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The International Criminal Court

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The International Criminal Court Powered By Docstoc
					              Second Annual Distinguished Lecture on
                  Criminal Justice and Human Rights
      The Centre for Criminal Justice and Human Rights,
        Faculty of Law, University College Cork, Ireland




     The International Criminal Court as a Human Rights
                                     Institution


                               Judge Navi Pillay*


                                21 February 2008




 Judge Navanethem Pillay of the Appeals Chamber at the International Criminal Court The
Hague, The Netherlands
    The International Criminal Court as a Human Rights
                               Institution


In my lifetime, the world of international relations has changed radically
so that Public and Private International Law, as I, and those of my
generation knew it, has acquired new dimensions: international criminal
law, international humanitarian law and international human rights law. It
will surprise no one that universal human right concepts are common to
all of them. International law increasingly plays a role in shaping state
policy and domestic law in advancing protection of human rights. If we
add to this trend, the growth of international criminal law and its
emphasis on the criminal responsibility of the individual, the picture is
clear: the role of the individual as the subject and object of international
law is unassailable.


The progress of international criminal justice lay dormant for half a
century since the Nuremberg and Tokyo tribunals of 1945 until 1993.
Rapid progress was made over the past fifteen years by the establishment
of the UN Tribunals for former Yugoslavia and Rwanda, ICTY [1993],
ICTR [1994] followed by ad hoc international courts in East Timor,
Kosovo, Sierra Leone, Cambodia; and the Courts for Iraq and Lebanon.
With the adoption of the Rome Statute in 1998, the ICC, the world‟s first
permanent International Criminal Court was established.


Yet the idea of developing universal standards of human rights is new and
an even more recent development is the use by the International




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community of judicial power backed by punishment to deter serious
violations of human rights.


Justice John Hedigan, the Irish judge who retired last year after
distinguished service in the European Court of Human Rights, said:


         “Who would have thought of a European Court of Human
         Rights sixty years ago? Sixty years from now, there will be a
         place for a global court of human rights.”1




    Who would have thought of Apartheid ending, fifteen years ago? My
own experience in Apartheid South Africa was that the judiciary was
greatly compromised in protecting human rights against unjust, racist
laws.


In 1962, Nelson Mandela charged for protest activities, challenged the
inherent potential for injustice in an apartheid court where all the judges
were white and the laws were passed by whites. The magistrate
responded:


         “After all is said and done, there is only one court and that is
         the white man’s court. There is no other court”2


Fortunately, a few judges did act to ensure that apartheid laws did not
violate fundamental common law rights and freedoms. For instance,

1
  The International Judge, Daniel Terris, Cesare P R Romano and Leigh Swigart; Brandeis University
Press, Page 220.
2
   State v Nelson Mandela 1962 unreported decision of the Magistrate‟s Court in Transvaal, extract of
record reprinted as Document 68 in Thomas Karis and Gwendolen Carter: "From Protest to Challenge:
a Documentary history of African politics in South Africa." (1882-1964) vol 3 Hoover 1977 pg 726.


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under the Terrorism Act of 1967, thousands of South Africans were
incarcerated indefinitely without charge, and without access to family,
lawyers or the courts. The Act, which was modelled on the UK Terrorism
Act targeting the IRA, prohibited any court from determining the validity
of detentions or ordering habeas corpus relief. My late husband was one
of the persons held in solitary confinement under this law for
interrogation. He was a lawyer and had given me his power of attorney,
which enabled me to apply to the High court on his behalf for an
injunction against the use of torture upon him by the security police. This
was the first such challenge to the Terrorism Act. The Court, relying on
fundamental common law and human rights principles, ordered the police
to refrain from the use of unlawful methods of interrogation. There was
no possibility of bringing class actions for similar protection for the
hundreds of detainees.


In another case, in 1973, the Cape High Court granted relief to inmates of
Robben Island state security prison [where Nelson Mandela and my
clients were incarcerated] by pronouncing for the first time that prisoners
were not the property of the state but had rights and privileges, such as
the right to humane treatment and the right of access to lawyers. 3
Recollection of the past makes me appreciate and value where we are
today: an international criminal court with jurisdiction to protect human
rights.


The International Criminal Court [ICC] will play a critical role as both a
tribunal of individual criminal responsibility and as a human rights




3
    State v Kader Hassim and S. Venkatrathnam , CPD, SALR 1973.


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institution,4 both in the application and development of existing law.
Specifically, its establishment:
    1. develops the relationship between human rights and humanitarian
         law;
    2. builds on an existing regime of international human rights
         guarantees;
    3. creates the possibility for cooperation with international human
         rights bodies.5


The Rome Statute incorporates substantive human rights norms,
particularly by defining crimes against humanity6 without requiring a
connection with armed conflict. It also contains specific elements of
crimes that may be cross-referenced with other international instruments
and jurisprudence. In interpreting the definition of torture in the ICC
Statute,7 for example, the Court could look to the UN Torture
Convention8 and its related jurisprudence.
One of the most important provisions of the Rome Statute is article 21(3).
It states that the “application and interpretation of law […] must be
4
  The International Criminal Court is premised on universal respect for a system of human rights which
is under threat when serious crimes go unpunished. The preamble to the Rome Statute states that the
states parties: “Conscious that all peoples are united by common bonds, their cultures pieced together
in a shared heritage, and concerned that this delicate mosaic may be shattered at any time”, are
determined, “for the sake of present and future generations, to end impunity for the most serious crimes
of concern to the international community as a whole.”
5
  Fausto Pocar, The Rome Statute of the International Criminal Court and Human Rights, in The Rome
Statute of the International Criminal Court: A Challenge to Impunity 67-74, 67 (Mauro Politi et al.
eds., Ashgate/Dartmouth 2001).
6
  Crimes against humanity have not been the subject of a specialised international convention. This
category of crimes, applied in the military tribunals of Nuremberg and Tokyo, have been defined as
violations of peremptory norms of international law and jus cogens. The ICC statute constitutes the
very first authoritative treaty definition of crimes against humanity. Crimes against humanity were
originally conceived as commissions during war. This link to armed conflict was maintained in the
statute of the ICTY, but dropped for the Statute of the ICTR. Art 7 of the Statute of the ICC which
defines crimes against humanity, reflects the progressive evolution of customary international law by
dispensing with the link to armed conflict and expanding the list of crimes to include: art [7] [1] [g]
…sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity.
7
  Article 7(2)(e).
8
  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment article
1(1), available at http://www.unhchr.ch/html/menu3/b/h_cat39.htm.


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consistent with internationally recognized human rights, without any
adverse distinction founded on grounds such as gender […],9 age, race,
colour, language, religion or belief, political or other opinion, national,
ethnic or social origin, wealth, birth or other status”.10 ICC judges will
therefore draw from a large body of human rights law with ample
discretion to guarantee the most basic and important protections.


While the ICC is primarily a judicial institution, its mere existence and
future work will help promote human rights by: creating a historical
record of past wrongs; offering a forum for victims to voice their opinions
and receive satisfaction and compensation for past violations; creating
judicial precedent; and deterring potential violators of the gravest crimes
while punishing past offenders. It has been suggested that too much
attention is focused on the ICC bringing justice to so few at a high cost
compared to other types of human rights work. It should be noted that the
ICC is just one part of a larger effort to guarantee human rights to all.
International justice holds a different place in the spectrum of human
rights programmes, just as its source of funding varies from human rights
advocacy organisations and humanitarian missions. Compared to
peacekeeping, the price of justice is quite low.11 Furthermore, it is
difficult to measure the success of future proceedings and prevented
crimes. By drawing attention to the worst crimes and prosecuting the
worst offenders, the ICC will set an example for other human rights

9
   As defined in article 7(3), the term „gender‟ “refers to the two sexes, male and female, within the
context of society”.
10
   Article 21(3).
11
    Statement by Prince Zeid al-Hussein before the UN Security Council, from Edith M. Lederer,
Security Council Told to Stop Complaining About High Cost of War Crimes Tribunals, Associated
Press, 7 October 2004 (“He criticized the council for repeatedly complaining about the high cost of the
tribunals, saying the $175 million spent annually to prosecute those responsible for war crimes in
former Yugoslavia „is less than one-twentieth‟ of what the United Nations paid annually during the war
for peacekeeping operations.” He is also quoted as saying, “With an international community prepared
to spend almost one trillion U.S. dollars a year on weapons that historic companion of war how can we
say that anything we have spent thus far on justice, the surest companion of peace, is too expensive?”)


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violations and offenders. Even though the creation of the Court is creating
both excitement and controversy in the international community, the ICC,
like national courts, is meant to complement existing and future human
rights efforts.


All national and international institutions will benefit from the exchange
of jurisprudence, norms and ideals that accompanies the addition of
another human rights institution such as the ICC. While the ICC is
focused on encouraging the effectiveness of national court systems, the
growth of an international judiciary deciding intergovernmental disputes,
enforcement of human rights norms as well as criminal prosecutions does
not mean that international law is an isolated legal order. On the contrary,
at the ICC and at courts around the world, judges and the parties before
them are concurrently considering and arguing points of national and
international law. As with the interconnected European Union and the
freedom of movement we enjoy,12 it will not be possible to close borders
and create barriers to the world‟s legal systems; national judges cannot be
isolated from the international system and international judges cannot be
isolated from national systems.


The jurisprudence of other international tribunals and human rights
bodies as well as national courts on the interpretation and application of
human rights norm will be a critical guide to the ICC, bearing in mind
that the ICC‟s primary competence is trying cases of individual criminal
responsibility. For example, many regional and international charters and



12
  Protocol integrating the Schengen acquis into the framework of the European Union, Treaty of
Amsterdam, 2 October 1997, available at http://europa.eu.int/eur-lex/en/treaties/selected/livre313.html;
Charter of Fundamental Rights of the European Union, 7 December 2000, article 45, incorporated into
Treaty establishing a Constitution for Europe, 16 December 2004, article II-105.


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treaties guarantee the right to a fair trial,13 including the Rome Statute.14
The ICC will no doubt consult the best practices of other institutions,
both national and international, for the interpretation and application of
fair trial norms set out in the provisions. One of the challenges facing the
court is that of balancing the fair trial rights of accused with the
institutional need for an expeditious trial. At the ICTY, for instance, the
Milosevic trial went on for over three and a half years.15 And at the ICTR,
the Butare case16 involving six accused is in its eighth year.
The ICC also faces significant challenges over the interpretation and
implementation of the groundbreaking provisions giving victims the right
of participation in court proceedings where their personal rights are
affected. Such participation is subject to judicial supervision and must not
be prejudicial or inconsistent with the rights of the accused and a fair and
impartial trial. The court must aim to achieve an equitable balance
between a number of legitimate goals.


This exchange of jurisprudence should not, however, be made within a
hierarchical structure based on an institution‟s mandate or its supporters.
Instead, courts should use each others‟ jurisprudence when appropriate
and weigh it according to the governing statute and the relevance of the
jurisprudence. From its first case, the ICTY referred to the jurisprudence
of the International Court of Justice and other international, regional and

13
   See, e.g., International Covenant on Civil and Political Rights article 14 and European Convention
on Human Rights article 6.
14
   Article 67 (1). The ICC statute contains general principles of and standards of criminal law and
critical standards for criminal courts developed in human rights jurisprudence, in particular, criminal
courts must be established by law and must follow the rule of law. The pre-requisite for punishment is
legislative definition prior to the commission of the crime, captured in the maxims art 22 nullum
crimen sine lege; art 23 nulla poena sine lege; art 24 non retroactivity, ratione personae
The principles of legality provide justice and fairness for the accused, prevent the abuse of power and
strengthen the application of the rule of law. These provisions in the statute, derived from human rights
law give the ICC legitimacy.
15
   Prosecutor v. Milosevic, case no. IT-02-54 (“Kosovo, Croatia and Bosnia”). The prosecution case,
Kosovo Phase, started 12 February 2002; the defence case is ongoing.
16
   ICTR-98-42.


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national courts.17 Recently, the European Court of Human Rights looked
to the jurisprudence of European and other nations as well as ICTY and
ICTR jurisprudence in considering the issue of consent in a Bulgarian
rape case.18 It has also referred to the statutes of the ICTY, ICTR and
even the ICC with respect to the definition of torture.19


In addition, in the Media case20 the ICTR considered the jurisprudence of
the Nuremberg trials, the European Court of Human Rights as well as
jurisprudence of the United States21 in determining the guilt of the
accused on charges of genocide and direct and public incitement to
commit genocide based on conveying “a message of ethnic hatred and a
call for violence against the Tutsi population”.22 It also looked at the
Universal Declaration of Human Rights, the International Covenant on
Civil and Political Rights, the International Convention on the
Elimination of all Forms of Racial Discrimination and the related


17
   See, e.g., Prosecutor v. Duško Tadić, case no. IT-94-1-A, Judgement, 15 July 1999 (citing the
International Court of Justice (paragraphs 99-101, 106-107, 124-125, 127, 133 and 282); the
Nuremberg trials (paragraphs 200 and 275); the U.S.-Iran Claims Tribunal (paragraph 126); the
European Court of Human Rights (paragraphs 30, 48 and 128); the British Military Court (Luneberg,
Germany) (paragraph 142); the U.S. Supreme Court (paragraphs 224 and 309); and other national
courts, including France, Italy, England and Wales, the Supreme Court of Canada, the Connecticut
Supreme Court (U.S.) and the High Court of Australia (paragraph 224).
18
   Case of M.C. v. Bulgaria, application no. 39272/98, Judgment, 4 December 2003, paragraphs 127-
128 (“[a] central concern underlying reforms in rape law had been to clarify that it was not necessary to
establish that the accused had overcome the victim‟s physical resistance in order to prove lack of
consent That tendency had been reflected in developments in international criminal law. In particular,
the International Criminal Tribunals for Rwanda and the former Yugoslavia had characterised as rape
sexual penetration „in circumstances which are coercive‟ or committed through „coercion or force or
threat of force‟.). The Court recognised, based on “a clear and steady trend in Europe and some other
parts of the world”, that the definition of rape under the Convention “includes non-consensual sexual
act, including in the absence of physical resistance by the victim”. Paragraphs 156 and 166.
19
   Case of Al-Adsani v. The United Kingdom, application no. 35763/97, Judgment, 21 November 2001,
Joint Dissenting Opinion of Judges Rozakis and Caflisch, paragraph 1 (“we readily subscribe and in
further support of this we refer to the Statutes of the ad hoc Tribunals for the Former Yugoslavia and
Rwanda, and to the Statute of the International Criminal Court, which also gives a definition of the
crime [See Article 7 § 2 (e) of the Statute of the International Criminal Court]”).
20
   Prosecutor v. Nahimana et al., case no. ICTR-99-52-T, Judgement and Sentence, 3 December 2003,
paragraphs 981-982, 991-1010.
21
   Prosecutor v. Nahimana et al., case no. ICTR-99-52-T, Judgement and Sentence, 3 December 2003,
paragraphs 981-982, 991-1010.
22
   Prosecutor v. Nahimana et al., paragraph 971.


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jurisprudence of the UN Human Rights Committee.23 The ICTR Media
case underscores how important it is to refer to the jurisprudence
developed by other human rights bodies,24 particularly when international
legal principles have not been addressed directly by an international
criminal tribunal in almost 60 years.


The Rights of victims


Victim Participation


The ICC is the first court at the international level to provide for victim
participation in proceedings. The Statute fills a gap in justice by explicitly
providing for the right of survivors to participate in the justice process,
directly or through legal representatives, by presenting their views and
concerns at all stages to the court proceedings. This is an important and
innovative opening in international criminal courts providing direct
access to justice for survivors of ICC crimes. The rules require the Court
to ensure that the distinct interests of different victim groups be
represented, including victims of gender violence. As I mentioned earlier
the judges will permit participation by victims, where appropriate, and
not prejudicial to the rights of the accused and consistent with fair trial
norms.




Protection of Victims and Witnesses




23
  Prosecutor v. Nahimana et al., paragraphs 983-990.
24
  Prosecutor v. Nahimana et al., paragraph 2 (referring to the “power of the media to create and
destroy fundamental human values” recognised by the International Military Tribunal at Nuremberg).


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The main provisions governing the protection of victims and witnesses in
the ICC Statute are Articles 68 and 69 (2) Rules 87 and 88. Appropriate
measures must be taken throughout all phases of the court proceedings
and the post trial phase. The court is required to protect the safety, dignity
and privacy and physical and psychological well being of victims and
witnesses taking into account factors such as age, gender and health, in
particular crimes involving sexual or gender violence or violence against
children. These concerns may be safeguarded by measures respecting
confidentiality, anonymity and preventing re-traumatisation.


Gender sensitivity


The Statute requires that in the process of selection of judges, prosecutor
and other staff, the need for legal expertise on violence against women or
children be considered. This additional provision recognises both the
importance attached to gender crimes in the work of the Court and the
need for expertise and sensitivity to ensure effective processes.


To ensure that gender crimes are investigated, the Office of the
Prosecutor will have to appoint legal experts on specific issues including
sexual violence.


Victims and Witnesses Unit


The ICC provides for the creation of a Victims and Witnesses Unit
(VWU). The Registry has established such a unit and holds ongoing
consultation with civil society organisations on the needs and goals of
victims. The VWU will provide protective measures, security
arrangements, counselling and other appropriate assistance for witnesses,


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victims and others at risk on account of their testimony. Furthermore, this
unit must include staff with expertise in trauma.




Reparation for Victims


The UN statutes of the ICTY and ICTR focused on retributive justice and
neglected to provide for restorative justice in the form of reparation for
victims. When I was President of the ICTR, I addressed a letter to the UN
Secretary General25 on behalf of the judges and in response to complaints
from Rwandans of injustice. Rwandans at one stage called a boycott of
the Tribunal and were particularly aggrieved that the Tribunal was
providing HIV/Aids anti-retro viral medication to detainees in its custody,
whereas victims of the genocide were not receiving any aid or treatment.
We requested the UN to remedy the gap in the Statute, and make
provision for compensation for victims.


The ICC Statute and Rules of Procedure and Evidence contain an
elaborate reparation regime (Article 75 and 79; Rules 94-99). For the first
time in history an international criminal court will give victims direct
access to request and receive reparation. The Court will establish
principles of reparation and in certain cases, award reparations to, or in
respect of, victims including restitution, compensation and rehabilitation.
The Court may invite and take into account representations from or on
behalf of the convicted person, victims, other interested persons or
interested states.



25
 Letter dated 9 November 2000 from the President of the International Criminal Tribunal for Rwanda
addressed to the Secretary-General, U.N. Doc. S/2000/1198; Annex (15 December 2000).


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The Assembly of States Parties has established a Trust Fund as provided
in Article 79, for the benefit of victims who have suffered harm as a
result of crimes within the jurisdiction of the Court, and the families of
such victims. The Trust Fund is charged with implementing court orders
for reparation, assisting those in immediate need and developing
programmes aimed at helping to re build lives and communities. Three
projects already in place are: a rehabilitation program in Bukavu, South
Kivu, DRC, for victims of rape; an inter-active radio program in Bunia,
DRC to help victims speak out and overcome stigma and marginalisation;
and a reconstructive surgery program in Northern Uganda for disfigured
victims.


The ICC has developed and made public an Outreach Plan26 as an
“effective system of two-way communication with six key objectives:
        To provide accurate and effective information to affected
           communities regarding the court‟s role and activities;
        To promote greater understanding of the court‟s role during the
           various stages of the proceedings with a view to increasing support
           among the population for their conduct;
        To foster greater participation of local communities in the activities
           of the court;
           To respond to the concerns and expectations expressed in general
           by affected communities and by particular groups within these
           communities;
           To counter misinformation;




26
     Strategic plan for Outreach of the International Criminal Court ICC-ASP/5/12 [29 September 2006].




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      To promote access to and understanding of judicial proceedings
       among affected communities.


We are presently seeing the provisions of the Rome statute being applied
in practice in the court‟s first cases: three defendants from the DRC, one
at the trial stage and two at the pre trial stage; warrants of arrest
authorised by the court against two individuals in Dafur, Sudan awaiting
execution by states parties; warrants of arrest issued against four persons
in Uganda, also awaiting execution. The court is committed to ensuring
fair and efficient proceedings and upholding fundamental human rights.




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