Delighted to return to intlawgrrls, and to have attended the June 10 briefing on the International Criminal Court (ICC) delivered by U.S Ambassador-at-Large, Stephen J. Rapp,(photo, left) head of the Office of Global Justice in the U.S. Department of State and hosted by the Washington Working Group on the International Criminal Court (WICC) and the Tom Lantos Human Rights Commission of the U.S. House of Representatives.
Those present heard an up-to-date perspective on the ICC, including its relationship with the United States, moderated by Christopher “Kip” Hale, Senior Counsel for the American Bar Association and Director of the ABA’s International Criminal Court Project.
Ambassador Rapp set the stage for his briefing by discussing the global leadership of the United States in the field of international criminal justice, beginning with the Nuremberg proceedings and continuing through to the work of the International Criminal Tribunals for the former Yugoslavia and Rwanda.
He followed with an extensive and detailed discussion of the work of the Court to date, along with an incisive analysis of the evolving role played by the United States over the course of the ICC’s development.
Among other themes, Ambassador Rapp discussed:
- The ways in which ICC practice and US policy are aligned: The clear preference of the United States is to see justice performed at the national level. This position, Rapp emphasized, is consistent with the Court’s principle of complementarity. Under each approach, the priority is for cases to be prosecuted at the national level unless nations lack the will or capacity for domestic prosecutions.
- The benefits of engaging with the ICC: Rapp highlighted that the current policy of constructive engagement ensures that U.S. interests and perspectives are well-represented as the Court goes forward. To place the importance of this positioning in perspective, Rapp noted that a number of Court’s developments—particularly those related to the crime of aggression—might have gone differently, and perhaps preferably, had the United States been a part of the ICC conversation from 2002-2008.
- The need to structure engagement with the Court within the confines of existing laws: Federal law presently prohibits direct financial support to the ICC. Thus, Rapp discussed alternative means of US assistance including the U.S. Rewards for Justice Program which, with bipartisan backing, was recently expanded to include support for the apprehension of individuals wanted by the ICC.
- The salutary benefits of the ABA’s ICC project: Federal law also limits U.S. non-monetary assistance to specific ICC cases, precluding the United States from acting in ways designed to benefit the Court as a whole. Rapp lauded the ABA’s ICC Project for filling this void. Promoting practitioner engagement and training is one of the three pillars of the ABA project, which aims to unite ICC lawyers and staff with their domestic counterparts, enhancing investigation and advocacy skills through such vehicles as best practices conferences and training workshops.
The overall tenor of the briefing was markedly positive. Noting the U.S. commitment to hold perpetrators of atrocities accountable, Rapp reasoned that the United States ought to do what it can to assist the Court in bringing alleged war criminals to justice.
When I asked Rapp to identify what, in his view, was the most significant impediment to the United States joining the ICC, he first acknowledged that U.S. ratification of international treaties has historically been a lengthy process. Rapp noted, however, that before moving in this direction, the United States would have to overcome its concern that the Court might be used unfairly against it. In Rapp’s view, this process will require more time for the United States to assess how prosecutors act and how ICC judges decide admissibility standards, in order to establish confidence that the U.S. would not be unfairly targeted by the Court.
This author is looking forward to discussing Rapp’s briefing next week at the International Criminal Court Summer School in Galway, Ireland, where she will be lecturing on the U.S. and the ICC. The upcoming course, offered by the Irish Centre for Human Rights boasts a distinguished list of speakers, including the founding Director and now Honorary Chairman of the Centre, Professor William A. Schabas, fellow intlawgrrl, Nadia Bernaz, numerous ICC insiders and Don Ferencz, executive director of the Planethood Foundation and member of the Board of Advisors on the ABA-ICC Project.
A video-recording of the briefing is available here.
IntLawGrrls 
Shouldn’t advocacy for the U.S. to join the ICC (rather than just engage with it) be one of the ABA project’s pillars? I suppose the chances of joining someday improve with the functioning of the Court, but it seems strange, and perhaps imperialist, to have U.S. lawyers training practitioners in a court whose authority we reject.
Thank you BD for the comment, as it does point out an important issue to address. Let me begin by stating that advocacy and educational initiatives before the US executive and legislative branches is one of three prongs of the ABA-ICC Project (hyperlink to our temporary website above), and are activities that we undertake with domestic and international partner organizations. So, the practitioner engagements (which include trainings that you mentioned) is only one part of the Project.
As it relates to that practitioner part, it is important to state that the ABA works with a wide-range of international partners – from foreign bar associations, international human rights groups, civil society groups, and law schools around the world – in developing and implementing exchange of expertise forums, training modules, best practices workshops, and other similar work. So, any and all trainings for the ICC, for instance,will have been created and delivered by Americans and/or non-Americans. Further, there is no prerequisite that they happen under an ABA banner.
Finally, the ABA is the world’s largest voluntary membership organization of professionals (American and non-American members) that is independent of the US government. American judges and lawyers can learn from their ICC counterparts and vice versa, all for the betterment of the ICC operations and for improvements to the knowledge-base of the ICC bythe American legal community (which is an important constituency when promoting the ICC domestically).
BD, thanks very much for your question and comments.
To clarify, ABA policy actually calls for U.S. accession to the Rome Statute. The project, which also includes providing education on the ICC, fostering engagement among US and ICC officials and stakeholders, and advocating publicly before US legislative and executive branches, is entirely consistent with that aim.
As for having US lawyers assisting those who work at the Court, that’s neither strange nor imperialist. As Ambassador Rapp pointed out in his briefing, US lawyers have played key roles at the ICTY, ICTR and the Special Court for Sierra Leone (SCSL). To that I might add that most (if not all) of these lawyers were ideally suited to do so because of their experience in litigating complex criminal cases in the US. Indeed, Rapp himself, a former US attorney, served as Prosecutor of the SCSL and as Senior Trial Attorney and Chief of Prosecutions at the ICTR.
Technically, the ICC can continue to draw and benefit from this pool of attorneys and, in fact, it has. Christine Chung, for example, served as Senior Trial Attorney at the ICC after a 12 year stint as an AUSA. As you can imagine, however, the ICC is more inclined to hire people who hail from one of the 122 countries who have joined (and help to finance) the Court. Hence the need to provide an alternative means by which the ICC can benefit from experienced US practitioners.
Thanks for your response. I think my view was colored by my concerns about other ABA programs in which US lawyers provide US-style training in English geared for an adversarial process to lawyers and students who will work in domestic courts in developing legal systems. The program you describe makes more sense.