SEMINAR ON INTERNATIONAL CRIMINAL JUSTICE: THE

UNCLAS USUN NEW YORK 000539 SIPDIS E.O. 12958: N/A TAGS: PGOV PREL KAWC UNSC XA SUBJECT: SEMINAR ON INTERNATIONAL CRIMINAL JUSTICE: THE ROLE OF THE INTERNATIONAL CRIMINAL COURT ¶1. (Begin summary.) On May 19, the Slovenian Permanent Representative, Ambassador Sanja Stiglic, convened a seminar entitled "International Criminal Justice: The Role of the International Criminal Court." International Criminal Court (ICC) President Song, ICC Assembly of State Parties President Ambassador Christian Wenaweser (Liechtenstein),U.N. Under Secretary-General Patricia O'Brien, several Permanent Representatives to the United Nations and others addressed current issues facing the ICC. (End summary.) ¶2. President Song said that the Court has come a long way since it was created, with 108 State Parties to the Rome Statute, four investigations, thirteen arrest warrants, four suspects surrendered to the Court, the start of the first trial, and the expected beginning of the second trial. Just six years after its start, President Song said, "the Court is a fully functioning judicial institution." He said that there are increasing indications that the Court could be having a deterrent effect on potential perpetrators of international crimes. Song said the ICC does not have the capacity to handle all cases of genocide, crimes against humanity and war crimes, and it was never the intention of the Rome Statute's framers that it should. President Song said that under the principle of complimentarity, the Court only acts where States are unwilling or unable to credibly investigate and prosecute crimes. Apart from referrals from the Security Council, the Court only has jurisdiction over crimes committed on the territory of States Parties or committed by nationals of States Parties that have acceded to the Rome Statute voluntarily. The Rome Statute thus actually reaffirms core principles of state sovereignty. Furthermore, it is restricted to crimes that took place after the Rome Statute took effect on July 1, 2002. ¶3. President Song acknowledged that the ICC is a judicial institution operating in a political world - politically neutral and judicially independent, but aware of the world around it. He noted that the Rome Statute created the possibility for a political body - the Security Council - to refer situations to the Court and that in the case of Darfur, the Council did just that. According to President Song, once a situation comes before the Court, States must accept that judges cannot and will not take political considerations into �00A;account. Efforts to blame the Court for insufficient political sensitivity are misplaced, he said. If a case becomes a problem for international peace and security, the Rome Statute foresees an outlet in Article 16, with its deferral provisions. "This political option is in the hands of a political body: the Security Council. It is not a matter for the Court." President Song noted that the African States at the Rome Conference successfully banded together to ensure the Court's independence, rejecting proposals to place the Court under the control of the Security Council. President Song noted that the South African Development Community adopted principles in 1997, declaring that the Court should be independent and that the Prosecutor should be able to investigate crimes "without influence from States or the Security Council, subject only to appropriate judicial scrutiny." President Song said that it once again necessary to seek guidance from these SADC principles. He said that the Court is purely a judicial institution and cannot partake in political debates. ¶4. U.N. Under Secretary-General Patricia O'Brien made remarks, which she said were in her personal capacity and not intended to offer a legal interpretation of the Rome Statute. She said that there can be no sustainable peace without justice, and that peace and justice are not mutually exclusive. She said that one cannot ignore justice in seeking a peace agreement, for it would be a fragile peace, and if one insists on perfect justice, then it may be difficult or impossible to put a halt to bloodshed. At times, she said, there needs to be a postponement of when the guilty will be brought to trial. The challenge is finding the right balance, without sacrificing the one for the other. O'Brien emphasized the importance of the complimentarity provisions of the Rome Statute, focusing on the Uganda situation. The key is whether a State is "willing or able" to investigate and prosecute. To satisfy the complimentarity test, the State has to demonstrate that it is investigating or prosecuting, genuinely and in good faith, at that very moment, those individuals for those very crimes that are the subject of ICC action. The State in question must have a credible national mechanism in place. Mere political intent or enactment of legislation is unlikely to suffice. O'Brien said that Article 16 of the Rome Statute provides that the Security Council can request the Court to suspend an investigation or prosecution for one year. She said that it was within the purview of the Security Council to attach conditions to this suspension, thus steering the situation in a direction that it wishes. O'Brien observed that deferral is a temporary measure, a freeze of proceedings. The Security Council, she said, could give the State in question time to establish a credible national mechanism. ¶5. Christian Wanaweser, the President of the ICC Assembly of States Parties, noted that in early June there will be an informal meeting in New York on the crime of aggression. In addition, there will be a two-week review conference in Kampala in 2010. The crime of aggression will be on the review conference agenda. The review conference will take up other issues, such as the Belgian proposal to expand the list of prohibited weapons in Article 8 of the Statute. Wanaweser pointed out that the review conference will not be the last opportunity for parties to amend the Rome Statute. He said that he would like to see more States join the Rome Statute. He reiterated what Patricia O'Brien had said about peace and justice as complimentary and mutually reinforcing. He suggested that the Security Council has an obligation to help make the ICC work. ¶6. Ambassador Lomonaco (Mexican Ambassador to Mexico's Embassy in The Hague) spoke about his coordination of The Hague Working Group and the program of work. He emphasized the importance of getting support for the Court from the international community, not just the diplomatic community, but the public at large. ¶7. Ambassador Rosenthal of Guatemala spoke from the perspective of a country that was not a party but that aspired to become one. According to Ambassador Rosenthal, there has been apprehension in Guatemala about the impact of the ICC on a State's sovereignty. There is still strong resistance in Guatemala to subordinating domestic activities to international laws. In 2002 the Guatemalan Supreme Court ruled that there is no impediment under the Guatemalan constitution to that country's acceding to the Rome Statute. Ambassador Rosenthal also noted the significant political opposition to Guatemalan accession, stemming from fears of prosecution for abuses that took place in 1982 and 1983. ICC President Kirsch visited Guatemala in 2007 and made assurances that there are safeguards in the Rome Statute to prevent retroactive application of that treaty. Ambassador Rosenthal said that the Government is committed to becoming a party to the Rome Statute. ¶8. The Permanent Representative from South Africa said that peace and justice must be seen as complimentary and mutually reinforcing. According to the Ambassador, African countries are concerned about the Al Bashir indictment. This is the first time that the ICC has taken action against a sitting president. The Ambassador called on the UN Security Council to exercise its "responsibility" under Article 16 of the Rome Statute to issue a deferral. "This process should not be complicated by a power play at the Security Council," the Ambassador said. ¶9. The Permanent Representatives of Trinidad and Tobago, New Zealand, Belgium and Japan also made remarks. Christine Chung, a Yale Law School professor, Bill Pace with the Coalition for the ICC and James Goldston with the Open Society Institute, also made brief presentations. ¶10. During a short question and answer session, the Sudanese Permanent Representative took the floor. He said that the ICC risked its downfall by issuing the Bashir indictment. He asserted that justice has been transformed into a political tool, wielded by the rich and powerful. He said that Sudan is not subject to ICC jurisdiction because it is not a party to the Rome Statute. Thus, he said, prosecution of Sudan's head of state violates basic principles of sovereignty and international law. He said that the Security Council should invoke Article 16 of the Rome Statute. RICE