Improving Communication with States

Chapter 33 Improving Communication with States

David Scheffer

The fact that a significant number of major powers are not party to the Rome Statute of the International Criminal Court (icc) may reflect not only the re- alities of global politics and military might, but also a failure to communicate. Although I write as an outsider, there appears to be no systemic means by which the States Parties of the Rome Statute engage in important dialogue with non-States Parties. Rather, there are ad hoc encounters by icc officials, particularly the Prosecutor when she needs the cooperation of a non-State Party. icc judges may visit such countries as the United States and China fre- quently, but the judges are understandably constrained in what they can dis- cuss and describe about the Court. There is some interaction between the State Party and non-State Party officials and scholars at academic conferences about the icc, but there is little discernible progress towards broadening the Court’s membership. It is not all that surprising that achieving universality of the Rome Statute has stalled among the non-party powers while even expansion among less powerful nations seems to have hit a wall. The Prosecutor’s application to the Pre-Trial Chamber on Afghanistan1 and preliminary examination of the Pales- tine situation2 are potential firestorms in Washington that may ignite any day there are decisions pertaining to those matters, starting with a tweet from Pres- ident Donald Trump. Russia drew further distant with its “de-signing” of the Rome Statute3 in November 2016 after its annexation of Crimea4 and the

1 International Criminal Court, Situation in the Islamic Republic of Afghanistan, Doc. No. ICC- 02/17-7-Conf-Exp, Public redacted version of “Request for authorisation of an investigation pursuant to article 15” (Nov. 20, 2017). 2 Fatou Bensouda, International Criminal Court, Statement on the Referral Submitted by Pal- estine (May 22, 2018), https://www.icc-cpi.int/Pages/item.aspx?name=180522-otp-stat (last visited Aug. 2, 2018). 3 S. Walker & O. Bowcott, “Russia Withdraws Signature from International Criminal Court Stat- ute,” The Guardian, 16 November 2016, https://www.theguardian.com/world/2016/nov/16/ russia-withdraws-signature-from-international-criminal-court-statute (last visited Aug. 2, 2018). 4 J. Simpson, “Russia’s Crimea Plan Detailed, Secret and Successful,” bbc News, 19 March 2014, https://www.bbc.com/news/world-europe-26644082 (last visited Aug. 2, 2018).

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commencement of the Ukraine preliminary examination.5 China remains ab- sent from the icc world while exercising growing influence in East Asia and Africa, in particular. Such other nations as Pakistan, Indonesia, Ethiopia, Rwanda, India, Turkey, Thailand, Vietnam, and Saudi Arabia (as well as most of the Arab world) remain outside of the icc and show no prospect of joining anytime soon. Indeed, the withdrawal of Burundi6 and announced withdrawal of the Philippines,7 as well as continued concerns about South Africa’s future status with the Court,8 are decreasing the membership count and point to a political dilemma in search of a realistic solution (or at least attempt at one). Granted, officials of the icc have been working tirelessly to seek cooperation from States Parties and non-States Parties and to achieve universal membership for the Court. But there needs to be additional capacity-building to communicate most effectively with non-States Parties and with those States Parties that knock on the withdrawal door or block critical cooperation with the Prosecutor, in particular. I propose that there be created a “Select Committee of icc State Party Rep- resentatives” that would fulfill the critical function of communicating directly with non-States Parties and imminent break-away States Parties, as well as non-cooperating States Parties, to achieve the Court’s membership, investiga- tive, prosecutorial, and enforcement objectives. The Select Committee would be elected every two years (maximum four year terms) by the Assembly of States Parties and would be comprised of, say, twenty States Parties whose senior foreign ministry and justice ministry officials and members of parliament would be on standby to convene and travel to relevant capitals for the purpose of engaging in dialogue with their counterparts in countries that are of interest and concern to the Court. The membership of the Select Committee would be subject to the will of the Assembly of States Parties, but there would be guide- lines on the selection of committed governments and senior and knowledge- able officials and lawmakers to populate the Select Committee.

5 Preliminary Examination: Ukraine, International Criminal Court, https://www.icc-cpi.int/ ukraine (last visited Jun. 25, 2018). 6 Press Release, International Criminal Court, Statement of the President of the Assembly of States Parties on the Process of Withdrawal from the Rome Statute by Burundi (Oct. 18, 2016), https://www.icc-cpi.int/Pages/item.aspx?name=pr1244 (last visited Aug. 2, 2018). 7 Press Release, International Criminal Court, icc Statement on The Philippines’ Notice of Withdrawal: State Participation in Rome Statute System Essential to International Rule of Law (Mar. 20, 2018), https://www.dailymaverick.co.za/article/2017-12-07-south-africa-confirms- withdrawal-from-icc/ (last visited Aug. 2, 2018). 8 P. Fabricius, “South Africa Confirms Withdrawal from icc,” Daily Maverick, 7 December 2017, https://www.dailymaverick.co.za/article/2017-12-07-south-africa-confirms-withdrawal-from- icc/ (last visited Aug. 2, 2018).