Obama’s “New Approach” Towards the International Criminal Court

When asked in 2004 whether the United States should join the International Criminal Court (ICC), Barack Obama (then Senator) stated that “the United Sates should cooperate with ICC investigations in a way that reflects American sovereignty and promotes our national security interests.” After becoming President in 2009, his new team immediately began reviewing the US policy on the ICC. Obama, a supporter of international law and multilateral approaches, was inclined to engage with the ICC after the former Bush administration mostly ignored and hindered the Court’s work. The prospect of a new US relationship with the ICC was enthusiastically received by many ICC member states and civil society groups; they believed a page was being turned. But is this enthusiasm still founded? One year on, the question arises what the Obama administration has done so far to cooperate with the Court, and whether it is likely that the US will become a member of the ICC any time soon.

President Obama’s first move came in February 2009, when he supported the ICC’s decision to issue an arrest warrant for the Sudanese President Omar al-Bashir in connection with international crimes committed in Darfur. After that, in August 2009 during a trip to Kenya, Secretary of State Hillary Clinton expressed regret that the US had not yet joined the ICC. This was a significant shift in US policy toward the ICC. Following these promising words, the US attended a conference in The Hague in November 2009 with member states of the ICC for the first time in eight years. At this conference the US announced that it would also attend the ICC Treaty Review Conference in Kampala, Uganda, in May 2010.

The Obama administration’s engagement with the ICC is further demonstrated by its open criticism of African nations who fail to commit to the Court; an interest the US has never shown before. The US has spurred Kenya to better protect witnesses testifying at the ICC against top Kenyan officials, implicated in the country’s post-election violence of 2008. Furthermore, the US has placed continued pressure on the Democratic Republic of Congo to arrest General Bosco Ntaganga, following an ICC arrest warrant.

This new US call for justice has been praised by many civil society groups, but some have also been very critical. The critics claim that the US should set an example by joining the ICC first, before pointing fingers at others. The US Ambassador at Large for War Crimes, Stephen J. Rapp, has stressed, however, that the US will not join the ICC in the foreseeable future. In fact, he declared that the US is prepared to “listen and to work with" the ICC, but that is has no intention to join it. Possible charges against American troops and diplomats remain a concern for the US, according to Rapp.

The US is also expected to play an important role at the ICC Treaty Review Conference in Uganda next month. One of the thorny issues at the Conference will be whether the Court can prosecute “crimes of aggression”. This would enable all ICC member states to arrest individuals accused of that crime. The US has already indicated that it will argue against this proposal and that it will push for UN Security Council authorization before the ICC could act on such a crime – the same Security Council in which the US retains an exclusive veto right. In other words, the US does not want to give the Court an opportunity to prosecute American officials for aggressing on the territory of member states.

In conclusion, one might say that the US has indeed made greater efforts to engage with the ICC since President Obama took office. The new administration has participated with the Court’s governing bodies and has provided support for its ongoing prosecutions, and these efforts indicate a positive step forward. On the other hand, the US is demanding other countries to fully cooperate with the Court while remaining a non-member of the ICC, and through diplomatic means, it is trying to prevent the expansion of the Court’s jurisdiction. It appears that the US seeks to cooperate with ICC investigations in a way that accommodates American sovereignty and promotes its national security interests. This sounds very much like Obama’s intention from the outset. Therefore, a clear distinction must be drawn between US engagement and full cooperation with the ICC. As for the US becoming a member of the ICC any time soon? The simple answer to this question is no. Even with Obama as President, the ICC will only be used by the US to promote national interests and not international justice.

By Paulo da Rosa

Intellectual Property Rights play a New Role in International Trade

A landmark trade agreement between the US and Brazil has put intellectual property rights (IPRs) centre stage in a role IPRs have never played before – as a major bargaining chip of emerging economies. In 2008 Brazil won a trade dispute resolution at the World Trade Organization (WTO), in which the arbitration committee found that US subsidies for domestic cotton production violate global trade laws. This sparked a round of settlement negotiations between the two trading partners that seems only now finally settled. The New York Times reported that an agreement came one day before Brazil was to impose WTO-authorized trade retaliations, amounting to nearly $830 million. Along with tariffs on a number of American goods, these retaliations threatened to suspend IPRs.

This settlement is particularly remarkable because IPRs have often been scrutinized as a mechanism that protects the interests of agribusiness and pharmaceutical companies. However, this episode of bilateral trade negotiation, which marks the first time a country (Brazil) has threatened the suspension of IPRs with authorization from the WTO, seems to have induced a fairer trade deal with an economic giant (the US). The Brazilian action to suspend IPRs, which for example would have broken pharmaceutical patents prematurely, could have cost American businesses up to $239m.

As the NY Times reported, retaliation in trade has traditionally been the preserve of the largest developed countries. But Brazil has displayed that threatening to suspend IPRs is a trade retaliation mechanism that gives leverage to small and emerging economies as well.

Trade Related Aspects of Intellectual Property Rights (TRIPS) have been a contentious issue in international trade for quite some time. Those in favor of strict intellectual property regulation propose that strong IP regimes promote innovation by securing copyright and patent laws. Critics of current IP regimes, however, highlight problems where unequal access to these regimes have allowed corporate interests to privatize traditional knowledge, including folklore and other aspects of the scientific commons like genetic materials. Known as biopiracy, pharmaceuticals have been criticized for patenting “medical discoveries” that in effect were derived from traditional knowledge of local plants of indigenous communities. The companies with the access and ability to follow through the patenting procedures have been the beneficiaries of these discoveries, while the sources of these alchemic practices are never fully compensated. Furthermore, in the global food system and agriculture, IPRs have had far-reaching effects. Biotechnology companies use IPRs to monopolize seed banks, charging small producers technology fees and threatening farmers with legal action when patented seeds are used without a license, even if crops are infiltrated through ecological processes.

Nevertheless, while the ability to threaten the suspension of IPRs in trade negotiations does not curb the way companies manage to wield IPRs in their own interest. It does signify new dynamics among nations in trade negotiations. Because securing IPRs in the poorest countries is paramount in generating profit in the richest countries, some leverage is now provided to small and emerging economies where it never existed before. Brazil, in this case, managed to demand concessions in the cattle industry vis-á-vis the US, and negotiated to receive a technical assistance fund – a token that represents the value of retaliation the WTO had authorized. This development will certainly be acknowledged by trading partners everywhere, especially African cotton producers who as well have grievances regarding American cotton subsidies. IPRs can now be recognized as a major chip at the negotiating table for emerging economies.

By: J.D. Fridman

ICC or UN Double Standards?

In July 2009, the African Union (AU) announced that it would not cooperate with the International Criminal Court (ICC) in arresting the President of Sudan, Omar- al-Bashir. This decision followed the ICC arrest-warrant for al-Bashir on charges of crimes against humanity and war crimes in Darfur. Several AU leaders, including Libya’s Omar el-Gaddafi and Rwanda’s Paul Kagame, claim that the ICC is placing undue focus on the African continent while neglecting human rights violations in places like Gaza, Tsetsenia, Iraq and Afghanistan. They also claim that the ICC’s search for justice undermines the ongoing efforts for peace in the Sudan region. These claims were reinforced when the ICC Appeals Chamber decided to renew the possibility of a genocide charge against al-Bashir and the Court’s new investigations into alleged human rights violations in the Ivory Coast, Kenya, Guinea and Nigeria. However, the question is whether these accusations are justified. One might consider that it is in fact the UN Security Council who’s applying double standards and not the ICC.

The jurisdiction of the ICC is based on the principle of complementarity. In other words, the ICC only has jurisdiction when a domestic legal system is unable or unwilling to deal with an international crime. The statute of the ICC provides that the Court can only exercise jurisdiction if the alleged crimes took place on the territory of a state party, when the accused is a national of the state party, or when a situation is referred to the ICC by the Security Council. Furthermore, the Court can only exercise jurisdiction with respect to crimes committed after 2002. Another important provision is that high-ranking state officials do not enjoy immunity before the ICC.

To date the ICC has only brought cases against African residents from Uganda, the Democratic Republic of Congo, the Central African Republic and Sudan. The first three countries are all parties to the ICC and have referred the cases themselves as a result of their domestic inability to prosecute the suspects. Thus, the principle of complementarity has been relevant in all three cases. Sudan is not a party to the ICC. The Security Council referred the Darfur case to the ICC after a UN investigation. Similar to Sudan, the United States, Israel and Russia have not ratified the ICC Statute. Thus, the only way for the ICC to bring cases against persons from these countries would be through action by the Security Council. This of course will never happen as long as the United States and Russia remain permanent members of the Security Council with their exclusive veto rights. Therefore, African leaders should not blame the ICC but rather the UN where double standards are deeply rooted, especially within the Security Council. The ICC is an independent and impartial Court. Its role is to apply the law wherever and whenever it can. The African cases are merely an illustration of the ICC’s narrow jurisdiction and not its misuse of indictments.

Paulo da Rosa