Author Sang-Hyun Song, President of the International Criminal Court.
December 2012, No. 4 Vol. XLIX, Delivering Justice
“Determined to put an end to impunity for the perpetrators of the most serious crimes of concern to the International Community as a whole and thus contribute to the prevention of such crimes“
Preamble of the Rome Statute
On 24 September 2012, the United Nations General Assembly held a High-level Meeting on the Rule of Law at the National and International Levels during which numerous delegates spoke about the importance of the International Criminal Court (ICC). In the Declaration adopted at the meeting, States recognized “the role of the International Criminal Court in a multilateral system that aims to end impunity and establish the rule of law”.1 In my remarks to the Assembly on 1 November 2012, I welcomed this statement, which echoed many earlier characterizations of the Court’s role.2
The crux of the ICC role lies in enforcing and inducing compliance with specific norms of international law aimed at outlawing and preventing mass violence.
Confronted with the extensive perpetration of unspeakable atrocities after the Second World War, the international community articulated an unparalleled call for justice. It sought to put an end to such crimes through, inter alia, the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide, the four Geneva Conventions and the Nuremberg Principles.
However, in the absence of credible enforcement mechanisms, violations of international humanitarian law continued with glaring impunity. In response, the international community decided to take joint action by creating an interconnected system of international justice to prevent impunity for the worst atrocities known to mankind. On 17 July 1998, this vision materialized when States adopted a multilateral treaty called the Rome Statute of the International Criminal Court, under the auspices of the United Nations. With the entry into force of the Rome Statute on 1 July 2002, the first permanent international criminal court, the ICC, came into being.
The ICC contributes to the fight against impunity and the establishment of the rule of law by ensuring that the most severe crimes do not go unpunished and by promoting respect for international law. The core mandate of the ICC is to act as a court of last resort with the capacity to prosecute individuals for genocide, crimes against humanity and war crimes3 when national jurisdictions for any reason are unable or unwilling to do so. As of November 2012, the ICC is seized of 14 cases in seven country situations, involving a total of 23 suspects or accused.4 Three of the investigations in Uganda, the Democratic Republic of the Congo (DRC) and the Central African Republic resulted from referrals made by the States themselves; two situations in Darfur, Sudan and Libya were referred to the ICC Prosecutor by the United Nations Security Council, and the last two investigations in Kenya and Côte d’Ivoire were initiated by the Prosecutor proprio motu, with the authorization of the Pre-Trial Chamber of the ICC. In addition, the Prosecutor is currently conducting preliminary examinations into eight situations.5
The Rome Statute and the ICC have made particular advances in combating impunity in relation to crimes against children and women. The Rome Statute extensively codifies such acts and requires the organs of the ICC to have particular expertise on violence against women and children. In fact, gender crimes were featured in the vast majority of ICC cases to date.
The ICC’s first verdict was issued on 14 March 2012 and the first sentence on 10 July 2012 in the Lubanga case,6 where child soldiers under the age of 15 were conscripted, enlisted and used to actively participate in hostilities in the DRC. Charges relating to the use of child soldiers are also featured in several other ICC cases, and the Special Representative of the United Nations Secretary-General for Children and Armed Conflict has assessed that “these indictments serve as a useful deterrent against child recruitment in situations of armed conflict”.7
As the then United Nations Secretary-General Kofi Annan stated in 2004, the ICC makes an impact by “putting would-be violators on notice that impunity is not assured [.]”.8 Where tensions arise, announcing publicly that the ICC is following the situation can be a powerful way to warn any potential perpetrators that they could be held liable for their actions. Moreover, it can draw local as well as international attention to the situation and induce the relevant national and other stakeholders to take necessary action to defuse the crisis. Not long ago, a minister from one of the States Parties to the Rome Statute told me that the possibility of an ICC intervention was a major factor that helped prevent large-scale violence in the context of the country’s elections.
Even where the ICC’s intervention is required, it does not necessarily have to lead to trials before the ICC. An ICC investigation may instead prompt the relevant national authorities to investigate the alleged crimes in an expeditious manner and to prosecute the suspected perpetrators in domestic courts.
The ICC reduces impunity not only by punishing perpetrators, but also by allowing victims to participate in the judicial proceedings and to apply for reparations.9 These are novel, progressive features in international criminal proceedings that empower victims and bring retributive and restorative justice closer together. As of November 2012, the ICC has received more than 12,000 applications for participation in the proceedings, the majority of which have been accepted. Its first decision on reparations for victims was issued on 7 August 2012.10
A related and innovative aspect of the Rome Statute system was the creation of the Trust Fund for Victims, which has the dual mandate of implementing court-ordered reparations as well as providing assistance to victims and their families irrespective of judicial decisions. Currently, over 80,000 beneficiaries receive assistance from the Trust Fund and its local and international partners. In responding to the particular needs of victimized individuals by enabling them to regain their place within their communities and to rebuild sustainable livelihoods, the Trust Fund is becoming an increasingly visible presence on the nexus between justice and development.11
The Rome Statute created not only a court, but also a new international legal system consisting of the ICC as well as the national jurisdictions of each State Party. Within this system, States have the primary responsibility to investigate and prosecute Rome Statute crimes. In his 2004 report, Mr. Annan noted that “the Court is already having an important impact by [.] serving as a catalyst for enacting national laws against the gravest international crimes”.12 Indeed, the Assembly of States Parties to the Rome Statute has repeatedly stressed the importance of national implementation of the Statute and of strengthening the capacity of national jurisdictions and has considered ways to achieve those goals. Recently, discussions on these issues, under the Rome Statute concept of complementarity, have been multiplied in many forums among a wide range of stakeholders, notably the United Nations, interested States and civil society.
Without the rule of law, impunity reigns. By punishing violations of international legal norms and by promoting adherence to these norms, the ICC and the wider Rome Statute system play an important part in advancing the rule of law, thereby reducing impunity. This role is critical given the nature of the specific norms that the Rome Statute concerns—norms aimed at preventing crimes which “threaten the peace, security and well-being of the world”.13 The acts and omissions which fall under its jurisdiction are so heinous, so destructive, that every effort towards their prevention is worthwhile. Accountability is important not only for the sake of the past, but for the future as well. Where impunity is left unaddressed, it provides fertile ground for the recurrence of conflicts and repetition of violence.
In order to effectively perform its mandate, the ICC needs the support and cooperation of States.14 The international community has, on multiple occasions, declared its determination to end impunity for the gravest crimes, and cooperation with the ICC is a concrete way to give effect to that objective. As the ICC has no police force of its own, it requires States’ cooperation for the enforcement of its orders and is entirely reliant upon them for the execution of its arrest warrants. Unfortunately, several suspects subject to ICC arrest warrants have successfully evaded arrest for many years, defying the international community’s attempts to establish the rule of law at the international level. Political will to bring these persons to justice is crucial.
The Rome Statute system has changed the way the world looks at grave crimes under international law. With the arrival of a permanent international court to prosecute such crimes, national jurisdictions have simultaneously been encouraged and empowered to prevent impunity. As of 1 July 2012, the Rome Statute has 121 State Parties that have fully endorsed the new justice paradigm centred on the ICC. An additional 32 States have signed, but not yet ratified the Statute. I wholeheartedly endorse the General Assembly’s call upon States not yet party to the Rome Statute to consider joining the ICC.15 The universality of the Rome Statute would not only extend its legal protection to people everywhere, but it would also increase the equality of perpetrators before the law.
The long-term value of the ICC and the Rome Statute system lies in both the punishment of perpetrators and the prevention of future crimes. There is already evidence that it has made a significant contribution in this regard. As it enters its second decade, the ICC remains firmly committed to bringing an end to impunity and upholding the rule of law, inspired by the common values of humanity that the Court shares with the United Nations.
1 Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, A/67/L.1, 19 September 2012.
2 See e.g., “The International Criminal Court offers new hope for a permanent reduction in the phenomenon of impunity” and the establishment of the ICC is “[u]ndoubtedly the most significant recent development in the international community’s long struggle to advance the cause of justice and the Rule of Law”, Report of the Secretary-General, 23 August 2004, S/2004/616, para. 49; “The Security Council notes that the fight against impunity for the most serious crimes of international concern has been strengthened through the work of the International Criminal Court [.]”, Statement by the President of the Security Council, 26 June 2010, S/PRST/2010/11; “the members of the Security Council recall the contribution of the [.] International Criminal Court [.] in the fight against impunity for the most serious crimes of concern to the international community”, Security Council Press Statement on the contribution of courts and tribunals in the fight against impunity, 5 July 2012, SC/10700.
3 And the crime of aggression, once the relevant Rome Statute amendments come into force.
4 In addition, four other suspects have appeared before the ICC, but the Pre-Trial Chamber declined to confirm the charges against them on account of insufficient evidence to justify a trial. A further two suspects died while at large. See full details at http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx.
5 Afghanistan, Colombia, Georgia, Guinea, Honduras, Korea, Mali and Nigeria.
6 The Prosecutor vs. Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, Trial Chamber I, 14 March 2012, ICC-01/04-01/06-2842; The Prosecutor vs. Thomas Lubanga Dyilo, Decision on Sentence pursuant to Article 76 of the Statute, Trial Chamber I, 10 July 2012, ICC-01/04-01/06-2901. The Judgment and Sentence are currently under appeal.
7 Report of the Special Representative of the Secretary-General for Children and Armed Conflict, A/67/256, 6 August 2012.
8 Report of the Secretary-General, 23 August 2004, S/2004/616, para. 49.
9 Impunity has been defined as “the impossibility, de jure or de facto, of bringing the perpetrators of violations to account—whether in criminal, civil, administrative or disciplinary proceedings—since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims” [Emphasis added]. Updated Set of Principles for the Protection and Promotion of Human Rights through action to combat impunity, 8 February 2005, E/CN.4/2005/102/Add.1, p. 6.
10 The Prosecutor vs. Thomas Lubanga Dyilo, Decision establishing the principles and procedures to be applied to reparations, Trial Chamber I, 7 August 2012, ICC-01/04-01/06-2904. The decision is currently under appeal.
11 On the connection between justice and development more broadly, see e.g., World Development Report 2011, “Conflict, Security and Development”.
12 Report of the Secretary-General, 23 August 2004, S/2004/616, p. 16.
13 See Preamble to the Rome Statute of the ICC.
14 The importance of cooperation with the ICC was stressed in the Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, A/67/L.1, 19 September 2012, para. 23.
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