OSI Roundtable: Restoring American Leadership—The International Criminal Court

For many within the human rights community, the International Criminal Court represents the first global effort to bring war criminals to justice and could serve as a deterrent to future perpetrators. But to some in Washington, the Court is a radical affront to national sovereignty. The Court s jurisdiction encompasses the 97 countries that have ratified the treaty that established it. The United States, notably, is not among this group.

As the work of the Court gets underway, the debate surrounding it has begun to move out of the realm of the theoretical and into a discussion on the logistics of prosecuting cases, protecting witnesses, and how the United States might augment the Court s efforts without endorsing its creation.

At a roundtable at the Open Society Institute on December 14, Luis Moreno-Ocampo, the International Criminal Court s Chief Prosecutor, described the role of the Court in preventing atrocities and discussed avenues for collaboration with civil society groups working on international justice issues. Moreno-Ocampo s visit to OSI was part of the Restoring American Leadership roundtable series, a project of OSI and the Security and Peace Initiative, which is a joint initiative of the Center for American Progress and The Century Foundation. The organizers have published a volume of essays, Restoring American Leadership: 13 Steps to Improve Global Cooperation.

The roundtable, which was convened by Morton Halperin, Director of the Security and Peace Initiative and Director of U.S. Advocacy at the Open Society Institute, was moderated by OSI President Aryeh Neier. The director of OSI Washington, D.C., Stephen Rickard, was a copanelist.

Moreno-Ocampo was in New York City to address the United Nations Security Council, where he presented a progress report detailing the latest developments in the Court s investigations into war crimes in Uganda, the Democratic Republic of the Congo, and Sudan. This was the second such report on the Court, which was established in 1998 by the Rome Statute of the International Criminal Court and began operating in 2003, when Moreno-Ocampo assumed the position of Chief Prosecutor.

The International Criminal Court is at a crucial stage, according to Aryeh Neier. The capacity of the International Criminal Court to fulfill our hopes for it in helping to bring to justice those responsible for great crimes, he said, will depend on...the efforts that are made at this early stage of its existence.

Moreno-Ocampo outlined the work of the Court in investigating atrocities and prosecuting war criminals, and addressed the need to garner wide support for his efforts. We are a stateless prosecutor. And the concept of international law is based on this idea, he said. I can do the legal work, but to execute an arrest warrant I need support from someone else. He also emphasized the Court s wider goal of serving as a bulwark against future crimes. There is consensus in the world to stop the kinds of crimes in which you have thousands of killings, thousands of rapes, and millions of people displaced. These types of crimes could be stopped.

Stephen Rickard discussed the evolution of the campaign in Washington against the Court. Much of the initial opposition, he said, was based on alarmist predictions that never came true, and the legal arguments that persist today are frivolous and unsound. It is often said in Washington and by the Bush administration that the Court excercises radical and unprecendented jurisdiction because it asserts the ability to apply its law to the citizens of states that are not parties to the treaty, he said. In fact, the jursidictional basis of the Court is not radical, it s not new, it s not extreme. It is the two most basic black letter forms of jurisdiction in existence: territory and citizenship. To be brought before the International Criminal Court, Rickard explained, one must either be a citizen of a state that ratified the court or commit the alleged crime in the territory of a country that has ratified the treaty.

Rickard said that although the Bush administration has been so hostile to the Court as to threaten countries with sanctions if they ratify the Rome Statute, many of the Court s original opponents in Congress have recently become more moderate. Propelled by constituents calls for ending the violence and bringing perpetrators to justice in Darfur, a group of conservative representatives cosponsored the Darfur Peace and Accountability Act, which calls on the Bush administration to cooperate with the Court. In another positive step the United States did not follow through on a threat to veto a Security Council resolution to refer war crimes cases in Darfur to the Court.

According to Rickard, It has never been the objective of the human rights community to create an International Criminal Court that has not been the stated goal. The stated goal has been to create a just, fair, and effective International Criminal Court. And I look forward to the day when the United States government and the international human rights community are on the same page.