ICC Turns Ten
May 11, 2012
Stanford Law School marked the ten-year anniversary of the establishment of the International Criminal Court (ICC) with a major conference evaluating its achievements and progress to date, the prospects for its continuing development, and the direction of its future relationship with the United States.
Conference speakers Included:
H.E. Judge Cuno Jakob Tarfusser, Vice President, International Criminal Court
H.E. Justice Mrs. Silvana Arbia, Registrar, International Criminal Court
Ms. Shamila Batohi, Senior Legal Advisor of the Prosecutor, International Criminal Court
H.E. Ambassador Stephen J. Rapp, U.S. Ambassador-at-Large, Office of Global Criminal Justice
Mr. Benjamin Ferencz, Former Prosecutor, Nuremberg Military Tribunals
Mr. Michael S. Greco, Chair, ABA Center for Human Rights and former President of the ABA
Prof. David Kaye, Executive Director, International Human Rights Program at UCLA, School of Law
Allen Weiner, Senior Lecturer in Law and Director of the Program in International and Comparative Law, Stanford Law School
Prof. Ruth Wedgwood, Director of the International Law and Organizations Program, The Paul H. Nitze School of Advanced International Studies, John Hopkins University
Moderators included Stanford Law School faculty and scholars Mariano-Florentino Cuellar, Helen Stacy, and Jenny Martinez.
Allen Weiner, Senior Lecturer in Law and the Director of the Stanford Program in International and Comparative Law, opened the conference. He read remarks received from ICC President Judge Sang-Hyun Song conveying his high commendations for the conference and hopes for improving relations between the United States and the Court. Weiner stressed the importance of the Court as the contemporary incarnation of a relatively recent phenomenon in international law, namely, the idea of individual criminal accountability under international law. He also stressed the potentially significant role to be played by the Court as an international security institution. At the same time, he noted criticisms that have been levied against the ICC and identified some of the key challenges it faces.
The first panel at the conference was moderated by Professor Mariano-Florentino Cuellar, the Deane F. Johnson Faculty Scholar at Stanford Law School and Co-Director of the Stanford Center for International Security and Cooperation. The panel included presentations by Judge Cuno Jakob Tarfusser, Vice‐President of the ICC; Justice Mrs. Silvana Arbia, the Court’s Registrar; and Professor Ruth Wedgwood, Director of the International Law and Organization Program at the Paul H. Nitze School of Advanced International Studies at John Hopkins University. The panel discussion focused on the ICC as a new judicial institution and offered assessments of its achievements and challenges. Judge Tarfusser detailed the history of the Court’s creation and evolution to date. He emphasized the Court’s potential in shaping the domestic law of States Parties, as well as the significance of the operation of the Court’s pre-chamber and its embrace of victim participation. Justice Arbia acknowledged several of the challenges facing the ICC, including the matter of state cooperation, but explained that these were inherent in the design of the ICC itself. She reiterated the Court’s commitment to acting to discharge its mandate, even when faced with obstacles, including financial constraints. Professor Wedgwood adopted a more cautionary perspective, and offered a critical assessment of the ICC’s practices on peacekeeper immunity, what she saw an its undue focus on evidentiary completeness, its lack of military judges, and some of its decisions in selecting targets. All of the panelists emphasized that the Court should serve only as a last resort.
The second panel was moderated by Helen Stacy, Senior Fellow at Stanford’s Freeman Spogli Institute for International Studies and Director of the Stanford Program on Human Rights at the Center on Democracy, Development and the Rule of Law. This panel included presentations by Shamila Batohi, Senior Legal Advisor to the Prosecutor of the ICC; Benjamin Ferencz, a former Nuremberg Tribunal prosecutor; and Professor David Kaye, Executive Director of the International Human Rights Program and Director of the International Justice Clinic at the UCLA School of Law. The panel addressed lessons learned from the past and future approaches to the prosecution of international war crimes. Ms. Batohi noted that although the ICC functions in a complex international environment, it is and must remain an institution of international justice. She discussed the role of the Court in preventing atrocities, noting a number of situations in which the Court’s actions had positively affected state behavior. Professor Kaye highlighted some of the ICC’s strengths, including its complementarity vision and its witness protection program. At the same time, he indicated that the rapidity of the Security Council’s referral of the Libya situation and the speed with which the Court issued indictments raise worries about the risk of instrumentalization of the Court. He highlighted a number of specific areas in which the ICC should strive for improvement and expressed skepticism about the phenomenon of “self-referrals.” Mr. Ferencz stressed that the ICC should work more actively to prevent the crime of aggression, and should consider treating such acts of aggression as crimes against humanity – an offense over which the Court currently has jurisdiction – rather than waiting until 2017, the earliest date by which the ICC would be able to exercise jurisdiction over the crimes of aggression itself.
Professor Jenny Martinez of Stanford Law School moderated the third panel on the complicated relationship between the ICC and the United States. Participants included Stanford Law School’s Allen Weiner; Ambassador Stephen J. Rapp from the U.S. Department of State’s Office of Global Criminal Justice; and Michael S. Greco, Chair for the American Bar Association’s Center for Human Rights. Professor Weiner, who previously served as Legal Counselor at the U.S. Embassy in The Hague, recounted the role of the United States in supporting the International Criminal Tribunal for the Former Yugoslavia (ICTY) and noted that close U.S. relations with the ICTY reduced, rather than increased, the risk that U.S. officials would be investigated and indicted by that Tribunal. Although there are undoubtedly risks for the U.S. in becoming a party to the Rome Statute, he argued that it would on balance advance U.S. foreign policy interests. Ambassador Rapp contrasted the attitudes of the Bush and Obama administrations towards the ICC. He saw the U.S. acquiescence in the Security Council’s referral of the Darfur situation to the ICC in 2005 as a major turning point. Under the Obama Administration, the U.S. has actively participated – in an observer capacity – in the Court’s activities. Despite continuing concerns about joining the ICC, Ambassador Rapp suggested that the United States will be a major supporter of the Court in the long term. Mr. Greco, speaking on behalf of the American Bar Association (ABA), described the ABA’s leading role in urging the U.S. Government to become a party to the Rome Statute. He announced a major new ABA initiative to promote this goal, the ABA’s Human Rights ICC Project.
Sasan Sam Shoamanesh, a Stanford Program in International Legal Studies J.S.M. student on academic leave from the Registry of the ICC, closed the conference. In his thanks to the various contributors and participants of the event, Mr. Shoamanesh expressed particular gratitude on behalf of the Court to the ABA for its initiative to improve U.S.-ICC relations.
The conference was sponsored by Stanford Law School; the American Bar Association's Center for Human Rights; the American Society of International Law; the Stanford Center on International Conflict and Negotiation (SCICN); the Stanford Center on International Security and Cooperation (CISAC); the Stanford Center on Democracy, Development, and the Rule of Law (CDDRL); the Stanford Program on Human Rights; and the Stanford International Human Rights and Conflict Resolution Clinic. It was also supported by a generous contribution from Mr. Donald Ferencz.