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Dutch Foreign Minister to HRC: Show Us You Support the ICC

Secretary of State Clinton and her Dutch counterpart Maxime Verhagen made a joint appearance at the State Department yesterday. Much of Secretary Clinton's remarks focused in the scourge of piracy and the necessity  of forging a common international military and legal framework to combat piracy off the Somali coast. But it was this bit from Foreign Minister Verhagen that caught my attention:

Finally, we discussed human rights, because respect of human rights is increasingly under pressure. They are central in the Dutch foreign policy. And we are very pleased by the renewed U.S. engagement in human rights, and we look forward to promoting human rights worldwide in a strong partnership with the United States. As the host country of the International Criminal Court in The Hague, we appreciate also the more positive approach of the United States to the Court, especially with regard to Darfur. And we hope, of course, to see that the United States will work more closely together with this court in the near future.

That last part is still up for debate.  Folks will remember that the previous administration famously "unsigned" the Clinton administration's signature to the Rome Statute that created the ICC.   Via Don Kraus, a group of over 25 NGOs are calling on the Obama administration to formally retract the Bush administration's "unsigning"  of the Rome Statute.

The Obama Administration must also decide soon to take additional, critical steps. The preceding administration deactivated the US signature of the Rome Statute by sending a note to the Secretary-General of the United Nations so declaring. Under Article 18 of the Vienna Convention on the Law of Treaties, another note to the Secretary-General can reactivate the signature. The policy statement would simply formalize and clarify early indications by the present administration that it intends to work with the Court in cases and circumstances that would serve U.S. national interests. Arrangements to carry out the policy would make clear that the policy is serious in the face of continued skepticism, especially in Europe, about American intentions toward the Court. Reactivation of the signature would remove an official and formal declaration of hostility to the Court and thus give further credibility to a new policy of cooperation and support. It would also promote worldwide understanding and acceptance of U.S. participation in the Review Conference proceedings.

I'll leave it to my friends at Opinio Juris to tell me if this kind of action is at all legally significant. Really, though, it's the symbolism that matters.

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Ask the Prosecutor

Bec Hamilton features an opportunity for readers to ask Luis Moreno Ocampo a question in her upcoming interview with the ICC Chief Prosecutor. Wonder what it was like to indict the first sitting president with an ICC warrant? Just ask.
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Engage with the ICC!

David Kaye, a former lawyer in the Clinton and Bush administrations, provides some sensible reasoning on why the United States should join the International Criminal Court. In addition to all the helpful information Washington could have provided in the lead-up to the Bashir indictment -- and its tumultuous after-effects -- Kaye writes that the United States risks being left on the sidelines when it comes to shaping international law.
Closer engagement also would allow the U.S. to help shape policy and legal developments in ways that meet its concerns. Today, we have little ability to influence the court's thinking. As a consequence, many basic principles of international law are being developed without U.S. input.
If that doesn't sound scary enough (okay, it's not exactly fear-inducing), then Kaye brings up a dangerous eventuality that may hit closer to home for many U.S. lawmakers.
Not all the action is in the courtroom either. Parties to the ICC are considering whether and how to amend the Rome Statute to include the crime of aggression -- the unlawful use of military force. Our ability to shape the court's approach to this crime is limited unless we take prompt steps to play an active role.
The unspoken reference here is obviously to Iraq. Regardless of what American legislators think of the war in Iraq, or of future use of preventive warfare, none of them want the United States to be brought to court over it. Rather than merely provide fodder for those who instinctively contend that the ICC is hopelessly heading in the wrong direction, this development is, as Kaye suggests, all the more reason for the U.S. to join the Court. The only way to convey one's interests, as we seem to repeat ad nauseam here at UN Dispatch, is by showing up and participating.
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Arrest warrant issued for President Omar Hassan al-Bashir of Sudan

From the NYT:
Judges at the International Criminal Court have decided to issue an arrest warrant for President Omar Hassan al-Bashir of Sudan, brushing aside diplomatic requests to allow more time for peace negotiations in the conflict-riddled Darfur region of his country, according to court lawyers and diplomats. It is the first time the court has sought the detention of a sitting head of state, and it could further complicate the tense, international debate over how to solve the crisis in Darfur.
For some background, here's a 2008 video of Bashir dancing in Darfur:
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Beware the “Violating Sovereignty” Trope

Given the prevalence of the myth with regards to the International Criminal Court (ICC), I probably shouldn't be surprised at the silly paranoia unleashed by this Washington Times editorial. In brief, the editorial recycles the bogus claim that joining the ICC would be tantamount to relinquishing U.S. sovereignty, while adding some entirely specious claims -- interspersed with petty potshots -- that the Obama Administration has "provide[d] a wholehearted endorsement" of the Court and has "gone further than any other previous administration in empowering the ICC." Notwithstanding the historic support that the Bush Administration demonstrated for the ICC in its final months in office -- at least by the standards set by his first term, during which he "unsigned" the treaty establishing the Court -- the new president has categorically not "endorsed" joining the ICC. In fact, while he has stressed the importance of the Court's work in Darfur -- which the Times editorial also, seemingly unwittingly, praises -- and while there may be hopeful signs that his administration is more open to negotiating the treaty than its predecessor, Obama has been careful to take exactly the cautious step that the Times advises, expressing no intention to join the Court immediately. No, what is more disturbing than the editorial's errors in fact is the careless way with which it flaunts the rhetorical victory that ICC opponents have unfortunately achieved over the years. By promulgating fears that signing international agreements and joining international institutions will ipso facto "transgress the nation's sovereignty" and undermine its security, these voices have sealed their identity as protectors of universally esteemed concepts like sovereignty and security, while casting the ICC in the role of the villainous usurper of these values. The image this rhetoric conjures is one of "tying America into another international knot," a reluctant and painful decision that conveys no benefits and brings only headaches -- or, at the myth's most frantic, a practical invasion of the homeland. The coup of this nefarious messaging strategy lies in the direct (and entirely fabricated) opposition that it creates between U.S. interests and those of the ICC. Rather than acknowledging and working within the common goals and benefits of the two -- bringing war criminals to justice, say -- opponents instead choose the route of fictitious fear-mongering, playing on imaginative extreme scenarios to create a world where the purpose of the ICC is not to prosecute crimes against humanity, but -- in an almost laughable bit of hubris -- to insidiously corrode America's power, freedoms, and way of life. The example chosen by the Times editorial is proof of how fanciful this caricature has become.
Some of the world's most egregarious human-rights violaters have called for indictments against a U.S. president, military leaders, corporate executives, and others under outlandish interpretations of "law."
So, because Hugo Chavez spouts anti-American rants, President Bush, General Petraeus, and Bill Gates -- and others! Get that? Maybe you! -- are going to be hauled before The Hague. Unfortunately for those who have peddled such a fantastical agenda, the ICC operates on the codes of international justice -- not the whims of bloviating dictators.
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Highlights From The First Trial at the International Criminal Court

The ICC prosecutor made his opening statements today in the case of Thomas Lubanga Dyalo, a Congolese militia leader accused of using child soldiers. Lubanga has the dubious honor of being the first-ever case tried before the International Criminal Court. Over the course of the next year, the prosecution will call 30 witnesses--including former child soldiers--who will to testify to Lubanga's guilt. The trial, though, almost never happened. There were significant prosecutorial missteps early on, including accusations that the prosecutor did not turn over potential exculpatory evidence as is required. The judges, though, decided to let the trial commence. A Bolivian, British and Costa Rican judge will preside over the hearing. This video of highlights from today's hearing--including an extended excerpt of the prosecutor's opening statement--just landed in my inbox. Great to see that the ICC people are new media savvy.
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This is what a modern day international war crimes tribunal looks like. Get used to it. The ICC's work is just beginning.