STATEMENT BY FOR HUMANITARIAN AFFAIRS EMMA BONINO

European Commissioner for Humanitarian Affairs At the Congressional Human Rights Caucus Washington, May 12, 1998

It is a pleasure to be here today to address such a distinguished and qualified audience; and it is a privilege to do so before the Congressional Human Rights Caucus in the context of a subject so very close to my heart: the establishment of an effective International Criminal Court.

Our world is changing - but not for the better. The end of the Cold War certainly did produce changes of unprecedented magnitude in world affairs since World War II. In the late 1980s came the illusions of the "New World Order," of the "End of History," and other prophetic visions of a more peaceful and better future. The crude, sometimes unbearable images of ethnic war in Europe, of the Rwanda genocide, and a whole string of striking images of violence, conflict and inhumane sufferings have brought about a more sobering view of what is happening in the post-Cold War world.

We are beginning to realize that peace and security can never be taken for granted.

War itself is changing. Traditional conflicts between armies of different nations have been replaced by the bloodiest internal and mixed conflicts, where civilians are not accidental casualties, but the primary target of attacks, where crimes against humanity and genocide are not only a means but a purpose of the conflict, where the minimum rules that all nations had agreed would always apply, the "laws of war," are violated as a policy, not by accident.

We are beginning to realize that the rules of humanity cannot be taken for granted.

Genocide, crimes against humanity, serious war crimes - and the impunity enjoyed by those responsible - create a vicious spiral of violence - and - revenge that eventually threatens our own security. These crimes create the many "Bosnias" that we eventually have to deal with, often risking the lives of our own soldiers.

The international community is now responding to the need to break the cycle of violence, to challenge impunity and to reinforce the rule of law.

As you know, this coming June, a diplomatic conference for the establishment of an International Criminal Court will convene in and negotiate the terms of reference for this new institution.

The Rome Diplomatic Conference is the culmination of many months - years - of negotiation, and is the natural progression from the commitment of the United States and its allies for the establishment of the two ad hoc Tribunals for the former Yugoslavia and Rwanda.

Indeed, ideas are now being floated to establish yet another ad hoc Tribunal on Cambodia - following the example of those for ex-Yugoslavia and Rwanda. I have always supported, unambiguously, the existing ad hoc Tribunals; and the European Commission has generously financed their structures - and their functioning. And I maintain that, were it not for the indictments by the Hague and the Arusha Tribunal, Radovan

PURL: https://www.legal-tools.org/doc/de6c22/ Karadzic and General Mladic would be among the elected leaders in Bosnia, and Colonel Bagosora would be peacefully enjoying the fruits of his atrocities.

But I am painfully aware of the difficulties those Tribunals have faced, and especially of the risks involved in a further proliferation of "special" courts. The trouble with those jurisdictions is that they are not only "ad hoc," but also "post hoc:" they are only set up - when they are set up - long after the crimes have taken place.

They have to struggle with structural and logistic problems with improvised procedural rules; with a mandate that is often perceived as another facet of a complex international problem. Also, the cost of an ad hoc system of justice can cause serious concerns: every time a new ad hoc Tribunal is created, the fixed costs of running the institution is added on the existing precarious UN budget.

What we need instead is a permanent Court structure, with a standing mandate and universal rules which would also constitute a powerful deterrent against crimes - and criminals - that the international community shall no longer tolerate.

We hope that the conference will fulfil the wish expressed by President Clinton last September before the General Assembly of the United Nations.

"Before the century endsÓ he said, Òwe should establish a permanent international court, to prosecute the most serious violations of humanitarian law."

I believe we should all keep in mind these words, and this symbolic deadline. The end of this century will also mark the end of a seemingly endless chain of horrors, including two world wars, a number of genocides - as well as mass starvation - and the growing of refugee and displaced populations.

It is our firm wish that the new century should start under more promising auspices: with an end to the perception of impunity. Impunity is an encouragement to commit crimes, and also is a formidable obstacle to reconciliation within societies - in Bosnia, in Rwanda, in Cambodia - which have been literally shattered by heinous crimes, perpetrated and with deliberation and determination.

What are we hoping to achieve, then, at the forthcoming Diplomatic Conference in Rome?

We need a credible Court, one that presents a credible deterrent to the Pol Pots of the 21st Century.

The minimum standards for an effective International Criminal Court have been recalled just recently by Lloyd Axworthy, the Foreign Minister of Canada, whom I wish to praise here for having once more taken the leadership on a major ethical issue in foreign policy.

First of all, we need to establish a Court with inherent jurisdiction over a core group of crimes: genocide, crimes against humanity and war crimes, including those committed in the course of civil wars and other internal conflicts. No additional "State Consent" should be required by State Parties to the ICC Statute. Would anyone seriously expect Saddam Hussein to agree to an investigation of alleged genocide against the Kurds in northern Iraq in 1988?

Secondly, we need a Court with a constructive relationship with other international

PURL: https://www.legal-tools.org/doc/de6c22/ institutions, and with the Security Council of the United Nations in particular. A number of options are on the table for Rome, (including many variants of the so-called "Singapore" proposal), that would allow the Security Council to request a stay of proceedings when action by the Court would compromise necessary action.

Thirdly, we need a Court with an independent prosecutor, able to initiate proceedings on his or her own accord. The Court's effectiveness will depend upon its being (and being perceived to be) an impartial and independent judicial body guided by legal - rather than purely political - considerations. If States and the Security Council alone can trigger the jurisdiction of the Court, it will always be perceived as a political tool.

On the one hand States will file complaints against nationals of hostile States for political reasons. On the other hand many deserving cases would never come to the Court because no State wishes to pay the economic, political and diplomatic price of issuing complaints against the individuals of another State. A number of possible solutions are on the table for Rome, including provisions for close judicial scrutiny of the prosecutor's actions.

Finally, the Court should have adequate procedures to ensure its fair and effective operation, to safeguard the rights of the accused and to ease the giving of evidence of the victims.

Other decisions need to be made in Rome, but these are four of the most important basic elements of an International Criminal Court to work as an effective and credible deterrent. These four elements have already been identified by many countries as the essential stepping stones of a court that is worth having.

These four elements will not - as some claim - undermine national sovereignty or pose a threat to the soldiers of rule-of-law countries. I believe that there is - in this position - a large degree of misunderstanding about the role and function of the Court. No country taking part in the negotiation wishes to see a court that would harass its soldiers. The draft statute to be presented in Rome already includes a number of safeguards that would prevent frivolous or politically motivated cases from ever being brought.

First, the ICC is not designed to replace national courts, but to complement them. The Court will only act as a safety net, or a last resort, when national judicial systems have collapsed or have been compromised by these very crimes. This principle of "complementarity" mandates that the International Criminal Court will not have jurisdiction when a national investigation or proceeding is taking place.

One issue that is often raised on this side of the Atlantic by opponents of the Court's establishment is that peacekeepers may be increasingly under threat of being prosecuted for actions taken in the course of difficult international missions. The principle of complementarity will ensure that peacekeepers and all military personnel of countries with a functioning judicial system will be tried by their own national authorities.

Second, the Court only has jurisdiction over the three core crimes: genocide, crimes against humanity and the most serious of war crimes. The narrow subject matter jurisdiction of the Court ensures that it will operate only in the most serious circumstances.

Moreover, the draft procedures that will be presented in Rome, and in particular the judicial supervision of prosecutorial action by a Pre-trial Chamber, will ensure the charges are only

PURL: https://www.legal-tools.org/doc/de6c22/ brought when appropriate. The suspect and concerned states will have an opportunity to challenge any charges before the Pre-trial Chamber.

Finally, the process for the election (and the removal) of the judges and the Prosecutor will ensure that only the people with the highest credentials are able to fill positions of responsibility (and keep them).

These and other mechanisms in the draft Statute to be considered at the Rome Diplomatic Conference already offer the strictest guarantees that the Court will only operate in the most serious cases, where judicial systems have collapsed or where rogue leaders have overpowered them.

Despite these effective guarantees against inappropriate prosecutions, some countries have even suggested that the only way to secure a fair, effective and independent ICC is to institute parallel negotiations, an "Ottawa process" - on the land-mines model - outside the institutional framework of the Diplomatic Conference, so as to disregard the doubts of a minority of States.

In principle, I disagree: it would be very unfortunate for the international community as a whole if any major UN member lost the opportunity to contribute to the negotiations and establishment of an International Criminal Court within the UN framework. The negotiating process would be impoverished without the expertise and skill of the US delegation.

In conclusion, the case for the establishment of an effective permanent Court is, in my view, crystal clear. The as a whole, under the very proactive leadership of the British Presidency, is determined to make a success of the Rome Diplomatic Conference.

We hope that the United States will join other delegations in taking part in the process to establish a fair and independent court, able to step in effectively when national judicial systems fail to challenge impunity.

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