Lubanga Final Conviction Prompts Praise and Criticism for First ICC Cases: Responses for U.S. Advocacy

Debate over the Court’s performance in its first generation of cases has mounted again after the end of the first case by the final conviction of Congolese warlord Thomas Lubanga on June 24. With more convictions imminent, praise and criticism of that performance are likely to continue and become more pointed in the United States as well as elsewhere. Here are background and suggestions American ICC supporters may find useful in dealing with these as they come up in our advocacy.

The most important problems about the Court shown by these early cases have to do with enforcement of the Court’s warrants and orders, evenhandedness in investigating alleged atrocities by all sides in a conflict, slowness in conducting trials, the handling of evidence, and the complete absence of any cases from outside Africa. The ability of the ICC to deal with these questions varies with their origin: some come from the design of the Court in its Rome Statute, some from procedures and processes that the ICC created and can fix, and others are created by relations between the Court and nations which are either or both member states or the scene of crimes. Also, we need to keep in mind that this was the beginning - the Court encountered these issues for the first time. What you do for the first time, you often have trouble doing right.

 

Enforcement is a difficulty built into the nature of the Court. Like most international organizations, it has no police or paramilitary to make others act on its orders. It must depend on the cooperation of nations, especially member states with Rome Statute obligations. This period saw plenty of failures and several actions, by members and non-members alike, to honor ICC arrest warrants. The most evident and disheartening example of failure was the international ignoring of the warrant to arrest Sudanese president Omar al-Bashir on charges of committing atrocities in Darfur. By contrast, Belgium promptly arrested Jean-Pierre Bemba, wanted by the ICC for crimes by his militia in the Central African Republic.

Iran and the International Criminal Court

The question of Iran’s interest in joining the International Criminal Court (ICC) is being presented again by its new policy of greater openness to the rest of the world and its current dealings with the west. AMICC constituents may as a result encounter this development in their advocacy. Iran has publically voiced its support for the Court numerous times and could benefit from ratifying the Rome Statute. Iran vigorously participated in the negotiations of the Rome Statute and is a signatory. In the 2010 ICC Review Conference in Kampala, Iran sent a delegation to participate and once again expressed its support for the Court.

For the first time in decades, political channels between Iran and the United States are open. While the two countries work towards finding a solution to Iran’s nuclear program, the international community now watches to see if the unlikely duo will cooperate to combat the Islamic militant group in Iraq.  Despite its faults, Iran is a relatively stable country in a region marked by chaos.  In recent history, Iran fell victim to war crimes committed by Saddam Hussein, it has long felt that he was not held accountable for his crimes. Today, Iran faces another threat by an extremist Sunni militant group.  Ratifying the Rome Statute would aid in preventing impunity for crimes that this group is committing.

Participation in the Court would also serve another new Iranian goal: acceptance internationally as a responsible country. If Iran truly desires to productively participate in international relations, it must demonstrate to the world that it is trustworthy. Mohammad Javad Zarif, Iran’s Minister of Foreign Affairs, described President Rouhani’s policy as one that “values accountability, transparency, and honesty in dealing with the populace and implies a willingness to reform and improve existing policies.” Becoming a member of the Court would aid in accomplishing such a goal by making its peaceful intentions clear. However, if Iran were to join the Court, the country would thereby accept the Court’s jurisdiction which would hold it accountable for the crimes it commits. 

In 2017, the Court is likely to acquire jurisdiction over the crime of aggression. Iran has repeatedly voiced its support for the inclusion of the crime of aggression in the Court’s Rome Statute. Officials from both the Ministry of Foreign Affairs and the Judicial Power have described crimes of aggression as “the most important international crimes.” During the Iran-Iraq war, which Iran considered a war of aggression, Iraqi forces killed at least 300,000 Iranians and injured more than 500,000. Despite multiple pleas to the United Nations Security Council (UNSC) by the Iranians, the UNSC never found that Iraq had started a war of aggression. Iran’s support for the ICC’s jurisdiction over the crime of aggression is the result of its resentment of Saddam Hussein’s impunity. Had such a court been available to Iran, it would not have had to rely on the UNSC for justice.

Global Summit to End Sexual Violence in Conflict

AMICC participated in the Global Summit "End Sexual Violence in Conflict" in London, June 10-13. The Summit buzzed with writing and speaking about the International Criminal Court (ICC), including events featuring Court officials such as prosecutor Bensouda.
 

We attended because the strong emotional and moral response from the political left and right alike to sexual violence as a tactic in war is very valuable to our advocacy. We can use this emotional response to draw the indifferent and the doubtful to the Court. Sexual violence in conflict is a signature crime in the ICC’s jurisprudence which has new and advanced standards and definitions for it. For example, and as frequently mentioned at the Summit, the Court’s Rome Statute, in a breakthrough for international law, specifically recognizes rape as a separate crime, rather than as part of some other general crime (e.g., assault)  - the traditional definition.

The British government organized the Summit through its Foreign Secretary William Hague who co-hosted with Angelina Jolie. Its purpose was to attract government ministers and other high-ranking officials and to get their commitment to act on sexual violence in conflict. It aimed to produce, from governmental and NGO meetings (AMICC was in several of these), numerous practical recommendations for actions.  It succeeded on all counts. At least for now, the world is paying more attention to the crime. Many countries have committed in the Summit’s closing documents to acting against sexual violence. But conference commitments tend to fade away unless there is persistent and effective follow-up. The Summit organizers seemed to hope that NGOs would take up this task.

The US had a substantial presence at the Summit. Secretary of State John Kerry delivered the closing keynote speech with fervor suggesting a strong personal commitment against the crime. Led by Ambassador for Global Criminal Justice Stephen Rapp, the American official group had representatives from USAID and several bureaus in the State Department. Six American academics spoke at various panels and working sessions. This presence and Kerry’s speech made clear a US government open intention to join ICC action against the crime. This intention can give us further access to the government for discussion and collaboration about the ICC.

 

Written by John Washburn, AMICC Convener

Politics in the Security Council: About Syria, Not the International Criminal Court

The New York Times has it close, but not quite right, about the US and the International Criminal Court in its June 3 piece, “Politics Seen Undercutting Credibility of a Court” (read here).  This was prompted, like a lot of similar comments, by the failure in the UN Security Council of a resolution to refer atrocities in Syria to the Court.  

Despite the impression given by the article, France, not the United States, led this effort. All Council members knew well that China and Russia would veto. Most joined France in wanting to use the resolution to isolate and condemn them for their position on Syrian atrocities. With patience, adroit drafting, adept diplomacy and support from fellow Council permanent members the USA and Britain, France won votes for its resolution from 13 members of the total Security Council members. Supporting speeches, including the American one, condemned China and Russia harshly and directly. No one hearing these remarkably emotional and hard-hitting statements could possibly have agreed with the Times that they politicized the notion of international criminal justice or undermined its credibility. The speeches marked the success of a collective attack on Syria’s supporters, not a single-handed United States effort “to skewer its foes.”

In its relations with the ICC, the United States is shackled by legislation. These laws ban the country from giving money either directly or through the United Nations to the Court, allow US support to it only in cases that are “in the American national interest” and block the Court’s jurisdiction over US service members. However, the United States has never declared an ICC case to be not in the national interest. 

Nonetheless, the United States did give a political coloration to the draft resolution on Syria by insisting on language about the American national interest, denying UN funds to the Court and keeping the Golan Heights out of the ICC’s jurisdiction. Argentina and Chad rightly called out the US on these restrictions. If the United States continues to do this, some ICC supporters believe that, rather than compromise its efficiency and independence, the Court should refuse to accept Security Council referrals that contain these limitations.

The United States is one among many members and friendly nations that fail to enforce ICC arrest warrants and other orders. This is a general problem for the Court with which a caucus in the Court’s governing body is grappling now. The United States should join in carrying out any sensible solution the caucus achieves.

The infamous bilateral immunity agreements strong-armed by the Bush administration indeed remain technically in effect, but are feared by other countries no longer, now that Congress has removed the threat of stopping military aid to them. However, the agreements should go for good, lest some future administration try to restore the threat. Abandoning them might start if countries offended by the agreements began to withdraw from them.

As the Times explains, the US has a good and ever-growing relationship in support of the ICC. This now needs a firm foundation of policy, consistently applied, to support this good practice.

Written by John Washburn, AMICC Convener

Russia and China block UN Security Council referral of Syria to the ICC

On Thursday 22 May, the UN Security Council voted on a resolution to refer the situation in Syria to the International Criminal Court for possible prosecution of war crimes and crimes against humanity committed during the conflict. Vetoes by China and Russia prevented the UN Security Council from adopting the resolution. All the other 13 members of the Council, including the United States, voted in favor.

France drafted the resolution and managed to generate the wide support of nearly 60 states through its skillful diplomacy. Its introduction of the resolution to the Council was powerful and directly addressed China and Russia and their refusal to act on the situation of Syria. France emphasized that the severity of Syria’s situation calls for a unified international response, where Russia and China are the only ones obstructing any such action. The statements by the other Council members confronted at length and in detail the horrors of the atrocities and suffering in Syria, all pointing to the shamefulness of the vetoes in this context. France hereby successfully achieved its objective to isolate and condemn Russia and China for their failure to act.

Both Chad and Argentina who supported the resolution, also criticized the resolution in their statements. They pointed out that the resolution allowed nationals of other non-member states, such as the U.S., to stay immune from ICC jurisdiction over crimes committed on Syrian territory. Moreover, they highlighted that the resolution banned any UN funding of the costs for the Court from the referral. Had the referral been adopted, the Court might not have been able to afford the money to pursue the cases.

Samantha Power, United States Ambassador to the UN, delivered a particularly strong and emotional statement. It included the story of one victim’s suffering, who was present during the meeting himself.  According to Russia and China, the statement by the U.S. was hypocritical because the U.S. had so far not continued to pursue a political solution to Syria’s situation. However, the other Council members mostly agreed that the effort for a political solution in meetings in Geneva had failed, and several cited the resignation statement of the UN Special Envoy for Syria. The emotional power of the Syrian situation evoked by Ambassador Power and most other Council members only enhanced the isolation of Russia and China and kept the debate almost entirely clear of any other political concerns. This was France’s main objective and its success was clear in the petulant tone of the closing statements by China and Russia.

The full transcript of the UN Security Council meeting can be found here.

  Written by Laura van Esterik

Chain email calling for opposition against cooperation between the US and the ICC

A chain email in April called for opposition against President Barack Obama and against cooperation between the US and the International Criminal Court. This response corrects the general misperceptions of the Court among the American public that are reflected in this chain email and are so often encountered in our advocacy. 

The email continuously refers to the “United Nation’s ICC” implying that the International Criminal Court is part of the United Nations and is subject to UN policies and decisions. However, the Court is independent, including independence from the United Nations and its politics. Instead, the Court answers to its constituting member States (State Parties), who have subjected themselves to the Court’s jurisdiction. The only way in which the UN Security Council exercises influence over the Court is through the Rome Statute’s instruction to the Court’s judges to accept Security Council requests to defer cases it believes to threaten international peace and security. Moreover, the Statute permits the Court to consider accepting cases the UNSC refers to the ICC concerning non-member States that it considers to be of sufficient importance and gravity to be subjected to ICC jurisdiction. It still remains the decision of the ICC Prosecutor whether to initiate criminal prosecution. 

The email also suggests that the Court is able to arrest US troops independently. However, the ICC does not possess a police force to practically implement its decisions. Therefore, the Court relies on the cooperation of its member States in carrying out its arrest warrants. In calling on cooperation from States to do so, the Statute recognizes the importance of consular and diplomatic relations and of bilateral agreements between countries governing the treatment of foreign personnel present in a host country (so-called Status of Forces Agreements). Therefore, Article 98 of the Statute allows a member State to prefer these agreements over its obligations to cooperate with the ICC. 

More important, the Court may only issue arrest warrants and prosecute when a member State claiming jurisdiction is in fact unwilling or unable to do so effectively itself. This is based on the complementarity principle in Article 17 of the Rome Statute. Consequently, if the US subjected itself to the jurisdiction of the Court, the US judicial system would always maintain primacy over the jurisdiction of the ICC in prosecuting international crimes. As long as the US appropriately accounts for the crimes committed by its personnel, the Court will not interfere with the judicial proceedings of the US. It has been proven that US law is apt to adequately prosecute the crimes under the Rome Statute. Therefore, there is in theory no reason for the Court to interfere with the US’ judicial system as long as it is willing and able genuinely to carry out the investigation or prosecution itself. The statement in the email that there will be no legal protections guaranteed under US law after becoming a member State is therefore invalid. 

Even if a US citizen were to be the subject of criminal prosecution by the ICC because the US had failed to prosecute, the Rome Statute provides legal protections similar to US law with only minor differences in rules of evidence and trial by judges rather than jury. Thus, the statement in the email that there is no appeal from criminal indictments is also untrue, as the ICC allows for objections to charges and appeals to convictions in the different stages of the criminal process. 

Finally, it should be noted that the Court applies a ‘gravity threshold’ in assessing whether to prosecute or not. Consequently, the Court will only pursue cases of which it believes to be of such gravity that they ‘deeply shock the conscience of humanity’ and ‘threaten the peace, security and well-being of the world’. This means that only those cases of severe gravity will be considered by the Court and individuals will not be subjected to the Court’s jurisdiction arbitrarily. 

Read the analysis by Politifact of the chain email here.

Written by Laura van Esterik 

ICC summons eight uncooperative witnesses to appear before Court in Ruto and Sang case

On April 17, 2014, Trial Chamber V(A) approved the request of the Prosecutor in the Ruto and Sang case to subpoena all eight witnesses who recently withdrew from cooperation with the Court. The Chamber decided to allow the request by the Prosecutor, by compelling the attendance of these witnesses. With this decision the Court exercises its functions and fulfills its mandate effectively, which includes the power to subpoena witnesses. The Chamber concluded that the Government of Kenya must cooperate fully by serving the subpoenas to the witnesses, facilitating their compelled attendance at the trial, and ensuring their security until then.

This is the first decision by the Court to consider and allow subpoenas against uncooperative witnesses. By compelling these reluctant witnesses to appear before the Court, the Chamber heeded the initial objective of the Rome Statute State Parties “not to create an ICC that is in terms a substance, in truth a phantom” (ICC Press Release 4/17/14). Rather, the decision supports the aim of the State Parties to “create a court with every necessary competence, power, ability and capability”.

Moreover, some of these witnesses will potentially provide testimonies against Deputy President Ruto and in the trial against President Kenyatta. Therefore, the request for the subpoenas by the Prosecutor shows her determination to push firmly ahead with the Kenya cases despite any skepticism about the Court’s ability to try sitting heads of States. It also demonstrates the clear and unified strategy and tactics employed by the Court in carrying out its central purpose of trying high-ranked state officials.

The subpoenas constitute a strong message that the Court is determined and competent to pursue the prosecution of sitting heads of States, without conceding to their power to intimidate witnesses.  In this decision, the Court has established an important precedent in its determination to end the impunity of individuals involved in the commission of atrocities, regardless of their official status.  

Written by Laura van Esterik

Remembering the Armenian Genocide

On this day in 1915, the government of the Ottoman Empire began a systematized policy of genocide. On that April morning, 300 Armenian leaders and intellectuals were rounded up for deportation and execution, while 5,000 of Istanbul’s poorer Armenians were simply butchered in the streets. By the end of the conflict, 1.5 million Armenians would be killed, through policies of forced marches, executions, and the brutal conditions in concentration camps. Through government-sanctioned brutality and mass murder, 60% of the total Armenian population in Turkey was wiped out in the space of two years. Though the international community knew about the atrocities being committed, in the midst of World War I no aid came to the innocent. With the ending of the war, international trials were attempted—the Britain-led Malta Trials—but never concluded. Turkish courts martial led to the sentencing and execution of a handful of the leaders of the genocide, but these proceedings were swift, without due process, and ultimately let many offenders walk free. 

We remember the Armenian genocide not only as an unimaginable singular tragedy, but as an act of unchecked violence which would lead to still greater loss of human life. On August 22^nd, 1939, just prior to the invasion of Poland, Adolf Hitler advised the officers of the German armed forces to brutalize Eastern Europeans without fear of retribution. As he argued, “Wer redet heute noch von der Vernichtung der Armenier?” “Who still speaks today of the annihilation of the Armenians?” Hitler was wrong in this assumption; the members of the international community may not have spoken up against the atrocities committed in 1915, but they did not forget. When World War II came to an end, the Nuremberg Trials brought the weight of international justice down on the German perpetrators of the Holocaust, however imperfectly. 

This April, we also remember the 20^th anniversary of the Rwandan Genocide, a reminder of the failures of the international community to protect the innocents of the world from their own governments. Though “never again” was the message behind the Nuremberg and Tokyo tribunals, and despite the best efforts of the United States, survivors of the Holocaust, and the UN General Assembly, Cold War hostilities made the possibility of setting up a permanent court impossible. The need for such a court became strikingly apparent as the century progressed, with further atrocities committed in Cambodia, Bosnia, Sierra Leone, East Timor, and the former Yugoslavia. The ad hoc tribunals established by the UN to try war criminals in Rwanda and Yugoslavia were effective at bringing criminals to justice; but as temporary courts, they were limited in scope, and did little to deter future crimes. 

The ad hoc tribunals led to the creation of the International Criminal Court, the first permanent international court capable of trying individuals for war crimes, crimes against humanity, and genocide. Unlike its predecessors, the ICC can try heads of state for ordering atrocities, thus removing the assurance of impunity that the Hitlers and Pol Pots of the world had long hid behind. In ending impunity, the ICC seeks to bring justice to its victims and deter future horrors. Many Armenians, themselves survivors or descendants of survivors, have ignored the ICC and its history. Under the Rome Statute, the Court cannot try crimes which took place before its inception in 2001—and thus, some Armenians say, it is of no relevance to them. It cannot bring the comfort of justice to the families of those who lost loved ones ninety-nine years ago. As today’s admission by the Turkish government of inhumane actions committed during WWI has shown, determining guilt is an important part of the healing process. Though an important first step, it further reminds us of the emotional importance of giving a crime its proper name.