April 11 was a historic milestone: on that day, at a special UN ceremony, ten countries deposited their instruments of ratification of the Rome Statute of the International Criminal Court. This act brought the number of States that have joined the ICC to 66, six above the 60 required to trigger entry-into-force, which will happen on July 1st.

The achievement of the 60th ratification means that the ICC will become a reality - no longer just a Court on paper and in the imaginations of international lawyers around the world.

Surpassing the 60th ratification also means that we know with certainty the timeline for the establishment of the Court. We know that just over two months from now, the ICC will become a legal entity. We know that early in September, the first meeting of the Assembly of States Parties will be held, and that in early January 2003, the elections for the ICC’s judges and Prosecutor will take place. We know that the ICC will become operational just over a year from now.

History

After World War II

The creation of the ICC has been a long time coming. After World War II, the International Military Tribunals set up in Nuremberg and Tokyo raised expectations in many quarters about a new culture of accountability. In Nuremberg, senior leaders were held accountable for almost unimaginable crimes committed during the Holocaust. In Tokyo, military officers and government officials were found guilty of ordering or turning a blind eye to atrocities committed during, for example, the “Rape of Nanking”. There was discussion within the newly-created United Nations of establishing a permanent version of the International Military Tribunals to try those who commit crimes such as genocide and aggression in the future.

Unfortunately, the realities of Cold War paralysis soon set in. A culture of impunity emerged. For decades, the world watched horrendous events take place without providing any meaningful response.

In the last decade, this has changed. Why? First and foremost, the end of the Cold War allowed the major powers to cooperate on more issues. This led to a sea-change within the United Nations Security Council, which became more active on international humanitarian issues once armed conflicts were no longer considered so-called “proxy wars”.

In addition, events in several conflicts demonstrated that, when impunity is left to reign, the costs to the international community become very high. A classic example is Sierra Leone, where impunity led to ten years of civil war and the spread of instability throughout the region.

In other words, the international community has come to realize that establishing accountability is not only a moral imperative, it is a practical imperative.

Ad Hoc Tribunals and the ICC

In 1993, the Security Council created the International Criminal Tribunal for the Former Yugoslavia, or ICTY. The ICTY was the first international criminal tribunal established since the Nuremberg and Tokyo tribunals. It differed from those two tribunals in that it had jurisdiction over persons from all parties to the conflict. The next year, reacting to the Rwandan genocide, the Security Council established the International Criminal Tribunal for Rwanda, or ICTR.

The creation of war crimes tribunals to deal with mass atrocities in the former Yugoslavia and Rwanda marked a major step forward. They provided the international community with a working model of how a permanent criminal court might work. They also produced tremendously useful jurisprudence for the future, on the definition and circumstances of the commission of crimes and other issues.

While the creation and operation of the ICTY and ICTR has been invaluable to showing the international community that justice is an important part of building lasting peace, it has also become clear that this ad hoc approach of setting up country-specific tribunals suffers from certain weaknesses, such as substantial start-up costs and delays. It is also dependent on the decisions of the Security Council, leading to potentially selective justice. In addition, ad hoc tribunals are inherently reactive, as they are set up after the fact.

The creation of the Tribunals reinvigorated discussions to create an ICC. In 1994, the International Law Commission submitted a draft Statute for an ICC to the UN’s General Assembly. This was followed by three and a half years of negotiations.

When the negotiations began, there was still quite a bit of scepticism that the International Criminal Court would become a reality: discussions during that time often focussed on if the Court would be created. However, by the time the Statute was adopted on July 17, 1998, following a five week Diplomatic Conference, the question had become when the Court would become a reality.

Now we know the answer - 2002 - and that answer has come more quickly than even optimists had predicted.

Description of the ICC

Crimes

The ICC will have jurisdiction over the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes, and the crime aggression once a definition is agreed upon.

One of the questions that is raised in the programme of this conference concerns the relationship between the ICC and International Humanitarian Lawn (IHL). The Statute does not create new crimes. Crimes under the jurisdiction of the Court are based on existing Customary International Law. However, the Statute formulates, for the first time in a treaty, crimes that are only implicitly part of IHL. A major example is the fact that war crimes include those crimes committed in internal armed conflicts. This goes beyond the Geneva Conventions and Protocols. This is particularly important since internal armed conflicts are the most prevalent and brutal armed conflicts in the modern world.

Also, certain acts that were only considered crimes through judicial interpretation of broader treaty provisions are now clearly formulated as such in the Statute. For example, thinking back of the examples mentioned yesterday in the context of the Rwanda situation, rape, sexual slavery, enforced prostitution, forced pregnancy, other forms of sexual violence, are listed as both war crimes and crimes against humanity.

There were also comments yesterday regarding the importance of victims and restorative justice. In an ICC case, victims are entitled to participate at every step of the process and to receive assistance and protection for the Court. This represents major progress compared with the Yugoslav and Rwanda tribunals. Also, there will be awards for reparations against convicted persons and a trust fund will be established for the benefit of victims.

The crime of aggression is also listed, with the proviso that the Court will not exercise jurisdiction over this crime until States agree upon a definition and relevant preconditions. This approach was taken because of the widespread demand for some acknowledgement of the importance of this crime, despite the inability of delegations to develop a generally acceptable definition at the time of the adoption of the Rome Statute.

The ICC will be able to try those who have directly committed one of the ICC crimes, as well as those who have ordered, solicited, assisted or otherwise aided in the commission of a crime.

The Statute also includes the doctrine of command responsibility. This means that people in civilian or military leadership positions can be held responsible for ICC crimes committed by their subordinates.

Jurisdiction and Prosecution

There are five key other aspects of the Court that I wish to highlight.

First, the Court will be forward-looking, prospective in nature, covering only those crimes committed after entry-into-force.

Second, the ICC can try a person, regardless of his or her official capacity. It is irrelevant whether a person is a Head of State or Government, member of parliament, elected representative or government official. The Statute will apply equally to all persons, although persons under 18 years of age at the time of the crime cannot be prosecuted.

Third, and most important, is that the ICC will function as a fair and independent judicial - not political - institution with strong and effective safeguards. This is clear from the provisions of the Rome Statute, as well as those of the ICC’s subsidiary documents such as the Rules of Procedure and Evidence and the Elements of Crimes. The spectre of a political court, often raised by those who have reservations about the ICC, is simply unfounded. I invite those who have such concerns to look at the documents I mentioned and explain afterwards how a political process would be possible in that framework.

Fourth, ICC proceedings can be initiated in three ways: through the United Nations Security Council, a State Party or by the Prosecutor. It was very important to many States that the Prosecutor be given the independent power to initiate proceedings, because States Parties and the Security Council may be reluctant to refer situations for political reasons. In order to ensure that the Prosecutor’s power is not abused, he or she must apply to a three-judge Pre-Trial Chamber for authorization to proceed with an investigation.

Situations referred by the Security Council can be from any country in the world.

However, proceedings referred by either a State Party or the Prosecutor must concern accused who are nationals of a State Party or are alleged to have committed the crime in a State Party.

Lastly, one of the most important aspects of the ICC is that it will be a court of last resort.

This means that States have the first chance to investigate or prosecute an ICC crime. The ICC will only take a case if a State is unwilling or unable genuinely to investigate or prosecute that case.

This focus on State action is founded on the premise that prosecuting criminals is the responsibility of States. This approach is consistent with the widely held view that a key step in building lasting peace in a country is to ensure fair and effective national justice.

However, if States are unwilling or unable to exercise this responsibility to prosecute, then the ICC will do so.

“Unwilling” and “unable” are clearly defined in the Rome Statute. In order to determine inability, the Court will consider whether the State’s national judicial system has partially or totally collapsed. This is often the case immediately following an armed conflict, when police and court buildings may have been targeted, looted or burned and judges, lawyers and police officers may have also fled or been killed or injured.

In order to determine unwillingness, the ICC will examine whether the State has acted in such as way so as to try to shield an accused from criminal responsibility. For example, the ICC will be able to take jurisdiction if there has been a sham investigation or trial.

This interaction between when a country can take jurisdiction and when the ICC can take jurisdiction is referred to as “complementarity”, because the jurisdiction of the ICC is complementary to that of States.

One of the most interesting spin-off effects of the complementarity principle is that many countries who have ratified the Rome Statute have decided to amend their national laws to be able to investigate and prosecute ICC crimes. Many countries have already enacted legislation implementing the ICC crimes, and many others are in the process of adopting similar legislation.

In an ideal world, all States would include the ICC crimes in their domestic laws, and subsequently investigate and prosecute these crimes. This ideal scenario would mean that national systems would always act, and the ICC would never need to hear a single case.

However, we know from past experience that there will be times when States cannot or will not investigate. It is for those cases that we have created the ICC.

Increased Support for the ICC

As I mentioned earlier, the Statute will enter into force on July 1, 2002, a little under four years after its adoption in Rome on July 17, 1998. This is far faster than anyone could have imagined. Why the speedy entry-into-force?

First, there is a growing global desire to end impunity, and therefore promote peace and stability, by establishing a truly international judicial institution to prosecute heinous crimes. States want to be part of that process.
Second, the Court is better understood, due to the work of the Preparatory Commission, as well as States and NGOs.

The Preparatory Commission has negotiated documents such as the Elements of Crimes and the Rules of Procedure and Evidence. Drafting these documents caused every State involved to examine the Rome Statute closely, and think about how the various articles interact with one another. This process led to far greater knowledge of the Statute, which in turn led to greater appreciation. Indeed, it has shown in particular to those who were willing to listen that the Court is definitely a judicial, not a political body.

In addition, regional organizations such as the European Union, countries such as Canada and NGOs such as the Coalition for an International Criminal Court have undertaken worldwide ICC promotion campaigns. Through these efforts, many government, NGO and media representatives have been educated on details of the ICC, which has resulted in far greater knowledge about the fact that States have primary jurisdiction under the Rome Statute.

We had our first clear indication of this surge in support when 139 States signed the Rome Statute by the December 2000 deadline, 19 more than had approved the Statute in 1998, an unprecedented event in the history of multilateral negotiations.

Conclusion

The creation of the ICC is the high point in what has been called the “unmistakable contagion of accountability”. It will provide a permanent international venue for prosecutions for genocide, crimes against humanity and war crimes. But on its own, it will not, and cannot, deter or try all crimes. This is why it is important to remember that the ICC is one part of a wide international framework of measures to sustain a culture of accountability.

We have heard about other parts of that framework: ad hoc tribunals, “hybrid” international-domestic courts (such as in Sierra Leone), domestic prosecutions, truth and reconciliation commissions, and national, regional or international action that can be taken to prevent or stop atrocities earlier.

All of these mechanisms have the same goal - to assist in building lasting peace - but they focus on different aspects, whether by promoting truth, justice or reconciliation, or a combination of these three. The International Criminal Court is a court and will therefore be focussed on ensuring justice. However, in the process of trying cases, it will also bring forward the truth, in much the same way as the ICTY and ICTR have done. In addition, it is hoped that the ICC’s justice will create the ground upon which to rebuild the rule of law and human rights, and therefore encourage reconciliation in various countries and regions.