France

Notable in the just-released White House recap of its efforts to prevent mass atrocities is the foregrounding of 2 actions this year:

► Enactment in January of “bipartisan legislation to enhance our ability to offer financial rewards” – up to $5 million – “for information that helps to bring to justice” selected international indictees, among them “Joseph Kony and other senior leaders of the Lord’s Resistance Army, as well as Sylvestre Mudacumura from the Democratic Forces for the Liberation of Rwanda….”

► Developments in March, when “[t]he United States facilitated the voluntary surrender of Bosco Ntaganda” to stand trial “for war crimes and crimes against humanity….”

g8What’s notable is that both actions – like others noted in this commentary by Professor David Kaye – come to the aid of the indicting organization, the Hague-based International Criminal Court.  The same is true of an action not mentioned in the recap; that is, the Declaration on Preventing Sexual Violence in Conflict adopted at a mid-April London meeting. Paragraph 5 of the Declaration concludes:

‘Ministers emphasised the need for further funding support for victims and called on the international community, including the G8, to increase their efforts to mobilise such funding, including to programmes such as the ICC Trust Fund for Victims and its implementing partners.’

“Ministers” refers to the Foreign Ministers of the European Union and all members of the G-8. Thus joining the Declaration were 2 countries not party to the ICC’s Rome Statute: Russia and the United States. (credit for AFP photo made at the G-8 meeting of Foreign Ministers – from left, minsCatherine Ashton, European Union; John Baird, Canada; Laurent Fabius, France; John Kerry, United States; William Hague, Britain; Sergey Lavrov, Russia; Guido Westerwelle, Germany; Fumio Kishida, Japan; and Mario Monti, Italy)

These actions prompt examination of the potential extent of U.S. support for the ICC – in particular, given the G-8 Declaration, U.S. support for the Trust Fund for Victims. Would U.S. financial contributions to the Trust Fund for Victims contravene the American Service Members Protection Act? A preliminary look at the question indicates that they would not.

Section 2004 of the Act prohibits the giving of various forms of “cooperation,” “support,” and “appropriated funds” to the “International Criminal Court.” Section 2013(6) has the following definition:

‘INTERNATIONAL CRIMINAL COURT – The term “International Criminal Court” means the court established by the Rome Statute.’

The definition gives rise to a question: Does the Trust Fund fall within that statutory term “the court”?

Despite some writings on the workings of the Trust Fund (e.g., here), there appears to be little in-depth scholarship on the organizational relationship between it and the Court. An expert on international organizations ought to take this on.

Still, ICC documents seem to set the Fund apart from the Court; that is, the Trust Fund is established to benefit victims of crimes in the Court’s jurisdiction, but is not expressly itself within the Court’s jurisdiction. It is governed by the Assembly of States Parties, as is the Court, but there is an argument that it is not part of the Court. Indeed, a 2007 amendment permits earmarking of voluntary contributions to the Trust Fund in a way that sets such donations outside the frame of the Court. Both are within the “Rome Statute system,” as ICC Prosecutor Fatou Bensouda and others term it, but they arguably are separate entities within that system.

Note too that the founding resolution does not seem to limit membership on the Trust Fund board of directors to nationals of states parties. Assuming later-promulgated regulations do not change this, that would make this board different from other elected positions, like ICC judge and ICC prosecutor, and again suggests a different status.

Now consider Section 2004(f) of the American Service Members Protection Act:

‘PROHIBITION ON USE OF APPROPRIATED FUNDS TO ASSIST THE INTERNATIONAL CRIMINAL COURT – Notwithstanding any other provision of law, no funds appropriated under any provision of law may be used for the purpose of assisting the investigation, arrest, detention, extradition, or prosecution of any United States citizen or permanent resident alien by the International Criminal Court.’

The phrasing begs the question whether there is a ban on U.S. funding in any instance in which the suspect or accused is not a “United States citizen or permanent resident alien.” It seems even more clear that funding reparations – aiding victims, without regard to perpetrators – is something wholly outside the scope of “investigation, arrest, detention, extradition, or prosecution.” By this reasoning, U.S. financial contributions to the Trust Fund for Victims, which has no role at all in “investigation, arrest, detention, extradition, or prosecution,” are not prohibited by the American Service Members Protection Act. (See further limits on the Act’s scope – including reference to unofficial reports of a confidential Office of Legal Counsel memo on the issue – at pages 6-11 and 17 of a 2010 American Society of International Law compilation of white papers, Beyond Kampala: Next Steps for U.S. Principled Engagement with the International Criminal Court.)

The above interpretation of the Act’s funding rules cannot be extended to subsequent legislation, by which Congress imposed a blanket ban on using appropriated funds “for use by, or for support of, the International Criminal Court,” unless and until the now-unlikely event that the United States ratifies the Rome treaty following 2/3 approval by the Senate. The latter amendment, however, defines “International Criminal Court” in much the same way as the above-quoted Section 2013(6) of the American Service Members Protection Act; thus the question lingers whether the Trust Fund falls within the scope even of the latter amendment’s ban.

dosA final point respecting the American Service Members Protection Act: U.S. contributions to the Trust Fund would not contradict the intent of Congress, as it may be inferred from the Section 2002 Findings with which the Act begins. Donating to the Trust Fund for Victims in no way would enable the Court to pursue U.S. nationals or other “covered” individuals. It would have no relation to the ICC offense that appeared to give Congress most concern, the not-yet-fully-punishable crime of aggression. And with regard to Finding #4, which quotes the 1998 statement in which then-Ambassador David Scheffer opposed the Rome Statute on the ground that “‘[w]e are left with consequences that do not serve the cause of international justice,'” one discerns a congressional willingness to support institutions (such as ad hoc tribunals, which are exempted from the Act) that in fact serve that cause. U.S. contributions to reparations, via the Trust Fund for Victims, would meet that criterion.

Consideration of such contributions would further the United States’ current policy of positive engagement with the Rome system of international criminal justice. Reconsideration of all federal statutory barriers, a move supported by a range of U.S. experts (among them, Professor Kaye and former State Department Legal Adviser John B. Bellinger III), seems yet another logical next step.

“‘It took us more than two centuries to admit that a law could be imperfect and the people’s representatives uninspired. That a government and its majority often act too hastily, with the result that the Constitution is mistreated. That protecting the Constitution promotes liberty. usa_french_flag_imageTwo centuries to admit that, on this point, the American Revolution has been more just than the French.'”

Thus does LeMonde quote French law professors Guy Carcassone and Olivier Duhamel. (All translations from the French original mine.)  The quote appears in “Au ‘non’ de la loi,” reporter Patrick Roger’s fascinating analysis of how a 2010 law permitting private individuals to challenge the constitutionality of statutes has transformed both the theory and practice of separation of powers in France. (IntLawGrrl Naomi Norberg described the reform in this 2009 post.)

conseilAs Roger describes and constitutional comparatists well know, post-Revolutionary France relied on the view that statutes were the expression of “volonté générale,” the “general will” advanced by 18th C. political theorist Jean-Jacques Rousseau. Inroads into that “doctrine of the infallibility” of the Parlement français began with the establishment of a constitutional council, the Conseil constitutionnel, in France’s 1958 Constitution. In its 1st decades the Conseil hesitated to question laws; that changed in 1971, when the council determined that a law did not conform to the Constitution. In so doing, Roger reports, the Conseil referred not only to the 1958 document,

‘but also to the “fundamental principles” of the 1789 Declaration of the Rights of Man and the Citizen, reprised in the preamble of both the 1946 and the 1958 Constitutions. This “bloc of constitutionality” – that is, the ensemble of norms of constitutional stature – established the foundation on which the Conseil has constructed its jurisprudence.’

Added to this new foundation were statutory revisions that expanded the pool of potential plaintiffs, culminating in the 2010 reform. The result? Today the majority of statutes undergo review by the council; according to the LeMonde report, that fact has instilled in legislators a new awareness of their constitutional duties. Claims the Conseil‘s President, Jean-Louis Debré:

‘”The Constitution henceforth belongs to the citizenry.'”

US-Flag-and-Rainbow-Flag-e1330027721669-275x300Yesterday the Obama Administration urged the U.S. Supreme Court to invalidate § 3 of the 1996 Defense of Marriage Act, which defines “marriage” as the union of a man and a woman, and thus precludes extension of many benefits to spouses in same-sex marriages. The Brief for the United States on the Merits Question in United States v. Windsor argued that:

  1. The Court must examine the legality of discrimination based on sexual orientation at a heightened level; and
  2. Such heightened scrutiny exposes the statute as a violation of the equal protection obligations that the 5th Amendment places on the United States. (I examined that constitutional doctrine in a 2010 article.)

Acknowledging intervenor’s “appeal to this Court to allow the democratic process to run its course,” the government’s brief in Windsor concluded:

‘That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection.’

With the filing of this brief and others, focus in the United States now shift to the Court, which will hear arguments in Windsor and another marriage-equality case, Hollingsworth v. Perry, at the end of March. (IntLawGrrls’ posts on these cases available here.) (photo credit)

In the meantime, worth noting are developments in countries the United States has long considered allies – countries with which the United States shares fundamental rights traditions:

Given recent U.S. decisions’ silence on foreign law, it will come as no surprise if these developments  prompt scant mention in the March arguments in Windsor and Perry. Nevertheless, these overseas threads will form part of the fabric of Justices’ deliberation.

spinning_globe1Not too long ago, I published “Unipolar Disorder: A European Perspective on U.S. Security Strategy,” part of a roundtable published in the Hastings Journal of International & Comparative Law. Prompting it was the 2002 National Security Strategy in which President George W.  Bush declared, as I paraphrased it, “that the United States would strike first to prevent attack even before an enemy possessed the capability to attack – a point in time much earlier than when tradition would have condoned an attack of anticipatory self-defense.” Analyzing this claim “from a European perspective, one that prefers pluralist dialogue to paternalist debate,” I contrasted the United States’ post-Cold War unipolarity with a concept of multipolarity then au courant in France:

‘A multipolar world entails a balance of power, but one quite unlike that of the Cold War. Multipolarity imports what might be termed a morality of comparative advantage.  By this notion, all states exist in a globalized and interdependent world. No state is entirely self-sufficient. Each state has weaknesses and strengths. Thus it is best that states work together toward the best common advantage.’

My description concluded with a quote from then-President Jacques Chirac, who said of multipolarity:

‘Ce n’est pas du wishful.’

The upcoming annual meeting of the American Society of International Law will address “International Law in a Multipolar World,” a theme that brings these ideas and others to the fore. The program promises explorations of the theme as it relates to many regions of the world – not only the Americas, but also Asia, Europe, and Africa – and to many subfields of international law – climate change, the Internet, private and public law. Notably, a number of speakers haven’t appeared at recent Society meetings. To name a few: Professor Alain Pellet, Université de Paris X-Nanterre, will be interviewed by younger European scholars, while Tsinghua Law Professor Bing Bing Jia, who welcomed me to lecture in Beijing last summer,  will take part in a panel on China & International Law. Judge Xue Hanqin of the International Court of Justice will join Hudson Medalist Bruno Simma and others for the meeting’s closing plenary session. Yours truly has the honor of keynoting the Women in International Law Interest Group luncheon; a serving of multipolarity will be on the table.

The ASIL annual meeting runs April 3-6, 2013, in Washingtasil_logoon,  D.C. Details and registration here; early-bird discounts end this Friday, February 15.

lemondeThe news out of Paris is all about Mali, as evidenced by this screenshot from LeMonde. That’s because last week France sent troops to fight rebels who’ve held the north for months. It did so on request of the government that still holds power in the southern region where Mali’s capital, Bamako, is located. (The BBC reported that other countries, in the West and in Africa, are lending support to the French efforts, while a New York Times article contended that U.S. missteps helped fuel the crisis.)

Groups holding the north are said to include AQIM, Al-Qaeda in the Islamic Maghreb. Unrest began last April, and drew global attention because of last summer’s destruction of a UNESCO World Heritage site – adobe Timbuktu tombs held sacred by some Muslims but loathed by persons who’d seized the city. In October, a U.N. official alleged that rebels were “buying child soldiers,” among many other human rights offenses.

President François Hollande said (my translation) of last week’s decision:

‘France will respond … strictly within the boundaries of U.N. Security Council resolutions, on request of Malian authorities fighting armed Islamist groups.’

France once was the colonizer of much of West Africa – Mali won independence in 1960 – and LeMonde reports that although there’s evidence of approval in Bamako, an array of Algerian publications have decried what some characterized as a return to a kind of colonialism. These differences of opinion invite further inquiry.

bamakoA great starting place is Bamako, a 2006 film that portrays 2 trials unfolding within the walls of a neighborhood compound. (IntLawGrrl Karen E. Bravo’s review here.) One is a figurative trial – that of a husband, wife, and daughter pulled in different directions by the challenges and lures of modernization. The stops-and-starts of modernization also crop up in the compound: one night, many cluster around the lone TV to watch a Western shoot-’em-up (starring the American actor Danny Glover, a producer of Bamako) titled Death in Timbuktu. The other trial is literal – an outdoor proceeding in which ermine-clad judges hear individual witnesses give evidence in support of an anti-globalization complaint that a partie civile described as “African civil society” has lodged against the World Bank, the International Monetary Fund, and unnamed other international institutions. Immediately at issue is closure of stops on a once-public railroad, occasioned by the railway’s forced privatization – closure that is said to have deprived many Malians of jobs and transport, and to have sent many on a peril-fraught emigration toward hoped-for work on the other side of the Mediterranean. These trials add layers to understanding of today’s news.