EYES ON THE ICC
Volume 2
Number 1
2005
ISSUE I: ICC PROSECUTION AMID
ALTERNATE RESPONSES TO THE MOST GRIEVOUS CRIMES
NATIONAL AMNESTIES AND INTERNATIONAL JUSTICE
T HE ICC IN NORTHERN UGANDA:
PEACE FIRST, JUSTICE LATER?
T HE HYBRID MODEL OF INTERNATIONAL DISPUTE
RESOLUTION: WHY SUDAN’S CASE SHOULD BE HEARD
AT THE HAGUE AND AT HOME
Eric Blumenson
Pablo Castillo Diaz
Anna Coyer
ISSUE II: THE US AND THE ICC, AN EVOLVING RELATIONSHIP
FAIR TRIAL GUARANTEES FOR US SERVICE MEMBERS
UNDER FOREIGN AND ICC JURISDICTION:
A COMPARATIVE ANALYSIS
Thomas Wayde Pittman
T HE ICC AND THE US GLOBAL MILITARY COMMAND
STRUCTURE: IS COOPERATION POSSIBLE?
Gregory P. Granger
A PARADOX OF PREDICTION: THE ICC’S EFFECT ON US
HUMANITARIAN POLICY IN THE SUDAN
Krissa Lanham
BOOK REVIEW
INTERNATIONAL JUSTICE AND THE INTERNATIONAL
CRIMINAL COURT: BETWEEN SOVEREIGNTY AND
THE RULE OF LAW
C.S. Maravilla
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EYES ON THE ICC
Volume 2
2005
Number 1
CONTENTS
ISSUE I: ICC PROSECUTION AMID ALTERNATE RESPONSES TO
THE MOST GRIEVOUS CRIMES
1
NATIONAL AMNESTIES AND INTERNATIONAL JUSTICE
Eric Blumenson
T HE ICC IN NORTHERN UGANDA: PEACE FIRST, JUSTICE LATER?
Pablo Castillo Diaz
T HE HYBRID MODEL OF INTERNATIONAL DISPUTE RESOLUTION: WHY
SUDAN’S CASE SHOULD BE HEARD AT THE HAGUE AND AT HOME
Anna Coyer
17
33
ISSUE II: THE US AND THE ICC, AN EVOLVING RELATIONSHIP
FAIR TRIAL GUARANTEES FOR US SERVICE MEMBERS UNDER
FOREIGN AND ICC JURISDICTION: A COMPARATIVE ANALYSIS
Thomas Wayde Pittman
53
T HE ICC AND THE US GLOBAL MILITARY COMMAND STRUCTURE:
IS COOPERATION POSSIBLE?
Gregory P. Granger
65
A PARADOX OF PREDICTION:
T HE ICC’S EFFECT ON US HUMANITARIAN POLICY IN THE SUDAN
Krissa Lanham
83
BOOK REVIEW
INTERNATIONAL JUSTICE AND THE INTERNATIONAL CRIMINAL COURT:
BETWEEN SOVEREIGNTY AND THE RULE OF LAW
C.S. Maravilla
99
ISSUE I: ICC PROSECUTION
AMID ALTERNATE RESPONSES TO THE
MOST GRIEVOUS CRIMES
NATIONAL AMNESTIES AND INTERNATIONAL JUSTICE
Eric Blumenson
I.
INTRODUCTION
This article addresses what is often described as the ‘peace versus justice’ problem, in the context of prosecutorial discretion at the International Criminal Court.
The problem typically arises when the threat of prosecution would derail peace
negotiations or deter a tyrant from relinquishing power. It already confronts the
ICC in its first referral, concerning crimes against humanity committed during an
on-going civil war in the Acholi region of Uganda. Although vast numbers of
Acholis have suffered death, dismemberment, rape and other atrocities at the hands
of rebels who comprise the Lord’s Resistance Army, many leaders of this community are imploring the ICC to foreswear prosecution. They claim that the threat of
international prosecution will deter the rebels from joining in a peace agreement,
and also argue that a combination of amnesty and restorative justice mechanisms
will serve to promote justice and reconciliation better than prosecutions. 1
The Acholis’ warning that ICC intervention would prolong their civil war is
just the latest in a long line of claims that demanding justice will reap disaster. Of
Prof. of Law, Suffolk University Law School; J.D., Harvard University, 1972. I am grateful to
the International Criminal Court and Chief Prosecutor Luis Moreno Ocampo for the opportunity to
serve in the Office of the Prosecutor as a visiting legal scholar in 2004, and to the attorneys and investigators in that office who offered me an indispensable education in the work and promise of the ICC.
Thanks are also due to Jeff Alsdorf, Tom Clark, Stan Fisher, Simon Keller, David Lyons, Katherine
Lu, Kate Martin, Eva Nilsen, Ken Simons, Pat Shin, Marion Smiley, Carol Steiker, and Ellen Winner, for their comments and counsel on this project; to Peter Shorett, for expert research assistance
throughout; and to participants in faculty colloquia at Suffolk University, Boston University, and
Boston College at which I presented earlier versions of this article.
1
See, e.g., Chief Opposes Kony Trial, AFRICA NEWS (NEW VISION) L/N (November 8, 2004); Fr.
Carlos Rodriguez, Situational Report Northern Uganda (January 27, 2004), available at
www.austria-uganda.at/_report_northern_uganda.htm; REFUGEE LAW PROJECT WORKING P APER
NO. 15, WHOSE JUSTICE? PERCEPTIONS OF UGANDA’S A MNESTY ACT 2000: THE POTENTIAL FOR
CONFLICT RESOLUTION AND LONG T ERM RECONCILIATION (2005), available at
www.refugeelawproject.org (finding that the majority of Northern Ugandans surveyed said that Kony
should be granted amnesty in exchange for surrender); Barney Afako, Reconciliation and Justice: ‘Mato
Oput’ and the Amnesty Act, ACCORD 11 (2002), available at
www.c-r.org/accord/uganda/accord11/reconcilliation.shtml. However, the view of Acholis is reported as more nuanced in a recent survey. International Center for Transitional Justice and the
Human Rights Center of the University of California, Berkeley, F ORGOTTEN VOICES: A
POPULATION-B ASED S URVEY ON ATTITUDES ABOUT PEACE AND JUSTICE IN NORTHERN UGANDA
4, 5 (2005), available at www.ictj.org/downloads/ForgottenVoices.PR.pdf (reporting that a survey of
Acholi and non-Acholi regions of Northern Uganda showed that although 66% of respondents believed offenders should be prosecuted, that figure fell to 29% if amnesty were the only road to peace).
1
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EYES ON THE ICC
[Vol. 2:1
course, many of these claims have proven unfounded, 2 and the Acholi claim may
turn out to be one of them. Nevertheless, there surely will be genuine dilemmas
too. 3 As of this writing, many African leaders are trying to end the long misery of
Zimbabwe’s people by coaxing its corrupt leader, Robert Mugabe, into an asylum
in exile,4 and two years ago the Bush administration implicitly offered Saddam such
a deal in its 48 hour ultimatum before invading. 5 The ICC will likely confront
daunting dilemmas of this kind throughout its existence. When it does, should it
ever accept a state’s amnesty or other forms of impunity as the price of peace?
The answer to this question is highly contested, and so politically fraught that
the Rome Treaty negotiators were unable to agree to any provision on the issue.
Instead, they left it to the prosecutor and judges of the ICC to develop an approach to amnesty over time. 6 To do so, the ICC will have to grapple with issues
concerning its appropriate role and responsibilities, and the proper weights it
should attach to the claims of peace, pluralism and punishment when they conflict.
While legal and pragmatic constraints will play an important role, these decisions
also require fundamental moral judgments on three inescapable and extraordinarily
difficult issues:
(1) A question of justice: Does justice in the aftermath of crime always require prosecution? In transitional situations, states have sometimes tried to impose accountability through truth commissions, reparations, traditional confession & reintegration
rituals, and ineligibility for government employment via lustration laws. If some
such non-penal methods impose a sufficient degree of accountability and justice, it
may be possible for the ICC to avoid a forced choice between peace without justice
and justice without peace.
(2) A question of impact: If justice does require prosecution, is it proper nevertheless for
the prosecutor to reject a prosecution on the ground that it threatens harm to innocent third
parties? Or is the prosecutor obligated to bring criminal charges against serious offenders without regard to its political or human costs?
(3) A question of pluralism: As a global institution, how much deference should the ICC
2
Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior
Regime, 100 Y ALE L.J. 2537, 2548 n. 37 (1991) (citing examples of exaggerated predictions).
3
Jack Snyder; Leslie Vinjamuri, Trials and Errors: Principle and Pragmatism in Strategies of International Justice, 28 INTERNATIONAL S ECURITY 5, (2003/04) (“in transitional countries…decisions to
try members of the former regime should be weighed against the possibly adverse effects on the
strengthening of institutions.” Similarly, in Argentina prosecutors of the military junta were forced
to calculate how far they could go down the ranks without threatening instability or even a military
coup.); Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals?, 12
HUMAN RIGHTS Q UARTERLY 1, 5 (1990) (arguing that Argentina’s decision to prosecute only some
did not breach its duties of justice); Carlos S. Nino, The Duty to Punish Past Abuses of Human Rights
Put into Context: The Case of Argentina, 100 Y ALE. L. J. 2619, 2635, 2638 (1991) (demanding prosecution of all in Argentina would have hurt the prospects of bringing the leaders to justice); See also Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,
100 Y ALE L.J. 2537, 2544-2546 (1991).
4
Robert I. Rotberg, The End of Tyranny in Zimbabwe, Boston Globe, Aug. 18, 2005, p. A15.
5
See George W. Bush speech, President Says Saddam Hussein Must Leave Iraq within 48 Hours,
available at www.whitehouse.gov/news/releases/2003/03/20030317-7.html (Bush Administration
currently urging Iraqis to include former Bathist officials in their government in the interests of
peace); Richard A. Oppel Jr , Rice, in Baghdad, Urges Sunni Role in Constitution, N.Y. Times, May 16,
p. A1 (stating that Secretary of State Condolezza Rice told Iraqi leaders that efforts to punish former
Bathist officials must “also respect the fact that there now needs to be an inclusive Iraqi process and an
inclusive Iraqi government”).
6
Mohamed M. El Zeidy, The Principle of Complementarity: A New Machinery to Implement International Criminal Law, 23 M ICH. J. INT’L L. 869, 941-942 (2002).
2005]
NATIONAL AMNESTIES AND INTERNATIONAL JUSTICE
3
afford to diverse state approaches to the previous two questions?
These questions are in part philosophical but, given the stakes, hardly academic. They constitute a central challenge for the ICC—the challenge of establishing a global standard of criminal justice. By this I do not mean merely that the
international criminal court is a global organization that must devise its own jurisprudence. More importantly, if it works as envisioned, the ICC will set national
standards as well, defining what domestic criminal justice should look like for adjudicating crimes against humanity, genocide and war crimes. This is a consequence of the Rome Statute’s principle of complementarity, which allows the Court to
proceed with a case only when a state is not genuinely doing so itself.7 Under this
provision, the court will have to issue explicit decisions about the adequacy of a
particular state's response to these crimes. Over time, ICC decisions will define
minimum requirements for criminal justice systems throughout the world—
establish, in other words, a global standard of criminal justice.
In a more extensive study to be published in the Columbia Journal of Transnational Law this Spring, I explore each of the above three questions in detail.8 This
article, based on that study, is limited to the first question—whether justice always
demands prosecution and punishment, or may be satisfied in other ways. In Part II,
I argue that the ICC’s obligation to do justice is not identical to, and does not always entail, a simple duty to prosecute and punish. Rather, in the aftermath of crime,
the essential duty of a state (or upon its default, the ICC) is to recognize and repudiate the crime, and stand in solidarity with the victim. Criminal punishment is
commonly invoked as a effective means of achieving this, but sometimes other instruments have been successfully invoked as well. Part III considers one example,
the South African Truth and Reconciliation Commission, and suggests that it
should also be considered a morally acceptable response to extreme criminality.
Two caveats are in order concerning the limited scope of this inquiry. First, it
is limited to examining a specific claim: that the ICC has a moral duty to assure
that the most egregious war criminals are prosecuted, without regard to the political dynamics it will set in motion. Even if I am correct that the duty to do justice
can sometimes be accomplished in non-penal ways, there remain utilitarian arguments for prosecution and punishment that do not rely on a moral imperative to
punish the guilty. Most obviously, there is the argument that crimes of this magnitude must be prosecuted in order to prevent their recurrence, through the deterrent, incapacitative, or norm-reinforcing effects of punishments. There is also an
institutional division-of-labor argument, which holds that the ICC must look only
to justice as a matter of its institutional role, and leave political considerations to
the Security Council (which has the authority to defer ICC prosecutions9). Here I
7
Rome Statute of the International Criminal Court, UN Doc. A/CONFR. 183/9 (adopted July
17, 1998 at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of
an International Criminal Court), Art. 17 [hereninafter Rome Statute]. (For purposes of Art. 17, a
state is not investigating or prosecuting when it either fails to pursue the case, or pursues it in a way
that demonstrates its inability or unwillingness to genuinely investigate or prosecute the case).
8
The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International
Criminal Court, 44 COLUM. J. TRANSNAT’L L. (forthcoming, 2006), available at
http://ssrn.com/abstract=834004).
9
Rome Statute, supra n. 7, at Art. 16 (authorizes the Security Council to defer an ICC prosecution for renewable periods of a year. However, it can only do so by issuing a resolution under UN
Charter Chapter VII, which has its own requirements. Ch. VII mechanisms are only available in response to a threat to the peace, a breach of the peace or an act of aggression. UN Charter Art. 39. But
THE ICC IN NORTHERN UGANDA:
PEACE FIRST, JUSTICE LATER?
Pablo Castillo Díaz
I.
INTRODUCTION
“A trial in the aftermath of mass atrocity, then, should mark an effort between vengeance and forgiveness. It transfers the individual’s desires for
revenge to the state or official bodies. The transfer cools vengeance into
retribution, slows judgment with procedure, and interrupts, with documents, cross-examination, and the presumption of innocence, the vicious
cycle of blame and feud. The trial itself steers clear of forgiveness, however. It announces a demand not only for accountability and acknowledgement of harms done, but also for unflinching punishment.”1
Since the end of the Cold War, the proliferation of international criminal tribunals, humanitarian interventions, and the application of the principle of universal
jurisdiction in various domestic courts, has shown that international criminal law is
moving towards effective enforcement. Still a young institution, the International
Criminal Court, created in Rome in 1998 and ratified by almost a hundred countries, is expected to become the foundational stone of this development, and is already the primary reference for those who believe that borders, states’ sovereignty,
and political expediency cannot shield the perpetrators of massive human rights
violations from prosecution.
It is widely acknowledged that the moral commitment to protect the most fundamental human rights at a global scale trumps state sovereignty and the legal pillars that sustained classic international law. The disagreement lies on what is most
conducive to peace and how the interests of the victims are best served. A range of
options that include international, national, and hybrid courts, peace negotiations,
amnesties, military operations, truth commissions and other traditional and local
methods of reconciliation, encompass the alternatives that have been and are being
employed in different troubled regions. As if they were contradictory rather than
complementary, each situation presents us with the same dilemma between law
and politics, peace and justice, retribution and restoration, vengeance and
forgiveness.
The Rome Statute that established the International Criminal Court entered
into force in July 2002, after being ratified by 60 countries, but became fully operational in 2003. Since then, the Office of the Prosecution headed by Luis Moreno
Ocampo has received the referral of four situations, pertaining to conflicts in the
Democratic Republic of Congo, Uganda, Central African Republic, and, at the
behest of the United Nations Security Council, Sudan. The International Criminal
Court is currently conducting preliminary investigations in northern Uganda and
in Ituri, a northeastern province of the Democratic Republic of Congo. 2 The results of these investigations and the subsequent trials will likely shed some light on
Ph.D. Candidate at the Division of Global Affairs, Rutgers University.
MARTHA MINOW, BETWEEN VENGEANCE AND F ORGIVENESS: FACING HISTORY
GENOCIDE AND MASS VIOLENCE 26 (Beacon Press 1998).
2
See Int’l Crim. Ct., Situations and Cases, http://www.icc-cpi.int/cases.html.
1
AFTER
17
EYES ON THE ICC
18
[Vol. 2:17
what impediments the court may meet and what assistance may be needed along
the way.
Uganda offers an opportunity to study some of these problems. The 18-yearold conflict is still ongoing, and some fear that the intervention of the ICC will
jeopardize the peace talks and exacerbate violence. It also provides a test for the
flexibility of the institution and its ability to adapt to an extremely complex political environment, especially one in which the court will have to investigate and
prosecute all sides, including the military forces of the government who initially
requested the involvement of the ICC. And, finally, it can present a lesson for parallel measures in the neighboring countries, as the conflicts in the region are inevitably intertwined and share some remarkable similarities. Although only time will
tell, this paper argues that the participation of the ICC is compatible with the ongoing peace process and alternative methods of reconciliation and local justice.
II. HISTORICAL BACKGROUND
Uganda has experienced an orgy of violence and turbulence since its independence. Under British rule, Uganda was composed of a number of monarchical entities brought together –despite sharp differences in ethnicities, languages, and even
stages of development- by an ill-designed and arbitrary drawing of borders. This
diversity was used by the colonizing power to divide and rule, giving preferential
treatment to the kingdom of Buganda in the south and neglecting the northern
regions. 3 While people from the south held civil service positions, the Acholi people from the north were recruited into the armed forces.4 The political, educational, economic and social policies that were pursued exacerbated existing cleavages and introduced new class formations and stratifications, creating a divide that
has lasted until today and that is often referred to as the ‘northern factor’ or the
‘north-south divide syndrome.’ 5 Although many deem the current conflict between
the government’s army and the Lord’s Resistance Army (LRA) in the north as the
predicament of the government of Uganda to control a terrorist organization led
by a religious fanatic, others view it as a conflict between the less developed, Luospeaking Acholi in the north, and the Bantu-speaking Baganda in the south.6
It is often pointed out that the most brutal and ruthless political and military
figures of Uganda post-independence came from the north: Milton Obote, Idi
Amin, and the Okellos. In 1979, Amin was overthrown by a military coup, partly
by the same commanders that had put him in power, and mostly through the intervention of Tanzanian forces. Following allegedly rigged elections, Yoweri
Museveni’s National Resistance Army (NRA) fought and defeated the military
government of Tito Okello. In 1986, Museveni became president of Uganda. 7 His
rule has seen a relatively higher degree of stability and economic growth.
Nevertheless, sour relations with neighboring Rwanda, DRC, and Sudan, an
overblown and undisciplined army, a neglected and impoverished north, and the
existence of various rebel groups in different parts of the country constitute the
3
PETER CALVOCORESSI, WORLD POLITICS, 1945-2000 674-675 (Harlow, Longman 2001).
Mohamed M. El Zeidy, The Ugandan Gov’t Triggers the First Test of the Complementarity Principle:
An Assessment of the First State’s Party Referral to the ICC, 5 INT’L CRIM. L. REV. No. 1, at 85 (2005).
5
PHARES M UTIBWA, UGANDA SINCE INDEPENDENCE: A STORY OF UNFULFILLED HOPES 4 (Afr.
World Press 1992).
6
Ibid. at 156-157.
7
E.g., CALVOCORESSI, supra note 3, at 676-677.
4
2005]
T HE ICC IN NORTHERN UGANDA
19
main obstacles to peace. The Lord’s Resistance Army is the most brutal and best
known of various rebel forces operating in northern and western Uganda.8 Led by
Joseph Kony, the conflict between the LRA and the central government has escalated in the last years, keeping the Acholi population internally displaced, economically strangled, deprived of freedom of movement, and in a constant state of
fear.
A. THE LORD’S RESISTANCE ARMY
The root causes of the 18-year old insurgency waged by the Lord’s Resistance
Army against the Ugandan government date back to the political situation inherited by Museveni’s National Resistance Movement after the downfall of the
Acholi-led Okello regime in 1986. When Museveni came to power, remnants of
the Uganda’s National Liberation Army (UNLA) led by the Okellos fled into their
Acholi homeland and southern Sudan and formed the Ugandan People’s Democratic Army (UPDA). In retaliation for large massacres of civilians in the Luwero
triangle, the government used force to wipe out the rebellious UNLA, destroying
the livestock of Acholi civilians and leaving the north embittered against the new
regime. 9
A young prophetess, Alice Auma, capitalized on this sentiment and founded the
Holy Spirit Movement. Nicknamed ‘Lakwena,’ Alice Auma declared that she had
been given spiritual powers to cleanse the Acholi of their sins and mobilize them
against the NRA. Her movement found considerable social support, as it promoted Acholi identity and represented Acholi grievances against the government.
Defeated in October 1987, Lakwena and some of her followers took refuge in
Kenya. One of her relatives, Joseph Kony, claimed to have inherited Lakwena’s
spiritual powers and founded the Lord’s Salvation Army with the mission to retake
the Ugandan government and rule it according to the Ten Commandments.10 The
LRA has been alternatively labeled rebel group, military insurgency, terrorist organization, and, finally religious cult. 11 The name of Kony’s military force changed to
United Salvation Christian Army and, finally, Lord’s Resistance Army in 1994. Initially equipped and armed by the UPDA and later by Khartoum, the LRA soon
lost social support in the north as it began targeting Acholi villages to abduct civilians, mostly children, control the population through indiscriminate terror, and
loot their possessions.12 Kony moved his base across the border to southern Sudan,
where the Khartoum government reportedly provided the LRA with arms, uniforms, and other supplies in retaliation for Uganda’s support of the Sudanese Peoples Liberation Army. After the US State Department included the LRA in its list
of terrorist organizations in late 2001 and Sudan and Uganda agreed to cooperate,
Museveni launched a full-scale military action dubbed ‘Operation Iron Fist’ against
8
Gérad Prunier. Rebel Movements and Proxy Warfare: Uganda, Sudan and the Congo, 103 AFR. AFF.
379 (2004).
9
Abducted and Abused: Renewed Conflict in Northern Uganda, 15 H UM. RTS. WATCH No. 12, at 10
(July 2003).
10
E.g., Prunier, supra note 9, at 366.
11
Frank Van Acker, Uganda and the Lord’s Resistance Army: The New Order No One Ordered, 103
Afr. Aff. 346 (2004).
12
El Zeidy, supra note 4, at 87-88 (pattern of killing and abducting people from the ethnic
group they claim to defend and represent dates back to the early days of the LRA were sometimes accepted by the Acholi as necessary cleansing of wrongdoers within the community).
THE HYBRID MODEL OF INTERNATIONAL DISPUTE
RESOLUTION: WHY SUDAN’S CASE SHOULD BE HEARD
IN THE HAGUE AND AT HOME
Anna Coyer
I.
INTRODUCTION
From the Darfur region in Sudan, there are reports of between 180,000 and
300,000 people killed and more than 2.4 million people displaced as a result of the
Janjaweed militia’s actions.1 These atrocities continue to occur in the region and,
after struggling with the appropriate means of intervention, the international
community has resolved to refer the case to the International Criminal Court
(ICC).2 In the recent past, international ad hoc tribunals, such as those for Rwanda
and the Former Yugoslavia, have been established as a means of bringing those responsible to justice. 3 However, with the recent establishment of the ICC as a permanent venue to hear cases of war crimes, genocide, and crimes against humanity,4
the issue has thus become: should the Darfur situation be referred to the ICC or
should an ad hoc tribunal be established? Behind this debate between ad hoc tribunals and the ICC is another viable option rarely discussed in these political debates. An additional alternative is available in the traditional, and often local,
methods of dispute resolution, such as Gacaca Courts and Truth and Reconciliation Commissions, which look beyond only punishing the perpetrators by seeking
to integrate apology and reparations for victims and communities into the process
of administering justice.
In light of the three feasible options for bringing justice and healing to Sudan,
this paper will analyze the three dispute resolution options available for Darfur: an
ad hoc tribunal, the ICC, or traditional dispute resolution methods. In part II, the
paper will discuss the principal features of each dispute resolution option along
with both the benefits and criticisms of them. Then, part III will discuss the case
of the Darfur region of Sudan and analyze how each option may or may not be
effective in truly resolving all the issues faced in Darfur; and will then suggest a
model of combining dispute resolution methods to fully integrate individual and
J.D., Marquette University Law School, 2005. The author is currently a Regulatory Affairs Attorney for Alterra Healthcare Corporation. This paper was prepared as part of an international dispute resolution seminar which focused on various ad hoc international tribunals.
1
Warren Hoge, U.N. Council Approves Penalties in Darfur, N.Y. T IMES, Mar. 30, 2005 at 6.
2
U.N. SCOR, 61st Sess., 5158th mtg., U.N. Doc. S/RES/1593 (2005). Steven Freeland, Inaction
Over Darfur is Inexcusable, THE CANBERRA T IMES, Feb. 11, 2005, at 15. “During the early 1990s,
similar reports were forthcoming from both Rwanda and the former Yugoslavia. In both of these
cases, the UN failed to act in a timely fashion to avert the tragedies that followed. With those vivid
images of death and destruction still fresh in our minds, one would have thought that the international community would respond quickly and decisively to avert a further tragedy in Sudan.” Ibid.
3
International Criminal Tribunal for Rwanda (ICTR) available at www.ictr.org/default.htm
(last visited May 6, 2005); International Criminal Tribunal for Yugoslavia (ICTY) available at
www.un.org/icty/index.html (last visited May 6, 2005).
4
Rome Statute of the International Criminal Court, [hereinafter “Rome Statute”] July 17, 1998,
37 I.L.M. 999, Article 1.
33
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community needs in achieving justice and healing. Finally, part IV will conclude
the paper.
II. EXISTING CRIMINAL TRIBUNAL OPTIONS: AD HOC TRIBUNALS,
TRADITIONAL DISPUTE RESOLUTION METHODS, AND THE INTERNATIONAL CRIMINAL COURT (ICC)
Currently, there are three main venues available to try those responsible for the
atrocities in Darfur—an ad hoc tribunal, the International Criminal Court, or traditional dispute resolution methods. This section will first discuss the International
Criminal Tribunal for Rwanda (ICTR) as a recent example of an African Criminal
Tribunal. Second, the section will discuss the recent development of the ICC as a
venue for hearing the case of Sudan. Third, this section will discuss the role traditional dispute resolution methods have had on conflict resolution in Africa.
In beginning discussion of both the ad hoc international tribunals and the ICC,
it is important to note that any international court, whether permanent or ad hoc,
“differ[s] fundamentally from national courts on many substantive and practical
grounds. . . . [the] courts are essentially international. They are funded by member states of the United Nations. Their rules of procedure and evidence are a custom-made hybrid [and] [t]heir operations are global.”5 Therefore, in discussing
these international tribunals, it is important to bear in mind that substantively and
practically, these courts cannot be exactly the same as the courts of any one country. Rather, like much international law, the courts must meet the demands of the
situation and must attempt to compromise the ideals of legal justice of a variety of
countries.
A. INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR)
“[T]hese tribunals represent the beginning of an era in international affairs, in which international judicial intervention became a response to
mass crimes—crimes for which national courts were either unable, for
lack of capacity, or unwilling, by reason of an absence of judicial independence and political will, to render justice.”6
The International Criminal Tribunal for Rwanda (ICTR) was established to
prosecute those responsible for the acts of genocide which resulted in the deaths of
more than 800,000 Tutsi Rwandans.7 The triggering event said to be responsible
for the beginning of the Rwandan Genocide occurred on April 6, 1994, when a
plane carrying Rwandan President Habyarimana crashed.8 The President’s supporters blamed the crash on the Tutsi rebel group, the Rwanda Patriotic Front
(RPF).9 For months immediately following the plane crash, the Hutu government
5
Kingsley Chiedu Moghalu, The Evolving Architecture of International Law: Image and Reality of
War Crimes Justice: External Perceptions of the International Criminal Tribunal for Rwanda, 26
F LETCHER F. WORLD AFF. 21, at 23 (2002).
6
Ibid. at 22.
7
U.N. SCOR, 50th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994).
8
Christina M. Carroll, An Assessment of the Role and Effectiveness of the International Criminal
Tribunal for Rwanda and the Rwandan National Justice System in Dealing with the Mass Atrocities of
1994, 18 B.U. INT’L L.J. 163, 169 (2000).
9
Ibid. at 169.
T HE HYBRID MODEL OF INTERNATIONAL DISPUTE RESOLUTION 35
2005]
systematically targeted violence toward Tutsis by inciting violence through radio
broadcasts and through distribution of arms to both militias and civilians.10 As a
result of this systematic violence, between 500,000 and one million Rwandans
were killed and many fled to neighboring countries.11
The ICTR was established by the United Nations Security Council in Resolution 955 on November 8, 1994, to prosecute those responsible for the acts of
genocide.12 As dictated by Resolution 955, the ICTR is located outside of Rwanda
in Arusha, Tanzania, and has jurisdiction to prosecute the crimes of genocide and
crimes against humanity that were committed by both Rwandans in the territory of
Rwanda and neighboring states and non-Rwandans for crimes committed in
Rwanda between January 1 and December 31, 1994.13
Structurally, the ICTR has been established much like other courts. It is comprised of three organs—the Chambers and the Appeals Chambers, the Office of the
Prosecutor, and the Registry.14 The Office of the Prosecutor is overseen by prosecutor Hassan Bubacar Jallow who bears the responsibility for investigations and
prosecutions. 15 In addition to the primary and integral components of the ICTR,
there are additional units which facilitate in the operation of the tribunal.16
Since the ICTR’s inception in 1994, the effectiveness and impact of the tribunal has been widely discussed.17 In determining whether an ad hoc tribunal is the
appropriate venue to hear Sudan’s case, it is important to seriously consider the
benefits and criticisms of such a system.
1.
BENEFITS OF THE ICTR
As an example of an ad hoc tribunal, the ICTR has achieved several distinctive
benchmarks and “firsts” for an ad hoc tribunal.18 As of January 2005, the ICTR
10
Ibid. at 169.
Ibid. at 164.
12
U.N. SCOR, 50th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994).
13
Ibid.
14
Ibid.
15
Ibid.
16
Ibid. (Some of these sections include the Defense Counsel & Detention Management Section,
the Court Management Section, the Judicial Proceedings Unit, the Appeals Unit, the Judicial Records
and Archives Section, and the Witness Support and Protection section. Specifically, the Witness
Support and Protection section provides impartial physical, psychological, and counseling support to
witnesses and victims of both the prosecution and the defense. Recently, the “Witness Protection
Committee” has been formed to provide additional security to witnesses after a witness was murdered
after testifying.).
17
See Moghalu, supra note 5; Carroll, supra note 8; Mariann Meier Wang, The International Tribunal for Rwanda: Opportunities for Clarification, Opportunities for Impact, 27 COLUM. HUMAN
RIGHTS L. REV. 177 (1995); Payam Akhavan, Current Developments: The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment, 90 A.J.I.L. 501 (1996); Louise Arbour, Article: The Status of the International Criminal Tribunals for the Former Yugoslavia and Rwanda: Goals and
Results, 3 HOFSTRA L. & POL’ Y S YMP. 37 (1999).
18
See International Criminal Tribunal for Rwanda (ICTR) available at www.ictr.org/default.htm
(last visited May 6, 2005) (In addition to the benchmarks listed, an additional unique feature of the
ICTR is its protocol in dealing with the media. In recognition of the reliance of the Rwandan people,
especially those who live in rural areas, in obtaining their news from the radio, the tribunal established a method of communicating with the media. The tribunal works with Rwandan journalists who
broadcast from the site of the tribunal in Arusha daily. Additionally, groups of journalists are regularly brought to the tribunal to obtain first-hand information on the operations of the ICTR and to
report on news items such as the delivery of judgments).
11
ISSUE II:
THE US & THE ICC, AN EVOLVING RELATIONSHIP
FAIR TRIAL GUARANTEES FOR US SERVICE MEMBERS
UNDER FOREIGN AND ICC JURISDICTION:
A COMPARATIVE ANALYSIS
Thomas Wayde Pittman
I.
INTRODUCION
Every year, foreign courts exercise criminal jurisdiction over US service members in the hundreds. While US policy is to maximize jurisdiction over its service
members abroad, it cannot always do so. In such situations, US policy is then to
protect the rights of its service members by use of trial observers who report on
whether the accused received a fair trial in accordance with the applicable Status of
Forces Agreement and US federal law expanding the guarantees contained therein.
This foreign criminal jurisdiction policy is very useful in evaluating US opposition
to the International Criminal Court (ICC). In this article, I compare the fair trial
guarantees for an accused under the Rome Statute with those guarantees sought
by the US for service members before a foreign criminal court. In so doing, I conclude that the fair trial guarantees under the Rome Statute largely satisfy US procedural requirements, occasionally surpassing them. Even where the fair trial
guarantees under the ICC arguably fall short, the possibility of an unfair trial is insubstantial.
II. US FOREIGN CRIMINAL JURISDICTION POLICY
US armed forces are routinely sent abroad on either a permanently stationed or
temporarily deployed basis. Violations by US service members of the receiving
state’s domestic laws raise the issue of which state may exercise criminal jurisdiction. The general rule is one which recognizes the territorial sovereignty of the
receiving state, i.e., the sending state’s armed forces are subject to the laws of the
receiving state unless otherwise agreed between the states.1 The end of World War
The author is a retired lieutenant colonel and former military judge of the US Air Force Judge
Advocate General’s Corps and is presently a Legal Officer at the International Criminal Tribunal for
the former Yugoslavia. The views expressed herein are those of the author alone and do not necessarily reflect the views of the US Government, the International Criminal Tribunal for the former
Yugoslavia or the United Nations. This article is derived from a thesis entitled “Foreign and International Criminal Court Jurisdiction over Members of the United States Armed Forces,” submitted by
the author in partial fulfillment of the requirements for graduation from the LL.M. program in Public International Law (International Criminal Law Specialization) at Leiden University, The Netherlands.
1
See Wilson v. Girard, 354 US 524 (1957), in which the US Supreme Court referred to the exclusive jurisdiction of a sovereign state (absent any express or implied waiver) over crimes within its ter-
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II saw the peacetime stationing of large numbers of US service members abroad,
and international agreements concerning host-nation criminal jurisdiction were
needed.2 These agreements, called status of forces agreements (SOFAs), embody
US foreign criminal jurisdiction policy.3
The US foreign criminal jurisdiction policy is “to protect, to the maximum extent possible, the rights of US personnel4 who may be subject to criminal trial by
foreign courts and imprisonment in foreign prisons.”5 The policy originated in the
US Senate resolution ratifying the North Atlantic Treaty Organization (NATO)
SOFA,6 and is applicable wherever US armed forces are stationed abroad. 7 The
purpose of the policy can be found in the designated commanding officer’s8 statutory responsibility, whenever a US service member is to be tried by the authorities
of the receiving state, to examine the laws of that state with particular reference to
the procedural safeguards in the US Constitution. The exercise of this responsibility addresses the “danger that the accused will not be protected because of the absence or denial of constitutional rights the accused would enjoy in the United
States.”9 Put another way, the objective in each case is “to ensure that all US military personnel receive a fair trial in the receiving state under all circumstances of
the case.”10
The NATO SOFA is by no means the only SOFA to which the United States
is a party; however, it is one of the earliest and the model for all subsequent SOFAs.11 Each state party to the NATO SOFA has exclusive jurisdiction over offenses
ritory. See also American Law Institute, Restatement of the Law (Third), The Foreign Relations Law
of the United States (1986) § 461, comment f.
2
Wilson v. Girard, ibid. at 548. “The matter of jurisdiction in cases of offenses against the laws of
host countries, whether by our servicemen abroad or by servicemen of other countries in the United
States, is dealt with by mutual agreements.” Such agreements were needed due to the absence of any
reliable exception under customary international law to the general rule subjecting the sending state’s
armed forces to the laws of the receiving state. T. Tudor et al, Eds., Air Force Operations and the Law:
A Guide for Air and Space Forces (2002), at 53-54.
3
Other forms of international agreements concerning foreign criminal jurisdiction include visiting forces agreements, defense cooperation acts, and the exchange of diplomatic notes.
4
The US foreign criminal jurisdiction policy extends to US civilian personnel and dependent
family members of military and US civilian personnel, but their treatment is beyond the scope of this
paper.
5
32 Code of Federal Regulations [CFR] § 151.3; and 1 USC § 133.
6
Agreement Between the Parties to the North Treaty Regarding the Status of Forces (1951),
199 U.N.T.S. 67 [NATO SOFA].
7
Senate Res. of July 15, 1953, Advising and Consenting to Ratification of the NATO SOFA. See
also 32 CFR § 151.4(a): “Although the Senate Resolution applies only to countries where the NATO
Status of Forces Agreement is in effect, the same procedures for safeguarding the interests of US personnel subject to foreign jurisdiction shall be applied insofar as practicable in overseas areas where
US forces are regularly stationed.” The policy has been further implemented in directives of the
separate services of the US armed forces, e.g., US Air Force Instruction 51-703, Foreign Criminal Jurisdiction (6 May 1994).
8
There is a single commanding officer designated for each state where US forces are stationed or
deployed. A list of the designated commanding officers by position can be found in US Armed Forces
Joint Instruction 51-706, Status of Forces Policies, Procedures, and Information (14 January 1990) [AFJI
51-706].
9
32 CFR § 151.6(b),(c).
10
AFJI 51-706, para. 1-7a(3).
11
The US is a party to over 100 SOFAs and, with the exception of the NATO SOFA, all are bilateral. A list of the agreements can be found in T. Tudor et al, Eds., supra note 2, at 62-64. See also Y.
Lee, Criminal Jurisdiction Under the US-Korea Status of Forces Agreement: Problems to Proposals, 13:1 J.
TRANSACTIONAL LAW & POLICY 213 (2003), at 219, and Captain M. Eichelman, International
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FAIR TRIALS FOR US SERVICE MEMBERS
55
committed in its territory by sending state forces which are proscribed by the receiving (host-nation) state, but not the sending state.12 All other situations involve
concurrent jurisdiction. Where the offense is a violation in both the sending and
receiving state, the receiving state has the primary right of jurisdiction13 with two
exceptions. 14 The first, the inter se exception, is where the sole victim is the sending
state, either by way of its personnel or property. The second exception concerns
acts committed in the performance of official duties. This exception is based on the
sovereign equality of states, in which one state should not as a matter of principle
sit in judgment upon the official acts of another.
With the sending state’s primary right to proceed in concurrent jurisdiction
cases already narrowed to only inter se and official duty cases, the US policy as
sending state is to “maximize jurisdiction” to the extent permitted under the
SOFA.15 Therefore, the United States will routinely seek a waiver of the receiving
state’s primary right of jurisdiction and will rarely waive its right to proceed first. 16
This maximization of jurisdiction policy is consistent with the overall US foreign
criminal jurisdiction policy of maximizing the protection of its service members.
III. FAIR TRIAL GUARANTEES UNDER FOREIGN CRIMINAL
JURISDICTION
In those situations where the receiving state has exclusive or primary concurrent jurisdiction over the member of a sending state’s armed forces, the NATO
SOFA contains a list of fair trial guarantees 17 that have been referred to as the first
international “Bill of Rights.”18 The United States unilaterally expanded this list in
implementing the US Senate’s resolution ratifying the NATO SOFA. 19 This nonexhaustive20 list of fair trial guarantees is republished in the US armed forces directive used by the designated commanding officer in fulfilling his or her responsibility
in furthering US foreign criminal jurisdiction policy.21 These guarantees include
that the:
(a) criminal statute alleged to be violated must set forth specific and definite
standards of guilt;
(b) accused shall not be prosecuted under an ex post facto law;
(c) accused shall not be punished by bills of attainder;
Criminal Jurisdiction Issues for the United States Military, THE A RMY LAWYER 26 (August 2000), for a
succinct history of the NATO SOFA.
12
NATO SOFA, Article VII, para. 2.b.
13
Ibid. at para.. 3.a.
14
Ibid. at para.. 3.b.
15
AFJI 51-706, para. 1-7a.
16
Ibid. at para. 1-7c., and see NATO SOFA, Article VII, para. 3.c.
17
NATO SOFA, Article VII, para.. 9.
18
R. Everett, American Servicemembers and the ICC, in S. Sewall and C. Kaysen (Ed.), The United
States and the International Criminal Court 137 (2000), at 148, note 4. Compare to the judicial
guarantees in Article 11 of the International Law Commission, Draft Code of Crimes Against the
Peace and Security of Mankind, UN Doc. A/51/10 (1996).
19
32 CFR § 151.7.
20
32 CFR § 151.7 provides that designated commanding officers should also consider other factors that could result in a violation of due process of law in state court proceedings in the United
States.
21
AFJI 51-706, Appendix D.
THE ICC AND THE US GLOBAL MILITARY
COMMAND STRUCTURE:
IS COOPERATION POSSIBLE?
Gregory P. Granger
I.
INTRODUCTION
Nearly two decades into the post-Cold War era the international system continues to exhibit a resistance to political order, with revolutionary non-state actors
defining great power agendas and long-established international institutions uncertain of their roles.1 The United States embodies a paradox on the world stage,
wielding global influence and unparalleled capabilities to maintain it, and yet vulnerable to myriad asymmetric threats and facing an uncertain future strategic environment vis-à-vis rising powers such as China.2 To overcome these challenges and
vulnerabilities, American national security policy aims to shape international conditions in a manner favorable to maintaining American military and economic hegemony and amenable to free market and democratic values. 3 Since coming into
office, the Bush administration, driven by a sense of national exceptionalism on the
order of the Roosevelts and Reagan, has demonstrated the will to shape and define
the post-Cold War international system in a unilateral manner—though engaging
bilaterally and in ad hoc multilateralism when interests are served—that preserves
American dominance on a global scale.4
The most visible indicator of this approach is the set of policies and operations
designed to counter global terrorist threats to American interests and to establish a
global zero-tolerance regime against terrorism over the long-term future. Related
goals include a firm stance against the proliferation of weapons of mass destruction, especially to terrorist organizations and state sponsors of terrorism. For the
immediate future the United States will remain embroiled in military, humanitarian and political missions in Afghanistan and Iraq, the latter constituting, according to President Bush, “the central front in the war on terror.”5 Over the longer
The author is Acting Director of the School of Social Sciences and Associate Professor of Political Science, Northwestern State University of Louisiana. A previous version of this paper was presented at the annual meeting of the International Studies Association, Portland, OR, 1 March 2003.
1
For discussion of these phenomena, see: Richard Falk, “World Prisms: The Future of Sovereign States and International Order,” Harvard International Review 21 (3) (Summer 1999) under “The
Eclipse of the UN,” http://hir.harvard.edu/articles/index.html?id=749; also, Robert G. Kaiser, “No
Room on This Road for a Fragmented Opposition,” Washington Post, 16 Feb. 2003, p. B01.
2
For a recent analysis of asymmetric threats to the United States, see: Roger W. Barnett. Asymmetrical Warfare: Today’s Challenge to US Military Power (Washington, DC: Brassey’s 2003).
3
For elaboration on this point, see: Colin L. Powell, "A Strategy of Partnerships," Foreign Affairs (January/February 2004): 22-34.
4
There has been a plethora of books published recently on the theme of American power, dominance and (alleged) imperialism. For two well-regarded examples, see: Andrew J. Bacevich, American
Empire: The Realities and Consequences of US Diplomacy (Cambridge: Harvard University Press, 2002);
Niall Ferguson, Colossus: The Price of American Empire (Penguin Books, 2004); on the concept of
American exceptionalism, see Harold Hongju Koh, “On American Exceptionalism,” STAN L REV. 55
(5) (May 2003): 1479-1529.
5
“President Outlines Steps to Help Iraq Achieve Democracy and Freedom,” Remarks by the
President on Iraq and the War on Terror, United States Army War College, Carlisle, PA (May 24,
2004) www.whitehouse.gov/news/releases/2004/05/20040524-10.html.
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term, the United States seeks to establish a world order in which terrorism, and
especially catastrophic terrorism featuring weapons of mass destruction, is successfully minimized as a security threat. Such a prohibition regime against international terrorism would necessarily be global in scope, multi-faceted in governance
to involve civil, criminal and international law as well as the exercise of military
power, and managed by a flexible array of relationships connected by shared core
values. The values most touted by the Bush administration as central to such a
world order are democracy and the rule of law. 6 However, the participatory multilateralism implicit in this regime formulation is decidedly lacking as a norm of foreign policy under the Bush administration. As discussed later, multilateralism in
Bush's foreign policy is primarily about numbers, not norms. To illustrate this
point, while the "coalition of the willing" engaged in Operation Iraqi Freedom is
multinational, the argument that it reflects multilateral norms is falsified by the notion that the United States not only dominates the operation by every measure but
also is the only participant whose defection from the coalition would lead to the
coalition's demise. To qualify as an example of multilateralism, the coalition
would have to be structured in a way that allows for more collective decisionmaking and a greater sense of shared authority. Therefore, the unilateralism that
underscores contemporary American foreign policy is at odds with the goal of constructing a global normative order based on legal and democratic principles rather
than ad hoc and selective engagement. At the least, there is little indication that
world leaders perceive otherwise; rather, the legitimacy of American foreign policy
is actively questioned.7
Meanwhile, the International Criminal Court (ICC) established by the 1998
Rome Treaty has progressed rapidly, from the treaty’s entry into force on July 1,
2002, many months ahead of expectations, to the election of court officials in February 2003 and its first referral from the United Nations Security Council in 2005. 8
In contrast to American dominance over shifting coalitions, the ICC represents an
alternative approach to reshaping the international system. Intended to deter and,
if necessary, prosecute perpetrators of gross human rights violations, the ICC was
established through a multilateralism the United States currently avoids, but for
reasons the United States government claims to support. However, the ICC’s future is uncertain, in part due to the efforts of the Bush administration to distance
American citizens from the court’s jurisdiction. Under President Bush, the United
States has taken the unprecedented and legally questionable move of declaring the
treaty “unsigned,” intended to demonstrate the fervor with which the United
6
See remarks prepared by Elina Kreditor, “The International Criminal Court: A Case for Conservatives,” (New York, 2001): www.americanstudents.us/ICCforConservatives.pdf; also, Roseann M.
Latore, “Escape Out the Back Door or Charge in the Front Door: US Reactions to the International
Criminal Court,” B.C. INT'L & COMP. L. REV.25 (1) (2002): 170 at
www.bc.edu/bc_org/avp/law/lwsch/journals/bciclr/25_1/06_FMS.htm under “III. Evaluation of US
Proposals.”
7
Robert W. Tucker and David C. Hendrickson, “The Sources of American Legitimacy,” Foreign
Affairs (November/December 2004): 18, in which the authors discuss declining regard for contemporary US foreign policies; for a rebuttal, see Robert Kagan, “A Matter of Record,” Foreign Affairs
(January/February 2005): 170-174.
8
On March 31, 2005, the United Nations Security Council referred the case of Sudan to the International Criminal Court via Resolution 1593, which can be found at
http://daccessdds.un.org/doc/UNDOC/GEN/N05/292/73/PDF/N0529273.pdf?OpenElement.
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T HE ICC AND THE US GLOBAL MILITARY COMMAND
67
States rejects any association with the court.9 Furthermore, the United States is
conducting bilateral negotiations to protect American citizens from extradition to
the court, and has secured statutory authority through the American Servicemembers’ Protection Act of 2002 to use any means, including force, to ensure release of
any American held by the court; critics refer to this law as “The Hague Invasion
Act.”10 These efforts indicate a strong expectation in the administration that some
level of contact between the court’s prosecutor and American citizens is likely —
either involving US military personnel or, as has been expressed as the key concern
of the Bush administration, high-ranking government officials.11
In this article, I consider alternative future relations between the global American military command structure and the International Criminal Court as an institution of universal justice. I seek to speculate on how these two universalizing tendencies might come to clash, or, conversely, to cooperate in specific cases and
more generally to represent convergent visions of world order. In the following
section, I explain the role of the US military command structure in the Bush administration’s national security strategy. Specific attention is given to recent and
ongoing changes in the Pentagon’s Unified Command Plan (UCP), which designates Areas of Responsibility (AORs) to five geographic combatant commands and
functional competence to four specialized commands. With the most recent
changes to the Unified Command Plan, the war-planning and, if necessary, the
war-fighting responsibilities of the unified commanders for the first time reach
every territory on the planet. However, as stated by Anthony Cordesman, who
currently holds the Arleigh Burke Chair of Strategy at the Center for Strategic and
International Studies, because success as a combatant commander requires “a thorough understanding of politics as well as the dimensions of war,”12 I argue that the
experiences and missions of the combatant commands have generated important
capabilities that can contribute to the pursuit of universal justice.
Next, I address the International Criminal Court as an emerging indicator of a
juridical approach to constructing a world order based on notions of universal justice. The ICC itself does not possess “universal jurisdiction,” but to supporters is a
key ingredient in working toward a system of universal justice that would also involve national court systems and conflict prevention efforts. I then discuss the potential for a clash between US foreign policy, primarily as carried out by the regional combatant commanders, and the ICC. Areas of potential convergence in
the visions, goals and practices of these two universalizing institutions are then
analyzed.
9
The “unsigning” came in the form of a letter from US Under Secretary of State for Arms Control and International Security John R. Bolton to UN Secretary-General Kofi Annan dated May 6,
2002, the text of which can be found in a State Department press release of the same date, at
www.state.gov/r/pa/prs/ps/2002/9968.htm; for discussion of the matter, see Edward T. Swaine, “Unsigning,” STAN. L. REV. 55 (5) (May 3003): 2061-2091 and John B. Anderson, “Unsigning the ICC,”
Nation 274 (16): 7.
10
See American Servicemembers’ Protection Act,, Pub. L. No. 107-206, 116 Stat. 820 (2002)
(codified as amended at 22 USC. §§ 7421-31 (2003)); see also Joshua Rozenberg, “Will Bush Invade
Cambridgeshire?” Daily Telegraph (London), 5 Sept. 2002, p. 23.
11
Based on statements by administration officials and spokespersons as reported in Elizabeth
Becker, “On World Court, US Focus Shifts to Shielding Officials,” New York Times (7 September
2002): A4; see also Jean Galbraith, “The Bush Administration’s Response to the International Criminal Court,” BERKELEY J. INT'L L. 21 (2003): 683-702.
12
Anthony Cordesman, quoted in Keith Epstein, “Passing of the Flag: CentCom’s Select Few,”
Tampa Tribune, 7 July 2003, p. 1.
A PARADOX OF PREDICTION:
THE ICC’S EFFECT ON US HUMANITARIAN POLICY
IN THE SUDAN
Krissa Lanham
I.
INTRODUCTION
United States opposition to the ICC is deep-seated and has led scholars to predict that the establishment of the Court will lead the US away from human rights
interventions. US policy during the Darfur crisis challenges this view. In many
ways, United States policy and rhetoric on Darfur have been stronger than during
any other human rights crisis in recent memory. This paper examines US policy
during the Darfur crisis, compares that policy to past interventions, and links the
policy to ICC opposition. In doing so, the paper discovers a surprising consequence: the establishment of the ICC, in stark contrast to early predictions, may
actually be partly responsible for the strength of the US’s Darfur policy. That this
rhetorical resolve has yet sparked no direct intervention, however, is a separate and
troubling issue.
A. US OPPOSITION TO THE ICC
The United States has historically supported creating and operating international tribunals. The US was the chief proponent of the International Military Tribunals in Nuremberg and the Far East at the end of World War II, and half a century later it led in the establishment of the International Criminal Tribunal for the
former Yugoslavia (ICTY). Soon thereafter, the US supported the establishment of
the International Criminal Tribunal for Rwanda (ICTR). However, United States
policy towards the International Criminal Court (ICC) has been significantly more
troubled. Though President Clinton publicly endorsed the creation of a permanent
international criminal tribunal in October 1995, and signed the Rome Statute
which created the court on December 31, 2000, the Bush administration revoked
the signature in 2002 shortly before the Statute entered into force. Since then, the
US government has pursued a staunchly anti-ICC policy,1 and government officials
have repeatedly emphasized their opposition to the court. 2
Krissa Lanham is a second-year student at Yale Law School, focusing on International Criminal
Law and International Human Rights Law. She is the student director of Yale's Schell Center for International Human Rights. She clerked in the Office of the Prosecutor at the ICC during the summer
of 2005. This paper was substantially complete prior to her clerkship at the Court and reflects only
the views of the author, not those of the Court or the Office of the Prosecutor.
1
United States’ attempts to counter the ICC include, but are not limited to: concluding agreements, arguably pursuant to Article 98 of the Rome Statute, securing ICC State Parties’ promises not
to surrender US nationals or employees of contractors with the United States who may not themselves
be US nationals to the ICC (“Article 98 agreements”); signing into law the American Servicemembers
Protection Act (APSA), which “basically prohibits any US court or agency from responding to a request for cooperation from the ICC, prohibits any US official from extraditing any US citizen or
permanent resident alien to the ICC, providing ‘support’ to the Court, or expending any appropriate
funds to assist the ‘investigation, arrest, detention, extradition or prosecution of any citizen or resident alien’ by the Court,” Patricia M. Wald, Is the United States’ Opposition to the ICC Intractable?, 2 J.
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There are numerous reasons for American opposition to the International
Criminal Court. 3 The Bush administration sees it as a threat to national sovereignty, in that US personnel overseas could be tried by a court to which the US is
not a party.4 This problem is compounded by what the US sees as an unequal distribution of risk: because it has larger military commitments than other countries,
American soldiers are more likely to be deployed in conflicts that could give rise to
war crimes charges. 5 The US also fears that the complementarity principle in Article 17 of the Rome Statute—in essence, that the ICC will defer jurisdiction to the
individual states unless they are unwilling or unable to try the crime—will leave it
“up to the ICC to decide if the national [court] is willing and able to handle the
case.”6 Further, the US feels vulnerable to political prosecutions under the ICC
pre-trial system, which gives the prosecutor power to open an investigation proprio
motu if two of the three judges on the pre-trial chamber agree.7 The American government sees the prosecutor as unaccountable within the international system,
which creates limitless prosecutorial discretion.8 Finally, the US believes that the
UN Security Council is already in place to deal with international crimes.9
B. PREDICTED RESULTS OF US OPPOSITION TO THE ICC: AN
INCREASE IN IMPUNITY
Scholars have predicted that strong US opposition to the ICC will lead to
changes in American foreign policy, including human rights policy. Most notably,
Jack Goldsmith and Stephen Krasner argued in 2003:
The ICC simply cannot, without US support, fulfill its dream of prosecuting big-time human rights abusers who hide behind national borders. This
is why the ICC’s alienation of the United States may actually hinder rather
than enhance human rights enforcement. We have already seen this effect
on peacekeeping and ad hoc international tribunals. And of course the ICC
INT’L CRIM. JUST. 19, 20 (2004); and, under the so-called “Hague Invasion Clause” of the APSA,
authorizing American troops to use “all means necessary and appropriate” to liberate American servicemen should they ever be imprisoned by the ICC, Samantha Power, “Court of First Resort,” New
York Times, 10 Feb. 2005, p. A23 (hereinafter Power editorial).
2
See, e.g., John R. Bolton, “The United States and the International Criminal Court,” Remarks to
the Federalist Society (November 14, 2002), at www.state.gov/t/us/rm/15158.htm; President George
W. Bush, Presidential Debate in Coral Gables, Florida (30 Sept. 2004),
www.washingtonpost.com/wp-srv/politics/debatereferee/debate_0930.html.
3
I discuss only the most frequently cited reasons here. For broader overviews of US opposition
to the ICC, see Lee A. Casey, The Case Against the International Criminal Court, 25 F ORDHAM INT’L L.J.
840 (2002); Tonya J. Boller, The International Criminal Court: Better than Nuremburg?, 14 IND. INT’L
& COMP. L. REV. 279 (2003).
4
Steven R. Ratner, The International Criminal Court and the Limits of Global Judicialization, 38
TEX. INT’L L.J. 445, 450 (2003); see also Boller, supra note 3, at 295.
5
Diane F. Orentlicher, Unilateral Multilateralism: United States Policy Toward the International
Criminal Court, 36 CORNELL INT’L L.J. 415, 417 (2004).
6
Boller, supra note 3, at 298.
7
Boller, supra note 3, at 297; see also Jim Lobe, “Pressure on Bush Grows to Refer Darfur Case to
The Hague,” Inter Press Service, 19 Feb. 2005.
8
Bolton, supra note 2; Wald, supra note 1, at 19.
9
Boller, supra note 3, at 299. Since the US could control Security Council prosecutions through
its veto vote, this view reinforces the familiar criticism that the United States is reluctant to work
through international organizations unless it can control the organizations itself. See, e.g., Jack Donnelly, International Human Rights (Boulder: Westview Press, 1993),129.
2005]
A PARADOX OF PREDICTION
85
will most likely chill US military action not when central US strategic interests are at stake (as in Afghanistan), but rather in humanitarian situations
(like Rwanda and perhaps Kosovo) where the strategic benefits of military
action are low, and thus even a low probability of prosecution weighs more
heavily. In this way, the ICC may ironically increase rather than decrease
impunity for human rights atrocities. 10
In a later article, Goldsmith restated his view that “the ICC as constituted will
likely harm human rights on balance.”11 He suggested that, given the hundreds of
thousands of US troops spread across the globe who can “much more readily be
nabbed and whisked away to The Hague,” the Court’s ability to prosecute nonsignatory nationals under Article 12 of the Rome Statute “will lead the US to limit
its human rights enforcement activities,”12 which in turn will lead to increased impunity for those who violate human rights.13 Goldsmith argues that human rights
crises lacking “a powerful US welfare-enhancing justification” (in essence, crises
that do not fall within American national interests) will be the first enforcement
activities to go.14 Further, “[t]o the extent that ad hoc international tribunals have
been important in protecting human rights, they too have suffered, and will continue to suffer, from a general US withdrawal.”15 Others have agreed with Goldsmith’s analysis, predicting that Article 12 will impose severe limits on lawful human rights interventions. 16
Those who predict that the existence of the ICC would lead to fewer US military interventions and therefore greater impunity for human rights violations overstate the importance of military intervention in US humanitarian policy. The US
has shied away from military intervention in recent humanitarian conflicts,17 opting
instead to punish human rights abuses through diplomacy and ad hoc criminal tribunals. Goldsmith and Krasner’s additional prediction that the ICC would cause
US support for peacekeeping missions and ad hoc tribunals to suffer is directly contradicted by American humanitarian policy in the Darfur situation. The United
States has, in fact, been quicker to propose peacekeeping missions and ad hoc tribunals than it was in the past.
In this paper, I compare US policy toward the Darfur crisis to humanitarian
situations of similar gravity before the ICC was established, focusing on the Rwandan and Bosnian crises. This analysis leads to the conclusion that the ICC has not
led to greater impunity for human rights violators, fewer enforcement activities, or
‘suffering’ ad hoc tribunals. Instead, the US has taken a stronger position toward
Darfur—if only rhetorically—than toward crises prior to the Rome Statute. I argue
10
47.
11
Jack Goldsmith & Stephen D. Krasner, “The Limits of Idealism,” Daedalus 132 (winter 2003):
Jack Goldsmith, The Self-Defeating International Criminal Court, 70 U. CHI. L. REV. 89, 102
(2003).
12
Ibid. at 96-98.
13
Ibid. at 89.
14
Ibid. at 98.
15
Ibid.
16
See, e.g., David J. Scheffer, The United States and the International Criminal Court, 93 A M. J.
INT’L. L. 12, 19 (1999).
17
The US has borne criticism for its unwillingness to use military force in the 1990s, namely to
address grave human rights violations occurring in Bosnia and Rwanda, see, e.g., Samantha Power, A
Problem from Hell: America and the Age of Genocide (New York: Basic Books, 2002), and Peter Ronayne,
Never Again? The United States and the Prevention and Punishment of Genocide Since the Holocaust, (Lanham: Rowman & Littlefield, 2001).
BOOK REVIEW
BRUCE BROOMHALL, INTERNATIONAL JUSTICE AND
THE INTERNATIONAL CRIMINAL COURT: BETWEEN
SOVEREIGNTY AND THE RULE OF LAW (OXFORD: 2003)
C.S. Maravilla
International Justice and the International Criminal Court: Between Sovereignty and
the Rule of Law analyzes the International Criminal Court (ICC) and the developing
jurisprudence of international criminal law in terms of the tensions between globalism and the continuing desire of nation-states to act on behalf of their own interests.
Broomhall’s realistic approach to the current state of international criminal law
and the politics surrounding the nascent Court make this a distinctive and important work. Many books on the subject tend to deal with the ideals behind the establishment of the ICC and furthering the rule of law rather than on the realities of
fostering multi-lateral approaches in light of extant national interests. This work
more than adequately balances its discussions of the development of international
criminal law and the ICC with the role of the United States. As many books about
the ICC are written with policymakers distinctively in mind, they partly serve as
polemics toward US participation rather than objective analyses of the US and the
Court. Here, Broomhall has produced a work that scholars and students alike will
find insightful for its analyses on the state of the law and the ICC. Policymakers,
nonetheless, should not ignore this book as they should not ignore the ICC.
Broomhall makes the underlying assumption in this work “that the machinery
of international justice that is presently putting down roots and articulating its institutions and principles in the international system is ultimately viable; international justice could work.” His thesis is that to make this happen: “. . . to work in a
legitimate and a politically, legally, and financially viable way requires that problems be honestly appraised and the first steps taken towards defining solutions.”
Broomhall, through the course of his book, successfully sets forth a strong argument in support of his thesis.
A tension has given rise to an institutionalized international criminal court
modeled on the International Criminal Tribunals for the Former Yugoslavia
(ICTY) and Rwanda (ICTR), but one that has faced much opposition from the
United States. This monograph arose from the author’s PhD dissertation undertaken at King’s College London School of Law. As this work was being completed, the Rome Statute had just gone into effect and the US-led War in Iraq was
about to commence thereby, in a way, underscoring the author’s central thesis.
The monograph looks at the developing body of international criminal law as an
example of this basic tension that globalism gives rise to. At the heart of globalism
C.S. Maravilla is an Attorney in Washington, DC; JD, 2000, Georgetown University Law Center; MA, 1996, King's College, University of London; 2003-2004, Law Clerk to Justice Dale Wainwright, Supreme Court of Texas; 2000-2001, Law Clerk to Judge Roger Andewelt, United States
Court of Federal Claims.
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