POV: Why doesn't the United States support the International Criminal Court (ICC)?
Christine Chung: The United States is not a member nation of the ICC, but it is not quite right to say that it hasn't supported the ICC. When the ICC started operating, in 2002, the Bush administration openly adopted policies intended to impede the Court's work, citing concerns that U.S. nationals could be unfairly targeted by the ICC. By early 2005, however, the same administration abstained from the United Nations Security Council vote, referring the Darfur situation for investigation by the ICC. By the time President Bush left office, State Department officials were expressing willingness to cooperate in the ICC's investigations and cases, if asked.
So in the Court's first years of operation, we reached a point where the U.S. government was willing to undertake a case-by-case consideration of whether to support the ICC's work. To take the additional affirmative step of joining the ICC will require ratification of the Rome Statute — the international treaty that created the Court — by two thirds of the Senate.
POV: Does the new Obama administration have a clear policy regarding the ICC?
Chung: Not really. The policy of considering cooperation with the ICC that serves U.S. interests continues, and certainly there has been no categorical opposition as there was under the Bush administration. Still, there have been so many other high-priority matters for President Obama's administration that the ICC has not received much attention yet.
POV: With the leftward shift in the electorate, as evidenced by the election of President Obama and a Democrat-controlled Congress, do you think the United States' role and relationship with the ICC could change?
Chung: I'm not sure I agree with the premise that the leftward shift will be such a key factor. In the United States politicians and voters who are conservative and those on the left expressed equal concern over the crisis in Darfur, which so far has done more to harmonize the interests of the United States and the ICC than any other single issue. The ICC's mandate is to prosecute the worst crimes in the world — even in the history of the world. If the court continues to demonstrate that it will carry out this limited mandate competently, the United States and the ICC will find that they are more often united in their objectives, particularly the interest of pursuing accountability. To be brief, genocide isn't a right/left issue.
POV: Since the ICC doesn't have a police force, how can it make arrests? And can it be an effective judicial institution if it can't make arrests?
Chung: Arrest is the responsibility of nations. This has been the case with every international tribunal, including the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. Arrest is a slow and painful process in international courts, but so far the history shows that justice is also relentless. Slobodan Milosevic was ultimately arrested, against the predictions of many. At the ICC, to date arrests have been carried out by the governments of the Democratic Republic of Congo and Belgium, with the support of others. One defendant, a rebel leader in Darfur, has voluntarily appeared.
POV: Why issue an arrest warrant for President al-Bashir of Sudan if it can't be carried out?
Chung: The arrest warrant is the first step, and it's often one that makes arrest itself more possible. Again, this is the same question people asked when Milosevic was first indicted. The arrest warrant is, most fundamentally, a judicial judgment that there is sufficient evidence that the defendant should come to face charges. The naming (victims might term it "truth-telling") is important in and of itself. It also can generate momentum or galvanize support for arrest.
POV: Where does the ICC stand now in its attempt to arrest leaders in Sudan?
Chung: The Sudanese government has made clear that it will not turn over any Sudanese nationals to the ICC. The African Union recently passed a resolution saying that its membership, including ICC member countries, would not help to arrest President al-Bashir. On the other hand, some countries, including African countries, have expressed, by word and deed, that President al-Bashir is no longer welcome to come into their territories. The president himself has been extremely careful about where he travels.
As I mention above, one Sudanese rebel leader has voluntarily appeared in response to an arrest warrant issued by the Court. This willingness to answer charges stands in stark contrast to al-Bashir's intransigence.
POV: What can the international community do to put pressure on the Sudanese to enforce the arrest warrant for President al-Bashir?
Chung: The international community has stood up in important ways for accountability. The U.N. Security Council has been asked to defer the ICC's case — something it has the power to do for at least a year — but so far has refused to do so. The first step is to make President al-Bashir feel isolation — the real costs and hurts of resisting an international warrant and the call to account. Put simply, the international community needs to stand with victims in insisting that justice be served and not flouted.
POV: If the court fails to arrest the accused parties in Sudan, where do you think it will stand in the worldview?
Chung: As the last question suggests, if the court fails to arrest accused parties, that failure reflects on the international community. The ICC was never intended to arrest anyone itself. Instead, the 120 nations that negotiated the Rome Treaty arranged for the responsibility for arrest to fall on them. So the question is the status and health of international will to end impunity for the worst crimes known to man. If that will doesn't exist, the ICC will be correspondingly weakened, but the source of the problem is countries, or maybe us as residents of the world, not the ICC.
POV: Why does the ICC focus on African cases? Is the ICC a European court for Africa?
Chung: The jurisdictional limits on the ICC mean that the court will be active (really that it can only be active) where domestic systems are broken down and the most grave crimes are occurring. Of the four investigations opened so far, three were situations that were referred by the affected African nations themselves: Uganda, the Democratic Republic of Congo and the Central African Republic. The fourth was Darfur, the situation referred by the U.N. Security Council.
The ICC is not a European court. It's true that almost all European nations are members, but over half of Africa's sub-Saharan nations are also members. There are 109 countries that have ratified the Rome Treaty and thus are members of the ICC. The ratification rate was higher and faster than even the creators of the court had anticipated. Chile was the most recent to become a member country.
POV: The ICC came into being during the emergence of widespread and ongoing household Internet access. How has the Internet helped the ICC's mission?
Chung: The Internet makes the ICC's work more accessible. For example, you can watch the first trial of the ICC, against Congolese militia leader Thomas Lubanga Dyilo, at www.icc-cpi.int, because the trial is being live-streamed. Information about international justice and cross-continental discussions of it are carried out on websites such as www.ijcentral.org.
The most important way in which the Internet helps the ICC's mission, though, is to help stop crimes from ever occurring. We live in a world where when a government suppresses its people using violence, those moves show up in photographs or video half a world away, instantaneously. Freely available satellite technology and the means to disseminate information gleaned through that technology mean that sites of massacres or graves can be detected almost immediately. Deterrence is the most important goal of the ICC, and technology is a more powerful tool of deterrence every day.
POV: What do you think is imperative to the future and sustainability of the ICC?
Chung: Countries and people continuing the struggle to agree on the methods for ending the crimes we all want to end: genocide, war crimes and crimes against humanity.
POV: What can U.S. citizens do to get our government to develop its policy toward the ICC?
Chung: Learn more about the ICC. That's the first step. Lack of understanding of the ICC's work is really hurting the ICC at this phase. The skewed focus of the Bush administration contributed to misunderstandings as well.
POV: Could the ICC investigate Americans and put them on trial? For example, could former President Bush, Vice President Cheney and Defense Secretary Rumsfeld be tried by the ICC for torture committed during their time in office? Could American service men and women be tried?
Chung: Theoretically it's possible for Americans to end up at the ICC but highly unlikely. It will always depend on the where, when and who of the crimes. The ICC prosecutor's office has already declined, for example, to start an investigation into war crimes allegedly committed by British soldiers in Iraq, in part because the British government was itself investigating and prosecuting the cases and in part because the allegations, even if taken as true, did not establish crimes of sufficient gravity to warrant the ICC's intervention. No U.S. national could be prosecuted at the ICC for crimes committed in Iraq, though, absent a U.N. Security Council resolution, because the United States is not a member country of the ICC and Iraq is also not a member country.
Basically, the United States will always be protected from ICC intervention because it has a highly functional legal system and it does not shirk from investigating and charging even the powerful. When Americans believe that other Americans need to be held to account, they should focus on pursuing justice at home. It's best for the United States and best for the ICC, which has plenty of other work to do on behalf of victims who have not even the prospect of access to justice.
POV: And, finally, can you tell us a little bit about your forthcoming book project about the ICC?
Chung: I've written a book about the years I spent at the ICC office of the prosecutor, working on the court's first investigations and cases. Some of it is technical and explains how we tried to apply the innovative law, which prosecutorial strategies we chose and how we conducted investigations in war zones. Parts are more personal and describe the people I had a chance to work with and what it was like for an American prosecutor to shift into this new international system. I'm hoping to polish and publish it soon.
Before being appointed to the ICC, Christine Chung served as federal prosecutor in the U.S. attorney’s office for the Southern District of New York, where she held a number of positions, including chief of criminal appeals. She prosecuted gangs, organized crime, white-collar fraud and terrorism cases. She has been a visiting lecturer and senior fellow at the Schell Center for International Human Rights at Yale Law School. She is now a partner at the law firm Quinn Emanuel. Chung is a graduate of Yale College and Harvard Law School.
Chung's book on the ICC will be published later this year.