Council on Foreign Relations
FRED HIATT: It’s a great pleasure to have Judge Philippe Kirsch here. As you know, he was elected or chosen president of the International Criminal Court last March after a long career as a diplomat and in international law, including chairing the Rome conference that led to the creation of the court.
Judge Kirsch is going to talk for just a few minutes, and then he and I will talk a little bit, and then we’ll have time for questions and answers.
I believe I’m supposed to say, unlike most Council events, this one is on the record. And that’s it. Thank you for coming.
PHILIPPE KIRSCH: Thank you very much. I’ve been asked to be brief, and it’s always a pleasure to be brief. I’m very happy to be here. Washington so far has been a refreshing experience. (Laughter.) But it’s also good training, because my next stop is Montreal, and you can’t get any worse than that. So Washington is just fine, almost tropical in comparison.
All I would like to do by way of introduction is put on the table a few points that will help clarify issues that often are not entirely clear. And there are essentially three issues I’d like to take up. One is why the ICC was created; two is a couple of features in the statute of the ICC; and three, where the court is at now exactly.
And I guess the first point I would make on the creation of the ICC is that it is recognized in its statutes that the first responsibility to try any crime, including the most serious crimes, belongs to the state that normally would exercise jurisdiction.
It is only in extreme cases that the international community should intervene. Normally there should be no reason to intervene. Normally there should be no reason for international tribunals.
But if you look at the international tribunals that have been created, the differences are on the modalities of their establishment, not on the principle. In all cases, tribunals, international tribunals, have been created because there has been a massive failure in justice at the national level. And I think that is something that is important to understand, because if then there are no tribunals, then you come to situations like the Cambodias and the Ugandas that have developed where millions of people are killed, where really atrocious crimes are committed, and nothing is done.
And one reason, of course, why states became interested in this is that commission of crimes on a massive scale does not only affect individuals, but also regional stability and peace.
Well, that’s really the extent of my first point. Am I doing okay?
MR. HIATT: Brief so far.
MR. KIRSCH: Thank you. My second point will be just a little longer because I have a couple of points within that.
The second issue is a couple of features in the statute. And I would mention three things. The first is the crimes that are within the jurisdiction of the statute. Those crimes are the most serious crimes of concern to the international community. That is also in the statute. And they are genocide, crimes against humanity and war crimes.
We have a list of crimes that detail within each category what it was. So I think what is important also to understand about the list of crimes is that there is in each case a requirement that those not be isolated crimes.
In the case of crimes against humanity, for example, you need for a crime—say, murder; murder is a crime against humanity, but not by itself. It’s a crime against humanity if it is part of a widespread or systematic attack against a civilian population. And that systematic or widespread attack against a civilian population is defined elsewhere as having to be part of a policy of a state or an organization.
So isolated crimes should not go before the ICC, because that is not what the ICC has been created for. The same, of course, applies by definition to genocide, where you do, to be able to commit the crime of genocide, have the intent to kill a group that is defined in the genocide convention.
That’s the first feature of the statute, which I thought would be useful to mention.
The second feature of the statute I would mention is the principle of complementarity. I know complementarity does not seem to be an English word. Every time I tap it on my computer, it tells me that I spell something wrong. (Laughter.) But the principle is that the ICC—and that is very different from the ad hoc tribunal—does not have priority jurisdiction over crimes.
If the ad hoc tribunal for Former Yugoslavia, for example, tells one of the states concerned, “Bring me an accused,” that it has an obligation to bring that accused to the Yugoslav tribunal. This is not the case of the ICC. In principle, the state continues to have the first responsibility to deal with those crimes. It is only if a state is unwilling or unable to do it that the ICC would intervene.
Now, what does that mean? Unable to do it is defined in the statute as a situation where judicial systems have collapsed on the national level to the point that the country is unable to deal with that problem. You could say Somalia would be a case like that, for example.
Unwilling is a state where proceedings are conducted in such a manner as showing that it is inconsistent with normal proceedings leading to a determination of any conclusion, guilt or innocence, or proceedings that are delayed so much, again, that it is clear that it will not lead anywhere, or proceedings that are conducted clearly with a view to sheltering a perpetrator from justice.
Now, the kind of situation that is referred to here in reality is, for example, a case in Yugoslavia as it existed where you had a judiciary that was not independent and clearly controlled by a government that had certain purposes.
In the case of democratic countries that have systems that function perfectly well, there is no reason why any issue should come before the ICC, because there’s another thing I would add to that, and that is that a determination of how a proceeding is conducted does not depend on its outcomes. It does not require a prosecution. It could require an acquittal or even a decision not to prosecute. All that is required is that proceedings are conducted normally.
That’s the second and second-to-last point I would make about the features of the ICC statute.
The third one relates to the right of the accused and the rights of the state. I suppose a number of you do watch “Law and Order,” and therefore I don’t think it’s really necessary for me to go in detail into the rights of the accused, because you’ll find the same thing—presumption of innocence, burden of proof, right to a fair trial, public trial. All that is found in the statute.
So I’ll stop there. But, of course, if there are questions, I’ll be happy to answer.
The state is involved in a very different way. The court does not have jurisdiction over states themselves, but, as I said earlier, the ICC would intervene only if a state is unable or unwilling to conduct certain proceedings.
So that means that if the prosecutor, for example, receives information that leads him to the conclusion that massive crimes have been committed—well, if that happens, he first has to request the authorization of a pretrial chamber to even start an investigation.
If he starts that investigation, after approval of the pretrial chamber, then he has to inform the state, or state parties to the statute, and the state that would normally exercise jurisdiction, whether or not they’re a party to the statute. And then the state that is concerned could very well come back to him and say, “Prosecutor, I am conducting proceedings exactly the way I should. The ICC should not intervene.”
If the prosecutor is satisfied with that, it’s the end of the process. If he’s not satisfied with that, then he informs the pretrial chamber that, “Well, this is what the state says, but I’m not convinced,” and then the matter is heard.
The point about the demonstrating is really double. One is that this is a very tight process leading back to an appeal chamber, which has a role also, but also that if a situation like that happened, then the states concerned have, of course, every right to make representations to the court to the effect that the court should not intervene in a particular case.
So these are the three features of the court that I thought might be useful to put on the table so that at least they bring some degree of clarification.
The third and last issue I wanted to raise is where the court is at. Since July 2002, which is the beginning of the jurisdiction of the ICC—whatever has happened before is not within the jurisdiction of the court—about 715 communications have been received by the prosecutor from essentially non-governmental organizations or individuals.
Most of those communications are not admissible. They are not admissible for one of three reasons. Either the crimes are not crimes under the statute—you know, you have allegations of economic crime, tax fraud, environmental crimes. These are bad things, but they do not amount to genocide, crimes against humanity and the like. So those allegations are out.
Then you have a number of communications, because the statute is not well understood, clearly, where the crimes mentioned do meet the requirements of the statute, but were committed before July 2002. You have a number of communications that go 20, 30 years back to say, “Well, look at what bad things those people have done to my nation. The ICC should intervene.” Obviously the ICC cannot intervene and will not intervene. This is outside its jurisdiction.
Or the crimes are the crimes under the statute, the time frame is right, but the allegations concern a situation where no state parties are involved. And there were communications, for example, on the Iraq conflict, which obviously cannot be looked at because neither the United States nor Iraq are parties to the statute, and therefore the ICC does not have jurisdiction.
Having said that, it leaves a few situations that do meet all the requirements of the statute. The one that the prosecutor identified as early as last July, I think, is the situation in the province of Ituri in the Congo, where millions of people were killed before July 2002. But even after July 2002, crimes have continued, and not only killing; they really have been abominable crimes committed in that situation, in that conflict.
And so the prosecutor did announce that he was looking at the situation to determine whether the material offered allowed him—gave him enough information to ask the pretrial chamber for permission to start an investigation.
The prosecutor is also looking at other situations that are not public, three or four. And we will see, I think in June—I think the target is the month of June of this year—in June, either a state will refer a situation to the court or, if that does not happen, the prosecutor is likely to take the initiative, as he’s entitled under the statute, to ask for an investigation out of those three or four situations that he is looking at, just looking at, at this point.
I think it’s all I wanted to say. I hope I have not been too long.
MR. HIATT: No, it’s extremely useful.
MR. KIRSCH: One more thing. I’ll be happy to take questions. However, I do not comment on policies of state. I do not comment on specific situations. And I do not speculate on what the court might do if this or that. If you’re still interested in asking questions, I’m your man. (Laughter)
MR. HIATT: Hypothetically, if there were a great power that chose not to sign this treaty—(laughter).
Let me pick up a little bit on part three. What do you think the court’s workload is likely to be once you’re up and running? How many judges do you have? What are they going to be doing everyday?
MR. KIRSCH: Well, to start with your last question, which is an institutional question, the court is composed of three chambers: A pretrial chamber—a pretrial division, sorry—of two chambers, of three judges each; a trial chamber, same composition; an appeals chamber, which is five judges, who will be sitting on the appeals chamber all the time during the year of mandate. I am, ex officio, a judge on the appeals chamber.
The workload—well, the ICC will never be able to take up many cases. Our original estimate is that we might have a maximum of two or three simultaneous situations at the same time. Say, Congo would be a situation within which there would be a few cases, but not more than that. And that, of course, is in the logic of the establishment of the statute, which is that the ICC is not a court that should look at anything that happens, but only focus on the most serious situations.
MR. HIATT: And, I mean, you started talking about Cambodia as an example. How much of a drawback is your inability to reach into countries like Iraq that haven’t signed the treaty? And how likely is it, given that, that you will be able to have an influence preventing future Cambodias?
MR. KIRSCH: Well, clearly the court will be able to meet its objectives fully when it is widely ratified. Before that, there will be always gaps unless the Security Council intervenes, because if the Security Council refers a situation to the court, then there is no other requirement. You don’t have a need for specific countries to be parties to the statute.
And because of that, there was an attempt—I always thought, from when I became accidentally involved in this issue in Rome, that the court could not be a maximalist court. If it was a court with very strong provisions but very little support, it would never go anywhere. So I always thought that the strength of the court would have to derive both from enough strong provisions, or provisions strong enough, and support that is strong enough.
So at the end of the Rome conference, there had to be a vote for a very particular issue. But then, when I became chairman of the preparatory commission later, the developed instrument, my own objective was to try to diminish the gap. Even though the Rome conference had adopted the statute by 120 votes in favor, my sense is that the court should eventually have the potential to become universal.
And so when the prep comm started—and it lasted three and a half years—my own first objective was to make sure that states that still have concerns felt that their own particular views were heard.
And I think, at the time, it worked, because in the three and a half years of the life of the prep comm, all instruments, and there must have been 9 or 10, were adopted by consensus. And that included the rules of procedure and evidence—and the United States was very much involved in that—and the elements of crime which are a detailed definition of the crimes contained in the statute. And, again, that was adopted by consensus, including by the United States.
The result of that, at the end of 2000, was that you had 139 signatures, as opposed to 120 votes, which I think was unprecedented in the history of treaty negotiations, because normally it’s a lot easier to vote for something and then to forget about it than to then follow up and lead to signatures. And a number of states, in fact, that we presume or we know voted against the statute or abstained on it ended up signing the statute at the end of 2000.
So—I’m sorry, this was a long answer; I’m sorry. But the point I’m making is that, yes, the court should become universal to be fully effective.
MR. HIATT: And in the balance you are looking for between a strong enough charter and as much support as possible, how much of a drawback is it now and will it be if you don’t get all five Security Council members on board, including the U.S.?
MR. KIRSCH: Yeah, the five Security Council members, of course, are important. Their positions are not exactly the same; they vary. Russia has signed the statute; has not ratified yet. But they have invited us; like, I’m going to Moscow next month just to talk about the statute.
The business of the court is not to promote itself, but when it is invited to extend itself, obviously it should do it. I was two months ago invited to Beijing, and the attitude of the Chinese at that conference certainly was not negative.
The issue is not so much immediate ratification. We do not necessarily expect early ratification on the part of the permanent members that have not yet ratified to have, of course; but that if the intellectual argument about the court is not enough to convince those who do not believe in the court now, all of what that the court can do is to establish its credibility through its true practice.
And we’re looking at that. But, of course, the credibility of the court will depend on the fairness of its proceedings, which, mind you, is not even a challenge, because the court is extremely tightly regulated, among other reasons.
Then efficiency, and that is more of a challenge, because in international crimes you have a variety of factors that will not exist in domestic crimes. You have multiple crimes. You have very complex situations in the field. You have many victims. You have difficulties of access. You have problems of safety. You have evidence that may well disappear before proceedings can start.
So that is going to be complicated, in the same way that the pretrial chamber will be an additional layer in the structure of the court. We’ll have to deal with that in such a way as hopefully to use it to even accelerate procedures by evacuating issues that are relating to guilt or innocence. That should be part of the trial, but having put aside issues like admissibility and jurisdiction and confirmation of charges and all those issues.
The principle of complementarity, of course, which allows a state to intervene, is also, by definition, going to cause delays.
And finally, we want to be transparent. We want—to us, the worst enemy of the court is ignorance. So we want to be open. We want states and the public and NGOs and universities to understand what we do and why we do it. In the areas of defense and victims, for example, we have some questions on which we did not have at that point the required expertise. We put them on our web and we said, “All right, can you, public, say what you think about the answers to those questions?”
So, again, it’s too long an answer, but the point is that if early ratification does not come, the only thing the court can do to help itself is to show, through its actions, that it is what it is supposed to be.
MR. HIATT: Let me ask one question about complementarity, because you’ve said there’s no reason really why a case out of a democratic country that deals with these things should find its way to the court.
But let’s say hypothetically a democratic country engages in a humanitarian intervention in another country, including military action, which includes bombing civilian neighborhoods, you know, in an attempt to get the leader.
And your prosecutors think this is way beyond the bounds and just unbalanced in terms of the rules of war, and that country looks at it and says, “No, it was fine. This is—you know, we’ve looked at it. We think this is reasonable.” Then surely your prosecutors aren’t going to feel like they can’t pursue it any further. Or are they?
MR. KIRSCH: Well, first of all, the hypothetical country that you’re talking about has agreed to the crimes included in the statute. So that eliminates a problem by definition.
MR. HIATT: But there’s some measure of judgment in—
MR. KIRSCH: But of course.
MR. HIATT:—in what’s proportional, right?
MR. KIRSCH: Of course. But as I have said earlier, the business of the court is not to second-guess domestic proceedings. The ICC is not after prosecution. The ICC is only interested in hearing that if there have been allegations domestically about something, that the judiciary concerned, which is independent, deals with it normally. And then it’s a matter of—the conclusions are not something that the ICC would second-guess. So the process has been right.
MR. HIATT: To take a historical example, if the Russians said, “We had to destroy the city of Grozny and kill 200,000 civilians because there were 100 terrorists there, and we’re a democracy and our system has looked,” then that has to be the end of the story?
MR. KIRSCH: What do you think about the crime itself?
MR. HIATT: I would say it’s a crime against humanity.
MR. KIRSCH: You remember at the beginning I said I would not speculate or deal with specific situations? (Laughter.)
MR. HIATT: Yes, but then you talked about specific capitals, Moscow and Beijing. So I thought maybe we had moved beyond—(laughter)—
MR. KIRSCH: This was smart, but the context was slightly different.
MR. HIATT: Okay, take it back to the hypothetical. It’s still—I mean, surely if you have to completely stop when a country says, “We’ve looked; we’re satisfied,” then you’ve really restricted your ability to enforce international law, haven’t you?
MR. KIRSCH: The point is whether the judicial proceedings in a particular country have been conducted genuinely. The word “genuinely” is included in the statute. If that is the case, if proceedings have been conducted genuinely, then presumably the outcome would be in accordance with national and international standards of justice. In a case like this, the ICC does not intervene.
Now, of course, you can put extreme situations to try to demonstrate that the system does not work. But the basic principle is that it is the state that is responsible, not the international community. And it is very clear that the ICC—there are enough very, very bad situations in the world that the ICC must look first at those extremely bad situations, not at the details of situations that may occur elsewhere. That is why the states have created it.
MR. HIATT: There are a lot of people here who know more about this than I do. I’m going to ask one more question, which maybe you can answer; I’m not sure.
One of the objections here—and let me put it hypothetically—there was concern among people who support the idea of accountability that the existence of this court would make it less likely for powers to intervene in situations where there’s no strong national interest at stake, but a humanitarian interest if they feared that somehow their people would get in trouble, and that therefore, paradoxically, you would be less likely to have the folks out there who can arrest the people whom you’re going to want to be inviting, because there’ll be more of a reluctance to get involved. Is that a legitimate concern?
MR. KIRSCH: Well, first of all, at the stage and nature of the intervention I will state is irrelevant. The three crimes over which the court is operational concern only, in a case of an intervention, war crimes. And, again, war crimes are crimes that have been universally accepted. And, again, if a soldier commits a crime as he’s sent abroad, first of all, the principle of complementarity applies. Presumably the judicial system will look at it.
And second, the soldier will not be transferred to the ICC anyway, because normally you have a Status of Forces agreement with the—or, no, not in the case of intervention. I’m sorry, that’s really misspoken. But normally crimes—if there are allegations of crime, it will be up to the dissenting to look at them. The ICC is not looking for business.
MR. HIATT: Let’s have questions. Please, when you ask a question, identify yourself and your affiliation. And since there are a lot of people who are going to want to ask, keep the questions as brief as possible. Let’s start with Roy here in the front. And wait for the microphone—rule number three.
Audience: Roy Gutman of the USIP and Newsweek. Two questions, quickly, because you may have a yes or no on both. One is, does a situation like Guantanamo and the detention of lawful, unlawful noncombatants, whatever they want to describe them as, you know, in a systematic way that seems to run quite opposite the rules of armed conflict as stated in Geneva, could this rise to the level of a complaint that the ICC would want to hear?
And the second question is much more narrow and parochial than professional. Reporters—at least one or two reporters were summoned to The Hague tribunal by a subpoena almost, and not really given the opportunity to write their articles and just simply help informally, but actually were told they had to testify. You probably know about the Jonathan Randall case, a former Washington Post reporter. Does the ICC have rules that actually lay out how you deal with members of the working press? Thank you.
MR. KIRSCH: I will be disappointing. But I warned you I do not comment on specific situations. With respect to that particular question, the ICC, the rules of procedure and evidence have a number of provisions regulating confidentiality in some cases. That certainly applies to the ICRC, it applies to the doctor-patient—this kind of thing.
I do not remember rules specifically directed to the press, But I’ll have a look at it.
Audience: Are there things that you’ve seen in the Yugoslavia tribunal that either as positive or negative you’ve taken on board as lessons as you write your rules?
MR. KIRSCH: Yes. First of all, the statute itself contains some of that, the place of victims—the victims, for example, have a much broader access to the ICT than they did to the ad hoc tribunal. The end result was a much greater level of protection. But that’s within the statute. But apart from that, the regulations that we are in the process of drafting are very much based on—or in the course of preparing those regulations we look at the tribunals which were pioneered, and of course demonstrated that international justice could function, but where they have been delayed. And we try to see could we develop procedures that would reduce those delays, that would make the whole process more efficient. And we have found some ways. Those regulations are not ready yet. We have found certainly some proposals. But we have also run into some situations where something, a proposal clearly would be in the interest of efficiency, but might be detrimental to the rights of the accused. And in cases like that we have stopped, and we are continuing the matter further, because between efficiency and due process, due process must win.
Audience: Mark Feldman, Washington, D.C. I would like to follow-up on Mr. Hiatt’s last question, with a slightly different spin. The question of—let me first challenge the assumption that there’s an international consensus that state actions involving disproportionate use of force, for example, or excessive collateral damage to civilians, necessarily war crimes for which individuals are culpable. And let me put that as a question to you: Is it your view that—because you said that there was consensus on war crimes—that every time the state makes a mistake in international law that that is a war crime within the jurisdiction of the tribunal for which an individual can be held responsible? And to put it in broader legal political terms, there are many of us here who think that that type of decision belongs to states, and not to international civil servants, who are not responsible for international peace and security. So how—you mentioned ways in which the court in the future can give comfort or encouragement to other states not parties to join, but you didn’t address this issue. And I don’t know how the court, if you have any thoughts on how the court may ever be able to overcome what I consider a fundamental conceptual problem in its charter.
MR. KIRSCH: Well, there are two questions, or maybe more, in your question, but I guess I got two. One is what I said that the list of crimes has been generally accepted by all states. That is a fact. An error in military operations is absolutely not always a war crime. An error is an error. It’s not a crime—it may be an unfortunate error, but it is not a crime. And then it would normally be up to the state concerned, if there are litigations of those things, to file judgment on that.
On the second part of your question—first of all, judges are not international civil servants. They are judges. And that is a very different—it’s a very, very important distinction, because I hear arguments sometimes, how can you say that your court would be non-political? Look at the Commission of Human Rights. Well, sorry, but this is not the same thing. We are in a judiciary which is very, very tightly regulated, and the judges that I know, the 17 judges that I know, let alone present company, I have noticed over the months are absolutely not interested in political elements or political influence over the process. The only thing that they are interested in is administering justice over individuals fairly.
Now, getting back to your point,there are some qualifications in the statute that allow the court, or sometimes obliges the court, to take into account the context in which crimes may have been committed. One is the prosecutor is not obliged to undertake prosecutions if he thinks that to do so would not be the in the interests of justice. The second is that the Security Council is entitled to request the court, if it has adopted a resolution under Chapter 7 of the Charter, to extend the proceedings if the court is about to or has undertaken proceedings for 12 months renewable. So you have that political control that exists over the court.
Then you have of course the specter of a rogue prosecutor. The rogue prosecutor is in fact a prosecutor whose actions are very tightly controlled by the pre-trial chamber and by the statutes. If a prosecutor begins to do things for political reasons, he would be in violation of his own obligations under the statutes. In that case he might get that it is a virtue of certainty that an assembly of state parties would remove him from his position, as the assembly of state parties has the ability to remove judges if they go away from their duty.
Audience: But they are meeting once a year, is that right?
MR. KIRSCH: As I have said, they are meeting—well, they could be more often. They met two or three times a year the first couple of years. Now, in principle it is once a year, but of course they can meet if there a reasons for them meeting.
Audience: Hi, Jeff Pryce, Steptoe & Johnson. Philippe, I wonder if you could talk about the geographic distribution of the participation in the court and what implications that has on it, particularly about two thirds of the judges are from Europe or the Western Hemisphere, and relatively light participation from either Asian or Arab countries. And what effect do you think that has on universality and just on the jurisprudence of the court?
MR. KIRSCH: Another multiple question. First of all, geographical participation of the court. You have of course all Western Europe, and Canada, Australia and New Zealand. You have a number of countries of Eastern Europe. You have between 20 and 25 African states. You have all South American states except Chile, some Central American states that I don’t remember exactly. And then you have a smaller participation in Asia. You do have some. You have South Korea, for example, participating, and so, interestingly, is Cambodia.
Now, the broader issue, whether this is a Western creature, I think is a perception that is not founded in fact for a very simple reason. Western states were guided toward the ICC by a combination of humanitarian values and a desire to create an instrument that could help maintain some stability in regions that are affected by crime. But you have a number of other states, particularly in Africa and Latin America which saw the ICC and supported the ICC, because they saw in it over time a protection against crimes that they knew only too well. African states know more than any other states with a few exceptions how devastating consequences the mass commission of crimes can have on the state. So one of the reasons why the ICC statute was adopted was massive support from African states. I think, as I recall, with the exception of the Arab states, which were not supporting the statute, having only south Sahara states did not support at the time the statute.
Now, in terms of judges, I would—I guess I should know those numbers by heart—I don’t. But let me start with the simple thing. There are three Asian judges. There are three African judges. There are three judges coming from Latin America and the Caribbean. You have one Eastern European judge and the rest I guess comes from Western Europe, but there is also one North American judge. And just as an additional comment, seven of the judges are women.
Audience: Edwin Williamson from Sullivan and Cromwell. Two questions following up on questions that have been asked earlier. And on the—I know you’ve sort of protected yourself against this hypothetical—the answering of hypothetical questions, but first in your—you talked about how you would apply complementarity in the example that the moderator gave you. You seem to take some comfort from the fact that the state party would be whose citizens would be defendants there were party—the state was a state party to the treaty. Would you make a distinction between a state that was a state party and not a state party in deciding whether or not to defer to it?
I really do think that you ought to venture forth into this, I think the Guantanamo Bay case is a very good example, and I think it is something that I think anyone in the U.S. needs some assurance on. I mean, suppose Castro consented to jurisdiction in respect of Guantanamo, and say the base commander was picked up in Spain by body guards or gendarmes and turned over to the ICC. The U.S. is not going to investigate further its decisions as to whether or not its actions are in compliance with the rules. So I think there will be no further investigation.
I think we need some answer as to how the court would deal with that case. I mean, if this is going to be a permanent second-guessing of strategic military decisions, I think we have some very great concerns.
The second question I have is on your geographical distribution. In fact, eight of 18 judges are from members of the European Union—or Canada—countries who will be joining. And giving that the European Union has undertaken to speak with confidence in this area—whether or not it is accepted by the member countries is another question—isn’t there something wrong with eight judges in effect being from one country, where most decisions are being—or lots of decisions, particularly the election of the president, for example, are made by majority vote?
MR. KIRSCH: Woof, this is a long question.
MR. KIRSCH: Your first question is simple. The principal complementarity does not apply only to state parties, but also to non-state parties, because the principle that the states are responsible applies to all states, not only to state parties.
Now, I understand the interest in Guantanamo, but as a judge, and you do know that as the formal legal advisor I cannot speak on specific situations. I cannot now make a statement in any direction and then be told in two years, You, judge, have prejudice your position, because you have made a statement which already reflected a prejudice on a particular situation.
With respect to the composition of the assembly of state parties and the judges, well you know a requirement to be a judge is to be a state party. So there were some limits or some rules about the geographical distribution of judges, and then, as you may know, there were 33 ballots, successive ballots, which was a long, long process. And the result of the vote was indeed the geographical distribution. But I think we would all welcome more diversity in the nationality or continental origin of judges, and that only depends on states becoming state parties.
Audience: Herbert Levin. I was following the opposition to U.S. participation in the court over the years, and I wonder if you could comment on some of those opposition arguments where they are not ruled out by the rules you laid down for your replies. One is that the experience in The Hague is that justices come out of foreign countries, out of foreign governments, and they return, and many of them don’t come out of independent judicial systems, and they will take instructions from the governments to which they’ll return. And therefore we can have little confidence in their treatment of Americans, because they will response to their national government’s policies, and that—if you look at justices in Spain and Belgium, they’re quite erratic in what their judgments were in treatment of people from other countries.
And perhaps the most important one—and I don’t think this was ruled out by your caveats—there was never any support under either the Clinton administration or the Bush administration to bring this treaty up in the U.S. Senate. Senators from both parties—(audio break)—Senate. It would be giving up jury trial and a whole lot of other things that are guaranteed to Americans in the Constitution. And I wonder whether you see the U.S. Senate changing its mind. This is not policy. This is a question of the attitudes; in other words, what arguments are there that this is really not a statute which could possibly be passed by the U.S Senate in the control of either policy, because it violates the U.S. Constitution?
MR. KIRSCH: That was the question? On the—first of all, I have learned that it is not a good idea to speak on behalf of the U.S. government, nor the U.S. Congress. I think I would be very happy to let the Americans decide on American issues. Your point about the U.S. Constitution is something that has been debated. Not everyone is of that view, but this is the kind of thing that I am not entitled to comment on.
I of course cannot but strongly disagree with your point that judges are political, because that is essentially what you are saying. I have met all the judges, and it is my intimate conviction that none of those judges are political. Again, there has to be a distinction made between a criminal court which is supposed to deal in a judicial way with criminal issues and a variety of other organs and bodies that have no connection with the criminal court and where things may have happened, including unfortunate things.
But my conviction is that this politicization is never going to happen in the International Criminal Court, because after all if I felt differently I would not have left the Canadian government, where I was very happy, thank you very much, and join the political court. Thank you, I was not interested in that. I do believe that this court will necessarily observe due process.
The observation—I think that I would—I realize I am not addressing everything, but I am sorry I cannot address everything.
Audience: Let me push you on that one a little bit. I think we all accept that you will be independent and you are asking us to take your word that this will be true forever.
MR. KIRSCH: No, no, I’ll stop you there. Look at the statute and look at the rules and look at all the constraints that exist over the operation of the court. If that were not there, I would not speak with any confidence. I am speaking with confidence because I know all those constraints and the effect of those constraints. I do not expect you to take what I say exactly.
Audience: But my question is in a democracy ultimately even though we want an independent, we have an independent judiciary and prosecutors that are more or less independent, there is democratic control over the rogue prosecutor, in one way or the other. And you can have the best rules, but if the people of the United States decide that Ashcroft has gone too far, they can vote for a different president. Ultimately, is there not something less democratic about having this permanent procurate above? What is the recourse if 10 years from now these great procedures are not being followed?
MR. KIRSCH: If those great procedures are not being followed, it means that the statute is being violated. You have an institution which has an infinite number of safeguards. The prosecutor, if he or she in the future did not behave properly would, I am quite convinced, be removed by the assembly of state parties which have control over the court, and within the court the presidency of course, the judges, would have some capacity to act also. This is not an uncontrolled court. This is a court which is controlled in a variety of ways. An international tribunal can by definition not respond to a particular state. It has to have its own mechanisms that ensure that it does its job. In my judgment, those mechanisms and controls do exist, and will be effective.
Audience: Hi, my name is Maggie Gardner. I am with Citizens for Global Solutions, and I’m also the coordinator of the Washington working group on the ICC. I have two very quick questions, I think. One is one comment I get a lot from the public when I talk to American citizens about the court is, Well, aren’t the ad hocs doing that? Aren’t the ad hocs enough? And there’s a lot of different ways to respond to that. But earlier you mentioned the question of efficiency, and I was wondering if you—I don’t know if you know these numbers, but once the ICC is fully operable, could you make a guess or a rough estimate at how the budget of the ICC would compare to that of the ICTY or the ICTR, or maybe the cost of the ICTY, ICTR over their full extent, their tenure, versus how much it’s going to cost the world to run the ICC?
My second question is for a state that has signed the Rome statute, but has decided not to ratify it, and probably is not going to ratify it for a while, if that country decided to take advantage of the observer status of some lease state parties and so on, what kind of benefits come with that rule? And t his is—you know, I’m asking this hypothetically, but this does have obviously a real application. What sorts of—I don’t want to use the word “influences”—but what role could that country play? What benefits come with that position? What would that country be able to be involved in short of fully ratifying the Rome statute?
MR. KIRSCH: With the position of observer, you say?
MR. KIRSCH: Okay, well, on the question of the budget, the first budget of the ICC as it did itself was about I would say $30 million. The budget of this year, we are interested to continue to be billed, must be about $60 million, and that should not decrease, or it should diminish in terms of establishment. It would increase in terms of the cases coming in, but that of course is something that isn’t predictable.
Now, it is not the international community as a whole that pays for this; it is the state parties that pay for it, and that of course restricts the scope of that.
Now, of the assembly of state parties have observers—all states can be observers on the assembly of state parties, and given the fact that I think everyone is interested in having the ICC as ultimately a universal court—it will take time, but that is the objective, an observer has a lot of influence, because it would be really counterproductive on the part of state parties now to rush ahead with what they want and not take into account what observers are saying. The idea would be to construct a system that is open to all states, and therefore all positions should be taken into account.
MR. HIATT: Mr. Secretary?
Audience: Robert McNamara. My question deals with a statement that the definition of war crimes is universally accepted. I’m not aware of that, and I’m not aware of a clear statement anywhere of what a war crime is. I may be totally wrong—I’d like to be corrected. But I spent three years in World War II as an officer, in association with actions that I suspect will be treated today as war crimes. I spent seven years as secretary, and some would allege that during that seven years the leaders of the country, the military leaders or I, committed war crimes. So my question is—and I want to precede it by two comments—my question is: Where do I find in writing the clear definition, universally accepted, of war crimes?
I want to precede it by saying that I am strongly in favor of the U.S. supporting the court. I don’t agree that it’s clear Clinton would not have submitted the treaty to the Senate. He didn’t sign the treaty until one hour before the deadline. In fact he never had time to submit it. That signature has since been removed.
Second point: it’s not clear to me that the Senate couldn’t be prevailed upon to support it. I have not seen a clear statement of why we are opposed. As secretary I understand most of the opposition comes from the Defense Department, for some considerable reason. But I haven’t seen a clear statements what the arguments are against it, and a refutation of that. Before we say the Senate wouldn’t approve it, we first have to have a debate on it, I believe. But where would I find in writing a universally accepted definition of “war crimes”?
MR. KIRSCH: My statement was limited to the fact that the war crimes of course include a number of specific crimes, which are listed in the ICC statute. They contain two types of crimes for international conflict and two types of crimes for internal conflict. It’s a long list of crimes. That list has been accepted by all parties, all states participating in the conference, and particularly in the preparatory commission, because it is there that the details of those crimes was elaborated, in the document which is separate, which is called “Elements of Crimes.” In that process, the United States delegation, which was led by David Scheffer, who I see here today, was extremely active. And indeed officials from the Defense Department played a determining role in developing that list of crimes and agreeing on that. David, if you have anything to add to that, feel free. I would be happy for someone else to answer some questions. But this is what I meant, those two in terms of lists of crimes, and the separate document on elements of crimes.
Audience: But what were the lists of crimes specific enough that so that a civilian leader in the defense department or a military leader could be guided by it?
MR. SCHEFFER: I would say absolutely yes. Our whole focus is to ensure that we could tell those crimes with crimes under customary international law, which would mean acceptable on a universal basis. You’ll always have a few dissenters in the international community, but the whole objective was to meet that standard when we set that forth.
MR. HIATT: Maybe one more question.
Audience: My name is Andre Sitov. I’m with the Russian News Agency Tass. I have a question about your current visit to Washington. What was the purpose of the visit, what you have been able to accomplish, what you hope to accomplish after that? (Laughter.) And how does that compare to your purposes to heading to Moscow next month? (Laughter.)
MR. KIRSCH: My visit to Washington is the most important one, because it is you. This is the fifth city I have done in nine days, which has been an interesting process. I have been invited by various organizations to give talks in Los Angeles, San Francisco, Seattle, Chicago and here, and I’ve always in that process met with editorial boards, for example, and participate in radio shows. The purpose of this, as I said earlier, is not to promote the court, but when we are invited to something to explain what the court is, to do it, so that we don’t expect—the ICC’s success will not be instant coffee. It will take a while. But at least we need a degree of understanding and knowledge of the statute, of the court, of the composition, of its objectives. And that is the best way, it seems to us at this point, to at least enhance the chance that one day the court will be able to fulfill its role.
As for the Moscow part, it is essentially the same kind of invitation, but my understanding is I also might—I am being invited to meet with officials in the course of that.
MR. HIATT: I’m going to take the privilege of last question, if I might. One of the questions sometimes raised is whether there’s a clash between justice and peace, or the politics of peace. You know, could the international community have gotten Charles Taylor out of Liberia if the only option was straight The Hague? Without talking about hypotheticals—I understand the Security Council can vote to delay something by a year. But on the larger questions, do you think that there is—is that a real tension, or does justice always serve the interests of peace? Is there a possibility that you may get in the way of diplomacy at some point?
MR. KIRSCH: That is a very serious question that is related to the question Mr. Feldman (ph) raised earlier. I don’t think there’s an absolute answer to that. I think 15 years ago the assumption would have been that justice would be in the way of peace settlements in all cases. Now you have seen situations where clearly that is not the case. The Yugoslav situation has gone the other way around, and of course you have a contrary argument in the case of Sierra Leone, where they decided they wanted peace at all costs, and they gave amnesty. The result of that was a re-coalescence of conflict and the commission of crimes. I really think it is a question that can only be answered on the basis of specific situations. I don’t think there is an absolute answer. It is possible that in some cases the insistence of delivering justice immediately would be in the way of a peace settlement, and in that case there are tools to prevent that from happening.
MR. HIATT: Well, thank you very much. This has been extremely useful. (Applause.)
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