International Criminal Court: Remarks by Minister Cowen
Most people will be aware of the great strides which have been made in the fields of human rights and international humanitarian law since the Second World War, with the adoption of many international instruments, on one hand defining human rights and prohibiting their violation, and on the other protecting the victims of armed conflict. Most will however also be aware of the horrific atrocities perpetrated in this period which have gone unpunished, despite the existence of these instruments.
The lack of an effective enforcement mechanism for violations of international humanitarian law is graphically illustrated in the case of Cambodia. Between 1975 and 1979, the Khmer Rouge embarked on a programme of social engineering involving murder, torture and enforced disappearance. An estimated 2 million people, or 30% of the Cambodian population, were executed or died of starvation and disease during this period. A number of States reported this genocide to a United Nations subcommission on minorities, and the matter was raised in the United Nations Security Council. However, the possibility of bringing the members of the Khmer Rouge Government to trial for genocide and crimes against humanity was only raised after the death of Pol Pot in 1998.To date, legislation to set up a tribunal has still not been agreed upon by the United Nations and the Cambodian Government.
Tragically, the case of Cambodia is not unique. It is estimated that in the past fifty tears, more than 86 million civilians, mostly women and children, have been killed in conflicts around the world, and over 170 million have been stripped of their rights, their property and their dignity. Few perpetrators have been brought to justice.
In the past decade, there have been some atrocities of such a scale that the international community has been moved to act.
The outrages committed in the former Yugoslavia in the 1990s horrified the world. Reports reached us of a brutality many of us thought belonged to another era - murder, rape, sexual assault, torture, beating, robbery and inhumane treatment of civilians; unlawful confinement, deportation and transfer of civilians; the unlawful shelling of civilians; the unlawful appropriation and plunder of real and personal property; the destruction of homes and businesses; and the destruction of places of worship. Witnesses spoke of unimaginable savagery: thousands of men executed and buried in mass graves, hundreds of men buried alive, men and women mutilated and slaughtered, children killed before their mothers' eyes.
The United Nations Security Council set up a tribunal to try those responsible for such atrocities. Welcome as this move was, the Tribunal was beset by problems in its early stages, many of them mundane, which were directly related to its ad hoc character. Premises had to be found, and the task of recruiting staff, and in particular a Prosecutor, delayed the commencement of the Tribunal's work. Also, as the first international criminal tribunal established by the United Nations, it had the considerable task of establishing rules of procedure and evidence.The ad hoc Tribunal also faced the recurrent criticism that, in its establishment, the Security Council had adopted a selective approach to violations of humanitarian and human rights law, since it had refrained from establishing a tribunal on other occasions of genocide or mass violations of human rights.
The limitations of ad hoc tribunals were also shown in the case of Rwanda. There, half a million Tutsis and moderate Hutus died between April and July 1994 in a genocide that shocked the world. The United Nations Security Council again moved to establish an international criminal tribunal, but the inevitable delays in setting the Tribunal up meant that the first indictment did not take place until November 1995. Moreover, the jurisdiction of the Tribunal was limited to acts committed between 1st January and 31st December 1994. It did not extend, therefore, to the further massacres which took place after that period.
The horrific examples of Cambodia, Rwanda and the Former Yugoslavia have demonstrated the gaps which exist in the international régime for the protection of human rights and the enforcement of international humanitarian law. There is a clear need for a permanent independent institution, empowered to investigate and punish the most serious international crimes, regardless of who perpetrates them, and the very existence of which serves to deter those who would commit such atrocities.
The Rome Statute of the International Criminal Court provides for the establishment of such a body. The International Criminal Court will be a permanent tribunal, in relationship with the United Nations system, which will have jurisdiction over persons in respect of genocide, crimes against humanity, war crimes and, when a definition is agreed upon, the crime of aggression. The establishment of the Court will represent one of the most important developments in international law since the end of the Second World War.
The Rome Statute has been carefully drafted and refined over a long period, drawing on existing international law and the experience of the ad hoc tribunals. A Diplomatic Conference in Rome, at which Ireland was an active participant, finalised and adopted the Statute in July 1998.
In order to be credible, any system of enforcement of human rights and international humanitarian law must be seen to be applied consistently. In particular, the decision to investigate an alleged atrocity must not be seen to depend on political factors. If it does, then the system is open to accusations of partiality and subjectivity.
The Rome Statute has been carefully drafted to facilitate impartial enforcement of its provisions. Under the Statute, States Parties and the UN Security Council both have a role in referring situations in which a crime appears to have been committed to the Prosecutor of the Court. In addition to this, and most importantly, the Prosecutor may initiate an independent investigation on the basis of information received, thus ensuring atrocities are investigated even when, for political reasons, a State Party or the Security Council is reluctant to act. That the Prosecutor should be independent and possess the power to initiate an investigation was something which Ireland argued strongly for during the Diplomatic Conference in Rome in 1998.
Any system of law enforcement must also be seen to be fair. The Statute guarantees various rights to an accused during the course of the investigation and trial of an alleged crime, such as the presumption of innocence, the right to be informed of the charge, and the right to prepare a defence, and, if necessary, the right to legal assistance.
An accused who is found guilty can be sentenced to imprisonment , including life imprisonment, and to the forfeiture of assets. Provision is made for the establishment of Trust Funds for the benefit of victims.
The Court will be complementary to national legal systems, and will operate only where a State Party is unable or unwilling to investigate alleged crimes. The main obligations upon a State Party are to cooperate with the Court and when appropriate, to enforce judgements, and, if willing, to accept a sentenced prisoner for imprisonment.
An amendment to the Constitution is required to enable Ireland to ratify the Rome Statute, mainly because submission to the jurisdiction of the International Criminal Court would entail the partial transfer to the Court of the sovereign power of the State to administer justice. It is therefore proposed that there be inserted into Article 29 of the Constitution a new section 9 enabling the State to ratify the Statute.
Under Article 29.1 of the Constitution, Ireland affirms its devotion to friendly cooperation among nations founded on international justice and morality. In voting ‘yes' to this amendment, the people of Ireland will once again affirm their long standing commitment to these values.
