David J. Scheffer

The United States and the International Criminal Court

The United States has had and will continue to have a compelling interest in the establishment of a permanent international criminal court (ICC). Such an international court, so long contemplated and so relevant in a world burdened widi mass murderers, can both deter and punish diose who might escape justice in national courts. Since 1995, the question for the Clinton administration has never been whether there should be an international criminal court, but rather what kind of court it should be in order to operate efficiently, effectively and appropriately within a global system that also requires our constant vigilance to protect international peace and security. At the same time, the United States has special responsibilities and special exposure to political controversy over our actions. This factor cannot be taken lightly when issues of international peace and security are at stake. We are called upon to act, sometimes at great risk, far more than any other nation. This is a reality in the international system.

Atrocity Crimes Framing the Responsibility to Protect

The principle of the “responsibility to protect” (R2P) has achieved, within a remarkably short span of time, a rhetorical presence in international politics and international law that has invited both praise and skepticism.’ In its simplest and most widely accepted formulation, R2P represents the responsibility of governments and the international community to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity—all of which are categories of significant crimes that should be designated as atrocity crimes, both for purposes of accuracy when describing the basket of relevant crimes and for simplicity as a means of communicating with the global populace. In this chapter I will examine what is meant by each of these categories of crimes and by the unifying term, atrocity crimes. An understanding of the legal basis for R2P must underpin efforts to activate the principles of R2P on the world stage. In reality, not all atrocity crimes, particularly some categories of crimes against humanity and war crimes, necessarily justify military intervention as the most extreme application of R2P. Drawing the line between atrocity crimes that would merit and those that would lack justification for military intervention when all else fails under R2P could become an extremely difficult task in world affairs.

The Ethical Imperative of Curbing Corporate Tax Avoidance

If the future of human rights is dependent on the capacity of the state to fulfill them, then one must focus on how the private sector interfaces with public values—an interface that directly affects how billions of people survive both economically and with dignity. During the last few years reports about multinational corporations shielding phenomenal profits from meaningful taxation have troubled governments and individual taxpayers alike. But there has been little effort to associate such tax avoidance schemes with corporate abdication of responsibility for advancing critical societal goals. Instead, much of the ensuing debate has centered on how to tax corporate profits fairly and more efficiently. While the ideas being marketed in this area are enlightening, there has been less discussion about why corporate taxation is a worthy public goal or what corporations should do voluntarily. The linkage between corporate tax avoidance and “corporate social responsibility” (CSR) has not yet been clearly drawn, but the moment has arrived to bridge the gap. That task may necessitate changing, fundamentally, the ethical framework within which corporate officers, boards of directors, shareholders, tax advisers, and stakeholders in general operate.

A Review of the Experiences of the Pre-Trial and Appeals Chambers of the International Criminal Court Regarding the Disclosure of Evidence

This chapter examines some of the issues that have arisen in the Pre-Trial Chamber (PTC) and Appeals Chamber of the International Criminal Court (ICC) on disclosure of evidence, and offers some ideas on how to improve the overall procedure. The chapter discusses the origins of the PTC including the U.S. delegations opposition to legislating proprio motu powers for the Prosecutor. The Extraordinary Chambers in the Courts of Cambodia (ECCC) experience demonstrates that there is a way, at least in theory and very soon perhaps in practice as well, for a fusion of common law and civil law in the pre-indictment phase of atrocity crime investigations. A new methodology for the ICC, in particular its PTC, could arise from two options; the options are explained in the chapter. The chapter also analyses the performance of PTC I, so far. Keywords: Appeals Chamber; atrocity crimes; ECCC; International Criminal Court (ICC); Pre-Trial Chamber (PTC)

The Complex Crime of Aggression under the Rome Statute

Four discrete issues demonstrate how complex the crime of aggression under the Rome Statute of the International Criminal Court will be following the amendments approved in Kampala in June 2010. First, the absence of an explicit magnitude, or gravity, requirement for determining an act of aggression ignores the reality of how matters are referred to the ICC as well as how one first determines the existence of aggression. The gravity test of a crime of aggression is insufficient and misleading in arriving at a methodology for a logical determination of both acts and crimes of aggression. An agreed understanding in Kampala to resolve the dilemma is fraught with contradictions. Second, the amendments fail to address how the ICC should respond to a Security Council determination that an act of aggression has not occurred. Third, the lingering debate over how the Rome Statute should have been amended to activate the crime of aggression will burden the Assembly of States Parties, which should focus on arriving at a united interpretation of the procedures used to approve the Kampala amendments. Fourth, given the many permutations of how states will fall within or outside the jurisdiction of the International Criminal Court regarding the crime of aggression, the resulting patchy landscape of coverage should surprise no one.

East West Street: On the Origins of “Genocide” and “Crimes Against Humanity.” By Philippe Sands. New York: Alfred A. Knopf, Penguin Random House, 2016. Pp. xii, 425. Index.

Kingdom, and the United States, to name but a few—has what Michael Walzer calls “a common standpoint of morality.”3 It “represents the gradual shaping of a common life—at least a common political life.”4 It integrates “rules and practices [the participants] slowly settle[d] on” possibly after long and bitter struggles, rules and practices the participants “want to pass on . . . to their children and grandchildren.”5 Those struggles and their outcome are recorded and praised in the narratives taught to their children. They are celebrated in rituals of patriotic commitment that foster the sensation of membership in a unique national community associated with a particular geographic space. People have other identities, but if the national one weakens, the sources of division shadowing every society will quicken. Patriotism, the celebration of an encompassing national identity, makes it possible for people otherwise separated by age, class, ideology, lifestyle, religion, and other typical sources of division to feel some measure of compassion for each other, some empathy, a sufficient sense of connection to inspire at least some measure of mutual support, the measure varying over time and circumstance. Remove that sense of connection and you end up internally with the conditions of life native to the relations of states: the strong do what they will, the weak endure what they must . . . or they revolt. And then we have a Syria. Sovereignty has been the defining feature of a nationally organized community. The mutuality of concern among people almost entirely unknown to each other that is a property of such communities is their moral upside. Their downside, of course, is the inherent narrowing of the stream of concern to a mere trickle when it reaches the nation’s borders. Five thousand dead American soldiers in Iraq is a tragedy in the hearts of their fellow citizens. Five hundred thousand dead Iraqis is a statistic for most Americans, never mind for the citizens of states free from any material responsibility for the disaster. Sovereignty is a symbol of the apparent limits of sustained empathy, of deep moral concern, a symbol of the failure of the great mass of even well-educated people to acquire a cosmopolitan sensibility. Sovereignty is an expression of, and arguably reinforces, the sentiment to control the national borders even at the expense of desperate people seeking nothing more than a safe bed for the night. It embodies the sentiment that international institutions and norms are finally transactional, good as long as they serve our national interest, which we, not they, will define. If they simultaneously serve the wider human interest, that is incidental. So sovereignty is not an expression of our best potential selves. But remove it and, if history tells us anything independent of the answers we prefer to hear, it tells us that the result will not be to widen the boundaries of moral concern but to narrow them and spread disorder. Radically weaken the state by questioning its prerogatives and value, and what will replace it as a means to rescue the tens of millions of people left in the wreckage of globalization’s creative destruction? Sovereignty, as I believe Dieter Grimm is saying in his thoughtful, impressively measured way, still has work to do until we find a better instrument for mitigating the human condition.

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El texto analiza las reformas efectuadas en Kampala al crimen de agresion, bajo el Estatuto de la Corte Penal Internacional. En particular, el autor indaga sobre la definicion del crimen, sus filtros jurisdiccionales, los elementos del crimen y los entendimientos adoptados en Kampala. El articulo concluye revisando la participacion de Estados Unidos en relacion a la adopcion del crimen de agresion y sugiere las posibles estrategias para un futuro involucramiento con la comunidad internacional, tras el acuerdo de Kampala.