Written by Don Kraus for the Huffington Post

The indictment of Sudanese President al-Bashir on charges of genocide by the International Criminal Court (ICC) is a critical step forward for the victims of Darfur. This action sends a clear signal to world leaders that there is no immunity for genocide.

This is the first time the ICC has brought charges of genocide against a sitting head of state. The charges send a clear signal from the world community that crimes against humanity, genocide and war crimes will not be tolerated. The message is "mass atrocities = jail."

The charges also provide an important opportunity for the Obama Administration to work with the Court to bring one of the world's worst criminals to justice and to create a more peaceful future for Sudan.

The situation in Sudan is devolving. The new indictment will help to increase international pressure on the Sudanese government. According to Save Darfur there has been a new escalation of violence in Darfur since the April 2010 elections. Tribal clashes, government obstruction of UNAMID peacekeepers and humanitarian operation, banditry and resource shortages are intensifying the situation on the ground. Many crimes, particularly violence against women go unreported. 600 new deaths were reported in May alone.

Dave Eggers and John Prendergast propose in the NY Times increased US pressure on Sudan including "placing sanctions on key ruling party officials, blocking debt relief from the International Monetary Fund, supporting International Criminal Court arrest warrants, tightening the United Nations arms embargo and providing further support to the south." This makes very good sense.

Monday's charges against al-Bashir are in addition to the 2008 charges of crimes against humanity and war crimes for allegedly orchestrating coordinated acts of murder, rape, torture and forced expulsions.

The charges stem from al-Bashir's campaigns against tribal groups Fur, Masalit and Zaghawa in Dafur. During the seven-year conflict in Darfur, the United Nations estimates that 300,000 people died and 2.7 million have been forced from their homes. ICC court prosecutor Luis Moreno Ocampo accused al-Bashir of keeping an estimated 2.5 million refugees from specific ethnic groups in camps in Dafur "under genocide conditions, like a gigantic Auschwitz."

Don Kraus is the CEO of Citizens for Global Solutions and co chairs the CEDAW Task Force of The Leadership Conference on Civil and Human Rights.

What does the ICC do? It tries to bring justice to these individuals: http://usaforicc.org/mostwanted/

On Tuesday, June 15, 2010 Legal Advisor for the U.S. State Department, Harold H. Koh, and Ambassador-at-Large for War Crime Issues, Stephen J. Rapp engaged in a press briefing to discuss their visit to Kampala, Uganda for the International Criminal Court Review Conference. Koh addressed any concerns regarding the U.S. relationship with the Court when he said, "[T]o paraphrase Churchill, this is not the end, it was not the beginning of the end, but it did feel like the end of the beginning of the U.S's 12-year relationship with this court. After 12 years, I think we have reset the default on the U.S. relationship with the court from hostility to positive engagement. In this case, principled engagement worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill. As one delegate put it to me, the U.S. was once again seen, with respect to the ICC, as part of the solution and not the problem. The outcome in Kampala demonstrates again principled engagement can protect and advance our interests, it can help the states parties to find better solutions, and make for a better court, better protection of our interests, and a better relationship going forward between the U.S. and the ICC."

Koh did not hold back in further complimenting themselves and the rest of the U.S. delegation for their hard work "to resume engagement with the court, states parties, observer nations, and many private organizations involved in international criminal law". The U.S. delegation should be praised for their hard work at this conference. Rapp made sure to highlight that "one of the main aspects of [the] conference in which…[U.S.] principled engagement was so positive was working with the court in stocktaking exercises, which looked at issues like complementarity, which is this idea that you should have justice at the national level in preference to justice at the international level".

Click HERE for the full transcript of the press conference.

By: Ariela Blatter

Shortly after the historic decision for the ICC to prosecute the crime of aggression, Harold Koh, Legal Advisor to the United States Department of State made a shaky statement from the floor. Overcome by either emotion or exhaustion at 1am here in Kampala, he spoke in a shaky voice, after a marathon 48 hours of negotiations. In his remarks he gave a window into the Obama Administration's desire to map the course of the Court for the years to come. Reminding States Parties of its recent commitment to cooperate with the Court and the US eagerness to engage in taking stock of the courts progress, it foreshadowed a potential difficult battle ahead for ICC advocates.  The US delegation, in agreeing with France and the UK, re-asserted its view of the primary role of the UNSC over aggression. The US asserted it was a wise decision today to defer the decision for the ICC to prosecute crimes of aggression to a later date (in seven years), when 2/3 of the state parties must convene again to decide whether or not to stick to the spirit of the amendments made here in Kampala.

Finally, the US warned that any "organic" decision-making of the Court through the normal channels of decision-making by the Assembly of State Parties would be a serious constitutional problem; any future decision-making on aggression must wait for the next big review conference. However, the US requested that upcoming regular meetings of the Assembly of State Parties consider future amendments "to strengthen the Rome Statute."  I sincerely hope that by requesting leave to consider future amendments to the Rome Statute before the next official review conference, the US does not use this opportunity to undermine the historic decision today to place the ICC as the first permanent international court to try individuals who have engaged in the decision and implementation of illegal wars.  It is important to note that the US delegation made a significant victory here in Kampala, by inserting several clarifications to the Rome Statute, or "understandings" that in their view addressed their most serious concerns about the definition on aggression, and that it not impinge on their ability to enter into coalition military operations or humanitarian intervention.

By: Ariela Blatter

The delegation from the United Kingdom (UK) states that any future action by state parties in prosecuting crime of aggression must respect the PRIMACY of the UN Security Council. Citing Article 39 of the UN Charter, the UK delegation re-asserts that it is the UNSC that has the expertise to determine an act of aggression. In a momet of levity the head of the English delegation calls the opening text, or preamble of the adopted text the most boring thing he has ever read, and asks that the official record reflects this text.  

Is this a prelude of a fight to come? Did the UK put a line in the sand that the UN Security Council is the EXCLUSIVE body to decide aggression? Will they object in seven years to the ability of the Court to act independently of the UN Security Council? Will the UK and other members of the UN Security Council roll back the progress that was made only 10 minutes ago when a standing ovation at Kampala welcomed the decision to announce the ICC as first permanent international court that would have jurisdiction over the crime of aggression?

Only time will tell at this point....

By: Ariela Blatter

It's a historic moment here in Kampala, Uganda. Japan, after making the following statement against the adoption of the crime of aggression, stands aside to allow all other 84 states to move forward with. Therefore, the Court now has a definition of aggression, and a clear explanation of how to prosecute these crimes- but those eagerly awaiting the prospect of ending impunity for engaging in illegal war will have to wait seven more years and see if this was the right decision. 

Japan (paraphrased): Japan had been promoting a ICC that can act with total confidence of international community. It is my sad duty to inform you that the draft resolution you are posing now does not live up to consensus you are presenting. This delegation continues to have serous doubts as to the legal intergrity of the text. This resolution would undermine the Rome Statute and all it represents. It would cause a difficulty in our relationship with the ICC. We have concerns with this draft resoution, we have a serious problem with Article 15.5 (application to non-state parties) because it unjustifiably justifies aggressive acts of nationals of non-states parties. It is with a heavy heart that I declare if all the other delegations are prepared to stand by this, Japan will not stand in way of consensus. 

The draft resolution on the definition of the crime of aggression is now adopted by consensus!

Learn more at www.usaforicc.org 

By: Ariela Blatter

Proposals on crime of aggression

Chairman Wenaweser, makes an appeal to states parties to make a deal. In his own words, he presents what has been agreed so far, as well as new text, never seen before, on two outstanding provisions that will be "voted" on in about 15 minutes:...What I am putting forward for your consideration is:

"my best attempt to capture a compromise on this topic, ....I am fully aware that this text does not meet with the suggestion made by any of you and that is in my experience of the nature of a compromise, at this stage of a negotiations. However, I am very much aware of the time. With your help, assistance and spirit of flexibility, we have come very far in our deliberation. I do believe we are very close to adopting a draft resolution on the crime of aggression that would be a very positive contribution to this Review Conference and beyond. I am also of the view that in our consultations so far that we have been able to overcome very significant difficulties and very significant concessions have been made. So I am asking you to consider this text..This is the last the step we can make, if we all can make it, and I am looking to your favorable response." 

By: Ariela Blatter

For the last 48 hours here in Kampala, I have been on tenderhooks with the knowledge that a deal on the crime of aggression was imminent. With Brazil and the non-aligned movement on one side, rumored to have Euorpean country support, and the P5 on the other (two of which, UK and France are state parties to the ICC), the trans-continental dance has been a frustratingly slow waltz and of late, more of a clumsy stumble.  However, according to the Chairman over the proceedings,  consensus is almost here-- which is the preferred method of amending the Rome Statute.  What States seem to have agreed on so far is the way the amendment will come into force- by about 2/3rds of state parties,  the definition of aggression, and how to prosecute the crime; the jurisdiction resting in the dominant hands of the UN Security Council, and to a lesser extent by the independent prosecutor and state parties. If the UN Security Council wants to stop the prosecutor from acting, it can do so but only if it acts affirmatively to delay the proceedings by a year. It also seems to be settled that this crime of aggression will not apply to non-state parties to the Rome Statute, or those who opt out, or as it seems "lodge a declaration" that the crime does not apply to them. What is not clear right now is when this deal will enter into force. The outstanding issue, besides if this will pass or not (or if anyone of us here in Kampala will get any sleep tonight) is if in seven years from now, in 2017 or so, states have to meet again and 2/3rds of countries need to vote in favor again for the crime to take affect, or in seven years the court can tackle this crime free and clear. 

Map of Uganda: where the Review Conference is taking place.

By: Ariela Blätter

The first week was a whirlwind in Kampala at the 2010 Review Conference for the International Criminal Court (ICC). Descending on the Ugandan capital last week was a crowd estimated at 2000 or so members of State Parties to the Rome Statute, non-state parties and members of civil society. Delegates from all over the world have come to discuss the revision of the Rome Statute. The choice to host the event in Uganda has borne fruit in a large representation of African delegates and NGO representatives.  Technically, at issue at the Review Conference is the process of amending Article 124, a transitional provision which allows states to basically ‘opt out’ of war crimes for period of seven years after ratification. Other business that is heavily occupying the proceedings is the crime of aggression, the so-called ‘Belgian proposal’ on war crimes and the process of taking stock of the International Criminal Court’s progress.

As diplomats meet in Uganda to consider adding the crime of aggression to the jurisdiction of the ICC, it is time to remember historic American principles.

David Kaye warns in his June 1 Op-Ed article that bringing the crime of aggression within its ambit may erode support for the International 

Criminal Court. Itis true that the ICC has done an admirable job in the years since its founding in holding trials for those accused of war crimes, crimes against humanity and genocide. Without the ICC, these individuals, accused of the most heinous mass crimes, might not ever face justice and punishment.

The ICC is an institution that our nation's founders would have recognized. The ICC springs from the same European Enlightenment principles that informed America's founding, including the idea that there are certain basic rights afforded to all people. Although the United States has not joined the ICC, the treaty that created the court relies on principles and ideas long promoted by American thinkers and lawyers. Adding the crime of aggression to the ICC's jurisdiction follows in the tradition of the Nuremberg and Tokyo trials after World War II. The U.S. actively participated in the formation and successful operation of the more recent special purpose international tribunals for Sierra Leone, Rwanda and the former Yugoslavia.

Of course, many of the current objections to expanding the jurisdiction of the ICC to include aggression were also raised in the 1990s against the founding of the court. Aren't there always practical difficulties in asserting an important principle?

The 111 nations party to the court may decide this month at the 2010 ICC review conference to include the crime of aggression within the ICC's jurisdiction. The value of the protection the ICC can offer against aggression may outweigh the practical concerns Kaye enumerates. Evidence shows that prosecution by the ICC for conscripting child soldiers has caused combatant leaders in other countries to release child soldiers and spurn their use. The establishment of global standards can have a positive deterrent effect. A country without the military power of the United States might reasonably conclude that the rule of law is valuable protection against the use of aggressive force.

Even though the United States is not party to the ICC, it is right and good policy that American diplomats will be attending the meetings in Uganda as observers without the privilege of voting. The discussions there are important, and U.S. participation is valuable for our country and for the world. The United States led in helping the world understand the meaning of "aggressive war" in the Nuremberg and Tokyo war crimes trials. The U.S. should cooperate with the ICC and resolve over time the impediments to the U.S. formally joining the ICC, including addressing the concerns of the American defense community.
Diplomats, lawyers, humanitarians, generals and statesmen from around the globe have labored over the past eight years in the special working group on the crime of aggression to develop the consensus on the definition of "aggression" now being considered in Uganda. All should respect this definition. If the parties to the ICC cannot agree this month to expand the court's jurisdiction to include aggression, they ought at least accept the proposed definition of the crime, and the U.S. could accept this result as consistent with fundamental American principles.

See this article posted on the Los Angeles Times website