BRIDGET CONLEY-ZILKIC: Welcome to this week’s episode of voices on genocide prevention. We’re very honored to have we me today, Diane Orentlicher. Diane Orentlicher is the deputy in the Office of War Crimes Issues in the Department of State. The Office of War Crimes Issues, which under the Obama Administration is led by Steven Rapp, advises the Secretary of State directly, formulating U.S. policy responses to atrocities in areas of conflict and elsewhere around the world. Diane, thank you very much for joining me today.
DIANE ORENTLICHER: Well, it’s a pleasure to be here. Thank you Bridget.
BRIDGET CONLEY-ZILKIC: And we’ll be speaking today about the International Criminal Court. For those of you who don’t know, the first permanent International Criminal Court known as the ICC, was created through treaty in 1998. Since that time, around 111 nations have signed the treaty and the Court has taken on cases related to violence in the Democratic Republic of Congo, Uganda, Sudan and Central African Republic. In June of this year, signatory nations will gather in Kampala, Uganda to consider amendments to the Court’s statue, the Rome Statute and to take stock of the ICC’s work so far. So Diane, from your position inside the U.S. government, what are some of the most important considerations that will be -- amendments and review of the Court that will happen at this conference?
DIANE ORENTLICHER: Well Bridget as you know, there are two main agenda items for the Kampala Review Conference. One is to consider proposed amendments to the Court’s statutes and I’ll come back to that. The other, which has fairly recently emerged as an important second item, is what’s called stock-taking. And the stock-taking exercise is one that the U.S. government thinks is very important because it’s really an opportunity to do something that any fairly new institution of this kind would benefit from, which is to see how it’s working after seven years.
There are two different items coming up in Kampala. The United States government is very much looking forward to contributing to the stock-taking exercise. We’ve been absent from the Court for a long time but have now re-engaged with it, not as a state party, but as a non-state party observer and are anxious to contribute to this process of looking at how we can strengthen not just the Court, but the broader system of responding to mass atrocities of which the Court is a part.
The other part of its agenda, as we were just talking about, is to consider several amendments that have been proposed to the Court’s statute. The one that will receive the most attention in Kampala are proposals to operationalize the Court’s jurisdiction over the crime of aggression. It was in principle given this jurisdiction in its statute when the statute text was adopted in 1998. But the Court can’t actually exercise jurisdiction until other amendments are adopted. And this review conference will be the first opportunity that state parties will have to decide whether to move forward or if so, how to move forward in adopting these amendments.
BRIDGET CONLEY-ZILKIC: And the crime of aggression was used as one of the categories of crimes to hold Nazi leadership accountable in the International Military Tribunal. Has it been used at all since?
DIANE ORENTLICHER: Well, it was used in Nuremberg and Tokyo. The terminology was a little bit different and the understanding of what it meant was somewhat different as well. But there have not been prosecutions of this crime as such since then. So those who support moving forward in this area, see it as a long delayed project of completing the work of Nuremberg. But there have been a lot of developments in international law in the years, in the decades since Nuremberg and so there are a lot of pretty complicated issues raised by how you move forward at this time.
BRIDGET CONLEY-ZILKIC: And how — or is this actually the point at which you would -- define a crime of aggression?
DIANE ORENTLICHER: Well it—
BRIDGET CONLEY-ZILKIC: Not you personally, obviously, the Court.
DIANE ORENTLICHER: You know, that’s one of the questions that the proposed text that states parties have been working on for some years, has a fairly complex definition that focuses on acts of aggression, not just a crime of aggression but specific acts of aggression. It’s based on a resolution that was adopted by the General Assembly some decades ago. But that resolution was not crafted to be the definition of a criminal act. It was actually meant to provide guidelines to the Security Council in making a determination of a different kind, which is whether a state had violated the UN Charter provisions relating to the use of force. So I think if I get much more in the weeds in defining, in sharing the definition it will get awfully lawyerly because it is a fairly complex definition.
Maybe it would be more helpful to try to talk about some of the broader questions raised by moving forward in this area. So if I could say I try to capture some of the questions that the U.S. government is looking at in this area. Among them, we, as I said earlier, are starting to re-engage with this Court after a period in which the United States did not exercise the rights that it has as an observer state. And as we move in this direction, one of the things that we’re concerned about and the more we talk with other countries, the more we learn many others have questions about, is whether at this time, given the many legal complexities and other concerns raised by the crime of aggression, whether it’s helpful for this Court which is still in its institutional early years, whether it’s helpful for this Court to add this crime at this time until the many, many questions about how the definition of the crime of aggression would be used or resolved.
It’s unfortunately the case that bringing charges of this kind is widely seen as a sort of political act and we’re concerned about this Court being drawn into political controversies that will be especially hard to manage at this point in its development.
BRIDGET CONLEY-ZILKIC: And what forces are behind trying to get the crime of aggression added on to the Court’s agenda?
DIANE ORENTLICHER: You know, I think that countries and civil society organizations have a range of reasons for supporting moving forward on this. I think for many it is seen as, as I said earlier, completing the project of Nuremberg. And there is sort of a sense that this is the ultimate crime and it was prosecuted at Nuremberg and ought to be part of the jurisdiction of this new court as well. But as I said, there are a range of reasons. I think for many countries, it offers another tool that they think will protect them against acts of aggression that they may feel vulnerable to. So there are a variety of reasons.
BRIDGET CONLEY-ZILKIC: From your perspective, how has the Court performed over its first seven years and what will be some of the issues you’d like to see addressed moving forward?
DIANE ORENTLICHER: Well first of all, let me say that on the difficult relationship that the Court has sometimes had with some African leaders, those are very real issues that deserve attention. The fact that this review conference will be held in Uganda, I think is symbolically very important. I hope that it leads to strengthened relationships with African countries.
But I also think, that some of the challenges that the Court has faced, are based on misunderstandings. For example, the idea that the ICC is singling out African countries. I think many people don’t understand that it was many African leaders who actually brought cases to the Court and said, look we are in the throes of some really horrendous crimes and we can’t control these actors and we don’t have the capacity to bring at least the leaders to justice ourselves. Can you help us? Again, most of the Court’s cases were originated by countries looking to the Court for help.
I’ve met many victims of atrocities in Africa who have said to me, this is our court. We want justice from this Court. Their complaint is that they can’t get enough justice. They are concerned that the Court has the capacity to handle only a relatively limited number of crimes. So they are not complaining about too much justice in Africa. They would really like to see more. That’s relevant to one of the issues that is going to be discussed in Kampala or maybe several issues.
One of the issues that will be explored, comes under the heading of sort of a sort of cumbersome name, complementarity. But I think what it really is meant to capture, is the idea that the ICC is a partner of national authorities. It will take on a limited number of cases that are beyond the reach of national government who have been often devastated by circumstances of conflict and terrible crimes. But the ICC can’t do the job by itself. And the question is, how do you leverage this institution to help countries do better themselves at protecting their citizens from future atrocities or often from crimes that are still raging across the country or parts of the country?
We think that’s a very important question. We look forward to contributing to try to strengthen national responses and to explore how the Court itself can be a catalyst for strengthening protection, where people live and for bringing justice home alongside the work of the Court itself.
Another issue that will be looked at in this stock-taking exercise is, the question of responding to victims and affected communities. How do you make this Court that operates in most cases thousands of miles away, how do you make it responsive to victims so that they themselves feel that they are getting justice? And again, when I go to countries where the ICC is active, I’m so struck by how important its work is to victims. They have very high expectations of the Court.
BRIDGET CONLEY-ZILKIC: And how will the Obama Administration engage with the Court? You referred to the U.S. previously not really actively engaged its observer status. Talk about what that observer status is and if we could expect to see a more active role for the U.S. moving forward?
DIANE ORENTLICHER: Well, first of all, the United States attended a meeting of what’s called The Assembly of State Parties for the first time last November. It was the first time that the U.S. government had ever attended one of these meetings even though we were legally allowed to do so for many years. So our re-engagement partly involved literally being at the table when large questions about how the court is doing are discussed. We are also looking at ways that we might be able to support the specific cases that the prosecutions that have already been launched by the ICC, which we see as advancing our own interest. We want to see the Court successfully bring to justice those who have been responsible for really mind-numbing and bone-chilling violence. So we have begun discussions with the prosecutor to try to get a sense from him of what he needs that we might be able to provide that he can’t find elsewhere to enable him to bring those cases to a successful conclusion.
BRIDGET CONLEY-ZILKIC: Do you think that it’s likely that the U.S. will engage further, become a party to the treaty?
DIANE ORENTLICHER: You know, it takes the United States a very long time to ratify any human rights treaty. This goes beyond being a human rights treaty. We’ve just historically looked very carefully at treaty text and take a long time to explore all of the ramifications of becoming a party. I think that that step is not on the near horizon. We have however, often been told by officials of the Court and by other countries that bringing our moral leadership and other forms of contributions to bear on behalf of the Court would itself be extraordinarily welcome. Even as a non-party state, I think we can make some significant contributions. You know, that said, I have to say that it complicates the environment in which we are moving toward engagement with the Court, to have to face these very difficult issues about the potential of prosecutions under the crime of aggression. We’re looking closely at how that will be handled in Kampala.
BRIDGET CONLEY-ZILKIC: In the larger perspective of the Administration’s views on international justice, as you well know, the two ad hoc tribunals for the former Yugoslavia and for Rwanda, are scheduled to close very soon. There’ve been a series of hybrid courts there, a lot of national court systems that are increasingly hearing war crimes cases. Is there a policy across the board on how the U.S. will continue to support accountability for war crimes issues or will it be a case to case procedure?
DIANE ORENTLICHER: If I were to try to capture one idea that I think infuses our approach to many different situations, it is that we really have our eye on both the immediate needs of victims and the long term picture. And by that I mean that as we approach questions of justice, it’s very important to us to try to look ahead and understand how we can not only address urgent, eminent needs, but start to build or help countries build the capacity to ensure that their victims can turn to courts and to the law in their own country, where they live for protection. So that they have confidence that there really is a legal system that works, that will protect them. People will know that if they commit violations of the most fundamental rights that they’ll have the face a reckoning in court.
Things that we take for granted in this country just don’t exist in so many countries. When I was in the DRC recently, I was struck by how much confidence survivors of rape have, the ones I’ve met with in any case. They’ve tried very hard to find justice in a legal system that has so often not produced the kind of justice they hope for. Yet they keep trying. It’s very important to them to make their own legal system accountable so that they can find protection on a daily basis and not have to look to a far away court in The Hague to protect them. I think, as we approach these issues, we both try to find a way to address atrocities in real time so that we have some hope of halting them in their tracks. But also, not just looking for an easy immediate fix, but rather building a long-term system of protection.
BRIDGET CONLEY-ZILKIC: And Diane, I have always appreciated your viewpoint, not only for the depth of your knowledge but for how lucid you make difficult, complex, international legal issues for the general public. So I’d like to—
DIANE ORENTLICHER: Thank you.
BRIDGET CONLEY-ZILKIC: Thank you again for taking the time to speak with me.
DIANE ORENTLICHER: It’s my pleasure. Thank you Bridget.
NARRATOR: You have been listening to Voices on Genocide Prevention, from United States Holocaust Memorial Museum. To learn more about responding to and preventing genocide, join us online at www.ushmm.org/genocide.