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It is my great pleasure to deliver this, the fourth Neil Williamson Memorial Lecture. The occasion provides us all with an opportunity to again reflect on the life and contribution of the late Neil Williamson, a sound and highly respected jurist and a deeply committed humanitarian. Amongst the many legacies he bequeathed are his enduring examples of all that is excellent in a prosecutor and a judge. In both those roles he exemplified the principles of firmness, fairness and above all, independence. I had the privilege of first-hand experience of those qualities whilst in practice, appearing before him on numerous occasions, particularly in the court of Appeal. It is in memory of his exemplary discharge of both the roles of prosecutor and judge, that I now dedicate this lecture, entitled "The Globalisation of Criminal Justice: Will the International Criminal Court Become a Reality?"
It is indeed timely, as the modern world embarks upon its third millennium, to look back at the tremendous advances made in the last decade towards the achievement of international recognition of human rights norms through globalisation of criminal justice. Equally, it is as important now as it has ever been, for all members at all levels of the international community, to not falter in ensuring that this altruistic but achievable goal becomes a reality for future generations.
On 17 July 1998, a defining moment in strengthening the rule of law for all peoples of the world occurred. At the conclusion of a united Nations diplomatic conference in Rome, 120 countries adopted a treaty for the establishment of an International Criminal Court ("ICC"). This was a true milestone, as for most of the five decades following the 1945 and 1946 hearings of the War Crimes Tribunals in Nuremberg and Tokyo, progress in establishing a permanent international criminal court had proved frustratingly slow. The Rome Statute, however, effectively capped a century of international humanitarian law development, which had its genesis in the 1899 Peace Conference held in the Hague. Since that time, and primarily as the result of major advances in technology and global communication post World War II, the theatre of war, particularly towards the end of the twentieth century, has increasingly come under the microscope. The appalling carnage, so graphically now depicted in living rooms around the world, has highlighted the need for effective enforcement of international humanitarian standards. To that end, media coverage of the Gulf War and of armed conflict and human rights abuses in the Balkans, Rwanda, East Timor, Zimbabwe, Sierra Leone and even now Fiji, have served to shock the world.
Earlier efforts to create a permanent court to deal with crimes of mass violence were effectively scuttled by the Cold War. But the fall of the Berlin Wall and the emergence, in recent times, of democratically accountable governments in a number of hitherto diverse countries, has made the enforcement of international humanitarian law politically feasible. Two striking examples have occurred in recent times. In 1993 and 1994, the Security Council of the United Nations acted swiftly in creating two limited, ad hoc criminal tribunals for the prosecution of war criminals and perpetrators of serious human rights abuses in the Former Yugoslavia and in Rwanda. While these tribunals have operated successfully and have demonstrated the possibilities of international enforcement, they have also shown that an ad hoc approach is no substitute for a permanent international criminal court. Because of this, they might be said to have paved the way for the establishment of an independent criminal court with the power to bring to justice individuals who have violated international humanitarian law. A prerequisite to the jurisdiction of such a court is that the national criminal courts have been unable or unwilling to take action against individuals who have committed such heinous crimes.
When the 1998 Rome Conference opened in July of that year, the United Nations Secretary General, Kofi Annan, underlined the significance of the task being undertaken by the 150 State delegates, with these words. He said:[1]
I trust you will not flinch from creating a court strong and independent enough to carry out its task. It must be an instrument of justice, not expediency ...We have an opportunity to create an institution that can save lives and serve as a bulwark against evil. So let us rise to this challenge. Let us give succeeding generations this gift of hope. They will not forgive us if we fail.
The treaty adopted at the end of the six-week Rome conference, and known as the Rome Statute of the International Criminal Court, has established a court for the prosecution of individuals accused of genocide, war crimes, and crimes against humanity. This Rome Statute does not, however, yet have the force of law, and thus its vision for an international court remains dormant. Pursuant to its article 126, the ICC will take life once the Statute has been ratified by 60 nations. It will have jurisdiction only over crimes committed after the Statute comes into force. Although the Statute has received 97 signatures since its adoption on 17 July 1998, there have been only 12 ratifications to date.[2] And when one considers the cornerstone of the Statute - namely, the creation of a powerful court independent of political control - it is not difficult to see why in some sovereign states the ideal has been regarded as somewhat controversial, and progress towards ratification commensurately slow. However, the most
recent ratification by France is significant, as this is the first by a Security Council member.
I do not intend addressing any of the specific provisions of the Rome Statute in detail in this lecture as its full text is freely available on the Internet,[3] and its provisions have already been considered in depth in academic writing.[4] Readers of Law Talk, for instance, will recall the informative articles contributed by Lyn Stevens QC, in 1997 and 1998.[5]
However, it is important to understand, in general terms, how the ICC will ultimately operate, and why, if implemented, it will be much more than a mere instrument of expediency. For instance it is noteworthy that the court's originating document is a multilateral convention. Therefore, unlike the International Court of Justice which deals only with disputes between States, or the ad hoc criminal tribunals for the Former Yugoslavia and for Rwanda, the ICC will not of itself be an organ of the United Nations. It will be a permanent stand-alone court, albeit funded by both state parties and United Nations contributions.[6] It will be headquartered in the Hague, with 18 judges and will have pre-trial, trial and appellate divisions. It will have an elected independent chief prosecutor and one or more deputy prosecutors, whose appointments will be determined by a majority of the nations which ratify the Rome Statute.[7] In keeping with the operation of the ad hoc tribunals for Former Yugoslavia and Rwanda, its proceedings will be predominantly adversarial. Although there will be a panel of three trial judges rather than a jury, and a majority verdict will suffice, the rules of procedure will, in many respects, be those familiar to the New Zealand criminal justice process.[8] For example, trials will take place in the presence of the accused,[9] who will be presumed innocent until the contrary is proved, and the standard of proof will be that of beyond reasonable doubt.[10]
In keeping with the human rights emphasis of the Statute, the rights of those investigated, or accused of crimes under the Statute, are well provided for.[11] The trial chamber of the ICC must ensure that trials are fairly and expeditiously conducted, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.[12] Due process rights, and the right to legal aid, based upon the rights guaranteed in the International Covenant on Civil and Political Rights, (and as adopted in our own New Zealand Bill of Rights Act 1990), are fundamental to the Statute. The two ad hoc tribunals for Former Yugoslavia and Rwanda are already taking the challenge of providing organised and professional defence assistance seriously.[13] In its first trial, for example, the tribunal for the Former Yugoslavia assigned one of the leading defence lawyers of the Netherlands to the accused. In that case, the presiding judge, Gabrielle Kirk McDonald of the United States, said :[14]
Although this is the first trial conducted by the international Tribunal and thus has some historic dimension, the goal of the Trial Chamber was always first and foremost to provide the accused with the fair trial to which he was entitled. This, we believe, has been done.
At least initially,[15] the focus of the ICC will be on three broad offence categories. The first category is crimes of genocide.[16] The definition of genocide duplicates the Genocide Convention of 1948, and includes acts such as killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about its destruction, preventing births, and forcibly transferring children: all such crimes committed with the intent of destroying national, ethnic, racial or religious groups.
The second category constitutes crimes against humanity.[17] A crime against humanity is a specified act committed as part of a widespread or systematic attack against any civilian population. As well as various violent acts, the acts specified include persecutions, forced pregnancy, enforced sterilisation, enforced disappearance of persons, forcible transfer of population, and apartheid. An important aspect is that crimes against humanity do not need to occur as part of an armed conflict.
The third broad category of offence is war crimes.[18] One of the most significant human rights aspects is the recognition of war crimes as occurring in both international and internal armed conflict. Several of the specific war crimes in the Statute originate from the 1949 Geneva Conventions, as well as from various rules and customs established by international law. Specified offences, for example, include torture, subjecting prisoners to medical or scientific experiments, as well as various other attacks against, or abusive treatment of, civilians and hostages.[19] In particular, acts committed as part of a plan or policy or on a large scale will constitute war crimes. It is fact that most of the dreadful atrocities that have occurred to innocent people over the last decade have occurred in the context of civil rather than international war.
The Rome Statute contains two central policy provisions aimed at underpinning the potency of the ICC. First, the Statute provides that immunity pleas based on official capacity will not be a bar to the ICC's jurisdiction.[20] The ICC will thus be empowered to try all manner of accused, including heads of state, members of a government or parliament, elected representatives and government officials. Moreover, the Statute provides that an offender's official capacity shall not, of itself, be a mitigating factor in sentencing. Secondly, the Statute provides for command responsibility. A military commander, or person effectively acting as such, will be criminally responsible for crimes committed by subordinates, if that commander had actual or imputed knowledge of the crimes, and failed to take reasonable measures to prevent them.[21]
A further fundamental plank of the Statute is that the ICC is not intended to displace the jurisdiction of functioning national courts. This is known as the principle of complementarity.[22] Notwithstanding that, the Statute realistically recognises that government leaders, officials, or private individuals may be guilty of genocide, crimes against humanity, and war crimes equally, and that in times of conflict, whether internal or international, national courts may be unwilling or unable to act, usually for one of two reasons.[23] The first reason is that governments often lack the political will to prosecute their own citizens, particularly if they are high-ranking officials, as was the case in the Former Yugoslavia. The second reason is that, during civil war, national institutions may have collapsed, as in the case of Rwanda. Under the principle of complementarity, a case brought before the ICC will be inadmissible on three grounds: first, if the case is currently being investigated or prosecuted by a state with jurisdiction (unless that state is unwilling or unable genuinely to carry out the investigation or prosecution); second, if the case has already been investigated by a state with jurisdiction and a genuine decision made not to prosecute the individual concerned; third, if the individual concerned has previously been tried for the same conduct, so that a genuine double jeopardy situation arises.
I turn now to the controversial issue of the jurisdiction of the ICC. In contrast to New Zealand's stance and that of many other countries which supported the establishment of the ICC, the world's strongest economy, greatest military power, and leader in peace-keeping missions - the United States of America - voted against adopting the Rome Statute, whilst nevertheless supporting the establishment of some form of permanent international criminal court.[24] The United States was one of only seven countries at the Rome Conference which declined to adopt the treaty. The thrust of the opposition from those countries concerned the proposed jurisdictional basis of the ICC and the trigger mechanisms for it commencing investigations and prosecutions.
Despite the opposition, however, an overwhelming majority of nations at the Rome Conference did support the establishment of the ICC, as proposed; namely, that it should have an independent prosecutor and inherent jurisdiction founded in international treaty. The alternatives to inherent jurisdiction favoured by the United States and the other opponents, were for the ICC's jurisdiction to be subject to veto by the United Nations Security Council, or to require consent from an accused person's nation State.[25] The central issue in this debate was the de-politicising of the trigger mechanisms which invoke the ICC's jurisdiction. This jurisdictional issue and the debate surrounding it clearly cut to the very core of the legitimacy of an ICC and cast doubt upon its ability to function as a true instrument of international justice, if it is not independent and free from the influence of State politics.
At the end of the day, some compromises were made at Rome but the United States did not succeed in its quest for a court with jurisdiction subject to Security Council veto or dependent upon the consent of States Parties.[26]
The Statute, as adopted, provides for three separate trigger mechanisms for invoking the jurisdiction of the ICC.[27] The first mechanism is referral to the prosecutor by a State Party of a situation in which one or more crimes within the jurisdiction of the ICC appear to have been committed. The second mechanism is the referral of such a situation to the prosecutor by the Security Council. The third situation is where the prosecutor of his or her own motion initiates an investigation ex officio. In the first two situations
• that is, cases referred by either a State Party or by the Security Council
• the prosecutor may decline to undertake an investigation, if there appears to him/her "no reasonable basis" upon which to do so.[28]
It is manifest that the prosecutor's integrity and his/her independence from political influence is essential if the effectiveness and integrity of the ICC is to be ensured. When the effects of war have crippled a domestic judicial system, or the very offences alleged have compromised the ability of that judicial system to function, it is vital to the credibility of the ICC that a responsible and neutral prosecutor be able to initiate proceedings.[29] The drafters of the Statute have placed understandable emphasis on the need to ensure that the prosecutors and judges elected to serve are of the highest international calibre,[30] it being axiomatic that widespread confidence in the personnel of the ICC will be essential to the promotion of consistent, fair and impartial dispensation of international criminal justice.
A number of protections, by way of checks and balances, are contained in the Rome Statute. For instance, any decision by the prosecutor to initiate an ex officio investigation is subject to review by the ICC and requires authorisation by the pre-trial chamber.[31] In addition, there is provision for States Parties involved in proceedings, and for accused persons, to make pre-trial applications challenging sufficiency of evidence, whether alleged offences fall within the ICC's jurisdiction and whether their own domestic courts are truly unable or unwilling to act.[32] There are also in-built checks and balances which affect the scope of the ICC's operation to an appropriate extent. For example, whilst the ICC's jurisdiction is universal in respect of situations referred by the Security Council, it is not if a State Party or the independent prosecutor has sought to invoke jurisdiction. In those two situations, the ICC will only be seized of the case if the alleged offences were committed in the territory of a country that has ratified the Rome Statute or voluntarily accepted the jurisdiction of the ICC; or if the accused is a national of a ratifying country or a country which has voluntarily accepted the jurisdiction of the ICC.[33] These provisos serve to underscore the huge importance of widespread (and indeed worldwide) ratification if the ICC is to operate successfully. One final matter of note is that the Rome Statute enables the Security Council to defer proceedings for renewable 12 month periods, presumably for the purpose of permitting diplomatic resolution of conflict to take place.[34]
The Rome Statute has signalled an undoubted and significant turning of the tide. By its adoption, the international community has demonstrated its unwillingness to further allow the commission of gross violations of human rights with impunity.
I wish now to refer to important developments that have helped drive the evolution towards ending impunity and materially assisted in globally expanding the rule of law.
In the face of substantial difficulties, the ad hoc united Nations criminal tribunals set up for the Former Yugoslavia (ICTY) and Rwanda (ICTR) have proved themselves capable of bringing high-level perpetrators of appalling crimes to justice. The ICTY, formed in 1993 and based in the Hague, began work the following year. Its terms of reference are to prosecute persons responsible for serious violations of "international humanitarian law" committed on the territory of the Former Yugoslavia since 1991. Since its inception, 94 individuals have been indicted, and 39 accused are currently before the Tribunal. These include several high-ranking military officers.[35] To date, just four of the inevitably lengthy trials and appeal proceedings have been completed. Of these, perhaps the most well known is the trial of the Serb, Dusko Tadic, who was arrested in Germany and eventually convicted in 1997 of 11 counts of war crimes and crimes against humanity. On appeal a sentence of 20 years imprisonment was confirmed. In March this year the Serb Blasic was sentenced to 45 years imprisonment - the longest sentence yet imposed. The ICTY has not shrunk from targeting the most senior officials either. It has indicted and issued international arrest warrants against the President of the Federal Republic of Yugoslavia, the first president of the Bosnian Serb administration and the Commander of the Bosnian Serb army (amongst others) for an array of allegations relating to appalling and anti-human "ethnic cleansing" policies.[36] As with many aspects of international law, however, co-operation among nations has been necessary to ensure the tracing of such criminals, so that they can be brought to justice.
The other ad hoc tribunal, the ICTR, is perhaps less well known to the West. Based in Arusha, Tanzania, it was established in 1994. Its jurisdiction is confined to genocide and other serious violations of international humanitarian law committed in Rwanda and in neighbouring states, by Rwandan citizens, between 1 January 1994 and 31 December 1994. Since its inception the ICTR has issued 29 indictments against 50 individuals, and its work is ongoing.[37] Several groundbreaking cases have been heard and decided. Last month a Belgian national, Georges Ruggiu, a radio announcer, was convicted and sentenced to 12 years imprisonment for inciting genocide. The first genocide convictions by an international court were entered, resulting in sentences of life imprisonment for two offenders, one of whom was the former Prime Minister of Rwanda.[38] And for the first time sexual violence has itself been held to be a crime against humanity, and the rules relating to the admissibility of evidence in sexual violence adapted.[39] The following pronouncement of the Tribunal, by its presiding judge, Justice Navanethem Pillay, is illustrative. She said:
The Tribunal considers that rape is a form of aggression and that the central elements of the crimes of rape cannot be captured in a mechanical description of objects and body parts. The Tribunal also notes the cultural sensitivities involved in public discussion of intimate matters and recalls the painful reluctance and inability of witnesses to disclose graphic and anatomical evidence of sexual violence they endured. The United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment does not catalogue specific acts in its definition of torture, focusing rather on the conceptual framework of state-sanctioned violence. The Tribunal finds this approach more useful in the context of international law. Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
In like vein, the ICTY has consciously adapted rules relating to the admission of evidence in sexual violence cases to take into account the organised and systematic rape of women, particularly in detention facilities, during the Former Yugoslavia conflict. The Tribunal has adopted a policy of precluding evidence of consent when certain oppressive or coercive conditions were present. Therefore, consent cannot be a defence when the victim has been subjected to violence, duress, detention or psychological oppression.[40] In relation to victims and witnesses, the ICTY has also developed a broad range of evidentiary protections, starting with voice and facial distortions, pseudonyms, closed sessions, and anonymous evidence. Such protections have commonly been requested.[41]
Thus the progress made by the two ad hoc tribunals, although not without many difficulties and challenges,[42] is manifest and cannot be underestimated. One commentator has noted:[43]
Firstly and fundamentally, the ad hoc tribunals have proved that prosecution and punishment of crimes against humanity is practically and politically possible .... Secondly, and no less importantly, the ad hoc tribunals can be regarded as 'prototypes' for the International Criminal Court. They have met and resolved many problematic legal issues which relate directly to the International Criminal Court: some of the International Criminal Court's potential teething problems have been successfully bypassed, and further legal issues can be both anticipated and prevented .... Thirdly, not only the successes but also the shortcomings of the statutes and rules of procedure of the ad hoc tribunals have an important part to play: the International Criminal Court has the invaluable opportunity of learning from these mistakes.
It is likely that the practical experience of the ad hoc tribunals will continue to pave the way towards eventually establishing an efficient and effective permanent ICC.
The highly controversial and very public arrest of former Chilean dictator General Pinochet also reflects a growing awareness that the international community has an obligation to ensure that fundamental human rights are observed. The former President was arrested, pursuant to a Spanish warrant, whilst visiting the United Kingdom for medical treatment. The House of Lords determined that the former head of state did not enjoy immunity from charges alleging torture or conspiracy to commit torture, committed after 8 December 1998, the date when the UK ratified the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984).[44] That being so, the physically ailing general was liable to extradition to Spain to stand trial for at least some of the human rights abuses allegedly committed during his 17-year rule. As you are aware, however, in March this year the British Home Secretary controversially declined to proceed with General Pinochet's extradition on account of his medical condition, thus permitting his return to Chile. Subsequently, however, the Court of Appeal in Santiago has this week stripped the General of the immunity that has protected him from facing trial in the courts of Chile. Notwithstanding the controversial nature of the Law Lords' decision, it should be welcomed for its historic recognition that even the most powerful cannot with impunity commit acts which constitute international crimes. Thus, whilst the proceedings surrounding General Pinochet's arrest and possible trial would have been undoubtedly drawn out, politically sensitive and legally difficult (given the novelty of the issues in international law), it must be acknowledged that progress has been made, not the least of which is the raising of world-wide consciousness of the issues.[45]
It is not unreasonable to suppose that many of the difficulties stemming from one State endeavouring to bring an accused from another State to trial, particularly when the accused's own State has authorised the alleged crimes, would be reduced if there exists an established independent, impartial and respected ICC.
I now turn to the title of this lecture and address the impediments which are seen to exist and which need to be overcome, if the global dream is to be fulfilled. It will only be if those impediments can be substantially overcome or worked around, that the question of whether the ICC will become a reality, will be answered in the affirmative.
The major sticking point in establishing the ICC has been the United States' lack of support for the Rome Statute. Essentially, the United States' concern is, that as the world's foremost participant in peacekeeping and other military operations abroad, its citizens might be unjustly singled out for attention by the ICC's prosecutor.[46] This is because the Rome Statute confers jurisdiction over crimes committed by individuals of any nationality (whether a signatory of the Statute or not), provided the offences were committed in a country which has ratified the Statute.
The United States' position was rejected by all its major allies and also, except for China, by the other permanent members of the United Nations Security Council. Ironically, the United States was a promoter of the Nuremberg and Tokyo Trials following World War II, as well as of the ad hoc tribunals for Former Yugoslavia and Rwanda. This makes its refusal to adopt the Rome Statute seem somewhat at odds with the Statute's principal purpose - to deter the commission of serious international crimes in the future. There are checks and balances already contained in the Statute and it is difficult to see how an international criminal court could truly be an effective instrument of justice if its jurisdiction were to be subject to Security Council control, or were to require the consent of an accused's nation State, as insisted upon by the Americans. These are the very restrictions which would dilute the power of the ICC and render it a mere instrument of political expediency. Moreover, it is equally difficult to regard the United States' position as involving little more than a double standard. Its stance essentially is that if its own soldiers and officials are not guaranteed some form of immunity from the ICC's reach then it is opposed to the ICC. Unfortunately, it is likely that the United States' lack of support for the ICC may contribute to delays in ratification of the Rome Statute by those nations closely aligned with American interests. It may also render the issue of the
United States' vital financial contributions to the United Nations more sensitive and there can be little doubt that an effective permanent ICC will be expensive to maintain. There is the additional issue of the valuable intelligence assistance the United States is able to provide, if so inclined.
On a more optimistic note, it appears that whilst the United States does not support the concept of such an independent court, it nevertheless has the will to find a way around its problems with the ICC. Interestingly, only last month (on 6 May 2000), the United States Secretary of State, Madeleine Albright, made the following announcement, variously headlined "US Offers a 'Procedural Fix' to Link with War-Crimes Court" and "US now willing to co-operate with International Criminal Court". The tenor of the announcement is that the United States now proposes a "procedural fix" which will allow it to co-operate with the ICC, once established. That "procedural fix" will enable the United States, at a minimum, to be a "good neighbour" to the ICC - and the benefits of this shift in policy for the ICC are significant. Essentially the "fix" would allow Washington to assist the ICC with intelligence assets and resources, just as it has done for the tribunals for the Former Yugoslavia and Rwanda, but without being a party to the Rome Statute, which the United States has no intention of signing in the "foreseeable future". The announcement makes it clear that Washington is not seeking to amend the Statute itself, but proposes "that no national of a non-party state, acting in an official capacity, can physically be surrendered to the courtroom of the International Criminal Court without the consent of that non-party state - or unless the Security Council has otherwise determined that the national be exposed to the jurisdiction of the Court".
Leaving the issue of the United States' opposition aside, the other major obstacles to any international court's worth are pragmatic in nature. The enforceability of international law invariably depends upon co-operation between states. In the case of international courts, active assistance from the international community is fundamental to the court's utility. The Rome Statute places specific obligations upon states to co-operate with the ICC, failing which United Nations sanctions may be imposed.[47] However, as with the ad hoc tribunals, the ICC will have no police force of its own, and will rely on domestic forces to arrest suspects — forces which will not necessarily want to comply. The same problem arises in relation to enforcement of sentences and orders of the ICC. Similarly, in any trial, whether acting for prosecution or defence, witnesses are required. Even if they have survived the conflict, witnesses may be displaced and difficult to locate, and not necessarily willing to attend or undergo cross-examination. Naturally, providing adequate resources for the ICC will be essential to its effective operation. It is vital that all states with an interest in promoting human rights make a firm commitment to co-operation, active assistance, and funding for the ICC, in order to avoid a mockery of international criminal justice.[48] But these pragmatic obstacles are not fundamental impediments which cannot be overcome and they will not prevent the ICC taking life. They are matters that will have to be dealt with on a case by case basis, as and when they arise.
I turn now to the ratification issue. If the ICC is indeed to become a reality in the new millennium, and potentially the greatest advance in the rule of law since the adoption of the United Nations Charter, it is clear that progress in ratifying the Rome Statute must continue to be made - and rapidly.
Although there has been some pessimism expressed about the possible time lapse before the ICC will begin sitting, there is good reason to believe that the ratification process is gaining impetus. Advice to hand is that many of the signatory states do, in fact, have ratification processes intrain. The initial stumbling block for most has been the complicated nature of the Rome Statute itself; for instance, in some countries it has taken a while even to get official translations done and some countries need to amend their constitutions in order to accommodate the Statute. Therefore, ratification is not simply a pro-forma exercise for many countries. However, there is a good chance that the halfway mark will be reached numerically by the end of this year and that the ratification process will gather speed. Ongoing and real pressure to complete ratification is being applied on a continuous basis by very active non-government organisations with specific interest in the establishment of the ICC. Furthermore, the Secretary General of the United Nations, Kofi Annan, has himself called on States that have not done so, to sign and ratify the Statute at the upcoming Millennium Summit of the General Assembly of the United Nations in September this year.
A United Nations Preparatory Commission for the ICC works steadily on various procedural and evidential matters with a deadline of 30 June this year. The Commission will then move on to deal with other issues, for example, defining the crime of aggression. New Zealand is taking part in this process, and on 27 March of this year announced its decision to proceed with its ratification of the Rome Statute. On that date New Zealand's representative to the United Nations advised the Commission that the Statute had been presented to the New Zealand Parliament and referred to a select committee. Since that announcement, implementing legislation has been introduced to Parliament. This legislation will create new offences of genocide, crimes against humanity and war crimes in New Zealand law. It will also implement various obligations imposed on our State by the Rome Statute: for example, it provides for the ICC to sit and to carry out its investigations here in New Zealand.[49]
In conclusion, the need for a permanent ICC at the start of the 21st century remains as compelling as it was when the United Nations first mooted the concept more than five decades ago.[50] During those decades numerous instances of genocide, crimes against humanity, and war crimes have gone unpunished. One need only mention a few of the countries concerned, such as Cambodia, Argentina, Mozambique, and El Salvador to realise that millions of innocent people have been victims of the most tragic
and brutal consequences imaginable. Recent events in East Timor, Sierra Leone, and Zimbabwe make it plain that the rule of law is unlikely to be respected to any greater degree in this century, unless the global community takes action. I therefore suggest that the need for an established and permanent ICC cannot be rationally argued against.
As to whether the truly independent ICC envisaged by the Rome Statute will become a reality, I believe that it will. The almost universal acceptance of the Rome Statute is a tremendous advance. And despite the numerous practical and political obstacles which yet face the establishment of this potentially independent court, the Preamble to the Statute makes plain the goal towards which all responsible nations must continue to strive. The preamble states that:
The States Parties to this Statute are,
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, Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, Recognising_that such grave crimes threaten the peace, security and well-being of the world,
Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,
Resolved to guarantee lasting respect for and the enforcement of international justice.
In my view the sooner this historic institution is operative the better. Undoubtedly the ICC will have to function in difficult circumstances and against considerable odds. But the Rome Statute will at least provide future generations of judges, prosecutors and defence counsel with a framework for promoting global criminal justice. And even if only a few of the perpetrators of genocide, crimes against humanity, or war crimes are held to account, their examples may serve to deter others similarly minded, and that in itself will be a resounding victory for all humanity.
[*] The Neil Williamson Memorial Lecture, delivered by the Hon Justice Lowell Goddard at Christchurch in June 2000
[1] United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court: Rome, Italy (15 June-17 July 1998).
[2] Senegal (2/2/99), Trinidad & Tobago (6/4/99), San Marino (13/5/99), Italy (26/7/99), Fiji (29/11/99), Ghana (20/12/99), Norway (16/2/00), Belize (5/4/00), Tajikistan (5/5/00),
Iceland (25/5/00), Venezuela (7/6/00), France (9/6/00).
[3] <http://www.-un.org/law/icc/index.htm>
[4] See, for example: Sarooshi, "The Statute of the International Criminal Court" (1999) 48 ICLQ 387; "International Criminal Court. Special Issue" (1999) 10(l) Criminal Law Forum; McGoldrick, "The Permanent International Criminal Court: An end to the Culture of Impunity?" [1999] Crim L R 627.
[5] L Stevens QC, "The (compelling) case for the establishment of an International Criminal Court" (1997) 471 Law Talk 13; L Stevens QC, "The dawning of the International
Criminal Court" (1998) 507 Law Talk 21.
[6] Rome Statute of the International Criminal Court, Art 115.
[7] Ibid, Part 4: Composition and Administration of the Court.
[8] The Statute does, however, in Art 81 provide for a prosecution appeal against a decision to acquit, on either legal or factual grounds, which is rare in common law systems.
[9] Op cit n 6, Art 62.
[10] Op cit n 6, Art 66.
[11] Op cit n 6, Art 55, 67.
[12] Op cit n 6, Art 64(2).
[13] See Elise Groulx-Diggs, "Organising the Defence in International Criminal Law", Discussion Paper, International Criminal Defence Attorneys Association (9 June 1997), located at <http://www.hri.ca/partners/aiad-icdaa>
[14] Ibid.
[15] The crime of aggression is referred to in Art 5 as a crime within the jurisdiction of the ICC. However, a definition was not reached during the Rome conference, and the ICC will only have jurisdiction once agreement has been reached and a definition included by amendment to the Statute. This is expected to occur at a review conference to take place 7 years after the Rome Statute comes into force, by virtue of Article 123.
[16] Op cit n 6, Art 6.
[17] Op cit n 6, Art 7.
[18] Op cit n 6, Art 8.
[19] An unfortunate exception to the ambit of Art 8 is contained in Art 124. This allows state parties to not accept jurisdiction, for a period of 7 years, for war crimes when allegedly committed by its nationals or on its territory.
[20] Op cit n 6, Art 27.
[21] Op cit n 6, Art 28.
[22] op cit n 6, Art 17.
[23] Establishment of an International Criminal Court - overview: <http://www.un.org/law/ icc/index.htm>
[24] See Scharf "Results of the Rome Conference for an International Criminal Court", American Society of International Law Insight (August 1998), located at <http://www.asil.org/ insigh23.htm>
[25] "Exercise of International Criminal Court Jurisdiction - The Case for Universal Jurisdiction: 5/98", International Criminal Court Briefing Series (May 1998) Vol 1, No 8.
[26] "The justification for the American position was that, as the world's greatest military and economic power, more than any other country the United States is expected to intervene to halt humanitarian catastrophes around the world. The United States' unique position renders US personnel uniquely vulnerable to the potential jurisdiction of an international criminal court. In sum, the Administration feared that an independent International Criminal Court Prosecutor might single out U.S military personnel and officials", Scharf, op cit n 24, at 2.
[27] Op cit n 6, Art 13.
[28] Op cit n 6, Art 53.
[29] See generally, "The Accountability of an Ex Officio Prosecutor", International Criminal
Court Briefing Series (Feb 1998), Vol 1, No 6.
[30] Op cit n 6, Art 36, 42.
[31] Op cit n 6, Art 15(2).
[32] Op cit n 6, Art 19(2) & 61(6).
[33] Op cit n 6, Art 12.
[34] Op cit n 6, Art 16. This requires a Security Council resolution comprising 9 votes of the total 10 members, including the votes of all 5 permanent Security Council members.
[35] ICTY Key Figures (26 April 2000), from ICTY official website <http://www.un.org/ icty.htm>
[36 ] Slobodan Milosevic, Radovan Karadzic, and Ratko Mladic.
[37] ICTR Fact Sheet No 1, official website of the ICTR <http://ictr.org>
[38] Former Rwandan Prime Minister Jean Kambanda pleaded guilty to crimes of genocide, and was sentenced to life imprisonment. The full text of the judgment The Prosecutor v JeanKambanda ICTR-97-23-S, 4 September 1998, is available online at <http://www.un.org/ictr/english/judgments/kambanda.htm1> [39] The Prosecutor v Jean-Paul Akayesu ICTR-96-4-T, 2 September 1998, available at <http://www.un.org/ictr/english/judgments/Akayesu.html>
[40] United Nations Press Release L/2949 (20 March 2000), recording statements by Richard May, former judge of International Criminal Tribunal for Former Yugoslavia.
[41] Ibid.
[42] For a discussion of enforcement difficulties in the ad hoc tribunals, see Penrose "Lest We Fail: The Importance of Enforcement in International Criminal Law" (1999) 15 Am U
Int L Rev 321.
[43] Moeller, "The Significance of the ad hoc tribunals for the establishment of a permanent International Criminal Court" Human Rights Worldwide, magazine of International Society for Human Rights (November 1999), available at <http://www.ishr.org/hrww/lnov99/ hrwwl.htm>
[44] R v Bow Street Magistrate, ex parte Pinochet (No 3) [1999] UKHL 17; [1999] 2 WLR 827.
[45] For a critical review, see Fox "The Pinochet Case No 3" (1999) 48 ICLQ 687.
[46] Rodriguez, "Slaying the Monster: Why the United States should not support the Rome Treaty" (1999) 14 Am U Int L Rev 805.
[47] Op cit n 6, Art 86, 87.
[48] For a discussion of these aspects in relation to the ad hoc tribunals and the ICC see, "International Support for International Criminal Tribunals and an International Criminal Court" (1998) 13 Am U Int L Rev 1413.
[49] United Nations Press Release L/2950 (27 March 2000).
[50] In resolution 260 of 9 December 1948, the General Assembly invited the International Law Commission "to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide..."
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