07/30/2008 05:12 am ET | Updated May 25, 2011

The Rome Treaty Wasn't Built in a Day

Q & A on the 10th anniversary of the Rome Treaty of the International Criminal Court

On July 17 1998, nations of the world agreed on terms of the Rome Treaty of the International Criminal Court (ICC), the first and only permanent international criminal tribunal established to hold individuals accountable for genocide, crimes against humanity and war crimes. In July 2008, 106 states are members of the Court, but the United States is still not a signatory.

Olivia Swaak-Goldman, international cooperation adviser with the office of the Prosecutor of the ICC, visited Southwestern School of Law in Los Angeles on the occasion of the anniversary and she spoke with us exclusively:

Q: Do you think the ICC as an institution is where it wanted to be in 10 years?

A: I think its been incredible so far. When the treaty was first signed, nobody had any idea what would happen ... and the amazing support states showed by their quick ratifications, within four years -- it's just incredible. We spend a lot of time in the office of the prosecutor developing guidelines and standards on how to go forward. That takes an enormous amount of time...but we're building the blocks for the coming years. It's a permanent court so we are spending a lot of time to figure out the policies we're going to use and the structures. It's all built on the Yugoslavia and Rwanda [temporary] tribunals but it's a whole different institution, it's treaty based as opposed to a subsidiary of the [UN] Security Council, so were really trying to focus on building for the future. Now it's a court that's in motion, we are moving forward with the first trial, we've got a few cases in the pretrial phase, and several entities are in custody.... so we are really pleased with how it's going forward. But we continue to need the support of states and civil society because the court doesn't have a police force and it can't execute its own arrest warrants, so we are dependent on others for that.

Q: This week ICC chief prosecutor Luis Moreno-Ocampo asked the ICC to issue an arrest warrant accusing Sudanese President Omar Hassan al-Bashir of a campaign of genocide that killed 35,000 people outright and at least another 100,000 through a "slow death" and forced 2.5 million to flee their homes in Sudan's western Darfur region. So what happens next?

A: The Darfur case is a very interesting one because there are three ways a case can be brought to the court: one is that a state can refer a situation, the second is the UN Security Council can refer a case to the prosecutor and third is the prosecutor can begin his own case based on information that he receives and in that case it has to goes through a pretrial chamber as a sort check and balance. But the Darfur situation was referred by the UN Security Council, (resolution 1593) and in that resolution, the government of Sudan, which is not a state party, is required to cooperate with the court and the investigation. So in the end if an arrest warrant is issued by judges--and its their prerogative to accept or reject or accept in part -- but if they do issue the warrant then it will be up to government of Sudan, which has the legal obligation as member state of the UN, and the ability to execute an arrest warrant.

Q: The timing seems particularly fortuitous.

A: The prosecutor has been working for a long time on this case; it's a case that's been building, but you have to continue to look at evidence, you also have to look at admissibility issues, and if there are cases in national courts covering issues we should know about, so it's a nice coincidence but it's really been about building the evidence and building the case and he's been reporting to the security council on developments in the cases every six months. There's a third case he's working on as well so this is something he continues to report on.

Q: How long has this been going on?

A: Since March 2005 with the referral. What's interesting is that the prosecutor has obligations under the statute to review information. So even when the UN asks him to begin an investigation, he took a few months to look at the information to decide on his own if he had enough information under the statutory obligations to go forward. So that was in June when he opened an investigation. In February of 2007 the application for the arrest warrants was issued and in April 2007 they were actually issued by the court. Now there's this new application for an arrest warrant and there will be another case in the Darfur situation.

Q: There must be some pressure for results once you issue these warrants, what is the likely time line for an outcome?

A: It's really up to states and there's not a whole lot we in the court can do we about that -- we've done our part by putting the evidence together and issuing arrest warrants. It's really up to states and the international community. Civil society has a role to play in terms of stimulating governments and the UN to pressure the states to issue arrest warrants. It's really out of our control, but what we can do to be involved is to try to assist and stimulate that process. But really we don't have a whole lot of say over how it's done or when it's done.

Q: How would that work in US because we're not signatory to the treaty but of course we are part of the UN?

A: We are in unique position as Security Council members -- with veto rights -- so the fact that the council referred the situation to the Prosecutor, that was with US acquiescence , so the US is obviously very concerned with the situation in Darfur. Civil society and individuals can encourage their own governments to encourage the UN to encourage the support of the Sudanese government. For example, the UN Security Council issued a statement on the 16th of June reiterating the importance of the resolution which referred the situation to the Prosecutor. These kinds of steps are critically important.

Q: You are an American citizen, what would you like Americans to understand about the ICC?

A: First of all the court respects the decision of states whether or not to become state's parties -- that's absolutely their prerogative to decide if it's in their interest to join. The US has always been a strong supporter in the fight against impunity for these kinds of crimes and a wonderful track record in that regard, so that's one thing. The other thing that's important to know is there is some concern that there would be a court that would overrule a national court, but keep in mind it's a court of last resort -- that only steps in if a nation's system in not dealing with the case or shows that it is unable or unwilling to do so.

Q: Isn't the crux of the issue for US is that its own military could be prosecuted for war crimes?

A: Yes, but as long as there is a real investigation or prosecution -- military or otherwise -- that's sufficient. So I think the concern is more is that the US military is present in all parts of world so it's in a very unique position. The point I'd like to make is that there are checks and balances built into the system.

Q: Do you foresee more support under a new administration next year?

A: That is not for us to say.

Q: Where are you from in the US?

A: I grew up in New York and La Jolla.

Q: So welcome home!

A: It's wonderful to be here I have to say.....really lovely.

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