The U.S. Says It Is Not Its Goal to Undermine the ICC

At a recent panel discussion at the NYU Center for Global Affairs on the Challenges and Future of International Justice, Harold Hongju Koh, Legal Advisor to the Department of State (left) (photo credit) stated that it was not the policy of the United States to frustrate the object and purpose of the Rome Treaty.

Koh's statement came in response to a comment by Sang-Hyun Song, President of the ICC (below right), about the United States' "positive engagement" with the Court. In invoking President Barack Obama's national security strategy promoting the end of impunity and the promotion of justice as moral imperatives and stabilizing influences in international affairs, Koh stated:

What you quite explicitly do not see from this Administration is U.S. hostility towards the Court. You do not see what international lawyers might call a concerted effort to frustrate the “object and purpose” of the Rome Statute. That is explicitly not the policy of this Administration. Because although the United States is not a party to the Rome Statute, we share with the States Parties a deep and abiding interest in seeing the Court successfully complete the important prosecutions it has already begun.

In addition to explicitly renouncing any such policy to frustrate the object and purpose of the ICC Statute, Koh noted that the Obama Administration had "ended the hostility and the harsh rhetoric" vis-a-vis the Court and pledged support for the Court's ongoing prosecutions.

These comments raise the question of whether Koh has said the magic words necessary to essentially withdraw a 2002 letter by which a U.S. official purported to "unsign" the Rome Treaty. Although the impact of the United States' purported "unsigning" of the Rome Treaty establishing the ICC remains contested, there is little question that Koh's remarks address the most important implication that some have read into the Bolton letter: that it was the policy of the U.S. to engage in a concerted effort to frustrate the "object and purpose" of the Court.

By way of background, President William J. Clinton in the waning days of his Administration signed the Rome Treaty on December 31, 2000, the final day it was open for signature. At that time, President Clinton did not recommend that his successor submit the Treaty to the Senate for advice and consent until the United States’ fundamental concerns were addressed, most notably the ability of the Court via an unaccountable prosecutor to exercise jurisdiction over the nationals of non-states parties. The subsequent retraction of this signature purportedly was accomplished by a terse letter from John Bolton, when he was President George W. Bush’s Undersecretary for Arms Control and International Security, to Kofi Annan, then-Secretary-General of the United Nations. The letter stated:

This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the repositary's status lists relating to this treaty.

This indication of an intent not to ratify the treaty was said to be needed to remove any obligation of the United States to refrain from acting contrary to the object and purpose of the treaty as required by its signature of the treaty. Article 18 of the Vienna Convention on the Law of Treaties states:

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty...

(Although the United States has signed but not ratified the Vienna Convention, U.S. officials regularly indicate that they accept that much of the Convention reflects binding customary international law). Pierre Prosper, then U.S. Ambassador for War Crimes Issues, later indicated that the United States would not be in a position to assist the Court's investigations. See here and here for our prior discussions of efforts to "unsign" treaties, a common but inapt metaphor given the actual content of the Bolton letter and the terms of the Vienna Convention. (Incidentally, the U.N. website still lists the United States as a signatory to the Rome Treaty with a footnote reproducing the text of the Bolton letter.)

By formally indicating an intent not to ratify the Rome Treaty, the U.S. was thus free to take measures that might be interpreted as "acts which would defeat the object and purpose of the treaty" by undermining the treaty regime—such as the passage of the American Servicemembers Protection Act or the pursuit of Article 98 immunity agreements with other states—without running afoul of its Article 18 obligations. Although the U.S. has now renounced any intention or policy to undermine the Court, it is no doubt premature to assume the United States intends to ratify the treaty, and, of course, the statement does not imply that it will.

In addition, Koh's statement at NYU made other key points. Specifically, Koh:

► Outlined the Obama’s administration’s “integrated approach” to international criminal justice, which involves

• support for the ad hoc tribunals,


• providing "steadfast assistance" to rule of law initiatives around the world,


• engaging the Assembly of States Parties, and


• cooperating with the ICC in ways that are consistent with U.S. law (notably the American Servicemembers Protection Act), such as by public diplomacy.

► Restated the United States' support for all of the Court's prosecutions that are currently under way.
► Raised lingering and pressing concerns about the aggression amendments to the ICC and particularly the interaction between Article 121(5), which applies to the aggression amendments, and the opt-out provision adopted in Kampala, which allows states parties to opt out of the aggression amendments (See here and here for our prior posts on this).
► Highlighted several additional challenges facing the system of international justice:

• wrapping up the work of the ad hoc tribunals,


• the need for the ICC to deal with a growing case load, and


• arresting fugitives from all criminal tribunals.

For more on U.S. cooperation with the ICC, see prior posts here and here. The full text of Koh's statement at NYU is available here.

All our best to Diane Orentlicher as she heads to State's Office of War Crimes Issues

It is IntLawGrrls' great honor to announce that one of our longtime members, Diane Orentlicher, has just started as Deputy, Office of War Crimes Issues, at the U.S. Department of State!
An internationally renowned expert in international criminal law, Diane will work with Stephen J. Rapp, the former Prosecutor at the Special Court for Sierra Leone who assumed his duties as Ambassador-at-Large for War Crimes Issues at the beginning of September. (prior post) She'll be an integral player in the work of the office, which, as stated on its website:
► "advises the Secretary of State directly and formulates U.S. policy responses to atrocities committed in areas of conflict and elsewhere throughout the world";
► "coordinates U.S. Government support for war crimes accountability in the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, Iraq, and other regions where crimes have been committed against civilian populations on a massive scale"; and
► "works closely with other governments, international institutions, and non-government organizations, and with the courts themselves, to see that international and domestic war crimes tribunals succeed in their efforts to bring those responsible for such crimes to justice."
Diane will be leaving her position as Professor of International Law and Co-Director of the Center for Human Rights and Humanitarian Law, Washington College of the Law, American University, Washington D.C., which has posted on her appointment here. She's also served inter alia on the boards of the Open Society Justice Initiative and (along with IntLawGrrl Beth Hillman and yours truly) of the National Institute of Military Justice. Diane served as an independent expert on combating impunity by September 2004 appointment of then-U.N. Secretary-General Kofi Annan.
We at IntLawGrrls will miss our colleague-turned-guest/alumna, whose transnational foremother, "Beatrice," was the inspiration for our Women at Nuremberg series. We look forward to all good things at State.
To all of us, Diane writes:

'It's been an honor to be a small part of an incredible project. I've learned so much from the smartest 'Grrls around -- and will remain an avid reader of IntLawGrrls' sensational posts.'

Heartfelt congratulations, Diane!

U.N. set to create new women's entity

The General Assembly of the United Nations voted Monday in favor of a draft resolution consolidating all U.N. agencies and divisions addressing women's issues into a single entity.
Called for is the amalgamation of the following:
► the Office of the Special Adviser on Gender Issues (OSAGI);
► the Division for the Advancement of Women (DAW);
► the U.N. Development Fund for Women (UNIFEM); and
► the International Research and Training Institute for the Advancement of Women (INSTRAW).
The move was partly driven by the lack of a centralized voice for gender issues in the U.N. labyrinth. As Secretary-General Ban Ki-moon stated:

'U.N. gender architecture lacks a recognized driver. It is fragmented. It is inadequately funded, and insufficiently focused on country-driven demands.'

To remedy such fragmentation and underfunding, the entity is expected to have a budget of approximately $ 1 billion and its own Under Secretary-General, who will report directly to the Secretary-General.

Tasks for the entity are much less clear. The draft resolution only states that the consolidation will "take into account the existing mandates" of the agencies to be merged.

Last-minute opposition to the resolution by member states such as Cuba, Egypt, Iran and Sudan allegedly resulted in the absence of a specific mandate for the composite entity -- an absence that led Oxfam to label such opposition "deplorable." Secretary-General Ban needs quickly to draft a mission statement, organizational chart, funding plan, and executive board proposal for General Assembly approval.

The consolidation initiative first had been proposed amid discussions about U.N. reform, which began during the tenure of former Secretary-General Kofi Annan. Advocacy around this week's resolution was led by a group called Gender Equity Architecture Reform. GEAR now is pressing for the timely appointment of an under secretary-general for the entity as well as full funding.

On June 13

On this day in ...
… 1966, the U.S. Supreme Court ruled in Miranda v. Arizona that police must inform suspects of their rights before questioning them. Chief Justice Earl Warren wrote in his opinion for the Court:

In the absence of other effective measures, the following procedures to safeguard the Fifth Amendment privilege must be observed: the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.

This section of the opinion has evolved into what's known as the Miranda warnings. developed to protect the individual's Fifth Amendment right against self-incrimination." (credit for photo of law enforcement file on petitioner Ernesto Miranda)
… 1944 (65 years ago today), U.N. Secretary-General Ban Ki-moon (below left) was born in Korea. The 8th Secretary-General, Ban succeeded Kofi Annan on January 1, 2007. (photo credit) Ban's official priorities are development, climate change, human rights, U.N. reform, ending the Darfur conflict, attaining peace in the Middle East, ending nuclear proliferation and increasing disarmament. He has specifically addressed the Israeli-Palestinian conflict, condemning recent violence in the Gaza Strip. As we've posted, he has called for an end to violence against women.

(Prior June 13 posts are here and here.)

Another ICC unsigning

Among the Bush Administration's early post-9/11 acts -- an act taken fewer than 4 months after the opening of the detention camp at Guantánamo -- was to "unsign" the ICC treaty.
"Unsign" is a bit of a misnomer; in point of fact, what happened was that John R. Bolton, then U.S. Under Secretary of State for Arms Control and International Security, sent the following letter of repudiation to Kofi Annan, then U.N. Secretary-General:

This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty.

The unprecedented act stirred controversy, as our colleague Edward T. Swaine noted in his super 2003 article titled, simply, Unsigning. The act also stirred emulation: soon Israel also repudiated its ICC signature, in words virtually identical to Bolton's above.
And now there are 3.
At the end of August current Secretary-General Ban Ki-moon received Sudan's "unsigning," again lifted nearly verbatim from Bolton's May 6, 2002, letter:

I, Deng Alor Koul, Minister for Foreign Affairs of the Republic of Sudan, hereby notify the Secretary-General of the United Nations, as depositary of the Rome Statute of the Criminal Court[,] that Sudan does not intend to become a party to the Rome Statute. Accordingly, Sudan has no legal obligation arising from its signature on 8 September 2000.

What all 3 states seem to fear is the Vienna Convention on the Law of Treaties. It provides in Article 18:

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
(b) It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

This 1969 Treaty on Treaties, many provisions of which are deemed customary international law binding even upon nonparties like the United States, thus takes a midway position. It is more constraining than would be a no-effect-whatsoever position, yet far less constraining, as Swaine notes, than the civil law's culpa in contrahendo principle by "which liability may be imposed for bad faith conduct during negotiations." States that repudiate their signature, or unsign, endeavor to erase even the "interim obligation" of Article 18.
Let us assume arguendo that this practice has, or should, become a norm of international law. Even so the practice cannot liberate nonparty states from all concern.
As I've detailed here and here, in a few circumstances the Rome Statute permits ICC exercise of jurisdiction against nationals of a nonconsenting, nonparty state. Among those circumstances is referral of a matter by the U.N. Security Council pursuant to Article 13(b) of the Rome Statute. Such a referral -- Resolution 1593 (2005), adopted by a vote of 11-0, with Algeria, Brazil, China, and the United States abstaining -- launched the ICC investigation into atrocities in the Darfur region of Sudan. That investigation led Prosecutor Luis Moreno-Ocampo 2 months ago to seek an international arrest warrant against Sudan's President Omar al-Bashir. From that warrant's charges -- genocide and crimes against humanity in Darfur -- Sudan's "unsignature" affords Bashir no refuge.

(Coming Wednesday: The ICC, Sudan, and the Security Council)

On this day

On March 31, ...
... 2005, the U.N. Security Council referred "the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court." In its Resolution 1593, the Council acted pursuant to coercive powers granted it in Chapter VII of the U.N. Charter. As posted here, here, here and here, the prosecution's named suspects it believes responsible for international crimes in that region of Sudan, but Sudan's government so far has refused to hand them over to the ICC. Earlier this month former U.N. Secretary-General Kofi Annan questioned whether all in the international community "have yet fully lived up to" their "responsibility -- notably in Darfur." (credit for photo above of Security Council meeting room)
... 2004, the International Court of Justice, in Avena and Other Mexican Nationals (Mexico v. United States), ruled that the United States had violated the Vienna Convention on Consular Relations by failing to inform noncitizen detainees of their right to contact their consulate. The ICJ called upon the United States to provide review and reconsideration of capital convictions and sentences at issue, as our colleague William Aceves explained in an ASIL Insight. Last week the U.S. Supreme Court decided a case arising out of the Avena matter -- Medellín v. Texas, about which we've posted here, here, here, and here --adversely to defendant/respondent. Our colleagues at Opinio Juris, and their assorted guests, produced an "insta-symposium"; hope to comment more here after digesting the 44-page judgment. credit here for above left photo of ICJ courtroom and here for photo at right of Supreme Court's courtroom)

Any "cooler heads" in Kenya?

A week ago Kenya's Justice Minister, Martha Karua (right), predicted the political crisis that's roiled her country in the weeks following a disputed Presidential election would settle down. Karua told the BBC she expected that "cooler heads" would prevail: "We expect that eventually everybody will come to their senses, realise that we've got to learn to live with each other."
Sadly, her prediction's proved premature.
Here's the latest news from Nairobi: "Nine people were hacked or burned to death in new violence linked to Kenya's political crisis on Tuesday, as former UN secretary general Kofi Annan arrived to revive mediation efforts."

Since violence erupted in the wake of the December 27, 2007, balloting, more than 700 Kenyans have been killed. Another 250,000 have fled their homes.

Opposition leader Raila Odinga's called it a "constitutional crisis," a contention that our colleague Mary Dudziak, author of a forthcoming book on Thurgood Marshall's role in drafting the Kenya Constitution, has analyzed here.

Odinga and his rival, incumbent President Mwai Kibaki, came together in the same room last week for the 1st time since the election, to vote on who'd become Speaker of Parliament. Though Odinga's Orange Democratic Movement won, the vote was close, and the victory did not stop the turmoil.

Indeed, yesterday an Odinga spokesman said the movement had "sent a formal complaint to the International Criminal Court in The Hague notifying the panel about the charges that authorities committed crimes against humanity during the crackdown on demonstrations" -- a charge the government met by saying it'd be complaining to the ICC that the oppostion was "involved in planning 'mass genocide.'"
Annan, a 2001 Nobel Peace laureate (right), was to have arrived in Nairobi to launch mediation talks a week ago but delayed on account of flu. Now that he's there, he's got his work cut out for him.

On September 16, ...

... 1927 (80 years ago today), Dr. Sadako Ogata was born in Tokyo, Japan. After earning her B.A. degree from the University of the Sacred Heart in that city, Ogata moved to the United States, where she earned an an M.A. in International Relations from Georgetown University and a Ph.D. in Political Science from the University of California, Berkeley. Long prominent in academia -- she served as Dean of the Faculty of Foreign Studies at Tokyo's Sophia University -- Ogata's had a long, distinguished U.N. career. A small sample of posts: U.N. High Commissioner for Refugees (1991-2000); U.N. Commission on Human Rights (1982-1985); and co-chair, U.N. Commission on Human Security (2001-2003). She's pictured at right presenting that Commission's report, along with co-chair Amartya Sen, to then-Secretary-General Kofi Annan.
... 1928, Patricia McGowan was born in "the manufacturing town of Torrington, Connecticut," where she "spent her summers working in the brass mills." She graduated 1st in her class at Connecticut College for Women, then became 1 of a very few women students at Yale Law School. On earning her J.D. she worked in the chambers of Judge Jerome Frank -- the 1st woman law clerk at the U.S. Court of Appeals for the 2d Circuit. After a 10-year hiatus as she and her husband raised a family, she returned to law practice and public service; in particular, on matters of criminal justice and mental health. In 1979, Patricia M. Wald became the 1st woman to Judge on a U.S. Court of Appeals, serving as the D.C. Circuit's Chief Judge from 1986 to 1991. On retirement from the federal bench, she was a Judge on the International Criminal Tribunal for the former Yugoslavia (1999-2001). Since then she's served on the President's prewar intelligence commission, and is on the board of a number of groups concerned with international law.
... 1950, U.S. Rep. Jo Ann Emerson (R-Mo.) was born in Bethesda, Maryland.
... 1987 (20 years ago today), the Montreal Protocol on Substances that Deplete the Ozone Layer was adopted; it entered into force on January 1, 1989. Nearly all the world's countries now are states parties to this protocol and, in large part, to subsequent instruments that have amended and added to it. For details on why it's sometimes called the "most successful international environmental treaty," see the "When A Treaty Works" post by our Opinio Juris colleague Duncan Hollis.

On August 14, ...

... 2000, by its Resolution 1315, the U.N. Security Council authorized Secretary-General Kofi Annan to negotiate, with the government of Sierra Leone, the establishment of a mixed national-international tribunal for adjudication of crimes arising out of the civil war of the 1990s. Established 2 years later was the Special Court for Sierra Leone. As posted here, here, and here, the Court issued its 1st 2 judgments earlier this summer.
... 1929, U.S. Rep. Louise Slaughter (D-N.Y.) was born in Lynch, Kentucky.