Minerva, Spring 2008 (Volume 32) - Citizens for Global Solutions

jurisdiction will extend over crimes that
are committed over the territory or by the
nationals of over 100 states parties. I can
even say that it would extend to the entire
world because the UN Security Council
can refer a case anywhere in the world to
the International Criminal Court.
But even more important was the decision
by states to give the Prosecutor the ability
to trigger the jurisdiction of the Court.
Certain provisions allow the Court to act
without an additional trigger, meaning the
Prosecutor does not have to wait for the
states to refer a case to him, neither does
he have to wait for the UN Security Council
to refer a case to him, but the Prosecutor
on his own, where the Court has
subject matter jurisdiction, can move in,
collect information and try the case. Why
this is important is that if the Prosecutor
uses this power, it is purely a judicial decision
by the Prosecutor; not by the state;
not by the UN Security Council. This is
the first time that an international tribunal
is able to do that. This is why I think this
is a very defining provision for the new
legal framework that we have created for
ourselves.
Let me again emphasize that the Rome
Treaty was not defined or drafted overnight.
I think that the Rome Statute is a
strong and consistent body of law. The
drafters of the Rome Statute were very
well aware [that] justice in the context of
conflict or peace negotiation would definitely
present difficulties, and they have
prepared the institution well to meet these
challenges. They have made very careful
decisions. For instance, there is a very high
threshold of gravity for the jurisdiction of
the Court [where its] jurisdiction was established.
They have created a system of
complementarity which was designed so
that the Court would intervene as a court
of last resort, in that when a state where
the Court has jurisdiction is not able or is
not willing to take action, then the Court
can take action. Again, this is why I said
that a very comprehensive international
criminal justice system was created; it
is not just the Court that we are talking
about. States, I think, have demonstrated
their understanding and have given very
firm support of the Court by the tremendous
speed in which the ICC was ratified.
Within four years … the Rome Statute entered
into force. For international treaties,
I think this is a precedent.
It is the law. It is the new law. The issue
now that we have is no longer whether we
disagree or we agree with the pursuit of
justice in moral or even in practical terms.
The ICC, the Court, is the law.
In the last 5 years, we have opened investigations,
four investigations in fact. This
is in the Democratic Republic of Congo
(DRC), in Northern Uganda, in Darfur in
the Sudan and in the Central African Republic
(CAR). All of these countries unfortunately
are still engulfed in conflicts
of various degrees. We have also analyzed
the situation in Venezuela and we have
analyzed the activities of nationals of 25
states parties that are involved in Iraq. We
are currently monitoring … situations on
three different continents, including Colombia,
Afghanistan, Kenya and in Côte
d’Ivoire in West Africa. In all of these
cases, we have collected evidence and the
Court has protected the witnesses and victims,
and the victims have started participating
in the proceedings. As of today, …
the judges of the International Criminal
Court have issued ten arrest warrants.
After five years, the Rome System is in
motion. It has become an operational tool
to end impunity for the crimes that are
committed in violent conflicts all around
the world. The challenge now is how the
decisions of the International Criminal
Court will be implemented by the politicians,
the international community. This
is the challenge that we face. The Prosecutor
often surprises diplomats in The
Hague and in New York and elsewhere
by telling them that the law and international
justice is not just for the judges. It
is also not just for the prosecutors and the
defense counsel. This is also the law for
political leaders, military and even the
negotiators. This is the law. We’re saying
that because it is only with their full
commitment that we really can all work
together to prevent the crimes and especially
to consolidate the judicial efforts
that we are doing now.
35 • Minerva #32 • June 2008
We the Prosecutors, we the lawyers, will
do our part, but we will do it in the courtroom.
It is the political leaders who have
the responsibility to ensure that the law
will be respected by all actors. That is
important. They have a responsibility, I
think, to actively and consistently support
and enforce the decisions of the Court.
The law cannot adjust to political needs;
it is not possible. Others have to adjust. It
is the challenge that we face to show that
we are consistent, especially in the commitment
that we have all made in Rome to
end impunity for the massive crimes that
are being committed.
The Prosecutor and we at the Court have
a judicial mandate. The role that we have
is to prosecute those who bear the greatest
responsibility for the most serious crimes
where, as I said, based on complementarity,
the national authorities are either
failing to act or are failing to act genuinely,
as we know of sham proceedings
— this is something that can happen. The
aim of our Office is to contribute to the
prevention of such crimes by ending impunity,
by strengthening the rule of law,
especially by highlighting the sufferings
of the victims, and by marginalizing the
most violent leaders that we have today.
What we do, we do in the courtroom and
in the field. But as I said, other actors
have to adjust. What we have to stop doing
is offering impunity to war criminals
or people who may have committed war
crimes, genocide or crimes against humanity
in exchange for security, because
when you offer them immunity, you offer
them security. In the framework of the
Rome Statute, these crimes can definitely
no longer be ignored, neither can they be
rewarded.
Sometimes [peace] negotiators … say
that we have taken away from their toolkit
instruments such as amnesty or immunity,
and we always remind them that
such tools at least in most cases did not
work. The Rome Statute was built based
on the failures and the lessons that we
have learned in the past. This was when
the international community failed to prevent
genocide. We also remind them that
the Rome Statute has offered a new tool,
and this is the law. It is the law for one; it
is the law for all. This is a new law that I
think we all can use to be able to manage
the violence. It is an independent, impar-