ICC referral: sweet, or bittersweet?

Some sweet irony in the referral of the Gadhafi regime to the International Criminal Court.
As watchers of the Hague-based court at left well know, longtime Libyan leader Moammar Gadhafi long has been a thorn in the ICC's side.
It's not just that Libya's not a party to the Rome Statute of the ICC. As the map below shows, the same holds true of many of its Arab neighbors -- and of certain very large states to the west and east of Libya.
Rather, Libya's particularly prickly relation to the ICC stems from Gadhafi's efforts to exerts his brand of leadership on the African continent.
To cite an example: It's no accident that, as Pittsburgh Law Professor Charles Jalloh, among others, has noted, the 1st African Union resolution condemning the ICC's pursuit of Sudanese President Omar al-Bashir occurred at a meeting in Libya.
Libya also is a member of the Human Rights Council, formed in 2006 as a means better to promote human rights within U.N. member states and throughout the world.
The Human Rights Council broke with Libya on Friday, as we posted here and here. Reports that the Gadhafi regime had ordered aerial attacks and street-thuggery against its own, unarmed civilians compelled the Council unanimously to urge the General Assembly to suspend Libya's U.N. membership.
Last night the Security Council went giant steps further, not only imposing sanctions and an arms embargo, but also referring the Libya matter to the ICC. The vote was unanimous among the T-10 and P-5 alike: ICC nonparty China put aside earlier-reported misgivings, and the United States, another ICC nonparty, openly supported an ICC referral for the 1st time ever.
Here're the pivotal paragraphs of Security Council Resolution 1970 (February 26, 2011):

The Security Council,
....
Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41,
....
ICC referral
4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;
5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;
6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;
7. Invites the Prosecutor to address the Security Council within two months of the adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;
8. Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily; ...

The resolution zeroes in on Gadhafi -- and what little seems left of his regime in the wake of many ministerial defections to the antigovernment side.
Worth noting: The caveat concerning a national of a nonparty state present at the scene by authorization of the Council -- presumably, a person deployed as a U.N. peacekeeer. Evidence that such a person took part in criminal behavior must be referred to the state of nationality; by the terms of ¶6, absent a waiver the ICC would have no jurisdiction over such a malefactor. (Thanks to our colleague Kevin Jon Heller (his OJ post here) for pointing out my initial, erroneous interpretation.)
Some cause for concern: The foisting of the costs of ICC investigation onto the ICC and states that choose to contribute. That provision in ¶8 hints at certain lingering reluctances, and serves to remind of the deaf ear that the Security Council has turned to the ICC Prosecutor's pleas for aid in effecting the arrest of international fugitive and still-incumbent President Bashir.
It's to be hoped the Security Council's newfound spine will translate into helping the ICC as it endeavors to respond responsibly to yet another weighty referral. It's also to be hoped that the ICC will rise to the "test," to quote our colleague William Schabas; that is, it "must inspire confidence in its ability to provide a meaningful, significant and above all prompt response to the crisis."
If not, today's irony may prove more bitter than sweet.

(Credit for 2010 map indicating: in grey, states, like Libya and China, that have neither signed nor ratified the ICC Statute; in orange, states, like the United States, Sudan, and Russia, that at one time signed but never ratified; and in green, full states parties to the ICC Statute. Though slightly out of date -- it shows 111 rather than the current 114 states parties -- the map is accurate with regard to the states discussed in this post, a version of which is cross-posted at The Huffington Post.)

"Benevolent" Dictator Kagame?

Paul Kagame (left) has been newly re-elected President of Rwanda with 93% of the vote.
Despite that suspiciously high number, government electoral officials reported that the process functioned properly, without irregularities.
It is hard to cry foul -- except that no one else was allowed to compete.
Leading up to the election, all signs pointed to serious political repression. Opposition candidates and supporters were arrested for holding what was deemed an illegal rally. Moreover, the suspension of newspapers, the removal of a human rights researcher from the country, and the restructuring of military leadership all pointed to a regime consolidating power before the election. Some recent incidents of violence -- the attempted killing of an exiled Rwandan general, killing of the vice president of the Democratic Green Party, and the killing of a journalist -- have been attributed to Kagame's government. (Recall too the subject of a recent guest post, the arrest and detention of a U.S. attorney who was helping a would-be Kagame electoral opponent.)
Yesterday, in an interview with National Public Radio, Kagame denied allegations of impropriety. The interview was a troubling window into Kagame's administration, one in which nearly anything can be done with impunity, a lesson that U.N. Human Rights Committee member Ruth Wedgood, in an EJIL Talk! commentary posted on Sunday, has argued was learned as a result of

the West's failure to address Tutsi violations of the laws of war.

Responding in the NPR interview to criticism over the lack of opposition participation in the election, Kagame implied that there had been no opposition at all, or perhaps that the participation of Rwandan citizens in the electoral process did away with the need for organized political opposition. He said:

Well we've had a lot of criticisms indeed, most of which is just very unfair and have no basis. What we've done wouldn't have been successful if there had not been participation of Rwandans.

Kagame also diminished the responsibility of a ruling party to allow for opposition:

If other leaders are weak or there is no track record or, this is not something that we should be held responsible for. We should be held responsible for what we are doing or what we are not doing.

Most troublingly, Kagame stated:

What Rwanda suffers most is that it's a poor country, and when a country is poor, when a country is developing, there is that tendency for it to be described as undemocratic . . . I don't accept that. We don't accept that. So our future is about unity, stability, development, prosperity for our people, good governance, and so on and so forth.

Despite Kagame's total denial of the label "undemocratic," democracy notably fails to make the list of Kagame's major goals. The rhetoric that democracy is a luxury only available to the developed world, coded in unassailable terms of anti-imperialism, does not bode well. While Kagame has presided over a transition from horrific conflict to relative stability, it begs the question at what cost.
When asked to respond to other labels sometimes ascribed to him -- such as "authoritarian leader with a vision," or "benevolent dictator" -- Kagame replied ominously:

I think this is said by few, but very loudmouthed, people.

The NPR interview doesn't provide much hope that such dissenters will have a space to voice their opinions, let alone form opposition groups, during the next Kagame term. As Wedgwood wrote, and Opinio Juris blogger Kevin Jon Heller agreed, the United States needs to reevaluate its relationship to Rwanda.
In short, the international community needs to pressure Kagame to move away from a platform of unity and towards one that emphasizes civil liberties.

Write On! Untold war crime trial stories

(Write On! is an occasional item about notable calls for papers.) From our Opinio Juris colleague Kevin Jon Heller, news that papers are being sought for what promises to be a fascinating event:
The conference, entitled Untold Stories: Hidden Histories of War Crimes Trials, will be held October 15-16, 2010, at the University of Melbourne Law School in Australia. Sponsoring the conference is the law school's Asia Pacific Centre for Military Law (logo below left). Organizers are Kevin, who's a Senior Lecturer at the law school, along with Dr. Gerry Simpson, Centre Director and a law professor both at Melbourne and the London School of Economics; Dr. Tim McCormack, Melbourne law professor and the Centre's Foundation Director, whom the Office of the Prosecutor of the International Criminal Court has named its Special Adviser on International Humanitarian Law; and Dr. Jennifer Balint (right), an expert on genocide and state crime at Melbourne's School of Social and Political Sciences. Confirmed speakers for this effort to examine less well-known aspects of war crimes trials, with an eye to publication of a conference volume, include our colleagues Mark Drumbl (Washington & Lee) and Larry May (Vanderbilt).
Organizers explain:

As international criminal law matures, there has been a return to history. Intriguing research agendas have focused on the origins of international criminal law in the repression of piracy or slave-trading and on the institutional innovations found at Versailles and The Hague. Meanwhile, familiar landmarks are being revisited in order to clarify ongoing doctrinal debates (aggression at Nuremberg, conspiracy at Tokyo, and so on). Alongside all of this is increased interest in less familiar war crimes trials, both international and domestic.
The idea behind this symposium is to uncover and explore some of the less well-known – perhaps even obscure – war crimes trials. As an example, Kevin Heller, one of the organizers, will be presenting a paper on the twelve Nuremberg Military Tribunals held under Control Council Law No. 10. There will also likely be papers on the war crimes trials held in Bangladesh after the secession, on the recent genocide trial in Ethiopia, and on the post-war trials under Australian jurisdiction in the Far East.

An abstract of 300 to 500 words, plus a short CV, should be submitted no later than the deadline of May 30, 2010, to Professor Simpson c/o Centre Administrator Cathy Hutton at c.hutton@unimelb.edu.au. Questions should be directed to Kevin at kheller@unimelb.edu.au.

Answer to State Party Puzzler

Answer to puzzler above:

The 107th state party to the Statute of the International Criminal Court is Surinamand the 108th is Cook Islands. Each took the step by way of treaty accession nearly a year ago, on July 15 and 18, respectively.

As our Opinio Juris colleague Kevin Jon Heller has pointed out, with the addition of Suriname last year and Chile this week, "every country in South America is now a a member of the ICC -- a significant accomplishment." And as our commenter Deborah points out below, the accession of Cook Islands was "a very important step to redress the under-representation of Asia and the Pacific in the ICC system." (Thanks for helping us give a correct answer to this puzzler, Deborah!)

Why subject legal thought to SurveyMonkey?

Regarding the most-influential-legal-thinker poll that Fiona describes below, the devious among us might wonder whether Brian made his entered-profession-by-1960s cutoff with the devilish purpose of generating feminist buzz.
On reading it last night I myself set to pounce -- to e-mail Brian to find out how Catharine A. Mackinnon (right), to name one unquestionably influential 20th C. legal thinker -- had been omitted. Alas, I learned from WikiPedia that though she's but a few years younger than nominee Bruce Ackerman, she seems not to have earned her J.D. till well after him. No surprise; later entry into one's profession is a hallmark of women's progess.
Even considered within its own time frame, the poll is sadly Anglo-Amero-centric. In a comment to Fiona's post Hannah Arendt (left) was rightly nominated by our colleague Kevin Jon Heller. In global circles the name of my colleague Mireille Delmas-Marty (below) surely would surface. I know others will have other names.
There are so many women and men who've influenced our legal thinking. Do we really need one man's list to tell us who they are?

An IntLawGrrls hat tip ...

... to our Opinio Juris colleague Kevin Jon Heller, for his hat tip to IntLawGrrls, in the course of posting on wronging rights and Stop Genocide, 2 blogs that happen to be run by women.

50 Years of Peace (Symbol)

Thanks to our Opinio Juris colleague, Kevin Jon Heller, for alerting us to the 50th birthday this Good Friday of the peace symbol. It made its debut when "thousands of British anti-nuclear campaigners set off from London's Trafalgar Square on a 50-mile march to the weapons factory at Aldermaston," England. Among the organizers was the Campaign for Nuclear Disarmament, which developed the symbol. Still in the nonproliferation fight, CND's planning a march to the same bomb factory this coming Easter Monday.

A New Genocide Statute: Above & Beyond

Genocide is a modern word for an ancient crime. The term “genocide” was originally coined by Polish jurist Raphael Lemkin (right), who, after learning of the Armenian massacre of World War I, campaigned tirelessly for the drafting of a multilateral treaty prohibiting the crime. Despite his efforts, it took the events of World War II to compel the international community to finally bring Lemkin’s project to fruition. The Charters of the Nuremberg and Tokyo Tribunals did not include genocide as an enumerated crime; instead, they provided for the prosecution of war crimes, crimes against humanity, and crimes against the peace. However, the Nuremberg indictment did charge the Nazi defendants with committing genocide, which it defined as

the extermination of racial and national groups … in certain occupied territories in order to destroy particular races and classes of people, and national, racial or religious groups, particularly Jews, Poles, and Gypsies.

Further, the Judgment clearly addressed acts that would amount to genocide under the contemporary definition of the crime.

Following that Nuremberg Judgment in 1946, the United Nations General Assembly (below right) took up the matter of genocide and passed a Resolution (96(I)) confirming that genocide constitutes a crime under international law, the punishment of which is a matter of international concern. The unanimous Resolution also recommended that the United Nations draw up a draft convention on genocide to be submitted to the full General Assembly for signature and ratification. The Secretary-General began work on a draft Convention in 1947. This draft was passed to an ad hoc Committee of the Economic and Social Council (ECOSOC) and then to the United Nations General Assembly, which adopted the Convention on December 9, 1948. The Convention entered into force in January 1951 and, to date, it has been ratified by 133 States.

Throughout this drafting process, the provisions concerning the element of intent (mens rea), the enumerated protected groups, the inclusion of cultural genocide, and application of universal jurisdiction received the most intense debate. With respect to the latter feature, unlike other international criminal law (ICL) treaties, the Genocide Convention does not obligate state parties to exercise universal jurisdiction over acts of genocide. Instead, the treaty obligates state parties to assert jurisdiction over genocide committed on their territories pursuant to the classic territorial principle. The Convention also contemplates the existence of a permanent international tribunal, which was a mere twinkle in the eye of internationalists at the time the Genocide Convention was drafted. Specifically, the Genocide Convention at Article VI provides that:

Persons charged with genocide or any of the other acts enumerated in article III [conspiracy, incitement, attempt, or complicity to commit genocide] shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Notwithstanding the treaty's more limited jurisdictional regime, it is widely accepted that genocide is also subject to universal jurisdiction as a matter of permissive CIL, exemplified by the prosecution of Adolph Eichmann by Israel (right).

The United States signed the Genocide Convention on December 11, 1948, but did not ratify it until October 14, 1988. Although initially supportive of the treaty, the United States experienced a resurgence during the Cold War years of ideas that viewed international treaties as threats to American sovereignty. The American Bar Association (ABA) was one of the most outspoken opponents of ratification, arguing that human rights issues were “essentially a domestic matter” and were therefore not “properly the subject of negotiations with a foreign country.” Additionally, the ABA believed that ratification of the treaty would threaten the federal nature of the United States by establishing a crime of genocide under federal law, which, it argued, would undercut a traditional domain of state law.

After years of failed attempts to urge the Senate to ratify the treaty, the NGO community that comprised the umbrella Ad Hoc Committee on Human Rights and Genocide Treaties began to make progress. In 1984, President Ronald Reagan (left) became a champion of the cause, urging “early Senate action on genocide in order to assist [the United States’] efforts to expand human freedom and fight human rights abuses around the world.” By the time the treaty was finally ratified in 1988, Senator William Proxmire (D-Wisconsin) (below left), a major proponent of ratification and for whom the treaty legislation was named, had delivered over three thousand speeches on the Senate floor concerning the genocide treaty—one a day for nineteen years. As he signed the implementing legislation into law on November 4, 1988, President Reagan acknowledged the historical importance of the United States’ accession to the Genocide Convention when he said he was “delighted to fulfill the promise made by Harry Truman to all the people of the world—and especially the Jewish people.” (For this history, see William Korey's 1997 article, The United States and the Genocide Convention: Leading Advocate and Leading Obstacle.

Congress originally codified the prohibition against genocide in U.S. statutory law at 18 U.S.C. § 1091, which states that the crime of genocide has been committed when a person, “whether in time of peace or in time of war” and

with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such—

(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group.…

The statute originally applied only to acts of genocide that occurred within the United States or to acts that were perpetrated by a U.S. national (pursuant to both the territorial and nationality principles of adjudicative jurisdiction). In December 2007, Congress, having earlier in the year heard testimony from, among others, IntLawGrrl Diane Orentlicher, expanded the statute. (Diane's October 2007 testimony to a House of Representatives subcommittee is here; she'd testified before a Senate subcommittee 'way back in February 2007. Our Opinio Juris colleague Kevin Jon Heller posted on this development here.)

By dint of the so-called Genocide Accountability Act of 2007, the proscription now covers situations in which the perpetrator

► is a permanent resident alien in the United States,

► is a stateless person, or

►is found, or brought into, the United States, even if the act occurs outside the United States.

This more fully implements the principle of universal jurisdiction. Perhaps ironically, Republican administrations have made the biggest strides in domesticating the international prohibition against genocide in U.S. law through ratification of the treaty and the enactment and then expansion of the domestic implementing legislation.

The United States has historically been reticent to utilize the principle of universal jurisdiction with respect to human rights crimes rather than terrorism, even with the statutory authorization (and arguably treaty obligation) to do so. The case against Liberian Chuckie Taylor presents a first effort, as earlier blogged here and here. It remains to be seen whether this amendment will make any difference in actual practice.