By Kristen Rau, Juris Doctor Candidate, University of Minnesota Law School; Master of Public Policy Candidate, Hubert H. Humphrey Institute of Public Affairs, University of Minnesota; and Jordan Shepherd, Juris Doctor, May 2011, University of Minnesota Law School.The
University of Minnesota Law School’s Federalist Society, Law School Democrats, and International Law Society co-hosted a panel debate on March 22, 2011, “Is the World a Better Place for Having an International Criminal Court?” Speaking in support of the International Criminal Court (ICC) was Duane Krohnke, University of Minnesota Adjunct Professor and Provisional Organizer of the Minnesota Alliance for the International Criminal Court.
David Wippman, Dean of the University of Minnesota Law School and a former director in the Office of Multilateral and Humanitarian Affairs of the National Security Council under the Clinton administration, took the neutral position. Professor
Eugene Kontorovich of Northwestern University School of Law, argued the anti-ICC position.
Professor Kontorovich questioned both the ICC’s advisability and its constitutionality, beginning with the latter to obviate the need to consider the former. Professor Kontorovich asserted that U.S. membership would be unconstitutional for two reasons. First, U.S. membership would expose U.S. citizens to trials without the structures of an Article III court. While non-Article III courts may be constitutionally permissible in limited circumstances, these do not include core issues such as criminal trials. Second, U.S. membership would deprive criminal defendants of certain procedural rights guaranteed by the Constitution, such as the right to a grand jury.
Professor Kontorovich emphasized that the ICC is not the first international court that has solicited U.S. support and been resisted, highlighting 19th century British slave-trade courts in which the U.S. declined to participate. Most treaty negotiations, and the constitutional argument that spelled the death knell of U.S. involvement, were led by John Quincy Adams. Noting that the constitutionality of U.S. membership could be saved by limiting the ICC’s jurisdiction to exclude all non-universal jurisdiction crimes, Professor Kontorovich identified the unlikelihood of such a development due to the Rome Statute’s prohibition of reservations.
Professor Kontorovich concluded with a survey of reasons for which the ICC could be considered a failure: the sluggishness of the trial process, the failure to convict any defendant, and the absence of empirical research demonstrating meaningful deterrent effects. Professor Kontorovich further suggested that the ICC could actually extend conflict by inhibiting peace deals when militants or regimes see international criminal prosecution as unavoidable in spite of ceasing or surrendering. Moreover, Professor Kontorovich referred to Kenya, where piracy trials were halted as several government officials came under ICC scrutiny for their alleged role in the 2008 election violence, for the proposition that the ICC may do more harm than good. In response to questions from the audience, Professor Kontorovich suggested that ICC supporters must revisit the fundamental approach of the Court and recognize that it, like Nuremburg, was an emphatic endorsement of victors’ justice rather than a triumph of international justice. Finally, Professor Kontorovich argued that the recent definition of the crime of aggression within the ICC’s jurisdiction could push states like the U.S. even further from ratification, since military campaigns such as the bombing of Kosovo could be categorized as “aggression.”
Professor Krohnke presented the affirmative argument that the ICC does, indeed, constitute a positive development in international justice, concluding that the U.S. should ratify the Rome Statute. This argument is based on six propositions: 1) the Court will prosecute and punish those guilty of the most serious crimes, 2) the Court provides deterrence from such crimes, 3) the Court promulgates the truth about these crimes, 4) the Court assists victims, 5) the Court is active and appears to be permanent, making U.S. involvement pragmatic, and 6) U.S. involvement and membership is proper under the Constitution. Professor Krohnke suggested that the ICC operationalizes international human rights norms stemming from the 1948 Universal Declaration of Human Rights and seeks to replace impunity with accountability. Despite its slow development and initial operationalization, he suggested, the ICC will develop into an important global institution. Citing forthcoming research by Professor Kathryn Sikkink in
The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (forthcoming in 2011 by W.W. Norton), Professor Krohnke argued that there is empirical evidence supporting the deterrent effect of international and domestic prosecutions of human rights crimes. Moreover, Professor Krohnke suggested that the ICC contributes to promulgation of the truth, supports victims’ assistance, and fosters pragmatic international relations.
Professor Krohnke addressed the U.S. constitutional criticisms of the ICC, noting that there is no evidence that its text bars U.S. involvement. He cited
Missouri v. Holland to illustrate the broad application of the treaty power in relation to the Constitution and the protective requirements of executive agreement, the advice and consent of the Senate, and a two-thirds Senate vote for ratification. Professor Krohnke concluded with several responses to Professor Kontorovich’s position. Professor Krohnke suggested that ICC critics rely too heavily on early U.S. resistance to 19th century British slave court, particularly given the possibility that U.S. resistance was due to the political influence of southern U.S. states or to an American inclination to avoid post-Revolution entanglement with Great Britain.
Dean Wippman suggested that the ICC is fundamentally “a good idea that has been badly implemented.” Failing to command the political and financial support it needs, the ICC cannot live up to the hopes of its supporters. Yet, neither can it live down to the fears of its critics because it does appear to reinforce human rights norms and contribute to stability in some post-conflict societies.
Dean Wippman identified practical constraints, including jurisdictional loopholes, investigation and enforcement limitations, and procedural hurdles, as particular problems. Moreover, Dean Wippman noted the limited evidence of deterrence or social education that ICC supporters have long claimed. For example, Dean Wippman suggested that ICC trials may demonstrate that responsibility for human rights abuses rests with individuals; alternatively, they may also confirm pre-existing social biases. Dean Wippman acknowledged, however, that the specter of the ICC may effectively marginalize nationalist politicians and may, as in Latin America, allow national governments to shift power balances in favor of peace agreements.
Dean Wippman, modestly disclaiming expertise in constitutional law, addressed the constitutional question briefly. He noted that
Professor David J. Scheffer, a major contributor to the drafting of the Rome Treaty, has argued persuasively for the ICC’s constitutionality. Further, the Clinton administration signed on to the Rome Statute with Department of Justice advice that U.S. signing and eventual ratification were permissible under the U.S. Constitution.
The debate concluded with a lively question-and-answer session, in which the participants fielded incisive questions and further developed and responded to arguments. Professor Kontorovich conceded that the ICC is not an insidious institution that is causing great harm to U.S. interests even though he disputes its effectiveness. Professor Krohnke emphasized the progressive development of this young but growing institution, especially the expected conclusion this summer of the first
trial of Thomas Lubanga of the Democratic Republic of Congo. Finally, Dean Wippman stated that the disparate impact of the ICC across states and conflicts behooves supporters and critics alike to recognize its potentially variable effects around the globe.
Mahesha Subbaraman, the President of the local student chapter of the Federalist Society, moderated the debate but did not declare a winner. Nor was there any vote taken of the more than seventy-five students and faculty in attendance to determine who "won" the debate. The debate highlighted many issues surrounding the ICC and helped to raise awareness of this developing institution.
This week the media attention shifted from Libya back to Kenya. On Sunday ICC Prosecutor Ocampo made a statement that members of Kenya's government "are misrepresenting ICC efforts to do justice for the victims as an attack against Kenyan sovereignty" as part of a political campaign. Discussions between the ICC and Kenyan government have begun over the government's apparent shift in position since the suspects were named late last year. The focus of the discussions reportedly is determining whether the government is"protecting witnesses or protecting the suspects from investigation." Kenya's Justice Minister Kilonzo dismissed the ICC's accusations as unfounded saying that Kenya continues to cooperate with the Court. Regardless, representatives of the ICC travelled to Kenya today to further discuss Kenya's committment to the ICC and issues of witness protection. 
