Diane Amann talk at GW

Earlier this week, just before President Obama addressed the nation on why the US is involved in Libya, I was privileged to hear Diane Amann give a talk at an International Law Colloquium at George Washington University Law School. Her talk, which was titled The Value of Peace and the Crime of Aggression, explores the contradictions involved in pursuing "a peace envisioned as the absence of war, yet often pursued through military intervention."
She began by pointing out that, even though President Obama had received the Nobel Prize for Peace, the US is now involved in three different conflicts, and previewed how President Obama would defend the US role in Libya. Indeed, as I listened to Obama's speech that evening, Diane's talk repeatedly echoed in my mind; she had presciently predicted his approach almost to a word!
The main part of her talk focused on the crime of aggression. She reviewed the adoption in Kampala last year of amendments to the Rome Statute that define the crime and how the ICC will exercise its jurisdiction over this crime. She described the eloquence of Ben Ferencz, the 90-plus year old former Nuremberg prosecutor, at the Kampala conference as he urged development of the crime of aggression. In addition, she discussed the US approach to securing peace around the world, and then analyzed the proposed aggression amendments in the context of this history. It was fascinating to hear her explore the paradoxes in American policy as we use force to achieve peace and as we hail mechanisms for international accountability while seeking to avoid such accountability ourselves.
The article is part of a work in progress that I very much look forward to reading!

Landmark trials museum opens

Almost 65 years to the day after an Allied effort began at Nuremberg, a permanent museum chronicling the Trial of Major War Criminals and subsequent proceedings is now open.

Inauguration of the Memorium Nürnberger Prozesse/Nuremberg Trials Memorial (above right) took place yesterday. (photo credit) Featured were comments by:

► Representatives of the 4 countries that comprised the International Military Tribunal: for Britain, Attorney General Dominic Grieve; for France, former Foreign Minister Roland Dumas; for Russia, Foreign Minister Sergey Lavrov; and for the United States, Ambassador-at-Large for War Crimes Stephen J. Rapp.

► A representative of Germany, 2 dozen of whose nationals were defendants at the year-long 1st trial: Foreign Minister Guido Westerwelle.

► A representative of the Nuremberg prosecutors, Benjamin B. Ferencz. Ferencz served as Executive Counsel at the dozen subsequent Nuremberg trials conducted by the United States, and lead prosecutor at one of them, the Einsatzgruppen Case.

This week, additional commemorative events will unfold (alas, nothing honoring women at Nuremberg).

And from now on, visitors can tour the museum, located in the Palace of Justice at Bärenschanzstraße 72, from 10 a.m. to 6 p.m. Wednesdays through Mondays. Among the artifacts in the exhibition is the dock that held the former leaders of the Third Reich; it'd been in storage for decades. Courtroom 600 (right), where the trial occurred and which this 'Grrl was honored to visit a few years back, is still a working chamber and so will be open only when court is not in session.

Details here.

ICC prospects post-Kampala

(Part 1 of a 3-part series)

International Criminal Court Judge Hans-Peter Kaul succinctly summed up discussion at the 4th International Humanitarian Law Dialogs:

There will soon be an Article 8 bis to the Rome Statute.

The just-concluded IHL Dialogs, cosponsors of which include IntLawGrrls and the American Society of International Law, feature prosecutors from most of the international criminal tribunals convened in the last 60 years. Joined at the Chautauqua Institution, a lovely upstate New York setting, by members of the academic, practitioner, advocacy, and diplomatic communities, these prosecutors spend a few days discussing hot topics in international criminal law.
The hottest ICL topic this year is the crime of aggression.
As readers of our series on the subject well know, this summer the ICC Assembly of States Parties ended a 2-week Review Conference in Kampala, Uganda, with the consensus approval of a package of proposed amendments to the ICC Statute, which had been adopted at Rome, Italy, in 1998, and which entered into force on July 1, 2002. A centerpiece of the Kampala package is proposed Article 8 bis, to which Judge Kaul referred. Article 8 bis defines the criminal prohibition; other proposed articles chart the paths by which the ICC may investigate and prosecute uses of force alleged to fall within that prohibition.
Post-Kampala questions are many:
► What do the proposed texts actually mean?
► How will they work?
► Which, if any, states will ratify the amendments?
► When, if ever, will the amendments become the law of the ICC?
The IHL Dialogs left some of these questions open. The meaning and working of the amendments, for example, inevitably will be subject to judicial interpretation and pronouncement. But a clearer answer seemed to emerge on the question whether these amendments will enter into force. In a word: "Yes."
Kaul predicted that Germany (which features the ICC on its diplomatic website) would move rapidly to ratify the package. Others foresaw that other countries would follow suit.
Kaul, who was born in Germany during World War II, lamented “the downfall of the Germans to the Nazis.” Nazi invasions in 1939, he said, constituted “a textbook example of a war of aggression.”
In an address available in full here, he lauded the postwar precedent set when an International Military Tribunal comprising judges and prosecutors from 4 Allied countries put scores of Nazis on trial at Nuremberg, not only for war crimes and crimes against humanity, but also for “crimes against peace,” the forerunner to the offense now known as aggression. Kaul, the ICC's current 2d Vice President, the leader in 1998 of the German diplomatic delegation at Rome, and the author in 2005 of an American Journal of International Law article on the ICC, said:

Today, I am myself among the many Germans who believe: the most important point of Nuremberg was the conclusion that aggressive war, which had been a national right throughout history, should henceforth be punished as an international crime.

(credit for photo of a German World War I memorial declaring “Nie Wieder Krieg"– “Never Again War”; the same slogan appeared on a post-World War II photo Kaul displayed during his talk at Chautauqua)
That’s not to say that every participant at the IHL Dialogs – which ended with a Chautauqua Declaration applauding the adoption of a definition and the “determination to press for appropriate mechanisms for its enforcement” – agreed with everything agreed upon at Kampala.
► Former Nuremberg Prosecutor Benjamin B. Ferencz, long a vocal proponent of holding individuals criminally liable for the crime of aggression, asked of the Kampala package:

Is it eyewash or progress? It’s both.

► William R. Pace, Convenor of the Coalition for the International Criminal Court, noted both the complexity of the definition and the options given states to avoid having the ICC pass judgment on the legality of wars waged at their behest.
► Kaul, meanwhile, stated that as a Judge of the International Criminal Court, “it is not my role to delve into the intricacies or maybe weaknesses of the proposal adopted.”
Kaul did venture to take issue with an oft-stated concern, that making the crime of aggression ban fully operational will detract from pursuit of atrocities.
Former Nuremberg Prosecutor H.W. William Caming had observed during the Dialogs that “the planning, participating and waging of wars of aggression” was branded by Chief U.S. Prosecutor Robert H. Jackson as “the ultimate crime from which the crimes against humanity and war crimes extend.”
Kaul echoed Jackson’s view, arguing that prosecution of aggression would enhance prosecution of atrocities:

War crimes, they are the excrement of war.

Declaring that the Kampala package had “energized” proponents of international criminal justice, Kaul ended on this note:

Leaders from all over the world, including Washington, are called upon to reflect ... on which policy they may henceforth follow.

(This 3-part series on the crime of aggression and the 4th IHL Dialogs continues tomorrow with Part 2, on the policy from Washington. Part 3 celebrates the Kampala result)

Kampala pix redux

From alumna Margaret deGuzman, a guest post contributing more photos -- captions at bottom -- from the just-ended the ICC Conference, another in IntLawGrrls' series on events in Kampala)







At left, Benjamin B. Ferencz, former U.S. prosecutor before the post-World War II International Military Tribunal at Nuremberg and indefatigable advocate for international criminal justice, adance.

IntLawGrrl Beth Van Schaack (right), who served as academic advisor with the U.S. delegation in Kampala, and me.

Conference session; at far left of the podium is Prince Zeid Ra'ad Zeid al-Hussein of Jordan, Chair of the Working Group on the Crime of Aggression.

Preparation for whitewater rafting on the Nile River. Familiar faces include Case Western Law Professor Michael P. Scharf, 3d from left. To his right: Robert Petit, former International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia; me; Duke Visiting Assistant Law Professor Noah Weisbord; and Professor William A. Schabas, Director of the Irish Centre for Human Rights in Galway.

Against aggression

(1 in a series of IntLawGrrls' Kampala Conference posts)

Serendipity led me this month finally to read Victors' Justice.
Over the years I'd often given it the Washington read -- the flip through the index to pinpoint selected passages -- and cited it accordingly (e.g., here and here). After all, this 1971 work by Amherst History Professor Richard H. Minear stands as a landmark critique of the post-World War II trial of Japanese leaders before the International Military Tribunal for the Far East (above left).
The serendipity of my close read this month surfaced as early as page xi.
In the preface penned in May 1971 -- when controversy over the Vietnam War was seething -- Minear endorsed prosecution for "conventional war crimes" like those committed 3 years earlier at My Lai (additional post). Minear also supported holding "at least two American presidents and their civilian and military advisors" accountable for tactics deemed "of highly dubious legal character" by no less a figure than retired Brigadier General Telford Taylor (right), a former top U.S. Prosecutor before the International Military Tribunal at Nuremberg and author of Nuremberg and Vietnam: An American Tragedy (1970). Yet Minear warned against any court going any further:

But when the issue is not conventional war crimes but aggression, when it is the whole course of American policy and indeed the history of Indochina and East and Southeast Asia, then I must demur.

Hence the serendipity.
Minear's demurrer brought immediately to mind the 2-week International Criminal Court Review Conference set to begin tomorrow in Kampala, Uganda. As detailed in the superb series that IntLawGrrl Beth Van Schaack launched last year, among the key action items that the ICC Assembly of State Parties will take up at Kampala are, 1st, whether to define the "crime of aggression" enumerated in Article 5 of the ICC Statute and, 2d, whether to make that definition operational, thus authorizing the ICC to punish individuals found guilty of the offense.
Supporters of international criminal justice have divided on these questions.
► Among the staunchest advocates of a "Yes" approach is another U.S. prosecutor at Nuremberg, Benjamin B. Ferencz (below right), who wrote in a March 2010 letter published online:

[T]he lock which now exists preventing aggressors from being tried must be removed from the courthouse door. Failure to make 'the supreme international crime' punishable by the ICC would, in fact, be a repudiation of the Nuremberg Principles and the rule of law. It would be a step backward instead of forward.

► Among several experts who answer "No" is former South Africa Constitutional Court Justice Richard Goldstone (below left), who served as the 1st Prosecutor at the International Criminal Tribunals for Rwanda and for the former Yugoslavia. In an International Herald Tribune op-ed published last week (hat tip), Goldstone wrote:

Grappling with aggression now also threatens to open rifts among members of the Court. Despite years of complex negotiations, deep disagreements persist over key issues related to amending the statute on aggression, such as state consent and how cases would be initiated. Attempting to force a decision absent consensus would vitiate one of the strongest assets the Court has had — the solidarity of it members in the face of efforts to undermine the project.

In Victors' Justice -- self-avowed "political scholarship" (p. xiii) written decades ago -- Minear cited other considerations that counsel an ICC "No" vote this year.

► Minear doubted that any criminal tribunal could make a record sufficiently close to the truth about responsibility for starting a war, even as he allowed that for a court to "come closer to the truth" than the Tokyo Tribunal did in its 1948 judgment "would be child's play." (p. xi) (Skepticism about the assignment to international criminal tribunals of a truth-telling function has inspired my own scholarship; see, e.g., pp. 132-33 here.)

► Minear further contended that the pursuit of convictions for aggression -- not for atrocities committed during conflict, but rather for "the war itself" -- would have little utility beyond being "politically convenient and satisfying." (p. xi) He expanded on the political aspects of proceeding against persons who lost World War II:

The reverse of the coin of enemy criminality was the rightness of the course pursued by the Allies in the same years. The trials were designed not only to punish wrongdoers but also to justify the right side, our side.

(p. 13) The distance between those designs and the traditional goals of criminal justice reveals the condemnation implicit in Minear's contention.
What's more, the villainization of 1 side via an aggression prosecution could diminish a prosecutor's appetite to pursue perpetrators of atrocities on all sides. (Any such risk simply compounds the problems of randomness and selectivity, discussed here at pp. 116-17, that are endemic to international criminal justice.) Post-World War II examples of this risk may be found in -- to cite Taylor's 1992 memoir, The Anatomy of the Nuremberg Trial -- the Nuremberg indictment of Germans for atrocities at Katyn that in fact were committed by troops of an Allied country, as well as the absence of judicial scrutiny of Allied bombing efforts in Europe and Japan alike. (Minear too treated the latter; see pp. 99-102.) More recent are allegations that ad hoc tribunals have concentrated overmuch on crimes by members of disfavored groups, such as the Serbs and the Hutu, and not enough on the crimes of those groups' rivals.

► Minear detailed concerns like these throughout the couple-hundred pages of his book. His litany supported the policy conclusion that he articulated as early as p. xi:

The Tokyo trial is a bad precedent, bad enough, I suggest, to cast doubt on the Nuremberg precedent as well. The wiser course would be to return to the international law of the period before 1945, when atrocities were considered justiciable but the issue of aggression was not.

Minear's arguments retain force today, 39 years to the month after they were written. Still valid too are concerns underlying Minear's work: revulsion against the evils of warfare, coupled with distaste for the threat that the reality of politicization poses to the meaning of justice. It shows that one may be against aggression in a double sense; that is, against individual criminal prosecution of aggression even while remaining steadfastly against the commission, by individual, state, or nonstate entity, of aggression.

Thus does Minear's conclusion back then suggest a "wiser course" for the ICC right now:

Focus not on assessing the criminality-or-not of a given conflict, but rather on assuring the proper criminal punishment of persons responsible for the world's worst offenses.

(Cross-posted at ASIL Blog - International Criminal Court Review Conference)

Go On! ICC Deputy Prosecutor Bensouda to give Women's Day address in California

(Go On! is an occasional item on symposia and other events of interest) It's an immense honor to announce the 1st-ever trip to California of the 2d-in-command at the Office of the Prosecution, International Criminal Court: ICC Deputy Prosecutor Fatou Bensouda (left and below right)will visit the home institutions of 2 IntLawGrrls, Beth Van Schaack and me, next week:
► On International Women's Day, the California International Law Center at King Hall, University of California, Davis, School of Law, for which I serve as founding Director, will host Bensouda's address on "Gender Violence and International Criminal Law" from 5 to 7 p.m. Monday, March 8, in our Moot Courtroom. Introducing her will be California Superior Court Judge Ramona J. Garrett, a 1980 King Hall alumna. Joining me in leading Q&A after the address will be California-Berkeley Law Professor David D. Caron, who's also President-Elect of the American Society of International Law.
► On the following day, Tuesday, March 9, from 12 noon to 1 p.m., Bensouda will speak at Santa Clara University School of Law. Details here.
Bensouda will discuss her work investigating and prosecuting persons accused of genocide, crimes against humanity, and war crimes -- ranging from sexual violence to forced recruitment of child soldiers -- in wartorn places like Darfur, Democratic Republic Congo, Central African Republic, Guinea, and Uganda. Interviews with Bensouda about this work were featured (right) in The Reckoning (2009) (prior posts here and here), the documentary by IntLawGrrl guest/alumna Pamela Yates.
Before joining the ICC in 2004, Bensouda served as the Attorney General in her native country of The Gambia. She played key roles in negotiations at the United Nations and at the Economic Community of West African States. Bensouda's long advocacy for the rights of women led human rights groups to applaud her ICC appointment.
We're most grateful for support from the Planethood Foundation, established by Donald Ferencz, son of Nuremberg Prosecutor Benjamin Ferencz, to aid programs that promote international criminal justice.
Hope to see you at one of these events!

Look On! "Reckoning" on the ICC

(Look On! takes occasional note of noteworthy films.) Stay home for the national television premiere on Tuesday night, 14 July – or better yet, host a gathering. Or, if you're in Washington, D.C., go to the event sponsored by the American Society of International Law the night before. Whatever you do, do see “The Reckoning: The Battle for the International Criminal Court” on PBS. You can find the details for all these viewing options in Diane's post below. In this post, I'll focus on the film itself.
I’ve just previewed "The Reckoning" on DVD, courtesy of director Pamela Yates (below left) -- who contacted me after seeing my January Look On! post about another Sundance Film Festival selection, Lisa F. Jackson's "The Greatest Silence." So I can vouch for the impact of this new film.
It will have you on the edge of your seat, following two simultaneous dramas – the Court’s first investigations and prosecutions of unspeakable crimes, and the Court’s own struggle to survive. It opens with the unduckable question:

Does humanity have the possibility of doing better than this?

The film then moves back and forth between killing fields, Nuremberg, Rome, The Hague, Uganda, Congo, Colombia, Darfur. Ninety minutes goes very, very quickly.
In her Filmmaker’s Statement, after describing the Court itself as the protagonist in "The Reckoning," Yates tells us:

The title 'The Reckoning' has three meanings: the reckoning of a world trying to bring the worst perpetrators of massive crimes to justice; the reckoning of the International Criminal Court becoming an effective global arbiter of justice; and the reckoning with the international community – do we have the political will to carry out the arrest warrants and fulfill the mandate of this new Court?

You will see many familiar and not-so-familiar faces: Prosecutor Luis Moreno-Ocampo, Deputy Prosecutor Fatou Bensouda (on whom I've posted before), Benjamin B. Ferencz of Planethood Foundation (which helps fund the American Society of International Law’s Helton Fellows in human rights), former Bronx prosecutor Christine H. Chung, now back practicing law in the United States, and John Bolton, former U.S. Ambassador to the United Nations.
Kudos to the documentary filmmakers – director Yates, Producer Paco de Onís and editor Peter Kinoy, all of Skylight Pictures – as well as cinematographer Melle van Essen.