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March 21, 2013

ICC advisor discusses international court

By Brittney Schmies

On March 6 The Cleveland Marshall College of Law presented a forum by Professor Diane Marie Amann. Amann spoke about the development of the International Criminal Court, its progression and the first two cases heard by the court. The forum, Children and the Early Jurisprudence of the International Criminal Court, was the third in a series being offered by the college.

Professor Amann currently teaches public international law, international criminal law and laws of war, and serves as the International Criminal Court prosecutor’s special advisor on children and armed conflict.

Amann explained that the International Criminal Court was established following several successful tribunals that occurred in the 1990s. The Yugoslavia International War Crimes Tribunal, established during the War in Bosnia, was the first push to creating the court.

“Essentially, it’s a great uncle, if you will, or a great aunt of the International Criminal Court,” Amann said.

In 1998 the permanent ICC was established in order to greater the legitimacy of the many tribunals set up. Previously the tribunals were set up after the crimes had occurred, putting a drag on their legitimacy, Amann said. The court came to full existence in 2002 and currently 122 of the 190 countries in the world are members.

Of the 122 members of the court, the United States is not one of them. The U.S. supports the court and takes part in positive engagement of the court; they don’t join the court, but they help.

“We saw value in a permanent court, but at the end of the day…we found devils in the details you could say,” Amann said.

Along with giving the courts more legitimacy, having a permanent court in order would be less expensive than setting up and taking down separate tribunals. It would also give victims a place to go and words to explain what had happened to them.

Amann identified three types of international crimes recognized by the ICC. War crimes, which are long standing and take place during times of war; crimes against humanity, which involve attacks on civilians that are wide spread and systematic and can occur during times of peace; and genocide, which used to encompass everything but now has a very narrow definition, leaving very few cases in this category.

Amann’s focus in the ICC revolves around children, and the first two cases tried by the ICC were cases against child soldiering. There are three crimes involving children that can be tried in the court. Genocide, which is defined as forcible transfer of children; crimes against humanity, involving child enslavement; and trafficking and constrictment, enlistment and use in hostility children under the age of 15. The latter is what the two cases were based around.

The cases came out of the East Democratic Republic of Congo and went after the commanders. While both cases were run very similarly in terms of evidence and procedure, they also demonstrated the differences between different nationalities and how they rule. In both cases, eye witness testimony was thrown out and only video tapes, documentation and hearsay remained.

In the first case, which reached a verdict in March 2012, they accepted video tape and convicted the commander. The second case, which reached a verdict in December 2012, dismissed the video and the commander was acquitted.

The problem with the second case was that the video tape occurred days after the charged attack happened, causing reasonable doubt. The different language interpretations of the same burden of proof led to two different outcomes.

In English, which the British judge followed, the term means beyond a reasonable doubt.

“You have to be pretty darn certain, but not 100 percent certain,” Amann said.

The French version of the same term is translated beyond every reasonable doubt.

“Perhaps another thumb on the scale that made the difference,” Amann said.

Taking the outcomes of these two cases into account, Amann does not see dropping cases about children as an option. Rather, she sees them as an opportunity to rethink and approach challenges differently.

She believes that the challenges faced by prosecution, such as having to announce their arrival in a country and get permission, are a hindrance to talking to witnesses. By doing this, the witnesses are known to the government and therefore do not want to talk. She also believes that better ways to protect and prepare witnesses for cases will help the outcomes of cases.

The next forum will be held on April 9 in the Moot Courtroom at 5 p.m. Professor Gabriel Chin will be speaking on criminal law, immigration and The Constitution.