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, T

12.03.2013

I am 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.

I am 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. 

But Africa’s 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.    

That 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 respectively. Côte 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).     

In sum, 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”. 

When we 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. 

While ICC 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 atrocity crimes.

More 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 continent.              

The fact 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. 

Turning 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.

Let me 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 against impunity.

As with 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 involved. 

Another 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.  

As you 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.

While I 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.