Jordanian diplomat on Arab world & international justice & accountability

August 26, 2013 / Diane Marie Amann / Leave a comment

CHAUTAUQUA, New York – Without the emergence of a genuine, contemporary Arab philosophy, a top Jordanian diplomat predicted today, stops and starts likely will remain the present and near future in the Middle East. To be precise, the diplomat, Prince Zeid Ra’ad Zeid Al-Hussein, Jordan’s Permanent Representative to the United Nations, told participants in the 7th International Humanitarian Law Dialogs here in upstate New York:

‘When we look at the Arab world, there is no authentic Arab liberal philosophy, and no authentic Arab liberal philosopher, at this moment.’

Citing developments in Iraq since 1968, Zeid said that an earlier such philosophy, the Baath movement, “a strong socialist Arab tradition,” fell apart. The “absence of a genuine drive to articulate something from within” has left a void:

‘If you don’t have an authentic Arab liberal philosophy … what you have in default is the Islamic ideologies which are authentic to the region.’

A new tradition rooted in Arab tradition is essential to “escape” from “mimicking” Western liberal philosophy, he said, noting that citations to documents like Rousseau’s Social Contract invite “the charge that these are important Western ideas. And so he urged liberals to “start writing,” to theorize liberal traditions “in Arab terms” and “grammar.” Until that happens, he predicted:

‘For a long time we are going to see this rather jerky movement backward and forward. … That will be the narrative for sometime to come.’

Zeid’s comments formed the opening lecture for a conference ostensibly devoted to accountability; after all, the centerpiece of the Dialogs (for which IntLawGrrls serve as a cosponsor) is the coming-together of chief prosecutors from each of the international criminal tribunals and courts. Yet Zeid – who helped draft founding documents of the International Criminal Court and served as the 1st President of the ICC Assembly of States Parties – stopped far short of recommending a rush to judgment. Citing history in post-World War II Germany as his example, Zeid called for creating post-conflict “space” within which fighters might come to terms with the conflict, before the onset and investigation of trials. Having spoken of events in Syria, Egypt, Libya, and Yemen, he said:

‘Many of us have been very passionate supporters of inserting courts into events where a tremendous amount of blood has been spilled. I really think we have to revisit this – not reduce support for the ICC, but we need to develop a more nuanced field.’

Given Zeid’s role in the establishment of the ICC, the comments seem to herald a new moment in the field accountability and transitional justice. Should that be, one hopes for a comprehensive, effective, and well-resourced mix of responses – not confusion that amounts to a retreat from the field.

(Cross-posted from Diane Marie Amann)

A UN responsibility-to-protect report silent on the Security Council, Libya, the ICC?

August 16, 2013 / Diane Marie Amann / Leave a comment

Apparently so. See Seton Hall Law Professor Kristen Boon’s Opinio Juris post on U.N. Secretary-General Ban Ki-moon’s 5th report on responsibility to protect here.

Ban’s 17-page report, dated July 9, 2013, is here. Prior posts detailing the development and invocations of the doctrine of responsibility to protect – and thus placing in context the report’s omission of the 2011 U.N. Security Council referral of the situation in Libya to the International Criminal Court – may be found here and here.

(Cross-posted from Diane Marie Amann)

The Gender Justice Shadow of Complementarity: Lessons from the International Criminal Court’s preliminary examinations in Guinea and Colombia

August 6, 2013 / Emily Waller / 2 Comments

In early July 2013, Human Rights Watch reported that one of the alleged perpetrators of the 2009 Guinea stadium massacre, Lieutenant-Colonel Claude Pivi, has been charged with murder, rape and destruction of property. This was an important first step towards holding one of primary suspects of this atrocity to account. It was also a significant moment for the International Criminal Court (ICC), which in 2009 had commenced a preliminary examination –under the Rome Statute’s complementarity provisions – into this massacre, and the Guinean authorities efforts to bring to justice the perpetrators. However, as we point out in a forthcoming article in the International Journal of Transitional Justice [forthcoming: Volume 7 (3)] the Guinean case also highlights the existence of a ‘gender justice shadow’ in relation to the ICC’s complementarity processes, especially in relation to the investigation and prosecution of crimes of sexual violence against women.

Our article considers the ICC’s Office of the Prosecutor (OTP) preliminary examinations of both the Guinean massacre and the Colombian conflict and argues that, on an analysis of publically available information, the OTP has applied a low threshold when assessing crimes of sexual violence against women against the three core criteria – state action, willingness and ability – of the Rome Statute’s complementarity test, effectively leaving intact impunity for these crimes.

Our argument here mirrors the work of Kevin Heller, who has shown that while the Rome Statute establishes the highest standards of due process for cases before the ICC, its complementarity provisions do not extend due process rights in national jurisdictions. Similarly, we suggest that there is a ‘gender justice shadow’ side to complementarity: the Rome Statute provides the most developed articulation of gender justice of any instrument of international criminal law, yet complementarity does little to extend these measures to the domestic level.

Members of the Women’s Caucus for Gender Justice, who were so influential in shaping the ground-breaking gender justice aspects of the Rome Statue, were the first to highlight this gender justice shadow. During the negotiations process in the late 1990s, the Caucus cautioned that unless the Rome Statute recognised in its complementarity tests of action, willingness and inability the gender biased features of national penal codes, especially weak substantive and procedural laws to address sexual violence against women, it ‘could result in impunity for crimes of sexual and gender violence’ (Women’s Caucus for Gender Justice, ‘Gender Justice and the ICC’, paper presented at the Rome Conference, Italy, 15 June – 17 July 1998, 24; document with the authors). This argument has since reiterated by other commentators and academics (see Women’s Initiative for Gender Justice, Susana SáCouto and Katherine Clearly, and Amrita Kapur).

Our analysis shows that the OTP’s preliminary conclusions about complementarity in Guinea and Colombia have failed to take adequate account of crimes of sexual violence against women. There are questions as to whether the domestic proceedings have addressed either the same persons or the same crimes, particularly where sexual violence is involved. In both Guinea and Colombia, some of the sexual violence crimes documented by the OTP are not included in the domestic penal codes, and a lack of transparency makes it difficult to assess which individuals the OTP is investigating, and whether they have been charged for sexual violence at the national level.

Similarly, it appears that in the OTP’s application of the willingness and ability criteria in these two sites, gender biases in domestic law have been overlooked. Based on the available documentation, it seems there has been minimal, if any, attention given to impartiality in proceedings for victims of sexual and gender-based crimes or the limitations in local laws to allow for investigation and prosecution of a full range of sexual and gender-based crimes.

These problems of apparent non-recognition of gender justice issues in Guinea and Colombia are a legacy of the failure of States to include the Women’s Caucus for Gender Justice’s suggestions to expressly integrate gender justice concerns in the complementarity provisions. The prediction made in the 1990s by the Women’s Caucus appears to have become a reality at least in Guinea and Colombia: ongoing impunity for many perpetrators of sexual violence, and little justice for the victims of these crimes. This is, we argue, the gender justice shadow of complementarity.

The positive side of the story is that the ICC’s second Prosecutor, Fatou Bensouda, has professed a strong commitment to gender justice; building around her a team of advisors including Brigid Inder, Patricia Viseur Sellers and Diane Amann, who have high-level gender justice expertise. The creation of an overarching OTP gender policy, slated for release in 2013, will provide the chance for the Office to draw on lessons from its first decade in operation and establish new procedures which embed core gender justice concerns in ongoing and future complementarity assessments. At minimum is hoped that the OTP will provide clear criteria for evaluating action, willingness and ability at the preliminary examination stage in ways that capture existing gender biases in the law. In implementing this policy it will be important that the OTP, and the other arms of the Court, are as transparent as they can possibly be (within a highly sensitive legal context) about their recognition of gender biases when undertaking preliminary examinations and throughout the complementarity process. It is only when such information is available that a complete assessment can be made of the impact of the gender justice shadow of complementarity.

— Co-authored with Louise Chappell and Rosemary Grey.

Book on UN offers glimpse of views as Samantha Power readies for hearings

June 24, 2013March 5, 2025 / Diane Marie Amann / Leave a comment

News of Samantha Power’s nomination as U.S. ambassador to the United Nations prompted me to read her biography of that 68-year-old international organization. In truth, the book is a biography of the top diplomat killed 10 years ago when a car bomb gutted U.N. headquarters in Baghdad. Yet because that diplomat had effectively grown up alongside the United Nations – he was born fewer than 3 years after its Charter entered into force, and he would serve under 5 of its 8 Secretaries-General – Power’s Chasing the Flame: Sergio Vieira de Mello and the Fight to Save the World (2008) tells the life story of both the man and the organization. The book thus indicates what Power (prior IntLawGrrls post) thought of the United Nations back when she was advising then-Senator Barack Obama on foreign policy.

Emphasized throughout Chasing the Flame is Vieira de Mello’s transformation from a man of humanitarian action alone to one who comes to realize, indeed to embrace, the significance of politics in humanitarian endeavors. Recounting his late-1980s role in repatriating Vietnamese refugees, Power wrote with disapproval of Vieira de Mello’s decision to “downplay his and the UN’s obligation to try to shape the preferences of governments” (p. 69, emphasis hers). She likewise criticized his early ’90s stance of neutrality while serving in UNPROFOR, the hapless U.N. Protection Force mission in Bosnia: “impartial peacekeeping between two unequal sides was,” she wrote, “its own form of side-taking” (p. 179). In contrast, Power conveyed approbation when she wrote that by the late 1990s, after working to return Hutu refugees to Rwanda, Vieira de Mello “was now convinced that UN officials would better serve the powerless if they could find a way to enlist the power of the world’s largest countries” (p. 219). According to Power’s epilogue, the key to harnessing that power is flexibility (p. 516-17):

‘While many have responded to today’s divisions and insecurities with ideology, Vieira de Mello’s life steers us away from one-size-fits-all doctrine to a principled pragmatism that can adapt to meet diffuse and unpredictable challenges.’

The United Nations, she added (p. 519), has a critical role to play:

‘UN civil servants had to become more self-critical and introspective, accepting what had taken Vieira de Mello years to learn: that they are agents of change themselves and not simply the servants of powerful governments.’

In this book as in A Problem From Hell: America and the Age of Genocide (2002), Power put much blame on the U.S. government. The United States’ perception of its own self-interest often appeared short-sighted and inept. U.S. officials’ resistance to the International Criminal Court won them no favor. Ineptitude was especially evident in the U.S.-led invasion and occupation of Iraq – events that would place Vieira de Mello and other humanitarians in Baghdad on the fateful date of August 19, 2003.

Power herself began working for the U.S. government not long after Chasing the Flame was published. As Special Assistant to President Obama and Senior Director for Multilateral Affairs and Human Rights at the White House-based National Security Council, she spent years working on issues at the heart of her earlier writings. (An account of a central effort, establishment of an Atrocities Prevention Board made up of officials from various U.S. agencies, was the subject yesterday of a New York Times article.) She’s reported to have played a pivotal role in the U.S. decision to intervene in Libya based on U.N. Security Council resolutions that invoked a concept discussed in her book, the responsibility to protect; to be precise,at p. 528 and elsewhere, Power stressed Vieira de Mello’s espousal of the emerging doctrine. These experiences may have adjusted Power’s views on the relation between the United Nations its member states. Yet most likely her 5 requirements for foreign policy success, distilled from her account of Vieira de Mello’s life, remain a constant. Quoted in full from p. 523, they are:

Legitimacy matters, and it comes both from legal authority or consent and from competent performance.
Spoilers, rogue states, and nonstate militants must be engaged, if only so they can be sized up and neutralized.
Fearful people must be made more secure.
Dignity is the cornerstone of order.
We outsiders must bring humility and patience to our dealings in foreign lands.

(Cross-posted from Diane Marie Amann)

Rules, Politics, and the International Criminal Court

June 18, 2013 / Yvonne Dutton / 1 Comment

Why did states decide to create the International Criminal Court (ICC) and design it with a uniquely strong enforcement mechanism that can punish noncompliant behavior? After all, by joining the ICC, states agree that the court may investigate, arrest, prosecute, and punish state nationals for genocide, crimes against humanity, and war crimes should the ICC conclude the state is unwilling or unable to do so domestically. One may not be surprised that more than 100 states have joined one of the many international human rights treaties with weak enforcement mechanisms that require the state to only self-report compliance. But, why would states–particularly states with poor human rights practices–join the ICC and risk having their citizens tried in The Hague? On the other hand, if states that most need to improve their protections against human rights abuses do not join the court, is there any hope that the threat of punishment by the ICC can help improve state practices and deter individuals from committing mass atrocities?

I explore these and related questions in my new book entitled Rules, Politics, and the International Criminal Court: Committing to the Court. Using both quantitative analyses and in-depth case studies of eight different states, I examine whether and how the ICC’s enforcement mechanism influences state membership and the court’s ability to realize its goal of ending impunity for mass atrocities. I proceed from the premise that the ICC is different from the human rights treaties that have gone before it. I argue that while there are many reasons states may want to join the court, they should view the ICC’s ability to investigate, arrest, and prosecute a state’s leaders or citizens as a credible threat. States should be wary of committing unless their domestic human rights practices are sufficiently good that commitment will not lead to a significant sovereignty loss–e.g., a trial in The Hague. In contrast to the other theories typically advanced to predict treaty commitment behavior, the credible threat theory focuses on the role enforcement mechanisms might play in discouraging states to ratify. For example, one prominent theory predicts that states with poor human rights practices will embrace the ICC because it provides an international mechanism through which to demonstrate their “credible commitment” to domestic change. Other theories predict that normative or other pressures will cause even bad states to join the court. This book shows why those theories are problematic. In short, the ICC’s stronger enforcement mechanism should not generally discourage states with good human rights practices from joining the court, but it should discourage “bad” states from joining because they will not want to risk being punished for noncompliance.

Both the quantitative and qualitative evidence support the book’s thesis. I find that the ICC’s institutional design discourages ratification by the very states where individuals need to be held accountable. Nevertheless, even though fewer “bad” states may join the court, I still conclude that the ICC can realize its goals. Indeed, some states with bad practices may experience certain “windows of opportunity”–such as a change in leadership or a point where external or internal calls for commitment can no longer be ignored–where the benefits of joining may seem to outweigh potential costs. When those states join the ICC, the good news is that the ICC has been designed so that states can be held to their commitment.

Congressional Briefing on The International Criminal Court and US-ICC relations

June 12, 2013June 19, 2013 / Megan A. Fairlie / 4 Comments

Delighted to return to intlawgrrls, and to have attended the June 10 briefing on the International Criminal Court (ICC) delivered by U.S Ambassador-at-Large, Stephen J. Rapp,(photo, left) head of the Office of Global Justice in the U.S. Department of State and hosted by the Washington Working Group on the International Criminal Court (WICC) and the Tom Lantos Human Rights Commission of the U.S. House of Representatives.

Those present heard an up-to-date perspective on the ICC, including its relationship with the United States, moderated by Christopher “Kip” Hale, Senior Counsel for the American Bar Association and Director of the ABA’s International Criminal Court Project.

Ambassador Rapp set the stage for his briefing by discussing the global leadership of the United States in the field of international criminal justice, beginning with the Nuremberg proceedings and continuing through to the work of the International Criminal Tribunals for the former Yugoslavia and Rwanda.

He followed with an extensive and detailed discussion of the work of the Court to date, along with an incisive analysis of the evolving role played by the United States over the course of the ICC’s development.

Among other themes, Ambassador Rapp discussed:

The ways in which ICC practice and US policy are aligned: The clear preference of the United States is to see justice performed at the national level. This position, Rapp emphasized, is consistent with the Court’s principle of complementarity. Under each approach, the priority is for cases to be prosecuted at the national level unless nations lack the will or capacity for domestic prosecutions.
The benefits of engaging with the ICC: Rapp highlighted that the current policy of constructive engagement ensures that U.S. interests and perspectives are well-represented as the Court goes forward. To place the importance of this positioning in perspective, Rapp noted that a number of Court’s developments—particularly those related to the crime of aggression—might have gone differently, and perhaps preferably, had the United States been a part of the ICC conversation from 2002-2008.
The need to structure engagement with the Court within the confines of existing laws: Federal law presently prohibits direct financial support to the ICC. Thus, Rapp discussed alternative means of US assistance including the U.S. Rewards for Justice Program which, with bipartisan backing, was recently expanded to include support for the apprehension of individuals wanted by the ICC.
The salutary benefits of the ABA’s ICC project: Federal law also limits U.S. non-monetary assistance to specific ICC cases, precluding the United States from acting in ways designed to benefit the Court as a whole. Rapp lauded the ABA’s ICC Project for filling this void. Promoting practitioner engagement and training is one of the three pillars of the ABA project, which aims to unite ICC lawyers and staff with their domestic counterparts, enhancing investigation and advocacy skills through such vehicles as best practices conferences and training workshops.

The overall tenor of the briefing was markedly positive. Noting the U.S. commitment to hold perpetrators of atrocities accountable, Rapp reasoned that the United States ought to do what it can to assist the Court in bringing alleged war criminals to justice.

When I asked Rapp to identify what, in his view, was the most significant impediment to the United States joining the ICC, he first acknowledged that U.S. ratification of international treaties has historically been a lengthy process. Rapp noted, however, that before moving in this direction, the United States would have to overcome its concern that the Court might be used unfairly against it. In Rapp’s view, this process will require more time for the United States to assess how prosecutors act and how ICC judges decide admissibility standards, in order to establish confidence that the U.S. would not be unfairly targeted by the Court.

This author is looking forward to discussing Rapp’s briefing next week at the International Criminal Court Summer School in Galway, Ireland, where she will be lecturing on the U.S. and the ICC. The upcoming course, offered by the Irish Centre for Human Rights boasts a distinguished list of speakers, including the founding Director and now Honorary Chairman of the Centre, Professor William A. Schabas, fellow intlawgrrl, Nadia Bernaz, numerous ICC insiders and Don Ferencz, executive director of the Planethood Foundation and member of the Board of Advisors on the ABA-ICC Project.

A video-recording of the briefing is available here.

Ashgate Companion Symposium: DiBella on Equality of Arms in International Criminal Law

May 15, 2013 / Yvonne McDermott / Leave a comment

We are delighted to welcome Amy DiBella for this guest post. Amy is a defence lawyer based in Pittsburgh, Pennsylvania. She wrote her chapter in the Ashgate Research Companion to International Criminal Law: Critical Perspectives with Charles C. Jalloh, Assistant Professor at the University of Pittsburgh.

In our chapter, “Equality of Arms in International Criminal Law: Continuing Challenges”, we considered the meaning of equality of arms and how is it implemented in international criminal law.

The analysis reveals the disparity between the theory and practice. Although the principle evokes a broad evaluation of fairness, in practice, it is “a lofty goal … applied feebly”. The chapter offers multiple examples of courts shying away from equality and instead embracing a more conservative interpretation of the principle. Rather than require equal resources, the legal principle has been interpreted to require no substantial disadvantage, an adequate opportunity or sufficient time. Following a brief discussion of the link between equality of arms and the public trial guarantee, the chapter considers how equality of arms is more than a trial right; it is an expansive institutional entitlement which relates to the structural independence of the defence offices. Continue reading →

Ashgate Companion Symposium: Forsythe on ‘”Political trials”? The UN Security Council and the development of international criminal law’

May 10, 2013May 10, 2013 / Yvonne McDermott / 1 Comment

We are delighted to welcome this guest post from Prof. David Forsythe, Charles J. Mach Distinguished Professor at the University of Nebraska-Lincoln

Close observers of world affairs will recall that international criminal law (ICL) began a renaissance in 1993 when the United Nations Security Council created the International Criminal Tribunal for Former Yugoslavia. Since that time the UNSC has been involved many times in ICL issues concerning prosecution of individuals for genocide, crimes against humanity, or war crimes. From one point of view the Council can be congratulated for taking steps to respond to atrocities that during the Cold War were often ignored. From another point of view the Council has been highly political and therefore highly inconsistent in that response, often showcasing not the rule of law in international relations but rather the priority of short term and parochial “national interests” of member states– above all the Permanent members with the veto (P-5). A central question is whether in the future the Council can display more principled commitment to legal justice and less variation based on P-5 strategic political calculation.

Space does not permit an extensive review of how the Council advanced ICL and a variety of types of criminal courts since 1993 with regard not only to the former Yugoslavia but also Rwanda, Sierra Leone (with implications for Liberia), East Timor, and Lebanon. Likewise, after the creation of the permanent International Criminal Court (ICC) by treaty during 1998-2000, the UNSC was involved in criminal justice issues in places like Sudan (Darfur) and Libya. All of this action for increased use of courts is apart from other Council steps in response to atrocities such as deployment of security forces in the field, appointment of diplomatic personnel, imposition of sanctions, and so on. Moreover, sometimes the Council was not centrally involved in ICL developments, as when a state such as Ivory Coast or Kenya itself (not to mention Uganda, Central African Republic, or Democratic Congo) activated the ICC directly. There were also other ICL developments outside the UNSC pertaining to the exercise by states of the principle of universal jurisdiction for egregious crimes like torture. Nevertheless, the Council has been persistently involved in ICL since 1993. Continue reading →

U.S. law & G8 call for donations to Rome Statute’s Trust Fund for Victims

May 3, 2013May 3, 2013 / Diane Marie Amann / 1 Comment

Notable in the just-released White House recap of its efforts to prevent mass atrocities is the foregrounding of 2 actions this year:

► Enactment in January of “bipartisan legislation to enhance our ability to offer financial rewards” – up to $5 million – “for information that helps to bring to justice” selected international indictees, among them “Joseph Kony and other senior leaders of the Lord’s Resistance Army, as well as Sylvestre Mudacumura from the Democratic Forces for the Liberation of Rwanda….”

► Developments in March, when “[t]he United States facilitated the voluntary surrender of Bosco Ntaganda” to stand trial “for war crimes and crimes against humanity….”

What’s notable is that both actions – like others noted in this commentary by Professor David Kaye – come to the aid of the indicting organization, the Hague-based International Criminal Court. The same is true of an action not mentioned in the recap; that is, the Declaration on Preventing Sexual Violence in Conflict adopted at a mid-April London meeting. Paragraph 5 of the Declaration concludes:

‘Ministers emphasised the need for further funding support for victims and called on the international community, including the G8, to increase their efforts to mobilise such funding, including to programmes such as the ICC Trust Fund for Victims and its implementing partners.’

“Ministers” refers to the Foreign Ministers of the European Union and all members of the G-8. Thus joining the Declaration were 2 countries not party to the ICC’s Rome Statute: Russia and the United States. (credit for AFP photo made at the G-8 meeting of Foreign Ministers – from left, Catherine Ashton, European Union; John Baird, Canada; Laurent Fabius, France; John Kerry, United States; William Hague, Britain; Sergey Lavrov, Russia; Guido Westerwelle, Germany; Fumio Kishida, Japan; and Mario Monti, Italy)

These actions prompt examination of the potential extent of U.S. support for the ICC – in particular, given the G-8 Declaration, U.S. support for the Trust Fund for Victims. Would U.S. financial contributions to the Trust Fund for Victims contravene the American Service Members Protection Act? A preliminary look at the question indicates that they would not.

Section 2004 of the Act prohibits the giving of various forms of “cooperation,” “support,” and “appropriated funds” to the “International Criminal Court.” Section 2013(6) has the following definition:

‘INTERNATIONAL CRIMINAL COURT – The term “International Criminal Court” means the court established by the Rome Statute.’

The definition gives rise to a question: Does the Trust Fund fall within that statutory term “the court”?

Despite some writings on the workings of the Trust Fund (e.g., here), there appears to be little in-depth scholarship on the organizational relationship between it and the Court. An expert on international organizations ought to take this on.

Still, ICC documents seem to set the Fund apart from the Court; that is, the Trust Fund is established to benefit victims of crimes in the Court’s jurisdiction, but is not expressly itself within the Court’s jurisdiction. It is governed by the Assembly of States Parties, as is the Court, but there is an argument that it is not part of the Court. Indeed, a 2007 amendment permits earmarking of voluntary contributions to the Trust Fund in a way that sets such donations outside the frame of the Court. Both are within the “Rome Statute system,” as ICC Prosecutor Fatou Bensouda and others term it, but they arguably are separate entities within that system.

Note too that the founding resolution does not seem to limit membership on the Trust Fund board of directors to nationals of states parties. Assuming later-promulgated regulations do not change this, that would make this board different from other elected positions, like ICC judge and ICC prosecutor, and again suggests a different status.

Now consider Section 2004(f) of the American Service Members Protection Act:

‘PROHIBITION ON USE OF APPROPRIATED FUNDS TO ASSIST THE INTERNATIONAL CRIMINAL COURT – Notwithstanding any other provision of law, no funds appropriated under any provision of law may be used for the purpose of assisting the investigation, arrest, detention, extradition, or prosecution of any United States citizen or permanent resident alien by the International Criminal Court.’

The phrasing begs the question whether there is a ban on U.S. funding in any instance in which the suspect or accused is not a “United States citizen or permanent resident alien.” It seems even more clear that funding reparations – aiding victims, without regard to perpetrators – is something wholly outside the scope of “investigation, arrest, detention, extradition, or prosecution.” By this reasoning, U.S. financial contributions to the Trust Fund for Victims, which has no role at all in “investigation, arrest, detention, extradition, or prosecution,” are not prohibited by the American Service Members Protection Act. (See further limits on the Act’s scope – including reference to unofficial reports of a confidential Office of Legal Counsel memo on the issue – at pages 6-11 and 17 of a 2010 American Society of International Law compilation of white papers, Beyond Kampala: Next Steps for U.S. Principled Engagement with the International Criminal Court.)

The above interpretation of the Act’s funding rules cannot be extended to subsequent legislation, by which Congress imposed a blanket ban on using appropriated funds “for use by, or for support of, the International Criminal Court,” unless and until the now-unlikely event that the United States ratifies the Rome treaty following 2/3 approval by the Senate. The latter amendment, however, defines “International Criminal Court” in much the same way as the above-quoted Section 2013(6) of the American Service Members Protection Act; thus the question lingers whether the Trust Fund falls within the scope even of the latter amendment’s ban.

A final point respecting the American Service Members Protection Act: U.S. contributions to the Trust Fund would not contradict the intent of Congress, as it may be inferred from the Section 2002 Findings with which the Act begins. Donating to the Trust Fund for Victims in no way would enable the Court to pursue U.S. nationals or other “covered” individuals. It would have no relation to the ICC offense that appeared to give Congress most concern, the not-yet-fully-punishable crime of aggression. And with regard to Finding #4, which quotes the 1998 statement in which then-Ambassador David Scheffer opposed the Rome Statute on the ground that “‘[w]e are left with consequences that do not serve the cause of international justice,'” one discerns a congressional willingness to support institutions (such as ad hoc tribunals, which are exempted from the Act) that in fact serve that cause. U.S. contributions to reparations, via the Trust Fund for Victims, would meet that criterion.

Consideration of such contributions would further the United States’ current policy of positive engagement with the Rome system of international criminal justice. Reconsideration of all federal statutory barriers, a move supported by a range of U.S. experts (among them, Professor Kaye and former State Department Legal Adviser John B. Bellinger III), seems yet another logical next step.

(Cross-posted from Diane Marie Amann)