ICC President to UN: We must hold atrocity crime perpetrators accountable

ICC President Judge Silvia Fernández de Gurmendi speaking at the United Nations General Assembly, 31 October 2016 © UN Photo/Manuel Elias
United Nations
Speakers in the General Assembly welcome reversal of withdrawal decisions by South Africa, Gambia, urging Burundi to follow suit.

While the International Criminal Court — now more efficient and fully developed — had made significant strides in holding to account perpetrators of the world’s most serious crimes, fulfilling its mandate would ultimately require even greater cooperation from the international community, stressed its President, who briefed the General Assembly prior to its adoption of a resolution welcoming the Court’s annual report.

“The Court is not perfect, but it is working, it has matured, and it is delivering,” said Silvia Fernández De Gurmendi as she introduced the Court’s annual report.  The document — which the Assembly would later welcome through its adoption of a draft resolution (document A/72/L.3) without a vote — outlined several “unprecedented” efforts to improve the Court’s governance and the speed and quality of the justice it delivered, she said, as well as a new whistle-blower policy and other recent developments.

During the period from 2016-2017, she said, convictions or sentences had been issued in two trials against a total of six persons.  The first concerned Ahmad Al Faqi Al Mahdi, charged with the destruction of world heritage property in Timbuktu, Mali, while a second had been brought against Jean Pierre Bemba, the former Vice-President of the Democratic Republic of the Congo, and four co‑accused.  Proceedings were also underway against Dominic Ongwen — who, together with Joseph Kony and others, stood accused of crimes against humanity committed by members of the Lord’s Resistance Army in northern Uganda — following his 2015 surrender.

Trial hearings on the case against Bosco Ntaganda, the former leader of the March 23 (M23) armed group in the Democratic Republic of the Congo, were expected to finish early in 2018, she continued.  Meanwhile, the prosecution was currently presenting evidence in the case against Laurent Gbagbo, the former President of Côte d'Ivoire, and Charles Blé Goudé, both of whom stood accused of crimes against humanity allegedly committed during post‑election violence in that country between December 2010 and April 2011.  Also in 2017, the Court had unsealed an arrest warrant against Al‑Tuhamy Mohamad Khaled, suspected of crimes against humanity and war crimes allegedly committed in Libya in 2011.

Expressing grave concern that requests for arrest or transfer remained outstanding for 15 individuals, she went on to urge the Security Council — which had referred the situations in Libya and Darfur to the Prosecutor — to take measures to ensure full cooperation with the Court.  “It is now widely accepted that there is an obligation to end impunity for the most serious crimes of concern to the international community,” including genocide, war crimes and crimes against humanity, she said, adding: “The question is no longer whether to pursue justice, but rather when and how.”

Miroslav Lajčák (Slovakia), President of the General Assembly, underlined the need to stand up for the victims of heinous crimes, stressing: “They deserve justice.”  Pointing out that almost two thirds of United Nations Member States were party to the Rome Statute — the treaty establishing the Court’s jurisdiction — he said the Court was crucial in guaranteeing justice and acted in cases when national judicial systems failed.  Not only was the Court meant to serve as an instrument for prosecution, but it also helped prevent serious crimes, he said, adding that achieving its universality was crucial in guaranteeing that heinous crimes did not go unpunished.

In the ensuing debate, many speakers expressed support for the Court’s work and recent progress in improving its effectiveness, efficiency and transparency.  Many welcomed the reversal by the Gambia and South Africa of earlier decisions to leave the Rome Statute — while calling on Burundi to do the same — as others hailed the Court’s first judgement in a case relating to the destruction of cultural property in Timbuktu, Mali.  Still other speakers voiced support for, or concern over, the imminent activation of the Rome Statute’s “Kampala Amendments” granting the Court jurisdiction over the crime of aggression.

Canada’s representative, joining other speakers in welcoming the decisions by the Gambia and South Africa to remain in the Rome Statute, declared: “All victims, including African victims, have a right to justice.”  Indeed, the contributions of African States in support of the Court were invaluable to making justice a reality, and their steadfast support was crucial, she stressed.

Among those delegates underscoring the importance of the Security Council’s relationship with the Court was the representative of the European Union, who urged the Council to find ways to strengthen such cooperation in two cases it had recently referred to the Court — namely, those relating to the situations in Darfur and Libya.  States must refrain from shielding or hiding those responsible for the most serious crimes, he added.

Striking a similar tone, the representative of Trinidad and Tobago, speaking on behalf of the Caribbean Community (CARICOM), said the Council’s active follow-up on its referrals to the Court was critical.  Calling, in that regard, for cooperation on such issues as the arrest and surrender of individuals, she noted with deep concern that the Security Council had failed to respond to several notifications of findings of non‑cooperation.

Peru’s representative stressed that international justice required political support from all Member States of the United Nations, not just States parties to the Rome Statute.  Echoing calls for all countries to comply with the Court’s orders and support and protect victims at all stages of trials, he said Security Council reform was also imperative — especially regarding its working methods and the use of the veto.  In that regard, he voiced Peru’s support for the Accountability, Coherence and Transparency Group’s proposed Code of Conduct prohibiting the Council’s five permanent members from using their veto power in cases of mass atrocities.

Several speakers also voiced concern about the funding of cases referred to the Court by the Security Council.  In that regard, Argentina’s representative noted that the costs emanating from such referrals had, to date, been borne only by States parties to the Rome Statute.  Instead, they should be funded by the entire United Nations membership, as fighting impunity was a critical function of the Organization.  There was also room for better cooperation between the Court and the Council’s sanctions committees as well as its working group on children in armed conflict.

Diverging with other speakers on the connection between the Court and the Council, Sudan’s representative said that relationship was a clear example of the politicization of the Court’s work.  Any attempt to deviate from the prescribed relationships between United Nations bodies jeopardized the Organization’s goals and seriously endangered its legitimacy, he warned, calling on both the Court and the United Nations to abide by the letter and spirt of the Rome Statute without trying to integrate the Court into the United Nations system.

Regarding the Kampala Amendments to the Rome Statute — whose threshold for activation had recently been reached as more States ratified them — the representative of the United States voiced his delegation’s serious concerns with respect to the crime of aggression amendments, which it believed contained dangerous ambiguities regarding basic issues, including which States and what conduct would be covered.  Such issues should be clarified before States parties to the Court decided to activate the amendments, he said, emphasizing that concrete steps in that regard would help ensure that States would be able to join when necessary to take action to prevent atrocities and safeguard collective security.

Among delegates hailing from countries involved in cases currently under review by the Court was Nigeria’s representative, who noted that the entity was analyzing information on several sexual and gender-based crimes allegedly committed during the armed conflict between Boko Haram and Nigeria’s security forces.  Pledging to continue to provide support to all ongoing examinations, he said Nigeria had no intention of pulling out of the Rome Statute.  Rather, it would continue to work alongside States parties and the Court itself towards improving its working methods and ensuring a fairer and more efficient delivery on its mandate.

The Philippines’ representative, referring to the campaign launched against illegal drugs in his own country, said it was tragic that many deaths had resulted outside of lawful police operations.  Those instances were under investigation by the Philippines’ criminal justice system, he said, emphasizing that the country had a functioning system capable of prosecuting crimes under the Rome Statute.  The International Criminal Court was a “court of last resort”, he stressed, adding that “biased intervention, even if merely vocal, is not necessary”.

Before the Assembly for today’s discussion was, in addition to the Court’s annual report, a report of the Secretary-General on “Information relevant to the implementation of article 3 of the Relationship Agreement between the United Nations and the International Criminal Court” (document A/72/342) and another titled “Expenses incurred and reimbursement received by the United Nations in connection with assistance provided to the International Criminal Court” (document A/72/372) as well as its corrigendum (document A/72/372/Corr.1).

Also speaking were the representatives of Mexico (introducing draft resolution A/72/L.3), Denmark (also on behalf of Finland, Iceland, Norway and Sweden), Slovenia, Japan, Costa Rica, Romania, Australia, Poland, Liechtenstein, the Republic of Korea, New Zealand, El Salvador, Italy, Chile, Paraguay, Brazil, Cyprus, Guatemala, Estonia, Switzerland, Uruguay, Ukraine, Senegal, Bangladesh, Ecuador, Netherlands, Georgia, Bolivia, Spain, Ghana, Cuba, Samoa, the Russian Federation, Myanmar and Syria, as well as the State of Palestine

The Assembly will reconvene at 10 a.m. on Wednesday, 1 November, to discuss the necessity of ending the economic, commercial and financial embargo imposed by the United States against Cuba.

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