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.
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