NEWSLETTER ARTICLE: ICC 2010 Review Conference

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In May and June 2010, states party to the International Criminal Court (ICC) will meet in Kampala, Uganda for the first Review Conference of the ICC. The purpose of the Conference is to evaluate the ICC, and make it more effective in prosecuting the world's most horrendous criminals. Those who attend will discuss the Court's past and future, and will propose changes to the Court's founding treaty, the Rome Statute. In preparatory meetings for the Conference, delegates are working out many of the issues that will be voted on in Kampala.

Nations such as the United States that participated in the Rome Conference and signed its Final Act will have the opportunity to take part in the Conference and its preparatory meetings as observers with a voice. Those that have ratified the Rome Statute and make up the Court's governing body, the Assembly of States Parties (ASP), will be able to vote on the proposals.

Several issues are expected to be on the agenda that are important to the U.S. The first is establishing a legal definition of the crime of aggression. If adopted by the ASP, the definition will allow the Court to prosecute individuals who are responsible for leading a nation to wage war against another. Along with a definition for the crime, the Conference is expected to decide whether the U.N. Security Council must be consulted before a crime of aggression can be prosecuted. In addition, at the Conference and the meetings preceding it, the participants will be asked to consider proposals to designate as war crimes the use of nuclear weapons and the use of biological and chemical weapons or antipersonnel mines.

Although President Obama has declared plans to work closer with the ICC, he is waiting for the completion of a review on U.S. policy towards the Court before deciding whether to send a representative to the Conference or its preparations. This review is not expected to be completed for another 4 to 6 months, while the Conference preparations are expected to end in November. This means that the President may not make his decision until after the last preparatory meeting has concluded. If the United States attends the Review Conference without having taken part in these meetings, the U.S. will be severely handicapped if it hopes to influence the ASP's vote. Not attending the preparatory meetings would leave the U.S. to walk into a Conference where the delegates' minds have already been made up before the U.S. has had a chance to voice its opinion on the matters.

If the U.S. attends the Review Conference and the preparatory meetings, it can influence the vote on numerous issues important to it, such as whether the ICC will be permitted to arrest someone for a crime of aggression without first consulting the Security Council. Although the U.S. cannot currently vote on the Conference proposals, the influence of its voice would certainly have a persuasive effect on those who can. Not attending the Review Conference or its preparations could result in an ICC that is far less consistent with American ideals and interests.

Responsible U.S. participation would also signal to the world its commitment to universal human rights. For nearly a century, most of the world has seen America as a nation that actively works for global justice. Now, the United States can once again take the lead in this cause. The 2010 Review Conference is a unique opportunity for America to help build the ICC into an institution that effectively fights the worst examples of injustice and guides the world towards stability and prosperity.

CAPITOL HILL BRIEFING ON THE ICC

Citizens for Global Solutions marked the birthday of the International Criminal Court on July 17 by sponsoring a briefing on Capitol Hill entitled "A Seven Year Assessment of the International Criminal Court: Accomplishments, Next Steps, and U.S. Priorities," co-sponsored by Senator Christopher Dodd (D-CT). The panel featured the Honorable Patricia M. Wald, a judge on the International Criminal Tribunal for the Former Yugoslavia and former chief judge for the U.S. Court of Appeals for the D.C. Circuit; Tod Lindberg of the Hoover Institution, the author of a forthcoming book on the ICC; and Ben Ferencz, a Chief Prosecutor at the Nuremberg Trials. Moderated by Don Kraus, the panel addressed a full house of about 100 people, including Hill staffers and public participants.

Responsibility Not to Veto

As a logical consequence of the United Nations' adoption of the "Responsibility to Protect" in 2005, we see and support an emerging doctrine: the "Responsibility Not to Veto." This idea was revived in the report earlier this year of a task forced chaired by former Secretaries Madeline Albright and William Cohen.

For many years, those urging United Nations reform have recommended that the Security Council permanent five members (P-5) should voluntarily agree not to veto resolutions involving mass atrocity crimes. Human rights violations and mass atrocities have occurred in several situations where the United Nations might have intervened, such as in Sudan, Burma, and Kosovo. But the veto power held by the Security Council's five permanent members (United States, United Kingdom, Russia, France, and China) has been used to keep the UN from taking action. For example, in Burma, where the authoritarian government has been committing mass human rights violations against its citizens for years, Russia and China vetoed a Security Council Resolution calling for the end of these atrocities on the grounds that the situation "does not constitute a threat to international or regional peace or security." 

These Security Council vetoes are inconsistent with the "Responsibility to Protect" adopted by the United Nations in 2005. The "Responsibility to Protect" or "R2P" established the principle that every nation has the responsibility to protect its citizens from mass atrocities. The corollary is that the international community, acting through the United Nations, has a responsibility to act when a nation fails to do so. This principle was further confirmed by the P-5 in adopting Security Council Resolution 1674 in 2006.

Earlier this year, the Genocide Prevention Task Force issued specific recommendations to diminish the use of the veto in instances of mass atrocity crimes. Chaired by former Secretary of State Madeleine Albright and former Secretary of Defense William Cohen, the task force recommends that, in considering actions in response to mass atrocity crimes, the P-5 agree to unanimously abstain from the veto and support a resolution unless three or more of the five were to veto it. In addition, if a resolution concerning mass atrocities is passed by two-thirds of the General Assembly, the task force asserts that the P-5 should feel especially constrained in using their veto power. Finally, the task force recommends that the U.S. ambassador to the U.N. should initiate a dialogue among the P-5 on the special responsibility they have to prevent genocide and mass atrocities.

Following these recommendations and respecting a "Responsibility Not to Veto" would increase accountability and transparency in the United Nations and effectively advance the cause of international peace and security to which the United Nations and the Security Council are committed.