Who Knows: LJST Professor Lawrence Douglas on the International Criminal Court

With a new U.S. president moving into the White House in January, many around the world are hoping for increased American involvement in the International Criminal Court (ICC). The independent, permanent court, formed in 2002, tries people accused of the most serious crimes of international concern. Amherst’s Lawrence Douglas, James J. Grosfeld Professor of Law, Jurisprudence and Social Thought and an expert on international courts and war crimes trials, spoke with Director of Media Relations Caroline Hanna about the organization and what he sees in its future.

CH: Do you see the United States signing the Rome Statute, which created the ICC?

LD: Susan Rice is going to be the U.S. ambassador to the U.N., and she has a track record of supporting international law and vigorous responses to genocide and mass atrocities. Also, Obama expressed a real interest in the ICC during the campaign, so I think the U.S. will be actively cooperating with the court in the near future, if not acting as a full member. 

As for the Rome Statute, the Clinton administration signed it, but the Bush administration unsigned it. My hope is that Obama will re-sign it. Senate ratification is another story. The Republicans could filibuster. Of course, the new administration could follow the terms of the treaty without officially signing it.

Douglas

CH: Would joining the court benefit the United States?

LD: It would definitely boost the U.S.’s moral stature as an upholder of international law. The Bush administration not only opposed the court but actively tried to undermine it through the creation of Bilateral Immunity Agreements, which essentially conditioned U.S. military and economic assistance to foreign countries on an agreement not to extradite U.S. personnel to the ICC. In 2002, Congress went further still with the so-called “Hague Invasion Act,” which authorized the use of military force to free any U.S. personnel detained by the court.

Before becoming a full member, however, the U.S.’s facilities at Guantánamo Bay would have to be shut down, and we would have to clean up our act with respect to the treatment of detainees. It sounds like Obama will shut down Gitmo, but this will not happen overnight. In the short term, the new administration could provide intelligence and help the court in the investigation of crimes.

CH: What has the ICC done so far? 

LD: The ICC is just starting to get its sea legs. Recently, the court’s prosecutor has brought a petition for an arrest warrant against Sudanese President Omar al-Bashir for genocide, crimes against humanity and war crimes in the Darfur region of the Sudan. The court is also gearing up to restart, in January, the trial of Thomas Lubanga, the warlord from the Democratic Republic of the Congo, whose trial was temporarily halted because the prosecutor apparently withheld some exculpatory evidence from the defense and the court. This was an embarrassment to the prosecution but demonstrated the court’s dedication to upholding norms of procedural fairness.

CH: Why is the possibility of an al-Bashir arrest warrant important?

LD: The practice of trying heads of state before international courts remains profoundly unusual. Slobodan Milošević was the first sitting president in history to be indicted by an institutional court. Presently, we find Charles Taylor, the former Liberian president, also on trial in The Hague—not before the ICC but before a separate ad hoc court called the Special Court for Sierra Leone.

A vexing issue is how to deal with bad guys who run countries. In the past, nations have said, if you relinquish power, we will extend you some type of amnesty from prosecution as a quid pro quo. In other cases, former strongmen have been exiled abroad instead of facing criminal charges. [Ugandan military dictator] Idi Amin never had to answer for any of his atrocities in any type of domestic or international court. He lived out his life cushily in Saudi Arabia. Or consider Baby Doc Duvalier from Haiti, who also never had to answer in any domestic or international court for atrocities and lives in southern France with a cozy retirement package.

CH: If an arrest warrant is issued, how will it be enforced?


LD: The ICC has no international police force. You have to rely on the cooperation of the target country—which is no sure thing—or you have to create the conditions for cooperation through international pressure. That, or you have to hope that the head of state does something really silly, like take a plane to a conference in Amsterdam.

CH: What do you expect to happen next with al-Bashir?

LD: My overwhelming feeling is that the court will issue a warrant for the arrest. The question is whether that’s going to help to relieve the situation. Officials with the U.N. have already expressed concerns that an indictment would ruin the peace process. One of the hopes of international justice is not just that it cleans up the mess that follows in the wake of genocide, but that it also plays some kind of constructive role in ending genocide as it is unfolding.