East Bay (Calif.) Dinner Forum: The International Criminal Court and New Moves by the Obama Administration

The status of the International Criminal Court was laid out for the members of the United Nations Association-USA East Bay Chapter at a dinner-forum in observance of Human Rights Day, 10 December. The speaker, Dr. Rita Maran, began by countering the popular understanding that the ICC is a UN-based court. Dr. Maran offered chapter and verse on the Court’s separate status from the UN, with nevertheless a relatively lengthy history as a project of the UN General Assembly Third Committee over several decades. US legal scholars, including several from the Bay area Schools of Law, were positive participants throughout those years. The Rome Statute of the International Criminal Court entered into force in July 2002, and well over 100 states party have ratified it.

President Bill Clinton signed the Rome Statute of the ICC before leaving office. However, the second Bush administration took the unusual step of withdrawing President Clinton’s signature from the treaty, thereby leaving the US without any connection to the Court and the ICC's jurisdiction over three crimes: genocide, crimes against humanity, and war crimes.

The Court has earned the respect of the international legal community by, if anything, leaning over backward to ensure even-handed justice to all participants in its trials. For example, in October 2010, the first regional diplomatic conference on the ICC in and for the Middle East was held in Doha, State of Qatar. This regional event, sponsored by the State of Qatar was undertaken together with the League of Arab States in co-operation with the ICC. In expressing her deep admiration and respect for Middle Eastern cultures and civilizations, Ms Arbia, Registrar of the International Criminal Court, stated that “there is, in the region, misinformation about the mandate and functioning of the ICC. The ICC is an independent multi-organ international judicial institution, with a whole host of checks and balances in place that exists to apply the law, guarantee fair trials, and ensure that justice is applied equally across the board” She stressed the importance of the rights of victims in proceedings before the Court - a novelty in international criminal law - and stated that “at the International Criminal Court, victims can, for the first time in the history of the discipline, participate actively in the proceedings, have their voices heard, and request reparations in case of convictions.” The Court is broadening and refining its treatment of victims and survivors with a particular focus on crimes against women and children. A number of appeals have begun to clarify the details of how the Court should handle victims and survivors.

In the first week of the ICC Review Conference in Kampala, Uganda, “stocktaking” was stressed; that is, 1) the Court was examined in terms of doing its job correctly within the international justice system; 2) the use and efficacy of various means of cooperation such as arrest warrants; 3) the challenge in terms of cooperation with non-party states. “Complementarity” was another issue focused on during the Review Conference. In rough terms, complementarity indicates that in national justice systems, national courts continue to occupy the primary position. The ICC is not a court of primary jurisdiction, but is secondary, and may be called into operation when the appropriate national court cannot or will not undertake the case.

With respect to the changes in policy evidenced by the Obama administration, the State Department sent an observer delegation to the Kampala Review Conference of the ICC earlier in 2010. The delegation was headed by Harold Koh, Legal Adviser to the State Department and former Dean of Yale Law School, and Stephen Rapp, newly-appointed Ambassador-at-Large for War Crimes Issues. Both US officials actively participated in all parts of the Review Conference, and are reported to have returned from it well-satisfied with the outcome. It appears to betoken a growing relationship of support and assistance to the ICC Prosecutor and his office, and gives rise to the hope that the US will continue to attend and participate actively. These actions would complement the Obama foreign policy, especially its elements of collective intergovernmental action in support of accountability and rule of law.

ICC in the Media, Update #17

As we reported earlier, this week ICC Prosecutor released his list of five Kenyans he believes to be most responsible for the 2008 post-election violence. Most notably, the list included Uhuru Kenyatta, the son of Kenya's first President and current Minister of Finance, and opposition party William Ruto, a prominent politician and, until recently, Minister of Higher Education. Already those accused have stepped out insisting their innocence. Uhuru has said that his only crime was trying to assist people, but has stated that he will cooperate with the ICC if his case should go forward. Joshua Sang, a journalist named by Ocampo, has expressed his shock at being included, since he is the only suspect that is not a prominent businessman or politician. However, all parties face serious charges of crimes against humanity for causing the murder, torture and rape of innocent victims. During the next several months the ICC judges will decide whether to pursue any or all of these claims; it is expected that they will reach a decision early next year. In other news, Omar al-Bashir, President of Sudan, cancelled his trip to Zambia on Wednesday, presumably out of fear of being apprehended on ICC charges of crimes against humanity, war crimes and genocide. Zambia is a member state of the ICC and was legally bound to arrest him had he attended, although a government spokesperson said that they would not have honored their obligation to do so. Photo credit: Daily Nation.

AMICC's Report on the Ninth Session of the Assembly of States Parties

The AMICC secretariat participated in the ninth session of the Assembly of States Parties (ASP) at the United Nations in New York, December 6-10, 2010. AMICC’s report is now available on our website. You can also watch John Washburn’s video interview with US Ambassador-at-Large for War Crimes Issues Stephen Rapp released on AMICC’s blog and YouTube channel to coincide with Human Rights Day on December 10.

President Obama Issues Statement in Support of ICC's Kenya Announcement

In response to the ICC Prosecutor's announcement on December 15 seeking summonses to appear for six individuals alleged to have committed crime against humanity as part of post-election violence in 2007, President Obama issued a statement endorsing the ICC's action and urged "all of Kenya’s leaders, and the people whom they serve, to cooperate fully with the ICC investigation." It follows the pattern in Washington of mentioning the ICC favorably in connection with specific situations and cases, but not in general.

Breaking News: ICC Prosecutor Announces Summons for the Situation in Kenya

Today ICC Prosecutor, Luis Mereno-Ocampo, announced summons for six individuals that his office believes are responsible for the 2007-2008 post-election violence in Kenya. This violence left over 1,100 people dead, 3,500 injured and nearly 600,000 displaced. In addition, there were hundreds of reported rapes and over 100,000 properties were destroyed.

The Prosecutor believes he has found reasonable grounds to prove that the following six individuals committed crimes against humanity during the violence in Kenya.

1. William Samoei Ruto is the current Minister of Higher Education, Science and Technology. However, is also currently suspended from the position. The Prosecution believes that he was one of the principal planners and organizers of the violence.

2. Henry Kiprono Kosgey is the current Minister of Industrialization. The Prosecution suspects him of being another one of the principal organizers.

3. Joshua Arap Sang - currently Head of Operations, KASS FM and during the PEV: Radio broadcaster. The Prosecution considers that he was one of the principal planners and organizers of crimes against PNU supporters.

4. Francis Kirimi Muthaura is the Head of the Public Service and Secretary to the Cabinet and Chairman of the National Security Advisory Committee. The Prosecution believes that he mobilized the Police and allowed them to use excessive force.

5. Uhuru Muigai Kenyatta is the current Deputy Prime Minister and Minister of Finance. The Prosecution believes he helped to mobilize criminal organizations to perpetrate violence.

6. Mohamed Hussein Ali is the current Chief Executive of the Postal Corporation of Kenya and during the violence he was Kenyan Police Commissioner. The Prosecution believes that during the violence he authorized the use of excessive force and mobilized police.

These summonses constitute two separate cases. The first includes the first three suspects and the second, the last three.

The Prosecutor ended his announcement by noting that “these were not just crimes against innocent Kenyans. They were crimes against humanity as a whole. By breaking the cycle of impunity for massive crimes, victims and their families can have justice. And Kenyans can pave the way to peaceful elections in 2012.”

Banda and Jerbo case: Confirmation of Charges Hearing Video Summary

Check out this video released last week of the December 8 confirmation of charges hearing in the case of The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus. They are suspected of three counts of war crimes allegedly committed during a September 29, 2007 attack on AU peacekeepers in North Darfur.

ICC in the Media, Update #16

This week the International Criminal Court held its 9th Assembly of States Parties session in New York which AMICC attended and reported on. However, outside of the U.S. there have been a number of ICC related developments in the media. ICC Prosecutor told the U.N. Security Council on Thursday that the violence in Sudan continues and President Bashir has not taken action to end it. Ocampo also relayed to the Council that Sudan has not cooperated with the ICC in its attempt to ensure justice for the region. President Bashir has been invited to a summit in Zambia on Wednesday, but has yet to confirm his attendance. Zambia is a member state of the ICC, but has not commented on whether it will attempt to arrest Bashir if he visits. In other news, the ICC Prosecutor is set to name the 6 individuals most responsible for Kenya's 2008 post-election violence on December 15, 2010 when he will appear before the ICC judges. It has been reported that this event has thrown prominent members of the government into a state of panic, and revived calls for a local tribunal to be created to avoid the ICC. Photo credit: AFP.

Final Day at ASP 2010

Today at 4:30pm the 9th session of the Assembly of States Parties was officially closed. This years saw the passage of several important resolutions; namely the Independent Oversight Mechanism and approval for an increased budget. The United States delegation was engaged and pleased with the outcome of this meeting.The President of the Assembly closed the meeting by congratulating the state parties on all of their hard work of the last week and reminded them that "we are able to find consensual solutions to difficult problems if we approach them in a constructive manner."

We will provide you with a  more comprehensive summary of the entire week in our final report due out next week.