29 OCTOBER 2018
GENERAL ASSEMBLY PLENARY
SEVENTY-THIRD SESSION, 27TH & 28TH MEETINGS (AM & PM)
Philippines Announces Withdrawal Effective Mid‑March, as Speakers Debate Court’s Jurisdiction Over Displaced Rohingya Population of Myanmar
While it is extremely easy to violate human rights anywhere, justice systems in too many places remain unable to adequately deal with these crimes, the President of the International Criminal Court told the General Assembly today, calling for the requisite support for the institution to deliver on its mandate of prosecuting the world’s worst atrocities.
“Justice must not suffer the fate of the neglected orphan,” said Chile Eboe‑Osuji as he introduced the Court’s annual report. The document — which the Assembly would later in the meeting welcome through its adoption of a draft resolution (document A/73/L.8) without a vote — summarizes the institution’s activities, accomplishments and challenges from the past year.
Today, as millions of people around the world continue to endure war and violence, the Court is needed in ways that would have been unforeseeable to its creators. “This must trouble us,” he said. “We need a strong international structure of justice to attend to the matter of justice.”
With this year marking the twentieth anniversary of the adoption of the Rome Statute, States parties are compelled to examine what the Statute means for the world and for humankind, he said. While military interventions have successfully stopped atrocities, they were far too late for thousands of Bosnians and millions of Rwandans in the 1990s. The judicial system’s serious failing is what has made impunity possible. The paralysis in courts is partly due to a lack of resources and even more so to a lack of political will by authorities to hold perpetrators to account.
Furthermore, any fear that the Court is a usurper of national sovereignty implicates the reluctance of States that do not wish to ratify the Rome Statute. “Quite the contrary,” he emphasized, underscoring that the Court is a measure of last resort, which only steps in for purposes of accountability when serious atrocities have been committed. The Court remains valuable not as a usurper of sovereignty but as a mirror of conscience.
Kornelios Korneliou (Cyprus), Assembly Vice-President, said that the Court is an indispensable part of the overall judicial architecture. “For many around the world, the very existence of the Court is indicative of humanity’s will to protect people,” he emphasized, adding that the Court must be recognized as much more than an instrument of prosecution. The Court is a deterrent and a tool to prevent international crimes. If the international community has learned anything from wars of the past, it is that peace depends on multilateralism.
In the ensuing discussion, several Member States underscored the Court’s important work, calling for strengthened partnerships and appropriate resources so that the institution could fulfil its mandate.
Spain’s delegate said the Court continues to face several challenges that make it difficult to provide justice for serious international crimes, noting that some Member States refuse to collaborate, even in cases where the Court acts at the request of the Security Council. Furthermore, and despite its growing workload, the Court’s budget remains insufficient, he warned, calling for adequate resources for prosecutors, defence lawyers and the Public Counsel for Victims.
Brazil’s delegate said that any misperception of bias of selectivity regarding the Court’s activities would be dispelled by advancing the universality of the Rome Statute. Like all socially constructed systems, international law does not sustain itself, he added, urging proper funding for Council referrals to the Court. “The current situation is neither fair nor sustainable,” he added.
Echoing that concern, Switzerland’s representative said that the international community must reaffirm that it stands firmly behind international criminal justice and the Court’s role as the independent centrepiece. With nine preliminary examinations and 11 investigations on situations worldwide and numerous judgments on merits and reparations to victims, the Court has had a busy and successful year. This positive track record is clouded, however, by 15 arrest warrants and requests for surrender that remain unexecuted to date, weakening its deterring effect and ultimately the protection of the most vulnerable — victims of war.
Moreover, nationalism is on the rise and the international fight against impunity is often misrepresented as an obstacle to peace rather than one of its building blocks, he warned, adding that the fact that one State has withdrawn from the Rome Statute and another is poised to do so mirrors this regrettable development.
The representative of the Philippines said that her country’s withdrawal from the Court will take effect on 17 March 2019. The decision to withdraw is the Philippines’ principled stand against those who politicize human rights, he said, reaffirming her country’s commitment to fight impunity.
Several speakers welcomed the culmination last year of a decades‑long process to give the Court jurisdiction to prosecute crimes of aggression. Austria’s representative, among others, regretted that this development was omitted from the General Assembly resolution.
Some speakers also supported the Court’s ruling that it has jurisdiction concerning the forced displacement of the Rohingya population of Myanmar to Bangladesh, with the representative of Liechtenstein saying this offers a “clear path to justice” and the speaker for Bangladesh pledging his Government’s continued cooperation with the Court on the matter.
The representative for Myanmar, however, called the decision the result of “faulty procedure and dubious legal merit” and said his Government is under no obligation to respect it. “Nowhere in the Court’s Charter does it say that the Court has jurisdiction over States which have not accepted that jurisdiction,” he said, strongly deploring attempts by Member States to refer Myanmar to the Court.
China’s representative added that the Court’s decision was based on an inappropriate interpretation that might also make the institution’s future work more contentious, undermining further its authority and credibility. The Security Council has the exclusive power to determine acts of aggression, he emphasized.
Sudan’s representative said: “This Court contravenes with the principles of international law,” adding that the Court is not a part of the United Nations, despite efforts by some States to portray the situation otherwise. Ending impunity is a responsibility that falls under the purview of national entities as enshrined in domestic legal systems. It should also be seen as an institutional failure that over 50 per cent of the global population belongs to countries that do not recognize the Rome Statute, he stressed.
Also speaking today were the representatives of Mexico, Denmark (also on behalf of Finland, Iceland, Norway and Sweden), Japan, Slovenia, Slovakia, Canada, Italy, New Zealand, Libya, Poland, Peru, Netherlands, Cuba, Australia, Guatemala, Switzerland, Chile, Costa Rica, Estonia, Cyprus, Ukraine, Ecuador, Greece, Ireland, Uruguay, Paraguay, Georgia, Romania, El Salvador, Argentina, Trinidad and Tobago, Republic of Korea, Senegal, Equatorial Guinea, United States, Syria, Russian Federation, Israel and Venezuela. A statement was also made by the representative of the European Union delegation.
The General Assembly will meet again at 10 a.m. on Wednesday, 31 October, to discuss the economic, commercial and financial embargo imposed by the United States of America against Cuba.
KORNELIOS KORNELIOU (Cyprus), Vice President of the General Assembly, noted that this year’s debate on the report of the International Criminal Court coincides with the twentieth anniversary of the Rome Statute and presents a good opportunity to assess its progress. The Statute “expressed to the people of the world that we will stand with the victims, that we will fight impunity, that we will respond to acts of genocide and crimes against humanity,” he said. While the primary duty to exercise criminal justice remains with States, the Court is an indispensable part of the overall judicial architecture.
“For many around the world, the very existence of the Court is indicative of humanity’s will to protect people,” he said, adding that the Court must be recognized as much more than an instrument of prosecution. The Court is a deterrent and a tool for the prevention of international crimes and helps maintain stable societies. He said that if the international community has learned anything from wars and atrocities of the past, it is that peace and prosperity depend on multilateralism and institutions. To protect vulnerable populations, the international community must support institutions like the Court.
Introduction of Report by President of International Criminal Court
CHILE EBOE-OSUJI, President of the International Criminal Court, introducing the Secretary-General’s note containing the Court’s annual report (document A/73/334), said this year is the twentieth anniversary of the adoption of the Rome Statute. The celebration of this occasion compels all to stop and look at what the Statute means for the world and for humankind. The theme of its anniversary, “Back to basics”, reengages why the Statute was adopted. It recalls the atrocities of the twentieth century, during which millions of children, women and men became victims to unimaginable crimes.
The International Criminal Court is now needed in ways that would have been unforeseeable to its creators, he said, adding that millions of people around the world continue to endure war and violence. “This must trouble us,” he added. The mere existence of this Court serves as an obstacle to those wishing to commit crimes against humanity. “We must remain troubled by the unrelenting frequency of conflicts around the world,” he continued. Men’s names are often engraved in the plaque of history, however, the same is not true for women. “Eleanor Roosevelt was a great champion of the history of civilization no less than any man,” he stressed.
The International Criminal Court was established as a Court of last resort, with a mandate to try those who commit atrocities that shock the conscience of humanity, he said. “We can be even more specific in recalling the history of evil leading up to 1998,” he added, recalling the crimes against humanity committed in Srebrenica in the Bosnia war and the genocide in Rwanda. He also added that millions of Jews were killed in Europe during the Second World War. “We must give due credit to the joint action of nations that adopted the Rome Statute,” he continued.
History shows that crimes over which the Court has jurisdiction are events that disturb international peace and security, he continued. No nation could truly isolate itself from atrocities and war. The Court stands for rule of law among nations and for holding to account perpetrators of mass atrocities. It is a grave mistake to dismantle existing structures of human rights and rule of law on the basis that military might can do more to address violations. Military intervention, even when it is successful in stopping aggressions and atrocities, has its limits. Military intervention for thousands of Bosnians, and millions of Rwandans and European Jews, came too late.
“We need a strong international structure of justice to attend to the matter of justice,” he stressed. Any fear that the Court is a usurper of national sovereignty implicates the reluctance of States that do not wish to ratify the Rome Statute. “Quite the contrary,” he emphasized, underscoring the doctrine of complementarity. The International Criminal Court is a court of last resort, which only steps in for purposes of accountability when serious atrocities have been committed. Under the Rome Statute, the primary jurisdiction belongs to the State, he said, adding also: “Justice must not suffer the fate of the neglected orphan.”
While it is extremely easy to violate human rights anywhere in the world, justice systems are not always equipped to deal with such crimes, he continued. It is the serious failing of the judicial system that has made impunity possible. Courts’ paralysis could be partly attributed to lack of resources and even more so to a lack of political will demonstrated by authorities to bring perpetrators to justice. The Court remains valuable not as a usurper of sovereignty but as a mirror of conscience.
He said the bulk of his remarks addressed core issues of the Court’s mandates, adding also that the report presented today merely skims the surface of the institution’s activities. The Court is increasingly engaged in the reparations stage and addressing the status of the Trust Fund for Victims. Cooperation of States, the United Nations and other organizations is essential to enable the Court to deliver on its mandate. All that is necessary for evil to prevail is for good men and women to refrain from doing all that is necessary to prevent evil.
Introduction of Draft Resolution
JUAN SANDOVAL MENDIOLEA (Mexico), introducing the draft resolution on “Report of the International Criminal Court” (document A/73/L.8), said the debate comes after 20 years of efforts to strengthen the rule of law. Mexico is an active participant in the Court’s activities and its Ministry for Foreign Affairs has organized trainings for judges to disseminate the obligations stemming from the Stature throughout the country. Over the past year, the Court has made significant judicial progress, he said, pointing to ongoing discussions on the interpretation of the Court’s obligations and jurisdiction.
He welcomed proposals aimed at strengthening the international criminal justice system. The holding of a meeting to promote engagement between the Security Council and the Court is a positive development, he said, calling on permanent Council members not to exercise their right of veto when serious crimes are committed. Engagement between the Court and other United Nations entities can enhance the capacity of all institutions to comply with their mandate. Despite ongoing progress, he said the world faces an “erosion of multilateralism” and of the rules‑based international order. Strengthening international criminal law and the establishment of a permanent International Criminal Court has been a “tragic and difficult” endeavour. He said his Government has the honour of presenting the draft and called for its adoption without a vote. “Today the General Assembly is once again acknowledging the role of the International Criminal Court as part of a system that seeks to end impunity,” he concluded.
IB PETERSEN (Denmark), also speaking on behalf of Finland, Iceland, Norway and Sweden, said the Court is an essential institution for the advancement of post‑conflict peacebuilding and reconciliation. “The Court is a fundamental part of a rules‑based international order and the centrepiece for accountability for the most serious crimes,” he said. Noting the relevance of multi‑stakeholder engagement with the Court, he voiced concern about the high number of outstanding warrants and urged all States to cooperate with the Court. The Nordic countries support universal membership for the Court and call on States with concerns regarding the Court to seek solutions within the framework of the Rome Statute.
Welcoming high‑level consultations between the principals of the Court and senior United Nations officials, he said dialogue sets the course for stronger field‑level cooperation. He called for increased cooperation between the Court and the Security Council and noted with concern that the Council had failed to refer the situations in Syria and Myanmar to the Court. “The full realization of the rights of victims is an important aspect of the continuing success and relevance of the Court,” he noted, commending the work done by its Trust Fund for Victims. “It is our common responsibility to ensure that the Court has sufficient resources to carry out its important mandate,” he stressed.
ERIC CHABOUREAU, European Union, said that the Court’s workload remains heavy, with 11 situations under investigation by the Prosecutor, nine ongoing preliminary examinations and three ongoing trials. During the reporting period, the Court also carried out a significant number of missions to several countries worldwide in the framework of their investigations. He noted that there have been important judicial developments in fulfilling the Court’s mandate, particularly the opening of two new preliminary examinations of the situations in the Philippines and Venezuela, the issuing of two new arrest warrants and several important decisions on reparations to victims.
He highlighted that complementarity is one of the core principles of the Rome Statute set out in article 1. Primary responsibility for bringing offenders to justice lies with States themselves. For the justice system to be operational, all States parties must adopt effective national legislation to implement the Rome Statute. The European Union remains committed to support initiatives that are aimed at encouraging States to cooperate in the fight against impunity for atrocity crimes. For this, the European Union has various assistance instruments and projects at its disposal, including programmes aimed at improving the legal and judicial capacities of countries.
KORO BESSHO (Japan) said that besides being the Court’s largest financial contributor, his country is also dedicated to supporting the institution’s human resources, including its judges. He emphasized the importance of promoting rule of law through enhancing the Court’s universality, expressing concern that a third of Member States have yet to ratify the Rome Statute. Some States have even chosen to withdraw from the Statute. Japan continues to advocate the value of the Court, while urging engaging with non‑States parties on the importance of the Rome Statute. The Court’s role is to complement national criminal jurisdictions. Its existence does not change the importance of national jurisdiction in the prosecution of serious crimes. Capacity‑building in each State carries significant weight not only to facilitate the work of the Court but also to ensure justice and the rule of law.
OMER DAHAB FADL MOHAMED (Sudan) stressed that his country is not a party to the Court’s Statute. “This Court contravenes with the principles of international law,” he said, adding that the Court is not a part of the United Nations, despite efforts by some States to portray the situation otherwise. Ending impunity is a noble goal and that responsibility falls under the purview of national entities as enshrined in domestic legal systems. “Attempts to manipulate international justice to pursue narrow political goals is inconsistent with the principles of the United Nations Charter,” he said, stressing that Sudan is honoured to flag the Court’s failures. It is an institutional failure of the Court — whose jurisdiction covers individuals — that over 50 per cent of the global population belongs to countries that do not recognize its Statute.
No organic structure links the United Nations and the Court, he said. Sudan continues to express its firm rejection of the intentions of the draft resolution on the matter. The United Nations mandate is clear and any attempt to step outside those bounds to serve the purposes of the Court will derail the Organization from achieving its objectives. “The United Nations must remain impartial and not cooperate with the Court,” he said, noting growing criticism of the Court’s work. He called on all Member States to “resort to reason” and reconsider the Rome Statute. The Court and its “heinous practices” are far from the principle of equality upon which international justice rests.
LIU YANG (China) regretted that some of the Court’s judicial practices have given rise to concerns that led to some countries withdrawing from the Rome Statute or to request the General Assembly to seek an advisory opinion from the International Court of Justice. “These phenomena warrant serious reflection,” he said. The International Criminal Court’s ruling that it has jurisdiction over the situation in Myanmar, and the opening of a preliminary investigation by its prosecutor, is based on an inappropriate interpretation of the applicable legal concepts. Not only is that not conducive to resolving the relevant situation, but it might also make the International Criminal Court’s work in the future more contentious, undermining further its authority and credibility. Emphasizing that the Security Council has the exclusive power to determine acts of aggression, he said the Court’s jurisdiction over the crime of aggression must fall within that basic legal framework. The International Criminal Court should strictly abide by the amendments on the crime of aggression and the decisions of the Assembly of States Parties, thus excluding crimes committed by nationals of non‑States parties or by nationals of States parties that have not yet accepted the amendments, as well as crimes committed in the territory of those States.
BORUT MAHNIČ (Slovenia), associating himself with the European Union, said that the twentieth anniversary of the International Criminal Court is an opportunity to address the improvements needed to ensure the Court’s successful operation in the future. He underscored that, given changes in the international arena that challenge the concept of multilateralism, it is imperative to continue to support the Court’s work. States will have to show more initiative in assisting the Court through concrete action. Solutions are needed for victims who do not fall within the Court’s jurisdiction due to either the lack of universal acceptance of the Court, non‑membership of major players, or unsatisfactory actions by the United Nations Security Council. One such case is Syria, where for several years there has been complete impunity for crimes committed on Syrian territory, he said, noting that her Government supported initiatives that called for the non‑use of veto rights in the Council concerning the referral of cases to the Court.
MICHAL MYLNÁR (Slovakia), associating himself with the European Union, said the Court can fulfil its mission of ending impunity for the perpetrators of war crimes, crimes against humanity, genocide and the crime of aggression only if it achieves universality. This requires making all political efforts to ensure none of the States parties to the Rome Statute leaves the system. More specifically, open and patient dialogue, as well as the shared values at the Court’s core, will enable the Philippines to remain a State party to the Rome Statute. The institutional links between the Court and the United Nations have broadened the spectrum of measures the Council can take when dealing with the maintenance of international peace and security. Slovakia encourages the Council to use this unique tool and make referrals when international crimes are being committed and the national authorities bearing the primary responsibility for the prosecution of those crimes are not in a position to do so. It is equally important that the Council follows up properly on its referrals. He also expressed concern that Court‑related language in the recent Council resolution on children and armed conflict, among other recent texts, has been weakened compared with previous texts on the same subjects. Trust is built by action. “But words matter, too,” he said, expressing that United Nations entities will not “enter a path of erosion of support, both verbal and active” for the Court.
CARLOS JIMÉNEZ PIERNAS (Spain), associating himself with the European Union, said the Court is one of the “most brilliant achievements of the international community” and enjoys the full support of an increasing number of States but continues to face several challenges that make it difficult to provide justice for serious international crimes. The Court is still not a universal organization, however it “does not lack the vocation for becoming one”. States must protect the Court and not allow for the interference of third parties. Some Member States have refused to collaborate with the Court, even in cases where the Court acts at the request of the Security Council. He called for increased efforts to train communities affected by “the worst crimes against international law”. Despite its growing workload, the Court’s budget remains insufficient, he warned, calling for adequate resources for prosecutors, defence lawyers and the Public Counsel for Victims.
SVEN SPENGEMANN (Canada) said the Court cannot fulfil its mandate without the cooperation of States. It must operate without obstruction, beyond power politics and geopolitics. The Court has a central role to play in resolving the current situations in Venezuela and Myanmar, he said, urging the Security Council to take up the question of Rohingya refugees and refer it to the Court. As a court of last resource, the Court complements, but does not replace, national courts. Its work is intrinsically linked to broader justice efforts within national jurisdictions. He went on to say that, if elected to the Security Council for the 2021‑2022 term, Canada will champion accountability in all of the Council’s deliberations.
MARIA ANGELA ZAPPIA (Italy), associating herself with the European Union, reaffirmed her country’s strong support for the Court’s activities and stressed the importance of the principles of impartiality and independence enshrined in the Rome Statute. “History has shown that leaving international crimes unpunished is not only morally wrong, but plants the seeds of new conflicts and atrocities,” she said, quoting Italy’s Minister for Foreign Affairs and International Cooperation. She called on States parties and non‑States parties to the Court’s Statute to work together at the United Nations to “strengthen the preventive aspect of accountability”. The Court is a judicial body of last resort she noted, adding that the it only operates in cases where national jurisdictions are unable or unwilling to prosecute. “The Court is a solid institution,” she said, concluding that it is progressing on a number of situations and cases.
VICTORIA HALLUM (New Zealand), describing the Court as a central component in the international rules‑based order, recalled that last year’s Assembly of States Parties saw the successful completion of a decades‑long process towards activation of the Court’s jurisdiction over crimes of aggression. That Assembly also added three new war crimes to the Rome Statute, criminalizing the use of microbial, biological or toxin weapons, weapons that injure by fragments undetectable by X‑ray, and laser blinding weapons, she noted. Looking ahead to the next Assembly, she encouraged Member States to support the Court in consolidating its work in the exercise of the existing mandate to focus on the investigation and prosecution of the most serious international crimes. Further, when the Council refers a situation to the Court, it should ensure that the Court receives the support and funding it needs, she stressed.
SAMI AL‑GHADBAN (Libya) said the Rome Statute was established to combat impunity. The Court aims to investigate the most heinous crimes while serving in a complementary role to national criminal judicial bodies. Libya has cooperated with the Court to achieve justice, while also stressing the principle of State sovereignty. Any delays in the delivery of justice in Libya can be contributed to security issues and concerns. National jurisdiction requires significant support from the international community, he added, calling on the international community to provide support to law enforcement so that it can monitor the factors that fuel violence and crime. Such assistance will also help law enforcement fight criminal activities. Libya is fully committed to fighting impunity, he added, adding that his country’s jurisdiction is independent and impartial.
MICHAŁ WĘCKOWICZ (Poland), associating himself with the European Union, said that the efforts of States parties should by no means absolve the Court from the task of building trust. The efficiency of the Court’s proceedings is yet to be perfected and improvements in this area must be a priority. “We trust that the Court will enhance the procedures of international criminal justice, assuring there will be no hindrances to progress in the fight against impunity,” he added. Noting the 11 situations under investigation and the other nine preliminary examinations, he said that once the proceedings are brought to justice, the Court will prove to be even more worthy of trust. He also added that the decision of the Assembly of States Parties to activate the Court’s jurisdiction over the crime of aggression is a milestone in the quest for justice.
GUSTAVO MEZA‑CUADRA (Peru) said the Court requires the firm support of the international community and the firm cooperation of States parties. In its fight against impunity, Peru — jointly with Argentina, Canada, Chile, Colombia and Paraguay — has requested, under article 14 of the Rome Statute, that the Prosecutor of the Court begin an investigation into the alleged crimes against humanity committed in Venezuela since 12 February 2014. That request is based on evidence obtained from impartial international organizations such as the Office of the United Nations High Commissioner for Human Rights (OHCHR), the Inter‑American Commission on Human Rights and the International Panel of Independent Experts. With respect to the work of the Security Council, he encouraged greater cooperation with the Court, welcoming the proposal that would ensure the Council resorts to the referral mechanism in a consistent manner. He also reiterated concern over the financial status of the Court, stressing the urgent need for predictable financing. Peru stresses the important role of the Court in finding impunity and bringing perpetrators to account.
KAREL JAN GUSTAAF VAN OOSTEROM (Netherlands), associating himself with the European Union, said his country proudly hosts the Court and is a firm supporter of its work. He said the Court is a main actor in the fight against impunity and brings justice to those responsible for the most serious crimes when States are unwilling or unable to do so. The Court’s growing judicial activities reflect the trust States place on the institution. “The Court needs to be provided with sufficient means to handle its growing workload,” he said, noting that voluntary cooperation by States with the Court is vital to its effectiveness. Findings of non‑compliance must be addressed through concrete action, by States parties and by the Security Council. The support shown to the Court by States parties, international organizations and civil society underlines that it embodies universal and fundamental norms and values.
ANA SILVIA RODRÍGUEZ ABASCAL (Cuba) said recent events “clearly demonstrate the need for an autonomous international jurisdictional institution” but provisions of article 16 of the Rome Statute and the significant powers granted the Security Council means the Court is not an intendent institution. Through referrals by the Security Council, international law is “constantly violated” and developing countries are attacked in the name of a supposed “fight against impunity”. Cuba reiterates its position towards the establishment of an impartial, non‑selective, effective and fair international criminal jurisdiction. She said the Court’s jurisdiction must remain independent of the political bodies of the United Nations and operate in a manner that complements national criminal jurisdiction. For 60 years Cuba has been a victim of “the most dissimilar forms of aggression”, she said, calling for the crime of aggression to be defined in a way that covers all forms of aggression in international relations.
HELMUT TICHY (Austria), associating himself with the European Union, stressed his country’s strong support for the Court as an independent and impartial judicial institution. He welcomed the activation by consensus of the Court’s jurisdiction over the crime of aggression in July as another leap forward in the fight against impunity. He expressed regret that this development could not be reflected in the General Assembly resolution. The Court needs continued international support and cooperation, particularly in the framework of the United Nations, so that it can fulfil the expectations of victims and survivors. “We must also increase our prevention efforts by enhancing international cooperation and strengthening national jurisdictions,” he added. Austria has already incorporated all Rome Statute crimes into its national criminal code, enabling national criminal prosecutions of these crimes.
TEGAN BRINK (Australia) said this year marks the twentieth anniversary of the Rome Statute and the activation of the Court’s jurisdiction on crimes of aggression. The Court’s role is to step in only when national jurisdictions are unable or unwilling to act, she said, noting that Australia will work to strengthen the Court’s ability to fulfil its mandate. “The Court and the United Nations are striving to achieve the same goals,” she said, adding that impunity for serious international crimes and sustainable development do not go hand‑in‑hand. The United Nations must provide the Court with the support it needs to deliver on its mandate. Noting repeated requests for Security Council support, she said the Council must not approach Court referrals in a “set and forget” manner. Victims and affected communities are calling for justice, she noted, stressing that the international community must not tolerate impunity.
JORGE SKINNER-KLEÉ ARENALES (Guatemala) said his country unequivocally supports the Court and its cooperation with the United Nations. Such engagement “boosts the visibility of the fundamental work carried out by the Court”. He said the Court does not substitute national courts but rather complements them as stated in the Rome Statute. “There must be improved cooperation between the Court and the Security Council,” he said, noting that work between both entities will assist in the fight against impunity. Cooperation is a fundamental pillar of the work of the Court and States parties must work to ensure accountability and prevent future crimes. He appealed for States to step up efforts to achieve universality to contribute to international peace and stability.
CHRISTIAN WENAWESER (Liechtenstein) said the Rome Statute and United Nations Charter are founded on the principles of justice and international law and “there has been a fruitful and productive relationship between them”. The United Nations and the Court are the subjects of political attacks that jeopardize their achievements. It is time for States parties to demonstrate leadership by asserting ownership of the Court while respecting its judicial independence. Nothing is more important than making it clear that committing crimes of aggression entails criminal accountability for those responsible. He welcomed the referral to the Court of a situation in a State party by several States parties and encouraged similar action to address the situation in Myanmar. The Court concluded that it has jurisdiction with respect to the forced displacement of the Rohingya population, he said, adding that it is presented with a “clear path to justice”. “Hopes that the Security Council may step in to fill impunity gaps have proven futile,” he said, noting that national judiciaries must be strengthened to contribute to the fight against impunity.
Turning to the draft resolution and speaking also on behalf of Austria, Belgium, Costa Rica, Czech Republic, Estonia, Portugal and Switzerland, he said that while his delegation joins consensus on the draft, it finds it necessary to highlight that several recent major international law developments — including the activation of the Court’s jurisdiction over the crime of aggression — have been omitted from the text. The Court “is a central achievement of multilateral diplomacy and a true milestone in the development of international law,” he said, adding that the General Assembly must not adopt outdated texts.
DOMINIQUE MICHEL FAVRE (Switzerland) said the absolute need for the International Criminal Court as an institution that ensures accountability, contributes to sustainable peace and serves victims remains unchanged. Nationalism is on the rise and the international fight against impunity is often misrepresented as an obstacle to peace rather than one of its building blocks. The fact that one State has withdrawn from the Rome Statute and another is about to mirrors this regrettable development, as do political attacks on the Court. The international community needs to reaffirm that it stands behind international criminal justice, with the Court as its independent centrepiece. With nine preliminary examinations and 11 investigations on situations worldwide and numerous judgments on merits and reparation to victims, the Court has had a busy and successful year. This positive track record is clouded, however, by 15 arrest warrants and requests for surrender that remain unexecuted to date, weakening its deterring effect and ultimately the protection of the most vulnerable — victims of war.
FREDERICO SALOMÃO DUQUE ESTRADA MEYER (Brazil) said that not only are all South‑American countries party to the Rome Statute, but Latin American and Caribbean States represent the second‑largest group among States parties, behind only the African Group. Any misperception of bias of selectivity regarding the Court’s activities will be dispelled by advancing the universality of the Statute, he added. Like all socially constructed systems, international law does not sustain itself. It must be nurtured, developed and protected. Brazil reiterates its long‑standing concern about the financing of Security Council referrals: an issue of a structural nature that goes to the very core of the relationship between the Court and the United Nations. The proper funding of Council referrals would enhance the credibility of the Court and the United Nations. To date, the budget allocated within the Court in relation to these referrals amounts to more than 60 million euros. “The current situation is neither fair nor sustainable,” he added.
MARIANA DURNEY (Chile) appealed to all States to cooperate fully with the Court and to work together to address the challenges that it faces. States must continue cooperation between international, national and regional courts. Restating Chile’s commitment to the Court, she acknowledged the crucial work of the Trust Fund for Victims and appealed for voluntary contributions to support it. She also underscored the need to increase communication between the Court and the United Nations system, thus allowing an effective follow‑up of matters put before the Court by the Security Council. She added that Chile regrets the withdrawal of States from the Rome Statute and hopes that those countries will reverse their decisions.
CHRISTIAN GUILLERMET-FERNÁNDEZ (Costa Rica) said the Court was born of the desire to end impunity for the most serious crimes against humanity and to assist victims. He called on States parties to continue stepping up efforts to achieve universality of the Rome Statutes. He also welcomed the activation of the Court’s jurisdiction on crimes of aggression. Acknowledging the Court’s solid jurisprudence in international law, he noted that 2,500 victims participated in cases over the reporting period and that over 300 new requests had been received by the Court. These figures show the Court’s central role in providing reparations for victims. The main responsibility for ending impunity rests on States, he said, pointing to provisions in the Rome Statute related to complementarity. However, if the competence of the Court is activated, States parties must deliver on their responsibilities as stated in the Statute. Failure by States parties to pursue warrants contributes to impunity, he warned, also calling for efforts to guarantee the Court’s geographical balance and urging increased cooperation with the United Nations.
ANNELI LEEGA PIISKOP (Estonia), associating herself with the European Union, said the Court is an essential tool for fighting impunity and contributing to peaceful societies. Noting mounting challenges to the international rules‑based order, she called on all States and the Security Council to take appropriate action to fully cooperate with the Court. It is the primary duty of States to prevent and respond to international crimes. The Court complements those efforts, she said, noting that its efficiency depends on States’ full cooperation. However, when States parties do not comply, the Court must be able to rely on the Security Council to intervene with full support. She called for greater protections for victims and witnesses and said the Court’s increasing workload demonstrates that there is wide trust in its capabilities.
POLLY IOANNOU (Cyprus), emphasizing that the Court needs a global mandate, called upon all States that have not yet done so to ratify the Rome Statute. Her country, which during the reporting period made its first symbolic contribution to the Trust Fund for Victims, has full confidence in the Court’s impartiality and independence, she said. Noting that the prevention of destruction of, and illicit trafficking in, cultural heritage is a priority for Cyprus, she recognized the significance of the Al‑Mahdi case, the first in which the Court found an individual responsible for the war crime of attacking historic and religious buildings in Timbuktu. She also welcomed the engagement of the Court’s Prosecutor in discussions on the responsibility to protect cultural heritage, alongside the signing of a letter of intent with the United Nations Educational, Scientific and Cultural Organization (UNESCO) to enhance their cooperation.
VOLODYMYR YELCHENKO (Ukraine), noting that Ukraine was among the first to support the idea of a permanent tribunal to deal with individual responsibility for the most serious crimes under international law, said it is important for States not party to the Rome Statute to cooperate with the Court, the United Nations and other stakeholders. While Ukraine is not party to that Statute, the Government has declared that it accepts the Court’s jurisdiction in relation to crimes committed on Ukrainian territory since the start of the Russian Federation’s military aggression. He highlighted cooperation and active engagement between the Ukrainian authorities and non‑governmental organizations with the Court during the reporting period, adding that prosecution of those who organize, support and perpetrate grave crimes in Ukraine is a priority for the country’s authorities and people.
LUIS XAVIER OÑA GARCÉS (Ecuador), describing the Court as a unique tool in the fight against impunity, appealed to all States to lend it their support. The universalization of the Rome Statute is an objective that goes beyond political considerations, he said, acknowledging the Court’s diligent work and its achievements. He voiced his support for the principle of complementarity, which would enable the Court to strengthen national mechanisms without substituting for them. As well, the Court should have the funding it requires to deliver on its mandate, particularly in these times in which there has been an increase in the number of cases and investigations. He also expressed support for the United Nations’ efforts to improve cooperation with the Office of the Prosecutor and other core bodies.
MARIA TELALIAN (Greece), associating herself with the European Union, stated her regret regarding the recent withdrawals from the Rome Statute. She called on all States that have not yet done so to join the Statute, thus expanding its reach and deepening its work. She underscored her country’s readiness to help the Court fulfil its mandate in an international environment radically different from the one that prevailed 20 years ago. “We firmly believe that the Court must be able to act without hindrance within the legal parameters defined by its founding treaty,” she said. A structured dialogue between the Court and the Security Council could improve the implementation of referral resolutions and enhance accountability, she added.
GERALDINE BYRNE NASON (Ireland), associating herself with the European Union, said that through the Rome Statute, the international community has made it clear that there are certain lines which should not be crossed and that if they are there must be accountability. Describing the Court as “the cornerstone for international criminal justice”, she said some of the fiercest criticism it faces emanates from the fact that it is simply fulfilling its mandate ‑ combating impunity for the most serious crimes. She welcomed the activation of the Court’s jurisdiction over the crime of aggression, noting that the Court operates as part of a system of international criminal justice. She also welcomed the exploration of mechanisms to improve the support the Security Council can give the Court, reiterating the view that there must be unity of purpose within the international community in prosecuting mass crimes. Highlighting the emphasis given to victims in the Rome Statute, she said the Trust Fund for Victims must focus on delivering tangible reparative justice.
LUIS HOMERO BERMÚDEZ ÁLVAREZ (Uruguay) said activation of the Court’s jurisdiction over crimes of aggression is “grounds for celebration”. The international community needs an independent court to combat impunity and the worst crimes against humanity. Assisting victims is at the centre of the Court’s work, he said, stressing his country’s emphasis on promoting and protecting human rights. Uruguay was one of the first States to ratify the Rome Statute and was the first Latin American State to ratify the Kampala Amendments. He reminded States parties of the need to help the Court deliver on its mandate, underscoring that cooperation between Member States and the Court is essential to combating appalling crimes. Fighting crimes against humanity is hugely important for Uruguay.
JULIO CÉSAR ARRIOLA RAMÍREZ (Paraguay) said creating the Court was a very important milestone in the fight against impunity and the worst kinds of crimes. Paraguay advocates for the universality of the Rome Statute and Kampala Amendments, he said, adding that the country’s Constitution acknowledges a legal order that guarantees the protection of human rights. Paraguay has legislation in place to combat war crimes and Paraguayan courts have implemented the principle of universal jurisdiction. The Paraguayan Supreme Court ruled that there can be no statute of limitations on torture; violations of fundamental rights must not go unpunished. He also extended an open invitation to monitoring organizations that wish to assess his country’s progress. By its work in cases that fall within the principles of universal jurisdiction and complementarity, the Court can be a “light of hope” for people oppressed by authoritarian regimes. He called on all States to cooperate with the Court to ensure its independence and impartiality and said closer engagement with the Security Council is important to allow for proper implementation of Court decisions.
KAHA IMNADZE (Georgia), associating himself with the European Union, said the Court’s effectiveness relies on strengthening universality and increasing cooperation. Welcoming activation of the Court’s jurisdiction on crimes of aggression, he said that unequivocal support for the system of international justice is vital. The Rome Statute created a permanent and global institution to fight impunity and prevent hideous crimes and, since Georgia’s ratification, his country has effectively cooperated with the Court. In addition, Georgia recently hosted a high‑level regional conference designed to promote and enhance cooperation between the Court and countries from Eastern Europe and Western Asia. He stressed his support for the recommendation included in the report regarding the need to investigate crimes committed in Georgia during the Russian aggression of 2008.
LAURA STREŞINĂ (Romania) said the growing deterrence effect of the Court is increasingly evident and investigating mass crimes is now the expected norm. The Court’s input to this end cannot be ignored and the harshening tone of its critics cannot but mirror its relevance. While recognizing the Court’s problems, she said that any critic of the Court should consider the limitations imposed by its treaty‑bound competence, its reliance on State support and external financial constraints. The Court is an essential piece of the Rome Statute system, but not the only one. “This is a Court of last resort that was not meant to and cannot solve every international crime committed in this world,” she said. The system’s strength should rest on the work of national courts that serve as the first line of accountability for the most egregious crimes. Voicing strong supports for the implementation of the complementarity principle, the cornerstone of the Court’s machinery, she added that the international community should aim for fewer cases for the Court as more Member States are able and willing to investigate and prosecute crimes in their jurisdiction.
RUBÉN ARMANDO ESCALANTE HASBÚN (El Salvador) said that the Court has continued to have a high burden of work this year, outlining its various accomplishments, including its work in the area of reparations. While the Court has achieved substantial progress in the past several years, much more work remains to be done. “The road ahead is full of challenges,” he said, calling on all Member States to adopt the Kampala Amendment. He reiterated El Salvador’s commitment to the Court’s work and urged those who had not yet done so to ratify the Rome Statute. There must be full universality to promote justice and accountability, he stressed.
MARTÍN GARCÍA MORITÁN (Argentina) said the Court has done a great deal since its last report, proving that it is essential to fighting international impunity. Argentina, actively involved in mechanisms of the Court to achieve universality of the Rome Statute, ratified the Kampala Amendments, he noted, also welcoming the activation of the Court’s jurisdiction over the crime of aggression. Cooperation between the Court and the United Nations is crucial and the cost of referring cases to the Security Council must be covered by the United Nations. A better and improved relationship must be pursued between the Council and the Court, particularly in cases related to children in armed conflict. The Court has contributed to promoting human rights and lasting peace in accordance with international law and the principles of the United Nations. “We cannot accept that in this century we cannot provide robust protections against rights violations,” he stressed.
TAREQ MD ARIFUL ISLAM (Bangladesh) said his country followed with interest the Court’s ruling on the issue of forced deportation of the Rohingya community from Myanmar to Bangladesh. Bangladesh considered it a responsibility as a State party to respond to the letter sent by the Pre‑Trial Chamber within the given deadline. The Pre‑Trial Chamber’s ruling concerning the possible denial of their right to return is an important development. Bangladesh will continue to cooperate with the Court in the aftermath of the Pre‑Trial Chamber’s ruling, while underscoring the need to ensure accountability for the entire spectrum of atrocity crimes committed against the Rohingya by the Myanmar security forces and non‑state actors. He welcomed the decision by last year’s Assembly of States Parties to activate the Court’s jurisdiction over the crime of aggression. He stressed that cooperation and support of States parties to the Rome Statute remains critical for discharging the Court’s mandate.
CHARLENE ROOPNARINE (Trinidad and Tobago) said that the Court is an international guardian and guarantor of the rule of law. Her country’s unwavering commitment to the Court is informed by its recognition of the importance of ending impunity for perpetrators of the most serious crimes of concern to the international community. It cannot be denied that the Court continues to be a beacon of hope to victims of grave crimes within its jurisdiction who are seeking justice. These include the most vulnerable, such as thousands of women and children, who are often at times the ones most affected by the actions of criminals. She expressed deep concern over the recent withdrawals and notifications of withdrawal from the Rome Statute. To those who believe the Court to be a threat to national jurisdiction, she said the Court’s jurisdiction is only invoked when States are unable or unwilling to prosecute those alleged to have committed grave crimes.
HAU DO SUAN (Myanmar) rejected the Court’s decision that it may exercise jurisdiction over his country regarding the “alleged deportation of ‘Rohingya’”. The decision is the result of a “faulty procedure and dubious legal merit”. He said Myanmar is under no obligation to respect the ruling of the Court and disagreed with the Prosecutor’s assertion that population displacement across a national boundary is an essential objective element of the crime of deportation. He said that an organizational policy of the kind required for proving crimes against humanity under the Rome Statute is hard to reconcile with the repatriation agreement signed between Myanmar and Bangladesh in 2017. Such bilateral agreements aim to facilitate the repatriation of verified residents of Rakhine State who crossed over to Bangladesh following terrorist attacks.
The Government is aware of accusations regarding human rights violations in the aftermath of terrorist attacks and an Independent Commission of Enquiry is investigating allegations of human rights violations, he said. He warned that the overextended application of jurisdiction challenges the fundamental principle of legal certainty and goes against accepted principles of public international law. “Nowhere in the Court’s Charter does it say that the Court has jurisdiction over States which have not accepted that jurisdiction,” he said, adding that the Prosecutor is attempting to override the principle of sovereignty. He closed by strongly deploring attempts by Member States to refer Myanmar to the Court.
HWANG WOO JIN (Republic of Korea) said now is the time for the Court and the United Nations to work more closely and reassert the relevance and importance of international criminal justice. The Court plays a significant role in sustaining the three pillars of the United Nations — peace and security, development and human rights. The Court cannot sustain itself without active cooperation from multiple stakeholders and must reach out to interested regions to achieve universality. Success in the fight against impunity hinges on universal application of the Rome Statute, he said, adding that ratification of the Statute does not equate to a concession of sovereignty. The Republic of Korea will continue pursuing efforts to establish the Court as a responsible, universal and efficient institution to end impunity.
MAMADOU RACINE LY (Senegal) expressed concern over the widespread erosion of the international legal system. Senegal has always embraced dialogue to advance peaceful relations. The struggle against impunity and for the rule of law needs to remain a universal battle. Concerns must be duly addressed, he said, urging all States to engage in “united momentum and spirit of wisdom to rise to the trust world leaders have nourished since the Court’s creation 20 years ago”. The Security Council must also prudently exercise its right to refer matters to the Court. To avoid tarnishing its credibility, the Court must uphold the loftiest standards and the integrity of witnesses. Since its inception, the Court has been seized of 26 cases, and has rendered definitive judgments in cases brought before the Appeals Chamber. The universality of international criminal justice is making headway, he said, adding that the Court, despite its shortcomings, remains a beacon of hope for victims of atrocity crimes.
ANATOLIO NDONG MBA (Equatorial Guinea) said his country supports international law and international humanitarian law and welcomes the considerable efforts of the United Nations, particularly the Security Council, in promoting accountability and fighting impunity. Unwavering cooperation is essential in this regard, and yet it continues to be undermined. The United Nations and the Court are closely interrelated, guided by similar goals and objectives. Both organizations must be able to deliver on their respective responsibilities in an objective and impartial manner. He encouraged institutions at the United Nations to be “very careful” in referring new situations to the Court. Such decisions should be based on whether the Member State has legal institutions to deal with the said crime. He also aligned himself with the position of the African Union with regards to its case regarding Sudan’s former President. Prosecuting a Head of State is a matter of national sovereignty, he stressed.
The General Assembly then turned to draft resolution A/73/L.8.
The representative of the United States said her country announced a change in position in relation to the Court and reiterated her country’s principled objection to the Court’s jurisdiction over individuals in States that are not parties to the Rome Statute, including the United States and Israel. “The United States remains a leader in the fight against impunity,” she said, adding that her Government respects the decisions of countries that joined the Court and called for the same respect to be extended to her Government’s position. She then disassociated herself from consensus on the draft.
The representative of Sudan said the politicization of justice is not in line with the principles of the United Nations Charter and only serves to stoke international tensions. “The Court has clearly demonstrated it is merely a tool and political instrument,” he said, reiterating his opposition to activities by the Court related to African States. Justice must be promoted through national legal bodies and national jurisdictions must be able to act without foreign interference. He said the ongoing efforts to “make the General Assembly an assembly of countries party to the Court” is in violation of international law. The resolution does not concern Sudan, he said, disassociating himself from consensus.
The General Assembly then adopted the text without a vote.
The representative of Syria disassociated himself from any consensus on the text and said some States are attempting to distort the scope of universal jurisdiction. The politicization of justice infringes on the mandates of judicial institutions. Noting that Syria contributed actively to negotiations on the Rome Statute before ratifying it, he said his country has seen the Court transform into a politicized institution and that some Member States insist on the political exploitation of the situation in Syria. “They are not ashamed to exercise hypocrisy and deceit by referring the situation in Syria to the Court,” he said, adding that some representatives insist on promoting the International Impartial and Independent Mechanism. Most Member States, however, do not want to listen to biased parties that wish to promote that illegitimate Mechanism. He called on States who support the Court to “balance their words with their deeds” and to hold accountable those supporting the activities of terrorist organizations.
The representative of the Russian Federation expressed disappointment that the resolution once again has merely undergone a technical modification. The Court continues to subjectively interpret the standards of international law. The Russian Federation has voiced its concerns and has echoed the concerns of several African States and others regarding the prosecution of a Head of State. The Russian Federation is further alarmed at the Court’s intent to drag non‑State parties of the Rome Statute into its orbit, he said, referring to the Rohingya situation. The problems of the Court abound, he continued, adding that yet another State has announced its withdrawal from the Court. He disassociated himself from consensus on the text.
The representative of the Philippines said her country disassociates itself from the resolution, adding that its withdrawal from the Court will take effect on 17 March 2019. The decision to withdraw is the Philippines’ principled stand against those who politicize human rights, even as her country’s independent and well‑functioning organs and agencies continue to exercise jurisdiction over complaints, issues, problems and concerns arising from its efforts to protect its people. She reaffirmed her country’s commitment to fight against impunity, adding that the Philippines has national jurisdiction over punishing atrocity crimes.
The representative of Israel said she disassociated from consensus not because she did not believe in the objectives of the Court, but because she did. She warned of a rising gap between the Court’s original mandate and how that mandate is being implemented today. “Too many decisions and actions emanating from the Court have given cause for concern,” she said, urging States to be sensitive to serious concerns being voiced and to align their views with the founding principles of the Court.
Right of Reply
The representative of Venezuela said several States are seeking to transform the Court into an ideological battleground. He said the Court already has enough enemies and does not need new adversaries that wish to use it for political purposes and destroy it. He said the apparent concern for justice of some States is marked by their desire to use the Court for political aims. He called on Member States to show strict adherence to the United Nations Charter and the principles of international law.
The representative of Bangladesh, responding to statements made by Myanmar, said the issue of accountability regarding the repatriation of Rohingya is not hard to reconcile with the bilateral agreements between both countries. “Bangladesh remains committed to working with Myanmar in facilitating the Rohingya repatriation,” he said. Myanmar must initiate mechanisms to prosecute crimes committed against the Rohingya, he said, noting that the international community can act against impunity.