Delighted to return to Intlawgrrls, and to have recently attended a fascinating program on International Criminal Law in a Retreating World organized by the American Bar Association’s International Criminal Court Project, Center for Human Rights, and Criminal Justice Section.

The program included a variety of perspectives presented throughout the course of two back-to-back panels. The first panel—US Policy on the ICC and International Criminal Justice—featured Former Legal Adviser to the Department of State John Bellinger, Global Justice Center President Janet Benshoof  and Stephen Lamony, Senior Advocate for Africa with Amnesty International. The second panel featured the current Prosecutor of the International Criminal Court, Fatou Bensouda, and former Ambassador At-Large for War Crimes Issues, Professor David Scheffer.

Much of the conversation in the first session revolved around the anticipated deterioration in the US-ICC relationship after a longstanding policy of constructive engagement that began during George W. Bush’s second term and continued to advance under President Obama.

For Benshoof, the proper way forward for Court proponents in the face of this expected hostility is to advocate zealously for a yet stronger association with the Court, including a push for the present administration to accede to the Rome Statute. Bellinger, however, cautioned against what he described as “waving a red flag,” a reasonable concern in light of the present “onslaught on international law and institutions.”  In Bellinger’s self-described pragmatic view, Court supporters should instead emphasize widely the commonalities of the U.S. and the ICC, including a shared commitment to hold perpetrators of atrocities accountable.

Among other noteworthy issues, Bellinger discussed:

• • How those who don’t remember history are doomed to repeat it: One of the key takeaways from Bellinger’s contributions is that ICC advocates need to educate the current administration about the prior missteps in the US-ICC relationship. Citing to such gaffes as the decision to cut off military aid to foreign governments that refused to sign Article 98 agreements—a move famously described by then-Secretary of State Condoleeza Rice as “sort of the same shooting ourselves in the foot” because it undermined efforts to combat terrorism and drug trafficking—Bellinger repeatedly highlighted the need to avoid “roll back” to this earlier state of hostility and opposition.
  • The “pivot” in the US-ICC relationship after Bush’s first term: For this author, who has long scrutinized the relationship between the US and the ICC, one of the most interesting revelations of the day came in response to a question about what prompted the dramatic shift in the US approach to the Court in Bush’s second term. According to Bellinger, it was the world view of US opposition to the Court that triggered the shift. Apparently, so many world leaders voiced their concern about the US position to former President Bush that he asked for a paper on the value of the Court. The rest, as they say, is history.
  • The ICC Prosecutor’s current investigation of US forces in Afghanistan: Since 2007, the ICC Prosecutor has been conducting a preliminary investigation into Court crimes allegedly committed on the territory of Afghanistan. As a result of this inquiry, the Prosecutor recently declared that there was a reasonable basis to believe that US military forces deployed to the country committed war crimes of torture and related ill treatment. What happens next depends in part upon whether the Prosecutor seeks to go forward with a formal investigation. Not surprisingly, Bellinger noted that if an investigation involving US troops were to materialize, this would put a decisive end to any prospect of US cooperation with the Court.

 

The status of the Afghanistan investigation was again raised in the second panel discussion. Prosecutor Bensouda recognized that many were eager to learn whether she would request authorization from the Pre-Trial Chamber to proceed to a formal investigation into the matter, a requirement for the inquiry to advance under Article 15 of the Rome Statute. She also acknowledged that this widespread interest was the natural result of her November 2016 declaration that her decision on the future of the investigation would be announced “imminently.” As for the delay, Prosecutor Bensouda explained that, since her announcement, there has been “more engagement” with interested states and that this engagement has produced additional information that she is statutorily required to consider before proceeding further.

Presumably, the Prosecutor was referring Article 53, a provision that obliges her to consider whether the interests of justice would not be served by initiating a formal investigation, as well as whether insufficient gravity or the principle of complementarity would render the case inadmissible. Although (unfortunately) she provided no insight as to which of these considerations was implicated by the recent state engagement, complementarity seems the most likely possibility. Under that principle, a case is inadmissible if a state with jurisdiction is conducting its own, genuine investigation into the matter. Accordingly, it might well be that the Prosecutor’s recent announcement actually prompted a state to fulfill its obligation “to exercise its criminal jurisdiction over those responsible for international crimes.” If so, this would be a major win for the Court, which is meant to be an institution of last resort, stepping in only when states have failed to deal appropriately with international crimes.

That said, Bensouda acknowledged that the Court is facing no shortage of problems at the moment. Among them, she described state cooperation as a “huge challenge” and noted the Court’s ongoing difficulties with witness interference. Professor Scheffer similarly noted a series of setbacks for international criminal justice, and argued that part of the problem lies in the unrealistic expectation that international criminal law should change the world when, really, this is the bailiwick of politics. Scheffer also credited contemporary international criminal justice efforts for the fact that “the presumption of impunity is now dead” and argued that the international criminal institutions require patience and continual governmental support.

This author is looking forward to discussing many of the issues raised by the five experts at the International Criminal Court Summer School in Galway, Ireland, where she will be lecturing in June.   The upcoming course, offered by the Irish Centre for Human Rights boasts a distinguished list of speakers, including fellow Intlawgrrls Nadia Bernaz and Noelle Quenivet.