International Justice and the Use of Force
Ambassador-at-Large for War Crimes Issues
It is really good to be here among so many colleagues and friends, including first and foremost my friend Ben Ferencz. He mentioned that we traveled as a team to West Point, but we have also gone together to churches in Africa and to points in between to discuss the legacy of Nuremberg and the crime of aggression. I hope that we are called for many encore performances.
Ben is a great advocate, becoming only better with age, but we can never forget his first great advocacy and step onto the world stage, when at the age of 27, he looked over that podium in Nuremberg in the Einsatzgruppen trial at 22 men who had led their forces in the murder of one million innocents, and called their crime for the first time in human history, in a court of law, by its true name: "genocide."
It is great to be back here at Chautauqua and to be learning with you. I have been here for three of the four annual Dialogs. I missed you in 2009 because I was in my last innings in Sierra Leone, in the oral arguments on the RUF appeal, the case that features in the movie War Don Don that you saw on Sunday. Being here is always a learning experience, and that was again the case this afternoon when we heard Bill Caming recount his experience in the Ministries trial, one of subsequent proceedings in Nuremberg like Ben's Einsatzgruppen case and the Judges case featured in "Judgment at Nuremberg," but one that few of us knew much about.
I was fascinated by Bill’s description as to how, in the Ministries case, they had been successful in holding certain Nazi leaders responsible for their aggression against Austria in March 1938, and against Bohemia and Moravia, the unoccupied parts of Czechoslovakia, in March 1939, when there had been no armed resistance. Bill's team won the aggression convictions, despite the lack of resistance, because of the overwhelming force used by the Nazis, the threat, the pressure, the intimidation, and the whole context in which the occupations took place.
This reminded me of a struggle that we faced in the International Tribunals for Rwanda and the former Yugoslavia on the rape issue. We had evidence of the rape of large numbers of women in the course of campaigns of violence against civilians, but were challenged by the traditional requirement that made it necessary to prove that the victims did not consent or had resisted. The prosecution won that issue in the first trial at the ICTR in Akayesu, which held that such proof was unnecessary in the context of widespread violence against civilians. But this legal victory was reversed at the ICTY, and the issue has gone back and forth with a somewhat successful resolution but not as successful a resolution as Bill achieved. We probably should have been citing the Ministries case.
It is also great to be back with colleagues who are doing the difficult work and accomplishing a mission none thought possible, day after day and week after week, in the international courts of the present. Bill Pace's comment this afternoon could not have been more appropriate. We need to hear it again and again. International justice, as it has developed in this post-cold war era, is the greatest success of the international system. It has not been easy. The resources are not always there. We have heard of court officials having to go hat in hand to capitals to raise necessary funding, at peril of seeing their courts close and all of the accused set free. We have heard that these courts lack the power and reach to achieve compliance with their orders. When I was a United States Attorney in Iowa, when a warrant was issued by a judge or an indictment handed up by a grand jury, we could have the person arrested. We could be sure that he or she would face trial. The lack of such powers remains an immense challenge in these international institutions.
But despite this challenge, these courts have successfully brought chiefs of state to trial: Slobodan Milosevic and Charles Taylor. They have convicted a head of government, Jean Kambanda, for genocide. They have achieved justice in scores of cases of military commanders and militia leaders and others responsible for the gravest crimes committed against humankind. It is a work in progress, an imperfect one, and one that requires consistent dedication and commitment.
I am not now a prosecutor. I have been, for a year now less a week, a diplomat. That is a changed position, though one that also involves trying to find the resources and provide the power to make possible the success of these tribunals and the achievement of justice for the victims of these grave crimes.
It is, however, quite different to be a diplomat working for a single government, albeit the government of a mighty country, than it is being a prosecutor. When I was a prosecutor, if an ambassador might suggest that my office was not following the proper course, I could say, "Well, I took an oath, Your Excellency, never to take instructions from any government or any organization." That independence is crucial to the role of the international prosecutor. On the other hand, those of us involved in the process needed those governments, needed their forces to succeed in a world where only states could provide us with the muscle necessary to accomplish our task. But it was all important that prosecutors made the decisions about who was investigated and charged, and judges made the decisions about who was convicted or acquitted. These were not decisions for the governments of any state.
Now I am a diplomat, and rather than not taking instructions, my job is to take instructions every day. But a good thing about the job is that I can be involved in writing those instructions, particularly on the issues that we are here to talk about: the crime of aggression and US engagement with the ICC. I am proud that my office has been engaged within our government in developing our policy, our approach, and deciding the content of the instructions that would guide us as we went as observers to the ICC Assembly of States Parties in The Hague in November 2009, the first US appearance at an ICC meeting in eight years, and went again in to the ICC-ASP in New York in March 2010, and then participated as observers at the ICC Review Conference in Kampala in June 2010. While these instructions were developed in a process where no one got his or her own way, the result was policy that we were able to vigorously support and advance as the representatives of the government of the United States.
As I said on behalf of the United States when we made our first appearance at the Assembly of States Parties in November of 2009, we recognize that the United States has been absent and that it was not our desire to lecture those that have been involved in previous debates but rather to listen and to learn. But we also emphasized that while we had been absent from the ICC, we had not been silent in the face of crimes that shocked the universal conscience, and had actively supported the international courts for the former Yugoslavia, Rwanda, Sierra Leone, and elsewhere. We had not just paid our dues and provided experienced staff but we had provided informational leads, victim and witness protection and assistance, and powerful support for conditionality as to foreign aid and EU accession that had been so important in bringing those responsible for genocide, war crimes, and crimes against humanity to justice.
We also emphasized that these are the crimes on which we had focused, because they were the grave crimes that were committed in the 1990s and continue to be committed in the world of the 21st century. We are not in an age of cross-border conflict. This is not the age of Louis XVI or Napoleon I or Bismarck. It is not 1914 or 1939 when great armies crossed borders, when hundreds of thousands of soldiers faced each other across trenches or battlefields.
We are now in an age where it is often far more dangerous to be a civilian, an innocent woman or child, than it is to be a soldier. In the eastern DRC, you rarely hear of a soldier or militia fighter being killed or raped, but you hear of thousands of people murdered and raped that are uninvolved in the conflict; innocent men, women and children intentionally targeted by armed groups.
At the Rwanda Tribunal, I once asked a former officer who fought on the government side of the 1990-1994 civil war how many soldiers of the Rwandan armed forces were killed defending against the Rwanda Patriotic Force that eventually won the war. He said probably fewer than a hundred. I asked how many RPF soldiers were killed and he said probably even fewer. But during the last 100 days of that civil war, 800,000 innocent men, women, and children were killed. They were not killed in the cross-fire between the combatants. They were the defenseless targets. These are the crimes that we face today.
I was just in Goma, in the DR Congo, near where at Walikale earlier this month more than 300 women and girls were raped by members of the FDLR and related armed groups. These are the crimes to which the world needs to respond, to say enough, and to bring those responsible to justice. These crimes are committed within a non-international armed conflict, but it is also important to note that innocent civilians are sometimes targeted for widespread or systematic attack in situations that are not associated with an ongoing armed conflict.
For instance in Guinea, in West Africa, more than a hundred civilians were shot to death at an opposition political rally in a stadium on the afternoon of September 21, 2009, and then women were raped on the stands and taken off to houses where rapes continued for days. There was no ongoing conflict, no civil war there, but these acts were committed as part of a systematic attack, on political grounds, against a civilian population, which could constitute crimes against humanity. Fortunately, it was possible to marshal the support and resources for an international commission of inquiry that interviewed almost 700 witnesses and published a report that revealed the truth about what had happened. This helped lead to a transition to democratic rule and opened the possibility for justice.
I am spending probably a third or 40 percent of my energy now on trying to establish a similar commission of inquiry for Kyrgyzstan where, in June, there was an eruption of ethnic violence, between those of the Kyrgyz and Uzbek ethnic groups, in which more than 400 people were murdered and 300,000 fled their homes. If the perpetrators are not held to account this could be the harbinger of further ethnic violence between these or other ethnic groups in Central Asia. We are trying to send the message that even powerful individuals must be held accountable, and trying to do it in a place where democracy has barely taken hold and where there is little tradition of independent judicial institutions. We are doing it, not in a situation of armed conflict, but because we are faced with what appears to be crimes against humanity.
We all know how difficult it can be to achieve justice for these crimes. In some places it may only be possible, if at all, at the national level. For it to happen there, we need to help them find the truth through inquiry commissions, and thereafter push for domestic investigations and prosecutions. If possible it is best that it happen at the national level, close to the victims and affected communities, with international assistance and participation, if necessary for capacity and independence. But if there is no way at the national level, and the crimes are serious and widespread, you need an international court.
We are now coming to the end of the era of the Yugoslavia and Rwanda Tribunals and Sierra Leone Special Court; institutions with narrow jurisdictions and ad hoc mandates. In the future, for crimes committed after 2002, there will not be the will to establish temporary international courts for single situations. If international justice is required, it will be delivered at the International Criminal Court. That is where these trials will be conducted. That is where the mass butchers and rapists will face justice, and that is where the United States needs to provide support to ensure success.
So the message that we delivered in the Hague and in New York and in Kampala was that we want to work with this Court to succeed, that we are worried when we see 13 arrest warrants and only four persons arrested. We are angered and disappointed when we see persons who are subject to these warrants travel freely to and from ICC member states, such as Chad and Kenya, without any effort to arrest them and transfer them to The Hague. We support all of the cases where arrest warrants have been issued and we want the ICC to bring these individuals to justice.
At this stage, we want to help this institution succeed in the cases that it has undertaken. We want to be, as was recommended by the Council of Foreign Relations, something like a non-party partner, to make it possible, in particular, to make these arrests. In that regard, I should note that when we focus on specific cases there is broad support for international justice in our Congress. We have recently seen the United States Congress overwhelmingly pass legislation supporting US efforts to arrest and bring Joseph Kony to justice - a commitment underlined by President Obama in his signing statement - and by our active assistance to Ugandan efforts in pursuit of Joseph Kony and other leaders of the LRA.
The United States also speaks out forcefully in support of cooperation with the ICC in other cases. Several days ago, after President Bashir made a brief trip to Kenya, President Obama issued a statement on what should have been a proud day for Kenya: the beginning of its Second Republic by the ratification of a new constitution that provides for the separation of powers and that offers hope for Kenyan democracy. President Obama issued a three-paragraph statement, and in the third paragraph, the longest paragraph, he expressed disappointment about the country of his father failing to honor its commitment to the ICC to arrest Omar al-Bashir.
We are also seeking other ways to assist the Court in a manner consistent with our laws. There are statutes passed by Congress in 2001 and 2002, which to some extent restrict our ability to be helpful. However, their provisions do allow in-kind assistance on a case-specific basis, so we are now working to provide assistance for victims and witnesses whose protection is so important if there are to be successful prosecutions.
With the requirement of a two-thirds vote in the Senate, it is a challenge for the United States to ratify treaties, and there are a number of international human rights conventions that we have yet to approve. You are probably familiar with the fact that the Convention on the Rights of the Child has been ratified by every country in the world except the United States and Somalia. This convention contains principles that I believe every American could support, and we hope that in the near future it can be ratified by our Senate. However, there is a rumor that the Transitional National Assembly of Somalia - a parliament that cannot safely meet in the capital at Mogadishu because of the ongoing conflict in that country - may soon put the convention on its agenda and beat the United States to ratification.
When I recently mentioned our failure to ratify the Convention on the Rights of the Child to my friend Navi Pillay, the UN High Commissioner for Human Rights in Geneva, she kindly and wisely said, “But you in America protect the rights of the child so much better than many of the countries that have ratified that treaty." This is true, and it reflects a tradition of self-reliance, an aspiration to do what is right in our own way, and a pride in the protections provided by our constitution and laws. Convincing Americans to cede any part of their decision-making to international organizations is always difficult. This is true even for international institutions that prominent Americans have championed. Remember that President Wilson went to Paris in 1919 and convinced the rest of the world to establish a League of Nations, but went home and could not convince the United States Senate to ratify the treaty that would have allowed us to be a member.
But when you move to the practical level of joining with the rest of the world to accomplish a specific task or to achieve justice in a particular case, Americans are ready to jump right in. I am reminded that when my predecessors as Prosecutors of the Special Court for Sierra Leone, David Crane and Sir Desmond de Silva, went to the U.S. House of Representatives and sought a resolution in support of the arrest of Charles Taylor, the vote was about 434 to 1, with only Ron Paul voting against.
For all of the ICC cases, there is a massive number of Americans on both the right and the left who want justice: for the victims in Darfur, for the victims of Joseph Kony and the LRA, for the victims of the post-election violence in Kenya, or for the innocent victims anywhere who have been intentionally targeted for atrocity. Americans want those who are responsible to be held to account, and in the absence of will or capacity at the national level, will support the delivery of justice at the ICC.
Of course, I have been speaking about atrocity crimes: of genocide, war crimes, and crimes against humanity. These are the crimes over which the international courts created since the 1990s have had jurisdiction and on which they have built their record of success. A major question at the Review Conference in Kampala was whether the ICC should be empowered also to prosecute the crime of aggression. In answering that question, it must be remembered that the trials at Nuremberg dealt not only with atrocity crimes committed by the Nazi leadership, but also with “crimes against peace,” for the defendants' criminal responsibility for planning and waging an aggressive war.
First, I want to state clearly that this administration, this government, and this country believes in and supports what we did as a nation, in concert with our allies, and is proud of what brave men like Justice Jackson and Ben Ferencz and Bill Caming and Whitney Harris and others accomplished at Nuremberg, including the successful prosecution of Nazi leaders for conspiracy to wage an aggressive war and for waging an aggressive war.
Were this a battle over the Nuremberg principles and putting the law of Nuremberg into the international statute book, it would be different. Ben says the crime has been defined. It was, indeed, defined at Nuremberg, but what has been proposed by the ICC Working Group is a crime different than that prosecuted at Nuremberg. Now I recognize that we are restrained in challenging the wording of the definition adopted by the Working Group because U S representatives stayed away from all of its sessions from 2002 through 2008. The past administrations should have been sending representatives but they did not, even when representatives were sent by Russia, a country that signed the ICC Statute but did not ratify, and China, a country that neither signed nor ratified. Nevertheless, it needs to be said that the definition that was developed in that process departed significantly from what was used at Nuremberg.
As the definition was finalized by consensus in the Working Group, it spoke of a manifest act – an act of such character, gravity, and scale that would constitute a manifest violation of the UN Charter. As a prosecutor, I would find it hard to draw elements out of that definition and to determine how to prove a case in the same way as one must for other crimes. The language looks like a political compromise, and as we began to talk to people about it, we discovered that different people saw different things in that definition.
We made the argument that this could well bring the ICC into minor border conflicts and into cases involving the pursuit of internal armed groups across borders. What is a manifest violation? Is it one that is “serious”? Is it one that is “egregious”? No, the word that is closest is “clear.” It means that if your forces were on this side of the border, and the border is here, and then they clearly crossed over it, you have a manifest violation. Now, is that realistic?
I remember talking to representatives of several Western Hemisphere countries, about the Colombian intervention in Ecuador two years ago in March. Colombian forces crossed over into Ecuador and attacked a camp of the FARC, which is a Colombian-based group that is involved in kidnapping and other horrendous acts, including victimizing civilians, on a political basis. Colombian forces went over the border and attacked the FARC base, killed some of the FARC combatants, seized some computers, and returned to the Colombian side of the border. The Ecuadorans accused Colombia of aggression. They even charged a Colombian officer in Ecuadoran courts for aggression.
I asked them whether this was aggression under the proposed definition. I remember several responded, “Absolutely not. That was not aggression. That was not a manifest violation." Others said, "This could be aggression. This is what the Court should decide.” So what is the prosecutor to do? Well, I will tell you what I think he or she should do. The Prosecutor should look at the facts and the circumstances and conclude that it was not serious, that it was not grave, and decide not to proceed on the case. At that point, countries would say, "That prosecutor is in the pocket of the Yankees. He will not proceed because Ecuador's government is friendly with Caracas and Colombia's is friendly with Washington.” Adding the crime of aggression, as defined by the Working Group, would involve the prosecutor in the political thicket of cross-border issues, and the Court which already has difficulty getting cooperation even on issues concerning mass atrocities, would suddenly find itself cast on one side or the other of these conflicts.
Richard Goldstone put it well in a very persuasive op-ed that came out in the days before the conference in Kampala. He described his experience on taking on the position of Chief Prosecutor for the ICTY and ICTR in 1995. He said that he was pleased that he did not have the crime of aggression on his plate. Even today if you go to the Balkans, you will hear Croatians speaking of defending their homeland from a war of aggression by the Serbs. They viewed the JNA, or Yugoslav national army, as an invading force. If you talk to Serbs, you will discover that they still see the JNA as having been like the Union Army of Lincoln and Grant fighting an insurrection. Goldstone was happy that he did not have to settle that dispute. He could focus on the crimes that shocked the universal conscience: attacking and murdering innocent civilians, acts of “ethnic cleansing” that terrorized civilians into leaving their homes and land, as well as other mass atrocities.
Moreover, criminalizing acts of aggression without a clear understanding of the character of the conduct to which it would apply could restrain actions to protect innocent civilians from atrocities. As Michael Scharf said today, the United States was concerned about how the crime as defined would apply to cases where there was humanitarian justification for the use of force, but where, for political reasons, it was not possible to obtain Security Council approval before taking necessary action. This was the case with the NATO operation to stop ethnic-cleansing in Kosovo in 1999.
What if the leaders of a state were responsible for a humanitarian intervention where no civilians were killed, where every law of war was observed, and where you they went in and promptly got out? Would that be aggression? The answer should be clear, but instead we heard: "Did you get approval of the Security Council before you intervened? If not, then it was aggression. You should be prosecuted. Maybe you could receive a lighter sentence because of your good motives." We asked if there could be an amendment that would make it clear that it did not apply in such a case. The response that we heard: “Somebody tried to exempt humanitarian interventions during the discussions in the Working Group when you were not there. There was opposition from a non-party state that was there as an observer, so it was not approved.” So we discovered that the crime as defined could have repercussions in terms of the role that we are called upon to play in the world when, for the best motives, and to prevent genocide, to prevent war crimes, to prevent crimes against humanity, we act to protect the innocent.
I think it is time for a word about the necessary use of force in our world. This is usually not part of my speeches on international justice, but it is important to say it here. All of us have been involved in achieving justice in the courtroom. But a very few here, like Ben, have participated in the use of force to defeat the armies led by the authors of these crimes and to make it possible to hold them to account in a courtroom. We owe a large debt to those who went into harm's way, without whose victories, justice would not have happened.
The Nazi leaders, Goering or Ribbentrop or Hess or Speer, would never have been in the dock if the world had not committed more treasure than it had ever spent and more lives than it had ever lost, including millions of soldiers on the Allied side, to defeat the Nazis, destroy their government, erase their scourge, and bring those responsible to justice. The Nazis and their descendants would still be there in power, had it not been for that effort.
I was in Cambodia for the announcement of the first judgment of the Extraordinary Chambers a month ago on July 26, and I met afterwards with a two survivors of S-21. They were among only a dozen people that survived a camp that tortured and sent to their deaths more than 15,000 men, women and children. They lived because the Vietnamese invading army conquered Phnom Penh and freed them. If it had not defeated the Khmer Rouge, those survivors would have died, their torture would have continued, they would have confessed, they would have been taken to the killing fields, and iron bars would have been used to crush their skulls. And thousands of others would have followed.
You remember, of course, that the invasion by Vietnam was disfavored in the world, including by our government, and that as a result, the genocidal regime of Pol Pot remained in control of the UN seat for at least another 10 years, because it was argued that it was illegitimately displaced by force despite the fact that this use of force had stopped one of the worst crimes of the 20th century.
I was in Rwanda a week and a half ago and took a boat with my wife and daughter from Goma and Gisenyi in the north to Cyangugu in the south, the full length of the great Lake Kivu. It was a beautiful trip. This is what passes as a vacation when you are in my line of work. As we were crossing Lake Kivu, I remembered one of the broadcasts that I had presented in court at the ICTR during the Media Trial. It was one of the 30 broadcasts that we had selected because they most clearly demonstrated incitement to genocide. They formed a body of devastating evidence. Amazingly, there was even one in which one of the broadcasters recognized the possibility of international justice. The announcer was Kantano Habimana and the program was broadcast on about June 25, 1994. In it, he was reading from a wire service report that RTLM had just received about a meeting at the UN in New York where there was the first mention that there might be an international criminal tribunal for Rwanda. At this time Kigali and most of western Rwanda were still in government hands and the genocide was continuing. Habimana said in the broadcast, "We have to win this war. We have to win this war because if we lose, there is no trench in Lake Kivu so deep that they won't be able to fish us out and put us on trial."
Well, in three more weeks, they lost the war. The RPF defeated the genocidal government. Its leaders were forced to cross Lake Kivu, and some of them continued running to places of refuge around the world. They were now individuals without a state, without a capital, without the diplomatic and political protection that goes with the control of a government. It was possible to chase more than 80 of them to the ground in 26 different countries, obtain state cooperation for their arrests, and bring them to Arusha to stand trial.
In regard to Sierra Leone, let us not forget that it was military forces that defeated the RUF and made it possible to bring them to justice. The Lome Peace Plan of 1999 contained an amnesty that would not have allowed them to be brought to justice because it was negotiated from weakness when the RUF was in control of two-thirds of the country. It was only after the RUF broke the Lome peace by refusing to disarm, and attacked and killed peace-keepers in the field and citizens on the streets, that the UN forces were strengthened and a British contingent intervened and finally made it possible to defeat the RUF, establish a Special Court, and bring the leaders responsible for atrocities to justice. We remember that it was almost two years after the end of the war in Sierra Leone that Charles Taylor was indicted for his role in the crimes in Sierra Leone. When that indictment was issued he was President of Liberia, safe in his his mansion in Monrovia. Later that year it was the armed force of Liberian rebel groups - the LURD and the MODEL - that caused him to abandon his office and his country, preferring exile to a possible violent end in Liberia. He flew from power to refuge in Calabar, Nigeria, where it was eventually possible to affect his arrest.
Now, in bringing up all of these examples, I want to make it absolutely clear that no matter what the goal, even if it is stopping genocide, one cannot commit atrocities; one cannot violate the laws of war. One of the prouder things that I did in Sierra Leone was to conclude the case brought courageously by David Crane of the surviving CDF leadership. These were men who had organized and commanded a force that fought against the RUF, against the group that was hacking off arms, gouging out other organs, raping women by the thousands, enslaving people to dig diamonds. However, certain units of the CDF in the course of its campaign committed atrocities and brutalities against people in areas that they thought had been sympathetic to the rebels. It is that kind of conduct caused when one side thinks that the other side’s brutality justifies its own, that multiplies the threat to the eyes, the hands, the bodies, the lives, of innocent civilians in conflict zones. It teaches us that when both sides have committed atrocities, it is necessary to prosecute both sides for justice to be effective.
And finally, let us remember that Nuremberg taught us that force alone is not the answer. This means that after defeating those responsible, you do not just send them into exile with some of their stolen money, or line them up against the wall and shoot them. Investigating the crimes, developing the evidence, charging those responsible and showing the public what happened, who was killed, why, when, and where, is a critical part of preventing it from happening again. We certainly see this most classically in Cambodia where, after this invasion of 1979, for the next 25 years, people had little knowledge of what had happened and why it happened. This is why the Extraordinary Chambers are so critical in providing that knowledge, that truth seeking, that justice without which Cambodians risk it all happening again.
In regard to this use of force, I wanted to quote for a moment from the President of the United States in his Nobel Peace Prize acceptance speech last December in Oslo. As he said, "[M]ake no mistake: evil does exist in the world. A non-violent movement could not have halted Hitler's armies."
Let me digress from his words for a moment to add: None of us, not the most committed prosecutor, thinks that an arrest warrant sent to the Reich chancellery at any time between 1939 and 1945 would have stopped the conflict or atrocities.
Let me continue with the President's words: "Negotiations cannot convince al Qaeda’s leaders to lay down their arms. To say that force may sometimes be necessary is not a call to cynicism - it is recognition of history; the imperfections of man and the limits of reason."
As the president went on and said, "I raise this point . . . because in many countries there is a deep ambivalence about military action today, no matter what the cause. And at times, this is joined by a reflexive suspicion of America, the world's sole military super power." That was the challenge that we in Kampala had to confront. How do we deal with the role of the world's super power, the only power that in many cases stands between the butcher and his victim, between those that would kill 3,000 people before their morning coffee, innocently going about their daily work? How do we deal with that reality in the world while signaling our desire for a world where law can eventually replace force?
We engaged in this process, and I am proud of the result. And I think those who are interested in international justice, including those interested in the development of the crime of aggression can be proud of the result. The term “manifest” in the definition was imprecise but we did achieve the addition of understandings that became part of the resolution of adoption that said that this applied only to the most serious and dangerous uses of force in the world.
We additionally obtained an understanding that said that none of the elements, “character, gravity, or scale,” on their own could be sufficient to constitute aggression, but that the prosecutor and judges would have to find all three. The existence of only one factor would not justify an international prosecution. So we think that the definition was improved by these understandings, even though it had already been written and was already the subject of international consensus.
Two amendments were also passed in Kampala dealing with the exercise of jurisdiction over the crime of aggression. One, denominated as Article 15ter, would empower the Security Council to consider any case of alleged aggression, make necessary findings, and send that case to the ICC. It could do this to acts committed in any country in the world, whether that country had ratified the ICC or not, in the same way that it sent the Darfur situation to the ICC. Some will say the Security Council will protect its own, and that this is an imperfect solution. But we recall that the Security Council overwhelmingly adopted ten resolutions to penalize Iraqi leaders for their 1990 invasion of Kuwait. We can imagine that if confronted with a similar case, they would add to their resolutions a referral to the ICC for the crime of aggression.
This provision would take effect if 30 countries ratify it, and then if there is a decision after January 1, 2017, made by the ICC membership by the same majority required for adoption of amendments, which is two-thirds by statute, but consensus in practice. If it is approved in 2017 or thereafter, it could go immediately into effect.
There is a more controversial amendment, from our point of view, denominated as Article 15bis which would allow such a case to start on state referral or on the prosecutor’s own motion, subject to a decision by the Pretrial Division, but in neither situation would Security Council approval be required. Putting that provision into effect would also require 30 ratifications and a super-majority decision after January 1, 2017. But even then it will not apply to the nationals of non-parties. It will not apply to the nationals of parties that ratify the amendment and then opt out, and in our view, it will not apply to nationals of parties who do not ratify the amendment.
Even if put into force in 2017, I know that this is an imperfect solution from Ben's point of view because it will not apply to the nationals of all countries, in the absence of Security Council action.
If all of it is put into force in 2017, it also is an imperfect solution from the United States’ point of view, because it might discourage those of our allies who might approve the amendment from participating in coalitions to take necessary action to protect individuals, because of the possibility that they might subject their officials to prosecution.
But this is a long-term process. It is not the end of the road. It is the beginning. The United States is supporting the ICC in each of its cases involving atrocity crimes, and we are engaging now in trying to achieve an understanding of how the crime of aggression would be defined in practice. In the next seven years, as we can look forward to building a closer relationship with the ICC, we hope to see the Court achieving successes is cases of atrocity crimes and building confidence across the globe. Perhaps in 2017, the Security Council route for aggression prosecutions will be approved and we will see if all of the appropriate cases are referred. Perhaps in 2017, the other route may be approved, and we will see if states that consent to jurisdiction will find themselves subject to prosecutions for aggression. Maybe in the further future, ICC jurisdiction over the crime of aggression will become more universal, for as we know international justice is always a work in progress.
In a speech last night, John Barrett mentioned how some at Nuremberg thought that this was going to be a difficult challenge; that it might all come to naught. I think that all of us who have been engaged in this process have sometimes felt that way. We have experienced the absence of resources, the slow processes for recruiting those who can be the most effective in investigating the crimes and presenting the evidence in court, the difficulties of achieving state cooperation for arrests and for protecting witnesses from harm. We have faced these challenges, and we have surmounted them.
I am certain that with the kind of effort that those in this room have brought to international justice, that with the young people that we saw this afternoon who are in record numbers inspired to join this field, these challenges can continue to be overcome. I am confident that we can build a future where individuals will be deterred from committing the kind of crimes that were judged at Nuremberg and The Hague and Arusha and Phnom Penh, and where the promise of “never again” can truly be fulfilled.