Statement by H.E. Ms Tiina Intelmann , President of the Assembly of States Parties to the Rome Statute of the International Criminal Court and Estonia’s Ambassador-at-large for the ICC, at a high-level conference organized by Africa Legal Aid in Arusha
delighted to participate in this workshop dedicated to what I consider to be a
remarkable and a very interesting relationship, that of Africa and the
ICC. No relationship is without
difficulties – and this one is no exception as you know. An open and frank discussion over the next
two days is what we need and I am glad to be part of this discussion. At the
same time I am glad to note that Africa and the ICC share the fundamental value
of fighting impunity for the perpetrators of the
most serious crimes of concern to the international community.
going to kick off this discussion from a positive and optimistic perspective.
First of all, let us go back to the inception of the Court, to the time when a
permanent international criminal court was just an idea. Africa was one of the
key players in the creation of the Court.
African States came to the Rome Conference as a force to be reckoned
with, having actively participated in the preparatory negotiations, armed with
some key guiding principles and positions adopted at the regional (e.g. Dakar Declaration) and
sub-regional levels (e.g. Southern
African Development Community principles), and last but not least
high-level support for the Court reconfirmed just a few days prior to the
Conference at the OAU Summit of Heads of State and Government. This energetic African presence was sustained
during the entire five-week period of
debates, ensuring the reflection in the Statute of many core African
positions, such as the principle of complementarity, the independence of the
Prosecutor and judicial independence from the Security Council. African facilitators helped broker
compromises on key sections of the Statute, including Part 9 on
Cooperation. And let us not forget the
involvement of close to one hundred African NGOs within the Coalition.
commitment to the Court did not stop with its establishment on paper. As you know, Senegal was the first country to
ratify the Statute, followed by a steady flow of other African countries. This contributed, in particular, to reaching
in a rather short period the required number of ratifications for entry into
force of the Statute. I am gratified
to preside today over an Assembly of 122 States Parties, 34 of which are
African, thus constituting the largest regional grouping of the ASP.
It was also
from Africa that the first practical votes of confidence in this new
institution emanated, in the form of referrals by the concerned States
themselves of the situations in Uganda, Democratic Republic of Congo and
Central African Republic within less than three years after the Court started
functioning. Moreover, the negative
publicity the ICC has been getting from some quarters did not deter yet another
African State, Mali, from referring its situation to the Court just last
year. Indeed, all four State referrals
so far have come from African countries, and this, in fact, demonstrates
confidence in and support for the
Court. If anything, one should wish for
certain countries from other regions to also resort to the ICC to address the
grave crimes that have been committed on their territory.
brings me to one of the main criticism directed at the ICC, that it is
exclusively concerned with African cases.
As I just mentioned, this is a flawed argument concerning the four State
referrals since this would disregard the wishes of those States that the Court
deal with the particular situations.
Regarding investigations initiated proprio
motu by the Prosecutor, here again, one should look at the facts more
carefully. The Prosecutor is currently
conducting preliminary examinations in a number of countries, in various
regions of the world. Kenya and Côte
d’Ivoire are the only two that have gone forward so far, but to claim that this
is the case because these countries are African ignores the complexity of the
Prosecutor’s work in investigating and building strong cases. It ignores the provisions of the Statute
which set out the conditions for initiating investigations. It also ignores some of the specificities of
the two situations, with ICC involvement specifically envisaged under the Waki
Commission Report on Post-Election Violence in Kenya and the acceptance of the
Court’s jurisdiction and commitment of cooperation by Côte d’Ivoire
d’Ivoire had, on 18 April 2003, filed a Declaration pursuant to article 12,
paragraph 3 of the Rome Statute, by which it recognized the jurisdiction of the
Court. On 14 December 2010 Côte d’Ivoire reconfirmed this declaration. The fact
that Côte d’Ivoire just became the newest State Party to the Rome Statute is a
further indication of the positive spirit of cooperation which Côte d’Ivoire
has demonstrated towards the Court.
Finally, as far as the Security Council is
concerned, one can only lament that other situations have not been referred to
the ICC. But this criticism should be
directed at the Council, not the Court.
Let me also remind you that while those two situations that have been so
referred may be indeed African situations, that did not seem to raise major
difficulties to those African countries who were sitting in the Council at the
time of the relevant decision (only
Algeria abstained in the case of Darfur, Benin and Tanzania voted in favor; the
Libya referral was adopted unanimously, including 3 African countries).
while I would welcome the broadening of the geographic scope of the ICC’s
docket, I cannot accept the assertion that the Court unduly targets
Africa. As former UN Secretary-General
Kofi Annan has said (in his recently
published memoirs “Interventions”), “it is impunity, not the African
countries, that is being targeted”.
speak of the fight against impunity, we think first of all of the perpetrators
of crimes under the Court’s jurisdiction who must be brought to account for
their acts. But, at the same time, we
must think of the victims of these atrocities.
It is in their name that the fight is pursued. This is why victims are at the heart of the
Rome Statute system. It was a great
victory for victims of mass atrocities that the Statute’s provisions for
participation and reparation constitute major advances in international
criminal law and human rights law.
cases bear the name of an alleged perpetrator, the voices heard at trial,
either directly or indirectly, are – or will be - those of the victims. The fact that the Court is currently focusing
on African situations also means that it is currently focusing on African
victims. That can hardly be considered
ICC bias against Africa. The Trust Fund for Victims established under
the Rome Statute has already reached out to more than 80 000 victims of
generally, ICC decisions – like those of ad
hoc international tribunals – will have a much wider significance in the
fight against impunity for mass atrocities than simply punishing those persons
brought before it that it has found guilty of such crimes. It is telling that the former Special Representative of the Secretary-General
for Children and Armed Conflict, Radhika Coomaraswamy, stated the following
when the Lubanga decision was
delivered: “In this age of global media, today’s verdict will reach warlords
and commanders across the world
(emph. added) and serves as a strong deterrent.” From this standpoint, once again, what is
important is the universality of the message that those who commit the war
crime of recruiting and using child soldiers will be punished and not that it
emanates from a decision regarding a perpetrator from a particular country or
that the Court was called upon to begin its substantive work with
self-referrals was a welcome development – and, as already mentioned, also an
expression of African support for the ICC.
Moving from start-up to cruising speed is a challenge for any new
institution. It was positive for the ICC
that this could occur in an environment and under circumstances where
cooperation could be expected to be rather forthcoming.
to the larger subject of cooperation between Africa/the AU and the ICC, it is
true that much of the public focus has been on the AU calls for
non-cooperation. This is indeed a real
strain on the relationship. But this is
not the whole picture. First of all, the
calls for non-cooperation address certain key issues, but do not cover the
entire ambit of the Court’s work. For
instance, these calls do not deal with the self-referred situations. As the Prosecutor will probably tell you in
more detail, in practice the majority of ICC requests for cooperation are
actually met with a positive response.
In other words, one should go beyond the political statements to
evaluate the state of the relation between the Court and Africa. Moreover, a growing number of African
countries have made public commitments of cooperation, especially as regards
arresting individuals against whom warrants have been issued by the Court if
such persons would enter their territories.
here also point out, that in my capacity as President of the ASP, I have always
been able to count on the cooperation of African States participating in the
Assembly. I also had the pleasure of welcoming the Presidents of Senegal and
Botswana and the Prime Minister of Côte d’Ivoire at the last two sessions. African States Parties continue to play an
active role within the Assembly. And,
lest it be forgotten, it was in Kampala that the First Review Conference of the
Rome Statute was held, the amendments on the crime of aggression were agreed
and where States Parties renewed their commitment to the ICC and the fight
all relationships, obstacles can only be overcome through keeping communication
channels open. Misunderstandings,
frustrations and misapprehensions cannot be dispelled otherwise. It is therefore crucial that dialogue with
the African Union – and Africa more generally - is maintained and further
strengthened. Such efforts should
involve all relevant stakeholders and initiatives like this workshop are
precisely in the right direction.
One aspect of the dialogue should be aimed at
further clarifying the constraints and the legal framework under which the ICC
operates, with the impact that this may have on the situations in which it is
key focus, in my view, is the principle of complementarity. We need to arrive to a situation where States
Parties themselves are able to investigate and prosecute Rome Statute crimes. I
look forward in this regard to tomorrow’s debate on that topic. Complementarity is also an issue to which, as
you may know, the ASP has given special attention.
are well aware, complementarity is central to the Rome Statute system. National jurisdictions have in fact the
primary responsibility for investigating and prosecuting the most serious
crimes. In many cases, including in
Africa, this aspect of the system requires further strengthening, be it in
terms of the legislative framework for prosecution of these crimes, expertise
with investigations, judicial system resources, effective national witness
protection program or sentence enforcement.
There is much to discuss on this front.
The International Peace Institute, in cooperation with the African Union
Commission, recently published a report of the African Union Panel of The Wise,
a comprehensive study of the fight against impunity in Africa that examines
different situations, broader issues of transitional justice and also the
relationship of Africa with the ICC. The recommendations and conclusions all
point towards the urgent need to build up solid institutions, the need for
democracy and rule of law. This seems to be one of the points where we all
agree and can work together.
have, in my brief remarks, mostly emphasized the positive aspects of the AU-ICC
relation in the past, present, and I hope the future, I recognize of course
that there are issues that need to be addressed. But let us do so this as the partners that we
all are in the fight against impunity for crimes that – as the preamble of the
Statute reminds us – deeply shock
the conscience of humanity.