Filgueiras

Yesterday, the Security Council and several high ranking state ministers from around the globe met together in New York to discuss the successes and failures of this resolution over the past 10 years. The pervasive sexual violence and culture of impunity in the Democratic Republic of the Congo was label as the biggest failure. All countries recognized the need to end impunity in the DRC if we are to ever establish peace. The delegate from the United Kingdom concluded that “lasting peace cannot exist without justice for women”.

While the resolution recalls the possibility of using the International Criminal Court (ICC) as a mechanism to end impunity, the Court had not yet been operating at the time the resolution was passed in 2000. A few nations mentioned their work with the ICC but only one told specifically how it was using the ICC as a way to end gender crimes. The delegate from Mexico affirmed the importance of the ICC in ending gender based and sexual violence. The delegate from Austria explained how leaders from his country were working to create national standards for gender crimes that coincided with the standards found within the Rome Statue. He continued to explain that the international community must use every tool at their disposable if they are to end violence against women.

The ICC is mandated to end the culture of impunity and provide accountability to victims of atrocity crimes. It is uniquely equipped to try gender based crimes such as discrimination and sexual violence as the first court to define rape, other forms of sexual violence, and persecution as crimes against humanity. Currently, there are two trials at the court that are prosecuting individuals for gender based crimes. Jean-Pierre Bemba , the former president of the Central African Republic, is facing two counts of rape and Germain Katanga and Mathieu Ngudjolo Chui are jointly facing two counts of rape and two counts of sexual slavery. In addition to these trials, there are arrest warrants for six other individuals for alleged rapes, sexual enslavement, and other outrages on human dignity.

ICC in the Media, Update #10

On Tuesday the ICC rejected an appeal from former Congolese Vice-President Jean-Pierre Bemba, accused of committing numerous crimes against humanity and war crimes in the Central African Republic. This development clears the way for his trial, which is set to begin on November 22, 2010 in the ICC's Trial Chamber III. Back in Kenya, the government is still scrutinizing minutes from secret high-level security meetings during the post-election violence period, determining whether it should release them to the ICC as requested several weeks ago. The government argues that it can withhold the minutes if they threaten national security, but there is some question of whether they in fact do pertain to security issues. On Tuesday Kenya's President Kibaki suspended education minister William Ruto, who is facing corruption charges, although it is widely thought that the suspension resulted from the belief that Ruto is one of the ICC's prime suspects in the post-election violence events. In other news, human rights groups are protesting the possibility of Omar al-Bashir of Sudan visiting Kenya for the Intergovernmental Authority on Government meeting (Igad). They argue that a second visit would send negative message of Kenya's committment to ending impunity, and would "send damaging signals to victims of mass atrocity in Darfur."

Photo Credit: CNN.

ICC in the Media, Update #9

On October 12, 2010 Moldova became the 114th nation to ratify the Rome Statute and become a member state of the ICC. The ICC commended the European nation in a statement it released for Moldova's dedication ending impunity for perpetrators of atrocity crimes. This week the ICC has also made strides in its investigation into 2007-2008 Post-election violence in Kenya. Today the ICC investigators traveled to Kisumu, a city in western Kenya that was a hotspot for post-election violence, in order to collect evidence and meet with victims. Another group of ICC officials are set to record statements with senior Kenyan security officials in the coming days, although there remains tension regarding the collection of official statements and minutes of high-level government meetings. In other news, reports have surfaced that Joseph Kony, wanted by the ICC for war crimes and crimes against humanity, is likely currently in southern Sudan. Although this has not been confirmed, analysts have traced the pattern of Lord's Resistance Army attacks, and have concluded that their trajectory leads to the Daffak region of south Sudan. Photo Credit: Nations Online.

France Arrests New ICC Suspect on Charges of Atrocities Against Civilians in the Kivus, DRC

On October 11, 2010 French authorities arrested Callixte Mbarushimana, a Rwandan national who is the Executive Secretary of the Forces Démocratiques pour la Libération du Rwanda - Forces Combattantes Abacunguzi (FDLR-FCA), in response to a sealed arrest warrant issued by Pre-Trial Chamber I on September 28, 2010. He is suspected of five counts of crimes against humanity and six counts of war crimes for alleged attacks against civilians in the North and South Kivus, DRC. Click here to read an OTP factsheet.

ICC in the Media, Update #8

As we posted earlier, this week the ICC judges decided to lift the stay on proceedings and allow the Lubanga trial to continue. This decision was shortly followed by a statement from the ICC Prosecutor saying that victims can rest assured that Lubanga will have a full trial and will be held accountable if the judges so decide. Lubanga has been charged with using child soldiers in the Democratic Republic of the Congo, although he denies these allegations. In other news, the ICC President Sang-hyun Song said in an interview on Tuesday that he is "very optimistic and hopeful" that the United States will join the International Criminal Court. He cited the increased cooperation with the Court under the Obama administration as a positive sign. However, due to the difficult realities of U.S ratification including approval by the Senate, he said that he did not expect U.S. ratification for a number of years. Photo credit: BBC News.

Lubanga trial to resume after Appeals Chamber reverses stay

A decision today by the Appeals Chamber of the ICC clears the way for the Court to resume its landmark first trial in the near future. The trial of Thomas Lubanga Dyilo on charges of recruiting and using child soldiers in the Democratic Republic of the Congo, which began in January 2009, has experienced several delays which have frustrated ICC supporters but have also demonstrated that the Court is fully functioning and maintaining the rights of all parties.

The most recent delay began on July 8 when the trial judges ordered a stay in the proceedings after determining that the Prosecutor had not complied with their order to disclose to the defense information about the identity of a person who assisted the prosecution with obtaining witness evidence. In addition, the Trial Chamber ordered the release of Lubanga because it did not believe that a fair trial was possible given that, in its view, the Prosecutor refused to comply with judicial orders of the Court, and thus it had lost control of the proceedings. The trial judges did not give effect to the order to release Lubanga until the Prosecutor had the chance to appeal the decision. Last month, the prosecution offered to provide the requested information. However, the chamber refused to restart the trial because it maintained its concern about the prosecution’s unwillingness to comply with judicial orders, a matter that was also the subject of appeal.

Today’s decision is the result of the Prosecutor’s appeal. In it, the judges found that the Trial Chamber did not make an error in determining that the Prosecutor failed to implement its orders and thus threatened the fairness of the trial. It decided, however, that the Trial Chamber had not lost control of the proceedings and had other, less drastic measures, such as sanctions to bring about compliance, at its disposal besides staying the proceedings and ordering the release of Lubanga. The Trial Chamber should have, in the opinion of the Appeals Chamber, imposed such sanctions before ordering a stay of the trial. It is unclear from the decision whether the Prosecutor could still face sanctions now that he has disclosed the information that he previously refused to disclose.

Previously, the start of the Lubanga trial had been delayed because the prosecution did not disclose materials to the defense which may have helped Lubanga to defend his case. The relevant materials were eventually made available to him. There was also a delay of several months in late 2009 because two of the three trial judges gave notice that the chamber may convict Lubanga of crimes about which it hears evidence but for which he was not charged. The prosecution and the defense appealed this decision. The Appeals Chamber ruled that the Trial Chamber could not convict him of additional charges.

Photo ©ICC-CPI/Michael Kooren

Sudan at the UN: Aid for Amnesty

Vice-President Taha at the United Nation Sept. 27, 2010  
UN Photo/Aliza Eliazarov

On September 27 2010, Sudanese Vice-President, Ali Osman Taha, took the floor at the United Nations to urge the General Assembly to reject the ICC arrest warrants that are currently against President Omar al-Bashir. VP Taha claimed that ICC involvement is “a direct threat” to the peace process in Darfur and that Khartoum will further pledged $2 billion dollars to reconstruction in the region if the charges are dropped. This is not the first time that the Vice President has tried to convince the international community to withdraw the warrants against al-Bashir. In 2008 he made a plea to the United Nations Security Council to indefinitely suspend the first warrant.

Besides the political implications of this demand, there are two very important legal reasons why Vice President Taha’s request cannot be fulfilled. First of all, the UN Security Council Resolution 1593, which referred the situation in Darfur to the ICC, requires all parties to the Darfur conflict, including the Government of Sudan, to cooperate fully with Court. This resolution is binding on all UN member states. The Member States could not condemn the prosecution of al-Bashir without coming under direct violation of 1593.

Secondly, the General Assembly has no authority to make decisions regarding the status of arrest warrants. The primary authority to withdraw arrest warrants rest with the Court. Section 58(4) of the Rome Statue states that “the warrant of arrest shall remain in effect until otherwise ordered by the Court”. Nevertheless, this is not the only way to defer proceedings. Article 16 of the Rome Statue says that the Security Council may defer investigations and prosecutions for renewable 12 –month periods if there is a threat to international peace and security. The Court recognizes that its role in political questions is limited and it must respect a deferral in this case. However, it is interesting to note that the Security Council has not made an article 16 deferment before despite earlier informal requests.

In addition, the political backlash against the Sudanese government has been intense. Omer Ismail, senior policy advisor for the Enough Project, an advocacy organization set up to highlight Darfur crisis, has called Khartoum’s recent move nothing more than “political blackmail”. Mr. Ismail further explained that “there are over half a million people killed and seven million people living in warehouses. This government is doing this for political reasons. It has nothing to do with reconciliation.” Mr. Ismail finds no reason to believe that Sudan will take any reformative action in Darfur.

There continues to be a substantial amount of rhetorical support for Sudan (and all other vital parties) to cooperate with the ICC. If things continue as they have been for the last several years, there is little chance that the Sudanese government will be able to dissuade the international community from pursuing those responsible for the genocide in Darfur on either a political or legal level

Symposium on International Criminal Justice at the University of Minnesota Highlights the Importance of the International Criminal Court

By Duane W. Krohnke

On September 28, 2010 the University of Minnesota Law School hosted a Symposium: International Wrongs, International Rights: The Use of Criminal Law To Protect Human Rights. The international Criminal Court was the focus of remarks by Luis Moreno-Ocampo, the Prosecutor of the Court, and Duane W. Krohnke, the Provisional Organizer of the Minnesota Alliance for the ICC. More general comments about criminal prosecutions of human rights abusers were made by Kathryn Sikkink, Arleen C. Carlson Professor of Political Science and Professor of Law at the University of Minnesota.

Prosecutor Moreno-Ocampo noted that 139 countries had signed the Rome Statute, which is the treaty that created the ICC, and that 113 countries had ratified that treaty and become States Parties for the Court. This constituted, he said, a global confederation to fight the crimes that were of the greatest concern to the international community.

The U.S., on the other hand, he observed, is not such a party, and it has been difficult for the U.S. to accept the idea of such a court. Nevertheless, the George W. Bush Administration supported the Court over the Darfur situation in the Sudan.

In contrast, countries like Costa Rica, which does not have a military, find that the ICC is in their national interest because it helps to protect them against the most outrageous crimes.



When he was chosen as the ICC's Prosecutor in 2003, he told its judges that the best situation for the Court would be to have no cases. That would mean that there were no such serious crimes in the world or that national courts by themselves were addressing these crimes.

Moreno-Ocampo reviewed the Court's current investigations and cases. With respect to the Lubanga case from the Democratic Republic of the Congo, he reported that the trial was now on hold due to the Prosecutor's appeal of the Trial Chamber's order staying the case over the Prosecutor's failure to identify his intermediary in the Congo in accordance with the Chamber's orders. The Prosecutor already has indicated his ability and willingness to provide the necessary identification, and he felt confident that the Appeals Chamber would allow the trial to go forward.

Mr. Krohnke highlighted his paper, The International Criminal Court and the U.S.A.: Engaged, But Not Yet Married. That paper outlined the Prosecutor's powers and duties under the Rome Statute, and he added that the public transparency of the Prosecutor and other organs of the Court through its website was extraordinary.

The most controversial ICC case, according to Krohnke, is the one against Sudanese President Bashir, where we were still awaiting his arrest and delivery to the Court at the Hague and finding out if the U.N. Security Council would exercise its power to defer the case for a year. Just last week, Krohnke said, an African diplomat reiterated the African Union's request for such a deferral. Krohnke also talked about the stay of the Lubanga trial over the issue of the propriety of the Prosecutor's failure to disclose the identity of an intermediary in the Democratic Republic of the Congo. The latter was good news and bad news for the supporters of the Court. On the plus side, it demonstrated the controls over the Prosecutor and the Court's concerns for the due process rights of the accuseds. On the other hand, it raised serious questions about the Prosecutor's judgment and the viability of the Court's very first trial.

Krohnke reported that the Court recently held its important Review Conference that adopted amendments to the Rome Statute regarding the use of certain weapons as war crimes for non-international armed conflicts and creating a definition and procedures for the crime of aggression. The Conference also declined to amend Article 124 that allows a new member to opt out for seven years of ICC jurisdiction over war crimes. They also evaluated the performance of the Court to date and made plans and commitments for its future.

The U.S. relationship with the Court was also reviewed by Krohnke. Although the Clinton Administration was a major player at the Rome Conference that produced the Rome Statute, the U.S. and six other countries did not sign the treaty at the end of the Conference. However, on December 31, 2000, President Clinton did so because the U.S. supported international accountability for the perpetrators of the crimes covered by the ICC and because the U.S. wanted to help the ICC become an instrument of effective and impartial justice. This act, the President said, did not abandon U.S. concerns over the treaty, especially its jurisdiction over nationals of states that were not parties to the treaty. Therefore, President Clinton concluded, he would not submit the treaty to the U.S. Senate for advice and consent.

Nor did President George W. Bush submit the treaty to the Senate. In fact, in May 2002, his Administration "unsigned" the treaty by advising the U.N. Secretary-General that the U.S. did not intend to ratify the treaty. This was part of a general campaign against the ICC by the Bush Administration although in its last four years, it supported the Court's involvement in the Sudan/Darfur situation.

The Obama Administration, Krohnke continued, had turned the page and now was actively engaged as an observer with the ICC. The U.S. had attended meetings of the Court's Assembly of States Parties in November 2009 and January 2010 as well as the Review Conference in May/June of this year. In fact, U.S. participation in that Conference was a major factor in the adoption of the amendment on the crime of aggression with provisions that would prevent the amendment from ever being applied to the U.S.

However, Krohnke said, the Obama Administraton will not be submitting the Rome Statute to the U.S. Senate for advice and consent. Nor was there any indication that the current Administration would rescind the May 2002 U.S. letter to the Secretary-General indicating the U.S. did not intend to ratify the treaty.

Although the U.S. had some criminal statutes on the crimes covered by the ICC, the U.S. statutes were narrower than the latter. Thus, Krohnke observed, the U.S. theoretically might not be able to preempt any unlikely ICC action against U.S. nationals by commencing criminal cases in the U.S. courts.

Krohnke added that U.S. federal courts already were using the Rome Statute to determine the status of international law on certain issues. The most significant such cases involved determining the scope of crimes against humanity, aiding and abetting human rights abuses and corporate liability for such aiding and abetting.

In conclusion, Krohnke said the ICC already had demonstrated that it is an important actor in the interactive global struggle against impunity for the worst offenders of human rights. The U.S.' current active engagement with the ICC is a great development. U.S. civil society needed to be involved in pressing for U.S. ratification of the Rome Statute. Just this month, he reported, the Minnesota State Bar Association had adopted a resolution calling for the U.S. to take steps toward such ratification by expanding and broadening U.S. interaction with the ICC.

AMICC stood ready, Krohnke said, to welcome new NGO members and observers. It also needed financial support from such organizations and individuals.

Professor Sikkink highlighted some of the findings from her empirical research that is the subject of her forthcoming book, The Justice Cascade: Human Rights Prosecutions in World Politics. Such criminal prosecutions (or truth commissions) are crucial to the successful promotion of human rights, but not by themselves. They need to be combined with partial amnesties.

Other Symposium panels addressed Transitional Justice and The Modern Face of International Human Rights.

The Symposium was organized by the University of Minnesota Law School's Law & Inequality: A Journal of Theory and Practice, which examines the social impact of law on disadvantaged people. The archived video webcast of the Symposium is available at http://www.law.umn.edu/lawineq/symposiummain/september-2010-agenda. In addition, some of the Symposium papers will be published in the Journal.

ICC in the Media, Update #7

This week all eyes continue to be on Kenya as the investigation progresses. MP Mutula Kilonzo's comments opposing the ICC's involvement have now been rejected both domestically and internationally. Kilonzo has publicly attempted to clarify his position, saying he intended his support for local tribunals to encourage their formation in conjunction with the ICC, not as a replacement. ICC Prosecutor Luis Moreno-Ocampo has stated that Kilonzo reaffirmed his commitment to the investigation, and has made clear that it will continue as planned. In continuing the investigation the Office of the Prosecutor has begun collecting sensitive information from the Kenyan government's security meetings during the post-election violence. Although it possesses copies of the minutes, it has been met with opposition from security officials in trying to obtain originals. Security chiefs have refused to give statements to the Prosecutor and the government has refused to provide the original minutes from potentially crucial meetings. The ICC requires originals for the documents to be admissible as evidence; however, Kenya is hesitant to release them because the minutes include information unrelated to the investigation involving sovereignty and national security issues. The following video addresses the situation:

Some have come forward suggesting that this refusal is an example of top officials attempting to sabotage the investigation. It has been reported that they are also trying to sabotage the ICC's involvement by insinuating that the Court has targeted ethnic groups. On Friday a number of MPs from the Party of National Unity (PNU) stated that the ICC investigations had unfairly targeted the Kikuyu ethnic group as the perpetrators of the post-election violence. These remarks have subsequently been recognized as 'hollow', and have been called 'irresponsible' in light of the ethnic component of the post-election crimes.

In other news, Judge Richard Goldstone has publicly stated that the often invoked criticism that the ICC targets Africa is 'unfair'. He argued that the ICC is a court of last resort that is often self-referred by African states, which creates an unfair perception that the ICC picks on Africa. Photo credit: Daily Nation.