Q&A with Beth Van Schaack
Santa Clara Law Professor Beth Van Schaack is an authority on the workings of international criminal justice systems. Van Schaack holds a B.A. from Stanford and a J.D. from Yale Law School, where she was an editor of the Yale Law Journal. Just out of law school, she worked for the Office of the Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda. Three years ago, she participated as a prosecutor in a mock trial of Sudan's President Omar Hassan al-Bashir in New York designed to draw attention to the atrocities in Sudan and the need to hold its president accountable.
Van Schaack, who joined Santa Clara Law in 2003, teaches International Criminal Law, Transitional Justice, The Legal Aspects of War, Human Rights: Theory & Practice, and Civil Procedure, among other courses. She also coaches the law school's Jessup International Moot Court team, among others. She plays a key role in the school's international law program, one of Santa Clara Law's "destination" programs that draw students from across the country and around the globe. To read more about Beth Van Schaack see her faculty web page.
What is the International Criminal Court?
The ICC is an international court established by states through a treaty to prosecute the most serious international crimes: genocide, crimes against humanity, war crimes, and (eventually) aggression.
When did you first develop an interest in international criminal law?
When I was in law school, Yale received a grant from the U.S. State Department to study the desirability and feasibility of staging a legal accounting for the crimes of the Khmer Rouge in Cambodia (1975-79). I was one of the students sent to Phnom Penh to teach a course on international criminal law (ICL) to Cambodian jurists, journalists, human rights workers, government officials, and members of the military and police. The goal was to increase the legal literacy with respect to ICL so that there would be a corps of professionals who could staff an international tribunal if one were established. Following this experience, I wrote my student note on ICL and then obtained a law clerk position right out of law school with the International Criminal Tribunal for the Former Yugoslavia in The Hague (ICTY). I have been passionate about this topic ever since.
Can you relate some of your experiences?
I was recently in The Hague coaching our ICC moot court team. As part of our trip, we were able to sit in on trials proceeding before the ICC and the ICTY. I've blogged about our trip here: http://intlawgrrls.blogspot.com/2009/02/international-justice-overload.html
How did the International Criminal Court (ICC) come to be?
It was first contemplated in the post-World War II period as a permanent version of the ad hoc Nuremberg and Tokyo tribunals, but the political will to create such a tribunal dissipated during the Cold War. When it appeared that genocide had returned to Europe with the dissolution of the former Yugoslavia, the international community dusted off those plans and once again began negotiating for the creation of such a body. In 1998, members of the international community completed a multilateral treaty setting forth the basic contours of the Court. That treaty entered into force on July 1, 2002 with the deposit of the 60th instrument of ratification. Some basic details are available online. It now has over 100 members.
What is the ICC's relationship with the UN?
It is an independent, treaty-based judicial body. The Security Council can trigger the Court's jurisdiction if it determines that a particular conflict constitutes a threat to international peace.
Where do the judges come from?
They're from all over the world, but they come from states that are party to the treaty establishing the ICC. According to the ICC, they must be "chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices." Interestingly, there are a high number of women on the court—more than on many other international tribunals.
What charges does the ICC focus on?
So far, genocide, war crimes, and crimes against humanity. Eventually, the Court will exercise jurisdiction over the crime of aggression. When the ICC Statute was being drafted, the definition of the crime of aggression emerged as a sticking point in the negotiations, so states essentially punted. They left a placeholder in the treaty and are now trying to come up with a consensus definition. This will have to be approved by the state parties before the Court will have jurisdiction over the crime. At the moment, the only crimes pending before the Court are war crimes and crimes against humanity. The prosecutor sought genocide charges against al-Bashir, the president of Sudan, but these were not confirmed in a recent ruling. The ICC concluded that the prosecutor had not adduced sufficient evidence that Bashir acted with the necessary genocidal intent: the intent to destroy a protected group in whole or in part.
When does the ICC take action?
There are three "trigger mechanisms" for the Court: a state can refer a situation to the Court, the Security Council can refer a situation to the Court, and the prosecutor can, on his own, initiate a prosecution with approval from a pre-trial chamber. With a state referral or a prosecutor-initiated case, the nationality state or the territorial state must have joined the ICC Statute. The Security Council can refer individuals from any state, regardless of membership, to the Court. (Sudan, for example, has not joined the court; nonetheless, the Security Council, exercising its Chapter VII powers, was able to initiate an investigation into the situation in Darfur.) In addition, the ICC will move forward with a case only if other relevant states (e.g., the nationality state or the territorial state) are unable or unwilling to commence prosecutions. So, if there is a genuine prosecution pending in a domestic court, the ICC should stay its hand.
Can you explain the principle of "universal jurisdiction"?
This is a principle of extra-territorial jurisdiction, which allows any state of the world to prosecute certain grave international crimes, such as war crimes, crimes against humanity, or genocide. It is of no moment that the prosecuting state has no connection to the defendant, the victim or the place of commission.
What countries are currently being scrutinized by the ICC?
There are four active prosecutions of defendants hailing from the Democratic Republic of Congo, the Central African Republic, Uganda, and Sudan. Apparently, there are other situations also under investigation, including potentially Colombia and Gaza.
Why has the ICC focused on African countries?
Three of the four of these situations were self-referrals, which is to say the states themselves asked the ICC to commence investigations into the commission of crimes within their borders. The Darfur referral is a result of the Security Council's determination that the brutal crimes there constituted a threat to international peace. So far, the crimes in other jurisdictions that have been under consideration have not reached comparable levels of gravity and so the prosecutor has not opened a formal investigation.
Why hasn't the U.S. joined the ICC?
On his last day in office, President Clinton signed the ICC Statute. President Bush did not send the treaty to the Senate for ratification; rather, he "unsigned" the treaty. There were a number of objections made to the treaty, including concerns that the prosecutor had too much power, that the lack of a jury trial rendered the Court unconstitutional under the U.S. system, there were insufficient safeguards against politically-motivated prosecutions, etc. But, in my view, the real reason is that the U.S. sees its officials and troops as vulnerable to war crimes prosecutions where we have peacekeepers or other forces abroad. Many war crimes are premised on determinations of whether appropriate levels of force were used and whether targets constituted proper military objectives. Many in the Department of Defense are undoubtedly concerned that ICC judges will interpret these doctrines differently from members of the U.S. military.
Will we join in the near future?
I am confident that President Obama will re-sign the ICC Statute. It is essentially costless to do so and will signal a significant break with the prior position of active opposition to the Court. He may also submit it to the Senate for ratification, but I am doubtful that the Senate—even one that is controlled by the Democrats—will sign the treaty in the immediate future. Just re-signing the treaty, however, will enable the United States to play a more constructive role in the Court (for example, with respect to the negotiations around a crime of aggression). I also think the U.S. is in a position to provide a significant amount of informal assistance to the Court, in the form of evidence, technical expertise, etc.
How can Santa Clara law students get involved?
All of the international criminal tribunals have internship programs for law students and recent graduates. Our students have done very well in these positions, so we have a great reputation in the tribunals. We also have a number of graduates working as prosecutors, judicial clerks, and defense counsel, so we have great contacts in all the tribunals.
Susan Vogel is a frequent contributor to Santa Clara Law.
International law blog by Beth Van Schaack