University Times

The United States is unlikely for the foreseeable future to become a signatory of the Rome Statute, a 1998 treaty that established the International Criminal Court (ICC), according to an American diplomat.

“Even though we are not signers of the Rome Statute treaty, we have not been silent in the face of crimes against humanity, crimes that call for our condemnation in the strongest possible way,” said Stephen Rapp, U.S. ambassador-at-large for war crimes issues, whose job is to advise the U.S. secretary of state on policy responses to atrocities such as genocide and war crimes.

Rapp was on campus Jan. 28 delivering a lecture titled “The Role of the United States in International Criminal Justice,” sponsored by Pitt’s Center for International Legal Education.

Although the United States signed the ICC treaty during the Clinton administration, it was not brought to the Senate for ratification as is required by the Constitution. President George W. Bush later “unsigned” it by notifying the United Nations that there would be no attempt to initiate ratification, Rapp said.

President Obama since has indicated that it is “premature” to introduce the treaty, which has been signed by 110 of the 192 United Nations members, to the U.S. Senate, Rapp said.

He cited concerns that United States officials could be subjected to politicized prosecutions and that the U.S. court system is better equipped than the ICC to investigate and prosecute Americans who allegedly commit crimes against humanity, which is the primary focus of the ICC.

But that does not mean this country will cease cooperating with the ICC, including with criminal investigations and witness protection, said Rapp, who in November led the first delegation of American observers to an ICC conference in Rome.

“That gave me an opportunity to address the delegates and talk about our historic commitment to international criminal justice that really dates back to the Nuremberg trials,” Rapp said. “We’ve worked shoulder to shoulder with other states in supporting accountability for crimes committed in the former Yugoslavia, Sierra Leone, Rwanda and elsewhere, to answer these historic, horrific crimes with historic justice.”

Prior to his appointment as ambassador-at-large by Obama in September, Rapp had a high-profile career as senior trial attorney and chief of prosecutions at the International Criminal Tribunal for Rwanda, 2001-2007, and, since 2007, as a prosecutor of the Special Court for Sierra Leone, where he led the prosecutions of former Liberian President Charles Taylor and others alleged to be responsible for atrocities committed during Sierra Leone’s civil war.

During his tenure as prosecutor, Rapp and his colleagues expanded the reach of international criminal justice by achieving the first-ever convictions for sexual slavery and forced marriage as crimes against humanity, as well as convictions for attacks on peacekeepers and for impressment of child soldiers as violations of international humanitarian law.

Rapp also headed the trial team that achieved convictions of the principal operatives of the RTLM radio station and Kangura newspaper in Rwanda for the crime of “direct and public incitement to commit genocide” — the first such convictions for leaders of the mass media.

“That case clearly sets the boundary between speech that incites genocide and persecution, and speech that is protected, and for first time in history to make it a crime against humanity,” he said.

Rapp noted that it was the opening speech at the Nuremberg trials by Supreme Court Justice Robert H. Jackson, chief U.S. prosecutor at Nuremberg, that inspired him to enter the field of international criminal law.

“I try to work Judge Jackson’s quotes into every speech I make, and when I was taking my oath for this job, I quoted from the opening paragraph: ‘The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated,’” Rapp said. “And later in Judge Jackson’s speech, ‘We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.’ These are my guiding principles.”

After Nuremberg, international criminal justice was stymied by the Cold War, and lay more or less dormant until the dramatic turn of world events in Bosnia, the former Yugoslavia and Rwanda.

“The world had failed to respond to the humanitarian crises by sending in peacekeeping forces in the former Yugoslavia and Rwanda under chapter 7 of the U.N. charter, instead of authorizing the use of force to protect civilians,” Rapp said. “The result was the loss of hundreds of thousands of people who were murdered, raped, maimed. After the fact, members of the U.N. Security Council for the first time granted the courts powers under Chapter 7. They decided not to send in soldiers with arms and ammunition but attorneys and judges with laws and procedures.”

What is the role of the United States, if not as a member of the International Criminal Court?

Rapp said that the United States should be front and center in a three-pronged system for ending international impunity, that is, ensuring that perpetrators of serious international crimes against humanity are not able to secure safe haven based on strict sovereignty rules, which up until the Nuremberg trials prohibited one country from trying a citizen of another state.

First, he said, the United States must work to strengthen national court systems, which under the ICC charter take precedence in prosecutions. “The ICC basically says it’s up to the country to do it themselves and it’s only when it can’t or won’t that the ICC steps in,” Rapp pointed out.

Second, the United States must work with countries that employ the principle of universal jurisdiction, that is, when states can claim jurisdiction over individuals, regardless of nationality or country of residence, whose alleged crimes are committed in another country on the grounds that the crime is considered a crime against humanity. Under universal jurisdiction, states are authorized to try criminals who commit crimes too serious for “jurisdictional arbitrage,” where a criminal could choose a jurisdiction with less-serious legal consequences, Rapp explained.

“In addition, prosecutions need not happen in the home country of the crimes. Sometimes it’s appropriate to try cases in another country when the country is unstable, for example,” or when the power structure is corrupt, he said.

Crimes against humanity in places such as Rwanda and the former Yugoslavia have been prosecuted successfully in Switzerland, Belgium, The Netherlands and Canada, he noted.

“The point is to provide no safe haven for criminals. The existence of international prosecution shuts off the alternatives, which deters crime,” Rapp said. Deterrence is a key, because justice by itself does not replace victims of crimes. “People are not brought back, and wounds are not healed by justice,” he said.

“And, finally, there is the question of international justice when crimes cross borders,” he said.

The United States should continue to participate in prosecutions under ad hoc international criminal tribunals, which unlike the ICC have time limits and a finite scope attached to their mission.

While international tribunals are important both for achieving justice and for their symbolism, ultimately they handle a small number of cases. If more justice is to be achieved, “it should happen in each individual country,” Rapp said.

—Peter Hart