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27. Legal Adviser Bellinger's remarks on international tribunals, at GW Law School conference (May 11, 2006)


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International Courts and Tribunals and the Rule of Law

George Washington University School of Law

Remarks by John B. Bellinger, III

May 11, 2006

Thank you for that kind introduction. It is a privilege to be here and I appreciate the opportunity to address this Conference and to see and meet so many friends and colleagues. This forum provides an excellent opportunity for us to share our views about the role of international tribunals in the resolution of international disputes and in international criminal justice.

Introduction

Speaking to the topic as a whole, it should be uncontroversial that the United States is among the world’s leaders in supporting the development of international courts and tribunals. For example, in the economic arena, the United States has long been dedicated to the resolution of disputes through specialized tribunals, and we have continued that commitment through our cooperation with dispute settlement panels under the World Trade Organization. We have also been a leading advocate of ad hoc tribunals to resolve disputes between investors and states pursuant to bilateral and multilateral investment agreements.

My remarks today, however, will focus on two other categories of international courts and tribunals: (i) tribunals for the resolution of state-to-state disputes over the rights and obligations of states under international law, such as the International Court of Justice; and (ii) criminal tribunals through which the international community seeks to hold individuals accountable for war crimes and other atrocities, including the International Criminal Tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone, and the International Criminal Court.

Contrary to what is sometimes suggested, the United States believes that such state‑to‑state and criminal tribunals make valuable contributions, and has supported them in both word and deed. International courts and tribunals can assist states in resolving disputes that they have been unable to settle through ordinary diplomacy. They can provide an alternative to the resolution of disputes or adjudication of criminal liability through domestic courts where those courts may be ill-equipped or ill-suited to address particular matters. And they can foster uniformity in the interpretation and application of international agreements.

Of course, the United States has sometimes had concerns about aspects of the work of particular tribunals. Our concerns about the International Criminal Court are well known. We also have some concerns about the operations of the ICJ as well as the efficiencies of the ICTY and the ICTR.

Our general approach to international courts and tribunals is pragmatic. In our view, such courts and tribunals should not be seen as an end in themselves but rather as potential tools to advance shared international interests in developing and promoting the rule of law, ensuring justice and accountability, and solving legal disputes. Consistent with this approach, we evaluate the contributions that proposed international courts and tribunals may make on a case-by-case basis, just as we consider the advantages and disadvantages of addressing particular matters through international judicial mechanisms rather than diplomatic or other means.

Since this approach requires close attention to context, I’d like to consider some examples of state‑to‑state and criminal courts and tribunals in turn, and to offer some thoughts on the types of contributions each may make, and how we might best ensure that they fulfill that promise.

Dispute Resolution Tribunals

Tribunals for the resolution of traditional state-to-state disputes have historically played a useful role in providing a neutral, depoliticized forum for resolving disputes between states that are difficult to resolve through regular diplomatic means. Sometimes this is because they involve contested facts and complicated legal issues, which can best be evaluated and resolved through a judicial process. In other cases, a large number of claims between states, often involving treatment of each others’ nationals, may prove too complicated or time consuming for states to resolve diplomatically and an international tribunal may prove helpful in easing this burden. In still other cases, states may find it politically difficult to compromise on matters in dispute but can use a third-party decision-making mechanism to overcome the diplomatic impasse.

The most prominent Court in this category, the International Court of Justice, celebrated its 60th anniversary last month and the Office of the Legal Adviser and our Embassy participated in events in The Hague commemorating that important milestone. The United States has long supported the ICJ and has appeared before it in a significant number of cases. We have worked hard to maintain a seat for a judge from the United States, and were extremely pleased last November when Judge Thomas Buergenthal was reelected to the Court. One of my first trips abroad as Legal Adviser was to visit The Hague, and I very much enjoyed the opportunity to meet and exchange views with the members of the Court.

The United States has affirmatively looked to the ICJ in the past as a neutral forum to facilitate the resolution of disputes. In the wake of the seizure of the U.S. Embassy in Tehran, we looked to the Court to help enforce our rights under the Vienna Conventions on Diplomatic and Consular Relations. In the early 1980s, we agreed to submit to the ICJ a dispute with Canada over the maritime boundary in the Gulf of Maine. And later, in the 1980s, we agreed with Italy to submit the ELSI case to the Court, inviting it to resolve a dispute arising under the U.S.-Italy Friendship Commerce and Navigation Treaty.

Our more recent experience before the Court has been in more politically charged cases that were not submitted by agreement. In the Oil Platforms case, Iran sought to use a friendship, commerce and navigation treaty to challenge U.S. efforts to protect neutral shipping in the Persian Gulf from Iranian attacks. In the Lockerbie case, Libya sought to use an aviation terrorism convention to challenge the authority of the UN Security Council to impose sanctions for Libya’s failure to cooperate in efforts to bring to justice those responsible for the bombing of Pan Am flight 103. In a series of cases against NATO members, Serbia invoked the Genocide Convention in connection with NATO’s actions to end atrocities in Kosovo. In the Breard, LaGrand, and Avena cases, implementation of the death penalty by the United States was challenged under the Vienna Convention on Consular Relations; even if those latter cases are not viewed as “political,” they unquestionably invited the Court into a complex area beyond its expertise, namely the domestic criminal justice system. And requests for advisory opinions from the Court on issues related to the Israeli-Palestinian conflict and the legality of nuclear weapons invited the Court into highly charged, fluid political disputes.

The use of the Court for such political matters carries risks. In the long run, the willingness of states to refer disputes to the Court depends on their confidence in its objectivity and impartiality and their sense that the court is an appropriate forum for resolution of the dispute in question. Where the Court addresses sensitive political issues, there is a risk that its decisions may be viewed as reflecting the Court’s desired political outcomes rather than its dispassionate analysis of the facts and the law. Similarly if the Court is asked to address issues that require expertise it does not have and cannot acquire, there is a substantial risk of decisions that simply don’t make sense.

Of course, the Court does not control the types of cases that states choose to put before it. In this regard, states themselves must consider carefully the impact of the increasing referral of political matters on the Court’s long-term institutional role.

As one example in this regard, the United States opposed the decision of the UN General Assembly in 2003 to seek an advisory opinion from the Court on matters related to the Israeli security barrier. We were concerned that the Court’s involvement in these issues risked interfering with the agreed framework for direct negotiations between the Israelis and Palestinians to resolve the issues between them and risked politicizing the Court. We were also concerned that the Court’s advisory opinion procedures were ill suited to accommodate a matter as factually complex as the one referred by the General Assembly, particularly without the full participation of the interested parties.

We believe that these concerns were largely borne out in the advisory opinion rendered by the Court. In practice, the opinion has made little meaningful contribution to efforts to resolve issues between the Israelis and Palestinians. Also, the Court’s opinion is open to criticism on its treatment of both factual and legal issues, in some cases due more to process than to any fault on the part of the Court. For example, the fact that the General Assembly had already declared itself on many of the issues, risks creating the impression that the Court was being used to advance a particular set of political claims.

Also of concern are efforts in some quarters to suggest that aspects of the Court’s advisory opinion, such as that relating to the extraterritorial application of the International Covenant on Civil and Political Rights, have binding force on member states in contexts that go beyond those addressed in the advisory opinion. This of course, is not the case. Under the ICJ statute, states are bound only by the decisions — and not by the Court’s reasoning underlying those decisions — in contentious cases to which they are parties, and advisory opinions have no binding force at all, but rather serve to provide guidance on legal questions to the UN organ or specialized agency requesting them.

For this range of reasons, we hope that the General Assembly’s decision to seek an advisory opinion in this case does not reflect an increased desire to use the Court’s advisory opinion jurisdiction in similar cases in the future, since doing so would risk damaging the Court’s credibility.

While the Court does not control the matters referred to it, there are steps the Court can and should take to avoid assuming a role that calls into question its objectivity and non-political character. In the Israeli security barrier case, for example, the Court could have declined to render an advisory opinion, on the ground that the General Assembly’s request was essentially a request that the Court adjudicate a contentious case without the consent of the affected parties rather than a bona fide request for an advisory opinion.

The Court’s handling of the Oil Platforms case in 2003 is another example where, in our view, the Court should have taken steps to avoid suggestions that it sought to play a political role. In that case, the Court dismissed on the merits Iran’s claim against the United States because Iran failed to meet its affirmative burden of showing that U.S. actions against Iran’s platforms had affected commerce protected under the U.S.-Iran Treaty of Amity. Yet, in spite of this conclusion, the Court went on to express views on, and indeed purported to decide, contentious issues concerning the law on the use of force that were unnecessary to its ultimate judgment.

The Court’s treatment of these issues suggested a desire on its part to influence political decisions on matters wholly unrelated to the case before it — specifically, on questions then being considered relating to the use of force in Iraq. One member of the Court, in a separate opinion, defended the Court’s decision to address the use of force issues, indicating that in light of the contemporary debate about the law relating to the use of military force, when “supplied” with a case allowing it to do so, the Court ought to take every opportunity to participate in that debate.

This simply is not a wise approach for the Court. States cannot have confidence in the objectivity of a tribunal if they fear its decisions will be motivated by the judges’ agendas rather than by an objective and judicious analysis of the relevant facts and law. Judges must realize that whether they are “supplied” by states with like cases in the future depends on their ability to excel in a more traditional judicial role, and that stepping outside that role may harm not only their own reputation but also the reputation of international tribunals in general.

Having stated this concern, I want to emphasize that an effective International Court of Justice serves our interests in advancing the rule of law and encouraging the peaceful resolution of disputes between states. This does not mean that we think the Court will be the best forum for resolving every dispute that may arise between states. In this regard, it is well known that the United States withdrew from the compulsory jurisdiction of the Court in 1984. This is consistent with our preference for assessing the suitability of particular disputes for resolution before the Court on a case by case basis. Moreover, we are not alone in taking this approach; indeed, only 65 states have accepted the Court’s compulsory jurisdiction and many of those have done so subject to reservations. We have also recently withdrawn from the Additional Protocol to the Vienna Convention on Consular Relations which provides for ICJ jurisdiction over disputes under that Convention. We did so because the Court’s recent decisions in cases under the Vienna Convention provided for remedies that went well beyond those contemplated by the United States when it became party to that Convention, and in our view inappropriately interfered in our domestic criminal proceedings. In our view, disputes over the particular means of compliance with obligations under the Vienna Convention are more appropriately a matter for states to resolve through diplomatic means.

We will continue, however, to support the Court’s role as a neutral, depoliticized forum for resolving disputes among states in appropriate cases. President Bush’s recent determination that the United States will comply with the Avena decision in spite of our continuing disagreement with both the Court’s outcome and its reasoning demonstrates the depth of our respect for the Court’s role and its judgments.. As the Court enters its next 60 years, we look forward to working with the Court, including its new President, Judge Rosalyn Higgins, and with others in the international community to foster its effectiveness.

Criminal Tribunals

I’d next like to turn to the role of international criminal tribunals. Consistent with our overall approach on rule of law issues, we favor solutions that will best establish and empower local institutions for ensuring criminal justice and that will, in turn, inspire local ownership of the results. For this reason, we believe that domestic solutions for criminal justice are preferable to international solutions whenever possible. Helping states develop strong judicial institutions is a central part of our strategy for promoting the rule of law.

At the same time, the United States has often supported the use of international or hybrid courts to investigate and prosecute crimes that would be difficult to address through domestic courts. In some cases this is because domestic courts lack the capacity or resources to address particular crimes. In other cases, the involvement of international actors may help increase domestic actors’ confidence in the objectivity and legitimacy of criminal processes, especially where domestic societies may be deeply divided along political, ethnic, or other lines.

For example, in the cases of the former Yugoslavia and Rwanda, we supported the UN Security Council’s creation of international criminal tribunals as a means of ensuring accountability for the terrible crimes committed during the conflicts and aiding the process of post‑conflict reconciliation. These tribunals are wholly international in character: they are subsidiary organs of the Security Council; they are made up of judges elected by the United Nations; and they have jurisdiction over crimes arising under international law. The UN Security Council resolutions creating the tribunals require all states to cooperate fully with the tribunals, and the United States has done so since their inception. We provide about one quarter of the total cost of each tribunal — last year we contributed $35.5M for ICTR and $43.7M for ICTY, and by year’s end our total contributions to the two tribunals since their inception will have exceeded half a billion dollars. And we do far more to show our support than just writing checks. The United States also cooperates with requests for information and access to witnesses from both the prosecution and defense to help ensure full and fair trials. Our political support has been strong, too. The United States has consistently pressured states to cooperate with the tribunals and to help the tribunals secure custody of indictees, including, in the case of Serbia, through withholding financial assistance. Finally, last June, Secretary Rice, within months of being sworn in, made a point of meeting with the presidents and chief prosecutors of the ICTY and the ICTR to confer with them on the progress and challenges of the Tribunals and to express her strong support for their work.

Although we have strongly supported the ICTY and the ICTR, we have expressed concerns about their cost — which, together, amounts to over $2 billion to date — and their efficiency of operations. As a result, we have urged the ICTY and the ICTR to ensure that they adhere to their Security-Council endorsed completion strategies of completing trials of first instance in 2008 and appeals in 2010. We recognize that this is a daunting endeavor, and needs to be balanced with protecting the rights of the accused, but timely and effective trials are an important component of justice.

The international community followed a somewhat different model in creating the Special Court for Sierra Leone than it did for ICTY and ICTR. Instead of being created by a Security Council resolution, the Special Court was established pursuant to an agreement between the UN and the Government of Sierra Leone. The Special Court has its seat in Sierra Leone, and includes judges appointed by both the Government of Sierra Leone and the UN Secretary General, and its statute provides for the prosecution of crimes under both Sierra Leonean and international law. These elements provide a greater degree of local involvement than in the case of ICTY and ICTR. This hybrid model, combining local and international features, may be a promising model for future cases.

As with ICTY and ICTR, the United States has provided extensive financial, technical and political support to the Special Court for Sierra Leone. Most recently, and perhaps most importantly, the United States made substantial efforts at the highest levels of our government to press for the transfer of former Liberian President Charles Taylor to the Special Court. This included efforts to persuade the Government of Nigeria, where Taylor had previously been granted exile, to facilitate his transfer, and our leading role in securing passage of a UN Security Council resolution allowing UN peacekeepers in Liberia to apprehend Taylor should he be found in Liberia and transfer him to the Special Court. Arrangements have largely been concluded to transfer him to The Hague, where the Special Court would hold his trial in facilities leased from the ICC, with legal proceedings exclusively under the jurisdiction of the Special Court. The major obstacle to his transfer is the identification of a country to imprison him should he be found guilty. Consultations are taking place in that regard, and we hope that a country, perhaps one that has not done much otherwise to support the Special Court, will soon show its commitment to international justice and agree to enforce any sentence that may be handed down.

Another matter currently unfolding is the effort by the United States and others to assist Lebanon to bring to justice those responsible for the assassination of former Lebanese Prime Minister Rafiq Hariri. The UN Security Council has passed a resolution requesting the UN Secretary General to negotiate an agreement with the Government of Lebanon for the establishment of a tribunal of an international character to address these matters. The United States, France and the United Kingdom have taken a leading role in the Council to help Lebanon see justice done in a volatile environment in the region. The Hariri assassination case demonstrates that there is no off-the-shelf solution to the complex issues raised by international criminal justice, and that a pragmatic approach — along with considerable effort, both in public and behind the scenes — may be required to adapt existing models to the needs of a particular situation.

ICC

The United States does not support every example of international criminal tribunals. Our concerns about the International Criminal Court are well-known. While we share common goals with many ICC supporters, we disagree with the ICC’s method for achieving accountability. From the U.S. perspective, the ICC lacks an adequate system of checks and balances, and the Rome Statute gives the ICC prosecutor the ability to initiate cases without appropriate oversight by the UN Security Council. This creates a risk of politicized prosecutions, and infringes on the Security Council’s primary role under the UN Charter for the maintenance of international peace and security. In this connection, we object as a matter of principle to the ICC’s claim of jurisdiction over persons from states who have not become parties to the Rome Statute.

The United States has nonetheless demonstrated that our differences over the ICC will not prevent us from finding ways to work with ICC supporters to bring to justice perpetrators of genocide, war crimes and crimes against humanity. For example, we accepted adoption of the UN Security Council resolution referring the situation in Darfur to the ICC because we felt it was important for the international community to speak with one voice on accountability there. And we have expressed our willingness for the Special Court for Sierra Leone to hold the trial of Charles Taylor in the ICC facilities in The Hague in order to minimize the risk that his trial could pose to security and stability in West Africa.

As we have said many times, we respect the decisions of states that have become parties to the Rome Statute; we ask in return that other states respect our decision not to do so and not to subject U.S. persons to the ICC’s jurisdiction. We share with parties to the Rome Statute a commitment to preventing genocide, war crimes, and crimes against humanity, and to ensuring accountability when they occur. We believe that divisiveness over the ICC distracts from our ability to pursue these common goals, and hope that supporters of the Rome Statute will join us in constructive efforts to advance our shared values. Javier Solana said it well when he stated last year that there needs to be a “modus vivendi” between supporters of the ICC and the United States.

The contentious debate over the ICC has obscured the enormous and indispensable contributions that the United States has made in matters of international criminal justice. Our experience has been that establishing a tribunal, whether by Security Council resolution, treaty, or domestic statute, is only a first step. A state’s real commitment lies in its efforts to ensure that wrongdoers are apprehended, that tribunals have adequate resources, and that full and fair trials are actually conducted. By these measures, the United States is certainly among the world’s leaders in promoting international criminal justice.

IHT

This also explains why the United States has been so disappointed at the lack of international support for the Iraq High Tribunal. The Iraqis determined that a domestic Iraqi trial mechanism was the best way to achieve justice and reconciliation in their country, and, from the beginning, they sought international support for their effort. The United States responded swiftly to Iraqi requests, establishing a Regime Crimes Liaison Office, and allocating $128 million to support the Iraqi-led process. But, with valued exceptions — including the British and Australian governments and several NGOs, such as the International Bar Association and the International Legal Assistance Consortium — these U.S. efforts have mostly stood alone. We have heard several reasons why governments and NGOs are reluctant to help, but none is compelling enough to justify a complete failure to assist the Tribunal. From the U.S. perspective, it is difficult to reconcile the international community’s de facto boycott of the Tribunal with the insistent calls for justice and accountability that existed prior to the Iraq intervention.

Conclusion

The U.S. position on the Iraqi High Tribunal illustrates a more general theme I would like to address in closing. Like the rest of the world, we value appropriate international tribunals because they serve grander ambitions – resolving disputes and promoting international criminal justice. There is also a broad agreement, I believe, that international courts and tribunals are one tool among many to achieve these important ends Maximizing their potential requires us to identify both the situations in which international courts and tribunals can play a role and the type of tribunal appropriate to each situation. It also requires courts and tribunals to be sensitive to the role they play in relations among states, and to tailor their approaches to best meet the needs of states and of the international system. The United States has been and will continue to be a strong advocate for accountability and a strong supporter of efforts to bring peace and rule of law to countries whose populations have suffered grave atrocities. In pursuit of the accountability, we will endeavor to preserve an appropriate role for sovereign states in ensuring justice; craft responses to local conditions and needs; and keep the door open to a variety of accountability options, in order to incorporate lessons learned, address new developments, and adapt to new challenges.



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