My Part in the Chorus: One Lawyers Contribution to International Justice
|by Enid H. Adler||
Spring 2007, Vol. 70, No. 1
On April 30, 1998, the Board of Governors of the Philadelphia Bar Association passed a resolution supporting the creation of a permanent and independent international criminal court at the forthcoming June-July Diplomatic Conference in Rome. At that time, I was co-chair of the Bar's International Law Committee and was in Italy completing vocal studies at an international opera workshop in Fiuggi, near Rome. The timing was perfect.
I seized the opportunity to attend this historic conference. It paved the way for me to take an active part during the following eight years in the establishment and evolution of the International Criminal Court (ICC) representing the Philadelphia Bar at meetings related to the court in The Hague; Paris; New York; Washington, D.C.; Princeton; and Montreal.
My Introduction to the Treaty Conference
A friend at the opera workshop was able to get me a room in Rome at a convent near the Coliseum and within walking distance of the conference location. I spoke only a few words in Italian. Only one nun spoke some English. My husband, David, called me that evening from Fiuggi and asked for me by name, but the nun who answered insisted that there was no one staying there by that name. He knew that he had left me at that convent earlier in the day. He asked one of the hotel clerks to get on the phone. Still no "Mrs. Adler" there. Finally, in desperation, David asked for "the American lady." This time the nun understood.
Wending my way to the site of the Treaty Conference, I passed the Coliseum, Circo Massimo and other ruins of ancient Rome and reflected on the history of this city. I felt the same overwhelming sense of awe each time I walked past Independence Hall, the Liberty Bell and other historic sites in Philadelphia. Thoughts of my father popped into my mind he was a walking history book able to recall easily noteworthy dates, including milestones and family relationships back to the turn of the twentieth-century founding of our close-knit Jewish community in Norristown, Pa. I get sentimental being at the site of such stirring events. Now, I was going to be part of a historic development that I hoped would have a global effect on the human condition. This gathering brought together not only the ideals that my city, country and I cherish, but also the basic premise of the rule of law that we attorneys swore to uphold.
I joined hundreds of representatives of non-governmental organizations (NGOs), media and others standing in line in the steaming Rome heat waiting to pick up the official badge that gave us entree to the conference sessions. Several hours later, my turn finally came to present my official credentials letter from the Union Internationale des Avocats, of which I was a member. The Philadelphia Bar Association, at that time, was not a recognized NGO; a year of continuous attendance in the NGO Coalition for an International Criminal Court (CICC) remedied this situation. Like in any bureaucracy, my registration wasnt complete without another obligatory line for a photograph that became part of my badge.
The Coalition for an International Criminal Court
Once inside the conference site, I made my way through a maze of corridors to the room reserved for members of the CICC, a group of 800 civil society NGOs dedicated to the establishment and work of this court. A low din emanated from the fax and copying machines that were in constant operation. People speaking in many foreign tongues scurried around looking for documents printed in a familiar language. I found the other Union Internationale des Avocats representative, who was familiar with the conference procedures. One of my first acts was to distribute to coalition members and country delegations at the Diplomatic Conference copies of the Philadelphia Bars resolution supporting the court's mission. From that time forward, everyone involved was aware that the Philadelphia Bar Association was a hands-on player in the treaty process.
Within the NGO coalition, the Philadelphia and American Bar Associations have been the only lawyers' organizations from the U.S. to be involved continuously in this groundbreaking development in the history of law.
In three years of work before the Rome conference, a Preparatory Committee had drafted an initial consolidated text of the treaty, comprised of fourteen Parts and 128 Articles. To preserve the integrity of the final document, to be known as the "Rome Statute of the ICC," the countries had agreed to postpone any reservations to the final text until a Review Conference seven years after the treaty took effect. This type of agreement also had been reached in the U.S. by the Founding Fathers to facilitate passage of the Constitution, and in both cases it proved essential to approval of the final document.
The delegations from 160 countries present at the conference had just twenty-five working days to resolve many still-disputed issues in the consolidated text. Although there was agreement on many components of the draft document, I was astounded to learn that decisions still had to be made regarding 1,700 words, phrases and optional clauses. Every document and any change had to be translated into the six official languages of the Conference Arabic, Chinese, English, French, Russian and Spanish and all had to agree in meaning. The Drafting Committee seemed to be in almost constant motion. Even with assistance by more than fourteen agencies of the U.N. and 80 translators, many of them working through the night, it still wasnt sufficient to deal with the massive quantity of work generated by the discussions, decisions and constantly altered texts. So, some documents were sent overnight to U.N. headquarters in Geneva and New York. In the meantime, delegates worked from revisions in English until the other translations were completed, causing much confusion.
The coalition, too, was in perpetual motion in Rome. It maintained a separate work schedule from the national delegations. Within the coalition, we worked in teams that met early in the morning, over lunch, in the evening, or whenever we could. My work has focused mainly on Victims Rights, Womens and Legal Issues and the development of a definition for the Crime of Aggression.
We monitored the Plenary, Committee of the Whole and topical Formal Working Groups of the country delegations, using earphones that provided simultaneous translation, and reported back to the coalition at daily strategy meetings. In principle, coalition members did not attend "informals," closed-door meetings comprised of smaller groups of delegates. Contentious issues were debated and negotiated here and consensus was often reached. No notes were taken, so delegates could speak freely. Agreed upon determinations then were brought to the Formal Working Group. The informals created problems for the NGOs. Since critical issues were resolved in these sessions, it was essential for the coalition to be privy to the direction of the discussions. To get information on these sessions, coalition members stood outside the doors of the rooms and pressed the participants as they exited for accounts of the proceedings. Sometimes, their information necessitated urgently convened coalition meetings where strategy was decided. Individuals or groups of NGOs hastily wrote topical position papers, which were distributed immediately to states representatives to apprise them of different points of view and attempt to influence their thinking. The coalition did not take positions on specific issues but acted upon a set of principles relating to a permanent, just and fair International Criminal Court.
I was fascinated by the process and constantly amazed that despite all of these obstacles, a delicate balance on a final statutory text was reached by the July 17 deadline. The vote late that evening was an overwhelming 120 countries in favor of the statute. After fifty years of discussion about the creation of such a court, beginning after the Nuremberg Trials after World War II, this vote brought to fruition the first treaty-based, permanent, independent International Criminal Court.
From Rome to New York
The Diplomatic Conference in Rome was followed during the next four years by ten sessions of a Preparatory Commission, referred to as "Prep Coms," whose charge was to develop operational documents on the Rules of Procedure and Evidence and Elements of Crimes to help make the Rome Statute more workable. Prep Coms took place at U.N. headquarters in New York after the Rome conference in 1998 until the Assembly of States Parties (ASP) met in September 2002. During this period, the coalition and States worked toward ratification of the Rome Statute.
By December 31, 2000, 139 countries had signed the statute, including the U.S. with President Clinton's signature that day. Nations who became parties after this date were required to both sign and ratify the statute. To come into force, sixty nations needed to accede to the Rome Statute. It was one of the highlights of my life to witness the incredible and historic moment of the ceremony for the sixtieth ratification on April 11, 2002. I stood next to my good friend Ben Ferencz, a former Nuremberg prosecutor, and M. Cherif Bassiouni, chair of the Drafting Committee in Rome. Both were instrumental advocates for this court Ben for more than fifty years. Hans Corell, U.N. Undersecretary-General for Legal Affairs, announced that ten nations would deposit simultaneously their instruments of ratification. The assemblage rose en masse. The ovation was deafening. Government representatives and coalition members cried and hugged each other. I still can feel the exhilaration.
From its first authorization by the U.N. General Assembly in 1995 to when the statute's full force took effect July 1, 2002, negotiations took seven years an unprecedented pace, particularly for a treaty this complicated. Since Rome and succeeding Prep Coms, the coalition has remained important to the work of the ASP composed of ratifying countries of the Rome Statute and the legislative equivalent for the ICC and has advocated for its views in many informal ways. Before and during breaks in formal sessions, my colleagues and I networked with delegates, and we often met with regional delegations to discuss topics of importance to both sides.
Also, the court's prosecutor, Argentinean lawyer Luis Moreno Ocampo, arranges a minimum one- to two-hour session with coalition members at each ASP gathering. An informal person who makes everyone feel comfortable, he usually takes off his jacket, rolls up his shirtsleeves and, wanting to know about each of us and our organizations, has us introduce ourselves. He gives a knowing smile of recognition to the regular attendees. He and his deputy prosecutors and other staff members brief us on case status, field offices, and how cooperation of the coalition's NGOs supports his staff's gathering of information from victims and witnesses in particular locales. In June 2003, I had the honor and pleasure of attending his swearing-in ceremony, officially known as a "solemn undertaking," held in open court at the Peace Palace in The Hague. The treatment by the nations of the world of the coalition as a partner in the creation and implementation of the Rome Statute has been extremely satisfying to my colleagues and me.
An issue to which I have paid close attention during my work in the coalition has been the subject of gender balance. The topic was contentious among the representative countries since the beginning of the treaty process. Negotiating the cultural, ethnic and religious attitudes on this subject was difficult, but in the end consideration of gender balance played an important part in the life of the Rome Statute.
This was exemplified best in February 2003 by the first election of judges to the court. Nominees had to meet stringent requirements and be experts in one of two categories: Criminal Law and Procedure or International Law. Ten women and 34 men were nominated over several months. Each candidate met with coalition members prior to the balloting.
The electoral process was complex but ably led by the ASP's first president, Jordans Prince Zeid Ra'ad Zeid Al-Hussein, who later became Jordans ambassador to the U.S. To assure diversity, the elected judges represented a cross-section of legal systems, geographical regions, and gender per the statutes electoral formula so many each from Africa, Asia, Eastern Europe, Western Europe, Canada, Latin America and the Caribbean.
Under the Rome Statute, there must be a fair representation of women among the 18 judges. I was surprised but pleased that of the seven judges elected on the first ballot, six were women with a seventh elected in the next few votes. Then, and on succeeding ballots, Prince Zeid said with a smile yet serious intent, "Remember, you must vote for at least five men." It took thirty-three ballots to elect the remaining judges.
Gender balance remains an ongoing issue of importance with coalition members. We always remind the prosecutor and registrar of the need to hire more female staff, particularly at the highest levels. Because many victims and witnesses in cases brought before the court are women, having female staff in field offices is critical in countries where investigations are ongoing. The coalition also recommended more emphasis on outreach essential efforts to inform the public, allay fears of cooperating with ICC staff and dispel misinformation about the ICC. I admire the prosecutor's willingness to listen to and act on suggestions by coalition members and NGOs in the field.
Coalition pressure also was critical to the establishment of a Victims Trust Fund, which was moved from the registrar's general budget to a separate entity with its own ASP-elected board of directors, organizational structure and ability to find independent funding sources. For the first time in known history, this Trust Fund, with oversight by the Assembly, will provide reparations for victims.
Work on the Courts Ethics Code
My work has had significant impact on the adoption of a Code of Ethics for the court. Members of the Ethics Committee of the International Criminal Bar (ICB) discovered at its November 2005 International Congress that the registrar had changed language previously agreed upon with our group regarding attorney-client confidentiality. The change was totally unacceptable to the ICB committee, of which I was a member, because it would have led to breaches of confidentiality and undermined representation of clients before the court. My colleagues and I drafted alternative language to present to the Assembly delegates. I was charged with getting support for our proposal from the coalitions Working Group on Legal Representation, which I did. The registrars proposed Code of Ethics was up for a vote that afternoon.
When the Assembly convened to vote on the code, we went into "blitz" mode, handing out the alternative-language paper, stopping delegates outside the conference room, and explaining why our change was essential. The Italian delegation agreed to bring the issue to the floor. In the Assembly hall, I spoke with several delegations to garner support of the Italian delegations initiative. The die was cast. The Italians interrupted the chairs call for a vote to approve the Ethics Code as written and stated that they had, in hand, optional, more acceptable wording to the attorney-client provisions. A flurry of placards went up to obtain recognition from the chair. After debate, half of those present agreed to go back into closed session to look at the alternate language. Our hard work was rewarded with approval of the new wording. The change made was essential for the integrity of the court and the legal profession.
Lack Of U.S. Government Presence
In spring 2001, President George W. Bush sent a letter to the U.N. Secretary-General suspending President Clinton's signature to the Rome Statute. This act would cease immediately any and all administration cooperation with the court, including non-production of documents in U.S. possession that might be helpful during investigations. Both our allies and others were stunned. Never before in anyone's memory had a nation "unsigned" a treaty. The U.S. had the largest delegation in Rome and at the Prep Coms and had influenced the statute's inclusion of the due process protections we enjoy under the U.S. Constitution. The "unsigning," although reversible, has been disquieting for all of us. My American colleagues and I felt a sad, embarrassing moment at a Preparatory Commission assemblage later that year, several weeks after September 11, 2001. Heads of national delegations took the microphone to express their nations' condolences to the U.S. Their remarks fell on empty seats behind the U.S. placard. The U.S. now was the only country without an official presence. We hadn't even sent observers, despite the Philadelphia, American, New York and San Francisco bar associations passing resolutions in favor of at least an observer delegation, which would let us participate in all discussions, including evolving deliberations on the crime of aggression. By December 2006, 104 countries had ratified the statute.
Fortunately, American lawyers are not precluded from registering with the court as legal counsel and are encouraged to do so. In fact, the ICC prosecutor appointed an American lawyer as one of his deputies.
The Courts Current Cases
At the 2006 Fifth Session of the ASP, the court's prosecutor updated the coalition on three current cases: one each from Uganda, the Democratic Republic of the Congo (DRC) Ituri Region, and Darfur in Sudan. These cases developed from more than 1,800 requests to the prosecutor for possible investigation. All requests are responded to, but most do not meet the threshold for formal charges.
A case can come before the court in three ways: the prosecutor can initiate an investigation proprio moto (on his own initiative) with the approval of a three judge pre-trial chamber that there is sufficient evidence to proceed; on self-referral by a States Party; or on referral from the U.N. Security Council. Two of the above cases were by self-referrals from a States Party Uganda and the Democratic Republic of Congo. The national governments declined to exercise the Principle of Complementarity, which gives them primacy of jurisdiction over the ICC a protection that had been insisted on by the U.S.
In northern Uganda, the court's first arrest warrants were issued in the fall of 2005 against Joseph Kony and four other leaders of the notorious Lords Resistance Army, who were charged with crimes against humanity and war crimes. This act was a major transition for the ICC into a fully operational judicial body.
In February 2006, the pre-trial chamber of the court issued sealed arrest warrants for Thomas Lubanga Dyilo, a warlord whose militia terrorized the population in the Ituri Region in the Democratic Republic of Congo. The Congolese government was informed and surrendered Lubanga to The Hague that March. He was accused of war crimes, conscripting children under 15 and using them in the hostilities. On January 29, 2007, at the resumed Fifth Session of the ASP in New York, coalition members waited with baited breath for the announcement from The Hague of the pre-trial chambers decision of Lubangos November 2006 evidentiary "charging" hearing. The charges were confirmed against Mr. Lubanga, thus sending the case to trial the courts first initiating a new aspect of the court's operation.
The third case, referred to the court by the U.N. Security Council, was the horrendous situation in Darfur, Sudan. As a signatory to the treaty, the Sudanese government may not hinder the court's investigation. Despite the government not allowing the ICC prosecutors team into the country and because the court is permanent and has investigative authority, the cooperation of local NGOs has helped the prosecutors office collect evidence, before it is lost, from Darfurians in refugee camps in Chad and elsewhere. This dangerous process entails sending prosecutorial teams into ongoing conflicts, a challenge never before faced by an international court. Previous criminal courts, such as for Yugoslavia and Rwanda, were temporary ad hoc tribunals set up by the U.N. Security Council after the conflicts had ended.
The U.S. government has called the situation in Darfur genocide. In the eyes of the world, and to uphold the democratic ideals of our country, how could the U.S. not now support the Security Councils vote to refer the Darfur situation to the International Criminal Court? The U.S. abstained rather than exercise its veto. Americans in the coalition hoped that this constituted tacit recognition of the court, but there still is no American participation in the deliberations of the court or in the ASP.
What the Work of the Court Has Meant to Me
As a Philadelphian, attorney and longtime human rights advocate, participation in this work is a crowning moment in more than thirty years of human rights work. The court's role is to bring to justice the perpetrators of the most heinous crimes crimes against humanity, war crimes, genocide and aggression and to establish a new level of competence and importance for the rule of law. It is both awesome and humbling to have played a role as the representative of the Philadelphia Bar Association in the establishment of this court. For me, the advent of this court reflects one of the best examples of what can be achieved through strategic and determined cooperation among governments, international organizations and civil society.
My work continues. In June 2006, I was part of the coalition's ten-person team at the intersessional meeting of the ASP Special Working Group on the Crime of Aggression, held at the Liechtenstein Institute at Princeton University. I have had the privilege of emphasizing the importance of the city of Philadelphia both in the founding of the U.S. and as a good place to do business with ambassadors, foreign ministers and legal counsel and with more than 2000 NGO representatives in the coalition. Brochures of the city and its business community are regular companions in my travels abroad, along with my camera, which is often flung over my neck and almost in continual use.
We can take great pride that our Philadelphia Bar has received international recognition for its consistent role in the development of this historic court. Our presence in the coalition is a constant reminder to other nations that the members of Americas first Bar Association reflect the ideals of the United States and its commitment to human rights and fairness through rule of law.
Most rewarding are the friendships and acquaintances I made with people from a multiplicity of countries, cultures and ethnic groups, all striving to bring a greater measure of justice to our world.
Enid H. Adler is a sole practitioner in asylum immigration and international human rights law. She is the Philadelphia Bar Associations representative to the Coalition for the International Criminal Court (CICC) and past co-chair of the Philadelphia Bars International Law Committee and the Bars Twinning Program with the Barreau de Lyon.