Table of Contents
Suliman Baldo
Africa Program Director, International Center for Transitional Justice
"Is a Warrant Against Bashir a Warrant Against Africa?"
Linda Bishai
Senior Program Officer, Education and Training Center/International, United States Institute of Peace
"Will Truth Bring Peace or Justice?"
Lucia DiCicco and John Washburn
The American Non-Governmental Organization Coaltition for the International Criminal Court (AMICC)
"The United States Should Cooperate with the International Criminal Court"
Anthony Dworkin
Executive Director, Crimes of War Project
"The Challenges of the ICC"
Scott Gilmore
Center for Justice and Accountability
"Ending Impunity: The International Criminal Court in the Age of Accountability"
Kevin Jon Heller
Senior Lecturer, Melbourne Law School
"Why is the Prosecutor So Focused on Africa?"
Naomi Roht-Arriaza
Professor of Law and Author of The Pinochet Effect
"The Paradox of the ICC"
Brett D. Schaefer and Anthony B. Kim
The Heritage Foundation
"Crimes Need to be Punished, But is the ICC the Right Means?"
Kevin Jon Heller
Kevin Jon Heller
Senior Lecturer, Melbourne Law School
"Why is the Prosecutor So Focused on Africa?
The International Criminal Court (ICC) is often derided as the "African Criminal Court." That criticism, unfortunately, cannot easily be dismissed: All of the ICC investigations currently underway under the auspices of the Office of the Prosecutor (OTP) focus on African states (Uganda, the Central African Republic, the Democratic Republic of Congo and Sudan), and the OTP is analyzing the situations in three other African states -- Côte D'Ivoire, Kenya and Chad -- to determine whether formal investigation is warranted. At the same time, the OTP has declined to investigate the situations in a number of non-African states, such as Venezuela and Iraq. Indeed, the OTP refused to investigate the situation in Iraq, even though it had concluded that there is a "reasonable basis to believe" that UK nationals willfully killed a number of civilians and tortured a number of others there.
Many critics claim that the OTP's focus on Africa reflects racism or -- in the words of one scholar -- "masks a big power agenda to recolonize Africa." Both claims, however, are difficult to reconcile with the ICC's membership. Three of the "big powers" -- the United States, Russia and China -- have refused to ratify the Rome Statute. And of the ICC's 108 members, approximately 65 are from the "global south," 16 are from Eastern Europe and only 23 are from Western Europe or North America (including traditional imperialist powers such as San Marino, Andorra and Malta). That is a remarkable degree of geographic diversity -- and it is mirrored in the diversity of the ICC's personnel. The president of the ICC is from Korea; the first vice president is from Mali; the other judges come from Costa Rica, Ghana, Brazil, Bulgaria, Uganda, Kenya, Botswana and Bolivia, among other countries; the prosecutor is from Argentina; and the deputy prosecutor is from Gambia. Critics have yet to explain why an institution dominated by non-whites and non-westerners would make decisions on the basis of racism or neocolonial desires.
That is not to say that the OTP's single-minded emphasis on Africa is justified. It isn't. But it is important to understand why that emphasis is unjustified. The problem stems from the criterion the OTP uses to decide which situations it will investigate: the number of victims. That criterion explains the OTP's Africa obsession: In its view, the African situations are simply more serious than the non-African situations, because they involve far greater numbers of victims.
That is a principled approach to making investigative decisions, but it's based on the wrong principle. We cannot determine the seriousness of a situation simply by counting the bodies of the victims. Some situations do not involve large numbers of victims but are very serious nonetheless -- either because the kind of crimes they involve are committed worldwide, or because they involve crimes that offend fundamental international values.
Consider, for example, a crime that falls into both categories: torture. The prohibition on torture is what international lawyers call a jus cogens norm -- an absolute principle that no country is permitted to violate. Yet violate it they do: Human rights groups estimate that more than 130 countries, both authoritarian and democratic, routinely use torture.
Implementing an OTP investigation of a country that tortures would go a long way to deterring other would-be torturers. Yet that is very unlikely to happen, for one simple reason: Even the worst states rarely torture large numbers of victims. In Egypt, there were "only" 292 documented cases of torture from 1993 to 2004. In Colombia, there were "only" 346 such cases from 2004 to 2007.
The OTP's emphasis on the number of victims in a situation is problematic in another respect: It fails to recognize that crimes committed by governments are worse than crimes committed by rebels. The OTP has refused to treat state and rebel crimes differently, insisting that its duty of impartiality requires it to apply the same criteria to every group it considers investigating. That position has a superficial appeal, but it ignores a fundamental distinction between government and rebel crime: Although governments can normally prosecute crimes committed by rebels, they can rarely prosecute crimes committed by their own officials and soldiers.
Indeed, international criminal law itself was established to address precisely that impunity gap. The Allies created the International Military Tribunal at Nuremberg because they knew Germany's national courts could not be expected to prosecute atrocities in which they had played a critical role. "The dagger of the assassin was concealed beneath the robe of the jurist," as the judges wrote in the Justice Case, an American trial made famous in the movie "Judgment at Nuremberg." What is true of the Nazis is no less true of the Ugandan government, the Sudanese government and all of the other governments that the ICC could -- and should -- investigate: They cannot prosecute themselves.
The ideal situation for the OTP to investigate, then, is one in which government officials and soldiers commit crimes that are extremely common and offend fundamental international values. Fortunately -- and to its credit -- the OTP is currently monitoring precisely such a situation in Colombia. As described in the film, and as recently affirmed by United Nations human-rights investigators, Colombian soldiers and paramilitary groups associated with the government routinely murder, torture and "disappear" innocent civilians they consider to be overly sympathetic to rebel groups.
The number of victims in Colombia pales in comparison to the number of victims in the African situations -- thousands instead of hundreds of thousands -- but it is difficult to argue that the Colombian situation is any less deserving of formal investigation. Indeed, initiating such an investigation would not only strike a major blow against impunity in Colombia, but it would also help put the derisive "African Criminal Court" criticism to rest once and for all.
Kevin Jon Heller is currently a senior lecturer at Melbourne Law School, where he teaches criminal law and international criminal law. He has a J.D. from Stanford Law School, a master's degree in literature from Duke University and a master's degree and bachelor's degree in social and political theory from the New School for Social Research, all with honors. His work has appeared in the European Journal of International Law, the American Journal of International Law, the Journal of International Criminal Justice, the Michigan Law Review, the Leiden Journal of International Law and others. He is currently writing a book entitled "The Nuremberg Military Tribunals and the Origins of International Criminal Law," which will be published by Oxford University Press in 2010. On the practical side, Heller has been involved in the International Criminal Court's negotiations over the crime of aggression, served as Human Rights Watch's external legal advisor on the trial of Saddam Hussein and consulted with the defense in a number of cases at the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. He is currently serving as one of Radovan Karadzic's formally appointed legal advisers.
Lucia DiCicco and John Washburn
Lucia DiCicco and John Washburn
The American Non-Governmental Organization Coalition for the International Criminal Court (AMICC)
"The United States Should Cooperate with the International Criminal Court"
The International Criminal Court (ICC) is the first permanent, treaty based, international criminal court, and its mission is to end impunity for the perpetrators of atrocity crimes of concern to the international community. The crimes that fall under the jurisdiction of the ICC are war crimes, crimes against humanity and genocide committed after July 2002. The ICC operates like any domestic criminal court, except that it works at the international level.
The United States has always been a leader in fighting for human rights and accountability around the world. In fact, the United States was a leader in the creation of the tribunals for the former Yugoslavia and Rwanda by the Security Council of the United Nations. Moreover, the United States played a major role in negotiating the Rome Statute but opposed the final draft of the Statute at the 1998 Rome Conference.
Since its founding in 2002, the ICC has opened cases in Uganda, the Central African Republic (CAR), the Democratic Republic of the Congo (DRC) and Darfur, Sudan. Furthermore, the ICC is prosecuting Thomas Lubanga Dyilo for crimes committed in the DRC. Also, the trial for Germain Katanga and Mathieu Ngudjolo Chui, both from the DRC, is scheduled to begin this fall. In addition, charges were confirmed this month against Jean-Pierre Bemba Gombo, for crimes allegedly committed in the CAR, and his trial will begin in the coming months as well.
Previously, the Bush administration's policy toward the ICC was to isolate and undermine it; however, the ICC has achieved full operation, despite U.S. hostility. Right now, the Obama administration is reviewing current U.S. policy toward the ICC. Members of the administration, including Secretary of State Hillary Clinton and U.S. Ambassador to the United Nations Susan Rice, have said that the United States recognizes that the ICC is an important judicial institution. These statements indicate that the new administration will likely work with the ICC more than the previous administration did.
The American public loathes the crimes that fall under the jurisdiction of the ICC and polls show that the public supports U.S. cooperation with the ICC. Furthermore, the values expressed by the ICC in bringing justice to victims and imposing accountability for atrocities are strongly shared by the United States and its people. In cooperating with the ICC, the United States will join the many other countries which, for these reasons, strongly support the ICC.
Lucia DiCicco is a research intern at AMICC. She is a graduate of the Thomas M. Cooley Law School with a concentration in international law, and was recently admitted to practice law in Michigan. She has focused her studies on international law issues ranging from business to human rights, and hopes to continue working on them in the future.
John Washburn is Convener of the AMICC, co-chair of the Washington Working Group on the International Criminal Court and a past president of the Unitarian Universalist United Nations Office. IN association with the international NGO Coalition for the International Criminal Court, he has attended most of the United Nations Negotiations on the International Criminal Court since 1994, including all of the 1998 diplomatic conference in Rome. Previously, he was a director of the Executive Office of the Secretary General of the United Nations, and a director in the Department of Political Affairs at the United Nations.
Naomi Roht-Arriaza
Naomi Roht-Arriaza
Professor of Law and Author of The Pinochet Effect
"The Paradox of the ICC"
How do you judge the success of the International Criminal Court (ICC)? If it's by the number of prosecutions and convictions, the ICC will probably always be adjudged a failure. It's unlikely to try more than a few cases at a time, and it will always have to make hard choices about where to put limited prosecutorial resources. A lot of cases will never come under the ICC's purview, including crimes committed before 2002 and those with regard to which neither the necessary states nor the Security Council can be convinced to act. As The Reckoning suggests, however, this may not be the right yardstick. Rather, the ICC should be judged primarily on the degree to which it prods, pushes and promotes the ability of states to carry out their own serious and fair trials of those committing war crimes, crimes against humanity and genocide.
At the heart of the ICC is a bit of a paradox. The ICC was set up with the understanding that sometimes national courts can't or won't try the worst crimes, either because the perpetrators are in charge of their governments and thus above the law, or because the perpetrators are militias or mafias beyond the reach of the state, especially a weak state. At the same time, though, the ICC gives first priority to national courts, stepping in only in the face of evidence that the locals are unable or unwilling to investigate and prosecute. Ideally, then, the ICC should serve as a backstop, an implicit threat to take cases away if a national justice system isn't doing its job. In the best of circumstances, the ICC would have no cases; rather, all cases would be the subject of national proceedings, carried out in good faith and meeting basic standards of fairness and independence of the judiciary.
Colombia exemplifies both the promise and the problems of this approach, and the film is much enriched by the inclusion of a segment on Colombia, even though to date the prosecutor -- despite much criticism -- has not opened a case in that country. Is Colombia "unable or unwilling" to prosecute, as the ICC statute requires? The case of Colombia illustrates the difficulties facing the prosecutor. On the one hand, he doesn't want to cut off existing national processes, even those that are less than ideal, since trial at home has clear advantages. On the other, at what point do the shortcomings of the justice and peace process -- and a government's ability to short-circuit that process through extradition to the United States when the paramilitaries start talking too much about their ties to the regime -- become so glaring that the national process becomes merely a more sophisticated brand of de facto impunity?
If the ICC backs off too far, it loses credibility. If it pushes too hard, it risks riding roughshod over national abilities and sensitivities, perhaps cutting off the very national and local processes provoked by its pressure. That's part of the debate the film shows us in northern Uganda. In the case of Colombia, the lack of action has also fueled criticism that the ICC is aimed at Africa alone and ignores widespread crimes elsewhere.
An evaluation of the ICC's success should also be grounded in realistic, and modest, expectations. If the ICC is measured against the question of whether reconciliation has been achieved, or whether victims and survivors are satisfied, or whether future conflict has been avoided, it will always come up short. To some degree, the kind of hurt and trauma produced by seeing one's family and community destroyed, or being raped or abused or displaced, can't ever be fully remedied. Beyond that, criminal prosecution is only one kind of justice, albeit a kind that is necessary for at least the worst crimes and the worst criminals. It is not a forum for telling the story of overall patterns of conflict or repression, and it isn't always a sympathetic forum for victims. Other kinds of justice, including disclosure of the patterns and causes of conflict and of the fate and resting places of victims, vetting and restructuring security forces, reparations for material and moral harms, legal reforms to attack a culture of impunity and distributive justice to change the underlying causes of conflict, are necessary complements.
To its credit, the Rome Statute of the ICC does make provision for court-ordered reparations, a first in an international criminal context. But those reparations will come not from state coffers, but from defendants' assets, which can be hard to locate. If the confiscated assets are insufficient, a victims trust fund associated with the ICC can supplement them, but that fund's budget is based on voluntary contributions from states and individuals. Some modest projects have already been undertaken in the Democratic Republic of Congo, but much more action is needed.
A criminal court, no matter how effective, can only be part of the effort to deal with the past in order to create a new future. Rather than substituting for the work of the ICC, proposals for reparations schemes, truth commissions and local-level processes of acknowledgement of wrongdoing and community reintegration are complements to that work and should be welcomed. It's not an either/or situation.
Naomi Roht-Arriaza is a professor of law at the University of California's Hastings College of the Law, and the author of The Pinochet Effect: Transnational Justice in the Age of Human Rights (2005). She writes extensively about human rights issues in Latin America.
Suliman Baldo
Suliman Baldo
Africa Program Director, International Center for Transitional Justice
"Is a Warrant Against Bashir a Warrant Against Africa?"
When the treaty that helped create the International Criminal Court (ICC) was signed 11 years ago, human rights defenders celebrated the signing as a colossal achievement. For the first time, the world would have a permanent, independent criminal court that could bring perpetrators of some of the world's worst crimes to justice.
Today the court faces attacks from all sides. Critics have accused it of being reckless, unaccountable and unfairly focused on prosecuting African leaders. The sharpest controversy surrounds the ICC prosecutor's case against Sudanese President Omar Al-Bashir for alleged crimes against humanity and war crimes in Darfur.
The court has stumbled several times, but much criticism of it is based on misconceptions about the scope of its powers and the origins of the cases it is pursuing -- including its case against the Sudanese president.
Critics note that all of the ICC's active cases involve four African countries: the Central African Republic, the Democratic Republic of Congo, Uganda and Sudan.
With the exception of Sudan, however, all of those countries asked the court to intervene and, in fact, helped create the ICC by signing the 1998 Rome Treaty that led to its founding. The treaty defines the ICC as a court of last resort: It is meant to intervene only in cases when domestic courts cannot deliver justice for massive human rights crimes. The governments of the Central African Republic, the Democratic Republic of Congo and Uganda judged that this was the case in their countries, and they appealed to the ICC for help.
The ICC's investigation of the Sudanese president began not as an arbitrary crusade by the ICC prosecutor, but as a referral from the United Nations Security Council. The council believed that the counterinsurgency campaign in Darfur by Sudanese government forces and allied militias was targeting not only armed insurgents but innocent civilians. The council asked the ICC prosecutor to investigate.
On March 4, 2009, a panel of three ICC judges issued an arrest warrant for Bashir at the prosecutor's request. The judges found that Bashir had "intentionally directed attacks against an important part of the civilian population of Darfur, Sudan, murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians and pillaging their property."
The warrant in this case was the first the court issued against a serving head of state, and controversy was inevitable. Sudan's government moved quickly to brand the ICC as anti-African and a threat to peace. It rejected the court's jurisdiction and mobilized regional support to portray the warrant as a risk to Sudanese stability and the fragile peace process between Khartoum and the largest rebel group. The ICC prosecutor insisted that his office had the evidence to convict Bashir on the charges.
Lost amid the controversy is the fact that since the 1990s, Africa has been at the forefront of global efforts to hold to account perpetrators of major human abuses. Africa championed the cause of accountability through the formation in 1994 of the International Criminal Tribunal for Rwanda -- a complement to Rwanda's own domestic prosecutions for perpetrators of genocide -- and African states rallied decisively in the late 1990s to help create the ICC.
It appears that Bashir's efforts to discredit the ICC have failed, at least for now. On June 8 and 9, 2009, representatives of the 30 African nations that are members of the ICC's founding treaty met in Addis Ababa, Ethiopia. Supporters of the ICC worried that the meeting would lead to calls for a mass withdrawal from the court by African countries. Instead, the member-states expressed support for the principles of international justice.
The future of the ICC case against Bashir is hard to predict, especially given that the court has no independent police force to execute arrests and relies instead on the law enforcement bodies of member states. Regardless, the indictment of Bashir sends a powerful signal that the era of impunity for gross human rights violations by heads of state -- in Africa and around the world -- is over.
Suliman Baldo is a widely recognized expert on conflict resolution, emergency relief, development and human rights in Africa and on international advocacy related to these issues. He has worked extensively in the Democratic Republic of Congo, Ethiopia, Eritrea and Sudan and traveled widely throughout the rest of the African continent. In the 1980s and early 1990s, he worked as a lecturer at the University of Khartoum and as a field director for Oxfam America, covering Sudan and the Horn of Africa. Later, he was the founder and director of Al-Fanar Center for Development Services in Khartoum, Sudan. He also spent seven years at Human Rights Watch as a senior researcher in the organization's Africa division. Most recently, he worked as a senior analyst before becoming the director of the Africa program at the International Crisis Group. Baldo holds a Ph.D. in comparative literature (1982) and a master's degree in modern literature (1976), both from the University of Dijon in France. He also holds a bachelor's degree from the University of Khartoum in Sudan.
Linda Bishai
Linda Bishai
Senior Program Officer, Education and Training Center/International, United States Institute of Peace
"Will Truth Bring Peace or Justice?"
The desire for justice and peace for the victims of war crimes and crimes against humanity is clear and simple for the thousands of activists across the globe concerned with making human rights a reality. Unfortunately, figuring out how to bring either justice or peace to societies that have experienced these crimes is far from clear or simple. Although the International Criminal Court (ICC) has focused its attention on Darfur, the history of all of Sudan since independence in 1956 has been a violent one, with millions of lives lost and ways of life permanently affected. The civil war between north and south was one of Africa's longest and bloodiest, going through several phases and only ending in 2005 with an uneasy power-sharing arrangement. There were also sustained violent conflicts in Sudan's eastern region that recently came to a negotiated end. When a country has existed with war for so many years, it becomes difficult to know what kind of normality might even be possible.
People adapt to amazingly harsh situations; they put the violence out of their minds and get on with living. Many of them try to forget. After years of living with less than peace and less than justice, the people of Sudan have become accustomed to getting by without either. A return to the past is not an option, and for many it is difficult to imagine a different future. In this state of limbo, international concepts of peace and justice can seem like foreign impositions -- interventions with inappropriate or impossible models. Indeed, both peace and justice must be situation-dependent to take hold in a sustainable way. Each society must draw on its own abilities and its own traditions of justice to strike a balance between retribution and forgiveness that can form the basis for lasting peace. But if a country with recent and current conflict, such as Sudan, fails to make evident efforts to do so, it will handicap its own development and its progress toward a peaceful future.
Strong temptations and even incentives to push ahead with the practicalities of ending wars do exist. Deals are negotiated; power and wealth are dispersed to the former combatants; and all sides sweep the ugly excesses of violence under the rug, dismissing them as the unfortunate but inevitable side effects of war. Such haste may be understandable in the context of stopping terrible violence, as was the case with negotiation of the Comprehensive Peace Agreement to end the Sudanese Civil War. However, when there is a failure to account for the absence of trust and the absence of the basic assumptions of a peacetime society (such as promises kept), as well as a failure to consider mechanisms for accountability and established patterns of transparency, even the best peace agreements fail, because their partners simply do not believe that they can work. This is what is happening in Sudan today. The signers of the peace agreement, recently enemies, are supposed to govern the nation together. The agreement included no specific mechanisms for truth-telling, justice or reconciliation processes at a national level, but instead noted only that the parties would agree on something in the future. Coalition governments can be challenging even for well-established democracies at peace, but the government of Sudan is currently composed of parties that went from waging war to sharing governance without any reckoning of the collective impact of their conflict.
This is not to say that there are no incentives for cooperation between the former warring parties; in fact, given the sustained years of violence and the institutionalization of each party's view of the other as an enemy, the situation appears remarkably functional. Yet beneath their efforts to form a working government, the parties and their constituents remain psychological victims of a long war. There is no trust and there has been no public recognition of the suffering endured by the population. This leaves politicians with none of the social elasticity so necessary for negotiating politics in a diverse society. It also means that the nation does not have a shared basis for its historical memory of the conflicts. The "truth" for northerners, southerners, easterners and westerners (Darfurians) in Sudan will be remarkably different. Giving the people of Sudan a way to share their stories of war in a culturally acceptable but public way may not result in a single history that unites the country, but it will allow the members of a wounded nation to take the necessary first step of recognizing each other as fellow citizens with shared obligations and shared rights. One of the flaws of the north-south peace agreement -- a peace only for the leaders -- is perpetuated in the efforts to stop the fighting in Darfur. Without any truth-telling, justice or reconciliation processes from the earlier conflict currently in place, there is little momentum behind such a process in the Darfur negotiations. Sadly, this has left a marvelously diverse nation without its greatest strength: the recognition that it is far more powerful as a functioning cooperative whole than as the sum of its separated mistrustful parts.
Linda Bishai is a senior program officer in the Education and Training Center/International of the United States Institute of Peace. She focuses on secondary and university education in international relations, conflict resolution, human rights and peace studies, and she is responsible for curriculum development and developing faculty and teacher workshops throughout the United States and in conflict zones, especially the Sudan.
Previously, Bishai was an assistant professor of political science at Towson University. During 2003-2004, Bishai served as a Supreme Court Fellow at the Federal Judicial Center, where she worked on an introduction to international human rights law for the federal judiciary. She has also taught at Brunel University, the London School of Economics and the University of Stockholm. Bishai holds a B.A. in history and literature from Harvard University, a J.D. from Georgetown University Law Center and a Ph.D. in international relations from the London School of Economics.
Anthony Dworkin
Anthony Dworkin
Executive Director, Crimes of War Project
"The Challenges of the ICC"
The International Criminal Court (ICC) was launched in 2002 to high hopes and some exaggerated fears, not least within the United States government. Seven years later, we are beginning to get a sense of how this new body is going to work in practice. Yet at the same time it is worth remembering that the ICC remains a very young court, and its structures and procedures are new and are still being explored by judges, prosecutors and defendants alike.
The case against Sudan's president, Omar al-Bashir, has predictably come to dominate international perceptions of the ICC. Issuing an arrest warrant against a serving head of state was bound to attract some attention, and on top of that, Darfur has been the dominant humanitarian cause in the years since the ICC was launched. Bashir's case provides a good snapshot of some aspects of the ICC's powers and limitations. On the one hand, not even a sitting president is immune from this court's jurisdiction. On the other hand, the court cannot compel countries that have not ratified its statute to arrest him -- and there is even some uncertainty about whether countries are obliged to comply with the ICC's request that he be handed over. For this reason, by confining his travel to sympathetic countries, Bashir has been able to remain relatively unaffected by the arrest warrant.
Yet in many respects it is important to remember that the Darfur investigation is likely to be atypical of the work of the ICC. In this case, the United Nations Security Council voted to refer the situation to the ICC, a system that granted the court jurisdiction even though Sudan is not a party to the court. But in the other cases that the ICC has taken up so far -- in the Democratic Republic of Congo, Uganda and the Central African Republic -- the countries involved have ratified the ICC statute and indeed these countries asked the court to investigate the particular situations at issue.
This fact should help rebut any suggestion that the ICC has taken a neo-colonialist approach in focusing on Africa in its earliest cases -- an impression that could do genuine damage to the ICC if it were to take hold. It is regrettable that the African Union voted at the beginning of July 2009 not to cooperate with the ICC's investigation of President Bashir, but at least it did not pass a resolution withdrawing support from the court more generally.
Indeed, a closer look at the history of these African cases suggests that the real problem for the ICC is not any kind of Western imposition of justice on Africa (in any case, five of the ICC's judges are African) but rather the difficult interplay of international justice and domestic politics. Consider the case of Uganda: The country's president initially called in the ICC to put pressure on the rebel group the Lord's Resistance Army, but then he appeared to want to exclude the court once peace talks were underway. It will not help the credibility of the ICC and international justice generally if states continue to approach the ICC in such an instrumental way, as if it can be summoned and then dismissed in light of changing political or military circumstances.
The Uganda case also illustrates another of the ICC's key challenges: deciding how much leeway to give to domestic judicial processes in the countries where crimes have occurred. According to the principle of "complementarity," the ICC can only take up cases if the country where the crimes took place is unable or unwilling to hold the perpetrators accountable. In this way, the ICC is intended to be a court of last resort that only steps in when there is no other way that justice will be done.
But "unable or unwilling" can be interpreted in a wide variety of ways. For instance, should the ICC require that domestic courts meet the same high standards as the ICC itself? Are there cases where it should defer to justice processes that fall short of a full criminal trial, such as the traditional mechanisms that are mooted by the war crimes agreement signed by the Ugandan government and the Lord's Resistance Army? The way the ICC deals with this question will go a long way in determining the court's place in the international system and the degree to which it represents a shift of power away from the nation state.
A final question for the ICC concerns its handling of the concept of aggression. Currently the ICC has jurisdiction over war crimes, crimes against humanity and genocide -- all recognized without dispute as core crimes under international law. But the ICC statute also says that the court could have jurisdiction over the crime of aggression, if the states that are members of the ICC are able to agree on a definition for it and methods for exercising jurisdiction over it. The Assembly of States Parties is discussing the subject, which is likely to be one of the key issues for the first review conference, expected to take place in 2010.
It is not clear whether any definition will be agreed upon or voted into the statute (which is now open to revision, seven years after the ICC came into being). A special working group has drawn up a draft definition for the crime of aggression that references the United Nations Charter and the United Nations General Assembly resolution on the subject. But unresolved questions do exist, in particular regarding whether or not the United Nations Security Council should be required to provide clearance before the ICC can investigate someone for this crime. Extending the ICC's jurisdiction to include aggression, which has a greater political dimension than the crimes currently dealt with by the ICC, would create further challenges for this young but already significant institution.
Anthony Dworkin is the executive director of the Crimes of War Project, a non-governmental organization that promotes understanding of international humanitarian law and its application in contemporary armed conflict. He is also a senior policy fellow at the Europen Council on Foreign Relations, working on human rights, international justice and international humanitarian law. He co-edited the recent revised and updated edition of Crimes of War: What the Public Should Know. Anthony is a contributing editor of the British journal Prospect and has also written for the Times Literary Supplement, the Guardian, the International Herald Tribune and other publications. He is a member of the Terrorism/Counter-Terrorism Advisory Committee of Human Rights Watch.
Scott Gilmore
Scott Gilmore
Center for Justice and Accountability
"Ending Impunity: The International Criminal Court in the Age of Accountability"
As I write this, the International Criminal Court (ICC) is welcoming its 109th member country. After 10 years of heated debate, Chile -- once ravaged by human rights abuses -- has ratified the Rome Statute, the 1998 treaty that created the ICC. This occasion stands as a major landmark: All of South America has now joined the ICC. The remarkable story of how the ICC reached this milestone is the story of international justice itself.
Just a few decades ago, the southern cone of South America was a geographic triangle of state terror: Paraguay, Brazil, Chile, Argentina. One by one, republics crumbled and the cancer of torture and political violence metastasized to every nation. To the north, in Colombia and Peru, brutal civil wars claimed tens of thousands of civilian lives. This was the continent that made the word "disappear" into a transitive verb, a place where citizens vanished into the night and fog of secret prisons and mass graves.
In the 1980s and 1990s, as South America began to emerge from its long night of repression, few of its citizens would have dreamed that one day their governments would impose accountability for atrocities. Instead, impunity seemed the order of the day. In 1995, former Chilean dictator General Augusto Pinochet announced, "It is best to remain silent and to forget. It is the only thing to do: We must forget. And forgetting does not occur by opening cases, putting people in jail."
This forgetting took the form of law. As part of the negotiated transitions from the old regimes to the new, perpetrators were swaddled in legal amnesty, a word derived from the ancient Greek amnestia, "to forget." Even when criminal prosecutions did proceed -- ICC prosecutor Luis Moreno-Ocampo headed the 1983 trials of Argentine military leaders -- convictions were not enforced or were later rolled back by means of pardons. Forgetting, we were told, was the price of peace.
But as societies debated the question of peace versus justice, something seemed lost: the voices of victims and survivors. For many victims and survivors, impunity spelled neither justice nor peace. In time, this sentiment coalesced into a grassroots movement for international justice. This global grassroots group -- made up of courageous survivors and committed human rights defenders -- soon found institutional expression for its ideas. In the Western Hemisphere, the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights have issued decades of important rulings, and their sanctions include successfully ordering Latin American governments to pay reparations. In Europe and Africa, ad hoc international courts such as the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia promised criminal prosecutions for mass atrocities. Still, these seemed exceptions to the rule.
And then, in 1998, the world changed. With the arrest of Pinochet in London, following an extradition request by a Spanish judge, the age of accountability began. In June of that same year -- by a vote of 120 nations in favor, seven against -- the Rome Statute was passed, establishing the ICC as a permanent tribunal for genocide, crimes against humanity and war crimes and as a court of last resort when states are unable or unwilling to prosecute these crimes. The ICC's mission is inseparable from that of the broader movement for international justice. The ICC was designed to complement, not to replace, national courts. And, remarkably, after it was formed, some national courts began to take the lead in enforcing accountability.
Networks of non-governmental organizations (NGOs) reached across borders to bring human rights cases to trial in many countries. In the United States, organizations such as the Center for Justice and Accountability, the Center for Constitutional Rights and EarthRights International brought human rights cases into federal civil courts. In 2000, a Haitian court convicted 59 officers and officials of the 1994 Raboteau Massacre. In 2005, a Spanish court convicted Argentine officer Adolfo Scilingo of "dirty war" crimes.
The list of prosecutions is growing. Liberian warlord Charles "Chuckie" Taylor was convicted of torture in the United States. His father, President Charles Taylor, is on trial in Sierra Leone. Chadian president Hissène Habré has been indicted in Belgium and is facing prosecution in Senegal. Former Khmer Rouge torturer Kaing Guek Eav (aka Duch) is on trial in Cambodia. Add to this list the 14 indictments for mass atrocities brought by the ICC, and it becomes clear that a cascade of justice is spilling over the globe.
Back in South America, fewer than 20 years after Pinochet lectured Chileans on forgetting the past, accountability is becoming reality. In 2009, the ICC will have jurisdiction over all of South America; this same year, former Peruvian president Alberto Fujimori will begin to serve a 35-year prison sentence for crimes against humanity. With each prosecution secured by the grassroots international justice movement, impunity nears its end.
Scott Gilmore is a writer and researcher with the San Francisco-based Center for Justice and Accountability, a human rights organization dedicated to ending torture and other severe human rights abuses around the world. He is co-founder of a theater company, Le Petit Theatre de l'Absolu, and of the musical groups Black Ox Orkestar and the Silver Mount Zion Memorial Orchestra.
Brett D. Schaefer and Anthony B. Kim
Brett D. Schaefer and Anthony B. Kim
The Heritage Foundation
"Crimes Need to be Punished, But is the ICC the Right Means?"
The International Criminal Court (ICC) -- formally established in 2003 to prosecute war crimes, crimes against humanity, genocide, and the as-of-yet-undefined crime of aggression -- has long held a special place in the hearts of human rights activists and those hoping to hold perpetrators of terrible crimes to account.
Although supporters of the court have a noble purpose, there are a number of reasons to be cautious and concerned about the effect the ICC could have on national sovereignty and politically precarious situations the world over.
One of the most basic principles of international law is that a state cannot be bound by a treaty to which it is not a party. Further, long-standing international legal norms hold that a state cannot be bound to legal assertions that it has specifically rejected. The ICC, however, directly contravenes these norms and precedents of international law; it claims jurisdiction to prosecute and imprison citizens of countries that are not party to the Rome Statute and, more shockingly, over those who have specifically rejected the court's jurisdiction.
Seeking to impose international legal requirements and jurisdiction on unwilling sovereign states is unsupportable, and a clear contravention of international law. It also has significant implications for states that are unable or unwilling to ratify the Rome Statue establishing the ICC.
For instance, both the Clinton administration and the Bush administration concluded that the ICC is a seriously flawed institution that the United States should not join. However, because of the ICC's unprecedented claims of jurisdiction, the United States has had to take unusual steps to protect its citizens and military personnel, including negotiating a network of non-surrender agreements (or Article 98 agreements, after the section of the Rome Statute that permits such arrangements) with as many countries as possible. Countries that sign such agreements with the United States promise, in effect, not to surrender U.S. nationals to the ICC without the consent of the U.S. government.
America pursued Article 98 agreements out of concern that the ICC could be used as a tool by those opposed to its foreign policy to make political statements through ICC prosecutions. Supporters of the ICC disparage this as unnecessary. They claim there are protections in the ICC treaty to prevent abuse of the court -- after all, the court can only intervene in cases committed within the territory or involving a citizen of an ICC party, and then only if that country proves unwilling or unable, in the judgment of the court, to investigate and prosecute alleged crimes.
This is cold comfort. Unscrupulous individuals and groups will seek to misuse the ICC for politically motivated attacks, as demonstrated by those urging the court to indict Bush administration officials for alleged crimes in Iraq and Afghanistan. In the first two years of the ICC, more than 100 charges against U.S. citizens were submitted to the court. While the ICC chief prosecutor declined to pursue these cases, there is no assurance that future cases will be similarly resolved.
Because of its relative lack of checks to prevent it from being misused, the ICC represents a dangerous temptation for those with political axes to grind. This is a lesson currently being learned by Israel. Despite the fact that Israel is not a party to the Rome Statute, the ICC prosecutor is reportedly exploring ways to prosecute Israeli commanders for alleged war crimes committed during the recent actions in Gaza.
Palestinian lawyers argue that Palestine can request ICC jurisdiction as the de facto sovereign even though it is not an internationally recognized state. This is a political twofer for the Palestinians: Pressure is applied to Israel over alleged war crimes while excluding Hamas's incitement of the military action (as well as its war crimes against Israeli civilians) and, at the same time, momentum is increased for Palestinian statehood without the need to make compromises with Israel.
The current situation in Sudan raises other issues. Although the UN Security Council has been largely deadlocked on possible sanctions against the government of Sudan for its role in supporting Janjaweed militia groups that have committed terrible crimes in Darfur, it did pass a resolution in 2005 referring the situation in Darfur to the ICC. Last summer, the ICC announced that it would seek an indictment against Sudanese President Omar al-Bashir for his alleged involvement in crimes committed in Darfur.
Indicting the sitting head of state of Sudan, no matter how awful his role in the Darfur atrocities may have been, could aggravate the situation in Darfur and put more people at risk. Al-Bashir may decide he has nothing to lose, increase his support of the Janjaweed, and encourage an escalation of their attacks to, possibly, include aid workers and UN and African Union peacekeepers serving in UN mission in Darfur.
If it destabilizes the government, it could also rekindle the north-south conflict that saw roughly 2 million people killed in a 22-year civil war ended by a 2005 peace agreement. These dangers spurred African countries, which would bear the most immediate consequences of a more chaotic Sudan, to call on the UN Security Council to defer the al-Bashir prosecution.
Moreover, since the Office of the Prosecutor is largely autonomous, once a case is brought to the ICC, there is little opportunity to resolve disputes, conflicts, or sensitive political issues diplomatically. For instance, Sudan's neighbors may be faced with the choice of arresting al-Bashir, which could spark conflict with Sudan, or ignoring the court's warrant. If Uganda could resolve its long-festering conflict with the Lord's Resistance Army by agreeing not to prosecute its leader, it would have no ability to call off the ICC prosecution.
It is unlikely the ICC prosecutor or its judges will be held to account if its decisions lead to greater carnage in Darfur, or advancing politically motivated charges in Gaza, or prolonging the conflict in Uganda. They are free to act without considering the potential consequences. Those having to deal with the consequences are not so lucky.
For these reasons and others, the United States has declined to join the ICC. It is not alone in its concerns as demonstrated by the many states that are not ICC parties. Major countries like China, India, and Russia have refused to ratify the Rome Statute out of concern that it unduly infringes on their foreign- and security-policy decisions -- issues rightly reserved to sovereign governments.
Even the Obama administration has expressed the need to make sure U.S. troops have "maximum protection" from politically motivated indictments by the ICC and has not rushed to support ratification of the treaty. Do not look for the United States to abandon the Article 98 agreements Washington has signed with some 100 countries around the world anytime soon.
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.
To protect its own interests and to advance the overarching intent of building a credible international criminal court, the United States should continue to insist that it is not bound by the Rome Statute because it has not ratified the treaty; that will not recognize the authority of the ICC over U.S. citizens or consider joining the court without significant changes to the treaty; and that will exercise great care over decisions that support actions of the court in cases like Darfur.
Brett D. Schaefer is a research fellow and Anthony B. Kim is a policy analyst at The Heritage Foundation.