U.S. Mission to International
Organizations in Geneva

The institutions that have delivered justice in those cases were temporary ones, and their work is coming to a close. As you may know, the United Nations approved plans in 2003 for the Yugoslavia and Rwanda Tribunals to complete their trials by the end of 2008 and their appeals by the end of 2010. Those deadlines, appropriately, have slipped a bit, but we are now in a situation where the first instance judges will conclude almost all of their trials this year and the appeals judges will conclude their work by the end of 2012. As for the Special Court for Sierra Leone, the court in which I was the most recently involved, as chief prosecutor both of the cases in Freetown and that of Charles Taylor in The Hague, all of the cases in Freetown have been concluded, both in trial and appeal, and all that remains is the conclusion of the Taylor trial in The Hague which is anticipated to occur this year, with an appeal being resolved by the middle of 2011.

The question then is what will be the future of international justice. What will it look like and what will be the role of the United States?

Certainly the future of international justice involves the International Criminal Court which has now been joined by 110 nations but of which the United States, as you know, is not a party. Having participated actively at the Rome Conference in 1998, we did not then support the treaty because of our concern that a prosecutor who might not be accountable would perhaps pursue politically-motivated cases against American citizens who were involved in providing security across the world. President Clinton, as you recall, signed that treaty on the last day of 2000, but indicated that he would not be submitting it to ratification. President Bush during his first term took, I think it’s fair to say, a negative view of any participation in the ICC, and legislation passed in Congress that prohibited any kind of direct funding of the ICC. In 2002, Congress passed the more widely-known American Service Members Protection Act that did restrict assistance to the ICC in a number of ways, but subject to certain very important exceptions. However, by 2005, after the atrocities in Darfur that President Bush and President Obama have described as genocide, the United States did not veto, and effectively accepted the referral of that case by the Security Council to the ICC. Thereafter it provided support for that effort and by 2008 became an active leader of the opposition to any efforts to stop or stall that investigation through deferral under Article 16 of the ICC Statute by action of the Security Council.

With the election of President Obama, consideration and review of our ICC policy has occurred within the administration. I’ve been involved in this process, which is not yet complete, but it already has led to our decision to participate in observer status in ICC institutions, a right that we have by reason of our participation in Rome. As you probably know, in November 2009, State Department Legal Advisor Harold Koh and I led the US observer delegation at the ICC Assembly of States Parties in The Hague. In a speech to the Assembly I stated our current position with regard to the court and expressed our strong willingness to participate at the Review Conference in June 2010 in Kampala, particularly in what is called the stock-taking exercise which is an effort to ensure that the ICC is more effective in taking on cases involving atrocities–of genocide, war crimes, and crimes against humanity. At the same time we have been engaged in a review as to our involvement in the future in the International Criminal Court. I think it is fair to say that this review will not result in a decision by the administration to submit the ICC Treaty for ratification. The United States always takes a very long time, if you’ve followed our history, to consider international treaties and the process by which they have to be approved is a very difficult one involving two-thirds of the Senate. A decision certainly has not been made. It is not a question of when, it is a question of if, and that will be a matter for the future. At the present, however, we will be considering ways in which we may be able to assist the ICC, consistent with our law, in investigations involving atrocities. But exactly whether we will do that, and how and when we would do it, is a matter that remains under review.

In any case, we have to also recognize that the International Criminal Court, even if it becomes many times more effective than it presently is, will only handle a fraction of the cases involving atrocities in the world. It is a principle of the ICC and its statute that the first responsibility for handling and for bringing accountability for these atrocities is in national systems. We believe very strongly that the future of international justice lies predominantly at the national level, and that we want to work to make sure that countries have the capacity to take on these cases themselves. In many times in many parts of the world that may require international assistance and participation. It is in those efforts that the War Crimes Office is most directly involved, even as we continue our assistance to the tribunals that have ongoing work and that are completing their work such as the Yugoslavia, Rwanda and Sierra Leone courts.

We are also looking for accountability in other places. As you probably know, the US Secretary of State published a report, for which our office was responsible, in October 2009 regarding allegations of violations of international humanitarian law in Sri Lanka. Our office has the statutory responsibility for collecting information about situations in the world where atrocities are unfolding and providing that information to the President so that he may consider what action is necessary to bring those who bear responsibility to trial before an appropriately constituted tribunal. This remains an enormous challenge in the world. In the course of the four and a half months that I’ve been in this post, I’ve now taken seven trips abroad –- five to Europe and two to Africa, and will soon travel to Asia. In Africa the country where we find the greatest challenge is in the Democratic Republic of Congo, a jurisdiction where by self-referral the ICC is involved and has three people presently in trial and a fourth under an arrest warrant and not yet arrested. This is a country which its own Minister of Justice and other officials acknowledge suffers from enormous violations of international humanitarian law. Most recently we saw reports of what occurred even this last year in the DR Congo with over 1400 targeted killings of civilians and 7,500 rapes that were documented during the course of armed conflict between government forces and the forces of the FDLR. We are working very hard with other countries to assist in strengthening accountability in the DRC, to send a clear message that these kind of crimes cannot be tolerated. The DRC shows that that even with the ICC involved, and indeed when the only individuals in custody at the ICC are Congolese, we have to recognize that international justice cannot do the whole job. It is a piece of the answer, and perhaps for the more senior officials it is appropriate, but most of what needs to be done is at the national level. It is in those efforts that we are concentrating our resources and our time even while we ensure that at the international level there are institutions available that can take the cases when there’s no willingness or capacity to do them at the national level.

With that general opening, let me go ahead and yield to your questions.

QUESTION: You indicate that you see much of the future for the kind of hybrid tribunal that’s working in Cambodia, which is a mixture of both international jurisprudence and local jurisprudence. I ask particularly because in Cambodia it’s worked with considerable [controversy]. Local jurisprudence is open to charges of corruption and political direction, And the international support has been conspicuously lacking in terms of funding for that tribunal. So is that a model that can be built on and developed? Or has it basically been seen in Cambodia not to provide the solutions needed?

AMBASSADOR RAPP: Each of the situations in which hybrid tribunals are involved vary and their effectiveness varies. There are a lot of lessons to be learned from the experiences. I was, of course, involved in the Sierra Leone court which was a hybrid tribunal which was more international than national. The Special Court was not within the Sierra Leone justice system as is the case of the Cambodia tribunal. It had a majority of judges appointed by the United Nations and a prosecutor appointed by the United Nations. But is did have a staff that was 60 percent Sierra Leonean. That institution has been quite effective. Its most challenging problem has arisen because it was limited only to prosecuting those with the greatest responsibility, and at the same time there had been an amnesty granted under the Lome peace agreement that essentially prevented national prosecutions of anyone else who committed crimes before July 1999 which is when almost all the crimes were committed. So the Special Court has been the only court that has had the jurisdiction, the legal competence to take on cases. That has created an impunity gap and we have not seen the sort of relationship that I think is the ideal one where an international institution or even a mixed institution also works to develop the national institutions so that they can try the lower level or mid level offenders. In the process this also strengthens that national system’s capacity to try ordinary cases that do not involve atrocities. This helps reinforce the rule of law.

Our general view is that hybrid institutions, properly negotiated with a clear understanding of what standards need to be followed and without political interference, are a very useful method, a less expensive one, one that also brings the justice much closer to where the crimes were committed, where the witnesses can more actively participate, where affected people can see what is happening. At the Special Court we also by benefited from having all our cases tried in Sierra Leone except for the Taylor case. We developed a very close relationship with the general public and an outreach program where all of us spent many days of the year on the road describing the court to the general public, sometimes in very remote areas. This was so successful that a survey of 10,000 people taken not long ago found that 90 percent of the population in Sierra Leone knew about the court and 80 percent thought it had been a force for peace and stability. People whom I met at these meetings were quite informed. Even school children would quote from the statute of the court. That’s an amazing thing, but that was a benefit of having a hybrid tribunal and having its trials in place where the crimes were committed. We know there is often criticism, usually from the accused person, about international cases being tried far from their home countries. Some people assert that the ICC is anti-African. Even though the ICC has 30 African countries as members, Africans as judges, and Africans as key officials like the Deputy prosecutor, they try to create the impression that these are European trials of Africans, when they are not. But the fact that the ICC is so distant, and because it not an institution that has integrated or coordinated itself with national systems where the crimes occurred, has weakened the support and cooperation that it has received.

So for that that reason we think that in the future will see more mixed tribunals. In these courts it may not always be necessary to have a dominant position for the internationals. Obviously the situation in Cambodia has given a lot of people concern because of the dominance of the national actors, but to some extent I think they have worked through these problems with their rules and practices so that we have become more encouraged about the Cambodia tribunal. We did provide financial support for it last year. It is under active consideration whether we may contribute as much as $5 million to the court in the coming months, but that decision has not been made yet. The creation of an office to deal with allegations of corruption and the successful conclusion of the Duk trial has caused there to a higher opinion of the ECCC as it is called, the Extraordinary Chambers of the Courts in Cambodia.

There are other places where we’ve seen success, certainly in the War Crimes Chamber in Sarajevo where international judges have recently extended but under a plan where their roles will be more limited, with perhaps only one each sitting in each appeals chamber. Having international judicial participation and international prosecutors has increased the effectiveness of that institution, increased the perception that there’s no possibility of ethnic or national bias. The international judges have benefited from sitting with national people who understand the local legal traditions and systems and the nationals have benefited from the internationals’ perspective in regard to the law of armed conflict and humanitarian law generally.

So we think that this kind of model can be successful in the future. We see it as consistent with the ICC as a way in which cases can be handled at the local level under the principle of complementarity and where one only needs to go to the purely international court for leadership cases or when it is just not possible to establish some other means to accomplish accountability.

QUESTION: Sir, one of the reasons why President Clinton signed the statute [of Rome] was to have the possibility to participate in the shaping of the ICC. So this signature was canceled by his successor, which is quite unique. So how does the United States now feel the legal statutes? Not who are participating in an observer status. I think a new conference is coming. You want also to participate in the substance. So what is the legal and the practical consequences of this [signature] status of the United States?

AMBASSADOR RAPP: Well, our rights as to ICC arise under international law from our participation in Rome. We signed the Final Act. That does not mean that we voted for the treaty, but we signed the document that reflected what had occurred at the conference. As a participant and as a signatory of the final act, we have the same right as do other countries like China and Russia, to be an observer in the Assembly of States Parties, and at the Review Conference. We had not exercised that right at any time before November of 2008. Obviously the Assembly of States Parties only began its work when the court went into existence in 2002. By that point the Bush administration had decided not to participate. But I was recognized by the President of the Assembly to give a speech to the Assembly on November 19th of last year because the US was present in observer status. We were extremely pleased by the reception that the US delegation received in The Hague. It was clear from our discussions with the officials of the Assembly of States Parties that we are entitled to participate and they welcomed our participation.

Now we can only debate, and we speak after others have spoken. But we can talk informally to delegates and conduct bilateral discussions. We can listen and learn, which I indicated is what we want to do. We recognize the fact that not having been there for eight years and not having participated in the working groups, we have a lot to learn and should not be lecturing others. We want to be a constructive participant. Of course, we do not have a vote. Other observers like Russia and China do not have a vote either, but they have been going all the time.

So that is how we are approaching this issue. In our discussions we will be expressing our concern about the ability of the court to successfully pursue cases of the kind and quality that the international courts for Yugoslavia and Rwanda have done. These include cases like those in the Democratic Republic of Congo which I have mentioned where two trials are now ongoing, and the Kony case in Uganda, and possible future situations that the court may become involved in such as Kenya. We are also considering whether under our law, and consistent with our foreign policy, we can or will assist the prosecutor or registrar on such cases.

In the debates of the Assembly of States Parties it is our intention there to make our views known, but in particular to be involved in the stock-taking exercise to strengthen the court.

One of our major issues for the Review Conference will be the consideration of the crime of aggression. And I will be glad to answer any questions about our position on this issue. As you know, the statute did provide that aggression was one of the crimes over which the court would have jurisdiction, but it did not define the crime of aggression, and it left that to the review conference to be scheduled seven or eight years after the court came into being, and that’s the review conference that will occur in Kampala, Uganda, between May 31 and June 11, though the issue can be considered thereafter at any other session of the Assembly of States Parties.

We do have concerns about the definition that has been proposed, and about the triggering mechanism that would be needed for any investigation or prosecution of aggression. As I explained in my intervention at the Assembly of States Parties, this is an issue that we wish the state parties to consider very carefully, because in our view, if they make mistakes in this area it may politicize the situation with the court and make it much more difficult for it to succeed on its major work in the area of war crimes, crimes against humanity, or genocide.

QUESTION: Does the U.S. feel as a signatory state or not? Because of the difference with other countries who signed and did not ratify, the signature of Clinton was handled by Bush. So are you feeling as a signatory state or not?

AMBASSADOR RAPP: As a matter of international law we signed the treaty. There was a later declaration by Under Secretary of State Bolton which was reflective of the fact that signatories are expected not to act contrary to the objects and purposes of an international convention or treaty, and the position in the Bush administration was that some of our acts might be considered to constitute such conduct and therefore we wanted to make it clear that we did not, that the Bush administration did not, believe that we were bound to act as others expected a signatory to act.

But as a matter of international law, we retain the effective rights of a signatory of the treaty. I recognize that when President Clinton signed it he talked about the importance of our signature in the future shaping of the ICC, but fundamentally because we participated at Rome and signed the Final Act, we had the right to participate as an observer, whether we signed the treaty or not. The same rule applies to other countries that never signed the treaty, like China, but who can participate as observers.

QUESTION: My question is on something slightly different but I’d like to take advantage of your expertise on these issues.

In Latin America there are several [truth] and reconciliation commissions that are happening still, that having finished their work some of them are going to begin actually working now. How important it is at this moment still to have truth or convictions regarding torture that is basically a crime against humanity, be solved, still even 25 years after dictatorships finish?

AMBASSADOR RAPP: Well, it’s my belief and certainly the position taken by this administration that accountability is important because there needs to be recognition that these crimes were committed and there needs to be the establishment of the truth as to who was responsible. We also see that it is often a fundamentally necessary element to reconciliation in a society. If you do not use these kinds of processes, and they can be uncomfortable and a difficult exercises, it has certainly been our observation in history that these things do not go away. They often form the basis for resentments or hatreds, for people’s perception that they were in fact victimized and that they are therefore justified in taking action against the children or the grandchildren of the people that did it to their kin. There is also the possibility that over time people will deny what occurred and effectively create a lie in history, which also has the potential, even after people die, after all the witnesses die, to create difficulty and schism. We have certainly seen that situation, not to talk about specifics because that leads us into other controversies, but I know we can think of cases whether the question of whether there was was a genocide has continued to motivate countries and even can motivate people, as it did in a particular instance in the last generation to commit terrorist acts because they thought that what happened to their people had not been recognized.

So we think these issues do need to be resolved. Just as in Cambodia we are dealing with something that happened between 1975 and 1978 which is now at least 32 years ago, it is appropriate to look back and to resolve these issues elsewhere. Now how countries do this is fundamentally up to the political processes in those countries, particularly once there is full democracy and public participation so that the people can decide.

It is now generally accepted in the world that serious violations of international humanitarian law should not be amnestied, and should not be completely forgotten, and that there should be a possibility of justice in those cases. But there are different approaches. In terms of our policy, we recognize that sometimes it may be appropriate to encourage people to come forth who were involved in these crimes and for them to provide a full accounting of information, the whole truth on the public record. Just as prosecutors sometimes give immunity to people who provide that kind of assistance to justice, it may be, on a case-by-case basis, appropriate that the people who come forth receive no further punishment. On the other hand, if the people responsible for the crimes are unwilling to participate in the process, then it is my view that there needs to be another way to hold them to account through criminal justice.

We ae watching closely what is happening in various countries in the Americas that went through periods of torture and disappearance and horrendous violations of human rights, and are following cases now in court in a number of countries as well as various peace and justice processes. These are entirely appropriate and necessary, but of course in every country there is a debate about how sufficient they are, how complete they are, and obviously this an ongoing process. Thus far there has not been any real call for internationalization though as you know the situation in Colombia is one where the ICC has opened a preliminary inquiry to determine whether the system is meeting the standards of complementarity and if it does not meet those standards, there would be the possibility the prosecutor could step in and seek admissibility of a case before the ICC. But fundamentally, as we have said before, these matters need to be handled at the national level consistent with national values and within a democratically created process. We are watching with great interest the development these processes in the Americas.

QUESTION: I was invited by the subject detainee, he was on the invitation and as you probably know, now in Switzerland we have quite a living debate whether we shall accept two [detainees] from Guantanamo in our country. We already accepted [detainees. This debate, all the time there is the question why don’t the U.S. accept the release of those [detainees] and accept them in their own country? They provoked the problem and they had the result themselves.

AMBASSADOR RAPP: First of all, I should note a small bit of bureaucratic history. My office, the Office of War Crimes Issues, had direct responsibility for the Guantanamo issue in terms of resettlements and repatriations from roughly 2002 until May of 2009, which was before I arrived. Now there is a separate office under the Secretary of State that is handling that issue specifically. So I am not directly involved in the question of resettlement and repatriations.

I think as you know, efforts were made that could have provided for resettlements in the U.S., but thereafter Congress enacted prohibitions on such moves that certainly made the negotiation process of resettlements with other countries more difficult for my predecessor. The process of resettlements or repatriations involves an evaluation that these persons are not going to be a threat. This process is ongoing and has actually resulted in almost three-quarters of the persons that were once at Guantanamo either being repatriated or resettled, and it continues. As you know, the President made a pledge to close Guantanamo but it has not been possible to do that within the one year deadline, but it remains a high priority for the President. The cases have now been fully reviewed in terms of which case could be criminally prosecuted under our laws, and which individuals could be eligible for repatriation and resettlement. A decision will also be made to select a place other Guantanamo to which the individuals who are not repatriated or resettled will be transferred. There will announcements about that process in the very near future. Meanwhile, the office that has responsibility for the repatriations and resettlements is continuing with negotiations of the kind of which you’re familiar, and making sure that those that do leave Guantanamo do not present a threat to any country in which they would go to live.

QUESTION: Two things. Can you tell us about your visit here to Geneva? I understand you are visiting the ICRC. What you’re discussing with them with regards to war crimes, fraud, and also [inaudible] issues related to war crimes perhaps by Americans in different parts of the world, whether it be Guantanamo, extraordinary [renditions], secret prisons, and so on.

Secondly, on that same theme, the U.S. obviously has a justice system that’s far more vigorous than Sierra Leone or Cambodia or any of the places you discussed, but could you ever imagine a situation where an international judge would be useful in an American case that dealt with human rights law or were possible war crimes violations?

AMBASSADOR RAPP: First of all in regard to the discussions at ICRC, keep in mind that as a contracting party of the Geneva Conventions the United States conducts regular meetings with the ICRC under conditions of confidentiality. Those that may involve actions of the United States are often dealt with in Washington. As far as my meetings here, I do not want to go into any great detail except to say that I will be raising an issue with them because of our office’s direct involvement in the Sri Lanka situation, and that is the access of the ICRC to the internally displaced persons, and to persons that might be viewed as ex-combatants of the LTTE, as well as general discussions about accountability and what’s occurring in Sri Lanka. The United States government, after the issuance of our report, has called for an accountability process to be developed in Sri Lanka and we are watching the work of an Eminent Persons Group that was appointed by President Rajapaksa. Of course we are awaiting the results of the election to the presidency which will occur next Tuesday as to whether President Rajapaksa will be re-elected or General Fonseka will be elected. The Sri Lanka President will be making decisions in this area which are very important. There will be parliamentary elections in April. So it remains very high on our agenda to press for accountability at the national level consistent, as I have said, with the idea of complementarity.

In regard to prosecutions at the national level in the USA, we have a constitutional system that establishes who who can be judges and generally these positions are restricted to American citizens. As far as our legal process is concerned, as far as the position of the Obama administration, we will in the United States hold people to account for violations of international humanitarian law. We have a tough and vigorous system. Questions have been raised regarding enhanced interrogation and what is happening in the United States regarding the policy and practices adopted during the Bush administration that were explicitly rejected by President Obama. As you know there is an independent counsel appointed by Attorney General Eric Holder who is looking into the matter. That work is not yet complete. If there were cases that could be pursued, they would involve very complex issues as to whether people could be held criminally liable, at what level there could be individual responsibility, and whether the causes of death or injury could now be proven. A number of other issues would also have to be evaluated. Knowing Eric Holder, and being familiar with the attorneys who are involved, this a genuine investigation that I think satisfies the standard of complementarity if we were a member of the ICC.

The position of this administration and this government is that we will conduct ourselves in terms of our adherence to international law in such a way that we will never give cause to any legitimately motivated prosecutor to bring a case or to seek admission of a case against an American citizen in an international court.

I did want to say something briefly on the crime of aggression. I expected a question to be raised about the US position. This is a difficult issue but about which we have serious concerns. If the crime of aggression were defined as has been proposed, almost any border crossing in the world, like those recently involving Colombia and Ecuador or Cameroon and Nigeria could end up resulting in referrals of crimes of aggression to the ICC prosecutor. The court would find itself with some countries saying this is a serious matter; other countries saying that it is not. If the prosecutor took the a case he would weaken the court; if he did not take a case he would weaken the court. In many situations the alleged act of aggression might not involve atrocities or loss of civilian life. Because of the way the definition is framed in the proposed amendment, any manifest act, not even a war of aggression, not even a serious act, could become a subject for the court.

Our position is that the United Nations Charter provides in Article 39 that the Security Council must determine whether an act of aggression has taken place and then it can proceed to consider what is appropriate to do in response to the act. This is essentially what what the Security Council did in 1990 when it almost unanimously, if not unanimously, found that an act of aggression had occurred in Kuwait. We think that that provision of the UN Charter needs to be followed because the ICC Statute explicitly provides that it is to be read consistently with the UN Charter. This would mean that before any case could be pursued for the crime of aggression, there would have be first and foremost a determination by the Security Council that aggression had in fact occurred. That is the position that we are urging. Of course, we are not a state party but we understand that this position is consistent with the views of the United Kingdom, France and others, and should be considered before the conference makes a decision.

Our major concern it that if the court gets into this area it will weaken its ability to deal with the atrocities to which it must respond in a much more effective way if we are going to make sure that men, women and children in this world are not targeted for murder, rape or mutilation.

QUESTION: Doesn’t that effectively give the veto-holding members of the Security Council essentially impunity from any investigation by the International Criminal Court? Because they would essentially be able to detail any determination that they committed an act of aggression?

AMBASSADOR RAPP: This is a provision of the international system that exists. As the aggression amendment is proposed, the nationals of countries that do not explicitly ratify it will not be subject prosecution, so it is unlikely to be uniformly applied in any case. But to the extent that it is applied against anybody, it should only be in egregious and serious cases like the events in 1990 in Kuwait or events like those in World War II that gave cause to the allies to prosecute the Nazis for waging a war of aggression. Unless you have that kind of situation, we do not think that it should take up the time and energy of the court that was established to deal with atrocities against civilians.

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