Tuesday, December 21, 2010

East Bay (Calif.) Dinner Forum: The International Criminal Court and New Moves by the Obama Administration

The status of the International Criminal Court was laid out for the members of the United Nations Association-USA East Bay Chapter at a dinner-forum in observance of Human Rights Day, 10 December. The speaker, Dr. Rita Maran, began by countering the popular understanding that the ICC is a UN-based court. Dr. Maran offered chapter and verse on the Court’s separate status from the UN, with nevertheless a relatively lengthy history as a project of the UN General Assembly Third Committee over several decades. US legal scholars, including several from the Bay area Schools of Law, were positive participants throughout those years. The Rome Statute of the International Criminal Court entered into force in July 2002, and well over 100 states party have ratified it.

President Bill Clinton signed the Rome Statute of the ICC before leaving office. However, the second Bush administration took the unusual step of withdrawing President Clinton’s signature from the treaty, thereby leaving the US without any connection to the Court and the ICC's jurisdiction over three crimes: genocide, crimes against humanity, and war crimes.

The Court has earned the respect of the international legal community by, if anything, leaning over backward to ensure even-handed justice to all participants in its trials. For example, in October 2010, the first regional diplomatic conference on the ICC in and for the Middle East was held in Doha, State of Qatar. This regional event, sponsored by the State of Qatar was undertaken together with the League of Arab States in co-operation with the ICC. In expressing her deep admiration and respect for Middle Eastern cultures and civilizations, Ms Arbia, Registrar of the International Criminal Court, stated that “there is, in the region, misinformation about the mandate and functioning of the ICC. The ICC is an independent multi-organ international judicial institution, with a whole host of checks and balances in place that exists to apply the law, guarantee fair trials, and ensure that justice is applied equally across the board” She stressed the importance of the rights of victims in proceedings before the Court - a novelty in international criminal law - and stated that “at the International Criminal Court, victims can, for the first time in the history of the discipline, participate actively in the proceedings, have their voices heard, and request reparations in case of convictions.” The Court is broadening and refining its treatment of victims and survivors with a particular focus on crimes against women and children. A number of appeals have begun to clarify the details of how the Court should handle victims and survivors.

In the first week of the ICC Review Conference in Kampala, Uganda, “stocktaking” was stressed; that is, 1) the Court was examined in terms of doing its job correctly within the international justice system; 2) the use and efficacy of various means of cooperation such as arrest warrants; 3) the challenge in terms of cooperation with non-party states. “Complementarity” was another issue focused on during the Review Conference. In rough terms, complementarity indicates that in national justice systems, national courts continue to occupy the primary position. The ICC is not a court of primary jurisdiction, but is secondary, and may be called into operation when the appropriate national court cannot or will not undertake the case.

With respect to the changes in policy evidenced by the Obama administration, the State Department sent an observer delegation to the Kampala Review Conference of the ICC earlier in 2010. The delegation was headed by Harold Koh, Legal Adviser to the State Department and former Dean of Yale Law School, and Stephen Rapp, newly-appointed Ambassador-at-Large for War Crimes Issues. Both US officials actively participated in all parts of the Review Conference, and are reported to have returned from it well-satisfied with the outcome. It appears to betoken a growing relationship of support and assistance to the ICC Prosecutor and his office, and gives rise to the hope that the US will continue to attend and participate actively. These actions would complement the Obama foreign policy, especially its elements of collective intergovernmental action in support of accountability and rule of law.

ICC in the Media, Update #17

As we reported earlier, this week ICC Prosecutor released his list of five Kenyans he believes to be most responsible for the 2008 post-election violence. Most notably, the list included Uhuru Kenyatta, the son of Kenya's first President and current Minister of Finance, and opposition party William Ruto, a prominent politician and, until recently, Minister of Higher Education. Already those accused have stepped out insisting their innocence. Uhuru has said that his only crime was trying to assist people, but has stated that he will cooperate with the ICC if his case should go forward. Joshua Sang, a journalist named by Ocampo, has expressed his shock at being included, since he is the only suspect that is not a prominent businessman or politician. However, all parties face serious charges of crimes against humanity for causing the murder, torture and rape of innocent victims. During the next several months the ICC judges will decide whether to pursue any or all of these claims; it is expected that they will reach a decision early next year. In other news, Omar al-Bashir, President of Sudan, cancelled his trip to Zambia on Wednesday, presumably out of fear of being apprehended on ICC charges of crimes against humanity, war crimes and genocide. Zambia is a member state of the ICC and was legally bound to arrest him had he attended, although a government spokesperson said that they would not have honored their obligation to do so. Photo credit: Daily Nation.

Friday, December 17, 2010

AMICC's Report on the Ninth Session of the Assembly of States Parties

The AMICC secretariat participated in the ninth session of the Assembly of States Parties (ASP) at the United Nations in New York, December 6-10, 2010. AMICC’s report is now available on our website. You can also watch John Washburn’s video interview with US Ambassador-at-Large for War Crimes Issues Stephen Rapp released on AMICC’s blog and YouTube channel to coincide with Human Rights Day on December 10.

President Obama Issues Statement in Support of ICC's Kenya Announcement

In response to the ICC Prosecutor's announcement on December 15 seeking summonses to appear for six individuals alleged to have committed crime against humanity as part of post-election violence in 2007, President Obama issued a statement endorsing the ICC's action and urged "all of Kenya’s leaders, and the people whom they serve, to cooperate fully with the ICC investigation." It follows the pattern in Washington of mentioning the ICC favorably in connection with specific situations and cases, but not in general.

Wednesday, December 15, 2010

Breaking News: ICC Prosecutor Announces Summons for the Situation in Kenya

Today ICC Prosecutor, Luis Mereno-Ocampo, announced summons for six individuals that his office believes are responsible for the 2007-2008 post-election violence in Kenya. This violence left over 1,100 people dead, 3,500 injured and nearly 600,000 displaced. In addition, there were hundreds of reported rapes and over 100,000 properties were destroyed.

The Prosecutor believes he has found reasonable grounds to prove that the following six individuals committed crimes against humanity during the violence in Kenya.

1. William Samoei Ruto is the current Minister of Higher Education, Science and Technology. However, is also currently suspended from the position. The Prosecution believes that he was one of the principal planners and organizers of the violence.

2. Henry Kiprono Kosgey is the current Minister of Industrialization. The Prosecution suspects him of being another one of the principal organizers.

3. Joshua Arap Sang - currently Head of Operations, KASS FM and during the PEV: Radio broadcaster. The Prosecution considers that he was one of the principal planners and organizers of crimes against PNU supporters.

4. Francis Kirimi Muthaura is the Head of the Public Service and Secretary to the Cabinet and Chairman of the National Security Advisory Committee. The Prosecution believes that he mobilized the Police and allowed them to use excessive force.

5. Uhuru Muigai Kenyatta is the current Deputy Prime Minister and Minister of Finance. The Prosecution believes he helped to mobilize criminal organizations to perpetrate violence.

6. Mohamed Hussein Ali is the current Chief Executive of the Postal Corporation of Kenya and during the violence he was Kenyan Police Commissioner. The Prosecution believes that during the violence he authorized the use of excessive force and mobilized police.

These summonses constitute two separate cases. The first includes the first three suspects and the second, the last three.

The Prosecutor ended his announcement by noting that “these were not just crimes against innocent Kenyans. They were crimes against humanity as a whole. By breaking the cycle of impunity for massive crimes, victims and their families can have justice. And Kenyans can pave the way to peaceful elections in 2012.”

Banda and Jerbo case: Confirmation of Charges Hearing Video Summary

Check out this video released last week of the December 8 confirmation of charges hearing in the case of The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus. They are suspected of three counts of war crimes allegedly committed during a September 29, 2007 attack on AU peacekeepers in North Darfur.

Monday, December 13, 2010

ICC in the Media, Update #16

This week the International Criminal Court held its 9th Assembly of States Parties session in New York which AMICC attended and reported on. However, outside of the U.S. there have been a number of ICC related developments in the media. ICC Prosecutor told the U.N. Security Council on Thursday that the violence in Sudan continues and President Bashir has not taken action to end it. Ocampo also relayed to the Council that Sudan has not cooperated with the ICC in its attempt to ensure justice for the region. President Bashir has been invited to a summit in Zambia on Wednesday, but has yet to confirm his attendance. Zambia is a member state of the ICC, but has not commented on whether it will attempt to arrest Bashir if he visits. In other news, the ICC Prosecutor is set to name the 6 individuals most responsible for Kenya's 2008 post-election violence on December 15, 2010 when he will appear before the ICC judges. It has been reported that this event has thrown prominent members of the government into a state of panic, and revived calls for a local tribunal to be created to avoid the ICC. Photo credit: AFP.

Friday, December 10, 2010

Final Day at ASP 2010

Today at 4:30pm the 9th session of the Assembly of States Parties was officially closed. This years saw the passage of several important resolutions; namely the Independent Oversight Mechanism and approval for an increased budget. The United States delegation was engaged and pleased with the outcome of this meeting.The President of the Assembly closed the meeting by congratulating the state parties on all of their hard work of the last week and reminded them that "we are able to find consensual solutions to difficult problems if we approach them in a constructive manner."

We will provide you with a  more comprehensive summary of the entire week in our final report due out next week.

Thursday, December 09, 2010

[WATCH: BREAKING NEWS] Exclusive interview with US Ambassador for War Crimes Stephen Rapp

Ambassador Stephen Rapp. Photo by Hannah Dunphy
To mark International Human Rights Day 2010, AMICC conducted an exclusive interview with US Ambassador for War Crimes, Stephen Rapp. The Ambassador was in New York as a lead part of a US delegation to the 9th session of the ICC's Assembly of States Parties meeting at the United Nations. Watch the whole series below!

To watch the rest of the interview click on the following links:

This video series was directed by AMICC Outreach Coordinator Hannah Dunphy and edited by Professional Associate Sierra Ortega.

Wednesday, December 08, 2010

Photos from the 9th ASP

AMICC and our fellow NGO participants at the 9th ASP are doing some great reporting, bringing the ASP to you! For Twitter, follow us (@USfortheICC), the Coalition for the International Criminal Court (@_CICC), or check out Citizens for Global Solution blog, which is updated by Ariela Blatter.

Photos are on AMICC's Facebook fanpage or visit the CICC's Flickr page (this one includes some familiar AMICC faces!):


Tuesday, December 07, 2010

ASP 2010: Day 2 Summary

The day began with a presentation by the Committee on Budget and Finance. The full report can be accessed here. In addition to general budget matters the officials also spoke on governance and accountability concluding that "no officials of the court should be exempt from accountability for administrative matters". The independent audit of the Court brought up issues involving the construction of the permanent premises of the Court and called for a full disclosure of budget information. You can view the proposed 2011 budget here.

Today also saw the continuation of the general debate. The delegate from the DRC passionately spoke of his nation's first hand experience with violence claiming that "wars and all forms of violence...know no nationality". He then described the way cooperation with the ICC has allowed the DRC to vastly improve their own court system. Ambassador Stephen Rapp spoke on behalf of the United States. For a summary of his speech or for a full transcript of this speech visit the links. The general debate will conclude on Thursday.

Don't forget to follow us on Twitter (USfortheICC) for live tweets all week from the ASP! For our Facebook photo album of the ASP click here.

United States Addresses ICC Assembly at United Nations

At the 9th session of the ICC's Assembly of States Parties meeting at the United Nations, the United States spoke as a non-state party in support of the work of the Court.

The Ambassador spoke to the success of the Review Conference in Kampala, Uganda, and reminded the assembly that the United States has worked in a cooperative manner with other states to achieve important decisions on stocktaking and other aspects of the Review Conference. At the end of his speech, Ambassador Rapp spoke passionately about the importance of the ICC. "We owe to all of humankind," said Rapp, "to make the institutions of international and national justice so effective that individuals will be deterred from committing acts of genocide, war crimes, and crimes against humanity."

Photos by Hannah Dunphy for the American Coalition for the International Criminal Court (AMICC)

Monday, December 06, 2010

ASP 2010: Day 1 Summary

Today, the first day of the Assembly of States Parties, began with the general debate. During the first session we heard from several individuals including: the President of Columbia, the President of the ICC, Song Sang-Hyun, the ICC prosecutor, Luis Mereno-Ocampo, and the representative from the European Union. They spoke of both the successes and challenges still facing the court.

President Song addressed the issues of the budget in great detail commenting that "no case should be postponed for financial reasons". He explained that budget cuts would seriously harm Court's ability to proceed with trials.

The Prosecutor gave a brief overview of all of the cases currently before the Court and the progress being made in those prosecutions. Perhaps the most interesting news was the Prosecutor's announcement that the Court would begin to examine the situation on the Korean Peninsula, specifically the recent attack by North Korea on a small South Korean island. He explained that the Court has jurisdiction over crimes committed on South Korean soil and so may be able to move forward after a preliminary investigation.

During the lunch break an event was held with ICC Judge Adrian Fulford. He spoke about the challenges the Court has been facing in securing timely trials. He stated that the whole process "takes far to long" and that it "is critical to learn quickly from the delays of the past and ensure they are not repeated". He then presented six proposals intended to boost the speed of trials. Many of the proposals called for re-evaluation of the evidence and testimony gathering and reporting procedures.

The afternoon session of the general debate saw the presentation of 21 delegations including Uganda, Kenya, and Brazil. Many of the delegates simply reaffirmed their countries commitment to the ICC and called upon all in attendance (whether state party or not) to support and cooperate with the Court. Only Uganda vocalized any regrets about the Court. The delegate claimed the the fact the Joesph Kony and other leaders of the LRA are still fugitives "tests [their] commitment to the Court". They called upon all nations to ensure that those individuals with ICC warrants for their arrest, that still at large, are brought to justice.

Keep checking the blog all week for daily updates and follow us on Twitter for live tweets all day from the ASP!

Assembly of States Parties 2010

All this week a delegation from AMICC will be at the 9th Annual Assembly of States Parties. We will be providing updates through this blog, our Facebook page, and doing some live tweeting on Twitter.

Don't forget this Friday, in celebration of Human Rights Day, we also have a special video interview with US War Crimes Ambassador, Stephen Rapp!

Stay tuned for more updates!

Sunday, December 05, 2010

ICC in the Media, Update #15

This week Omar al-Bashir missed two international events out of fear of being arrested and delivered to the ICC. He had planned to visit celebrations in the Central African Republic and a summit in Libya, but cancelled abruptly. Prior to his canceling, the ICC urged the Central African Republic to arrest Bashir if he chose to appear. As we blogged about earlier this week, Luis Moreno Ocampo is preparing to release the names of the six individuals most responsible for the Kenyan post-election violence. He has chosen to ask the judges to summon the individuals voluntarily to the court instead of applying for arrest warrants. Several individuals concerned that they may be named by the ICC, such as William Ruto, have claimed evidence of ICC witnesses being coached and say that a number of witnesses who provided incriminating testimony to the ICC no longer wish to testify. Other Kenyan MPs have claimed that the ICC process is merely a plot to remove Uhuru and Ruto from the 2012 elections. These allegations have been widely criticzed from both within and outside of the political ring. In other news the Bemba trial continues in its second week as scheduled. This week the judges heard testimony from an expert on gender crimes and post-traumatic stress disorder and a victim of gang rape by Bemba's soldiers. Photo credit: Daily Nation.

Friday, December 03, 2010

Moving Forward on Prosecutions in Kenya

Yesterday, ICC Prosecutor, Luis Mereno-Ocampo, confirmed that on December 17th he will publicly announce summons for the six individuals he believes are responsible for the post-election violence in Kenya in 2007. He has affrimed that "the responsibility of six individuals who in accordance with the evidence bear the greatest responsibility for the crimes committed will be evaluated in court. These people will go to The Hague". He has not stated why he will not apply for arrests warrants but this action is not without precedent. In June of this year two Sudanese rebels, Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, came to the ICC under summons.

Thursday, December 02, 2010

Bemba Trial Wraps-up its Second Week

The war crimes and crimes against humanity trial of Jean-Pierre Bemba, former Vice President of the Democratic Republic of the Congo, began last week on the 22nd of November in The Hague. (For background on the situation and Bemba’s arrest see: http://www.amicc.org/docs/BembaCC.pdf)

Jean-Pierre Bemba confers with a member of his defense.
(International Criminal Court)
The trial is the first of its kind to be heard at the ICC. It is the first in which a military commander is being held criminally responsible for crimes troops under his command committed. In addition, this trial features the most prominent individual ever to be tried by the court. The focus of the trial will be on the use of sexual violence, namely rape, as a weapon of war. Mr. Bemba has pleaded innocent to all 5 charges against him.

This week saw the presentation by the first witness; an individual known only by the pseudonym ‘Witness 38’. The witness explained that rebels under the leadership of Mr. Bemba are responsible for widespread rape, murder, pillaging, and persecution in the Central African Republic (CAR). Witness 38 explained that “the people who were not physically beaten were psychologically attacked by Bemba’s rebels”

Mr. Bemba’s defense has argued that the rebels, as soon they crossed the border from the DRC into the CAR, came under the authority of the then president Ange-Félix Patassé and not that of Mr. Bemba. In addition, the defense has claimed that the arrest and detention of Mr. Bemba was based on false information.

However, the prosecutor, Luis Moreno-Ocampo stated that at the beginning of their investigations, the prosecution thought Mr. Patassé and Mr. Bemba were equally responsible for the crimes committed in the CAR. “However” he explained, “the evidence shows that the troops were always under the authority, command, and control of Jean-Pierre Bemba and not under the authority of Patassé and that is why, according to the evidence, we charged Jean-Pierre Bemba”.

Prosecutor, Luis Mereno-Ocampo, participates in ICC proceedings.
(International Criminal Court)
For more daily, weekly, and monthly updates about the trial please visit www.bembatrial.org or if you would like to watch the proceedings live check out the ICC Hearing Schedule.

Monday, November 29, 2010

ICC Heralds Initial Success in Campaign to Recruit Female Lawyers from Africa

Counter to claims by American opponents about the ICC and Africa and about access to the Court for women professionals, this recent press release from the ICC shows the Court being innovative and effective on both counts. In countries – not just in Africa - where as lawyers women are not on an equal footing with men, the ICC is another and welcome professional opportunity. For the Court, women lawyers at its bar are essential to meeting both its Statute’s emphasis on gender equality and the expectations of its States Parties.

ICC in the Media, Update #14

This week the media followed the start of the Jean-Pierre Bemba trial at the ICC. It began with Bemba pleading not guilty to three counts of war crimes and two counts of crimes against humanity, including charges of rape, pillaging and murder committed by his army. The Prosecution's first witness testified to a young girl being raped in front of her mother by Bemba's army, saying that those who did not consent to being raped or pillaged were beaten or shot. The witness was reportedly one of 759 victims who have been authorized to take part in the trial thus far. Bemba has denied having any control over his army while it was in the Central African Republic. In other news, ICC Prosecutor Ocampo recently met with Kenya's President Kibaki and Prime Minister Odinga to discuss with them the next steps toward securing justice for victims of the 2008 post-election violence. Ocampo has said that he will release the names for those to be submitted to the ICC as early as before December 15, 2010, when he is expected to go before ICC judges to request indictments. This is said to depend on whether his request for an open court on that date is accepted. Photo credit: Daily Nation.

Tuesday, November 23, 2010

AMICC Participation in Upcoming ASP meeting in New York, December 6-10

This year’s Assembly of States Parties will be held on December 6-10 at the United Nations in New York City. Representatives from the 114 state parties, several observer states, including the US, and NGOs concerned about the ICC will come together with ICC officials to discuss the financing, governance, and effectiveness of the ICC.

This is a regular session of the ASP, the ICC governing body, the ninth of its kind. Discussions at the meeting will include reviewing and approving the ICC’s annual budget, revisiting the stocktaking aspect of the Review Conference in Kampala earlier this year, reports on the activities and projects of the Trust Fund for Victims, a dialogue about a Strategic plan of action for universal ratification, as well as reviewing the performance of the court, current controversies (including specifically, Sudan), moving forward on working groups dealing with governance, operations of the ASP, and other budget/finance issues including the election of 6 individuals to the Committee on Budget and Finance. In addition, there may be further discussions on the status of the aggression amendment and other amendments of the Rome Statue proposed but not considered at the Review Conference.

AMICC’s main goal during the week of the ASP will be to guarantee that the actions taken by the ASP will help to further a close and productive relationship with the United States and the ICC. If you have questions about any of these issues or you have any suggestions for our advocacy or reporting please contact us. We will be sure to keep you all updated during the week of the ASP through our website and blog as well as Twitter and Facebook. We will also publish a full report on our website at the conclusion of the session. Also, stay tuned to the blog during the week of the ASP for a video interview with US Ambassador-at-Large for War Crimes Issues Stephen J. Rapp.

Monday, November 22, 2010

U.S. Court of Appeals Relies Upon Rome Statute in Case Raising Issue of Corporate Liability Under the Alien Tort Statute

By Duane W. Krohnke
Adjunct Professor, University of Minnesota Law School

In September 2010 the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Pet. Co., 621 F.3d 111 (2d Cir. 2010), pet. for reh'g & reh'g en banc (2d Cir. Oct. 15, 2010), once again relied upon the ICC's Rome Statute in a civil case for money damages under the U.S.' Alien Tort Statute (ATS), 28 U.S.C. § 1350.

The court in a lengthy opinion by Judge Cabranes held (a) that international law was the relevant law for determining whether corporations (or other legal entities) could be held liable under ATS for alleged violations of the law of nations; and (b) that customary international law and hence ATS did not recognize or allow corporate direct or accessory civil liability for human rights violations. The court, therefore, ruled that the complaint against a corporation had to be dismissed.

Important for the latter conclusion was the Rome Statute’s limitation of jurisdiction in Article 25(1) to “natural persons.” Equally important for the Second Circuit was the Rome Conference’s rejection of a French proposal to include corporations and other “juridical” persons in the ICC’s jurisdiction because, according to commentators, corporate criminal liability was rejected by many national legal systems and thus such inclusion in the Rome Statute would eliminate the possibility of national systems’ preempting ICC jurisdiction under the principle of complementarity.

One of the judges in the three-judge panel in Kiobel, Judge Leval, submitted an even lengthier concurring opinion. He agreed that the complaint in its entirety had to be dismissed because it did not allege that the corporate defendants had purposefully aided and abetted the Nigerian government’s alleged violations of human rights. But Judge Leval concluded that international law left to domestic law the issue of whether corporations were civilly liable for aiding and abetting violations of international law and that U.S. law allowed for such liability. Judge Leval acknowledged that the ICC’s jurisdiction was limited to “natural persons” and that the Rome Conference had rejected the idea of extending the ICC’s jurisdiction to corporations and other legal entities. This structure, said Judge Leval, was due to a belief that a corporation could not act with the requisite criminal intent and the inefficacy of criminal punishment for such entities. On the other hand, Judge Leval quoted the Chairman of the Rome Statute’s Drafting Committee as saying that despite the diversity of views about corporate criminal liability, “all positions now accept in some form or another the principle that a legal entity, private or public, can, through its policies or actions, transgress a norm for which the law, whether national or international, provides, at the very least damages.”

The plaintiffs in Kiobel have requested rehearing, and their Petition and its five supporting amici curiae briefs raise serious issues regarding the panel's majority opinion's rejection of corporate liability under ATS. These papers set forth the following arguments as to why corporations should be liable under the ATS:

• The text of the ATS, as adopted in 1789, provided jurisdiction over "all causes" for certain torts against aliens and did not exempt corporations. (Emphasis added.) The statute specified the identity of the plaintiff ("an alien"), but did not specify the identity of the defendant. Moreover, the ATS did not require criminal conduct as a precondition for such a lawsuit. Finally, the weight of the textural and historical evidence suggests that the First Congress in 1789 would have considered corporations to be proper defendants under the ATS.

• The Supreme Court in the Sosa v. Alvarez-Machin, 542 U.S. 692 (2004), held that there must be a violation of international law for a proper claim under the ATS. But Sosa also held that federal common law provides the cause of action and thereby implicitly recognized that international law did not define all aspects of an action under the ATS. In dictum and in a footnote, Sosa stated that lower federal courts should consider "whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual." (542 U.S. at 732 n.20.) This footnote made the uncontroversial point that some, but not all, international norms require state action and that private actors (whether natural persons or corporations) were potentially liable only for those norms that did not require state action. The majority opinion in Kiobel misread this footnote as calling for international law, not domestic law, to provide the specifics on a private cause of action.

• The Second Circuit itself had consistently entertained ATS actions against corporations.

• Other circuit courts also have regularly considered ATS cases against corporations without objection. And the Eleventh Circuit expressly has held that corporations are subject to suit under the ATS.

• International law leaves the question of private civil liability to domestic law and enforcement. Indeed, the Second Circuit itself has recognized this point. In Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995), the court said, "The law of nations generally does not create private causes of action to remedy its violations, but leaves to each nation the task of defining the remedies that are available for international law violations."

• International law also leaves the question of criminal liability primarily to domestic law and enforcement. The relatively new ad hoc international criminal tribunals and the even newer International Criminal Court provide additional and extraordinary means of criminal enforcement when domestic legal systems are unable to do so. Kiobel's majority opinion's reliance on the fact that these international criminal tribunals' jurisdiction is limited to natural persons is misplaced. Indeed, the ICC's Rome Statute in Article 10 provides that its definition of crimes should not be read "as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute." Likewise, that Statute's Article 22(3) states that the limitations on its jurisdiction (including the limit to natural persons) "shall not affect the characterization of any conduct as criminal under international law independently of this Statute." Finally, Article 25(4) of that Statute provides that "[n]o provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law," meaning that States' responsibility to enforce international law through their own domestic legal systems is unaffected.

• Moreover, international law requires states to provide domestic law civil remedies.

• International law in all its forms allows the imposition of civil liability on corporations. This is so in a diverse array of treaties, in general comments by treaty bodies and in a special report to the U.N. Secretary-General on the subject of businesses' human rights obligations. Another source of this principle is the uniform recognition of corporate liability in legal systems around the world.

• In Nuremberg-era jurisprudence and the international trials that took place in occupied Germany after World War II, certain non-natural persons (the Reich Cabinet, the SA, the German High Command, the Leadership Corps of the Nazi Party, the SS with the SD as an integral part and the SS) were indicted with the first three being acquitted and the last three being convicted. In addition, severe sanctions were imposed on some corporations. For example, by directive of the Control Council, I.G. Farben and several insurance companies were dissolved and their assets were liquidated. These facts show how the Kiobel majority erred in concluding that Nuremberg-era jurisprudence did not recognize the liability of corporations for violations of international law.

In addition, the Kiobel Petition asserts that the corporate liability issue was "never raised, briefed, or argued in this case at any point, including this appeal" and that the resulting decision on this issue "subverts accepted standards of appellate process." This procedural argument was supported by an amici curiae brief by nine professors of federal jurisdiction that stated that the panel's majority opinion erroneously treated the corporate liability issue as part of subject matter jurisdiction and that this issue was a merits issue that should not have been resolved sua sponte by the court itself, but only after full briefing and argument by the parties.

We await the circuit court's ruling on the petition and any subsequent rehearing.

Bemba Trial Begins Today in The Hague

Today marks the beginning of the trial for Jean-Pierre Bemba Gombo at the International Criminal Court in The Hague. Mr. Bemba has been charged with two counts of crimes against humanity (rape and murder) and three counts of war crimes (rape, murder, and pillaging). For more information about the accused and the development of the trial check out the ICC Case Information Sheet.

The hearings will be held in open sessions and the proceedings can be streamed (with a 30-minute delay) on the ICC website. Here is the schedule of proceedings so you will be sure not to miss any part of the trial. This week proceedings are being held everyday starting at 9am EST. To watch the proceedings simply click the Video Streaming link under Courtroom I.

Check back often for new developments throughout the duration of this trial.

ICC in the Media, Update #13

Today ex-Vice President Bemba is set to begin his trial at the International Criminal Court. Bemba is accused of commanding an army responsible for mass murder and rape. This trial is the third to be commenced at the international tribunal since 2002. In other news, the ICC has begun preliminary investigations in Nigeria and Honduras, the latter involving last year's military coup of the president. In the Kenya investigation, Luis Moreno Ocampo has confirmed that he has not and will not be using the two witnesses implicated last week by KNHCR. Former Education Minister William Ruto's visit to the Hague has been recently demystified. It has been reported that the visit was one of four requested by the Office of the Prosecutor over the past several weeks. The three other individuals implicated are two unknown Cabinet Ministers and a former top security official. These visits constitute some of the final steps in the Prosecutor's investigation into the post-election violence, which he hopes to present to the Court later next month. Photo Credit: Daily Nation.

Monday, November 15, 2010

ICC in the Media, Update #12

This week the Kenya National Commission on Human Rights (KNCHR) came out in defiance of William Ruto's visit to the Hague. They say that Ruto should be investigated for reportedly persuading three violence witnesses to recant their statements that implicated him in the violence. The ICC Prosecutor has stated that Mr. Ruto's visit the Hague last week, which was widely thought to be an attempt to clear his name, did not change the course of the investigation. A recent poll revealed that public support in Kenya for the ICC's involvment is greater than ever before. It found that 68% of Kenyans support the ICC, up from 54% in June. Recent articles in Kenyan media have urged the government to set up a local tribunal to work alongside the ICC by prosecuting guilty individuals not named by the ICC. In other news, Omar al-Bashir of Sudan continues to travel internationally, despite the ICC warrant for his arrest. This week Sudan's President is traveling to Saudi Arabia, a non-member state, to perform the Muslim pilgrimage. Photo credit: Daily Nation.

The Future of International Justice

Harold Koh, US State Department Legal Advisor, in a speech in New York last month described how the United States is committed to creating a lasting partnership with the International Criminal Court. He stated that “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.” 

Harold Koh - Zuma Press
However, he pointed out that challenges still remain for the United States and international justice. These include: lingering questions about how the crimes of aggression amendment was adopted, how to best plan for the phase-out of the UN's ad hoc tribunals for the former Yugoslavia and Rwanda, and how ICC States Parties should cooperate to arrest fugitives. He emphasized that addressing these issues will be an integral part of the Obama Administration's agenda.

This statement is another positive note in the developing relationship between the US and the Court. The US is beginning to take positive action to make changes that they believe will benefit both this country and the court as a whole. Koh ended his presentation by emphasizing that “for the U.S. relationship with the International Criminal Court, Kampala…we have much important work now to do to develop that relationship in the months and years ahead.”

Friday, November 12, 2010

U.N. Human Rights Council Session Recommends U.S. Join the International Criminal Court

By Duane W. Krohnke
Provisional Organizer, Minnesota Alliance for the ICC

In November 2010 the United States submitted itself to its first Universal Periodic Review by the United Nations Human Rights Council. The hearing for this UPR was held on November 5th in Geneva, Switzerland, and on November 9th, the Council debated the outcome of this UPR. Materials regarding this UPR are available at http://www.ohchr.org/EN/HRBodies/UPR/PAGES/USSession9.aspx.

The draft report of this UPR that was prepared for the November 9th meeting contained recommendations to the U.S. from the Council members and observer States. The U.S. is to respond to these recommendations by the next Council meeting in March 2011, which will adopt the outcome report on this UPR. (U.N. Human Rights Council, Draft Report of the Working Group on the Universal Periodic Review: United States of America, ¶ 93 (Nov. 10, 2010).)

Almost all of the members recommended that the U.S. ratify or accede to the many multilateral human rights treaties that it has not joined. There were also numerous recommendations for the U.S. to revoke the reservations and declarations the U.S. has made to those human rights treaties it has ratified or acceded to. (Id. ¶¶ 92.1-92.50.)

Nine members and observer States (Austria, Costa Rica, Cyprus, France, Germany, Hungary, Iran, Japan and Venezuela) specifically recommended that the U.S. ratify the ICC's Rome Statute while 17 others (Algeria, Bolivia, Brazil, China, Holy See, Indonesia, Libya, Namibia, Nicaragua, Nigeria, Republic of Korea, Slovakia, Sudan, Thailand, Timor-Leste, Uruguay and Viet Nam) made a general recommendation that the U.S. do so for all or all "core" human rights treaties that the U.S. has not joined, which presumably included the Rome Statute. (Id.¶¶ 21, 50, 62, 82, 92.1, 92.2, 92.6, 92.7, 92.8, 92.9, 92.16, 92.17, 92.19, 92.20, 92.24, 92.25, 92.28, 92.36, 92.37-92.43, 92.175; OHCR Extranet (Namibia, Nigeria, Timor-Leste).)

The Council was created in 2006 by the U.N. General Assembly. It is "responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner." To that end, it is also responsible for addressing "situations of violations of human rights, including gross and systematic violations" and making "recommendations thereon." The Council is guided by "the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development." (U.N. Gen. Ass'bly Res. 60-251, Arts. 2-4 (Apr. 3, 2006).) The Council has 47 member states that are chosen from U.N. member states for three-year terms by the U.N. General Assembly. (Id., Arts. 7-9.) (See generally U.N. Human Rights Council, http://www2.ohchr.org/english/bodies/hrcouncil.)

One of the methods used by the Council for these ends is Universal Periodic Review "based on objective and reliable information, of the fulfillment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States." This is to be done with "a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned." (Id., Art. 5(e).) (See generally U.N. Human Rights Council, Universal Periodic Review, http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRmain.aspx.)

The written record for the UPR of the U.S. included (a) a report by the U.S. itself; (b) the U.N. High Commissioner for Human Rights' compilation of information about the U.S. from the reports of human rights treaty bodies, special procedures and other U.N. documents; and (c) submissions from 103 "stakeholders," including human rights NGOs. (U.N. Human Rights Council, National report submitted . . . [by] United States of America (Aug. 23, 2010); U.N. Human Rights Council, Compilation Prepared by the Office of the High Commissioner for Human Rights …--United States of America (Aug. 12, 2010); U.N. Human Rights Council, Summary Prepared by the Office of the High Commissioner for Human Rights …--United States of America (Oct. 14, 2010).) (These documents are all available at http://www.ohchr.org/EN/HRBodies/UPR/PAGES/USSession9.aspx.)

Sunday, November 07, 2010

ICC in the Media, Update #11

This week France approved the extradition of Callixte Mbarushimana, wanted by the ICC for war crimes and crimes against humanity in the Democratic Republic of the Congo. Mbarushimana is scheduled to be transfered to the facilities at the ICC within the next month. In Kenya, this week suspended Higher Education Minister William Ruto spent three days at the ICC voluntarily giving his account of the post-election violence in order to "set the record straight." The Kenya investigation is also progressing domestically with Lady Justice Kalpana Rawal, mandated by the ICC, set to interview ten security chief witnesses starting on November 24.

Jean-Pierre Bemba's appeal was knocked down on Tuesday, clearing the way for the trial to take place. Bemba is charged with crimes against humanity and war crimes as leader of the Movement for the Liberation of Congo, which launched widespread attacks on civilians in the Central African Republic between October 2002 and March 2003. With this appeal as the final hurdle, the trial is now scheduled to begin later this year. In the ongoing Lubanga trial, the court gave the prosecutor until Friday to justify its withholding of witness testimony from the defense. In the meantime, however, the court will continue to hear testimony from witnesses and intermediaries on Monday, November 8.

Monday, November 01, 2010

ICC in the Media, Update #11

Earlier this week ICC President Sang-Hyun Song addressed the U.N. General Assembly highlighting the many achievements of the ICC over the past year, and the challenges it faces. In particular he urged the nations to cooperate in arresting the eight individuals wanted by the court for war crimes, crimes against humanity and genocide. As we mentioned several weeks ago, a Kenyan business man brought a case to a Mombasa court challenging the authority of the ICC under Kenya's new constitution. The High Court in Mombassa ruled that it has no jurisdiction to question the authority of the ICC in Kenya and denied the man's request. The controversy surrounding the ICC's request for evidence from high-level security officials has seemingly been resolved this week. The government issued a special gazette on Monday that will allow the ICC to interview the officers and record them on video. However, the officers have been permitted to decline to answer questions that they believe may implicate them or compromise national security. In other news, the Intergovernmental Authority for Development Conference (Igad) has been moved from Kenya, a member state of the ICC, to Ethiopia, a non-member state. Many suspect that the move was made to assist the attendance of Omar al-Bashir, and to absolve responsibility for Kenya to arrest him if he chooses to attend. In the wake of this decision a senior member of Sudan's ruling party has stated that the government will "never" cooperate with the ICC. Finally, the Lubanga trial, which has now resumed, has been temporarily slowed again. Witness testimony, which was scheduled to be presented this week, has been postponed because the witnesses weren't ready to take the stand. The trial court ruled that the trial would resume on Monday. Photo credit: BBC News.

Wednesday, October 27, 2010

IntLawGrrls: United States' cooperation & the ICC

IntLawGrrls cite AMICC sources for recent post on US cooperation with the ICC. Check out the full post here:
United States' cooperation & the ICC

Ending Impunity for Gender Based Violence

The historic UNSC resolution 1325 celebrates its tenth anniversary on October 31, 2010. This extraordinary document was the first to emphasize the essential nature of women in securing peace and ending conflict. The resolution requires all parties involved in conflict to respect women's rights and to support their participation in peace negotiations and in post-conflict reconstruction.

Sec. of State Hillary Clinton speaks at the UNSC about US commitment to end gender violence.
UN Photo/Paulo Filgueiras

Yesterday, the Security Council and several high ranking state ministers from around the globe met together in New York to discuss the successes and failures of this resolution over the past 10 years. The pervasive sexual violence and culture of impunity in the Democratic Republic of the Congo was label as the biggest failure. All countries recognized the need to end impunity in the DRC if we are to ever establish peace. The delegate from the United Kingdom concluded that “lasting peace cannot exist without justice for women”.

While the resolution recalls the possibility of using the International Criminal Court (ICC) as a mechanism to end impunity, the Court had not yet been operating at the time the resolution was passed in 2000. A few nations mentioned their work with the ICC but only one told specifically how it was using the ICC as a way to end gender crimes. The delegate from Mexico affirmed the importance of the ICC in ending gender based and sexual violence. The delegate from Austria explained how leaders from his country were working to create national standards for gender crimes that coincided with the standards found within the Rome Statue. He continued to explain that the international community must use every tool at their disposable if they are to end violence against women.

The ICC is mandated to end the culture of impunity and provide accountability to victims of atrocity crimes. It is uniquely equipped to try gender based crimes such as discrimination and sexual violence as the first court to define rape, other forms of sexual violence, and persecution as crimes against humanity. Currently, there are two trials at the court that are prosecuting individuals for gender based crimes. Jean-Pierre Bemba , the former president of the Central African Republic, is facing two counts of rape and Germain Katanga and Mathieu Ngudjolo Chui are jointly facing two counts of rape and two counts of sexual slavery. In addition to these trials, there are arrest warrants for six other individuals for alleged rapes, sexual enslavement, and other outrages on human dignity.

Monday, October 25, 2010

ICC in the Media, Update #10

On Tuesday the ICC rejected an appeal from former Congolese Vice-President Jean-Pierre Bemba, accused of committing numerous crimes against humanity and war crimes in the Central African Republic. This development clears the way for his trial, which is set to begin on November 22, 2010 in the ICC's Trial Chamber III. Back in Kenya, the government is still scrutinizing minutes from secret high-level security meetings during the post-election violence period, determining whether it should release them to the ICC as requested several weeks ago. The government argues that it can withhold the minutes if they threaten national security, but there is some question of whether they in fact do pertain to security issues. On Tuesday Kenya's President Kibaki suspended education minister William Ruto, who is facing corruption charges, although it is widely thought that the suspension resulted from the belief that Ruto is one of the ICC's prime suspects in the post-election violence events. In other news, human rights groups are protesting the possibility of Omar al-Bashir of Sudan visiting Kenya for the Intergovernmental Authority on Government meeting (Igad). They argue that a second visit would send negative message of Kenya's committment to ending impunity, and would "send damaging signals to victims of mass atrocity in Darfur."
Photo Credit: CNN.

Sunday, October 17, 2010

ICC in the Media, Update #9

On October 12, 2010 Moldova became the 114th nation to ratify the Rome Statute and become a member state of the ICC. The ICC commended the European nation in a statement it released for Moldova's dedication ending impunity for perpetrators of atrocity crimes. This week the ICC has also made strides in its investigation into 2007-2008 Post-election violence in Kenya. Today the ICC investigators traveled to Kisumu, a city in western Kenya that was a hotspot for post-election violence, in order to collect evidence and meet with victims. Another group of ICC officials are set to record statements with senior Kenyan security officials in the coming days, although there remains tension regarding the collection of official statements and minutes of high-level government meetings. In other news, reports have surfaced that Joseph Kony, wanted by the ICC for war crimes and crimes against humanity, is likely currently in southern Sudan. Although this has not been confirmed, analysts have traced the pattern of Lord's Resistance Army attacks, and have concluded that their trajectory leads to the Daffak region of south Sudan. Photo Credit: Nations Online.

Tuesday, October 12, 2010

France Arrests New ICC Suspect on Charges of Atrocities Against Civilians in the Kivus, DRC

On October 11, 2010 French authorities arrested Callixte Mbarushimana, a Rwandan national who is the Executive Secretary of the Forces Démocratiques pour la Libération du Rwanda - Forces Combattantes Abacunguzi (FDLR-FCA), in response to a sealed arrest warrant issued by Pre-Trial Chamber I on September 28, 2010. He is suspected of five counts of crimes against humanity and six counts of war crimes for alleged attacks against civilians in the North and South Kivus, DRC. Click here to read an OTP factsheet.

Sunday, October 10, 2010

ICC in the Media, Update #8

As we posted earlier, this week the ICC judges decided to lift the stay on proceedings and allow the Lubanga trial to continue. This decision was shortly followed by a statement from the ICC Prosecutor saying that victims can rest assured that Lubanga will have a full trial and will be held accountable if the judges so decide. Lubanga has been charged with using child soldiers in the Democratic Republic of the Congo, although he denies these allegations. In other news, the ICC President Sang-hyun Song said in an interview on Tuesday that he is "very optimistic and hopeful" that the United States will join the International Criminal Court. He cited the increased cooperation with the Court under the Obama administration as a positive sign. However, due to the difficult realities of U.S ratification including approval by the Senate, he said that he did not expect U.S. ratification for a number of years. Photo credit: BBC News.

Friday, October 08, 2010

Lubanga trial to resume after Appeals Chamber reverses stay

A decision today by the Appeals Chamber of the ICC clears the way for the Court to resume its landmark first trial in the near future. The trial of Thomas Lubanga Dyilo on charges of recruiting and using child soldiers in the Democratic Republic of the Congo, which began in January 2009, has experienced several delays which have frustrated ICC supporters but have also demonstrated that the Court is fully functioning and maintaining the rights of all parties.

The most recent delay began on July 8 when the trial judges ordered a stay in the proceedings after determining that the Prosecutor had not complied with their order to disclose to the defense information about the identity of a person who assisted the prosecution with obtaining witness evidence. In addition, the Trial Chamber ordered the release of Lubanga because it did not believe that a fair trial was possible given that, in its view, the Prosecutor refused to comply with judicial orders of the Court, and thus it had lost control of the proceedings. The trial judges did not give effect to the order to release Lubanga until the Prosecutor had the chance to appeal the decision. Last month, the prosecution offered to provide the requested information. However, the chamber refused to restart the trial because it maintained its concern about the prosecution’s unwillingness to comply with judicial orders, a matter that was also the subject of appeal.

Today’s decision is the result of the Prosecutor’s appeal. In it, the judges found that the Trial Chamber did not make an error in determining that the Prosecutor failed to implement its orders and thus threatened the fairness of the trial. It decided, however, that the Trial Chamber had not lost control of the proceedings and had other, less drastic measures, such as sanctions to bring about compliance, at its disposal besides staying the proceedings and ordering the release of Lubanga. The Trial Chamber should have, in the opinion of the Appeals Chamber, imposed such sanctions before ordering a stay of the trial. It is unclear from the decision whether the Prosecutor could still face sanctions now that he has disclosed the information that he previously refused to disclose.

Previously, the start of the Lubanga trial had been delayed because the prosecution did not disclose materials to the defense which may have helped Lubanga to defend his case. The relevant materials were eventually made available to him. There was also a delay of several months in late 2009 because two of the three trial judges gave notice that the chamber may convict Lubanga of crimes about which it hears evidence but for which he was not charged. The prosecution and the defense appealed this decision. The Appeals Chamber ruled that the Trial Chamber could not convict him of additional charges.

Photo ©ICC-CPI/Michael Kooren

Tuesday, October 05, 2010

Sudan at the UN: Aid for Amnesty

Vice-President Taha at the United Nation Sept. 27, 2010  
UN Photo/Aliza Eliazarov
On September 27 2010, Sudanese Vice-President, Ali Osman Taha, took the floor at the United Nations to urge the General Assembly to reject the ICC arrest warrants that are currently against President Omar al-Bashir. VP Taha claimed that ICC involvement is “a direct threat” to the peace process in Darfur and that Khartoum will further pledged $2 billion dollars to reconstruction in the region if the charges are dropped. This is not the first time that the Vice President has tried to convince the international community to withdraw the warrants against al-Bashir. In 2008 he made a plea to the United Nations Security Council to indefinitely suspend the first warrant.

Besides the political implications of this demand, there are two very important legal reasons why Vice President Taha’s request cannot be fulfilled. First of all, the UN Security Council Resolution 1593, which referred the situation in Darfur to the ICC, requires all parties to the Darfur conflict, including the Government of Sudan, to cooperate fully with Court. This resolution is binding on all UN member states. The Member States could not condemn the prosecution of al-Bashir without coming under direct violation of 1593.

Secondly, the General Assembly has no authority to make decisions regarding the status of arrest warrants. The primary authority to withdraw arrest warrants rest with the Court. Section 58(4) of the Rome Statue states that “the warrant of arrest shall remain in effect until otherwise ordered by the Court”. Nevertheless, this is not the only way to defer proceedings. Article 16 of the Rome Statue says that the Security Council may defer investigations and prosecutions for renewable 12 –month periods if there is a threat to international peace and security. The Court recognizes that its role in political questions is limited and it must respect a deferral in this case. However, it is interesting to note that the Security Council has not made an article 16 deferment before despite earlier informal requests.

In addition, the political backlash against the Sudanese government has been intense. Omer Ismail, senior policy advisor for the Enough Project, an advocacy organization set up to highlight Darfur crisis, has called Khartoum’s recent move nothing more than “political blackmail”. Mr. Ismail further explained that “there are over half a million people killed and seven million people living in warehouses. This government is doing this for political reasons. It has nothing to do with reconciliation.” Mr. Ismail finds no reason to believe that Sudan will take any reformative action in Darfur.

There continues to be a substantial amount of rhetorical support for Sudan (and all other vital parties) to cooperate with the ICC. If things continue as they have been for the last several years, there is little chance that the Sudanese government will be able to dissuade the international community from pursuing those responsible for the genocide in Darfur on either a political or legal level

Monday, October 04, 2010

Symposium on International Criminal Justice at the University of Minnesota Highlights the Importance of the International Criminal Court

By Duane W. Krohnke

On September 28, 2010 the University of Minnesota Law School hosted a Symposium: International Wrongs, International Rights: The Use of Criminal Law To Protect Human Rights. The international Criminal Court was the focus of remarks by Luis Moreno-Ocampo, the Prosecutor of the Court, and Duane W. Krohnke, the Provisional Organizer of the Minnesota Alliance for the ICC. More general comments about criminal prosecutions of human rights abusers were made by Kathryn Sikkink, Arleen C. Carlson Professor of Political Science and Professor of Law at the University of Minnesota.

Prosecutor Moreno-Ocampo noted that 139 countries had signed the Rome Statute, which is the treaty that created the ICC, and that 113 countries had ratified that treaty and become States Parties for the Court. This constituted, he said, a global confederation to fight the crimes that were of the greatest concern to the international community.

The U.S., on the other hand, he observed, is not such a party, and it has been difficult for the U.S. to accept the idea of such a court. Nevertheless, the George W. Bush Administration supported the Court over the Darfur situation in the Sudan.

In contrast, countries like Costa Rica, which does not have a military, find that the ICC is in their national interest because it helps to protect them against the most outrageous crimes.

When he was chosen as the ICC's Prosecutor in 2003, he told its judges that the best situation for the Court would be to have no cases. That would mean that there were no such serious crimes in the world or that national courts by themselves were addressing these crimes.

Moreno-Ocampo reviewed the Court's current investigations and cases. With respect to the Lubanga case from the Democratic Republic of the Congo, he reported that the trial was now on hold due to the Prosecutor's appeal of the Trial Chamber's order staying the case over the Prosecutor's failure to identify his intermediary in the Congo in accordance with the Chamber's orders. The Prosecutor already has indicated his ability and willingness to provide the necessary identification, and he felt confident that the Appeals Chamber would allow the trial to go forward.

Mr. Krohnke highlighted his paper, The International Criminal Court and the U.S.A.: Engaged, But Not Yet Married. That paper outlined the Prosecutor's powers and duties under the Rome Statute, and he added that the public transparency of the Prosecutor and other organs of the Court through its website was extraordinary.

The most controversial ICC case, according to Krohnke, is the one against Sudanese President Bashir, where we were still awaiting his arrest and delivery to the Court at the Hague and finding out if the U.N. Security Council would exercise its power to defer the case for a year. Just last week, Krohnke said, an African diplomat reiterated the African Union's request for such a deferral. Krohnke also talked about the stay of the Lubanga trial over the issue of the propriety of the Prosecutor's failure to disclose the identity of an intermediary in the Democratic Republic of the Congo. The latter was good news and bad news for the supporters of the Court. On the plus side, it demonstrated the controls over the Prosecutor and the Court's concerns for the due process rights of the accuseds. On the other hand, it raised serious questions about the Prosecutor's judgment and the viability of the Court's very first trial.

Krohnke reported that the Court recently held its important Review Conference that adopted amendments to the Rome Statute regarding the use of certain weapons as war crimes for non-international armed conflicts and creating a definition and procedures for the crime of aggression. The Conference also declined to amend Article 124 that allows a new member to opt out for seven years of ICC jurisdiction over war crimes. They also evaluated the performance of the Court to date and made plans and commitments for its future.

The U.S. relationship with the Court was also reviewed by Krohnke. Although the Clinton Administration was a major player at the Rome Conference that produced the Rome Statute, the U.S. and six other countries did not sign the treaty at the end of the Conference. However, on December 31, 2000, President Clinton did so because the U.S. supported international accountability for the perpetrators of the crimes covered by the ICC and because the U.S. wanted to help the ICC become an instrument of effective and impartial justice. This act, the President said, did not abandon U.S. concerns over the treaty, especially its jurisdiction over nationals of states that were not parties to the treaty. Therefore, President Clinton concluded, he would not submit the treaty to the U.S. Senate for advice and consent.

Nor did President George W. Bush submit the treaty to the Senate. In fact, in May 2002, his Administration "unsigned" the treaty by advising the U.N. Secretary-General that the U.S. did not intend to ratify the treaty. This was part of a general campaign against the ICC by the Bush Administration although in its last four years, it supported the Court's involvement in the Sudan/Darfur situation.

The Obama Administration, Krohnke continued, had turned the page and now was actively engaged as an observer with the ICC. The U.S. had attended meetings of the Court's Assembly of States Parties in November 2009 and January 2010 as well as the Review Conference in May/June of this year. In fact, U.S. participation in that Conference was a major factor in the adoption of the amendment on the crime of aggression with provisions that would prevent the amendment from ever being applied to the U.S.

However, Krohnke said, the Obama Administraton will not be submitting the Rome Statute to the U.S. Senate for advice and consent. Nor was there any indication that the current Administration would rescind the May 2002 U.S. letter to the Secretary-General indicating the U.S. did not intend to ratify the treaty.

Although the U.S. had some criminal statutes on the crimes covered by the ICC, the U.S. statutes were narrower than the latter. Thus, Krohnke observed, the U.S. theoretically might not be able to preempt any unlikely ICC action against U.S. nationals by commencing criminal cases in the U.S. courts.

Krohnke added that U.S. federal courts already were using the Rome Statute to determine the status of international law on certain issues. The most significant such cases involved determining the scope of crimes against humanity, aiding and abetting human rights abuses and corporate liability for such aiding and abetting.

In conclusion, Krohnke said the ICC already had demonstrated that it is an important actor in the interactive global struggle against impunity for the worst offenders of human rights. The U.S.' current active engagement with the ICC is a great development. U.S. civil society needed to be involved in pressing for U.S. ratification of the Rome Statute. Just this month, he reported, the Minnesota State Bar Association had adopted a resolution calling for the U.S. to take steps toward such ratification by expanding and broadening U.S. interaction with the ICC.

AMICC stood ready, Krohnke said, to welcome new NGO members and observers. It also needed financial support from such organizations and individuals.

Professor Sikkink highlighted some of the findings from her empirical research that is the subject of her forthcoming book, The Justice Cascade: Human Rights Prosecutions in World Politics. Such criminal prosecutions (or truth commissions) are crucial to the successful promotion of human rights, but not by themselves. They need to be combined with partial amnesties.

Other Symposium panels addressed Transitional Justice and The Modern Face of International Human Rights.

The Symposium was organized by the University of Minnesota Law School's Law & Inequality: A Journal of Theory and Practice, which examines the social impact of law on disadvantaged people. The archived video webcast of the Symposium is available at http://www.law.umn.edu/lawineq/symposiummain/september-2010-agenda. In addition, some of the Symposium papers will be published in the Journal.

Sunday, October 03, 2010

ICC in the Media, Update #7

This week all eyes continue to be on Kenya as the investigation progresses. MP Mutula Kilonzo's comments opposing the ICC's involvement have now been rejected both domestically and internationally. Kilonzo has publicly attempted to clarify his position, saying he intended his support for local tribunals to encourage their formation in conjunction with the ICC, not as a replacement. ICC Prosecutor Luis Moreno-Ocampo has stated that Kilonzo reaffirmed his commitment to the investigation, and has made clear that it will continue as planned. In continuing the investigation the Office of the Prosecutor has begun collecting sensitive information from the Kenyan government's security meetings during the post-election violence. Although it possesses copies of the minutes, it has been met with opposition from security officials in trying to obtain originals. Security chiefs have refused to give statements to the Prosecutor and the government has refused to provide the original minutes from potentially crucial meetings. The ICC requires originals for the documents to be admissible as evidence; however, Kenya is hesitant to release them because the minutes include information unrelated to the investigation involving sovereignty and national security issues. The following video addresses the situation:

Some have come forward suggesting that this refusal is an example of top officials attempting to sabotage the investigation. It has been reported that they are also trying to sabotage the ICC's involvement by insinuating that the Court has targeted ethnic groups. On Friday a number of MPs from the Party of National Unity (PNU) stated that the ICC investigations had unfairly targeted the Kikuyu ethnic group as the perpetrators of the post-election violence. These remarks have subsequently been recognized as 'hollow', and have been called 'irresponsible' in light of the ethnic component of the post-election crimes.

In other news, Judge Richard Goldstone has publicly stated that the often invoked criticism that the ICC targets Africa is 'unfair'. He argued that the ICC is a court of last resort that is often self-referred by African states, which creates an unfair perception that the ICC picks on Africa. Photo credit: Daily Nation.