Harold Hongju Koh, nominated as the Legal Advisor at the U.S. Department of State, recently submitted answers to pre-hearing questions to the Senate Foreign Relations Committee. Below are excerpts focused on Darfur and the ICC. The entire document can be found here.
Question:
In testimony before the Senate Judiciary Committee in September 2008, you stated that the next U.S. Administration “should reengage diplomatically with the Contracting Parties to the International Criminal Court to seek resolution of
outstanding U.S. concerns and pave the way for eventual U.S. ratification of the Rome Treaty.” Please indicate what specific concerns you believe would need to be addressed before it would be advisable for the United States to consider becoming a party to the Rome Statute.
Answer (Koh):
The recent bipartisan American Society of International Law Task Force on the International Criminal Court—which was co-chaired by former Legal Adviser William H. Taft IV and Judge Patricia Wald and included former Supreme Court
Justice Sandra Day O’Connor—recommended that the United States could announce a policy of “positive engagement” with the International Criminal Court. Such a policy would allow the United States to help shape the development of the
Court and could facilitate future consideration of whether the United States should join the Court. See American Society of International Law Task Force, U.S. Policy Toward the International Criminal Court: Furthering Positive Engagement iii
(2009), http://www.asil.org/files/ASIL-08-DiscPaper2.pdf.
In considering such a recommendation, among the many questions would be: whether to announce a new policy toward the Court; whether and how to respond to the 2002 “unsigning” of the Rome Statute; whether and how to support
the ICC’s Prosecutor in particular cases; whether to participate in some capacity in the 2010 conference that will address the definition of the crime of aggression; whether to propose amendment or waiver of particular provisions of the American
Servicemembers’ Protection Act; and whether ultimately to seek ratification of the Rome Treaty, a step that would require the Senate’s advice and consent. All of these issues would require extensive interagency discussions, in which I would
hope to participate if confirmed. In particular, the U. S. Government has long expressed concern about the
authority of the ICC Prosecutor to initiate investigations of U.S. soldiers and government officials stationed around the world. Particularly because the United States has the largest foreign military presence in the world, this is an important
issue on which we would need further discussion and clarification within the government. If confirmed, I would also wish to consult extensively with military commanders and other experts, and members of this Committee, before I would
deem it advisable to recommend to the Secretary of State and the President that the United States take any steps with regard to the Rome Statute.
Questions:
36. Do you believe that events currently taking place in Darfur meet the legal definition of genocide contained in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide? Please indicate the reasons for your
conclusion.
37. When then-Secretary of State Colin Powell announced the Bush Administration’s position in September 2004 that events then occurring in Darfur met the legal definition of genocide, he based his conclusion on a contemporaneous study conducted by the State Department documenting atrocities in Darfur, including field interviews with over 1,100 Darfur refugees. Has the Obama Administration conducted a similar study of events currently taking place in Darfur? If not, does the Administration intend to conduct such a study to inform future judgments it may make about the legal character of events in Darfur?
Answer:
As reflected in Secretary of State Colin Powell’s September 9, 2004 statement before the Senate Foreign Relations Committee, the Department of State’s comprehensive review of the situation in Darfur provided the basis for the
conclusion that the events on the ground met the requirements for genocide under the Convention on the Prevention and Punishment of the Crime of Genocide. That statement appeared to me to be well-reasoned, as Secretary Powell pointed to,
among other things, a consistent and widespread pattern of killings, rapes, burning of villages and other acts that indicated the specific intent to destroy in whole or in part non-Arab groups in Darfur. I am not aware of what recent information may be available within the U.S. Government on this subject or what the Department’s plans might be for conducting a study on the subject. However, if confirmed, I would work closely with Secretary Clinton, others at the State Department, and the
members of this Committee to determine how best to address the situation in Darfur.
