Thank you for the opportunity to address this tenth session of the Assembly of States Parties.
The Assembly session is a critical moment each year for states parties to help equip the International Criminal Court (ICC) to meet the many challenges it faces. This session takes place in the context of significant recent developments for the court’s work – the detention of and unresolved uncertainty surrounding Libya’s Saif al-Islam Gaddafi, the recent transfer of former Ivorian President Laurent Gbagbo to The Hague, and the request for an arrest warrant for Sudan’s Minister of Defense. As you know, this Assembly session also anticipates by some months the tenth anniversary of the entry into force of the Rome Statute. In these 10 years, court officials have made steady progress in the difficult task of transforming the aspirations of the Rome treaty into reality. The court’s workload has never been greater.
The unanimous referral by the United Nations Security Council of the situation in Libya and the article 12(3) declaration by the new government of Côte d’Ivoire have also lifted the profile of the ICC on the world stage to a new level. “The Hague” has increasingly come to symbolize the last best hope of victims for justice.
In this context it is worth recalling the terms of Security Council Resolution 1970, which requires the Libyan authorities to cooperate fully with the ICC. This includes surrendering Saif al-Islam Gaddafi to the court. Should the authorities in Tripoli wish to try him domestically for crimes in the ICC's arrest warrant, they can challenge – through a legal submission – the court's jurisdiction over the case. The Libyan authorities will have to show that they are genuinely able and willing to prosecute the case in fair and credible proceedings. Demonstrating an ability to fairly prosecute Gaddafi will require swift and substantial reform of the judicial system. But ultimately, it is up to the ICC judges to determine whether any national proceedings exist that would trump the court's ability to hear this case. We look to the 120 members of this Assembly to make this dimension of cooperation known. Otherwise, the court risks being seen as just another instrument in the diplomatic tool kit, not a judicial institution where proceedings must run their independent course.
While the court’s workload has already substantially increased with the addition of the Libya and Côte d’Ivoire investigations, there remain other, pressing needs for accountability and for the court. In Syria, security forces are committing widespread and systematic abuses, including killings, arbitrary detention, and torture, as part of a state policy targeting the civilian population. These abuses constitute crimes against humanity.
The Security Council should refer the situation in Syria to the court. We look to the 120 members of this Assembly, a treaty body pledged to limiting impunity for crimes that shock the conscience of humankind, to make your governments’ voices heard by the Security Council. This is especially important for those very few Council members that have obstructed efforts to condemn the violence against the Syrian people. To further this case, we have made available documentation naming senior Syrian officials responsible for ordering these abuses.
This heightened workload and profile mark the expanding influence and importance of the International Criminal Court. But more is required of both court officials and states parties to ensure that increased expectations for justice will be met through meaningful, credible, and fair proceedings supported by the international community, including in cooperation for arrests. This is equally true in the court’s new situations, as in the five situations already opened by the court before this year and where the court’s mandate is far from complete.
We urge your governments to make every effort to ensure that the International Criminal Court is better equipped to meet this challenge. At this session, and following the election of the next prosecutor and six new judges, two issues are of particular importance: ensuring adequate resources for the effective implementation of the International Criminal Court’s mandate, and enhancing state cooperation and support.
Ensuring adequate resources for the effective implementation of the ICC’s mandate
The court’s efforts to deliver meaningful justice risk being undercut by the severe financial constraints many states parties are facing due to the persistent global economic crisis. We appreciate the pressure economic difficulties are placing on national budgets, but, with all respect, opposition to reasonable growth in the court’s budget is ill-conceived. A demand for “zero nominal growth” in the International Criminal Court’s budget is incompatible with the court’s increasing workload and the effective implementation of its mandate.
The court has moved from four situations (2009) to five situations (2010) to seven situations (2011) in a short period of time. The strain on the court’s resources is evident. For example, to cope simultaneously with two cases against three defendants each in the Kenya situation, the pre-trial chamber required additional resources from the contingency fund. Citing resource constraints, the Victim Participation and Reparations Section has been unable to process applications received for victim participation.
In addition, budgetary pressure appears to be fraying the understanding hammered out as the court first became operational about the importance of key court activities—like outreach—to deliver meaningfully on the court’s mandate in affected communities. Insisting that certain activities—like investigations and prosecutions—are core, while others—outreach and field presence—are not, misses the point that these activities are interrelated. Outreach ensures that justice is not only done, but seen to be done among affected communities and affords victims notice of their rights under the Rome Statute. And, by increasing understanding of the ICC’s work in a situation country, outreach also creates improved conditions for cooperation and witness and victim protection.
These are lessons learned from the International Criminal Court’s first years and from the experience of the ad hoc international criminal tribunals. Indeed, at a conference in November in The Hague conducted by the International Criminal Tribunal for the former Yugoslavia (ICTY), several former tribunal presidents cited the ICTY’s lack of an outreach program for its first seven years as a major shortcoming.
It is, of course, legitimate to ask whether there are efficiency gains—including, but not exclusively, gains that result in cost savings—that could be made in the court’s proceedings and structure. Identification of these gains, however, requires considered assessment. Important reviews are underway, including through the Assembly’s Study Group on Governance and the Committee on Budget and Finance. These reviews should be pushed forward, with the court at the lead, but cuts to the court’s proposed budget that deprive it of resources necessary for the effective implementation of its mandate would be shortsighted.
Although this will not solve the immediate issue of the budget to be set for 2012, it is clear that changes need to be made to the budget process going forward—to improve its transparency and to identify efficiency savings. As articulated in our memorandum of recommendations to states parties for this session, we are recommending increased attention to the court’s strategic planning (including a better modeling of its workload and costs) and a review of the budget process itself. States parties should support such reviews with an eye toward providing a better foundation for future budget discussions.
Enhancing state cooperation and support
There is also a real need for the Assembly to increase its attention to cooperation. It is clear from the court’s report on cooperation that gaps remain in assistance and that there is near-constant need for states to provide diplomatic and political support. We welcome the work of Ireland’s ambassador in The Hague as cooperation facilitator over the past two years and we look forward to the Assembly appointing a new facilitator. There are, however, a few additional steps we urge the Assembly to take on cooperation.
First, time needs to be made to discuss cooperation in the formal Assembly session. The value of plenary discussion at the Assembly on cooperation, we think, has been proven time and again—including at the International Criminal Court review conference in Kampala during stocktaking and during last year’s informal consultations on cooperation at the Assembly session. This plenary discussion would provide an opportunity to exchange best practices and identify particular challenges for cooperation to be addressed in the following year. We note that the proposed resolution on cooperation calls for an agenda item on cooperation during the eleventh Assembly session. We would urge states to go further and to make cooperation a permanent, standing agenda item for the Assembly sessions.
Second, beyond a plenary discussion, we see a need for enhanced intersessional work on cooperation. We urge states parties to work toward establishing an intersessional Working Group on cooperation. This Working Group could augment the work of the cooperation facilitator and take forward targeted initiatives on specific areas of cooperation. We would ask that states parties invite the new cooperation facilitator to develop proposals for a Working Group on cooperation in order to work towards the establishment of a Working Group at the eleventh session.
Finally, the Assembly should put in place a self-reporting framework to follow-up on pledges made at Kampala and to provide an opportunity for new pledges to be made. Pledges at Kampala provided a helpful target to move forward internal decision-making processes. The court would undoubtedly benefit from enhancing the practice of pledging and from the increased implementation of pledges of concrete assistance.