Friday, September 08, 2017

The Hitman's Bodyguard: The ICC in American Popular Culture

Favorable treatment of The International Criminal Court (ICC) has begun to appear in American popular culture. In the last three months, this has happened in two thriller novels and a movie. This blog discusses this phenomenon through these books and the film. In particular, we consider whether it may be important in making the American public aware of the ICC through what it reads and watches.

The movie is The Hitman’s Bodyguard. In it, Michael Bryce (played by Ryan Reynolds) is hired as a bodyguard to transport a notorious hitman, Darius Kincaid (Samuel L Jackson) to The Hague. Kincaid is to testify in the trial of Vladislav Dukhovich (Gary Oldman) a dictator from Belarus accused of crimes against humanity. It opened on August 18, 2017. On its opening weekend, admittedly a slow one at the box office, it was the first place earner with a gross of $21,384,504.

(The Hitman's Bodyguard Official Poster, sourced from IMDB. 

 The movie is firmly within the genre of action comedy, under the direction of Australian Patrick Hughes, who also directed The Expendables 3.  It has a cast of stars with Ryan Reynolds, Gary Oldman, Samuel L Jackson and Salma Hayek The movie has been received in a form typical to the genre, reviews ranging from below average to just slightly above. The New York Times review stated, “It occupies its genre niche – the exuberantly violent Euro-action movie-star-paycheck action comedy – without excessive cynicism or annoying pretension.”

Irrespective of the film’s reception by the industry, it is a movie about getting a witness to an international trial. Kincaid’s motivations compromises the force of this theme.  The character’s impetus is not from a strong sense of justice and a desire to end impunity; he is only willing to testify to the Court to exonerate his wife, Sonia Kincaid, played by Salma Hayek. The film does however deal with the very serious issue of witness protection, something that is well - known to and greatly concerns those familiar with the ICC.

Reviews and various synopses of the movie reveal that reviewers and publicists know little about the ICC. They are confused about the Court in The Hague where Kincaid is going to testify. In researching this film some media outlets state that Kincaid is going to testify at the ICC, other say that Kincaid and Bryce are trying to get to the International Court of Justice, and some just use the catchall of “The Hague”. Production Notes from Lionsgate, the movie’s distributor, do not clarify what Court the film is dealing with; simply stating that it is a “raucous and hilarious adventure from England to the Hague.” It is telling that even at a press release level, the jurisdiction and functions of those two international courts is confused. The film itself makes specifically clear that it is about a trial at the ICC. Moreover, it is about the trial of an individual, whereas the jurisdiction of the International Court of Justice is limited to disputes between states.

The confusion about the Court is just one of a few misconceptions about the structures and functions of international law and enforcement expressed within the film. For example, its use of Interpol agents was misleading. However, the significance of the movie remains in its positive portrayal of the ICC. Even having regard to the irony of two characters acting with impunity to get to a Court whose sole mandate is to end international impunity, the movie does familiarize the American audience with the existence of the Court.

This familiarization may be even better furthered by the two novels: Scott Turow’s Testimony and Terry Jastrow’s The Trial of Prisoner 043. Both are fictional novels that deal directly with the jurisdiction and judicial functions of the ICC. Testimony is about the ICC trial of the Bosnian genocide. It has been reviewed by the New York Times as a “fast-paced, well researched and, like the background it describes, distinctly tangled. This is a crime novel that requires a level of concentration and engagement with international politics some readers may balk at.” Scott Turow is a famous author of thriller novels. He is also a lawyer who still maintains a small private practice and most of his books have legal themes. His readership is in the millions. Testimony is not his best work, but still achieved a week on the New York best- seller list.  Turow spent time at the Court and his description of the Court is fairly good, giving readers a reasonable sense of how the Court works. Moreover, both in the text and in an Author’s Note there is warm and well-informed praise of the Court and sharp criticism of the US refusal to join it.

The Trial of Prisoner 043 presents a fictional ICC trial of George W. Bush for war crimes committed during the Iraq war. The Trial of Prisoner 043 been reviewed by one critic as “an interesting thought experiment, [that] is not successful as a legal novel.” Both novels are inaccurate in their description of testimony at the Court. The Trial of Prisoner 043 is especially so with testimony consisting only of long arguments pro and con on the invasion of Iraq under George W. Bush.

Whatever their merits or demerits in describing the Court, here are two novelists who are very concerned about the size of their readership and a director anxious to produce the end-of-summer blockbuster action movie. None of them apparently feared public hostility to their work because the ICC was a large feature of it. They probably knew nothing about polls showing high levels of popular approval of the Court, but their instincts about the public told them that there was no threat of such hostility. It is too early to draw final conclusions from this, but we are now on notice to see if it becomes a trend to support our advocacy.

Reference List:

Monday, August 14, 2017

Carla Del Ponte: her resignation and why

On Sunday 6 August 2017, Carla Del Ponte resigned from the United Nations (UN) Independent International Commission of Inquiry on the Syrian Arab Republic (Commission). Her departure has been widely reported in the New York Times and other major news outlets, and is part of the trend in the American news media to report more widely on the continued conflict in Syria and more generally on situations the International Criminal Court (ICC) is trying to address.

Del Ponte’s rationale for leaving the Commission highlights one barrier in attaining international justice through the ICC. The powers of the UN Security Council, specifically the Permanent Fives veto power provided by the UN Charter, can either stall or accelerate the process of international justice. This power held by United States, Russia, China, France and the United Kingdom is wide, thereby leaving international justice vulnerable to political will.  This blog will discuss how the Syrian situation demonstrates the damaging role of veto powers in the work of the ICC.

Carla Del Ponte, Commissioner on the UN Independent International 
Commission of Inquiry on the Syrian Arab Republic. 
Image sources from Justice Info Net. 

Human Rights Council (HRC) Resolution on 22 August 2011 established the Commission, and the UN General Assembly has since repeatedly endorsed it. The Commission’s mandate is to investigate all alleged violations of international human rights law in the Syrian Arab Republic, and to establish the facts and circumstances of any violations and crimes committed and to identify those responsible.  Further HRC resolutions expanded the Commission’s mandate including preserving evidence of crimes for possible future criminal prosecutions, with an emphasis on transparency and independence in holding those responsible to account. Over the years, the Commission has published several reports on the alleged atrocities committed by the Islamic State (IS), the Syrian Government and the opposition to the Government.

The Commission was the result of the growing international pressure to address the situation in Syria.  Mainstream media have widely reported that Syrian people are suffering from abuses perpetrated by IS, the Syrian Government and the Government opposition. The 2016 reception of the critically acclaimed documentary White Helmets testifies to the international community has continued concern. Amid this pressure, which does not appear to be subsiding any time soon, it has come as a shock to many that top war crimes expert, Del Ponte, has resigned from the Commission. With Del Ponte’s departure, the Commission is left with two Commissioners, Paulo Sergio Pinherio from Brazil and Karen Koning Abuzayd from the United States. Vitit Muntarbhorn from Thailand and Yakin Erturk from Turkey formerly sat upon the Commission. 

Del Ponte’s departure is a significant loss to the Commission, having served as a prosecutor in Switzerland and internationally. Del Ponte is a former Attorney-general of Switzerland, and acted as Prosecutor for both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). One of her most notable prosecutions was the indictment against acting Head of State Slobodan Milosevic in the ICTY, a prosecution that at the time seemed inconceivable.  Strong international criticisms of the Commission’s effectiveness and international inaction regarding the continued atrocities committed in Syria accompanied Del Ponte’s decision to leave the Commission. She particularly highlighted the inaction of the UN Security Council; the New York Times quoted Del Ponte as saying, “I was expecting to persuade the Security Council to do something for justice… Nothing happened for seven years. Now I resigned.”

It appears that the lack of support from the UN Security Council was the deciding factor for her resignation. Del Ponte is further quoted to have said “[t]he states in the Security Council don’t want justice… I can’t any longer be part of this commission which simply doesn’t do anything.” Supporting Del Ponte’s claim is the lack of intervention or action by the UN Security Council over the past seven years. In a recent interview, Del Ponte pointed the finger at Russia, noting that it supports the Bashar al-Assad Government. Del Ponte also acknowledged the failures of other states to put enough pressure on Russia to change its stance on Syria. CNN reported in April 2017 that Russia has blocked eight resolutions on Syria since 2011. In all instances Russia’s veto has either been accompanied by China, or China has abstained in the vote. These resolutions have attempted to address a variety of issues from the more mundane expression of ‘grave concern for the situation in Syria’, to clear condemnations of gas attacks on civilians. The Commission’s mandate is to research, report and collect evidence, but without the support of the UN Security Council, the Commission is rendered a toothless tiger. 

One of the UN Security Council’s major failings with respect to Syria was the Russian and Chinese veto of a resolution to refer the situation to the ICC in March 2014. This veto was condemned by Washington. Many Americans had already been shocked by the photographic evidence from Syrian defector Caesar, showing the deaths of 11,000 Government detainees .The draft resolution had also gained popular support among the international community with support from 65 states in the General Assembly. In 2014, it was estimated by the Syrian Observatory for Human Rights that the Syrian conflict had resulted in the deaths of 160,000 people and displaced millions of Syrian citizens since 2011. The organization I Am Syria estimated in August 2017 that a total of 470,000 people have died in the conflict. The 2014 draft resolution called for the ICC to have jurisdiction over crimes against humanity and war crimes committed in Syria, and was deliberately drafted to emphasize that all atrocities committed would be investigated, irrespective of the perpetrator. Although there have been continued calls within the international community to refer the situation to the ICC, no such subsequent resolution has been drafted by the UN Security Council.

Although the ICC does have limited capacity to investigate the situation in Syria through its  personal jurisdiction over  foreign fighters in Syria from ICC member states, this will not provide the international community and the Syrian people justice for the breadth of the atrocities. The successful prosecution of foreign fighters would send a message that the international community will not tolerate impunity. However, it is unlikely to affect those alleged criminals with command responsibility. This also resembles the limited impact of domestic trials based on the concept of universal jurisdiction. One such trial was pursued in Spain, although subsequently dropped in July 2017 for lack of a clear Spanish connection. These trials may provide the international community with some reassurance that we are working towards ending impunity, however those most responsible remain out of the reach of justice.

Del Ponte’s resignation signals to the world that the dysfunction and politics within the UN Security Council has a severe impact on the struggle for international peace and justice. As in this case, these severe failings of the UN Security Council restrict the ICC’s ability to provide the Syrian people with justice for the atrocities committed against them and to fulfill its mandate to end impunity for international crimes. It serves as a reminder of the grave responsibility of the UN Security Council to put aside its politics when atrocity crimes are before it and thus to sustain its legitimacy.

Reference list:

Written by Ally L. Pettitt.
*For further analysis of the ICC's jurisdiction over foreign fighters, please refer to our last blog. <> 

Wednesday, August 09, 2017

Accountability of Foreign Fighters

The atrocities taking place in Iraq and Syria are a serious concern to the international community. Islamic State (IS) has inevitably caused generations of harm to the region, and the impacts are being felt all over the world. The rise of foreign terror fighters (foreign fighters) has brought an international character to this conflict, highlighting the need to end impunity. This blog will discuss in depth the possible avenues for domestic and international accountability with respect to foreign fighters in IS.

Foreign fighters are a threat through their capacity to radicalize before returning to their country of origin, bringing with them traumatic experiences and the technical experience to engage in terrorist activities.  The National Bureau of Economic Research in England has claimed that the majority of the foreign fighters recruited by IS come from Tunisia, Saudi Arabia, Russia, Turkey and Jordan. Although in lesser numbers, many European and Western sovereign governments have acknowledged nationals fighting for IS; including the United Kingdom (UK), Finland, Italy, Canada and Australia.

While foreign fighters do continue to preset a significant threat to state security, they may also be used as a possible avenue for the International Criminal Court (ICC) Prosecutor to gain jurisdiction over the atrocities committed by IS. The Court’s role in the global fight to end impunity accentuates the significance of the ICC’s prosecution of crimes committed by IS. In 2015 the ICC Prosecutor, Fatou Bensouda, released a statement explaining the ICC’s jurisdiction over the alleged crimes committed by IS. The Prosecutor clearly articulated that while the crimes that are being committed in Iraq and Syria are of unspeakable cruelty; including rape, enslavement and possibly genocide; the Court does not have territorial jurisdiction because Syria and Iraq are not State Parties to the Rome Statute.

Fatou Bensouda, ICC Prosecutor
Image sourced from Diplomat Magazine.

Although the decline of IS has led to an exodus of foreign fighters from its ranks, returning foreign fighters provide the international community with an opportunity to hold members of IS accountable for their crimes. State Parties are obliged under the Rome Statute preamble to exercise criminal jurisdiction over those responsible for international crimes; specifically crimes against humanity, war crimes and genocide. Should a State Party fail to prosecute individuals for those crimes nationally, the ICC’s jurisdiction is activated under Art 17. 

The jurisdiction that is activated is the Court’s personal jurisdiction over State Party’s nationals, who are alleged perpetrators of statute crimes. It is the same avenue used by the Prosecutor to gain jurisdiction over the alleged war crimes committed by UK nationals in their military intervention in Iraq. Personal jurisdiction, as distinct from territorial jurisdiction, gives the Court jurisdiction over individuals from State Parties, as opposed to the territory of a State Party. In 2015 the Prosecutor noted foreign fighters from State Parties were active in the region, including nationals from Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, the Netherlands and Australia.  Further, the Prosecutor highlighted the use of social media to publicize the atrocities committed by these foreign fighters, assisting the Prosecution’s evidentiary burden.

However, personal jurisdiction is not sufficient for the Prosecutor to begin a formal investigation or trial. The status of these foreign fighters is crucial; the Court’s understanding of the Rome Statute places particular emphasis on command responsibility. This is evident through a brief review of the ICC’s precedent; for example the ICC has convicted Thomas Lubanga, former President of the Union des Patriotes Congolais and Jean-Pierre Bemba, former President and Commander-in-chief of the Mouvement de liberation du Congo. In fact, Bemba was the first person convicted on command responsibility at the ICC.

The State Party nationals would also have had to commit crimes that meet the sufficient test of gravity required to initiate an investigation under Art 53(1)(c) and further to be admissible at trial under Art 17(1)(d). In both instances, the Pre-Trial Chamber and the Prosecutor must find that the alleged crimes are sufficiently grave to justify further action by the Court. Gravity was introduced into the Rome Statute to ensure that the ICC would only consider crimes of most serious concern in the international community. Although the term is not defined, the Prosecutor v. Thomas Lubanga trial determined that the test of gravity must consider whether the conduct was either systematic or large-scale, and the social alarm caused in the international community. Gravity is neither a strictly qualitative or quantitative evaluation. However, the alleged perpetrators status is relevant. An individual committing war crimes or crimes against humanity will cumulatively have less impact than those in command, and may not satisfy the systemic or widespread requirement. These characteristics more appropriately fit individuals with command responsibility, than foot soldiers.  

Although the Court is limited by territorial jurisdiction, the ICC’s inherent personal jurisdiction is crucial when discussing the accountability of foreign fighters. The Rome Statute requires that returned foreign fighters be investigated and tried in their nation of origin, and should a State Party fail to satisfy this obligation the Court has jurisdiction. This highlights the importance of sovereign nations ratifying the Rome Statute, by creating an obligation on State Parties to end impunity for international crimes domestically. In this instance, the Court is able to indirectly impose standards of international criminal law through soft measures; contributing to the Court’s objective in ending impunity.


Written by Ally L. Pettitt

Thursday, July 27, 2017

Iraqi 'Rehabilitation' Camps: A Possible Crime Against Humanity

The forcible removal and transfer of civilian populations, and detaining them constitutes a crime against humanity under the International Criminal Court’s Rome Statute. Statute expresses the standing international law standard that this is a crime that applies to all nations without exception. The Court must enforce it according to that standard although its jurisdiction may not reach all offenders. These acts as part of systematic attack against those individuals seen to be indirectly associated with the terrorist group IS. The topic of this blog is deportation, forcible transfer and imprisonment of sections of the Iraqi civilian population and how the Court might address those responsible for this crime.

Human Rights Watch (HRW) has recently spoken out against the use of ‘rehabilitation camps’ in Iraq. HRW argues that these camps, designed to rehabilitate family members of alleged Islamic State (IS) members, have amounted to evictions and are a form of collective punishment. HRW claims that at least 170 families are victims of Iraqi Security Forces evictions, as well as being subject to threats and attacks. These rehabilitation camps have been in response to a Mosul District Council direction, issued on 19 June 2017, that IS families are to receive psychological and ideological rehabilitation. Soon afterwards, a rehabilitation camp in Bartalla was opened. HRW visited this camp to conduct interviews, revealing that no one detained had said they were accused of any wrongdoing and did not know when they would be allowed to leave. HRW also noted that the families were composed of mostly women and children.

Bartalla 'Rehabilitation' Camp.
Image sourced from Human Rights Watch.

This is not the first time HRW has reported this kind of incident in Iraq; in March HRW reported the displacement and detention of 125 suspected IS families and in January reported on Iraqi provincial government’s decree authorizing the demolition of homes of anyone proven to have participated in terrorism activities. However, this most recent event of institutionalizing individuals based on assumed criminality is a new development.

Iraq is not a State Party to the Rome Statute, and therefore the International Criminal Court’s (ICC) jurisdiction would have to come from an unlikely referral to the United Nations (UN) Security Council. However, with territorial jurisdiction the Court would be able to try these actions by the Iraqi Government as a crime against humanity under Art 7 of the Rome Statute. If these Iraqi ordinances and decrees were applied without due process. This might constitute an additional crime against humanity.

Although the Court’s jurisdiction is largely limited to states parties to the statute, Art 12(2) may provide an alternative avenue for ICC intervention. Personal jurisdiction could apply if members of the Combined Joint Task Force, Operation Inherent Resolve, are participating or facilitating in the removal of families of those accused of terrorist activities. These individuals must be nationals of states parties of the Rome Statute. Art 12(2) of the Rome Statute places two conditions on the ICC’s jurisdiction, specifically either the crime must have been committed by within the territory of a state party or alternatively the crime was committed by a national of a state party. For example, citizens of countries like Australia, New Zealand and Iceland, members of Operation Inherent Resolve, could be accountable to the ICC by virtue of their status as citizens of a State Party.

To be clear, this is not to imply or infer that foreign forces are involved in crimes against humanity or specifically in the removal of Iraqi families. In fact, HRW has clearly articulated that the removals are the result of sovereign Iraqi provisional authorities’ various decrees. Although the removals are the result of Iraqi decrees, it is possible that foreign forces may be involved in the process of deportation and forcible transfer. In this instance, the ICC does provide victims of atrocities with an avenue to seek justice and accountability from the citizens of countries in those forces. The provisions of the Rome Statute on war crimes, genocide and crimes against humanity also serve as a standard in the international community, and all states parties should be aware of their obligations under the treaty when engaging in foreign intervention.

Written by Ally L. Pettitt

Monday, July 24, 2017

The Office of Global Criminal Justice: Why it matters.

On 17 July 2017 there were strong indications that the US States Department was planning to either close the Office of Global Criminal Justice (GCJ) entirely, or to reassign its staff and responsibilities to the Bureau of Democracy, Human Rights and Labor (the Bureau). There is no official statement yet, but the reassignment of Todd Buchwald, acting head, makes its impending close appear very likely. The purpose of this blog post is to explain why the closure of an independent GCJ matters to those interested in the International Criminal Court and the values it upholds. The GCJ has been the office responsible for the official US relations with the International Criminal Court (ICC).

Todd Buchwald, Acting Head of the Office of Global Criminal Justice
US State Department Photo

The principles enunciated by the GCJ has its origins in a fundamental shift in US foreign policy during the Carter Administration. Carter’s election symbolized a move was away from acknowledging human rights, to actively pursuing the cause. In 1977, his inauguration speech explicitly stated “Because we are free, we can never been indifferent to the fate of freedom elsewhere.” Twenty years later, this commitment led Madeleine Albright to create the Office of War Crimes Issues (now GCJ) within the States Department.

The GCJ has been in operation twenty years, and its achievements have been great in dealing with atrocities around the world.
  •          Continued campaigning to ensure foreign Governments do not extend diplomatic invitations to Sudanese officials that are wanted by the ICC, including incumbent President Al-Bashir;
  •          Negotiations and fund-raising to assist the creation of the AU-Senegalese Court;
  •          Continued technical support to the government and people of Colombia in their transitional justice process;
  •       Obtained and released 30,000 Caesar photos from Syria, exposing the recent atrocities committed under the current Bashar al-Assad regime;
  •           Assisted the State Department in assisting the African Union to set up a hybrid court to prosecute international crimes within Africa;
  •           Provided active support to the International Criminal Tribunal for the Former Yugoslavia;-          Seconded staff to the European Union’s Special Investigative Task Force;
  •           Drawn attention to the ongoing conflict in Burundi, including assisting the Atrocity Prevent Board’s mission in the region; and
  •           Raising American and global awareness of the Yazidi genocide in Iraq, perpetrated by the international terror group IS.

Beyond its commitment for accountability and against impunity, the GCJ also runs an active War Crimes Rewards Program. This has been in operation since 15 January 2013, and offers up to $5million USD to individuals who provide information regarding designated defendants who have been charged with the commission of international crimes. This program has been effective, in securing fugitives subject to arrest warrants from the International Criminal Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda. More recently, the Program has assisted in detaining Dominic Ongwen, Ladislas Ntaganzwq and Jean Bosco Ntaganda; Ongwen and Ntaganda being ICC defendants. The program is currently seeking information to aid the capture of other perpetrators such as Joseph Kony. 

The importance of the GCJ is evident from these achievements. The GCJ is a continued demonstration to the world that the United States is committed to ending impunity and bringing those responsible for grave atrocities to justice. Although the functions of the GCJ may remain when the Office is subsumed under the Bureau; there is a reasonable concern that its integration may come at the cost of a specific focus on war crimes and international justice. The values of the Bureau are to promote freedom, democracy and protect human rights. Although a focus on international criminal law may be inferred by the nature of the Bureau’s objectives, issues of criminal justice are unlikely to be at the forefront. The consequences may be that the US may appear to have backed away from its commitment to end impunity, and international criminals may conclude that they will not be held accountable for their crimes. 

Written by Ally L. Pettitt

Wednesday, June 14, 2017

A Supportive US Statement, a Divided Security Council: Analyzing Statements on the Darfur Situation

On Thursday, June 8, 2017, the Security Council met to hear ICC Prosecutor Fatou Bensouda’s briefing on the Darfur situation. The situation had been referred to the Office of the Prosecutor (OTP) by the Security Council through resolution 1593 (2005).

The ICC Prosecutor discussed the outstanding ICC arrest warrants in the Darfur Situation and asked for support in getting states to uphold these warrants, or at least for the Security Council to act upon her office’s referrals of states for non-compliance and non-cooperation. She emphasized the case of Sudanese President Omar al-Bashir, who has repeatedly made headlines for traveling to other states despite an outstanding ICC arrest warrant against him for genocide, crimes against humanity and war crimes in Darfur. Prosecutor Bensouda also mentioned that they were considering more individuals and new arrest warrants.

The statements of Security Council member states were divided. While the meeting began with a supportive statement from the UK,  the following statement from Ethiopia criticized the ICC’s handling of situations in Africa and called for the suspension of the case against Bashir. Egypt also called for such a suspension. Uruguay was extremely supportive of the Court’s work and encouraged ratification of the Rome Statute. The US called for accountability for the war crimes, genocide, and crimes against humanity in Darfur. Japan highlighted the obligations of States under resolution 1593 (2005). Ukraine criticized non-compliance with the court, followed by Italy which called for cooperation with the Court. However, then China said that the African Union’s criticism of the ICC, was reasonable and Russia argued that the meeting and its subject matter was inappropriate for the UN Security Council.  Sweden and France followed with supportive statements that called for cooperation with the ICC and obligations to uphold arrest warrants under the resolution. Sudan, which is not a member of the Security Council, was the last to speak. It denied genocide in Darfur, attacked the prosecutor and insisted that there was not enough evidence.

UN Photo

Division at Security Council

A similar division had arisen during the Prosecutor’s briefing on the Libya situation to the Council last May. Given the sizable body of opposition at the Security Council towards the ICC’s work and the geopolitical climate related to the ICC and situations of atrocities, it is doubtful that the Security Council will refer any more situations to the ICC. Similarly, despite Prosecutor Bensouda’s calls for Security Council action against non-compliance and non-cooperation, it may be unlikely that such actions will be taken in the immediate future. There are several countries who criticize the actions of the Court; so, it is possible that an enforcement attempt would not receive enough “yes” votes from the Security Council members. Russia and China’s opposition to the Court’s work and their economic and political ties could also turn into vetoes of future ICC-related referrals. That said, many actions to help end the conflict in Sudan have been taken by the Security Council in the past year: they renewed the 1591 Sudan Sanctions Committee Panel of Experts, sanctions, and UNAMID’s mandate. So, there could be the possibility of some action that indirectly helps the OTP’s work in Darfur. Yet, statements at the Security Council last Thursday suggest that some states have been alarmed the ICC’s efforts to get Bashir, a head of state, to The Hague.

Although there is too much opposition for the Security Council to act in support of the ICC’s work, it is highly unlikely that the Security Council will act with hostility against the Court. The verbal support for the ICC’s work from the majority of states at the Security Council, including the UK, France, and, often, the US, should provide a buffer against any efforts to undermine the Court’s work, including through resolutions deferring cases from investigation by the OTP and trial at the ICC. Such a deferral would bind the OTP from working on a case or situation under Rome Statute Article 16, and it could undermine the Court’s work.

However, deferrals are a possibility, and the Security Council has agreed on deferrals in the past. For example, during the Bush administrations’ political attack against the Court in the early 2000’s, it pressured the Security Council to pass Resolution 1422, which deferred ICC investigation and prosecution of peacekeepers.  It used its veto powers against resolutions renewing UN peacekeeping operations’ mandates until the Security Council agreed to do so. 

Therefore, for the continued success of the Court, the Security Council’s assistance, cooperation, and support will be vital. Supporters of the ICC who are nationals of Security Council member states must strategically demonstrate the public’s support for the Court and find new avenues to maintain, strengthen or induce their government’s political support for the Court.

The US Statement

Ambassador Michele J. Sison, the US deputy permanent representative to the United Nations spoke on behalf of the US delegation.  She stated:

“Having referred the situation in Darfur to the ICC over ten years ago, we must continue to demand Sudan’s compliance with this Council’s decisions. While victims have not yet seen justice, and refugees and internally displaced persons continue to struggle years after the conflict began, it is unacceptable that President Bashir still travels and receives a warm welcome from certain quarters of the world– and unacceptable that none of the Sudanese officials with outstanding arrest warrants have been brought to justice.”

This is not the first official statement that the US has made under the Trump administration about the Darfur situation. Last month’s press release from the US Embassy in Khartoum was more strongly worded. It opposed not only Bashir’s travel but travel of all individuals with outstanding ICC arrest warrants. Similarly, in May, the US expressed its support for the ICC’s work in Libya and called on states to transfer, to The Hague, individuals with outstanding ICC arrest warrants from the Libya situation.

Admittedly, there is only so much that can be derived from US statements at the UN or a US embassy. Neither of the statements came directly from Washington, and US officials’ statements on foreign policy issues have been lacking consistency—even at the highest levels. For example, recently Donald Trump and Rex Tillerson made news for making opposing statements about the diplomatic crisis between Qatar and other Middle Eastern countries. So, it is difficult to ascertain if the sentiments and policies set forth by these statements will reflect future actions and positions of the US government.

However, it is encouraging that, during the Trump administration, the three official US statements on the ICC were supportive of the Court. Even if the statements were not directly delivered by Washington,  supportive statements from the US mission at the UN Security Council and from a US embassy is better than a hostile reaction to the Court. 

The statements were consistent with the policy of constructive engagement, which was adopted under the Obama administration. Since no new policy has been publicly announced under the Trump administration, US officials may simply be following the old policy. Or, the supportive statements could be an intentional decision by the administration because changing the US policy on the ICC is not a top priority of the administration or because it felt that the policy was compatible with their goals. It is also possible that the administration simply has not paid attention to the ICC yet, and these offices are just echoing preceding statements and acting outside of Washington’s radar. So, it is likely, that the administration either doesn’t yet care about the ICC policy or the administration is at least neutral or in favor of the preceding policy. In either case, there is a chance that the US policy on the ICC will not change for some time.

Tuesday, June 06, 2017

Reviewing "Détente scoffs at talk of International Criminal Court probe"

Recently, news outlets have speculated on potential ICC charges against the Philippines President Rodrigo Duterte for crimes against humanity. The recent Washington Post article “Duterte scoffs at talk of International Criminal Court probe,” by Emily Rauhala, correctly notes that bringing charges against Duterte would take time. However, it also observes that if the OTP were to begin a preliminary examination into the situation in the Philippines—the first step in the process, the examination could have a significant impact. The Washington Post article also poses some interesting questions about the impact that charges for crimes against humanity could have on the US relationship with the Philippines. A few of the points made in this article deserve attention for AMICC’s advocacy.

Language check:

As is the case in most press coverage about the International Criminal Court, some inaccurate language conveyed common misconceptions about the Court. Some clarification might be needed when discussing the article

• First, referring to the Rome Statute, Emily Rauhala says that the US “never signed the treaty.” Yet, the US did sign the treaty on December 31, 2000, under the Clinton Administration, although Clinton did not send it to the Senate for ratification, and the Bush administration deactivated the signature in its first term.

• Similarly, the article says that Russia “withdrew” from the pact last year; however, more accurate terminology would be to say that it “deactivated” its signature.

• Rauhala writes that the “complaint” against Duterte “accuses the president and 11 associates of mass murder and crimes against humanity.” However, mass murder is a type of crime against humanity.

• South Africa, Gambia and Burundi have not merely “at various times, threatened to withdraw” from the ICC. All three announced their withdrawal last Fall and informed the UN of their decisions, which is necessary to leave the Court. South Africa and Gambia are no longer set to leave the Court, and only Burundi is set to leave.

Impact on The United States Relationship

Rauhala correctly pointed discussion in the article to the impact charges at the ICC will have on US-Philippines relations. Indeed, in the past, the US has shied away from allowing its leaders to shake hands with those accused of crimes by the ICC. Last month, the media was thrown into a frenzy with reports that both US President Donald Trump and Sudanese President Omar al-Bashir would be attending the same summit in Saudi Arabia. The speculation and criticism were not missed by the US government, and the US embassy in Khartoum released a strong statement against Bashir’s attendance: "the United States has made its position with respect to Sudanese President Omar al-Bashir’s travel clear. We oppose invitations, facilitation, or support for travel by any person subject to outstanding International Criminal Court (ICC) arrest warrants, including President Bashir.” If an arrest warrant is issued for Duterte for crimes against humanity charges, the PR optics of US officials meeting with the President might make such meetings increasingly unlikely.

ICC as the last hope

The article quotes Sen. Leila de Lima as saying that the ICC is “the last hope for the Philippines to see an end of killings.” Indeed, the ICC is a court of last resort. The framers of the Rome Statute intended for it to be so; it is not meant to get involved in situations where local or national institutions are already able and willing to execute the rule of law. Correctly explaining the principle of complementarity—although without using the term—Rauhala writes that the ICC “can assert… jurisdiction only if it is clear that local authorities have failed to investigate or prosecute crimes.” The article aptly explains that it does not appear that there is any movement in the Philippines for investigation or accountability for the extrajudicial killings and that institutions have been “kept” from doing so under Duterte.

Point of Contention: Political Pressures on the Prosecutor

Writing about “political considerations” as Rauhala did in the article may be appropriate journalism. However, it would be imprudent and unprofessional for the prosecutor to proceed or dismiss the complaint based on political pressures or fears. The framers of the Rome Statute intended for the Court to stay apolitical in its decisions to prosecute, and the prosecutor has repeatedly stated that she is committed to making decisions about prosecutions following her mandate rather than political tides. That being said, it is difficult for the prosecutor to completely fulfill her mandate without the necessary budget to do so. The article points to the relatively small resources at the Court's disposal given their caseload. While it is best that the Prosecutor remain committed to her mandate without political judgments involved; limited resources may forces the prosecutor to make choices between situations for the ICC to bring to a preliminary examination or investigation even if both situations fall under her mandate. 

The Washington Post should continue to educate its readers about the ICC and potential charges of crimes against humanity. The article does an excellent job of explaining the significance of the complaint and any potential preliminary examination or subsequent charges that might result from the complaint. However, better knowledge and understanding of how the court works is needed by news outlets to avoid contributing to the problem of misinformation about the Court.

Written and researched by Taylor Ackerman, AMICC Professional Associate (unpaid)

Monday, May 22, 2017

An Update on the Trump Administrations’ Approach to the ICC

The current administration has not set a new policy for the ICC; predictions about the future US-ICC relationship cannot be based on clear statements from the administration, because there are none. However, the strongest and most hopeful clues about future US-ICC relations came in the form of a statement from the US Deputy Legal Advisor, Stephen Townley, at the UN Security Council meeting on May 8th, 2017 and a statement from the US Embassy in Khartoum in Sudan. Yet, even logical deductions from those statements cannot be turned into predictions about the future position of the Trump administration on the ICC.

Security Council Statement on the Libya Situation

The United States’ statement at the Security Council praised the ICC Prosecutor Fatou Bensouda's work on the Libya situation, and, implored states to extradite individuals under ICC arrest warrants to The Hague for trial. The United States also expressed support for accountability of those responsible for crimes in Libya. It did so because the United States recognizes the necessity of accountability and justice to secure peace and stability. This was a powerful and commendable statement by the United States.

Although, it is a positive statement that the UN mission was consistent with past policy; the statement could have resulted from a variety of situations. The statement indicates that the Trump administration’s policy on the ICC could resemble the Obama administration policy or the policy of the second half of the Bush administration. However, it is also possible that the statement about Libya originated from the UN mission, and might not represent thinking in Washington. It could also mean that no new policy has formed. In fact, the “International Criminal Court” page on the State Department’s website still states that the “May 2010 National Security Strategy summarizes current US policy.” It is possible that no one in the Trump circles has really thought about the ICC or that changing the policy is not a priority for the administration. If the Trump administration does plan to follow the policy, it should continue to show a strong push for international criminal justice in situations where it fits US national interests, such as in Libya.

US Embassy Statement on Bashir

So far, the biggest test of the US-ICC relationship under the Trump Administration came in the form of reports that both US President Donald Trump and Sudanese President Omar al-Bashir would be attending the Islamic-American Summit. The ICC issued an arrest warrant for Bashir for charges of genocide, crimes against humanity and war crimes. Fortunately, for the administration, it was announced that Bashir would no longer be attending the meeting on Friday, May 19th. The preceding Wednesday, May 17th, the US Embassy in Khartoum, Sudan had stated:
"We oppose invitations, facilitation, or support for travel by any person subject to outstanding International Criminal Court (ICC) arrest warrants, including President Bashir."
The statement not only referred to Bashir but stated US position towards “any person subject to… (ICC arrest warrants.” It was a strong statement in support of upholding the ICC arrest warrants and the travel of Bashir, which has been a continuous problem for the Court. However, like the Security Council statement, the Embassy statement may have been derived from a wider State Department agenda, or it may have merely originated from inside the Embassy. It may have reflected a variety of situations in Washington.

Furthermore, given the existing global press attention and the potential image problem, if Trump had attended the summit with Bashir, it would have been a stronger demonstration of US commitment to accountability if a statement came directly from Washington. During the previous two administrations, high-level officials gave numerous statements of US support for the Court’s efforts in Darfur and called for the transfer of Bashir to The Hague after the Court issued an arrest warrant for him. It is more important than ever that the United States show a commitment to accountability in Darfur, and demonstrate that the United States does not condone impunity for those who committed atrocities. It should encourage its allies to work with the ICC to transfer those under ICC arrest warrants instead of enabling those individuals to travel to their country with impunity.

Another cause of concern for how the Trump Administration will treat the ICC situation in Darfur can be found in the March 2017 US Bureau of African Affairs’ fact-sheet on US-Sudan relations failed to mention the ICC, genocide, accountability or justice. The US has done very little on the issue of Darfur under the Trump Administration, and the fact sheet could reflect a potential shift away from the approach taken by Trump’s predecessors. However, the fact sheet also does not mention any individuals who face arrest warrants from the ICC, and the ICC tries individuals, not states. Perhaps it could be reasoned that since the fact sheet was about the US relationship with Sudan, the state and not with its officials, it does not represent a shift in approach.

Room for Concern

There is further room for concern about the future US-ICC relationship. The Prosecutor is considering allegations that the US and other NATO personnel committed war crimes against detainees in Afghanistan. While charges at the ICC against US nationals could have negative consequences for US-ICC relations, there is hope that it might be an impetus for the administration to procure justice for war crimes. The Administration could be encouraged to hold domestic trials of its nationals alleged to be most responsible for war crimes. There are reasons to do so. It would be a signal to the rest of the world and to the American public, that the United States does not condone or provide impunity for those who commit atrocities and violate American commitments. As a result, our global image might be reshaped as a state committed to human rights, the rule of law, and justice. Plus, prosecutions might mend the dissonance between Americans calling for accountability of foreign officials responsible for atrocities while allowing American nationals to enjoy impunity. Following the principle of complementarity, the ICC would refrain from trying Americans where the US has proceedings under way to uphold accountability and the rule of law, and this, in turn, could relieve many American fears about the ICC.

The Trump administration has asserted opposition to international organizations, which may be an indicator that the Trump administration will oppose the ICC, but it is unlikely that the Trump administration would oppose the existence of all international organizations. Previous AMICC blogs have pointed out that numerous international organizations do essential work. For example, without US participation in international organizations, Americans would be unable to safely fly internationally. Certain objectives can only be procured through international cooperation. The US mission at the UN has already recognized the importance of the ICC for securing accountability in Libya. The ICC’s commitment to justice and accountability for atrocities is particularly attractive to the United States, and it serves an essential role in securing justice in many situations. Additionally, the US is not a state party to the Rome Statute, has very few obligations to the ICC, but is interested the Court’s success.

Likewise, there were initial concerns about a draft executive order that included a provision about a committee recommending the United States defund the ICC. The committee would make recommendations on defunding international organizations, and the draft order included an extensive list of organizations for the committee to consider. The ICC is one of them. However, the provision of the draft executive order has yet to be signed by the president, and it would have no effect on US-ICC relations since it is already illegal under domestic law for the United States to fund the ICC.

Ultimately, there are numerous indicators, but they lack clarity. Even the statement by the US delegation at the UN cannot confidently be asserted as a forecast of future Trump administration policy towards the Court. In some respects, it might be better that the Trump administration avoid the topic of the Court altogether. The administration has yet to alter the inherited Obama policy towards the Court, and they have yet to criticize or attack the Court as the early Bush administration did. While a formulated approach by the new administration could follow the path of the Obama Administration or the late Bush administration, there is also the possibility that the administration would adopt the attitudes of the early Bush administration. On the other hand, there are cases where US political and tactical support have been extremely beneficial to the Court’s. It might be best to simply hope that the Trump administration provide support for the Court on a case-by-case basis—expressing its approval and offering its help in cases it finds attractive and staying mostly silent in other situations.

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