IN THE NEWS: Read About ICC President Philippe Kirsch's Visit to Capitol Hill

13 February 2009

Judge Philippe Kirsch

President of the International Criminal Court

Thank you Judge Wald for the generous introduction.

Thank you also to the United Nations Association of the National Capital Area, to UNA-USA, to Citizens for Global Solutions for inviting me to give this presentation, and to Congress for this hospitality.

It is a very interesting time to be speaking about "the International Criminal Court in a new era", because for us, the start of the first trial truly reflects a new phase in our history. Only three weeks ago, on January 26th, the Court opened its first ever trial: The Prosecutor v. Thomas Lubanga Dyilo. The trial will be followed this year by others.

I would like to start today by telling you first how we got to that point, where we stand today and finally, how I see the future.

I look forward to your questions and comments and our discussion after that.

II. Background on the Court

To set the stage, let me start with basics. Why was the Court created?

The Court grew out historical need. If we look at history, we see that it is precisely in the cases of the most widespread and systematic crimes national courts too often failed to act. Either they were unwilling to take on the leadership committing the crimes or they were rendered unable to act as serious conflict led to the destruction in whole or in part of national institutions, including of course the judiciary.

In these cases, not only was justice not done, but the deterrent role played by national courts was gone. This impunity often led to further threats to national or regional peace and security. There were attempts to interrupt this vicious cycle of crimes, impunity and conflict, but largely unsuccessful.

The first major breakthrough came with the Nuremberg Trials after the Second World War. Against opposition both domestic and abroad, a group of very special individuals fought to ensure first the reality, and then the success of these trials. More than anyone else, it was these early pioneers who made the development of international criminal law possible. On the American side alone you had Supreme Court Justice Robert Jackson, former Attorney-General Francis Biddle, and Judge John Parker of the U.S. Court of Appeals playing leading roles. Many others made equally important contributions, including Thomas Dodd, Telford Taylor, Ben Ferencz, Whitney Harris, and Henry King.

You waited fifty years without movement because the Cold War paralyzed any movement on fighting crimes at an international level.

Things changed when two crimes were committed in two situations right after the end of the Cold War: the war in Yugoslavia and the genocide in Rwanda, where in the course of 100 days, hundreds of thousands of people were slaughtered.

The Security Council, which was again able to act more effeictvely, decided to set up international tribunals to deal with the crimes: one for Yugoslavia and one for Rwanda.

Like their early predecessors, these tribunals contributed to the punishment of perpetrators of serious crimes, to the re-establishment of the rule of law and to the development of international criminal law.

But all ad hoc tribunals have several limitations inherent in their nature:

* Only a few States participated in their creation. In the case of the modern ad hoc tribunals, they were set up by the UN Security Council.
* They are limited to specific geographic locations.
* They respond primarily to events in the past.
* Their establishment depended very much on the political will at the time.

Because of these factors, both the punishment role and the deterrence functions of ad hoc tribunals are limited. As Senator Dodd said recently, recounting his father's experience at Nuremberg, "To truly be called effective, a court must not simply punish the guilty then disband. It must serve as a permanent reminder to any potential criminals that they, too, will be held accountable. Such a Court can not only punish crimes - it can deter them."[1]

It was precisely this thinking that pushed countries to consider a permanent, international court that would overcome the limitations of ad hoc tribunals. In the summer of 1998, the UN General Assembly convened a conference of States in Rome to draft the treaty establishing the International Criminal Court. On 17 July 1998, the Rome Conference adopted this treaty, the Rome Statute.

The International Criminal Court created in Rome is a continuation of the developments begun in Nuremberg. It was created by States with the same objectives of putting an end to impunity and contributing to the prevention of international crimes. Over time, if crimes diminished, it was hoped, as expressed in the Statute, this could help promote security, stability, and the well-being of the world. It could save lives and money. It could help make the world the kind of place we would like it to be: safe and stable.

Like Nuremberg, the Court holds individuals criminally accountable for the most serious international crimes. In the case of the ICC, these include high level crimes against humanity and war crimes. The cases currently before the Court include charges that illustrate the level of gravity needed for the ICC to intervene: conscripting and using children under 15 to participate in hostilities, pillaging, attacking civilians, willful killings, torture, sexual slavery and rape, and extermination. These are very serious crimes.

In many areas, such as the protections of the rights of the accused and of due process, the Court is more refined than its predecessors. In Rome, the US delegation played a major role in defining how ICC proceedings would work. I am not myself in a position to assess this, but I would refer you to a memorandum submitted to the U.S. Congress by nine former Presidents of the American Society of International Law. They wrote that the due process protections of the ICC Statute are, and I quote, "at least as comprehensive as the American Bill of Rights - in certain cases even more detailed and specific."

In creating the Court, States deliberately addressed the limitations inherent in ad hoc tribunals.

The ICC is a permanent court set up to deal with prospective crimes. Its jurisdiction begins on the day of entry into force of the Rome Statute on 1 July 2002 onwards. There is no retroactivity. No crime committed before that date can ever be tried before the ICC. And for States to join later, the principle is that the ICC has jurisdiction for them as of the date of their own ratification.

It is a treaty-based Court. It is up to countries to decide to join the Court or not. This has important consequences for the Court's jurisdiction. To begin with, the Court does not have universal jurisdiction. The ICC only has jurisdiction over States voluntarily accepting the Court's jurisdiction, mainly by ratifying the Statute.

There are two principles universally recognized as a basis for criminal jurisdiction: territory of crime and nationality of accused. The founders of the Court limited the ICC's jurisdiction to these two. Therefore, the Court can only exercise jurisdiction over crimes committed on the territory of States having accepted the ICC's jurisdiction or by nationals of States having accepted jurisdiction. The only exception is if a situation is referred by the United Nations Security Council, as was the case with Sudan. Then, and only then, can the Court exercise jurisdiction over crimes without the relevant country accepting its jurisdiction.

Perhaps most fundamentally, the ICC is a Court of last resort. It is complementary to national jurisdictions. Where national jurisdictions genuinely investigate and, if necessary, prosecute crimes-in other words, function normally-the ICC will not and indeed is legally prohibited from acting. It is enough for a country to have a functioning legal system for it never to be exposed to the ICC.

[1] Senator Christopher J. Dodd, Prosecuting the Peace of the World: The Experiences of Thomas J. Dodd at the International Military Tribunal, Nuremberg, Germany, 1945-46; February, 15, 2005; available at http://dodd.senate.gov/press/Speeches/109_05/0215.htm.

III. Court Today

I would like to turn now to where the Court stands today.

A. Establishment

The Court is now a firmly-established judicial institution. 108 States Parties have ratified or acceded to the Rome Statute. All parts of the world are represented, though not evenly.

B. Situations and Cases

Four situations have been referred to the Court. These are the situations in the Democratic Republic of the Congo, Uganda, the Central African Republic and Darfur, Sudan. The first three situations were referred to the Court by the countries concerned and deal with situations on their own territories. The fourth was referred to the Court by the United Nations Security Council.

In other words, the Court has not taken up any situations on its own initiative. All of the situations before the Court reflect the will of States or of the Security Council. The Prosecutor has carried out and is continuing investigations in each of these situations.

There is another possible way for the ICC to exercise jurisdiction, which has not yet materialized. In addition to any situation referred to the Court, the Prosecutor may ask the judges for authorization to open other investigations within the jurisdiction of the Court.

Since July 2002 when the ICC Statute entered into force, the Prosecutor has received almost 8000 communications from different sources in 171 countries. He has rejected almost half of these for not meeting the requirements of the Statute. But the Prosecutor continues to monitor various situations around the world also on the basis of open sources to determine if there is a reasonable basis to begin other investigations. However, outside of referral, if he intends to start an investigation on his own initiative, he needs approval of the judges.

In the past five years judicial proceedings relating to the four situations have taken place before the Pre-Trial, Trial and Appeals Chambers. Between the four different situations, the Court has issued 12 arrest warrants and is considering applications from the Prosecutor for four others in the situation in Darfur, Sudan. Four persons have been surrendered to the Court: 3 from Congo and one relating to the Central African Republic.

One of the reasons that not all those on the wanted list have actually been handed over to the Court is linked to the major difficulties of working in areas where crimes are still committed. This is a major difference with the other tribunals. Those were set up by and large after the conflict ended. As you can imagine, being in a conflict area makes arrests and other matters, such as witness protection and simple logistics much more difficult.

As I said at the outset, the Court entered a new era of activities recently. In the Congo situation, on 26 January, the First Trial Chamber began the trial of Mr. Thomas Lubanga Dyilo, alleged to have recruited and used children under 15 to participate actively in hostilities. A second trial - that of Mr. Germain Katanga and Mr. Matthieu Ngudjolo Chui - is expected to begin this summer. They face similar charges and also charges for attacking civilians, pillaging, sexual slavery and rape. In the Central African Republic situation, the judges of Pre-Trial Chamber III are currently considering whether to confirm charges of war crimes and crimes against humanity against Mr. Jean-Pierre Bemba. If they confirm the charges, that case will also be referred to trial.

C. A purely judicial track record

The Court was designed as a purely judicial institution. Throughout its proceedings these past years, the Court has held rigorously to its purely judicial mandate. Indeed, whatever criticisms may have been made about the ICC system, there has never been even the slightest suggestion about the decisions of any chamber that the judges have acted in any way other than apolitically, impartially, and judicially.

Indeed, it is essential to uphold the highest standards of impartiality. A court which acts outside its mandate will quickly lose the credibility it needs to survive. As Robert Jackson told the Nuremberg Tribunal, "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well." The same holds true for the Court today.

D. Impact

As the Court's activities have progressed, there have been at least two discernible impacts going beyond judicial proceedings.

First, the Court has become better understood and better accepted. This is reflected in the ever-increasing number of States Parties and in growing support of others. Knowledge about the Court still needs to grow, but it has been consistent in the past few years that the better it is known, the more it is accepted.

The second impact of the Court is a preventive effect on the commission of crimes, just like the founders envisioned. Independent observers have noted several instances where the Court has contributed to deterring crimes. This was not expected in Rome.

This has been one of the unexpected early benefits of the Court. When it was established, most people thought the deterrent impact of the Court would build slowly over many years. In reality, its impact has been much more immediate, precisely because the Court is operating in situations of ongoing conflict. In these circumstances, some potential perpetrators reportedly have taken note of the real risk they may be brought before the Court and have changed their behaviour accordingly. Yet, there is still a long way to go and that brings me to the future and the keys to allowing the Court to fulfil its founders' objectives.

IV. Keys to future success

The first key is one the Court holds itself: we must continue to apply the law impartially, conduct our proceedings efficiently and operate effectively all-round. The Court is well aware of its own responsibilities and is determined to doing everything that is possible to fulfill those responsibilities.

But that is not enough. The second key to allowing to the Court to work fully lies with countries that share the values and objectives for which it has been established. Their support and cooperation will always be essential.

A. Operational Cooperation

The first area is operational.

Any judicial system is based on two pillars: a judicial pillar and an enforcement pillar. In national systems, the two pillars are intertwined: the police deliver the suspects to the Courtroom. The enforcement powers of the State enable justice to take place.

In the case of the ICC, the two have been separated. The Court itself is the judicial pillar. It does not have a police force of its own, much less an army. It is dependent on States for all enforcement, like arrest of suspects. States Parties are obliged to cooperate with the Court, while other countries which may be in a position to assist are warmly invited to cooperate.

Cooperation between the Court and countries can take many forms, for example executing searches or seizures or providing information and evidence. Countries also play critical roles in protecting and relocating witnesses, which you can imagine is crucial in cases where their lives are threatened, as we see every day.

We also need countries to help in enforcing the sentences of the convicted.

The most fundamental need for cooperation is arrests.

Without arrests, there can be no trials.

Without trials, victims will again be denied justice.

And without justice, the deterrent effect of the Court will be undermined.

If potential perpetrators believe there is a risk they will be prosecuted, it is because they see a risk that they will be arrested and surrendered to the Court.

B. The broader environment

Beyond concrete cooperation the effectiveness of the Court very much depends on the broader environment in which we operate.

And here comes the irony. As I emphasised earlier, the Court is an independent, purely judicial institution. At the same time, this apolitical institution is situated firmly within a very political environment. It is therefore essential that role of the Court continues to been seen and presented as judicial and that the Court can carry out its functions independently with the necessary support.

States, international organizations and civil society can all contribute to respect for the Court. The US ambassador to the UN, Susan Rice recently said, and I quote: "the International Criminal Court looks to become and important and credible instrument for trying to hold accountable the senior leadership responsible for atrocities committed in Congo, Uganda and Darfur". That sends a clear message that international justice is taken seriously. And that is hugely important for the deterrent effect.

A court speaks through its judicial decisions. They are its voice. The Court can provide factual information about its functions and activities on request. It can contribute to better understanding of what it is and what it is not. This is what I am trying to do today with you. But it cannot partake in political debates. It does not advocate or lobby. To do so would be to wade into exactly the kind of politics that it must avoid and would undermine its greatest strength, its credibility. So the Court is forced to count on others for public support.

V. Conclusion

This brings me to my conclusion.

The Court is entering a new era. It has come a long way from when the first judges took office in 2003. It has largely moved out of its foundational phase and is focusing on its trials. It is still far too early to pass judgment on the success of the Court. It is true that the development of the Court occurred faster than expected and early indications of its accomplishments are positive. But the Court's success in the long-term will depend on many factors.

The Court will continue to act with judicial independence and impartiality.

It will investigate and prosecute crimes within its jurisdiction in accordance with the principle of complementarity, which means national systems take precedence.

It will guarantee the rights of the accused and of suspects.

It will interpret the Rome Statute and develop a body of jurisprudence.

It will protect victims and witnesses.

It will give further effect to the rights of victims to participate.

It will address questions of reparations to victims.

And in all its proceedings, it will continue to strive for the highest standards of efficiency and transparency.

However, it is important to bear in mind at all times that the ICC - and the ICC system with its checks and balances and its limitations on the power of the Court - did not create itself. Countries created the Court because they saw a new institution was needed - one which would be independent from politics. They gave it is mandate. They determined its jurisdiction and the limits to its jurisdiction. Their cooperation and support will be critical to its continued success.

But it is important also to step back so that the Court is not seen as a goal in itself, but simply a tool to achieve much broader objectives. It is not necessary to be part of the ICC system to share the value of those objectives and to see the many possibilities that exist to contribute to their achievement.

I will be happy to answer questions. As you will surely understand, in light of my position as judge of the ICC, there are certain issues which I cannot discuss:

§ Policies of States;

§ Situations before the Court;

§ Policies of the Office of the Prosecutor;

§ Speculation;

Thank you.