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Briefing On The International Criminal Court Conference in Kampala, Uganda
June 4, 2010


June 2, 2010

Stephen J. Rapp
Ambassador-at-Large for War Crimes Issues

Harold Hongju Koh
Legal Advisor U.S. Department of State

Via Teleconference
Kampala, Uganda

OPERATOR: Welcome. And I would like to thank you all for holding and inform you that your lines are in a listen-only during today’s conference until a question-and-answer session. At that time, to ask a question, you’ll press *1 on your touchtone phone.

And I’d now like to turn it to Gordon Duguid. Sir, you may begin.

MR. DUGUID: Thank you very much and welcome, ladies and gentlemen. Thank you all for calling in today. We are on the record today with the State Department Legal Adviser Harold Koh and Ambassador-at-Large for War Crimes Issues Stephen J. Rapp. They are in Kampala, Uganda working on the International Criminal Court Conference and are happy to take your questions on that subject. As the question comes to you, please remember to identify yourself and your media organization.

We have just about 25 minutes, so please limit your questions to one and that way we can try and get everyone in. Our participants will make a brief statement and then we’ll go to questions.

Professor Koh, would you like to begin, please?

MR. KOH: Yes, hi. It’s Harold Koh and Steve Rapp here from Kampala. We are the co-heads of delegation for an interagency group from the U.S. Government that’s attending the Review Conference for the International Criminal Court. It started on May 31st and it runs through June 11th.

For those of you who are not familiar with the history of the U.S. relationship with the court, in 1995, President Clinton endorsed the concept of an international criminal court. In 1998, in the first conference at Rome, the United States did not sign the statute that was developed there, the charter of the court. But by 2000, President Clinton had signed the Rome statute. In 2002, the Bush Administration sent a document, so-called, unsigning that acceptance. And then in 2005, the United States decided to allow the adoption of a resolution at the Security Council referring the situation in Darfur to the ICC prosecutor, Luis Moreno Ocampo, who’s an Argentinean national. By 2008, the Bush Administration had accepted the reality of the court – that’s their term – and steered away from, what they called – quote – “unnecessary wrangling over the issues that divide the ICC supporters and opponents.” And in 2009, Secretary Clinton said – quote – “We will end hostility toward the ICC and look for opportunities to encourage effective ICC action in ways that promote U.S. interests by bringing war criminals to justice.”

So we are here as part of three broader U.S. foreign policy initiatives. First, a broader diplomatic agenda of principled engagement with international institutions which you’re familiar from – with from our relationship with the Human Rights Council, the Copenhagen climate change talks, and a number of other multilateral diplomatic settings.

Secondly, we’re here as part of our long-term commitment to promoting accountability by supporting the responsible development of international mechanisms of criminal justice, the Yugoslav tribunal, the Rwanda tribunal, the Sierra Leone tribunal, and the Cambodia tribunal.

And third, we are here because of our awareness, as the President said in his Nobel Prize lecture, that at times the use of force must be lawful and necessary in the 21st century and, therefore, the discussion of the crime of aggression, which is being proposed as part of the amendment package, is of particular interest to us.

There are two items on the agenda essentially. There are some other amendments as well, but the key is stocktaking, evaluating the strength of the court in – after 12 years of history. The second is the crime of aggression and whether that crime ought to be adopted by – in whole or in part.

Yesterday, Ambassador Rapp gave an intervention on behalf of the delegation. It was our first intervention. We had previously attended introductory meetings in the Netherlands last November and in New York in March. And I’ll let Stephen talk about the presentation that he gave.

AMBASSADOR RAPP: And our presentation at all of those sessions emphasized the strong support of the United States Government for accountability for genocide, war crimes, and crimes against humanity; our strong support of the Yugoslavia, Rwanda, Sierra Leone courts and other courts in which I myself and so many other Americans were involved; and a recognition that in the future, when it comes to situations where mass atrocities are committed and where there’s no possibility of achieving justice at the national level and you need to go to an international level to have accountability, it is the ICC where that will happen, that the rest of the world is unlikely to create sort of stand-alone institutions, which is the pattern from the 1900s.

For that reason, we want to look for ways to engage with the ICC to make sure that it’s effective. And the four cases that it’s taken on in Africa, through the end of March when we spoke at the conference in New York, in the DRC, in Uganda, in Sudan, in the Central African Republic, are situations that involve mass atrocities against civilians, situations in which it was far more dangerous to be an innocent woman or child than it was to be a soldier.

As the President said last week – and I quoted this in my speech yesterday – in signing bipartisan legislation to assist northern Uganda in recovering from the effects of Joseph Kony and the Lord’s Resistance Army, we support efforts to bring Joseph Kony and the leaders of the LRA to justice. That means for those that are indicted at the ICC that they need to be brought to trial in The Hague. For others, and there are many others and there are some that have been brought here from Congo to Uganda, they need to face justice at the national level. And through our aid and assistance programs, not just now but for the last several years, we’ve been providing assistance to their national justice systems here and elsewhere.

And so the message that we’ve been delivering is support for international justice when it’s focused on atrocity crime and, at the same time, a renewed focus on making sure that our aid and other aid is coordinated so that justice can be delivered at the local level, at the national level where it will have, at the end of the day, a better effect and be closer to the victims and the affected communities.

Harold. Or I guess we’re ready for questions.

MR. KOH: We’re ready for questions.

MR. DUGUID: Thank you, gentlemen. And operator, we are ready to take questions. May I remind our journalists to please identify yourself and your media organization just before you ask your question. Thank you.

Operator, we’re ready.

OPERATOR: Thank you. Again, at this time, if you’d like to ask a question, please press *1 on your touchtone phone. You’ll be prompted by the automated service to state your name to help with pronunciation. Again, it’s *1 to ask a question, *2 to withdraw your question. And one moment, please.

The first question comes from Matthew Lee. Please state your affiliation, sir.

QUESTION: Hi, this is Matt Lee. I’m with the AP. Harold, if I could, can I ask you about this report on drone – on the targeting – targeted killings that’s come out today from this NYU professor, the UN expert? I apologize for this being slightly off topic, but I know you’ve talked about this.

MR. KOH: Yeah, it is. I haven’t read it yet because I’m over here. I think you’ll get a press statement from Washington.

QUESTION: There is – you don’t want to repeat what you said in your speech to the American Society of International Law?

MR. KOH: You can go and quote that if you want. That was on the record, too.

QUESTION: All right, okay.

OPERATOR: Again, if you’d like to ask a question, please press *1. At this time, I show no further responses. I do have one that just came in. One moment, please.

It comes from Lachlan Carmichael. Your line is open. Please state your affiliation.

QUESTION: Hi, it’s Lachlan Carmichael from AFP. And I just wanted to ask what are the obstacles remaining for the U.S. joining the court, and doesn’t the fact that you’re not part of – a full-fledged member of the court, doesn’t that undermine your support for calls to bring to justice people like Joseph Kony?

MR. KOH: Well, what are the obstacles? Our signature remains on the statute. There is a letter that was filed in the name of John Bolton in 2002, which said the U.S. didn’t have an obligation to act consistently with the object and purpose of the treaty. To become bound by the treaty, we would need to submit it for advice and consent. Nevertheless, a number of important countries are observer nations, including three members of the Security Council – the United States, Russia, and China – and it’s possible for us to make pledges of support. And indeed, we did yesterday. We’re an important observer nation and our cooperation with the ad hoc tribunals has been very critical to their success.

So it’s obviously a process that will take some time. We should make clear that there is no legal decision involved in our being here. It’s not a decision about whether to change any law, to ratify any treaty, or to change any statute or change any other agreement. But it is part of a broader policy, as I said, for closer engagement with this important international institution.

AMBASSADOR RAPP: Yeah, let me go ahead and talk about our pledges, and keep in mind this is just the beginning of the process of engaging with the court. The first was on this important issue of complementarity. And the ICC is only a court of last resort. In fact, it was one of the issues on which the United States was very persuasive in Rome to understand that what we really want is to strengthen national systems and to have these cases prosecuted close to the victims and the affected communities; and only when there’s no will or capacity should they go to the international level, and then only the most serious offenders with the national system being reinforced to handle the rest of the accountability issue. So in that regard, we renewed our commitment to the rule of law and capacity-building projects in which we have ongoing in each of these – in each of the situations that we discussed earlier.

Tomorrow evening, we’re holding a session here that we’re sponsoring with our Norwegian friends and with the Democratic Republic of Congo Government about strengthening accountability in the DRC, which is a high priority of Secretary Clinton. We visited Goma in August with the thousands of rapes a month being committed in two small provinces of Eastern Congo. The need for decisive action at the national level against these crimes has never been stronger. And we want to reinforce that message with our aid and assistance coordinated with other countries.

We also – in terms of political and diplomatic support for the court, in the President’s statement on the 25th of May called for the indictees in the LRA case, Joseph Kony and his key lieutenants to be brought to justice. And we’ll be following up now with the prosecutor and with the registrar of the court to search for other ways in which we can contribute to justice in these cases.

As Harold said, when you look at what’s happened at the ad hoc tribunals, at the Yugoslavia tribunal, obviously, America was a dues-paying member of the UN and was paying about a quarter of the overhead at those courts and had a lot of Americans on staff, but of critical importance was the assistance that we provided with the law enforcement agencies and intelligence sharing and assistance to victims and other things. Whether we can provide all of that in regard to the ICC is a matter of study under our law, but we’re going to work to try to find ways that we can, consistent with our law, support these prosecutions to make sure that people that are committing these mass atrocities are held to account.

MR. KOH: One thing that I should just add, Lachlan, is that it’s hard to emphasize how happy countries are to see us here. They felt very distressed at the period of U.S. hostility to the court. They’re very excited about the Obama Administration and its renewed commitment to international law and engagement, and they’re just thrilled that we’re here as an observer country.

AMBASSADOR RAPP: And at peril of being accused not to answer the question directly, I mean, if you read what President Obama said during the campaign and Secretary Clinton, they recognize that the United States takes a long time when it comes to international treaties and conventions and studies these things very carefully and a long track record before presidents of either party put these matters forward in terms of U.S. ratification. And we’re nowhere near that point. What we’re here talking about is ways that we can support this court constructively when it works in our interests. And so far, in the cases that it’s taking on, they are in our interest and the interest of all of humankind.

QUESTION: Well, thank you.

OPERATOR: Our next question comes from Charley Keyes. Your line is open. State your affiliation, please.

QUESTION: Hi, Charley Keyes, CNN. Thanks very much. Gentlemen, I was wondering what the response was when you spoke out against the adoption of the crime of aggression, and also whether you could speak to that earlier point about how one of your roles was to evaluate the strength of the criminal court overall. Thank you.

MR. KOH: I think our view, Charley, has been widely shared, not just by many other states parties – many of the states parties, but also by many human rights nongovernmental organizations. What we have analogized this to is the court as a wobbly bicycle that’s just starting to get its legs and roll forward, and the question is whether to add a crime of aggression at this moment might put too much weight on it and transform the nature of its mandate. A lot of other countries have a similar reaction, and many human rights groups, Human Rights Watch, Open Society, a letter that was written by about 40 nongovernmental organizations made clear that this is not the moment, in their judgment, to expand the court’s jurisdiction to include this issue. There’s an op-ed in today’s LA Times that makes that point again, which I think is called a jurisdiction that the court doesn’t need.

AMBASSADOR RAPP: Yeah, I mean, the question for this court is a very stark one. At the moment, it has 13 arrest warrants out. It’s only been able to arrest four people. It has a real challenge when it comes to obtaining state cooperation to bring people to justice that are charged with heinous crimes. It needs to have those arrest warrants executed. People accused it of politics, I think unfairly in Africa. Usually, it’s the people who themselves are subject to its indictments that are trying to make this argument, but its indictments are supported by the broad range of the general population.

But when it comes to the crime of aggression, as proposed here and what’s come out of this working group, it would open the floodgates potentially, at least to request to prosecute in all sorts of situations, that could come up of border crossing, of incidents without even significant loss of life but that affected national honor, borders that are ill-defined, non-international, non-state actors crossing borders and attacking and being given hot pursuit. A variety of situations could come to us and, depending on hat the prosecutor did, he would find himself alienating one group of countries or another and making cooperation even more difficult.

And what we saw – and obviously, I was involved in the Sierra Leone court where it was eventually possible to get Charles Taylor to trial; we experienced with Slobodan Milosevic – when people commit mass atrocities, it’s eventually possible to build up a level of international pressure and also domestic pressure. People are ashamed of having a leader that’s committing atrocities. Eventually, they’re pushed aside and they’re brought to justice. But someone who’s defending their nation’s borders, if the ICC were to proceed with cases like this, it would end up with indictments that it would be impossible to serve and to affect. So I think a lot of people see that, at this stage, this court doesn’t need it.

Additionally, we’re concerned about the fact that there are sometimes situations where actions are needed to protect people from genocide and war crimes and crimes against humanity, and want to be sure that when nations join together to do that they don’t find themselves being prosecuted for those acts.

So a number of issues that were – I raised yesterday in my intervention. Harold will be speaking on Friday. We’re receiving a very, let’s say, positive reaction from a great many people. And some of those that have – without reflecting on this very long – have been coming up to us and saying these are very good questions; these need to be resolved. And there’s no rush for this conference to go ahead and do this. There will be other positive news coming out of the conference. A great session today on resolving peace and justice, on what needs to be done with victims in affected communities; tomorrow, on what can be done with aid and assistance, the national justice systems, and for the cooperation the court needs to get some more people arrested who’ve been accused of atrocity crimes. And a high-level declaration has gone through, calling for a variety of action, so this conference doesn’t need to finalize aggression. And I think everyone is now saying it’s not critical that it be done at any cost. It’s important to study this matter further.

So that’s the kind of reaction we’re getting. On the other hand, the decision has yet to be made. We don’t have a vote. Others are talking about it and talking with us and we’ll be there through the duration.

MR. DUGUID: Thank you, Ambassador. Operator, I believe we have time for one final question.

OPERATOR: Yeah, our next question comes from Andrei Sitov. Your line is open. State your affiliation, please.

QUESTION: Thank you. My name is Andrei Sitov. I’m with the Russian news agency, ITAR-TASS in Washington, D.C. And thank you, gentlemen, for doing this. I apologize for joining the call a little late. If this already has been raised, the issue that I want you to talk about, I apologize, but please answer it anyway.

Two questions: There was this instance where a journalist, a reporter from Reuters, was killed by American forces in Iraq and – my question is do I understand you correctly that in this situation, the aggrieved party needs to file claims with American courts? And what if they do not believe in the impartiality of the American court in a situation like this, which probably is understandable? What other recourse do they have?

And secondly, I don’t know if it’s been raised or not, but we have a situation now where two countries, Turkey and Israel, are disputing the same set of circumstances. Again, what is the legal mechanism here, if it exists at this point, that should be able to resolve this situation? Thank you, gentlemen.

MR. KOH: Harold Koh. Without addressing the specifics of those two cases, I think the delicate fact that you raised highlights two points. The first is if there is an accountability process available in domestic law, the principle of the court of complementarity, as it’s called, suggests that you should seek relief in a domestic court, only bringing crimes of the gravest international concern to the international criminal court.

The second part is that there are uses of force on a regular basis, some lawful, some unlawful, and the real question is in highly-charged political situations. When is it helpful to the situation, and to restoring peace and security, to have that matter prosecuted before an international criminal tribunal? Take the example of the recent sinking of the South Korean ship, the Cheonan. I think most observers believe that to be a lawless act. But most would also agree that in this very volatile political environment, the introduction of a criminal prosecution and an independent actor in that dialogue would not settle the situation down; it could well inflame it.

MR. DUGUID: And Andrei, Gordon here. (Inaudible) will be addressing the flotilla and Israel and Gaza later on in today’s briefing.


MR. DUGUID: And I think I have to thank everyone for their participation at this point. Thank you, Ambassador Rapp and Legal Advisor Koh. Colleagues in the media, thank you for dialing in. That is all the time we have. We were on the record, just to repeat, and I hope we will see you all later in the daily press briefing.

With that, we shall sign off.

OPERATOR: At this time, that will conclude today’s conference. You may disconnect. Thank you for your attendance.