PRESS BRIEFING BY NGO COALITION FOR INTERNATIONAL CRIMINAL COURT

PRESS BRIEFING BY NGO COALITION FOR INTERNATIONAL CRIMINAL COURT

Discussion at a press conference today given by representatives of the Coalition for the International Criminal Court (ICC) -- a network of non-governmental organizations (NGOs) in support of the ICC -- centred on the Coalition’s perception of the challenges to the Rome Statute, including the United States’ bilateral immunity agreements, and infringements on the Statute by the Security Council. 

The press briefing, which took place in the shadow of the week-long Assembly of States Parties to the Rome Statute of the ICC, was attended by:  William Pace, Convenor of the NGO Coalition for the International Criminal Court; Richard Dicker, Director, International Justice Programme Director, Human Rights Watch; and Jeanne Sulzer, Programme Officer, Federation Internationale des Droits de L’Homme.

Mr. Pace reviewed the issues before the current session of States parties and highlighted some of the challenges they faced.  To date, 92 governments had ratified or acceded to the Rome Statute, which had operationalized the Court in 2002.  Issues under consideration at the meeting this week included the programme budget for 2004, the creation of a permanent secretariat, and elections of the Deputy Prosecutor and the Board of Directors of the Victims Trust Fund. 

Ms. Sulzer, encouraged that the ICC was fully operational with most of its senior officials in place, stressed the importance that the Prosecutor had set out a very clear prosecutorial strategy, which sent a message to the victims -- the first constituents of the ICC, who put a lot of hope in the Court.  So far, the Prosecutor, Luis Moreno-Ocampo (Argentina) had been transparent with civil society and others regarding the strategy he intended to put forward.  For the first time in history, an international court had been established which allowed for victims and NGOs to send information to an independent prosecutor, who was able to open an investigation on his own. 

One year after the entry into force of the Rome Statute, information had been received only from NGOs, she said.  To date, there had been no State party or Security Council referrals to the Office of the Prosecutor.  Among the guidelines set by the Prosecutor had been that only those individuals with the highest degree of responsibility would be investigated or prosecuted by the ICC.  After setting those guidelines, he had named the conflict in the Ituri district of the Democratic Republic of the Congo as a possible first case before the Court.

Also important was the complementary nature of the ICC with national courts, she said.  In that regard, the Prosecutor had included in his recent statement that part of the Court’s success would very much depend on States’ willing to assume their responsibilities and adopt national legislation, providing for a definition of war crimes, crimes against humanity, and genocide.  That would enable national courts to take the primary responsibility for prosecuting such crimes.  Although the Prosecutor had announced a possible first case, a number of procedural phases needed to occur, including the setting up of a pre-trial chamber to oversee the Prosecutor’s actions. 

Reviewing some recent developments of the Security Council relevant to the ICC, Mr. Dicker of Human Rights Watch noted the adoption on 12 June of resolution 1487 (2003).  Resolution 1422 (2002) had created an exemption for those participating in United Nations-authorized or approved missions from non-ICC States parties to be immune from the authority of the Court.  Resolution 1422 had been adopted by a vote of 15 in favour to none against.  When the renewal of that text came up this year, the issue was not whether it would be renewed, but whether or not it would be an automatic rollover, thus giving to the American side a permanent resolution guaranteeing immunity for United States participants in United Nations-authorized missions, he said. 

He found it noteworthy that there had been three abstentions, including that of a permanent Council member who had voted last year in favour of 1422.  Significantly, the European Union, which would soon include 25 members, stated that the renewal of that resolution would never be automatic.  He looked forward next year to a growing number of abstentions with regard to that text, and perhaps, ‘no votes’, or abstentions, by Council members, until that time that it was impossible to maintain a nine-vote majority to put aside that resolution.  The Council would not indefinitely support that resolution. 

The Security Council had been used frequently and seemingly to good effect by the United States as a “battering ram” against the ICC and against international criminal law and justice, more broadly, he said.  It might be appropriate for those States campaigning for election to the Council for 2004-2005 to speak to the question of how they stood on the renewal of that resolution.  A State that was a party to the ICC might ask a campaigning State how it felt about that renewal, he suggested.

He said that the Council’s adoption of United States-led resolution 1497 (2003) on 1 August on the situation in Liberia had linked the monumental humanitarian crisis there to the ICC.  Council members had waited for weeks for the United States to submit a resolution to deploy a mission to assist the civilians.  Corpses piled up in the fields and alleyways of Monrovia, and international opinion was becoming more and more desperate in the face of that cynical inaction by the Bush administration.  Finally, the Council went forward with the introduction of a draft resolution that guaranteed troop contributors of non-ICC States parties exclusive jurisdiction over those individuals.  If the Council had 1487, why did they need that additional resolution? he asked.  

While that was aimed, in particular, at the ICC, its reach and damage to international law and to the principle of ‘passive personality jurisdiction’ had been a very serious development, he said.  Nevertheless, the text sailed through the Council due to the magnitude of the crisis taking place in Monrovia.  Everyone should be aware in the future of any efforts to pack in those damaging ICC provisions on the basis of a humanitarian crisis. Sadly, he expected more texts along those lines from the United States, whose objectives were being exacted at a very high political cost. 

Efforts were now under way by that Government to remind other governments of their responsibility to assist it in Iraq, he continued.  That was an opportunity for governments to remind Mr. Bush and the United States of their treaty obligations, under international humanitarian law.  Hopefully, Council members and others, during the General Assembly’s debate, would say to the Bush administration that if Washington wanted something in Iraq, it needed to respect States’ obligations to the ICC and other multilateral institutions.  That would be one way to limit the damage the Bush administration was trying to inflict on the Court, he suggested.

Asked about the silence of States parties in presenting cases to the Prosecutor, Ms. Sulzer explained that there was a tradition of non-referrals by States parties to international bodies, in general.  There had been announcements by States parties of referrals to the ICC, but it had appeared, from what the Prosecutor had said, that those had never reached his desk.  So, those announcements might have been used by States parties as a threat or political tool.  Traditionally, it was not a common practice to refer a case against another State, she said.

Mr. Dicker added that that was why it was so important that the ICC Treaty had included a provision for a self-activating prosecutor, who could, on receipt of credible information and with the approval of a pre-trial chamber, begin an investigation.

Replying to several questions about the bilateral immunity agreements of the United States, he said that, on 1 July, the United States was facing a situation whereby 35 nations had resisted signing those bilateral immunity agreements, and 35 nations had been informed that their military assistance would be terminated.  He suspected that when Ambassador Negroponte (United States) got on the other side of the Council doors on 12 July 2002, after the adoption of 1422, and announced the initiation of a worldwide campaign to obtain those bilateral immunity agreements, he would never have expected that, one year later, the United States was facing a position of terminating military aid. 

In the Caribbean, that would have the effect of undercutting those States’ efforts towards drug interdiction, Mr. Dicker continued, thereby weakening the effort against the importation of cocaine into the United States.  Several Baltic States that were going to contribute troops to assist the United States in Iraq had been told that, because they refused to sign a bilateral agreement, they would receive less compensation payment for the deployment of their troops in Iraq.  So, the United States was literally pulling the rug out from some governments willing to contribute forces there. 

He added that several deadlines were coming up.  On 1 October, the Department of Defense would submit its military appropriations bill for fiscal year 2004, when it would identify the full amount of military assistance possibly being cut for those 35 States.  By 1 November, those States that had signed bilateral immunity agreements before May would have to ratify them or lose their aid.  In January 2004, that would apply to those countries that signed those agreements after May. 

That was a stark indication of some of the bitter fruit that the anti-ICC campaign had reaped for policy-makers in Washington, he said.  The total number of nations with whom the United States had such agreements was around 55, but some of them were secret, and, only a very small handful –- certainly no more than 10 –- had actually ratified the agreements.  So, there had been a lot of flourishes, but not much real effect, all at the cost of engendering so much anger and resentment towards the United States, he said. 

Asked how the ICC would deal with war crimes in Iraq against civilians, Ms. Sulzer explained that the ICC’s jurisdiction over such crimes was limited to crimes committed by nationals or on the territory of States parties.  Neither Iraq nor the United States were parties.  The Iraq situation could be triggered only by the Security Council, which was not feasible politically.

To a question about what would happen if other countries adopted a similar position as the United States, Mr. Dicker said that part of the danger of the United States’ policy was possibly encouraging other States to pursue that same path.  One of the strongest questions that could be directed against the Bush administration was the very undermining effect that such a policy could have on all kinds of regimes of international law.  Fortunately, that had not happened and he did not think that it would, but the cost of the policy being set by the United States would outweigh the benefits. 

Perhaps the only positive effect, if it could be called ‘positive’, of the United States’ opposition to the Court, was that it had illuminated the fact that the ICC was not in the hands of the United States, Ms. Sulzer added.  That had created an incentive in favour of the independence of a working criminal court that was outside political control.

Echoing those remarks, Mr. Pace added that the United States would not be expending such enormous political and financial efforts if it did not feel threatened by what the Bush administration perceived as a threat in the new system of international justice.  In one region alone, the Balkans, the United States was spending a fortune to try to undermine the ICC.  The International Criminal Court represented a major new system of international justice, which was leading to a showdown between a very powerful nation and the rest of the world. 

Mr. Pace added that experts at the Tribunal in the Hague had estimated that the United States was spending more than $200 million in Balkan countries, in terms of financial assistance being promised in connection with obtaining those bilateral immunity agreements.  Sierra Leone had announced a $20 million deal with the United States at the time of the bilateral agreement.

* *** *