East Bay (Calif.) Dinner Forum: The International Criminal Court and New Moves by the Obama Administration

The status of the International Criminal Court was laid out for the members of the United Nations Association-USA East Bay Chapter at a dinner-forum in observance of Human Rights Day, 10 December. The speaker, Dr. Rita Maran, began by countering the popular understanding that the ICC is a UN-based court. Dr. Maran offered chapter and verse on the Court’s separate status from the UN, with nevertheless a relatively lengthy history as a project of the UN General Assembly Third Committee over several decades. US legal scholars, including several from the Bay area Schools of Law, were positive participants throughout those years. The Rome Statute of the International Criminal Court entered into force in July 2002, and well over 100 states party have ratified it.

President Bill Clinton signed the Rome Statute of the ICC before leaving office. However, the second Bush administration took the unusual step of withdrawing President Clinton’s signature from the treaty, thereby leaving the US without any connection to the Court and the ICC's jurisdiction over three crimes: genocide, crimes against humanity, and war crimes.

The Court has earned the respect of the international legal community by, if anything, leaning over backward to ensure even-handed justice to all participants in its trials. For example, in October 2010, the first regional diplomatic conference on the ICC in and for the Middle East was held in Doha, State of Qatar. This regional event, sponsored by the State of Qatar was undertaken together with the League of Arab States in co-operation with the ICC. In expressing her deep admiration and respect for Middle Eastern cultures and civilizations, Ms Arbia, Registrar of the International Criminal Court, stated that “there is, in the region, misinformation about the mandate and functioning of the ICC. The ICC is an independent multi-organ international judicial institution, with a whole host of checks and balances in place that exists to apply the law, guarantee fair trials, and ensure that justice is applied equally across the board” She stressed the importance of the rights of victims in proceedings before the Court - a novelty in international criminal law - and stated that “at the International Criminal Court, victims can, for the first time in the history of the discipline, participate actively in the proceedings, have their voices heard, and request reparations in case of convictions.” The Court is broadening and refining its treatment of victims and survivors with a particular focus on crimes against women and children. A number of appeals have begun to clarify the details of how the Court should handle victims and survivors.

In the first week of the ICC Review Conference in Kampala, Uganda, “stocktaking” was stressed; that is, 1) the Court was examined in terms of doing its job correctly within the international justice system; 2) the use and efficacy of various means of cooperation such as arrest warrants; 3) the challenge in terms of cooperation with non-party states. “Complementarity” was another issue focused on during the Review Conference. In rough terms, complementarity indicates that in national justice systems, national courts continue to occupy the primary position. The ICC is not a court of primary jurisdiction, but is secondary, and may be called into operation when the appropriate national court cannot or will not undertake the case.

With respect to the changes in policy evidenced by the Obama administration, the State Department sent an observer delegation to the Kampala Review Conference of the ICC earlier in 2010. The delegation was headed by Harold Koh, Legal Adviser to the State Department and former Dean of Yale Law School, and Stephen Rapp, newly-appointed Ambassador-at-Large for War Crimes Issues. Both US officials actively participated in all parts of the Review Conference, and are reported to have returned from it well-satisfied with the outcome. It appears to betoken a growing relationship of support and assistance to the ICC Prosecutor and his office, and gives rise to the hope that the US will continue to attend and participate actively. These actions would complement the Obama foreign policy, especially its elements of collective intergovernmental action in support of accountability and rule of law.