Press Conference on Resumed Session of Assembly of State Parties

to Rome Statute of International Criminal Court

 

“We are coming to an important juncture in the fight against impunity and those who commit aggressive wars,” said the Director of a network of 1,300 lawmakers from 117 countries from all regions of the world at a Headquarters press conference today, on the margins of the resumed session of the Assembly of States Parties to the Rome Statute of the International Criminal Court.

David Donat Cattin of Parliamentarians for Global Action was joined by Cecilia Nilsson Kleffner, Head of the Legal Section and Hague Director, Coalition for the International Criminal Court, and Mohammed Ndifuna, Executive Director, Human Rights Network, Uganda.

Ms. Nilsson Kleffner pledged the coalition’s active participation in this week’s debates, which began yesterday and will run through 25 March, and on preparations for the first Review Conference of States Parties, to be held in Kampala, Uganda, from 31 May to 11 June.  Most treaties were reviewed a few years after entering into force.  “Sometimes it is not a big deal, but this one is,” she said, adding that the coalition would be advocating for improved access for victims worldwide.

The Review Conference was significant for the coalition for many reasons, the first of which was the possibility that it would enable the Court to deal with the crime of aggression, she said.  Both States and non-State parties, as well as civil society needed to reflect on the Court’s progress, and to send signals of their commitment to justice.  States were expected to discuss how to enable the Court to deal with the crime of aggression, a discussion that involved difficult legal issues and political challenges, which had been debated for many decades.

The so-called “stocktaking exercise” would show that the International Criminal Court had already had an impact; it was not just a bureaucracy in The Hague, but a real forum for victims, she said.  Many crimes would have gone unpunished without it, and many think twice now before breaking those laws.  Nevertheless, impunity was still too widespread, but the Kampala review would show that the Court’s founding treaty had really set a new trend.

She said the conference would also demonstrate the Court’s effect on the international legal order in the context of international peace and security.  The Court had faced many political challenges in its first years, owing to its unique mandate to address the most serious crimes.  But, it had survived those and it would survive many others.  The review should serve as a reminder of the law to which participating States had agreed in Rome in 1998 and give them and the rest of the world a vital signal that they remained committed at the highest level.

Announcing that Bangladesh had today ratified the Rome Statute, Mr. Cattin said that now 162 million people would be protected in that country.  So, from 1 June, whoever committed war crimes in the territory of Bangladesh might be brought to justice at the International Criminal Court, should that Government be unwilling or unable to do so.  Bangladesh had been the 111^th State party to the Rome Statute.

The crime of aggression and issues of jurisdiction would be negotiated at the upcoming review, the latter in the context of the Rome Statute’s article 124, which allowed ratifiers to exempt their nationals in their territories accused of war crimes from the Court’s jurisdiction for seven years, he said.  That was entitled the “transition provision” and it would be up for review.  It was on the table for States to delete it or maintain it.  His parliamentary coalition was in favour of the article’s deletion, as it saw it as an impediment to the Court’s exercise of jurisdiction.

The integrity of the Court’s jurisdiction should not be challenged or questioned, and all crimes under the Statute should be deemed prosecutable, once proceedings commenced, he said.  The main area to be resolved in the negotiations was the Court’s jurisdiction regarding crimes of aggression.  Under the label of “crimes against peace”, that had been the first category of crimes set up in 1945 at Nuremburg.  But, since then, no law relating to crimes of aggression had been applied, and during the cold war, that entire body of criminal law had been frozen.  Article 5 of the Rome Statute included the crime of aggression, but it had not as yet been possible to agree on a definition.

Substantial agreement on a definition, however, had been agreed by States parties in 2009, but the jurisdiction question remained to be negotiated, he told correspondents.  With respect to the Security Council, the Rome Statute’s article 5 said the Court should exercise jurisdiction, taking the Council’s responsibility into account.  The main problem arose when the Council “did not perform its obligations”.  Whether or not that would “bar” the Court from proceeding was at the core of negotiations taking place right now.  The majority of States probably supported the idea that, in case of Security Council inertia or blockage, an alternative procedure should be activated to allow the Court to exercise its jurisdiction.  Those negotiations might conclude successfully in Kampala.

He said the Rome Statute was based on a fundamental principle, namely, equality before the law, which meant the law needed to be applied by independent legal systems.  His concern was that politicization undermined the Statute.  One element introduced into the negotiations ‑‑ which looked “extremely problematic” ‑‑ concerned an additional consent requirement of the State of the nationality of the perpetrator.  Not only would that aspect not solve the problems on the table, but it could postpone a decision on the matter.  At the same time, it was a very positive development that those matters were being discussed at all.

Detailing civil society’s “movement around the Review Conference”, Mr. Ndifuna said it was active in the quest for an independent, efficient, effective and fair international criminal court.  Within the wings of meetings, civil society would engage, lobby, and advocate, and the Review Conference offered a unique opportunity for that.  Being in Uganda, the meeting was closer to the victims, which provided an opportunity for activists and all stakeholders to bring the Court to the victims.  And civil society organizations would strive to do that and to foster interaction between victims and delegations.

Responding to questions about recent victims in Nigeria and allegations of genocide there, Mr. Ndifuna said the Court did not take the place of a State and intervened only when States were unable or unwilling.  That was a process, and everyone could see that the Nigerian Government was doing what was expected of it.

Mr. Cattin further explained that, if the alleged victims, from a legal point of view, were Nigerian citizens, then they were protected by the Rome Statute if the crimes had been committed in the territory of Nigeria, regardless of the nationality of the perpetrators.

A correspondent asked about a recent statement indicating that the indictment of Sudanese President Omar al-Bashir had made him more popular in his country and reports that he would travel to Venezuela, which was party to the Rome Statute.  He also asked about the obligation of a country in terms of its air space.

Mr. Cattin said that, with respect to Venezuela’s obligations under the Statute’s article 86, the country had an obligation to cooperate fully with the Court, including in enforcing an arrest warrant, if Mr. Al-Bashir, for example, or others had charges pending against them.  Regarding air space, that was under the territorial jurisdiction of any sovereign State.

Regarding President Al-Bashir’s travel plans, he said he understood the leader had not been invited to Venezuela, so the correspondent’s information might be incorrect.  As for whether an indicted war criminal became more popular, “we are not in a position to assess that or not”, he replied.  Moreover, that did not imply more innocence or more guilt of the crimes in question.  The law must be applied equally to all, regardless of an individual’s position, and that included Heads of State.  But, he added, “we are not the Court and not here to speak on its behalf”.

Mr. Ndifuna added that there had been indications that Mr. Al-Bashir would travel “here and there”, but he also knew that those travels had not come to pass.  What was clear was that “the space has shrunk” and the ultimate objective of the Rome Statute to ensure that indicted persons no longer profited from crimes was being met.  In terms of the Sudanese President, specifically, “We are seeing the effect of the issuance of that indictment,” he said.

Asked to comment on whether or not Myanmar should be brought before the Court, Mr. Cattin said the Court did not have universal jurisdiction; that was based on State consent, and it presently had no jurisdiction in Myanmar or Sri Lanka.

To several questions on where negotiations stood on the crime of aggression, he said those should be put to the States concerned; it was not the role of his organization to decide those talks, as they were intergovernmental.  He reiterated that there was agreement on a text, but negotiations on conditions for the exercise of the Court’s jurisdiction were still open.

He reviewed the three means to establish the Court’s jurisdiction.  The first was via State ratification.  The second was through a State’s acceptance of the jurisdiction, such as in conflict situations.  And the third avenue was via referral by the Security Council.  The problem was, when that last avenue was not available, how did one ensure that final determination of a matter remained with judicial institutions and was not influenced politically.  So when the Council did not respond to solicitation from the Court, the matter to be decided remained open, for which there were several alternatives on the table.

Most of those negotiations were informal and he added he was not in a position to say which were gaining ground.  Hopefully, the bottom line would be the possibility for a judicial body to make a determination to the effect that, when an act of aggression occurred, the Court could proceed to an investigation.  It might then determine there was no crime of aggression.  He added that the Statute’s article 39 was procedural and triggered the measure under the United Nations Charter’s Chapter VII, through which the Council might “trump” national sovereignty and impose certain measures on States.  The Council did not need an act of aggression to do so.  What it needed was a threat to peace.

Responding to a question about the United Nations obligation in terms of apprehending indicted units of the Congolese army with whom it was working, Mr. Cattin reminded the correspondent that the United Nations was not a State party to the Rome Statute and thus was not bound by it.  However, the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) was operating on the consent of a sovereign State, which was bound by the Court, and States were obligated to cooperate fully with the Court.  An appropriate decision, therefore, should be taken to apprehend a suspect in the territory of a sovereign State.

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For information media • not an official record