IJCentral: International Justice Central

THE HAGUE — The International Criminal Court has all the trappings of a weighty institution: 18 judges, a large corps of prosecutors, a multimillion-dollar budget and its own prison cells. But the court is facing mounting criticism over the handling of its first case, which may be coming apart after more than four years.

Even longtime supporters of the court, established in The Hague to deal with large-scale atrocities, say they are frustrated by what many call the unacceptably slow pace and numerous missteps that have dragged out the trial, in which Thomas Lubanga, a Congolese militia leader, faces charges of committing war crimes by conscripting children.

Judges have twice ended proceedings and ordered Mr. Lubanga’s release, because, they said, the prosecution erred in dealing with evidence and refused to carry out their “unequivocal orders,” making a fair trial impossible.

Both times, appeals judges ordered the trial resumed and errors redressed. But tensions over a range of issues between the prosecution and the judges continue.

Now, deep into the trial, the defense has produced new evidence that may undermine the entire case, namely claims by several witnesses that Congolese researchers for the prosecution enlisted some witnesses to fabricate evidence.

“The whole trial has been a nightmare since the disputes between judges and the prosecutor began in 2008,” said William A. Schabas, who teaches human rights law at the National University of Ireland, Galway, and follows the court. Relations between the bench and the prosecution have become “ugly and unhealthy,” he said. “There appears almost a breakdown between the two sides.”

Mr. Lubanga, 49, a onetime psychology student, has sat through the proceedings variously wearing a dark suit or African robes, looking somber and impassive, sometimes staring at witnesses. He was sent to The Hague in 2006 by Congolese authorities who had imprisoned several militia leaders from the Democratic Republic of Congo’s complex wars — involving years of protracted fighting fueled by ethnic strife and rivalries for power and mineral riches. Mr. Lubanga’s group, the Union of Congolese Patriots, was among the militias accused of massacring civilians in 2002 and 2003.

Prosecutors say that Mr. Lubanga was accountable for the enlisting, often by force, of several thousand boys and girls, some as young as 8, who were drugged and trained to kill, steal or mutilate civilians, and in the case of girls, to provide sex to militiamen. The prosecution presented video of Mr. Lubanga visiting militia camps in the presence of child soldiers.

The defense maintains that Mr. Lubanga was only a political leader who did no military recruiting and instead tried to demobilize children fighting in his group. It argues that he is a scapegoat for more senior leaders, some now part of Congo’s military or the government.

At the start of the trial, which was postponed numerous times, the chief prosecutor, Luis Moreno-Ocampo, presented it as a signature case that would show the world the atrocious plight of child soldiers and their destroyed lives.

The United Nations has estimated that child soldiers — defined as younger than 15 — fight in at least a dozen armed conflicts around the world.

But public knowledge of the trial, even among victims’ groups trying to follow it in Congo, has been limited by the mix of legal wrangling and the secrecy of the proceedings.

Many witnesses, including 10 presented as former child soldiers, have testified behind closed doors, either to protect their privacy or because they feared reprisals at home. Lawyers have also asked to close sessions to the public because they fear witnesses may inadvertently divulge confidential material.

“It’s still not clear to me if this is a strong case, if all this time and effort was worthwhile,” said Lorraine Smith, a lawyer monitoring the trial for the International Bar Association. “The substance of the case got lost in the procedural tangle; even the record is not clear because transcripts are missing or blacked out.”

Some chilling details have come out in the trial. One witness broke down in court when he talked of the moment when the militia killed his mother while he and his siblings hid under the bed. Another, a former girl soldier, told the court that she was abducted by the militia at age 13, and taken to a training camp.

She said recruits were shaved with broken glass and “some of us were wounded.” Training began at 4 a.m., boys and girls were often whipped for the slightest mistake and girls had to sleep with the commanders, she said.

Victims, who have been allowed to join the case as “civil parties,” an innovation at the court, have protested that the prosecution has produced a narrow indictment of Mr. Lubanga, focusing on one charge and omitting the killing and the sexual violence of his group.

“Congo has among the highest sexual violence in the world — it’s unfathomable that they brought no such charges,” said Bridgid Inder of the Women’s Initiatives for Gender Justice, one of the rights groups following the trial. She said that from the start, her group had brought large-scale rape in military camps and villages to the attention of the investigators but that it was ignored.

“This was the chance to address the constant raping of the girl soldiers,” she said.

The panel of three international judges has heard regularly about rape from witnesses for both the defense and the prosecution. But defense lawyers stopped further questioning about it, saying it was not part of the charges against Mr. Lubanga.

Fatou Bensouda, the court’s deputy prosecutor, said in an interview that the trial intended to focus on child conscription as a whole, because it was a serious problem in many places. Mr. Lubanga was charged with child conscription, she said, “because that is where we had the best evidence at the time.”

Lawyers in The Hague say they are puzzled that the first trial, dealing with a single issue, has taken so long. They point to more than a decade of experience in international tribunals dealing with Rwanda, Sierra Leone and the former Yugoslavia.

“Instead of learning of their mistakes or adopting their best practices, this court has tried to reinvent the wheel,” said Ms. Smith, of the International Bar Association.

The most serious errors in the eyes of the judges is that investigators for the prosecution collected evidence from United Nations staff members and rights groups in Congo and gave assurances that they would not disclose the identities of the sources. While the prosecution tried to insert much of that anonymous evidence in its case, the rules dictate that such material can be used only if its sources are disclosed to the judges and the defense.

“Those investigators have now left, but we’ve spent three years undoing the damage and getting permission from sources,” said one prosecution official.

Another problem arose because investigators had worked with outside intermediaries in Congo who served as local contacts and introduced possible witnesses. Prosecutors said such people were indispensable in a place where they have no office and are not familiar with the territory and the culture. But judges were furious when prosecutors refused orders to provide the names of some intermediaries because they had to be moved first to a safer place.

Some lawyers following the trial believe that the court may expedite the pace now that a second trial was started this year and a third trial was to begin on Monday.

The optimistic view is that the pitfalls of the first trial will serve to strengthen the institution.

Tracey Gurd, senior advocacy officer for the Open Society Justice Initiative, a legal rights advocacy group, said in an appraisal of the case last January that the court’s effort to protect Mr. Lubanga’s rights had “helped build confidence that the I.C.C. is an institution determined to be fair.”

But the outcome of the Lubanga trial is still uncertain. Later this month, the defense will rest its case, and Catherine Mabille, the lead lawyer, has said that she would ask the court to dismiss the case.

source: The New York Times

The trip of the Member of Parliament for Eldoret North to the Hague has demonstrated an astonishing lack of knowledge about the highest criminal justice process in the world, as manifest in ongoing debate by citizens, politicians and even media coverage.

It is imperative that this lack of information be addressed urgently, not only by the International Criminal Court’s outreach office, but also by the government.

As for the media, the bosses should ensure that their journalists acquire at least the basic knowledge to follow this criminal justice process.

With respect to the criminal justice at the national level, all acts of commission and omission that are considered criminal are contained in the Penal Code and numerous pieces of legislation.

The ICC has the mandate to prosecute and try crimes that are enumerated in the Rome Statute—crimes against humanity, genocide and war crimes, as well as the crime of aggression.

The confusion in Kenya seems to arise from the fact that the ICC’s Prosecutor is focusing on the possible commission of crimes against humanity alone.

Despite what is already in the public domain about the extent, nature and patterns of the 2007/8 violence, the perception persists here that he should be focusing on genocide. This perception must be addressed.

Back to the national level. Once an act believed to be a crime is committed, it is the obligation of the Criminal Investigations Department to investigate that act and compile evidence supporting its assertion any alleged perpetrator it identifies did indeed commit that act.

It is then the obligation of the CID, through the Director of Public Prosecutions, to ensure the case is tried.

At the international level, the ICC’s Office of the Prosecutor has the responsibility for both investigations — in cooperation with national authorities. The OTP can ask the ICC judges for authority to investigate but it has to build its own case.

The confusion in Kenya here seems to be about the perception that the OTP’s investigation is relying, in particular, on the reports of the Kenya National Commission on Human Rights and the Commission of Inquiry into the Post Elections Violence.

The CID and the DPP need to convince the bench that their evidence and witnesses justify a person’s being charged with and, eventually, found guilty of a crime. Similarly, at the international level, the OTP needs to convince the judges of the same.

The ICC is, as its name implies, a court. And that is also the confusion in Kenya. Perhaps because the flow from CID to the DPP to the bench has not evidenced itself as being smooth and uninterrupted—based on strict considerations of law—the assumption seems to be that the ICC is not based on strict consideration of law either. We should disabuse ourselves of that fallacy. It is a court.

In short, our lack of information about the ICC is making us vulnerable to spin. And our politicians are notoriously un-short of spin.

The MP of Eldoret North may have presented himself to the OTP to give a statement of his own volition as to his knowledge of what happened in 2007/8. This however, does nothing to change the strictly legal process that the OTP is engaged in.

Let’s have some sobriety, please. And let’s have an attempt to discuss and debate the ICC’s engagement in Kenya on an informed and rational basis.

L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission

source: The East African

International Criminal Court’s third trial in the case against Jean-Pierre Bemba Gombo on 22 November at 2:30 p.m. in The Hague.

Please note that the trial will be broadcasted (with a 30-minute delay) on the Court’s website at: http://livestream.xs4all.nl/icc1.asx

“BEMBA TRIAL TO OPEN IN THE HAGUE: High Expectations Surround Trial Against Former DRC Vice-President For Alleged Crimes in the Central African Republic,” Press release, Coalition for the International Criminal Court, 18 November 2010, http://www.coalitionfortheicc.org/documents/Opening_of_Bemba_TRial_CICC_18Nov10_EN.pdf

“The Hague - On 22 November 2010, the International Criminal Court (ICC) will open its third trial in the case against Jean-Pierre Bemba Gombo for alleged crimes in the Central African Republic (CAR). The upcoming opening of the Bemba trial is yet another step forward in the Court’s work to prosecute the gravest crimes, the Coalition for the International Criminal Court said today.

“Victims and civil society in the Central African Republic have long sought justice for the terrible crimes Mr. Bemba is accused of committing,” said William R. Pace, Convenor of the Coalition. “The Coalition for the ICC will monitor the trial closely to ensure core principles are respected, including fair trial guarantees and the right of victims to participate in proceedings,” he added. “The Coalition will support the Court in its efforts to bring the trial closer to victims and their communities, including relevant outreach activities. We also urge all organs of the Court to better explain and to make every effort to reduce the long delays between arrests and trials.”

Two years after Bemba’s arrest, more than seven years after the commission of the alleged crimes and two postponements of the trial later, expectations are high around the Court’s first and only case in its CAR investigation. “The opening of the Bemba trial will be a historical moment for victims from the Central African Republic” said Lucille Mazangue from the Coalition of the Central African Republic for the ICC. “Although the trial’s many postponements were a setback for the victims, they still hope that the ICC will bring them justice,” Mazangue stated. She noted that the longer the trial takes, the greater the risk that evidence fades - notably with the passing of victims - and the greater victims’ expectations can get. “We hope that the Bemba trial will be held with due process and without any excessive delays,” she added.

Jean-Pierre Bemba is charged with command responsibility for crimes against humanity (rape and murder) and war crimes (rape, murder and pillaging) allegedly committed in CAR from 26 October 2002 to 15 March 2003.The prosecution has informed judges that 14 witnesses will testify as victims of rape and sexual violence or as experts on gender crimes.

“This trial breaks new ground for the ICC, with evidence of sexual violence comprising a significant part of the Prosecution’s case, and as the first ICC trial to charge an accused for command responsibility for rape,” Brigid Inder, Executive Director of Women’s Initiatives for Gender Justice said. “While we remain concerned by the Pre-Trial Chamber’s decision to not confirm all the charges for sexual violence, we urge the Trial Chamber to admit evidence of the full range of harm suffered by victims/survivors of these crimes,” Inder added. “The Bemba trial presents an opportunity for the Court to say firstly to women, that crimes of sexual violence are important enough to prosecute those who commit such acts; and secondly to leaders of armed forces and militias, that should they fail to prevent or punish subordinates for gender-based crimes, they will be held accountable.”

A groundbreaking feature of ICC trials is the right of victims to participate in judicial proceedings. 134 victims were authorized by Trial Chamber III to participate in the trial through their legal representative, lawyer Marie Edith Douzima Lawson. The Chamber is currently processing further 1200 victims’ applications.  “The number of victims applying to participate in this trial is unprecedented. Hundreds of victims of rape, murder and pillage have exercised their rights by requesting to take part in the proceedings,” said Souhayr Belhassen, President of the International Federation for Human Rights (FIDH). “FIDH welcomes the upcoming opening of this first trial on serious crimes committed in the Central African Republic as it will help to break the silence and the stigmatization of victims of rape, which was widely used as a weapon of war in the CAR. We hope this trial will shed light on the atrocities committed in the CAR in 2002-2003. We also plead strongly for the prosecution of others involved in the commission of crimes at the time, including other parties to the conflict,” she added.

Jean-Pierre Bemba was the President and Commander in chief of the “Mouvement de Libération du Congo” at the time of the commission of the alleged crimes. He is also the former Vice-President of the Democratic Republic of Congo (DRC) and a senator in the DRC Parliament. Bemba is defended by lawyers Nkwebe Liriss and Aimé Kilolo-Musamba.

Background

The arrest warrant against Jean-Pierre Bemba Gombo for alleged war crimes and crimes against humanity was announced by the ICC on 24 May 2008, at the time of his arrest in Belgium. Bemba was transferred to the ICC’s Hague detention centre on 3 July 2008. Following a number of status conferences and a three-day confirmation of charges hearing in January 2009, ICC Pre-Trial Chamber II confirmed charges of war crimes and crimes against humanity for Jean-Pierre Bemba Gombo, sending his case to trial.

The ICC’s investigation in the CAR was opened by the Prosecutor on 22 May 2007, following a referral by the CAR government on 7 January 2005. The Bemba trial is the Court’s third trial, with two other trials ongoing for Congolese warlords Thomas Lubanga Dyilo, Germain Katanga and Mathieu Ngudjolo Chui. 

The ICC is the world’s first permanent international court to prosecute war crimes, crimes against humanity and genocide. 114 states are party to the ICC’s treaty. Central to the Court’s mandate is the principle of complementarity, which holds that the Court will only intervene if national legal systems are unable or unwilling to investigate and prosecute. To date, the ICC has opened five investigations in the CAR, Darfur, Sudan, Uganda, Democratic Republic of Congo and Kenya. It has publicly issued twelve arrest warrants and three summonses to appear. The ICC Office of the Prosecutor has made public that it is examining at least eight situations on four continents, including Afghanistan, Colombia, Côte d’Ivoire, Georgia, Guinea and Palestine.

The Coalition for the International Criminal Court (CICC) includes 2,500 civil society organizations in 150 different countries working in partnership to strengthen international cooperation with the ICC; ensure that the Court is fair, effective and independent; make justice both visible and universal; and advance stronger national laws that deliver justice to victims of war crimes, crimes against humanity and genocide. ...”

Despite his detention at the ICC, indictee’s hold over western DRC remains strong.

With the war crimes trial of Jean-Pierre Bemba due to start in the Hague next week, it seems unlikely that he will run in the 2011 elections in the Democratic Republic of Congo, DRC - but the former vice-president continues to exert a large amount of political influence in the country.

Bemba, who remains the leader of the Movement for the Liberation of Congo, MLC, was arrested by Belgium authorities in 2008 and transferred to the International Criminal Court, ICC. He faces two counts of war crimes and three counts of crimes against humanity relating to atrocities he allegedly committed in the Central African Republic, CAR.

In the 2006 election, Bemba won a significant 42 per cent of the total votes cast, while incumbent president Joseph Kabila secured 58 per cent, according to the country’s independent electoral commission. The outcome of the ballot was broadly accepted by international observers.

Most of Bemba’s support comes from the west of the country, including the area around the capital Kinshasa, where many of his supporters remain critical of Bemba’s detention, viewing it largely as an attempt by Kabila to get rid of a formidable adversary.

“Many people in the west [of DRC] feel that he was unfairly imprisoned,” Jason Stearns, an expert on the DRC conflict and creator of the popular blog Congo Siasa, said. “Congo is full of warlords and criminals… [people think that] the fact that one would exclusively pursue Bemba is unfair and biased against Bemba.”

It is not difficult to find people in the west of the country who are outraged by Bemba’s arrest and detention.

“Bemba should be freed before the election so that he can come and end the suffering of the Congolese,” Kalala Jean-Marie, who lives in Limete, an area of Kinshasa, said. “All the Congolese are counting on him, after being so disappointed by Kabila, and so he must be returned home. Bemba is innocent and [ICC prosecutor] Luis Moreno-Ocampo has not gathered sufficient evidence to prove his involvement in war crimes.”

Emmanuel Malonga, also from Kinshasa, says that Bemba’s continued detention at the ICC is unjust.

“The Congolese authorities have used the ICC to get rid of Bemba ahead of the 2011 elections,” he said. “But the MLC has a great vision for this country, and any candidate that stands against Kabila will be voted in.”

ALTERNATIVE TO BEMBA

One of the problems for the MLC at the moment is that there is no strong alternative to Bemba, who continues to command strong support in key areas.

As a wealthy businessman, Bemba is also thought to have sufficient funds to be a powerful challenger in the 2011 election, although many of his personal assets have now been frozen. This is so that, in the event that the ICC hands down a guilty verdict, compensation can be paid to his victims.

“It is very difficult for us to go forward if Bemba doesn’t come back to Kinshasa and lead our party,” Germain Kabinga, an MLC spokesman, said. “We are sure that, with Bemba in Kinshasa, we can win the election in 2011. Without him, winning the election will be very difficult.”

Like many in the MLC, Kabinga claims that the influence Bemba continues to wield makes him a political target for Kabila’s ruling party.

“We think that some people are working in the shadows to make certain that Bemba is out of Kinshasa when the elections are held in 2011,” he said. “This is why we say that this is a political trial.”

But Felix Tambwe, a member of the People’s Party for Reconstruction and Development in Lubumbashi, which is allied with Kabila, told IWPR, “We have no interest in meddling in this case because the crimes have been committed outside of the DRC. What power do we have to influence the ICC? With Bemba as candidate, we are not afraid to go to the election because our candidate [Kabila] won in 2006. We just want justice to be done without bias. Only the ICC has the power or mandate [over whether to convict him or not]. This is nothing to do with the Congolese government.”

Georgette Seya, a member of the Alliance of the Presidential Majority, a political grouping formed by allies of Kabila, added, “No one is above the law and Bemba must answer for his actions. If he is innocent, he will be released, but the important thing is to make sure the law is applied in full, to deter other criminals to come.”

It is conceivable that Bemba could run in the DRC elections - which according to the constitution need to be held by next September at the latest - even though he is being detained by the ICC, since he has not been formally convicted.

There is a precedent for detainees being permitted to contest general elections. In 2007, the International Tribunal for Yugoslavia, ICTY, granted Ramush Haradinaj, a former Kosovo Liberation Army commander, permission to stand in the country’s elections whilst still on trial.

It looks unlikely, however, that the same scenario would happen in Bemba’s case.

Guillame Lacaille, an analyst at the International Crisis Group, says that the MLC’s top leaders were already in agreement as early as November last year that if Bemba was not out of jail and able to campaign before the start of the electoral campaign, then another candidate would be chosen.

But Kabinga says that no decision has yet been reached.

“Certainly, one of the hypothesis is that [Bemba could still run], and we are working on this hypothesis,” he said. “But we want to see whether, at the time of the election, Bemba is still being held by the ICC. Then we will decide what to do.”

The question remains: if not Bemba, then who will lead the MLC into the next election?

Kabinga dismisses the question of a replacement for Bemba with a laugh, saying that he still holds out hope that the wealthy businessman can lead the party to triumph.

“The truth is that the only one who can represent our party in this election is Bemba,” he said. “If the time comes and Bemba isn’t available, then I’m sure that Bemba himself will tell us what to do. And it will certainly be in the right way to help our people to be free, to have a real leadership that can take us and our country forwards.”

The question of who Bemba will endorse in his absence remains a crucial one, given his strength in the country. But some question his apparent popularity.

“It’s not clear whether his popularity in the west [of the country] is due to the mobilisation of the party or the cult of personality… and the fact that he’s from the west,” Stearns said.

In the build-up to the elections in 2006, Bemba did not poll very strongly. It was only nearer to the elections that his support really started to grow, largely because rival Étienne Tshiksekedi fell out of favour with the electorate, according to Stearns.

In fact, the western Congo region may be more united in its hatred for Kabila than its allegiance to Bemba.

Filip Reyjentns, law professor at the University of Antwerp, said that the support Bemba has built up in the west was stemmed from trying to “beat Kabila by voting for someone else”.

Over the last four years, both Bemba and Kabila have faced weakening support from people in their respective strongholds in the west and east.

Bemba’s rebel group was based in Equateur, a western province. Now that he no longer has a military presence there, some think that he may not be able to count on the same level of backing from the region.

Meanwhile, Kabila’s presidency is under fire for not delivering on its four-year reconstruction programme, aimed at improving unemployment, infrastructure and education.

“He knows now that he has no popular base, except maybe in Katanga, as a tribal reflex,” said Lacaille, referring to Kabila’s home state. “His strategy is therefore to make sure that no serious candidate challenges him in 2011.”

A CROSS-REGIONAL ALLIANCE

Both Bemba and Kabila’s parties need to build key cross-regional alliances with strong local parties to stand a chance to gain an electoral majority.

In the east, Bemba never had much popularity and his troops are suspected of committing atrocities in the north-east. In the west, there is vitriolic hatred for Kabila.

Bemba’s defence lawyer Aime Akilolo Musamba says that he has “never heard about Bemba endorsing another candidate”. However, there are rumours of a possible alliance with Vital Kamerhe, speaker of the national assembly, who has a strong following in the east.

“The alliance with Kamerhe could be a winning ticket,” Lacaille said. “That will be huge and it is a likely scenario.”

An alliance with the MLC would give Kamerhe a party from which he could launch a bid for the presidency. But more importantly, it would give him the support that he needs in the west.

“If Kamerhe tries to build up an alliance with Bemba, it is with Bemba not with the MLC,” Lacaille said. “The structure of the MLC may be… useful, but what will be more useful for Kamerhe is the benefit from the popularity of Bemba in the west.”

Other smaller contenders include Tshiksekedi and Kengo wa Dondo, a former prime minister under Mobutu.

Tshiksekedi is an elderly, veteran politician who formed the first strong opposition movement to former president Mobutu Sese Seko. While he has the backing of a local party structure, most of his support is in the centre of the country, in the Kasai provinces and in Kinshasa.

Stearns says Tshiksekedi could extend his influence to urban centres outside Lubumbashi and Katanga, where intellectuals support his political stance.

But beyond that, in the rural areas, he could be weakened trying to build alliances with local political leader driven by ethnic rivalry. It’s uncertain how much support he would have outside of Kinshasa.

Although he is generally lauded as a politician with principles, Tshiksekedi – who boycotted the last election which he decried as skewed and biased - will find it hard to counter his image as a withdrawn recluse, whose stubbornness and old age are working against him.

On the other hand, Dondo is the current president of the senate and is well-recognised, although his domestic popularity is weak and he may also be criticised for being too old. However, because he is respected and experienced, he may have the backing of Angola, who favour an economic alliance with DRC, which would allow him to build a larger campaign.

In any case, the elections come at a time of deep disillusionment with the political leadership.

In 2006, there was a high turn out for the first free elections, with hopes raised of a new leadership, new country and a new constitution. The enthusiasm slowly died as stagnation settled in and much remained the same year after year.

This report was produced by Anjana Sundaram and Blake Evans-Pritchard in The Hague, Heritier Maila in Lubumbashi and François Kadima in Kinshasa.

source: IWPR

In an interview with TIME in 2007, Juan Méndez, director of the International Center for Transitional Justice, mentioned that the next few years would tell whether the ICC was going to be a success or failure. He thereby referred to the objectives the International Criminal Court (ICC) in The Hague, The Netherlands had to fulfil in the years to come. “If the prosecutor ends up only producing two or three trials and has 20 outstanding warrants, the appetite for international criminal justice will fade away completely.” In a nutshell, Méndez summed up the tremendous task the ICC and its current prosecutor Luis Moreno-Ocampo were facing. And they still are.

In 2002 the constitutional Rome Statute of the Court - signed four years earlier at a diplomatic conference in the Italian capital - entered into force, thereby establishing the first permanent international constitution with the capability of prosecuting those individuals that committed the most heinous crimes against humanity. The ICC issued its first arrest warrants in 2006 and began its first-ever trial in 2009, in which former Congolese rebel leader Thomas Lubanga is accused of conscripting and enlisting children for participation in combat. That same year it issued its first arrest warrant for a sitting head of state, charging Sudanese president Omar Al-Bashir with war crimes, crimes against humanity and genocide. In 2010 the management oversight and legislative body of the Court, the Assembly of States Parties (ASP) convened the first Review Conference of the Court, reviewing the work and progress of the Court so far, as well as the implementation of its Statute, decisions and recommendations in the domestic jurisdictions of the signatory states.

Lubanga-case

The President of the ASP, Christian Wenaweser from Liechtenstein, stated recently that the world could expect the first ICC-judgment in March 2011, thereby referring to the case of the Prosecutor vs. Mr. Lubanga. A conclusion of this case would be a relief for the court, as the trial has mainly been marked by the tumultuous relationship between the prosecutors and judges and commenced only in 2009 after a two-year delay due to evidence disputes. Subsequently the first witness summoned by the prosecutors retracted his testimony and in July 2010 the judges ordered to stay the proceedings and thereafter the release of Mr. Lubanga two decisions against which the prosecutors successfully appealed. On 9 October 2010 the Appeals Chamber of the Court ruled the trial should be continued. Given the struggling progress of the trial, Mr. Wenaweser’s statement that a judgment in the case can be expected around March 2011 evokes some question marks. This doubt is boosted by that fact that the Lubanga Defense has mentioned that evidence disclosure problems may delay the trial again in the upcoming future.

Challenges

The complications the Court faced so far in the case against Mr. Lubanga indicate that the relatively young institution still faces numeral challenges in its development process. The first years of the Court’s work largely revolved around the interpretation of its constitutional and material legal texts. Building partly on the work of other courts, such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, the ICC has managed to take international criminal law to a broader and more developed stage. So far, the Court has indicted fourteen suspects of which seven remain fugitive; two are believed to have died; four are in custody and one appeared before the Court on a voluntary basis. The ICC booked considerable success in the first decade of its existence, but much work remains to be done.

Firstly, the number of prosecutions started and effectively completed by the Court will be essential in the assessment of the Court’s capabilities, as well as the image the world outside acquires of it. The prosecutorial strategy the Office of the Prosecutor presented in 2009 mentioned that over the next three years at least one new trial should commence. As Méndez stated it is doubtful whether such a low-profile approach will have the desired effect the ICC needs on the international community. The recognition for the Court will not only depend upon the effective completion of the cases it starts, but also the number of proceedings running. Quality counts, but so does quantity. Especially states considering joining the Court might eventually be reluctant to do so if the entire budget of the Court is spend on a handful of cases.

Secondly, the different backgrounds of the Court’s lawyers and judges address the challenges it faces in merging different legal systems from different cultures in its own proceedings, while also the participation of victims in the proceedings of the Court - the ICC is the first international court offering this possibility - remains its difficulties in implementation, something of which the retraction of the testimony by the first witness presented by the prosecutors in the Lubanga-case an example.

The opposition of the US, Russia and China against the Court remains what is perhaps the weakest spot of the Court’s overall practical and constitutional structure. All three countries are permanent members of the UN Security Council and have the ability to strengthen the Court tremendously through both their political and financial power. The United States signed the Rome Statute during President Bill Clinton’s last days in office but his successor George Bush refused to ratify the treaty and nullified the American signature. In 2002, the American Congress even adopted the American Service-member Protection Act, providing the president with the possibility “to use all means necessary and appropriate to bring about the release of any person who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”

Nevertheless, with the current administration in the US a slight change in approach towards the ICC is noticeable. The Obama-administration is reconsidering the aforementioned act and during the last annually Assembly of States Parties of the Court, in November 2009, the government sent its first-ever delegation since the establishment of the Court in 1998 - participating in the Assembly as an observer. But where the American opposition against the ICC can be explained by the generally scrutinizing view of the US government towards international treaties, the opposition of Russia and China is perhaps more profound as it is likely to result from the fear the prosecutor might open investigations in what they consider to be national interest, such as the situations in Chechnya and Nepal.

Future

Mr. Moreno-Ocampo stated that the ICC could be considered a success once it is not necessary anymore to start prosecutions, thereby referring to the primary duty for states parties to initiate prosecutions against those individuals that are alleged to have committed crimes that fall within the jurisdiction of the ICC. The Court must therefore not be considered an institution that can perish human rights violations from the face of the earth, for this remains primarily the duty of states themselves. By acting in complementarity with the standards of the Rome Statute, the case law and recommendations of the Court states can work together towards a more unified system of international criminal law, thereby slowly but decisively tightening the leash around the perpetrators of the crimes enshrined in the Statute. What the Court can do however, is prosecuting and punishing those that bear the greatest responsibility for the most heinous crimes against humanity, in case national jurisdictions are unwilling or unable to do so. In this process, the Court and the states parties have to bear in mind that solely arrest warrants will not saturate those demanding justice and a lack of results will affect the prestige of the Court in the international community.

Eventually, expected judgment in the Lubanga-case offers an opportunity which is as urgent as it is important in taking another step towards the realization of that what Mr. Moreno-Ocampo would consider to be a successful ICC: a world without impunity for the perpetrators of most heinous crimes. But while developing the ICC further we should not forget that the ICC is not the panacea for gross human rights violations, but rather the antidote.

Situation Countries

The ICC is currently investigating in five countries, all located on the African continent. In Uganda, the Democratic Republic of the Congo, the Central African Republic and Sudan the Prosecutor has issued arrest warrants for individuals that allegedly committed crimes over which the Court has jurisdiction. In Kenya the Court has recently opened an investigation examining the possibilities of charging individuals for crimes against humanity.

▪ Uganda: In 2003 the government of Uganda referred the situation concerning the rebel group Lord’s Resistance Army to the ICC, subsequently to which the Court issued arrest warrants for several rebel leaders, whom remain at large so far.

▪ Democratic Republic of the Congo (DRC): In 2004 the government of the DRC referred the situation of all crimes within the Court’s jurisdiction committed since its establishment to the Prosecutor. In 2006 the Prosecutor issued the first arrest warrants and in 2009 the trial of former rebel leader Thomas Lubanga commenced. Two other suspects have been surrendered to the Court by the DRC government.

▪ Central African Republic (CAR): In 2007 the Prosecutor opened investigations in the fighting between government and rebel forces from 2002 to 2003. A former vice-president of the DRC, Jean-Pierre Bemba, has been charged by the ICC for his involvement in the civil war in the CAR.

▪ Sudan: After the UN Security Council referred the situation in Darfur to the ICC, the Prosecutor indicted several members of the Sudanese government, of which the indictment of President Omar al-Bashir in July 2008 was the most high profile. Since Sudan is no party to the Rome Statute, refuses to cooperate with the Court, and Mr. al-Bashir is usually not travelling to counties where he might be arrested, the ICC has not been able so far to successfully detain any of the indicted persons.

▪ Kenya: On 31 March 2010 the Prosecutor was authorized to open investigation in crimes against humanity committed in the civil disorder in Kenya between 2005 and 2009.

‘International Criminal Court still faces major challenges in fighting impunity’ originally appeared on OpEdNews.com.

Detention of journalist underlines the grave risks Sudanese media face in trying to maintain their independence.

As I kiss my baby before he falls asleep every night, my thoughts always return to Abdelrahman. My colleague has a boy the same age as mine, and a girl of two years old. But he hasn’t kissed them goodnight for two weeks now.

Abdelrahman was arrested on October 30 by the security services in Khartoum. No-one knows where he is being held. As a consequence of operating as an independent journalist, he has been accused of crimes against the state - an extremely serious offence in Sudan. His wife is worried. His kids want to see their dad.

I met Abdelrahman a few years ago whilst he was being trained by Radio Dabanga - a project run by Press Now and supported by IWPR – which is dedicated to bringing impartial news to information-starved Darfur. I ran sessions on international justice reporting, and have been lucky enough to work with the Radio Dabanga team ever since, producing a weekly radio show called Fi al Mizan about justice in Darfur.

I approached one session, on reporting on sexual violence, with particular trepidation. How would an all-male group respond to talking openly about such a taboo subject, which had undoubtedly affected their friends and families?

Their professionalism and empathy was overwhelming. In role-play interviews, I was humbled by their sensitivity, compassion and objectivity.

Abdelrahman came to me afterwards. “This is really very serious,” he said quietly. “We must make programmes about this issue.”

Since then, the Radio Dabanga journalists, who drink sugary tea together and greet each other enthusiastically every morning, have worked tirelessly to bring the highest-quality news to Darfur. They are forced to operate out of a newsroom in Holland because censorship and the ever-present security services in Sudan make it virtually impossible to publish or broadcast the truth without being punished.

I’ve been to the National Press Council offices in Khartoum where newspapers are censored. I’ve talked to the censors themselves, who explained the need for journalists to respect “red lines” and protect Sudanese traditions. I’ve spoken to the head of the journalists’ union who showed me a lengthy list of journalists employed by the state and who told me that the government rewards them with homes.

I’ve driven past the infamous “ghost houses” in Khartoum, rumoured to hold journalists who overstep the red lines, and who are whisked away by the security services without charge or explanation before being subjected to torture.

Meanwhile in Darfur and across the border in eastern Chad, the number of listeners who tune in to Radio Dabanga has mushroomed, causing a rush for radios in markets across the region.

One day, a woman called the newsroom in tears. For the first time ever, she had heard the news in her own language of Zaghawa. As well as broadcasting in Darfur Arabic, the Radio Dabanga team translates their programmes into the local languages of Fur, Zaghawa and Masalit. The woman knew what she was hearing was impartial news, the truth unaltered by the government.

Suffice to say the government does not welcome such broadcasts. It continues to try and block the signal, even taking the state-run Radio Omdurman off the air while Radio Dabanga is on, and using it’s transmitter to interfere with Dabanga’s shortwave frequency.

In the face of such pressure, the mood at Radio Dabanga is always upbeat. The journalists - buoyed by floods of encouraging phone calls from listeners in Darfur, and opinion makers across the world - meet for hours around the central desk, thrashing out details of stories to ensure accuracy and balance, checking facts and seeking corroboration from a variety of sources.

“Look after yourself, twice,” Assadig Musa, with whom I produce the weekly Fi al Mizan radio show, used to say as I left for home each evening in the height of my pregnancy.

“Take care of the king,” Abdelrahman would add, pointing to my belly, an ever-present grin spread warmly across his face.

At work, Abdelrahman and I sometimes sat together on the sofa and he’d talk of home. It was clear that he longed to be with his family. He was driven by an ambition to bring change to his homeland through unbiased reporting, but he longed to be home with his pregnant wife.

A few weeks after giving birth I spoke to Abdelrahman, who was then back in Sudan. He congratulated me warmly, and spoke of his own newborn baby. I could hear the unbridled joy in his voice. Even though he was working as a journalist inside Sudan, with all the stress and tension this involves, he sounded relaxed and happy.

Since Abdelrahman’s arrest two weeks ago, the mood in the Radio Dabanga newsroom has changed. The journalists still greet each other enthusiastically every morning. They still drink sugary tea together and share news of their families. They still work tirelessly to produce top-notch programmes.

But all this is tinged with grave concern about their colleague, Abdelrahman, and a network of other Darfuri human rights activists who have also been arrested by the security services in this current crackdown on freedom of speech.

Human rights groups say the government wants an information blackout over what is happening in Darfur. International Criminal Court, ICC, prosecutors say the only conclusion they can draw is that the government has something to hide regarding the humanitarian situation.

Meanwhile, the state-run Sudanese media centre reports that the detainees were working to “cause embarrassment to the government [by] weakening its position [in the] international community, distorting its image before world public opinion through supporting [the] International Criminal Court and maximising the role of foreign organisations”.

This of course is nonsense - though easy for me to say from a distance. Easy to say with no fear of the security services threatening my family, or snatching me and torturing me. Easy for me to say, as I kiss my son to sleep once more.

Katy Glassborow is an IWPR reporter in The Hague.

IWPR’s On the Scale, or Fi al Mizan radio programme is available in four languages at http://iwpr.net/programme/scale-darfur

source: Institute for War and Peace Reporting

Is whistle-blowing website Wikileaks putting the international war crimes tribunal in an uncomfortable position?

Afghanistan war logs leaked by Wikileaks could eventually be used in a war crimes trial with Americans in the dock, according to Luis Moreno-Ocampo, prosecutor at the International Criminal Court (ICC). He was speaking at a Q&A session attended by my friend James Reinl in New York.

However, there’s huge scepticism over whether the ICC would actually have the guts to take on the US. So far only five proceedings have been launched – all relating to African countries.

Afghanistan is a party to the treaty that established the ICC, which is based in The Hague. The ICC is thus empowered to prosecute war crimes, crimes against humanity and genocide in Afghanistan when the national authorities are unwilling or unable to investigate themselves.

ICC procedures are complex. For example, the ICC will not look at potential atrocities in Iraq because Iraq, like most Arab countries, is not a member state (only Jordan, Djibouti and Comoros are members).

However, the ICC has issued a warrant against Sudanese president Omar Bashir on charges including genocide in Darfur. Sudan is not a party to the court, but UN Security Council Resolution 1593 referred Sudan to the ICC and obligates it to cooperate.

The US is also not a party to the court. As a permanent veto-wielding member of the UN Security Council, it is unlikely ever to allow the 15-nation body to refer it to the ICC.

So will any of this ever come to anything? Ocampo says: “We have to make a decision about what to do there.” Is the court’s credibility on the line?

By James Reinl

NEW YORK // The prosecutor of the world’s permanent war crimes
tribunal says he is using secret United States military files leaked
by a whistle-blower website to help determine whether atrocities have
been committed in Afghanistan.

Luis Moreno-Ocampo, prosecutor of the International Criminal Court
(ICC), said the release in July of more than 70,000 documents, mostly
classified US military reports, by WikiLeaks, will help decide whether
to launch a full investigation into Afghan war crimes.

“We are collecting all this information in the Afghanistan case
because we are doing the pre-examination. Afghanistan is a state party
so we should do it,” Mr Ocampo said. “In the Afghanistan case, we are
trying to collect this information to have clarity on different types
of criminality committed by different forces. And we have to make a
decision about what to do there.”

The ICC revealed it was examining alleged crimes in Afghanistan in
2007. Mr Ocampo said last year [09] that he was looking into
accusations against coalition forces, the Taliban and al Qaeda, but
that his probe was hampered by a lack of information.

WikiLeaks has since released its so-called Afghan War Diary, which
catalogues many civilian deaths from 2004-2010 caused by insurgent
bomb attacks, botched air raids by coalition jets and soldiers
shooting innocents at checkpoints.

The preliminary analysis is the first phase of an ICC probe, which can
spur a full investigation and lead to summonses or arrest warrants.
ICC proceedings are active in five countries – Uganda, Democratic
Republic of Congo, Sudan, Central African Republic and Kenya.
Preliminary analyses include Afghanistan, Georgia, Guinea, Côte
d’Ivoire, Colombia and Palestine.

Harold Hongju Koh, the US State Department’s legal adviser, said the
ICC prosecutor has a “very broad jurisdiction” and should investigate
“more immediate” concerns than acts by US forces in Afghanistan. The
WikiLeaks data dump was unreliable as evidence, he added.

“This prosecutor has many cases under his observation and there are
five matters under which he is proceeding – and to the best of my
knowledge that is not one of them,” Mr Koh said on Wednesday [27]
during a New York University law seminar.

“There are many things on the web, frankly I don’t believe them all
and frankly I don’t think a prosecutor conducts his business as a
serious prosecutor by not first doing investigations in which he
gathers evidence, as opposed to things on the web, and determine
whether there is basis for a case.”

Afghanistan is a party to the treaty that established The Hague-based
ICC. Any war crime committed on its territory by Afghan nationals or
foreigners is of interest to the court. The ICC is empowered to
prosecute war crimes, crimes against humanity and genocide in
Afghanistan when the national authorities are unwilling or unable to
investigate themselves.

The US has the most troops in Afghanistan. It is not a member of the
ICC and US officials have long insisted that American soldiers abroad
should be subject to US law, not international treaties. The
administration of former US president George W Bush denied allegations
of torture and war crimes committed after the US-led invasion toppled
the Taliban government.

The founder of WikiLeaks, Julian Assange, compared the release of
Afghan war documents to opening up the files of East Germany’s secret
Stasi police. The leaked documents probably contained “evidence of war
crimes”, he said, but that was “up to a court to decide”.

Last week, the website released nearly 400,000 classified US files on
the Iraq war. The dump showed 15,000 more Iraqi civilians had died
than previously thought, the group said, and that US troops hand over
detainees to Iraqi authorities knowing that they faced torture.

The two leaks represent the largest security breaches of their kind in
US military history. The Pentagon said WikiLeaks, a non-profit group
funded by human rights campaigners, journalists and the general
public, was putting US troops and Afghan informers at risk.

Christopher Hall, a legal adviser for the London-based pressure group
Amnesty International, said the WikiLeaks dump, together with data
collected previously, contained enough evidence of atrocities for the
prosecutor to seek permission to launch a full probe on Afghanistan.

“It is not an issue at this stage whether the leaked information,
whose authenticity has not been denied, is admissible evidence in a
trial in the ICC,” said Mr Hall. “Coupled with all the other reliable
information that the office of the prosecutor has been compiling since
2007, concerning all parties to the conflict, the office has more than
sufficient information to determine whether to seek authorisation from
the ICC pre-trial chamber to open a formal criminal investigation
designed to obtain sufficient admissible evidence for the trial of
individuals for war crimes and crimes against humanity.”

source: Tom Spender

Napoleon always said he liked lucky generals. He would have loved Barack Obama. The president is so lucky that he now has the South Koreans doing the dirty work of saving him from committing political suicide by signing a Free Trade Agreement (FTA) that would likely further increase both the U.S. trade deficit and the U.S. unemployment rate.

Reports from Seoul yesterday said the deal was essentially done and that Obama and South Korean President Lee Myung-bak would meet their self-imposed deadline by inking the deal today (Thursday). But no, the Koreans, who have been relentlessly promoting this deal as essential to both Korea’s future economic well-being and its national security, suddenly said they couldn’t agree to a small increase in imports of U.S. beef or a slight relaxation of emissions rules for imports of small numbers of foreign auto imports.

Since, like China, South Korea already manipulates its currency and imposes a myriad of subtle bureaucratic regulations and informal agreements that make the Korean market one of the most closed in the world, one might wonder why Seoul couldn’t agree to these two U.S. requests which would in no way result in any significant increase in Korean imports from the United States. But Obama should really thank his lucky stars for South Korea’s economic paranoia because it may save him from his administration’s own worst instincts.

I know we’re all supposed to be free traders and that opposition to anything labeled free trade is strictly taboo. But really, does anyone truly believe that we have anything like free trade with South Korea? This is a country that, as a matter of policy encourages the infringement of foreign intellectual property, and whose courts routinely annul the Korean patents of foreign based companies.

Yes, the proposed deal would significantly reduce Korean tariffs and facilitate foreign investment in Korea and contains strong language on the protection of intellectual property. But if the courts won’t enforce the language what is the point? And tariffs are not the real barriers to foreign penetration of the Korean market, especially since the Korean government can and does manipulate its currency to offset the effect of any tariff reductions. As for facilitating foreign investment in Korea, why do we especially want to do that when we need investment in the United States? Moreover, the proposed deal on investment as presently constituted actually allows the U.S. branches of Korean companies to take disputes over U.S. regulatory rulings and impacts out of the American legal system by appealing to the World Bank and the International Court.

Isn’t that something? The United States has consistently refused to join the International Criminal Court on grounds of protecting national sovereignty, but was just on the verge of signing a trade deal that would enable foreign companies to evade the sovereignty of the U.S. legal system in certain disputes. I wonder if the Republicans who have been promoting the deal understand that.

But sovereignty is not really the main point; that would be jobs. Here, the deal fails utterly. Of course, there are lots of studies by the various think tanks around Washington. Not surprisingly they only prove that while figures don’t lie, liars figure.

If you are for the deal, you can easily find a computer model that will confirm your view and vice versa. So let me put it in the words of one of the Korean negotiators whom I know and to whom I posed the question of whether, honestly between friends, he thought the deal would significantly increase U.S. exports to Korea or U.S. employment. His answer was an immediate “no.” And no one who knows anything about doing business in Korea believes otherwise.

So let’s hope Obama’s lucky streak keeps holding, at least until he gets out of South Korea.

Clyde Prestowitz is president of the Economic Strategy Institute and author of The Betrayal of American Prosperity.

source: Foreign Policy

A number of British military interrogators may face war crimes charges after members of their unit filmed themselves while threatening and abusing Iraqi detainees at a secret prison near Basra, the high court heard today.

The men have been referred to the Director of Service Prosecutions (DSP) after an investigation considered whether they had breached the International Criminal Court Act, which prohibits war crimes.

The referral was accompanied by “a recommendation that he consider charges under the 2001 Act”, Philip Havers QC, counsel for the Ministry of Defence, told the court. He added that Article 8 of the act defines and prohibits a number of actions as war crimes, including “committing outrages upon personal dignity, in particular humiliating and degrading treatment”.

It is thought that three men have been referred to the DSP. A number of other military interrogators – some of them reservists with the Territorial Army, and the Royal Navy and RAF reserves – are also under investigation and could also face war crimes charges.

The disclosure came at the end of proceedings brought on behalf of 222 Iraqi men who were detained by British forces following the 2003 invasion, in an attempt to force a public inquiry into allegations of systematic mistreatment.

The court was told there was evidence that detainees were starved, deprived of sleep, subjected to sensory deprivation, and threatened with execution at the shadowy facilities near Basra which were operated by the Joint Forces Interrogation Team.

It also received allegations that the team’s prisoners were beaten and forced to kneel in stressful positions for up to 30 hours at a time. Some of the prisoners claim they were subject to sexual humiliation by women soldiers, while others allege they were held for days in cells as small as one-metre square.

Many of the detainees claim that before the interrogation sessions they were forced to run around an obstacle course while wearing blackened goggles, where they were kicked or beaten with rifle butts.

For reasons that remain unclear, many of the interrogation sessions were video recorded by the interrogators themselves. A team of military police, which has been investigating the allegations under the leadership of a retired former civilian detective, has seized a further 1,250 recordings which could be used as evidence during any future prosecutions.

The MoD told the court it believes a public inquiry would be costly and unnecessary, and says the military police team should be permitted to continue with its investigation.

source: The Guardian

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.