I. INTRODUCTION

• It is a great honor to speak before you at this event, which has been graced by distinguished leaders in their respective fields before me.


• The OAS can be proud of its history of support for the International Criminal Court (ICC) and the pursuit of international justice. It is to be recalled that it was OAS Member State Trinidad and Tobago, through former President H.E. Arthur N.R. Robinson, which in 1989 proposed that an international criminal court be established. It was this proposal, coupled with the revitalization of the UN Security Council at the end of the Cold War, which paved the way for the series of events culminating in the historic establishment of a permanent international criminal court with jurisdiction over the gravest offences known to humankind.


• Since that time, OAS Member States have been integrally involved in all aspects of building the ICC. They were actively involved in shaping the ICC Statute at the Rome Conference, and in drafting the Court’s subsidiary instruments in the Preparatory Commission which followed the Rome Conference.


• Today OAS Member States are well-represented at the Court. Five judges, including myself and the Second Vice-President, are from OAS Member States. The Prosecutor is also from the Americas.


• As the Court has become a reality, the support of the OAS, its Member States, and civil society in the Americas, is now as critical as ever to the success of this essential institution. It is in this context that I wish to impart upon you today the role of the International Criminal Court in the enforcement of international justice. I will focus on the following:
  
  
  • The need for an international criminal court,
  
  
  • The features which make the ICC particularly well-suited to fill this role, and
  
  
  • The role of States and inter-governmental organizations such as the OAS in ensuring the success of the ICC.
  
  

II. NEED FOR AN INTERNATIONAL CRIMINAL COURT

• The ICC can be seen as a response to the atrocities which occurred during the twentieth century. As the preamble to the ICC Statute tells us, during the last century “millions of children, women, and men [were] victims of unimaginable atrocities that deeply shock[ed] the conscience of humanity.”


• The protection of individuals from violations of human rights and humanitarian law requires appropriate mechanisms to enforce the law. For decades international humanitarian law lacked sufficient mechanisms to hold individuals directly accountable for the most serious international crimes. Punishment for grave breaches of the Geneva Conventions, or for violations of the Genocide Convention or the customary law of war crimes and crimes against humanity has depended primarily on national courts.
  
  
  • However, national courts were not always willing or able to act. Widespread or systematic violence all too often interfered with their willingness or ability to pursue justice. The failures of national courts in these contexts protected the perpetrators of atrocities behind a wall of impunity.


• To tear down the wall of impunity, it is necessary to enforce international justice when national systems are unwilling or unable to act. International courts and tribunals were created on an ad hoc basis to compensate for the failings of national courts in the face of the gravest atrocities. Ad hoc tribunals were created first at Nuremberg and Tokyo after World War II and more recently in response to events in Rwanda and the Former Yugoslavia. These ad hoc tribunals possessed several limitations:
  
  
  • Only a few States participated in their creation. The Nuremberg and Tokyo tribunals were set up by the victorious Allied powers after World War II. The Rwanda and Yugoslavia Tribunals were created by the Security Council.
  
  
  • The ad hoc tribunals are limited to specific geographic locations.
  
  
  • They exercise jurisdiction only over crimes committed within a particular time frame.
  
  
  • Their establishment involved extensive costs and delays.
  
  
  • Their creation depended on the political will of the international community.
  
  


• As a result, their ability to punish perpetrators of international crimes and to deter future commissions of such crimes has been greatly impeded.


• A permanent, truly international court is necessary to fully enforce international justice. In 1998, the UN General Assembly convened the Rome Conference to fill this essential need by establishing the ICC.


• In creating the ICC, States were particularly concerned with guaranteeing the Court’s underlying legitimacy.
  
  
  • Unlike the ad hoc tribunals, the ICC was created by treaty, enabling all States to participate in its creation.
  
  
  • All States were invited to participate in the Rome Conference which created the Court in 1998. 163 States did so.
  
  
  • In creating the Statute, States sought broad agreement, which was largely achieved. 120 States voted to adopt the Statute at Rome.
  
  
  • This bottom-up approach was also applied to the Court’s subsidiary instruments: The Rules of Procedure and Evidence and the Elements of Crimes.
    
    
    • These documents were drafted by a Preparatory Commission in which all States could participate.
    
    
    • Considerable effort was made to achieve universal agreement. The Preparatory Commission took all its decisions by consensus. This includes the adoption of both the Rules of Procedure and Evidence and the Elements of Crimes were adopted by consensus.
    
    
  
  
  • By building consensus, the Preparatory Commission increased the breadth and depth of the global commitment the Court.
    
    
    • 139 States – 19 more than voted for its adoption in Rome - signed the Statute before the deadline for signature passed at the end of 2000.
    
    
    • Today, 98 States are Parties to the Statute. More ratifications will come.
    
    
  
  

III. FEATURES

• I would now like to turn to the features which make the ICC an effective enforcer of international justice. These include:
  
  
  • The Court’s subject matter, temporal and personal jurisdiction; and
  
  
  • The Court’s independence and impartiality.
  
  

A. JURISDICTION

• The Court has jurisdiction over individuals who commit the most serious crimes of concern to the international community as a whole.
  
  
  • It has jurisdiction over genocide, crimes against humanity, and war crimes.
    
    
    • The Statute defines the crimes in significant detail.
    
    
  
  
  • The definitions of crimes draw upon relevant international treaties including the Genocide Convention and the Geneva Conventions.
  
  
  • The definitions also draw upon customary international law, and upon the jurisprudence to the Tribunals for the Former Yugoslavia and Rwanda.
  
  
  • The Court will also exercise jurisdiction over the offence of aggression once the States Parties to the Statute agree on a definition and conditions for the exercise of the Court’s jurisdiction.
  
  


• The Court’s temporal jurisdiction is prospective. The court has jurisdiction over offences committed after the entry into force of its Statue on 1 July 2002.
  
  
  • The ICC is a permanent Court.
  
  
  • It is immediately available to try perpetrators of serious crimes committed after 1 July 2002.
  
  


• The Court does not have universal jurisdiction.
  
  
  • Its jurisdiction is limited to situations where:
    
    
    • A crime was committed on the territory of a State that is a Party to the Cout, or
    
    
    • The accused is a national of a State Party.
    
    
  
  
  • In addition, the United Nations Security Council, exercising its powers under Chapter VII of the Charter, may refer a situation to the Court independent of the nationality of the accused or the location of the crime.
    
    
    • This eliminates the need for the Council to set up ad hoc tribunals with the weaknesses I noted earlier.
    
    

B. INDEPENDENCE AND IMPARTIALITY

• The Court has a number of features unique from national courts. This is to be expected because of its international nature.


• However, the central features of the Court – its independence and impartiality and the fair conduct of proceedings – are universal to any Court committed to the rule of law.
  
  
  • I will not review all of the many detailed safeguards built into the Court, but I would like to identify a few key elements.
  
  


• As a first matter, the independence and impartiality of the Court is protected by its judges and officials.
  
  
  • The judges and officers of the Court are independent actors.
    
    
    • The judges are required to be of high moral character, impartiality, integrity, and competence.
    
    
  
  
  • Various provisions of the Rome Statute and Rules of Procedure and Evidence protect the independence of the Court, its judges, and the Prosecutor.
  
  


• The guarantee of a fair trial and the rights of the accused have paramount importance before the ICC
  
  
  • The Statute requires that the law be interpreted and applied consistently with internationally recognized human rights. In addition, the Statute directly incorporates the fundamental rights of the accused which are protected in the International Covenant on Civil and Political Rights and in the American Convention.
  
  
  • The accused is accorded the following rights, among others:
    
    
    • The right to be presumed innocent until proven guilty beyond reasonable doubt
    
    
    • The right to be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks.
    
    
    • The right to counsel and the right to be provided counsel where the interests of justice so require.
    
    
    • The right not to be compelled to testify or to confess guilt, and
    
    
    • The right to remain silent, without such silence being a consideration in the determination of guilt or innocence.
    
    


• Numerous safeguards in the Statute also ensure that politically-motivated prosecutions will not take place. The Pre-Trial Chamber is one example of an important innovation in this regard.
  
  
  • Before launching an investigation on his own initiative, the Prosecutor must first obtain authorization from the Pre-Trial Chamber. This ensures that investigations comply with the strict legal standards set forth in the Statute. These include the obligation upon the Prosecutor to consider whether there is a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed and whether the case is admissible.
  
  
  • The Pre-Trial Chamber also holds a hearing to confirm the charges against the accused, determining for itself that substantial grounds and sufficient evidence exist to proceed to trial. If the Pre-Trial Chamber is so satisfied, a Trial Chamber is thereafter responsible for the continued conduct of the proceedings.
  
  
  • Before the charges are confirmed, the Pre-Trial Chamber is available to protect the rights and interests of individuals, including suspects, victims, and potential witnesses.
  
  

IV. COMPLEMENTARITY AND INTERDEPENDENCE

• I would now like to turn to the Court’s relationship with other actors.


• The Court is part of a system, working together with States, inter-governmental organizations, and non-governmental organizations towards international justice.
  
  
  • The support and efforts of States are central to the success of the Court.
  
  


• Under the principle of complementarity, the primary responsibility to investigate and prosecute crimes lies with States.
  
  
  • In the ordinary circumstance of a properly functioning national system, the Court will not exercise jurisdiction. The ICC will defer to genuine national proceedings.
  
  
  • The ICC will only act when States are unwilling or unable to investigate or prosecute.
    
    
    • Whether a State is unwilling or unable to investigate or prosecute is an issue of law to be decided by the Court in accordance with strict legal standards. The right of States to challenge the admissibility of a case is safeguarded by the Statute.
    
    
  
  
  • As the ICC will only focus on the gravest crimes, States will need to act to investigate and prosecute lesser offenders.
    
    
    • Where the ICC does investigate or prosecute, it depends extensively on cooperation with States at all stages of proceedings. For example, States can assist the Court by facilitating investigations, arresting suspects, providing evidence, protecting victims and witnesses, enforcing sentences of the convicted, and giving other similar assistance.
    
    
  
  
  • International organizations are also part of this system.
    
    
    • Among international organizations, the Court’s relationship with the United Nations is particularly important.
    
    
    • A relationship agreement now exists between the ICC and the UN. This agreement reaffirms the Court’s independence and governs cooperation between the two institutions.
    
    
  
  
  • Regional organizations such as the OAS also are critical to maintaining and increasing support for the Court in particular regions.
  
  
  •  Finally, non-governmental organizations play important roles in supporting the Court.
  
  


• NGOs have been critical to ratification efforts by States. They have assisted States in developing legislation implementing the Court’s Statute. NGOs continue to remind the international community of the importance of the Court.

V. THE COURT TODAY

• I would now like to provide an overview of the Court’s current status – what is actually going on.


• The Court is now entering its judicial phase.


• The prosecutor has received over 1300 communications from individuals and organizations. Many communications have fallen outside the jurisdiction of the court, and the situations have not been further pursued.


• The Prosecutor has now received referrals from three countries.
  
  
  • In January, the Prosecutor announced the most recent referral – from the Central African Republic. He is currently conducting an analysis in accordance with the Statute to determine whether or not to begin an investigation.
  
  
  • Investigations are ongoing since last year in response to referrals from Uganda and the Democratic Republic of the Congo.
  
  
  • In June of last year, the Presidency constituted three Pre-Trial Chambers. The situations in the Democratic Republic of the Congo and northern Uganda were assigned to Chambers I and II respectively.
  
  
  • The first pre-trial proceedings have begun.
    
    
    • A status conference was convened this month by Pre-Trial Chamber I to discuss with the Prosecutor and his representatives matters related to the investigation in the Democratic Republic of Congo.
    
    

VI. CONCLUSION

• The foundation for the effective enforcement of international justice has been laid through the establishment of the ICC. The effects of this historic event are already being felt throughout the world.
  
  
  • In his recent report on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, the UN Secretary-General observed, “the Court is already having an important impact by putting would-be violators on notice that impunity is not assured and serving as a catalyst for enacting national laws against the gravest international crimes.”
  
  
  • The Secretary-General’s Panel on Threats, Challenges and Change noted in its report that the Court constitutes a legal mechanism crucial to meeting the challenge of preventing conflicts which claim thousands of lives and hinder national development. The panel went on to stress that “[i]n the area of legal mechanisms, there have been few more important recent developments than the Rome Statute creating the International Criminal Court.” The panel called on all UN member States to ratify the Rome Statute.
  
  


• It took the international community more than half a century from the Nuremberg Tribunal to establish a permanent international criminal court. The establishment of the Court is in itself a breakthrough, but many obstacles still lie between the Court and the effective enforcement of international justice.


• Together, we can work to build a culture of accountability and to eliminate impunity for the most notorious international criminals. The support of all States for the Court, particularly of the individual OAS member States and of the OAS as an inter-governmental organization, is crucial for the Court’s success. We cannot and must not let the Court fail.