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Defending the International Criminal Court From the Outside


US ambassador for war crimes
Stephen Rapp, left, US ambassador at large, with John Washburn of the American Nongovernmental Organizations Coalition for the ICC, at Columbia Law School. AMICC/Hannah Dunphy

The International Criminal Court‘s judgment against the warlord Thomas Lubanga for conscripting child soldiers in the Democratic Republic of Congo has confirmed that “a permanent international criminal court is on the job,” Stephen Rapp, ambassador at large for the US State Department, said at Columbia University Law School this month.

The Lubanga guilty verdict in March has raised expectations for the 10-year-old court, known as the ICC, and reinforced the sense that when serious crimes are committed by powerful people justice happens, Rapp, ever ambassadorial, said. The verdict also occurs as three international tribunals, established by the United Nations for Sierra Leone, Rwanda and the former Yugoslavia, wind down, challenging “us all in terms of how these crimes of international concern can be deterred in the future, how cases are going to be tried and whether there is going to be justice for victims on our planet,” Rapp added, speaking to a lunchtime group of students, professors, diplomats and others on April 19.

Rapp was a guest of the American Nongovernmental Organizations Coalition for the International Criminal Court (Amicc), a program of the Institute for the Study of Human Rights at Columbia. An Iowan, Rapp was appointed in his diplomatic post, in the Office of Global Criminal Justice, by President Obama in 2009. He was formerly prosecutor of the Special Court for Sierra Leone, trying, among others, Charles Taylor, the Liberian war-crimes criminal convicted this month, and won the first-ever convictions for use of child soldiers and for sexual slavery and forced marriage, crimes under international humanitarian law. In addition, Rapp was chief of prosecutions at the International Criminal Tribunal for Rwanda.

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At Columbia, Rapp discussed the United States’ relationship to the court and current restraints on the ICC, like decreased financing, as member countries face strained budgets at home. (The US is not a state party to the court’s governing treaty, the Rome Statute.) He mentioned bipartisan legislation in the US Congress to increase payments for information that leads to the arrest and transfer of fugitives, including suspects wanted by the court, as part of the government’s Rewards for Justice Program.

The legislation could potentially help capture Joseph Kony, whose 26-year terrorism campaign in Central Africa, including using child soldiers, was highlighted in a video that went viral this spring. The US sent a special force to the region to advise the Ugandan army on bringing in Kony, who is the subject of an ICC arrest warrant. Most recently, the Ugandan military says that Kony may be hiding in Darfur, Sudan, although The New York Times says he could be in Central African Republic.

The child soldiers in Lubanga’s camp suffered a double helix of victimization: they not only lost their innocence but will be affected for life. Relying on child soldiers, Rapp said, allowed acts that adults would not have necessarily committed themselves.

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The child “who is brought in and provided with guns and convinced that he’s all powerful and can now commit these horrible crimes” is a challenge in terms of rehabilitation, Rapp noted, citing an example of a boy soldier called Dr. Chop-Chop for his ability to hack off adults’ hands.

Fending off critics

As the UN tribunals finish their work, more emphasis will be made on the role of the ICC in pursuing and convicting international atrocity crimes. But the ICC and its 18 judges can take on only a “handful” of cases at once, Rapp said, referring to it as a court of “last resort.”

That means courts of “first resort” need to be strengthened – national justice systems such as in Congo, Rwanda and Ivory Coast, in Africa. A key part of complementarity – a technical term for the ICC’s deference to prosecutions in national courts – is that countries want to try individuals themselves, encouraging action at the domestic level.

Rapp further addressed critics of the court, who grew vociferous after the Lubanga trial, saying the ICC moved too slowly in its first conviction and has only five people in detention, including Laurent Gbagbo, the former president of the Ivory Coast, accused of crimes against humanity. The court’s $800 million in expenses in its lifetime so far, Rapp said, has been criticized as well, given that it has finished just one trial.

These “unfair accusations,” he said, did not consider the court’s increasing impact on international criminality. It has issued 28 arrest warrants and summonses; has 22 cases pending; 6 people under arrest and 9 who appeared voluntarily. The arrests include important Kenyan politicians for alleged crimes against humanity that occurred during post-presidential elections in 2007-2008, sending a signal that post-election violence will not be tolerated. The court’s most notable warrant, for President Omar al-Bashir of Sudan, has not, however, led to his capture.

Moreover, the court’s snail-like pace reflects the complicated procedures the prosecutor must go through, compared with the relative quickness of tribunals, Rapp said, and the fact that the Lubanga case was using the procedures for the first time. The court deals with situations in places thousands of miles away from The Hague, where it is based, and works with about a third of the staffing of either the Sierra Leone or Rwanda tribunals.

Rapp defended the court’s ability to deter future atrocities by citing a survey showing falling levels of victimization in Ituri Province in Congo, where international prosecutors, working with national authorities, have occurred (including that of Lubanga); while in the Kivu provinces in the north, where no effective international prosecution has taken place, crimes continue unabated.

The court would have more influence, he added, if it had more members. Besides the US, which is a long way from joining, such major countries as China, India, Israel, Pakistan and Russia are not members as well as most of the Middle East. Yet much of Central America and South America and every European country are on board.

In this sympathetic vein, Rapp said that the US “will support and we do support every arrest warrant” of the ICC, as well as provide material support to investigation teams and assist its witness protection programs, which are not the court’s strong suit. The ICC’s potential threat to US service members’ being arrested for criminal acts has proved to be a nonstarter, since the US has a strong justice system for prosecuting its own cases, Rapp said. [Recently, President Obama established an Atrocities Prevention Board to help prevent and respond to genocide and other humanitarian catastrophes.]

As to the court’s finances, the US cannot directly pay into its budget, but the rewards system already in place with tribunals and in-kind services can be applied instead, although Rapp conceded that courts generally don’t like such services or taking in seconded personnel from wealthy countries.

So why doesn’t the US just join the ICC? Rapp asked rhetorically, noting how difficult it is for the US to ratify international treaties and conventions.

“I’m optimistic for international justice,” he concluded, adding that though the court faces challenges, the US wants it to succeed.

We welcome your comments on this article.  What are your thoughts?

Dulcie Leimbach is a co-founder, with Barbara Crossette, of PassBlue. For PassBlue and other publications, Leimbach has reported from New York and overseas from West Africa (Burkina Faso and Mali) and from Europe (Scotland, Sicily, Vienna, Budapest, Kyiv, Armenia, Iceland and The Hague). She has provided commentary on the UN for BBC World Radio, ARD German TV and Radio, NHK’s English channel, Background Briefing with Ian Masters/KPFK Radio in Los Angeles and the Foreign Press Association.

Previously, she was an editor for the Coalition for the UN Convention Against Corruption; from 2008 to 2011, she was the publications director of the United Nations Association of the USA. Before UNA, Leimbach was an editor at The New York Times for more than 20 years, editing and writing for most sections of the paper, including the Magazine, Book Review and Op-Ed. She began her reporting career in small-town papers in San Diego, Calif., and Boulder, Colo., graduating to the Rocky Mountain News in Denver and then working at The Times. Leimbach has been a fellow at the CUNY Graduate Center’s Ralph Bunche Institute for International Studies as well as at Yaddo, the artists’ colony in Saratoga Springs, N.Y.; taught news reporting at Hofstra University; and guest-lectured at the Columbia University Graduate School of Journalism and the CUNY Journalism School. She graduated from the University of Colorado and has an M.F.A. in writing from Warren Wilson College in North Carolina. She lives in Brooklyn, N.Y.

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