|Department of Public Information • News and Media Division • New York|
Sixty-eighth General Assembly
41st & 42nd Meetings (AM & PM)
Role of International Courts in Fight against Impunity Applauded
as General Assembly Hears Presentation of Annual Reports
Amid Charges of Partiality, Bias,
Delegates Call for Judicial Independence to Be Upheld
Hailing the International Court of Justice and the International Criminal Court as leading examples of ending impunity, delegates in the General Assembly today examined reports on recent achievements and elaborated on challenges ahead during a day-long debate.
More than 45 speakers delivered statements on the two Courts, covering the work of the two bodies on issues ranging from establishing territorial borders to prosecuting the world’s most heinous crimes.
During the debate on the International Criminal Court, its President, Sang-Hyun Song introduced three reports on activities during the past year and told delegates that the Court could properly deliver its mandate only if States cooperated in accordance with the obligations they accepted under the Rome Statute.
“Ultimately, the ICC’s success in suppressing impunity depends on your support,” he said. “The ICC must remain an independent, judicial institution, relying on States for enforcement and cooperation.”
Pointing out that the Statute recognized that grave crimes in the Court’s jurisdiction threatened the peace, security and well-being of the world, he said: “It is not difficult to see why. Mass murder, the use of armed force against civilians, deportation of populations, the use of child soldiers, rape as a weapon of war – these are atrocious acts which inflict irreparable suffering, often across generations.”
As part of its mandate, the Court’s Trust Fund had created 28 projects benefiting 110,000 in Uganda and Democratic Republic of the Congo, he said.
In the ensuing debate, delegates raised a range of issues, including limited financial resources and the African Union and Kenya’s concerns over the jurisdiction over several cases currently before the Court.
Kenya’s representative said, in view of the current superficial and wrong implementation of the Rome Statute, the international criminal justice system was faced with a unique historical conundrum that needed to be approached constructively. Cooperation with the Court needed to be a “two-way” process that required the Court to extend its cooperation to State parties. The Statute’s current interpretation and implementation in relation to his country showed little or no accommodation to the concerns of an active, cooperating State party with a rich history of local jurisprudence.
Moreover, the Statute’s application was highly prejudicial to a member State’s interests and that was consistent with a political agenda rather than a quest for fighting impunity or seeking lasting peace or justice, he said, calling upon the organs of the Court to take immediate action to ensure their independence.
Some delegates shared his view. “International criminal justice is in a crisis of credibility,” said Rwanda’s representative. “There is a need to review what we have achieved over the last decades and chart a way forward.”
The Court should be a court of last resort, she said, pointing out that Kenya was capable of prosecuting all cases related to the 2007 post-election violence. However, the Court’s proponents were ostensibly deaf to the increasingly vocal criticism against its bias towards Africa. “This is not acceptable and Africa will stand up and refuse to be intimidated or bribed into silence and inaction on this matter,” she said.
New Zealand’s representative said the Court was now facing the strongest challenge in its 10-year existence, and that the concerns of the African Union and Kenya and their request that the Security Council defer several Kenya cases required careful and serious consideration.
Sweden’s representative, speaking on behalf of the Nordic Countries, also acknowledged the scepticism expressed by a number of African Governments about the Court’s situation and indictments. Although the current proceedings before the Court concerned African States, the largest numbers of those situations had been referred by the States themselves, he said.
A number of delegations were also concerned about outstanding arrest warrants. The Head of the European Union delegation said a fundamental challenge concerned 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.
Yet, even in the face of those problems, Namibia’s representative summed up a common view, that despite challenges and concerns, the International Criminal Court’s role in deterring and prosecuting heinous crimes that threatened peace and security could not be overstated.
During the debate on the International Court of Justice, its President, Peter Tomka, said that the Court had worked over the last 12 months towards advancing its mandate, including clearing its backlog and issuing two judgments and six orders while operating on less than 1 per cent of the United Nations regular budget.
“The Court must do its utmost to serve the noble purposes and goals of the United Nations using limited resources,” he said after introducing two reports on the Court and highlighting the Court’s activities during the one-year reporting period. “I hope that I have shown that the recent contributions of the Court are not to be measured in terms of the financial resources that sustain it, but against the great progress made by it in the advancement of international justice and the peaceful settlement of disputes between States.”
States thinking of submitting cases could be confident that the Court would move to the hearings stage without delay, he said.
Many praised the Court for its contributions to international law, with some recognizing that resources were needed to operate a court with such a broad jurisdiction. The United States’ representative commended the Court’s continued public outreach to educate key sectors of society, including that the United Nations Web TV now covered proceedings. She hoped that the Court would continue to receive appropriate resources to continue its important mandate.
A number of delegates mirrored that view. Costa Rica’s representative said resources were needed, especially given the increased number of cases. In addition, with less than 70 United Nations Member States recognizing the compulsory jurisdiction of the Court, he invited all States to do so.
Other delegates applauded the Court’s role on the global legal landscape. A representative of the Russian Federation said the Court should be an example for other international courts, including the International Criminal Tribunal for the Former Yugoslavia.
Also delivering statements on the International Court of Justice were representatives of Iran (on behalf of the Non-Aligned Movement), New Zealand (speaking also for Canada and Australia), Romania, Peru, Philippines, Mexico, South Africa, Chile, India, Japan, Democratic Republic of the Congo, and Bolivia.
Delivering statements on the International Criminal Court were representatives of Romania, Cuba, Argentina, Liechtenstein, Eritrea, Australia, Mexico, Estonia, United States, Brazil, Uruguay, Republic of Korea, Chile, Switzerland, Netherlands, Democratic Republic of the Congo, Japan, Russian Federation, Costa Rica, Sudan, China, South Africa and Canada.
The representatives of Syria and Switzerland spoke in exercise of the right of reply.
The General Assembly will meet again at 10 a.m. Tuesday 5 November to consider the Report of the International Atomic Energy Agency.
The General Assembly met today to consider the work of the International Court of Justice and the International Criminal Court over the past year. Before them were the reports of the International Court of Justice (document A/68/4); the Secretary-General’s report on the International Court of Justice (document A/68/349); a note by the Secretary-General on the International Criminal Court (document A/68/314); and reports by the Secretary-General on the International Criminal Court (document A/68/364 and document A/68/366).
The International Court of Justice
PETER TOMKA, President of the International Court of Justice, said that over the past 12 months, the Court had continued to fulfil its role as the forum of choice in the international community for the peaceful settlement of every kind of international dispute over which it had jurisdiction. Since the Court had been able to clear its backlog of cases, States thinking of submitting cases could be confident that the Court would move to the hearings stage without delay.
Presenting a review of the Courts judicial activities, he noted that as many as 11 contentious cases were pending before it. During the reporting period, the Court delivered two judgments and six orders. Public hearings were held in three cases: the Maritime Dispute (Peru v. Chile); Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand); and the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening).
In the case concerning the Territorial and Maritime Dispute ( Nicaragua v. Colombia), he said that the Court noted that Nicaragua had not established that it had a continental margin that extended far enough to overlap with Colombia’s 200 nautical mile entitlement to the continental shelf. The Court thus declared that it was not in a position to delimit the boundary between the extended continental shelf claimed by Nicaragua and the continental shelf of Colombia. Therefore, it concluded that Nicaragua’s claim could not be upheld. The Court also concluded that, taking into account all the circumstances of the case, the result achieved by the maritime delimitation did not entail such a disproportionality as to create an inequitable result.
Concerning the case of the Frontier Dispute (Burkina Faso/Niger), the Court recalled that article 6 of the Special Agreement highlighted “the principle of the intangibility of boundaries inherited from colonization and the Agreement [between two States] of 28 March 1987”. The latter instrument had specified the acts and documents of the French colonial administration that must be used to determine the delimitation line that existed when the two countries gained independence. In light of those and other elements, the Court determined the course of the frontier between the Tong-Tong astronomic marker and the beginning of the Botou bend.
“This judgment was adopted unanimously, including also the judges ad hoc chosen by Burkina Faso and Niger, respectively,” he said. Following that judgment, the Court ruled on the Parties’ request to nominate three experts to assist them in the demarcation of their frontier in the area in dispute by issuing an order in July of this year.
He then turned to the order issued by the Court in the case concerning Whaling in the Antarctic ( Australia v. Japan: New Zealand intervening), which concluded that New Zealand’s Declaration of Intervention was admissible. The order authorized that country to submit written and oral observations on the subject matter of its intervention and the parties to comment on those observations.
Four orders, he continued, had been issued in two cases between Costa Rica and Nicaragua: Certain Activities carried out by Nicaragua in the Border Area ( Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River ( Nicaragua v. Costa Rica). An order had also been issued on the case on Aerial Herbicide Spraying ( Ecuador v. Colombia), which removed the case from the Court’s list at Ecuador’s request.
The Court was carrying out its mandate in the renovated and modernized Great Hall of Justice, due in large part to contributions provided by the General Assembly and the Carnegie Foundation, he said. It now enjoyed improved technical facilities offering a wide range of possibilities. Last month, the Court organized a conference to celebrate the centenary of the Peace Palace.
“The Court must do its utmost to serve the noble purposes and goals of the United Nations using limited resources, since Member States award it less than 1 per cent of the Organization’s regular budget,” he said. “I hope that I have shown that the recent contributions of the Court are not to be measured in terms of the financial resources that sustain it, but against the great progress made by it in the advancement of international justice and the peaceful settlement of disputes between States.”
GHOLAMHOSSEIN DEHGHANI (Iran), speaking on behalf of the Non-Aligned Movement, said that the International Court of Justice had a significant role in promoting and encouraging the settlement of international disputes by peaceful means, as reflected in the United Nations Charter, and in such a manner that international peace and security and justice would not be endangered. He commended the role of the Court in those endeavours, underscoring the Movement’s principled positions on those aims and its commitment to generate further progress to achieve full respect for international law.
Noting that the Security Council had not sought any advisory opinion from the Court since 1970, he urged the Council to make greater use of that body as a source of advisory opinions and interpretation of relevant norms of international law, and on controversial issues. As well, the Assembly, other organs of the United Nations and the specialized agencies were encouraged to request advisory opinions of the Court on legal questions.
In particular, he reaffirmed the importance of the Court’s unanimous advisory opinion issued in 1996 on the “Legality of the Threat or Use of Nuclear Weapons”, and called on Israel to fully respect the 2004 Advisory Opinion entitled “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”. Further, all States were urged to respect and ensure respect of the provisions therein for ending the Israeli occupation and for the independence of the State of Palestine with East Jerusalem as its capital.
JIM MCLAY (New Zealand), also speaking for Australia and Canada, said he was pleased that, during the reporting period, the Court had finalized a range of complex cases addressing a diversity of legal issues, subject matters and geographical regions, thereby contributing greatly to the development and clarification of international legal principles. The increased willingness of States to turn to judicial settlement for the resolution of their disputes was testimony to the confidence of the international community in the work of the Court.
Having taken note of the Court’s response to the Secretary-General’s report on the comprehensive review of the pension scheme for the Court members, he said it was important to strike the right balance between the principles of equality of the Court members and the fiscal responsibilities of the United Nations. The three countries had tremendous respect both for the work of the Court and for the quality and dedication of its judges.
“Our confidence in the Court, and in its ability to render considered judgement on complex international legal issues, was reflected in our acceptance of the Court’s compulsory jurisdiction,” he said. He encouraged other Member States that had not yet done so to deposit with the Secretary-General a declaration of acceptance of the Court’s compulsory jurisdiction.
ALINA OROSAN ( Romania) said that the increasing influence of the Court in international relations demonstrated that its judgments were perceived as free of bias, while reflecting and contributing to the development of international law. Speaking of lessons learned from two cases before the Court involving Romania, she said that, in February this year, an internal debate had been opened on accepting the Court’s compulsory jurisdiction. The Court’s unanimous 2009 judgment on the delimitation of the maritime spaces between Romania and Ukraine in the Black Sea, which had been the focus of the debate, represented undeniable proof of the Court’s impartiality and professionalism. The discussion had evinced public support for acceptance of the Court’s jurisdiction, an approach shared by the Romanian authorities and international law specialists. Thus, she anticipated that Romania would soon accept that jurisdiction.
GUSTAVO MEZA-CUADRA (Peru), recalling the outcome document of the High-Level Meeting on the Rule of Law in 2012 which recognized the Court’s contribution in peacefully revolving disputes between countries, urged States that had not done so to accept its jurisdiction. Peru had accepted the compulsory jurisdiction of the Court and supported the Secretary-General’s efforts in promoting its universal acceptance. However, with the workload of the Court and the complexity of the cases increasing, it was important to ensure that body had sufficient resources. Half the cases before the Court were from Latin America, highlighting its importance to the region. Noting that his country had taken its dispute with Chile to the Court, he said the two countries would work together constructively to solve the problem. He also commended the Court for using multimedia tools to disseminate related information and for providing simultaneous interpretation in Spanish for its hearings, which helped the public to follow the process and understand how the Court functioned.
IRENE SUSAN B. NATIVIDAD (Philippines), associating her delegation with the Non-Aligned Movement, reaffirmed her country’s commitment to comply with the Court’s decisions in contentious cases and its relevance to peace and security, human rights, and development. The 1982 Manila Declaration on Peaceful Settlement of International Disputes, adopted by the General Assembly, supported non-aligned countries’ aspirations for the peaceful settlement of disputes, as outlined in Chapter VI of the Charter. She also called on the Security Council to seriously consider Article 96 of the Charter and ensure greater use of the Court as a source of advisory opinions and interpretations of relevant norms of international law, particularly on the most current and controversial issues affecting international peace and security.
ALBERTO DIENER SALA ( Mexico) reaffirmed his country’s confidence in the Court, as the main international judicial organ, and its commitment to the purposes and principles of the Charter, in particular the duty of States to resort to peaceful means for the solution of their disputes. The work of the Court in the resolution of disputes was vital to the promotion and respect for the rule of law in the international arena. Commending its performance during the reporting period, he urged States that had not accepted the Court’s compulsory jurisdiction to do so at an early date.
EVGENY ZAGAYNOV ( Russian Federation) said his country attributed particular importance to the Court, which was still in one of the most active phases since its establishment. There was still a broad topical diversity in cases before the Court, illustrating both the trust placed in the Court and States’ need for its work. The quality of the judgments remained at the same high level, and the Court should be an example for other international courts, including the International Criminal Tribunal for the Former Yugoslavia.
THEMBILE JOYINI (South Africa), associating his delegation with the Non-Aligned Movement, said that despite the proliferation of international judicial mechanisms on specialised or regional platforms, the Court continued to attract a numerous and wide range of cases, thus reflecting the esteem States held for it. Highlighting the recent case on the demarcation of boundaries between Burkina Faso and Niger, he expressed appreciation for the Court’s demanding schedule, which allowed for several cases to be considered at the same time while dealing promptly with incidental proceedings. However, stressing the importance of advisory opinions on legal questions referred to the Court, he expressed disappointment that during the period under review, no requests for such opinions had been made.
EDUARDO GÁLVEZ ( Chile) said the Court’s contribution to relations between States and to the legacy of international law, especially Latin American law, was an essential piece of the international legal system. His region’s States acknowledged and appreciated the Court’s leading role, facilitating the establishment of an international legal order designed to strengthen the peaceful coexistence of peoples. In the framework of international peace and security, the Court helped to enhance relations between countries and to impose a sense of respect for the law, combining the fundamental principles of the Charter with the requirements of modern life.
RAJANI PATIL ( India) said the Court had acquired a well deserved reputation as an impartial institution maintaining the highest legal standards in accordance with its mandate. Its judgments had played an important role in the interpretation, clarification, development and codification of international law. Because cases presently before the Court involved many regions of the world, they also covered a wide variety of subject matters, including territorial and maritime disputes, environmental damage and conservation of living resources, violation of territorial integrity, and interpretation and application of international conventions and treaties, to name a few. The Court's function of providing advisory opinion on legal questions referred by United Nations organs and specialized agencies further added to its important role of clarifying key international legal issues. Through its publications, multimedia offerings and website, the Court ensured the greatest possible global awareness of its decisions. Those sources also provided useful information for States wishing to submit a potential dispute to the Court.
HIROSHI ISHIKAWA ( Japan) said that his country commended the Court for efforts to re-examine its procedures and working methods, and to conduct its activity in a sustainable manner and respect for equality between the parties to dispute. The international community should make international law a more important role in international relations. He stated that this year marked Japan appearing before the Court for the first case in its history with a case concerning the legality of the country’s special permit whaling in the Antarctic. His country had demonstrated that, based on law and facts, its permit was in full accordance with the International Convention for the Regulation of Whaling.
ELIZABETH BAGLEY ( United States) said the Court had made a significant contribution to establishing legal norms and clarifying legal principles in multiple areas of international law. There was an increased tendency among States to take disputes to the Court and to vigorously advocate on behalf of their interests. She hoped that the Court would continue to receive appropriate resources to continue its important mandate. Commending the Court’s continued public outreach to key sectors of society, she noted that from a transparency standpoint, the Court’s proceedings were available through United Nations Web TV.
IGNACE GATA MAVITA ( Democratic Republic of the Congo) said that not only had the Court handled an increasing number of cases, but it had also settled cases in line with international law. Regarding the use of force against the territorial integrity in any States, he recalled the Court’s 2005 judgment on the Democratic Republic of the Congo. Observations of the Court could have been more clearly expressed. Further, it was important to read the whole of the judgment. On the related topic of reparations, his delegation hoped for a just, prompt and fair solution based on that 2005 judgment. He encouraged States that had not yet done so to sign the Statute and relevant provisions to recognize the Court’s jurisdiction, noting that only 70 United Nations Member States had done so.
S.S. LLORENTTY SOLÍZ ( Bolivia) said the Court was recognized as a civilized way of grappling over differences among States. His country said the trend in the conduct of States had been marked by putting their disputes before the Court, which helped to find resolutions and fostered understanding. More and more States were accepting the Court’s jurisdiction, he pointed out, and he urged all States to do so.
EDUARDO ULIBARRI ( Costa Rica) said the role of the Court in maintaining peace and security was essential and the international community should support and recognize its work. Necessary resources were needed, especially given the increased number of cases. Complying with rulings must be complete and in good faith to consolidate the role of the Court in ensuring justice, peace and the peaceful settlement of disputes. Less than 70 United Nations Member States recognized the compulsory jurisdiction of the Court, he said, and he invited all States to do so. The Court had made invaluable contributions to international law.
The International Criminal Court
The General Assembly then took up the reports on the International Criminal Court.
SANG-HYUN SONG, President of the International Criminal Court, presented reports (documents A/68/314, A/68/364 and 3/68/366), providing an overview of the Court’s activities over the last year. Since he last addressed the Assembly, Côte d’Ivoire had become the 122nd State Party to the Rome Statute; nine States Parties had ratified the amendments on the crime of aggression; and 10 States Parties had ratified amendments that made chemical weapons in non-international conflicts a war crime punishable by the Court.
He said that the Court had worked on its mandate, with activities including opening an investigation in Mali and issuing its first judgement of acquittal, now on appeal. Two arrest warrants were unsealed, one suspect surrendered to the Court, and eight trials were ongoing. The Court also swore in Herman von Hebel as the new Registrar and James Stewart as the new Deputy Prosecutor.
Highlighting judicial developments during the reporting period, he said that Uganda, the Democratic Republic of the Congo, Central African Republic and Mali had referred cases to the Court. On the situation in Uganda, he urged all States to cooperate to bring Joseph Kony and other Lord’s Resistance Army (LRA) members to justice.
In the Democratic Republic of the Congo situation, he said the Appeals Chamber was considering the case of Thomas Lubanga Dyilo. The trial of Germain Katanga was expected to see a judgement in the near future. Bosco Ntaganda, facing charges of the use of child soldiers, murder, rape, sexual slavery and other crimes, voluntarily surrendered to the Court, and his hearing was set to commence in February 2014.
Providing an overview of other activities, he said the trial of Jean-Pierre Bemba continued, concerning the situation in Central African Republic. Regarding the situation in Darfur, a trial of Abdallah Banda was set to begin in May 2014. Turning to Libya, he said questions of admissibility had featured significantly in proceedings, including the rejection of Libya’s admissibility challenge with respect to Saif Al-Islam Gaddafi, which was followed by Libya’s appeal and the declaration of the case of Abdullah Al-Senussi inadmissible before the Court.
On the situation in Côte d’Ivoire, he said Laurent Gbagbo was in custody and arrest warrants were outstanding for Simone Gbagbo and Charles Blé Goudé. In the situation in Kenya, the trial of William Samoei Ruto and Joshua Arap Sang had begun. The trial of Uhuru Kenyatta was postponed to February 2014. On the situation in Mali, investigations continued.
He also said that the Appeals Chamber last week issued its first ever ruling on the interpretation of a provision of the Rome Statute, article 63, which provides that “[t]he accused shall be present during the trial”, finding that the absence of an accused from trial was permissible under exceptional circumstances.
Turning to the International Criminal Court’s Trust Fund, he said 28 projects were being supported, reaching an estimated 110,000 victims in northern Uganda and the eastern part of the Democratic Republic of the Congo. He thanked Member States for contributions and encouraged other States to consider supporting the Fund.
Given the considerable international attention the Court had attracted in recent months, he assured delegates that it would try to find practical solutions to the challenges it faced, consistent with the legal framework set by States in the Rome Statute.
“The ICC must remain an independent, judicial institution, relying on States for enforcement and cooperation,” he said, pointing out that the Statute recognized that grave crimes in the Court’s jurisdiction threatened the peace, security and well-being of the world. “It is not difficult to see why. Mass murder, the use of armed force against civilians, deportation of populations, the use of child soldiers, rape as a weapon of war — these are atrocious acts which inflict irreparable suffering, often across generations.”
He said the Court could properly deliver its mandate only if States cooperated in accordance with the obligations they accepted under the Rome Statute. “Ultimately, the ICC’s success in suppressing impunity depends on your support,” he concluded.
GILLES MARHIC, European Union delegation, noted that with eight situations under investigation and a further eight under preliminary examination, the International Criminal Court was facing an increasing workload. That body had given hope to the victims of the most serious crimes, with more than 110,000 victims having already benefited from its assistance program. The universality of the Rome Statute, which remained one of the main challenges faced by the Court, was essential for ensuring accountability for the most serious crimes. The international community needed to continue to work tirelessly to make the Statute universal, as well as extending participation to the Court’s Agreement on the Privileges and Immunities.
Another fundamental challenge remained in 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 that body. He noted with concern that certain arrest warrants — some since 2005 — remained outstanding. He called upon all States to take action to encourage appropriate and full cooperation with the Court, including the prompt execution of arrest warrants. Meanwhile, he welcomed the actions undertaken by States, international organizations and civil society to increase their cooperation with, and assistance to the Court. In that regard, he commended the ongoing cooperation of the United Nations with that body. The European Union and its m ember States in their efforts to fight against impunity had given the Court full diplomatic support.
ANDERS RÖNQUIST (Sweden), speaking for the Nordic countries, said a significant achievement during the reporting period was the self-surrender of Congolese war crimes suspect Bosco Ntaganda to the International Criminal Court — the first person subject to an arrest warrant of that body to do so. As well, it was positive to see the cooperation with the Court on that matter by the United States and Rwanda — two non-States Parties. However, progress still had to be made because, despite those successes, the number of outstanding arrest warrants remained high.
In addition to the execution of arrest warrants, he said there were other ways for States and international organizations to engage in proactive measures that strengthened the Court. He commended the Secretary-General’s note from April of this year, which provided that contact between the Organization’s officials and persons with an arrest warrant should be limited to those which were strictly required for carrying out essential United Nations mandated activities. Noting that the Nordic countries and the European Union applied a similar contact policy, he said the Court’s reach and relevance was enhanced by mainstreaming the Court’s policy into regular bilateral diplomacy.
Acknowledging the scepticism expressed by a number of African Governments about the International Criminal Court’s situation and indictments, he said it was important to bear in mind that although the current proceedings before the Court concerned African States, the largest numbers of those situations had been referred by the States themselves. Quoting former Secretary-General Kofi Annan, he said: “Let me stress that it is the culture of impunity and individuals who are on trial at the International Criminal Court, not Africa.”
ALINA OROSAN ( Romania) said the new strategic plan of the Court was an important step in improving the quality of its investigations and prosecutions. Stressing the importance of State cooperation, she said that non-cooperation was not only a violation of international obligations, but it undermined the Court’s efforts to deliver justice and ensure the rule of law. It could also affect credibility by failing to meet victims’ expectations. Further, State Parties should foster the will to cooperate among third States. Finally, she encouraged all States that had not done so to become parties to the Rome Statute. Achieving universality was the most powerful preventive approach to reducing the risk of impunity and ensuring compliance with the most important norms of international law.
MANUEL DE JESUS PÉREZ ( Cuba) said he was concerned about some events over the past year that had shown there were problems in terms of the lack of autonomy of the International Criminal Court and “the broad powers granted to the Security Council with regard to the Court’s work”. Such problems violated the principle of independence of legal bodies as well as transparency and impartiality in the administration of justice. He was also concerned by the precedents set by the Court’s decisions in initiating judicial proceedings against nationals of States that were not parties to the Rome Statute. His country had been a victim of “the most blatant form of aggression” in the past 50 years, which had caused great loss of human lives, in addition to untold economic, financial and material loss. Therefore, he suggested that the crime of aggression should have a broader definition, and should not be limited to the use of armed force. Actions that affected the sovereignty, territorial integrity and independence of a country should also be included.
MATEO ESTREME ( Argentina) said the Rome Statute formed a pillar of international law and as such, his country supported the amendment that would broaden the Court’s jurisdiction. Yet, in the struggle against impunity, there were still challenges. Mutual cooperation between the United Nations and the International Criminal Court, and between States and that Court was essential. He urged members of the Security Council to follow up on referrals. However, he was concerned about the way the Council had reformed the Court and how the General Assembly regarded the matter, particularly that funding would come from countries that were Parties to the Rome Statute. If no consideration was given to addressing referrals, the Court would be compromised in its activities. Combating impunity was a goal of all Parties of the Rome Statute and the United Nations itself. Funding was needed, and the absence of any action under article 115 would only have a negative impact on cases currently before the Court. A dialogue among concerned actors should continue, with a genuine desire not to interfere with that Court’s activities.
CHRISTIAN WENAWESER ( Liechtenstein) said that, although the Court had been doing precisely what it had been asked to do, it had been subject to much criticism. In reality, such criticism was often directed against the Security Council, which had referred two cases to the Court, thereby extending the Court’s jurisdiction over two non-States Parties. His delegation did not find any evidence that the Court’s decisions were motivated by politics rather than the law. In order to counteract misconceptions and politically motivated criticism, all States that believed in justice, in particular States Parties to the Rome Statute, should strengthen their support for the Court and show greater ownership over the system they had established. In that regard, he drew attention to a recent initiative by Botswana, Jordan and his country, which sought to add a provision to the Court’s Rules of Procedure and Evidence. The proposal addressed the important issue of presence at trial and the possibility of presence via video link, if exceptional circumstances so required. He expressed hope that that initiative could be one central part of a comprehensive response to the recent controversies. Most importantly, it would illustrate the willingness of States Parties to do their part to assist the Court in a difficult time.
AMANUEL GIORGIO ( Eritrea) said he shared the concerns raised by African Heads of State and Government during the recent Extraordinary Session in Addis Ababa on Africa’s relationship with the International Criminal Court. Eritrea had joined other African States in filing amicus curiae observations to the Appeals Chamber, elaborating on how a cooperating individual who concurrently held a high Government office should be handled to encourage State cooperation without endangering the constitutional rights of the office-holder. The unacceptable treatment of African States and their leaders by the Court was aggravating the situation rather than addressing the root cause of the problem, he said, urging the Assembly to work for comprehensive reform of the Security Council and the Court.
RICHARD ROWE (Australia), addressing the African Union’s concerns regarding the cases against Kenya’s President and Deputy President, said he was confident that the international community would be able to find a constructive way to move ahead. He looked forward to discussions on the issue at the upcoming Assembly of States Parties. While solutions were being discussed, it was important that all States fulfil their obligations under international law, whether those obligations derived from being a party to the Statute or from resolutions of the Security Council. It was imperative that the Council should provide ongoing support to the Court, especially in relation to situations it had referred to that body. The Secretary-General’s guidance to the United Nations Secretariat on contact with persons subject to arrest warrants was welcomed and he called on the Organization to implement that policy strictly.
MAX ALBERTO DIENER SALA ( Mexico) stressed the need for the international community to provide constant support to the Court, as well as the importance of cooperation with that body in the execution of its arrest warrants. The report showed that it faced a lack of cooperation regarding two situations referred by the Security Council. He underlined the urgent need for the Security Council to follow up effectively on such situations. It was also important to allocate enough resources to the Court so it could carry out its work effectively. In addition, Mexico would like to emphasize that while referring situations to the Court, the Security Council should be guided by objective, non-politicized criterion.
TIINA INTELMANN ( Estonia), speaking in her capacity as President of the Assembly of States Parties to the Rome Statute and Estonia’s Ambassador-at-large for the International Criminal Court, said there were eight active situations under the Court’s consideration, many of which were referred by the States concerned. Over the past year, two more countries had referred their situations, expressing confidence in this judicial institution. The steadily increasing membership of States Parties — currently having reached 122 — further demonstrated such confidence. States Parties had been working collectively throughout the year to reinforce their support to the Court in critical areas like cooperation and assistance to victims. The incoming annual session of the Assembly of States Parties in November would provide an excellent opportunity for discussions on matters of concern. In particular, the session would allocate a special segment to discuss some of the concerns voiced by African States.
STEPHEN ZACK ( United States) recalled that President Obama had repeatedly emphasized the importance of preventing mass atrocities and genocide as a core national security interest and a core moral responsibility of his country. Although not a party to the Rome Statute, the United States recognized that the International Criminal Court could play an important role in a multilateral system that aimed to ensure accountability and end impunity. His country would also continue to support positive initiatives by assisting countries in their efforts to develop domestic accountability processes for atrocity crimes. At the international level, the United States would continue to work with the Court to identify practical ways in which “we can work to advance our mutual goals, on a case-by-case basis and consistent with United States policy and laws,” he said. For example, last year, his Government had helped assist in the voluntary surrender to the Court of Bosco Ntaganda, allegedly responsible for atrocities committed in the Democratic Republic of the Congo. The Government had also expanded its war crimes reward list by adding a number of individuals subject to the Court’s arrests warrants, including Joseph Kony in the Uganda situation and Sylvestre Mudacumura in the Democratic Republic of the Congo situation.
GUILHERME DE AGUIAR PATRIOTA ( Brazil) said that the prerogative of the Security Council to refer cases to the International Criminal Court must be used with caution and should avoid double standards and selectivity. He expressed regret that the two referrals to date had been “stained with the notion of ‘selective criminal accountability’”. Further, funding for Court expenses incurred from Council referrals should be provided. The Council’s say on budgetary aspects of referrals usurped the competencies of the Assembly and violated article 17 of the Charter. Noting the need for constructive engagement with African States, he said: “We need to exercise diplomatic wisdom in order to preserve […] the instruments of international criminal justice that we have been building up [while being] sensitive to requests which are legally sound and reflect wide political support.”
JIM MCLAY ( New Zealand) said that national courts had the primary responsibility for the prosecution of international crimes, underscoring the value of alternatives to the formal judicial processes, such as truth and reconciliation commissions. In particular situations, regional courts also made sense, noting his country’s support of the African Court of Human and People’s Rights. Finding a sustainable solution to a particular conflict situation required more than a technical application of criminal law. The Court now faced the strongest challenge in its 10-year existence, he said, emphasizing that the concerns of the African Union and Kenya required careful and serious consideration. Kenya and the African Union had called on the Security Council to defer the Kenya cases. The power of deferral, like the power of referral, should be used with care and restraint, but it should be used in appropriate circumstances. The Court and the Assembly of States Parties should work on addressing those and other concerns.
JOSÉ LUIS CANCELA ( Uruguay) said he hoped the trend of joining the Court continued so its jurisdiction would span the globe. Rejecting the Rome Treaty would be a dangerous step backwards in the rule of law. Uruguay was the first Latin American country to deposit its ratification on the Kampala amendment, a demonstration of its commitment to the Court. The impact of armed conflict and the grave violation of human rights was disturbing. The Security Council should act accordingly. The Council was a political body, but one empowered under the Charter to maintain peace and security. It should be asked to refer the case of Syria to the Court. Permanent Council members should avoid using their veto and support action on the grave violations of human rights. There should also be closer cooperation between the Security Council and the Court.
PAIK JI-AH ( Republic of Korea) said the Court had demonstrated notable achievements and the caseload had increased over the last year. However, before it accomplished its mandate, it needed to, in its constructive role, do a lot more in strengthening the tribunal system. Meeting the mandate’s goals could not be achieved by the Court alone, but needed support from the international community’s ongoing endeavours in the pursuit of justice, the rule of law and sustainable peace. It was absolutely vital for the United Nations and the International Criminal Court to strengthen their relationship and for the Court to garner ample support and cooperation from all Member States. Without full cooperation, the Court could not execute outstanding arrest warrants or conduct thorough investigations for the appropriate prosecutions.
HERNÁN SALINAS BURGOS ( Chile) said a close relationship between the International Criminal Court and the United Nations was vital to the performance of the Court. The linkage between the Security Council and the Court, and specifically the powers of the Council to refer situations or suspend investigations, must be based on consistent, non-arbitrary criteria. As a new member of the Council, Chile would emphasize that point. The Council must also follow up on its referrals to the Court. Special attention must be paid to the refusal of States to cooperate with the Court. It was also important to ensure that the Court had the necessary material and human means and resources that reflected its caseload and the functions it must perform. The principle of complementarity was the cornerstone of the Rome Statute, giving national courts the primary responsibility for investigating, judging and punishing those guilty of the most serious crimes of international concern. The Court must be required to intervene only when the States concerned were unable or unwilling to conduct the relevant proceedings.
VALENTIN ZELLWEGER ( Switzerland) underlined his country’s readiness to openly discuss challenges facing both States Parties and the Court. He noted that Switzerland was open to a constructive dialogue on the functioning of the Rome Statute system at the meeting and at the upcoming Assembly of States Parties in The Hague. He pointed out that 122 States Parties, including 34 from Africa, had voluntarily adhered to the Statute “in this common understanding”. The judicial independence of the Court and the irrelevance of the official position of the accused were absolutely essential for the credibility and proper functioning of the Court. Turning to the issue of Syria, he stated that genuine national proceedings were not taking place, despite the “omnipresent perpetration of massive crimes”. Switzerland and 57 other States had written to the Security Council and called for that matter to be referred to the Court.
KAREL JAN GUSTAAF VAN OOSTEROM ( Netherlands) called for universal adherence to the Rome Statute, including the Kampala amendments. Cooperation and assistance provided by States and non-States Parties, the United Nations, as well as other international and regional organizations, was important for the Court. The Security Council, in particular, had a responsibility to provide political and financial support regarding its referrals of situations to the Court. Voicing his support of referring the situation in Syria to the Court, he said he regretted the continuing disagreement on that issue within the Council. It was also crucial that the concerns raised by the African Union regarding the Court should be addressed at the upcoming Assembly of States Parties through open, constructive dialogue. The Court should step in only if States were not willing or able to handle the crime of genocide, crimes against humanity and war crimes. It was therefore imperative to strengthen the principle of complementarity and enhance States’ capacities to domestically investigate and prosecute those crimes. His country and an ever-increasing number of like-minded States were advocating negotiations on a multilateral treaty that would fill the gaps in the international legal framework for extradition and mutual legal assistance for those crimes.
PENDAPALA A. NAANDA ( Namibia) said that, for the achievement of sustainable peace, there should be no impunity for perpetrators of the most heinous crimes. The International Criminal Court’s complementary role in deterring and prosecuting such crimes could not be overstated. Also, cooperation of States Parties with the Court was critical to its effectiveness and credibility. However, States’ cooperation in effecting arrests mandated by the Court had largely not been forthcoming due to different considerations. On concerns raised by the African Union on the indictments of sitting Heads of State, he stressed the need for greater understanding of their “genuine concerns” that might impact on the prospects of peace and security on the continent.
JEANNE D’ARC BYAJE ( Rwanda) said the Court had been selective in its investigations and had not lived up to its expectations. In addition, the Court’s proponents were ostensibly deaf to the increasingly vocal criticism on its bias towards Africa. “This is not acceptable and Africa will stand up and refuse to be intimidated or bribed into silence and inaction on this matter,” she said. The Court should be seen as a court of last resort and should intervene only when concerned national courts were unable or unwilling. Kenya was both able and willing to prosecute all cases related to the 2007 post-election violence, including those against its president and vice-president. A trial of Kenyan leaders outside their country would undermine sovereignty, stability and peace in that country and neighbouring States. Her country had used its Gacaca Courts after the 1994 genocide and the results could be seen in the harmony Rwandans enjoyed today. “International criminal justice is in a crisis of credibility,” she said. “There is a need to review what we have achieved over the last decades and chart a way forward.”
ZÉNON MUKONGO NGAY ( Democratic Republic of the Congo) said that the 23 March Movement in his country had been created to prevent the arrest of Bosco Ntaganda, who was responsible for many serious crimes and against whom the International Criminal Court had issued an arrest warrant. Two mass graves of victims executed by the Movement had been found in the eastern part of his country. The leaders of the Movement were on the sanction list of the United Nations, the European Union and the United States. Yet, they were protected and harboured by some neighbouring countries. He called on the countries concerned to arrest them and transfer them to the Court. He expressed concerns, also held by many African countries, that the Court had become a political tool to pressure African leaders. He called for the Court to address the issue, pointing out that dialogue between the African Union and the Court would be helpful in that regard. It was also important to implement the principle of complementarity.
HIROSHI ISHIKAWA ( Japan) said that the International Criminal Court played a key role in the maintenance of international peace and security and had enjoyed high credibility. Currently the Asia-Pacific region was the most underrepresented region in the Court’s membership, and Japan encouraged countries in that region to accept that body’s jurisdiction. The non-cooperation issue must be addressed, particularly regarding the execution of the arrests warrants of the Court. The cooperation between the United Nations and the Court was very important. He also commended the work of the Trust Fund for Victims.
EVGENY ZAYGANOV ( Russian Federation) said that his country was committed to the fight against impunity for the most serious crimes. However, he felt that the low level of cooperation of States was not limited to the execution of arrest warrants. For his country, the problems were more systemic and associated with the Rome Statute itself, which unfortunately was not a compromise document and did not reflect the Council's prerogatives adequately. Another issue was the inclusion of the definition of the crime of aggression in the Rome Statute as a result of the Kampala Review Conference, which was adopted without regard to the prerogatives of the Council. He said he hoped that the Court could overcome those challenges it was facing so that it could become universal.
EDUARDO ULIBARRI ( Costa Rica) said his country appreciated the important work of the Court. However, he was disturbed by the recent lack of responsibility of parties under the Rome Statute. Their refusal to implement arrest warrants was problematic. The cases before the Court dealt with crimes against real people and those responsible should be held accountable. The financial situation of the Court was also distressing, and its functions must not be threatened because of a lack of resources.
DAFFA-ALLA ELHAG ALI OSMAN ( Sudan) said the Organization’s credibility was threatened by the action of certain States. The Court’s current practices and political considerations were a clear deviation of its role. There were a number of reservations to the Rome Statute regarding the role of the public Prosecutor. Impunity remained a goal all agreed on, and one that was the goal of national jurisdiction. He rejected the relationship between the Security Council and the Court, noting that the recent Council decision to refer a situation in Darfur had been adopted, but not unanimously. The African Union had asked the Court to defer the case of Sudan’s leader and, more recently, Kenya in a similar request. No African leader should appear before an international court. The Court was targeting Africa and African presidents. The Court was also overlooking heinous crimes committed outside Africa, including crimes against the Palestinian people.
HUANG HUIKANG ( China) said his country supported the cooperation between the United Nations and the Court. As one of the trigger mechanisms for the Court’s jurisdiction, the United Nations, through the Security Council, had the right to refer situations to the Court. However, a national court had the primary role in the trial of international crimes and China was deeply concerned over the controversy over certain African countries handled by the Court. The Court should fully respect the needs and wishes of national courts to handle cases themselves. He said he hoped the Court would ensure that its efforts to safeguard judicial justice be conducive to peace and avoid any negative impacts on the situation of countries and regions concerned. Welcoming the Court’s decision that was issued today postponing the case of President Kenyatta, he said he believed that the concerns of Kenya and the African Union should be addressed properly.
ANDREW KIHURANI ( Kenya) said cooperation with the Court needed to be a “two-way” process that required the Court to extend its cooperation to State parties. The current superficial and wrong interpretation and implementation of the Rome Statues in relation to his country showed little or no accommodation to the concerns of an active, cooperating State party with a rich history of local jurisprudence. That situation best illustrated the application of the Statute in a manner that was highly prejudicial to a member State’s interests and that was consistent with a political agenda rather than a quest for fighting impunity or seeking lasting peace or justice.
He called upon the organs of the Court to take immediate action to ensure their independence. He also called upon the Court to prioritize its resource allocation to ensure that the finite financial resources, human capital and constrained judicial time was directed to areas that warranted urgent intervention and involvement to alleviate human suffering. In the current implementation of the Statute, the international criminal justice system was faced with a unique historical conundrum that needed to be approached constructively. There should be an all-inclusive and carefully calibrated system with clear benchmarks and achievable standards for the Court. It was necessary to prioritize and build on the gains of reconciliation, promote restorative justice and foster national reconciliation rather than focus on meting out raw punishment.
THEMBILE JOYINI ( South Africa) said that the Rome Statute and the Court were an important element in a new system of international law based on the relationship between peace and justice. In that context, he expressed concern about indictments that might derail peace processes, and gave his support to the African Union’s call for the Security Council to adopt a resolution on Kenya. There was no contradiction between South Africa’s support for the Court and its pursuit of peace in Kenya through political means, including through the process provided for in article 16 of the Statute. Peace and justice went together. “We cannot pursue one without regard to the other and we certainly cannot pursue one at the expense of the other. They are two sides of the same coin,” he said.
GILES NORMAN ( Canada) said his country supported efforts to ensure that perpetrators of the most serious crimes of international concern were held accountable. It was the duty of every State to prosecute within their jurisdiction those responsible for serious international crimes. However, if they were unwilling or unable to do so, the international mechanism might fill the gaps and serve as a court of last resort. He also noted the concerns raised by the African Union and several States in relation to the Court’s proceedings, and hoped that the upcoming Assembly of States Parties would provide an opportunity to understand those concerns better. It encouraged all States to abide by their international commitments, adding that it was disturbing that some arrest warrants were not being executed.
Right of Reply
A representative of Syria, in exercise of the right of reply, said the key role in promoting justice was the responsibility of States. He could not accept noble values being used, such as the promotion of justice, to serve political goals. Instead of a consensus on those values, he was witnessing a conflict of interest. Selectivity on the analysis of events in Syria today demonstrated that the responsibility was in the hands of the Syrian Government, without considering crimes committed by armed terrorist groups, including extremists coming from
abroad. The fact that those crimes were not being taken into account represented a problem to the whole international community. Justice must be free from selectivity and from politics. That meant that the world’s eyes could not be closed to war crimes, and those responsible must be held accountable, particularly the countries sending terrorists to Syria. Arms were being provided to those groups to commit terrorist offenses. The practices of those States supporting terrorism were targeting Syria as a State and Syrians as a people.
He said his country was grateful to all those that were guarding the interests of the Syrian people. The only way to protect the Syrian people and take sincere steps to end the violence was to support those efforts that could lead to the success of the upcoming Geneva conference. “We can come to a solution through a dialogue with Syrians,” he said. He also said that bombs made in Switzerland had killed Syrians, and that Switzerland had recognized that.
Responding to his counterpart, a representative of Switzerland said his country had only mentioned the situation in the whole of Syria. Regarding reports that Swiss-made bombs had killed Syrians, he said they were not bombs, but hand grenades. Switzerland regretted the tragic deaths caused by them, but his country had not sent the hand grenades to Syria. Those hand grenades had been sent by other parties into Syria and the Swiss Government had expressed deep regret over that situation.
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