ICC Prosecutions Coordinator Alex Whiting to Speak at Columbia on October 11

The Columbia University Institute for the Study of Human Rights, of which AMICC is a program, will present an event on Thursday, October 11 featuring a senior attorney from the International Criminal Court, Prosecutions Coordinator Alex Whiting. Whiting is responsible for managing and providing legal guidance and direction to all of the ICC’s prosecutions. At the event, he will discuss the work of the ICC's Office of the Prosecutor and assess its successes and shortcomings.

Whiting was previously a senior trial attorney at the UN International Criminal Tribunal for the former Yugoslavia. A former assistant U.S. attorney for the District of Massachusetts and a former trial attorney in the criminal section of the Civil Rights Division in the Department of Justice, Whiting is on leave from Harvard Law School where he is an assistant clinical professor of law. He holds a B.A. and a J.D. from Yale.

The event is co-sponsored by the Columbia Society of International Law and the Human Rights Institute.

Details: Room 106, Jerome Greene Hall, Columbia Law School, 435 West 116th Street. Free and open to the public. No RSVP required. Lunch will be provided. Questions & Answers to follow.

Learn more at amicc.org or download the event flyer.

New Poll: 70% of Americans Support US Participation in the International Criminal Court

Today the Chicago Council on Global Affairs released a report indicating that 70% of Americans believe that the US should participate in "[t]he agreement on the International Criminal Court that can try individuals for war crimes, genocide, or crimes against humanity if their own country won’t try them." This latest poll is consistent with past Chicago Council polls and others which have asked similar questions on US participation in the Rome Statute of the ICC.

AMICC's John Washburn Discusses US-ICC Relationship on WHYY's Radio Times

John Washburn, Christian Wenaweser, Stephen Rapp and Marty Moss-Coane at WHYY in Philadelphia. More photos on Facebook.

 
Today AMICC's John Washburn appeared on WHYY's Radio Times to discuss the first decade of the work of the ICC, along with US Ambassador-at-Large for Global Criminal Justice Stephen J. Rapp and Ambassador Christian Wenaweser of Liechtenstein and former president of the Court's Assembly of States Parties. All three are slated to speak later today at the Philadelphia Global Initiative on the Rule of Law: Celebrate - Reflect - Promote. The broadcast includes a discussion of the US relationship with the ICC.The Podcast is available here and and soon on iTunes.

AMICC Releases a New Paper, Q&A on "Deconstructing Lubanga, the ICC's First Case"

Thomas Lubanga Dyilo at his sentencing hearing on July 10, 2012. Photo: ICC-CPI/Jerry Lampen.

By Stephanie Kammer

The Lubanga case is a major step in the history of the International Criminal Court (ICC). Thomas Lubanga Dyilo is the first person to be tried, and also convicted, by the ICC. Future ICC judges will look to the Lubanga case to guide them in their decisions, and people outside of the Court will look to the trial to assess how the Court functions and how well it works toward ending impunity for the world’s most serious crimes.

Read more in Deconstructing Lubanga, the ICC's First Case: The Trial and Conviction of Thomas Lubanga Dyilo and the accompanying Questions & Answers. 

Preview of Upcoming International Criminal Court Cases, Activities and US Events

Then-ICC Deputy Prosecutor Fatou Bensouda at a news conference in Guinea in 2010. Photo by Joe Penney.

By Audrey Kim

This summer was full of milestones for the ICC: Prosecutor Fatou Bensouda was sworn in as the ICC’s new prosecutor, the ICC handed down its first sentence and decision on reparations in its case against Thomas Lubanga Dyilo of the DRC, and Mali referred the situation in its territory to the OTP for a potential investigation. This fall, the ICC will continue to make progress in its cases and in its role in the enforcement of global justice and the deterrence of atrocities.

Progress in Cases before the ICC

Since the entry into force of the Rome Statute on July 1, 2002, 16 cases in seven situations have been brought before the ICC. Earlier this year, the Court handed down its first verdict, sentencing order and decision in the case against Thomas Lubanga of the DRC. Other cases before the Court continue to progress at the ICC.

In the case against Lubanga, the Court will implement and enforce the reparations for victims. As this is the first time the ICC has issued a reparations decision, its execution will have significant implications for its relationship with victims and future reparations. The prosecution and defense will also have the opportunity to appeal the verdict against Lubanga as well as the 14-year sentence. The deadline for appealing the verdict is 30 days from August 31, the date that the official French transition was made available to the parties.

Also part of the situation in the DRC, the trial of Germain Katanga and Mathieu Ngudjolo Chui was concluded on May 23, 2012 when the defense concluded the presentation of its case. The judges have begun deliberations after 240 hearings and will issue a verdict in the near future.

On September 3, 2012 the trial of Jean-Pierre Bemba Gombo of the Central Republic of Africa resumed in Trial Chamber III. This is the ICC’s third trial, and it started in November 2010. The defense case started in August of this year. As the alleged President and Commander-in-Chief of the Mouvement de Libération du Congo, Bemba is allegedly criminally responsible for two counts of crimes against humanity of murder and three counts of war crimes of murder, rape and pillaging.

Although unconfirmed, this fall the ICC will also likely hold the confirmation of charges hearing in the case of Laurent Gbagbo, the former President of Côte d'Ivoire. He is charged with alleged co-perpetration of crimes against humanity of murder, rape and other sexual violence, prosecution, and other inhuman acts. The date of his confirmation of charges hearing was postponed from August 13, 2012 to an undetermined date to allow the state of his health to be assessed.

The situation in Kenya, which consists of two cases, has been the subject of much international attention. Opening of trials for the case of William Samoei Ruto and Joshua Arap Sang is scheduled for April 10, 2013 and on April 11, 2013 for the case of Francis Kirimi Muthaura and Uhuru Muigai Kenyatta.

In the case against Banda and Jerbo in the Darfur situation, Pre-Trial Chamber I confirmed the charges of war crimes and assigned the case to Trial Chamber IV. The date of the trial remains unconfirmed.

In the Libya situation, Libyan prosecutors have claimed that they will try Saif Al-Islam Gaddafi in national courts in the town of Zintan. Recent report indicate that Abdullah Al-Senussi, the former Libyan military intelligence chief, has been transferred from Mauritania to Libya. Both are wanted by the ICC for crimes against humanity of murder and persecution. There is concern over whether Libyan courts will conduct a fair trial. As this situation has been referred to the ICC by the UN Security Council, the UN will be closely following the situation and hopefully will ensure that the suspects are brought before the ICC. Yesterday, the US encouraged "the Government of Libya to maintain its cooperation with the International Criminal Court in accordance with Security Council Resolution 1970" and called on Libya, if it decides to conduct domestic trials, to "try [ICC suspect Abdullah Al-Senussi] fairly in full compliance with their international obligations."

The OTP will also make progress in its preliminary investigations and other potential cases that have been brought to its attention. Particularly regarding alleged crimes in Mali that were referred to the ICC on July 18, the OTP will likely announce whether it will open a formal investigation. A referral does not require the OTP to take the case, and the OTP will soon determine whether the situation is under the ICC’s jurisdiction and if it will act.

The ICC in International Politics

The ICC continues to establish itself as an international organization and to build political support for cooperation and arrests. The Court also enjoys a close relationship with the United Nations. Recently, however, the Court has been facing serious budget constraints imposed by its members. This situation is very grave because it reduces the Court’s resources just as its natural growth is speeding up. This will limit the functionality and effectiveness of trials, proceedings, and investigations at the ICC.

ICC President Song will report to the UN General Assembly at the UN Headquarters in New York in late October. Since 2005, the President of the Court has reported annually to the UN on ICC’s activities and progress in its cases, pursuant to the Negotiated Relationship Agreement between the ICC and the UN concluded on October 4, 2004. This is the formal basis of the mutual beneficial cooperation between the ICC and the UN. The President will likely address the progress of judicial proceedings and investigations and discuss further international cooperation with the UN and ICC States Parties.

In November and December, Prosecutor Bensouda will present biannual reports on the situations in Darfur and Libya to the UN Security Council at the UN Headquarters, New York. The situations in Darfur and Libya were referred to the ICC by the UN Security Council on March 31, 2005 and February 26, 2011, respectively. This is the first time that Mrs. Bensouda will address the UN Security Council as the new prosecutor. She will likely focus on the enforcement of ICC warrants and potential actions the UN Security Council could take to support the Court.

From November 14-22, the Assembly of States Parties (ASP) will hold its eleventh session in The Hague. This follows the 19th Session of the Committee on Budget and Finance on September-October 2012, which will address budget reductions. At the 10th ASP session last year, State Parties were primarily focused on budget issues and could not address other matters fully. Thus, much of the budget discussions will likely take place in the Committee on Budget and Finance and the subsequent Hague Working Group this year so the ASP will have more time and flexibility to discuss other issues important to the Court. AMICC is closely following the budget constraints at the ICC because this affects the ICC’s ability to be an effective, fully functioning court and this provides material for ICC critics in the US.

Also, it is expected that a Deputy Prosecutor for the ICC will be elected in November. The Prosecutor nominates three candidates for the position, and the Deputy Prosecutor is elected by a secret ballot by members of the ASP.

The ICC in the US

The ICC continues to be in focus in the US, particularly through the activities of civil society. Upcoming events demonstrate support for the ICC and commemorate its 10th anniversary:

On September 10, the Philadelphia Global Initiative will hold a conference on The Rule of Law: Celebrate-Reflect-Promote in Philadelphia. This conference is a response to the ABA’s call for education about the ICC. This conference will celebrate the 10th anniversary of the ICC in conjunction with the 225th anniversary of the signing of the US Constitution in Philadelphia. Speakers include US Ambassador for Global Criminal Justice Stephen J. Rapp and AMICC Convener John Washburn.

AMICC Convener John Washburn will speak at Through the lens of Nuremburg: The International Criminal Court at its tenth anniversary on October 4-5 in Nuremburg, Germany. This conference will mark the 10th anniversary of the entry into force of the Rome Statute and focus on the role of Nuremburg principles in the development of international criminal law and the ICC.

The Whitney R. Harris World Law Institute will host an international conference in St. Louis, Missouri on November 11-12, the International Criminal Court at 10. This conference will commemorate the ICC’s tenth anniversary and will focus on the Court’s progress, future, and US relationship with the Court. This event will take place right after the elections, which AMICC is closely following because of its implications on future US-ICC relations. Speakers will include ICC Judge Hans-Peter Kaul, ICC Judge Joyce Aluoch, US Ambassador for Global Criminal Justice Stephen J. Rapp, and AMICC Convener John Washburn.

On December 7, the Program on Human Rights’ Sanela Diana Jenkins International Human Rights Series will present One Decade of the International Criminal Court: Challenges and Possibilities in Stanford, California. This event will address current challenges and possibilities for the ICC, such as reparation, US-ICC Relations, and the crime of aggression.

Find more information on AMICC's Event Calendar.

Our thanks to Audrey Kim for researching and drafting this message.

Major Party Political Platforms and the ICC

The two major US political parties have recently completed their national party platforms which either mention the ICC or its cases. Both of the platform documents, adopted by the national conventions in Tampa and Charlotte, reflect the official positions of the national political committees on major issues. They will not necessarily dictate the positions of the respective candidates. AMICC has analyzed and compared the Democratic and Republican platforms from 2008 and 2012 on the issues of the ICC and international justice.

As in the 2008 platform, the Democratic platform does not explicitly mention the ICC. It does, however, repeat the commitment expressed in 2008 about bringing to justice those who commit genocide and war crimes. In a subsection on Africa, in the section titled "Strengthening Alliances, Expanding Partnerships, and Reinvigorating International Institutions," the platform even mentions an ICC case by referring to bringing "to justice those who commit mass atrocities, like Joseph Kony." The decision to refer to the Kony case in particular, which both the administration and members of Congress believe should be tried before the ICC, is likely a result of the public outcry over his alleged crimes. The decision not to include the ICC by name reflects the cautious, case-by-case approach of the Obama administration which would likely prefer not to debate the issue of the ICC with the most vocal elements of the Republican party which negotiated the Republican platform and remain hostile to the Court.

The Republican platform repeats the party's hostility to the ICC by rejecting its jurisdiction. However, there are some noticeable differences. First, in the section on "Sovereign American Leadership in International Organizations," there is no longer a specific reference to the American Servicemembers' Protection Act (ASPA); it has been replaced with the phrase "statutory protection for U.S. personnel and officials." This may signal a willingness to make changes to anti-ICC legislation, as argued by former Bush official and current Romney adviser John B. Bellinger III, in ways that better promote US national security interests. The second major difference is that the platform refers to the party's opposition to the Court in another section, on "American Sovereignty in U.S. Courts." The text of this section seems to conflate US participation in the ICC with the use of the law of other nations, or perhaps international law, in domestic proceedings. It appears to overlook several relevant circumstances. After all, the ICC is intended to encourage the investigation and trial of individuals in domestic court systems using national laws. In fact, Congress has passed bipartisan legislation to ensure that serious atrocity crimes do not go unpunished. In addition, the platform seems to be at odds with the views of Republican members of Congress, several of whom have recently introduced or co-sponsored resolutions or bills recognizing the jurisdiction of the ICC and urging that specific persons suspected of atrocity crimes be tried by it.

The two party platforms do not necessarily reflect the views of the presidential candidates or predict how they will act if elected. President Obama, if reelected, would likely continue his administration's cautious but open and thoughtful approach of "principled engagement" with the Court. This involves case-by-case interaction with and support to the the ICC and vigorous participation as an observer in the Court's Assembly of States Parties. President Romney would likely recognize the value of the ICC, its permanence and its potential for bringing to justice those who commit atrocity crimes, while also acknowledging the concerns raised by his party's platform. A Romney administration would have a lower-profile relationship with the Court, but would not regress to hostility. It would more quietly work with the Court on issues it considered in the US national interest and/or had been identified by Congress or public opinion. The ICC as such is unlikely to be a campaign issue, but specific country situations involving the Court may be.

Trust Fund for Victims, After Lubanga Conviction, To Implement ICC's First-Ever Reparations

By Stephanie Kammer



Yesterday the ICC issued, in the case of Thomas Lubanga Dyilo, its first-ever decision on reparations to victims under Article 75 of the Rome Statute. The Chamber's Decision establishing the principles and procedures to be applied to reparations is "deliberately comprehensive," a style which has become a kind of signature for many of the Lubanga Trial Chamber's decisions, including the verdict in the case.

The Trial Chamber emphasized the importance and uniqueness of reparations as a feature of the ICC. The reparations process focuses on considerations beyond the punishment of a crimes, such as rehabilitation and redress for victims. The Chamber explained that "the Court is mainly concerned at this juncture with the victims, even though the prosecution and the defence are also parties to the reparations proceedings."

Victims advocates wanted crimes of sexual violence considered during the reparations portion of the trial, even though crimes of sexual violence were not included in the charges brought against Lubanga. The Trial Chamber addressed this concern by treating reparations "in a broad and flexible manner, allowing ... the widest possible remedies for the violations of rights of the victims and the means of the implementation."

Among the Principles set out by the Chamber to guide the reparations process were:

- That reparations should be non-discriminatory and gender-inclusive.
- That reparations take into account the needs of all the victims, particularly children and victims of sexual or gender crimes.
- That reparations be sensitive to cultural variations and contexts.
- That priority be given to especially vulnerable victims.

The Chamber delegated most of the implementation of reparations to the Trust Fund for Victims (TFV). It determined that a new Trial Chamber should be constituted to monitor and oversee the work of the TFV. The Chamber endorsed a five-step plan put forth by the Trust Fund for implementation, which focused on outreach and involving victims at the local level:

(1) The TFV, the Registry, the OPCV, and the experts, should establish which localities ought to be involved in the reparations process.
(2) There should be a process of consultation in the localities that are identified.
(3) An assessment of harm should be carried out during this consultation phase by the team of experts.
(4) Public debates should be held in each locality in order to explain the reparations principles and procedures, and to address the victims' expectations.
(5) The collection of proposals for collective reparations that are to be developed in each locality, which are then to be presented to the Chamber for its approval.

One of the main practical questions facing the Trial Chamber was whether reparations should be collective or individual or some combination thereof. The decision opened with a discussion of the concerns expressed by non-governmental organizations, the legal representatives of the victims, the Registry, and the parties about the pros and cons of collective versus individual reparations.

The legal representatives for a group of victims submitted that the victims they represented did not have homogenous views on what constituted appropriate reparations and that "they should not be treated as a single group and instead they should be treated as individuals." The Chamber noted that this group was composed mostly of males. The NGO Women's Initiatives for Gender Justice, argued that individual reparations favored victims participating in the reparations process (the Chamber received eighty-five applications for reparations) over the large number of victims who did not participate in the proceedings. Women's Initiatives argued that reparations should reach unidentified victims, particularly women and girls. It could be gleaned from the decision that generally, collective reparations were favored by groups representing female victims but in certain cases female victims could also benefit from individual reparations, such as treatment for sexually transmitted disease. The Chamber noted that since Thomas Lubanga was found to be indigent, reparations will be financed by the Trust Fund for Victims, which tends towards collective reparations.

Suggestions by victims and victims groups about the form reparations should take seemed to fall into three categories: reparations to empower victims economically and to stimulate local economic development, reparations to help heal the physical and mental health of victims, and symbolically reparations like a memorial.

The Trust Fund for Victims welcomed its substantial role in the reparations process and hailed the decision as "a historic milestone for victims of international crimes." The Fund was set up by the ICC’s governing body, the Assembly of State’s Parties (ASP) in 2002 and currently has a total income of $5.5 million. $2.7 million has been set aside for grants in the DRC and Uganda.

Although the Chamber's decision is not binding on future cases, the principles and procedures set out may be used by future Trial Chambers where they are practicable. It is possible that in a future case, where a defendant has means, a Trial Chamber may order individual reparations, or a combination of individual and collective reparations.

AMICC Relaunches its Website, www.amicc.org

We are pleased to announce the launch of AMICC's new website, the latest improvement of many to our work since becoming a program of the Columbia University Institute for the Study of Human Rights (ISHR) late last year. The new site, still at www.amicc.org, is designed to better serve AMICC's constituents, as well as practitioners, academics and the general public, by providing more current information on the work of the ICC and through better organization. It remains a repository of information on the US relationship with the ICC and we hope it will continue to be a leading resource on this topic. It is the only site we know of dedicated solely to that relationship.

The new website would not have been possible without the valuable time and technical assistance of ISHR staff member Joe Kirchhof who completely designed and coded it from scratch. It is in HTML5, the latest version of this programming language, and based on a lightweight, custom PHP framework. Unlike the previous AMICC website, which was launched in 2002, the new one is better equipped to incorporate multimedia and social media. The design remains simple, and we have been sure to include all of the information that was on the old site. Some of it has been condensed.

An early sketch of the new website.

We have also taken the time to ensure that none of the old links have been "broken." For example, if you go to a bookmark of one of the old pages, it will take you to the corresponding new page; thus if you go to http://www.amicc.org/calendar (from the old site), that will automatically lead to http://www.amicc.org/about/calendar. If you have trouble finding what you are looking for, we hope that the enhanced top and side menus and search box will be of help.

The new site is also much easier for us to update and change in response to new developments. We consider it to be an ongoing work in progress that will benefit from the input of our partners. We encourage you to take a look at the new site and let us know what you think.