The ICC review conference and changing U.S. policy toward the court.

Position:International Criminal Court - International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 9:00 a.m., Saturday, March 27, by its moderator, Leila Sadat of Washington University School of Law, who introduced the panelists: William R. Pace of the Coalition for the International Criminal Court; Stephen Rapp of the U.S. Department of State; Beatrice Le Fraper du Hellen of the Office of the Prosecutor of the International Criminal Court; and Christian Wenaweser of the Assembly of States Parties to the Rome Statute of the International Criminal Court.


It is a pleasure to open this session, which has been designated by the Society as the first, and in future, annual, panel to be held on the occasion of the Annual Meeting of the Society in honor of Benjamin Ferencz, former Nuremberg Prosecutor. Thanks to Catherine Powell who organized this session, and to the Program Committee Co-Chairs for scheduling it. The Society, under the leadership of Lucy Reed and Betsy Andersen, has done a great deal of excellent work on the International Criminal Court and its relationship to the United States, including the Task Force Report issued last year, and this panel is a wonderful segue to that project.

The theme of this year's Annual Meeting is "International Law in a Time of Change." That makes consideration of this topic--the International Criminal Court (ICC) Review Conference and changing U.S. policy towards the Court--particularly appropriate.

The establishment of the International Criminal Court itself, of course, has effected a major change in international law and international relations. Indeed, the Court's establishment may be thought of as an "uneasy revolution" that represented a "Constitutional moment" for the international legal order. The negotiations that followed from the resolution adopted by the General Assembly in 1989 reintroducing the ICC project to the United Nations agenda culminated in the Rome Diplomatic Conference in 1998, from which emerged the last great international institution of the 20th century. Yet as the new millennium dawned, this Court had an uncertain future. Vigorously opposed by the United States and other countries representing a large swath of the earth's population, and established as a free-standing institution rather than by amendment of the UN Charter, it was unclear whether it would survive its first ten years.

Against the odds, however, here we are gathered today to discuss an institution that now has 111 states parties, has begun two trials, and is about to hold its first Review Conference in Kampala, Uganda, from May 31 through June 11, 2010. The upcoming Review Conference is the only mandatory Review Conference provided for in the Statute of the ICC, and the only mandatory business to be discussed at Kampala is consideration of Article 124, the war crimes "opt-out" provision of the Statute. At the same time, it is widely recognized that Kampala will take up much more than Article 124, including a major "stock-taking" of the Court's operations, the question of the crime of aggression, and consideration of an amendment on the use of certain weapons in non-international armed conflict.

Thus, this new international institution--itself an agent of change--is in the process of changing and growing. Moreover, with the election of President Barack Obama in 2008, U.S. policy toward the Court has changed dramatically ... or has it?

Here to discuss these important questions are four uniquely qualified individuals, each of whom has contributed, and continues to contribute, to the success of the International Criminal Court. Ambassador Christian Wenaweser, the Permanent Representative of Liechtenstein to the United Nations, and President of the Assembly of States Parties of the Court; Beatrice le Fraper du Hellen, a former French diplomat now serving as Special Advisor to the Prosecutor of the International Criminal Court; Ambassador Stephen J. Rapp, Ambassadorat-Large for War Crimes Issues for the United States and former Prosecutor of the Special Court for Sierra Leone; and William R. Pace, Executive Director of the World Federalist Movement-Institute for Global Policy and Convenor of the Coalition for an International Criminal Court.

* Washington University School of Law.


I think the most natural thing for me to do is to give you my personal assessment of where I think we stand after this week's session because you probably all know that we had a Resumed Session of the Assembly this week, so this is auspicious timing, in a way.

We had a three-day session that we finalized pretty late on Thursday evening. I think the session had a very good outcome. We adopted a resolution on the stock-taking exercise that achieved more than I had hoped for. We also had a session that took place in a very positive and constructive atmosphere and has, I think, created a lot of positive energy. We also have an increasing sense of ownership that I think is very important--when people understand that it is their conference, that they have to make it a successful conference, and that this is actually possible. So my conclusion from this week's session is a positive one on the substance.

On the stock-taking, you know the four topics that we have decided on in November: victims and affected communities, peace and justice, cooperation, and complementarity. I think they are important for a number of different reasons. The first is that the Review Conference is not an amendment conference, so this is a conference that will not only consider amendments, changes to the Rome Statute, but will also look at these four issues that we as States Parties believe are the biggest political challenges. They gave us an opportunity not only to look at what we have done in the past, at our achievements, but, more importantly, to look at the challenges of the future.

For me, the stock-taking exercise in Kampala is certainly not the end of a process, it is not the culmination of an effort that we have made, but rather a centerpiece of reaffirming political will and of recommitting ourselves in ways that are different from the commitment that we have shown in the past. I am talking about us, as States Parties, because I firmly believe that States Parties will have to do more and will have to show stronger political engagement in the future to make this Court a success.

We also will have a high-level declaration that will be adopted. It will be negotiated now in April and May. We are hoping for a concise, precise political text that outlines the main political issues and, in particular, shows a strong commitment and reaffirmation of the provisions of the Rome Statute.

Finally--and I think this is clearly also part of the stock-taking--we have a very good initiative launched by the ICRC on the pledges by states. So the Review Conference will offer an opportunity--and we know that has been done in different contexts before--for states to come to Kampala and say, "This is what I will do in the future." One very positive thing that happened during the session is that we have had an additional ratification this week. Bangladesh has ratified the Rome Statute--the 111th State Party to the Rome Statute-which shows that the ratification process, although slower than it has been in the past, is ongoing. This is an important ratification because Bangladesh is a country in the region where the Court has not been that successful yet.

On the amendment parts, I think that on Article 124 and the Belgium proposal on prohibited weapons, I can say very little. These are not controversial issues at this point. I am not entirely certain what the outcome will be on Article 124, but it may well be status quo. That means that we simply do not change that provision, that transitional provision as it were, in Rome at all.

The big topic on the amendment front is the crime of aggression. I think the discussion this week has been a good one. There has been a very business-like atmosphere. States have discussed this topic on the basis of the non-paper that was circulated by our coordinator of the topic, Prince Zeid, so the discussion has focused on issues of jurisdictional filter. Prince Zeid has put on the table a number of options and asked states to express themselves on those options in sort of a roll-call type of exercise that some people were initially skeptical about, but then I got positive responses afterwards. This was not conclusive in the sense that we know now exactly where the solution is, but I think it has been helpful, and that it has shown that there is some movement. Most importantly, I believe there is a very strong willingness among states to work together to find a solution that is acceptable.

Again, it was important for us to have this discussion take place in a positive and constructive atmosphere. It was helpful for us for this purpose in particular to have the statement from the United States that spoke on the crime of aggression and put U.S. concerns on the table, but that also put them on the table in a manner that helped maintain the positive atmosphere.

Obviously, we will continue to work on this. You all know, and I certainly know, how difficult a topic this is, and we have a long way to go between now and Kampala. But based on what I've heard this week, I am approaching this with a certain level of confidence.

I have referred already to the statement of the United States. This week I have read carefully what Harold Koh said here. It was, I think, a very important and, for me, very interesting statement, and I am not simply referring to the ICC parts.

The United States came back in November to The Hague, and when we had a panel earlier this week, Stephen Rapp was introduced as the first person, the first U.S. representative ever to address an Assembly of States Parties. I feel safe in saying that states are generally very happy to see the United States back at the table. I think everybody knows how much the...

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