Expressive case selection at the ICC

(Delighted to welcome back alumna Margaret deGuzman, who contributes this guest post)

My draft article, Choosing to Prosecute: Expressive Selection at the International Criminal Court, tackles what I believe to be the most important challenge facing the ICC: how to allocate its extremely scarce resources.
The ICC has the mandate to “end impunity” for serious international crimes around the world but the resources to prosecute only a handful of cases each year. Unlike national courts, which are expected to prosecute most serious crimes in their jurisdictions, the ICC’s legitimacy is closely tied to perceptions of relevant audiences that it is choosing to prosecute the “right” crimes and the “right” defendants. Audiences who believe that the Court’s prosecutor, and to a lesser extent its judges, are focusing on the “wrong” cases tend therefore to challenge the legitimacy of the institution itself. Such challenges have been discouragingly common recently with African voices in particular speaking out against the ICC and one state – Kenya – threatening to withdraw from the regime.
The debate in academic and advocacy circles about how the ICC should select cases for prosecution currently centers on the role politics plays and should play in such decisions. Critics charge that the ICC operates as a tool of powerful states, while the Court’s Prosecutor, Luis Moreno-Ocampo (right), claims that his decisions are apolitical. Some scholars argue for greater recognition of the inevitable influence of politics on selection decisions, while others advocate selection procedures they believe will insulate the Court from such influence. Those who focus on process, including Moreno-Ocampo, suggest that selection decisions can enhance the Court’s legitimacy if they adhere to recognized principles of good process such as independence, impartiality, objectivity, and transparency. In particular, Moreno-Ocampo and others claim that cases can be selected according to an objective analysis of their relative gravity.
This focus on politics and process has obscured what I believe to be the chief threat to the ICC’s legitimacy: the absence of generally accepted goals and priorities for the institution’s work.
My article therefore seeks to reframe the debate about prosecutorial and judicial selection discretion at the ICC. The article demonstrates that the ICC’s selectivity threatens its legitimacy not merely because of the potential for improper political influence, but more centrally because the international community failed to endow the institution with clear objectives to guide its actions. To enhance the Court’s legitimacy, therefore, its supporters must engage in a constructive dialogue about the institution’s role in the global legal order.
In additional to highlighting the inadequate theoretical underpinnings of the Court’s work, the article proposes that the ICC adopt an expressive approach to selecting situations and cases to investigate and prosecute.
I do not dismiss the other dominant philosophies of international criminal law: retribution, deterrence, and restorative justice. Rather, I accept that each of these may help to justify particular prosecutions under particular circumstances.
At the same time, I argue that the primary basis for selecting one case or situation over another should not be the relative desert of perpetrators, which is extremely hard to measure, or the prospects for deterrence, which are virtually unknowable, or even the extent to which different individuals or communities are in need of restoration.
Rather, the best use of the ICC’s very limited resources is to focus on situations and cases that maximize the ICC’s expression of global norms. Such expression provides the best hope of contributing to crime prevention, not by deterring potential criminals, but by transforming the normative framework in which decision-makers operate.
My expressive prescription raises questions about what global norms the ICC should seek to express and in what order of priority – questions to which there are no clear answers, just as there is no international consensus about the goals of the Court more broadly. Nonetheless, I argue that by focusing explicitly on an expressive agenda, ICC selection decision makers can stimulate a dialogic process where norms are expressed, feedback received and, ideally, consensus builds over time.
To some extent this is already happening. When the ICC has pursued cases involving child soldiers or crimes against peacekeeper or election-related violence, it has sent a message that members of the international community – or at least the parties to the Rome Statute – feel strongly about condemning and preventing those types of crimes. In fact, as I posted, in a recent address at the American Society of International Law annual meeting, ICC Deputy Prosecutor Fatou Bensouda (left) highlighted this messaging function of the Court.
In my view, this focus on norm expression should be more explicitly adopted as a selection strategy, replacing the current pretense that selections are made based on objective assessments of relative gravity or the consistent application of other criteria.
An expressive agenda has at least the potential to enhance the ICC’s legitimacy by highlighting the value choices that undergird the Court’s selection decisions, inviting relevant audiences to react, and permitting the Court to adjust its choices to reflect the values of its constitutive communities.
The article is in draft form, and I welcome comments!

Bensouda on ICC prosecutions

(Delighted to welcome back alumna Margaret deGuzman, who contributes this guest post)

At last week’s annual meeting of the American Society of International Law, participants were treated to a luncheon presentation by Fatou Bensouda (right), Deputy Prosecutor of the International Criminal Court and candidate for the top job when Luis Moreno Ocampo’s term expires next year. Bensouda presented some opening remarks and then was ably questioned by our own Diane Marie Amann, as well as a few audience members.
In her luncheon dialogue, which is available for web viewing here, Bensouda began by providing an overview of the work of the International Criminal Court Office of the Prosecutor (OTP) in the most active situations before the Court. Illustrating her talk was the map at bottom, which depicts the 114 states parties to the Rome Statute in dark blue, signatory states in light blue, selected situations in yellow, and preliminary examinations in green.
With regard to Libya, Bensouda stated that the OTP has notified those with formal and de facto authority, including Gaddafi, that their crimes will be investigated. The OTP has made clear that warning civilians to leave before attacking civilian areas does not relieve those involved of criminal responsibility. Bensouda emphasized that the OTP is seeking to be as transparent as possible in its dealings with the Libyan leadership.
In discussing the various situations, Bensouda revealed her vision of the ICC’s role in the global legal order: to prevent crimes through deterrence and by “sending messages” about the types of offenses the international community will not tolerate.
In discussing the OTP’s work with regard to the post-election violence in Kenya, for example, Bensouda asserted that the prosecutions will prevent crimes by “sending the message” that those who gain power by violence will be held accountable.
Similarly, she stated that the prosecution of those who killed peacekeepers in Sudan “sends an important message that the Court supports peacekeeping;” and the trial of Thomas Lubanga for recruiting child soldiers in the Democratic Republic of Congo “signals” the seriousness of that crime.
Bensouda also mentioned a situation in which the OTP is seeking to prevent crimes through incapacitation of key actors. She asserted that the arrest last fall of Callixte Mbarushimana, leader of the rebel group the Democratic Forces for the Liberation of Rwanda, was an effort to “destabilize” that organization and thus prevent crimes in Eastern Congo.
Bensouda also described the OTP’s approach to deciding which situations of alleged international crimes the ICC should investigate. The process of determining whether to pursue a formal investigation has become known as the “preliminary examination.”
Last October, the OTP issued a Draft Policy Paper on Preliminary Examinations. Bensouda promised that the final policy statement would be issued soon. Under Article 53 of the ICC Statute, the preliminary examination phase requires the OTP to determine whether a “reasonable basis” exists to proceed in a situation. This “reasonable basis” analysis has three components. It requires the OTP to assess whether:
► (1) crimes within the ICC’s jurisdiction appear to have been committed;
► (2) potential cases within the situation would be admissible (that is, they are sufficiently grave and meet the complementarity requirement that no State with jurisdiction is already acting in good faith); and
► (3) prosecution would not contravene the “interests of justice.”
The most interesting thing about the OTP’s draft policy on preliminary examinations is that it purports to disavow any role for prosecutorial discretion in deciding which situations to investigate. Whereas an earlier draft policy paper talked about the OTP “selecting” situations to investigate, the 2010 paper takes the position that the OTP must investigate if the statutory criteria are met.
Bensouda’s comments confirmed this approach. She noted that when the office began operations, Colombia and the Democratic Republic of Congo were the “gravest” situations within the Court’s jurisdiction; however, no investigation was opened in Colombia because that country was pursuing some national prosecutions. She also reiterated the OTP’s position that no investigation was undertaken with regard to the war crimes committed by British soldiers in Iraq because they were not sufficiently grave to be admissible.
As I have written elsewhere, this assessment seems mistaken – surely war crimes resulting in the deaths of even a small number of civilians are admissible before the ICC. The decision not to investigate the Iraq situation makes more sense if articulated as an exercise of the prosecutor’s discretion to focus on the most serious situations available. The OTP’s current policy, however, seems to preclude such an approach. Moreover, when questioned about the Court’s selection criteria, Bensouda seemed to admit that gravity is sometimes primarily a matter of numbers of victims – as in the Iraq situation – and at other times is conceived as relating more to the nature and impact of the crimes – in particular, what “signal” a particular prosecution is going to send.
Finally, Bensouda stated that there is no timeline for concluding preliminary examinations, and opined that the act of engaging in a preliminary examination itself has a deterrent impact. Echoing her current boss, Bensouda also emphasized that the OTP “has a legal mandate with no flexibility to adjust to political considerations,” a position that has been challenged recently by writers such as Bill Schabas and James Goldston.
Bensouda concluded that the ICC represents a “paradigm shift” from the Westphalian model of state sovereignty to one of international scrutiny and the rule of law.
In the questioning, Bensouda was pressed hardest on the problems associated with the ICC’s exclusive prosecution of African cases. She noted that such criticisms often overlook the victims of the African conflicts, and stated that she would “not apologize” for seeking to give victims a voice. She also sought to justify the emphasis on African situations by reference to the requirements of the ICC Statute, in particular the principle of complementarity. She noted that the OTP always encourages national proceedings but that unfortunately those are “not happening in Africa.” She reminded the audience that three of the African situations were referred by the affected governments themselves.
Nonetheless, when asked whether the ICC’s focus on Africa mitigates in favor of an African as the next prosecutor Bensouda, a native of the Gambia, was (unsurprisingly) supportive!

Ask OTP / ICC

Have a question you'd like to ask the Office of the Prosecutor of the International Criminal Court?
Now's your chance.
Wearing my hat as a Vice President of the American Society of International Law, yours truly, Diane Marie Amann, has the honor of joining ICC Deputy Prosecutor Fatou Bensouda (right) in a luncheon dialogue from 12:30-2:30 p.m. this Friday, March 25, in Plaza I & II at the Ritz Carlton Hotel in Washington, D.C. (photo credit)

Bensouda will begin by describing the process of preliminary examinations, by which OTP decides whether to open an investigation, and will touch on certain matters now before the court. Before audience Q&A, Bensouda and I will engage in a discussion of ICC hot topics.

That's where you come in.

Please feel free to communicate your questions for the Deputy Prosecutor Bensouda, either by posting a comment to this message or by e-mailing us at intlawgrrls@gmail.com. Will try to include topics of interest in Friday's discussion.

This lunch is one of many many events at ASIL's 105th Annual Meeting, which begins tomorrow. Full program here; prior IntLawGrrls posts on events at the meeting are available here. For persons who can't attend in person, many sessions -- including the Bensouda lunch -- may be viewed live on demand thanks to FORA.tv. Details here.
Hope to see you there!

Women @ ASIL (5th ed.)

As we have each year since our founding ((here, here, here, here, and here), IntLawGrrls is proud today to highlight women who will speak March 23-26 at the forthcoming annual meeting of the American Society of International Law.
This 105th gathering of the Society, entitled Harmony and Dissonance in International Law, kicks off with the Grotius Lecture by Nobel Prizewinning economist Amartya Sen, for which our colleague Kim Lane Scheppele (Princeton) will serve as discussant. Also of note are: the annual WILIG luncheon, featuring IntLawGrrl Lucy Reed, immediate past President of ASIL; an opening plenary by Michael H. Posner, Assistant Secretary of State for the Bureau of Democracy, Human Rights, and Labor; and a plenary among several international judges. I'm especially excited about the Friday lunch dialogue featuring International Criminal Court Deputy Prosecutor Fatou Bensouda (left) -- wearing my hat as an ASIL vice president, I've been given the honor of serving as discussant/moderator for her talk. (photo credit)
All events will take place at the Ritz Carlton Hotel, 1150 22d Street, N.W., Washington, D.C. (Details and registration here.)
Delighted to see from the program that, once again, there's much diversity in topics and presenters. Virtually all panels again have at least 1 woman participating, and that many have many more. Particularly proud that so many persons featured are IntLawGrrls or IntLawGrrls alumnae!
Without further ado, here's this year's honor roll of Women @ ASIL:

Wednesday, March 23, 4:30-6 p.m.
► "The Global Status of Rights": Kim Lane Scheppele (Princeton) as discussant for Grotius Lecture by Amartya Sen.

Thursday, March 24, 11:15 a.m.-12:45 p.m.
► "The Supreme Court & Arbitration Law": Lorraine M. Brennan (JAMS International).
► "Legal Origins, Doing Business and Rule of Law Indicators: The Economic Evaluation of Legal Systems": Corinne Boismain (Université de Metz).
► "International Environmental Law Making and the International Court of Justice": Malgosia Fitzmaurice (University of London) (right), Natalie Klein (Macquarie), and IntLawGrrl guest/alumna Cymie Payne (Lewis & Clark) as panelists; Caroline Foster (Auckland) will moderate.
► "International Courts and Tribunals Interest Group: Judicial Selection": Eloïse Obadia (International Centre for Settlement of Investment Disputes) and Gabrielle Kirk McDonald (Iran-U.S. Claims Tribunal) (left).
► "Commissions of Inquiry into Armed Conflict, Breaches of the Laws of War and Human Rights Abuses: Process, Standards, and Lessons Learned": Agnieszka Jachec Neale (Essex) and Heidi Tagliavini (Swiss Ministry of Foreign Affairs).
►"New Voices I: Global Health, Trade & Common Resource Regimes": Lisa Clarke (Amsterdam), Erika Techera (Macquarie), and Margaret Young (Melbourne).

Thursday, March 24, 1-2:30 p.m.
► IntLawGrrl Lucy Reed (right), immediate past President of ASIL and a partner at Freshfields Bruckhaus Deringer LLP in New York, at the annual luncheon of WILIG, the Women in International Law Interest Group.
► "Fragmentation of International Legal Orders and International Law: Ways Forward?": Nele Matz-Lück (Max Planck Institute for Comparative Public Law and International Law, Heidelberg) as panelist; Ruti Teitel (New York Law School) will moderate.
► "Responding to Nuclear Security Challenges in a Fragmented World": Asli Ü. Bâli (UCLA) and Rose Gottemoeller (Assistant Secretary of State, Bureau of Verification, Compliance, and Implementation).
► "Seamlessness or Segmentation? International Economic Governance and European Sovereign Debt": Odette Lienau (Cornell) and Ann Misback (Federal Reserve Board).

Thursday, March 24, 3-4:30 p.m.
► "Annual Benjamin Ferencz Session: Integrating the Crime of Aggression into International Criminal law and Public International Law": Teresa McHenry (U.S. Department of Justice) and IntLawGrrl Beth Van Schaack (Santa Clara).
► "The Role of International Tribunals in Managing Coherence and Diversity in International Law": IntLawGrrls guest/alumna Andrea K. Bjorklund (California-Davis) and Valerie Hughes (Legal Affairs Director, World Trade Organization).
► "Dispute Resolution Interest Group: IS ICSID Losing Its Appeal...Again?": Andrea Menaker (White & Case LLP), moderator.
► "Espionage and the First Amendment After Wikileaks": Mary-Rose Papandrea (Boston College).

Thursday, March 24, 5-6:15 p.m.
► "Decision Making in International Courts and Tribunals: A Conversation": plenary keynote featuring numerous international jurists, including Dame Rosalyn Higgins (former President of the International Court of Justice) (left) and Brigitte Stern (Université de Paris I (Panthéon-Sorbonne)).

Friday, March 25, 7-8:30 a.m.
► "Targeting with Drone Technology: Humanitarian Law Implications": Naz Modirzadeh (Harvard) will moderate.

Friday, March 25, 9-10:30 a.m.
► "Strategy and Planning Meeting for ASIL's new International Disability Rights Interest Group," about which IntLawGrrl Hope Lewis, interest group co-chair along with Stephanie Ortoleva (BlueLaw), posted yesterday.
► "International Environmental Law Interest Group: Roundtable on Research Methodologies," an all-woman panel: Cinnamon Carlarne (South Carolina), Edith Brown Weiss (Georgetown) (right) and Jutta Brunnée (Toronto) as panelists; Sara Seck (Western Ontario) will moderate.
► "International Trade Law and International Investment Law: Convergence or Divergence?": Marinn Carlson (Sidley & Austin LLP).
► "What the Kosovo Advisory Opinion Means for the Future": Anne Peters (Basel).
► "The Role of Legal Norms in Mediation and Negotiation: Views from the Field": Jennifer Lake (Legal Advisor, Independent Diplomat, an advisory group).
► "Ethical and Practical Challenges for Corporate Lawyers Advising Clients on Human Rights": Sarah Altschuller (Foley Hoag LLP), Rachel Davis (Harvard's Kennedy School), and Alexandra Guáqueta (Flinders University).

Friday, March 25, 10:45 a.m.-12:15 p.m.
► "International Criminal Law Interest Group: 'Fact Finding Without Facts': A Conversation with Nancy Combs": IntLawGrrls guest/alumna Nancy Amoury Combs (William & Mary) will speak on her book titled above, about which she posted here; discussant will be her William & Mary colleague, Linda A. Malone.
► "Intellectual Property Law Interest Group: Harmonizing International Law: An IP Perspective": Seagull Song (Renmin University); Elizabeth Chien-Hale (Institute for Intellectual Property in Asia) will moderate.
► "Recent Trends in International Investment Treaty Law": Carolyn Lamm (White & Case LLP) and Loretta Malintoppi (Eversheds LLP).
► "The Roles and Responsibilities of International Organizations": Vera Gowlland-Debbas (Université de Génève) and Daphna Shraga (Office of Legal Affairs, United Nations) as panelists; Blanca Montejo (Office of Legal Affairs, United Nations) will moderate.
► "New Battlefields/Old Laws: Shaping a Legal Environment for Counterinsurgency": Ashley Deeks (Columbia) and Sarah Sewall (Harvard's Kennedy School).
► "Elections and Ethnic Violence": Susan Benesch (World Policy Institute); Sarah Knuckey (NYU) will moderate.

Friday, March 25, 12:30-2:30 p.m.
► "Luncheon Dialogue on the International Criminal Court": ICC Deputy Prosecutor Fatou Bensouda will be the principal speaker; yours truly, Diane Marie Amann (California-Davis), will serve as moderator/discussant.

Friday, March 25, 1-2:30 p.m.
► "International Legal Research Interest Group: Greater than the Sum of Its Parts: Global Cooperation in Making the World's Laws Accessible": Hongxia Liu (World Justice Project), Marylin Raisch (Georgetown), and Roberta Shaffer (Law Librarian of Congress) (left) as panelists; Amy Emerson (Cornell) will moderate.
► "Harmony and Dissonance in Extraterritorial Regulation": IntLawGrrls guest/alumna Hannah Buxbaum (Indiana).
► "Labor and Migration in International Law: Challenges of Protection, Specialization and Bilateralism": Nisha Varia (Human Rights Watch) and Ayelet Schachar (Toronto) as panelists; Regan Ralph (Fund for Global Human Rights) will moderate.

Friday, March 25, 3-4:30 p.m.
► "International Law and the Liability for Catastrophic Environmental Damage": Monika Hinteregger (University of Graz) as panelist; Marie Soveroski (ASIL International Environmental Law Interest Group Co-Chair) will moderate.
► "New Voices II: Internationalizing & Domesticating Law": Anna Dolidze (Cornell), IntLawGrrls guest/alumna Molly Beutz Land (New York Law School), and Tonya Putnam (Columbia).
► "Are There 'Regional' Approaches to International Dispute Resolution?": Katia Fach Gómez (Fordham), Judge Nkemdilim Amelia Izuako (U.N. Dispute Tribunal), and Catherine Kessedjian (Université Panthéon-Assas).
► "International Legal Theory Interest Group: Harmony and Dissonance in International Legal Theory": IntLawGrrls guest/alumna Nienke Grossman and Helen Stacy (Stanford).
► "International Legal Implications of Israel's Attack on the Gaza Aid Flotilla": Sari Bashi (Gisha: Legal Center for Freedom of Movement); Sarah Weiss Maudi (Israel Ministry of Foreign Affairs); Naz Modirzadeh (Harvard).

Friday, March 25, 8-10 p.m.
► "ASIL Annual Dinner: A Celebration of Distinction and Promise": featuring, inter alia, award of the Goler T. Butcher Medal to IntLawGrrl guest/alumna Gay McDougall, (left), U.N. Independent Expert on Minorities; Certificate for Scholarship (Creative Scholarship) to Jutta Brunnée, coauthor with Stephen J. Toope of Legitimacy and Legality in International Law; and Certificate for Scholarship (Honorable Mention in a specialized area of international law) to IntLawGrrl guest/alumna Anne Gallagher, author of The International Law of Human Trafficking, on which she posted here.

Saturday, March 26, 9-10:30 a.m.
► "Duplication and Divergence in the Work of the United Nations Human Rights Treaty Bodies": Sarah McCosker (Office of the Australian Attorney General) and Catherine Powell (State Department) (right) as panelists; Christina Cerna (Organization of American States) will moderate.
► "Trade and Investment in Africa: Harmony and Disharmony with the International Community": Uche Ewelukwa (Arkansas) as panelist; Angela M. Banks (William & Mary) will moderate.
► "Geoengineering Climate Change: Can the Law Catch Up?": IntLawGrrl Hari M. Osofsky (Minnesota) as panelist; IntLawGrrl Rebecca Bratspies (CUNY) will moderate.
► "Author Meets Reader; International Law in the U.S. Supreme Court: Continuity and Change": IntLawGrrls guest/alumna Mary Dudziak (Southern California) and Lori Damrosch (Columbia) as panelists; Ingrid Wuerth (Vanderbilt) will moderate.
► "Transnational Piracy: To Pay or Prosecute?": Jennifer Landsidle (State Department) as panelist; Mileno Sterio (Cleveland-Marshall) will moderate.

Kudos to: ASIL President David Caron; ASIL Executive Director Betsy Andersen; the Program Committee Co-Chairs, IntLawGrrls' guest/alumna Chimène Keitner (California-Hastings), Catherine Amirfar (Debevoise & Plimpton LLP), and Tai-Heng Cheng (New York Law School), as well as Planning Committee members Kristen Boon (Seton Hall), Christiane Bourloyannis-Vrailas (EC/UN), Harlan Cohen (Georgia), Omar Dajani (Pacific McGeorge), Jennifer Daskal (Department of Justice), John Fellas (Hughes Hubbard & Reed LLP), Chiara Giorgetti (White & Case LLP), Dick Jackson (Department of Defense), Rebecca Jenkin (Debevoise & Plimpton LLP), Larry Johnson (Columbia), Erasmo Lara (Mexico Foreign Ministry), Blanca Montejo (United Nations), Michael Newton (Vanderbilt), IntLawGrrl Christiana Ochoa (Indiana), Jeffrey Pryce (Steptoe & Johnson LLP), Regan Ralph (Fund for Global Human Rights), Hina Shamsi (American Civil Liberties Union), Ingrid Wuerth (Vanderbilt), Lionel Yee (Singapore Attorney-General's Chambers), and Nassib Ziadé (International Centre for the Settlement of International Disputes)!

Prosecutorial parlance

Snippets from comments by international prosecutors at the recent International Humanitarian Law Dialogs, subject of posts by cosponsoring IntLawGrrls:

The forced enlistment and use of children in armed conflicts is, I believe, one of the most serious crimes within the jurisdiction of the court.

-- Fatou Bensouda (left), Deputy Prosecutor of the International Criminal Court, on the charges against Thomas Lubanga Dyilo, defendant in the ICC's 1st trial, which, as IntLawGrrls have posted here and here, has been suspended over a dispute respecting disclosure of witness-preparation information.

Be sure to ask countries to support the tribunal. There is a tendency to think, 'Let's move on. Let's take the countries into the international community. We are saying, 'There can be no compromise. There can be no alternative to bringing the fugitives to justice.'

-- Serge Brammertz (right), Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia, disagreeing with proposals to allow the European Union admission of Serbia even though indictees like former Bosnian Serb General Ratko Mladić remain at large.

My sense is that it is a completely traumatized nation, so it is extremely important that this period be put to rest so that the community can move on.

-- Andrew T. Cayley (left), on the work of the Extraordinary Chambers of the Courts of Cambodia, for which he serves as International Co-Prosecutor.

We are losing experienced staff, staff with institutional memory, and we are finding some of the essential tasks are not being done. This is especially the case with the writing of judgments.

-- Bongani Majola (right), Deputy Prosecutor of the International Criminal Tribunal for Rwanda, echoing a complaint that, as posted, ICTY President Patrick Robinson has made, with respect to the Yugoslavia Tribunal, to the U.N. Security Council.

All of the news coverage did come back in the end to the conflict, to the horrible things that happened, and so I think that was very much a good thing to see.

-- James Johnson (right), Prosecutor at the Special Court for Sierra Leone, on publicity that attended the conflicting testimony that celebrity witnesses Naomi Campbell and Mia Farrow recently gave respecting conflict diamonds that the defendant before the court, former Liberian President Charles Taylor, is alleged to have given Campbell.

More on International Justice Dialogue

(We welcome IntLawGrrls guest/alumna Valerie Oosterveld back for this guest post. Valerie, in turn, extends her thanks for the invitation to contribute to the blog.)

In her post a few days ago, IntLawGrrl Susana SáCouto highlighted the International Gender Justice Dialogue held last week in Puerto Vallarta, Mexico. She featured the panel on “Prosecutions and Jurisprudence – What have we achieved and what remains to do done?”

Other panels at the Dialogue, which I attended, focused on “Peace Talks and Outcomes – Strategies and Challenges”, “Women’s Rights and Peace Advocates in Conflict Situations and Fragile States” and “Mandates and Opportunities for Justice and Peace”.

While some originally-scheduled speakers were not able to attend due to travel disruptions caused by the Icelandic volcano, speakers did include: Jody Williams (Nobel Peace Prize Laureate and Chair of the Nobel Women’s Initiative), Fatou Bensouda (International Criminal Court, by video), Joanna Sandler (UNIFEM), Monica McWilliams (Chief Human Rights Commissioner, Northern Ireland, by video), Esther María Gallego Zapata (Ruta Pacifica de las Mujeres, Colombia), Sarai Aharoni (Hebrew University, Israel), Yanar Mohammed (Organisation of Women’s Freedom in Iraq), Thin Thin Aung (Women’s League of Burma, India), Gilda Maria Rivera Sierra (Centro de Derechos de Mujeres, Honduras), Chavi Nana (International Criminal Court), Susannah Sirkin (Physicians for Human Rights, USA), and

Kristin Kalla (International Criminal Court Trust Fund for Victims).

The Dialogue’s website contains video presentations of these speakers, including the powerful and inspiring closing presentation by Dr. Joan Chittister, co-chair of The Global Peace Initiative of Women, which you can watch here.

As the event was indeed a dialogue, the second day of the gathering focused on brainstorming around the themes of “Justice and Jurisprudence”, “Peace Talks and Implementation”, and “Communicating Gender Justice”. I served as a rapporteur for the group on Justice and Jurisprudence, which tackled key questions such as:

► “What are the judicial obstacles to the advancement of gender justice?”

► “What are some upcoming opportunities within the International Criminal Court and elsewhere for advancing gender justice?”

► “Where does the field of international criminal justice need to be in relation to gender issues in the next 3-5 years?”

The Women’s Initiatives for Gender Justice also took the opportunity of the Dialogue to launch its newest publication, “In Pursuit of Peace”, which can be accessed here.

Writing from Kenya, as air travel cancellations kept her from attending, Ava A. Maina Ayiera summarized the feelings of the attendees at the Dialogue well:

'I do not know what journeys and stories of women’s rights, women’s empowerment emerge from Iceland, yet their stories, my stories will connect and mirror each other; stories of women determined to realize equality, to redress discrimination, to resist the degradation that comes with patriarchy and to seek justice.'

A difference a decade makes

Back in 1998, the political branches of the U.S. government seemed at one in fearing the power of an independent prosecutor for the International Criminal Court.
Then Ambassador-at-Large for War Crimes Issues in the administration of President Bill Clinton, David J. Scheffer, cautioned against permitting international prosecutors to act proprio motu -- on their own motion, as national prosecutors do -- for fear that it would

'encourage overwhelming the Court with complaints and risk diversion of its resources, as well as embroil the Court in controversy, political decision-making, and confusion.'

Meanwhile, Senator Jesse Helms (R-S.C.), Chair of the Foreign Relations Committee, complained that the proprio motu prosecutor would be

'accountable to no state or institution for his actions.'

Quite different tunes are to be heard from official Washington today, little more than a decade later. As the Office of the Prosecutor goes forward with its proprio motu investigation of post-election violence in Kenya, it can expect continued support from the United States.

Secretary of State Hillary Clinton made U.S. concerns about Kenya clear during a visit the country last August, when she

said that if the Kenyan government refused to set up a tribunal to prosecute the perpetrators of last year’s election-driven bloodshed, the International Criminal Court at The Hague would get involved.

It's no accident that those comments occurred in Kenya, birthplace of the father of President of the United States. Barack Obama made clear his concern about problems in Kenya in his 1st book, Dreams from My Father (1995), which our colleague Antony Anghie aptly dubbed "a story of the failure of the postcolonial state" in a keynote speech to the American Society of International Law keynote last week. Obama reiterated concern on the campaign trail. Giving voice to the Obama Administration's position, Clinton said in August:

'I have urged that the Kenyan government find the way forward themselves. But if not, then the names turned over to the I.C.C. will be opened, and an investigation will begin.'

And it has.

As IntLawGrrl Beth Van Schaack detailed, yesterday the ICC Pre-Trial Chamber gave the Office of the Prosecutor the go-ahead to investigate.

During her recent visit to the California International Law Center at King Hall, University of California, Davis, School of Law, ICC Deputy Prosecutor Fatou Bensouda praised the United States for its assistance in the Kenya and other matters. Just last week, in the ASIL keynote about which we've already posted, Harold Hongju Koh, Legal Adviser to the State Department, spoke with evident pride of the United States' re-engagement with the ICC by observer-status attendance at meetings of the Assembly of States Parties (including the forthcoming Review Conference in Kampala, Uganda). Koh said:

'The United States believes it can be valuable partner and ally,'

and he promised further U.S. support to the ICC.

All this is not to say that the position of the United States raises no eyebrows.

During Secretary of State Clinton's Nairobi visit last August, a university student asked "how the United States could support having the court intervene in Kenya's problems when the U.S. government has not subjected itself to its procedures." By way of reply Clinton expressed "'great regret'" about U.S. nonparty status, adding:

'But we have supported the court and continue to do so.'

A decade of difference, indeed.

ICC's Bensouda online

Delighted to announce that a webcast of International Women's Day appearance of Fatou Bensouda (left), Deputy Prosecutor of the International Criminal Court, is now online.

Loyal blogreaders will recall that Bensouda made her 1st California visit a few weeks back, speaking at the University of California, Davis, School of Law (hosted by the California International Law Center at King Hall, for which I serve as Director) and the University of Santa Clara School of Law (hosted by the Center for Global Law & Policy, thanks to IntLawGrrl Beth Van Schaack and our colleague David Sloss). (photo credit)

While in Northern California, Bensouda also appeared on a news program at the Sacramento-based Capital Public Radio; the full interview is here, and a shorter audio clip here.

It's the CILC-hosted talk, entitled Gender Violence and International Criminal Law, that you can watch here.

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!

Go On! IntLawGrrls cosponsors 3d IHL Dialogs, on "Women in International Criminal Law"

(Go On! is an occasional item on symposia of interest) Delighted to announce that for the 1st time ever, IntLawGrrls is cosponsoring an international law conference!
It's the 3d Annual International Humanitarian Law Dialogs, to be held August 31-September 1 at the Chautauqua Institution in Chautauqua, a community near Buffalo in upstate New York.
As posted here and here, last year's dialogs marked the 60th anniversary of the Convention Against Genocide; the 1st year, the 100th anniversary of the 1907 Hague Rules on the laws of war. This year's theme -- "Honoring Women in International Criminal Law From Nuremberg to the ICC" -- is ready-made for IntLawGrrls the world over. It's no surprise, then, that a number of 'Grrls were enlisted as the event was put together by our colleague David M. Crane, formerly Prosecutor at the Special Court for Sierra Leone, now law professor at Syracuse University College of Law.
Our thanks to David, who's also the founder Impunity Watch blog (one of the "connections" in our righthand column), both for the invitation and for welcoming IntLawGrrls blog as a cosponsor. Also cosponsoring are the Robert H. Jackson Center in nearby Jamestown, N.Y., which features the work of the Supreme Court Justice who served as Chief U.S. Prosecutor at the Nuremberg trial of the Major War Criminals, Impunity Watch/Syracuse Law, the American Society of International Law, the Enough Project of the Center for American Progress, the Whitney R. Harris World Law Institute at Washington University School of Law, and the Frederick K. Cox International Law Center at Case Western Reserve University School of Law.
Events on the program include:
Monday, August 31:
► Opening remarks, including a moment of silence for Dr. Alison Des Forges, the Human Rights Watch researcher who died in a plane crash this past February, as we then posted.
►Keynote lecture entitled "Katherine Fite, A Prosecutor at Nuremberg," by John Q. Barrett, Professor of Law at St. John's University School of Law, New York, and Elizabeth S. Lenna Fellow at the Robert H. Jackson Center in Jamestown, New York. As Barrett will detail, Katherine Boardman Fite, who'd received her law degree from Yale in 1930, served as Jackson's assistant.
► Keynote lecture entitled "Women at Nuremberg," by me, IntLawGrrl Diane Marie Amann, Professor of Law and Director of the California International Law Center at King Hall, University of California, Davis, School of Law, and an ASIL Vice President. The presentation will be based on my IntLawGrrls series of the same name.
► An update from the current prosecutors, to be moderated by Leila Nadya Sadat, Henry H. Oberschelp Professor of Law and Director of the Harris Institute at Washington University School of Law, St. Louis. That institute's namesake, former Nuremberg prosecutor Whitney R. Harris, also is expected to attend these 3d annual dialogs.
► Luncheon speech by Gayle E. Smith (left), a cofounder of the Enough Project who's now a Special Assistant to President Barack Obama. Introducing her will be Colin Thomas-Jensen, a policy advisor at the Enough Project.
► Roundtable discussion with the prosecutors on "Gender Crimes at the International Level," moderated by IntLawGrrl Diane Orentlicher, Professor of Law at American University's Washington College of the Law.
► A briefing by Sadat on the Crimes Against Humanity Initiative about which IntLawGrrls has posted here and here.
► Dinner speech by the Honorable Patricia M. Wald (right), formerly Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit and, subsequently, a Judge of the International Criminal Tribunal for the former Yugoslavia. Introducing Judge Wald will be IntLawGrrl Lucy Reed, ASIL President, Freshfields partner, and a member of the Eritrea-Ethiopia Claims Commission, about which she's posted.
► Showing of NBC's The Wanted, with members of the cast.
Tuesday, September 1:
► "International Criminal Law Year in Review," presented by Michael P. Scharf, Professor of Law and Director of the Cox Center.
► "Reflections on Women in International Criminal Law," by the Honorable Marilyn J. Kaman (below right), Presiding Judge, Probate/Mental Health Court, Hennepin County, Minnesota, and from 2002-2003 a U.N.-appointed judge in Kosovo, where she presided over cases involving war crimes, organized crime, ethnically motivated disputes, and human trafficking.
► Roundtable with 3 women who've worked as international trial attorneys: Christine H. Chung, partner at Quinn Emmanuel and former senior trial attorney, Office of the Prosecutor, International Criminal Court (prior post); Lesley Taylor, Special Court for Sierra Leone; and Renifa Madenga, International Criminal Tribunal for Rwanda. Moderated by Dr. Kelly Askin, IntLawGrrl and Senior Legal Officer, International Justice, Open Society Justice Initiative.
► Lunch speech by Siri Frigaard (above left), Chief Public Prosecutor, Norwegian National Authority for Prosecution of Organised and Other Serious Crime. Former ICC attorney Chung will introduce her.
► Elizabeth Andersen, ASIL Executive Director, will lead the signing of the 3d Chautauqua Declaration.
Prosecutors expected to attend, besides those already named, include: Fatou Bensouda (below left), ICC Deputy Prosecutor (prior posts here and here); William Caming, former trial counsel at Nuremberg; Desmond DeSilva, former Prosecutor at the Special Court for Sierra Leone; Richard Goldstone, formerly the ICTY-ICTR Chief Prosecutor and a Justice on the Constitutional Court of South Africa, and currently leading a U.N. inquiry into the 2008-2009 conflict in the Gaza Strip; Hassan Jallow, International Criminal Tribunal for Rwanda; Robert Petit, Co-Prosecutor of the Extraordinary Chambers in the Courts of Cambodia; and Stephen Rapp, Prosecutor of the Special Court for Sierra Leone since 2006, and now, as we've posted, President Barack Obama's nominee to become the U.S. Ambassador at Large for War Crimes Issues.
For details, contact Carol Drake at cdrake@roberthjackson.org.