D3(2009)
27.01.2009

Statement by

Philippe KIRSCH

President of the International Criminal Court

      on the occasion of the

first part of the 2009 Ordinary Session

of the Council of Europe Parliamentary Assembly

(Strasbourg, 26-30 January 2009)

(Extract of the verbatim records)

 Mr KIRSCH (President of the International Criminal Court). – It is my pleasure to address the Parliamentary Assembly of the Council of Europe on the International Criminal Court. The Court appreciates the long-standing support it has received from the Council, and from the Assembly in particular, in bringing about the existence of the Court, in promoting the ratification of the Court’s statute, which was referred to by the rapporteur, and now in promoting co-operation on the part of states.

The rapporteur and the Committee on Legal Affairs and Human Rights have prepared an impressive report. It identifies a number of key issues that will help, if they are implemented, to further the work of the Court and contribute to putting an end to impunity, which was the fundamental objective behind the creation of the Court.

As the report is detailed and complete, I shall limit myself to a few remarks on the Court’s current activities and on what it requires to prosper in future. Before considering current activities, however, it is important to keep in mind some basic points relating to the Court’s jurisdiction. First, the ICC is a criminal court dealing with individuals only. It deals with individuals who are responsible for the most serious crimes such as genocide, crimes against humanity and war crimes. However, the Court does not hear complaints against states or organisations – only individuals.

The exercise of the Court’s jurisdiction is normally limited to states that have accepted that jurisdiction voluntarily, mostly by ratifying the statute, meaning that the Court exercises its jurisdiction only over crimes committed by the nationals of state bodies or on the territory of state bodies. It does not have universal jurisdiction, and it is important to keep that in mind in the light of other situations or crimes of that magnitude that have been committed. In such cases, the Court cannot intervene through its statute. The only exception to that is when a situation is referred to the Court by the United Nations Security Council. In such cases, the Court does not need the approval of individual states.

The Court’s jurisdiction is also limited in time. It can only deal with crimes committed after 1 July 2002, and nothing before that date. Finally, and perhaps most fundamentally, the ICC is a court of last resort. It is complementary to national jurisdiction. Only in cases where national jurisdiction cannot – or will not – genuinely investigate or prosecute will the ICC act. Otherwise, it is prohibited by its statute from acting.

So far, four situations have been referred to the Court: those of the Democratic Republic of the Congo, Uganda, the Central African Republic and Darfur in Sudan. The prosecutor of the Court is conducting investigations into each of those situations. The first three situations were brought to the Court by the states concerned and the fourth was referred to the Court by the Security Council. So far, the Court has not taken anything up on its own initiative, but it can do so. The prosecutor may ask the judges for authorisation to open investigations other than those with a bearing on the situations referred to the Court. Today, the prosecutor is monitoring various situations around the world to determine whether there is a basis to begin other investigations.

As the rapporteur mentioned, in terms of judicial proceedings, we have picked an historic week to discuss the Court. Yesterday, the Court began its first trial with the commencement of the case of Mr Lubanga, who is charged with conscripting, enlisting and using child soldiers in the Democratic Republic of the Congo. Another trial relating to the Congolese situation is expected to begin in June involving two individuals, Mr Katanga and Mr Ngudjolo Chui, each of whom is charged with seven counts of war crimes and three counts of crimes against humanity. Earlier this month, a pre-trial chamber held a hearing on charges brought by the prosecutor against Mr Jean-Pierre Bemba Gombo regarding crimes allegedly committed in the Central African Republic. Again, those charges include five counts of war crimes and three counts of crimes against humanity. If confirmed, a third trial would begin some time thereafter. The Court has issued additional arrest warrants, which remain outstanding, for seven other individuals.

The Committee’s report sets out that the Court does not have the power to arrest persons, and I shall return to that point. It is the responsibility of states to fulfil such requests.

(The speaker continued in French)

He said that he wanted to talk about the future. It would depend on the Court itself and also on the support it received from others. The Court would continue to carry out its mandate under the Rome Statute and would conduct inquiries in a fair and independent manner. However, the Court’s success would also depend upon the states themselves. As with any crime, the primary responsibility for resolution lay with the states – the International Criminal Court represented the last resort. Action was needed at a national level and appropriate legislation should be put in place to enable this to be achieved.

The Court was limited in terms of its jurisdiction and the number of cases it was able to consider. Enormous swathes of the planet were not within its jurisdiction. Although 108 states had ratified the Rome Statute, in the long term it should be ratified by all countries.

Finally, there were many areas in which the Court required the co-operation of member states. The International Criminal Court did not have an executive arm or a police force. The executive pillar of the Court was entrusted to the states that had created it and had defined its limitations. Co-operation was needed over issues such as the protection and resettlement of victims and witnesses and the execution of arrest warrants. The Parliamentary Assembly could play a key role in contributing to the Court’s success through ensuring the execution of arrest warrants, respecting its judicial role and fully engaging with the International Criminal Court.