AMICC Representative Participates in University of Minnesota Law School Debate on the US Involvement in the ICC

By Kristen Rau, Juris Doctor Candidate, University of Minnesota Law School; Master of Public Policy Candidate, Hubert H. Humphrey Institute of Public Affairs, University of Minnesota; and Jordan Shepherd, Juris Doctor, May 2011, University of Minnesota Law School.

The University of Minnesota Law School’s Federalist Society, Law School Democrats, and International Law Society co-hosted a panel debate on March 22, 2011, “Is the World a Better Place for Having an International Criminal Court?” Speaking in support of the International Criminal Court (ICC) was Duane Krohnke, University of Minnesota Adjunct Professor and Provisional Organizer of the Minnesota Alliance for the International Criminal Court. David Wippman, Dean of the University of Minnesota Law School and a former director in the Office of Multilateral and Humanitarian Affairs of the National Security Council under the Clinton administration, took the neutral position. Professor Eugene Kontorovich of Northwestern University School of Law, argued the anti-ICC position.

Professor Kontorovich questioned both the ICC’s advisability and its constitutionality, beginning with the latter to obviate the need to consider the former. Professor Kontorovich asserted that U.S. membership would be unconstitutional for two reasons. First, U.S. membership would expose U.S. citizens to trials without the structures of an Article III court. While non-Article III courts may be constitutionally permissible in limited circumstances, these do not include core issues such as criminal trials. Second, U.S. membership would deprive criminal defendants of certain procedural rights guaranteed by the Constitution, such as the right to a grand jury.

Professor Kontorovich emphasized that the ICC is not the first international court that has solicited U.S. support and been resisted, highlighting 19th century British slave-trade courts in which the U.S. declined to participate. Most treaty negotiations, and the constitutional argument that spelled the death knell of U.S. involvement, were led by John Quincy Adams. Noting that the constitutionality of U.S. membership could be saved by limiting the ICC’s jurisdiction to exclude all non-universal jurisdiction crimes, Professor Kontorovich identified the unlikelihood of such a development due to the Rome Statute’s prohibition of reservations.

Professor Kontorovich concluded with a survey of reasons for which the ICC could be considered a failure: the sluggishness of the trial process, the failure to convict any defendant, and the absence of empirical research demonstrating meaningful deterrent effects. Professor Kontorovich further suggested that the ICC could actually extend conflict by inhibiting peace deals when militants or regimes see international criminal prosecution as unavoidable in spite of ceasing or surrendering. Moreover, Professor Kontorovich referred to Kenya, where piracy trials were halted as several government officials came under ICC scrutiny for their alleged role in the 2008 election violence, for the proposition that the ICC may do more harm than good. In response to questions from the audience, Professor Kontorovich suggested that ICC supporters must revisit the fundamental approach of the Court and recognize that it, like Nuremburg, was an emphatic endorsement of victors’ justice rather than a triumph of international justice. Finally, Professor Kontorovich argued that the recent definition of the crime of aggression within the ICC’s jurisdiction could push states like the U.S. even further from ratification, since military campaigns such as the bombing of Kosovo could be categorized as “aggression.”

Professor Krohnke presented the affirmative argument that the ICC does, indeed, constitute a positive development in international justice, concluding that the U.S. should ratify the Rome Statute. This argument is based on six propositions: 1) the Court will prosecute and punish those guilty of the most serious crimes, 2) the Court provides deterrence from such crimes, 3) the Court promulgates the truth about these crimes, 4) the Court assists victims, 5) the Court is active and appears to be permanent, making U.S. involvement pragmatic, and 6) U.S. involvement and membership is proper under the Constitution. Professor Krohnke suggested that the ICC operationalizes international human rights norms stemming from the 1948 Universal Declaration of Human Rights and seeks to replace impunity with accountability. Despite its slow development and initial operationalization, he suggested, the ICC will develop into an important global institution. Citing forthcoming research by Professor Kathryn Sikkink in The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (forthcoming in 2011 by W.W. Norton), Professor Krohnke argued that there is empirical evidence supporting the deterrent effect of international and domestic prosecutions of human rights crimes. Moreover, Professor Krohnke suggested that the ICC contributes to promulgation of the truth, supports victims’ assistance, and fosters pragmatic international relations.

Professor Krohnke addressed the U.S. constitutional criticisms of the ICC, noting that there is no evidence that its text bars U.S. involvement. He cited Missouri v. Holland to illustrate the broad application of the treaty power in relation to the Constitution and the protective requirements of executive agreement, the advice and consent of the Senate, and a two-thirds Senate vote for ratification. Professor Krohnke concluded with several responses to Professor Kontorovich’s position. Professor Krohnke suggested that ICC critics rely too heavily on early U.S. resistance to 19th century British slave court, particularly given the possibility that U.S. resistance was due to the political influence of southern U.S. states or to an American inclination to avoid post-Revolution entanglement with Great Britain.

Dean Wippman suggested that the ICC is fundamentally “a good idea that has been badly implemented.” Failing to command the political and financial support it needs, the ICC cannot live up to the hopes of its supporters. Yet, neither can it live down to the fears of its critics because it does appear to reinforce human rights norms and contribute to stability in some post-conflict societies.

Dean Wippman identified practical constraints, including jurisdictional loopholes, investigation and enforcement limitations, and procedural hurdles, as particular problems. Moreover, Dean Wippman noted the limited evidence of deterrence or social education that ICC supporters have long claimed. For example, Dean Wippman suggested that ICC trials may demonstrate that responsibility for human rights abuses rests with individuals; alternatively, they may also confirm pre-existing social biases. Dean Wippman acknowledged, however, that the specter of the ICC may effectively marginalize nationalist politicians and may, as in Latin America, allow national governments to shift power balances in favor of peace agreements.

Dean Wippman, modestly disclaiming expertise in constitutional law, addressed the constitutional question briefly. He noted that Professor David J. Scheffer, a major contributor to the drafting of the Rome Treaty, has argued persuasively for the ICC’s constitutionality. Further, the Clinton administration signed on to the Rome Statute with Department of Justice advice that U.S. signing and eventual ratification were permissible under the U.S. Constitution.

The debate concluded with a lively question-and-answer session, in which the participants fielded incisive questions and further developed and responded to arguments. Professor Kontorovich conceded that the ICC is not an insidious institution that is causing great harm to U.S. interests even though he disputes its effectiveness. Professor Krohnke emphasized the progressive development of this young but growing institution, especially the expected conclusion this summer of the first trial of Thomas Lubanga of the Democratic Republic of Congo. Finally, Dean Wippman stated that the disparate impact of the ICC across states and conflicts behooves supporters and critics alike to recognize its potentially variable effects around the globe.

Mahesha Subbaraman, the President of the local student chapter of the Federalist Society, moderated the debate but did not declare a winner. Nor was there any vote taken of the more than seventy-five students and faculty in attendance to determine who "won" the debate. The debate highlighted many issues surrounding the ICC and helped to raise awareness of this developing institution.

ICC in the Media, Update #25

This past week the media has focused primarily on the ICC's investigations in Libya and Kenya. ICC's Office of the Prosecutor has reportedly identified seven incidents within the first twelve days of the Libyan uprising that could constitute crimes against humanity. Prosecutor Ocampo apparently hopes to report his investigation into Libya to the United Nations Security Council by May 4, 2011. After that he will submit his findings to the courts of the ICC. In the meantime Ocampo has warned the Libyan government that going forward with civilian attacks could constitute war crimes. In the Kenya case, efforts to obtain a Security Council deferral reportedly came to an end on Friday when key members of the Council refused to support the measure. Although Kenyan VP Kalonzo, who has headed the deferral effort, denies the occurrence of a formal rejection, diplomats report that the deferral was rejected because it did not satisfy the Article 16 requirements of threatening international peace and security.

It is now likely that Kenya will turn its attentions to obtaining an Article 19 postponement under the Rome Statute which requires proof that Kenya can credibly prosecute the responsible individuals domestically. Prime Minister Odinga of the ODM party has come out in support of the Kenya six submitting to the ICC to clear their names and to provide some solace for those affected by the violence. However, the government is reportedly devising a compromise of creating ICC backed local tribunals that would satisfy the PNU and named suspects' desire for an Article 19 appeal, as well as the ODM's longstanding desire for credible post-election violence judicial proceedings. Whether this will be successful remains to be seen; however, the government must move quickly as the suspects are scheduled to appear before the ICC on April 7 and 8, 2011. In other news, last Friday Malaysia's cabinet officially decided to become a member state of the ICC. This development is to be soon followed by the final steps of ratifying the Rome Statute. In addition, Justice Joyce Aluoch, a former Kenyan appellate judge, has been elected as the presiding judge in the Banda and Jerbo cases from the situation in Darfur. Photo credit: Daily Nation.

[Take Action] Thank Obama for Referring Libya Atrocities to the ICC

In a rare moment of unified international action, on February 26 the UN Security Council adopted Resolution 1970 referring the situation in Libya to the International Criminal Court. The US courageously co-sponsored and voted in favor of this resolution. This was a break from past practice, including its abstention on Resolution 1593 referring the Darfur situation to the Court.

Despite the need for accountability for the continuing atrocities, conservative commentators are attacking the administration and the Security Council for asking the ICC to investigate.

Will you write to President Obama to tell him that you support the Security Council’s action and thank him for the US leadership on Resolution 1970?

Click here to sign the petition!

ICC in the Media, Update #24

March has been a very productive month for the International Criminal Court. As we reported earlier, the United Nations Security Council referred the situation in Libya to the ICC, Pre-Trial Chamber II decided to issue summons for the six named suspects in the Kenya investigation, and the Court continues proceedings in its numerous ongoing cases. The ICC's formal investigation into the situation in Libya is in full swing. ICC Prosecutor Ocampo has received confirmations that Gaddafi's forces have fired on peaceful demonstrators. However, Ocampo has also said that if opposition forces behave similarly they will also face scrutiny. To ensure a fair investigation the Prosecutor has welcomed information from potential suspects regarding their efforts to punish perpetrators and prevent atrocities. President Obama has made a statement supporting the ICC holding accountable the perpetrators of atrocities in Libya.

In response to the issuance of summons by the ICC for the "Kenya six" members of government have said that the government will fight both the admissibility and jurisdiction of the cases. However, members of the ODM party, who have supported an ICC intervention from the beginning, have said that neither they nor the Cabinet were consulted in the matter. According to Kenya's Secretary General until official process for determining government action has been abided by, the pronouncement that the government will challenge the ICC should be merely taken as a personal view of a handful of cabinet members. Members of the ODM party are reportedly taking steps to ensure that the six suspects will not have access to money for legal fees set aside from public funds because "It is wrong to assist the suspected perpetrators when the victims of the violence are still suffering." In the meantime the U.N. Security Council has confirmed receipt of Kenya's request to defer the investigation. Members of the U.N.S.C. and U.N. will now meet with Kenya to discuss the request. Earlier this week a Kenya High Court refused to order the government not to act on the summons issued by the ICC. Reportedly all six suspects have confirmed that they will abide by the summonses to appear before the Court. In the interim Prosecutor Ocampo has requested that Muthaura and Uhuru do not partake in their responsibilities relating to the police and Witness Protection Committee.

In other news the ICC has confirmed that two Sudanese rebel leaders will stand trial. No date has yet been set for the commencement of suspects Jerbo and Banda's trial. In the ongoing Bemba trial witnesses continue to provide testimony. Witness 29 recently testified that after being raped by three of Bemba's soldiers she contracted HIV. The Philippines is well on its way to ratifying the Rome Statute. The President has endorsed the ratification, which now must be approved by a 2/3 majority of the Senate to be complete. This move is well aligned with the ICC President's visit to the region last week. Ratification efforts are also well underway in Malaysia where the cabinet is in the process of approving membership to the Rome Statute. Photo: Kenya's Secretary General; Credit: Capital FM.

John Washburn's Interview with US Ambassador-at-Large for War Crimes Issues Stephen J. Rapp: Transcript Excerpts Now Available

On December 7, 2010 AMICC Convener John Washburn invited US Ambassador-at-Large for War Crimes Issues Stephen J. Rapp for a conversation in AMICC’s offices at the headquarters of the United Nations Association of the USA in New York a video of which we posted on AMICC’s blog. Transcript excerpts related to the US approach toward the ICC, including the development of the US policy toward the ICC, are now available on AMICC's website.

AMICC's Analysis of Heritage Foundation Criticism of UNSC Referral of Libya to the ICC

In Heritage WebMemo #3180 Brett Schaffer and Steven Groves conclude that the recent referral by the Security Council of the situation in Libya to the International Criminal Court (ICC), shows that international justice cannot be severed from political motivations and that this confirms that the United States is right to be wary of the Court. Their argument for this conclusion is that both the referral and the Prosecutor’s decision to act on it with an investigation are premature. They see the provision (known as “complementarity”) in the Court’s Rome Statute that it defer to genuine and appropriate national investigations and trials as requiring the Court to wait in a situation like Libya until a successor government is in place. Accordingly, they charge that in making the referral now the Security Council has "fallen victim to political pressure” and in responding the Prosecutor has let his “decision be driven by political expediency.”

These assertions are based on a serious misreading of the Statute. A major motive in the international community for the creation of the ICC was dissatisfaction that none of the existing international criminal tribunals such as those for Rwanda and Yugoslavia were able to act against crimes in progress. The ICC was therefore specifically designed as a permanent court that can act on evidence that conduct amounting to a crime within its jurisdiction has happened whether or not that conduct continues to go on.

The Rome Statute clearly requires the Court to defer to national investigations or prosecutions which an appropriate country already has the resources and the will to pursue. It is evident in the Statute and its history that its framers were anxious to avoid a situation where a country could indefinitely delay ICC proceedings by making promises for the future.

Finally, the article sees politically motivated haste in the Prosecutor’s decision to investigate despite his lack of representatives inside Libya and the challenges of gathering evidence about crimes there. In fact, the prosecutor’s first duty was to find enough evidence to justify the formal investigation he has now begun. That investigation must in turn collect the detailed and exhaustive evidence required to meet the much higher standard for arrest warrants. The prosecutor may not have his own people in Libya now, but it is likely that the revolutionaries will welcome them. Moreover, there are ample other sources in journalists, Interpol, refugees and information from governments and NGOs. The prosecutor successfully used sources like these to support formal investigations and arrest warrants in Darfur, from which he was almost entirely excluded. He has just announced that he is turning to such sources now in the formal investigation.

The ICC is a Court empowered to act in response to information and requests about current crimes. In response to its design and not to political influences, it is so acting in its response to the alleged and likely atrocities in Libya.

ICC judges send Darfur rebel case to trial, issue summonses for Kenya suspects

In a series of decisions made public today, ICC pre-trial judges approved a Darfur case for trial and issued summonses to appear for six individuals suspected of post-election atrocities in Kenya.

In the first, issued yesterday in the Darfur situation, Pre-Trial Chamber I ruled that there is sufficient evidence for Abdallah Banda and Saleh Jerbo to be tried for war crimes, including violence to life, attacking a peacekeeping mission and pillaging, resulting from an attack on an African Union mission in Haskanita, Sudan.

Today, Pre-Trial Chamber II issued two decisions in the Kenya situation:

- Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali

- Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang

These two decisions relate to alleged atrocities committed in 2007 post-election violence in Kenya. The summonses request the appearance of the suspects on April 7 and include alleged charges. The Prosecutor had requested summonses to appear in place of arrest warrants because he believed the suspects would appear voluntarily.

ICC Prosecutor opens formal investigation in Libya; US Senate passes resolution supporting ICC action

The ICC announced today that the ICC Prosecutor had opened a formal investigation into the situation in Libya. The UN Security Council adopted Resolution 1970 on Saturday which referred the situation to the Prosecutor, thereby granting the Court jurisdiction over alleged crimes committed there since February 15. The resolution did not, and could not, require the ICC to act. Since the Security Council referred the situation, under the Court’s Rome Statute the Prosecutor did not need the permission of the Pre-Trial Chamber to open an investigation. However, the Prosecutor will not necessarily be able to proceed quickly given the difficulty of investigating in Libya and the challenges of an ongoing conflict.

In addition to this recent decision, last night the US Senate passed by unanimous consent a resolution on Libya which praised the Security Council referral of the Libya situation to the ICC. This resolution had been championed by Senator Robert Menendez (D-NJ).