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18 December 2002



STATEMENT OF THE
UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS,
SERGIO VIEIRA DE MELLO,

TO THE INTERNATIONAL CRIMINAL LAW NETWORK CONFERENCE,
“ESTABLISHING THE INTERNATIONAL CRIMINAL COURT”

THE HAGUE, THE NETHERLANDS, 18-20 DECEMBER 2002


Mr. Chairman, Colleagues, Ladies and Gentlemen,
It is a pleasure to be here with you today and to share with you some thoughts concerning the International Criminal Court (ICC) and the role of my Office. It is a particular privilege to be on this panel with those who have dedicated so much time, energy and commitment to the creation of the emerging international criminal legal order. Allow me to pay particular tribute to the tenacity of Phillippe Kirsch, who has been such a crucial force in the creation of the ICC.

I am here today as the UN High Commissioner for Human Rights, a position I assumed only three months ago. But, over the many years of my UN career, I came face to face with the various manifestations of human suffering: refugees and the displaced, victims of armed conflict, persecution and discrimination. On the other hand, I watched as thousands of people in Timor Leste lined up to cast their votes and proclaim their new-found democracy, which is still fragile as recent events have shown. One abiding lesson that I have picked up in all these difficult and challenging assignments is that we should never underestimate the capacity of human beings to brutalize and dehumanize each other. But also, we should always have confidence in the ultimate ability of the collective human spirit to triumph over such brutality.

On 1 July this year, when the Rome Statute entered into force, many of us felt a wave of optimism. Finally a dream has come true. An international court has been established for holding accountable the perpetrators of genocide, war crimes and crimes against humanity. At the same time we should recall the remarkable collaborative process that enabled us to get this far. I am thinking of the partnership that developed, throughout the process of elaborating the ICC Statute, between States, civil society organizations, as well as the United Nations. The establishment of the ICC owes a great deal to the interest, passion and determination invested in the idea by a broad range of actors: governments, academics, represented on this panel by Professors Roger Clark and Otto Triffterer, as well as human rights and civil society organizations. All these, together with the UN, played a part in the realization of the idea of an international criminal court.

Over the last decade, the UN, and the international community in general, has learnt crucial lessons from the operation of the ad hoc international criminal tribunals established for the Former Yugoslavia and Rwanda. The presence of the Prosecutor, Carla de Ponte, on this panel reminds us of the hard and difficult work undertaken by these Tribunals. This work, carried out with dedication and sophistication, has inspired the ICC project. These tribunals have proved particularly important for the substantive development of international criminal law. But they also made the ICC project seem more possible .

Let me now briefly deal with five aspects of the ICC Statute that connect with our work at the Office of the High Commissioner.

First: The principle of Complementarity

The Statute starts by stating that the ICC will be complementary to national criminal jurisdictions. The actual mechanisms of complementarity within the Statute are complicated. Let me just highlight one issue. The operation of the ICC Statute is interrelated with the capacity of states to conduct national prosecutions through their domestic legal systems. In the end the new International Court will only deal with a limited number of cases. The focus will inevitably turn, at various stages, to the national level. We have to help governments to ensure that their legislation and judicial processes actually enable the executive and the judiciary to genuinely carry out these national prosecutions under the terms of the ICC Statute and in conformity with international human rights law. My Office, though its technical cooperation work, is ready to assist state authorities in exploring how best to adapt their laws and practices. I know that human rights organizations in the Coalition for the ICC are similarly ready with expert advice on implementing legislation for the ICC and for ensuring effective national jurisdiction over international crimes. With such a careful focus on the domestic level, we can take giant strides to end impunity for international crimes.

Second: Crimes against humanity

The inclusion of crimes against humanity in the ICC Statute was seen as a victory for human rights. These crimes were in fact at one time referred to as systematic or mass violations of human rights, (in the 1991 International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind). These crimes can be committed in the absence of an armed conflict. They cover such human rights crimes as enslavement, torture, rape, sexual slavery and other forms of sexual violence, when committed against any civilian population as part of a widespread or systematic attack. In contrast with the Statutes for the Tribunals concerned with Crimes in the Former Yugoslavia and Rwanda, an important addition at the Rome Conference was the inclusion of enforced disappearance in the catalogue.

In the coming months a UN draft text on disappearances will be discussed with a view to the adoption of a legally binding instrument. As with the crime of torture, we will soon almost certainly have a UN convention which addresses a horrific phenomenon which can play a part in preventing and punishing acts of enforced disappearance. In contrast to the Rome Statute, the proposed text covers all disappearances - even where they have not reached the level of a systematic or widespread attack (which is necessary to qualify them as a crime against humanity under the Rome Statute). It is obvious that the regime for the prevention and suppression of disappearances that will develop in the context of any new instrument will be of interest to the ICC. First, there will clearly be evidence collected which could be of interest to the ICC Prosecutor in deciding whether to launch an investigation. Second, the evolution of the offence, as understood in the context of the new instrument, may be of interest to the Court.

Third: gender justice

The Rome Statute represents an advance with regards to the inclusion of gender concerns in the construction of international criminal law. I have called on States at the UN General Assembly to pay particular attention to the need to elect women judges to the ICC. With regard to the substantive crimes and the protection of witnesses, the Statute contains innovative detailed provisions. Much of the credit for this has to go to the well-organized civil society organizations and caucuses that tirelessly pounded the corridors in Rome lobbying government representatives to take these issues seriously. My experience in Timor Leste has left me with no doubt that the UN and the international criminal law regime has to be vigilant and adapt to ensure that sexual violence properly addressed. This has to be done in ways which are not only effective but do not result in another round of humiliation for the victims. Again, within the human rights regime, we have a new treaty which is relevant in this regard. The new Optional Protocol to the Convention on the Elimination of Discrimination Against Women allows for complaints to the Committee on the Elimination of Discrimination Against Women. Where these complaints indicate grave or systematic violations by a State Party a special inquiry procedure may be established by the Committee. Again, it seems probable that much of this work may be of considerable interest to the Court and its Prosecutor.

Fourth: Fair trial

The provisions concerning fair trial in the Rome Statute are already having an impact on the standards applicable at the national level. The incentive for states to submit cases to the Prosecutor under Article 14 of the Statute will be partly based on the knowledge that the fairness of the trial will hopefully be beyond reproach. We can expect the ICC to come under particular pressure to be seen to be abiding by all the international human rights standards relating to fair trial. My Office will be ready to co-operate in any appropriate way to ensure that our specialist knowledge on the international standards applicable in the context of fair trial is made available to all concerned.

Fifth: Transitional Justice and the Creation of International Jurisdictions

The ad hoc solutions adopted for the former Yugoslavia, Rwanda, Sierra Leone and Timor Leste have shown the role that prosecutions can play in the context of countries in crisis. It seems possible that future situations may actually be referred to the Prosecutor by the Security Council under Article 13(b) of the ICC Statute. As the Council considers how it will exercise its referral powers under the ICC Statute, it will be particularly important to carry out a preliminary assessment of whether the any gross human rights violations might amount to crimes within the jurisdiction of the ICC. My Office is prepared to cooperate in appropriate ways in this regard.

Of course prosecution, is not the only option. I am thinking in particular of the issue of juvenile justice. The ICC Statute precludes the prosecutions of those under 18 at the time of the alleged crime. We need to think of solutions for such situations. In the context of Sierra Leone, for example, this is left to the Truth and Reconciliation Commission, as the Prosecutor for the Sierra Leone Tribunal has announced that he will not prosecute those who were under 18. The Truth and Reconciliation Commission, which is supported by my Office, is conducting consultations with child protection agencies and NGOs to develop a framework for the participation of children in the truth and reconciliation process. We also expect to work on rehabilitation and reconciliation initiatives in other contexts.

Lastly, let me leave you with one final message. While we celebrate the establishment of the ICC, our work to eliminate impunity has to redouble and to continue to address the importance of national courts prosecuting international crimes. Impunity can only be properly conquered when the international and national actors work effectively together.

Thank you.