Kampala: hope for the future

Judge Philippe Kirsch, former President of the ICC speaks to IBN about his optimism for the court and its importance for Africa.

The Review Conference, mandated by Article 123 of the Rome Statute which initiated the International Criminal Court, is scheduled to take place on 31 May to mid-June 2010. Why do you think it’s so significant?

I think the Review Conference that will take place at the end of May will be different from what was originally envisaged. I think at the time the Review Conference was suggested it was expected that, after seven years, the International Criminal Court (ICC) would have gone further than it actually has. What I think is important at the Conference is the stocktaking part – looking at what has worked, what has not worked, and what improvements can be made. To me, the Conference will not be so much a turning point in new proposals, new amendments or new crimes, because that can be done by any session of the Assembly of States Parties. To me, the main objective of the Conference is to identify real issues faced by the Court and by the States Parties and give directions for future consideration. Of course, if progress can be made on the crime of aggression, on Article 124 and the exemption for seven years from war crimes, or other proposals, so much the better, but that to me is not a central issue at present. In my view, the Court is more in need of consolidation than a great leap forward.

You were President of the ICC for many years and you’ve seen both successes and failures. How would you assess these?

In some ways, the Court developed a lot faster than had been expected. The Rome Statute entered into legal force earlier, and there were many more ratifications than were anticipated. The Court became very active in a number of situations and, for me above all, the Court showed that it was a judicial body, not a political body (which used to be an apprehension from the legal world). That led to increased understanding and acceptance of the Court. At the same time, the ICC was slower at developing in some ways than I, for example, had anticipated, partly because the judicial and organisational systems of the Court are so complicated. Also, of course, the Court has been operating in very difficult circumstances in the context of armed conflict and complex political situations.

I think the key to the future, alongside the need for the Court to remain purely judicial, is sustained support from States Parties both in practical terms, for example arrest warrants, and in political terms. When the Court is under attack, for example, States that support it should sometimes be a little more vocal in expressing the important values of the institution.

And what are the issues that you think should come out of the Review Conference?

I think what’s important is to define... There are four themes that I think are now on the table: stocktaking; complementarities and cooperation – issues between the Court and States; the impact of the Court; and the relationship between peace and justice. The latter two points are more issues for States Parties than for the Court, because they involve
an assessment of the political impact of the Court, not something that the ICC should be involved in itself, being a judicial body.

You’ve talked about the Review Conference and the wish to make progress there. I’m just wondering to what extent the ICC can make genuine progress while four of the most powerful countries in the world, America, Russia, China and India, refuse to sign up to the ICC.

Well, I guess I would make a distinction between genuine progress and instant universal acceptance or jurisdiction. The ICC has been operating now in four situations where I think progress has been made, however slow. It’s also important to remember that the ICC is very young. When you compare the 110 States that have become Parties after only a few years, to the States that have accepted the obligatory jurisdiction of the ICJ, which is about 60 after 60 or so years, the ICC is not doing so badly. And so I think that as the ICC continues to play its role as it should, which is judicially respecting the rights of the accused, respecting due process, and not going overboard in terms of the exercise of its jurisdiction, I think it should have more and more support, including from states that are not now States Parties. Now, the last point I will make is that you do not have to be a State Party to cooperate with the ICC. To become a Party is of course a sovereign decision but you can play a very useful cooperative role if you are a non-State Party which, certainly in the short term, does not require any ratification – this is already happening in some instances.

‘A number of African states saw the ICC as a protection against the temptation by other states to have people commit crimes on their territory.’

Given that any cases involving America, China or Russia, or France and the UK, as permanent members of the UN Security Council, are unlikely to come before the ICC, do you feel that this leads inevitably to the much criticised predominance of cases involving Africa and so-called ‘powerless’ countries from the Balkans, for example?

I think the way the question is phrased suggests that the ICC’s involvement in a particular country is a penalty. It isn’t. If you go back to the Rome Conference, the group of states that was most interested in the ICC was Africa because even though other states saw the value of the ICC for humanitarian or geopolitical reasons, a number of African states saw the ICC as a protection against the temptation by other states to have people commit crimes on their territory. They said, repeatedly, that no one knows the impact of international crimes and the tragedies that they cause more vividly than African states. In addition, it is worth noting that the Prosecutor is now considering a number of situations which are outside Africa, some in quite developed countries. I also would say something which is institutionally important and that a lot of people forget: in an international situation, the state of the nationality of the perpetrator of a crime does not need to be a Party to the ICC for the ICC to have jurisdiction. If there is an international conflict and people sent by, for example, one state to another state and then commit crimes, it is sufficient for the state on which the crimes have been committed to be a Party to the statute for the ICC to have jurisdiction.

You’re saying that the most powerful countries in the world aren’t exempt from the jurisdiction of the ICC? You’re talking about America and Russia.

In the case of Iraq, the Prosecutor looked at the many communications sent to him and said that neither the United States nor Iraq is a State Party, so the ICC has no jurisdiction. But in the case of British soldiers, and the Prosecutor determined firstly that the gravity was not sufficient to be a matter for the ICC, and secondly that he had no reason to think that a complementary system would not work – that is, Britain’s own national justice system. So that seems clear that the Prosecutor looked at those issues; he did not discard or try to ignore crimes because powerful countries were involved.

But you would concede nevertheless that those powerful countries could be said to be setting the agenda for the conduct of international justice, and that needs to be addressed, perhaps at the Review Conference?

Yes, but those countries that you mentioned do not always see things the same way.

What do you want from America then, for example?

Well, I think ratification from the United States is something that in my view would take some time.

Is it important?

I think ratification in the long term would strengthen the system. But as long as it is not done, the United States is perfectly able to cooperate with the ICC in very useful ways before it is a State Party.

What ways do you refer to, more specifically?

To cooperate with the Prosecutor, for example, in giving information, or perhaps assisting in arrest. But I’m talking about the abstract – I’m not talking about specific situations.

Given that you’re agreeing in part that the ICC is a very young institution, and it’s not a finished article by any means, how important do you feel it is that states have their own ability to pursue international justice? I’m thinking particularly of European jurisdictions.

Well, this is the foundation of everything. In an ideal world you would not need international justice either because massive crimes would no longer be committed, which is ultimately, I suppose, the hope of prevention and deterrence, or if they are committed their national system will bring the perpetrators to justice. The case of universal jurisdiction is in a sense very similar to the principle behind the ICC; it is a mechanism of last resort.

The difference is that universal jurisdiction is a lot less controllable than an institution like the ICC. We have seen – and now again I’m not pronouncing on the merit of those issues – but we have seen cases where universal jurisdiction created major problems or major conflicts between states. The ICC system is much more controlled and it seems to me that, as ratifications expand, the use of universal jurisdiction should become less necessary.

So to round off, from your point of view, what will constitute a successful Review Conference?

I think, for me, the primary use of the Review Conference would be to give direction in issues for the future that will then be picked up year after year by the Assembly of States Parties. The special situation of the Review Conference is that there’s no time pressure, unlike at the Rome Conference. The Assembly of States Parties is constantly pressed by issues that it needs to deal with, including the budget of the Court; the Review Conference has none of these problems. So that, to me, is a unique opportunity to really look at the system very closely. It may be a bit early to look at the functioning of the Court, because a full cycle of proceedings will not have been completed – issues relating to this could, however, be passed onto the Assembly of States Parties.

Now, if progress is made on the issue of the crime of aggression and on Article 124 of exemption of war crimes in certain cases, and on at least one other proposal that was made by Belgium on poisonous gases, that is all for the good. But, for me, the important thing is to use the Review Conference constructively for the future and not let failure to achieve certain objectives cloud the much more useful role it could play.

This is an edited version of the interview. To view it in full go to: tinyurl.com/ibakirsch.

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