UN International Law Commission to Elaborate New Global Convention on Crimes Against Humanity Following Experts Meeting in Geneva
The International Law Commission’s decision to add the drafting of a treaty on crimes against humanity to its active agenda follows the publication of a Report from the Geneva Experts Meeting convened by the Crimes Against Humanity Initiative in May. read more
The Washington University School of Law Global Studies Law Review recently published the symposium papers for the conference we held last year, The International Criminal Court at Ten. Access to the online edition can be found here. The collected papers by leading authors highlight the progress and challenges the Court has faced since it began operations in 2002. I wrote, in that symposium issue the following:
“It is easy to become cynical and disheartened by the difficulties that the ICC has faced in its first ten years of existence. Trials that take too long, states that refuse cooperation, states that spurn the Court entirely, budgetary difficulties, political problems including the cleavage of the United States and the Court, and so forth. Yet the spirit that animated the Rome conference – the intuitive voice that whispered in the ear of those present that establishing the Court was simply the right thing to do – regardless of whether it would be easy to accomplish – is still present. We see it in the artistic expression of Monika Weiss, we hear it in the voices of our children, we see it in the faces of the victims of atrocity crimes who finally may perceive in the world some possibility for justice, and we perceive it in the writings of the men and women who have contributed here. Indeed, this collection of essays by some of the preeminent authors in this field stands as a tribute to the indomitable spirit that carried the Rome Conference to a successful conclusion and continues to animate those who are working so hard to make the Court a success. Let us hope that their wise counsel is heeded by those with the power to make a difference.”
As the Court enters its twelfth year of existence, with confirmation hearings scheduled next week in the Ntaganda case and the Katanga decision expected next summer, we take this opportunity to commend this volume to its leadership.
Just leaving the Annual Meeting of the American Society of International Law. The theme was “International Law in a Multipolar World.” Crazy, busy, wonderful time. Haven’t blogged in months, due not to a lack of news or things to say, but other, seemingly more important activities (teaching, writing, faculty meetings, grading papers, raising children, doing yoga). But having been inspired by my colleague, Diane Marie Amann, to pick up my “pen” once again, I thought I would try to put a few thoughts about the meeting into writing.
First, congratulations to Diane, Woodruff Professor of International Law at the University of Georgia, for receiving the Prominent Woman in International Law from WILIG, the Women in International Law Interest Group. An award well-deserved and very inspiring.
Diane, founder of Intlawgrrls, and Special Advisor on Children in Armed Conflict to ICC Prosecutor Fatou Bensouda, gave a wonderful talk on Thursday highlighting women’s voices throughout the twentieth century in the struggle for international peace. Beautifully accompanied by a power point that visually depicted many “foremothers” of today’s international lawyers, her lecture was followed by questions both exploring and challenging the suggestion that women – or at least many women — may approach violence differently because of their sex. Diane reminded us that, at its founding, the Society did not admit women to membership and that it has not been until relatively recently that women have truly begun to find their voices and participate in Society programs and leadership roles. Diane’s courage and willingness to work hard to stake out a space in the blogosphere for women to express their views, unfiltered by others has inspired so many of us to take our own opinions more seriously. Thanks to Jaya for taking over the “management” of intlawgrrls!
There were of course many other highlights of the meetings – important speeches from government policy makers and lawyers; programs on private and public international law; a special lunch session dedicated to former ICJ judge Bruno Simma and another to former Nuremberg Prosecutor Benjamin Ferencz; and of course, the annual dinner and dance party with the International Law Students Association. The Society – and the Annual Meeting – are much bigger than they used to be; no longer can we fit in the truly lovely Fairmount Hotel (miss that courtyard for sure!) and the annual skit, presided over by now-President (and her mom), Lori Fisler Damrosch, is missing too. But what is wonderful is the extraordinary diversity, not just of panels, but people, that one finds: People of color; many, many more women; younger scholars and practitioners; and more non-US nationals, whether international scholars, activists, diplomats or students.
The other thing that is clearly changing, as evidenced by the theme of this year’s meeting, is the sense that we are no longer living in an era of “go-it-alone” American hegemony. The focus on international collaboration and cooperation at this meeting was palpable – as the program committee chairs put it “While the United States is arguably still the only superpower and the European Union remains the largest economy, the world is undergoing major change. China, India, Russia, Brazil, and other States in Asia Latin America, the Middle East, and Africa are increasingly active voices in international institutions, such as the International Monetary Fund, the World Bank, and the World Trade Organization, and have started questioning the dominance of the West in these organizations. These countries are forming alliances in the major international organizations and establishing new institutions to assert their authority and pursue their interests. In short, a new set of actors is moving onto center stage. In the process, these actors are seeking to reshape international rules governing trade and finance, military force, the environment, and beyond.”
Bravo, ASIL, for a wonderful conference! Looking forward to next year.
From June 26 until July 3rd I had the privilege of visiting the International Criminal Tribunal for Rwanda, which was finishing its final trial before handing off much of its work to the newly established Residual Mechanism for International Criminal Tribunals (MICT). Indeed, it heard its last witness in its final trial, Prosecutor v. Ngirabatware, on July 3, 2012.The ICTR has now completed trials for all indicted persons other than several fugitives ahead of schedule, and on July 2, 2012, the Arusha Branch of the MICT was inaugurated in a solemn ceremony featuring addresses from the President of the MICT, Judge Theodor Meron, the President of the ICTR, Judge Vagn Joensen, and other dignitaries including representatives of the Governments of Rwanda and Tanzania, Hassan Bubacar Jallow, the Chief Prosecutor of the ICTR and the MICT, and the registrars (or their representatives) of both institutions.
What was perhaps not captured in the formal speeches on the 2nd of July was what the ICTR has meant to so many persons both within and without the institution. The Tribunal has been operating for more than 17 years to bring to justice those most responsible for the cataclysmic slaughter of 1994. Located in the Arusha Conference center at the foot of Mount Meru in the heart of Arusha, at its peak it had four fully functioning modern courtrooms, more than 1000 staff from more than 80 countries, and an annual budget of 140 million dollars. It has become an important institution in Tanzania, not only for the jobs it created, but for the commitment it represented by the United Nations and the international community to peace and justice in East Africa. It took on the role of a vital institution for the region, and proved that a functioning and effective international criminal tribunal could be located in Africa. The Tribunal had many firsts: first conviction for genocide, first jurisprudence that rape could be an act of genocide, first convictions on charges of incitement to genocide, first international tribunal in Africa, etc., etc.
Even though the Rwandan government objected to its location outside of Rwanda and to the absence of the death penalty at the ICTR, engendering difficult relations between Rwanda and the ICTR for many years, ultimately the Rwandan government and the ICTR developed a modus vivendi.I also visited the detention center, and was extraordinarily impressed with the thoughtfulness and efficiency of the prison system established. With the transfer of some existing prisoners to Rwanda for trial as well as the cases of several fugitives, the capacity building dimension of the ICTR’s work will remain a critically important aspect of its legacy.Washington University School of Law has had more than a dozen students intern at the ICTR, each of whom has come away changed by the experience.They have worked in Chambers and for the Office of the Prosecutor, and come to know the people of Africa and the commitment to justice and peace that the work of the Tribunal represents. The warmth of those working at the Tribunal, like the warmth of the Tanzanian people, has made their work pleasant as well as instructive; indeed, the hospitality I experienced during my visit was extraordinary. Sometimes working conditions are difficult in Tanzania, but hardship and obstacles are borne with equanimity and a smile.
Rwanda and Tanzania, like other countries of the region, are amongst the poorest nations on earth. As I noted in my lecture on The Legacy of the International Criminal Tribunal for Rwanda, the ICTR has had a profound effect on the local environment, the regional community and internationally. Now it is up to the international community to ensure the success of that legacy through adequate funding of the Residual Mechanism, and making sure that the commitment to the people of Rwanda – and East Africa — continues long after the ICTR’s formal closure.
On June 15, 2012, Mme. Fatou Bensouda, the ICC’s Deputy Prosecutor, was sworn in as Chief Prosecutor of the Court. It was a wonderful day, with dignitaries, friends, family and Court personnel gathered both to witness the transition and to honor Prosecutor Bensouda. The ceremony was presided over by President Song, and both the President of the Assembly of States Parties, Tina Intelmann, and Mme. Bensouda delivering stirring and important remarks. After the ceremony, a reception was held which was sponsored by the Swiss Government and the CICC. The invitations issued bore the notation “dark suit” and many of us obliged, wearing black or otherwise very somber garb. What it should have said, however, was “business attire or national dress” for that in fact was apparently what they meant. And indeed, many of the Africans present were resplendent in beautiful robes or shirts of brilliant color. It was a great day for the African States Parties who could feel even greater ownership of this Court; and a wonderful day for the ICC which will benefit from Mme. Bensouda’s passion, commitment, intelligence, experience and grace. I was honored to be present. See website. She will serve a 9-year term.
On April 24-25th, the Raoul Wallenberg Institute in Lund, Sweden celebrated the 100th anniversary of Wallenberg’s birth with an extraordinary program. Presenters included Ambassador Hans Corell, former Secretary General Kofi Annan and High Commissioner of Human Rights, Navi Pillay, and each of the major lectures of the day was followed by a solo piano interlude that was beautifully rendered. See website. The following day I had the opportunity to speak on a panel about modern-day atrocities. See website. Wallenberg’s story is really quite extraordinary; from a prominent Swedish family, he served during World War II as the Swedish Legate to Hungary, posted in Budapest. Distraught over the fate of Europe’s Jews, he personally intervened to grant protective passports, lodging and safe passage to as many as 100,000 individuals who were saved by his intervention (US Congressman Tom Lantos is among those saved by Wallenberg). After this extraordinary act of courage, he was picked up by the Soviets after the war, and died in Soviet custody under very mysterious circumstances. His remains have still not been returned to his family. The photo here shows the Chancellor of Lund University (left) with Wallenberg’s half-sister, Nina Lagergren (age 93!), and Ambassador Hans Corell. After remembering Raoul and celebrating his life, they called upon the Russians to finally release Wallenberg’s remains to his family and divulge what really happened to him. Sweden may have been neutral during the war, but Wallenberg was anything but.
In March I had the opportunity to meet with Ben Ferencz, former Nuremberg Prosecutor, and Luis Moreno-Ocampo, the Chief Prosecutor of the International Criminal Court. We discussed many issues including the difficulties involved in implementing the Kampala amendments on aggression, and the definition of crimes against humanity. What was so fascinating was to see the direct linkage between Ben’s “court” and experience prosecuting atrocity crimes, and the experience of Luis at the ICC. What is common is the dedication of both men to combating impunity; and the passion both have for protecting the victims of crimes against humanity, war crimes and genocide. What is different, of course, is the circumstances; the ICC as a permanent court is a very different institution, both weaker (in terms of enforcement) and stronger (due to its widespread international support, permanent staff and ability to develop precedents and methodologies for addressing various situations over time). It was an honor to spend time with both of these extraordinary men.
Global Brief Magazine – http://globalbrief.ca – recently posed the following question to several leading experts, “What will be the impact of international human rights prosecutions by 2022?” Here follows my response:
Because the question refers to ‘prosecutions,’ and not litigation, it presumably targets the worst sort of human rights abuses – those that give rise to individual criminal responsibility, such as genocide, war crimes, crimes against humanity and torture. These are justiciable in the ICC, but subject to severe jurisdictional and procedural limitations. They are also justiciable in national courts either under universal jurisdiction or as an element of post-conflict justice, and in international or mixed criminal courts such as the International Criminal Tribunals for the former Yugoslavia and Rwanda.
By 2022, we can assume that there will no longer be any mixed or international criminal courts, as they will have completed their work. There appears to be very little enthusiasm for establishing new ones. At the same time, the Rome Statute will have achieved nearly universal ratification if the current rate of state adherences (six to eight per year) remains steady. That would bring the total number of countries adhering to the Statute to between 175 and 183, or nearly every country in the world. At present, 120 states are parties, but many powerful and populous states – including three of the five Permanent Members of the Security Council – China, Russia and the US – remain outside of the Rome Statute system. Politically, it will become increasingly difficult for states to remain outside of the Rome Statute system as the number of ratifications continues to increase. Additionally, in 2017, the ICC will likely include within its jurisdiction the crime of aggression, although ratifications of the Kampala amendments introducing that crime have been slow. It is quite possible that states that have thus far adopted a ‘wait and see’ approach to the Statute, such as India, may join once aggression is part of the Court’s Statute.
It is therefore likely that the effect and reach of the Statute – directly through international prosecutions, and indirectly in catalyzing and supporting domestic prosecutions – will continue to grow. It will become increasingly difficult for states to offer exile or otherwise shield those accused by the Court, and the Court should, as a consequence, have increased success in implementing its arrest warrants. This may have an important deterrent effect on the commission of atrocity crimes, as government leaders (and rebels) internalize the idea that there will be some degree of accountability for their actions. It is likely that the kind of regional anti-ICC politics now evidenced by African nations will diminish as the Statute moves closer to the goal of universal ratification, and as accused from countries outside of Africa are charged by the ICC Prosecutor. For its part, the US will come under increased pressure to ratify the Statute and, over time, the current domestic objections to ratification should dissipate. Entry of the US into the Rome Statute system – if it can be achieved by 2022 – will evidently strengthen the Court considerably as well.
Leila Nadya Sadat
Henry H. Oberschelp Professor of Law and Director, Whitney R. Harris World Law Institute
Washington University School of Law
Here in New York City at the 10th Session of the ICC’s Assembly of States Parties, it is remarkable how much and how little has changed since I first started attending meetings relating to the International Criminal Court and its establishment since 1995. The City seems more international than ever, and more crowded; the sign on the fence surrounding the United Nations which reads “7 Billion” perhaps explains why – there are indeed more than us than ever, it is not just an illusion. Yet the world is a more peaceful place than it was when the United Nations was founded in 1946 and the world’s population was a mere 2.5 billion or so. At least part of this success can be credited to the establishment of international institutions dedicated to, among other things, establish and maintain peace – not just as a matter of ideology but by taking practical measures to alleviate the suffering and poverty that lead to unrest, and by establishing, as Eleanor Roosevelt once wrote, a place where states can “meet and talk.” That place, of course, is the United Nations itself, and this international gathering place in this most international of cities never ceases to amaze me. Wander about the building and admire the donations from every corner of the globe of artwork, statues, carpets, figurines, glass wear and beautiful spaces, and the creativity and potential of the human spirit come alive. The ICC ASP, while not a UN institution, often holds meetings on UN premises, allowing all States to participate since all States Parties (and virtually all observers) as all States Parties are members of the United Nations and have permanent representatives in New York.
Alas, the crowding on our planet and the success of our new international institutions is reflected in the situation in the conference rooms allocated for this 10th Meeting of the ICC’s Assembly of States Parties. It is nearly unbelievable that in the short time I have been coming to meetings, the ICC has grown from a gleam in the eye of academics, experts, former Nuremberg prosecutors and a few world leaders, to an international institution with 120 States Parties as members. This has meant that the space allocated to meetings of the Court has become increasingly crowded, and the new President of the Assembly was confronted yesterday by angry delegations seated in the back of the room which had less table space and – more importantly – no access to microphones, and was forced to create a rule that each delegation was limited to only two representatives so that all States Parties could actively participate in the elections of judges in the afternoon. Since AMICC (www.amicc.org) is already reporting on the specifics of each vote, I will confine my comments to noting that with the election yesterday of a judge from the Philippines (Ms. Miriam Defensor-Santiago) and Trinidad and Tobago (Mr. Anthony Thomas Aquinas) four slots remain to be filled and 16 contenders are vying for those places, including 7 African contenders, two contenders for 1 slot reserved for Eastern Europe, 4 contenders for another slot reserved for Latin American and Caribbean contenders, a French and a British nominee. Because two of the four slots remaining must go to an Eastern European or Latin American/Caribbean nominee, the African and European nominees, as well as the other nominees from Asia-Pacific, Eastern Europe and Latin America/Caribbean it is quite likely to get very warm in overcrowded conference room 2!
A couple of other notes from yesterday’s opening plenary. First congratulations to ICC Deputy Prosecutor Fatou Bensouda for her election as Chief Prosecutor of the International Criminal Court. Her wealth of experience, her talent and commitment to justice, her tremendous personal charisma and gravitas and her inclusive and collaborative working style will no doubt all contribute to an exceptionally productive and effective tenure as Chief Prosecutor. She received the World Peace Through Law Award from the Whitney R. Harris World Law Institute at Washington University School of Law on September 20, 2011, an award established by and given in honor of the late Whitney R. Harris, former Nuremberg Prosecutor. See website. Fatou, we are so delighted with your election, and I’m sure Whitney would have been overwhelmed to hear the good news. We wish you the best of luck in your new position.
With the election of a female Chief Prosecutor, and a woman as head of the ASP, it also seems that perhaps the ICC is turning a corner in terms of gender equity at the top levels of its leadership. More later today as the Gender Report Card is launched by the Women’s initiative for Gender Justice.
A couple of other notes from the field are worth reporting. First, the United States has a large and important delegation present as observers (although they are not able to sit in overcrowded conference room 2 during plenary sessions at this point in time), and no doubt will be intervening during the general debate. The question remains why the United States continues to remain outside the ICC regime. At first the US position was that it was too complicated, premature, too difficult and wasn’t going to happen – I remember sitting on expert panels in 1995, 1996 and 1997 and hearing this over and over again. When the Statute was actually adopted in Rome in 1998, this negativity spilled over into a “no” vote, a negative report on the Treaty to the Senate Foreign Relations Committee, and much later a reluctant signature of this “flawed” treaty (in the words of the U.S. administration). The eight years of the Bush administration saw the Bolton policy of the “three nos” which were destined to help the Court “wither and die” and although this policy softened after 2006, legislation was adopted to implement it, legislation which is still on the books. Now that the ICC has 120 States Parties and is clearly doing the work that the US and other democracies want it to do – the question remains what possible benefit the United States believes it gets from remaining outside the ICC regime, unable to vote for the Prosecutor and judges, and even worse, unable to nominate one of its nationals as a judge on this important Court. Here I need to put in a plug for John Washburn, a former U.S. foreign service officer and diplomat who has served this country tirelessly for decades, whom I had the pleasure to meet at Rome, and who founded AMICC, the American Coalition for the ICC, which covers the ICC in wonderful, rich detail, and who, along with his small team of experts, continues to work for U.S. engagement with the Court and, one day, for full U.S. membership in the Court. One of the things that has remained constant during the more than 15 years I have been attending ICC-related meetings has been the steady presence of deeply committed individuals from civil society, including John, Bill Pace, head of the CICC, and Richard Dicker from Human Rights Watch. And of course, one of the individuals who has continued to be present and contribute actively to the creation and effectiveness of this new international institution is former Nuremberg Prosecutor and conscience of the world, Ben Ferencz, who at 92 years of age, continues to work for peace and the rule of law. Finally, one of the biggest issues at this ASP is the budget – a struggle for the Court, as with all the international criminal tribunals before it – to get the resources it needs to do the job it has been tasked with.
Every August, there is a sense of excitement at the law school. Another academic year is poised to begin. During the first and second weeks of the month, the quiet and nearly empty hallways of Anheuser-Busch Hall begin to fill with second- and third-year law students returning early to check on their apartments and work on their job searches, journal assignments, and moot court applications. They reconnect with friends and the larger law school community; many come by to say “hello.” It is wonderful to have them back. Their arrival means that it is time to put aside whatever research projects I am working on and get out my course materials, anticipating eagerly the start of the new term. I look at my course notes and try to remember what did and did not work, and what new cases and developments need to be added to my syllabus. Orientation begins, and the 1Ls arrive; the sense of excitement is palpable. Laughter is heard in the commons and the hallways, and students finalize their class schedules, thinking about what this experience will mean for them, their families, and their futures. Suddenly, it is the first day of classes. Course materials ready, roster studied, seating chart prepared, lecture notes in hand, I enter the classroom. I survey the students sitting down, the ones filtering in and looking for seats or for their friends, and the ones discreetly sizing me up. I recognize a few faces, but many are unfamiliar. At eight minutes past the hour, I take a deep breath, look up, smile, and begin class. Another academic year has commenced, and I am reminded why I teach—because it is the most challenging and rewarding job I can imagine. continue reading