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International Criminal Court negotiation simulation:

You will form teams of 2-3 people each, representing the interests described below. In addition
to my description of each country=s negotiating position, you may use other information you have
gleaned over time as to the interests at stake (but please don=t spend time looking up country=s
positions - you don=t have time.) You are to negotiate on the basis of the draft statute in the
reading materials. The object of the negotiating exercise is only to remove the brackets from the
text, i.e. don=t start proposing an entirely new structure for the court at this late date. You should
focus on the following issues:

jurisdiction and trigger mechanisms -- arts. 6-11 + further options package

You will be attempting to come to agreement on two questions:
1. Who should be able to trigger an investigation by the prosecutor and a subsequent indictment
and under what circumstances? Take as a given that the Court will consider situations
involving genocide, crimes against humanity and war crimes (i.e. do not worry about their
definitions).
2. What prerequisites, if any, should there be for the court to have jurisdiction over an
individual (i.e. that their state of nationality consents, that other states consent, or no consent
of any state required)?


teams

U.S.: Caitlin Henry, Emily Rosendahl, Maria Escobar-Gutierrez, Ashley Chow
U.K.: Tara Roberts, Navdeep Punia, Kim Prooij
France: Lukas Prassinos, Yui Nishi, Emily Rosenfelt
Mexico: Camila Nieves, Casey Epp, Marchela Iahdjian
China: Ashkan Yekrangi, Deanna Dyer, Ashley Dodson
India: Anahita Razmazma, Jay Chen, Sarah de Mol
Iraq: Ciaran Pratt, Bettina Schlegel, Leon Kruse
Germany: Victoria Ratnikova, Leah Price Chen, Alex Panutich
South Africa: Keeley Monroe, Rowena Collins, Robert Webb
NGO Coalition: Ambika Subramony, Meghan Dunn, Allison Wright


Note: NGOs cannot vote but can participate in all negotiating sessions.




Negotiating Instructions to diplomats


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U.S.: The Clinton Administrations State Department has been supportive of the idea of an ICC
as an extension of U.S. support for the Ad-Hoc Tribunals, trial of Pol Pot, etc. It would be an
embarrassment for the U.S. not to be able to sign a treaty in light of that support. However, the
Pentagon is insisting that the U.S. reserve a special role for itself as the world=s remaining
military superpower. In particular, the Defense Dept. expresses concern that U.S. soldiers and
commanders based both at home and at overseas bases might be subject to the Court=s
jurisdiction based on Abogus@ or dubious complaints over war crimes committed during the
course of peacekeeping and Apeacemaking@ military operations, including acts like the recent
retaliatory raids against a Sudanese chemical weapons plant. They want to make absolutely sure
no U.S. soldier or commander is prosecuted without the consent of the U.S., by ensuring a
permanent U.S. veto over prosecutions. At the same time, they would like the ICC=s jurisdiction
to cover incidents like Saddam Hussein=s invasion of Kuwait, should such incidents occur in the
future. The U.S. is a permanent member of the Security Council, and sees the Security Council
(and the veto) as one guarantee that its leaders will not be prosecuted without its consent. It has
been hard to get the U.S. to speak with one voice given different positions of State and Defense
and the Commander-in-Chiefs preoccupation with Monica Lewinsky.

U.K.: The U.K. contributes troops to peacekeeping forces in central Europe, which it is interested
in protecting, and is a permanent member of the Security Council. It has also been supportive of
the Ad-hoc Tribunals, although it would not support a treaty that would subject its treatment of
IRA operatives in Northern Ireland to outside review. It also has a strong NGO community at
home to contend with, and is interested in marking the difference between the previous
Conservative era and the current Labor (Blair) government. A favorable outcome to the treaty
negotiation is important to achieve its domestic political goals. At the same time, the U.K. wants
to protect its special relationship with the U.S., and in particular the warm relations between the
Clinton and Blair governments.

France: France contributes significant troops to peacekeeping operations in Europe, and has also
sent troops to support favored governments throughout Africa (including at one point the Hutu-
led government in Rwanda, the government of the Central African Republic, Mobutu in Zaire,
etc.) It is a permanent member of the Security Council. France has tried former Nazis and local
collaborators on crimes against humanity charges in its national courts. It is concerned about
excessive U.S. influence both on the substance of the treaty and through imposing common law-
type procedures which the French consider inferior to their own civil law system, which features
a prosecutor-type investigating magistrate. Having lived through the horrors of the Nazi period,
it has a special interest in protecting victims. Its positions on jurisdictional issues have wavered
throughout the course of negotiations.

Germany: has been one of the strongest supporters of a strong, independent court with far-
reaching powers. The Germans refer to their own historical experience with Nazism as the best
example of the importance of individual attribution of responsibility in confronting a past legacy.
They also do not have a large army or troops stationed abroad. On the other hand, they have
been the main host to thousands of refugees from the former Yugoslavia=s wars, and now believe

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the refugees will not go home while warlords are still at large. They are also host to U.S. military
bases which bring in considerable revenue. They are not now a permanent member of the
Security Council, although a number of U.N. reform proposals have suggested they be included
in an expanded version. They have paid out billions of dollars in reparations to victims of the
Holocaust.

India: as the worlds largest democracy, India would like to play a more prominent role on the
world stage and resents the fact that it is not a permanent member of the Security Council despite
its size. It has had experience with both terrorism and separatism, and is interested in an
international tribunal to help with trials of insurgents responsible for war crimes in Kashmir. It
has an independent judiciary. India is very jealous of its sovereignty, suspicious of the motives
of ex- and neo-colonial powers, and determined not to let the Security Council be the main actor
here. It will oppose a role for the Security Council in a court, absent SC reform. However, it
would also like to be on an expanded Security Council. It is also, given the Bhopal incident, very
concerned about chemical and biological weapons.

Iraq: would like to see U.S. crimes during and after the Gulf War subject to ICC jurisdiction, but
wants to make sure its own leaders could not be brought before the ICC for their actions either
during that war or a future similar war. It is especially interested in ensuring that efforts to put
down internal rebellions from Kurds or others are not subject to ICC jurisdiction. Wants to be
seen as a cooperative player on the international diplomatic scene to facilitate Security Council
reconsideration of sanctions against Iraq, but deeply resents the SC as biased. Is already being
forced to pay large reparations to victims of the Kuwaiti invasion by the U.N., and feels this
process is very unjust. Also, does not want to do anything that would alienate fundamentalist
Islamic regimes in neighboring states, and sees itself as something of a spokesperson for the
Islamic states.

Mexico: extremely jealous of its sovereignty, Mexico remembers a long history of U.S. invasions
and U.S. domination. It is particularly opposed to any role for the Security Council in deciding
which cases should go before the ICC, arguing that a permanent-5 veto in effect insulates the
citizens of five countries from any potential prosecution and so is unfair. Also opposed to any
scrutiny of its handling of internal conflicts in Chiapas and elsewhere. At the same time, Mexico
has always been a haven for refugees and Mexico supports the general idea of an international
mechanism for accountability. But it doesn=t want outside scrutiny of the adequacy of its
domestic institutions. Wants to make sure the U.S. and other big powers are held accountable for
Aimperialist@ acts abroad.

China: like Mexico, extremely jealous of its sovereignty. Considers itself a world power in
expansion, and would like to play a commensurate role in drafting this treaty. Permanent
member of the Security Council, so likes SC control (and Chinese veto). Does not want any
international supervision over its treatment of minorities and dissidents, or of Tibet. Would like
to see the Japanese pay reparations for WWII atrocities, but does not want to have to pay any
itself. Wants to curb the ability of the U.S. to act unilaterally in situations of conflict,

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remembering U.S. role in Southeast Asia. Does not want prosecution of Khmer Rouge leaders in
Cambodia. Believes that because of clear Western biases in international law (especially human
rights law) ICC should only be able to act in cases where the state consents.

South Africa: very supportive of the idea of international justice, a member of the Alike-minded
group.@ Remembers international role in dismantling of apartheid. Has extensive reparations
program in place and supportive of international rules on reparations. Would like to see a strong
and effective court. Does not want an ICC to be able to second-guess domestic decisions like the
South African amnesty. At the same time, believes individual accountability is important in
deterring the dictators who have plagued the African continent. Would like to be seen as a
Aplayer@ able to bridge gaps between the developed and developing countries.

NGO Coalition: an ad-hoc group of human rights organizations from around the world. Strong
supporter of a strong, effective and independent court, including broad substantive provisions, an
independent prosecutor able to act on his own, and no ability for big states to block action. Good
access to U.S. State Department and good relations on other fronts; bad relationship to Defense
Dept.