DIPLOMATIC CONFERENCE BEGINS FOUR DAYS OF GENERAL STATEMENTS ON ESTABLISHMENT OF INTERNATIONAL CRIMINAL COURT
Press Release
L/2875
DIPLOMATIC CONFERENCE BEGINS FOUR DAYS OF GENERAL STATEMENTS ON ESTABLISHMENT OF INTERNATIONAL CRIMINAL COURT
19980616 Speakers Include Representatives Of 13 Governments, UN High Commissioner for Human Rights(Reissued as received from an Information Officer.)
ROME, 15 June -- The historic importance of the task before the United Nations Diplomatic Conference on the Establishment of an International Criminal Court was stressed by several speakers this afternoon as the Conference began its general debate.
The Minister for Foreign Affairs of Australia, Alexander Downer, said that as the new millennium approaches, the achievements and failures of the last years would give historians cause to reflect upon the schizophrenia of the twentieth century. The meeting in Rome provided a historic opportunity to confront the darkest side of the human experience, and to take a concrete step to defeat it.
A.M. Omar, Minister of Justice of South Africa, speaking on behalf of the Southern African Development Community (SADC), said the creation of the court would send out a clear and unequivocal message that the international community is resolute in its resolve that the perpetrators of such heinous crimes would not get away with impunity.
Tony Lloyd, Minister of State, Foreign and Commonwealth Office of the United Kingdom, speaking on behalf of the European Union and associated States, as well as the European Commission, said that if the Conference could agree to establish a truly effective, permanent court, it would make the world a more just, safer and more peaceful place.
Ramesh Lawrence Maharaj, Attorney General of Trinidad and Tobago, said the court's jurisdiction should be extended to internal armed conflicts. The illicit traffic in narcotic drugs is having devastating effects in the Caribbean region. Drug traffickers' actions ought to be regarded as a most serious crime of international concern.
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United Nations High Commissioner for Human Rights Mary Robinson said the Conference was of extreme importance to her office. A strong permanent court would send a powerful message of deterrence to all those in positions of power and leadership that they could no longer use terror tactics and indiscriminate killing of non-combatants as weapons of war or for any other purpose. Reports from Kosovo, Sierra Leone, from the Great Lakes region, Afghanistan and Colombia tell the same story: unpunished atrocities result in further atrocities. Now there is a chance to break with the past.
Statements were also made by Laila Freivalds, Minister of Justice of Sweden; Lloyd Axworthy, Minister of Foreign Affairs of Canada; and the representatives of Norway, Japan, Venezuela, Lesotho, Egypt, Republic of Korea and Slovenia. Representatives of the Organisation internationale de la francophonie and the International Law Commission also spoke, as did those of the NGO Coalition for an International Criminal Court, National Movement for Human Rights and Children's Caucus.
Also this afternoon, the Conference nominated the following as members of its drafting Committee: Cameroon, China, Dominican Republic, France, Germany, Ghana, India, Jamaica, Lebanon, Mexico, Morocco, Philippines, Poland, Republic of Korea, Russian Federation, Slovenia, South Africa, Spain, Sudan, Switzerland, Syria, United States, United Kingdom and Venezuela.
The Conference will continue to hear general statements at its next meeting at 10 a.m. tomorrow, 16 June.
Conference Work Programme
The United Nations Conference on the Establishment of an International Criminal Court met this afternoon to appoint members of its Drafting Committee and begin a general debate.
Statements
ALEXANDER DOWNER, Minister for Foreign Affairs of Australia: This century will be forever stained by the brutality that has seen millions perish in Nazi Germany, in Cambodia and in Rwanda. These are but only examples. Tragically, they do not complete the list which will give historians cause to reflect upon the schizophrenia of the twentieth century. This meeting in Rome provides a historic opportunity to confront the darkest side of our human experience, and to take a concrete step to defeat it.
We must not allow our differences to stand in the way of our responsibilities. Our task is to take the draft statute for an international criminal court and turn it into a courtroom made of bricks
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and mortar that will give our children a weapon with which to fight the malevolent tendencies that have stained this century.
National jurisdiction should take precedence over the jurisdiction of the court where that national jurisdiction is able and willing to deal effectively with alleged crimes. Primary responsibility for investigation and prosecution should remain with the State. However, sham investigations or proceedings at the national level cannot remain unchallenged. Australia has long supported initiation of the court's jurisdiction through complaint by a State which is a party to the court's statute or by the Security Council under its powers concerning the maintenance of international peace and security. Australia is also now prepared to support a power for the prosecutor to directly initiate investigations, as long as appropriate safeguards are provided to avoid politically motivated complaints.
A workable relationship between the court and the Security Council which recognizes the Council's primacy on international peace and security matters must be achieved. Also, crimes of ethnic cleansing and systematic rape and torture are of such gravity that they must be included under the ambit of the court's jurisdiction.
A.M. OMAR, Minister of Justice of South Africa, speaking on behalf of the Southern African Development Community (SADC) (Angola, Botswana, Democratic Republic of the Congo, Malawi, Lesotho, Mozambique, Mauritius, Seychelles, Namibia, Swaziland, United Republic of Tanzania, Zambia, Zimbabwe and South Africa): The establishment of an international criminal court will strengthen the arsenal of measures to combat gross human rights violations and contribute to attaining international peace. Its creation will send out a clear and unequivocal message that the international community is resolute in its resolve that the perpetrators of such heinous crimes will not get away with impunity. "We say this because of our experience in the region under the apartheid system, the attendant destabilization of the region and colonial system."
The basic principle underlying the setting up and operation of the international criminal court should be the acceptance that it should contribute towards the furtherance of the integrity of the States generally as well as equality of States within the general principles of international law. The court must have inherent jurisdiction over the core crimes of genocide, crimes against humanity, war crimes in international and non-international armed conflicts and aggression. The court should have competence to decide admissibility issues regarding the inability, unwillingness or unavailability of national criminal justice systems to bring to justice those responsible for grave crimes under its statute, while respecting the complementary relationships between the court and such national systems.
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The SADC supports the independence of the prosecutor, who should be able to initiate investigation and institute prosecutions on his or her own initiative and without influence from States or the Security Council. The independence and operations of the international criminal court and its judicial functions must not be unduly prejudiced by political considerations. The court must respect the human rights of suspects, the accused, witnesses and victims at all stages of the proceedings, and should be sensitive to the rights of women and children.
HILDE F. JOHNSON (Norway): This century has brought untold sorrow to mankind through the scourge of two world wars, a number of armed conflicts and other situations that have entailed gross violations of humanitarian law. Slowly, but with increasing momentum, the international community has been rising to the challenge. Recent judgements in The Hague, arrests in Bosnia and Herzegovina and the admission of guilt for genocide and other crimes against humanity by a former Prime Minister in Rwanda are all examples of momentous developments, the full significance of which we may not yet be able to grasp.
In this slow, but irrepressible international tide of opinion against impunity for the worst international crimes, we do indeed see a trend: what may at one stage be deemed unrealistic and at odds with national interests and foreign policy is increasingly perceived not only as feasible, but also as good "realpolitik" in the long term.
Moreover, there will be no long-term peace-making dividends from impunity for perpetrators of genocide and the worst of war crimes. Justice and legal order are increasingly being perceived as prerequisites for lasting peace and stability. The required thoroughness, dispassionate distance and objectivity may in certain cases depend on an international judiciary body with unquestionable legitimacy. In this context, we should note that a permanent court may actually be more conducive to peace-making than ad hoc tribunals set up in the context of a particular conflict. It would be hard for any warring party to portray such a court as being politicized.
A focus on a limited list of crimes, namely the three core crimes of genocide, other crimes against humanity and the most serious crimes, would not be a sign of weakness. There should be complementarity between the court and national jurisdictions in accordance with the carefully drafted formula proposed in the draft text.
Both States and the United Nations Security Council must be able to refer situations, as opposed to complaints about individuals, to the court. Once a situation has been referred, it must be entirely up to the court, through its Prosecutor, to investigate and prosecute individuals on the basis of a truly independent mandate. There should be ex-officio powers for the
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Prosecutor to trigger the court's intervention; the Conference must explore to the fullest extent the possibilities for achieving this.
States, as well as international organizations involved in military or other operations, may have legitimate reasons for wishing to protect sensitive information or sources. Adequate procedural safeguards to this effect will lead to important improvements as compared to the Statutes for the two ad hoc Tribunals. Norway rejects the inclusion of the death penalty in the statute and finds a reservations clause totally unacceptable, since the mere possibility of such a clause would diminish significantly the rationale for any compromises in the negotiations on substantive provisions of this important treaty.
RAMESH LAWRENCE MAHARAJ, Attorney General of Trinidad and Tobago: An international criminal court should have jurisdiction over individuals and entities engaged in illicit trafficking of narcotic drugs across national frontiers and other transnational criminal activities. Public confidence in the court will be essential if it is to have credibility and be effective. Such confidence, however, cannot be earned if adequate punishment is not meted out to those who commit these serious crimes. The punishment ought to fit the crime.
The court's jurisdiction should be extended to internal armed conflicts. The Illicit traffic in narcotic drugs is having devastating effects in the Caribbean region. Drug traffickers' actions ought to be regarded as a most serious crime of international concern. The court should exercise its jurisdiction only when domestic courts are unwilling or unable to prosecute; provisions of the statute in this regard must be clear and unambiguous. "We must be cautious in setting up a court which would have to await a determination from the Security Council before it could launch its investigations."
It is vital that a victims and witnesses unit be set up within the registry of the court. Trinidad and Tobago supports the proposals which would seek to ensure that the abuses and sexual violence perpetrated against women and children in armed conflict are punishable. A permanent court will not only be there when needed but it can serve as a powerful deterrent against future crimes and violations of international law. We can learn from the past, but we dare not repeat the mistakes of the past.
TONY LLOYD, Minister of State, Foreign and Commonwealth Office of the United Kingdom (on behalf of the Member States of the European Union and its associated States, as well as the European Commission): If we can agree to establish a truly effective, permanent court we will have made the world a more just, safer and more peaceful place.
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The European Union is encouraged by the widespread support that the establishment of an international criminal court enjoys, and by the remarkable progress already achieved in the Preparatory Committee. Great challenges remain, but given mutual determination, we can succeed.
Member States of the European Union are firmly committed to the following key principles: We need a court that is universal and effective, based on sound legal principles and capable of satisfying the requirements of justice. We need a court that is built to last. In our negotiations, we should draw on the experience of the two ad hoc Tribunals for Rwanda and the former Yugoslavia. The court should be an independent institution in relationship with the United Nations. We need to give it a sound financial base.
The court should have jurisdiction over the core crimes of genocide, crimes against humanity and war crimes. In addition, crimes of aggression, properly defined, should be within the jurisdiction of the court. This should not however detract from the role of the Security Council in the maintenance of international peace and security. The European Union will work for a solution which respects both needs, and which also ensures the independence of the court on issues of individual responsibility. The European Union will make every effort to promote consensus on a generally acceptable definition of war crimes. The war crimes within the court's jurisdiction should include those committed in internal as well as international armed conflicts. The definition of war crimes to be contained in the statute should make explicit that gender-related crimes are included.
The court will be complementary to national processes in the sense that it will act where national systems are unable or unwilling genuinely to investigate a crime, or to bring a prosecution if the results of the investigation warrant one. Particular attention should be paid to the election of highly qualified judges. Their independence would be best secured by a long term of office. The court should have a strong, effective, highly qualified prosecutor, independent of governments. It should have power to award reparations to victims, its final judgements should be immediately enforceable, and a sentence of imprisonment should be implemented without change by States parties which are willing to accept sentenced persons. There should be no provision for a death penalty.
The European Union looks forward to the opening for signature of the statute establishing the court on the final day of this Conference. Thereafter we look to the early entry into force of the statute and to the institution of the court with wide participation.
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HISASHI OWADA (Japan): the court should be established as a strictly independent and impartial judicial organ of the international community. It must be independent of any political influence and its judgement should be given exclusively on the basis of law, including, in particular, the statute of the court. The court should be formed as an international organization capable of carrying out its task effectively. The principle of complementarity should be the basic guiding principle. The jurisdiction of the court must be established only when the national system of criminal justice is not operational or effective in relation to the case concerned.
The scope of the crimes to be dealt with by the international criminal court should cover all the most serious crimes against the international community: the crime of genocide, war crimes, crimes against humanity and the crime of aggression.
The court should come into play only when it is evident that justice is not being carried out by the court of national jurisdiction in the domestic judicial system. The principle of complementarity is also essential to ensuring the universal participation of the members of the international community in the activities of the court. The importance of this principle cannot be overstated. The right to refer a case to the court should be limited to states parties to the statute and to the Security Council of the United Nations. It is inappropriate to give the prosecutor the right to initiate investigation on his own initiative.
For the court to function meaningfully and effectively, it is important to secure international cooperation and judicial assistance by the States parties to the statute. The court should be established as a judicial institution independent of the United Nations.
Financial contributions should be made by States parties to the statute, since the international court will be totally independent of the United Nations.
RAMON ESCOVAR SALOM (Venezuela): We must strive to have a balance text as the Conference's outcome, and the Conference must be characterized by compromise. The Conference must convey to the world the idea that the goal of a more peaceful form of co-existence is getting closer. Venezuela has from the outset supported the establishment of an international criminal court and took active part in its preparatory work.
Complementarity must be a very clear concept in the statute. Venezuela is concerned with the autonomy and independence of the court. Autonomy must also be budgetary autonomy. The court must be permanent in nature. It is a real challenge in real terms that the Conference has before it. I pay tribute to Telford Taylor, just deceased in New York, a professor at Columbia University who was a member of the Nuremberg tribunal. His books
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and his experience should serve as an inspiration for the Conference's deliberations.
LAILA FREIVALDS, Minister of Justice of Sweden: The court should not have to ask anyone's permission to act, neither the State which had the opportunity but failed in its duty to prosecute, nor the Security Council. "We reject a consent regime other than for non-States parties because it would seriously stand in the way of justice." It is proper that the Security Council under Chapter VII of the Charter, be able to refer situations to the court in which crimes under the court's jurisdiction appear to have been committed and gone unpunished. This will obviate the need to create new ad hoc tribunals in the future. We have serious doubts however, about a provision in which just the fact that the Council is seized with a matter should stop a case pertaining to that matter from being brought before the court unless the Council so allows. In exceptional cases, there may be good reasons to coordinate the timing of Council and court action. But the presumption should be reversed. Only by the specific decision should the Council be able to delay proceedings before the court.
Even without a State or Security Council referral, the prosecutor must be able to open a file when he or she receives information that forms a reasonable basis to believe that crimes under the court's jurisdiction have been committed without genuine investigation or prosecution taking place. There should be a mandatory obligation for States to comply with the court's requests for assistance. Traditional grounds for refusal cannot be accepted. The Conference must also find ways to ensure the possibility of reparation to victims in a way which respects the particularities of the court. Sweden emphatically says no to the death penalty. It favours the inclusion of the crime of aggression with the proviso that aggression must be properly defined and treated in a way that respects the role of the Security Council, while safeguarding the independence of the court.
LLOYD AXWORTHY, Minister of Foreign affairs of (Canada): An independent and effective international criminal court will help to deter some of the most serious violations of international humanitarian law. It will help give new meaning and global reach to protecting the vulnerable and innocent. By isolating and stigmatizing those who commit war crimes or genocide, and removing them from the community, it will help to end cycles of impunity and retribution. Without justice, there is no reconciliation, and without reconciliation, no peace.
To achieve this end, we must work together, not simply to establish the court, but to ensure that it is one worth having. A court worth having is one with inherent jurisdiction over the core crimes of genocide, crimes against humanity and war crimes. We must not create a regime that will allow States to gain the prestige of ratifying the court's statute without
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ever accepting the court's jurisdiction over a particular case. A court worth having is one with a constructive relationship with the United Nations, in which the independence and impartiality of the court are preserved. The Security Council has a useful role to play in referring matters to the court, as this will increase the effectiveness of the court. We must not, however, allow the court to be paralysed simply because a matter is on the Security Council agenda.
The operations of the court should be financed from the regular budget of the United Nations. It should have an independent, highly professional prosecutor, who should be able to initiate a proceeding ex officio rather than having court jurisdiction "triggered" only by a State complaint or a Security Council referral. The court should be sensitive to gender issues emerging from the experience of women in armed conflict, and incorporate them into the mainstream of its functions. It should have a mandate to prosecute those who recruit children under 15 into armies or armed groups or who use them in hostilities in any way.
M.V. RADITAPOLE (Lesotho): As we embark on the final stages of elaborating a statute to establish a permanent court, a number of fundamental issues must be addressed. The court should be endowed with automatic jurisdiction over the core crimes defined in the statute, without any need for additional State consent requirements for it to proceed with a case. We remain opposed to the cumbersome and unpredictable procedures envisaged in the so-called "opt-in, opt-out" approach, which in our view would hamper the effectiveness and independence of the court. The assessment of whether a State is "unwilling, unable or unavailable" to prosecute should be left to the court itself. The complementarity principle should not be used to obstruct justice and stall court investigations.
A related principle for the independence and effectiveness of the court is that the prosecutor must be able to initiate proceedings on his/her own motion without having to solely rely on referrals by either the Security Council or States. Conferring ex-officio powers on the prosecutor will ensure that justice is served in cases where both States and the Security Council fail to act in bringing suspects before the court. Lesotho is opposed to any political interference by the Security Council or States in the affairs of the court. It would be best to have a mutual relationship between the Security Council and the court, a relationship that would foster cooperation and harmony between the two bodies.
In discharging its functions, the court will be solely dependent on States. Unless the court has sufficiently broad powers to ensure that it can request full and timely cooperation of States at every stage of the criminal process, its success and integrity will be undermined.
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The objective in shaping this important international institution should not be to adopt any statute, but to establish a just, fair, and effective court that will help replace the rule of force with the rule of law and foster democracy at the international level. The world situation presents a favourable opportunity to create the best possible court now, not a "paper tiger".
AHMED MEDHAT EL MARAGHI, Chief Justice of the High Court, President of the Supreme Judiciary Council of Egypt: The idea of an international criminal court looked like a distant dream and was the object of much academic discussion, but now appears within reach. It must be an independent court, not influenced by political considerations, and precise limits should be put on the relationship between the court and the Security Council.
It is for the court to decide whether to start prosecution or not. The court should not be overburdened with procedures. There must be a kind of recourse or revision of the decisions of the Prosecutor; one of the chambers of the court should have this possibility. Complementarity must be based on objective criteria. The crime of aggression must be included in the list of issues under the court's jurisdiction. The universality of the convention to be produced by this Conference cannot be overemphasized. Reservations must be allowed because that will encourage States to become parties to the treaty. Rules of procedure of evidence should be discussed by a preparatory commission after the Conference.
CHUNG TAE-IK (Republic of Korea): The international criminal court must have automatic jurisdiction over the core crimes of genocide, crimes against humanity and war crimes. It was also important to include crimes of aggression under the court's jurisdiction and to include internal conflicts among the definition of war crimes. The court's Prosecutor must have authority to investigate crimes. Its independence should not be compromised by the role of the Security Council. All State parties should have the right to bring cases before the court. State parties should bear the burden of proof. The human rights of the accused should be protected in accordance with international standards. Crimes of sexual violence and violence against children must also be protected in the statute.
The cooperation of State parties is important to the court's work. The operation of the court at the initial stages should be financed from the regular budget of the United Nations and at the later stages by State parties.
BORIS FRLEC, Minister of Foreign Affairs of (Slovenia): In the past the many victims of atrocities all too often lacked an efficient means of recourse, and the crimes committed have been left unpunished. Bringing to justice the perpetrators of the most serious international crimes -- namely the crime of genocide, war crimes and crimes against humanity -- is
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necessary in order to ensure the end to impunity and to enable the process of rehabilitation of the individual victims as well as to war-torn societies. If justice is served, this will also send a clear signal to any would-be perpetrators of such crimes. Justice is the best guarantee of the durability of peace.
The international criminal court must be an independent and strong judicial institution. A weak court that would be subjected to inappropriate political interferences will not be able to achieve the necessary efficiency nor credibility. For it to be able to act efficiently and independently wherever the ultimate interests of justice and humanity so demand, some basic elements have to be ensured. It is important to keep in mind the underlying principle of the international court -- namely the primacy of the rights and duties of States themselves to investigate and prosecute crimes committed under international law.
Slovenia advocates the most effective protection of victims and witnesses, as well as of suspects or accused persons, based on the internationally recognized safeguards of fair trial. Since present-day conflicts greatly affect women and children, they must be afforded special protection. This should be appropriately reflected in the court's ability to deal effectively with gender-related and sexual crimes, taking into account necessary provisions for victim and witness protection.
HERVE CASSAN, Special Adviser to the Secretary-General of the Organisation internationale de la francophonie, presenting a message from the organization's Secretary-General: The organization strongly supports the establishment of the court, and is particularly interested in the fact that the future court will respect the diversity of legal systems.
MARY ROBINSON, United Nations High Commissioner for Human Rights: This Conference is of extreme importance to the High Commissioner's office. The future court must fight impunity. A strong permanent court will send a powerful message of deterrence to all those in positions of power and leadership that they can no longer use terror tactics and indiscriminate killing of non-combatants as weapons of war or for any other purpose.
This Conference is not dealing with history; it is this morning's news. Reports from Kosovo, Sierra Leone, from the Great Lakes region, Afghanistan and Colombia tell the same story: unpunished atrocities result in further atrocities. Now there is a chance to break with the past by establishing a court that will be truly fair, compellingly effective and which will earn universal respect. Crucial among the Conference's tasks should be a clear definition of the crimes. The court should not be restricted to international confines; rape must be included to combat it as a weapon of war. Reparations must be guaranteed in the statute.
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In a gathering 50 years ago, when the members of the Commission on Human Rights met to complete the drafting of the Universal Declaration, they recognized the need to rise above narrow definitions of national self-interest and agree on a document which we all recognize as a powerful expression of the longing for peace, justice and dignity that lives in every individual. This Conference should be similarly inspired and give to the coming millennium an institution which will make its own singular contribution to protecting human rights.
JAMES CRAWFORD, a member of the International Law Commission: The earlier work of the International Law Commission on establishing a criminal court faced many problems. But the Conference now in Rome has crowned those efforts. The initial statute stated that it should be a permanent court, created by treaty. It would have a relationship with the Security Council. It would be a court with jurisdiction over major crimes of international law and international humanitarian law. The court would function under the principle of complementarity.
The draft statute now before the Conference differs from the earlier text, and it is right that it should be so. Principles have been changed in a progressive direction. The process of developing a permanent international criminal court might be a long one, like that of building Rome, but let us at least take a first step at this Conference, which is not merely a technical exercise. May the Conference produce an effective and just statute.
WILLIAM PACE, Convenor of the NGO Coalition for an International Criminal Court: The question before the conference is whether, 50 years after the adoption of international conventions outlawing genocide and crimes against peace and humanity, the world will establish a permanent tribunal capable of ensuring that national governments or the international criminal court will bring to justice those who commit these most heinous violations of international law and universal moral principles. There now exists here the diplomatic expertise and leadership capable of concluding an effective, independent and just court, but there also exist here governments not yet ready to accept mandatory national and international enforcement of violations of international humanitarian law.
The issue is whether the majority of nations will galvanize the political will to resist those nations not ready for this court, who will attempt to block the adoption of a strong treaty or who will attempt to create a weak and powerless court which would be subject to the control or veto of the most powerful nations, or which would require the consent of the nations whose leaders, as the Secretary-General acknowledged, are often the ones who have committed these crimes. If we succeed. it means the establishment
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of a court which will prevent the slaughter or rape of millions of people during the next century. This is an awful and awesome responsibility. We cannot fail.
ROMEU OLMAR KLICH, National Secretary of the National Movement for Human Rights, based in Brazil: Human rights organizations in Latin America work day to day alongside the poor and victims who hunger for justice. They include women and indigenous people who have no power at all and are victims of persistent human rights violations. Many times laws enacted under dictatorships end up by guaranteeing impunity. The experience of Latin America shows that courts which are subject to political interference do not serve the cause of justice. The international criminal court that would be genuinely free of any political interference would be the body to bring justice.
EVA BOENDERS, Legal Staff Associate of the Children's Caucus based in New York: Evidence shows that in today's conflicts children are mostly the victims. They are deliberately targeted. Acts of violence against them should be brought within the jurisdiction of the international criminal court. The Children's Caucus believes the definition of war crimes should include crimes against children. Protection of children will only come alive in a strong and effective international criminal court with an independent prosecutor and with universal and inherent jurisdiction over its core crimes.
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