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Statement of the UN High Commissioner for Human Rights to the UN Preparatory Committee on the Establishment of an International Criminal Court, New York, 11 December 1997
11 December 1997
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The High Commissioner for Human Rights takes an active interest in the Preparatory Committee meetings and the endeavours of the international community to create a permanent international criminal court, particularly as so many aspects of international criminal law and justice relate directly to international human rights, and hence, to the mandate of the High Commissioner, which, in line with the Vienna Declaration on Human Rights, 1993, is to coordinate human rights protection and promotion throughout the UN system. The crimes being considered for inclusion in the statute of the proposed court, for the most part, concern serious violations of international human rights and humanitarian law. And it has become a truism that, integral to the coherent and sustainable protection of human rights, is the effective enforcement of international criminal law, not only to punish and rehabilitate the offender, but to promote credible deterrence in respect of future violations. A major advantage of a permanent international criminal court over the ad hoc tribunals would be to increase deterrence on a universal basis and thereby to help prevent the commission of crimes under international law, including such major violations as genocide, war crimes and crimes against humanity.
The importance of solid international criminal law enforcement to break the cycle of impunity in countries wrought by communal violence, countries where the Government is either unwilling or unable to enforce the domestic criminal law, has long been recognized by the Office of the High Commissioner and its institutional predecessor, the UN Centre for Human Rights, as well as many Special Rapporteurs, Representatives and Experts mandated to report to the Commission on Human Rights. The close connection between long lasting and sustainable human rights protection and respect for the rule of law and the presence of a coherent international criminal law regime is one reason why the Office of the High Commissioner for Human Rights has been associated with the work of the Commissions of Experts in the former Yugoslavia and Rwanda which recommended the creation of the two ad hoc international criminal tribunals respectively. More recently, the High Commissioner’s Office has been engaged in the operation of the Secretary-General’s Investigative Team to the Democratic Republic of the Congo.
The High Commissioner therefore remains keenly interested in the various debates on the procedural and substantive aspects of the proposed court. In this regard, the High Commissioner wishes to make only one general observation. The high standards of international criminal law and justice require that the crimes to be included in a statute for a permanent court be defined with sufficient clarity, specifity and coherence as to make clear to potential perpetrators what kinds of acts import criminal responsibility and which do not. This level of precision, along with the requirement that the statute’s list of prohibited acts reflect established international legal norms, would serve to strengthen the deterrent value of international criminal law through stability and predictability in adjudication and would also ensure that the fundamental principles of nullum crimen sine lege and nulla poena sine lege would be fully honoured.
However, the need for stability, clarity and specificity in international criminal law implementation must be balanced with the need to guard a certain flexibility to allow a permanent international criminal court to adapt to new circumstances and to avoid becoming outdated or irrelevant. International criminal law must be clear, coherent and comprehensive, since excessive complexity in the law benefits no one but the perpetrator. In this respect, the High Commissioner supports the view expressed by the ICRC and many delegations that the statute for a permanent international criminal court should not be restricted to covering crimes under international law committed only in international armed conflict. The distinction between international and non-international armed conflict, a major criterion in the 1949 Geneva Conventions and 1977 Additional Protocols, has shown itself to be a severe hindrance to the effective application of international humanitarian law, not only because it makes the extension of rights and obligations contingent upon the distinction as an empirical matter, but also because so many armed conflicts are genuinely of a status mixtus. The prime concern should always be firmly focussed on the potential victim, rather than on technical distinctions or legal niceties. No one should need to be reminded that the atrocities committed in time of internal armed conflict may be every bit as bloody as those committed in time of international armed conflict.
As the ICRC and many other delegations have pointed out, the International Court of Justice and the ad hoc international criminal tribunals have recognized the contents of Article 3 common to the four Geneva Conventions which applies both to international and non-international armed conflict, first, as part of international customary law, and second, to import individual criminal responsibility under international law in respect of the prohibited acts enumerated.
For all these reasons, the search for a statute for a permanent international criminal court acceptable to all or most States, does not justify reaching for the lowest common denominator. The statute for a permanent international criminal court should not stick slavishly to outdated or arcane distinctions that have developed over the centuries in the relevant lex lata merely to satisfy those who wish to avoid any scrutiny of any situation in their territory, no matter what scale of crimes are being committed, on the grounds that the armed conflict qualifies technically as a non-international armed conflict.
International criminal law cannot be made effective unless the obvious inconsistencies in the international legal norms are avoided. What is being urged is not to embark on any new codification effort, but rather simply to take due account of the law as it has developed in the last five decades, instead of attempting to return to the day when the 1949 Geneva Conventions were adopted.
Otherwise, how could we move forward at all? Legal norms prohibiting sexual violence, for example, although rooted in the ancient customary laws of war, have been completely inadequate, and in fact, did not figure expressly even in the 1991 ILC draft Code of Crimes against the Peace and Security of Mankind, but fortunately, have been included in the two ad hoc tribunal statutes.
As we approach the fiftieth anniversary of the adoption of the Universal Declaration of Human Rights, it is valuable to recall the often difficult process whereby the outrage of the international community over the horrific violations committed during World War II was translated into the development and concretization of human rights as an established part of international law. For the future, it is encouraging to see the international community take the next logical step towards the better implementation of international human rights and humanitarian law.
The High Commissioner intends to continue to follow closely the proceedings of the Preparatory Committee, hoping that we can all move forwards towards the establishment of a truly effective permanent international criminal court - a court which will apply the law in a coherent, comprehensive and fair fashion.
The importance of solid international criminal law enforcement to break the cycle of impunity in countries wrought by communal violence, countries where the Government is either unwilling or unable to enforce the domestic criminal law, has long been recognized by the Office of the High Commissioner and its institutional predecessor, the UN Centre for Human Rights, as well as many Special Rapporteurs, Representatives and Experts mandated to report to the Commission on Human Rights. The close connection between long lasting and sustainable human rights protection and respect for the rule of law and the presence of a coherent international criminal law regime is one reason why the Office of the High Commissioner for Human Rights has been associated with the work of the Commissions of Experts in the former Yugoslavia and Rwanda which recommended the creation of the two ad hoc international criminal tribunals respectively. More recently, the High Commissioner’s Office has been engaged in the operation of the Secretary-General’s Investigative Team to the Democratic Republic of the Congo.
The High Commissioner therefore remains keenly interested in the various debates on the procedural and substantive aspects of the proposed court. In this regard, the High Commissioner wishes to make only one general observation. The high standards of international criminal law and justice require that the crimes to be included in a statute for a permanent court be defined with sufficient clarity, specifity and coherence as to make clear to potential perpetrators what kinds of acts import criminal responsibility and which do not. This level of precision, along with the requirement that the statute’s list of prohibited acts reflect established international legal norms, would serve to strengthen the deterrent value of international criminal law through stability and predictability in adjudication and would also ensure that the fundamental principles of nullum crimen sine lege and nulla poena sine lege would be fully honoured.
However, the need for stability, clarity and specificity in international criminal law implementation must be balanced with the need to guard a certain flexibility to allow a permanent international criminal court to adapt to new circumstances and to avoid becoming outdated or irrelevant. International criminal law must be clear, coherent and comprehensive, since excessive complexity in the law benefits no one but the perpetrator. In this respect, the High Commissioner supports the view expressed by the ICRC and many delegations that the statute for a permanent international criminal court should not be restricted to covering crimes under international law committed only in international armed conflict. The distinction between international and non-international armed conflict, a major criterion in the 1949 Geneva Conventions and 1977 Additional Protocols, has shown itself to be a severe hindrance to the effective application of international humanitarian law, not only because it makes the extension of rights and obligations contingent upon the distinction as an empirical matter, but also because so many armed conflicts are genuinely of a status mixtus. The prime concern should always be firmly focussed on the potential victim, rather than on technical distinctions or legal niceties. No one should need to be reminded that the atrocities committed in time of internal armed conflict may be every bit as bloody as those committed in time of international armed conflict.
As the ICRC and many other delegations have pointed out, the International Court of Justice and the ad hoc international criminal tribunals have recognized the contents of Article 3 common to the four Geneva Conventions which applies both to international and non-international armed conflict, first, as part of international customary law, and second, to import individual criminal responsibility under international law in respect of the prohibited acts enumerated.
For all these reasons, the search for a statute for a permanent international criminal court acceptable to all or most States, does not justify reaching for the lowest common denominator. The statute for a permanent international criminal court should not stick slavishly to outdated or arcane distinctions that have developed over the centuries in the relevant lex lata merely to satisfy those who wish to avoid any scrutiny of any situation in their territory, no matter what scale of crimes are being committed, on the grounds that the armed conflict qualifies technically as a non-international armed conflict.
International criminal law cannot be made effective unless the obvious inconsistencies in the international legal norms are avoided. What is being urged is not to embark on any new codification effort, but rather simply to take due account of the law as it has developed in the last five decades, instead of attempting to return to the day when the 1949 Geneva Conventions were adopted.
Otherwise, how could we move forward at all? Legal norms prohibiting sexual violence, for example, although rooted in the ancient customary laws of war, have been completely inadequate, and in fact, did not figure expressly even in the 1991 ILC draft Code of Crimes against the Peace and Security of Mankind, but fortunately, have been included in the two ad hoc tribunal statutes.
As we approach the fiftieth anniversary of the adoption of the Universal Declaration of Human Rights, it is valuable to recall the often difficult process whereby the outrage of the international community over the horrific violations committed during World War II was translated into the development and concretization of human rights as an established part of international law. For the future, it is encouraging to see the international community take the next logical step towards the better implementation of international human rights and humanitarian law.
The High Commissioner intends to continue to follow closely the proceedings of the Preparatory Committee, hoping that we can all move forwards towards the establishment of a truly effective permanent international criminal court - a court which will apply the law in a coherent, comprehensive and fair fashion.