Hague roundtable 2010 transcript - part 1

Introductions by Liliana de Marco Coenen, Head, IBA/ICC Outreach Programme

Liliana de Marco Coenen (LdM): The International Bar Association is very interested in the issues of international justice, and in 2005 with the funding of the MacArthur Foundation started a programme to monitor the work and proceedings of the International Criminal Court and to conduct outreach activities around the world, dealing mostly with lawyers but also with civil society organisations, spread throughout the world.

2010 is a very exciting and interesting year for the International Criminal Court and this is because on 31 May, as you all know, there is a Review Conference for the Rome Statute for the International Criminal Court in Kampala, Uganda. As we look forward to this moment, to this event, we thought that the added value that the IBA could give was to really put together a panel of experts that could discuss the conference in Kampala and what the expected outcomes could be, and also discuss what is at stake at the review conference.

We are very happy and fortunate to have our eminent panel of experts today with us. And I would like to briefly introduce the speakers of today, although I’m sure you all know who they are. To your right, Judge Kirsch, who is currently a judge ad hoc at the International Court of Justice. But as you all know, from 2003 to 2009 he was President of the ICC and a judge of its Appeal Chambers. In 1998, when he was a diplomat in Canada, he chaired the Committee of the Whole of the UN Diplomatic Conference of Plenipotentiaries in the establishment of ICC, and later, the Preparatory Commission for the ICC from 1999 until 2002. He spent most of his 30 years in the Department of Foreign Affairs and International Trade Canada. He was Ambassador and then he represented Canada to the UN, then Director General of the Bureau of Legal Affairs, Assistant Deputy Minister and Advisor to the Department. He has chaired a number of other bodies, including the Drafting Committee at the 26th and 27th International Conferences of the Red Cross and the Red Crescent.

Next to Judge Kirsch, Ambassador Lomonaco of Mexico. He has been a member of the Foreign Service of Mexico since 1991. Among other positions he’s served as the Chief of Cabinet to the Minister of Foreign Affairs and the Secretary of Administrative Affairs and Counsel General of Mexico. He is the Mexican Ambassador to the Netherlands and has been the permanent representative to the Organisation for the Prohibition of Chemical Weapons (OPCW) since 2007. Ambassador Lomonaco was the first chairman of the Oversight Committee for the Permanent Premises of the International Criminal Court from 2008 to January 2009. And in November 2008, Ambassador Lomonaco was elected Vice President of the Assembly of States Parties (ASP) of the ICC for the period of 2008 to 2011… Ambassador Lomonaco is currently also the chairperson of the Executive Council of the OPCW.

So next to Ambassador Lomonaco is another familiar face and that’s Professor William Schabas, who is the Director of the Irish Centre for Human Rights at the National University of Ireland, where he’s a professor of human rights law. He’s also the author of more than 20 books and 250 articles on capital punishment, genocide and international criminal tribunals and he has been a visiting professor of universities around the world. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission and sits on the board of trustees of the United Nations Voluntary Fund for Technical Assistance in the Field of Human Rights. He’s also an Officer of the Order of Canada and was elected a member of the Royal Irish Academy in 2007.

And finally, to your left, Ambassador Stephen Rapp, who was nominated by the President of the United States to be Ambassador-at-Large for War Crimes Issues in July 2009. After confirmation by the US senate he began his duties in Washington on 8 September 2009. From 2001 to 2009 he also served as a UN appointed prosecutor in trials involving the genocide in Rwanda and mass atrocities against civilians in Sierra Leone. He led prosecutions that saw the first convictions of leaders of the mass media for incitement to commit genocide and the first convictions of high-level commanders for acts of general violence, including rape, sexual slavery and forced marriage. Most recently he was chief prosecutor of the Special Court for Sierra Leone, responsible for trials in Freetown as well as the prosecution of former President of Liberia, Charles Taylor.

And finally, I’d like to introduce to you the person moderating the discussion today. And to your far left, Ms Arvinder Sambei, who is a director of the Amicus Legal Consultants Ltd. She was formerly the Head of the Criminal Law Section of the Legal and Constitutional Affair Division at the Commonwealth Secretariat and was responsible for the legal running of the section and ensuring the design and delivery of programmes of assistance and training for member states. As a Senior Crown Prosecutor with the Crown Prosecution Service, Arvinder dealt with extradition, counter-terrorism, transnational war crimes cases. Prior to joining the Commonwealth Secretariat in 2005, Arvinder was employed by the Ministry of Defence as the Legal Adviser at the Permanent Joint Headquarters. She has written and spoken widely and has provided advice and training to a wide range of states and regional bodies. She’s also the co-author of the Extradition Law Handbook from the Oxford University Press, and, along with Martin Polaine and Anton du Plessis she is also the author of another book called The Counter Terrorism Law Book Practice, an international handbook. She’s currently working on a third publication for the Oxford University Press that will be focusing on extradition and other issues.

I just would like to ask you, please, to switch off your mobile phones and also to join in with the discussion and be proactive in also asking questions.

Introduction by Moderator Arvinder Sambei

Arvinder Sambei (AS): I think before we get into the main part of the discussions, if I could just a bit of housekeeping on the format of those and how we’re going to proceed. Essentially we have until about just after half past six to conclude our discussions with the panel and with you as an audience. And what we will try and do in working in all the themes, is that at a convenient stop, try and get you all engaged in the conversation and the discussions.

What we are going to try and do in this time period is try and focus on the key issues and themes that are likely to occupy the review conference. Now, you will have noticed that at the back of the room there are cameras, so it follows that the Chatham House rule does not apply to this afternoon’s discussions. So no apologies for that, because, as we understand, the review conference is not going to be held under Chatham House rule. It was only fair and proper that everybody had the chance to discuss openly and one can then say, these were my views and I hold those still. I hope, however, that that does not act as a deterring factor in any way or form, because it’s not meant to. Quite the contrary, to try and engage in as much of the discussion as you can. We have an extremely distinguished panel here with a huge amount of experience behind them. And I think it is up to all of us to try and draw out as much as we can from our panel this afternoon.

I think, very briefly then, I just need to add, for those of you who are not entirely familiar with... or for all of us who are not familiar with the review conference or with the statute, let me just very briefly say a few words on where we are going with this. The review conference, as we know, is mandated by article 123 of the Rome Statute and is due to take place in Kampala in Uganda between May and June this year. The conference, as we know, is convened by the UN Secretary General and the purpose behind it, and we will hear more from our panel, is to discuss specific amendments to the Rome Statute. But apart from that, and looking at, specifically, the crime of aggression, which I know will occupy a lot of thoughts this afternoon, what the Assembly of States parties have also recommended is to try and use this as an opportunity to do a bit of stock taking. I’m not quite clear what that means and I’m sure the discussion will help us with a proper understanding of that. But that is one of the key purposes of this review conference.

So bearing that in mind, what I thought that this discussion would take place with five broad themes. The first theme that I’d like to look at is the purpose and process of the review conference. Interlinked with that, of course we’ll do the stock taking that I proposed for the entire conference. The next two things will be the ICC and its relationship with the Security Council, and linked into that, the crime of aggression, and lastly, the legacy that is bound to come out, both from the court and the seven years, together with the review conference itself. Those are the broad five themes and we will carry on the discussion with our panellists and then open it out for discussion with you as participants as well.

As for the International Criminal Court itself, I think we’re all familiar with it and we’re all extremely aware of the historical challenge that led up to its development and setting up. I think the court, as we know, came to be on 1 July 2002 and has, at the moment, opened into four situations: northern Uganda, DRC, the Central African Republic and Darfur. 14 suspects have been indicted, of whom seven remain as fugitives, two have died, four are in custody and one has appeared voluntarily before this court. As we know, two trials have already began, that of Thomas Lubanga and the second one of Katanga and Chui.

So as we proceed just on this very short history, the road to the creation of this court is a deep and a long one. We can trace its origins back to 1990, 1958 and all the attendant events that occurred then. We also know that in 1989 when Trinidad and Tobago opened the idea of an international criminal court to look at the issue of drug trafficking, which interestingly enough has come back onto the table. That’s what led to the development of this court and here we are today with 139 signatories to this statute of which 110 are states parties. And breaking them down for regional purposes, 30 of them are from the African continent, 14 are Asian countries, 24 from Latin America and the Caribbean and 17 from Eastern European and 25 from Western European countries. This appears to be wide coverage, but there are large parts of the world that have not signed up to this convention and are not parties to the court, and we’ll try and explore all of those this afternoon.

Purpose of the Review Conference

Can I now turn to Judge Kirsch on the Review Conference – given that the Rome Statute Report is very much, one would say, in its infancy stage, having had only two cases at present, what, in your view, would be the purpose of this review conference and what do we really seek to achieve out of this?

Judge Philippe Kirsch (PK): I think the review conference that will take place will be very different from the review conference that was anticipated in the statute, and that is probably because when the ICC was created it was expected that, for seven years of operation, it would have gone a lot faster in certain areas. So I think that the focus will be on more general stocktaking. If progress can be made on aggression, on article 124, on the proposals on poisonous gas and chemical weapons, so much the better, but it seems to me that this is not an essential part of the conference, because the review conference is about an event and it has the benefit, contrary to any assembly of states parties, to be able to devote all its time without being pressed by budget and material considerations. What the Review Conference does not do, can be done later. I think it will be important not to rush into this and not to force arguments…To me it’s more what can be done in the future.

Perceptions of the ICC as focusing on Africa

AS: In working in Africa over the last few years and more recently as a few weeks ago, one of the things that troubles a lot of countries in Africa is that this entire court and statute is seen as a western institution and there is a perception…that the entire impetus seems to be to look at Africa rather than looking at worldwide. Is there any particular reason why that perception was not going to be addressed as one of the issues at the conference?

Ambassador Jorge Lomonaco (JL): I was hoping for an easier question than on Africa and the Western world! I think the fact that the conference is taking place in Kampala is an indication of a willingness of states parties to come to Africa and show to Africa that this is an international court. It’s not focused on Africa. It’s not a western court. The Prosecutor has been very clear in saying, look, we will prosecute crimes - we will not select this investigation based on geography…we will focus on the evidence and the law. I think this impression of focusing on Africa has been fed by some interested parties, that we have not done enough, states parties and the courts, to counter that impression. Some points in the debate and public opinion, this view has managed to survive and we need to fight this impression, wrongfully raised,with the number of state parties in Africa that are actively engaging in the court, the number of judges coming from Africa, and the general sense of the decisions of the court. So, responding to your question, I think this is a topic which will play a role in the discussions.

AS: Can I just ask the following: why not bring it to the foreground? Why leave it in the background simmering away when it’s such a critically important perception to be addressed?

AL: I don’t know if you need it as a topic as such, but of course if you engage in a debate on peace and justice, or cooperation, or any of the other topics, you will have to address this issue.