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From: wolda002@umn.edu
Date: Thu Jul 01 2010 - 01:53:50 EDT
U.S. Hijacks ICC conference
By Francis Njubi Nesbitt, June 29, 2010
The United States managed to foil the International Criminal Court’s
(ICC) adoption of the crime of aggression as part of its mandate during the
just-concluded review conference in Kampala, Uganda. Despite the fact that
the United States is not a signatory to the Rome Statute, which established
the ICC, and thus did not have a vote at the conference, U.S. negotiators
cajoled a majority of the state parties to delay the definition and
adoption of the crime of aggression for another seven years. Where the Bush
administration used threats and tried to intimidate, the Obama team offered
sweet-talk and enticements to get states to delay the amendment expanding
ICC jurisdiction to include the crime of aggression. It also managed to
water down the definition of aggression and to exempt U.S. personnel from
prosecution. The latter was a goal of the previous administration and the
reason for U.S. hostility toward the ICC.
Crowing with satisfaction, the State Department reported on June 16 that
the agreement had ensured “total protection for our Armed Forces and
other U.S. nationals going forward.” This indemnity was achieved by a
series of amendments that exempted non-state parties from prosecution and
gave the U.N. Security Council the power to determine if a crime of
aggression has occurred. If the Security Council finds that aggression has
not occurred, then the prosecutor would have to seek a majority vote of
pre-trail judges and even then, the Security Council would still have the
power to thwart the process with a binding Chapter 7 resolution
disapproving the action. Even if the United States becomes a state party to
the ICC at some point, it could still opt out of having U.S. citizens
prosecuted for aggression.
The Carrot Approach
The success in promoting U.S. interests was achieved by offering
inducements, such as “generous” support for national legal systems in
state parties through information sharing and support in arresting
suspects. The focus on national legal remedies for war crimes and crimes
against humanity has been touted as the alternative to international
justice. The International Criminal Tribunal for Rwanda -- which I am
currently visiting -- and the International Criminal Tribunal for the
Former Yugoslavia, in particular have been criticized for spending hundreds
of millions of dollars with little to show for it. Critics such as
President Paul Kagame of Rwanda argue that the local Gacaca courts, based
on indigenous norms, are faster and more relevant to ordinary Rwandans than
distant international tribunals. Both the international tribunals and the
local courts, however, suffer from the malady; both tend to prosecute the
“losers” and ignore crimes that may have been perpetrated by the
victors. The only exception is the Special Court for Sierra Leone which
prosecuted both sides of the civil war.
Another incentive offered to mitigate U.S. meddling is “cooperation,”
such as information sharing and support in the location and arrest of
suspects. ICC officials argued before the conference that the United States
could provide critical counterintelligence support in the search for, and
arrest of, indicted war criminals such as Joseph Kony, leader of the
Lord’s Resistance Army. The ICC charged Kony with individual criminal
responsibility on 33 counts of crimes against humanity including, murder,
mutilation, rape, mass burnings, and enslavement. It issued an arrest
warrant for him on July 7, 2005. The United States has also designated Kony
a “specially designated terrorist” (SDT), a designation that allows the
United States to block his assets and criminalize any association with the
said individual or group. Other SDTs include Osama bin Laden and Hamas.
A Renewed U.S. Role
Despite its success in delaying the ICC’s jurisdiction over aggression,
the United States failed in its main objective to defeat the amendment
altogether. Instead, the United States tried to politicize the ICC by
enhancing the role of the Security Council and therefore giving permanent
members the power to subvert the process. Ironically, this is the very
issue, politicization, that the United States claimed was the problem with
the ICC in the first place.
This renewed engagement with the ICC suggests that the Obama administration
is interested in shaping international law while remaining immune to
prosecution under the very laws it helps develop. In the case of the ICC,
the cover story is that the United States is concerned that its troops
engaged in peacekeeping around the world may be subject to malicious
prosecution.
Critics of the ICC argue that it is a toothless watchdog because it relies
on member states to arrest suspects. They point to Omar al-Bashir of Sudan
who continues to thumb his nose at the ICC, despite an arrest warrant
issued in 2009 for war crimes and crimes against humanity in Darfur. The
counter argument is that international war crimes tribunals have
successfully prosecuted heads of state including former Prime Minister John
Kambanda of Rwanda, and former presidents Slobodan Milošević of Serbia
and Charles Taylor of Liberia.
The latter case is particularly instructive as the Special Court for Sierra
Leone, which prosecuted Taylor for his role in the civil war, is a hybrid
of national and international justice, bringing together both local and
international prosecutors and judges. Such hybrid processes have also
worked in the case of Cambodia where a U.N.-backed tribunal is trying
senior members of the Khmer Rouge for violations of international
humanitarian law. Locating the tribunals in the countries where the crimes
were committed both enhances the capacity of national judicial systems and
involves the local communities in the process. In some cases, however,
powerful individuals are able to thwart efforts to establish local
tribunals. In such cases, for example the recent experience in Kenya, it
may be necessary to resort to international courts.
Although critics are furious at the role of the United States in shaping
the agenda of the review conference, this reengagement with international
institutions is a positive step. The United States can play a role in the
international arena by supporting efforts to bring suspects such as Kony to
justice and putting pressure on sitting presidents such as Omar al-Bashir.
Meanwhile, expanding the jurisdiction of the ICC to include aggression will
be revisited in 2017, giving activists and other interested parties another
opportunity to advocate for the increasing role of the ICC in international
law.
Francis Njubi Nesbitt is a Foreign Policy In Focus contributor and teaches
African politics and conflict resolution at San Diego State University. He
is the author of Race for Sanctions (Indiana University Press, 2004) and is
completing a book on peacemaking in the Horn of Africa