”Building a
Culture of Accountability – Action
Against Impunity in the External Relations of the European Union”
Ladies and Gentlemen, I am very pleased and honoured
to open this seminar which the Ministry for Foreign Affairs is organising
together with Amnesty International of Finland. This seminar is one of the
highlights of Finland’s EU Presidency, when it comes to the promotion of a
rule-based international order, and it underlines our support for the common effort
to fight impunity. We strongly believe that the perpetrators of genocide,
crimes against humanity and war crimes, must not go unpunished.
It can no longer be considered acceptable that those
guilty of the most serious crimes would simply receive amnesty as a part of
national reconciliation or that their crimes would be buried and forgotten in
the archives.
The ”truth commission” as a means to settle
the guilt may tend to skirt the issue of accountability with the help of
politically guided judgement with differing opinions and interpretations
although it has proved useful in some cases. A more rigorous version of
distributing justice after long and bloody wars had in the recent history been
provided by trials such as those in Nuremberg and Tokyo in the aftermath of the
Second World War. But no matter how strict the rules of procedure and how
carefully defined the rights of the accused might have then been, the guarantees
of impartiality in those trials would not have filled the present criteria of
impartiality as an element in building up properly international
accountability.
The demand of international accountability has been
growing especially in the last fifteen years when the whole world has been
shocked by reports about large scale atrocities in several parts of the world
extending from Cambodia to the Western Balkans and to Africa. The international
community has been awakened to demand universally applied rules to punish those
who are guilty. The preference for legal processes vs. political processes is
clear. The world opinion has matured for universal and permanent solutions,
which would mean building up new institutions in order to prevent these crimes
from happening again in the future. There should be a legal system which would
have a similar preventive function on the international level as the courts and
criminal law have had on the national level.
The first international criminal courts were
established by the UN Security Council on the basis of Chapter 7 of the
Charter, to secure international peace and security. The International Criminal
Tribunal of the Former Yugoslavia, ICTY, was established 1993, the
International Criminal Tribunal of Rwanda 1994 and the Special Court of Sierra
Leone in 2000. Unlike the ICTY and ICTR, the Special Court of Sierra Leone was
established by an agreement between the UN and the Government of Sierra Leone.
Their jurisdiction which is limited in time and area
has a primacy in comparison with the local courts and the governments have an
obligation to cooperate with them and to carry out their requests. In fact,
these obligations have not been fully honoured in every case and this has
revealed the tribunals’ inherent weakness that they have no enforcing machinery
if the cooperation by the local government is lacking.
Among these ad hoc tribunals the ICTY has had the
longest history and by far the greatest number of cases. It has indicted 161
persons and completed the process in 94 cases. By comparison, the ICTR has had
52 indictments and the Special Court of Sierra Leone, which has been
operational for just two years, has had 13 indictments.
The ICTY has been essential in establishing the
historical record of the bloodiest conflict in Europe since WW II and bringing
justice in the region. It has been able to indict and to convict many of the
leaders who are accused of the most serious crimes. Most importantly, the ICTY
has been a central institution to specify the individual guilt of the highest
leaders, so that whole nations or ethnic groups could be cleared against unfair
accusations.
The completion strategy of ICTY aims at finishing all
the trials in 2008 and other activities in 2010.
It seems now that the deadline of 2008 will have to be
extended at least to 2009. The task is still unfinished to the extent that 6 of
the accused are still at large among them the most important persons who are
accused of genocide, the gravest of crimes, General Ratko Mladic and President
Radovan Karadzic. The term conditionality has been often used to describe the
dependence of progress in the negotiations on the Stabilisation and Association
Agreement with progress in completing the mandate of the ICTY.
Full cooperation with the ICTY is one of the
preconditions of the European Union for the countries of the Western Balkans to
advance their European perspective. Finland fully supports this policy. It is
because of this conditionality that the EU called off the negotiations on the
Stabilisation and Association Agreement with Serbia last May. We now await
progress in Serbia’s cooperation with the Tribunal in line with the Action Plan
presented by Serbia in July.
The success of the effort of clearing whole nations´
reputation by individualising guilt of the atrocities in the former
Yugoslavia’s bloody civil war to the real perpetrators is at stake, if the
accused persons can continue to avoid justice. Assignment of the responsibility
would dispel the view that certain nations or ethnic groups should forever
carry the burden of their leader’s crimes.
In the completion strategy of the ICTY there are other
difficult questions besides the arrest of the 6 remaining fugitives, and
especially among them Mladic and Karadzic. The other parts of the strategy also
demand a lot of attention, whether they are complicated procedural issues, like
joining the accused in groups and making the Tribunals processes as efficient
as possible or conceptual changes like transferring some cases to the national
courts.
The Western Balkans will become an example of how the
fight against impunity can be continued, when the mandate of an ad hoc tribunal
runs out. The primary responsibility will be transferred to national courts.
The ICTY has already started to refer cases concerning lower and middle level
accused persons to these courts. Meanwhile, the State Court of Bosnia and
Herzegovina has already in 2005 opened its war crimes chamber to take up these
cases. The build up of local capacity through training of judges and prosecutors
is taking place also in Croatia, Serbia and Montenegro. At this moment there
have been 8 accused, whose cases have been transferred to domestic
jurisdictions of the former Yugoslavia, 2 of them to Croatia and 6 to Bosnia
and Herzegovina. The rest of the cases being currently processed in ICTY
concern most senior leaders who are responsible for the most serious crimes
and, by definition, cannot be transferred to other courts.
The role of the local courts in fighting impunity is
more difficult in the cases that belong to the jurisdiction of the ad hoc
Tribunals, which usually have the primary jurisdiction in their area and also
have the obligation to focus on the most serious crimes and the highest
perpetrators. Referring cases by the Tribunal to the national courts might be
done easily, especially if the accused persons are political leaders still
enjoying large support. Referring those cases, however, would be contrary to
the purpose why the Tribunal has been established in the first place.
The national legal systems do have a very important
role to play, in the normal situation in the states where no Tribunal exists.
National courts have the primary jurisdiction also in genocides, crimes against
humanity and war crimes. Only in the cases where the local courts are either
unable or unwilling to act, can the International Criminal Court, ICC, start
investigations. The ICC jurisdiction however is restricted to crimes committed
after the Statute of Rome entered into force, the first of July 2002 and so,
would not apply to the on-going processes in the Western Balkans.
Ad hoc international tribunals cannot be the answer in
the long run to all crimes against humanity or genocides or war crimes. As a
rule, on the international level, fight against impunity will be carried on by
the International Criminal Court, ICC which has a broader jurisdiction, a
permanent mandate and is independent from political expediencies.
The ICC is a young institution, its statute entered
into force in July 2002 when 60 countries, Finland and all the other EU member
states among them, had ratified its statute. The EU had committed itself to the
creation of the ICC from the very outset and considers it a historical
achievement which remarkably strengthened international justice. From the
beginning, the EU member states have remained the Court’s strongest supporters
and are contributing about three quarters of its budget. The EU member states
are also actively promoting its universality and campaigning for new
ratifications. In this regard there is still a lot of work to do to make the
Court truly universal. For the time being the Court has 102 States Parties and
some 40 signatories, who haven’t yet ratified the Rome Statute.
The ICC has been hampered in its pursuit to achieve
universal membership by fears of its independence which is greater than that of
any other international criminal court. The ICC is independent even from the
UN, though it is closely linked to it and the Security Council can refer cases
to the Court and even defer prosecution of a case for 12 months at a time. This
independence of the court from the political institutions, which is a common
rule on the national level, has aroused concern in some parts of the
international community. In this regard it is a great achievement, that of the
162 states, which participated in the negotiations of the Statute of Rome, the
basic charter of the ICC, as many as 139 signed it and by now, four years
later, 102 have ratified it and become States Parties.
The countries still hesitating to become members are a
diverse group by their size and political orientation. The most powerful among
them, the USA, first signed the Statute and then declared the signature not
valid by a new administration. At that time, the EU declared, that according to
their opinion, the concerns of the USA about the future activities of the ICC
are groundless and that the Statute of Rome gives all the necessary guarantees
against the misuse of the Court for political purposes. EU declared that it was
convinced that this will become evident, when the Court will start its
activities.
The hesitations of some of the Signatory States and
the active opposition of the USA seem to have had a chilling effect on some
other countries as well. There are very important countries especially in Asia,
which have not hurried to become States Parties. In that respect, encouraging
signs have appeared that the Court might have an important increase in its
membership in Asia already in 2007. It was also noted as a positive development
that when the UN Security Council decided to refer the case of Darfur to the
ICC the USA did not use the veto it would have had as a permanent member.
The USA has during these four years of the Court’s
history created a large network of bilateral non-surrender agreements. The USA
considers these to be in conformity with the art. 98:2 of the Statute, where
bilateral agreements of that kind are an exception of the general obligation to
cooperate with the Court. This is a juridical question, where there is support
also for the opinion, that the abovementioned articla concerns such agreements
only, if they are made before the Court was established. According to this
opinion, agreements which are made after that are contrary to the purpose of
the Statute and as such not allowed for a member state according to the Vienna
Convention on the Law of the Treaties, art. 18.
Be it as it may, at this point in time, there are
already some 100 such agreements and among the not-yet ratified signatories of
the Statute it is estimated that about half of them have already made such an
agreement.
The EU and the ICC signed a cooperation agreement this
April, among other things, to ease exchange of information and documents. The
activities under this agreement are still under practical preparations mostly
because of strict security rules on both sides. A cooperation agreement is also
being negotiated between the Court and the African Union.
The EU has a Common Position 2003/444/CFSP from the
16th of June 2003 and an Action Plan in furtherance of the Common Position. The
Action Plan established the EU Focal Point and the National Focal Points and a
sub-group of COJUR called COJUR/ICC to carry out this plan.
The Action Plan also concerns promoting universality
and defending integrity of the Rome Statute by, among other means, dialogue,
demarches and cooperation with the NGO:s. Among the concrete measure The Action
Plan says, that the ICC should be mainstreamed in the EU external relations and
that the ratification and implementation of the Rome Statute should be brought
up as a human rights issue in the negotiation of EU agreements with third
countries as well as summits and other high-level meetings with third
countries.
The EU Common Position also establishes that Member
States will contribute to the finalisation of the work under way on the
definition of the crime of aggression, which was left open when the Statute
entered into force.
The definition of the crime of aggression will be one
of the main issues in the Court’s future Review Conferences, the first of which
will be organised in 2009 or 2010. A Special Working Group on the Crime of
Aggression which is a subsidiary body of the Assembly of the States Parties has
been meeting in inter-sessional meetings since 2004 trying to agree on the
definition. Actually the crime of aggression is already within the Courts
jurisdiction, just like genocide, crimes against humanity and war crimes but it
has not been defined and accordingly not used as a starting point for investigation.
The President of the Court Mr. Philippe Kirsch has described the legal
complexities in an interview by stating that the crime of aggression is
considered the supreme crime, without which many other crimes against humanity
would never be committed. According to Kirsch ”there would first need to
be a determination, that a State has committed aggression…the organ that
normally has the competence to determine an act of aggression by a State
against another is the Security Council of the UN. But the Security Council,
when dealing with particular situations, has rarely determined that there was
an aggression…. For example in the case when Iraq intervened in Kuwait, the
Security Council did not determine there was an act of aggression”.
The ICC has during the four years of its activities
already established itself. It has four situations referred to it in Uganda,
Democratic Republic of the Congo, Central African Republic and Darfur the
Sudan. Investigations have been started in all others but not in Central
African Republic. The case in Darfur is interesting, because it was referred to
the court by the Security Council of the UN unlike the others which were
referred by the States Parties.
There have been arrest warrants in Uganda, five
leaders of the Lord’s Resistance Army, including Joseph Kony, and one arrest
warrant in the Democratic Republic of the Congo, Thomas Lubanga Dyilo who was
surrendered to the Court by the government authorities. Kony and other leaders
of the LRA are still at large and the peace negotiations between the government
of the DR of the Congo and the LRA are centred largely on the question of
possible surrendering of Kony to the ICC.
The question, whether to surrender Joseph Kony to the
ICC or not, has been raised by the government of the DR of the Congo which also
initially had requested his arrest warrant. Reactions from EU member states
have been very clearly supportive of the view that the warrant should stand and
the indicted should face justice. Also the ICC Prosecutors office has said that
there is no hurry to cancel the warrant. The Government of Uganda has publicly
stated, however, that Kony will not be surrendered to the ICC, if his
non-surrendering will be a precondition that peace can be achieved.
Including the abovementioned cases, the Court’s
Prosecutor has already three cases under formal investigations and is carrying
out analyses of five situations on four continents. The Court has issued five
international arrest warrants and already has one accused under arrest. These
figures do not reveal the enormous amount of work done in investigations in the
situation countries, where hundreds of potential witnesses are interviewed,
sometimes in very hazardous conditions in the war-torn areas.
All this activity around the Court is a proof that it
is becoming one of the supporting pillars of the international justice and is
ready to contribute in the search for peace and promotion of the rule of law
and democracy.
Today we will be hearing eminent experts tell about
their experiences of fighting against impunity and building up a culture of
accountability. They will be describing all the three strands of this fight;
the role of the ad hoc tribunal ICTY, the national legal systems and the
International Criminal Court.
I wish you active and fruitful discussions.
