United States Intervention at the Meeting of the ICC’s Assembly of States Parties

The International Criminal Court’s Assembly of States Parties (ASP) is meeting this week in The Hague — its 14th session. On the agenda (and here) are a number of issues, some going to the core of the Court’s work others more in the nature of administrative necessities, including:

  1. State cooperation (Friday), based upon 66 recommendations by the Bureau
  2. Complementarity (today)
  3. Increasing the efficiency of the Court (Tuesday)
  4. The adoption of the 2016 budget (being sought in the range of €139 million (a 7% increase from 2015)) and several elections, including for the board of the Trust Fund for Victims
  5. The annual promulgation of an omnibus resolution
  6. Potential amendments

In terms of side events, participants will discuss:

  1. Strengthening financial investigations at the ICC (hosted by Liechtenstein)
  2. A number of events on victims’ rights, including an important new study of victims’ participation by the Berkeley Human Rights Center
  3. Palestine and the ICC (Palestine and several NGOs, including the Open Society Justice Initiative (OSJI))
  4. Civil society fact finding (Philippines & OSJI)
  5. Fair trial process (Kenya)
  6. Africa and the ICC (co-hosted by Botswana)
  7. A number of events on sexual and gender-based violence (SGBV)
  8. Towards activating the aggression amendments, which with Georgia’s ratification now have 26 ratifications (Liechtenstein)
  9. Activating the Independent Oversight Mechanism in the Rome Statute (Kenya)
  10. A number of events on the ongoing catastrophe in Syria

The United States participates in the ASP as an observer state and, as such, is entitled to deliver an intervention in the General Debate following the interventions of the states parties. The text of the today’s intervention — as delivered by Jane Stromseth, acting head of the Office of Global Criminal Justice — is below:

As always, this group of States gathers with a challenging agenda before it: to seek effective ways to end impunity for the most serious crimes of concern to the international community as a whole. Because success in that pursuit depends in part on seizing opportunities and taking encouragement from progress, I want to begin by noting a few of the year’s positive developments on which the international community can build.

This year, for the first time, a top commander of the vicious Lord’s Resistance Army was apprehended and transferred to the ICC. This transfer occurred in a model of cooperation among the African Union, the leadership of Uganda and the Central African Republic, and the organs of the Court. The United States is proud to have played a role in this process, and we look forward to the day when Joseph Kony is also brought to justice.

This year, also for the first time, a leader of an extremist group in Mali has come before the ICC to answer for alleged war crimes, in this case, crimes against the cultural heritage of the historic town of Timbuktu. We hope this will send a signal to other such groups within the Court’s jurisdiction.

And this year, following the Cote d’Ivoire elections in 2010 that witnessed so many atrocities, Ivoirians were able to choose their president in a peaceful election, setting a more hopeful precedent for that country’s future.

In these situations, the prospect of justice is helping deliver stability where it has been absent, and truth and dignity for victims who have been denied them. And in these and several other cases, the ICC is playing a unique and positive role. Although the United States, for reasons that have been much discussed, has not accepted the Court’s jurisdiction, we continue to work with the ICC in areas of shared interest, on a case-by-case basis and consistent with U.S. laws and policy. The United States has expressed its support for each of the investigations and prosecutions currently under way before the Court.

But the ICC is only one part of a developing system of global criminal justice, one that depends first and foremost on the strengthening of national institutions and the presence of national political will. In that vein, too, this year, we have seen hopeful signs of willingness in a number of countries to address more fully the painful legacies of conflict. To name a few:

In Kosovo, the national Assembly courageously passed the legislation required to create a hybrid Special Court to hear cases emerging from reports of serious crimes committed in the wake of the 1999 conflict.

In Colombia, the government and the country’s largest rebel group have made progress toward reaching an agreement on transitional justice in the context of their peace negotiations. We welcome Colombia’s commitment to reaching a transitional justice agreement that is consistent with its national and international legal obligations. If achieved, such an outcome would represent an important step for Colombia toward a just and durable peace.

In the Central African Republic, the transitional government is working with the international community to establish a domestic Special Criminal Court, with international participation, to seek justice for atrocity crimes that have wracked that country.

And in South Sudan, the parties to that nation’s conflict have signed a peace agreement in August that includes commitments to pursue a wide range of transitional justice measures, including the creation of a hybrid court by the African Union to try those most responsible for atrocities.

These situations span many continents, and as much distinguishes them as ties them together. But we see in these new developments the reflection of a universal yearning for dignity, and for the kind of lasting peace that is built upon justice. Many of these initiatives are in the very earliest stages, and some of them come while conflict is still a daily reality. But if they are pursued credibly, if witnesses and court personnel are protected, and if legal obligations are respected, these initiatives have the potential to contribute to a more sustainable peace in these countries, particularly as many of them will benefit from international participation. The United States will support these initiatives as best we can, and we urge others to do so as well.

But while we need to work together to support and help seize opportunities such as these, we also need to face the situations in which the possibility of progress seems more remote, and to ensure that we are working together to help lay the groundwork for justice.

No situation is more overdue for an effort to find common ground than the situation in Darfur, which the Security Council referred to the ICC ten years ago and where civilians continue to face the persistent threat of aerial bombardments, widespread rape, and the looting and burning of homes and villages. The United States strongly believes that the arrest warrants in the ICC’s Darfur situation should be carried out, and that Sudan must comply with its obligations under the referral. But even while the victims of this brutal conflict are waiting for justice, we must continue to look for ways to support and give hope to them, and to insist with one voice that the ongoing atrocities stop.

This year has also presented us with horrific realities of sexual and gender-based violence, which remain rampant and continue to undermine peacebuilding and cause long-lasting pain in conflict zones and post-conflict societies around the world. That’s why the United States is committed to helping bring to justice those responsible for these crimes, including through an Accountability Initiative that includes more than eight million dollars in support for specialized justice sector initiatives in conflict-affected countries. But every day, the egregious forms of sexual slavery and violence perpetrated by ISIL in Iraq and Syria make clear just how grave a challenge we face in ending the scourge of sexual violence, and the crucial work that lies ahead to prevent these atrocities and help survivors heal and secure justice.

We condemn, too, the other atrocities being committed in Syria and Iraq – from the Asad regime’s torture in its prisons and other abuses against the Syrian people to ISIL’s brutal campaign of targeting ethnic and religious groups, abducting women, and other heinous acts of terror – and, most recently, ISIL’s vicious attacks in Paris.

The United States will continue to lead a coalition aimed at degrading and ultimately defeating ISIL and ending these atrocities. And we will continue to work with others to seek a negotiated political transition in Syria that ends that country’s civil war and Asad’s brutality. Justice and accountability undoubtedly have a role to play in dealing with atrocities of this kind. The veto last year of a proposed referral to the ICC did not take accountability off the table in Syria. Rather, it reinforced the need for all of us to lay the groundwork now for future justice efforts, by documenting such crimes and assembling the evidence that will undoubtedly be needed in the years to come.

Against this backdrop of significant challenges, we note, as others have done, that the Court – although no longer a new institution – must still do more to establish its record of success, its legitimacy, and its deterrent impact. Given the demands the Court faces and the sensitivity of the situations in which it may intervene, we continue to urge the organs of the Court to ensure that their decisions, including prosecutorial choices, are guided by rigor, fairness, legality, and prudence.

I will also raise again our concerns about the potential activation of the crime of aggression amendments in the face of widespread uncertainty about even such basic issues as whether the Court’s jurisdiction would apply with respect to Rome Statute parties that do not ratify the amendments. We think all interested States – ratifiers and non-ratifiers alike – have a strong interest in finding a way to discuss these and other basic issues constructively prior to any decision to “activate.”

On these and other issues, the United States does not purport to have all the answers. But once again, we affirm our commitment to pursuing justice for the worst crimes known to humanity. The fact that atrocities are being perpetrated in so many places around the world fills us with a sense of urgency. But we take encouragement from the successes and the steps forward that show that the current of history, when we work together, does indeed flow toward justice.

Thank you, Mr. President.

 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).