United States' cooperation & the ICC

(Part 1 of a 2-part series; Part 2 is here)

The International Criminal Court is almost entirely dependent on state cooperation to effectuate its mandate to bring to justice individuals responsible for committing “the most serious crimes of concern to the international community as a whole.” State cooperation is also central to the evolving relationship between the ICC and the United States.
President Barack Obama entered office with a pledge to temper the prior administration’s hostility toward the ICC. Since then, he has been conducting a high-level review of U.S. policy toward the ICC. Although no official position has been announced, subsequent public statements by:

• Secretary of State Hillary Rodham Clinton (and here) (above left),
• U.S. Ambassador to the United Nations Susan Rice (and here) (below right),
• Ambassador-at-Large for War Crimes Issues Stephen J. Rapp (and here & here), and
• Legal Advisor Harold Hongju Koh (and here)

have since confirmed that the United States stands ready to re-engage with the Court.
The United States, along with other states, has rendered a range of formal and informal assistance to the ad hoc tribunals. Over the years, the United States has:

• supplied technical assistance
• seconded personnel,
• utilized diplomatic and economic sanctions,
• frozen assets,
• shared evidence,
• offered rewards for information leading to the arrest or conviction of indictees, and
• authorized and participated in multilateral military efforts to track and apprehend suspects.

As such, the United States has extensive experience using its intelligence capabilities, criminal justice expertise, and military muscle to further international justice.
Even as a non-state party, the United States is poised to continue to play this role vis-à-vis the ICC in light of the détente between the United States and the Court. As will be discussed in tomorrow's post, however, aspects of domestic law render a whole range of forms of assistance potentially unlawful.

Look On! War Don Don

(My thanks to IntLawGrrls for the opportunity to contribute this Look On! guest post about my film, War Don Don)

In the summer of 2006 I sat behind bulletproof glass in Freetown, in the observer gallery of the Special Court for Sierra Leone, an international war crimes "hybrid tribunal," created jointly by the United Nations and the government of Sierra Leone. At the time I was working not as a filmmaker, but as a law student and legal intern for a defense team. I was assigned to work on the case of Alex Tamba Brima, among three members of the rebel Armed Forces Revolutionary Council charged with crimes against humanity and war crimes stemming from the 1990s civil war in that West African country.
Yet I found myself drawn to observe the trial of the leader of a different warring faction.
From my seat in the gallery of the trial involving members of the Revolutionary United Front, I first observed Issa Sesay, a former rebel leader accused of crimes against humanity and a key player in the peace negotiations – and I was fascinated by the range of roles that one man could assume amidst the intensity of such a brutal conflict. I also came to know lawyers on both the prosecution (including prosecuted by Stephen J. Rapp, who since has become the U.S. Ambassador-at-Large for War Crimes Issues) and the defense. They were some of the brightest and most passionate advocates I have ever met.
I became convinced that the story of Sesay's trial needed to reach a larger audience. Combining my legal experience in criminal defense with my background as a filmmaker, I realized that a documentary film could communicate the complexities of Sesay's rise and fall from power – and its implications for a country still reeling from the horrors of civil war.
The result is War Don Don, an 86-minute film that has won awards at festivals and that, as detailed in the post above, will air this this week on HBO2. War Don Don tells the story of Sesay (depicted in the poster above right), whom prosecutors said is a war criminal, guilty of heinous crimes against humanity, and whom defenders said was a reluctant fighter who protected civilians and played a crucial role in bringing peace to Sierra Leone. (poster credit) The film puts international justice on trial, and finds that in some cases the past is not just painful, it is also opaque.
During the process of editing, we frequently made reference to Akira Kurosawa's Rashomon (1950); that is, to the ideas that
► Film (and trials) can put multiple narratives in tension;
► Truth can be unsettled;
► Perception influences memory; and
► Historical fact may be hard to prove, particularly in a trial.
On that note, we were also inspired by Andrew Jarecki's film Capturing the Friedmans (2003), which reminded that the idea that truth can be elusive, that people can play many different roles in the same story, and that no human being can be entirely defined by the horrible things that he or she may have done.
I knew we were done editing when different people took away different things from the film, when the film acted like a Rorschach test of sorts. Different audiences will come to their own conclusions – one of the greatest joys of documentary filmmaking is the debate that arises from having to sort through the tensions within and between conflicting stories.
I hope audiences enjoy having some of their assumptions tested and coming to examine their own reactions to controversial issues.

Kampala as cause to celebrate

(Part 3 of a 3-part series)

Celebration proved the closing theme of the 4th International Humanitarian Law Dialogs.
The final speaker at the recent upstate New York conference was William A. Schabas, Professor of International Human Rights Law and Director of the Irish Centre for Human Rights at the National University of Ireland-Galway. He asked whether the International Criminal Court Review Conference this summer in Kampala, Uganda (above left; credit), was "a moment of celebration or a disappointment." Schabas then answered his own question:

I think it is a great accomplishment.

The 1998 Rome diplomatic conference, Schabas recalled, had ended with a compromise on the extent of crimes the ICC may hear. Immediately operative were 3 core international offenses: genocide, crimes against humanity, and war crimes. Left for another day was a 4th: the offense of offensive warmaking, called crimes against peace in the Nuremberg era and known today as the crime of aggression. Article 5 of the Rome Statute grants the ICC jurisdiction over aggression, but postpones actual prosecution until adoption of a provision "defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime."
Negotiators worked on both definition and conditions for the next dozen years before the Assembly of States Parties adopted a package of proposed amendments, designed to give the ICC power to adjudicate allegations of aggression, at Kampala.
"At Kampala, it was not obvious even till the final minutes of the conference that it was going to succeed," said Schabas. "These were adopted in the final minutes of the conference, by consensus. If somebody had called for a vote, the votes probably weren’t there." (credit for photo from Schabas' Kampala blog, depicting him, center, "discussing the amendments to article 8 with the Bulgarian delegation")
The central achievement was the definition of aggression in proposed Article 8 bis. "It will not be immune to judicial interpretation," Schabas said, and predicted "a liberal approach to its application."
Strong supporters of criminal punishment for aggression have expressed concerns that the Kampala package affords too many ways to avoid implication in that crime. (For details on the intricacies of these amendments, see our crime of aggression series.)
Agression, Schabas allowed, "may never be prosecuted, which may not necessarily be a bad thing. It simply confirms a deterrent effect."
Schabas sought to allay concerns about obstacles to entry into force, including a requirement of ratification by 30 states and further review in 2017. "I don’t think they’re actually going to be very difficult – not anywhere near as difficult as the obstacles appeared in 1998, of getting the 60 ratifications." (This latter milepost was reached in April 2002, so that the Rome Statute entered into force fewer than 4 years after its adoption. Today 113 of the United Nations’ 192 member states belong to the ICC. Nonparties include China, India, Russia, Turkey, and, as discussed in yesterday’s post, the United States.)

Nor, in Schabas' opinion, does it seem likely that political leaders of states parties will exercise the possibility of opting out of exposure to ICC pursuit should they be accused of aggression.
Endorsing a prediction that, as posted, ICC Judge Hans-Peter Kaul made earlier in the Dialogs, Schabas said:

I think that within 6 years, 4 months, and a few days we will have a court with jurisdiction over aggression, capable of prosecuting the crime.

This is an important step for international criminal justice, Schabas maintained, along a trail blazed by Robert H. Jackson, Chief U.S. Prosecutor at the Trial of the Major War Criminals held in Nuremberg after the Allies defeated Nazi Germany:

Jackson saw the link between war and other crimes, that war is at the center of it, that war is responsible for it. To the extent that the adoption of that amendment revives this, that is good.

On the trail that Jackson blazed lies the question of state responsibility. According to Schabas, it’s a question that was entertained in the proposal of U.S. President George H.W. Bush and British Prime Minister Margaret Thatcher, following Iraq’s invasion of Kuwait, to set up a tribunal competent to hear charges of aggression. But that proposal never was implemented, and the question of state responsibility was not addressed by the international criminal fora that were set up after Cold War.
Why might some be less eager today to prosecutor perpetrators of aggression?

Schabas proffered 2 possible answers:
► 1st: "We have become a be more militarized than we should be." As posted yesterday, in an earlier Dialogs speech Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes Issues, had stressed, as a reason for caution in implementing the current Kampala aggression amendments as they now stand, that military intervention is at times necessary. Schabas replied:

Sometimes, yes. But nor would I exaggerate the importance of that, because war brings atrocities, inevitably.

►2d: Some civil society organizations seemed not to appreciate the significance of making aggression a crime punishable by the ICC. Schabas recalled: "I saw a banner that said, ‘Civil Society Welcomes Stocktaking,’" another aspect of the Kampala Conference. "Civil society should have welcomed the amendment on aggression."

Echoing Judge Kaul’s description of atrocities as the "excrement" of war, Schabas said of the crime-of-aggression package: "That’s the big piece. It shows that," despite some growing pains at the ICC, "we have a court that is healthy and productive and moving forward."
　
(Part 1 of this 3-part series on the 4th IHL Dialogs is here; Part 2 is here.)

The United States & the ICC

(Part 2 of a 3-part series)

For all the years of its existence, the International Criminal Court has, in effect, shared space with another occupant. Ever present, though sometimes hard to see, has been the United States of America.
The story of the ICC is also a story of U.S. foreign policy. It is a story of the relation between the world’s remaining superpower, a key proponent of the post-World War II International Military Tribunals, and today’s direct descendant of those tribunals, the ICC.
The United States was among a handful of countries to vote against the ICC Statute at the 1998 Rome diplomatic conference (above left). (credit) The United States has kept its distance ever since, sometimes quite hostilely so. Its status as a nonparty state deprived it of any vote at the 2010 Kampala Review Conference and other meetings of the ICC Assembly of States Parties. Yet the importance of the United States to the project of international criminal justice cannot be ignored.

Thus it was at the recent 4th International Humanitarian Law Dialogs at Chautauqua, New York, on "Crimes Against Peace - Aggression in the 21st Century": participants repeatedly turned to talk of the United States.
John L. Washburn, Convener of AMICC, the American NGO Coalition for the ICC, said it well:

For a country as powerful as the United States, the limitation of being a nonparty state is that instead of being the 2,000-pound gorilla, you’re the 1,800-pound gorilla in the room.

U.S. heft left its imprint on the package of crime-of-aggression amendments adopted at Kampala.
A definition forged in the years when U.S. officials had absented themselves from ICC discussions survived with little change, save for the agreement that the offense occurs only when a U.N. Charter violation is "manifest" – an adjective deemed more stringent than others considered. Even more important was the effect that concerns voiced by the United States had on amendments setting forth the paths by which the ICC may investigate and prosecute allegations of aggression.
At Chautauqua, 2 succinct critiques underscored this effect:
► "We came out of Kampala with a consensus," said former Nuremberg Prosecutor Benjamin B. Ferencz, a longstanding supporter of making the crime of aggression punishable in international criminal fora. The consensus, in his view: "Everybody can veto everything."
► Washburn again came quickly to the point. "Any country that’s paying attention can avoid jurisdiction over it for aggression," he said, adding, "I think this was probably the outcome that the United States was hoping for but not sure they could get."

(The negotiations leading to the Kampala package, now open for states’ ratification, are aptly detailed in IntLawGrrl Beth Van Schaack's new paper, on which she recently posted.)

For the official U.S. perspective, Dialogs participants turned to one of their own – former international prosecutor Stephen J. Rapp (right), since last September the United States’ Ambassador-at-Large for War Crimes Issues. Rapp, whose arrival at the State Department coincided with the return of the United States to ICC negotiations (prior posts here and here), told the Dialogs participants:

While we had been absent from the ICC, we had not been silent in the faces of crimes that shock the conscience.

Rapp cited as proof U.S. support for the Special Court for Sierra Leone (of which he used to be Chief Prosecutor), for the International Criminal Tribunal for the former Yugoslavia, and for other tribunals.
Why the rapprochement?

The reason for our involvement in the ICC is that if there’s to be an answer at the international level for the atrocities that are being committed, tonight, it will not be in the ad hoc tribunals. It will be either at the national level, where of course it’s always best, or in the ICC.

Rapp continued:

That’s where the butchers will be tried. That’s where Americans need to be supportive, to ensure its success.

(See too this transcript of a post-Kampala press conference featuring Rapp and State Department Legal Adviser Harold Hongju Koh.) Though he deemed U.S. ratification of the ICC treaty "difficult," Rapp said that "at least at this stage we want to make it possible for this institution to succeed."
As IntLawGrrls’ own Valerie Oosterveld explained in her superb year-in-review lecture at the Dialogs (left), since late last year the United States has pursued a policy of positive engagement with the ICC. Although the United States remains a nonparty state, on a case-by-case basis it makes political or diplomatic statements in support of the ICC, considers ICC cooperation requests, shares information with the ICC, and provides the ICC with witness assistance.
Rapp gave to 2 specific examples of this policy in action:
► This spring, Congress enacted the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act (prior post); and
► Just weeks ago, President Barack Obama criticized Kenya for giving safe passage to Omar al-Bashir, the Sudanese President whom the ICC seeks to arrest on charges of genocide.

► Had Rapp spoken today rather than last week, he might have added yesterday's related news; specifically, the proclamation by Secretary of State Hillary Clinton of a "new American moment" of "global leadership," and the announcement by the United States' U.N. Ambassador, Susan E. Rice, that on September 24 Obama will attend a U.N.-organized summit on Sudan, focusing on Darfur and the impending referendum on South Sudan secession.

And what of the crime-of-aggression amendments adopted at Kampala?

On this, Rapp was rather less fervid.
Rapp described the definition of aggression in proposed Article 8 bis as "one that departed significantly from Nuremberg." He cited an International Herald Tribune op-ed that another Dialogs participant – former international prosecutor Richard J. Goldstone – had written in the runup to Kampala (prior post), and warned that definitional ambiguity could invite confused constructions and could force the ICC on one side or the other of a conflict.
A particular concern, Rapp said, is that worthy military interventions might be subjected to allegations of aggression. Resounding a note that Obama had struck in his Nobel Peace Prize Lecture last year, Rapp spoke of "the debt we owe to people who went into harm’s way and who exercised force." Referring to the Nuremberg trials (right), Rapp added, "The Nazi leaders would never have been in the dock if lives were not lost."
That note stirs many in the world to unease, particularly when it is struck by a country engaged in military intervention, Rapp acknowledged. "That’s a challenge that we in Kampala had to confront," he said, "to deal with the reality in the world while signaling our desire for a world of law, a world where law can eventually displace force."
A number of participants welcomed the United States’ embrace of ICC observer status.
Noting Rapp’s reiteration of the positive-engagement policy in his Chautauqua remarks, Oosterveld, who has served as a member of the Canadian delegation to the ICC Assembly of States Parties, commented,

I felt very heartwarmed about it because I had been there in 2000 when the United States withdrew from the ICC. To hear this from Rapp was a very, very wonderful breakthrough.

Washburn nonetheless expressed concern that as events elsewhere have moved to the fore, on the matter of the ICC "there has been a certain complacency" among U.S. officials since Kampala. He warned against too great a disconnect.

Washburn’s cautionary tale?

Reminder of the dysfunction that impeded relations between the United States and others at the Rome Conference that established the ICC.

(This series on the crime of aggression and the 4th IHL Dialogs, which IntLawGrrls cosponsored, concludes tomorrow with Part 3 (here), a report on the celebratory speech that closed the Dialogs. Part 1 of this series is here.)

Kampala pix

(Another in IntLawGrrls' series of Kampala Conference posts)

Courtesy of IntLawGrrl Beth Van Schaack, the photo above of the All Africa Gala, part of the entertainment at the Review Conference of the Rome Statute of the International Criminal Court just concluded in Kampala, Uganda.
Beth also sends more photos: left, conference intervention by Stephen J. Rapp, U.S. Ambassador at Large for War Crimes Issues; left, press conference by ICC Prosecutor Luis Moreno-Ocampo;


right, screen depicting intervention by Harold Hongju Koh, U.S. State Department Legal Adviser.

Kampala Countdown – Civil Society at the ICC Review Conference – America and Americans

(As part of IntLawGrrls' series on the ICC Kampala Conference, delighted to feature another guest post from Leila Nadya Sadat)

KAMPALA, Uganda – As the Review Conference of the Rome Statute of the International Criminal Court enters its final climactic days, it is useful perhaps to think about what has been accomplished and what lies ahead.
Certainly, States and civil society have had a real opportunity to engage the Court, and the Court’s personnel have had the opportunity to hear both praise and criticism from affected communities. The Ugandan newspapers have carried daily coverage of the conference and there is a real sense of pride among Africans here that the world came to their continent for this important milestone in the ICC’s existence.
As for the amendments, last week the Belgian amendment was adopted and sent to the plenary, as this writer predicted; and while many States objected to the retention of Article 124 of the Rome Statute, others, led by Japan, argued that it was an important concession to increase ratifications, particularly in Asia, and it now appears that it will be retained with a “sunset” provision (at the fourteenth Assembly of States Parties meeting).
But of course, it is inclusion (or not) of the crime of aggression that is the critical issue and the most difficult. The statements of delegates during the opening plenary and opening sessions of the Special Working Group on Aggression demonstrated tremendous consensus on the inclusion of this crime within the Court’s jurisdiction; but divergences of views emerged as to the preconditions for the exercise of the Court’s jurisdiction. In contrast to U.S. Ambassador at large for War Crimes Issues Stephen Rapp’s very well-received remarks in the opening plenary, U.S. Department of State Legal Adviser Harold Hongju Koh delivered remarks on Friday, June 4th that were more difficult for many delegations to swallow. Koh emphasized what he thought was a lack of consensus among the delegates and imperfections in the definition of aggression set out in proposed Article 8bis. Perceptions that the U.S. delegation was present to “kill” the inclusion of aggression caused much discomfiture in the room, even though the other permanent members of the U.N. Security Council also spoke out in favor of an exclusive role of the Council in determining whether or not an act of aggression had taken place or not, including Britain and France. The latter referred to this as a “ligne rouge” that could not be crossed.
As I wrote a decade ago about the Rome Statute itself, the issue of the crime of aggression poses a clear challenge to the prerogatives of the P-5, and at the same time is linked to them through the possibility of Security Council referral (Article 13(b)) and Security Council deferral (Article 16 ). Many States and several human rights groups believe that granting the Security Council an exclusive filter will politicize the Court and oppose inclusion of aggression subject to that precondition.
H.R.H. Prince Zeid Ra'ad Zeid al-Hussein of Jordan, Chair of the Special Working Group, has had a difficult task during the past few days navigating between these two positions to forge a middle ground. A new conference paper has emerged as well as new “understandings” proposed to attempt to bridge the gap (including one attempting to underscore that the Court will really hear only the “most serious” cases), and there is cautious optimism among the leadership of the Review Conference as well as with this writer, that a compromise solution will be adopted.
One last thought:
As a member of civil society attending the ICC Review Conference and a proud U.S. national who, at the same time, was not part of the U.S. delegation (and respectfully begs to disagree with official U.S. policy on the issue of aggression) I was thinking about this interesting situation of so many Americans present in one capacity or another at this important meeting, even though the United States is not a party to the ICC, and in fact spent many years actively trying to destroy the Court.
In addition to the very large official delegation (14 members is what I have been told, although the initial rumor was that there were 25 members present), many influential U.S.-based human rights groups are present, several representatives of various foundations, a collection of assorted law professors attending in one capacity or another (including this correspondent), the American Coalition for the International Criminal Court (AMICC), the American Bar Association 2010 Task Force, the Heritage Foundation (one member of which tried to sneak in as a CICC member!), and, in his own category, former Nuremberg Prosecutor Benjamin Ferencz. I suppose this is all to be expected; the ICC as an institution represents values that American lawyers adhere to, and the Nuremberg legacy exerts a powerful influence even today. Yet, although I saw two Chinese representatives of civil society present, and representatives of other non-States Parties were there, no other non-State Party is represented to such a significant degree. This makes the contrast between the “official” U.S. delegation and the large “unofficial” grouping a noticeable one.

Days Two and Three in Kampala

(Another in IntLawGrrls' series of Kampala Conference posts)

KAMPALA, Uganda -- Days Two and Three at the ICC Review Conference have been very interesting. On Tuesday, June 1, the official program included statements by countries, intergovernmental organizations (IGOs) and nongovernmental organizations (NGOs). One statement that was listened to quite closely that of Ambassador Stephen Rapp for the United States, in which he raised several questions of concern about the ongoing discussions on the crime of aggression. The Netherlands announced that it had collected 112 pledges from 37 states to provide the ICC with financial and other assistance. For example, Australia pledged to provide 100,000 Euros to the ICC’s Trust Fund for Victims.
I also attended the final portion of the full-day Women’s Court, organized by the Women’s Initiatives for Gender Justice and held in the People’s Space tent. This portion focused on testimonies from individuals from Sudan and was chaired by Elisabeth Rehn, Chair of the Board of Directors of the Trust Fund for Victims (pictured left). I had read Halima Bashir’s book, Tears of the Desert: A Memoir of Survival in Darfur, on the flight to Kampala. In her book, Dr. Bashir describes how she – as a young Zaghawa medical doctor – treated victims of the Janjaweed militia, including schoolgirls who had been repeatedly and brutally raped. She, in turn for providing medical care for her own people, was beaten, tortured and raped by the Sudanese security forces. The three individuals speaking at the Women’s Court event described similar stories of rape, torture, killing, displacement, economic deprivation and desperate survival in Darfur. They also described how the laws in Sudan make it very difficult for rape survivors to seek justice, and how individuals suspected of supporting the ICC and other human rights defenders are targeted for detention and mistreatment in Sudan.
June 2 began with the first stocktaking exercise, on the impact of the Rome Statute system on victims and affected communities. Radhika Coomaraswamy, Special Representative of the Secretary-General on Children and Armed Conflict, gave the keynote address (pictured left). Her speech was followed by a panel discussion involving Justine Masika Bihamba of Synergie des femmes pour les victimes des violences sexuelles in the Democratic Republic of the Congo (pictured right), Elisabeth Rehn, Carla Ferstman of REDRESS, David Tolbert of the International Center for Transitional Justice, Binta Mansaray of the Special Court for Sierra Leone and Silvana Arbia of the ICC. Ms. Arbia, the ICC’s Registrar, noted that the ICC has received 2600 applications from individuals to be admitted as victim participants in the ICC process. Of these, more than 800 have been accepted by the Court. Several themes emerged from the stocktaking exercise, including:

• the importance of protecting intermediaries, who are crucial in helping the ICC gain access to victims,
• the challenges facing the ICC in getting sufficient information to women, who may not, for example, have access to the family radio – an important source of information about the ICC,
• the need for the ICC to effectively manage victims’ expectations of what the Court can do for them;
• the need for the ICC to improve its two-way dialogue with victims, and
• the need for States Parties to cooperate with the Court so as to better protect victims.

In the afternoon, the stocktaking exercise on peace and justice took place. After hearing from panelists David Tolbert, peace mediator James LeMoyne, Youk Chhang of the Documentation Center of Cambodia and Barney Afako of the Juba peace process, states, IGOs and NGOs made statements and asked questions. Again, several interlinked themes emerged:

• there is a positive relationship between peace and justice, but also a tension.
• in some sense, the existence of the ICC and other international criminal justice mechanisms can strengthen a mediator’s hand because they clearly remove amnesty as a bargaining chip. However, this can also make a mediator’s job harder: how to get individuals and groups to agree to peace? Mediators need to be creative.
• the ICC holds the potential to deter serious international crimes, but we need to make justice – both international and domestic - more normal to make deterrence more real.
• the views of victims on whether they wish to prioritize peace or justice, or both, may shift over time.
• It is important for all of us to stand up to those who are defiant of the ICC. Justice will always have enemies.

At the end of the day, the International Committee of the Red Cross (ICRC) launched its newest publication: The Domestic Implementation of International Humanitarian Law. For those interested in IHL, I urge you to check out this wonderful resource once it is posted on the ICRC website.
June 3 marks the second day of the stocktaking exercise, with a focus on complementarity and cooperation.

U.S. Policy in Kampala: A New Report

The Council on Foreign Relations has recently released a report written by Vijay Padmanabhan of Yeshiva University’s Benjamin N. Cardozo School of Law (left) entitled "From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference." Yours truly served on the Council's Advisory Committee along with a number of other academics, practitioners, former government officials, human rights activists, and Council members.
The Report acknowledges the keen U.S. interests in an effective International Criminal Court but raises questions about the direction the aggression negotiations have taken to date. It also provides concrete suggestions to U.S. policymakers about how to contribute constructively to the negotiations and achieve their strategic aims at Kampala without appearing obstructionist or re-alienating other delegations.
As a first order of business, the Report recommends that the U.S. focus on dissuading state parties in Kampala from activating the aggression provisions. The concern is that these provisions will undermine the Court's core work in prosecuting atrocity crimes and threaten vital U.S. security interests in a way that will make U.S. cooperation with the Court, no less membership, more difficult. The Report cites a number of objections to the Court's assertion of jurisdiction over aggression. Namely:

Prosecuting aggression risks miring the court in political disputes regarding the causes of international controversies, thereby diminishing its effectiveness and perceived legitimacy in dispensing justice for atrocity crimes.

The aggression provisions also pose

unique risks to the United States as a global superpower. It places U.S. and allied leaders at risk of prosecution for what they view as necessary and legitimate security actions.

Finally,

Adding aggression to the ICC’s mandate would also erode the primacy of the UN Security Council in managing threats to international peace.

Although the Report criticizes the existing definition of the crime of aggression (which has achieved a fragile consensus in draft Article 8bis) as too vague to serve as the basis for assigning individual criminal responsibility, it recommends against trying to offer even well-meaning "fixes" to the text on the ground that many states consider the issue to be "closed" after several rounds of negotiations.
The other main agenda item for Kampala is a stocktaking exercise to reflect on past experiences and offer guidance toward improving the functioning of the Court going forward. This stock-taking will focus on four main areas:

• Victim Outreach
• State Cooperation
• National Prosecutorial Capacity
• Peace & Justice

The Report recommends that the U.S. contribute actively to these discussions with an emphasis on the United States' past experience in these areas as well as potential future contributions, especially in the event that the United States achieves its aims at Kampala. In particular, Report emphasizes that the United States should commit to providing technical and financial support to national systems to improve the operation of the system of complementarity. In addition, the United States should make clear its intention to cooperate with the Court in terms of financial and technical support, political and military support in capturing suspects, and evidence gathering.
Finally, the report recommends that the United States send a cabinet-level representative to Kampala in addition to Stephen Rapp, the U.S. Ambassador at Large for War Crimes Issues (left), to signal our re-engagement with the Court and the importance of the negotiations, and to issue a formal statement of support to further undo the Bush Administration's more combative approach.
The Report is definitely worth a read. All the proposed amendments to the ICC Statute that will be under consideration can be viewed here.

Brenda Hollis - Chief Prosecutor

While we're on the subject of women in high places, the United Nations Secretary General, Ban Ki-Moon, recently named Brenda Hollis as Chief Prosecutor for the Special Court for Sierra Leone (SCSL). Hollis takes over from Stephen Rapp, who is serving as Ambassador-At-Large for War Crimes in the Obama Administration. Hollis had served as a principal trial attorney in the Office of the Prosecutor in the SCSL, where she heads up the legal team prosecuting ex-Liberian President Charles Taylor, under indictment for war crimes and crimes against humanity as we've discussed here and here. Prior to that, she was a legal consultant on international law and criminal procedure, training judges, prosecutors and investigators at courts and international tribunals in Indonesia, Iraq and Cambodia. She was also senior trial attorney at the International Criminal Tribunal for Yugoslavia (ICTY) from 1994-2001, serving as lead counsel in preparing the case against former Serbian president Slobodan Milosevic. (More on Hollis's background is available here).

Congratulations!

Unsettling profile of war crimes ambassador

War crimes envoy has personal touch read the headline for Colum Lynch's recent Washington Post profile of Stephen J. Rapp, who, as we've posted, became U.S. Ambassador at Large for War Crimes Issues in September.
Figured the story would talk about how Rapp's experiences as the top prosecutor at the Special Court for Sierra Leone had prepared him for this post. Fair enough.
But then came the subhead:
U.S. ambassador at large knows victimization and is a 'champion' of the brutalized
Uh-oh.
The story kicked off with a harrowing account of an all-night carjacking/kidnapping that Rapp endured 48 years ago. It then repeatedly linked this personal tragedy to Rapp's avowed self-image as "'a champion'" of the victims of crimes he's prosecuted, 1st in federal courts back home in Iowa, then at the International Criminal Tribunal for Rwanda, and eventually at the Sierra Leone court.
Midway through, the story quoted criticism of the United States' policies on war crimes, levied by Fabienne Hara of the International Crisis Group, who contended

that the United States has not lived up to its commitment to stop violence as it unfolds. Its response to war crimes in three of the most serious conflict zones of the past two years, Congo, Sri Lanka and Gaza, consists of pressing for 'accountability after the crisis rather than stopping or preventing the crisis.'

Yet the reporter seems oblivious to another concern -- a concern apparent in the way that he chose to frame his story.

I've written here and here about what I call an "impartiality deficit" in international and internationalized criminal tribunals. Included within the term is concern that victims and victimization are overemphasized, to the exclusion of other interests at play in a properly balanced criminal justice system. Values of fairness and due process preclude establishment of a criminal court -- or prosecution office -- solely for the purpose of representing victims' interests. Both the court and the prosecutor have the duty to represent the larger society, to serve the interest of public safety even if that interest at times conflicts with those of victims -- as, for instance, proper adherence to defense rights often does.

That's not my own idiosyncratic view. Rather, it embodies tradition recalled in a 1935 U.S. Supreme Court opinion.

In Berger v. United States, Justice George Sutherland, a conservative Republican, wrote this in a unanimous opinion that reversed a conviction on account of misconduct by the federal prosecutor:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Prosecutors who assume a different mantle of responsibility, who construe their their role as the victims' lawyers, as the winners of the case, do so at a risk. 1st, identifying "victims" and "perpetrators" can be a difficult task, as is evident not only in yesterday's Los Angeles Times story about cycles of violence, but also in any consideration of how to deal with former child soldiers. 2d, feeding perceptions that international criminal justice seeks vengeance stokes already overheated claims of "victors' justice." 3d, as many pretrial proceedings at Guantánamo and the trial of Saddam Hussein demonstrated, singular equation of justice with victory does little to reduce the dangers of impartiality deficit.

It's to be hoped that the spin of the Post profile reflects reportorial choice rather than any such singular equation -- that punishment will be but 1 goal of the Office of War Crimes Issues, and that postconflict reconstruction and preconflict prevention will enjoy priorityof place.

U.S. Address to the ICC Assembly

(Today IntLawGrrls reproduces in full the speech that Stephen J. Rapp, U.S. Ambassador at Large for War Crimes Issues, gave Thursday to the Assembly of States Parties of the International Criminal Court, meeting now at The Hague. We've added hypertexts to enhance thinking about these remarks, which, as posted represent a new U.S. engagement with the ICC. Our thanks to the U.S. State Department for furnishing the text.)

It is a pleasure to address you on behalf of the US Delegation, which for the first time is attending a meeting of the Assembly of States Parties as an Observer. Although we have not joined previous meetings of the Assembly, we have not been silent in the face of crimes against the basic code of humanity, crimes that call for condemnation in the strongest possible way. Far from it: We have worked shoulder to shoulder with other states to support accountability and end impunity for hauntingly brutal crimes in the former Yugoslavia, Rwanda, and elsewhere. With special urgency today, we are working to end the impunity that has fostered intolerable crimes of sexual violence in the Democratic Republic of Congo and other countries. As a former prosecutor with the International Criminal Tribunal for Rwanda and former Chief Prosecutor for the Special Court for Sierra Leone, I am especially proud of my country’s historic role in demanding justice for those who survived soul-shattering violence in their own countries — and for those who did not survive.
In recent years, we have seen extraordinary achievements of international criminal tribunals. Through their work, these tribunals have not only answered horrific crimes with historic justice, but they have done something of equal importance: they helped foster an expectation among victims that justice would be delivered at home, too, and not just in an international court. We have watched this process play out in several countries and have a deep appreciation of the role that institutions of international justice can play in helping restore accountability and the rule of law to states struggling to emerge from lawless violence. Certainly, the US Government places the greatest importance on assisting countries where the rule of law has been shattered to stand up their own system of protection and accountability — to enhance their capacity to ensure justice at home.
At the same time, the United States recognizes that there are certain times when justice will be found only when the international community unites in ensuring it, and we have been steadfast in our encouragement for action when the situation demands it. It was with this principle in mind that the United States has encouraged the investigation of the situation in Darfur.
In short, the commitment of the Obama Administration to the rule of law and the principle of accountability is firm, in line with my country’s historic tradition of support for international criminal justice that has been a hallmark of United States policy dating back at least to the time of Nuremberg.
Having been absent from previous rounds of these meetings, much of what we will do here is listen and learn. Our presence at this meeting, and the contacts that our delegates will seek with as many of you as possible, reflects our interest in gaining a better understanding of the issues being considered here and the workings of the Court.
That said, I would be remiss not to share with you my country’s concerns about an issue pending before this body to which we attach particular importance: the definition of the crime of aggression, which is to be addressed at the Review Conference in Kampala next year. The United States has well-known views on the crime of aggression, which reflect the specific role and responsibilities entrusted to the Security Council by the UN Charter in responding to aggression or its threat, as well as concerns about the way the draft definition itself has been framed. Our view has been and remains that, should the Rome Statute be amended to include a defined crime of aggression, jurisdiction should follow a Security Council determination that aggression has occurred.
Although we respect the hard work that has been done in this area by the Assembly of States Parties, we also share the concern that many of you have expressed about the need to address this issue, above all, with extreme care, and the Court itself has an interest in not being drawn into a political thicket that could threaten its perceived impartiality.
In more than eight years as an international prosecutor I have seen how challenging it can be to try persons alleged to bear the greatest responsibility for crimes that shock the universal conscience — those intentionally targeting civilians and other noncombatants. So much remains to be done to achieve justice for the victims of genocide, war crimes, and crimes against humanity. We must not fail them.
We look forward to learning from the discussions at this meeting.
Thank you.

(credit for 2008 photo of Rapp; credit for 2008 photo of U.N. Security Council approving Resolution 1820 on women and armed conflict)

The U.S. & the ICC: A Rapprochement

The Washington Post reported yesterday that the U.S. will attend the upcoming Assembly of State Parties meetings in The Hague as well as the first Review Conference scheduled for June 2010 in Kampala. In the article, Ambassador-at Large for War Crimes Steven Rapp (right) made clear that although the U.S. was re-engaging with the ICC, it would not join the Court any time soon.
The agenda (annotated) for the November meetings includes most importantly the outstanding crime of aggression.
In addition, there will be general stock-taking and reporting, votes on judicial and trust fund board of directors vacancies, and discussions about the new premises, the budget and an audit.
The credit for this important development no doubt goes to:
► Harold Hongju Koh (bottom right), Legal Advisor to the State Department, whose confirmation hearing we covered extensively;
► Steven Rapp (top right), whose nomination we cheered; and
► IntLawGrrls alumna Diane Orentlicher (left), Deputy Ambassador for War Crimes whom we've profiled.
Kudos to all!

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!

Breaking News...

President Obama announced two key nominations yesterday:

• Michael H. Posner: Assistant Secretary of State for Democracy, Human Rights, and Labor, Department of State
  
• Stephen J. Rapp: Ambassador at Large for War Crimes Issues, Department of State

The bios of both excellent candidates are below. Congrats! Let's hope these nominations are confirmed with more alacrity than some of the earlier posts (namely Dawn Johnsen and Harold Koh).
Michael Posner (below left) currently serves as the President of Human Rights First (formerly the Lawyers Committee for Human Rights) and has been at the forefront of the international human rights movement for more than 30 years. Posner has traveled to more than 50 countries in all regions of the world on behalf of Human Rights First and other organizations. He has worked to support human rights defenders in countries as diverse as Russia, Zimbabwe, Iran, Cuba, China, Uganda, Haiti, the Philippines, El Salvador and Egypt. He also has been actively involved in promoting the rights of refugees and displaced people, and has taken a leading role in promoting stronger industry standards to ensure fair labor conditions in global manufacturing supply chains. Posner is a frequent public commentator and his opinion essays have appeared in newspapers and magazines around the country. He also has testified dozens of times before the U.S. Congress on a wide range of human rights and refugee topics. Before joining Human Rights First, Posner was a lawyer with Sonnenschein, Nath & Rosenthal in Chicago. Posner lectured at Yale Law School from 1981 to 1984, and again in 2009. He has been a visiting lecturer at Columbia University Law School since 1984. A member of the California and Illinois Bars, as well as the Council on Foreign Relations, he received his J.D. from the University of California, Berkeley Law School (Boalt Hall) and a B.A. from the University of Michigan.
Stephen Rapp (below right) has served as Prosecutor of the Special Court for Sierra Leone since January 2007, leading the prosecutions of former Liberian President Charles Taylor and other persons alleged to bear the greatest responsibility for the atrocities committed during the civil war in Sierra Leone. From 2001 to 2007, Rapp served as Senior Trial Attorney and Chief of Prosecutions at the International Criminal Tribunal for Rwanda, personally heading the trial team that achieved convictions of the principals of RTLM radio and Kangura newspaper—the first in history for leaders of the mass media for the crime of Incitement to Commit Genocide. Previously, he was United States Attorney for the Northern District of Iowa from 1993 to 2001. Prior to his tenure as U.S. Attorney, he had worked as an attorney in private practice and had served as Staff Director of the U.S. Senate Judiciary Subcommittee on Juvenile Delinquency and as an elected member of the Iowa Legislature. He received his JD degree from Drake University and his BA from Harvard College.
Congrats to both!