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Statement by HE Ambassador Tiina Intelmann, President of the Assembly of States Parties to the Rome Statute of the International Criminal Court "ICC complementarity in practice: Challenges, progress and prospects in Africa", Addis Ababa, Ethiopia

17.04.2013

Excellences,

Ladies and Gentlemen,

 

This seminar has been organized to discuss how to strengthen the capacity of states to investigate and prosecute the most serious crimes under international law. I would like to express my sincere gratitude to the Institute for Security Studies for arranging this seminar. My thanks go also to the governments of the Netherlands and Norway for sponsoring this seminar and making this discussion possible.

 

It is always interesting and a true pleasure to visit States Parties in Addis Ababa to talk, to listen and to see how we can work together. We all share the fundamental value of fighting impunity for the perpetrators of the most serious crimes of concern to the international community. A few days ago, I addressed the Organization of American States, another regional organization that is concerned with the rule of law and ending impunity.


You may know that States Parties work together as assembly in New York and in The Hague. In its multiple documents the Assembly  notes the need of States, international and regional organizations and civil society to engage and work with relevant countries to strengthen their capacity to investigate and prosecute the most serious crimes and to share experiences and best practices in this regard. In carrying out my mandate I try to engage with different regional organizations, to visit different States Parties, among them of course Africa and the seat of the African Union since African States are the largest regional “grouping” among States Parties: out of 122, 34 are African countries. Africa was one of the key players in the ICC inception and its 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, with Cote d’Ivoire being the last one to join as the 122nd State Party. Let me also point out that in my capacity as President of the assembly I have always been able to count on the cooperation of African States Parties. I had the distinct 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.

 

My office makes an extra effort to follow closely discussions that take place within the African Union, the common issues that are addressed by the United Nations as the global forum, and other regional organizations. In this context, I am pleased to note that  the Peace and Security Council of the African Union (AU), at its 364th  meeting held on 26 March 2013, held an Open Session on the theme: “Women and Children in situations of violent conflict in Africa: Contribution and Role of Women”. At this meeting, the Council emphasized the responsibility of Member States for ensuring the protection of women and children in situations where they are threatened or affected by violence, in line with relevant AU and international instruments.  The Council condemned the use of sexual violence as a weapon of war and emphasized the need to fight impunity for sexual violence and rape in situations of conflict and stressed the need to hold accountable perpetrators of these acts.

 

The protection of women and children as the most vulnerable groups in any society is a topic very much at the heart of discussions also at the United Nations. It is most regrettable that in the second decade of the 21st century crimes against children and women are still taking place. In 1998, after years of negotiations at the UN, the international community adopted the Rome Statute and made a tremendous step forward in ending impunity for crimes against women and children by incorporating sexual violence such as rape, sexual slavery, enforced prostitution, and forced pregnancy, for the first time, explicitly in an international legal framework, and did so in a way that made prosecution of these crimes a practical possibility. While the International Criminal Court cannot deal with all instances of sexual violence, it has nevertheless proven itself as a powerful tool to bring those responsible for the gravest such crimes to justice. Crimes committed against women and children found resonance in the trial of Thomas Lubanga of DRC who was sentenced to 14 years of imprisonment last year and will most certainly be considered  in the trial of Bosco Ntaganda, also of the DRC, who recently surrendered to the Court.

 

I would also like to recall the recently published report of the African Union Panel of The Wise. The report is 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 Panel of the Wise concluded that justice and reconciliation are antidotes to impunity and highlighted the importance of the fight against impunity to enhance justice and reconciliation: “Ending impunity and promoting justice and reconciliation is one of the core objectives of the African Union.” This report also acknowledges the norms of the Rome Statute and how it contributes to ending impunity. 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.

As a way of background I would briefly highlight some basic facts about the Rome statute and the ICC:

·         The ICC was established as a court of last resort, complementary to national jurisdictions, to step in only when national jurisdictions fail. This is in fact how it has been operating.

·         The Court investigates and prosecutes the three crimes that are considered by the international community to be the most heinous: genocide, crimes against humanity and war crimes. The Court does not yet have jurisdiction over the crime of aggression and this will continue to be so at least until 2017.

·          It is a permanent Court and as such has jurisdiction over widespread or systematic commission of those three crimes starting 1 July 2002. It is also a treaty-based Court, which means it has jurisdiction only if such crimes are committed on the territory of a State that has joined the Rome Statute or if the alleged perpetrator is a national of such a State.

·         We can therefore say that the system created by the Rome Statute is a consent-based system, with one major exception: the UN Security Council has the power to refer situations which occur in non-States Parties to the ICC and has done so in two cases, Darfur and Libya. 

 

As I said, the ICC is a court of last resort. Only if the State with the primary jurisdiction over the crimes proves to be unable or unwilling to genuinely carry out the investigation or prosecution can the ICC take up the case.  This is known as the complementarity principle and it is the bedrock of the Rome Statute system. And this is what we will be discussing here.

 

By now, four countries have approached the court with pleas to start investigation of their situations since all domestic avenues have failed or are inexistent. These countries are Central African Republic, Uganda, Democratic Republic of the Congo and most recently Mali. I would say that referrals of their own situations constitute a vote of confidence to the Court. These four self- referrals make up half of all situations that the court is actively seized of.           We need to work towards a point in the future when States Parties themselves are able to investigate and prosecute Rome Statute crimes. The failure of domestic systems and thus activation of the ICC has to be an absolute exception. We have to make an extra effort to create a situation where all States Parties and why not even States outside the Rome Statute system do have the domestic capacity to deal with the worst crimes under international law.

 

National jurisdictions have the primary responsibility for investigating and prosecuting the most serious crimes.  In many cases, including in Africa- but not only 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 and to do on this front. 

 

Complementarity is an issue to which, as you may know, the Assembly of States Parties (ASP) has given special attention.   At the 2010 Review Conference of the Rome Statute, in Uganda, the ICC States Parties recognized the need for States to assist each other in strengthening domestic capacity to ensure that investigations and prosecutions of serious crimes of international concern can take place at the national level. Helen Clark, the administrator of UNDP held the keynote speech at the discussion on complementarity at last year’s session of the Assembly voicing the support of this major development agency to our common efforts. Since the review conference we have been looking for avenues to work closer with the development community, with individual countries and with civil society actors to assist states that need assistance in creating domestic capacity. We have also held a few technical discussions between international justice practitioners and development actors.

 

The international community places great importance on the rule of law and is committed to ensuring accountability for international crimes. The commitment to capacity building was affirmed in the declaration adopted by the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels which took place on 24 September 2012 in New York. In his most recent report on sexual violence in conflict the Secretary-General of the United Nations notes that national courts remain the principal venue for holding individuals accountable for crimes of sexual violence and those national authorities should be supported in this regard. To address the lack of capacity the United Nations has put in place a Team of Experts on the Rule of Law and Sexual Violence in Conflict. This team is supporting national authorities in a number of countries and is further developing a roster of experts capable of complementing its work.

However, despite all previous efforts, many states lack the required legal frameworks and general criminal justice capacity required for the effective and fair investigation, prosecution and adjudication of international crimes. We need to make concerted efforts on all continents. My discussions at the Organization of American States last week also touched upon the plan of that organization to provide its members with a model package of laws that could be included in domestic legislation. The same kind of model package is already provided by the Commonwealth to its members.

Ladies and gentlemen, ultimately, our long-term goal is not to punish but to prevent crimes from happening. As the AU Panel of the Wise said, Africa is a critical author of and participant in the emerging human rights regime. Part of the prevention is the domestication of the atrocity crimes which contributes undoubtedly to the strengthening of the Rule of Law, one of the most important elements to achieve true justice and accountability.

Excellences, distinguished participants, while I am aware that political temperature around the ICC has been high at times, and the road ahead will most certainly not be totally smooth, we need to work together. Our ultimate goal is to prevent atrocity crimes from happening; our goal is to reinforce legal and judicial systems to put the ultimate goal of the Rome Statute system in practice.

 

I hope that we will continue this discussion with the participation and the support of you all in the future.

 

 

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