Several Speakers Support Switzerland’s Proposal on Deeming Deliberate Starvation of Civilians as War Crime; Others Express Concern about Court’s Powers
The International Criminal Court exerts the needed pressure against those who “think little of plunging their own people and others into egotistical armed conflicts,” the Court’s President told the General Assembly today as he urged Member States to ratify the Rome Statute to reduce the space for impunity.
“Each ratification adds another brick to the wall that protects humanity from the gravest crimes imaginable,” said Chile Eboe‑Osuji as he introduced the Court’s annual report. The document — which the Assembly would later in the meeting welcome through its adoption of a draft resolution without a vote — summarizes the institution’s activities, accomplishments and challenges from 1 August 2018 to 31 July 2019.
More than 70 Member States are still not party to the Rome Statute, Mr. Eboe‑Osuji pointed out, expressing concern that victims of atrocities committed in territories of non-States parties are “left to languish outside the zone of justice.”
He urged the Security Council to do more to ensure that Libya and Sudan address the Court’s requests relating to the arrest and transfer of suspects who remain at large and provided an update on the Court’s myriad cases. For instance, during the reporting period, Bosco Ntaganda was found guilty on 18 counts of war crimes and crimes against humanity committed in the Democratic Republic of the Congo. Charges of war crimes and crimes against humanity were also confirmed against Al Hassan Ag Abdoul Aziz Mohamed Ag Mahmoud in relation to alleged acts committed in Mali.
The Court’s Pre-Trial Chamber is currently deliberating to render its decision on the confirmation of charges concerning armed violence in the Central African Republic. Further, the Appeals Chamber determined that international law did not recognize any immunity for Omar al-Bashir concerning the failure of the Government of Jordan to execute the arrest warrant issued against the former Sudanese leader. The Court’s Prosecutor also requested judicial authorization to commence an investigation into alleged crimes against the Rohingya people from Myanmar — which is not a State party to the Rome Statute. The matter is currently pending.
On reparative justice work, he said that more than 10,000 victims have been admitted to participate in the Court’s proceedings, representing a major paradigm shift from the ad hoc tribunals for Rwanda and the former Yugoslavia, which were focused almost exclusively on punitive justice. He also strongly urged Member States to make voluntary contributions to the Trust Fund for Victims.
Tijjani Muhammad Bande (Nigeria), President of the General Assembly, called on Member States to seize the opportunity of the seventy-fifth anniversary of the establishment of the United Nations to reflect on what has been achieved and the work that remains in ensuring justice for all. The Court’s mandate is fully in line with the Assembly’s goal of promoting peace and sustainable development, he added.
In the ensuing discussion, Member States expressed support for the Court’s work, calling for strengthening partnerships between the mechanism and the United Nations. Several speakers reiterated the need to find ways to have predictable financing so the Court can properly investigate all the cases brought before it.
Chile’s delegate said her country has the fullest respect for the impartiality of the Court, adding that the judicial institution is exercising its jurisdiction in “sensitive times” and requires the support of the wider international community.
Switzerland’s representative highlighted his country’s proposal — supported by several speakers — to deem the intentional starvation of civilians during armed conflicts not of an international character as a war crime under the Rome Statute. “The amendment would close a legal gap and is urgently needed since nowadays almost all conflicts are internal in nature,” he emphasized.
Some speakers, however, expressed some concerns over the Court’s powers, which the representative of China said should be exercised with prudence. The Pre-Trial Chamber unduly expanded its jurisdiction to the point of blurring the boundaries between States parties and non-States parties, he added, emphasizing that the Court does not appear to have explicit and uniform criteria as to whether to authorize the Prosecutor to investigate a given situation.
Libya’s delegate said that delays in delivering suspects to the Court does not mean that Libya is not cooperating with the international community. Libya wants to stop armed groups and terrorists within its territory, and it is anxious to punish guilty people, but it also must defend its sovereignty, he stressed.
The representative from the Philippines disassociated from the resolution and recalled that her country withdrew from the Rome Statute in March. “Many conveniently forget that the Rome Statute is anchored on the principle of complementarity, not substitution,” she observed.
Myanmar’s delegate said the Court’s opening of a case against his country is illegitimate, adding that the Prosecutor is attempting to override national sovereignty, territorial integrity and non-interference in the affairs of States. Myanmar is not engaged in religious persecution nor deporting a group of people out of the country, he said.
Also speaking today were representatives of the Netherlands, Sweden (on behalf of the Nordic countries), Poland, Slovakia, Argentina, Mexico, Brazil, Japan, Australia, Guatemala, Slovenia, New Zealand, Ukraine, Canada, Cuba, Spain, Romania, Ecuador, Republic of Korea, Costa Rica, Liechtenstein, El Salvador, Cyprus, Georgia, Italy, Venezuela, Ireland, Sierra Leone, Estonia, Bolivia, Greece, Nigeria, Syria, Bangladesh, Peru, United States and Russian Federation, as well as the European Union and State of Palestine.
The General Assembly will meet again at 10 a.m. on Wednesday, 6 November, to discuss the economic, commercial and financial embargo imposed by the United States against Cuba.
TIJJANI MUHAMMAD BANDE (Nigeria), President of the General Assembly, said the promotion of justice and international law has always been fundamental to the Assembly’s work. The activities of the International Criminal Court in fulfilling its mandate are fully in line with the Assembly’s goal of promoting peace and sustainable development. In the lead-up to the seventy-fifth anniversary of the establishment of the United Nations, Member States must seize the opportunity to reflect on what has been achieved and all the work that remains in ensuring justice for all.
Introduction of Report by President of International Criminal Court
CHILE EBOE-OSUJI, President of the International Criminal Court, introducing the Secretary-General’s note containing the Court’s annual report (document A/74/324), urged the Security Council to take action to ensure that the Libyan and Sudanese authorities address the Court’s requests relating to the arrest and transfer of suspects who remain at large. He stressed that each suspect before the Court is afforded a fair hearing in accordance with the strongest guarantees of due process. Turning to two cases, he first noted the case against Bosco Ntaganda, who was found guilty on 18 counts of war crimes and crimes against humanity committed in the Ituri district of the Democratic Republic of the Congo. He then referred to the case against Laurent Gbagbo and Charles Blé Goudé concerning allegations of election violence in Côte d’Ivoire. The Trial Chamber acquitted the two accused following the presentation of the prosecution evidence.
The trial of Dominic Ongwen continues with the presentation of the defence case, he said. The case concerns allegations of crimes committed in northern Uganda. In terms of new cases proceeding to trial, charges of war crimes and crimes against humanity were recently confirmed against Al Hassan Ag Abdoul Aziz Mohamed Ag Mahmoud in relation to alleged acts committed in Timbuktu, Mali. The trial is expected to start next year. The Pre-Trial Chamber is currently deliberating to render its decision on the confirmation of charges against Alfred Yekatom and Patrice-Edouard Ngaïssona concerning armed violence in the Central African Republic.
The Appeals Chamber also issued a judgment on a question of cooperation concerning the failure of Jordan to execute the arrest warrant issued against Omar al-Bashir, he said. In its judgment, the Appeals Chamber determined that in the circumstances of that case, international law did not recognize any immunity for Omar al-Bashir in relation to the Court. During the reporting period, the Prosecutor requested judicial authorization to commence an investigation into alleged crimes against the Rohingya people from Myanmar — which is not a State party to the Rome Statute. That followed a preliminary ruling by Pre-Trial Chamber I that the Court may exercise jurisdiction if at least one element of a crime within the jurisdiction of the Court — or part of such a crime — is committed on the territory of a State party to the Rome Statute.
On Afghanistan, the Pre-Trial Chamber rejected the Prosecutor’s request for authorization to open an investigation into the situation there, he continued. An appeal is currently pending regarding the case. Turning to Gabon, he said that the Prosecutor completed her preliminary examination and concluded that the information available did not provide a reasonable basis to believe that crimes in the Court’s jurisdiction had been committed, and therefore declined to open an investigation. The Office of the Prosecutor has ongoing preliminary examinations into 8 potential situations and ongoing investigations in 11 situations, he noted.
On reparative justice work, he said that more than 10,000 victims have been admitted to participate in the Court’s proceedings. This new focus on reparative justice represents a major paradigm shift from the ad hoc tribunals for Rwanda and the former Yugoslavia, which were focused almost exclusively on punitive justice. The Court’s first judicial orders were on reparation. In the case of Ahmad Al Faqi Al Mahdi, who pleaded guilty to war crimes of destruction of religious monuments in Mali, the judges ordered a range of reparation measures tailored to the circumstances of the case. These included individual compensation to those whose livelihoods depended upon the protected heritage sites. In the case of Germain Katanga, the judges ordered individual monetary compensation as a symbolic measure. Moreover, hundreds of thousands of victims in Uganda and the Democratic Republic of the Congo have benefited from the Trust Fund for Victims. The Trust Fund is also expanding the scope of its assistance mandated to the Central African Republic. He strongly urged all Member States to make voluntary contributions to the Trust Fund in order to support its important work.
“With a permanent International Criminal Court now in place, even the most powerful men can no longer be certain that they will escape unpunished, if they committed against their fellow human the heinous acts that the Rome Statute forbids,” he continued. The Court’s value is particularly evident in the context of elections in Africa, where violence had historically been much too frequently used as a means to gain political power. Since the advent of the Court, there has been a noticeable reduction in the incidence of electoral violence.
There cannot be sustainable development, where conflicts, atrocities and fear reign supreme, he underscored. Preventing conflicts and the atrocities they breed and addressing them purposefully and unapologetically through the rule of law have far-reaching significance for the most critical aspects of human life. “In that way, the International Criminal Court exerts the needed pressure against the mindset of those inclined to think little of plunging their own people and others into egotistical armed conflicts,” he added. However, more than 70 Member States are not party to the Rome Statute. The victims of atrocities committed in territories of non-States parties are left to languish outside the zone of justice created by the Rome Statute system. “Each ratification adds another brick to the wall that protects humanity from the gravest crimes imaginable. Each ratification helps to reduce the space for impunity,” he stressed.
Introduction of Draft Resolution
KAREL JAN GUSTAAF VAN OOSTEROM (Netherlands), associating himself with the European Union and introducing the draft resolution titled “Report of the International Criminal Court” (document A/74/L.8), said that accountability and the fight against impunity are top priorities of Dutch foreign policy. However, the Security Council has failed to enable the Court to hold perpetrators accountable, with Syria being a prime example. In addition, not all States have joined the fight against immunity. While pushing for universality, “we cannot allow non-States parties to block the quest for accountability for the worst international crimes,” he said. The Netherlands favours measures to strengthen the Court through the Assembly of States Parties, by stricter scrutiny of the suitable candidates for the election of judges, and it supports a comprehensive review by independent experts of the Court’s functioning. One practical way to support the Court is through the conclusion of framework agreements on witness relocation, release of persons, and the enforcement of sentences. “We call upon the Security Council to follow up on the situations it has referred to the International Criminal Court and to strengthen cooperation,” he said.
The resolution welcomes the most recent report of the Court and acknowledges its role in a multilateral system that aims to end impunity, promote the rule of law, promote and encourage respect for human rights, achieve sustainable peace and further the development of nations, he continued. “The number of co-sponsors is a clear signal of the importance Members attribute to the yearly report of the International Criminal Court,” he said.
ANNA-KARIN ENESTRÖM (Sweden), speaking on behalf of the Nordic countries (Denmark, Finland, Iceland, Norway and Sweden), said that the Assembly of States Parties and the Court must address challenges swiftly in a way that enhances results and impact. By increasing the number of States parties, the Court will be better able to address the most serious international crimes with greater consistency and impact. “Enhanced cooperation between the Court and the Security Council is still called for,” she said, particularly for cases of non-cooperation with the Court. Following the referrals of the situations in Darfur and Libya, the Court reports that it has communicated to the Council 15 findings of non‑cooperation by States, but the Council has not responded to these communications substantively.
She further noted that the Council has been unable to refer the Syrian situation to the Court and urged Council members to continue efforts in that regard. The Nordic countries will continue to support the work of the International Impartial and Independent Mechanism on Syria and encourage others to do the same. The situation in Myanmar, particularly the reported gross violations of international human-rights law and international humanitarian law in Rakhine State, is a serious concern, as are the findings of the United Nations Fact-Finding Mission on Myanmar. A referral by the Council to the Court remains the best means for achieving accountability in that country. She concluded by saying that the Nordic countries have consistently supported the Trust Fund for Victims and appreciate its work in assisting victims of sexual and gender-based crimes, and she encouraged States and other entities to also support it. For the Court to be able to carry out its mission efficiently, it also needs to be properly funded, she said, calling for sufficient resources at a time of increasing demand for its services.
ERIC CHABOUREAU, speaking on behalf of the European Union, said that the Court promotes a world order based on rules and plays a crucial role in the quest to achieve lasting peace, as well as playing an important deterrent role. The geographic scope of the Court’s actions during the period covered in the report show that most States continue to support its unique role in the international arena. For the Court to remain on top of its workload, it is imperative that it evolve and adapt to new situations. The European Union supports all efforts to streamline the Court and make it more efficient. Expressing concern that arrests and the turning in of people who have outstanding warrants remain a problem, he urged States to cooperate with the Court through the rapid execution of warrants, among other things. The Union agrees with the Court that the Security Council has unique powers to promote responsibility, and a rigorous follow-up by the Council when it receives cases referred by the Court is needed. Universal ratification of the Rome Statute remains a long-term goal of the European Union. The Union will continue to affirm its support of the Court and provide it with political, financial and technical assistance.
MICHAL WECKOWICZ (Poland), associating himself with the European Union, said that his country remains a steadfast supporter of the Court as part of the rules‑based international order. The Court’s functioning calls for advanced streamlining and Poland looks forward to learning the outcomes of the recently launched Court evaluation mechanisms and proposed improvements. The proper filling of judge and prosecutor positions is paramount to the success of the Court. The Court is operating in a complex international environment and has to arrive at difficult decisions, weighing the need to combat impunity and the actual feasibility of trying specific perpetrators. Here again, the role and great responsibility of the Court prosecutor must come to the forefront. Achieving the promise of justice is a continuing process that requires effort from the Court and the States parties. The Court itself does not have the resources necessary to ensure compliance with its arrest warrants. Therefore, the Court must continuously strengthen the trust of States, as their support is a precondition for the Court’s effective work.
METOD ŠPAČEK (Slovakia), aligning himself with the European Union, said the fact that nearly 14,000 victims participated in cases before the Court during the reporting period shows the Court’s relevance for specific situations. The Court can fulfil its mission of ending impunity for the perpetrators of war crimes, crimes against humanity, genocide and the crime of aggression only if it achieves universality. There is a natural symbiosis between the Court and the United Nations. The possibility of referrals, according to article 13, paragraph (b) of the Rome Statute, has broadened the spectrum of measures the Council can use to maintain international peace and security. Slovakia encourages the Council to use this unique tool and make referrals, when international crimes are being committed and national authorities bearing the primary responsibility for the prosecution of those crimes are not in a position to do so. Yet unless the Council properly follows up on its referrals, including ensuring the cooperation of Member States, this course of action will not produce the desired results, as has been witnessed both in the Sudan/Darfur and Libya situations.
MARTÍN GARCÍA MORITÁN (Argentina) expressed hope that the draft resolution on the Court’s report will be adopted by consensus. The Court has done a great deal of work since its last report, demonstrating its fundamental role in promoting the rule of law. Argentina was the first State party to conclude all four cooperation agreements and it has ratified the Kampala Amendments on the Crime of Aggression. In choosing the staff of the court, it is crucial to find good candidates and ensure gender balance and adequate regional representation. The relationship between the United Nations and the Court remains crucial. Expressing concern about the financial cost posed by Council referrals to the Court, he said that such costs should be paid by the United Nations. Fighting against impunity remains a goal of the States Parties to the Rome Statute. Failing to provide adequate resources to the Court could negatively impact the United Nations reputation, he said, also pointing to the important role of Council subsidiary bodies such as Sanctions Committees and the Working Group on Children and Armed Conflict.
JUAN RAMÓN DE LA FUENTE RAMIREZ (Mexico) said it has been a year of new challenges for the Court and States parties, both in terms of institutional issues and practice. Electing the next Prosecutor will require adequate attention from all Member States. He welcomed Switzerland’s initiative to amend the Rome Statute in order to deem the intentional starvation of civilians a war crime in armed conflict, both international and otherwise. Welcoming the rapid execution of arrest warrants, he commended the inclusion in the Court’s report of specific action to strengthen the international criminal-justice system. “We value the interaction of the Court with other bodies of the international system,” he said, adding that the United Nations has the structure in place to promote the rule of law and human rights. “These types of agreements prevent duplication,” he said.
PHILIP FOX-DRUMMOND GOUGH (Brazil), saying that the Court’s report clearly indicates its current heavy workload, noted that since its establishment 20 years ago, the Court has opened 27 cases involving 45 suspects or accused and conducted investigations into 11 situations. Brazil welcomes the fact that the two new arrest warrants were promptly enforced, and that the suspects were transferred to the Court’s custody. This is a positive example of the successful application of Rome Statute norms on cooperation. Another encouraging development relates to the work of the Trust Fund, whose reparations mandate is instrumental to promoting victims’ rights to justice. All States parties have the responsibility to continuously work for the improvement of the Rome Statute system, addressing challenges particularly relating to universality. He recalled that all South American countries are parties to the Rome Statute, and that Latin American and Caribbean States represent the second-largest group among States parties, only behind the African Group. Reiterating Brazil’s concern regarding the financing of Security Council referrals to the Court, he said that costs should be met, at least partially, by funds provided by the United Nations and not fall solely on the parties to the Rome Statute. It is also imperative that any review process preserves the Court’s prosecutorial and judicial independence.
YASUHISA KAWAMURA (Japan) reiterated his country’s commitment to fight impunity and promote the rule of law. In addition to being the Court’s largest financial contributor, Japan is dedicated to supporting the Court as a Bureau member as well as through qualified human resources. Stressing the importance of Court reform and Japan’s commitment to be actively engaged in that matter, he urged States parties to remain involved in constructive discussions about strengthening the Court, and its universality, steadiness and complementarity. He further emphasized the need to take a step-by-step approach to win the cooperation of a greater number of States, pointing out that the Court is a relatively young organization. In that sense, hastily seeking achievement would jeopardize the efforts to fight against impunity, he noted, stressing the importance of steady progress. On complementarity, he said that the existence of the Court does not lessen the importance of national jurisdiction in the prosecution of serious crimes.
CARY SCOTT-KEMMIS (Australia), reflecting on the conviction of Bosco Ntaganda for 18 counts of crimes against humanity and war crimes as well as the transfer to custody of the accused Alfred Yekatom and Patrice-Edouard Ngaïssona, following the issuance of arrest warrants for alleged war crimes and crimes against humanity in the Democratic Republic of the Congo, welcomed the reform process to strengthen the Court’s ability to deliver on its mandate. A close focus on delivering in the Court’s core mandate — through the conduct of fair and expeditious trial proceedings — is essential, he said, calling on the United Nations system to ensure the Court receives full and consistent support. Pointing to the critical role consistent, impartial justice plays in the international community’s response to the trauma wrought by conflict, he underscored the importance of making the Court a key partner of the United Nations. At their core, the Court and the United Nations are striving for the same goals; one of the primary purposes of the United Nations Charter — the maintenance of international peace and security — aligns with the Rome Statute.
EDGAR DANIEL LEAL MATTA (Guatemala) noted that since its inception, the Court has opened 27 cases and conducted investigations into 11 situations. However, 20 years after the Rome Statute was formed, it is worth asking what the international community has done to prevent crimes against humanity. Guatemala is committed to fighting impunity and appreciates the cooperation between the United Nations and the Court. The country supports strengthening national systems to investigate and try individuals guilty of atrocities, complementing the Court’s work. Cooperation between the Court and the Security Council also must be enhanced, he said, so they can work together to combat impunity. Cooperation is one of the structural pillars underlying the international community. Cooperation and assistance from the United Nations and States is crucial to the Court carrying out its duties. Guatemala calls for greater efforts towards universality, encouraging non-States parties to join the current 122 States that have ratified or acceded to the Rome Statute, he said.
DARJA BAVDAŽ KURET (Slovenia), associating herself with the European Union, said that the Court and the Security Council must enhance efforts to build an effective relationship that can focus on closing the impunity gap and holding those most responsible to account. “A partnership between the two institutions enhances their credibility,” she added, expressing regret that the Philippines withdrew from the Court and that Malaysia decided to withdraw its instrument of accession to the Rome Statute. “Slovenia believes that starvation in the case of an armed conflict not of an international character should be listed as a war crime in article 8 [of the Rome Statute],” she added. While it is vital to have a strong Court, it is also important for national courts to play their part. Turning to the Mutual Legal Assistance initiative, she said that her country together with Argentina, Belgium, the Netherlands, Mongolia and Senegal are proposing creation of an international convention on mutual legal assistance and extradition for the domestic prosecution of the most serious international crimes.
MOHAMED A. M. NFATI (Libya) said that, to combat impunity, the Rome Statute has a modern approach and supports the principle of complementarity between national and international systems of justice. The Court is a last resort in the quest for justice and accountability for people accused of the gravest crimes, and that is why Libya has cooperated with the judicial body. However, Libya emphasizes that it protects its national sovereignty in dealing with crimes committed in its territory. He said that his country is aware of the delays in delivering suspects to the Court, but that such delays don’t mean that Libya is not cooperating with the international community. Rather, delays occur because of national security issues. In Libya, several people have been accused, and others have been tried, and the world must respect national jurisdiction. He stressed that his country’s system is ensuring the rule of law and that this can be seen by the international community as a genuine attempt for a State to emerge from a difficult situation. The international community must support Libya so that it can play its role in promoting global peace and security. His Government wants to stop armed groups and terrorists within Libyan territory; it is anxious to punish guilty people but must defend the country’s sovereignty. The Libya justice system is independent, and the country is now stabilizing.
GABRIELLE RUSH (New Zealand) stressed the Court’s crucial role, welcoming its invaluable contribution to the system of international accountability mechanisms. The Court and its Statute have established a new paradigm in international criminal justice, which has made accountability for atrocity crimes an integral aspect of the rule of law. Calling the Court an independent court of last resort to try these crimes – and recalling the principle of complementarity - she underscored the importance of domestic courts and judicial processes. New Zealand welcomes that the Court and States parties are exploring prospects of reform, which would empower the Court to best deliver accountability and appropriate oversight, she said, urging all States parties to strengthen the core function of the Court by implementing practical measures to ensure that the Court’s bench is best equipped to exercise its role.
IGOR BONDIUK (Ukraine), aligning himself with the European Union, said his country firmly believes in this Court of last resort, and on 17 April 2014 it lodged a declaration under article 12(3) of the Rome Statute, accepting the Court’s jurisdiction over crimes committed on its territory from 21 November 2013 to 22 February 2014. On 8 September 2015, the Government lodged a second declaration under article 12(3) of the Statute, accepting the Court’s jurisdiction in relation to crimes committed on its territory from 20 February 2014, since the beginning of the Russian military aggression against Ukraine. These declarations have been made for an indefinite duration. Thus the Court will be able to extend its jurisdiction over such crimes regardless of the nationality of persons who have committed them, even if they were citizens of third States. His Government continues to submit additional information to the Court and cooperates with the Office of the Prosecutor regarding preliminary examination, both through consultations at the Court and during its missions to Ukraine, the most recent in June of this year. The Ukraine appreciates the Office of the Prosecutor’s work and looks forward to the Court report on preliminary examination activities in 2019.
LOUISE BLAIS (Canada) said that her country is concerned about impunity in Myanmar, welcoming the Court’s examination of alleged crimes against humanity committed against the Rohingya people. However, Canada recognizes the inherent limitations presented by the need for the Court to stay within this jurisdiction and calls for the Council to refer the situation in Myanmar to the Court. Structured dialogue between the Court and the Council could improve the implementation of the Council’s referral resolution and enhance the fight against impunity, she said. Canada also welcomes ongoing discussions to find ways to strengthen the Court, and supports efforts striving for increased diversity and gender balance within the Court and ensuring the best allocation of resources to carry out its mission. In addition, universal ratification of the Rome Statute is crucial to the Court’s success. “We must continue to seek universality of the Rome Statute as our first priority,” she said. Canada echoes the deep concern expressed by the Court that requests for arrest and surrender of 15 individuals remain outstanding. The country welcomes the prompt enforcement of the two new arrest warrants issued by the Court during the past year, for alleged war crimes and crimes against humanity committed in 2013 and 2014 in the Central African Republic, and the transfer of both individuals into the Court’s custody.
ANET PINO RIVERO (Cuba) said that the broad powers granted to the Security Council under article 16 of the Rome Statute place it as an independent institution, distorting the body’s jurisdiction and violating the principle of the independence of jurisdictional bodies. In Council referral processes to the Court, international law is constantly violated, and developing countries are attacked in the name of a fight against impunity, she said. As such, Cuba favours the establishment of an impartial, non-selective, effective and fair Court complementary to national justice systems. Moreover, the Court cannot ignore international treaties and principles of international law, she said, expressing serious concern about the precedent set by its decision to initiate judicial proceedings against nationals of States not parties to the Rome Statute. Cuba is willing to continue to participate actively in the negotiation processes related to this institution, she reported, expressing concern about attempts to breach the relationship agreement in terms of the Court’s relationship with the Council.
LIU YANG (China) said that there have been mounting misgivings at the international level about the Court’s authority and credibility. Major concerns of some States parties were not effectively addressed, and the way the Court dealt with the rule on immunity of State officials from foreign criminal jurisdictions sparked controversy, with a good number of States believing that the General Assembly should request an advisory opinion from the International Court of Justice on this matter. The International Criminal Court’s Pre-Trial Chamber unduly expanded its jurisdiction to the point of blurring the boundaries between States parties and non-States parties, and the Court does not appear to have explicit, uniform conditions and criteria as to whether to authorize the Prosecutor to investigate a given situation. A judge accepted her appointment as her country’s ambassador while still being involved in case trials. This should not have happened in the first place in an international judicial body whose reason for existence is none other than independence and impartiality. China deems it necessary for the Court to address its inadequacies and wishes to see it exercising its powers with prudence.
CARLOS JIMÉNEZ PIERNAS (Spain), associating himself with the European Union, noted that the Court faces many challenges, including the launching of a technical review process by independent observers. This will improve its effectiveness and efficiency in terms of governance and the work of the Office of the Prosecutor. While enjoying firm, critical support of a growing group of States, including Spain, the Court faces threats against its Prosecutor. Such attacks are unacceptable and seek to inhibit investigative freedom. The main goal of Member States should be to protect the Court so it can operate unhindered. Member States have also seen how certain States have shied away from cooperating with the Court, even in cases when the Court is acting at the Security Council’s request. The world must rectify this situation and ensure that it doesn’t continue. In recent years, bilateral agreements have been signed with the Court, to include issues not part of the Rome Statute. Spain is currently in discussions with the Court about two cooperation agreements, one of which is a judicial agreement that will make it possible for the Court to have a fluent, efficient relationship with Spain’s judiciary system. Stating that Spain is a proud contributor to the Trust Fund, which has helped more than 400,000 victims, he said that voluntary contributions to the Fund are essential. A new Court election is approaching, and candidates should have expert technical knowledge above all other issues.
KIRA CHRISTIANNE DANGANAN AZUCENA (Philippines), disassociating her Government from the resolution, said that the Philippines withdrew from the Rome Statute on 17 March 2019, a decision based on its principled stand against those who politicize human rights. Her country’s independent and well-functioning organs and agencies continue to exercise jurisdiction over charges arising from the Philippines’ efforts to protect its people. Despite the withdrawal from the Court, her country has national legislation to punish atrocity crimes. “Many conveniently forget that the Rome Statute is anchored on the principle of complementarity, not substitution,” she pointed out. It recognizes that States have the first responsibility and right to prosecute international crimes, and that the Court may only exercise jurisdiction where national legal systems fail or are unable to do so. Indeed, a member of a terrorist group was convicted by a court for violations of international humanitarian law, effectively enforcing domestic laws, she added.
HAU DO SUAN (Myanmar) said that his delegation’s participation in the debate should not be construed as either Myanmar’s recognition of the Court or the Court’s jurisdiction over Myanmar, which is not a party to the Rome Statute. The Court Prosecutor’s opening of a case against Myanmar was illegitimate, he said, adding that his country strongly rejects the Court’s 6 September 2018 ruling. “The ruling itself is the result of faulty procedure and of dubious legal merit,” he said. “It is obvious that the Prosecutor clearly disregarded legal merits and the Myanmar Government’s determination and efforts to resolve the present humanitarian problems of Rakhine State, particularly on the repatriation of the displaced people.” The Prosecutor is attempting to override national sovereignty, territorial integrity and non-interference in the affairs of States; she contravened the principles enshrined in the United Nations Charter and built up the case with “politically motivated intent and emotional self-interest.” The Prosecutor’s request for investigation excludes the crimes committed by the Arakan Rohingya Salvation Army against the Hindus and other ethnic people in Rakhine, deliberately omitting this Army’s actions precipitating the mass displacement, he said.
Myanmar is not engaged in religious persecution nor deporting a group of people out of the country, he continued. What’s happening is an issue of cross-border migration, exacerbated by poverty, lack of rule and security. Myanmar’s Government established a commission to solve the problem and has faced attacks from the Arakan Rohingya Salvation Army. The Government of Myanmar is cooperating with Bangladesh, the United Nations Development Programme (UNDP) and others for voluntary repatriation of displaced people. More than 400 people have returned freely and “any verified bona fide former residents” are welcome to return, he said. “My delegation strongly rejects unlawful call for referrals of Myanmar” to the Court by some Member States, particularly by Canada. He concluded by disassociating itself with the adoption of the draft resolution A/74/L.8.
ION I. JINGA (Romania) said the Court’s heavy workload and the extended geographical scope of its activity testify to the international community’s support for its role in ensuring a rules-based global order. However, there is a widening gap between the Court’s founding aspirations and some of its results, which make it vulnerable to attacks and undermines its authority. “In the current volatile political context, with populism and xenophobia on the rise, we cannot afford to grow new doubts and question the relevance of this institution,” he said. “It is time to strengthen the Court to ensure its effectiveness and legitimacy.” Against this backdrop, he noted the ongoing efforts to review the Court’s judicial and managerial functions and called for enhanced cooperation between States parties and the Court in order to address the impunity gap for the most serious crimes. While international crimes generate political hurdles, a culture of the rule of law, accountability and trust cannot be developed if egregious crimes are left unaddressed. He went on to call for an improvement of the nomination and election processes for judges and the Prosecutor, and to encourage the widest possible participation in the Rome Statute.
LUIS XAVIER OÑA GARCÉS (Ecuador), whose country co-sponsored the resolution introduced by the Netherlands, said that defending the rule of law is an essential component of preventing conflicts and battling impunity. The world must move towards a universal system of justice that prohibits crimes against humanity. These crimes can be tried if there is universal accession to the Court. Ecuador is grateful for the Court Prosecutor, who is looking into several important cases. He said his country instituted penalties for crimes against humanity and genocide into its laws and offers no amnesty for them. Complementarianism is an essential component of the Court’s work, he continued, underscoring that the Court is meant to complement national systems of justice, not replace them. He added that the Trust Fund’s work is vital, providing recompense to victims of injustice around the world. All Member States should cooperate with warrants of arrest delivered by the Court, swiftly bringing to trial any suspects.
MARIANA DURNEY (Chile) said that despite the limited resources available to the Court, the Office of the Prosecutor has been able to carry out extensive work. “Chile has always been in favour of a robust Court,” she said, adding that the ultimate objective is to alleviate the suffering of people. Chile reiterates its call on all States to cooperate with investigations and actively contribute to helping the Court tackle its myriad challenges. Chile has the fullest respect for the impartiality of the Court, adding that the judicial institution is exercising its jurisdiction in “sensitive times” and requires the support of the wider international community. States parties must exercise their jurisdictive responsibilities. The “legal goods” that the Rome Statute seeks to safeguard are the same principles enshrined in the United Nations Charter. She noted with appreciation the support the Court has provided Chile in its development of national law and underscored the critical role of the Court’s Trust Fund for Victims. She also reiterated concern about the two States that recently withdrew from the Rome Statute.
JÜRG LAUBER (Switzerland) said that with crimes still being committed worldwide and States not fighting impunity for the most serious crimes vigorously enough, the Court is more needed than ever. Switzerland regrets that the Court has been attacked politically on a regular basis. The independent expert review of the Court that should be launched shortly is needed to ensure its success, he said. It is also important to ensure that the Court is able to address current forms of criminality. Ratifying the previous amendments in relation to war crimes and the crime of aggression is key. He highlighted Switzerland’s proposal to amend the Rome Statute to deem the starving of civilians in internal armed conflict as a war crime. “The amendment would close a legal gap and is urgently needed since nowadays almost all conflicts are internal in nature,” he said.
CHULL-JOO PARK (Republic of Korea) said that as an international court, the International Criminal Court cannot sustain itself without active cooperation from multiple stakeholders, especially States parties, at each step. The Republic of Korea believes that the ongoing discussion of the review of the Court should mainly be State party-driven, in close cooperation with the Court and related entities. In addition, wider participation of States in the Rome Statute would lead to stronger support for the Court. The Republic of Korea, together with Australia, co-hosted an ambassadorial-level event in June for the universality of the Rome Statute in the Pacific region with the participation of the President of the Assembly of State Parties, O-Gon Kwon. The Republic of Korea looks forward to leadership and dedicated efforts in the consultation process for the election of a qualified Court Prosecutor, he said.
CHRISTIAN GUILLERMET-FERNANDEZ (Costa Rica), associating himself with the statement to be delivered by Liechtenstein, said 2019 has been a trying year for the Court, whose officials have been subjected to criticism. “We all agreed that the Court filled a void in the international criminal-justice architecture,” he said, calling on Member States to take stock of whether the Court has remained true to its initial goal set out 20 years ago. “This is the right time for an assessment,” he added, underscoring that the Court’s review should be carried out objectively. For the sake of transparency, the process of the review must take into account the voices of non-governmental organizations and civil society. He stressed his country’s “absolute support” to the Court as it works to guarantee compliance with international law. When the Court’s jurisdiction is activated, States parties must cooperate in investigations, execute arrest warrants and ensure justice. Costa Rica has strengthened the link between its national judicial mechanisms and the Court as well, he added.
CHRISTIAN WENAWESER (Liechtenstein) noted that the Court is active in 21 countries in all regions and can have an enormous impact simply by the sheer reach of its jurisdiction. However, he added that the sad reality is “very often we do not care enough, at least not in a manner that manifests itself through collective action.” Even when facing crimes that threaten international peace and security, the Security Council has failed to make use of its competence to refer situations to the Court. He noted that such a referral on Syria was vetoed five years ago, and regarding Myanmar and Yemen, it was not even discussed, let alone formally proposed. Even the referrals the Council has made, on Darfur and Libya, were not backed up by political support and have had very little impact. Noting the Court is an institution under attack, he said it has survived adversity before and can do so again with genuine political backing by a majority of Member States. However, even a significantly improved Court cannot take on every impunity crisis.
Also speaking for Austria, Belgium, Costa Rica, Cyprus, Czech Republic, Estonia, Finland, Iceland, Luxembourg, Portugal, Slovenia, Sweden and Switzerland, he said the delegations had joined consensus on the resolution because they strongly believe in the Court’s work. However, he pointed out a significant deficiency in the text, as resolutions adopted should always include technical and factual updates. He highlighted several major international law developments “sadly omitted from this resolution”, including historic activation of the Court’s jurisdiction over the crime of aggression and adoption of amendments adding three new war crimes to the Rome Statute. That progress illustrates the value of the Rome Statute system, and the omissions from this year’s resolution are significant, he stated.
EGRISELDA ARACELY GONZÁLEZ LÓPEZ (El Salvador) said that her delegation supports the Court’s mandate and appreciates its functioning despite a heavy workload at all levels. The Court plays a key role in the Rome Statute system, she said, helping end impunity for the most serious crimes in the international community. The country welcomes the Trust Fund’s enhanced role, and supports the campaign known as crimes against humanity. El Salvador has taken steps to ratify the Court’s instruments and reiterates its deep commitment to the work of the Court. It urges those States that haven’t yet ratified the Rome Statute to continue studying it and eventually ratify it.
POLLY IOANNOU (Cyprus), endorsing the statement by the European Union, outlined the significant progress made by the Court since its establishment, including investigations into 11 situations, and three cases reaching the reparations stage. She touched on recent developments, such as the historic activation of jurisdiction over the crime of aggression. She supported the proposed amendment to the Rome Statute, which will seek to allow prosecutions in relation to the intentional starvation of civilians in non-international armed conflict, as there is a “gap in ensuring accountability for this atrocity crime”. Turning to accountability, she said that if the endeavour to embed international justice in a comprehensive accountability framework that administers justice and deters the commission of egregious crimes remains elusive, “the existing jurisdictional and impunity gap resulting from the lack of universality is not an excuse.” The Statute has made the necessary institutional link with the existing collective security system, opening up the possibility of the Security Council referring a case to the Court when the exercise of its jurisdiction is not otherwise possible.
KAHA IMNADZE (Georgia), aligning himself with the European Union, said that strengthening cooperation with the Court is key to ending impunity for perpetrators of the most egregious crimes threatening international peace and security. Adding that the Court’s role is to complement rather than replace existing national judicial systems, he said the primary responsibility to investigate and prosecute crimes remains with individual States. To that end, Georgia has harmonized relevant domestic legislation with the Rome Statute, enacted a stand-alone law to establish a flexible legal regime and concluded special cooperation agreements to facilitate the investigation process. In January 2019, his country concluded an Agreement on the Enforcement of Sentences with the Court, by which persons the international judicial body convicts may serve their prison terms in Georgia.
MARIA ANGELA ZAPPIA (Italy) said the annual report proves that the Court is a solid institution that is making progress on a number of situations and cases. Italy supports any steps undertaken in cooperation with the Court to improve its efficiency and effectiveness, while avoiding encroachment upon the Court’s independence. The international community must work together through capacity-building, technical assistance and other forms of cooperation, including judicial cooperation. This will enable domestic jurisdictions to discharge their primary function of bringing justice to victims of the most heinous crimes. Completion of the International Law Commission’s work on crimes against humanity is an important step in this direction, and Italy will cooperate constructively with a view to transforming the draft articles into a convention, as well as with all international efforts aimed at facilitating horizontal judicial cooperation.
JHON GUERRA SANSONETTI (Venezuela) said his country was one of the first to sign and ratify the Rome Statute. Cooperation is one of the fundamental pillars of the functioning of the Court, he said, encouraging States to cooperate with the Court when it comes to arresting suspects, among other things. Venezuela believes that international justice must be apolitical, transparent and non-selective, rejecting the opening by the Prosecutor of a case against Venezuela by countries who have admitted they wish to overthrow its Government. The country reaffirms its commitment to collaborating with the Prosecutor so that she may observe Venezuela’s system of law. This group of countries accusing Venezuela of things “should be quiet” given that they themselves engage in intimidation and aggression. The United States is using its powers to apply sanctions against others.
JAMES KINGSTON (Ireland), associating himself with the European Union, said the range of issues dealt with by the Court over the reporting period shows the many challenges the Court continues to face. The Trust Fund’s work is critical in responding to the needs of victims who have experienced the horrors of atrocity crimes. Ireland will make a further contribution to the Fund this year and encourages others to do the same. Increased cooperation and coordination between the Council and the Court would significantly contribute to the international community’s response to crimes against humanity, he continued. The Council has the power to refer situations to the Court, and Ireland believes that this power should be used consistently. “We support strongly the political declaration on suspension of veto powers in cases of mass atrocity, and the accountability, coherence and transparency group’s code of conduct regarding Security Council action against genocide, crimes against humanity and war crimes,” he said. Ireland seeks election as a non-permanent Council member for the 2021-2022 term and, if elected, will work to encourage the Council to support the Court’s work.
MICHAEL IMRAN KANU (Sierra Leone) welcomed the jurisprudential development concerning the Appeals Chamber judgment on the question of cooperation, which, while not universally accepted, brings a measure of legal clarity to bear on a difficult question. He hoped the Court-wide strategic plan would drive the process to close the impunity gap. He reaffirmed his country’s commitment to the Court’s work and to its complementary role within the Rome Statute system, which is why his country has co-sponsored draft resolution A/74/L.8. The recent history of his country illustrates the role of accountability as a fundamental building block for the consolidation of peace and the pursuit of economic and social development, he said, calling for more States and non-States parties to participate in the events held during the reporting period for Sustainable Development Goal 16. The Court and the Rome Statute system are not against any actor, but rather the Court acts for the victims on the basis of complementarity, he said.
MERJE MÄGI (Estonia), associating herself with the European Union, said that the Court’s annual report gives an honest overview of its heavy workload regarding the situations under investigation by the Prosecutor, as well as ongoing preliminary examinations and trials. The number of cases before the Court demonstrate that wide trust is placed in it, which is a testimony to its good work. However, the increasing workload creates challenges for the Court to remain efficient and effective. She welcomed concrete initiatives taken by the Court in reviewing and streamlining its administrative and judicial processes and maximizing the use of available resources. She encouraged all States parties to fulfil their financial obligations with regard to the Court, noting that they should also continue efforts to strengthen the institution and enhance its efficiency and effectiveness.
SACHA SERGIO LLORENTTY SOLÍZ (Bolivia) noted the progress made by the Court in its cases and in strengthening the international criminal-justice system. The discovery of truth through collective evidence and testimony is a complex process that requires the international community’s full support. He called for greater cooperation and follow-up from the Security Council. Twenty years since the adoption of the Rome Statute, the Court continues to demonstrate that it can take up complex cases. It is important that the Court be part of a global undertaking that involves all States, he said. Bolivia has been participating in the review of the Court’s work, which is essential to reflect on experiences. “We will continue to closely follow the review and follow the recommendations made,” he said. This is a process that will require not only the support and cooperation of States parties but the wider international community as well.
MARIA TELALIAN (Greece), associating herself with the European Union, said that the Court needs to become universal. While the Rome Statute has enjoyed broad success, large parts of the world remain outside the Court’s jurisdictional reach, with almost one-third of United Nations Member States not yet joining its Statute. She called upon those States that have not yet ratified the Statute to do so immediately. She also shared the concerns expressed in the report about the outstanding arrest warrants against 15 individuals. Greece regrets that 15 findings of non-cooperation in connection with the referrals by the Security Council have not yet been answered. The country reiterates its call for a structured dialogue between the Court and the Security Council.
SAMSON SUNDAY ITEGBOJE (Nigeria), recalling that his country is being examined by the Court regarding eight potential cases, pledged full cooperation with the Court’s efforts to unravel the facts of those proceedings. Nigeria has demonstrated that it is capable and willing to arrest, investigate, prosecute and convict perpetrators of heinous crimes, he continued, reporting that several meetings have been held between Nigerian Government officials and the team from the Office of the Prosecutor of the Court wherein questions were answered and classified documents submitted. Nigeria has made progress degrading and decimating Boko Haram terrorists and is collaborating with the United Nations and other international partners to improve service delivery and enhance protection measures in areas where civilians seek refuge, he said. Turning to the issue of cross-border corruption, he said Nigeria aims to explore the possibility of subsuming such corruption within the ambit of article 5 (1) to make it a crime under the Rome Statute.
AMMAR AL ARSAN (Syria), disassociating himself from the resolution, rejected the injudicious treatment of Syria by some Member States, who enlarge the Court’s judicial mandate in an illegitimate way. Syria was among the first States to contribute effectively to negotiations leading to the Rome Statute, and among the first to sign. However, his country now finds itself before a body that confronts weaker States yet is unable to confront States with much economic and military influence. The latest Secretary-General’s report has shown that the Court, for more than 30 years, has been unable to practice its jurisdiction in many cases. He rejected calls by some States for an expansion of the Court’s mandates, when those same States don’t reveal that their Governments have signed bilateral agreements to secure themselves immunity from the Court. Syria further rejects attempts to refer the situation in his country to the Court. The political process in Syria will advance despite all obstacles. The Government will deal with issues of justice and accountability through national Syrian legal and judicial bodies, not with a body headquartered in Geneva, which gathered evidence without respect to the so-called chain of custody for evidence, he said.
Any information or so-called evidence that the so-called International Impartial and Independent Mechanism analyses cannot be the basis of any legal or judicial processes in the future, particularly because the mandate of it is unlimited, he said. Syria does not recognize the Mechanism because it is an abhorrent body, he said, noting that some delegations are trying to involve the United Nations in financing this illegitimate body from the Organization’s budget. There are tens of thousands of foreign terrorists in Syria from more than 100 States, including thousands of Europeans, whose States refuse to repatriate them and are trying to abdicate their national responsibilities to try and rehabilitate them. These Governments should shoulder their responsibilities. If they don’t, their legal and political hypocrisy will be very clear, he said.
MASUD BIN MOMEN (Bangladesh) said that while his country appreciates the Court’s numerous initiatives to ensure equitable geographical representation and gender balance in the recruitment of its staff, it wishes to underscore the need to give due consideration to the participation of developing countries. More than 1 million Rohingya were forced to leave Myanmar due to the atrocities committed against them. “We believe accountability and justice for the crimes committed against them would serve as a critical confidence-building measure for their safe, voluntary and sustainable return,” he added. It is unfortunate that Myanmar continues to refuse the Court’s ruling. This is an attempt to deny the well‑documented atrocities and the resulting deportation of Rohingya. “It cannot be seen as a jurisdictional issue or something related to the persona of the Prosecutor; it is something larger, something fundamental to upholding the global legal order,” he added.
PAUL DUCLOS (Peru) said that his country is committed to strengthening a rules-based order and to tackling threats to international peace and security. Access to justice and accountability are essential to these objectives. Serious violators of international human-rights law and international humanitarian law must be held accountable. Peru has called on the Court to investigate crimes against humanity in Venezuela and continues to encourage a close relationship between the Security Council and the Court. He noted with regret that there has been no consistency or method to the referral aspect of the Court. “We must correct this,” he added, reiterating the need to find ways to have predictable financing so the Court can properly investigate all the cases brought before it. Peru has learned through its own experience that implementation of accountability mechanisms is the best way to achieve sustainable peace.
MAJED S. F. BAMYA, observer for the State of Palestine, noting that the Court was established to help end impunity, deliver justice to victims and prevent recurring crimes, said there are those who want to take the world back to a time where there was no international court to judge perpetrators of war crimes, crimes against humanity, genocide and the crime of aggression. He expressed deep concern that after five years of preliminary examination in the State of Palestine, investigations have yet to be opened, despite the overwhelming information available about ongoing crimes that require immediate attention, not delays. “We have joined the Court informed by our experience of the cost of impunity,” he said. The Court has a primary responsibility not to States Parties, but to victims everywhere. The State of Palestine will continue supporting the Court in delivering on that sacred mandate.
Action on Draft Resolution
The Assembly then adopted the draft resolution titled “Report of the International Criminal Court” (document A/74/L.8) without a vote.
The representative of the United States, in explanation of his country’s vote, said that the United States has historically been and will continue to be a strong supporter of meaningful accountability and justice for victims of atrocity through appropriate mechanisms. Perpetrators of atrocity crimes must face justice, but the international community must also be careful to recognize “the right tools” for this. He reiterated the United States’ “continuing and long-standing principled objection” to the Court’s assertion over States that are not parties to the Rome Statute. He rejected the Court’s jurisdiction over non-States parties such as the United States and Israel. He reiterated the United States’ serious and fundamental concerns with the Prosecutor’s proposed investigation of United States personnel in Afghanistan. The United States disassociates itself from the resolution.
The representative of the Russian Federation, explaining her country’s vote, expressed disappointment that the resolution is being only technically updated. The world is well aware of the situation in Libya, but, she asked, in what way have the Court’s actions helped that country emerge from crisis? In addition, the wording of the Court’s 6 May 2019 decision, according to which a Head of State does not have immunity before an international body, runs contrary to customary law. She said that in a verdict delivered on 12 April 2019, the Court declared to the international community that in certain cases the pursuit of justice can be rejected if it is not in the so-called interest of justice or because of budgetary limitations. However, neither budgetary limitations nor dubious cooperation projects have prohibited the Court from expanding its mandate, to include such situations as the deportation of the Rohingya. She said that the Court is demonstrating all the shortcomings of international justice without compensating them with any virtues.
She continued by saying that the Court is being used by some States as an instrument of political manipulation to cover up crimes they have committed. The allegations by Ukraine are only political propaganda. The Russian Federation hopes that Ukraine’s cooperation with the Court includes cooperation on crimes committed by its armed forces against the peaceful population in southern Ukraine, and the burning of people in the union hall in Odessa in 2014. Regarding Georgia’s statements, she proposed focusing that country’s courts on crimes committed by the Saakashvili regime. The Assembly resolution doesn’t take into account reality. Given this, her delegation cannot support the text and disassociates itself from it.
Right of Reply
The representative of Georgia said that the Court authorized the Prosecutor to proceed on the situation in Georgia that broke out as a result of the Russian Federation’s aggression. He called on the Russian Federation to cooperate with the Prosecutor’s Office in efforts relating to that investigation.