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Establishment of an international criminal court

22-10-1998 Statement

United Nations, General Assembly, 53rd session. Statement by the International Committee of the Red Cross (ICRC), New York, 22 October 1998

Mr Chairman,

The adoption of the Statute of the International Criminal Court this summer was the culmination of years of effort. By adopting this treaty the great majority of States clearly demonstrated their resolve to put an end to the impunity enjoyed by the perpetrators of the most heinous crimes, and hence to deter the commission of further violations. Thanks are due to all those who tirelessly worked towards this goal, regarded by many as Utopian. The International Committee of the Red Cross (ICRC) for its part trusts that in its capacity as promoter and guardian of international humanitarian law it made some contribution to this achievement.

The establishment of the Court has at last provided international humanitarian law with an instrument that will remedy the shortcomings of the current system of repression, which is inadequate and all too often ignored. Indeed, the obligation to prosecute war criminals already exists, but frequently remains a dead letter. It is therefore to be hoped that this new institution, which is intended to be complementary to national criminal jurisdictions, will encourage States to adopt the legislation necessary to implement international humanitarian law and to bring violators before their own courts.

Mr Chairman,

On the whole, the ICRC is satisfied with the Statute adopted in Rome. Even though not all serious violations of international humanitarian law are included in the definition of war crimes, a large number of them are covered. A particularly welcome feature is that the Court can try crimes committed during non-international armed conflicts, which is a key factor in combating impunity. Rap e, torture, wilful killing, hostage-taking and attacks against the civilian population, to mention but a few examples, are war crimes in internal armed conflicts as well as in wars between States. Now the inherent illegality of such acts and the need to repress them has been recognized regardless of the nature of the conflict during which they are committed.

The Statute also identifies more precisely certain acts which amount to war crimes and which, on account of their gravity, come within the jurisdiction of the Court. Examples of these are rape, sexual slavery, enforced prostitution, pregnancy and sterilization, and using children under the age of fifteen years to participate actively in hostilities.

It is nevertheless regrettable that, because of difficulty in reaching a consensus, the provisions relating to the use of certain weapons were reduced to a minimum and were not included with respect to non-international armed conflicts. It is to be hoped that acts such as the use of weapons of mass destruction, anti-personnel mines and blinding weapons will be added to the list of war crimes at a future Review Conference.

Our greatest disappointment, Mr. Chairman, arises from Article 124, which creates a distinction between war crimes and other crimes. Under this article a State, on becoming party to the Statute, may declare that it does not accept the Court's jurisdiction for a period of seven years when war crimes are alleged to have been committed by its nationals or on its territory. The fact that war crimes are subject to a different regime gives the impression that they are not as serious as other crimes within the jurisdiction of the Court. Yet international law already places States under an obligation to prosecute war criminals irrespective of their nationality or of the place where the crime is committed. Therefore, the ICRC urges States not to make such a declaration and trusts that eventually this provision wi ll be deleted.

Mr Chairman,

The first step has been taken towards a permanent and effective international system of justice, but much remains to be done before the Court is actually set up and becomes fully operational. Above all, a large number of States must ratify the new treaty before the Court can function efficiently, especially since it can exercise its jurisdiction only if the State of which a suspect is a national or the State on whose territory an act or omission is committed is a party to the Statute, or declares that it accepts the jurisdiction of the Court with respect to the crime in question.

The ICRC undertakes to actively promote ratification - in particular to secure as rapidly as possible the 60 ratifications necessary for the Statute to enter into force - and also to contribute to the formulation of the elements of war crimes. Furthermore, as the Statute specifies that the Court has jurisdiction only when the repression of war crimes is not carried out at the national level, the ICRC, through its Advisory Service, intends to pursue its efforts to assist States in adopting national legislation for the prosecution of war criminals.

Mr. Chairman,

It is now the responsibility of the entire community of States to make sure that this decisive turning point for international justice results in the prosecution of those who commit the most serious crimes. The ICRC, together with the International Federation of Red Cross and Red Crescent Societies, earnestly hopes that a very large number of States will ratify the Statute in the near future, thus recognizing the need to ensure that the victims of atrocities are not forgotten, that those who commit such acts do not go unpunished, and that the tide of human suffering at last begins to recede.

Thank you, Mr Chairman.

Ref. LG 1998-078-ENG