Canada and the ICC. Part One: The Backstory

Canada has a better claim to “authoring” the International Criminal Court than any other state. I’ll offer some support for that bold (un-Canadian?) assertion below. But it’s safe to say that the Canadian delegation at the Review Conference has a cachet that few other delegations enjoy. So, one might wonder, what will Canada try to achieve in Kampala? And how will it go about doing that? Over the next two weeks I’m going to keep an eye on the public statements by the Canadian delegation, to see if I can shed some light on those questions.

A caveat: My ability to document Canada’s contributions at the Review Conference will be affected by two important limitations. First, while I will likely be speaking with members of Canada’s delegation (and I have chatted with several already), I will not put anything online that is not expressly for public consumption. Second, most of what happens at multi-lateral negotiations is not for public consumption. Much of the important work will likely occur in small meetings of key states in side rooms, or through informal discussions between diplomats and advisers over cups of coffee. With my pink “NGO” pass I will not be in those private encounters—and if I was, I would not be able to speak about them. Nevertheless, in coming posts I hope to shed a little light about what the Canadian delegation might try to do at an event like this.

Canada in Rome

To give some context, let me remind you of Canada’s contributions to the Rome Statute itself. The treaty that created the International Criminal Court was finalized and adopted during a five-week flurry of negotiations in Rome in the summer of 1998. At that diplomatic conference, and in the preparatory meetings leading up to it, Canada had four major advantages.

First, Canada had a well-regarded legal team with expertise in many different aspects of international criminal law, at a time when it was a relatively young and under-populated field.

Second, Canada was a major player and often ringleader of the “like-minded” group of states. Darryl Robinson, a member of the delegation to Rome and now a law professor at Queens University, told me:

The like-minded group started out as a very small and informal group; small enough to meet in the hotel room of our head of delegation.  It rapidly grew – under [Canadian diplomats] Peter McRae and then Alan Kessel – to a more formal group of over 60 states.  We drafted and agreed upon our “cornerstone” principles.

Those four cornerstone principles critically-shaped the court. They were [1] that the court would have inherent jurisdiction over certain crimes (war crimes, genocide, crimes against humanity, and aggression), [2] a constructive relationship with the Security Council of the United Nations, [3] a prosecutor able to initiate proceedings independently of the Security Council approval, and [4] that the court be attentive to victims of conflict, particularly children and women.

Third, in Lloyd Axworthy, Canada had a Foreign Minister who had a keen interest in international justice and clear ideas about how a middle power could shape international law. The year before, Axworthy had championed the Ottawa Convention to ban landmines. At Rome, he applied political pressure and suasion to broker compromises and bolster Canada’s negotiating position. “The fact that we had a champion in Lloyd Axworthy meant that positions could be brought from the area of bureaucratic expertise to that of international political influence,” Valerie Oosterveld, a law professor at Western and an adviser to Canada’s delegation in Rome (and now in Kampala), told me. “I know it’s an over-used saying from the Axworthy era, but Canada really did punch far above its weight in getting the Rome Statute drafted.”

Fourth, the Canadian diplomat Philippe Kirsch played a critical role as Chairman of the Committee of the Whole in Rome. It was his job to produce a consensus text to propose for the treaty. As the Rome Conference drew near its end, that consensus had failed to materialize. In her book on the rise of the International Criminal Court, The Sun Rises Slow, Erna Paris writes that:

On the last day, July 17, Philippe Kirsch took a calculated risk: he issued a “compromise package” in all six [official] languages. As William Schabas later put it, he donned the cloak of “a skilled blackjack player [who] had carefully counted his cards but had no guarantee of success.”… His “package” would make or break consensus. (255)

The gambit worked, and the vote came to 120 states for, seven against, and 21 abstaining from the statute. Kirsch then chaired the Preparatory Commission for the International Criminal Court, which addressed many of its technical legal and institutional details, before being elected the first president of the ICC, a position he held until from 2002 to 2009.

Can Canada Repeat its Rome Performance?

As a result of these four factors, says Valerie Oosterveld, “Canada’s fingerprints are over almost all of the statute. To be honest, there is probably not a page of the statute that does not have directly-proposed language from Canada in it.”

So, what role might Canada play here in Kampala in 2010? I hope to find out more. Let me end with a comment by Darryl Robinson, when I asked him whether Canada will be able to repeat, here or elsewhere, the influential role it played in creating the ICC:

There were many factors that enabled Canada to play the role that it did [in Rome].  The 1990s were a golden era for initiatives promoting human security and for the mobilization of soft power, falling as they did after the Cold War and before 9/11/2001.  Lloyd Axworthy was a champion of such causes, which also enjoyed near-consensus support in the domestic political sphere.  Canada’s ideas fell on fertile soil internationally.  All of these variables are in flux and could well affect the voice and influence of Canada today.