FORMER NUREMBERG WAR CRIMES PROSECUTOR DECLARES THAT AGGRESSIVE WAR IS NOT A NATIONAL RIGHT BUT AN INTERNATIONAL CRIME
Press Release
L/2876
FORMER NUREMBERG WAR CRIMES PROSECUTOR DECLARES THAT AGGRESSIVE WAR IS NOT A NATIONAL RIGHT BUT AN INTERNATIONAL CRIME
19980616 Governments, Intergovernmental and Non-Governmental Organizations Address Conference on International Criminal Court(Reissued as received from an Information Officer.)
ROME, 16 June -- Excluding aggression from international judicial scrutiny is to grant immunity to those responsible for "the supreme international crime", Benjamin B. Ferencz, a former prosecutor at the Nuremberg War Crimes Trials, told the United Nations Conference on the Establishment of an International Criminal Court this morning as it continued to hear general statements.
Speaking as representative of the Pace Peace Center, a non-governmental organization, he said that ever since Nuremberg, it has been undeniable that aggressive war is not a national right but an international crime. "If we care enough and dare enough, an international criminal court -- the missing link in the world legal order -- is within our grasp.
Also at this morning's meeting, a variety of tasks for the proposed International Criminal Court were suggested by speakers.
The representative of the United Republic of Tanzania said the scope of the Court's jurisdiction should be as limited as possible; however, the Conference would be taking a step backwards if, after the Nuremberg Tribunal, the crime of aggression was not included within the jurisdiction of the Court.
The Holy See representative said that those who are responsible for violations of the most heinous crimes which offend the conscience of the human family, the crimes which fall under the jurisdiction of this Court, must be made to accept their responsibility in accordance with universal norms.
Algeria's representative spoke in favour of including in the statute the crime of international terrorism and illicit drug trafficking, as international terrorism is a threat against the foundations of a State and a denial of democratic values.
Speaking on behalf of victims, the Secretary-General of Amnesty International declared that for the court to be an effective complement to national courts, it must be able to exercise the same universal jurisdiction over genocide, other crimes against humanity and war crimes as States have under international law, and must be able to investigate and prosecute those responsible. Suspects and accused must have the right to a fair trial.
The President of the Council of the Inter-Parliamentary Union said members of parliaments would pay particular attention to the concept of complementarity governing the court's relationship with national courts. All efforts should be made to avoid the International Criminal Court being a token mechanism and to make it an efficient and effective tool for the defence of the rule of law all over the world.
The Commissioner for Humanitarian Affairs of the European Union, Emma Bonino, speaking on behalf of the European Commission, said the time had come to break the cycle of violence, to put an end to impunity and to demonstrate the international community's resolve to assert the primacy of the rule of law. What was needed was a permanent court which would constitute a powerful and credible deterrent against crimes and criminals that the international community shall no longer tolerate.
The representative of China said the Court should be an independent, fair, effective and broadly representative international criminal judiciary. It should be free from political or other influences and should also not become a tool of political struggles or a means of interfering in other countries' internal affairs. A practical and prudent attitude should be adopted in dealing with issues such as the relationship between the proposed Court and the Security Council.
Also making statements were the Ministers for Justice of Indonesia, Cote d'Ivoire, Lithuania and Costa Rica; the Minister of Foreign Affairs of Latvia; the Attorneys-General of Kenya and the Kyrgyz Republic; and the Deputy Foreign Minister of Armenia. Representatives of Kazakhstan, Algeria, Czech Republic, Brazil, Peru, Romania, Pakistan and Kuwait also spoke, as did representatives of the European Court of Human Rights, and the Presidents of the International Criminal Tribunal for the Former Yugoslavia and of the International Criminal Tribunal for Rwanda.
The plenary of the Conference will meet again at 3 p.m. today to continue to hear general statements.
- 3 - Press Release L/2876 16 June 1998
Conference Work Programme
The United Conference on the Establishment of an International Criminal Court met this morning to continue to hear general statements.
Statements
IGOR ROGOV, Counsellor of the President of the Republic of Kazakhstan: Kazakhstan is concerned about maintaining its sovereignty at the same time that it cherishes human rights and freedom. It strongly supports the establishment of an international criminal court. Kazakhstan's Constitution does not rule out extradition. But the international body must seriously take into account sovereignty and independence of States.
The court must be an independent international organization with a relationship with the United Nations. Its jurisdiction should be over genocide, crimes against humanity and military crimes. As for aggression, only on the basis of a clearly defined definition of the actual crime should this be within the court's jurisdiction. Extending jurisdiction to illicit narcotic trafficking would not agree with the principle of complementarity.
The court should be funded by States' contributions; however, at the beginning, expenses should be covered by the United Nations budget with approval of the General Assembly. Reservations should be allowed but not unlimited. States should be allowed to decide on the degree to which they will participate in the court.
Archbishop RENATO R. MARTINO (Holy See) (presenting a message of Pope John Paul II of 14 June): "Tomorrow will commence in Rome the Conference by the United Nations on the Establishment of an International Criminal Court, intended to judge the most serious crimes which are offensive to humanity. I hope that the work of this important meeting might be inspired by the desire to safeguard adequately fundamental and inalienable human rights. While assuring the active contribution of the Holy See to the work of this important Conference, I express warmest best wishes to all the participants that this gathering might constitute a historic moment on the way towards a mutual understanding among all people."
Archbishop MARTINO: An international criminal court should exist in order to ensure protection of the dignity of the human person. This dignity is shared by every human person, regardless of his age, race, ethnic origin, status as a combatant or non-combatant, sex or stage in human life, from the unborn to the elderly. Quoting again words by the Pope, "Among the primary aims of law must be to ensure that each person receives his due, at every level of social life. The recognition that the human person is by nature the subject to certain rights which no individual group or State may
- 4 - Press Release L/2876 16 June 1998
violate represents a significant juridical achievement and must be considered an essential principle of international law".
Those who are responsible for violations of the most heinous crimes which offend the conscience of the human family, the crimes which fall under the jurisdiction of this court, must be made to accept their responsibility in accordance with universal norms. As an instrument of justice, such a court must be conceived as a means of seeking not revenge but the restoration of that right relationship within the human family which will lead to reconciliation. The death penalty has no place in its statute. Any structures or rules which could lead to decisions about guilt or innocence that are based upon political rather than juridical considerations have a questionable role in the proposed statute.
Mr. MULADI, Minister for Justice of Indonesia: The effectiveness of the international criminal court will depend greatly on the universal accession of States to its statute. For the statute to be acceptable, the definition and implementation of the principle of complementarity, the so-called "trigger mechanism", the integrity and independence of the court and the list of crimes under its jurisdiction should be resolved. The adoption of the Statute by consensus would be the best method of guaranteeing the achievement of the universal character of the court. The Conference should therefore consistently ensure that its work is accomplished by general agreement. In drafting the statute, the Conference must uphold the principle of respect for national sovereignty. The Conference must adhere strictly to the already emerging consensus that the jurisdiction of the court should be complementary to national jurisdictions and be based upon the consent of the States concerned.
The critical challenge is that there still remains an urgent need to define and implement the principle of complementarity without ambiguity. Maintaining the effectiveness of the court and preserving its credibility is a fundamental issue. Without universal support, the court, both in terms of finance or function, will undoubtedly lack the capability and the capacity to discharge its mandate or to enforce its decision. The statute must guarantee that all States parties have equal rights and obligations with respect to the jurisdiction of the court.
The court should be impartial and independent, especially from political influence of any kind, including that of United Nations organs, in particular the Security Council, which should not direct or hinder the functioning of the court nor assume a parallel or superior role. A suitable mechanism for the funding of the court to safeguard its effectiveness, independence and impartiality is required.
Another fundamental issue is the question of the need to protect innocent citizens from inappropriate, frivolous or politically motivated
- 5 - Press Release L/2876 16 June 1998
allegations. While taking into account the concerns expressed that this issue may pose additional burdens to the already complex negotiations, nevertheless in a world that remains characterized by a multitude of diverse political, economic and security interests, this question cannot be resolved by simply overlooking it. Given the risk of investigation into legitimate national security interest and the right to protect sensitive information, as well as the personal reputation of the wrongly accused, the Conference should develop an appropriate means to deter the launching of frivolous charges. To ensure that justice is applicable to all, the court should be equally vigilant in protecting the rights of States and individuals wrongly accused, in a manner similar to the protection that it accords to the victims of crimes and to witnesses.
Crimes within the jurisdiction of the court should all be listed and defined with clarity and precision. Aside from supporting the incorporation of genocide, war crimes and crimes against humanity into the statute, Indonesia closely associates itself with the position of the Non-Aligned Countries which firmly support the inclusion of the crime of aggression and, within war crimes, the use and threat of the use of nuclear weapons.
BOUALEM BOUGUETAIA (Algeria): The establishment of the court provides a better opportunity for justice. The international community will have an appropriate instrument to put perpetrators of the most heinous crimes on trial. We must move away from ad hoc tribunals set up to deal with specific situations. The court has to focus on a specific core of crimes. Algeria favours including in its statute the crime of international terrorism and illicit drug trafficking. International terrorism is a threat against the foundations of a State and a denial of democratic values. These crimes meet the conditions for jurisdiction of the court.
There should be proper balance on the issue of complementarity. It is clear that domestic competence must be exercised in full sovereignty. The court will be capable of replacing national jurisdiction when evidence is brought of shortcomings in the prosecution. States must accept the universality of the court. Consensus is possible if the spirit of compromise guides the endeavours of the Conference. The court can make a substantial contribution to peace.
PAVEL TELICKA (Czech Republic): It is not enough to simply bring the institution into existence. The court must be effective, functioning, independent and thus credible. The court should have inherent jurisdiction over the crime of genocide, war crimes, crimes against humanity and aggression. In accordance with the principle of universal jurisdiction over crimes under international law, no further State consent should be required for the court to proceed. War crimes committed in non-international armed conflict must also come under the jurisdiction of
- 6 - Press Release L/2876 16 June 1998
the court. The Czech Republic supports the mutually complementing relationship between national criminal jurisdiction and the jurisdiction of the court. Complementarity does not diminish the responsibility of States for vigorous investigation and prosecution of crimes. The court must be equipped with a safeguard against sham investigation and trials.
An act of aggression may not be brought under the statute unless the United Nations Security Council first determines that a State has committed the act of aggression. On the other hand, it is unacceptable that the Security Council should have the power to preclude proceedings before the court if a situation is being dealt with by the Council under Chapter VII of the United Nations Charter. The envisaged role of the Security Council would radically change and, indeed, undermine the independence of the court. The Prosecutor of the court should be empowered to initiate proceedings before the court on his or her own accord. An ex officio prosecutor will mean a more effective court, because the court would thus be open to various sources, including non-governmental organizations and individuals.
KOUAKOU BROU JEAN, Minister of Justice of Cote d'Ivoire: The idea of creating an international criminal court is not new but the cruelty of the conflicts of the last decades has made the need to establish such court an imperative. As required as punishing those who are guilty is offering a just reparation to victims.
The court must be independent, efficient and universal, otherwise it is better not to have one. The key for its acceptance by a large number of States is the concept of complementarity as it relates to the sovereignty of States.
ALBANO L.T. ASMANI (United Republic of Tanzania): The court must be truly independent, effective, impartial and permanent. "We therefore must not allow this process to lead to the creation of a white elephant or a tool for political convenience of States." The legitimacy of the court will derive from its universality. Therefore, there is need to guard against those aspects surrounding the notion of sovereignty which potentially, and perhaps, inadvertently, serve as a barricade against the common will to ensure that impunity does not go unpunished. The sovereignty of States must become a concept of responsibility and international cooperation rather than an obstacle to the enjoyment of universal human rights.
The scope of the court's jurisdiction should be as limited as possible. "We nevertheless remain convinced that this Conference will be taking a step backwards if, after the Nuremberg Trials, the crime of aggression is not to be included within the jurisdiction of the court." This Conference is not seeking to rewrite the Charter of the United Nations. Efforts to balance the responsibilities of the Security Council and the role of the
- 7 - Press Release L/2876 16 June 1998
court to independently determine individual culpability must be pursued seriously. The customary distinction between international and non-international armed conflict needs to be re-examined. This is particularly important so as not to justify the exclusion of serious crimes so frequently committed in internal armed conflicts from the jurisdiction of the court.
Tanzania subscribes to the complementarity regime expected between the court and national judicial systems, and endorses the position that primary jurisdiction lies with national courts. The events leading to the genocide in Rwanda also lead Tanzania to support the view that in the event of jurisdictional disputes, the court should be the final arbiter.
WANG GUANGYA (China): The international criminal court should be an independent, fair, effective and broadly represented international criminal judiciary. The court should be free from the influence of political or other factors. It should not become a tool of political struggles or a means of interfering in other countries' internal affairs. The court should not compromise the principal role of the United Nations, its Security Council in particular, in safeguarding world peace and security. The provisions of the statute of the international criminal court should not clash with or run counter to those of the United Nations Charter. A practical and prudent attitude should be adopted in dealing with issues such as the relationship between the court and the United Nations and the role of the Security Council.
The universal participation of all regions and countries is a prerequisite guarantee for the effectiveness and authority of the court. To ensure universal participation, the statute of the court should be worked out on a basis of democracy and equality to give expression to the positions and views of all countries. A statute acceptable to all countries should be formulated. To this end, maximal flexibility should be exhibited in specifying the jurisdiction of the court, definition of crimes and modes in which countries accept the jurisdiction, so as to make it easier for more countries to accept the statute.
VALDIS BIRKAVS, Minister of Foreign Affairs of Latvia: The need has become clear to establish the Court, after over 50 years of studying that idea. It is time to take a quantum leap forward against impunity. The idea of establishing the Court has gathered sufficient consensus for a permanent institution to be created. The Court would help in the area of preventive diplomacy.
The task is not easy. The draft statute is lengthy, and there are divergent views on several issues, major unresolved issues which go to the very heart of the Court's functioning. The statute must not be adopted just for the sake of creating a symbolic entity. The International
- 8 - Press Release L/2876 16 June 1998
Criminal Court must really work; there are already enough bureaucratic international institutions. It is important to clearly define the jurisdiction of the Court, including the crime of aggression, however difficult it is to define aggression. Latvia has seen aggression and occupation.
Justice should be available to all, regardless of their financial means. Latvia supports the concept that ratification will amount to immediate acceptance of the Court's jurisdiction over core crimes. State cooperation will be essential to the Court's functioning. The statute must include a clear definition of the term "complementarity". The Court should not only punish perpetrators of crimes but also have a deterrence value.
GILBERTO VERGNE SABOIA (Brazil): Brazil's preferred method for the creation of an international criminal court is the conclusion of a convention by the international community clearly setting up its jurisdiction and terms of reference. As a member of the Security Council at the time, Brazil had voted for the creation of the ad hoc tribunals concerning Rwanda and the former Yugoslavia because of the exceptionally serious circumstances of the situation and as a political expression of its condemnation of the atrocities being committed in those regions.
The establishment of an international criminal court represents not only a milestone in the development of international criminal law but also a powerful instrument of preventive diplomacy. The minimum common denominator is not an acceptable solution. Universal participation must be encouraged. In addition to the right of States parties and of the Security Council to trigger the court's jurisdiction, the prosecutor should have the authority to initiate investigations ex officio, or on the basis of information received from various sources. In order to avoid frivolous, politically motivated complaints, the statute should provide adequate safeguards and checks on prosecutorial discretion.
The jurisdiction of the court should be limited to the most serious crimes of concern to the international community as whole. The distinction between acceptance of the court's statute and that of its jurisdiction will help signatories to expedite ratification procedures and promote universality.
VYTAUTAS PAKALNISKIS, Minister for Justice of Lithuania: An effective international criminal court must not only be capable of executing justice on behalf of the world community, but must also be part of a functioning system of conflict prevention. The court can be independent and effective only if its statute includes the following basic principles:
Ratification or accession to the court statute must mean direct court jurisdiction over the crimes listed in the statute; it shall execute
- 9 - Press Release L/2876 16 June 1998
justice only in cases where national courts are unable or unwilling to prosecute suspected persons or investigate crimes listed in the statute.
Further, universal court jurisdiction is applicable for the crimes of genocide, war crimes, crimes against humanity and crimes of aggression. Lithuania agrees fully with the list of crimes provided for in the four Geneva Conventions of 1949. Changes in the demographic character of occupied territories should also come under the ambit of the court, as should the crimes of rape, sexual abuse and other forms of sexual violations against a person. War crimes committed during internal conflicts should be included in the statute of the court, as seen, for example, in the senseless tragedies in Bosnia and Rwanda.
It is important that aggression be included in the court's statute. Experience has taught that acts of aggression usually precede other severe crimes, such as genocide, crimes against humanity and war crimes. The very pronounced consequences of the crime of aggression are passed on to future generations. Because of the political sensitivities associated with this matter, Lithuania would agree with the principle of empowering the United Nations Security Council with the authority of determining the fact of aggression.
The court should be independent from the political power of States. The court's prosecutor should be empowered to begin investigations ex-officio. The Security Council, under Chapter VII of the United Nations Charter, could play an important role by recommending subjects of investigation to the court, but it should not have the power to halt a court investigation.
CARLOS HERMOZA MOYA (Peru): Delegations must be committed and have the will to support the fundamental principles of international law. We must do everything to ensure that the Conference attains its objectives. Unlawful conduct must be categorized and defined. The ad hoc tribunals, set up in the past, were steps which have brought about the present Conference. Delegations must demonstrate support for the establishment of the court, which would bring to trial perpetrators of heinous crimes. The court must complement domestic systems of justice. Peru supports the attainment of consensus in the work of the Conference.
ELENA ZAMFIRESCU (Romania): The international criminal court should be universally independent. The Conference must do its best not to water down the issues. The right balance must be struck between national and international jurisdiction on the core crimes. The court should be independent but not separate from United Nations bodies. International public opinion needs an institution to prevent the perpetration of crimes against humanity. It must be protected and deserved to be protected. There should be compromise and respect for the opinions of others.
- 10 - Press Release L/2876 16 June 1998
S. AMOS WAKO, Attorney General of Kenya: The international court must be effective in its area of jurisdiction and free from political manipulation, interference or pressure, pursuing only the interests of justice, with due regard to the rights of the accused and the interests of the victims. For the court to have a truly universal character, the remaining unsolved issues must be addressed comprehensively and in a manner that strikes a proper and realistic balance.
The principle of complementarity is central to the basic notion of an international criminal justice system. The primary responsibility for the prevention, suppression and prosecution of those who commit crimes rests with the State. While the court should not act where there are effective national systems, it should act where such national systems do not exist or where they are ineffectual.
The serious crimes over which the court has jurisdiction should be set out clearly, precisely and exhaustively. The prosecutor's powers to investigate and initiate ex officio prosecutions should be clearly defined, so that they are not subject to abuse. The relationship of the court to the Security Council must be clarified so as to ensure that the independence and legitimacy of the court are not undermined. Moreover there must be a suitable mechanism for financing the court to preserve its independence.
ASANBEK SHARSHENALIEV, Attorney General of the Kyrgyz Republic: Events in Rwanda and the former Yugoslavia led to the establishment of ad hoc tribunals and gave impetus to the establishment of a permanent court and the idea was then developed and led to the convening of this Conference. Kyrgyzstan supports The Hague as the seat for the court. It has always supported the idea of an independent court, which should be non-political and based on the principle of complementarity. Also, it supports the inclusion of crimes such as terrorism, illicit traffic in narcotics and crimes against United Nations personnel. The prosecutor should be able to initiate procedures on his or her own responsibility.
MONICA NAGEL BERGER, Minister of Justice of Costa Rica: There will be no peace without justice. Impunity is a threat to peace and generates revenge. The court must be fully credible to become an effective mechanism to prevent the future commission of crimes which beset humanity. The court must have jurisdiction over all crimes which violate women's and children's dignity, including sexual violence, rape, sexual slavery, prostitution and forced sterilization, as well as the recruiting of minors to the armed forces.
The court's machinery must ensure a proper gender perspective. A proper unit for attending victims is required. The court must have competence with no limitations on genocide, war crimes and crimes against humanity.
- 11 - Press Release L/2876 16 June 1998
Jurisdiction should include crimes committed during internal conflicts. Within the crimes against humanity, and based on the experience of Latin America, the crime of forced disappearance should be included. The court should not be subordinated to the Security Council, but it could refer situations to the court according to its Charter mandate. The human rights of the accused, particularly minors and women, must be respected.
ARMEN BAIBOURTIAN, Deputy Foreign Minister of Armenia: It is clear that the international community will no longer tolerate crimes against humanity and genocide, and will hold those responsible for such crimes accountable for their actions.
It is evident that a permanent and effective enforcement mechanism is required to enhance the prosecution of certain core crimes. The creation of the international criminal court will contribute to the current void in international law. No authority, including a head of State or government, should have the power to exclude a person from criminal responsibility or to intervene to reduce or reject a sentence imposed by the court.
The court should have jurisdiction over genocide; crimes against humanity, wherever they have been committed; war crimes, serious violations of humanitarian law in international and non-international armed conflict; crimes of aggression; and crimes of terrorism. However, a clear definition of these crimes must be elaborated in order to avoid misunderstandings and differing interpretations. Armenia believes that acts constituting aggression should include an expanded definition of "blockade" to include the blockade of ports, coasts, territory and air routes of a State by the armed forces of another State.
The independence of the court should be maintained from the political considerations of the Security Council and from State concerns. States must not refuse court requirements for information and must comply with court orders. Cooperation between the court and States parties should also include measures to provide effective guarantees for the protection of witnesses, victims and their families. Armenia supports the provision in the draft statute which grants limited but sufficient power to the court to determine when States are unable or unwilling to act in a specific situation. The court should be enabled to determine whether there is an effective national court which is able to exercise jurisdiction.
Armenia supports an independent prosecutor, who should be able to initiate and investigate based on his or her findings or on information obtained from any other source, independent of Security Council referral or State complaint. The United Nations should fund the establishment of the court, but States parties should take over the funding after a predetermined number of States have ratified the treaty.
- 12 - Press Release L/2876 16 June 1998
ARIF AYUB (Pakistan): Pakistan supports the establishment of an independent and effective court which enjoys universal acceptance and complements rather than supplants national legal systems. The international criminal court should exercise jurisdiction only if national trial procedures are either not available or are ineffective. This is necessary to preserve national sovereignty and to avoid conflict between the jurisdiction of the court and that of States. The exercise of jurisdiction by the court should be based on the consent of States. The principle of complementarity should not be eroded if the statute is to enjoy universal acceptance.
Pakistan is not favourably inclined to giving any role to any organ of the United Nations, in particular the Security Council, in the functioning of the court. If any role is given to the Council, it could cloud the objectivity and independence of the court, which is not conducive to the development of a uniform, non-discriminatory and impartial international justice system. Pakistan favours the principle that the trigger mechanism should be activated by the State concerned . The statute should include the most heinous crimes of international concern. Therefore Pakistan favours the concept that the jurisdiction of the court should be limited only to the hard core crimes, namely, crimes of genocide; serious violations of the laws and customs applicable in armed conflicts and crimes against humanity. However, some of these crimes require further consideration and their scope should be clearly defined.
AHMED KHALED AL-KULAIB (Kuwait): The international criminal court must be effective and independent and deal with the crime of genocide, war crimes, as set out in the Geneva conventions; and crimes against humanity. For the court to have the competence to deal with such cases, its mandate must be clear and explicit, without ambiguity. This will enable the court to carry out its functions, bring criminals to justice and hand down the proper sentences.
The provisions of the court's statute must be crystal clear. The functions of the court must be complementary to domestic judicial systems. The principle of national sovereignty must be strengthened, not undermined. The court must have competence in cases of a sexual nature committed in conflicts. The role of the prosecutor is important, and he or she must have a broad role. Decisions regarding initiation of prosecution must not be definite, but open to appeal. The court must have sustained financial support and the United Nations should be the source.
Aggression which was committed against Kuwait, in which crimes against the person and property were committed, should never be allowed to happen again. The world community therefore requires an international criminal court.
- 13 - Press Release L/2876 16 June 1998
R. BERNHARDT, of the European Court of Human Rights: The International Criminal Court will have an important role to play in safeguarding human rights. It is important to define the Court's jurisdiction; potential offenders must be in no doubt about what is awaiting them. The European Court is totally against the inclusion of the death penalty. Complementarity and subsidiarity must be well defined, as that will encourage the competent national court to function properly while knowing that if it does not, there will be international action. Agreement on compulsory jurisdiction of the court from the beginning must be ensured. The power of the prosecutor to trigger the court's action must be included in the statute.
GABRIELLE KIRK MCDONALD, President of the International Criminal Tribunal for the Former Yugoslavia: The experience of the ad hoc tribunals must be closely studied during the creation of the permanent court. It will be helpful to receive input from those involved in those tribunals, as their experience is relevant. Experienced judges are important to the court's functioning. Grounds for refusing compliance by States should not be allowed. The need for transparency in the court is imperative, and provisions allowing for dissenting opinion must be included in the statute. The Court must be endowed with a component of compulsion.
LAITY KAMA, President of the International Criminal Tribunal for Rwanda: It is important that the judges should be involved in the adoption of the rules of procedure of the court, given the difficulties that they will encounter when they start their work. Protection of witnesses must be guaranteed prior to, during and after the trial, so they will agree to appear before the court. Cooperation by States must be required at all stages of the procedures. It is important to establish a mechanism to bring persons to trial, no matter who the perpetrator is.
EMMA BONINO, Commissioner for Humanitarian Affairs of the European Union, speaking on behalf of the European Commission: The time has come to break the cycle of violence, to put an end to impunity and to demonstrate the international community's resolve to assert the primacy of the rule of law. This Diplomatic Conference is called upon to deliver on these daunting tasks -- drawing, as appropriate, on the experience gained from the establishment of the ad hoc tribunals of the former Yugoslavia and Rwanda. What is needed is a permanent court structure with a standing mandate and universal rules which would also constitute a powerful and credible deterrent against crimes and criminals that the international community shall no longer tolerate.
To achieve this objective, a court is required that has jurisdiction over a core group of crimes: genocide, crimes against humanity and war crimes, including those committed in the course of civil wars and other internal conflicts. The court should have a constructive relationship with other
- 14 - Press Release L/2876 16 June 1998
international institutions and with the United Nations Security Council in particular. It should have a strong, effective, highly qualified prosecutor, independent of governments, and have adequate procedures to ensure fair and effective operation in order, to safeguard the rights of the accused and to ease the giving of evidence of the victims. There should be no provision in the statute of the court which contemplates the death penalty.
MIGUEL ANGEL MARTINEZ, President of the Council of the Inter-Parliamentary Union: The Union has had a long-standing commitment to the idea of an international criminal court and advocacy for its establishment. Members of Parliaments will pay particular attention to the concept of complementarity which governs the international criminal court's relationship with national courts. Every State -- and therefore, also every parliament -- will want to know in which circumstances its citizens may be brought to justice before the court. To achieve early ratification of the statute it must provide clarity without emasculating the proposed court. All efforts should be made to avoid creating the institution as a token mechanism and to make it an efficient and effective tool for the defence of the rule of law all over the world.
BENJAMIN B. FERENCZ, of the Pace Peace Center: Over 50 years ago I stood in a courtroom at Nuremberg and accused 22 high-ranking German Storm Troopers of deliberately murdering more than a million men, women and children. I asked the tribunal to affirm the legal right of every human being to live in peace and dignity. Unanimous affirmation of the Nuremberg principles by the United Nations in 1947 implied a promise that "never again" would aggression, war crimes and crimes against humanity go unpunished. War crimes trials after the Second World War came to grips with the past. We have yet to come to grips with the future.
Nuremberg was the beginning of a process. Failure to build on its precedents has cost the world dearly. A permanent court is needed for permanent deterrence. The time has come for decisive compromise. Ever since Nuremberg, it has been undeniable that aggressive war is not a national right but an international crime. The United Nations Charter prescribes that only the Security Council can determine when aggression by a State has occurred, but it makes no provision for criminal trials. No criminal statute can expand or diminish the Council's vested power. Only an independent court can decide justly whether any individual is innocent or guilty. Excluding aggression from international judicial scrutiny is to grant immunity to those responsible for "the supreme international crime" -- omission encourages war rather than peace. I have come to Rome to encourage your noble efforts. Never stop trying to make this a more humane universe. If we care enough and dare enough, an international criminal court -- the missing link in the world legal order -- is within our grasp. The place to act is here, and the time to act is now.
- 15 - Press Release L/2876 16 June 1998
PIERRE SANE, Secretary-General of Amnesty International: If the permanent international criminal court is to be an effective complement to national courts, it must be able to exercise the same universal jurisdiction over genocide, other crimes against humanity and war crimes, as States have under international law. This means that any State may, and in some cases, must permit its courts to exercise jurisdiction over a person suspected of having committed one of these crimes and bring anyone responsible for such crimes to justice, no matter where the crime was committed. It may do so without the consent of the State with custody, the State where the crime occurred, the State of the victim's nationality, the State of the suspect's nationality or any State.
Therefore, there is no legal reason why the permanent criminal court should not have the same power to investigate and prosecute those responsible for crimes of concern to the entire international community as any single one of its States parties. If the court is to be effective, its judgements must be accepted by all States as scrupulously fair and impartial. The statute and the rules of procedure and evidence must ensure that suspects and accused have the right to a fair trial in accordance with the highest international standards at all stages of the proceedings.
* *** *