Concluding Consideration of Work of International Criminal Court, General Assembly Delegates Say Enhanced Cooperation with States Key to Body’s Lasting Success
Concluding Consideration of Work of International Criminal Court, General Assembly Delegates Say Enhanced Cooperation with States Key to Body’s Lasting Success
|Department of Public Information • News and Media Division • New York|
Sixty-seventh General Assembly
31st Meeting (AM)
Concluding Consideration of Work of International Criminal Court, General Assembly
Delegates Say Enhanced Cooperation with States Key to Body’s Lasting Success
Completing their consideration of the annual reports on the work of the International Court of Justice and the International Criminal Court, General Assembly delegates today hailed the latter’s issuance of its first judgment, stressed the importance of full cooperation by States to ensure that Court’s further success and were divided on the relationship between the Court and the Security Council.
Among many delegates welcoming the delivery of the first judgment by the International Criminal Court, Sweden’s representative, speaking on behalf of the Nordic countries, said the judgment issued against warlord Thomas Lubanga for recruiting and using child soldiers in the Democratic Republic of the Congo was “a milestone for international criminal justice,” and that the rights of the victims to participate in the Court’s proceedings and to reparations were unique features of the Rome Statute.
In agreement, the representative of the Republic of Korea noted that the Lubanga case was the Court’s first judgment to include a final sentence, as well as reparations for the victims, and said the case effectively showed that the Court was able to bring justice for heinous crimes.
While stating that the Court had gained authority over the past decade and now occupied a unique niche in the system of international bodies, and noting the significance of the judgment in the Lubanga case, the representative of the Russian Federation also said that problems remained. At the forefront of those was the lack of cooperation between States and the Court in executing arrest warrants the Court had issued. How it resolved that matter would determine whether the Court would become the universal body for international criminal jurisprudence.
The European Union’s delegate said the challenge was to ensure cooperation with the Court and, in particular, consider what the reaction would be in instances of non-cooperation of States that were in violation of their obligations with regard to the Court. Without State cooperation, the Court could not fulfil its mandate.
Speaking on behalf of several former Presidents of the Assembly of States Parties to the International Criminal Court, himself among them, Jordan’s representative said that among key challenges facing the Court was making the complementary nature of its work understood and acted upon accordingly. Complementarity entailed cooperation between States and the Court in every aspect of the Court’s work, but nowhere more so than with respect to the arrest of those indicted. Twelve arrest warrants were outstanding, including the first ones ever issued by the Court.
Of particular complexity for the Court, was the cooperation of States when cases had been referred by the Security Council under article VII of the United Nations Charter, he continued. The Council used the Court as a substitute for the establishment of ad hoc tribunals, which had significantly higher costs.
Japan’s representative said that in cases where situations in a non-State Party were referred to the Court by Security Council resolutions, cooperation between the Court and the Council was crucial. Recalling the situations of Darfur and Libya, both referred by the Council, he said a lack of cooperation could cause the failure to indict a perpetrator of serious crimes and undermine the Court’s credibility by betraying the expectations of the victims and the international community.
Not all Member States agreed with that assessment. The broad powers the Rome Statute provided to the Security Council with regard to the Court’s work invalidated its jurisdiction and violated the principles of transparency and impartiality, among others, said the delegate from Cuba, who reiterated that the Court must respect the principles of international law regarding the consent of a State to be bound by a treaty. He further expressed serious concern at the precedents being established by the initiation of trials against nationals of countries that were not Parties to the Rome Statute.
Sudan’s representative added that the agreement between the Court and the United Nations was “defective”, both generally and in respect to the Security Council in particular, and called for a review of that agreement, while Syria’s representative stated that delegates who had participated in the Rome Conference would not have foreseen that the rules they laid out would one day be used in the interest of “political and interventionist agendas” that had nothing whatsoever to do with ending impunity.
The representative of Lesotho said that the Court must be adequately insulated against politicization, including politicized prosecution and others abuses. Double standards would degrade the Court’s integrity. Checks and balances must be strengthened to enhance faith in the Court and promote Member States’ support and cooperation. The only way to thwart the perception that the Court was susceptible to abuse by the Security Council was for the relationship between the two bodies to be carefully nurtured in a way that preserved the Court’s independence and integrity.
Also completing its consideration of the report of the International Court of Justice, a discussion it began on Thursday 1 November, the Assembly continued to praise that body, with the representative of the Russian Federation noting that the Court was in one of the most effective phases of its history. He stressed that the international community “must not try to bring in new, doubtful bodies” with unclear mandates and statuses”, but should support the Court instead.
Bolivia’s representative said that the Court was a “civilized” way of solving disputes, and helped to avoid the unilateral imposition of measures by strong States over weak ones, the use of force and the threat of the use of force.
In other business today, the Assembly decided to extend the work of the First Committee to Friday 9 November.
Also speaking today on the International Court of Justice were representatives of Costa Rica, Mexico, Chile, South Africa, Nigeria, Lithuania, Senegal and United States.
On the topic of the International Criminal Court, Trinidad and Tobago (on behalf of Caribbean Community), New Zealand (also on behalf of Canada and Australia), Switzerland, Romania, Argentina, Brazil, Philippines, Uruguay, Mexico, Chile, Estonia, South Africa, Nigeria, United States and Peru also spoke.
The General Assembly will next convene on Thursday 8 November at 10:00 am for the election of eighteen members of the Economic and Social Council.
The General Assembly met today to continue and conclude its consideration of the work of the International Court of Justice and the International Criminal Court. For background please see Press Release GA/11305.
Statements on Annual Report of International Court of Justice
SAUL WEISLEDER ( Costa Rica) reiterated his country’s absolute support for the rule of law. The report of the International Court of Justice called for the United Nations to provide sufficient resources for the Court to continue to carry out its work effectively and with full legal and procedural independence. Thanks to the Court’s efforts, its backlog had now been eliminated and those cases would soon be moving on towards hearings and adjudication. It was the obligation of States to respect the Court’s decisions, he added. In that vein, Costa Rica welcomed the Declaration adopted at the conclusion of the Assembly’s High-level Meeting on the Rule of Law, which had highlighted the importance of the Court and the respect for all of its decisions. He also thanked the Court for its effective and transparent work.
IGOR PANIN ( Russian Federation) said that the present legal year had been marked by the Assembly’s High-level Meeting on the Rule of Law on 24 September, the outcome of which would be discussed for a long time. During that meeting, States had expressed singular support for the International Court of Justice, he said. Indeed, as the Court’s report pointed out, the work of the body was aimed at promoting the rule of law. Today, it dealt not only with maritime disputes, as in the early phases of its existence, but covered cases dealing with the immunity of States and territorial integrity, among other complex issues.
The Court was in one of the most effective phases of its history. Reviewing a number of recent cases, he welcomed the efforts to improve the management and processes of the Court, which was gradually becoming more “modern and contemporary”. In addition, he stressed that the international community “must not try to bring in new, doubtful bodies” with unclear mandates and statuses; instead, the International Court of Justice should be supported. Additional financing for the Court in modernizing and supporting it should be provided without delay. The Russian Federation was convinced that the Court would become a “model for an independent, modern judicial system”, he said in that regard.
ERIKA MARTÍNEZ LIEVANO ( Mexico) said that the cases currently before the Court demonstrated its “universal nature”. She highlighted the great legal value of the Court’s opinions, both for States Parties and for the international community as a whole. The Court had an integral role in developing international law and preventing its fragmentation. Mexico, therefore called for the General Assembly to provide the Court with the necessary means for its optimal performance. It also called for States that had not yet done so to accept the Court’s jurisdiction.
OCTAVIO ERRÁZURIZ ( Chile) commended the work of the Court as the principal juridical organ of the United Nations. The Court was a keystone in the international legal system, he said, and expressed appreciation for its overarching role. Its competence came from multilateral treaties and other international legal documents. The Court contributed to enhancing relations between States through respect for international law and the rule of law, as well as respect for human rights, thus upholding the fundamental principles of the Charter.
Expressing support for the Court, he said it was necessary to preserve the Court’s autonomy and provide it with the necessary resources, including human resources. He also expressed appreciation for its public outreach efforts and hoped that resources would be provided, including technological resources. In conclusion, he recognized the valuable work of the Court in ensuring observance of the rule of law.
DIRE TLADI ( South Africa) recalled that the Security Council had emphasized the key role of the International Court of Justice in adjudicating disputes. The Court could play a role in being the “final arbiter” on international law, he said. In addition, it also provided advisory opinions. The Court had been able to clarify many legal opinions over the years, including on the construction of the wall in the Occupied Palestinian Territory. Turning to the current work of the Court, he said that it had been “productive and active”. While South Africa did not wish to pronounce on judgments of the Court, he stressed the overall importance of those cases for the development of international law, and reviewed several opinions in that regard, including the case of Belgium vs. Senegal, among others. Moreover, he stressed, the richness of the Court’s judgments, as well as of the individual opinions provided, were major contributions to international law.
SACHA SERGIO LLORENTTY SOLÍZ ( Bolivia) said that the United Nations had, in the International Court of Justice, the main reference for what the international community understood as “justice”. The Court was a “civilized” way of solving disputes, and it helped to avoid the unilateral imposition of measures by strong States over weak ones, the use of force and the threat of the use of force. In that vein, he reiterated his delegation’s support for the 1982 Manila Declaration on the peaceful settlement of disputes, which had stated that the recourse to judicial settlement, particularly referral to the Court, should not be considered an “unfriendly act” between States. Indeed, the trend to submit disputes was a “healthy” one.
Similarly, he said that his delegation appreciated the General Assembly President’s calls to consider the peaceful settlement of disputes. Most members of the international community would like to see the peaceful legal settlement of disputes, which was the purview of the International Court of Justice. Indeed, every day, a greater number of States were accepting the Court’s jurisdiction. He called on States that had not done so to recognize that jurisdiction.
USMAN SARKI (Nigeria) said that the Court’s dual role as the principal judicial organ of the United Nations and a court of unique and universal jurisdiction, enabled it to render impartial decisions in the peaceful settlement of disputes and contribute to the corpus of international jurisprudence. The Court’s judgments and advice had had salutary effects on maintenance of peace and security in all regions. In that regard, he noted the Courts contribution to the delineation of land and maritime borders between Nigeria and Cameroon, which had contributed significantly to the peaceful resolution of that problem and had marked a significant turning point in Nigeria’s history.
He commended improvements in the Court’s working methods, which had increased efficiency and transparency and helped to eliminate its backlog of cases. In the face of global terrorism, he supported the provision of resources for additional guards and information and communications technology security for the Court, as well as for the appointment of more Legal Officers to handle the increasing number of cases referred to the Court. He encouraged States that had not done so to accede to the declaration of recognition to the Court and called upon States that had placed reservations on record to remove them in view of the significant role played by the Court in the consolidation of international law.
RITA KAZRAGIENÉ ( Lithuania) said the Assembly’s current session offered an opportunity to advance reliance on the Court. During this year’s United Nations Treaty Event, Lithuania had given the Secretary-General its declaration on recognizing the Court’s jurisdiction as compulsory under paragraph 2, Article 36 of the body’s Statute. That had brought the total number of States that had done so to 68. Lithuania also had deposited instruments of accession to the Optional Protocols to the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations, concerning the Compulsory Settlement of Disputes. Those were added to the long list of treaties in which Lithuania had already recognized the Court’s jurisdiction.
This was a logical step for Lithuania, which had a long-standing legal tradition rooted in the Permanent Court of Justice, the judicial body of the League of Nations, shesaid. Lithuania was one of the first to accept the compulsory jurisdiction of the Permanent Court when it signed the optional clause of the Permanent Court’s statute in 1922. That faith in international justice was fully rewarded as Lithuania defended its legitimate place among independent nations and successfully stood up for its interests in all three cases before the Permanent Court. The three cases, all related to various aspects of the territorial rearrangement that followed World War I, provided valuable material for historical examination of international relations in Europe between the two world wars, and legal analysis of the Courts’ judgments and the general development of international law.
FATOU ISIDORA MARA NIANG ( Senegal) highlighted the work of the Court in promoting the ideals of peace and justice, which were at the core of the United Nations itself. The Court also helped to evolve international law and to maintain international peace and security, she said. Senegal was strongly committed to justice and the rule of law, and reiterated its support for the Court. Furthermore, she noted and welcomed the large number of cases submitted to the Court, which underscored the primacy of the rule of law across the world.
Indeed, the Court’s role as the principal judicial body of the United Nations was demonstrated by the growing confidence that States had in it. The Court was participating not only in pacifying relationships between States but ensuring respect for the rule of law at the international level, and in helping to enrich, codify and harmonize international law. However, in order to allow the Court to continue to fulfil that mission, it must have the necessary resources. Another issue of major concern was the low number of States that had recognized the Court’s compulsory jurisdiction, she said, adding that that situation did not help to enhance the Court’s legitimacy. Senegal called for the launching of an international campaign in that regard.
JOAN PRINCE ( United States) said that the Court was the principal judicial organ of the United Nations, who’s Charter had underscored the determination of its drafters to ensure respect for treaties and other sources of international law. The Assembly, at its High-level Meeting on the Rule of Law, had underscored the positive contribution of the Court, including in adjudicating disputes among States and in promoting the rule of law. In addition, the Security Council in its Presidential Statement on the rule of law earlier this year, had similarly underlined the importance of the Court.
It was against that backdrop that more and more States were turning to the Court to resolve their disputes peacefully, she said. Indeed, the body’s increasing caseload showed the respect that States, and the international community as a whole, had for the Court and its work. Efforts to clear the Court’s backlog and to effectively move along its work also contributed to the confidence of States. The United States applauded such efforts, and added its voice to the many States who had placed an emphasis on the success of the court’s work.
Statements on Annual Report of International Criminal Court
GILLES MARHIC of the European Union said that, at its tenth anniversary, the International Criminal Court stood as an “unprecedented success”. The Court’s first verdict and sentence on the case of Thomas Lubanga earlier this year had been a “milestone” for international criminal justice and constituted a significant achievement for the Court. “It demonstrated that perpetrators cannot act with impunity”, and raised awareness that enlisting and conscripting children under 15 as soldiers and using them in active combat was a war crime. The case had also marked the first occasion for the Court to pronounce itself on the principles and procedures to be applied to reparations, he said.
There were several key challenges facing the Court, he went on. The main hurdle was universality of the Rome Statute. There was a need to continue to work tirelessly to ensure that the treaty was truly universal, as well as to extend the Agreement on Privileges and Immunities of the International Criminal Court. “The worst crimes should not go unpunished, no matter where or by whom they are committed”, he stressed in that regard. Another fundamental challenge was the necessity to ensure cooperation with the Court and, in particular, how to react to instances of non-cooperation of States that were in violation of their obligations with regard to the Court. Without State cooperation, the Court could not fulfil its mandate. That applied to all States Parties to the Rome Statute as well as when the Security Council had referred a situation to the Court.
In addition, he said, out of 23 individuals against whom the Court currently had cases open, 12 were on the run, which stifled the Court’s capacity to deliver justice. Non-cooperation with the Court in respect of the execution of arrest warrants constituted a violation of international obligations, he said. The European Union therefore underscored the importance of consistent action to encourage full cooperation of States with the Court, including the prompt execution of arrest warrants.
EDEN CHARLES ( Trinidad and Tobago), speaking for Caribbean Community (CARICOM), said as a region, his delegation was proud of its role in the establishment of the Court. “Initially, many did not share our vision for a permanent international court,” he said. “We are humbled that many now share that vision”. The Court was on its way to achieving universality. In a relatively short time, 121 States had become Parties to the Rome Statute, including 11 from the Caribbean region. Despite the Court’s detractors, it was difficult to rebut that the body had lived up to its mandate under the Statute. It had become “a beacon of hope” to all those victims of heinous crimes, including children, who were seeking justice.
Welcoming the election of Fatou Bensouda as Prosecutor of the International Criminal Court, he said it had demonstrated the importance State Parties attached to the achievement of gender equality. The Court continued to uphold democratic traditions in the election of judges. The Community had contributed three nationals to the bench of the Court, including Anthony Carmona, of Trinidad and Tobago. He also appreciated the continued work of the Court to bring to justice several accused persons, particularly the verdict that had found Thomas Lubanga guilty of the enlistment, conscription and use of children under 15 to participate actively in hostilities in the Democratic Republic of the Congo. Its landmark decision on reparations for victims was comprehensive in scope and established principles relating to reparations.
ANDERS RONQUIST, Director General for Legal Affairs, Ministry for Foreign Affairs of Sweden, speaking for the Nordic countries, welcomed the International Criminal Court’s first judgement delivered to Thomas Lubanga as “a milestone for international criminal justice.” That verdict had also raised awareness about the plight of child soldiers and would serve as an important deterrent against such crimes. The Court also took a guiding decision on the principles for reparations. The rights of the victims to participate in the Court’s proceedings and to reparations were unique features of the Rome Statute. He also said that victims’ issues, especially gender-based violence, were a key concern for the Nordic countries, urging States to contribute to the Court’s Trust Fund for Victims.
There were recurring incidents of States not cooperating with the Court and increased pressure on the resources available to the institution, he noted. The number of outstanding arrests, which was growing each year, was a cause for concern. The Nordic countries urged all States Parties to strengthen their efforts to execute the orders of the Court and to abstain from inviting and receiving suspects who were under an arrest warrant by the Court. The Sudanese and Libyan authorities should comply with their legal obligations under the Security Council resolutions 1593 (2010) and 1970 (2011), respectively.
He went on to say that being independent “does not mean that the Court stands alone.” It should be seen as part of a global system of governance where the United Nations, the States and other relevant organizations worked together to close the impunity gap for perpetrators of international criminal law. Under the Statute, the mandate of the Court was subject to the principle of complementarity. It was the States that had primary responsibility to investigate and prosecute. The Court was thus a venue of last resort. The Nordic countries were prepared to assist States that lacked resources and capacity to exercise genuine criminal law proceedings for such complex and large-scale crimes as genocide, crimes against humanity and war crimes. Justice Rapid Response, which provided States and organizations with criminal justice professionals, was an example of that mechanism. They were trained for international investigations and could be rapidly deployed, for instance, to the Commission of Inquiry established by the Human Rights Council.
ZEID RA’AD ZEID AL-HUSSEIN (Jordan), speaking on behalf of Christian Wenaweser, of Liechtenstein, and Bruno Stagno Ugarte of Costa Rica, all former Presidents of the Assembly of States Parties to the International Criminal Court said that among key challenges facing the Court was making the complementary nature of its work understood and acted upon accordingly. As a “court of last resort”, it was national jurisdictions that had primacy in dealing with the crimes over which the Court had jurisdiction. Still, the Rome Statute had created a system of accountability of potentially global reach, built on the international consensus to ensure accountability for the most serious crimes under international law. For the Court to work effectively all stakeholders must play their part.
To that end, he called upon, all States, whether Parties to the Statute or not, to strengthen national judiciaries to enable them to investigate and prosecute crimes in accordance with international standards. Further, there should be a single United Nations entity to provide legal and judicial advice to any Member State seeking it. Complementarity also entailed cooperation with the Court, he continued. States Parties would have to engage in discussions of difficult questions, which had arisen in that regard. “It is no longer enough to invoke complementarity; we also have to do our part to make it work in practice. And there is a lot of room for us to be more creative than we have been in the past,” he said.
Cooperation by States was key with respect to every aspect of the Court’s work, but nowhere more so than with respect to the arrest of those indicted. Twelve arrest warrants were outstanding, including the first ones ever issued by the Court. While membership in the Court was now approaching two thirds of General Assembly membership, support for the Court needed to be deepened and broadened. “Most importantly”, he said, “we must pursue accountability in a consistent and persistent process, and the work before this Assembly gives ample opportunity for this, almost on a daily basis. Too often, we squander these opportunities.”
Budgetary issues were a particular problem for international criminal justice, which, he said, was difficult to explain, as the Court had become a functioning, professional, independent judicial body, for some $150 million. Still, while the Court should become more efficient and accountable in administrative matters, there was one aspect that could only be addressed by the Assembly, namely the financing of investigations mandated by the Security Council. The Council used the Court as a substitute for the establishment of ad hoc tribunals, which had significantly higher costs. The Council had done so without putting the financial burden on the Organization’s membership, as was appropriate. He hoped that that relationship would change so that there would be a real partnership between the two organizations.
JIM MCLAY (New Zealand), speaking also on behalf of Canada and Australia, said that, today, the International Court of Justice was a fully functioning institution, and welcomed progress towards universal accession to the Rome Statute as well as the strengthened prospect of justice for the victims which it represented. He also encouraged Sates not yet party to the Rome Statute to join in taking a strong stand against impunity by acceding to that treaty. While applauding the Court’s substantial achievements over the past decade, his delegation recognized that it nonetheless faced ongoing challenges. The detention of four staff members in June had highlighted the risks that Court staff faced when carrying out their functions. As the report of the Court emphasized, in order to carry out its duties effectively, the Court relied heavily on the cooperation of the international community.
The cooperation of States was particularly required in relation to the enforcement of international arrest warrants, the surrender of accused persons, the allocation of adequate resources, and the protection of victims. His delegation acknowledged that the non-execution of Court requests could impede its ability to carry out its mandate, and therefore called on both States Parties and non-States Parties who were subject to obligations under Security Council resolutions to act on the outstanding arrest warrants issued by the Court. The effectiveness of the Court was also dependent on the support of the Council, he noted. In that vein, the delegation believed that where the Council had made a referral to the Court, it should do so with a “clear commitment to follow through” and should ensure that the Court received all necessary support. “We encourage the Council to consider how it could better support the work of the Court”, he added.
MANUEL DE JÉSUS PIREZ PÉREZ ( Cuba) stressed that the events of recent years were irrefutable proof that the Court lacked autonomy. Indeed, the broad powers provided to the Security Council with regard to the Court’s work invalidated its jurisdiction and violated the principles of transparency and impartiality, among others. Cuba had denounced that negative trend on numerous occasions, he said. Referrals by the Council to the Court were “attacks” on developing countries, he said, calling for the establishment of a just and “truly independent” international system of justice. Issues related to those points had not been settled in the outcome of the 2010 Rome Statute Review Conference held in Uganda. Instead, the Court had continued to subject to the Security Council’s “illegitimate, anti-democratic and abusive decisions”, which ran contrary to international law.
The Council continued to provide total impunity to those who were truly responsible for massacres and other crimes, he went on to say, noting the “political double standard” with which that body operated. Cuba reiterated its view that the Court must respect the principles of international law regarding the consent of a State to be bound by a treaty, and stressed its serious concern at the precedents being established by the initiation of trials against nationals of countries that were not Parties to the Rome Statute. In addition, he said, the people of Cuba had been victimized by various forms of the crime of aggression for some 50 years – namely, in the form of the embargo imposed by the United States. The crime of aggression should be more broadly defined, he stressed in that regard, in order to cover crimes that interfered with the independence and sovereignty of States.
KYUNG-HOON SUL ( Republic of Korea) praised the Court’s involvement with several situations in Africa, particularly its historic decision on the Thomas Lubanga case this year - the first judgment that included a final sentence, as well as reparations for the victims. That case effectively showed that the Court was able to bring justice for heinous crimes. Five countries had joined the Court’s Statute in the past five years. He hoped that momentum would continue in the coming years towards universal membership. The Court had given substantial technical assistance to other tribunals, including the Special Court for Sierra Leone and the Special Tribunal for Lebanon. That had helped ensure those tribunals’ effective functioning and indicated that the Court had been improving its capacity as a hub for the international justice system.
Despite its remarkable achievements and constructive role in strengthening the tribunal system, the Court had much to do to comply with its mandate. But it could not do that alone. To that end, he welcomed its increased cooperation with the United Nations, as described in Chapter IV of the Court’s annual report. That relationship should be strengthened. Without Member States’ full cooperation, the Court could not execute outstanding arrest warrants for perpetrators, nor conduct thorough investigations. The Court’s effective functioning was in the best interest of the entire United Nations membership.
NIKOLAS STUERCHLER GONZENBACH ( Switzerland) said that Member States should do their utmost to maximize the synergies between the United Nations and the International Criminal Court, maintaining that peace and justice were two sides of the same coin. The situation in Syria should be brought under the Court’s jurisdiction through the Security Council, as part of a consistent referral policy and a follow-up measure that could enhance the deterrent effect of international criminal justice. He added that the United Nations should consider funding the Court for its work on referrals and also noted that the Rome Statute did not provide for the possibility of exceptions in the referrals for nationals from non-States Parties. He welcomed the Secretary-General’s determination to limit the contact of United Nations officials with the subjects of arrest warrants of the Court.
Cooperation by States with the Court was fundamental, he said, regretting the high number of outstanding arrest warrants and urging all States to increase efforts to bring suspects to justice. It was also critical for States Parties to enact relevant legislation and increase capacity to prosecute perpetrators of internationally-recognized crimes, so that the complementarity provided for by the Rome Statute could come into play. Noting that his country had recently ratified the Privileges and Immunities agreement, he said it was now preparing ratification of the Kampala amendments to the Rome Statute, in the hope that the Court’s jurisdiction over the crime of aggression could be activated as early as 2017, and he urged other States to help make that goal possible. Noting also Switzerland’s financial support to the Court, he urged all States to do their utmost to support what he called an important institution.
SIMONA MICULESCU ( Romania) said that the Court had developed into a fully functional institution, and its tenth anniversary this year offered an opportunity to reflect on the best ways to overcome the challenges ahead. Such consideration should take into account best practices and lessons learned from the international ad hoc tribunals. She looked forward to debates during the forthcoming Assembly of States Parties to the Rome Statute in that respect. Further, noting that the number of States Parties to the Statute had grown to 121, she encouraged all States to join the treaty. “Strengthening the ICC by achieving universality is the most powerful preventive approach towards compliance with the most important norms of international law and reducing risk of impunity.”
Cooperation by States was essential for the Court to fulfil its mandate. Execution of arrest warrants, adoption of adequate national legislation and continuous financial commitment by States was needed to ensure optimal functioning of the Court and for an effective fight against impunity. Consistent public and diplomatic support for the Court’s activity strengthened its position, she said. In closing she said strong, consistent and continuous support for the Court by States and the international community were necessary to the fulfilment of its mandate.
MATEO ESTRÉMÉ ( Argentina) said the Rome Statute and the International Criminal Court were the most notable achievements of multilateral diplomacy, and their contribution to the fight against impunity for the most heinous crimes was evident. The modification of Article 8, adding certain acts to the war crimes committed in the context of armed conflicts not of an international character was a step forward in the fight against impunity. The Court would also be able to exercise its jurisdiction regarding the commission of crime of aggression one year after the ratification or acceptance of the amendments by 30 States Parties, he said, adding that States Parties must commit themselves to ratifying the amendments adopted in Kampala as soon as possible.
Challenges remained, he said, and mutual cooperation between the Court and the United Nations as well as all Member States was crucial, particularly with arrest warrants. He said the Security Council could not just take note of the Prosecutor or Court reports without following up on compliance with cooperation obligations. Regarding the two referrals the Council made to the Court, he was concerned about the clause that sought to exempt nationals of non-States Parties to the Rome Statute, which could weaken the Court’s power and impact its - and the Security Council’s - credibility. He was also concerned about ensuring funding for the Court, which should receive assistance from the United Nations. Inaction would only negatively impact the current cases before the Court and could hamper the Prosecutor’s efforts to initiate investigations.
KAZUO KODAMA ( Japan) underscored the progress the International Criminal Court had made since the Rome Statute entered into force 10 years ago, including the conviction of Thomas Lubanga, a Democratic Republic of the Congo warlord who had been accused of recruiting and using child soldiers. He described that as a “significant step toward a fully operational international criminal justice system and the development of international criminal law”. The Court had also enjoyed greater credibility in the world, with the number of States Parties to the Statute increasing from 115 to 121 during the reporting period. Japan welcomed Vanuatu becoming the eighteenth Asia-Pacific member of the Court in 2011.
But some challenges loomed over the next decade, he said. Implementing the Statute effectively could be realized only through full cooperation by States. In cases where situations in a non-State Party were referred to the Court by the Security Council resolutions, cooperation between the Court and the Council was crucial. Recalling the cases of Darfur and Libya, he said a lack of cooperation could cause the failure to indict a perpetrator of serious crimes and undermine the Court’s credibility by betraying the expectation of the victims and the international community. Regarding the Court’s efficiency, he pointed out the institution was not immune from scrutiny of management despite the sanctity of its judicial independence. That issue must be addressed with a view to striking a good balance between the need for strict financial discipline and for procedural legitimacy required for a criminal institution. In that regard, Japan welcomed constructive discussions on the budget in preparation for the Assembly of the States Parties.
LEANDRO VIEIRA SILVA ( Brazil) said the values enshrined in the Rome Statute were truly universal in nature and he hoped more States would ratify the instrument. The activation in 2017 of the Kampala amendments to the Statute would represent a major contribution to completing the international criminal justice system adopted in Rome in 1998, he said, highlighting that the Organization of American States (OAS) had also adopted a resolution last June renewing a call on States to ratify or accede the Statute. The Court’s achievements included the judgment issued earlier this year in the case against Thomas Lubanga, which had been an important step for the victims of crimes and had sent a message of hope to all those who sought accountability for the most serious crimes of international concerns.
Cooperation was crucially important, as were efforts aimed at reinforcing rule of law activities, he continued. The next meeting of the Assembly of States Parties’ thematic debate would benefit from the insights and comments made during a debate held last month in the Security Council, during which members elaborated on the Court’s role in fostering international criminal accountability. The Council must pursue referrals rigorously and consistently, he said, and Brazil firmly rejected any form of exemption from the Court’s jurisdiction of certain categories of individuals. The Council’s referrals put a heavy financial burden on the Court - costs which should be borne by the entire international community by funds provided by the United Nations, subject to the General Assembly’s approval.
EDUARDO JOSE ATIENZA DE VEGA ( Philippines) said that, as long as there was impunity, the international community would always condemn the most serious crimes of concern to it in the strongest possible terms. For the greater part of human history, it had not been possible to hold perpetrators accountable for such crimes. However, that was now possible thanks to the International Criminal Court. The current reporting period had been a “milestone year” for international law in general and international criminal justice in particular. The Declaration adopted by the Assembly’s High-level Meeting on the Rule of Law had recognized that, across and beyond the United Nations system, there were institutions, working methods and relationships in place to make that principle relevant to peace and security, human rights and development.
One of those institutions was none other than the International Criminal Court. The Philippines, in the current reporting period, had become the one hundred and seventeenth State Party to the Rome Statute, he said, adding: “Our goal is universality”. In that respect, he called for many more countries, particularly from the Asia-Pacific region, to similarly ratify or accede to the Rome Statute. “To those who have committed, or are about to commit genocide, crimes against humanity and war crimes, take heed: crime does not pay”, he stressed, adding, there is nowhere you can hide”. Sooner or later, offenders would have to answer to the law; if national courts were unable to try them, the International Criminal Court would always be ready.
Indeed, national jurisdiction was the first defence, the “first bulwark” against criminal impunity. The Court, the United Nations and the international community should help those countries to build their domestic capacities, including through technical assistance such as the training of judges, prosecutors, the police and the military. At the same time, States Parties must ensure that their respective criminal justice systems were transparent, fair, effective and relatively speedy, allowing for the prosecution of the crimes contemplated by the Rome Statute.
DAFFA-ALLA ELHAG ALI OSMAN ( Sudan) said that international law was held in high regard by all and was part of the foundation of the United Nations. However, the Organization had become restricted, even in condemning aggression. On 24 October, Sudan had come under aggression from the Israeli Air Force, which had attacked a factory producing conventional arms and ammunition. The result was destruction, the deaths of innocent people and ruin of homes surrounding the factory, leading to huge material loss. Yet, in those circumstances, he said “we hear nothing from our international organizations”, even though that aggression had been condemned by a number of regional groups. “Where is international justice?” he asked.
Objecting to the politicization of international institutions of justice, he said that the Court had been handicapped from the start because it mixed politics with its noble goals. The Court’s report brought nothing new, but it did reveal how the body was deviating from its work and its politicization. For that reason, some countries had reservations. The report tried to explain the Court’s inaction in Palestine in the guise of law. He cautioned against the politicization of the relationship agreement between the United Nations and the Court, which threatened to turn the Court’s Secretariat into a policy arm of certain powers.
The report’s reference to the arrest of some staff members of the Court in Libya was an example of the Court’s failure to respect the rights of sovereign States. The agreement between the Court and the United Nations was “defective”, both generally and in respect to the Security Council in particular. He called for a review of that agreement. Peace-loving countries would not accept the politicization of the Court, he said. “The conscience of the people understands the hegemony of influential States over the Court,” he continued. That brought to mind old forms of imperialism, as most of the Court’s cases related to Africa, while ignoring situations in Palestine and many other regions.
ÀLVARO CERIANI ( Uruguay) underscored the important activities of the internationally constituted courts for trying offenders, whomever or wherever they may be. Those included the International Criminal Tribunals for the Former Yugoslavia and for Rwanda. This year, as the international community celebrated the tenth anniversary of the entry into force of the Rome Statute, it also welcomed the first conviction of the Court in the case against Thomas Lubanga, and the finalization of the trial of the second case, which was currently subject to sentencing. Uruguay viewed with satisfaction the fact that membership in the Rome Statute had substantially increased to close to two-thirds of the membership of the United Nations, and hoped that the trend would continue.
He said that Uruguay advocated for the continued use of the Security Council’s practice of referring cases to the Court. In that vein, the impact of armed conflict and grave violations of human rights were a cause of concern. In such cases where peace was jeopardized, the Council should act consistently, responsibly and not selectively. Uruguay also agreed with a group of countries that felt it appropriate to refer the case of the recent human rights violation in Syria to the International Criminal Court so that perpetrators - whoever they were - were held to account for their actions. The delegation also agreed that the five permanent members of the Security Council should refrain from exercising their use of the veto in cases where the gravest crimes against humanity were in question, and felt there needed to be an overall “deepening” of the relationship between the Court and the Council.
IGOR PANIN ( Russian Federation) said that over the past 10 years, the Court had gained authority and occupied a unique niche in the system of international bodies. It was significant that the Court had issued its first judgment in the Lubanga case. There were problems, however arising from the Rome Statute itself, which he regretted was not a compromise document. At the forefront of those problems was the lack of cooperation between States and the Court in executing arrest warrants the Court had issued. How it resolved that matter would determine whether the Court would become the universal body for international criminal jurisprudence.
Of decisive importance for the Russian federation with respect to the Court, was the recent inclusion in the Rome Statute of the crime of aggression. He expressed concern that the “ Kampala compromise” had not sufficiently taken into account the prerogatives of the Security Council under the Charter. A situation, in which the Court would take jurisdiction of such a crime without the appropriate decision by the Security Council, would be highly undesirable.
ERIKA MARTÍNEZ LIEVANO ( Mexico) welcomed the fact that 121 States had joined the effort to achieve a common objective by becoming Parties to the Rome Statute. The Court had made considerable progress in combating impunity, with achievements including the first sentence that found Thomas Lubanga guilty of recruiting and using child soldiers. Along with other cases brought to the Court, such work had enhanced the institution’s credibility. But despite such progress, the past 10 years had revealed that there was room for improvement, he said, calling on States to ratify or accede to the Statute in “this tenth anniversary year’. Many cases were still pending, and as such State cooperation with the Court was vital. Non-cooperation had undermined the ability of the Court to discharge its mandate. Non-States Parties also had the responsibility. Mexico underscored the outstanding work of the Court and called for appropriate allocation of resources.
OCTAVIO ERRÁZURIZ (Chile) said that today, the Court was the most advanced expression of the international criminal justice system, representing one of the most relevant initiatives seen in recent times. In the area of the protection of human rights, the creation of the Court had been a great step forward in confronting impunity. Chile firmly supported the Court’s work and underscored the importance of the tenth anniversary of the entry into force of the Rome Statute, as well as the body’s first conviction. It was also important that the Court have the necessary human and financial resources needed to carry out its functions.
Regarding the link between the Security Council and the Court, the Council should exercise its powers to refer cases based on “consistent parameters” that showed that such actions were not arbitrary in nature. The Council should pay particular attention to refusals to cooperate with it. Indeed, the International Criminal Court was called upon to take on a role in situations in which States were not in a position, or did not have the will, to undertake legal proceedings. During the High-level Meeting on the Rule of Law, Chile had put forth a proposal for the development of legislation for cooperation with the Court. It had also called on States that had not yet done so to become Parties to the Rome Statute, and on States Parties to adopt the amendment to the Rome Statute agreed at the Kampala review conference.
TIINA INTELMANN, President of the Assembly of States Parties to the Rome Statute of the International Criminal Court and Estonia’s Ambassador-at-large for the International Criminal Court, said the report before the Assembly reflected just how far the level of the Court’s activities had risen and what an indispensable tool it had become in the fight against the worst crimes under international law, such as genocide, war crimes and crimes against humanity. In 2002, the Court was a “good idea”; now in 2012, the Court was able to execute the good idea behind its founding in a professional and independent manner. States should ratify or accede to the Rome Statute if they had not done so, to demonstrate their commitment to the fight against impunity.
The Rome Statute was a system built on State cooperation. But there was room for improvement in cooperation in perhaps its most crucial form – the arrest and surrender of persons against whom warrants of arrest had been issued by the Court. More than 10 such individuals were currently at large. The Court was also a court of last resort: States had the primary responsibility for investigating and prosecuting those who had committed the worst crimes under international law. States Parties were discussing what steps could be taken to assist one another in fulfilling that primary responsibility. The experience of the last 10 years had proven however, that it did occasionally become necessary for the Court to step in. The first two States Parties had ratified the amendments to the Rome Statute on the crime of aggression. Estonia had pledged to pursue ratification of the amendments by the end of 2013, she said, calling on other States Parties to do the same.
MAFIROANE MOTANYANE ( Lesotho) said the Court’s growing membership indicated that it had become a thriving, independent judicial body with broad support. He welcomed Guatemala, which had joined the Court’s Statute in April, and called on all countries that weren’t party to that treaty to follow suit. He lauded the Court’s handing down of its first judgement and sentence, which concerned the situation in Democratic Republic of the Congo. The continuation of investigations and judicial processes in seven other situations, and the referral of an eighth matter by a State Party, were proof that the Court had entered a new era of judicial delivery.
He welcomed the swearing in of its first female Prosecutor, the election of six new judges and the assumption of office by the new President of the Assembly of States Parties. The Court needed the international community’s unwavering support and cooperation to achieve its mandate. It also must be adequately insulated against politicization, including politicized prosecution and other abuses. Double standards would degrade the Court’s integrity. Selective prosecutions must be avoided; charges must be preferred against the mighty and the weak, the rich and the poor. Checks and balances must be strengthened to enhance faith in the Court and promote Member States’ support and cooperation.
The only way to thwart the perception that the Court was susceptible to abuse by the Security Council was for the relationship between the two bodies to be carefully nurtured in a way that preserved the Court’s independence and integrity, he said. An independent Court would encourage more cooperation from stakeholders and promote its universal ratification. National judicial criminal justice systems must be strengthened so they could competently deal with perpetrators of the most heinous crimes. That would help alleviate the Court’s workload and States Parties’ attendant costs. He hoped that once cases were completed and accused persons were found guilty, the reparations process in deserving cases would proceed without delay.
YOLANDE DWARIKA (South Africa), recalling the recent focus of various United Nations organs on the rule of law, said that her delegation was particularly pleased that, over the reporting period, the Court had issued both its first judgment and its first decision on the issue of reparations for victims. South Africa also noted with some satisfaction, the amount of cooperation between the various organs of the Court and States, international organizations and civil society. Nonetheless, South Africa remained concerned about the high incidence of non-cooperation. That related not only to cases of non-execution of outstanding arrest warrants but also to the recent events surrounding the detention of staff members of the Court.
With regard to the Office of the Prosecutor, she expressed South Africa’s concern at the manner in which the decision on Palestine was made. Given the passage of time, the developments within the United Nations system, including the admission of Palestine as a member of the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the “sheer number” of States – including States Parties to the Rome Statute – that recognized Palestine, South Africa was disappointed by the unwillingness of the Prosecutor’s Office to make a firm decision. The delegation further highlighted the importance of strengthening the relationship between the United Nations and the Court, in accordance with the Relationship Agreement. She noted, in that regard, that when the Security Council referred a situation to the Court, it did so on behalf of the United Nations as a whole. South Africa was therefore convinced that the Organization should contribute financially to the costs of the investigations and prosecutions of situations referred by the Council.
USMAN SARKI ( Nigeria) said the International Criminal Court’s objective was based on the concept that justice transcended the confines of national borders, that impunity must be challenged and that all were accountable for their actions regardless of station or location. The cooperation among States, international organizations and civil society was vital for the Court to continue discharging its role enshrined in the Rome Statute. In that regard, it was imperative to expeditiously ensure unhindered access for proper investigations, execution of outstanding warrants, protection of witnesses, enforcement of sentences and surrendering of persons indicted for war crimes.
Stressing the need for greater engagement of the Court with the African Union, he said such cooperation would afford both sides the opportunity to explore ways and means by which the capacities of Member States to fight impunity would be strengthened. An increase in the number of cases referred by State Parties and referrals by the Security Council required more funding, he said, calling for voluntary contributions by States. Nigeria had acceded to the Rome Statute earlier in 2012 and had put in place the necessary machinery through its judiciary to end the insurgency of the Boko Haram in the country. The Government was already taking steps in the investigation and prosecution of perpetrators. The election of Nigeria’s candidate as a judge of the Court in December 2011 gave credence to its commitment to the pursuit of peace, respect for human rights and the rule of law in Africa and around the world.
SAUL WEISLEDER ( Costa Rica) hailed the tenth anniversary of the creation of the Court as a demonstration of multilateralism, welcoming such States as Guatemala joining the Rome Statute this year. His delegation pledged to continue supporting efforts toward the universality, independence and integrity of the Court. In the final document of the High-level Meeting on the Rule of Law held in September, a large number of States called for the strengthening of the Court. He said Costa Rica had ratified the Kampala amendments and was determined to remain the driving force in the fight against impunity, calling on other States to do the same.
Although his delegation supported the principle of complementarity, the repeated failure of some States to comply with arrest warrants issued by the Court was a matter of concern. There were 11 outstanding arrest warrants, including one issued seven years ago. Another matter of concern related to financing. A zero-growth proposal for the Court’s budget was not realistic because cases of Côte d’Ivoire and Kenya were now added to the list of its duties. “We cannot afford to jeopardize the ability of the Court,” he said.
MARK SIMONOFF ( United States) said that strengthening accountability for those responsible for the worst atrocities remained a priority for the United States. Though it was not a Party to the Rome Statute, the United States recognized the Court’s important role. In addition, President Obama had emphasized the importance of preventing crimes such as genocide as a key national security priority, and the United States Government continued to support “positive complementarity initiatives” in helping countries to develop domestic accountability processes for serious crimes.
In that regard, even when the International Criminal Court investigated and prosecuted crimes, it still only served to complement national efforts. The United States supported efforts to build up national justice systems around the world. However, more could be done, and the Court itself could become an even more important safeguard against impunity. The United States, for its part, actively engaged with the Office of the Prosecutor to identify ways in which it could support ongoing investigations, and advance mutual goals in areas such as information sharing. The international community should remain committed to working towards both preventing atrocities before they occurred and holding to account those responsible when they did happen.
GONZALO BONIFAZ ( Peru) said some important events had taken place in the period covered by the report, including the ratification of the Rome Statute by Guatemala, Cape Verde, Maldives, the Philippines and Vanuatu. That brought a total of States Parties to 121. “This is encouraging”, he said, calling on States that had not done so to ratify without delay in order to achieve the true universality of the Statute. At the meeting of the Union of South American Nations (UNASUR), foreign ministers had reiterated the need to support the Court and decided to support efforts to strengthen the Court.
On the relationship between the Security Council and the Court, he highlighted four issues, including referrals, the cooperation agreement, financing of referred cases by the organization and the Kampala amendments to the Statute. The Court had played an important role in promoting the rule of law as it was the only permanent international criminal court. The High-level Meeting on the Rule of Law in September underscored the need for a functioning multilateral system, with many States making significant pledges. He also praised the work of the Liaison Office in New York and expressed his delegation’s commitment to work and collaborate with the Court.
MAZEN ADI ( Syria) said that the Rome Statute was intended to help end impunity for the perpetrators of crimes listed in the treaty, namely war crimes, genocide, crimes against humanity and aggression. The delegates that had participated in the Rome Conference would not have foreseen that the rules they laid out would one day be used in the interest of “political and interventionist agendas” that had nothing whatsoever to do with ending impunity, and as a vehicle to overthrow Governments and interfere in the affairs of States. Neither would the drafters of the Statute have foreseen that the definition of “crime of aggression” would be diluted in favour of those States perpetrating that very crime.
Indeed, it was a source for concern that some would hide behind the idea of international criminal justice to promote ideas far removed from those on which the United Nations was established. It was also regrettable that States would mention Syria in their statements, using the Assembly as a forum to distort facts and exploit the law in the service of a “crude interventionist policy”. Syria was presently confronting an unprecedented wave of terrorism and violence. The Government had repeatedly described the details of what was happening, as well as the steps it had taken to restore order, but there was not enough time to repeat those details today. However he stressed that the Government remained serious about implementing reforms in response to popular demands, and that the Syrian authorities upheld all their legal and judicial responsibilities. Further, the independent judicial commission recently established was carrying out its obligation to refer to courts those who had perpetrated crimes, while preserving the rights of the accused throughout all stages of trial.
* *** *