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 S├íCouto 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