I am honored to speak to this Diplomatic Conference on behalf of the Lawyers Committee for Human Rights. The Lawyers Committee has long worked to give voice to a deeply held aspiration of civil society: ending impunity for the most heinous international crimes. It is appropriate that Rome should be the site of this gathering. In this eternal city, it is not difficult to feel the weight of history as we decide whether humanity will take a measured but significant step towards institutionalizing the rule of law.
This Conference has the opportunity to create a court that will provide a forum to prosecute the worst international crimes when national systems are unable or unwilling to do so. An effective court would serve to deter gross human rights violators, by confronting them with the threat of punishment. It would offer redress to victims where national courts cannot provide it, including justice and protection for women, children and witnesses of international crime. It would strengthen peace, by offering justice through law as an alternative to the wild justice of revenge. And it would contribute to the process of reconciliation, by replacing the stigma of collective guilt with the catharsis of individual accountability.
It has been said that conscience whispers, but interest screams aloud. And there are those who might argue that the reasons for establishing a court are "merely" matters of conscience. That is an important part of why a court is needed. But it is only a part. The community of nations also has the fundamental interest of contributing to a more stable, less violent world.
The success of this Diplomatic Conference will not by itself assure a new era of international justice. Much work will remain to be done. But it is an indispensable step. In the words of the French proverb, the first step binds one to the second. And we will never fulfill the often invoked promise of "never again" unless we take this step. The world that future generations inherit will depend upon the progress that we make in the coming weeks.
The challenge is not just to create an international criminal court. The challenge, rather, is to create a court that is independent, effective and fair. Indeed, a court without those features would be worse than no court at all. It would set back the cause of international justice. It would fail to achieve the goals of ending impunity and deterring future atrocities. It would, in short, betray all those whose suffering has put the issue of a permanent court on the international agenda. The Lawyers Committee therefore urges the delegations to resist the inclination to accept the lowest common denominator merely for the sake of creating a court, no matter how weak it might be.
What are the hallmarks of an independent, effective and fair court? Above all, the court must be--and must be perceived to be--a judicial body whose functioning is guided by legal rather than political considerations. Thus, it must be based on the following principles.
- First, the court's jurisdiction should be limited to the three core crimes of genocide, crimes against humanity and serious war crimes. The court must have jurisdiction over war crimes committed in internal armed conflict and over crimes against humanity committed in times of peace. Other crimes should be included only if agreement on their definition can be reached quickly.
- Second, the Security Council should not be able to control the court's docket. In particular, the Council's permanent members should not have the power unilaterally to veto investigations. We cannot provide one form of justice for five countries and another form for the rest of the world.
- Third, the prosecutor must be permitted, subject to appropriate safeguards, to initiate investigations on his or her own authority. Without an independent prosecutor, the court will be guided more by politics than by the demands of justice. One need not look farther than the Security Council's inability to agree on a Cambodia tribunal to see how power politics can thwart the pursuit of justice.
- Fourth, the court must be empowered to exercise its jurisdiction without the necessity of obtaining state consent before it can proceed. Any state consent regime could cripple the court by handing effective veto power over prosecutions to governments that are actually under the control of a suspect or his allies.
- Fifth, the court must adhere to the highest international standards of fair trial and due process. It must be a model of fairness.
- Sixth, states parties must be obligated to cooperate fully with the court and to comply with its orders and decisions. The court should be the final judge of noncompliance, with the ability to refer findings of noncompliance to the Assembly of States Parties for further action by that body.
- Seventh, the court should be financed out of the regular United Nations budget.
Only a court with these characteristics is likely to achieve the international legitimacy and respect necessary to render justice effectively and efficiently. Only such a court will seize the historic opportunity presented to this Diplomatic Conference.
Some have expressed concern that an independent court could run amok, becoming a forum for politically motivated prosecutions. Judicial independence is the surest way to avoid politicizing the court. But there are other safeguards as well. These include judicial oversight of the prosecutor and ensuring that the judges and prosecutors are individuals of the highest impartiality, integrity and professional competence. Perhaps the most important safeguard is the basic principle of complementarity: The court will act only when there is no national judicial system willing and able to investigate and prosecute.
There are many, many details still to be resolved before the international criminal court can become reality. But it is within reach, and we must make every effort to end this conference with the adoption of a treaty. The distinguished American diplomat and public servant, Adlai Stevenson, observed decades ago that, on this shrunken globe, we can no longer Eve as strangers. The presence here of representatives -- governmental, nongovernmental and intergovernmental - from every corner of the world validates that observation. Our common purpose must be to affirm that genocide, crimes against humanity and the most serious war crimes are not the affairs of strangers, but rather are the concern of all humanity.