Academic journal article Proceedings of the Annual Meeting-American Society of International Law

The ICC Review Conference and Changing U.S. Policy toward the Court

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

The ICC Review Conference and Changing U.S. Policy toward the Court

Article excerpt

This panel was convened at 9:00 a.m., Saturday, March 27, by its moderator, Leila Sadat of Washington University School of Law, who introduced the panelists: William R. Pace of the Coalition for the International Criminal Court; Stephen Rapp of the U.S. Department of State; Beatrice Le Fraper du Hellen of the Office of the Prosecutor of the International Criminal Court; and Christian Wenaweser of the Assembly of States Parties to the Rome Statute of the International Criminal Court.


It is a pleasure to open this session, which has been designated by the Society as the first, and in future, annual, panel to be held on the occasion of the Annual Meeting of the Society in honor of Benjamin Ferencz, former Nuremberg Prosecutor. Thanks to Catherine Powell who organized this session, and to the Program Committee Co-Chairs for scheduling it. The Society, under the leadership of Lucy Reed and Betsy Andersen, has done a great deal of excellent work on the International Criminal Court and its relationship to the United States, including the Task Force Report issued last year, and this panel is a wonderful segue to that project.

The theme of this year's Annual Meeting is "International Law in a Time of Change." That makes consideration of this topic--the International Criminal Court (ICC) Review Conference and changing U.S. policy towards the Court--particularly appropriate.

The establishment of the International Criminal Court itself, of course, has effected a major change in international law and international relations. Indeed, the Court's establishment may be thought of as an "uneasy revolution" that represented a "Constitutional moment" for the international legal order. The negotiations that followed from the resolution adopted by the General Assembly in 1989 reintroducing the ICC project to the United Nations agenda culminated in the Rome Diplomatic Conference in 1998, from which emerged the last great international institution of the 20th century. Yet as the new millennium dawned, this Court had an uncertain future. Vigorously opposed by the United States and other countries representing a large swath of the earth's population, and established as a free-standing institution rather than by amendment of the UN Charter, it was unclear whether it would survive its first ten years.

Against the odds, however, here we are gathered today to discuss an institution that now has 111 states parties, has begun two trials, and is about to hold its first Review Conference in Kampala, Uganda, from May 31 through June 11, 2010. The upcoming Review Conference is the only mandatory Review Conference provided for in the Statute of the ICC, and the only mandatory business to be discussed at Kampala is consideration of Article 124, the war crimes "opt-out" provision of the Statute. At the same time, it is widely recognized that Kampala will take up much more than Article 124, including a major "stock-taking" of the Court's operations, the question of the crime of aggression, and consideration of an amendment on the use of certain weapons in non-international armed conflict.

Thus, this new international institution--itself an agent of change--is in the process of changing and growing. Moreover, with the election of President Barack Obama in 2008, U.S. policy toward the Court has changed dramatically ... or has it?

Here to discuss these important questions are four uniquely qualified individuals, each of whom has contributed, and continues to contribute, to the success of the International Criminal Court. Ambassador Christian Wenaweser, the Permanent Representative of Liechtenstein to the United Nations, and President of the Assembly of States Parties of the Court; Beatrice le Fraper du Hellen, a former French diplomat now serving as Special Advisor to the Prosecutor of the International Criminal Court; Ambassador Stephen J. Rapp, Ambassadorat-Large for War Crimes Issues for the United States and former Prosecutor of the Special Court for Sierra Leone; and William R. …

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