International Criminal Court: Statement to the Dáil by Minister Cowen Part 1

I am pleased to have the opportunity to open the debate on the Second Stage of the Twenty-third Amendment of the Constitution Bill, 2001. The purpose of the Bill is to enable Ireland to ratify the Rome Statute of the International Criminal Court done at Rome on the 17th day of July, 1998. The Statute provides for the establishment of a permanent International Criminal Court, in relationship with the United Nations system, with jurisdiction over persons in respect of genocide, crimes against humanity, war crimes and the crime of aggression. The Statute of the Court is an international agreement which will enter into force approximately two months after 60 states have become party to it. Ireland signed the Statute on 7 October 1998. To date 139 states have signed the Statute and 29 have ratified it or acceded to it.

The establishment of a permanent International Criminal Court is something which Ireland has advocated for many years and the Government took an active part in the United Nations Diplomatic Conference of Plenipotentiaries in Rome at which the Statute was adopted. The Government has also participated and continues to participate in the Preparatory Commission, whose task it is to prepare proposals for practical arrangements for the establishment and coming into operation of the Court.

The European Union is a strong supporter of the early establishment of the International Criminal Court. In pursuit of this objective, it led international efforts to encourage as many States as possible to sign the Rome Statute before the 31 December 2000 deadline for signature and has undertaken to assist countries associated with the Union to ratify or accede to the Statute. By ratifying the Statute, we will again signal Ireland's ongoing commitment to the Court.

Over the past one hundred years, great progress has been made in the fields of human rights and international humanitarian law. The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and, in Europe, the European Convention on Human Rights all provide guarantees of respect for human rights, including during time of armed conflict. There have also been significant developments in international humanitarian law, that is, the rules specifically intended to protect persons in time of armed conflict. The four Geneva Conventions of 1947 deal with the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, the Treatment of Prisoners of War and the Protection of Civilian Persons in Time of War, while the two Protocols thereto, adopted in 1977, relate to the Protection of Victims of International Armed Conflicts and of Non-International Armed Conflicts respectively. It is clearly accepted that even in a time of war, there are basic rules that must be observed. However, repeated violations of these rules highlight a significant flaw in their operation: the lack of an adequate enforcement mechanism.

This may be appropriately illustrated by the Convention on the Prevention and Punishment of the Crime of Genocide which was adopted in 1948. Article 6 of the Convention allows for trial by the courts of the State where an act of genocide occurs or by "such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction." When the UN General Assembly adopted this Convention in 1948, it also invited the International Law Commission to "study the desirability and possibility of establishing a judicial organ for the trial of persons charged with genocide." This was found to be both desirable and possible and a draft Statute was prepared in 1951 and revised in 1953. However it was not until 1989, in response to a request by Trinidad and Tobago, that the General Assembly asked the International Law Commission to resume work on a Statute for an international criminal court. In 1994 the International Law Commission submitted its draft Statute to the General Assembly. From then on swift progress was made. The General Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court to consider major substantive issues arising from the draft and this Committee met twice in 1995. After considering the Committee's Report, the General Assembly created the Preparatory Committee on the Establishment of an International Criminal Court to draw up a draft text for submission to a diplomatic conference. The Preparatory Committee held its final session and completed the drafting of the text in March and April of 1998. The United Nations Diplomatic Conference on the Establishment of an International Criminal Court was held in Rome from 15 June to 17 July 1998, and the result was the Statute which we now seek to ratify.

The Rome Statute of the International Criminal Court is the culmination of fifty years of work on the matter. During this period genocide, crimes against humanity, war crimes and the crime of aggression have repeatedly been perpetrated in various parts of the world, despite the existence of instruments of international law outlawing such acts. The existence of international agreements for the prevention and punishment of such crimes provides little comfort for the victims if the perpetrators of such acts never face trial. However, it has often been difficult to bring such persons to trial. They may enjoy immunity as a result of their official capacity. Furthermore, the political will may not exist to bring them to trial or the institutions of the state may have collapsed completely. The establishment of the International Criminal Court is an attempt to solve these problems.

Having determined that the situations in the former Yugoslavia and Rwanda in the early 1990s constituted a threat to international peace and security, the United Nations Security Council, acting under Chapter VII of the UN Charter, set up two tribunals to ensure that the perpetrators of the atrocities committed at that time should not escape punishment. The International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda have made great progress, but their jurisdiction is limited to the particular geographical areas concerned and is subject to certain time constraints. The International Criminal Court, once established, will have much broader jurisdiction. In addition, the creation of ad hoc tribunals is always open to criticism. The setting up of tribunals for some circumstances and not for others will always be questioned. Those standing trial will question the independence of the tribunal and claim to be the victims of "victors' justice." Ad hoc tribunals can have little deterrent effect because nobody can ever be certain that such a tribunal will in fact be established. Furthermore, there is invariably a delay between the commission of the crimes and the establishment of the tribunal. All of these difficulties inherent in ad hoc tribunals are addressed by the establishment of a permanent international criminal court. The Rome Statute of the International Criminal Court provides for a permanent independent institution within the United Nations system. It should not be possible for any State to interfere with the Court in the execution of its function and it will be difficult for those who will still cry "victors' justice" to claim any legitimacy.

The Statute adopted at the Conference of Plenipotentiaries in Rome is a comprehensive document consisting of 13 Parts and 128 Articles. The Statute deals with the establishment of the Court, its jurisdiction and the general principles of criminal law to be applied. It sets out the composition of the Court and its administration, the procedures for investigation, prosecution and trial, the penalties which can be imposed on conviction, and provides for appeals. There is an obligation on the States Parties to cooperate with the Court, and provision is also made for the enforcement of the judgements of the Court and for the carrying out of sentences. The Statute furthermore provides for an Assembly of States Parties and for the financing of the Court.

Article 5 of the Statute sets out that "the most serious crimes of concern to the international community" namely, the crime of genocide, crimes against humanity, war crimes and the crime of aggression are within the jurisdiction of the Court. The Court will exercise jurisdiction over genocide, crimes against humanity and war crimes committed after the date on which Statute enters into force. The Court will, however, not exercise jurisdiction over the crime of aggression until a provision is adopted by the States Parties defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. A review conference is to be held seven years after the entry into force of the Statute and a provision governing the crime of aggression may be adopted at this Conference.Top