Antoine Kesia-Mbe Mindua | The International Criminal Court and the challenges of Global Justice as foundations to achieve peace

First of all, I would like to thank very much the president and the judges of the Supreme Court of Justice of Guatemala. I would like also to thank the governments and the people of Guatemala for receiving us in this beautiful city of Guatemala. Finally, I would like to thank Dr. William Soto Santiago for organizing this important event and for inviting me to come here and to speak.

 

The topic of my speech is: The International Criminal Court and the Challenges of Global Justice as Foundations to achieve Peace.

 

Martin Martin Luther King said: “True peace is not merely the absence of attention. It is the presence of justice.” The existence of the International Criminal Court - ICC is based on the idea that there can be no peace without justice and that suppressing international crimes is a necessity to achieve peace. The preamble of the Rome Statute recalls that peace and justice go hand in hand. As we’ll see the existence of the Court is the achievement of a longer process of attempts to address these concerns.

 

We are going to discuss our topic through three sections. First section: the creation of ICC of a long quest towards universal justice. Second section: challenges faced by the court in its quest for justice and peace. And finally, the third section will be devoted to the peace and justice as going together. We will see that we have all the ways of reaching peace apart from justice.

 

So now first section:

The creation of the ICC, the result of a long quest towards international, towards universal justice. As you know the creation of the ICC is the result of a long process whereby States have ** law mechanisms to address international crimes. In our globalized world we believe that the rule of law is a necessity, a moral obligation, as well as a mean of preventing globalized wars and crimes. The rule of law is the principle that all people and institutions are subject to and accountable to law. That is a fairly applied and enforced.

 

This issue is crucial. It should be addressed in the framework of universal justice and it requires a global action. The international ** global legislation has started and a new substantive law is growing. That is international criminal law based on individual criminal responsibility. It is the main vehicle which allows both the enforcement of international legislation and the suppression of international crimes.

 

Now, point one of the first section. A brief history of attempts to address the need for international justice. The need to suppress international crimes goes back far into the past. In ancient times and in the middle ages, attempts were made to punish those responsible for crimes shocking the conscience of mankind. Says states who were reluctant or unwilling to try their own nationals or leaders some trials were organized by a coalition of states. I have some examples but we don’t have enough time, so I don’t want to go into details.

 

After World War I, it was decided to try the German Emperor, Wilhelm II according to the territory* of **. And we know after World War II, the international military tribunal of ** and the international military tribunal for ** into Tokyo were created in order to prosecute and try respectfully major war criminals of the European axis and Japanese major war criminals. Man indicates later, after the war and massacres in the former Yugoslavia the U.N. Security Council decided to create the International Criminal Tribunal for the former Yugoslavia in 1993. And also after the massacres in the genocide in Rwanda, the same security council of the U.N. decided to create the International Criminal Tribunal for Rwanda in 1994.

 

Moreover, in response to massive violations of human rights in Cambodia*, Sierra Leone, Lebanon and recently in Central African republic, the U.N. decided to set up a special mixed or hybrid tribunals following an agreement with the concerned States. Furthermore, in the case of ** and Kosovo the U.N. decided to set up courts on its own. All of these courts and tribunals were not universal, they were not global, since they were still limited, temporary and geographically. In order to symbolize or to achieve global peace, global justice, there was a need for a universal court.

 

Now, point two: The creation of the ICC as a progress in responding to the need for justice to establish peace.

 

The adoption by the U.N. Conference of Plenipotentiaries on 17 July 1998, of the Rome Statute projecting the ICC is considered as a benchmark in the international criminal law. That Statute entered into force on 1st of July 2002. In the prospect of international criminal court lies the promise of universal justice. As a court of last resort the ICC establishes principles and standards to be followed by all States in accordance with the principles of complementarity.

 

Now, point three: The ICC is based on a treaty. It should be recalled that the ICC is a treaty based institution as such in the principle, its jurisdiction covers only those States which are party to the Rome Statute in accordance with Article 34 of the Vienna Convention on the Law of Treaties. There is no obligation upon third parties, which are not party to the treaty.

 

In Latin we say pacta tertiis nec nocent nec prosunt. This adagium contains a basic rule of contract law that agreements do not give rights, neither do they impose obligations on the third States. As a result this situation exposes the ICC to many challenges.

 

Now we go to our section 2: Challenges faced by the court in its quest for justice and peace.

 

Of course the first challenge, the first point is the quest to universality. We know the court counts 123 State parties. (In the U.N. we have about 193 States). Indeed, some regions in the world are under represented at the Court. For instance North Africa and the Middle East or Asia. The entire population of all the States’ parties to the wrong treaty, that’s not even make up half of the world’s population because many of those States are small countries like: Andorra, Estonia, Fiji, Granada, Cook Islands, Liechtenstein, San Marino, Samoa, Vanuatu and so on.

 

Further, States like Israel, India, China, Russia and the United States of America are not State parties to the Rome treaty. We have them to struggle in order to obtain more ratification's, in order to achieve a real universality.

 

Point two or challenge number: Complex relationships with the United Nations, with the United Nations Security Council. As you know China, Russia and the United States of America are permanent members of the Security Council; but they are not parties to the Rome treaty. The Security Council and the Court are linked by very complex relations. On the one hand, the Security Council acting on the Chapter 7 of the U.N. Charter can refer the issue to the court as it happened in the Libyan situation or the Darfur situation; and on the other hand the Security Council can defer or suspend a situation or a case before the Court by way of Article 16 of the Rome Statute.

 

Thus, China, Russia and the United States of America: Why not be in the State parties to the Court? Have the power to decide which situations will be dealt with by the Court or not. Such a situation is very disturbing for the general public, as well as for many States.

 

For sure, the ICC is a great achievement. However this Court suffered a **, this is the origin from a congenital disease, which I call schizophrenia, because the Rome Statute resulted from a treaty as I said and as such it complies with the Vienna Convention on Treaties that agreements do not benefit and do not harm third parties.

 

At the same time, the Rome Statute organizes a sort of supranational government, since the Security Council can authoritatively refer and defer cases to or from the ICC. It is easy to understand now why for many African head of States the ICC is an instrument in the hands of the globalized powers.

 

Point number three, challenge number 3: Political interference and cooperation problems. While the ICC decides for justice on the premise that justice will achieve peace, it is operating in a highly politicized environment. Well, peace considerations may sometimes clash with justice aspirations. Indeed, we know the Court must adjudicate war crimes, crimes against humanity, genocide and aggression. These are crimes committed very often by political leaders or actors or on behalf of the State, which are themselves embedded in politics.

 

The challenge of the Court is to say: Law and nothing but law in this highly politicized environment. World* situation is referred before a chamber only judicial considerations apply and political aspects are completely disregarded. ICC judges make it a point of honor to remain neutral and professional.

 

We know the ICC does not have its own policy force* or any ** means to execute the orders and decisions at issues. The ICC relies on the goodwill and recuperation of a State parties and a non-parties. While State parties have an obligation to cooperate in accordance with Chapter 9 of the Rome Statute, the situation is more complex regarding non-state parties, which cooperates only at their entire discretion.

 

The warrant for arrest issued against Mr. al-Bashir, president of Sudan and which is until today not yet executed, is a good example of failure of the States cooperation. In addition, to the non-execution of the arrest warrant, the Court must always make more effort to develop harmonious and efficient cooperation relationships with State parties to enable the collection of evidence.

 

Further, the court needs States corporation to investigate on the territory of the States in past conflict trial or conflict trial situation. Developing this type of corporation remains one of the most crucial and difficult challenges for the Court in its quest for justice and peace. Thus it is very often difficult to obtain cooperation from a government whose agents or allies are being investigated.

 

Now point to four. ** from the Rome Statute. A new phenomenon has risen in the last years, mainly states with troubles. There was trouble of a state party from the Rome Treaty, is provided for in Article 127 of the Statute. Even though a massive ** from the African Union could be avoided, still vivid discussions have arisen. To date, in Africa, Burundi confirmed its retreats in what appears to be an attempt to subtract certain individuals from potential prosecutions.

 

Similarity, Philippines have announced there were withdrawals. Precisely one of the prosecutors indicated that she was operating a preliminary examination. While these withdrawals are immensely regrettable, they also show that when the States are striving for other objectives than peace, they also attempt to subtract themselves from justice. In my view those withdrawals are counterproductive.

 

Point to five: Hostility of some countries. The ICC is facing sometimes hostility from some countries. Since its inception, the ICC is facing hostility of some countries, especially among those States which did not sign the Rome Treaty or some other which signed the Treaty but unsigned later on.

 

With a lot of pain, I have to say that it is the case for the United States of America. The latter unsigned the Rome Treaty in 2002 under the Bush administration, and also adopted some measures aiming at neutralizing the competence of the ICC towards American citizens.

 

Thus the American Service Members Protection Act was passed in 2002. This law allows the American Armed Forces to intervene in the Netherlands and to set free any American citizen who could be detained in the ICC detention facilities in the Hague. That is why some call this law the Hague Invasion Act. Moreover the U.S. government has concluded by lateral agreements with more than 180 countries in other to guarantee the non-transfers of American citizens to the ICC.

 

In addition to that, recently in his first speech since becoming president Donald Trump’s National Security Adviser, on 10 September 2018 Mr. John Bolton described to the Court as ineffective and unaccountable and dangerous. He announced that the Trump administration would use any means necessary to protect, I quote: “Our citizens and those of our allies from unjust prosecution by this illegitimate court.” (End of quotation).

 

Furthermore, Mr. Bolton sited to specific measures that the administration would take if the ICC were to pursue actions against the United States and Israel: including banning ICC judges and prosecutors from entering the United States of America, seasoning their funds in the United States and prosecuting them in the United States’ criminal system. He also threatened similar actions against any nation or company that assists the ICC in any investigations of Americans. Of course, such statement shows how it is very difficult to achieve peace through global justice. 

 

The ICC needs the United States of America, which is a big democratic country committed to human rights and the rule of law. And to the ICC we love the United States of America, we have some American nationals among our lawyers and other professional staff. We can only hope that this country will rectify the Rome Statute and join the ICC, together with the other remaining States, especially Russia and China, which are members of the Security Council of the United Nations. In shortly, they will only promote universal peace through global justice.

 

Now the last section: Peace and justice must go hand-in-hand, and other creative ways of reaching peace via justice.

 

Point number one: The ICC is a Court of Law, which shows peace. The ICC is a court of law, it must operate regardless of political considerations, yet one of the reproach it must face sometimes is the fact that peace and justice in some places may, in fact, hinder peace process. For instance, the case of the referral by the Security Council of the situation in Libya to the ICC followed by the rapid indictment of certain leaders. Some writers considered that this led to the slow down in the peace process in Libya.

 

Point number two: Evolving international criminal law. The creation of the ICC is the result of the evolution of the International Institutional Law. It seems necessary to ensure also, the evolution of this substantive International Law. Usually for adjudication of cases, international courts limit themselves to violent offenses such as genocide, crimes against humanity, war crimes. However, it is clear that new international crimes have emerged as a consequence of globalization, such as environmental destruction, land grabs, illegal exploitation of natural resources, flattening of rain-forests, poisoning water sources, etc. Those conducts are not only harmful to inhabitants but they are also constitutive of what can be called ‘offense’ against the Mother Earth.

 

Further to the existence of the civil societies, the office of the persecutor of the ICC, in its office of the persecutor policy paper, all case selection and prioritization, has decided to prioritize crimes that result in destruction of the environment, exploitation of natural resources and illegal disposition of lands. Because many of those systemic crimes committed for development purposes are no less damaging to victims than many war times atrocities.

 

Furthermore, the office of the prosecutor leads other crimes such as arms trafficking, human trafficking, terrorism and financial crimes in which it intends to provide more help to individual States to carry out national persecutions. In so doing, a way is paved for the recognition of new crimes including ecocide (the crime against the environment or against the ecosystem) and also patrimonicide, (patrimonicide crimes against the public property, crimes regarding corruption, much financial stuff and so on).

 

Now, point number three… (Sorry). Many civil societies advocate for their organizations and the recognition for the crystallization of those new crimes into the international positive law.

 

Now point number three. Other ways of ensuring peace do exist. Some political solution, some practical solution have worked in certain situations. For instance, in the situation in Uganda, the Ugandan government has awarded amnesties by way of an amnesty law to a large numbers of combatants. This was aimed at a *** to demobilize and return civilian life, knowing that they will not be prosecuted. At the same time the alleged highest commanders of the rebellion, of the lower resistant army, were indicted by the ICC and we know Dominic Ongwen is currently being tried by trail chamber number 9 at **.

 

In addition, we also have trust… (sorry) We also have truth and reconciliation commissions. They are very often established to address the gross human rights violations including societal impacts where, which occur during insurgencies and other turmoil. Those commissions have a role to play in facilitating and establishing peace in the countries. In fact, they give the opportunity to victims to be heard and to know the truth at the same time, they also allow the perpetrators of crimes to recognize their wrongdoing and to seek for forgiveness. They were set up in South Africa, Liberia and Sierra Leona for example. And they gave good results. Those ways of solving problems cannot be ignored by the ICC.

 

In conclusion… In conclusion what can we say? The creation of the ICC constitutes a fantastic progress as the only global international criminal jurisdiction pursuing the advancement of global justice. The ICC bills primarily with the suppression of international crimes as recognized in the Rome Statute.

 

Moreover by the potential deterrent effect of its judgment it also plays a role in the prevention of the commission of crimes. This deterrent effect is crucial and it needs to be preserved by guaranteeing the independence and the credibility of the Court. Both could be at risk due to the lack of real universality of the ICC and into the political interference of the Security Council in the work of the Court.

 

Therefore, the relationship between the ICC and the United Nations Security Council should be clarified promptly.

 

With regard to the ICC membership there is still a need for a real universality, which will be obtained by the ratification of the Rome Statute by all other States, especially the major powers sitting in the United Nations Security Council, and holding a veto rights.

 

This is why we urged civil societies, like the Global Embassy of Activists for Peace, to advocate for ratification by all States in order to achieve full universality of the ICC, which after all is only a Court of last resort, subjected to the principle of complementarity with national courts.

 

I thank you all for your kind attention and I thank you for your support to the ICC.

 

Thank you.