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Fundamental Standards of humanity, Impunity and International Criminal Court

01-04-1998 Statement

54th Annual Session of the United Nations Commission on Human Rights. Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its forty-ninth session. Commission on Human Rights, 54th session, 1 April 1998. Statement by the International Committee of the Red Cross

Mr Chairman,

The International Committee of the Red Cross would like to commend the quality of the analytical report submitted to this Commission by the Secretary-General on the issue of fundamental standards of humanity, pursuant to resolution 1997/21 (E/CN.4/1998/87). This document addresses clearly and objectively the main aspects of this important question.

Nevertheless, the ICRC considers it necessary to pursue this thinking in future at several levels. First, there is a need to examine more closely the content, format and status of the above-mentioned standards, and to determine in which situations they might apply. The debate should take account of the necessity to safeguard the specificities of each of the two branches of international law concerned, namely international human rights law and international humanitarian law. Indeed, the complementary nature of these two bodies of law stems to a large extent from the features specific to each system, which thus ensure better protection of fundamental rights. Confusion between respective provisions, for example regarding the use of armed force, could prove harmful. Therefore, as rightly acknowledged by the Secretary-General in his report, we need to move ahead with discernment, bearing in mind that a statement of fundamental standards of humanity does not necessarily imply a law-making exercise.

Situations of violence themselves should also be examined more systematically, in order to gain a better understanding of what causes violations of existing rules and of the problems that arise in applying these rules. An analysis of this sort is the only means of clearly id entifying the points at issue, and thus of obtaining a more precise picture of the needs that this process might satisfy in practice.

The 26th International Conference of the Red Cross and Red Crescent assigned the ICRC the task of preparing a report on the customary rules of international humanitarian law, with the assistance of legal experts representing various geographical regions and legal systems. The study also involves consultation with experts from governments and from international organizations. As this work is still under way, the ICRC endorses the suggestion made by the Secretary-General in paragraphs 87 and 106 of his report to consider the results of this study when the time comes to discuss the content of the proposed fundamental standards of humanity.

Mr Chairman,

The ICRC would like to congratulate Mr Louis Joinet for his outstanding report on the question of the impunity of perpetrators of human rights violations (E/CN.4/Sub.2/1997/20/Rev.1). In this document the Special Rapporteur stresses the complementarity between the different means of combating impunity, namely penal repression at the national and international levels, and extrajudicial solutions.

The ICRC wishes to emphasize that the problem of impunity arises in relation to violations committed in peacetime as well as in times of armed conflict. However, Mr Joinet's report makes only indirect reference to international humanitarian law applicable to situations of armed conflict. This body of law already provides for mechanisms for the penal repression of violations. The ICRC nevertheless feels that consideration should be given to whether and how international humanitarian law could be more widely incorporated into the overall system for combating impunity, as was done in the basic principles and guidelines relating to the right to reparation for victims of violations of human rights and international humanitarian law, drawn up by Mr Theo van Boven (E/CN.4/1997/104). The ideal forum for such a debate would be a group of experts, in which the ICRC would be happy to participate and to which it could bring its expertise.

Finally, the ICRC hopes that in the near future States will show firm political resolve to establish as soon as possible an effective international criminal court. This body, which should be complementary to national courts, should have jurisdiction to prosecute persons suspected of war crimes committed in either international or internal conflicts. The creation of such a court would unquestionably have a deterrent effect, and would at the same time issue a clear warning to the perpetrators of international crimes and a message of hope to their victims: namely, that the international community will no longer tolerate impunity.

Thank you, Mr Chairman.

Réf. LG 1998-023-ENG