Friday, February 13, 2009
10:00- 11:30 a.m.
U.S. House of Representatives
Rayburn House Office, Room 2172
Sponsored by: The United Nations Association of the Capital Area, the United Nations Association, and Citizens for Global Solutions.

Event Summary

Philippe Kirsch, President of the International Criminal Court, and Judge Patricia Wald, former Chief Judge of the U.S. Court of Appeals for the D.C. Circuit and former Judge of the International Criminal Tribunal for the former Yugoslavia, spoke last Friday on Capitol Hill on the future of the ICC and the upcoming review conference of the charter of the court.

Mr. Kirsch called for greater assistance, cooperation, and support from countries that share the objectives and values of the court. One of the great weaknesses of the court, he said, was its dependency on states for enforcement, particularly for arrest warrants. He praised the contributions of former U.S. delegations in shaping the due process safeguards during the drafting of the Rome Statute.

Judge Wald stated that, as we enter the new era, the United States should give a second look at the ICC and its track record of the past seven years. She observed that the United States has an opportunity to observe, monitor, and even participate in the upcoming review conference. She praised the court and observed that the decision on whether the United States should join the court as a state party may be better addressed at a future time, after the United States has a better opportunity to work with the court on common interests.

Key issues:

• The ICC has begun its first trial of Thomas Lubanga Dyilo, a militia commander in the Democratic Republic of Congo accused of conscripting child soldiers.
• A second trial related to the Democratic Republic of Congo is expected to begin this summer and may include charges of sexual slavery and rape.
• The ICC is expected to indict Sudanese President Omar al-Bashir with war crimes, as well as three others for crimes in Darfur.
• The Obama administration is reevaluating the U.S. relationship with the ICC.
• The ICC Prosecutor has been asked to consider looking into the situation in Gaza and will determine if the Court has jurisdiction.

The following provides a summary of what Mr. Kirsch said, a transcription of Judge Wald’s speaking notes, a quick overview of the Q&A, and my brief commentary.

Philippe Kirsch, President of the International Criminal Court

The following summarizes key points from Mr. Kirsch’s presentation.

Why do we need an international criminal court?
History illustrates the need to prosecute the perpetrators of mass atrocities and gross human rights violations. He praised the efforts begun at Nuremberg and the ongoing speaking and writing efforts by former Nuremberg prosecutors Ben Ferencz, Henry T. King, and Whitney Harris to promote international law and global peace.

Later, the genocidal experiences of Yugoslavia and Rwanda reminded the world of the need for international tribunals. The International Criminal Tribunals for Yugoslavia (ICTY) and Rwanda (ICTR) reinforced the role of the rule of law and the culpability by leaders for certain crimes under international law.

Five weaknesses of these tribunals led to creation of the ICC. First, the tribunals were created by the UN Security Council, which includes only a few states in the decisionmaking process. Second, the tribunals focused on specific locales. Third, they focused on past events. Fourth, they were largely dependent on political will by UN member states and the international community for their existence, enforcement, and continuation. Fifth, the tribunals were intentionally created as ad hoc, temporary entities. These five weaknesses impacted two key purposes of prosecution: deterrence and punishment.

Without a permanent body, the deterrence of future mass-scale human rights and humanitarian law violations was limited. The temporary nature of the tribunals did not confer a sense of permanent accountability. Instead, potential perpetrators of the future could contemplate gambling against international political inertia, which would need to be overcome before establishing another ad hoc tribunal.

A permanent criminal court fills a role of providing consistent, impartial, and fair adjudication and sentencing of perpetrators across locales, events, and political influences.

What is the role of the ICC?
The ICC is a “continuation” of the previous efforts in that it seeks to end impunity, decrease criminal violations under international law, and promote global peace and safety. A permanent court, such as the ICC, can save the international community both time and money in the long run. He did not explain specifically how the ICC is economically more feasible. Some of the arguments include cost-savings as compared to reinventing new infrastructures with each conflict. For example, the ICTR, ICTY, and Cambodia have experienced high set-up costs and greatly exceeded anticipated budgets. A permanent facility centralizes those functions, thereby offering cost-savings and greater predictability of annual budgets. Through its deterrence function, the ICC could also save the world of the costs of conflicts and mass violence.

He explained that the court has limited jurisdiction – temporally, geographically, and substantively. First, the court does not have retroactive jurisdiction over crimes committed before its creation. Second, the crimes must be committed by the citizens of a state party to the ICC or, alternately, on the territory of a state party. When new states ratify the Rome Statute, the court may only exercise jurisdiction over crimes committed after that state has become a party. The only other permissible exercise of jurisdiction is through a referral by the UN Security Council. He asserts that the Rome Statute does not grant universal jurisdiction to the ICC. Third, the court is limited by its charter to four enumerated crimes: genocide, crimes against humanity, war crimes, and crimes of aggression. Functionally at the moment, the prosecutor cannot bring charges of crimes of aggression because the state parties intentionally left the crime undefined with the intent that it will be defined at a later time.

How is the ICC different from other courts?
He emphasized how the ICC is a treaty-based court. He also emphasized the constraint of complementarity on the court’s jurisdiction. Complementarity assures that, if a country’s domestic judicial system works, the case would never come before the ICC. The ICC would defer to the domestic judicial processes.

What is the current status of the ICC?
The ICC currently has four situations: the Central African Republic, the Democratic Republic of the Congo, Uganda, and Darfur in the Sudan. A total of 12 arrest warrants have been issued. Four additional arrest warrants are under consideration with respect to Darfur. The first trial in ICC history – Thomas Lubanga Dyilo – is in progress. A second trial is expected to begin this summer and will include the same charges, as well as possibly additional charges of sexual slavery and rape.

In three of the current situations (CAR, DRC, and Uganda), the state parties or parties within these states requested action by the ICC. The situation in Darfur, in contrast, was initiated through a UN Security Council referral under Article 13(b) of the Rome Statute and the Security Council’s Chapter VII powers of the UN Charter. The ICC has never acted unilaterally on its own initiative to investigate these situations. He pointed out that the ICC Prosecutor has a right to initiate investigations. To date, the Prosecutor has received 8,000 inquiries (I believe that is the number he said) and has dismissed 80% of those based on the lack of jurisdiction by the court. If the Prosecutor would like to proceed in judicial action on any of those inquiries, the judges must approve beforehand.

What are the future challenges of the ICC?
First, he said that the ICC is “purely judicial.” He followed that by saying that the ICC judges have never been criticized as not being impartial. He quoted Robert H. Jackson’s opening statement at Nuremberg: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.”

He asserted that the ICC needs to be better understood. As knowledge of the court grows, there will be increased acceptance.

He identified three keys to success: (1) impartial application of the law, (2) alignment of the ICC with countries that share its values and objectives, and (3) independence of the court.

He stated that there is an irony brought about by the tension between impartiality and the court’s reliance on states for enforcement of arrest warrants. Generally, the operational aspects of courts rely on two pillars: the judicial pillar and the enforcement pillar. The ICC lacks an enforcement pillar. It has no police and no army. Thus, the ICC must rely on state cooperation for its operations.

He also observed that the ICC will also need to continue to focus on efficiency and transparency.

He concluded that it is too early to judge whether the court has been a success or not. The court has come a long way, but more time is needed. Countries created the ICC. Their cooperation and support are critical to its success. It is not necessary for countries to be party to the ICC in order to support its objectives and functions.

Judge Patricia M. Wald, Former Chief Judge of the U.S. Court of Appeals for the D.C. Circuit and Former Judge of the International Criminal Tribunal for the Former Yugoslavia

Judge Wald graciously provided me with her speaking notes. The following is a transcription of her notes. Parts that were illegible are indicated by an ellipsis.

Thank you and welcome. The title of today’s program, “The International Criminal Court in a New Era,” is apt. For I do believe that our country under new governance is entering a new era in relationship to much of the rest of the world. And that includes a new relationship with the International Criminal Court. I like to think of that relationship as one of positive engagement – leaving the ultimate issue of whether and when we join the court as a full state party for a future time when we have had a better opportunity to work with the court on common interests.

The ICC has now been in operation for 7 years. The Rome Treaty, which created the court, was the product of years of preparation and discussion among hundreds of nations. The United States was one of the most active participants up until the final vote and, even thereafter, until 2001. We did not ratify the treaty for a variety of reasons, many dealing with the legal and technical objections, but, at base, there appeared to be apprehensions that a prosecutor might bring vindictive actions against the U.S. for political reasons – or, it was argued, our servicepersons omnipresent in peacekeeping forces around the world might find themselves hauled before foreign judges for alleged war crimes, or even our civilian and military leaders for strategic decisions. That fear […] won the day so that though President Clinton signed the treaty on the eve of his departure from office, he declared that he would not send it for ratification until some of the U.S. objections had been worked out. By signing the treaty, however, the U.S. was able to continue working with the court and have critical inputs into the definitions of crimes and the rules of evidence and procedure. Our military officers incidentally bore a laboring oar in these definitions to assure that some of the feared overreaching by the prosecutor would not eventuate.

With the advent of the new administration in 200[1], however, the U.S. took a far stronger stand against the court. It sent a letter to the U.N. proclaiming it had no intention of joining the court and would assume no legal obligations with respect to the treaty. It removed itself from all further participation in the court. Furthermore, it began a vigorous campaign of getting countries that had joined the court to sign bilateral Article 98 agreements that any Americans – not just servicepersons – apprehended for crimes within the court’s jurisdiction in the designated country would be handed back to the U.S. for processing. The U.S. used the threat of withdrawal of military and economic aid on countries that resisted. At the same time, the U.S. Congress passed the Servicepersons Protection Act of 2002 (ASPA), which drastically restricted any help U.S. agencies could provide to the court by way of apprehending suspects, sharing intelligence, providing personnel – all things we had done for the Yugoslav, Rwandan, and Sierra Leone war crimes tribunals. That kind of aid could be given to the ICC only by specific Presidential waiver. Needless to say, the Article 98 agreements […] created a good deal of resentment and ill will around the world.

Nonetheless, the ICC got underway in 2002, and, to date, 108 countries have ratified the treaty. Eighteen judges were elected, almost entirely from countries friendly to the U.S., and the prosecutor chosen was a well-respected Argentinean lawyer […] who had taught law in Harvard, Chicago, and Stanford law schools. The Department of Defense in 2005 became concerned that the Article 98 agreements were hurting our security by turning Latin American and other countries toward China for their military training, and Secretary of State Condoleezza Rice referred to the cutoff strategy as “shooting ourselves in the foot.” Modifications of the ASPA were made to exempt military aid cutoffs as an enforcement technique, and a substantial number of countries were exempted from economic sanctions as well.

In 2005, the U.S. abstained from the UN Security Council resolution referring the Darfur situation to the ICC, a significant action on our part motivated by the intense public reaction against the atrocities – some called it genocide – being committed there against helpless men, women, and children by the Janjaweed and their governmental allies. As recently as last year, the U.S. further sided with the court in resisting efforts by Sudan and some African and Arab countries to get the Security Council to utilize its power under the Rome Treaty to suspend any further investigations or prosecutions in Darfur by the court for at least a year. […] The Legal Counsel of the State Department, John Bellinger, gave a speech on the court suggesting that the U.S. policy was no longer to oppose the court but rather to acknowledge its existence and work within it where it was in the U.S. interests to do so. Our new President promised during the campaign to reevaluate our position vis-a-vis the court, and, last week, UN Ambassador Susan Rice spoke of the important role the court may play in future global peace and justice.

So that is where we are now. I will leave to President Kirsch to relate the activities of the court. Suffice it to say, the prosecutor has been most judicious in opening investigations – all four current ones were either requested by state parties or the Security Council. The court is coming up on its 10 year review in 2010 in which changes may be considered in the way the court operates and a critical decision made on defining the crime of aggression. Even if it does not join the ICC, the U.S. has an opportunity, as an observer, to monitor and even participate in some of these discussions. We also have an opportunity to reconsider the harsh provisions of the ASPA, made for another day, and to allow some of our agencies to cooperate when it is deemed in our best interests in sharing information and even personnel with the court. Ironically, most polls show Americans have a positive attitude toward a permanent international criminal court for war crimes, crimes against humanity, and genocide, and the American Bar Association has long recommended our joining the court. Whether we like it or not, it is likely to be the flagship in the development of international law of war, and it is too bad for us to be left out of that development. […] Americans need to learn more about the court, its critical doctrine of complementarity, which gives primary jurisdiction to any country whose nationals are accused of war crimes to do the investigation themselves unless they can be shown to be unable or unwilling to do so. And from my own acquaintance with the courts and its chief officers, I can assure you that there are fundamental due process protections equivalent to our own – though not precisely the same. At this stage, however, as we enter the new era, it is time for Americans and their government to give a second look at the court, what its track record has been over the past seven years, and what are our common interests that can be served by working more closely and positively with it.

Questions and Answers

The following is a summary. It is not verbatim. Mr. Kirsch forewarned attendees that he would not be able to comment on any specific situations, cases, prosecutorial activities, policy by states, or hypothetical situations.

Question: What is the court doing about witness protection, particularly with respect to their safety within the domestic states?
Mr. Kirsch: The ICC is very concerned with witness protection. The emphasis within states needs to be on clear mandates in UN Security Council resolutions for the UN Peacekeepers. There also needs to be increased activism.

Question: Would the crimes of Gaza, Iraq, or Afghanistan be crimes against humanity within the ICC’s jurisdiction?
Mr. Kirsch: Those situations are not before the court. The ICC is bound by the Rome Statute. The potential situation of Gaza is before the ICC Prosecutor to determine if the ICC has jurisdiction.

Question: How does the UN Security Council referral to the ICC not violate the Vienna Convention on the Law of Treaties, by which states cannot be bound by a treaty to which they did not agree? And please don’t answer Chapter VII powers.
Mr. Kirsch: No comment.

Question: What are the challenges for your successors, Mr. Kirsch?
Mr. Kirsch: See my earlier remarks. Also, governments are vertical. Courts are not vertical.

Question: Would the court cooperate in dual investigations?
Mr. Kirsch: It would be difficult for the ICC to engage in a joint project because of complementarity. The ICC must decide whether the domestic system is adequate and working properly. A joint project could compromise that impartiality and independence of the court in making that decision.

Question: For the United States to become a state party, would the Article 98 agreements need to be revoked?
Judge Wald: It is possible that the agreements were too broad in scope. See the American Society of International Law (ASIL) task force on U.S. Policy Toward the International Criminal Court (ICC). On February 2, 2009, the task force recommended an “examination of U.S. policy concerning the scope, applicability, and implementation of Article 98 Agreements concerning the protections afforded to U.S. personnel and others in the territory of States that have joined the Court.” The Article 98 agreements are not the predominate obstacle.

Question: With all the situations thus far from Africa, is the ICC being used by the larger political powers against weaker states? Are there two sets of standards?
Mr. Kirsch: African countries supported the creation of the ICC. They saw the court as a means of protection against the bigger powers for crimes committed on their territories. Also, three of the four situations before the court were initiated by parties to the court, not by the court or by the Security Council.

Question: What is the role of civil society?
Mr. Kirsch: Civil society plays a big role, but it is a slow process. NGOs can play a broader role than just influencing their governments. NGOs can also educate the public. Moreover, NGOs can do things courts cannot do, such as influence domestic legislation.

Question: Can the court withdraw from a situation or case?
Mr. Kirsch: There are three mechanisms: (1) state complementarity, (2) the prosecutor decides not to pursue the case [see Article 53(2)(c)], and (3) UN Security Council [see 53(3)(a)].

Question: What is the court doing to reach affected populations?
Mr. Kirsch: The court is doing outreach. In some areas, however, it is very difficult, particularly when dealing with instability, security risks, large territories, and other factors.

My Commentary

One of the big hurdles for the United States to become a state party to the ICC is the issue of complementarity. When ICC Prosecutor Moreno-Campo spoke last spring in Washington, D.C., he was unable to answer a question from a professor of international criminal law about complementarity with respect to U.S. involvement in Iraq and Afghanistan. When pressed on whether he would consider the domestic U.S. system to be adequate in its prosecutions for crimes committed in Iraq, the ICC Prosecutor raised his eyebrows in such a way that the room fell silent and then into laughter. The overall message was clear, if the United States would become a state party, the ICC could determine whether the U.S. judicial system is adequate with respect to prosecuting its elected leaders, government officials, uniformed service members, civilian contractors with private military and security companies, and other civilians.

Opponents of the United States becoming a state party argue that this power of the ICC threatens U.S. state sovereignty and national security. Moreover, opponents are concerned with constitutional issues and due process safeguards. Brett Shaefer at the Heritage Foundation wrote today: “While the ICC embodies an admirable desire to hold criminals accountable for their crimes, the court is flawed notionally and operationally. The more ICC advocates seek to use the court to press political agendas and supersede the prerogatives of government in foreign policy, the more they undermine the credibility of the court and threaten its future as a useful tool for justice.” He advises that the United States should continue to oppose being legally bound by the Rome Statute, should seek significant changes in the treaty, and should proceed with great caution with respect to actions that would support cases before the ICC.

Under the Obama administration, the United States is likely to be more favorable to the court. Yet, given the uncertainties of the court’s future and the political obstacles domestically, I would expect that the United States will not take action on ratifying the Rome Statute before the RevCon. I agree with Judge Wald that the United States needs to seize upon this opportunity to observe and to participate in the RevCon.

Also, if the ICC is truly dedicated to transparency, the state parties should make the financial information of the court more readily available. For example, the Assembly of State Parties (ASP) should authorize the court to publish on its website any voluntary contributions received from states, corporations, or individuals. Such contributions are permissible under Article 116 of the Rome Statute, yet no information about such contributions is currently available on the ICC website. Notably, the ASP has adopted resolutions clarifying the flow of financial information between the Internal Auditor, the Committee on Budget and Finance, and the Assembly. The ASP has not provided for procedures to make financial information available externally beyond the cursory high-level budget allocation and scaled fee structure for state parties. This current lack of financial transparency undermines the assertions of the court’s independence and impartiality.

Biographies

Judge Philippe Kirsch
Judge Philippe Kirsch is a Canadian lawyer and has serves as the President of the International Criminal Court since March 2003. Judge Kirsch is member of the Bar of the Province of Quebec and was appointed Queen’s Counsel in 1988. He has extensive experience in the establishment of the International Criminal Court, international humanitarian law, international criminal law and public international law.

In 1998, Judge Kirsch served as Chairman of the Committee of the Whole of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (the Rome Conference). He was also Chairman of the Preparatory Commission for the International Criminal Court (1999 – 2002). Judge Kirsch’s experience in international humanitarian law includes serving as Chairman of: the Drafting Committee of the International Conference on the Protection of War Victims (1993), the Drafting Committee at the 26th and 27th International Conferences of the Red Cross and the Red Crescent (1995, 1999) and related meetings. He also chaired the Canadian National Committee on Humanitarian Law (1998 – 1999) and was a member of the Group of International Advisers to the International Committee of the Red Cross (2000 – 2003).

He served as Chairman of the United Nations Ad Hoc Committee for the Suppression of Acts of Terrorism (1997-1999) and as Chairman or President of international conferences addressing terrorism-related issues such as the suppression of unlawful acts in the contexts of international civil aviation and maritime navigation. He was also Chairman of the United Nations Ad Hoc Committee that elaborated the International Convention on the Safety of United Nations and Associated Personnel (1993-1994). Judge Kirsch appeared twice as an Agent before the International Court of Justice. He has also participated in international arbitrations and was a Member of the Permanent Court of Arbitration (1995-1999). He has written extensively on the International Criminal Court and other international legal issues.

Judge Patricia M. Wald
Judge Patricia M. Wald is a native of Torrington, Connecticut. She graduated with honors from Yale Law School in 1951. Since 1968, she worked in the field of public interest law for a decade being an attorney for various programs and organizations, such as the Neighborhood Legal Services Program, the Ford Foundation Drug Abuse Research Project, the Center for Law and Social Policy, and the Mental Health Law Project. In 1977, she was appointed as Assistant Attorney General for Legislative Affairs for the U.S. Department of Justice. In 1979, President Jimmy Carter nominated her to fill a seat on the U.S. Court of Appeals for the District of Columbia Circuit. She was the first woman ever to sit on that bench and served as chief Judge from 1986 until 1991. In 1999, after having served on the bench for twenty years, Judge Patricia Wald retired and accepted an invitation to serve as one of the 14 panel judges of the International Criminal Tribunal in The Hague to hear cases on the war atrocities in the former Yugoslavia. She currently chairs the board of directors of the Open Society Justice Initiative and is a member of the board of directors for Mental Disability Rights International.

International Criminal Court

• International Criminal Court (ICC)
• Rome Statute
• Assembly of State Parties (ASP)
• List of State Parties to the Rome Statute

U.S. Government

• White House
• U.S. Congress
• U.S. Department of State

Viewpoints on Whether the United States Should Join the ICC

• American Society of International Law (ASIL) Task Force on U.S. Policy Toward the International Criminal Court
• Coalition for the International Criminal Court (ICC Now)
• Coalition for the International Criminal Court Blog: In Situ
• Stimson Center
• USA for the International Criminal Court
• Heritage Foundation

Event Sponsors

• United Nations Association
• Citizens for Global Solutions