Thematic session I, dealing with the role of the International Criminal Court, held two meetings, on Sunday, January 11 and on Monday, January 12, 2004. It was co-chaired, on the first day by H.E. Adnan Al-Jiffri, Minister of Justice of Yemen and by Rt. Hon. Lord Goldsmith, Attorney General of the United Kingdom, , and on Monday by the Minister of Justice of Yemen and by Edmund Wellenstein, the Head of the International Criminal Court Task Force, Ministry of Foreign Affairs, the Netherlands.
REPORT FOR THEMATIC SESSION I: The role of the International Criminal Court
Rapporteur; Phani Dascalopoulou-Livada, Legal Adviser, Head of the Section of Public International Law, Legal Dpt., Ministry of Foreign Affairs, Greece.
Thematic session I, dealing with the role of the International Criminal Court, held two meetings, on Sunday, January 11 and on Monday, January 12, 2004. It was co-chaired, on the first day by H.E. Adnan Al-Jiffri, Minister of Justice of Yemen and by Rt. Hon. Lord Goldsmith, Attorney General of the United Kingdom, , and on Monday by the Minister of Justice of Yemen and by Edmund Wellenstein, the Head of the International Criminal Court Task Force, Ministry of Foreign Affairs, the Netherlands.
The session was opened by an introduction to the ICC from the Prosecutor Luis Moreno Ocampo. He explained how the Rome Statute provided the opportunity not only for respect for life and human rights within each country but also respect for life and human rights in the international arena.
He also emphasized the safeguards which the Court provided in response to those who have doubts about the system established by the Statute. Such guarantees are the principle of complementarity which means that the ICC acquires jurisdiction over a crime only if the state having primary jurisdiction is either unable or unwilling to prosecute. This responds to the need for respect of national sovereignty. Other guarantees are the independent Prosecutor and the functioning of the Pre-trial Chamber . He also addressed the issue of international cooperation with the ICC, the need to understand local and regional conditions and not to interfere with local peace processes.
Statements were then made by facilitators on particular themes. These themes were:
a) The ICC jurisdictional regime: the principle of complementarity, by J. Holmes, Ambassador of Canada to Jordan. The statement answered to criticism levelled against the Court which, in the facilitator’ s view, were based on a series of misconceptions, such as that the Statute is detrimental to national sovereignty, that it affects non-state parties or that it promotes retribution rather than reconciliation. He particularly mentioned the rights of victims according to the Statute and the conditions under which the ICC may exercise jurisdiction.
b) The role of civil society in the promotion of the ICC., by Nasser Amin. The facilitator analyzed the means for such promotion, constituting in raising awareness, lobbying governments and providing technical assistance. He also referred to potential risks, such as the bilateral agreements concluded by the U.S. on the basis of article 98 of the ICC Statute, On the other hand, he emphasized the need for the universality of membership to this Treaty.
c) Why we need the International Criminal Court, by Ambassador B. Godet, Head of the Political Directorate of the Federal Department of Foreign Affairs, Switzerland. The facilitator analysed the advantages of the ICC vis-à-vis Ad Hoc Tribunals set up by the Security Council. Such advantages are in particular the avoidance of the criticism of selectivity, as well as avoiding the proliferation of courts and inconsistencies in jurisprudence, Higher credibility because of the Treaty character of the Statute also militates in its favour. . These are the reasons why all states should join in the Statute.
d) The compatibility of the ICC Statute with Arab Constitutions and legal Systems, by Judge Hatem Fouad, Chief Judge, Social Representative of IHRLI. The facilitator pointed out certain concerns generated by the ICC Statute, such as the danger of politicisation and the risk of “elastic” definitions attributed to the crimes under the jurisdiction of the Statute. However, there was a multitude of guarantees which should allay these fears. Indeed, the crimes falling under the jurisdiction of the ICC were known to both treaty and customary law, while they were accompanied by vast jurisprudence. With regard to further developments in the ICC, it was advisable to become party to the Statute so that such developments might be shaped to the new parties’ benefit as well.
e) Concerns as to the ratification of the Rome Statute in the Middle East, by Shawki Al-Quadi, MP, Parliament of Yemen. The facilitator expressed doubts as to certain features of the ICC Statute, such as the power of the Security Council to defer investigation or prosecution of a case for 12 months with possibility of renewal , a power which the Security Council has already made use of. The bilateral agreements concluded by the U.S. were also a source of concern.
The statements provided an excellent stimulus for a very lively and wide-ranging discussion with the participation of many distinguished judges, lawyers, commentators, government officials and other colleagues from the region and outside.
Several speakers from Arab states expressed their concern for the possible politicisation of the Court. A recurring theme was the failure of the Rome Conference to come up with a definition of the crime of aggression, the consequence being, regrettably, that the Court does not have jurisdiction over that crime. In this connection it was reminded that the Assembly of States Parties is currently working on the definition of aggression and the conditions under which such crime may be included in the jurisdiction of the Court, with a view to having the matter examined by the Review Conference. Significant progress has been made and it would be advisable for interested states to participate in that process.
Other participants referred to the Palestinian question and to the Israeli settlements in Arab occupied territories and asked whether the ICC could play a role in this regard. Some questioned whether the Court could be trusted to provide justice impartially and without double standards. There were also questions as to the involvement of the Security Council in the work of the ICC. Relevant explanations were given in this respect.
In conclusion, it is clear that the session provided an extremely useful forum for the exchange of views on the question of the ICC and for the mutual understanding of concerns and positions. Certain points have gathered significant support.
1. Fears in connection with the ratification of the Statute should not be overestimated, since there were significant safeguards for the protection of national sovereignty as well for the independence of the new institution. It was also indicated by certain speakers that the ICC Statute was in no way inconsistent with national laws and practices in the Arab countries.
2. Much was to be gained from a universal system of justice which would help solve conflicts and deter the commission of crimes.
3. There was benefit in the Arab states becoming party to the ICC Statute as soon as possible so as to be able to influence the development of the Court and ensure that it took into account the Islamic jurisprudence, legal traditions and the expertise of the Arab world.
