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III. VIGNETTES AND DISCUSSION
Now it was time to go through some examples—vignettes as I like to call them—and see just how relevant the ICC may be. As noted, the ICC is meant to be a court of last resort for victims to seek justice beyond the reach of obstruction by the political authorities generally complicit to the crimes being alleged and who by virtue of their power and authority, control the national courts and thus the outcomes. The ICC is expected to step into the breach where national courts are unable or unwilling to prosecute crimes of a universal nature: war crimes, crimes against humanity, genocide. I had hoped that the vignettes would lead to questions, comments and reflection on whether in its twelve year history the ICC has met expectations; whether it was rendering justice, or whether has it had the makings of a political tool?
To get the discussion going, I thought I would start with a few complaints or requests for investigation to the ICC Prosecutor to show the various reasons certain actors were trying use the ICC to advance seemingly political agenda – not exactly why the ICC was set up – and why certain non-signatories may have legitimate concerns for not signing on to the Rome Statue.
a. The Reprieve Complaint
The first vignette was a complaint that had only been filed a few days prior to the seminar by Reprieve, a UK based NGO whose mission is to “deliver justice and save lives from death row to Guantanamo Bay.”[1] On 19 February 2014, Reprieve filed a complaint with the ICC accusing NATO member States of war crimes for their participation in the US’s covert drone program in Pakistan.[2] According to the Executive Summary of the Complaint, the UK, Germany, Australia and other NATO partners were supporting the US drone program by sharing intelligence.[3] And since these countries are signatories to the Rome Statute, Reprieve asserted that the ICC had jurisdiction.[4] According to the complaint, the US has immunized itself from legal accountability over drone strikes[5], while the UK—pointing to a decision from the Court of Appeal in London in which it ruled that it would not opine on the legality of British agents’ involvement in the US drone war in Pakistan—had closed its domestic courts to foreign drone victims.[6] It also noted that neither the courts in Pakistan where the strikes occur or in Afghanistan, where the strikes originate, are able or willing to investigate and prosecute these war crimes and/or crimes against humanity.[7] Claiming that the gravity test is met by the number of victims alleged in the complaint and the fact that no courts are able or willing to provide any redress, Reprieve asserted that the ICC is the only available venue for seeking justice.[8]
The Reprieve complaint proved to be useful in showing what would be expected in a complaint, i.e., meeting the criteria set out in Articles 13 and 17 of the ICC Statute. Without going into a discussion on the utility of using drones on the so called war on terror, the discussion turned on whether the ICC was meant to deal with this sort of a case, particularly when there is sufficient evidence from which to conclude that the strikes are carried out against what is reasonably believed to be legitimate military targets and any innocent deaths resulting from the strikes are unintentional.[9] Though the limits or contours for sanctioned targeted killings is less than settled, the U.N. Special Rapporteur has observed that targeted killings are lawful when the target is a combatant or fighter or, a civilian when directly participating in hostilities, provided the killings comply with the requirements of international humanitarian law.[10]
The Reprieve complaint – at least as presented by the press release – also begged the question whether this is more of an attention-getting strategy for advancing non-ICC related agenda, than a genuine application for an ICC investigation for alleged crimes over which the ICC has jurisdiction.[11]
b. President Obama’s Mali Memorandum
Since the US was at the center of the Reprieve complaint, I thought it would be good to segue to President Obama’s 31 January 2014 memorandum, asserting that members of the US Armed forces participating in the United Nations Multidimensional Integrated Stabilization Mission in Mali were “without risk of criminal prosecution or other assertion of jurisdiction by the International Criminal Court (ICC) because the Republic of Mali ha[d] entered into an agreement in accordance with Article 98 of the Rome Statute preventing the ICC from proceeding against members of the Armed Forces of the United States present in that country.”[12] The memorandum was issued based on section 2005 of the 2002 American Service-Members’ Protection Act (22 U.S.C. 7424), which states:
Effective beginning on the date on which the Rome Statute enters into force pursuant to Article 126 of the Rome Statute, the President should use the voice and vote of the United States in the United Nations Security Council to ensure that each resolution of the Security Council authorizing any peacekeeping operation under chapter VI of the charter of the United Nations or peace enforcement operation under chapter VII of the charter of the United Nations permanently exempts, at a minimum, members of the Armed Forces of the United States participating in such operation from criminal prosecution or other assertion of jurisdiction by the International Criminal Court for actions undertaken by such personnel in connection with the operation.
Before discussing the memorandum, it was necessary to introduce Article 98 of the Rome Statute; an incongruity in that it actually provides for the frustration of the Rome Statute by its signatories. Article 98 reads:
The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.
The purpose for using this example was to show how the US is effectively undermining the ICC. Mali had objected to signing a Bilateral Immunity Agreement with the Bush Administration, triggering retaliatory measures.[13] According to a 2003 Human Rights Watch 2003 report:
[T]he United States’ long-standing opposition to the ICC intensified since mid-2002. The Bush administration has engaged in a widespread campaign to undermine and marginalize the ICC to prevent it from becoming an effective instrument of justice. After ‘unsigning’ the Rome Statute, the Bush administration threatened the future of United Nations peacekeeping operations and negotiated a Security Council resolution that provides limited, one year exemption for citizens of non-state parties of the Rome Statute – this includes U.S. personnel – participating in UN peacekeeping missions or UN authorized operations. Following this abuse of the Security Council, the Bush administration launched a worldwide campaign to negotiate bilateral immunity agreements that would exempt U.S. nationals from ICC jurisdiction.[14]
The US normally enters into multilateral or bilateral agreements known as Status of Forces Agreement (SOFA) on “the rights and privileges of U.S. personnel present in a country in support of the larger security arrangement,” i.e., “how domestic laws of the foreign jurisdiction apply toward U.S. military personnel in that county.”[15] This is understandable considering that in many countries where U.S. military personnel are stationed and operating, the domestic courts hardly function as they should. The Mali example is telling, especially since Mali, a signatory of the ICC, had sought ICC assistance.[16]
Mali has an obligation to abide by its commitments under the Rome Statue. Article 18 of the Vienna Convention on the Law of Treaties requires a State to abide by the terms of a treaty the State has signed but not yet ratified, and that obligation remains in effect until the State makes “its intentions clear not to become a party to the treaty.”[17] By “unsigning”[18] the Rome Statute the US is not bound to any international obligations it may have had, but what about Mali? As Ryan Goodman aptly puts it:
[W]hat about the legal obligations of states (such as Mali) that are parties to the ICC? If an article 98 agreement defeats the object and purpose of the ICC treaty, it would be invalid for Mali to enter it. Additionally, Mali has presumably entered the agreement with the US after Mali ratified the ICC Treaty—making this an even more legally dubious agreement than other article 98 agreements such as the one the US entered with Afghanistan.[19]
Professor Nina Tannenwald[20] who was in the audience and was quite engaging at times, pointed out during the discussions that the Obama Administration had been less hostile towards the ICC than the Bush administration, as if this made these sort of agreements more palatable or less subversive. In style and tone Obama has been measured, not in substance. Of course, even if Obama were all for the US signing on to the Rome Statue—which is highly doubtful at best when considering how lamely he has pursued the closing of Guantanamo[21] and his politically pragmatic decision not to prosecute the authors of the legal memorandum and advice to Bush on justifying torture[22]—Congress would be unlikely to go along[23] and there would certainly be significant push-back from the US Armed Forces.[24] Abu Ghraib comes to mind. A white wash of sorts considering that then Secretary of Defence Donald Rumsfeld took the Guantanamo template for “enhanced integration”—a code word for torture, which the Bush administration claimed was permissible since the Guantanamo detainees were “unlawful combatants” and thus not protected by the Geneva Conventions—and had it applied in US detention facilities in Iraq, where the Geneva Conventions were recognized to be in effect.[25]
The students were asked to consider to what extent the ICC can be seen as a credible judicial institution if the US, a P5 member of the UN Security Council prone to sermonizing the world over on the virtues of the rule of law, is undermining the ICC’s credibility and viability. If the ICC is so flawed an institution that US military personnel and officials should not be prosecuted by it (a matter that may not be too far off the mark), then how could the US ever suggest that others, such as Assad, be taken to the ICC for prosecution? Is this a characteristic of American exceptionalism?[26]
At this point in time it was also necessary to point out that the ICC, in its current form, is by no means a well-run judicial institution. Setting aside how decisions are made as to who should be targeted for prosecution, the Prosecutor effectively is unchecked (the first one, Luis Moreno-Ocampo proved by most accounts to have been an unmitigated disaster),[27] and many of the judges, who are political appointees, have little or no experience in judicial matters.[28] So maybe there is cause for not signing on to the ICC.
Next: Part IV – Israel and Egypt Illustrations
[1] Reprieve, http://www.reprieve.org.uk/ (last visited 9 March 2014).
[2] Reprieve, Communication to the Office of the Prosecutor, the Situation in Afghanistan: The use of Drone Strikes in Pakistan (19 February 2014) available at http://www.reprieve.org.uk/media/downloads/2014_02_19_PUB_Communication_to_ICC_on_drone_strikes_in_Pakistan.pdf (“Reprieve Complaint”).
[3] Id. at 11.
[4] Rome Statute art. 12(2).
[5] Reprieve Complaint at 24.
[6] See Khan v. Secretary of State for Foreign and Commonwealth Affairs, [2012] EWHC Civ. 24.
[7] Reprieve Complaint at 24.
[8] Id. at 38.
[9] See Mark Mazzetti and Eric Schmitt, U.S. Debate Drone Strike on American Terrorism Suspect in Pakistan, N. Y. Times, 10 February 2014, available at http://www.nytimes.com/2014/02/11/world/asia/us-debates-drone-strike-on-american-terror-suspect-in-pakistan.html?_r=0.
[10] See U.N. Hum. Rts. Comm., Report of Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alson, Addendum Study on Targeted Killings, para 30, U.N. Doc. A/HRC/14/24/Add.6 (28 May 28 2010).
[11] Though the ICTY functions differently than the ICC, especially concerning issues of jurisdiction, the ICTY Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 39 ILM 1257 (2000) is instructive. In order to assess the information on war crimes allegedly committed during the NATO bombing, the Prosecutor of the ICTY set up a committee on 14 May 1999. It was mandated to advise the Prosecutor whether there was sufficient basis to start an investigation. The advice of the Committee was that no investigation be conducted The Report of the Committee was a mere recommendation and the Prosecutor is not obliged to follow it. The report came to the conclusion that “NATO has admitted that mistakes did occur during the bombing campaign; errors of judgment may also have occurred. Selection of certain objectives for attack may be subject to legal debate. On the basis of the information reviewed, however, the committee is of the opinion that neither an in-depth investigation related to the bombing campaign as a whole nor investigations related to specific incidents are justified. In all cases, either the law is not sufficiently clear or investigations are unlikely to result in the acquisition of sufficient evidence to substantiate charges against high level accused or against lower accused for particularly heinous offences; see also Natalino Ronziti, Is the non liquet of the Final Report by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia acceptable?, Int’l Rev. of the Red Cross 840 (2000).
[12] U.S. Office of the Press Secretary, Presidential memorandum—Certification Concerning U.S. Participation in the United Nations Multidimensional (31 January 2014).
[13] Kevin John Heller, Article 98 Agreements and the War on Terror in Africa, Opinio Juris, (25 July 2006, 12:00 AM), http://opiniojuris.org/2006/07/25/article-98-agreements-and-the-war-on-terror-in-africa/; Mark Kersten, Update and Clarification—Mali and the US: But What Bilateral Immunity Agreement?, Justice in Conflict (4 February 2014), http://justiceinconflict.org/2014/02/04/mali-and-the-us-but-what-bilateral-immunity-agreement; Mark Mazzetti, U.S. Cuts in Africa Aid Said to Hurt War on Terror, N.Y. Times, 23 July 2006, available at http://www.nytimes.com/2006/07/23/world/africa/23terror.html?_r=3&hp&ex=1153627200&en=c16efe83bb2ca27f&ei=5094&partner=homepage&oref=slogin&.
[14] Human Rights Watch, Bilateral Immunity Agreements (20 June 2003).
[15] See R. Chuck Mason, Status of forces Agreement (SOFA): What Is It, and How Has It Been Utilized? U.S. Congressional Research Service (15 March 2012).
[16] Referral letter from the Republic of Mali to the ICC, No. 0076 (13 July 2012) available at http://www.icc-cpi.int/NR/rdonlyres/A245A47F-BFD1-45B6-891C-3BCB5B173F57/0/ReferralLetterMali130712.pdf.
[17] Vienna Convention on the Law of Treaties art. 38, 23 May 1969, 1155 U.N.T.S. 331.
[18] President Bill Clinton signed the Rome Statute on 31 December 2000. President’s Statement on the Rome Treaty on the International Criminal Court, 37 Weekly Comp. Pres. Doc., 31 December 2000, para. 4, available at http://www.gpo.gov/fdsys/pkg/WCPD-2001-01-08/pdf/WCPD-2001-01-08-Pg4.pdf. “In signing, however, we are not abandoning our concerns about significant flaws in the treaty.” However, John Bolton under the Bush Administration, “unsigned” the treaty on 6 May 2002. See Press Statement, U.S. Department of State, International Criminal Court: Letter to UN Secretary General Kofi Annan from Under Secretary of State for Arms Control and International Security, John. R. Bolton (6 May 2002), available at http://cdn.ca9.uscourts.gov/datastore/library/2013/02/26/Abagninin_bolton.pdf.
[19] Ryan Goodman, President Certifies US Forces in Mali Not at Risk of International Criminal court, but is that Legally valid?, Just Security (3 February 2014), https://www.justsecurity.org/6702/president-certifies-armed-forces-mali-risk-international-criminal-court-legally-valid/.
[20] Biography, Professor Nina Tannenwald, Brown University, http://watson.brown.edu/people/faculty/tannenwald (last visited 16 March 2014).
[21] See generally Mark Kersten, Obama and the ICC – Four Reasons Not to Hold Your Breath, Justice in Conflict (7 November 2012), http://justiceinconflict.org/2012/11/07/obama-and-the-icc-four-reasons-not-to-hold-your-breath/.
[22] Memorandum from the Deputy Attorney General on Decision Regarding the Objections to the Findings of Professional Misconduct in the Office of Professional Responsibility’s Report of Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists (5 January 2010) available at http://dspace.wrlc.org/doc/get/2041/73988/03108text.txt.
[23] Lauren Carasic, Human Rights for Thee but not for Me, Al Jazeera, 12 March 2014, available at http://america.aljazeera.com/opinions/2014/3/the-us-lacks-moralauthorityonhumanrights.html. However, in recent years, the US has seemed slightly less hostile towards the ICC. See Alexis Arieff, Rhoda Margesson, Marjorie Browne, Matthew Weed, International Criminal Court Cases in Africa: Status and Policy Issues, Congressional Research Service, 3 (22 July 2011). Secretary of State before the Senate Foreign Relations Committee in January 2009, Hillary Clinton said, “Whether we work toward joining or not, we will end hostility toward the ICC and look for opportunities to encourage effective ICC action in ways that promote U.S. interests by bringing war criminals to justice.” In August 2009, Secretary of State Clinton said that it was a “great regret” that the United States was not a party to the ICC, but that the United States has supported the Court and “continue[s] to do so.” Obama Administration officials have indicated that the Administration is “considering ways in which we may be able to assist the ICC, consistent with our law, in investigations involving atrocities.” A January 2010 review by the Department of Justice concluded that diplomatic or “informational” support for “particular investigations or prosecutions” by the ICC would not violate existing laws.
[24] See Eric Leonard, One Step Forward, Two Steps Back: New Developments in the US-ICC Relationship, Jurist (23 February 2014, 11:02 AM), http://jurist.org/hotline/2014/02/eric-leonard-us-icc.php.
[25] See U.S. Department of Justice, Office of Legal Counsel, Memorandum for William J. Haynes II, General Counsel of the Department of Defense, Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States (14 March 2003). Unsurprisingly—and why the US remains adamantly opposed to signing the Rome Statute—the events of Abu Ghraib, the failure to meaningfully prosecute those responsible for torture and the ongoing cover-up shenanigans, see Ari Melber, Our fierce fight over torture, Reuters, 13 March 2014, available at http://blogs.reuters.com/great-debate/2014/03/13/our-fierce-fight-over-torture/.
[26] The term American exceptionalism dates back to Alexis de Tocqueville’s trip to American and book Democracy in America. Alexis de Tocqueville, Democracy in America, Part II (1840) (University of Michigan Press, 1836). American exceptionalism is used to prompt the notion that the United States was “born” different, and continues to be different from other nations. See Byron E. Schaffer, American Exceptionalism, 2 Annu. Rev. Pol. Sci. 445, 447 (1999). Lately this aphorism has been used by some US politicians in suggesting US’s preeminence and manifest destiny.
[27] See Ben Schiff, Evaluating the International Criminal Court, World Politics Rev. (2011), available at http://www.worldpoliticsreview.com/articles/10146/evaluating-the-international-criminal-court.
[28] Michael Bohlander, The International Criminal Judiciary Problems of Judicial Selection, Independence and Ethics in International Criminal Justice—A Critical Analysis of Institutions and Procedures 325–90, 3, 4, (London: Cameron 2007).
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