NY Law Journal: Creating a Court for CAH

Dear all,

In this article in New York Law Journal, the author presents an overview on
the ICC and the U.S. position vis a vis the ICC. An excerpt reads: "The
Unites States, with its unique role and responsibilities in the global
balance of power, remains the only Western democracy opposed. The irony of
American opposition is that much of the Rome Statute was drafted by U.S.
diplomats, who devoted years to these painstaking negotiations."
"Like it or not, the ICC will be a major force in the new millennium's
international legal order. While the US government has shown real concerns
about multilateral treaties that simply set standards of behavior, the ICC
arguably is different: it will be a living, breathing institution with its
own importance and consequences, and one that most of our friends and
allies readily embrace. One way or another, the United States will have to
come to terms with the International Criminal Court," he concludes.

Full article below.

Regards,

Tunga Ganbold
CICC Secretariat
******************
Copyright 2001 New York Law Publishing Company

New York Law Journal

September 25, 2001 Tuesday

SECTION: OUTSIDE COUNSEL; Pg. 1

LENGTH: 2614 words

HEADLINE: Creating a Court for Crimes Against Humanity

BYLINE: By David Stoelting; David Stoelting is an associate with Morgan,
Lewis & Bockius LLP in New York, and chair of the Committee on
International Criminal Law of the ABA Section of International Law &
Practice.

BODY:
The International Criminal Court (ICC) will start functioning next year.
For the first time in history, persons committing genocide, war crimes and
crimes against humanity will be subject to indictment, arrest, prosecution
and imprisonment at the hands of a permanent court created by a
multilateral treaty.
The ICC will begin operations when sixty countries ratify the ICC treaty,
and thirty-eight have already done so. The U.S. government, despite its
extensive involvement in the drafting of the ICC treaty, remains opposed.
With or without the United States, however, the ICC appears to be a done
deal.
The terrorist attacks on the World Trade Center and the Pentagon are among
the categories of "unimaginable atrocities that deeply shock the conscience
of humanity" n1 the new court is designed to prosecute. The ICC's
jurisdiction, however, will not retroactively cover crimes committed before
its creation, and it will be prohibited from acting if a national court can
investigate and prosecute. But the conviction that a court must be created
to prosecute the perpetrators of crimes such as these horrific attacks,
when no government can do so, has been the driving force behind the
creation of the ICC.
n1 Rome Statute of the International Criminal Court, July 17, 1998, UN Doc.
A/CONF.183/9, reprinted in 37 ILM 998, Preamble (1998).
The ICC's jurisdiction and structure is described in its constituent
document, a multilateral treaty called the Rome Statute of the
International Criminal Court. The Rome Statute was approved by 120
countries on July 17, 1998 at the end of a five-week diplomatic conference.
Since then, in a series of intensive sessions at United Nations
Headquarters in New York, the legal architecture for the ICC has been
mapped out as negotiators have finalized the Rules of Procedure and
Evidence, n2 the Elements of Crimes, n3 the financial regulations and
rules, n4 and the relationship agreement between the United Nations and the
ICC.
n2 Report of the Preparatory Commission for the International Criminal
Court, Finalized draft text of the Rules of Procedure and Evidence,
PCNICC/2000/1/Add.1 (Nov. 2, 2000).
n3 Report of the Preparatory Commission for the International Criminal
Court, Finalized draft text of the Elements of Crimes, PCNICC/2000/1/Add.2
(Nov. 2, 2000).
n4 Proceedings of the Preparatory Commission at its Seventh Session, Draft
financial regulations and rules, PCNICC/2000/L.1/Rev.1/Add.2 (March 20,
2001).
These draft texts will be approved by a new institution called the Assembly
of States Parties, the ICC's governing body, which will be composed of
states that have ratified the Rome Statute. Even the physical court is
taking shape, as the Dutch have broken ground in The Hague on the
construction of the future ICC Courthouse.
At the same time, the complex process of country-by-country ratification of
the Rome Statute has been in full swing. For most countries, ratification
is lengthy and burdensome, involving approval by the appropriate
legislative body, criminal code modifications, and, in many cases,
constitutional amendment. The determination with which the vast majority of
the world has moved ahead with ratification underscores the ICC's
legitimacy as an international legal institution whose time has come.
The Unites States, with its unique role and responsibilities in the global
balance of power, remains the only Western democracy opposed. The irony of
American opposition is that much of the Rome Statute was drafted by U.S.
diplomats, who devoted years to these painstaking negotiations. In the end,
however, the Clinton Administration failed to achieve its primary goal: a
provision that would exempt U.S. soldiers and government officials from the
Court's jurisdiction until the U.S. ratifies the Rome Statute. President
Clinton's last-minute signature on the ICC treaty was, by its own terms, a
commitment not to ratify but to rather to securing this provision.
With the change in administrations, the U.S. appears to have dropped
efforts to fix the Rome Statute. Although officially the Bush
Administration is undertaking a "high-level policy review," n5 the empty
seats at the U.S. table during the March 2001 preparatory session suggest
the policy may be withdrawal.
n5 State Dep't Press Briefing (Aug. 17, 2001)).
The implacable Congressional opposition to the ICC presumes that the ICC
will operate with an anti-American bias and improperly target American
officials and peacekeepers. Recent events such as the loss of the U.S. seat
on the Untied Nations' Human Rights Commission and the United Nations'
conference against racism have fueled these perceptions, and the
administration has been urged to "unsign" the Rome Statute. n6
Congressional opponents describe the ICC as "an international independent
counsel with essentially unaccountable power," n7 "a clear and continuing
threat to the national interest of the United States," n8 a "monster," n9
and an "international kangaroo court." n10
n6 Betsy Pisik, "Conservatives Prepare to Contest Global Court," Washington
Times, at A1 (Jan. 4, 2001).
n7 "Dear Colleague" letter of RepresentativeHenry J. Hyde on American
Servicemembers Protection Act (May 8, 2001).
n8 Statement of Sen. John Ashcroft. Subcommittee on the Creation of the
International Criminal Court, Hearing on the Creation of the International
Criminal Court (July 23, 1998).
n9 Statement of Senator Rod Grams, Hearing on the Creation of the
International Criminal Court (July 23, 1998).
n10 Press Release of Senator Jesse Helms (Dec. 31, 2000).
The day before the attacks on the World Trade Center and the Pentagon,
Senator Larry Craig, R-Idaho, in proposing anti-ICC legislation, stated, "I
will be darned if American sovereignty and the U.S. Constitution become
subject to the International Criminal Court on my watch." n11 Over the
objections of Senator Patrick Leahy, D-Ver., and Senator Christopher Dodd,
D-Conn., the Senate approved a rider to the Commerce, State, Justice
Authorization Bill that prohibits the provision of funds "for cooperation
with, or assistance or other support to, the International Criminal Court
or [the preparatory sessions]."
n11 147 Cong. Rec. S9219 (Sept. 10, 2001).
Another piece of anti-ICC legislation, which has passed the House and is
headed for conference, is the American Servicemembers' Protection Act
(ASPA). This bill would prohibit cooperation with the ICC by any federal,
state or local government, prohibit U.S. military assistance to countries
that ratify the Rome Statute, and require that U.S. peacekeepers be
permanently exempted from prosecution by the ICC. One provision, derided as
the "Hague Invasion Act," n12 authorizes the President "to use all means
necessary... to bring about the release from captivity" of any American
held by the ICC. The Bush administration, perhaps concerned about ASPA's
constraints on executive power, has not openly supported the bill.
n12 Tremble, Holland, Tremble, The Economist, at 27-28 (Sept. 1, 2001).
The coalition-building efforts in the aftermath of the Sept. 11 attacks may
temper hostility toward the ICC. Some countries, for example, might be more
willing to surrender suspects to an international court rather than to the
United States government, so the ICC might be seen as one element in a
long-term anti-terrorism strategy.
Indeed, one of the ICC's harshest critics, Representative Tom DeLay,
R-Tex., in the aftermath of the attacks has apparently dropped efforts to
stop the payment of United Nations dues, which the Bush administration has
been eager to pay, without passage of ASPA. On the other hand, Senator
Craig's statements on Sept. 10 are unequivocal: "no deal, or any
compromise, is possible... we consider the ICC an illegitimate body... the
United States will never become part of it." n13
n13 147 Cong. Rec. S9218 (Sept. 10, 2001).
The ICC doessupporters, consistent with what President Clinton, in signing
the ICC treaty in December 2000, called America's "tradition of moral
leadership" and "long history of commitment to the principle of
accountability." n14 Some 32 Representatives and seven Senators signed
letters in December 2000 strongly supporting the ICC and American
participation in the Court.
n14 Statement on the Rome Treaty on the International Criminal Court, 37
Weekly Comp. Pres. Doc. 4 (Dec. 31. 2000).
The United States spearheaded the Nuremberg and Tokyo international
tribunals following World War II, and the U.S. led the drive to create the
ad hoc tribunals for the former Yugoslavia and Rwanda. For many years,
Congress has voted significant funding as well as contributions of
personnel and resources for these tribunals, and has approved "sense of the
Congress" resolutions supporting a permanent international criminal
tribunal.
The American Bar Association and the Association of the Bar of the City of
New York also are on record recommending that the United States government
become a party to the ICC treaty. n15
n15 On Feb. 19, 2001, at the ABA Mid-Year Meeting in San Diego, CA, the ABA
House of Delegates adopted a Recommendation and Report endorsing the Rome
Statue prepared by the ABA Section of International Law and Practice and
co-sponsored by the Association of the Bar of the City of New York.
The ICC will be a court that American lawyers should be comfortable with.
It will have real constraints on prosecutorial excess, a narrow subject
matter jurisdiction, an independent judiciary and a wide array of rights
for defendants. Indeed, the onerous provisions on jurisdiction and consent
in the ICC treaty, described infra, may well make the ICC ineffectual
because they allow numerous opportunities for motion practice and appeals
on preliminary issues of jurisdiction and "admissibility."
The ICC will not be "an arm of the United Nations." n16 Rather, it will be
an independent institution answerable to and funded by its member states
through the Assembly of States Parties. Its jurisdiction, which encompasses
crimes committed after its creation, will cover three specific crimes --
genocide, war crimes and crimes against humanity -- in narrow instances
when national courts are unwilling or unable to do the job. n17
n16 147 Cong. Rec. S9217 (Sept. 10, 2001) (Statement of Sen. Craig).
n17 Article 5 of the Rome Statute nominally provides for jurisdiction over
the crime of aggression, but such jurisdiction can only be exercised when
the Rome Statute is amended to define aggression, and under Article 121
amendments can only be proposed seven years after the Statute enters into
force.
The primary organs will be the Presidency, composed of three judges,
serving an administrative role with respect to judicial functions; the
Appeals Division, a Trial Division and a Pre-Trial Division; the
Prosecutor's Office; and the Registry, an administrative arm. The eighteen
judges of the ICC will serve nine-year non-renewable terms. Judges shall be
"persons of high moral character, impartiality and integrity who possess
the qualifications required in their respective States for appointment to
the highest judicial offices," and must receive the votes of two-thirds of
the Assembly of States Parties.
The Rome Statute includes "the most comprehensive list of due process
protections which has so far been promulgated." n18 These rights include
the right to remain silent, a presumption of innocence, the right to legal
assistance, privilege against self incrimination, right to written
statement of charges, right to examine adverse witnesses and the right to
be questioned only in the presence of counsel. There will be no death
penalty or trials in absentia.
n18 International Criminal Court: Hearings Before the House Comm. on Int'l
Relations, 106th Cong. 94 (prepared statement of Monroe Leigh).
The Rome Statute does not provide for trial by jury, but this is consistent
with the Constitution. The Sixth Amendment only guarantees a jury trial for
crimes committed in the United States, not for crimes overseas, and the
Fifth Amendment specifically excludes servicemembers from the guarantee of
grand jury presentment.
The ICC will not exercise "universal jurisdiction," a developing principle
allowing jurisdiction over international crimes by any court regardless of
where the crime is committed or the nationality of the accused. n19
Instead, the Rome Statute is consistent with traditional notions based on
the territory where the crime occurred and the citizenship of the accused.
n19 See The Princeton Principles on Universal Jurisdiction (2001).
Thus, in the absence of a Security Council referral (where the U.S. has a
veto), the ICC cannot exercise jurisdiction over a crime without the
consent of the country where the crime occurred or the country of the
nationality of the accused. These consent provisions are real constraints,
and conceivably could prohibit the ICC from exercising jurisdiction over a
dictator whose country has not ratified the Rome Statute, as long as the
crimes occurred within the dictator's national boundaries.
Further constraints arise from the Rome Statute's provisions on
"admissibility" and "complementarity," which effectuate a bedrock principle
that prosecution by national courts is in every case preferable to
prosecution by the ICC. Thus, any country, even one that has not ratified
the Rome Statute, can stop an investigation by the ICC in its tracks simply
by giving notice that it is investigating. The ICC may proceed
notwithstanding such notice only if a three-judge panel finds that the
investigation is in bad faith or a sham. A case is "inadmissible" if
another country is or already has investigated the suspect, if the suspect
has already been tried for the same conduct, or if the case is not "of
sufficient gravity to justify further action."
Additional procedural checks on the Prosecutor's powers include the
requirement that, before launching an investigation, the Prosecutor submit
to the Pre-Trial Chamber a "request for authorization," which may be
granted only if there is a "reasonable basis to proceed" and "the case
appears to fall within the jurisdiction of the Court."
Before an arrest warrant can be issued, the Pre-Trial Chamber must review
evidence submitted by the Prosecutor and determine if "reasonable grounds"
exist that the suspect has committed a crime within the ICC's jurisdiction.
Once a defendant appears before the Court, the Pre-Trial Chamber must
conduct a "confirmation hearing" in order to examine the evidence and
"determine whether there is sufficient evidence to establish substantial
grounds to believe that the person has committed each of the crimes
charged."
In addition, the Security Council can stop any investigation or prosecution
for any reason, for renewable one-year periods.

Conclusion
Like it or not, the ICC will be a major force in the new millennium's
international legal order. While the US government has shown real concerns
about multilateral treaties that simply set standards of behavior, the ICC
arguably is different: it will be a living, breathing institution with its
own importance and consequences, and one that most of our friends and
allies readily embrace. One way or another, the United States will have to
come to terms with the International Criminal Court.
Editor's Note: The author is a member of the Council on International
Affairs of the Association of the Bar of the City of New York and was an
ABA delegate to the Rome Diplomatic Conference on the ICC in July 1998. The
views expressed are those of the author.

GRAPHIC: Photo, Photograph of the author.

LOAD-DATE: October 6, 2001

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