Mr. President,
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. Time and again we have seen a rising tide of anger followed by calls for justice after the commission of the most heinous crimes of international concern. Slowly, but with increasing momentum, the international community has been rising to the challenge.
First, we saw unimplemented mandates for prosecutions after the First World War. Then, after the Second World War, we witnessed the Nürnberg and Tokyo trials, as well as numerous national prosecutions of war criminals. Then again, two ad hoc International Criminal Tribunals have been created by the United Nations Security Council. 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.
When visiting Kigali and Arusha this past February, I was confronted with the high stakes involved. The victims of genocide and the general population in the Great Lakes region, no doubt have legitimate demands for justice. Admittedly, there may be different individual motivations and aspirations, including revenge, reparation and deterrence. However, the responsibility for the senseless large-scale violence has been blurred by propaganda, rumours and anguish. It is only by painstakingly piecing together historical facts that one can establish the truth and a basis for reconciliation.
Moreover, we believe that there will be no long-term peace-making dividends from impunity for perpetrators of genocide and the worst war crimes. Justice and legal order are increasingly being perceived as prerequisites for lasting peace and stability. The recent death of Pol Pot and the debate about prosecution of the genocide in Cambodia have also reminded us of the need for an appropriate international institution for investigation and prosecution of such atrocities. In such cases we know that ad hoc Tribunals may not be an option. This makes it essential to reach an agreement on the establishment of a permanent Court. For the record, let me express Norway's support for the Hague as the seat of the Court.
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. Moreover, if mass murderers should try to speculate on the likelihood of having to face trial in the future, the existence of a permanent Court will undoubtedly make a gamble for impunity a very unwise one. With appropriate triggering mechanisms it would be foolish to dismiss the deterrent potential of such an institution. If we no longer need to set up new ad hoc tribunals, which in itself can be a very time consuming process as we have seen in particular in Arusha, we may reduce reaction time - and thereby also enhance deterrence.
Mr. President, Ladies and Gentlemen, we have already reached a point of no return. Mass atrocities can no longer be ignored. We live in an age of immediate and live coverage of unfolding events. Technology such as aerial photography can quickly uncover hidden mass graves, as we saw in Srebenica. All these factors force us to act. Indeed, no State has contested the need for an International Criminal Court, and we are not here to discuss whether there should be a Court or not. The crucial issues are: how can we ensure the adoption of a treaty here in Rome this July? And: what kind of a Court should we be aiming at?
The number of issues to be resolved during this five-week period may seem daunting. Some have expressed doubts as to how one can reach agreement on the basis of a draft Statute containing over a thousand square brackets and outstanding options. Let us be frank: those who do not want the Court will emphasize the technical difficulties and will put disproportionate emphasis on provisions of their own national legal systems. Let us be quite clear: a lack of vision and ambition would in fact become a self-fulfilling prophecy. On the other hand, what was perceived as "wildly unrealistic" just a few years ago is now within our reach. The fact that we have come so far is truly remarkable. What we need now is a clear grasp of our objective, and the courage to achieve it. Many in this audience listened very carefully to the thought-provoking address of Justice Louise Arbour, chief prosecutor of the Tribunals for the former Yugoslavia and Rwanda, in New York on 8 December last year. She concluded her address by emphasizing that she was "not persuaded that a weak permanent Court is better than no Court at all". We would like to echo her words. At the same time we need to assess in very concrete terms what we mean by a strong Court. Nor should we forget the need for a Statute with the broadest possible support. In Norway's opinion, this may be achieved with the following points:
1. Firstly, we wish to emphasize that a focus on a limited list of crimes, namely the three core crimes of genocide, other crimes against humanity and the most serious war crimes, would not be a sign of weakness. In our view, a pragmatic concentration at this stage on international crimes which are clearly extremely widely recognized, would promote wide acceptance for the Court. There must be no uncertainty that we need adequate rules on internal armed conflicts and with regard to sexual violence, as both are frequent features of today's conflicts. On the other hand, any protracted attempts to enlarge the list of crimes prematurely might in fact become a major stumbling block for the Conference. We feel that a revision clause should be included to provide an avenue for re-evaluating the list in the future.
2. Secondly, Norway favours complementarity between the Court and national jurisdictions in accordance with the carefully drafted formula proposed in the Draft before us. We feel that it represents a viable compromise, and would caution against re-opening this crucial building-block for the Conference. One of the early tests for the spirit of cooperation necessary to achieve our goal will in fact be the confirmation of this understanding.
3. Thirdly, Norway is of the opinion that both States and the Security Council of the United Nations must be able to refer situations, as opposed to complaints about individuals, to the Court. The threshold requirements for such a referral must not be too high. And let it be clear: 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. Moreover, we support ex officio powers for the Prosecutor to trigger the Court "s intervention, and the Conference must explore to the fullest extent the possibilities for achieving this. Apart from these triggering mechanisms, it is our view that when a State ratifies the Statute, this should imply a general acceptance of the Court's jurisdiction. This means that after the Court's intervention has been triggered, it should be unnecessary to obtain any additional consent from the States Parties involved.
4. Fourthly, the independence of the Prosecutor requires confidence-building checks and balances. Protection against prosecutorial bias, arbitrariness or other display of unprofessionalism follows from a number of provisions of the treaty. Norway perceives the proposals for a pre-trial chamber to control investigations as a particularly significant step forward compared to the Statutes of the existing ad hoc Tribunals. It provides for an adequate reflection of civil law traditions of criminal justice, and may in our view also play an important role as a filter for any prosecutorial mishaps.
5. Fifthly, we must recognize that 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 in our view lead to important improvements as compared to the Statutes for the two ad hoc Tribunals
6. Sixthly, the effectiveness and credibility of the Court will to a very large degree rest on State cooperation. Clear obligations to cooperate with the Court, and to give priority to these obligations, will be a prerequisite for the success of our project.
7. Seventhly, the Draft before us provides for an appropriate relationship with the United Nations. This relationship will be essential in situations concerning the maintenance of international peace and security. It will have a bearing on issues such as referrals and enforcement assistance from the Security Council, the possible merger of existing ad hoc Tribunals with the Court at later date, and financing.
8. With regard to funding, we need to ensure that the Court has the necessary financial resources to accomplish its work. Without them the Court will remain an abstract project leading only to unfulfilled expectations and disappointment. We could not accept such a development.
9. Norway rejects the inclusion of the death penalty in the Statute.
10. Lastly, we find a reservations clause totally unacceptable. The mere possibility of such a clause would in fact diminish significantly the rationale for any compromises in the negotiations on substantive provisions of this important treaty.
Mr. President,
The above listing does of course not exhaust the issues that we consider important, but may provide an indication of our crucial concerns. We have all had ample opportunities to present options during the preparatory work in New York under the able chairmanship of Ambassador Adriaan Bos, to whom we pay tribute and to whom we address our wishes for a quick recovery. We have our fullest confidence in the leadership of this Conference, and would like to thank the Italian Government for its proven commitment to the success of our endeavour.
To ensure success, the Conference should immediately start its substantive work. We will have to show a spirit of pragmatism, compromise and sober realism on certain issues, but display boundless ambition in other areas. We expect pivotal decisions to be reached during this first week. If we leave too many decisions to the latter part of the Conference, this would seriously jeopardize the chances of success. This should definitely be avoided.
I wish hereby to express once again Norway's full and long-standing commitment to the adoption of a Statute in July on the establishment of a strong and truly credible Court, with the broadest possible support. We are convinced that the moment is ripe, and I call upon all participating States to seize this historic opportunity.