|Department of Public Information • News and Media Division • New York|
Sixty-fourth General Assembly
29th & 30th Meetings (AM & PM)
Presidents of International Criminal Court, International Court of Justice,
Present Annual Reports to General Assembly
International Court Chief Says Law Does Not Replace Politics,
Economics, but without It, ‘We Cannot Construct Anything That Will Last’
States’ increased recourse to the International Criminal Court and the International Court of Justice for the peaceful settlement of their disputes on growing and more varied issues pointed to heightened awareness among political leaders of the importance of the rule of law, the top officials of those global judicial bodies told the United Nations General Assembly today.
The Assembly’s joint debate on the activities and challenges of the Courts heard more than 40 speakers throughout the day praise the efforts to both bodies to improve efficiency and strengthen cooperation with States, with some expressing concern at instances of perceived political and judicial activism.
In his first address before the Assembly, Sang-Hyun Song, President of the International Criminal Court, said the body’s independent, judicial nature was its hallmark, and the drafters of the Rome Statute, the Court’s founding charter, had taken great care to exclude political considerations from the work of the judges. At the same time, the Court operated within a political world and depended on States to respect, protect and enhance its judicial independence.
While it was still too early to draw conclusions, he said the extent of attention given to the protection of witnesses was perhaps unprecedented for any court or tribunal. Also, the Court was operating against a “largely blank slate” of jurisprudence, and both the Pre-Trial and Trial Chambers were routinely confronted with questions of how to interpret the Rome Statute, some of which concerned completely new innovations in international law. The Court also had dealt ably with what many had foreseen as a potentially significant challenge ‑‑ the participation of victims.
Even as the Court had opened its first trial this year against former rebel leader Thomas Lubanga, who was charged with conscripting, enlisting and using children under age 15 to participate in hostilities in the Democratic Republic of the Congo, the biggest obstacle to the conduct of judicial proceedings was the lack of arrest and surrender of suspects.
He explained that, on 4 March, an arrest warrant had been issued for Omar Al-Bashir, President of the Sudan, on charges of allegedly committing five counts of crimes against humanity and two counts of war crimes in Darfur. Requests for his arrest and surrender had been issued to States, and it was their duty to comply, in line with their legal obligations. “When the Court issues a decision, it must be enforced by States,” he said.
To that point, the Sudan’s delegate said there was deep concern throughout the global community about the record of the Court, which had turned into a tool for settling political accounts in the name of justice. The Court sought people mainly in Africa, he said, and asked: “Is there now a new legal apartheid?” African leaders had expressed concern over such issues in their meetings of the African Union Peace and Security Council, and had decried the conduct of the Court’s Prosecutor, which was characterized by “an eager pursuit of fame”. States had the right to join or not join the Rome Statute, whose provisions applied only to its signatories. The role granted to the Security Council only further politicized justice and violated the United Nations Charter.
Yet Costa Rica’s representative said that often there were mistaken ideas of international criminal justice, and that those seeking to discredit the Court ‑‑ those indicted for war crimes and those that were fugitives from international justice ‑‑ were shameless enough to say that it was only in Africa that criminals were prosecuted. However, three cases had been referred to the Court by African Governments; a fourth had been referred by the Security Council, in line with resolution 1593 (2005), without a single dissenting vote. The Court existed only where States were unable or lacked the will to prosecute the most egregious crimes.
Also addressing the Assembly for the first time in afternoon debate, Hisashi Owada, President of the International Court of Justice, first expressed his condolences to the five families of those who lost their lives in the recent attack in Afghanistan, saying that, in promoting the rule of law, it was important to hold perpetrators of such atrocities accountable for their actions.
In that context, he said there was growing trust in the Court as the United Nations’ principal judicial organ, as seen in the increasing number of cases brought before it. This year, the Court had seen more than 16 cases on its docket. It had rendered two judgments on the merits, one judgment in a request for interpretation, one judgment on preliminary objections and two orders on requests for the indication of provisional measures.
What was more remarkable was that those cases involved States from all continents, reflecting the Court’s universal character. The cases also presented complicated factual issues that had to be evaluated against diverse social and historical backgrounds, and that intermingled with both colonial past and a new legal environment composed of emerging normative challenges. The rule of law was even more crucial against the backdrop of deepening globalization. “Law does not replace politics or economics, but without it, we cannot construct anything that will last in the international community,” he said.
On that note, Romania’s Director General for Legal Affairs in the Ministry for Foreign Affairs said his country had been involved in a judgment rendered on 3 February involving the exclusive economic zones and continental shelf to Romania and Ukraine in the Black Sea. Romania had never been a party to a contentious case before the Court and its decision to use that body showed Romania’s recognition of its high professionalism and extensive expertise in maritime delimitation. Romania was satisfied with the Court’s unanimous decision, which showed the solution reached by the Court was a well-grounded and judicious one.
Singapore’s delegate added that the Court’s judgments regarding bodies of water, such as the Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge case between Malaysia and Singapore last year, represented a very relevant and valuable articulation of legal principles. It would guide those States’ relations with their neighbours.
Also speaking today on the International Criminal Court were the representatives of Sweden (on behalf of the European Union), New Zealand (on behalf of Canada and Australia), Trinidad and Tobago (on behalf of the Caribbean Community (CARICOM)), Kenya (on behalf of the African Group of States Parties to the Rome Statute), Senegal, Liechtenstein, Norway, South Africa, Cuba, Peru, Republic of Korea, Brazil, Japan, Switzerland, Egypt, Democratic Republic of the Congo, Gabon and Mexico.
During the afternoon debate on the International Court of Justice, the legal adviser in the Ministry of Foreign Affairs of Pakistan and the Director in the Department of Legal Affairs in the Ministry of Foreign Affairs of Portugal addressed the Assembly.
Also speaking on the issue were Canada (on behalf of Australia and New Zealand), Denmark (on behalf of the Nordic States), Philippines, Senegal, South Africa, Peru, Egypt, Singapore, Chile, Kenya, India, Sudan, Japan, Brazil, Democratic Republic of the Congo, Republic of Korea, Costa Rica, Tunisia and Ghana.
The Assembly will reconvene at 10 a.m. Friday, 20 October to continue and conclude debate on the International Criminal Court and International Court of Justice, and also take up the report of the Human Rights Council.
The General Assembly met today to consider the annual reports of the International Criminal Court and the International Court of Justice.
For that discussion, the Assembly has before it the Report of the International Court of Justice (A/64/4), which says the Court’s high number of cases pending before it is growing in both factual and legal complexity. These cases frequently involve a number of phases as a result of the preliminary objections by the respondents to jurisdiction or admissibility and requests for the indication of provisional measures, which had to be dealt with urgently. This report covers the period from 1 August 2008 to 31 July 2009.
The report says the 2008/2009 judicial year was a busy one, with six cases under deliberation at the same time. The 2009/2010 year also will be very full, as seven new contentious proceedings and one request for an advisory opinion were filed with the Court in the 1 January 2008 to 31 July 2009 period. This sustained level of activity was possible because of the Court’s willingness to take numerous steps to increase its efficiency and deal with its steady workload. The cases envelope a variety of subjects, including territorial and maritime delimitation, environmental concerns, jurisdictional immunities of States, violation of territorial integrity, racial discrimination and human rights violations.
The number of ad hoc judges chosen by States parties in cases during the period under review was 25, with functions being carried out by 20 individuals. The same person was occasionally appointed to sit as an ad hoc judge in more than one case.
As the principal judicial organ of the United Nations, the International Court of Justice is the only international court of a universal character with general jurisdiction. It consists of 15 judges elected for nine-year terms by the General Assembly and Security Council. Every three years, one-third of its seats fall vacant. The next elections to fill such vacancies will be held in the last quarter of 2011.
Also before the Assembly is the Report of the International Criminal Court (A/64/356), which covers the 1 August 2008 to 31 July 2009 period, and notes that the Court is charged with carrying out investigations into and trials of individuals allegedly responsible for the most serious crimes of international concern, namely genocide and war crimes. The major situations before the Court include: Democratic Republic of the Congo; Uganda; the Central African Republic; and Darfur, the Sudan.
During the year, the Court had many developments, the report says, with the opening of its first trial, confirmation of charges against three individuals, the first voluntary appearance of a suspect pursuant to a summons, and the issuance of an arrest warrant against a Head of State. The judges issued decisions on fundamental aspects of the Rome Statute, the Court’s founding charter, such as the principle of complementarity and the rights of the accused. The system set up by States parties to the Rome Statute continued to operate effectively in practice. Today, challenges remain in the face of eight outstanding arrest warrants.
The report says that several situations were referred to the Prosecutor, who determined there was a reasonable basis to begin an investigation into each situation. These included The Prosecutor v. Thomas Lubanga Dyilo ( Democratic Republic of the Congo), which involved Mr. Lubanga, an alleged leader of the Union des Patriots Congolais and Commander-in-Chief of its military wing. He is charged with committing war crimes, enlisting, conscripting and using children under the age of 15 to participate actively in hostilities. The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui ( Democratic Republic of the Congo) involves seven counts of war crimes: wilful killing; using children to participate in hostilities; sexual slavery; rape; attacking civilians; pillaging and destroying enemy property.
In The Prosecutor v. Jean-Pierre Bemba Gombo ( Central African Republic) case, the report notes charges of war crimes and crimes against humanity. The case of The Prosecutor v. Omar Hassan Ahmad al-Bashir involves the President of the Sudan, in relation to the situation in Darfur. Finally, The Prosecutor v. Joseph Koney, Vincent Otti, Okot Odhiambo and Dominic Ongwen ( Uganda) case involves four alleged members of the Lord’s Resistance Army in Uganda. In addition, there were eight arrest warrants outstanding.
During the time period under review, investigations and analysis took place in each country, and the Office of the Prosecutor monitored proactively all information on crimes potentially falling within the jurisdiction of the Court. Six situations under analysis are public: Afghanistan; Colombia; Côte d’Ivoire; Georgia; Kenya and Palestine.
Cooperation with the United Nations remains essential, the report says, while peacekeeping missions assist the Court in transportation, communication support and use of United Nations facilities. In addition, the Court benefits from expertise of relevant offices, for example, when it works with the Office of the United Nations High Commissioner for Refugees. The Office of Legal Affairs facilitated cooperation with testimony of United Nations officials. Cooperation from other bodies is also important, including from the African Union, States and civil society. Lastly, six judges were elected to the Assembly of States Parties to the Rome Statute. President of the Court, Judge Sang-Hyun Song, also was elected. Professor Catharine MacKinnon is Special Adviser on gender to the Prosecutor.
Statement by the President of the International Criminal Court
In his first address before the Assembly since his election in March, SANG‑HYUN SONG, President of the International Criminal Court, said he looked forward to further developing the mutually beneficial cooperation with the United Nations during the three years of his mandate.
Describing the Court’s activities, he said that on 26 January, Trial Chamber I had begun the Court’s first trial, that of Thomas Lubanga Dyilo, who was charged with conscripting, enlisting and using children under age 15 to participate in hostilities in the Democratic Republic of the Congo. Next month, Trial Chamber II would begin the Court’s second trial -- that of Mathieu Ngudjolo Chui and Germain Katanga, each charged with seven counts of war crimes and three counts of crimes against humanity, also in the Democratic Republic of the Congo.
To address the situation in the Central African Republic, he said Pre-Trial Chamber II had recently confirmed three charges of war crimes and two counts of crimes against humanity against Jean-Pierre Bemba, while Trial Chamber III was preparing for that trial. Last week, Pre-Trial Chamber I had started its hearing on the confirmation of charges against Abu Garda on three counts of war crimes related to an attack on African Union peacekeepers.
While it was still too early to draw conclusions, he said the extent of attention that must be given to the protection of witnesses was perhaps unprecedented for any court or tribunal. Of the 30 witnesses called so far in the Lubanga case, 22 had testified in Court with some form of protective measures. In comparison, only 28 per cent of witnesses at the International Criminal Tribunal for the former Yugoslavia required any such measures. “Much more goes on behind the scenes to ensure that victims and witnesses are not put at risk,” he said, also stressing that simultaneous efforts were being made to guarantee the rights of the accused to a fair trial.
Second, he said the Court was operating against a “largely blank slate” of jurisprudence, and that the Pre-Trial and Trial Chambers were routinely confronted with fundamental questions of how to interpret the Rome Statute, some of which concerned completely new innovations in international law. The Court also had dealt ably with what many had foreseen as a potentially significant challenge -– the participation of victims. Some 102 victims had participated in proceedings against Mr. Lubanga, while 345 would participate, through two legal representatives in the trial of Mr. Katanga and Mr. Ngudjolo Chui.
However, the biggest obstacle to the conduct of judicial proceedings was the lack of arrest and surrender of suspects, he explained, noting that warrants had been outstanding since 2005 for Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen for war crimes and crimes against humanity allegedly committed in Uganda. Bosco Ntaganda had been sought since 2006 for alleged war crimes in the Democratic Republic of the Congo, while Ahmad Harun and Ali Kushayb were each subject to warrants for crimes against humanity and war crimes, issued in 2007, in relation to the situation in the Sudan’s western Darfur region.
In addition, on 4 March, Pre-Trial Chamber I had issued an arrest warrant for Omar al-Bashir, President of the Sudan, on charges of allegedly committing five counts of crimes against humanity and two counts of war crimes in Darfur, he said. As with all previous warrants, requests for his arrest and surrender had been issued to States, and it was their duty to arrest and surrender such persons, in line with their legal obligations.
Beyond such proceedings, the Prosecutor continued to investigate four situations before the Court, and was analysing information on crimes that might have been committed within the Court’s jurisdiction in other situations, including in Colombia, Georgia, Afghanistan, Côte d’Ivoire, Kenya, the Occupied Palestinian Territory and Guinea.
Turning to the Court’s priorities, he said the Court’s independent, judicial nature was its hallmark, and that the drafters of the Rome Statute had taken great care to exclude political considerations from the work of the judges. At the same time, the Court operated within a political world and depended on States to respect, protect and enhance its judicial independence. “When the Court issues a decision, it must be enforced by States,” he said. Where misperceptions existed, States, international organizations and others should promote understanding.
His second priority was to enhance the Rome Statute’s effectiveness, as, while its achievements had been remarkable, “it is not time to rest on one’s laurels”. The Rome Statute system could -- and should be -- developed, he said, notably through States’ ratification of the treaty. That was a sovereign decision of States and while the Court would not seek to persuade them, it would provide as much information as possible to those considering ratification.
Also, the willingness of national jurisdictions to investigate and prosecute crimes of genocide, crimes against humanity and war crimes could be improved, and the Court would explore ways to help States seeking to develop their capacities. Improving cooperation, notably States’ enforcement of the Court’s decisions, should be strengthened and the Court would work with States in that regard, he added.
The United Nations had an equally central role in enhancing the international criminal justice system, and the Court looked forward to continuing its work with the Organization, among others, in exploring ways to enhance the international criminal justice system. In that regard, he said the stocktaking exercise to be part of next year’s Review Conference on the Rome Statute in Kampala, Uganda, would be an excellent opportunity to assess where the system stood and set out a road map for the future.
Concluding, he said that in 15 years, the Court had gone from an idea on the agenda of the Assembly’s Sixth Committee (Legal) and the International Law Commission, to a robust judicial institution. He assured the Assembly of the Court’s continued contributions to the aims of the Rome Statute and both the purposes and principles of the United Nations.
Statements on the International Criminal Court
CARL HENRIK EHRENKRONA, Director-General for Legal Affairs, Ministry for Foreign Affairs of Sweden, on behalf of the European Union, reaffirmed his unwavering commitment to fight impunity for the most serious crimes of concern to the international community. Over 10 years ago, the international community took a momentous step forward when it had adopted the Rome Statute, creating a permanent court that ensured the accountability of perpetrators of genocide, war crimes and crimes against humanity. To date, 110 States had become party to the Statute. However, universal acceptance by all countries was key. Until that goal was reached, the distribution of justice would seem uneven, and the response to the challenge needed to be more justice, not less. The same was true for issues of peace and justice, which were mutually reinforcing. In post-conflict situations, restoring rule of law was key, he added.
There were long-term effects of the Court, including greater respect for international humanitarian and criminal law, human rights, and the rule of law. However, the Court could not grow without the cooperation of States, which needed to provide assistance with several unexecuted warrants of arrest. The Court was a place of last resort and the primary responsibility for bringing offenders to justice needed to be with States themselves. However, some States were unwilling or unable to prosecute offences. In those cases it was important that agreement was reached that the international level should assist. He urged the creation of additional mechanisms for deepened cooperation with regional organizations, and encouraged other relevant international organizations such as the African Union, to formalize their cooperation with the Court. Lastly, next year the Review Conference of the Rome Statute would take place in Kampala, Uganda. At that time, participants would take stock of the Court and determine where the Court would have a defining role.
JIM MCLAY (New Zealand), speaking also on behalf of Canada and Australia (CANZ), commended the International Criminal Court for all it had accomplished to date, noting that every year since its inception, the Court had reached important milestones in its development –- and this year had been no exception.
With Court now fully operational, next year would see yet another key “first” for the Court -– when the inaugural Review Conference of the Rome Statute would be convened in Kampala, Uganda. The location of the Conference was a positive reflection of Africa’s constructive engagement with the Court over the last decade, he said. As that Review Conference drew closer, he encouraged States and stakeholders to continue working together to ensure its success, pointing out that tangible progress had been made in the Special Working Group on the Crime of Aggression. He further encouraged States not to overburden the Review Conference with too many proposals to amend the Rome Statute, unless they enjoyed broad support, promoted universality and addressed the Court’s most pressing needs.
He said the Review Conference would also provide a unique opportunity to undertake a high-level stock-take of international criminal justice –- to assess its concrete achievements, challenges and lessons learnt, and to identify practical, meaningful ways to further strengthen the Court. However, while the Court reached its key milestones, it continued to face challenges, including the fact that it did not yet have a global reach, and it’s reliance on States and international and regional organizations for the necessary political, moral and practical support to enable it to fulfil its mandate, he noted.
MARINA A. VALERE ( Trinidad and Tobago), speaking on behalf of the Caribbean Community (CARICOM), said her delegation viewed the Court’s report as a way to send vital information on its activities to the entire United Nations membership. This annual event was another mechanism to promote the universality of the Rome Statute and its role in the fight against impunity.
Still, as it welcomed the Court’s advances over the past year, CARICOM was deeply concerned by the failure of some States to honour their obligations under the treaty. It bemoaned that there were eight outstanding warrants of arrest in three situation countries for individuals accused of committing grave crimes. She said the sustained failure to execute the warrants undermined the Court’s efforts to counter impunity and bring about justice on behalf of the many victims of war crimes, crimes against humanity and genocide. She urged all concerned States to honour their obligations and cooperate with the Court to maintain their treaty obligations and the relevant resolutions of the Security Council.
CARICOM noted the progress made in the Court’s first trial in the case concerning Thomas Lubanga Dyilo and the start of proceedings in the case involving Germain Katanga and others. She also noted that the Court was not only concerned with the rights of the accused, but also the potential dangers faced by witnesses to crimes under its jurisdiction and she commended the Court’s witness protection programme.
Turning to the selection of judges, she said such court officials should be selected not only on the basis of their qualifications, such as competence and experience, but they should also be of high moral character and representative of the principal legal systems of the world. In that regard, CARICOM reminded States parties of the candidature of Justice Duke Pollard of Guyana, for election to fill one of two judicial vacancies at elections scheduled during next month’s Assembly of States Parties, in The Hague.
She said CARICOM hoped the work on the definition of the crime of aggression could be completed so a definition of that crime could be adopted at the Review Conference in Kampala, Uganda in June 2010. States should not compromise the Court’s independence and subject it to the authority of any other institution as the exercise of jurisdiction over the crime was concerned. In conclusion, she urged all Member States that had not yet done so to become parties to the Rome Statute, a more urgent need as the activities of the various ad hoc International Criminal Tribunals, created by the United Nations, would cease.
ZACHARY D. MUBURI MUITA (Kenya), speaking on behalf of the African Group of State Parties to the International Criminal Court, said that the entry into force of the Rome Statue had ushered in a new era in the administration of international criminal justice. The Court’s deterrent role for the most serious international crimes was beginning to be felt as it engaged in greater judicial activity.
As a fully functional judicial institution, the Court was making substantial progress in its work and was developing its own jurisprudence on international criminal justice. In order to make more progress, the Court needed to be given all the support necessary, he said. As war crimes, crimes against humanity, and genocide, knew no borders, it was incumbent upon all to be allied against those crimes. To that end, the Rome Statute afforded States the opportunity to deal with cases of human rights violations under domestic law, and allowed the Court to assume jurisdiction, only when affected States were either unable or unwilling to act.
He said the principle of complimentarity was a positive development in the pursuit for human rights promotion and protection, and therefore, the debate on “justice and peace, or peace and justice” need not undermine the principle of complimentarity and the fight against impunity. Reaffirming the African Group’s commitment to its obligations under the Rome Statute, he stated that African State Parties to the Statute remained committed to the fight against impunity, as well as to the fair, independent, impartial, and effective functioning of the Court.
The movement towards universality of the Court, he believed, was clearly visible as States increasingly looked to the Court as the central mechanism for administration of international criminal justice. Continuing, he pointed out that, in the administration of international criminal justice in Africa, the Court had been preceded by the experience of the Special Court for Sierra Leone and the International Criminal Tribunal for Rwanda, which two bodies had proved that it was now possible to hold leaders accountable for grave crimes and human rights abuses.
With regard to the upcoming Review Conference in 2010 in Uganda, he pledged the African Group’s active participation on all the pending issues such as definition of the “crime of aggression” and said non-States parties and other stakeholders should feel welcome to give their views on the topics that would be discussed, to enrich the process of advancing further the high ideals of the Statute. He also emphasized the African Group’s support for the process of transformation from impunity to accountability.
PAUL BADJI (Senegal), aligning himself with the Group of African States Parties to the International Criminal Court, reaffirmed the importance that Senegal attached to the promotion of an international criminal justice system. Memories of atrocities and horrors -- genocide, war crimes, crimes against humanity and repeated human rights violations -- marked the twentieth century and spoke to the urgent need for such a system. For its part, Senegal had worked to promote the creation of a “standing mechanism” of international criminal justice, and was among the first States to both sign an appeal to create the International Criminal Court and to ratify the Rome Statute. The Court’s 2002 creation had been seen as a result of Senegal’s tireless efforts to that end.
Indeed, the emergence of the Court was among the “greatest achievements of our time” in the fight against the impunity of those responsible for the most serious crimes, he said. The Court had reached a decisive turning point, with its first Review Conference to be held in 2010. Ahead of that meeting, it would be useful to review the goals that had led to its establishment. In that context, he urged not losing sight of the principles that had guided the creation of the Rome Statute –- among them, the need for an apolitical court to prosecute the most serious crimes, States’ primary responsibility to try such crimes if they were able -- as seen in the principle of complementarity -- and the need for victim compensation.
CHRISTIAN WENAWESER (Liechtenstein) said although he was satisfied that the International Criminal Court had made further progress in its judicial work, universal adherence to the Rome Statute remained a central goal and Member States must be redouble their efforts in that regard. The report noted that in line with the Statute, the Court relied on the cooperation of States, international organizations and civil society to carry out its tasks. What set the Court apart from the international war crimes tribunals for the former Yugoslavia and Rwanda was that the Rome Statute worked on the principle of complimentarity, which was in fact one of its core features.
Therefore, he continued, cases could only be brought before the Court if national jurisdiction had not, for one reason or another, dealt with them. It was the primary responsibility of States to prosecute the worst crimes, such as genocide and war-related violations under international law. That was why the Court was only analysing and not investigating some cases that were being reviewed. He added that national jurisdictions were also vital in the fight against impunity. All in all, he said that it was worth looking into how international justice could relate with national justice systems more effectively.
The time had come to look closely at the practical implications of the principle of complimentarity and the United Nations role in that. He thus called on pertinent actors within the Organization’s system to redouble their efforts. Turning to next year’s Review Conference, he said it would be an opportune moment to reflect on the gains and challenges of international criminal justice and the first attempt to amend the Rome Statute. With regard to stocktaking, plans to phase out ad hoc tribunals and other international and hybrid mechanisms would add an important perspective to those talks, he said. He was convinced that such a conference would ensure that the Rome Statute was accepted universally.
MORTON WETLAND ( Norway) expressed his delegation’s full support for the Court, and commended it for the progress made, its first trial and confirmation of charges completed. However, of concern were eight outstanding arrest warrants from Darfur, Uganda and the Democratic Republic of the Congo. That spotlighted the issue of State cooperation, which was an absolute necessity for the Court to function, including conducting investigations, facilitating arrests, surrendering persons, protecting witnesses, and enforcing sentences. In that vein, he urged the Sudan to cooperate fully with the Court and comply with its legal obligations under Security Council resolution 1593 (2005).
Turning to the issue of the universality of the Rome Statute, he noted that it was remarkable that so many States ratified the Statute in such a short period of time. It was a genuine reflection of the international community’s rejection of impunity for serious crimes, and evidence of increasing favour of the rule of law. Regarding the Review Conference in Uganda next year, preparations for that event were well underway and Norway was committed to achieving a successful conference and would continue working with other States and civil society actors over the coming months. He reiterated Norway’s firm commitment to the integrity of the Rome Statute to an effective and credible Court that enjoyed the broadest possible support from all States.
BASO SANGQU (South Africa) said he appreciated the work by the Trial Chamber and the Appeals Chamber in the case of The Prosecutor v Thomas Lubanga Dyilo, relating to the situation in the Democratic Republic of the Congo. South Africa also was closely following The Prosecutor v Jean-Pierre Bemba Gomba case as it related to the duty of State parties to cooperate with the Court. South Africa believed that cooperation with the Court had to take place within a certain and predictable legal framework and domestic legislation implementing the Rome Statute.
Turning to the case regarding Darfur, the Sudan, The Prosecutor v Omar Hassan Ahmad al-Bashir, he said that issue had led everyone to evaluate the balance between peace and justice. South Africa had repeatedly said peace and justice should be mutually reinforcing, and it was necessary to respect the Court’s judicial independence while reiterating the call for it to consider the request for a deferment, in light of the purpose of a Statute provision that allowed Council action to defer investigations and prosecutions in the interest of peace.
He encouraged the Court to keep working with the African Union to explore an enhanced relationship through a Relationship Agreement and the creation of a liaison office in Addis Ababa, at the appropriate level. Turning to the upcoming Review Conference on the Rome Statute, he said that meeting’s agenda should not be overburdened and should be seen as an opportunity to assess the state of international criminal justice. Questions of peace and justice could be appropriately considered and the discussion should also address how to enhance complementarity. He said the success of the international criminal justice founded by the Rome Statute was partly determined by the capacity of domestic court systems to deal with these serious crimes.
MANUEL DE JESÚS PÍREZ PÉREZ, Head of the Legal Division, Ministry of Foreign Affairs of Cuba, noting that his country had supported the creation of an impartial international criminal justice system, said the Court’s lack of independence continued to be of concern, given its relations with the Security Council. Indeed Article 16 of the Rome Statute granted the Council power to suspend investigations or indictments carried out by the Court, while Article 5 subjected the Court’s jurisdiction to the Council’s ruling on the existence of a crime of aggression. Those two elements questioned the Court’s true independence.
While Cuba had participated in the process to establish the Court, he said minimum expectations set at the start –- like the creation of a definition of the crime of aggression -– had not been met. In that context, the next Assembly of States Parties, to be held in November at The Hague, and the Review Conference of the Rome Statute, to be held in Uganda in 2010, must elaborate that definition. For Cuba, it was difficult to make the decision to adhere to the Rome Statute without a clear definition. Cuba maintained a constructive position on the creation of a truly impartial international criminal justice system, and had followed with interest the functioning of that institution through its participation as an observer in meetings of the Assembly of States Parties to the Rome Statute.
He was concerned at the serious precedent that could be set by the Court aimed at initiating legal proceedings against nationals of non-States parties that had not accepted the Court’s competence. Respect must be given to the principle related to a State’s consent to be bound by a treaty. In closing, he reaffirmed Cuba’s willingness to contribute to implementing a truly effective international criminal justice.
LUIS ENRIQUE CHÁVEZ ( Peru) said some important developments regarding the International Criminal Court had taken place in the past year as two States had ratified the Rome Statute. He called on the States that had not yet done so to act, so as to prevent war crimes and crimes against humanity from passing unpunished. States had to comply with the provisions of the Statute, such as protecting witnesses and victims and adjusting their internal legal standards to the Statute.
He was concerned that persons for whom international arrest warrants had been issued by the Court had not yet been handed over to the Court. Some of those warrants dated back to 2005. Peru urged States where those persons subject to the warrants resided or were located to cooperate with the Court. He urged support for greater cooperation between the Court and the United Nations, and trusted that such cooperation would be more coordinated. He also suggested that cooperation agreements be signed with the peacekeeping missions.
The Court had a role in promoting the rule of law as the only legal institution permanently charged with investigating and trying those accused of the most serious international crimes, he said. Next year would be important with the holding of the first Review Conference. The main task would be the definition of crimes of aggression and he noted the efforts of the Working Group on this issue. He said this meeting would be an opportunity to focus on the work developed by the facilitators and urged Members States to not pursue separate agendas. He noted that there would be other Review Conferences and other opportunities for new proposals.
PARK IN-KOOK ( Republic of Korea) emphasized the importance of carrying out an outreach programme to those States that had not yet joined the Court’s Rome Statute and he urged the Court to steadily engage in genuine dialogues with all stakeholders, including non-members. He was pleased to see the Court was a fully functional judicial institution. Regarding the trial of the former Congolese rebel leader Thomas Lubanga Dyilo, he said that proceeding was a major step in the fight against impunity and the first international court case to prosecute and condemn the use of child soldiers as a crime. He hoped that trial, started in January, would send a strong message to the international community that impunity for genocide, war crimes, and crimes against humanity would be not tolerated. He applauded the cooperation of Congolese authorities in those proceedings.
At the same time, eight arrest warrants issued by the Court remained to be executed, more than the last reporting period, he said. Without the universal participation of all States, the Court might be unable to fulfil its role as a key instrument in combating impunity. As stressed in the report, the Court relied on cooperation in areas such as facilitating investigations, arresting and surrendering persons, protecting witnesses and enforcing sentences.
His delegation firmly believed that the Court’s judicial decisions must remain untouched by political interests and considerations, in a true spirit of fairness. He said next year’s Review Conference would be a critical opportunity to reflect on where the system stood and its future. The States parties needed to scrutinize the entire international criminal justice system, including the challenges States faced in providing cooperation, enacting legislation, and carrying out domestic investigations and proceedings.
Since the inception of negotiations on creating the Rome Statute system, the Republic of Korea had been actively engaged in the system. After joining the Court, his country had promptly completed its domestic legislation in 2007. It continued to financially support the Court and fully supported its future activities.
ABDALMAHMOOD ABDALHALEEM MOHAMAD ( Sudan) said the world had witnessed various “landmarks” through which the global community had tried to achieve peace, development and social justice. Among them was the creation of the League of Nations, which had failed but was succeeded by the United Nations, which States now were striving to reform. The Court, today, faced the same destiny of failure, as it had not learned from past lessons. Despite that, it was still relatively young, its record was full of flaws and it was now a threat to peace and security.
In that context, he urged not hiding behind diplomatic phrases, which so often happened at the United Nations. There was deep concern throughout the global community about the record of the Court, which had turned into a tool for settling political accounts in the name of justice. In Africa, leaders had expressed concern over such issues in their meetings of the African Union Peace and Security Council. For the first time in the history of multilateralism, a treaty had condemned the conduct of the Prosecutor, which was characterized by “an eager pursuit of fame”. That official had abandoned his judicial status for one of political activism, he added.
Was such behaviour professional? Was the Prosecutor required to chase fame, and say that the accused was not innocent, despite that he had not been condemned? Was there a legal or moral justification that allowed the Prosecutor to remain in his post? An administrative court had ruled against how the Prosecutor carried out his duties, he said. States had the right to join or not join the Rome Statute, whose provisions applied only to those that had joined, he said. The role granted to the Security Council only politicized justice and violated the United Nations Charter. The Court sought people mainly in Africa -– was there now a new legal apartheid?
“Stop politicizing justice,” he declared, urging the Assembly to say no to selective measures and double standards, encroachments on State sovereignty and the targeting their leaders. The African Union, League of Arab States, Organization of Islamic Conference (OIC) and the non-Aligned Movement had all called for that, he added.
GUILHERME DE AGUIAR PATRIOTA ( Brazil) opened by noting that the Court was already recognized by an impressive 110 States. He hoped that more States would ratify the Rome Statute, which would grant a truly universal character to the Court. In 2010, the first Review Conference of the Court would take place in Uganda; numerous proposals were submitted on matters pertaining to war crimes, terrorism, drug trafficking and the enforcement of sentences. The Conference would provide a chance to amend the Statute, but it would not be the last time to do so. It was also an excellent time for more in-depth discussion on the current status of international criminal justice, and a “stocktaking” of issues such as cooperation, national implementation and complementarity. It would also build on the experience gathered by other bodies such as the International Criminal Tribunals for the former Yugoslavia and Rwanda and the Special Court for Sierra Leone.
He noted that the Sixth Committee (Legal) was considering the principle of universal jurisdiction. The Court, however, did not operate on a jurisdictional basis, and while it would apply to cases in which the accused had no link with the State exercising its jurisdiction and the alleged crime was committed outside the State, the jurisdiction of the Court was established on a different basis. It may exercise jurisdiction only in three instances: the accused was a national of a State accepting the jurisdiction of the Court; the crime took place on the territory of a State party or a State otherwise accepting the jurisdiction of the Court; or the Security Council referred the situation to the Prosecutor. Lastly, he pointed out the Court was a tribunal of last resort: it could only act when and if the State concerned was not able or willing to conduct genuine criminal proceedings. He called for stronger cooperation between the Court and the United Nations.
NORIHIRO OKUDA ( Japan) opened by saying that it was a crucial period for the Court to define its role in the international community, and then raised several points about the tribunal’s work, including complementarity, cooperation and the rationale of judicial decisions it rendered. On complementarity, he said every State had a duty to exercise its criminal jurisdiction over those responsible for the most serious crimes, and the role of the Court was complementary to such national criminal jurisdiction. States had to exercise their national jurisdiction before referring cases to the Court.
Continuing, he said the importance of cooperation was key and essential for effective investigation and prosecution of cases by the Court. Lastly, regarding the rationale of judicial decisions, the Court must establish its credibility and reputation, and he hoped that the Court would articulate its rationale leading to the conclusion of each decision it took.
Turning to the issue of membership, Japan was pleased to see the steady increase in the number of States parties signing on to the Rome Statute. However, in order to enhance the role of the Court, membership in it must be universal. More States, especially in Asia, needed to join. In co-sponsorship with the Asian-African Legal Consultative Organization (AALCO), Japan organized a seminar on issues and challenges in the Court in Delhi this year. Japan would continue its efforts to increase the number of States in achieving universality of the Court.
PAUL SEGER ( Switzerland) said the notable advances recorded by the International Criminal Court during the course of the year were not only the product of the hard work by the Court and its staff, but also of the cooperation between the Court and certain States. Such cooperation was essential to the fulfilment of the Court’s mandate.
He underlined the fact that it was precisely in those cases where there had been cooperation between the Court and States where the greatest advances had been made, while instances where cooperation by States had lacked, the Court had been unable to carry out its mandate, a situation Switzerland regretted. The success of the Court’s activities depended on the cooperation of States, as much as it depended on that of international organizations. In that connection, he praised the continuing collaboration between the Court and the United Nations.
On impunity, he noted that the Court had been created by the international community in a common effort to fight impunity. The goal was to create a regime which could guarantee that States assumed their responsibilities in the prosecution of perpetrators of the most serious crimes, and which foresaw a mechanism that intervened in cases where States were unable or unwilling to fulfil their responsibility. Although that institution was created by States and to a large degree was dependent on them, it was essential that the Court was not subjected to external pressures in conducting its activities, he explained, adding that it was gratifying that over the course of the reporting period, the Court had shown to be a fully independent and impartial institution.
NAMIRA NABIL NEGM ( Egypt), acknowledging the increasingly prominent role that international criminal tribunals were playing in the enforcement of the rule of law, particularly international law and international humanitarian and human rights law, said there was need to adhere to the established practice not to oblige States to implement Conventions they were not party to. Based on that, and in conformity with customary international law, a State should not be obliged to follow the provisions of the Rome Statute if it did not explicitly, and of its own free will accept to do so.
She stressed the importance of intensifying efforts by Member States to reach a definition on the crime of aggression, especially as circumstances and developments on the international scene indicated the need to reach such a definition. Such action would enable the Court to exercise its jurisdiction over the crime along the lines of the other crimes falling within its jurisdiction. She further stressed the importance that the Court continue to pursue a balanced approach in its work by adopting a policy that accentuated its judicial nature and avoiding the politicization of its work, so as to ensure its impartiality and independence and allowed it the chance to carry out its legal and moral function.
Further, Egypt believed that there was need for the Security Council to refer to the Court all those accused of committing crimes against humanity that threatened international peace and security without discrimination based on political reasons. In that regard, she reaffirmed the importance her country attached to the Court’s application of the principle of transparency and she urged that the Court not consider confidential lists of names of accused in order to ensure the true application of the principles of transparency and accountability.
From that perspective, she said the procedures for investigating, gathering evidence and authenticating documents needed improvement, especially with regard to investigating crimes and providing strong material evidence which confirmed the consistency of the crimes committed and those defined in the Statute. She also said that the Court must accelerate its actions regarding the cases before it in situations in Africa. That way, it could more speedily take up issues from other parts of the world. Otherwise, it might give the false impression that crimes against humanity were only being committed in Africa, or that the Court did not target other regions where such crimes might be committed. In addition, to avoid selectivity, it was important for the Court to consider the outcome of the report of the Independent Fact-Finding Commission on Gaza, known as “the Goldstone Report”.
JORGE URBINA ( Costa Rica) welcomed the Court’s report, saying that 16 years after the creation of the International Criminal Tribunal for the former Yugoslavia, justice and the fight against impunity had become constant concerns for the international community. The Court had been consolidated since the Rome Statute had entered into force, a process directly linked to its increasing legitimacy, both in terms of its internal attributes and public reception of its actions.
The first voluntary appearance of an accused revealed the advent of a new era in which justice was part of lasting peace, and the rule of law transcended national borders. All States bore responsibility for the Court’s consolidation, notably by helping the Court execute its decisions. He encouraged the rule of law to grow on the international level, saying that a group of States had refused to cooperate with the Court and had justified such behaviour on grounds that the Security Council had not adopted a decision that they had requested. He hoped those States would soon see reason, and he was certain that a panel coordinated by the South African President would reveal a constructive attitude.
Often, there were mistaken ideas of international criminal justice, he said, pointing out that those seeking to discredit the Court -– those indicted for war crimes and those that were fugitives of international justice -– were shameless enough to say that it was only in Africa that criminals were prosecuted. However, three cases had been referred to the Court by African Governments; a fourth was referred by the Security Council, in line with resolution 1593 (2005), without a single dissenting vote.
With that, he reiterated that the principle of complimentarity was the backbone of the international criminal justice system. The Court existed only where States were unable or lacked the will to prosecute the most egregious crimes. For those reasons, Costa Rica had constantly supported strengthening the components of the security sector, notably national justice systems in peacebuilding processes. In that context, he saw hope with African Union’s ability to draft model legislation against crimes prosecuted by the Court, train staff and ensure institutional cooperation. As for the 2010 Review Conference, the crime of aggression would be of particular importance and a key ingredient for sustainable development.
ZÉNON MUKONGO NGAY (Democratic Republic of the Congo) endorsed the statement made by Kenya on behalf of the African Group of States parties to the Rome Statute, said his country was in a post-conflict situation and had passed through what some termed “the first African world war”. Each individual in the country could give a definition of the crimes under the jurisdiction of the Court. The Court had been rightfully created to deal with the most serious crimes. The Rome Statute was a reality for the people of the Democratic Republic of the Congo, and cooperation with that body had to concern all Congolese citizens. Indeed, his country was the first State party to develop meaningful cooperation with the Court.
He pointed out that the Democratic Republic of the Congo had ratified the Rome Statute in March 2002, a year before the treaty had entered into force. The country had carried out arrest warrants among its nationals. He was convinced that peace and justice went hand in hand and justice was a factor of peace and security and stability. With the help of the justice system, the country had restored the peace process in North and South Kivu and was working to restore peace throughout the national territory. The Democratic Republic of the Congo was working to integrate former combatants into the national army. The Court’s fifth annual report had demonstrated its meaningful progress. He supported the proposal to hold an “in situ” trial as it would provide certain moral satisfaction and deter potential violators.
He noted that hostility to the Court was not new and indeed existed since its founding. Still more than half of the Member States had joined the Court less than five years after its inception and it now had 110 signatories. The upcoming Review Conference would be an opportunity to strengthen the conviction that the Court would be a gift of hope for future generations. That Conference’s work programme should incorporate talks on the crime of aggression. He called upon all delegations to join the Rome Statue to contribute to the universality of the fight against impunity.
ANNETTE ONANGA ( Gabon), aligning herself with the African States parties to the Rome Statute, said the manner in which the trials were carried out would speak to the Court’s legitimacy. Indeed, they were a milestone in the fight against impunity, and her Government was pleased that the elements which comprised the trials had received particular attention, notably in the Thomas Lubanga Dyilo case.
The Court’s success would depend on State support, she explained, saying that without effective cooperation from all States, the Court would not be able to fully meet its expectations. Commending Uganda for agreeing to host the 2010 Review Conference, she expressed hope that States would make use of that important meeting to reaffirm the integrity of the Rome Statute. In closing, she reiterated Gabon’s full commitment to the Court, and all it represented in terms of building an international society based on the rule of law and the lack of tolerance for impunity.
JOEL HERNÁNDEZ GARCÍA (Mexico) opened by saying it was evident that the work of the International Criminal Court was an efficient way to prevent new crimes, and that it contributed to solving conflicts and consolidating peace. The recent adherence of Chile and the Czech Republic to the Rome Statute was worth celebrating. The Court was young, and had generated great expectations, faced important challenges and severe critiques regarding its capacity to conduct itself as a transparent and efficient model of justice. He welcomed the advancements of the Court, particularly in opening its first trial last January and the upcoming commencement of the second. In order for the Court to meet its mandate, it required heavily on cooperation, and thus it was a permanent duty in political, judicial and diplomatic areas.
During the past few months, the Court had been targeted for its alleged selective conduct in exclusively intervening within one region. However, it was important to bear in mind that the situations before the Court had been referred to it according to the proceedings outlined in the Rome Statute. He added that the refusal of the Sudanese Government to cooperate with the Court was a clear sign of non-compliance with a binding judicial obligation.
He went on to touch on the financial activities of the Court, and said that while the tribunal should have the necessary experience to administer its resources directed to it in a diligent and transparent manner, there were still areas that could be improved to make the Court more efficient without sacrificing its mandate. Some such measures included proper and comprehensive budgeting, better financial practices and development of judicial proceedings and procedures in an efficient and effective manner. In that manner, States would be motivated to respond to requests made to them relating to budgetary matters. Lastly, he mentioned that next year’s Conference in Uganda was an excellent time to review the Court and called for the international community to actively participate in the Review Conference.
Statement by the President of the International Court of Justice
Addressing the Assembly for his first time, HISASHI OWADA, President of the International Court of Justice, expressed his condolences to the five families of those who lost their lives in the recent attack in Afghanistan. Condemning all violence against humanitarian personnel, he reminded the Assembly that in the promotion of the rule of law, it was important to hold perpetrators accountable for such atrocities.
Growing trust in the Court as the United Nations’ principal judicial organ was seen in the increasing number of cases, brought before it. This year had been no exception. The Court had had on its docket more than 16 cases, it had rendered two judgements on the merits, one judgement in a request for interpretation, one judgement on preliminary objections and two orders on requests for the indication of provisional measures. What was more remarkable was that those cases involved States from all continents, reflecting the Court’s “universal character”.
The cases also presented complicated factual issues that had to be evaluated against diverse social and historical backgrounds, and that intermingled with both colonial past and a new legal environment composed of emerging normative challenges.
Giving an overview of the Court’s activities, he said the order indicating provisional measures was issued on 15 October 2008 in a case between Georgia and the Russian Federation on the Application of the International Convention on the Elimination of all Forms of Racial Discrimination. The Court had ordered both parties to refrain from any act of racial discrimination, placing any impediment to humanitarian assistance, or taking any action that might prejudice the rights of the other Party or aggravate the dispute.
Next, the Court had delivered a judgement on 18 November 2008 on preliminary objections in a case between Croatia and Serbia regarding the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, in which Croatia had alleged that the Republic of Serbia violated the Genocide Convention. The Court did not uphold the two grounds of objection by Serbia for rejecting the Court’s jurisdiction, and the case would now move to the merits phase. There was a 22 March 2010 deadline for the Republic of Serbia to file a counter-memorial.
On 19 January, the Court delivered its judgement on the request for interpretation of the Judgement of 31 March 2004 in the case concerning Avena and Other Mexican Nationals, in which Mexico had asked the Court to interpret its 2004 judgement on that issue, and declare that the United States was obliged to ensure that no Mexican national entitled to review under the Avena Judgement was executed until that review was completed. The Court had found that Mexico’s request fell outside Court’s jurisdiction and that it could not accede to the request. However, it had to add, in its judgement, that the United States had not discharged its obligation under the provisional measures order of 16 July 2008 in the case of José Ernesto Medellín.
Also this year, on 3 February, the Court delivered its judgement in the Maritime Delimitation in the Black Sea case between Romania and Ukraine, in which it was requested to draw a single maritime boundary delimiting the continental shelf and exclusive economic zones between those two countries. The Court had concluded that using the landward, rather than the seaward, end of the Sulina dyke should be the basis for delimitation. It further concluded that the presence of Ukraine’s Serpent’s Island, off Romania’s coast, did not call for adjusting the provisional equidistance line.
In addition, the Court had issued an order on provisional measures in the case on Questions relating to the Obligation to Prosecute or Extradite, between Belgium and Senegal. Belgium had submitted that by failing to prosecute or extradite Hissène Habré, the former President of Chad, who had been on Senegalese territory since 1990, Senegal had violated the obligation aut dedere aut judicare, outlined in article 7 of the Convention against Torture and in customary international law. Belgium also filed a request for the indication of provisional measures asking the Court to require Senegal to keep Mr. Habré under control of judicial authorities. The Court ruled that no urgency existed which justified the indication of provisional measures and declined to exercise its power to indicate them.
On 13 July 2009, the Court rendered its judgement in a case between Costa Rica and Nicaragua regarding the navigational and related rights of Costa Rica on a section of the San Juan River, which formed the boundary between the two States, per an 1858 bilateral treaty. The Court found that the right of free navigation applied to the transport of persons and goods. It also found that, with respect to navigation of official Costa Rican vessels, that the right was limited to vessels navigating for the purposes of commerce.
Among the new contentious cases filed with the Court in the last year was one in which Georgia instituted proceedings against the Russian Federation in August 2008. Another, in November 2008, involved the former Yugoslav Republic of Macedonia and Greece, contending that the latter had violated its rights established under an interim accord between the two States. In December 2008, Belgium began proceedings against Senegal relating to the obligation to extradite or prosecute the former Chadian President.
In addition, there was a new development in advisory proceedings before the Court. Five years after the last advisory opinion in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, in October 2008, the Court received a request from the Assembly for an advisory opinion on the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government in Kosovo. Thirty-six States had filed written statements on the question, while the authors of the unilateral declaration also filed a contribution.
The increased recourse to the Court by States for the judicial settlement of their disputes on diversified issues pointed to political leaders’ consciousness of the importance of the rule of law. Indeed, the rule of law was crucial against the backdrop of the deepening globalization process. “Law does not replace politics or economics, but without it, we cannot construct anything that will last in the international community,” he said.
With 66 declarations recognizing the Court’s compulsory jurisdiction, each State had, in practice, the right to bring others that had accepted that same obligation, before the Court, by filing an application instituting proceedings. It was therefore, desirable to broaden that basis of jurisdiction through wider acceptance of the optional clause. In closing, he pledged that the Court would do its utmost to achieve its mandate and assist parties in the pacific settlement of their disputes. In doing so, he requested States to strengthen their support for enhancing the Court’s capacity to carry out its work.
Following Mr. Owada’s remarks, General Assembly President ALI ABDUSSALAM TREKI, underscored that the International Court of Justice was the United Nations’ principle judicial organ, and its role in the promotion of the rule of law and enhancement of international peace and security could not be overemphasized. He expressed hope that States would support the Court by providing it with the required assistance and by renewing their compliance with the Court’s decisions.
Statements on the International Court of Justice
ALAN H. KESSEL (Canada), speaking also on behalf of Australia and New Zealand (CANZ), expressed strong support for the International Court of Justice in its role as the principal judicial organ of the United Nations, and said the Court was the only international court of a universal character with general jurisdiction. As such, it had a unique role in furthering the peaceful settlement of international disputes.
He said the diverse range of cases brought before the Court for determination in the last year –- ranging from environmental concerns and jurisdictional immunities of the State to human rights matters -– was a reflection of the body’s ongoing importance. To that end, he urged those Member States that had not done so to deposit with the Secretary-General a declaration of acceptance of the Court’s compulsory jurisdiction.
Stating that CANZ valued the Court’s efforts to review its procedures and working methods continually to ensure the efficient administration of its cases, he noted that the Court had reviewed Practice Directions III and IV for use by States appearing before it. He joined the Court in urging State parties to keep written and oral pleadings as concise as possible, in a manner compatible with and relevant to the presentation of their positions. He also welcomed the Court’s adoption of new Practice Direction XIII, which would also assist States in streamlining the Court’s process by allowing agreement between the parties on future procedure.
THOMAS WINKLER ( Denmark) said the Nordic States, on whose behalf he spoke, recognized the International Court of Justice as the international court of a universal character with general jurisdiction, and 192 Member States were States parties to it. The diversity, complexity and growing number of cases from around the world that were submitted to the Court demonstrated the increased confidence in its impartiality and independence. That also showed the growing will of States to resolve their disputes by peaceful means.
He said the Court had contributed decisively to protecting the key principles of the United Nations Charter, and, as a party to a number of contentious cases, the Nordic States believed in a rule-based international legal order. Even though the Court’s advisory opinions sometimes occurred in difficult and somewhat politicized circumstances, the Nordic States had confidence in the panel’s ability to clarify legal issues without engaging in political contentions. He recognized the Court’s outreach work, such as its website, and its efficiency and ability to manage its increased workload. The Nordic States supported the Court’s desire to have adequate legal support staff and the means to manage its daily work.
HILARIO G. DAVIDE ( Philippines) expressed approval of the International Court of Justice’s work aimed at making its decisions more widely accessible to the public, including through the effective use of the Internet, the value of which could not be stressed enough. The Court’s decisions were essential in promoting transparency and accountability and, above all, in strengthening the foundations for the respect for the rule of law and its effective implementation.
He said the growing number of treaties negotiated between and among States underlined the growing need to regulate the complexities of international relations in an increasingly globalized environment. It was with that in mind that Member States, in Millennium Declaration, had resolved to strengthen respect for the rule of law in international and in national affairs and to ensure compliance with the Court’s decisions. Further, the new and emerging subject of specialization in international law demanded thorough consideration in order to ensure that rights were not encumbered or violated and obligations were carried out and complied with.
In reaffirming his country’s support for the Court’s work and the invaluable role it played in the promotion of an international legal order, he concluded by noting that as the principal judicial organ of the United Nations, the Court was the primary institution tasked to ensure the respect for the rule of law in international relations. Additionally, the Philippines considered the increased workload of the Court as a manifestation of the added trust and confidence of Member States in its judicial supremacy and universality and general jurisdiction, not as an indication of the inability of States to settle disputes peacefully. He also called for gender balance in the Court since there were many women jurists who qualified to fill any positions on that body.
PAUL BADJI ( Senegal) highlighted the Court’s work in promoting peace and justice, work that was at the heart of the United Nations. Senegal supported -- and trusted -- the Court, as seen in its acceptance of the Court’s compulsory jurisdiction. He welcomed the large number of cases submitted to the Court, which reflected a growing acceptance of the rule of law. Indeed, the Court’s importance could be measured by States’ growing confidence in it. The Court was establishing peaceful relations between States and contributing to the maintenance of peace and security. Its judgements, by providing jurisprudence and legal reasoning, enriched and codified international law.
For such reasons, he reiterated Senegal’s support to the Court, saying that its efforts to absorb its case backlog merited support. As such, he asked that the Court receive all the resources it needed to fulfil its functions. Recalling that peaceful dispute settlement had benefits that required no elaboration, he said the United Nations had a special responsibility in promoting such settlements, including those of a legal nature through the Court. The Secretary-General’s Trust Fund was important in assisting States in bringing their cases to the Court.
DIRE TLADI ( South Africa) welcomed the report of the Court and was pleased to learn that States still turned to it in order to resolve disputes. Referring to the debate on the rule of law, he said that given that States often interpreted their rights and obligations to international law differently, resorting to international mechanisms to settle disputes would go a long way in improving adherence to the rule of law worldwide. In that regard, his country deemed the Court as the “pre-eminent mechanism for the peaceful settlement of disputes at the international level”.
He was also pleased to note that States did not just refer to the Court to resolve minor political matters and hoped their confidence in it would grow and enforce the rule of law internationally. The Court’s advisory role in finding peaceful solutions in line with the Charter could not be underestimated, he said, warning that although those were not binding, failure to comply with them would contravene the Court’s ruling. One such example was the advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, which continued to be ignored, he said.
Turning to cases that concerned more than two parties, he mentioned the Case Concerning the Arrest Warrant of 11 April 2000, which concerned the question of universal jurisdiction regarding high ranking Government officials. His country eagerly awaited the United Nations General Assembly’s decision on the scope and application of universal jurisdiction. He concluded by saying that it was encouraging to see that members of the legal profession made regular visits to the Court, which in his opinion could only serve to bolster people’s understanding and appreciation of international law, which would be the basis for a global rule-based system.
GONZALO GUTÉRREZ REINEL ( Peru) said the United Nations Charter recognized peaceful dispute settlement as a tenet of international law. Against that backdrop, the Court’s decisions ended legal disputes and contributed to the maintenance of international peace. The juridical quality of its decisions, independence and impartiality gave it a high level of legitimacy. The Court also contributed to promoting the rule of law at both the national and international levels, as evidenced in the Secretary-General’s report.
Peru’s commitment to the Court was reflected in the American Treaty of Peaceful Solutions, known as the Bogota Accord, and through the Manila Declaration on peaceful dispute settlement, adopted in General Assembly resolution 37/10, which said that legal disputes should be submitted to the Court, and that such submissions not be considered a hostile act. Given that, the Court’s jurisdiction should be universally accepted and he called on States to accept its binding jurisdiction.
The Court had a busy agenda, with the addition of four new cases, as well as other pending tasks. He acknowledged outstanding work of the magistrates, notably their legal and administrative abilities, and their working methods. On the dissemination of information through electronic means, Peru hoped that the Court’s website would include an audio-visual archive of hearings. He urged that the Court be provided with the resources it needed, and be provided with administrative and legal support, which would allow it to promptly settle disputes and issue advisory opinions. He also recognized those States that had contributed to the Trust Fund for dispute settlement and echoed the appeal for all States and related bodies to collaborate with the Fund.
NAMIRA NABIL NEGM (Egypt) opened by saying that since its establishment, the Court strengthened important legal principles and rules through its advisory opinions on the Legality of the Use or Threat of Use of Nuclear Weapons and the Legal Implications of the Establishment of the Separation Wall in the Occupied Palestinian Territories, and other decisions on territorial or maritime border disputes, which contributed to the settlement of several disputes around the world. Egypt emphasized the need to strengthen the capacity of States and the United Nations organs and specialized agencies, and added that it was necessary to monitor the implementation of the Court’s decisions and to evaluate international interaction with the moral and legal values of its advisory opinions. This could take place through mechanisms within the United Nations for that purpose.
Egypt appreciated the pioneering role played by the Court in consolidating the principle of the rule of law and stressed the need to draw from the experiences of the Court in consolidating the established legal rules with respect to the responsibility of States to protect its citizens and its respect for international law, both with regard to diplomatic protection or consular relations and the distinction between legitimate armed struggle in the framework of the right to self-determination and terrorism. She called for a study of the principle of universal jurisdiction, in contradiction with the principle of territoriality of national laws, especially since some ignore the immunity of Heads of State and Government and officials from criminal proceedings before national courts of States other than their home countries. Egypt affirmed the Court’s role to express opinions on controversial issues raised by new ideas put forward at the corridors of the United Nations. Lastly, Egypt welcomed the steps taken by the Court to increase the effectiveness of its work to keep pace with the increase in cases before it.
DAPHNE HONG ( Singapore) said her country attached great importance to the rule of law, both domestic and international. It believed that if inter-State disputes, particularly long-standing disputes, could not be resolved through a consensual process, then the States and the international community would benefit by reverting to a neutral third-party process to settle their differences.
The Court played a crucial role in this regard by providing an effective and objective mechanism for States to adjudicate their disputes on the basis of international law. The Court’s importance in preserving world peace could not be over-emphasized and the Court was the only international court of a universal character with general jurisdiction.
The Court’s judgements regarding bodies of water, such as the Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge case between Malaysia and Singapore last year, represented a very relevant and valuable articulation of legal principles. It would guide those States’ relations with their neighbours. In October 2008, she said, Singapore voted in favour of the resolution to request an advisory opinion on whether the unilateral declaration of independence of Kosovo was in accordance with international law. It was a highly complex situation and the Court was an appropriate international body to clarify the interpretation of international law.
Turning to budget issues, she was concerned that the Court’s request for more manpower had not been fully met by the Assembly and the Court had repeated its request for funds to provide up-to-date information technology on the judges’ bench and the tables occupied by the parties to the cases. It was vital that Member States demonstrated their support by ensuring the Court be given adequate resources.
CLAUDIO TRONCOSO REPETTO ( Chile) acknowledged the Court’s body of work and its work as the principal legal organ of the United Nations. Chile believed that the Court’s work helped strengthen a multilateral order that was based on international law and which contributed to global peace. Chile was a signatory to many multilateral treaties and had accepted the Court’s jurisdiction in the interpretation or application of those treaties. The Court was very important and contributed greatly to the development of international law.
The Court should be given the proper resources to duly discharge its increasing workload. He lauded the Court’s efforts in publicizing its work, which helped to strengthen international law. He supported a continuation of funding so the Court had sufficient resources and could continue to publicize its work through the yearbook and electronic means. He proposed that judgments of the Court be issued in Spanish.
ZACHARY D. MUBURI MUITA ( Kenya) said his country highly valued the Court’s contribution to the development of international law and its role in the judicial settlement of international disputes. The number and scope of cases submitted for judicial settlement were a testimony of its universality as the main judicial organ of the Unite Nations. He urged Member States to actively use the Court to settle international disputes.
The increasing global interdependence in this century meant the Court was facing new and challenging developments. Kenya was confident that the Court and States parties would be able to address the role of national jurisdiction in the context of emerging international norms. Kenya urged all parties to engage positively in the law-making process in international law. It was only by doing so that all voice could be heard to ensure the legitimacy and universality of international law and institutions, he added.
SHAIR BAHADUR KHAN, Legal Advisor, Ministry of Foreign Affairs of Pakistan, said the world’s increasing interdependence was a constant reminder that justice and the rule of law were key to an orderly international society. According to the Court’s report, 192 States were party to the body’s Statute, but only 66 countries, including Pakistan, had accepted its compulsory jurisdiction. The United Nations Charter, under Chapter VI, offered vast possibilities for the United Nations to play an important role in pacific dispute settlement and conflict prevention. Highlighting the some 300 bilateral or multilateral treaties which provided for the Court’s jurisdiction, and that States could submit their disputes to the Court via special agreements, he said such possibilities remained underused. Better use of them would provide a basis for long-term peaceful coexistence in the international community.
On the Court’s primary jurisdiction, he said Pakistan was pleased that the number of cases decided had increased due to the Court’s efficient handling of them. The Secretary-General should play a more active role in facilitating the due application of the judgements. Pakistan noted that the Court had been regularly reviewed and its efforts to boost productivity deserved appreciation. It also had set a demanding hearing and deliberations schedule and had cleared backlog of cases. He believed the Court should have all the resources it needed to do its work effectively and he hoped the General Assembly would give consideration to its requests for the 2010-2011 period, for a new post of Special Assistant to the Registrar. In closing, he said the principles of peaceful coexistence and respect of human rights could only be ensured for respect of the rule of law.
MIGUEL DE SERPA SOARES, Director of the Department of Legal Affairs in the Ministry of Foreign Affairs of Portugal, said that, as the International Court of Justice performed a crucial function in the international legal system and the scope of its work expanded, it was important for United Nations Member States to acknowledge the body’s need for adequate resources. It was true, he agreed, that everything the Court did was aimed at promoting the rule of law, and that it contributed in an outstanding way to the development of international law.
It was also worth stressing that there were other international courts and tribunals whose significance should be emphasized, he said, urging all such bodies to cooperate towards the enhancement of the international legal order and consequently face together the challenges posed by the fragmentation of international law and the proliferation of international courts and tribunals. In addition, even though he recognized the inherent tensions of law and power, he encouraged all States that had not yet done so to consider accepting the Court’s compulsory jurisdiction in the interest of the international rule of law towards justice and peace.
SYED SHAHNAWAZ HUSSAIN ( India) said all States were free to approach the Court for the resolution of their disputes with other States. Under Article 36 of the United Nations Charter, the Security Council also could recommend to the parties that they refer their legal disputes to the Court, while both the Assembly and Council could seek advisory opinions from the Court. Those provisions clearly indicated the central role given to the Court within the United Nations system. India believed that no other judicial organ in the world could have the same capacity for dealing with international problems. It had contributed significantly towards settling legal disputes between Sovereign States as it promoted the rule of law in international relations.
There were now five cases before the Court between European States, four between Latin American States and two between African States. That, and the wide range of issues before the body, showed the greater relevance and respect for the due process of law that States were showing, he said. That situation had increased the Court’s workload and on 31 July 2009, 13 contentious cases and one advisory procedure were pending. Adequate resources were critical for the Court to carry out its mandate efficiently. The Court’s ability to effectively discharge its functions was critical for the credibility of the United Nations system.
ABDALMAHMOOD ABDALHALEEM MOHAMAD ( Sudan) expressed his deep appreciation to the Court, and its President for its report and the important achievements in fulfilling its mandate. He also commended the tremendous efforts of former Court President, Rosalyn Higgins. The report proved the growing role of the Court in assuming its responsibilities. It was the only Court of universal character that was able to implement the rules of the United Nations Charter, which stipulated peaceful dispute settlement. The Court was an important tool in the maintenance of peace and security. States acceptance of its mandatory jurisdiction was proof of its abilities.
Highlighting positive indicators, he said the growing number of cases before the Court had strengthened the world’s confidence in it. The Assembly’s 2005 World Summit had acknowledged growing challenges facing the international community, and that the United Nations should respond in commensurate fashion, particularly by enhancing the Court’s capabilities and capacities. Also, States should accept its jurisdiction. “Justice is indivisible and cannot be subject to compromise,” he said.
In that regard, he recalled the wall being built by Israel in the Occupied Palestinian Territories, whose presence challenged international justice. The Court should protect the basic rule of law in international agreements. Also, the immunity of Government officials had been re-emphasized by the Court’s opinions and he hoped it would play its required role regarding universal jurisdiction and the targeting of African personalities, behaviour which Africa rejected. Not addressing such challenges opened the door to “the law of the jungle”. Finally, he urged States to continue their voluntary support of the Trust Fund, which helped countries bear the costs of peacefully settling their disputes. He supported the Court’s efforts to publicize its work through its website. In closing, he reiterated the Sudan’s faith in the Court and its commitment to support it.
NORIHIRO OKUDA (Japan), welcoming the fact that Member States, in principle, were attempting to resolve disputes through international law by referring cases to the International Court of Justice, expressed the hope that through the work of that body, the rule of law would take firm root in the international community. In the present international community, where armed conflicts and acts of terrorism continued to occur, the firm establishment of law and order was indispensable.
As a state resolutely devoted to peace and firmly dedicated to the promotion of the rule of law and respect for the principle of peaceful settlement of disputes, Japan appreciated the strenuous efforts and intensive work of the Court over the past year, in delivering decisions based on exhaustive deliberation, he declared. Further, Japan believed that the Court needed to bring to bear not only a profound knowledge of international law, but also a far-sighted view of the international community, given that the world was now experiencing such rapid change and that a variety of international disputes continued to arise.
Japan respected the Court’s ability to meet those requirements and continued to be fully supportive of its work. Similarly, the country accepted the compulsory jurisdiction of the Court in 1958, immediately after its accession as a Member State of the United Nations. He urged Member States that had not done so to also accept the compulsory jurisdiction of the Court, in order to facilitate establishment of the rule of law throughout the international community.
GUILHERME DE AGUIAR PATRIOTA (Brazil) said the Charter made specific references to the importance of upholding the principles and norms of international law and ensuring a peaceful settlement of disputes. The Court was a key element in efforts to achieve those goals and, by resolving international disputes and issuing advisory opinions, it strengthened the rule of law on a global scale and enhanced stability in international relations. The Court also contributed to maintaining international peace and security.
He said that, over the past year, the Court had addressed cases that had covered a wide range of sensitive issues, such as territorial and maritime delimitation, environmental concerns, jurisdictional immunities of States, violation of territorial integrity, racial discrimination and human rights violations. The varied list of issues and large number of cases submitted by Member States showed the trust placed in the principal judicial organ of the United Nations. To maintain such confidence, States parties must comply with its respective decisions, in accordance with the Charter.
Brazil welcomed the Court’s ceaseless efforts to increase its efficiency and cope with its increasing workload. He believed the Court’s repeated request for the creation of six law clerk posts should be granted so every judge would have adequate assistance. The Court played a crucial role in this regard by providing an effective and objective mechanism for States to adjudicate their disputes on the basis of international law. The Court’s importance in preserving world peace could not be overemphasized.
ZÉNON MUKONGO NGAY (Democratic Republic of the Congo) said that his delegation had taken note that the Court had before it 16 contentious cases and one advisory preceding, an increase from last year. His country accorded a great deal of importance to the work of the Court as a key United Nations organ, whose role it was to find peaceful solutions to global differences through the rule of law. It played a crucial role in promoting the rule of law. He appreciated the Court’s role in upholding the rule of law and hoped that that would continue.
Turning to armed activities in his country, he cited a 2005 report by the President of the Court on that matter. That had been a seminal case and it was still very important. It was important to read the judgement fully. The President had noted progress by the parties to settle the issue of compensation. The Democratic Republic of the Congo hoped that both warring sides would find a fair, speedy and equitable solution to that issue in accordance with the Court’s report of 2005.
The Democratic Republic of the Congo had made a significant contribution to the development of the global rule of law and “a return to international law”, both as an applicant State and as a respondent State. Over the past decade, it had been one of the most important applicants to the Court, with only one of five submitted cases not having been solved. He encouraged States to submit their cases, to find a peaceful solution and to recognize the Court’s jurisdiction. The report before the Assembly had noted that only 66 Member States recognized the Court’s compulsory jurisdiction. Their limitation on certain categories and conditions set on the scope of the Court’s practice was something his delegation could not tolerate.
SHIN BOONAM (Republic of Korea) acknowledged the work of the International Court of Justice and underscored its role in the promotion of international peace and security. It was important to note that the cases before the Court came from all over the world and related to diverse subjects in international law, thereby demonstrating not only the Court’s universality but its growing specialization.
Continuing, he noted that the number of cases coming before the Court had risen substantially during the last decade, significantly increasing its workload, and in that regard, he also noted that the Court had taken a significant number of steps to increase its efficiency and thereby enable it to cope with the expansion of the scope of its work. He welcomed that sustained level of activity by the Court and emphasized that unreserved cooperation among Member States, and support from the international community as whole, was important for the Court’s success. To that end, he believed that a revitalized and more efficient Court with sufficient funding would be a great benefit to all members of the international community.
JAIRO HERNÁNDEZ-MILIAN (Costa Rica) said the numerous cases before the Court had shown its increased credibility and legitimacy and its rigour in upholding international law and the settlement of disputes. The creation of the Court within the United Nations system had allowed the international community to confirm its role in the development of the rule of law in peace and security. The rule of law was the guiding principle in the relations of the international community
He went on to say that the Court helped settle multifaceted disputes between States, and had helped Costa Rica reach a solution in a dispute relating to navigation rights to a river it shared on its border with Nicaragua. Such judicial settlements were the most civilized avenues in settling unresolved issues between two nations, and, in Costa Rica’s case, the decision was balanced. Both countries now had a clear understanding of their rights over the use of the river.
Costa Rica was pleased that in many treaties the competence of the Court had been established, he said. It was necessary to support the international nature of the Court and its role in upholding international law. Countries should drop their national interests and think of the impact on the international community.
COSMIN DINESCU, Director General for Legal Affairs, Ministry of Foreign Affairs of Romania, said the more frequent recourse to the Court from all geographical regions showed the international community’s increasing confidence in the professionalism and impartiality of the Court. It also acknowledged the unique contribution that Court case law had brought to the advancement and development of international law. Romania had been recently involved in a judgment rendered on 3 February 2009 involving the exclusive economic zones and continental shelf to Romania and Ukraine in the Black Sea. Romania had never been a party to a contentious case before the Court, and its decision to use the Court showed Romania’s recognition of the Court’s high professionalism and its extensive expertise in maritime delimitation. Romania was satisfied with the Court’s unanimous decision, which showed the solution reached by the Court was a well-grounded and judicious one.
He said Romania strongly believed in the respect for the rule of law in international relations, and he noted the Court would soon hold hearings on the Kosovo issue. Romania had voted in favour of the Assembly resolution requesting an advisory opinion on the matter. It had participated in the written stage of the procedure and would participate in the oral hearings scheduled to begin on 1 December 2009. Romania was convinced the Court would uphold its usual standards of professionalism and impartiality in rendering its advisory opinion.
ADEL BEN LAGHA (Tunisia) expressed his appreciation of the Court’s work over the past year, and paid tribute to the invaluable work of both the incoming and outgoing Presidents of the body. He also paid tribute to the Court’s staff, saying Tunisia attached great importance the Court’s work as it considered it vital to the maintenance of the international rule of law in the settlement of disputes.
He further expressed satisfaction with the Court’s decisions taken during the course of the period under review, and considered it a good example of the fulfilment of its mandate under the terms it was created.
He observed that, while the Court had recorded success, it also faced new and emerging challenges which required that State parties fully stood behind efforts to ensure the Court’s efficiency. He especially lauded the Court’s professionalism and efficiency as it had worked to clear its backlog of cases and he believed those efforts deserved the support of all by making the necessary resources available for the Court to continue carrying out its work. The Court needed such resources to help it engage additional law clerks and assistants in other vital areas necessary to its continued effectiveness.
He observed that the Court was a source of international legal norms and he urged both the Security Council and the General Assembly to support it, and ensure the high moral value of its legal system. He added that steps needed to be taken by all relevant bodies of the United Nations, particularly by the Security Council and the General Assembly as the principle organs of the Organization, to address the Court’s problem areas highlighted in the report.
EBENEZER APPREKU (Ghana) expressed his appreciation for the Court’s initiative in clearing its backlog of cases, as well as efforts to improve its practice directions, proceedings and working methods. It was gratifying that States considering coming to the Court could now be confident that as soon as they had finished their written exchanges, the Court would be able to move to the oral proceedings in a timely manner.
However, the outstanding administrative bottlenecks and logistical challenges impeding the administration of justice by the Court, many of which had been highlighted in the report, merited urgent attention. In that context, he appealed to the Assembly to address urgently the various requests submitted by the Court for six additional law clerks, addition registry staff, new equipment and adjustments to its pension scheme. Addressing such issues would strengthen the staff of the Court’s Registry (Secretariat) and upgrade its technology, information management and record keeping, as well as enhance the efficiency, effectiveness and incentives for Judges, with a view to making it possible for States to obtain justice without undue delay and at less cost.
He observed that it was significant many of the recent disputes that had come before the Court had involved contentious issues of international law over which States had expressed divergent or sometimes diametrically opposed views. Those had included questions related to the obligation to extradite or prosecute, the immunity of foreign officials in foreign criminal jurisdiction, jurisdictional immunities of States, and the delimitation of continental shelf, in which there could be gaps in the relevant rules of international law or where established norms or principles could need further clarification or elaboration.
Ghana also reiterated the need for the Court to improve its cooperation and dialogue with regional and subregional courts, including the African Court of Justice and the African Court of Human and Peoples Rights, as well as the Economic Community of West African States (ECOWAS) Court of Justice. The capacity of those regional and subregional Courts in Africa and other regions would be enhanced through sharing of the Court’s experience and expertise in respect of working methods and caseload management, he said.
* *** *