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A regular online roundtable where experts from different perspectives discuss a pressing issue in international criminal justice.

Note: Analysis and commentary in Arguendo represent the views of the authors. It has not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities.

Revisited: What are the next steps in the US-ICC relationship?

While approaches to the US-ICC relationship have varied significantly among past US administrations, the imposition of travel and financial sanctions against ICC personnel during the Trump administration marked an unprecedented level of hostility. In contrast, the Biden administration has signaled an initial willingness to “engage with all stakeholders in the ICC process,” but has also reiterated past US objections to several ICC investigations. Significant challenges remain to improving the US-ICC relationship, including US domestic law that still impedes many aspects of assistance to the ICC institutionally, and several ICC investigations that impact the United States and its allies. There are also potential opportunities, such as the review process aimed at strengthening the ICC’s procedures and functioning, and the ICC’s ongoing role in many situations where the United States has also supported accountability for atrocity crimes.

Revisiting an Arguendo question first posed in 2014: What should the United States do next in this relationship, if anything, and why? And should the ICC do something from its side of the relationship?

Key Resources: 
American Society of International Law (ASIL) Task Force Report on Policy Options for U.S. Engagement with the ICC (2021)
International Criminal Court Project, Timeline of the US-ICC Relationship
Independent Expert Review of the International Criminal Court and the Rome Statute System Final Report (2020)

Dr. Priya Pillai

Time for a Clean Slate: Re-envisioning the US – ICC relationship

Betsy Apple

Beyond the ICC: Rebuilding the Scaffolding for International Justice with the United States

Stephen Rademaker

The ICC’s Fundamental Design Flaws Have Only Become More Evident

Honorable Richard J. Goldstone

Renewed US Support Can Strengthen International Justice

Professor Allen S. Weiner

A Strategic American Commitment to Accountability and the Rule of Law Includes the International Criminal Court

Honorable David Scheffer

A Renewed Agenda to Advance US Interests with the International Criminal Court

What are your thoughts on the ICC Office of Prosecutor's Policy on Case Selection and Prioritisation?

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) in September released its final Policy Paper on Case Selection and Prioritisation, which sets forth guidelines for how the OTP will exercise its prosecutorial discretion, namely how it will select and prioritize cases within any given situation country once an investigation has been opened. This policy addresses important questions relating to the work of the ICC: who’s prosecuted, when, why and on what basis? How would you assess this draft strategy of the OTP with respect to case selection and prioritization? Is this policy built for the short and/or long term? Will the policy articulated enable the OTP to make a more strategic use of its limited resources? Will it help achieve the greatest level of accountability at the ICC and in complementarity proceedings in national jurisdictions? Can it address some of the criticisms of the OTP’s case selection and prioritization to date? Is the policy comprehensive, and what suggestions, if any, do you have for how this policy paper can be enhanced?

Helen Brady

and Dr. Fabricio Guariglia

An Insider's View: Consistency and Transparency While Preserving Prosecutorial Discretion

Honorable Ekaterina Trendafilova

A Good Working Document of the Office of the Prosecutor

Ottilia Anna Maunganidze

and Max du Plessis

Timely, But Is It Enough?

Professor William A. Schabas

Feeding Time at the Office of the Prosecutor

Professor Alex G. Whiting

Finding Strength within Constraints

What is the significance of the ICC’s war crime charges of attacks on cultural property in Mali?

In the coming months, judges at the International Criminal Court (ICC) will try Mr. Ahmad al-Faqi al-Mahdi, a leading member of an extremist militant Islamist group, for war crime charges of attacking cultural property. The charges brought by the Prosecution stem from allegations that Mr. al-Mahdi organized a campaign to destroy historic monuments and buildings dedicated to religion in Timbuktu and elsewhere in Mali. This is the ICC’s most significant case concerning the destruction of cultural property given that Mr. Al-Mahdi is solely charged with these cultural property crimes. What is the significance of the ICC pursuing such war crimes cases, particularly in the context of similar crimes occurring elsewhere in the world? Can this ICC case have a deterrent effect on others who have engaged or plan to engage in destroying cultural property?  Can this ICC case, or the work of the Court more broadly in this regard encourage states to adopt and implement appropriate measures to protect against the deliberate destruction of cultural property?

Honorable Irina Bokova

Ending Impunity for War Crimes on Cultural Heritage: The Mali Case

Honorable Kevin Rudd

Protecting our Global Culture

HRH Prince El Hassan bin Talal

Promoting Intercultural Dialogue through Safeguarding Cultural Heritage

Sam Sasan Shoamanesh

and Gilles Dutertre

The ICC and Cultural Property: Reinforced Legal Enforcement of the Protection of Cultural Property in Armed Conflict

Honorable Cynthia P Schneider

Why Culture Matters

​What is the future of relations between the UN Security Council and the International Criminal Court?

State cooperation and assistance remains key to the success of the International Criminal Court (ICC). An area of special concern is the perceived lack of sufficient support for the ICC from the UN Security Council (UNSC), particularly on Council-referred cases to the ICC (Darfur, Sudan and Libya). To date, eight instances of state non-compliance have been referred by the Court’s judges to the UNSC for appropriate action. The Council has yet to act on any of these non-compliance referrals.

How can the ICC garner more cooperation and assistance from the UNSC, especially with respect to the execution of arrest warrants, through such measures as sanctions for states that fail to cooperate? What steps could the ICC Assembly of States Parties take to increase UNSC cooperation with the ICC? What mechanisms can be introduced to strengthen the inter-institutional relationship between the ICC and the UNSC in a manner that allows the Council to more effectively support the ICC? What steps should States Parties sitting on the Council or veto-yielding permanent members take to promote progress in this regard?

Fatou Bensouda

Whither ICC-UNSC Relations in the 21st Century? Challenges and Opportunities

Honorable Navanethem Pillay

Encouraging UN Security Council Support of ICC Cases Starts with Practical Steps

Honorable Stephen J. Rapp

Overcoming Obstacles to Funding ICC Investigations in UN Security Council Referred Cases

Richard Dicker

As ICC Caseload Expands, UN Security Council’s Support Lags Far Behind

How can the international community best support the need to protect witnesses in international atrocity crime trials?

In order to prove that a senior official is legally responsible for atrocities committed by hundreds if not thousands of perpetrators, courts frequently rely on testimonial evidence from percipient, insider, and other witnesses to link crimes with such an official. Accordingly, witness protection is often instrumental to the outcome of a case at the International Criminal Court (ICC) or in a domestic jurisdiction undertaking complementarity proceedings. Recent developments with the Kenya-related cases at the ICC are emblematic of this point. What are the best principles and strategies that judicial institutions can employ to protect witnesses? Do states that support international criminal justice need to revise their laws and policies to better support witness protection issues arising at the ICC and other courts, and how can they be encouraged to do so? Are there alternative evidentiary approaches that can minimize the extent to which criminal courts must rely on potentially vulnerable witnesses?

Alexa Koenig

and Stephen Smith Cody

and Professor Eric Stover

After Kenya, Lessons for Witness Protection

Herman von Hebel

Increasing the support of the international community in the area of witness protection: a Registry Perspective

Fergal Gaynor

Obstruction of Justice by Silencing Witnesses: Possible Remedies

Danya Chaikel

Recent Advancements and Remaining Gaps in Addressing the Witness Protection Challenge at the ICC

Wendy Betts

Untapped Potential for Statistical Evidence to Buttress Witness Testimony in International Atrocity Crime Trials

African Union and international criminal justice: where does it go from here?

Against a backdrop of recent tensions between the African Union (AU) and the International Criminal Court (ICC), the AU adopted official documents to create a regional criminal court that explicitly gives immunity to sitting leaders, heads of state, and senior government officials of all AU member states. In addition, some AU Member States have expressed support for withdrawal by African States from the Rome Statute (the ICC’s founding treaty). What are the implications of this turn of events for past, present and future accountability in Africa? Further, how should individual African countries, prominent African figures and policymakers, as well as the international community respond to these events?

Professor Beth Van Schaack

African Heads of State Before the International Criminal Court

Professor David Bosco

Time for the African Union to Choose a Path

Ottilia Anna Maunganidze

The Conflation of Politics and Law: Africa and International Criminal Justice

Professor M. Kamari Clarke

Accountability and the Expansion of the Criminal Jurisdiction of the African Court

What are the next steps in the US-ICC relationship?

Building off positive developments at the end of the Bush administration, the Obama administration has transformed the US-International Criminal Court (ICC) relationship from one of hostility to one of progress. While US policy supports ICC activities in all of its current situation countries - from Darfur to Uganda - US law still impedes assistance with the ICC institutionally and robust cooperation with its cases of genocide, crimes against humanity and war crimes. What should the US do next in this relationship, if anything, and why? Also, should the ICC do something from its side of the relationship?

Stephen Rademaker

The Pity of the International Criminal Court (ICC) is that it Could Have Been a Useful and Relevant Institution

Honorable Richard J. Goldstone

Only Two Decades Ago There Was No International Criminal Justice

Professor Allen S. Weiner

The United States and the International Criminal Court: Building Support for the International Rule of Law

Honorable David Scheffer

Advancing U.S. Interests in its Evolving Relationship with the International Criminal Court