IJCentral: International Justice Central

DURHAM, NORTH CAROLINA — Making war, traditionally a prerogative of presidents and princes, may soon become an international crime.

The states that have signed on to the International Criminal Court are on the cusp of adding “aggression” to that list of crimes that it is empowered to prosecute, alongside genocide, crimes against humanity and war crimes. It would be a game-changer in international diplomacy, but it carries great risk along with its promise.

The idea of prosecuting a country’s leader for ordering a war that violates the United Nations Charter is appealing, until you imagine your own leader in the dock for a war that your countrymen all accepted as self-defense or humanitarian intervention. Just as one nation’s terrorist is another nation’s freedom fighter, one state’s just war is bound to be another state’s unjust war.

Nonetheless, after a decade of negotiations, and against all expectations, the Assembly of States Parties to the I.C.C. has produced a draft.

When asked, many diplomatic delegations explain the draft as the natural culmination of the legacy of the Nuremberg Trials, where Hermann Göring and other top Nazis were prosecuted by an international tribunal for planning, preparing, initiating and waging aggressive war against their neighbors.

The Nuremberg tribunal found Göring and 11 others guilty of what was then known as the “crime against peace,” famously declaring: “To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

Unfortunately, plans by the newly formed United Nations to create an international criminal court with jurisdiction over aggression were sidelined during the Cold War because the United States and Soviet Union couldn’t agree on an enforceable definition.

Now that the Cold War is over, is the Nuremberg precedent still relevant?

The acts that amount to aggression in the I.C.C. definition are familiar to any student of World War II: invasion, bombardment, blockade, attacking the armed forces of another state, contravening an agreement to station forces in another state, allowing one’s territory to be used by another state to attack a third state, and the sending of armed bands. Saddam Hussein’s invasion of Kuwait in 1990 is a textbook act of aggression.

To be on the safe side, the drafters have deliberately defined aggression more narrowly than does customary international law. Under the I.C.C. definition, an enforceable crime of aggression would only capture the most egregious violations of the U.N. Charter, leaving out — to the consternation of many pacifists — leaders implicated in “gray-area” interventions. One example that many of the drafters had in mind was the NATO intervention to prevent ethnic cleansing by Slobodan Milosevic’s forces in Kosovo.

Still, skeptics abound. In a recent speech to the American Society of International Law, Harold Koh, the Yale Law School dean who is currently legal adviser to the U.S. State Department, said, “if you think of the [International Criminal] Court as a wobbly bicycle that is finally starting to move forward, is this frankly more weight than the bicycle can bear?” Koh’s concern is that adopting a definition of something as subjective as aggression could politicize and weaken the young institution.

Michael Glennon, professor of international law at the Fletcher School at Tufts University, warned on these pages (April 6) that implementing the definition will “bollix an international equilibrium that already is precarious enough.” His concern, which I share in part, is that criminal prosecution of aggression could serve to increase political tensions, harden positions and undermine alternative avenues to ending conflicts, such as negotiated solutions.

The drafters respond that there can be no sustainable peace while leaders such as Sudanese President Omar al-Bashir commit crimes against their own and neighboring populations with impunity. They point to peaceful transitions in Serbia and Liberia following the arrest of Slobodan Milosevic and Charles Taylor for other international crimes. The lesson they draw is that bullies should be politically isolated, arrested and held to account — not appeased.

The drafters reject as a false distinction Koh’s position that aggression is fundamentally different from the three currently enforceable I.C.C. crimes — genocide, crimes against humanity and war crimes — because aggression is based on acts committed by a state while the others are crimes directed against particular individuals.

All four international crimes are collective acts of violence, they reply, attributable to political or military leaders against vulnerable individuals. In the case of aggression, the primary victims are the innocent people killed in a war that violates the U.N. Charter.

My hope, along with the drafters, is that individual criminal responsibility for the illegal use of armed force will make international law more credible and will supplant the existing system of collective guilt, whereby populations are sanctioned for the decisions of their delinquent leaders.

It was the Iraqi population, not Saddam’s inner circle, who really suffered under U.N. sanctions after Saddam illegally invaded Kuwait.

Criminal accountability will not end war, but it may change the broader rules of domestic and international politics so that war is no longer such a tempting option.

Had aggression been a prosecutable crime in 2003, Prime Minister Tony Blair — who relied heavily on the legal advice of his attorney general — may have never brought his country to war in Iraq without a Security Council resolution authorizing him to do so.

Along with the skeptics, however, I’m wary of victor’s justice. It is one thing to prosecute a defeated warlord and quite another to arrest the victorious leader of a powerful and modern state. But even victors are liable to prosecution — witness Milosevic and Taylor.

The drafters’ challenge is to temper justice with prudence when they meet in Kampala in June to activate the crime.

A reasonable compromise, in my opinion, is to limit I.C.C. jurisdiction over aggression to states that sign on to the new prohibition, thereby creating a regime of states committed to the prosecution and enforcement of the crime.

What would be lost, at least in the short-term, is the notion of perfect justice universally applicable to political and military leaders worldwide. But what is gained is an incremental shift toward the rule of law in international affairs that may, over time, become the norm.

Noah Weisbord is a visiting assistant professor at Duke Law School and an independent expert on the working group charged by the I.C.C.’s Assembly of States Parties with drafting the crime of aggression.

source: New York Times

Secretary-General Ban Ki-moon today called on every nation to become a party to the Rome Statute that set up the International Criminal Court (ICC), stressing the vital role played by the institution in ending impunity for war crimes, crimes against humanity and genocide.

“Only once every State has ratified the Rome Statute, and taken the necessary steps to make it enforceable at the national level, will there truly be no safe haven for those responsible for the most egregious crimes that can be committed against the core values of humankind,” Mr. Ban said in remarks at a panel discussion held at UN Headquarters.

“The ICC is the centrepiece of our system of international criminal justice,” he added. “To be successful, this system requires full support from the international community.”

Mr. Ban noted that universal ratification of the Rome Statute is one of the main challenges faced by the ICC, an independent, permanent court based in The Hague.

In this connection, he commended Slovakia on the role it is playing as facilitator for the plan of action for achieving universality and full implementation of the Rome Statute, as well as ICC President Judge Song Sang-Hyun for his outreach campaign.

With last month’s ratification of the Rome Statute by Bangladesh, this effort is now bearing fruit, the Secretary-General noted.

Mr. Ban said he will echo his call for universal ratification of the Rome Statute next month in Kampala, Uganda, when States parties meet to take stock of the Court’s achievements and to reflect on its future.

He pledged to do everything in his power to help the Review Conference produce a meaningful outcome, noting that the UN’s efforts to promote peace, development and human rights are closely linked to the work of the ICC.

“We need and want the Court to succeed,” he stated. “Our partnership is expanding, for example in the pursuit of justice in post-conflict societies. I am determined to push forward further still in our common fight to end impunity and strengthen accountability.”

source: UN News Centre

Whoops, spoke too soon about the WSJ’s anti-ICC editorial.  It does indeed contain a lie — and its a doozy:

What’s more, no amount of reform of the founding treaty will change the ICC’s inherent flaw. The ICC is a child of the doctrine of “universal jurisdiction,” which holds that courts can adjudicate crimes committed anywhere in the world.

As anyone who has spent five minutes reading the Rome Statue knows, the Court is based on two forms of jurisdiction: territorial and active-nationality.  Both of which the U.S. uses and accepts that other states may use.  Proposals to base the ICC on universal jurisdiction were soundly rejected during the drafting of the Rome Statute.
Not that the Editorial Board of the WSJ cares.  In the absence of facts, lies suit them just fine.

source: Opinio Juris

President Obama flirts with the ‘world court.’

Step by tentative step, the Obama Administration is getting closer to embracing the International Criminal Court. The White House won’t join the Hague-based body soon, but that’s its logical endpoint.

Answerable to virtually no one, the ICC was created by the 1998 United Nations’s Rome Statute to prosecute war and other “serious” crimes. It has yet to convict anyone. President Clinton signed the Rome treaty but didn’t submit it for Senate ratification and urged his successor not to, citing the absence of protections against prosecutions of America’s servicemen. In 2002, the Bush Administration informed the U.N. that the U.S. felt in no way legally bound by Mr. Clinton’s signature.

The Obama Administration is taking steps to re-engage with the ICC. For the first time, the U.S. showed up last November at a meeting of ICC signatory countries. The American delegation included the State Department’s top lawyer, Harold Koh, a vocal ICC proponent. Next month, U.S. observers will go to a special “review conference” in Uganda that will consider changes to the Rome Statute.

Some U.S. officials, such as Mr. Koh, support what they call “pragmatic cooperation” with the ICC—for example, helping it with investigations and sitting in on court bodies.

Proponents argue that this would give the U.S. a voice on decisions that affect its interests, such as helping the ICC define the “crime of aggression.” U.S. officials were stunned that a recent draft defining aggression was so wide-reaching that NATO would have been criminally liable in the 1999 Kosovo war. The court’s powers aren’t retroactive, but proponents ask why shouldn’t the U.S. be in the room to stop this nonsense in the future?

Color us skeptical. The ICC’s indictments have so far targeted nasty characters in Africa, but the court has always resisted outside oversight, especially from the U.S. What’s more, no amount of reform of the founding treaty will change the ICC’s inherent flaw. The ICC is a child of the doctrine of “universal jurisdiction,” which holds that courts can adjudicate crimes committed anywhere in the world. Politically ambitious prosecutors in Belgium, Britain and Spain have invoked “universality” to go after Ariel Sharon and Donald Rumsfeld, among others, for alleged war crimes.

Eight years ago, Mr. Koh hailed the court’s creation as “an international Marbury versus Madison moment,” referring to the 1803 Supreme Court decision that gave a fledgling court authority over other branches of government. By this logic, the world court should have similar power over America’s democratic decisions and global leadership. No thanks.

From the Balkans to East Timor to the Mideast, these pages have welcomed international action to stop atrocities. In select cases, such as the U.N. war crimes tribunal for the former Yugoslavia, we’ve backed ad hoc courts with a narrow mandate, limited life and proven commitment to fairness. The ICC meets none of those standards.

Moral grand-standing via indictments also isn’t the same as doing something about crimes against humanity. The indictment of Sudan’s butcher of Darfur, President Omar Hassan al-Bashir, made him harder to dislodge, and absent serious intervention, it has probably prolonged the suffering there.

The ICC is spending $125 million on a six-building campus near the Hague. The U.S. may not be able to stop the latest U.N.-style bureaucracy from rising, but that’s no reason to invest American credibility and resources in this project.

source: Washington Street Journal

Members of the U.S. Congress are circulating a “Dear Colleague” letter to oppose the Obama administration’s decision to participate in a conference of the International Criminal Court. Next month, an American delegation will attend the International Criminal Court’s first “Review Conference” in Kampala, Uganda. At the meeting, countries that have ratified the treaty that created the ICC—called the Rome Statute— will decide whether or not to make certain amendments to it.

The United States has not ratified the court, so it has no “official” say in the process that may lead to certain amendments. However, the Obama administration is sending a delegation to the conference in hopes of influencing the results from the sidelines. Of particular concern to the United States is a proposed amendment that would have the “crime of aggression” fall under the ICC’s jurisdiction. Back in the late 1990s, the Clinton administration fought hard to keep that crime—which is generally understood to mean one country invading another without Security Council authorization—off the list of ICC-punishable offenses. Given the fact that both the Kosovo and Iraq conflicts proceeded without Security Council authorization, you can see why this is a sensitive issue for the United States.

It would seem that the Obama administration believes that by engaging with other ICC members directly it can steer the outcome of a decision on aggression in USA’s favor. Even though the United States is not a member of the ICC, the Obama administration recognizes that the ICC exists and is something that many of its allies take seriously.  Rather than pretending this meeting doesn’t not exist, it is seeking diplomatic engagement to pursue its interests.  This is what you might call a reality-based approach to international relations.

On the other hand, you have a group of anti-engagement types in the U.S. Congress who definitely don’t like the ICC and would prefer that the Obama administration ignore the conference.  They believe that “engagement will do nothing to remedy the major defects of the Rome Statute.”  But how do you know if you won’t even try?

Here’s the full text of the letter:

Protect U.S. Troops and American Sovereignty from the
International Criminal Court

Cosponsor H.Con.Res. 265, a Resolution Raising Concerns

Current Cosponsors: Ros-Lehtinen, L. Smith, Garrett, McCotter, Lamborn, W. Jones, Burton, Franks, Chaffetz, Latta, Bachmann, Pitts, Akin, Kingston, Gohmert, Conaway, S. King, McClintock, Gingrey, Burgess, Manzullo, Marchant, H.Brown, Wittman, Jordan, Poe, Posey, Souder

Dear Colleague,

We urge you to join us in expressing the sense of the Congress that the United States should neither become a signatory to the Rome Statute on the International Criminal Court nor attend the Review Conference of the Rome Statute in Kampala, Uganda in May 2010.

That American troops could face criminal indictments in a foreign court for actions taken in the defense of U.S. national security interests is abhorrent. Yet in September 2009 the Office of the Prosecutor for the International Criminal Court announced that it was investigating accusations of war crimes and crimes against humanity allegedly committed by U.S. and NATO forces fighting in Afghanistan.  This presumably would implicate members of both the Bush and Obama Administration.  As such, today we are closer than ever before to a reality where American soldiers, Marines, and other military personnel could be brought before an international tribunal, without any of their constitutional rights, to face criminal charges.

The United States must not become a party to the treaty that makes such charges possible—the Rome Statute on the International Criminal Court. But in August 2009 Secretary of State Hillary Clinton stated that it was a “great regret that we are not a signatory” to the Rome Statute.

A major step on the road towards U.S. membership in the ICC is mere months away. From May 31 to June 11 an international conference will be held in Kampala, Uganda to consider proposals for amendments to the Rome Statute.  The Administration’s plan to participate in the Review Conference is in error. Engagement will do nothing to remedy the major defects of the Rome Statute, including:

·      That the ICC claims the power to exercise authority and jurisdiction over the citizens of nations—including the United States—that have not ratified the Rome Statute;

·      The Rome Statute would revoke rights guaranteed by the Constitution to American military personnel and U.S. government officials charged with crimes, including the right to a jury trial by one’s peers, protection from double jeopardy, the right to confront one’s accusers, and the right to a speedy trial.

To cosponsor H.Con.Res. 265, a resolution opposing the United States joining the Rome Statute or participating in the upcoming review conference, please contact Kristine Michalson in Congressman Lamborn’s office by emailing Kristine.Michalson@mail.house.gov.

Sincerely,

Doug Lamborn                 Thaddeus McCotter                   Scott Garrett

Member of Congress           Member of Congress                   Member of Congress

Members of the U.S. Congress are circulating a “Dear Colleague” letter to oppose the Obama administration’s decision to participate in a conference of the International Criminal Court. Next month, an American delegation will attend the International Criminal Court’s first “Review Conference” in Kampala, Uganda. At the meeting, countries that have ratified the treaty that created the ICC—called the Rome Statute— will decide whether or not to make certain amendments to it.

The United States has not ratified the court, so it has no “official” say in the process that may lead to certain amendments. However, the Obama administration is sending a delegation to the conference in hopes of influencing the results from the sidelines. Of particular concern to the United States is a proposed amendment that would have the “crime of aggression” fall under the ICC’s jurisdiction. Back in the late 1990s, the Clinton administration fought hard to keep that crime—which is generally understood to mean one country invading another without Security Council authorization—off the list of ICC-punishable offenses. Given the fact that both the Kosovo and Iraq conflicts proceeded without Security Council authorization, you can see why this is a sensitive issue for the United States.

It would seem that the Obama administration believes that by engaging with other ICC members directly it can steer the outcome of a decision on aggression in USA’s favor. Even though the United States is not a member of the ICC, the Obama administration recognizes that the ICC exists and is something that many of its allies take seriously.  Rather than pretending this meeting doesn’t not exist, it is seeking diplomatic engagement to pursue its interests.  This is what you might call a reality-based approach to international relations.

On the other hand, you have a group of anti-engagement types in the U.S. Congress who definitely don’t like the ICC and would prefer that the Obama administration ignore the conference.  They believe that “engagement will do nothing to remedy the major defects of the Rome Statute.”  But how do you know if you won’t even try?

Here’s the full text of the letter:

Protect U.S. Troops and American Sovereignty from the
International Criminal Court

Cosponsor H.Con.Res. 265, a Resolution Raising Concerns

Current Cosponsors: Ros-Lehtinen, L. Smith, Garrett, McCotter, Lamborn, W. Jones, Burton, Franks, Chaffetz, Latta, Bachmann, Pitts, Akin, Kingston, Gohmert, Conaway, S. King, McClintock, Gingrey, Burgess, Manzullo, Marchant, H.Brown, Wittman, Jordan, Poe, Posey, Souder

Dear Colleague,

We urge you to join us in expressing the sense of the Congress that the United States should neither become a signatory to the Rome Statute on the International Criminal Court nor attend the Review Conference of the Rome Statute in Kampala, Uganda in May 2010.

That American troops could face criminal indictments in a foreign court for actions taken in the defense of U.S. national security interests is abhorrent. Yet in September 2009 the Office of the Prosecutor for the International Criminal Court announced that it was investigating accusations of war crimes and crimes against humanity allegedly committed by U.S. and NATO forces fighting in Afghanistan.  This presumably would implicate members of both the Bush and Obama Administration.  As such, today we are closer than ever before to a reality where American soldiers, Marines, and other military personnel could be brought before an international tribunal, without any of their constitutional rights, to face criminal charges.

The United States must not become a party to the treaty that makes such charges possible—the Rome Statute on the International Criminal Court. But in August 2009 Secretary of State Hillary Clinton stated that it was a “great regret that we are not a signatory” to the Rome Statute.

A major step on the road towards U.S. membership in the ICC is mere months away. From May 31 to June 11 an international conference will be held in Kampala, Uganda to consider proposals for amendments to the Rome Statute.  The Administration’s plan to participate in the Review Conference is in error. Engagement will do nothing to remedy the major defects of the Rome Statute, including:

·      That the ICC claims the power to exercise authority and jurisdiction over the citizens of nations—including the United States—that have not ratified the Rome Statute;

·      The Rome Statute would revoke rights guaranteed by the Constitution to American military personnel and U.S. government officials charged with crimes, including the right to a jury trial by one’s peers, protection from double jeopardy, the right to confront one’s accusers, and the right to a speedy trial.

To cosponsor H.Con.Res. 265, a resolution opposing the United States joining the Rome Statute or participating in the upcoming review conference, please contact Kristine Michalson in Congressman Lamborn’s office by emailing Kristine.Michalson@mail.house.gov.

Sincerely,

Doug Lamborn                 Thaddeus McCotter                   Scott Garrett

Member of Congress           Member of Congress                   Member of Congress

source:  UN Dispatch

AMSTERDAM (Reuters) - The International Criminal Court in The Hague rejected Monday a prosecution request to appeal against a decision dismissing war crimes charges against a Sudanese rebel leader, effectively ending the case.

The prosecutor has alleged Bahar Idriss Abu Garda helped orchestrate the killing of 12 African Union peacekeepers in Darfur in 2007, but the court said in February it was not satisfied there was enough evidence to warrant the charges.

The prosecution requested the right to appeal the ruling, stressing that the court applied a standard of evidence much higher than what was required and that it was wrong to conduct an “in-depth assessment of the evidence” at that stage.

“The proposition put forward by the prosecution, namely that the chamber should have applied a different standard to the assessment of the evidence at the confirmation of the charges stage, is without any legal basis,” the court said in its ruling.

It added that although the prosecution believes the chamber should have assessed the evidence differently, the court said it has exercised its discretionary powers to freely assess the evidence submitted by the prosecution.

The first Sudanese rebel to appear before the court in The Hague, Abu Garda denied all charges when he voluntarily attended a hearing in October to determine if he should face trial over the attack on the AU peacekeeping base.

He was one of three Sudanese rebels wanted in connection with the attack, but the war crimes court threw out the charges against Abu Garda in February after ruling he could not be held criminally responsible for intentionally directing the attack.

Despite rejecting the request to appeal that ruling, the court said in a Friday ruling made public Monday the prosecution could still seek to place Abu Garda on trial if it lodged a new request supported by additional evidence.

source:  Washington Post

Sudan’s President Omar al-Bashir has been declared the winner of this month’s landmark elections, despite facing war crimes charges over Darfur.

The polls were one of the world’s most complex ever and Sudan’s first multi-party elections in 24 years.

Former rebel leader Salva Kiir has been be confirmed in power in the semi-autonomous south in the first polls since the north-south war ended.

Observers and opposition parties have complained of fraud in north and south.

Tension was raised over the weekend, with reports of clashes along the north-south border.

Some 55 people were said to have been killed in clashes between an Arab community and southern soldiers.

Credibility dented

The BBC’s James Copnall in Khartoum says President Bashir’s re-election could be interpreted as a popular rebuke for the International Criminal Court, which has issued an arrest warrant against him for war crimes in Darfur.

Sudan’s leader strongly denies the charges.

His two main challengers withdrew before the elections began, claiming that the process had already been rigged.

Our correspondent says these accusations and withdrawals have dented the credibility of the elections.

The EU and the Carter Centre said the polls were below international standards.

But former US President Jimmy Carter said he believed the international community would recognise the winners all the same

Mr Bashir and his National Congress Party were already well ahead in the results already announced from the 11-15 April elections.

As well as the national and southern presidential contests, elections were also held for the national, regional and state parliaments and state governors.

The weekend violence was the most serious since the polls.

The clashes reportedly began over grazing rights for cattle - a common source of conflict in the area.

But southern government officials say their soldiers were attacked by members of the northern army - charges denied in Khartoum.

The SPLM joined a national coalition government after a 2005 peace deal but relations remain tricky between the supposed partners.

A referendum is due in 2011 on whether the south, where most people are Christian or follow traditional religions, should secede from the Arab-dominated mostly-Muslim north.

Mr Bashir has said he would respect the outcome of the referendum but some fear conflict could resume, especially in the oil-rich border region.

source:  BBC

Prosecutors have asked International Criminal Court judges to involve the UN Security Council in Sudan’s refusal to execute arrest warrants for a government official and a militia leader, a court document showed on Thursday.

       
In a request filed earlier in the week, the office of the prosecutor asked judges to issue a “finding of non-cooperation” against the government of Sudan, which would allow the court to “refer the matter to the Security Council”.
       
“The government of Sudan has not cooperated with the court in relation to the arrest warrants” issued by the court in April 2007 for Ahmed Haroun and Ali Kosheib, said the filing.
       
“To the contrary, the government of Sudan continues to commit crimes, promotes and protects the persons sought by the court and harasses all persons who are considered to be in favour of justice.”
       
The warrants for Haroun, Sudan’s former secretary of state for humanitarian affairs turned governor, and Janjaweed militia leader Kosheib, list 51 counts of crimes against humanity and war crimes allegedly committed in Darfur.
       
Charges include murder, torture, mass rape and the forced displacement of entire villages.
       
Sudan’s President Omar al-Bashir, for whom the ICC has also issued an arrest warrant, has repeatedly stated he would not hand the two men over to the court.
       
The filing reminds the court that it has the power to refer cases to the UN Security Council for action when countries refuse to cooperate.
       
“The chamber should conclude that the government of Sudan’s actions as well as inactions are intended to impede the fair and expeditious conduct of proceedings,” the document said.
The Security Council referred the situation in Sudan, which is not a state party to the ICC’s founding statute, to the court in March 2005 for investigation.

Source: RNW Africa Desk