America and war crimes

US Ambassador-at-Large for War Crimes, Stephen Rapp, speaks exclusively to IBN ahead of the International Criminal Court’s Review Conference in Kampala.

First of all, how would you assess the impact of 9/11 on the ICC, and America’s engagement with the Court?

Well, obviously in one sense America became very interested in holding people to account for crimes such as terrorism. On the other hand, the US then moved on to deal particularly with al-Qaeda and the Taliban regime in Afghanistan that had provided a haven and support for al-Qaeda. Obviously, that caused concern on the public’s part, that the US could be exposed to potentially politically inspired prosecutions of its own people, even where it was enforcing, and following, the laws of the war. That had been a concern in the US beforehand, at the time that the Rome Statute was being debated during the conference in Italy in 1988, and President Clinton finally decided to instruct the delegates to vote ‘no’ because of the concern that the Prosecutor could be essentially irresponsible and out of control, and wouldn’t be accountable to anyone. Because of that, the US was concerned, and that was one of the reasons why, even when President Clinton decided, at the end of 2000, to sign the treaty but not to submit it to the Senate, he said that he was still concerned about this possibility. So that certainly affected attitudes regarding the 9/11 situation, and it’s fair to say that the Bush administration, particularly during the first term, took a generally very hostile view of multilateral institutions.

Frankly, that changed in the Bush administration’s second term, which occurred particularly because of the atrocities being committed in Darfur, Sudan, which Americans – both Republicans and Democrats – were very concerned about. When one looks at the Bush administration period, it’s not completely one of hostility to the United Nations or to the International Criminal Court.

But is there an inherent double standard there?

Our position in the US is that we have a very tough system of justice, a history of holding people to account at very high levels, of even taking the President of the United States to court and forcing him to give up tapes, eventually leading to his removal from office. People such as leading senators, congressmen, company chairs, the Vice President of the United States have been held to account, and we have a system of military justice that is very tough and fair. Also, we are able to handle this ourselves – part of the principle of the ICC, of course, is that countries should be able to do it themselves. On the other hand, because the United States is, as Madeleine Albright said, sort of a necessary nation in so many places where we are called upon – because of the resources that we have to come and assist and often protect countries from terror or other threats – if we’re then exposed, and a good deed goes unpunished, we could find ourselves, perhaps, in the crosshairs. On the other hand, I think it’s fair to say that, as we watch the ICC develop and as we watch this particular Prosecutor, the kind of cases that have been brought haven’t been cases that are grey area cases. They haven’t been cases that have involved, for example, whether this target was appropriate or that target was appropriate. They’ve involved clear examples of intentional targeting of men, women and children. So I think it’ll take a longer time before the US can get to a point of deciding whether to go into the Rome Statute system itself as a State Party.

Going back to your point about double standards – and I take on board your point about Madeleine Albright having justifiable concerns – I think most people have some sympathy with that but a lot of people think of Guantanamo Bay and ask the question, how are the people responsible for that to be held accountable? There seems to be an impunity gap there…

I don’t think so. I mean, fundamentally you have a situation now that’s quite controversial, regarding people in the last administration, like Vice President Cheney, but the Attorney General of the United States, Eric Holder, has opened an investigation regarding the enhanced interrogation issue, as it was reflected at Guantanamo Bay or elsewhere. That investigation is continuing and it’s a genuine process regarding prosecutable cases, if relevant. That’s not going to be a political decision by the President of the United States, it’ll be a decision by the professional prosecutors that are dealing with it.

‘The President hasn't yet spoken specifically about the war crimes issue but it is, I think, an area that he wants to see the US reassert its leadership; a leadership that we've really had since November 2009.’

To what extent do you feel that the election of President Obama is a sea change for the American view of international justice in general, and the ICC in particular?

Well, the President himself, as you know, taught at a law school, and certainly if you read the speech that he gave at the national archives, it amplified on the decision to move forward, to close Guantánamo, to eliminate enhanced interrogation, and to publish some of the secret memos that have been written by lawyers in regard to interrogation in the past. He spoke about our values as, really, our greatest asset in the world, and the importance of holding those values. The President hasn’t yet spoken specifically about the war crimes issue but it is, I think, an area that he wants to see the US reassert its leadership; a leadership that we’ve really had since November 2009.

The Obama administration has initiated a full review of US policy towards the ICC. What’s likely to be the upshot of that?

Well, I can’t speak to or predict that process. It’s a confidential process going on within the administration. I think it’s fair to say that in the course of the review, what is quite unlikely to occur is a decision, right now, for the US to move towards advocation of the Statute or Treaty of the ICC. But the question is, really, should the US participate – which it’s entitled to, having been at the Rome Conference – or is it prepared to go back to ICC meetings and to participate as an observer; not with a vote but with a voice? The second issue would be the question: if we engage with the ICC and we don’t ratify the ICC, what else could we do?

Yes, what form will the engagement take? That’s what people want to know.

Right, and that’s what’s being discussed at this point. First of all is the legal question: what can we do? And you may recall back in 2001–2002 there was legislation passed by Congress regarding one case, in a foreign relations authorisation act, where the US would obligate the funds in support of the ICC. There was a bill passed in 2002, called the American Service Members’ Protection Act, which basically said that the US couldn’t assist the ICC Prosecutor. However, it did have an exception in cases of individuals like Osama Bin Laden, Saddam Hussein, or Slobodan Milosevic, or any other individual who was alleged to be responsible for genocide or crimes against humanity, and was not a citizen of the United States. The US could assist the ICC in this instance, but how that provision works in practice is something that I think has to be legally determined.

The other question is: are there things consistent with the law that the US could do? Could the US, for instance, participate in an investigation and send out a team to help with mass graves and forensic investigation to determine the cause of death? Could it provide assistance with witness protection? Could it conduct training sessions? Firstly, can this legally be done; secondly, is it in the interest of the US to do it?

There’s no question that we want to prevent these crimes from recurring, we want to help establish a kind of expectation that if you commit genocide, if you commit crimes against humanity, you’re going to face consequences. But the question is: how we can do that in the present world?

It sounds like there are a lot of questions that need to be resolved, and then, after you’ve resolved these questions there needs to be a whole amount of legislation before you even get to the point where you’re looking at when the US may be able to ratify the Rome Statute, if at all…

Well, I don’t want to suggest that…

Is there a timescale for all of this?

Well, it’s moving ahead in the near future. Not necessarily on the legislative front but on the question of whether the law, as it stands right now, would permit certain things to be done. And, certainly, I think the Government recognises that it would be possible for the US, as a matter of policy, to support or to call for action by other countries. The question is what exactly could we do of substance, which is a legal question which is still being looked into.

So it’s not a question of when, it’s still a question of if the US will sign up to the Rome Statute?

We’re taking these things one step at a time and we’re not saying that the end step is ratification; that’s not a decision that’s been made. But what we’re looking at is ways that we may be able to assist in this, with this international institution in making it effective to hold people responsible for these horrendous crimes.

You mentioned the priorities in Kampala. Another important area is the inclusion of acts of aggression. What’s your view of that?

 We’re not against the idea of prosecutions for crimes of aggression in the serious and clear cases where we’ve got an aggressive war and all the world recognises that that’s what’s occurred. We’re concerned about the definition as it’s come out of the working group on aggression. We weren’t there, we didn’t participate in that working group; I wish we had. We’re coming into it late so it’s a little hard for people to listen and give us, you know, the same attention that we would’ve had had we been there all the time. We appreciate the fact that people are discussing these matters with us but we’re concerned that it’s not a war of aggression, it’s only an act of aggression. It doesn’t have to be a serious case, it only has to be a manifest case.

To explain further, by the way that it’s written, a border-crossing situation – for instance, Columbia going into Ecuador last year for FARC’s computers in a relatively short incursion led Ecuador to claim that it was aggression. That kind of case will certainly be referred to the Prosecutor of the ICC. That would seem, to us, to divert attention from the really serious cases that shocked the universal conscience, such as genocide, war crimes and crimes against humanity. Fundamentally, we should focus on
crimes in which civilians or people that are outside combat or prisoners are targeted for murder and rape and horrendous acts, really, on an intentional basis. What’s the answer, what’s our answer? We recognise that the UN Security Council might not be the most popular institution in the world but the UN Charter does provide, in Article 39, that the Security Council is empowered to determine whether an act of aggression has occurred.

One could say that the ICC is not a finished article. However one classifies it, would you agree that the ability of states themselves to pursue war crimes under universal jurisdiction remains important?

Yes, without question. Now, understand what we are talking about regarding universal jurisdiction – that is, cases that countries investigate based upon people that are really within their own borders; cases that involve situations which have a clear tie with particular groups and victims; and cases in which a country investigates something that doesn’t involve its own citizens. I think the latter is much more controversial and more likely to be abused.

In the US, for instance, we’ve recently changed our law on genocide. It used to say that we can only prosecute a case where a US citizen or national had committed a crime of genocide. In 2007, that law changed, consistent with the laws in most other countries, to say that if a person of any nationality is found in the US, we can still prosecute them
for genocide. Why is that important? Well, if the suspect comes from a country where the legal system has entirely broken down and they’ve committed a horrendous act, the usual turn of events is, ‘well, let’s see if we can send them back home’. ‘Let’s extradite them, deport them, have them prosecuted.’ There may be a determination that wherever they would go, they wouldn’t have a fair trial, or they’d be, effectively, lynched if they were sent home. As we build this fabric of accountability, which ideally focuses first and
foremost on the scene of the crime – trying to make that system where the crime happened fair and effective.

Then, if there’s also the possibility of cases being brought into countries of refuge, and then in the cases where there are no alternatives and where you have very senior officials and where you have very serious offences, then, as we’ve had in the Rwandan context and Yugoslavia and Sierra Leone, then I think it’s appropriate to bring international justice.

The ICC Review Conference

Article 123 of the Rome Statute (establishing the International Criminal Court, ICC), stated that, after seven years, the Secretary-General of the UN would be enjoined to call a Review Conference. The first ever ICC Review Conference, 31 May – 11 June 2010 in Kampala, Uganda, constitutes a special meeting of States Parties to the ICC – distinct from the annual Assembly of States Parties (ASP) – to consider amendments to the Rome Statute and to take stock of its implementation and impact.

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