Interview with Judge Kirsch, former ICC President

Interview with former ICC President, Philippe Kirsch, at the Hague roundtable of January 2010 in advance of the ICC Review Conference, June 2010, Kampala. Judge Kirsch discusses issues including the Kampala conference. 


James Lewis (IBA interviewer)
PK Judge Philippe Kirsch, former President, International Criminal Court


JL  I’m here in The Hague with Judge Kirsch, the former President of the International Criminal Court. He’s here to attend the IBA and ICC Monitoring Outreach programmes roundtable ahead of the 2010 Review Conference in Kampala. Judge Kirsch, thank you very much for joining us.

PK  Very pleased to be here.

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

PK  I think the Review Conference that will take place will be different from what was originally envisaged. Initially, the statute is very clear on this; you need to have a conference seven years after the entering into force of the statute, to have a look at the amendments, including crimes. And that meant that even though entering into force came earlier than anticipated, I think it was expected at the time that the court, after seven years, would have gone a longer way than it actually has. And the fact that states have withdrawn, seems to be withdrawing a number of specific proposals on crimes from the agenda of the conference, I think is wise because I think there is something else that is important to do, which is the stocktaking part which is to look at what has worked, what has not worked, what improvements can be made.

And, to me, the use of the conference will not so much be a turning point in new proposals or new amendments or new crimes, because that can be done by any session of the Assembly of States, but you don’t need to do it in 2010; you could do it in late 2010 or 2011 or later. What I think is important is that the conference identifies real issues faced by the court and by the states parties. Look at them and give directions for future consideration; that to me is the main objective of the conference. Of course, if progress can be made on 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 now central. In my view, the court is more in need of consolidation than in need of a great leap forward.

JL  You were President for many years and you’ve seen successes and you’ve seen failures. How would you assess those successes and failures and what are the issues that you think should come out of the Review Conference?

PK  In some ways, the court developed a lot faster than had been expected. The statute entered into legal force earlier, there are many more ratifications than were anticipated. A number of situations came in, the court became very active and, for me above all, the court showed that it was a judicial body, not a political body, which used to be an apprehension. And that led to increased understanding of the court and increased acceptance of the court. At the same time, the court was slower in developing in some ways than I, for example, had anticipated, partly because the system is so complicated. The judicial system and the organisational system of the court are so complicated that the interpretation of those issues continues to be difficult. The court has been operating in very difficult circumstances in the context of armed conflict and in political situations all the time.

And that means that this, of course, has created tensions between the courts and around the court in a variety of entities involved in that. I think the key to the future will be of course the court to continue to be purely judicial, to be effective, to do its work as it should, but also sustained support from states parties, sustained support in practical terms, for example, arrest warrants, which is an obvious example, sustained support also in political terms. When the court is under attack, for example, states that support it should be sometimes a little more vocal in really expressing the important things for the institution.

As far as the Review Conference, as I said earlier, I think what’s important is to define... There are four themes that I think are now on the table, one on stocktaking. One is complementarities and cooperation, or issues between the court and states. And then you have impact of the court and the relationship between peace and justice that are more for the state than for the court, because those are basically an assessment of the political impact of the court, not something that the court should be involved in itself, being a judicial body.

JL  An important area of discussion regarding the Rome Statute is the inclusion of the crime of aggression. Is it possible to have a discussion with that issue without it being politicised?

PK  Well, to say that the crime of aggression has no political angles would be very broad indeed. Acts of aggression have been known for a very long time; it was 74, the definition of aggression for the Security Council which included essentially any attack against territorial integrity of a state to political independence, those things, in the form of invasion, of a blockade, of bombardments and other manifestations. Those crimes found themselves in a draft that was prepared by the Working Group on Aggression of the different Assembly of States parties; we’ll see how the states react to that.

The second element, which did not exist in the 74 definition is that you need to move this act of a state into criminal responsibility of an individual, and that this draft is trying to do by saying, well, this is someone who’s in control of military or political forces of a state and is involved in a variety of ways in the acts I just mentioned. What the reaction will be to that particular definition, I am not sure, but there is another angle which is a lot more difficult, which is how you move from who must define an act of aggression before moving to the ICC who then will have to deal with the crime of aggression. Here, there are really different thoughts on this and I’m not sure whether it’s going to be possible to resolve an issue like that; it has been pending for years.

JL  Are you referring there to the privacy of the Security Council?

PK  Yes.

JL  What is your view on that, because it seems that there’s a sentiment that privacy of the Security Council inherently politicises the conduct of international justice?

PK  I think this is really a matter for states to express a view on. I don’t think this is my role. But what I do think is that at this stage of development of the courts, and given my view certainly that it needs consolidation more than great advances, I think progress is desirable on the crime of aggression but, if not all is done, it should not require such symbolic value as to ruin the rest of the conference, for example. I think it is important that all those issues that have been around for decades do not suddenly find a place in this Review Conference that is so unique that it will lead states to strike off other issues that are at least as important at this point.

JL  I respect what you’re saying, that it’s political issues for states parties, rather than for yourself, but as the former President to the ICC, are you not discomfited by the role of the Security Council and the...?

PK  The Council?

JL  Well, the politicisation issue really, does that not make you uncomfortable as someone pursing international justice?

PK  If you look at the current role of the Security Council, it has two angles. One is triggering the jurisdiction of the ICC; the other one is suspending the exercise of the jurisdiction in certain circumstances. Of course, the Security Council is a political body and of course it has been acting a number of times in ways that are not very satisfying. But the principle that there could be an avenue if you found a situation where massive crimes are committed and not states parties are involved, which block the ICC’s ability to take up the situation itself, then I think that is important because I think the ICC should never go beyond its jurisdiction. Once it does that, it will have crossed the Rubicon. So it should not do that.

So if another organisation is entitled to refer situations to the ICC, I think that is a plus. The ICC then will exercise its role; maybe the grounds on which the referral has been made will not be deemed valid, but I think it is important, especially with only 110 ratifications and some parts of the world not being covered by the ICC, a large part of Asia and the Middle East. It’s important and useful, I think, that the Security Council can do that. That does not affect the legal process later, but at least the trigger is there.

The suspension part is more difficult. I do understand the rationale for this; I do understand that the issue of really sensitive negotiations and suddenly the judicial process starts, it can create of course problems in that kind of process. I do understand that. But I think that the Security Council should be very careful with using that too, because if it is used any time that a problem arises - there’s no indication of that because, after all, there were possibilities already - but if that were to happen then it would mean that the ICC is really prevented not only from exercising its mission, but from having a preventive role that it otherwise would have. I think if states in the Security Council were to look at that possibility, they really should look at the implications over time.

JL  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.

PK  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. It has been slower than I had hoped at the beginning because of circumstances, but progress has been made and you do have, for example, an effective prevention that is happening in some circumstances. The ICC is very young. When you compare the 110 states that have become parties after, what, a few years, to the states that have accepted the obligatory jurisdiction of the ICJ, which are about 60 after 60 or so years, the ICC is not doing so badly. Now, that’s one point.

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, not going overboard in terms of 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 on that 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, and it is happening, have a very useful cooperative role if you are a non-state party with the ICC, which, certainly in the short term, does not require any ratification.

JL  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 somewhat powerless countries from the Balkans, for example?

PK  I think the way the question is phrased may suggest that going to... the ICC’s involvement 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 this as having value for humanitarian reasons or for geopolitical reasons, a number of African states were seeing the ICC as a protection against the temptation by other states to have people commit crimes on their territory. They said repeatedly, no one knows the impact of international crimes more vividly and the tragedies that they cause more than African states.

Kofi Annan said a few months ago, you know, why is it that African heads of state would be less interested than others in having protection for victims that happen to be in Africa? All the situations that have been brought to the ICC now have been brought by three African states and the Security Council. The ICC itself has not taken up any situations. So the notion which I’m sure was not intended in your question, but the notion that the ICC is after certain states, I think is demonstrably so far unfounded because states came to it. The Prosecutor is considering a number of situations now which are outside Africa and some are in quite developed countries.

JL  Which are those?

PK  Well, Columbia, Afghanistan, Georgia, to give you some examples, so those have nothing to do with Africa. But I also would say something which is institutionally more important and 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, say, a state to another state 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. So not those countries that you are mentioning – and now I’m just thinking again in institutional terms – they’re not off board automatically, it depends on circumstances.

JL  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.

PK  The Prosecutor looked at, in the case of Iraq, the Prosecutor looked at communications, all those communications that came to him and said in the case of the United States, obviously the United States is not a party, Iraq is not a party, the ICC has no jurisdiction. But in the case of British soldiers, he looked at it and determined, one, that the gravity was not sufficient to be a matter for the ICC and, two, that he had no reason to think that a complementary thing would not work, that is the British national system, if crimes had been committed by British soldiers, would not properly deal with them. So that seems to me at least that he looked at those issues; he did not discard or try to ignore crimes because powerful countries were involved.

JL  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 and perhaps should be at the Review Conference?

PK  Yes, but those countries that you mentioned are not always seeing things the same way.

JL  What do you want from America then, for example?

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

JL  Is it important?

PK  I think ratification in the long term, yes, of course 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.

JL  What are those ways that you’ve been looking at?

PK  To cooperate with the Prosecutor, for example, giving information, perhaps assisting in arrest. But, again, I’m talking about the abstract; I’m not talking about specific situations. But I’m just saying that a state that is not a party to the system but finds it in its own national interest and for broader reasons linked to development and promotion of international justice, to cooperate with the ICC, they could perfectly do it, as is the case now on the part of a number of non states parties to do it.

JL  Given that you’re agreeing in part that the ICC is a very young institution, 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? And I’m thinking particularly of Europe in those jurisdictions.

PK  Well, this is the foundation of everything. In an ideal world you would not need international justice because either massive crimes would not longer be committed, which is ultimately, I suppose, the hope of prevention and deterrence, or if they are committed, which unfortunately is likely, their national system will do their work. The case of universal jurisdiction in a sense is very similar to the principle behind the ICC creation. It is a mechanism of last resort.

When your jurisdiction does not apply to certain crimes because of circumstances, then states have been inclined to say, well, those crimes, we should be able to reach those crimes and create... and apply universal jurisdiction. 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 it really created universal jurisdiction... create 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.

JL Thank you very much. So to round off, from your point of view, what will constitute a successful Review Conference?

PK I think, for me, the primary use of the Review Conference would be to give directions in future issues 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 pressure of time. There was huge pressure at the Rome Conference to finish and the way it ended, it had to end for a variety of reasons at the time, but the way it ended created some divisions in the international community.

The Assembly of States Parties of course does not have those divisions, but it’s constantly pressed by issues that it needs to deal with, including the budget of the court. Here you have a Review Conference which has none of that, no end to finish, no need to finish because the Assembly of States Parties can't take up issues, and no daily chores as the Assembly does have. So that, to me, is a unique opportunity to really look at the system very well. It may be a bit early to look at the functioning of the court because a fully cycle of proceedings will not have ended and I don’t think the court itself will be in a position. The court itself may identify certain issues but again, given the brevity of the conference, I don’t think it’s really reasonable to deal with them. But some thoughts could be passed to the Assembly of States Parties.

Now, if progress is made also on 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, to me, the important thing is to use the Review Conference constructively for the future and not let failure to achieve certain objectives lose track of the much longer useful role it could have.

JL Are there things that could be done to pave the way for non states parties from the Middle East and Asia, a problem that you alluded to earlier?

PK Pardon?

JL There are a lack of states parties from Asia and the Middle East. Is there a way of paving the way for that?

PK I think it is part of it. Why certain states do not ratify, you have a variety of reasons for that. Some of those reasons are simply local, regional circumstances and of course it is clear that certain states, even if they like to ratify, will wait until certain things are covered before doing it. But there’s another set of kind of states which are just waiting to see what the ICC does and how it behaves and how the system works, and I think looking at issues like cooperation, complementarities, peace and justice, impact of the court, is a very useful way of reassuring states that are outside the system that the system is not ignoring issues, that it is looking at things that are difficult and is working towards solutions.

JL Excellent. Thank you very much indeed for your time.

PK Thank you very much.

JL Thank you, Judge Kirsch.