THE HUMANITARIAN DIMENSIONS OF THE ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT

PRESENTATION AT THE INTERNATIONAL SEMINAR
"THE INTERNATIONAL CRIMINAL COURT AND THE BRAZILIAN CONSTITUTION"

By HANSJOERG STROHMEYER ­
UNITED NATIONS OFFICE FOR THE COORDINATION OF HUMANITARIAN AFFAIRS

BRASÍLIA, 30 SEPTEMBER 1999

Excellencies,

Distinguished Justices and Professors,

Ladies and Gentlemen,

I would like to thank Minister Mosimann and the Center for Judiciary Studies for convening this important event.  The Intemational Seminar on the International Criminal Court and the Brazilian Constitution underlines, once again, the outstanding role that Brazil has played in support of the adoption of the Statute for an Intemational Criminal Court. On behalf of the United Nations Under-Secretary-General for Humanitarian Affairs, Mr.  Sergio Vieira de Mello, and my department, the Office for the Coordination of Humanitarian Affairs, I would also like to thank you for giving me the opportunity to highlight the humanitarian dimensions of the establishment of the Intemational Criminal Court (ICC).

On 17 July 1998, the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, adopted, with the strong support of the representatives of Brazil, the Rome Statute of the International Criminal Court[1], by a vote of 120 to seven.

Since then, the train towards making the Court operational has moved ahead unstoppably.  To date, 87 States have signed the Statute and 4 States[2] have ratified it.

And, many other countries, just like Brazil, have initiated the necessary legal and political steps towards ratification of the Statute, which will eventually bring us to the 60 ratifications that are necessary for the Statute to enter into force.

The Secretary-General of the United Nations, Mr. Kofi Annan, has, on many occasions, emphasized the importance of the establishment of an Intenational Criminal Court for bringing to justice those responsible for the commission of the most heinous crimes such as genocide, war crimes and crimes against humanity.  He has stated that the adoption of the Rome Statute "was a gift of hope to future generations and a giant step forward in the march towards universal human rights and the rule of law. lt is therefore a fitting way to inaugurate the new millennium[3] .”

The operation of a functioning, effective and financially solid ICC is of particular concern to the humanitarian community.  Daily, humanitarian agencies throughout the world are directly faced with a lack of respect for basic rights and the results caused thereby to the welfare of civilian populations[4]. In addition to being the victims of crossfire, which is an unfortunate but often inevitable byproduct of war, civilians have, in recent years, become the primary targets of today's conflicts.  Belligerents around the world increasingly avoid direct confrontation with enemy forces; instead, they realize their military strategies by terrorizing, torturing, killing, and expelling defenseless civilians.  The notion of "ethnic cleansing", first witnessed in Bosnia, has turned into a household phrase.  The mutilations committed in Sierra Leone, where thousands of people are left without their limbs, has become an all to familiar phenomenon.  Many of these crimes involve acts by children who have been forcefully recruited by militias and are denied the right of any education or the prospects of a livable future.

Over the past decade alone - in the conflicts in Bosnia, Rwanda, Angola, Sierra Leone, Kongo, Afghanistan, Colombia, Algeria, Kosovo and now again in East Timor - this shocking disregard for human life and universally accepted human values has caused many millions of civilian deaths.  In addition, it has led to the displacement of over 30 million people[5], many of them within their own countries and without the prospect of ever returning to their homes.

In the face of such numbers impunity for the perpetrators is not acceptable to us.

1999 has been a year of many notable anniversaries: the 10^th Anniversary of the Intemational Convention on the Rights of the Child, the 30^th Anniversary of the American Convention on Human Rights, the 50^th Anniversary of the 1949 Geneva Conventions, as well as the 100^th Anniversary of the 1899 Hague Conventions on the Law of War.  And still, in all of the above-mentioned conflicts, these and other norms of international law have been blatantly ignored or willfully disrespected.

With the adoption of the Rome Statute of the ICC, the intemational community has demonstrated that it is no longer acceptable to tolerate this discrepancy between standards and actual practice.  Indeed, the creation of an independent and permanent International Criminal Court was a global acknowledgement of the fact that intemational humanitarian and human rights law is not only binding in Rwanda or on the territory of the former Yugoslavia, but throughout the world.  States have accepted the compulsory application of international criminal law to themselves[6], and taken on joint responsibility for its worldwide enforcement.  And as the Secretary-General of the United Nations reminded us, during the 55^th Session of the Commission on Human Rights and, more recently, in his address before the 54^th Session of the General Assembly, the protection of the human rights and fundamental freedoms enshrined in the Universal Declaration takes precedence over concerns of state sovereignty.  In his words, "No government has the right to hide behind national sovereignty in order to violate the human rights or fundamental freedoms of its people”[7].

The ICC embodies this doctrine, which is so forcefully emerging at the end of this war-torn century. lt represents the conviction that it is the duty of all states, both through their national systems of justice and through an effective International Criminal Court[8], to hold accountable those responsible for grave violations of intemational humanitarian and human rights law.  In the past, atrocities have, too often, gone unpunished -- not due to an absence of national or intemational norms prohibiting such heinous acts, but due to the inability or unwillingness of national courts to act.  The International Criminal Court will provide an indispensable law enforcement mechanism in cases where national justice systems fail to ensure prosecution.  The law must be seen to be enforceable, everywhere, if respect for the rules established over the past century are not to vanish.  What is needed is consistent enforcement of the existing legal framework - not more law.  An independent and effective ICC will be an important step in this respect, and will help to replace the culture of impunity with a culture of compliance.

The establishment of a Prosecutor, with the power to initiate investigations proprio motu (or "ex officio"), on the basis of relevant information received by any source, is an important institutional safeguard of this independence and presents a significant achievement of the Rome Statute[9]. The Prosecutor acts independently from the national interest goveming the law enforcement policy of states or the primarily political considerations within the Security Council, controlled, however, by a Pre-Trial Chamber and confined by the general rules of complementarity.

The ICC will not, of course, serve as a substitute for national courts, when the latter are able and willing to fulfil their responsibilities under national or international law. lt will be complementary[10]  to existing court structures at the national level and only exercise its jurisdiction when states fail to carry out the duty to bring to justice those responsible for the commission of the most egregious crimes.  The more national judicial systems live up to their primary responsibility to prosecute and try the perpetrators of such crimes, the less the ICC will have to intervene.  But this requires that states adopt and implement national legislation enabling them to prosecute individuals who have committed acts of genocide, war crimes or crimes against humanity, or to hand over such persons for trial by another state with jurisdiction over those crimes.

In the aftermath of a conflict, states will, in many cases, prefer to prosecute and try the perpetrators of acts of violence and atrocities in their domestic institutions, as a means of bringing about justice and reconciliation in their societies.  In those states, however, which are unable to prosecute perpetrators because their legitirnate institutions have ceased to function ("failed states"), or in which a ruling political class or the majority population is unwilling to prosecute the perpetrators, the community of states has accepted that it has a responsibility to step in, through the ICC, to enforce the universally accepted rules of international law and justice, and, at the same time, to satisfy the legitimate demands of the victims of conflict and violence.

In this way, the Court would act as a “guardian” of the notion that international humanitarian and human rights law should be enforced consistently, universally and equally.  The very existence of the court would act as a catalyst to inspire national legal and judicial systems to comply with the demands of international humanitarian and human rights law.  Prosecution and trial by the ICC would, ideally, become the exception rather than the rule.

Human security goes to the core of the United Nations system and the values upon which it is based. And as pointed out by the UN Secretary-General in his recent Report to the Security Council on the Protection of Civilians in Armed Conflict[11], there is an intrinsic link between systematic and widespread violations of the rights of civilians and the erosion of intemational peace and security. Where entire populations are expelled into neighboring countries, or where entire ethnic groups are subjected to systematic eradication campaigns, respect for and enforcement of international law becomes a matter of global concern.

In many such situations, a swift response is required.  In recent months, a passionate debate has taken place regarding the need for outside military intervention to address those situations that generate the gravest breaches of international humanitarian or human rights law.  Widely overlooked in this debate, however, is the fact that an operational and effective ICC would, in and of itself, provide a mechanism for a "judicial intervention"[12] by the Security Council.  This mechanism would be of particular value in those situations where the requirements of conflict resolution call for the timely establishment of international jurisdiction over an ongoing and large scale commission of atrocities, but the jurisdictional regime under Article 12 of the Statute[13]  is overly complex and time intensive.

By ratifying the Rome Statute, States Parties accept that the Security Council, acting under Chapter VII of the Charter of the United Nations, may refer to the Court a “situation in which one or more of such crimes appear to have been committed”[14]. In doing so, the Security Council would establish the jurisdictional primacy of the ICC visa-vis the relevant national judicial systems[15] . For the purposes of this trigger mechanism, the ICC's role would thus serve the function of a "standing" ad hoc tribunal, ready to complement peacekeeping or peace-building efforts in any Member State of the United Nations[16].

Such a referral would not require that the territorial state or the state of nationality of the accused have accepted the Court's jurisdiction, since the Security Council's competence to invoke the jurisdiction of the ICC ultimately derives from the UN Charter and not from the Rome Statute[17]. That is why experts predict that referrals by the Security Council could become the most effective means of submitting those responsible for grave crimes of international concern to the ICC's jurisdiction[18].  The ICC would become an important instrument in maintaining intemational peace and securíty and would allow the Security Council to live up to its responsibility to protect civilian populations in armed conflicts.

A strong and effective ICC would also act as a deterrent to genocide, war crimes and crimes against humanity.  The adoption of the Rome Statute demonstrates the growing trend toward the use of intemational law as an instrument in the international community's efforts to deter violence, to manage crises, and to facilitate truth and reconciliation, even years after crimes are committed.  The recent indictment by the International Criminal Tribunal for the territory of the former Yugoslavia (ICTY) of Yugoslav President Slobodan Milosevic, the arrest of General Pinochet in the United Kingdom, upon the request of Spanish judicial authorities, and the trial o f Hungarian border police before the Supreme Court in Hungary for crimes against humanity[19], more than 40 years after the crime, are prominent expressions of this trend.  The threat of criminal prosecution and punishment by national or international authorities has become real.  The political or military resolution of a conflict does not erase individual responsibility for serious crimes.

In establishing the ICC, the international community has served notice to future would-be transgressors that it will no longer tolerate impunity for the perpetrators of atrocities.  Even if, in the future, the ICC is not capable of trying each and every individual act of violence, the mere existence of an effective Court will act as a global deterrent to such crimes.  The implementation and enforcement of international norms by national systems and the responsible application of the principle of universal jurisdiction will further increase this effect. lf it becomes the widely exercised practice, rather than a theoretical option, to hold the perpetrators of grave violations of international law accountable, future governmental and military actors could shy away from violence against civilians as an acceptable means of warfare. Moreover, once indicted by the ICC, the orchestrators of violence would be politically isolated and would find no comfort from the international community.

Finally, it needs to be stressed that the adoption of the Rome Statute has already advanced international law and thereby improved the standards for the protection of civilians -- the most vulnerable segment of the population during armed conflicts.

Because of the defmitions and general principles it enshrines, the Rome Statute is of great importance even before it enters into effect.  Its provisions reflect the prevailing law and can serve as an example to help States implement the Rome Statute in their own legislation[20]. In this regard, it is significant that the Rome Statute contains, for the first time, a long and detailed list of the various manifestations of two types of crime: crimes against humanity and war crines, both in international and intemal armed conflicts.  Where Genocide is concerned, the Rome Statute uses the definitions formulated in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

lt is also noteworthy that the Statute extends the Court's jurisdiction to serious crimes committed in the context of armed conflicts not of an intemational character[21] which constitute the majority of today's armed conflicts, establishes rape and other forms of sexual violence as a war crime[22], penalizes the conscription of children under the age of 15 into armed forces or groups[23], and enhances the protection of humanitarian personnel by recognizing attacks against them as war crimes[24]

In conclusion, the above considerations show that there is a need for a supranational justice - a justice that prevails over the political interests of individual states, and does not exclusively rely on the exercise of the Security Council's powers under Chapter VII of the United Nations Charter.  Our world is a mosaic of different cultures, traditions and value systems, but not one piece of this mosaic can afford to neglect the responsibility to provide a system ofjustice capable of protecting fundamental rights and freedoms.  By bringing to justice the perpetrators of the worst crimes, wherever and in whatever circumstances they are committed, the Court will sound the unequivocal warning that complaisant impunity will not be tolerated.  Only a permanent court with global jurisdiction can fmally lay to rest the charge that the international community is selective or applies double standards in deciding which crimes to investigate and punish[25].

To adopt the Rome Statute for an International Criminal Court was an enormous and historical achievement.  To make it operational is a moral and humanitarian imperative.