THIRD MEETING OF MINISTERS OF JUSTICE OR OF MINISTERS OR ATTORNEYS GENERAL OF THE AMERICAS

March 1 to 3, 2000  San José, Costa Rica

STATEMENT BY MR. WILLIAM R. PACE, CONVENOR OF THE   NGO COALITION FOR AN INTERNATIONAL CRIMINAL COURT

Your Excellency Mr. Miguel Angel Rodríguez, President of the Republic of Costa Rica

Your Excellency Ms. Mónica Nagel, Minister of Justice of the Republic of Costa Rica,

Your Excellencies, Ministers of Justice or Attorneys General of the Americas attending this important event,

Distinguished Ladies and Gentlemen,

I am honored to address you this evening and to share with you the views of more than one thousand Non-Governmental Organizations around the world that support the early establishment of a permanent International Criminal Court through the ratification of its Statute, adopted in Rome the 17^th of July of 1998 at the end of a historical United Nations Plenipotentiary Conference.

The International Criminal Court will become a reality after 60 nations ratify its Statute. Until the present moment, 94 countries have signed the Statute, thus expressing their good will towards it, and seven nations have already ratified it. Several other countries are fairly advanced in the process of ratification, among them many in the Americas.

This Court, that has been advocated for during the fifty years after the historical Nuremberg trials has a real opportunity to become a reality now, at the beginning of the twenty-first century, supported by the decided commitment of governments, civil society and leaders of world stature, such as the Secretary General of the United Nations, Kofi Annan, and His Holiness John Paul II.

As you know, the participation of the countries of the Americas in the negotiations that led to the adoption of the Statute, and in the current work of the Preparatory Commission, has been essential.

It was Trinidad and Tobago's president, Arthur N. Robinson, who in 1989 addressed the General Assembly of the United Nations and asked the member states to re-examine the idea of an International Criminal Court.

Several countries of the region have become members of the "Like-minded" group of nations, a gathering of over 70 countries that support the earliest establishment of the Court. Almost all the countries of the region voted in favor of the adoption of the establishment of the Court, and presently about half the countries of the Americas have already become signatories of the Statute, while Trinidad and Tobago is already a State party after depositing the instrument of ratification in April 1999.

Several statements by the Rio Group of Latin American Countries and by the Caribbean Community of Nations (CARICOM) have expressed the support of the governments of the Americas to this new instrument in the struggle against impunity. Similarly, the General Assembly of the OAS has noted the adoption of the Rome Statute in the context of the strengthening of International Humanitarian Law.

In this connection, it has been encouraging for us to learn, during a recent seminar in Mexico City, that the Mexican government will conduct a revision of its Penal Code and its Military Justice code, taking as a model, among other instruments, the Rome Statute for an International Criminal Court. We applaud too, the announcement by representatives of the Attorney General’s office and the National Ombudsman office that their official position is that Mexico should sign the Rome Statute as soon as possible.

In addition, many governments of the region maintain innovative and constructive exchanges with the more than 300 Non-Governmental Organizations that work in the Americas for the establishment of the Court. Countries such as Colombia have incorporated prestigious civil society experts to the inter-ministerial committee that analyzes the Statute and suggest Colombia’s proposals during the Preparatory Commission.

This overwhelming support is due to the fact that the governments of the Americas have learned the lessons of the most bloody century in the history of Humankind. Indeed, the history of the twentieth century shows us clearly the undeniable necessity of having a judicial instrument that, by fighting impunity, will be able to deter the commission of heinous conducts such as genocide, crimes against humanity, war crimes and aggression.

The crimes under the jurisdiction of this Court are only the most extreme, those committed in large scale or as part of a plan. That is, crimes generally associated with situations where the rule of law has collapsed or is so weak that the national judicial systems are unable or unwilling to try them

The Court is built upon the principle of complementarity: that is, it will only accept those cases where -due to substantial collapse of the judicial structure- the country does not have the capacity to judge or where there is not a genuine will to do so. That is, it will not be a supranational "Court of Appeals", but a complement to the national systems incapacitated to work.

The net effect of the existence of this complementary Court, therefore, will not necessarily be the existence of several cases of international concern being brought to it, but most importantly, the activation of much more cases effectively tried at the national level.

State parties, in order to exert the sovereign primacy of their justice systems, will be encouraged to strengthen and modernize their national judiciaries, so that they will be both able and willing to try those crimes matter of jurisdiction of the Court. In order to ensure this, the States will incorporate the crimes considered by the Statute as crimes under their national legislation, they will enact laws facilitating cooperation with the Court in areas such as investigation and enforcement.

The Court will be permanent. It will not be an ad-hoc tribunal such as the ones created by decision of the United Nations Security Council. This characteristic is essential to ensure its independence and its ability to open cases with exclusive regard for the best interest of justice and not to get limited to cases referred by the Security Council. However, the future Court will benefit immensely from the rich experience and jurisprudence of the existing tribunals for the former Yugoslavia and Rwanda.

The Court will try individuals, not states, as it is the case of the existing regional Courts, but it will surely learn from the wealth of experience and jurisprudence created by the Inter American and the European Courts of Human Rights. This characteristic ensures that responsibility for the most horrible violations will be adequately individualized and that the actual perpetrators will have to respond for their actions, without regard for their official position. This will help to separate the responsibilities of the State and those of individuals such as dictators that kidnap the State machinery or rebels that destroy it, thus operating outside of the rule of law.

The Court will not try conducts committed before its entry into force, in accordance to the principle of non retroactivity, nor will it try conducts not considered as a crime before its codification in the Statute. This characteristic will shield the court of the most common accusations that had to be faced from the standpoint of due process by the Nuremberg and Tokio Tribunals.

The Court will be independent: it will not be part of the United Nations, but an organism created by treaty. Though the Security Council will have the ability to refer cases to the Court in exercise of its powers under Chapter VII of the UN Charter, the state parties will have the same privilege and the Court itself will be able to initiate proceedings of its own motion.

The Court will exert automatic jurisdiction over the crimes committed by nationals or in the territory of the States parties to the Statute. This mechanism is less encompassing than the mechanisms of universal jurisdiction currently activated in third countries against former dictators, but we are confident that the more ratifications the Court will gain, the more universal will its coverage be.

The Rome Statute provides the Court with unprecedented protections to the rights of the victims before, during and after the proceedings, and establishes clearly their right to a just reparation. The Preparatory Commission, currently in negotiations has paid special attention to the rights of the victims, with particular attention to issues such as the situation of children, women, the aged and the disabled.

One of the aspects that have been recognized as historical by the juridical community around the globe is the attention of the Court to a dimension of crime that had previously hidden: the gender component. Indeed, the Statute defines in a clear way those crimes with an element of sexual violence such as sexual slavery, forced pregnancy and forced sterilization. The Statute also mandates the Court to count in all its bodies with the presence of experts in gender violence and with an equitable presence of men and women.

The coming into existence of this Court, the deterrent effect it will have over mass crime and the strengthening effect it will have on national judiciaries will surely save millions of lives in the years to come. But for this to happen, it is essential that your countries renew their generous commitment to the Court by engaging in the process of signature and ratification of the Rome Statute. We are conscious that this is a process that may entail a careful analysis of possible legislative or -in some cases- constitutional issues. We encourage you to cooperate among governments and with civil society experts in order to design juridical strategies to ensure the promptest ratification of the Rome Statute and the enactment of internal enabling legislation.

I want to call your attention also about an important opportunity that the governments of the Americas will have to renew their political commitment to the prompt entry into force of the Court: the upcoming 30^th Ordinary Session of the General Assembly of the Organization of American States to be hosted in June by Canada. At the latest session, held in Guatemala, the OAS noted the adoption of the Rome Statute in the context of its resolution on the strengthening of International Humanitarian Law. This is an excellent opportunity to move forward in more determined ways, encouraging the region to be an important pillar of the future Court by a generalized process of ratification of the Rome Statute.

Your Excellencies, Ladies and Gentlemen:

Our continent, though spared of some of the worst tragedies of the century that ends, has had its share of heinous crimes and the painful and despairing reality of impunity for their perpetrators. If impunity prevails, it will result in the weakening of the faith of those governed in the democratic institutions and the rule of law. Vibrant and active movements of victims and their relatives have shaken the conscience of humankind by bravely denouncing the terrible human rights violations occurred in our countries: genocide, torture, disappearances. Their voices claim for your active commitment with a new instrument of justice that will prevent the commission of new crimes and that will result in the strengthening of democracy. I am sure that you will listen to their appeal and act accordingly.

I don't want to finish without expressing the deepest feelings of gratitude of our organizations to our host, the Ministry of Justice of Costa Rica in the person of Her Excellency, Minister Mónica Nagel.

Thank you for your kind attention.