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June 24th, 2008
Mr. Sergi Goes to New York

Small-town lawyer in the big city, that’s how I felt when the UN guard ushered me into Work Room 6 of the United Nations Building in New York. “Work Room” does not begin to do the space justice. There, arranged in a semicircle, were seven rows of 30 desks, each with the nameplate of a country (or aspiring country). There was even a place at the very end for the “Representative of the People of Palestine”. There were spaces for over 200 countries and 20 Non-Governmental Organizations (“NGO”) recognized by the UN. It was not a room but a vast hall in the faded splendor of the United Nations. I certainly was not in Courtroom 3 of the Hays County Justice Center.I was in New York as one of two delegates from the International Association of Criminal Defense Attorneys Association (IACAA),the only recognized NGO consisting of criminal defense lawyers involved in the defense of individuals charged with war crimes before international tribunals. What began in Nurnberg in 1945 was now culminating in a series of meetings in Rome, The Hague, Kampala and New York to finish the charter of the International Criminal Court(ICC), the heir to the Nuremberg Tribunals, along with the various tribunals set up since to judge those involved in war crimes and crimes against humanity in such places in Yugoslavia, Rwanda Sierra Leone and now Lebanon.

While the nations were there to discuss the theoretical boundaries of the crime of ‘‘aggression,” I was there to ask for a seat at the table for the defense lawyers so there would be some input from those foot soldiers of the Court stuck in the trenches litigating the cases with the aspirational laws that lawgivers gave us. In the past, the rules were made without a real thought as to how the defense would actually work or how the cases would proceed. The results have been convoluted proceedings due to the unholy marriage in the courtroom of what are two essentially diametrically opposed types of court procedure, the common law tradition of the Anglo Saxon world and the civil law system of the continental Europe. All we wanted was to get some rules of engagement that made sense.

As a delegate of an NGO I got to sit on the floor (on the left side of the states), lobby the various countries ambassadors or legal representatives, have access to all documents that were handed out, as well as the privilege of chatting up whoever would listen to me during coffee breaks, cocktail parties and dinners about the practical issues that we were there to lobby. At the end of the process, we were even invited to address the Assembly of States Parties (“ASP”).

The sole purpose of the meeting of the ASP was, according to the agenda, to decide on two things: 1) define the crime of “aggression,” i.e. when a country wages an illegal war when can its leadership be held accountable; and 2) where the next meeting would be held. However many of us had other plans and other agendas to push during the meetings, the coffee break, cocktail parties, state dinners, as well as the informal dinners that go on during an ASP.

By way of back ground, the ICC was established by the Treaty of Rome and is the only permanent international court dedicated to prosecuting war crimes. While most crimes prosecuted relate to genocide-what can and cannot be done during war-this meeting of the ASP working group focused on the crime of “aggression” which is diplomatic-speak for “waging war”. Essentially, the working group has more or less decided that aggression means any “armed incursion” which is not for humanitarian assistance. This makes the heads of state of those acting with them responsible for the war crime of aggression. There were many proposals made over the six years this group had been debating the issue and it had been narrowed down to two main approaches: 1) give the prosecutor discretion to bring any case he wanted subject to a majority vote of the Security Counsel; and 2) take only those cases referred by the counsel.

Watching international law being made is like watching the proverbial sausage being made. It is made by diplomats and the debate is both nuanced and intricate. Each country speaks only once and everyone listens to what the P5(permanent five members of the Security Counsel who yield a veto power) have to say. Many countries spoke and only a few listened, as the real action went on in the halls and after hours.

The meeting began on Monday and it was fascinating to watch the diplomats at work. While each country had the opportunity to speak, including those that were not members of the ICC, one had to listen carefully for the nuance distinctions made by the translators as each diplomat in each country spoke. For example, Cuba spoke for Non-Aligned Movement (“NAM”), a group of approximately 100 nations which is neither NATO nor aligned with Russia. When they spoke all listened.

One desk that was conspicuously vacant was that of the U.S. Our senate has rejected the Treaty of Rome and we are not part of the process. It’s a shame, as most of the world has joined the court and we are being left behind in influence. While we were meeting the various lead prosecutors, the existing Tribunals gave their reports to the UN Security Counsel and we were invited to watch. One bright spot was when the US Ambassador to the security Counsel recognized the need for the ICC when he was discussing the situation in Darfur. Perhaps the times are changing.

While the diplomats left the speaking to the young lawyers of their delegations, the senior diplomats floated in and out of the room and would speak in hushed tones in small groups. I befriended several young lawyers who were fresh out of law school in their home countries and the next thing I see is them giving long-winded speeches on the floor as regarded experts in the field. I really wondered.

As I was the only actual lawyer left with any practical experience in international criminal law, I became quite popular as the delegations began to soak in our message that, while they are making law, the lawyers actually implement it. Our message was clear, if you consulted the criminal defense bar about the procedure and implementation of the law then it might actually play out smoothly.

Each night brought dinner, cocktail party or some other gathering where people met and you had to keep your guard up. Proposals were discussed, refined, redefined and reworked until you could not recognize as anything related to what you started with. While I can’t go into what happened to our proposals I can say that they are advancing.

As the week ended, the proposals on “aggression” advanced but were not yet decided. It had taken six years to get to this point, it will not be decided until 2010 and the final “”review”” conference which will “probably” be held in Kampala, Uganda. Argentina made a late bid for the conference and some thought New York was just as good a place as any to hold it. I am looking forward to the next ASP in The Hague, Netherlands at which I suspect the agenda and the discussion will have few things in common.

By DAVID SERGI

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