It was with great pleasure that I accepted the invitation to open the Third Annual Helsinki Seminar on International Criminal Law – a topic as actual today as three years ago.
Your first seminar took place a few weeks before the deposition of the 60th instrument of ratification of the Rome Statute of the International Criminal Court, marking its prompt entry into force. The second seminar, last year, coincided with the solemn inauguration of the ICC. In late December, 2003 President Yoweri Museveni of Uganda referred the situation concerning the Lord´s Resistance Army to the Court. The Prosecutor then determined that there was a sufficient basis to start planning for the first investigation of the ICC. Last week he announced that also the crimes committed on 21 February in Barlonuya Camp in Northern Eastern Uganda would be investigated.
Without commenting on the Court´s judicial activities in any detail, I would like to note that the atrocities committed during the protracted internal conflict in Uganda represent the kind of situations for which the Court was established. The announcement concerning the Barlonya Camp, coming two days after the event, proves what we have said before about the great advantage of the International Criminal Court compared with its predecessors, that it is readily available when the need arises.
An obvious point of departure for this seminar, entitled “The Mosaic”, is the first paragraph of the preamble to the Rome Statute which speaks poetically of the common bonds that unite all peoples and underlines the universality of human rights and fundamental freedoms.
While the paragraph expresses concern that this “delicate mosaic” could be shattered at any time by unspeakable atrocities, it also reflects confidence in the potential of international criminal law and its effective enforcement to contribute to peace and justice, and thus to further unification of mankind. This message of universality is a recurrent theme in the Rome Statute which addresses only crimes that are deemed to be of concern to the international community as a whole.
Commitment to human rights and equality before the law being at the heart of the European (post-Second World War) judicial tradition, it is no wonder that Europe, as a region, is a strong supporter of the ICC. All Member States of the European Union and nearly all of the acceding states have ratified the Rome Statute. The principles of the Statute are fully in line with the principles and objectives of the Union: consolidation of the rule of law and respect for human rights, preservation of peace, and strengthening of international security.
Through a common position and a related action plan the EU Member States are committed to promoting and supporting the effective functioning of the Court. Now that the Court is operational, the EU has confirmed that the Member States, in accordance with their obligations under the Rome Statute, stand willing to afford whatever assistance is required by the Prosecutor in his investigation of reported atrocities in Northern Uganda.
The support and assistance from the EU may at present be of prominent importance to the Court, but it would be mistaken to see the ICC as a European project – an institution “claiming the authority to make leaders around the world answer to European notions of justice in a European courtroom” as one writer put it recently. We recognize that the Court will only reach its full potential if it becomes truly universal.
It is also useful to remember that the initiative for the establishment of an International Criminal Court originally came from Trinidad and Tobago. The International Law Commission was tasked to elaborate a draft statute of such a court by a unanimous decision of the UN General Assembly. The negotiations on the establishment of the Court were exceptionally broad-based. The Statute combines contributions from 160 States that participated in the Rome Conference – including extensive contributions from some of the states that at the end of the conference voted against the adoption of the Statute or abstained.
The steady growth of support for the Court – 139 signatures and 92 states parties – bodes well for the future. The EU spares no effort to promote the widest possible participation in the statute as well as effective cooperation with the Court. In this pursuit, the EU works together with other interested States, international institutions, and non-governmental organizations.
At the same time, universality remains a challenge. The concerns of those states that are not yet in the position to support the Court need to be taken seriously. As the President of the ICC, judge Philippe Kirsch has noted, some of those concerns may reflect a confusion that results from the very success of the Court. He refers to the short time-frame of seven years in which the negotiations on the Statute were concluded and the number of 60 ratifications was reached. Such a speed is rare for any multilateral treaty, let alone for one of the complexity of the Rome Statute.
The diplomatic success story was greatly facilitated by an active participation from the non-governmental organizations and other representatives of the civil society. Those who fear the politicisation of the ICC and complain about the lack of any external control of the Court seem to have confused the process with the end result. While the process was a political one, the Court is an independent judicial institution and should remain so.
Political discretion or outside intervention in the prosecutorial or judicial activities of the Court is neither foreseen in the Statute nor desirable. There are, however, several in-built safeguards to prevent that the Court could be used to pursue political agendas aimed at embarrassing a target state.
Such safeguards include notably the accountability of the prosecutor to a superior body, the Pre-Trial Chamber. The powers of the Pre-Trial Chamber effectively curtail the action and initiative of the Prosecutor´s Office. Furthermore, the very limited number of crimes that the Court may consider also serves to prevent frivolous trials. So does the complementary nature of the Court which is reflected in the obligation of the Court to defer on request to national courts.
An ultimate instance of control is the Assembly of States parties which has broader powers than States parties´meetings in general. For instance, the Assembly is able to dismiss a Prosecutor or a judge if grounds for such a measure exist.
The special powers of the UN Security Council under article 16 of the Statute to require the Court to refrain from taking a case are meant to be used in the rare occasions where interests of justice may conflict with those of peace. The way this article has been invoked by the Security Council in relation to the UN peacekeepers is an unfortunate example of misreading of the Statute. The ICC is not a threat to states with effective criminal justice systems. And it is certainly not a threat to international peace and security. As for the states whose judicial systems face overwhelming problems, the ICC can at best offer them a helping hand, as the example of Uganda shows.
The Court, and the States Parties, need to overcome a deep psychological and political distrust that has so far prevented important countries from supporting the Court. Such support may be well gained, over the years, if there is enough evidence that the Court is not politicised, that it will preserve its independence and integrity, that the judges will act in a responsible manner, that prosecutorial consideration will be used wisely and that the rules and standards of fair trial will be respected.
The ICC is an example of a development that some have called ”the legalization of international relations”. While that particular term may be too ambitious, it is appropriate to speak of a gradual strengthening of the rule of law in international relations. International criminal law has been in the forefront of such a development.
But we have no illusions that it should be a smooth evolution. Some of the prevailing attitudes rather let us expect an uphill battle. The Secretary-General of the UN, in his Millennium Report, emphasizes the expansion of the rule of law as the foundation of much of the social progress achieved in the past. He also, very rightly, points out that much remains to be done to effectively establish the rule of law in international relations.
One of the most worrying developments is the resurgence of the concept of a just war – the idea that different rules should apply to those who fight for a right cause. This line of thinking does not only tend to result in an increase of the use of force, it also blurs the basic principles of international humanitarian law. As was emphasized by the 28th Conference of the Red Cross and Red Crescent last December, no State, group or individual should be above the law or beyond the reach of the law.
To be effective, international law must apply equally to all States. While exceptions to commonly agreed norms may serve short-term national interests of States in some situations, they risk to create uncertainty and undermine the legal standards on which multilateral cooperation relies.
I wish every success to your seminar and hope that the great advances in the field of international criminal law will continue.
