ovember h.e. mr. anders lindén, - icc - cpi asp 2-eng.qxp: ... ra’ad zeid al-hussein (jordan) and...

Maanweg 174, 2516 AB The Hague, The Netherlands – Maanweg 174, 2516 AB La Haye, Pays-Bas

Telephone – Téléphone +31(0)70 515 98 06 / Facsimile – Télécopie +31(0)70 515 83 76

www.icc-cpi.int/menus/ASP/ 11

ICC-A

SP-NL-02.b/09-En

Assemblyof States

Parties

Assembléedes États

Parties

Visit by the President of Chile and two new States Parties

On 26 May, the President of Chile, H.E. Michelle Bachelet, visitedthe Court, accompanied by a delegation of parliamentarians fromboth the governing coalition and the opposition, as well as withthe President of the United Nations Committee against Torture,Mr. Claudio Grossman, and the President of the Inter-AmericanCourt of Human Rights, Ms. Cecilia Medina.

President Bachelet affirmed that the ideal situation would be if nocase at all existed to be taken to trial at the Court, as a token of itseffectiveness and the reach of its discouraging effect.

A few weeks later, Chile deposited its instrument of ratificationwith the Secretary-General of the United Nations.

In July, the Czech Republic also deposited its instrument ofratification, thus bringing the number of States Parties to 110.

continued on page 15

ASP Special E

dition

#2

Visit by the President of Chile

From left: Mr. Luis Moreno-Ocampo, Prosecutor,

President Michelle Bachelet and Judge Sang-Hyun Song, President of the Court

NNeewwsslleetttteerr

NNoovveemm

bbeerr 22000099

Deposit of the instrument of ratification of theCzech Republic at the United Nations

From left: H.E. Mr. Christian Wenaweser,

President of the Assembly of States Parties, H.E. Mr. Martin Palouš,

Permanent Representative of the Czech Republic to the United Nations,

H.E. Mr. Anders Lindén, Permanent Representative of Sweden

to the United Nations, Mr. Bill Pace, Convenor of the CICC, and

Ms. Annebeth Rosenboom, Head of the United Nations Treaty Section.

© UN Photo

The 110 States Parties tothe Rome Statute

Newsletter ASP 2-ENG.qxp:Newsletter E.qxd 12/17/09 5:36 PM

222

Review Conference agenda / Proposed amendments to the Rome Statute

22

BBuurreeaauu ooff tthhee AAsssseemmbbllyy

Factsheet 2009: Number of meetings

Bureau 18

Hague Working Group 27

New York Working Group 9

Oversight Committee 20

Proposed amendments to the Rome Statute

Belgium

Amendment n°1: add in the list of the article 8, paragraph2, e) the use of three sorts of weapons (poison andempoisoned weapons, asphyxiating, poison or othergases and all analogous liquids, materials or devices andbullets which expand or flatten easily in the human body)

Amendments n°2 and 3: add directly to the list of warcrimes in situations of international armed conflict and insituations of non international armed conflict the use ofbiological and chemical weapons, anti-personnel minesand some weapons falling under the Convention oncertain conventional weapons

Mexico

Amend article 8, paragraph 2 (b), to include the use orthreat of use of nuclear weapons as a war crime

Netherlands

Amend article 5 to include of the crime of terrorism

Norway

Amend article 103, paragraph 1, to establish a mechanismfor a possible role for an international or regionalorganization in the enforcement of sentences

Trinidad and Tobago and Belize

Amend article 5 to include the crime of international drugtrafficking

As at 30 September 2009, the following proposals were submitted for consideration by States Parties.

Review Conference agenda

At the Review Conference of the RomeStatute, scheduled to begin on 31 May2010, States would consider somemandatory issues and recommendationsarising from the Rome Statute and theFinal Act of the 1998 Rome DiplomaticConference:

– Review of article 124 of the Statute; – Crime of aggression (article 5, paragraph 2, of the Statute;resolution F of the Final Act);

In accordance with resolution E of theFinal Act, the Conference would alsoconsider the crimes of terrorism and drugcrimes.

Furthermore, the Conference wouldconsider other potential amendments tothe Rome Statute, as well as undertake astocktaking of international criminaljustice.

The Hague Working Group

Report on the independent oversightmechanism (ICC-ASP/8/2/Add.3);Report on options for replenishing theContingency Fund and Working CapitalFund (ICC-ASP/8/37);Report on legal aid for victims’ legalrepresentation (ICC-ASP/8/38);Report on Legal Aid (Defence): AlternateMethods for the Assessment of Indigence(ICC-ASP/8/39); Report on family visits for detainees(ICC-ASP/8/42).Report on cooperation (ICC-ASP/8/44);andReport on the strategic planning processof the International Criminal Court(ICC-ASP/8/46).

The New York Working Group

Report on the arrears of States Parties(ICC-ASP/8/41);Report on the Review Conference (ICC-ASP/8/43 and Add.1);Report on equitable geographicalrepresentation and gender balance in therecruitment of staff (ICC-ASP/8/47)

The Bureau also conveyed the Report of theOversight Committee on the permanentpremises (ICC-ASP/8/34 and Add.1).

Bureau of the Assembly

From left: Mr. Marcelo Böhlke (Brazil), facilitator for the Review Conference, H.E. Mr. Christian Wenaweser, President of the Assembly,

and Mr. Renan Villacis, Director of the Secretariat of the Assembly at the 12 October meeting of the New York Working Group

The Bureau submitted for consideration by the Assembly the following reports preparedby its two Working Groups.


33

IInntteerr--sseessssiioonnaall mmeeeettiinngg oonn tthhee CCrriimmee ooff AAggggrreessssiioonn

An informal inter-sessional meeting on theCrime of Aggression was hosted by theLiechtenstein Institute on Self-Determination,Woodrow Wilson School, PrincetonUniversity, at the Princeton Club in NewYork, from 8 to 10 June 2009.

The meeting, chaired by H.R.H. Prince ZeidRa’ad Zeid Al-Hussein (Jordan) and open toall States and representatives of civil society,focused on the elements of the crime ofaggression and on the conditions for theexercise of jurisdiction.

EElleemmeennttss ooff ccrriimmeess

The non-paper on the elements of crimes hadbeen prepared on the basis of the proposalsfor a provision on aggression, elaborated bythe Special Working Group on the Crime ofAggression in February 2009.

The purpose of the Elements is to assist theCourt in the interpretation and application ofthe definitions of the crimes contained in theRome Statute. The existing Elements, adoptedin September 2002, relate to article 6, 7, and 8of the Statute, and would thus be amended toalso include the elements of the crime ofaggression.

The proposed draft elements, which aresubject to further consideration by theAssembly, adhere to the logic of article 30 ofthe Rome Statute by listing the material andmental elements the Prosecutor would haveto prove in any given case. The materialelements can be categorized as conduct,consequence or circumstance and arefollowed by the corresponding mentalelement of intent or knowledge.

CCoonnddiittiioonnss ffoorr tthhee eexxeerrcciissee ooff jjuurriissddiiccttiioonn

The non-paper on the conditions for theexercise of jurisdiction focused onoutstanding issues, in particular draft article15 bis, paragraph 4, of the proposals for aprovision on aggression, which deal with thepossible roles of the United Nations SecurityCouncil, the Pre-Trial Chamber of the Court,the United Nations General Assembly or theInternational Court of Justice in triggering thejurisdiction of the Court. The issue of the

entry into force procedure (article 121,paragraph 4 or 5) is directly linked to thisquestion.

The Chairman noted that the non-paper wasbased on the following underlyingassumptions, which derived from the pastwork of the Group:

– All three existing trigger mechanismswould apply to the crime of aggression;

– In the case of a Security Council referral,the Court could exercise jurisdiction overthe crime of aggression irrespective of theconsent of the State concerned; and

– In case of a State referral or proprio motuinvestigation, the territoriality ornationality requirement of article 12,paragraph 2, of the Statute would apply.

33

From left: Mr. Wolfgang Danspeckgruber, Director of the Liechtenstein Institute on Self-Determination, H.E. Mr. Christian Wenaweser, President of the Assembly, H.R.H. Prince Zeid Ra'ad Zeid Al-Hussein, Chairperson, and Mr.

Renan Villacis, Director of the Secretariat of the Assembly

Inter-sessional meeting on the Crime of Aggression

Seminar on International CriminalJustice

On 19 May 2009, the New York WorkingGroup of the Bureau held a seminarentitled “International Criminal Justice:The Role of the International CriminalCourt”. The event was organized by thePermanent Mission of Slovenia to theUnited Nations and co-sponsored by thePermanent Missions of Guatemala,Japan, Kenya, New Zealand andTrinidad and Tobago. The seminar wasaimed at engaging stakeholderorganizations in a dialogue on thevarious aspects of international criminaljustice by assessing its current stage,with a particular focus on the role, themandate and the functioning of theCourt. As envisioned by Mr. MarkoRakovec (Slovenia), the facilitator for thePlan of action of the Assembly, thisevent would constitute the first in aseries of such seminars which could beorganized in different regions and onvarious topics related to achievinguniversality and full implementation ofthe Rome Statute.

Seminar on InternationalCriminal Justice

SASP Publications *Seminar on International CriminalJustice : The Role of the InternationalCriminal Court

19 May 2009United Nations Headquarters

A�� !" S#$#�� P$%#&��#! #'� R!�� S#$#(#� !" #'� I)#�%)$#&!)$� C%&�&)$� C!(%#

S��&)$% !) I)#�%)$#&!)$� C%&�&)$� J(�#&��:T'� R!�� !" #'� I)#�%)$#&!)$� C%&�&)$� C!(%#

* Arabic, English, French and Spanish


44

Committee on Budget and Finance

Committee on Budget and Finance

At its thirteenth session the Committee on Budget and Finance (the“Committee”) considered, inter alia, the Court’s proposed budgetfor 2010, the establishment of the independent oversightmechanism, legal aid for defence and for victims’ legalrepresentation, possible funding by the Court for family visits ofindigent detainees, the level and replenishment of the contingencyfund (currently at €10 million), as well as the establishment of aliaison office in Addis Ababa. The Committee’s recommendations,contained in document ICC-ASP/8/15 and its addendum, if adoptedby the Assembly would result in savings of approximately €298,000or a 0.3 per cent reduction of the budget proposal submitted by theCourt.

0 17500 35000 52500 70000

0 17500 35000 52500 70000

MP- I

MP- II

MP- III

MP- IV

MP- VI

MP- VII

Expenditure 2008 Approved budget 2009Proposed budget 2010 CBF Proposal 2010

Budget by Major ProgrammeUnit = 1,000 euro

Unit = 1,000 euro0 27500 55000 82500 110000

Unit = 1,000 euro0 27500 55000 82500 110000

CBF proposed budget 2010 €102,682

ASP approved budget 2009 €101,230

ICC expenditure total 2008 € 83,712

ICC proposed budget 2010 €102,980

Total programme budget

Major Programmes Expenditure 2008 ASP approved 2009 ICC proposed 2010 CBF proposed 2010

MP- I - Judiciary 9,573.9 10,332.1 10,501.1 10,462.7

MP- II - Office of the Prosecutor 21,263.9 25,528.9 27,087.6 26,828.3

MP- III - Registry 48,804.6 60,222.7 60,222.6 59,467.8

MP- IV - Secretariat of the ASP 3,006.7 3,342.8 3,150.2 4,121.1

MP- VI - Secretariat of the TFV 979.1 1,301.4 1,432.3 1,217.5

MP- VII - PO Permanent Premises 83.8 502.0 586.3 584.2

TOTAL 83,712.0 101,229.9 102,980.1 102,681.6

(Unit = 1,000 euro)

Note : This table does not include:- Oversight mechanism ( € 393.6) - Working capital fund ( € 7,406.0)

MP-IV - CBF proposed 2010includes:- Review Conference budget

( € 1,100.0)

CBF members

From left : Mr. David Banyanka (Burundi)Mr. Juhani Lemmik (Estonia)Mr. Fawzi Gharaibeh (Jordan) Mr. Gilles Finkelstein (France) Ms. Carolina María Fernández Opazo (Mexico) Ms. Elena Sopková (Slovakia) Mr. Shinichi Iida (Japan) Mr. Santiago Wins (Uruguay)Mr. Masud Husain (Canada) Ms. Rossette Nyirinkindi Katungye (Uganda)Mr. Ugo Sessi (Italy) and Mr. Gerd Saupe (Germany)

Factsheet 2009: Contributions to budget byStates Parties as at 1 November 2009

63%

37%37%

Fully paid contributionsOutstanding contributions

98%

2%

Amount paidAmount outstanding

69 States€ 94,569,094

€ 2,000,216

41

States


5555

Interview with Vice-President Zachary D. Muburi-Muita

Interview with Vice-President Zachary D. Muburi-Muita

Ambassador Zachary D. Muburi-Muita. Vice-President of the Assembly of States Parties,Coordinator of the New York Working Group ofthe Bureau and Permanent Representative ofKenya to the United Nations.

You were designated Vice-President of the Assembly inNovember 2008. Has this responsibility changed yourperspective of the role to be played by the Assembly?

Yes indeed. My perspective of the role tobe played by the Assembly of States Parties to theRome Statute as originally seen from an outsider’slens is not as it is now. Speaking from the inside, theAssembly has a much bigger role to play nowconsidering that the Court is fully operational.

Does the fact that you were also Ambassador to TheNetherlands a few years ago have a bearing in yourcurrent functions at the United Nations, particularly asregards the role played by international law?

The Hague is the legal capital of theworld. It was a good experience for me, especiallywith regard to legal issues and it awakened myinterest in legal matters, therefore when theopportunity arose it was a welcome development,and I was happy to play a role, no matter howsmall, to advance international criminal justice.

What do you see as the most crucial issues facing theCourt at the moment?

The Court has come a long way from itsinception to date. It is doing its work well. It hasentered the most important phase of its evolutionand it should be supported with all the resourcesand cooperation of States. It is unfortunate thatthere has been misunderstanding of the Courtfrom certain quarters that it is targeting certainregions. This is not really the case and themisperception is unfounded. The good news isthat States continue to have faith in the Court. It isa permanent court and States are encouraged tocooperate with it. Chile just became a State Party. Iencourage States to domesticate the Rome Statuteto reduce the burden on the Court and empower itto rid the world of impunity.

African States have made an important contribution tothe development of the Rome Statute. How would youencourage States from the region who are hesitant tobecome States Parties?

You are right. Africa is not in oppositionto the rule of law and in fact African States arestrong supporters of the rule of law and non-States parties joining the Statute will merelyproject this positive image. The Court followsestablished legal norms as we know in ournational jurisdictions. It is only complementary,which means that its jurisdiction is invoked onlywhen national courts are unable or for somereason, unwilling to prosecute crimes that fallunder its jurisdiction.

There are clear misperceptions in certain areas of theinternational community regarding the Court and thereare even rumours of possible withdrawals from the RomeStatute by certain African States in response to theCourt’s issuance of an arrest warrant for a sitting Headof State. As Vice-President, have you been able to allaysome of these concerns?

Most of what you hear is propagandaand is blown out of proportion by the media. Theissue of the arrest warrant of an African Head ofState has mostly been blown out of proportion.The three situations before the Court are self-referrals by the States concerned. The fourth casewas referred to the Court by the United NationsSecurity Council in accordance with the UnitedNations Charter and the Rome Statute. There isnothing arbitrary in this connection. No State wasforced to bring matters before the Court.

African States understand these issues, they knowthe law and abide by it. Many countries in Africaare taking measures to cooperate with the Courtin various ways. So many things are happening inAfrica regarding the Court. The obligations ofStates under the Statute are essentially individual.States did not take a collective decision to join theCourt, and as to how to discharge theirobligations, this is an individual decision.

As Coordinator of the New York Working Group of theBureau, what are your plans for the following 12 months?

a) To continue galvanizing support for the Court;b) To pursue and achieve the establishment of an

ICC-AU liaison office to strengthenunderstanding and cooperation between thetwo institutions. This is very important tonarrow the perception gap about the activitiesof the Court; and

c) To coordinate with the President, my co-Vice-President, and the Bureau to organize well forthe forthcoming Review Conference.

What are the most rewarding and the most challengingaspects of your role?

My role as Vice-President of theAssembly is humbling in the sense that I have beengiven the opportunity to be part of the process offighting impunity worldwide and strengtheningthe rule of law across the globe. This role is also achallenge because it is a big shoe and requiresconstant effort to sustain the momentum, in viewof the continued growth of the Court and the need

for constant organization hand-in-hand with thePresident of the Assembly and the Bureau to takedecisions to promote the objectives of the Court.

Would you like to share some thoughts on the progressmade in the New York Working Group regarding thepreparations for the Review Conference?

Article 5 of the Statute has alreadyincluded the crime of aggression in the Statuteand what remains is the definition of the crimeand the conditions for the exercise of jurisdiction.

The Special Working Group on the Crime ofAggression, chaired by the President of theAssembly, ended its mandate in February 2009. InJune, an inter-sessional meeting was convened tocontinue the work in this respect, under thechairmanship of Prince Zeid of Jordan, who wouldnow chair the negotiations on the crime ofaggression. Further progress was made and it isbecoming clearer and clearer that the crime ofaggression will be defined and will be included inthe Statute, which will increase the work of theCourt, as I have been saying.

Some States Parties have also made proposals forrevision of the Statute and, in some cases,additions to the Statute. These are being taken upin the New York Working Group under thefacilitation of two Bureau members, Mr. MarceloBöhlke (Brazil) and Ms. Angela Nworgu(Nigeria). The proposals will be considered at theeighth session of the Assembly in The Hague inNovember 2009. Depending on the decision of theAssembly, the proposals might be adopted at theReview Conference in Uganda in 2010.

As the Permanent Representative of Kenya, you have theopportunity to interact with numerous colleagues,including those on the Security Council. How have youbeen able to bring to bear your influence, especially in thecurrent political circumstances facing the Court?

This is not a very easy question, but Iwill try to say something. I do interact withmembers of the United Nations Security Councilon several fronts. I am also aware that some of thechallenges facing the Court may have a bearing tothe Council in one way or another. Such mattersare solely within purview of the Council todecide, no matter the amount of pressure thatmay be exerted. My desire however is to see theCourt not being dragged into politics.

What are your expectations for the Court in the comingyears?

I will be happy in future to sit back andwatch how the Court would have contributed toefforts towards transforming the world into a morejust and peaceful environment where human rightsand the rule of law are upheld. I expect thedeterrent effect of the permanent InternationalCriminal Court set up by the internationalcommunity to put an end to impunity.


Interview with the Head of the New York Liaison Office, Ms. Karen Mosoti

It entails providing support to all the organs of theCourt including the ASP and hence requiresconstant liaison with these organs. In addition, theoffice has to establish and maintain links with theUN Secretariat, its agencies, intergovernmentalorganizations and NGOs accredited to the UN; aswell as with Permanent Missions to the UN. Theoffice has only two staff members- the Head of theoffice and an administrative assistant. While theadministrative assistant provides invaluablesupport on administrative and logistical matters, allthe substantive issues including direct contacts withinterlocutors have to be covered by the Head of theoffice. The multiplicity of meetings and reports inthe different organs of the UN, and the largenumber of Missions and organizations accredited tothe UN makes it a Herculean task for the Head ofthe office to monitor all relevant developments andreport to the Court, while at the same time respond,in a timely manner, to all requests from the variousorgans of the Court and service the Bureau and itsNYWG.

In addition to the administrative challenges, thepolitical environment at the UN is verychallenging. In recent times, the debate on peaceand justice has brought to fore a school of thoughtthat is very critical of the role of the Court,especially in situations where peace negotiationsare underway as in the case of Uganda andDarfur. Some of the criticism is based onmisperceptions, while some of it is deliberatelyintended to mislead (take for instance the publicassertions that the Court is only targeting Africa).Faced with this political atmosphere, the officehas to constantly reach out and explain tointerlocutors the role of the Court as anindependent and impartial judicial institution;and dispel some of the myths about the Court.

Has your previous experience as a Kenyan delegate tothe United Nations facilitated your task?

Definitely yes. Before joining the ICC, Iserved as legal adviser to the Kenyan Mission to theUN in New York for four years. This experience hasproved extremely useful in my work at the liaisonoffice as it gave me an excellent understanding ofthe UN system and its working methods.Moreover, it enabled me to build a network ofcontacts both within the UN Secretariat andamongst Government delegates, whom I often relyon in carrying out my current responsibilities.

Although the office reports directly to the Presidency ofthe Court, it also supports the Office of the Prosecutor,the Registry and the Assembly of States Parties’ Bureauand the New York Working Group. On an annual basis,what percentage of time does the office allocate amongthese users?

Are you trying to get me to playfavourites?... I will not fall into that trap!

In accordance with the resolution establishing theoffice, administratively the office falls under thePresidency, but it serves all the organs of theCourt and the Secretariat of the Assembly. Onsubstantive matters the office takes instructionsfrom and reports directly to the instructing organor the ASP, as the case may be, while taking

66666

Can you give us an overview of the work of the officeand its achievements?

The New York Liaison Office (NYLO)was established by the Assembly of States Partiesat its fourth session, on the basis of an optionpaper prepared by the Bureau of the Assembly.The office started operations in September 2006and I was appointed to head the office in October2007.

The New York Liaison Office was established toprovide support to the Court’s investigations, fieldoperations and general functions throughfacilitating interaction between the Court and theSecretariat of the Assembly of States Parties on theone hand and the United Nations and its agencieson the other. It was also intended to assist in thesuccessful implementation of the 2004 RelationshipAgreement between the International CriminalCourt and the United Nations and to ensure therequisite operational cooperation between the twoinstitutions.

In practical terms the activities of the officeinclude but are not limited to: Facilitating theexchange of information between the Court andthe UN Secretariat by relaying relevantinformation from the UN to the Court and vice-versa; promoting awareness of the Court to non-States parties through informal interactions withrepresentatives from Permanent Missions ofthose States; providing practical administrative,logistical and operational support for theactivities of the Court by organizing andfacilitating visits and meetings between Courtofficials and UN officials and representativesfrom Permanent Missions in New York;providing logistical support and servicingmeetings of the ASP and its subsidiary bodiesbased in New York – the Bureau and the NewYork Working Group; monitoring discussions atrelevant UN meetings including the SecurityCouncil, the various Committees of the GeneralAssembly, as well as other informal meetings anddiscussions on justice and ICC related topics andproviding regular analysis to the Court;disseminating relevant information to the UNand Permanent Missions in New York to keepthem abreast of developments in the Court;providing input (upon consultation with thevarious organs of the Court) on ICC related issuesat UN meetings for instance providing languagefor inclusion in resolutions on ICC related issuesand providing input to UN departments for thepreparation of reports/statements on ICC related

subjects; and relaying requests from the Court tothe UN and vice-versa and making the necessaryfollow-up to ensure implementation.

Can you tell us about the occasions when you alsoprovide support to the Court outside of New York?

As a member of the externalcommunications group of the Court, and an adhoc member of the Africa strategy group, Iparticipate in the Court’s external relationsactivities. In this respect I work closely withcolleagues in The Hague and contribute todeveloping and implementing policies andstrategies to strengthen cooperation between theCourt and States. In relation to Africa, I have theadvantage of being stationed in New York wherevirtually all African States are representedthrough their Missions to the UN and I haveseized the opportunity to cultivate close workingrelations with African diplomats in New York onissues relating to the Court and can thereforeprovide the Court with some early insights on theprevailing thinking amongst States in New York.This year, I have on two occasions joined theCourt’s missions to the African Union meetings inAddis Ababa to encourage support for theCourt’s work and to explore the possibility ofestablishing a liaison office in Addis Ababa. Inaddition, I do participate in ASP sessions in TheHague and provide support as requested by theCourt. I also look forward to participating in theReview Conference in Kampala next year.

How has the 2004 Relationship Agreement facilitatedinteraction with the United Nations?

The drafters of the Rome Statuterealized early on that while the Court needed tomaintain its judicial independence from thepolitical workings of the UN, a close relationshipwith the UN was necessary for the success of theCourt; hence the inclusion of article 2 in the RomeStatute which mandated the Court to negotiateand sign a relationship agreement with the UN inOctober 2004.

The agreement lays down a broad framework ofcooperation between the Court and the UN. Itenables me and other representatives of the Courtto participate in UN meetings both in the GeneralAssembly and the Security Council, as observer,and to brief the UN on developments within theCourt. It also facilitates smooth interaction betweenCourt and UN officials for purposes of informationexchange and to explore ways of strengtheningcooperation between the two institutions. Mostimportantly, it provides a legal basis for theinteraction and exchange of information betweenthe two institutions and thereby guards against anycriticism from detractors of the Court who wouldotherwise put the UN to task for sharinginformation with the Court.

What are the main challenges faced by the office?

The mandate of the NYLO is very broad.

Interview with the Head of the New YorkLiaison Office, Ms. Karen Mosoti


777

Interview with the Chair of the Board of Directors of Trust Fund for Victims, Mme. Simone Veil

EElleecctteedd CChhaaiirr ooff tthhee BBooaarrdd ooff DDiirreeccttoorrssooff tthhee TTrruusstt FFuunndd ffoorr ttwwoo tthhrreeee--yyeeaarrtteerrmmss,, pprreevviioouussllyy hhaavviinngg sseerrvveedd iinn tthheeFFrreenncchh ggoovveerrnnmmeenntt aanndd tthhee EEuurrooppeeaannPPaarrlliiaammeenntt..

As a member of the board of Directors since itsestablishment six years ago, what would youconsider the main achievements of the Trust Fund?

During the first few years, themission of the Board members mainlyconsisted in seeing to it that the Regulationsof the Trust Fund were adopted, and indefining how it would work, who itsbeneficiaries would be, States Parties etc. Todo so, the Board chose to be assisted in itswork by a Secretariat, headed by an ExecutiveDirector. The latter would report to the Boardon Fund activities and to the Registrar of theCourt on administrative and personnelmatters.

During my entire mandate as Chair of theFund, the Registrar’s opinion on the dailybusiness of the Fund has been extremelyhelpful to me. Relations based on trustbetween the Registrar of the Court and theBoard of Directors are an additional asset toenable the Fund to operate smoothly.

For the past two years, Board members havebeen less involved in the operations of theFund. Operations and activities carried out incountries at war have been decided andmanaged by the Executive Director of theSecretariat; we were merely informed thereofand were therefore less involved.

Could you highlight some of the main projectsimplemented by the Trust Fund?

The Executive Director hasmanaged to obtain grants from almost 30different countries and has carried out a lot ofwork in the field, by raising awareness aboutthe existence of the Fund and by financingprogrammes to help victims of war, inparticular for instance in the DemocraticRepublic of the Congo and in Uganda. Todate, the activities of the Fund have enabledmany victims to become part of society again.

As a result of the partnerships established bythe Fund, several organizations have joinedus to contribute their support, expertise andmore, enabling the physical, psychological,financial and social rehabilitation of thevictims.

Letters sent to the embassies of States Partiesto collect funds have been well received,especially the one for the Central AfricanRepublic in 2008. The Fund has thus been ableto help one million victims, mainly of sexualviolence (providing inter alia financial,psychological and medical assistance). Alarge programme has been established to helpvictims of rape. The work of the Fund consistsin giving back to victims some sense ofdignity and courage to rebuild a normal lifewithin their family and community.

The aid programmes of the Fund work withthe survivors of communities which havesuffered war, in order to help them rebuildtheir lives in their country.

All in all, the Fund has collected over€ 3 million for victim assistance andrehabilitation.

The achievements of these first two yearshave been, in my opinion, positive andencouraging.

What key challenges will the new Board to beelected in November face?

In 2002, the Board members wereelected because they were symbolicpersonalities in their respective countries.Regrettably, however, we were very busy inour own countries with various activities, andnot very available; there was also the agefactor and geographical distance.

Having chaired the Board of Directors of theTrust Fund for Victims for six years, I believethat the personalities of the Board should bemore representative of the diversity of StatesParties and be more available. I believe thatthe needs of the Fund have changed, and thatthe Board of Directors must also consist of

Interview with the Chair of the Board of Directors ofTrust Fund for Victims, Mme. Simone Veil

measures to respect the independence betweenthe organs of the Court and to safeguard theconfidentiality of each organ. In essence, the staffof the New York office wear four hats and wehave the unenviable delicate task of shufflingbetween the different hats, that is, the Presidency,the Prosecution, the Registry, and the ASP orsometimes having to wear all four hatssimultaneously!

In terms of the substantive work, I do not allocatea specific amount of time for the work of eachorgan or the ASP. I deal with requests from eachorgan as they come – the work load for eachorgan fluctuates over the year, with intermittentheavy and light periods. I try as much as possiblenot to give preference to any particular organ orthe ASP as the work of each organ is equallyimportant. However, in situations of overlap, Ihave to sometimes request some of the organs orthe ASP to make alternative arrangements tohandle their matters, and this can be done bysending officers from The Hague to cover some ofthe issues in New York. Nonetheless, in mostcases I try to deal with all the issues, but of coursethis also means that there could be some delays inresponding to requests from some organs.

How do you see the New York Office evolving in thefuture?

In view of the complementary natureof the work of the UN to that of the Court, I seethe NYLO as a critical player in maintaining acontinuous cooperative relationship between theCourt on the one hand and the UN Secretariat, itsagencies and the UN Member States representedat the UN, on the other hand.

The strategic location of the office also providesan opportunity for the Court to have a presencewithin the United States and to interact withother intergovernmental, non-governmental,academic and civil society organizations engagedin rule of law and justice issues of relevance to theCourt, within the United States, and particularlyin New York.

However, the current staff set-up of the officedoes not allow for maximum utilization of theCourt’s strategic location in New York. With thecurrent set up of one professional and oneadministrative staff, all the substantive work ofthe office, save for practical administrative andlogistical work is performed by the Head of theOffice; and this greatly limits the number ofactivities the office can undertake. Perhaps theASP can in future consider establishing anadditional professional post to assist the Head ofthe office in implementing the its broad mandate.This would enable the Head of the office todelegate some of the more routine substantivefunctions such as preparing backgrounddocumentation, taking notes and preparingreports for meetings; and invest more time intomeeting with key interlocutors in the variousorganizations accredited to the UN and NGOsand engage in and organize high level eventsaimed at promoting a better understanding forthe work of the Court.


888

List of 2010 United Nations Security Council members that are States Parties

- Austria - Bosnia and Herzegovina- Brazil- France- Gabon- Japan

- Mexico- Nigeria- Uganda - United Kingdom ofGreat Britain and Northern Ireland

List of 2010 United Nations Security Council members that are States Parties

dynamic persons, who are prepared to travel,to go to the very sites where the activities arecarried out, and to take stock at first hand ofthe impact such activities have on the peopleconcerned.

Without prejudice to their independence, itwould also be desirable for Board members tobe able to meet Court representatives, tofacilitate the activities of both institutions andto enable the Trust Fund for Victims tofunction smoothly.

In addition, I believe that it is important forthe new elected members to be trulyexperienced in international politics and inthe operations of large organisations such asthe ICC.

Given that most of the voluntary contributions tothe Trust Fund have been made by Governments,what needs to be done in order to increase thefunding from alternative sources, such sinternational organizations, individuals,corporations and other entities?

The fact that the Fund is financed byStates Parties has the advantage of giving it adegree of financial security, as income doesnot depend on external factors.

With regard to increasing funds from otherdonors, an idea would be to find a personwho has sufficient standing at theinternational level to be able to appeal forpublic funds during highly focusedpromotional campaigns, such as thosealready held by large international NGOswith famous actors or personalities.

Another option would be tax-exemptdonations. In France, for instance, taxpayershave the option, whether as individuals orbusinesses, to declare donations tohumanitarian associations or organizations,the amount of which is deducted from theirtaxes. If such an option were to exist in all the

countries concerned, companies andindividuals could be more inclined to makedonations to the Fund.

Do you see scope for an enhanced direct interactionbetween the Board and the Assembly, whichcurrently seems to be limited to the annual report ofthe Board?

Certainly, it is important for the newmembers of the Board not to feel “isolated”from the organization in The Hague. Theymust regularly meet with Courtrepresentatives, without this affecting theirindependence.

This is the essential issue, because theparticular nature of the Fund is that it is anindependent body within the ICC, a criminalcourt which can only receive referrals byStates Parties and which only has jurisdictionfor crimes committed after the entry into forceof the Rome Statute in 2002.

The mission of the Fund, on the other hand, isto defend and help the most vulnerablevictims of crimes within the jurisdiction of theICC; countries must for this purpose fullyparticipate in the judicial proceedings.

It is essential in the field, that is in thecountries at war, for this distinction to be veryclear in the minds of the populations ofvictims. The Fund is there to rescue, help,reconstruct, not to judge or condemn.

The current existing link between the Boardand the Court is through the Registrar, whoserole is essential for good relations betweenthese two organs and for the smoothfunctioning of the Fund. In my opinion thecurrent situation with regard to directexchanges with the Assembly of StatesParties, the main administrator andlegislative body of the Court, is well balanced.

How often does the Board exchange views with theCourt?

The Board met with the Court onseveral occasions during the first years, when,together with the assistance of the Assemblyof States Parties, it was establishing theregulations of the Fund.

At present there are very few meetings.

Backrow from the left: Mr. Bulgaa Altangerel,Archbishop EmeritusDesmond Tutu, Madame Simone Veiland Mr. TadeuszMazowiecki Frontrow: Mr. Arthur Robinson

Archbishop Emeritus Desmond Tutu and MadameSimone Veil


9

Interview with Judge Sang-Hyun Song, President of the International Criminal Court

Interview with Judge Sang-Hyun Song, President of the International Criminal Court

99

EElleecctteedd PPrreessiiddeenntt ooff tthhee CCoouurrtt bbyy tthheepplleennaarryy ooff jjuuddggeess oonn 1111 MMaarrcchh 22000099,,aafftteerr hhaavviinngg sseerrvveedd ssiixx yyeeaarrss iinn tthheeAAppppeeaallss DDiivviissiioonn..

What do you see as the most crucial issues facingthe Court in short and medium term?

This is still a very young institution.Many questions of law are arising from thejudicial proceedings that require first legalinterpretations of various aspects of the RomeStatute. The judges are under tremendouspressure to get things right. I can tell you that inthe Appeals Division, where I sit, this pressureis keenly felt. Once we deliver a judgement,that’s the law. The pace of judicial proceedingsis also picking up, and soon the Court willconduct parallel trials for the first time.

Apart from the judicial proceedings, over theshort and medium term, the Court continues tobe challenged by widespread lack ofknowledge of its mandate and functioning.This can lead to opposition to the ICC that isbased on misperceptions. We are a judicialinstitution operating in a political world, andthese misperceptions can be exploited by thosewho may seek to undermine the Court. Wemust do everything we can to ensure that basicfacts about the Court are understood. Howeverwe have very limited resources to do this, andrely on States Parties, NGOs, and other partnersto help us inform policy-makers and the publicat large about our mission and our work.

In various other aspects of cooperation, too, theCourt must rely on States. We rely on States insuch areas as arrest and transfer of suspects,witness relocation, enforcement of sentences,and adopting implementing legislation to makevarious forms of cooperation possible in thefirst place. Securing cooperation in these areasis a great challenge for the Court over the shortand medium term.

What are your plans for the three years of your termas President and the main achievements you expectto constitute your legacy, both externally andinternally?

Externally during my term asPresident, I am focused on encouraging abroadening and deepening of the RomeStatute system. The system of internationalcriminal justice comprises numerous actorswith widely diverging, sometimes conflicting,mandates. Even acting at the best of its ability,the ICC will have a limited role. Too manyviolent atrocities fall outside the jurisdictionof the ICC. In any case, the Court will onlyhave the resources to focus on the mostserious cases within its jurisdiction. Althoughlimited, the Court can fulfil essential functionsas a court of last resort; in some situations itcan serve as an incentive for credible domesticinvestigations and prosecutions; and it canserve as a model of fairly administered justice.

I see three main needs in developing a greaterreach for global accountability in reaction towar crimes, crimes against humanity andgenocide, whether at the ICC or in otherjurisdictions. First, the Rome Statute systemcan broaden through the addition of newStates Parties. This will not only extend thegeographical reach of the Statute, but furtherenhance perceptions of its legitimacy. Second,the Rome Statute system can strengthenthrough enhanced cooperation. Cooperationshould come to be regarded as routine, not anexercise of extraordinary political will. Thisapplies to States Parties and also States not yetparty. The ICC does not have the tools toenforce its own decisions. It is up to the Stateswho created it and its other supporters toensure that they are enforced. And finally, theRome Statute system can deepen byenhancing the capacity of nationaljurisdictions. States have the primaryresponsibility to investigate and prosecutecrimes. The Court can play an important butlimited role as a catalyst, and the bulk of thework of developing national capacities willtherefore fall to States, NGOs and multilateralorganizations.

Internally, I am focused on fulfilment ofimportant aspects of the Court’s Strategic plan– namely, ensuring that the ICC is a model ofpublic administration. Bearing responsibilityfor the Court’s overall proper administration,apart from the Office of the Prosecutor (OTP),I am supporting the Registrar’s efforts toidentify efficiencies in administration. At thesame time, we are working together, and with

the OTP, to ensure a caring environment forour staff. We have tremendously skilled staffacross the Court who came here out of deepdedication to its mandate. We must create apositive atmosphere for them, not justbecause it’s efficient – a happy staff is amotivated staff – but also because it’s the rightthing to do.

Six months into your Presidency, what are the mostrewarding and the most challenging aspects of youroffice?

It has been a privilege to come towork each day and interact with staff of highcalibre across the Court. They have come fromall over the world in pursuit of a commonmission. I take inspiration from theirdedication. Likewise, I have been honoured tocollaborate with members of the diplomaticand NGO communities who are deeplyengaged with the Court and committed toeffective implementation of the Rome Statute.

Of course there are many challenges, but onestands out. My predecessor, Philippe Kirsch,long said that ignorance was this Court’sgreatest enemy. After six months as President,I can absolutely confirm this to be true. Wherethe Court’s mandate is not well understood,disappointment, fear and even anger canresult. In particular, where the principle ofcomplementarity is not understood, the Courtcan be miscast as a threat to nationalsovereignty. I have seen that when themandate is explained, political criticism candissipate. Disseminating accurate informationabout the Court and its activities must remainan important focus for us, and I hope for StatesParties too.

How do you expect to increase your interaction withstaff and listen to their concerns?

From the beginning I have beencommitted to interacting with staff. Iaddressed all staff to introduce the newPresidency shortly after taking office, andagain in July to mark International JusticeDay. It has been a pleasure also to speak atstaff inductions to welcome our newestcolleagues. Recently, the CoordinationCouncil invited the Staff Council to make apresentation, and I look forward to enhancedinteraction with staff through their electedrepresentatives in the future. But staff can alsoapproach me directly. I maintain an open-door policy. Any staff member should feel freeto speak with me in the cafeteria or hallways,or make an appointment to come see me inmy office.


101100

There is some criticism resulting from comparisonsbetween the time for trials to get started andconcluded in other tribunals and the cases before theCourt. How would the Court respond to thoseviews?

We are still in the early days, andcomparisons are premature. There is a broadcommitment to efficiency. The AppealsDivision in which I sit, for example, isdedicated to prioritizing those interlocutoryappeals on which a continuation of trial orpre-trial proceedings depend. We are alsoturning around appeals on a timely basis.

It should also be noted that the ICC is quitedifferent from its predecessors in importantways. The Court has a prospective and not aretroactive mandate. This meant that uponbeginning of operations, it was dealing withvery current situations. Alleged crimes thathad just recently been committed – all after 1July 2002 – needed to be investigated, and theProsecutor’s investigations were taking placeduring active conflicts. At our sister tribunals,with the partial exception of the ICTY, mostinvestigative work has been conducted inmore stable post-conflict environments.

As the world’s first permanent internationalcriminal court, the ICC faces uniquechallenges. We are not focused on a singleconflict or region, but must address several atonce. The diversity of situations before theCourt creates a diversity of challenges inmany areas, including language use in thecourtroom and the logistics of witnessprotection and transport. Unlike the ICTR,ICTY or the Special Court for Sierra Leone,the Rome Statute also provides for victimparticipation in the proceedings. Thisinnovation creates challenges of a legal andlogistical nature that the Court has had towork through over the course of its firstjudicial proceedings.

Is the Court considering means of expediting thelength of its proceedings and is there a mechanismfor their periodic assessment?

We are not yet through our firstjudicial cycle, but already the Court is makingadjustments in order to streamlineproceedings. For example, the Registry,responding to a decision by Chambers, hasfacilitated victims participating in the trials tohave group rather than individualrepresentation. There are constant discussionsabout judicial efficiency and there is a strongcommitment to the Strategic plan’s mostimportant objective: conducting fair andexpeditious trials. I can assure you that thejudges are committed to conductingexpeditious trials, foremost because this is acore right of the accused. But in some

instances speed can otherwise conflict withfairness. Then judges have a solemn duty toerr on the side of the latter.

What is the status of the Court Capacity Model(CCM), which the Court began to develop in 2004in order to assist it in planning its proceedings?

The Court is using the model in itsplanning, but the model will need to beadjusted as experience is gained through theconduct of trials. As I’ve mentioned, theCourt has not yet completed a full judicialcycle. Once a few trials are completed, muchmore accurate data will feed into the model,making this a much more useful planningtool.

As at the end of September, have all 16 judges beencalled to serve at the seat of the Court?

Yes, and in fact there are now 17judges including Judge Blattmann, who willremain for the duration of the Lubanga trialalthough his term otherwise would haveexpired earlier this year. We eagerly await thearrival of two new colleagues following theforthcoming election.

How do the judges interact among themselves?

The judges work extraordinarilyhard to fulfil the mandate with which theyhave been entrusted. Upon taking up theirmandate, of course every judge first interactswith new colleagues on a professional basis.But even at this stage, they already share adeep dedication to this Court and its mission.Over time they develop much strongerprofessional and personal bonds. I think I canspeak for all of the judges when I say thatworking with colleagues from diversenational and legal backgrounds is mutuallystimulating and simply fascinating. Apartfrom the usual one-three plenary sessionseach year, judges also have informal meetingsto exchange views. Each member of thePresidency belongs to one of the threedivisions, and this helps to facilitateinteraction with the divisions and all judgesbetween meetings.

Are video/telephone conferences held tocommunicate with judges that may not be in TheHague?

The ICC is a criminal court andsometimes important judicial decisions haveto be taken within hours. Generally speaking,the judges of the Court are always contactable,even when on leave, in order to react quicklyto unforeseen and urgent developments.Information technology may be an importanttool in this respect. I can certainly confirm thisto be the case for the Appeals Division. ThePresident of the Court is an ex officio memberof the Appeals Division, but in fulfillingimportant external relations duties asPresident, also must travel frequently. In thepast and current Presidencies, there have beennumerous telephone conferences to ensurethat even in the absence of the President orother colleagues, appellate deliberations canstay on track.

Are there forums where the Court’s judges mayexchange views with prior judges or colleagues fromother tribunals?

There are periodic meetings of theJudicial Club of The Hague, which allowjudges from the ICC, the International Courtof Justice, the ICTY, and the Dutch SupremeCourt to exchange views and shareexperiences. This forum rotates among thetribunals. There are also many opportunitiesto meet informally around The Hague, atlectures, book signings and other events,where ideas can also be exchanged.

Election of judges

You recently asked the Bureau to expedite theelection to fill judicial vacancies in order to ease theworkload of the current bench. Since 2007, fivejudicial vacancies occurred, one the result of anuntimely passing away of a judge. Does the Courthave any suggestion for consideration by theAssembly in order to diminish the occurrence ofsuch vacancies and, when necessary, to expeditefilling them?

From left: Mrs. Magda Marešová and H.E. Mr. Petr Mareš, Ambassador of the Czech Republic to the Netherlands, President Sang-Hyun Song, and H.E. Mr. Jorge Lomónaco, Vice-President of the Assembly

at the welcoming ceremony


111111

Ultimately, of course, this is a matterfor the Assembly alone to decide. For theCourt it is important that new judges beavailable to serve immediately upon beingsworn in. Yet those elected are professionals ofthe highest calibre who understandably havemany commitments at the time of theirelection. One way to address this challengecould be simply to move forward theelections. This would leave more time forthose elected to wrap-up all of theiroutstanding professional commitments beforebeing sworn in, and make it much more likelythat they could take up their duties at the ICCimmediately.

Another potential idea that States may wish toconsider would be to develop a roster ofelected judges beyond those needed forimmediate openings. If feasible, this wouldmean that as unexpected vacancies occur,offers could be made to judges at the top ofthe roster without need for holding a newelection. This would save States thesubstantial cost of holding unscheduledelections. It would also help the Court tominimize the judicial inefficiencies that arisewhen there are extended vacancies.

Bearing in mind that the Rome Statute foresees anine-year term of office for judges, is there scope forpossible age limits, as in the case of the EuropeanCourt of Human Rights and some national systems?

Regardless of age, it is crucial thatthose elected are fit to serve in a job thatcomes with a heavy workload.

The Rome Statute foresees, insofar as theirbackground is concerned, two categories of judges:List A and list B. How has each category contributedto the Court these past six years?

It is imperative that the Court haveprofessionals who are familiar withprocedural and substantive law. Likewise, weneed colleagues with expertise in publicinternational law, who are on top ofdeveloping jurisprudence in the field. Theirperspectives add insight that greatly enrichesour decisions.

Governance

Article 38, paragraph 3 (a), of the Rome Statuteentrusts the President, with responsibility for theproper administration of the Court, with theexception of the Office of Prosecutor, whileparagraph 4 calls for coordination with theProsecutor on matters of mutual concern. The mostrecent Report of the Committee on Budget andFinance refers to some risks ensuing from thegovernance structure of the Court. Can you tell usabout the Court’s Coordination Council and howeffective it has been in addressing those issues?

The Coordination Council, consistingof the President, Prosecutor and Registrar,meets once a month in sessions attended by theSecretariat of the ASP to discuss such mattersof mutual interest as staffing, the budget, andthe strategic plan. Various staff membersattend to address issues within their expertisethat are under current discussion. It is a usefulbody for the exchange of information andcoordination of actions in many areas. Ofcourse, the organs may differ on specific issues.This is inherent in the Court’s governingstructure, and is an inevitable consequence ofthe independence of the judiciary and that ofthe Prosecutor. The Coordination Council itselfidentified this risk in 2006 as something to beaware of and to address. At the outset, someargued that the OTP should have an entirelyseparate administration precisely to avoidconflicts. However, in the interests of efficiency,it was deemed that the OTP should rely oncommon services from the Registry. Thisrequires close coordination, and frank opencommunication. Roles and mandates are notalways clear, but operationally the differentorgans work well together in practice. Our roleas the Coordination Council is to ensure theframework is in place and well-enoughunderstood for our staff to go about theirbusiness. The CBF has requested a report fromthe Presidency on efforts to achieve clarity onthe responsibilities of the organs and acommon understanding between them. I willcontinue efforts in this area and report in April.

Role of the Presidency

Can you explain the means by which the Court as awhole and the Presidency in particular coordinatesand contributes to outreach objectives? Are somejudges assigned to undertake such as role on thebasis of language, region and specialization?

I view outreach in the situationcountries as a core element of this Court’s work.If justice is not seen to be done in thecommunities most affected by our judicialactivities, then our efforts lose much of their

meaning. The Public Information andDocumentation Section (PIDS) of the Registry isin charge of outreach. Working through fieldoffices and staff in The Hague, PIDS maintainstwo-way communication with affectedsocieties. I am always willing to assist in anyway possible. For example, recently I answeredquestions on video posed by participants in anoutreach event in the DRC. The video with myanswers, part of the outreach programme’s“Ask the Court” series, was then later screenedin those same communities.

The term “outreach” is sometimes understoodin a broader sense to describe all interactions byCourt officials to increase understanding of theICC’s mandate and activities. In this sense, thePresidency has been very engaged. VicePresidents Diarra, Kaul and I have travelled tomany countries, meeting with senior officials,speaking at events, and giving mediainterviews. However, the Presidency receivesmore invitations than can be accommodated.Some of these are passed to other judges, whothen can represent the Court when their judicialschedules allow. The language of a country orspecific event may dictate which judge is askedto attend.

What are the key outcomes of the trip to Africa youundertook earlier this year?

In June I travelled to the UnitedRepublic of Tanzania, South Africa, Lesothoand Botswana. In the United Republic ofTanzania, Lesotho and Botswana I hadmeetings with senior officials includingHeads of State/Government, Ministers ofForeign Affairs and Justice, and AttorneysGeneral. My visit to each country was verymuch appreciated and I was warmly received,with all courtesies extended.

These meetings provided valuableopportunities to thank States for their supportof the Court and listen to their views. It alsogave me a chance to provide an update on theCourt’s activities. In meetings I emphasizedthe Court’s judicial nature and the need for it

President Song presentsthe report of the ICC tothe United NationsGeneral Assembly on 29 October 2009

© UN Photo /Evan Schneider


121122

to be shielded from political winds. I alsoencouraged my interlocutors to adoptimplementing legislation in their States. Thiscreates a domestic legal basis for cooperationwith the Court and advances the principle ofcomplementarity by creating a legal basis fortrying atrocity crimes domestically. Theconnections made on this trip will be valuablegoing forward and help the Court to maintainan ongoing dialogue with States from ourlargest regional group.

What do you believe needs to be done to encouragemore States to become parties to the Rome Statute inregions like Asia where, with a few key but notableexceptions, the Court has not garnered muchacceptance?

Asia is terribly underrepresented inthe Assembly of States Parties. As the firstAsian President of the Court, I am personallycommitted to addressing this problem. My firsttrip as President was to Thailand andIndonesia, two States that are consideringratification of the Rome Statute. Each countrywill make its own sovereign decision aboutratification or accession. Misperceptions of theCourt’s mandate and functioning, however, toooften form the basis of national debates. Travelmakes possible engagement with seniorofficials, academics, bar associations, NGOsand journalists, and can substantially enhanceunderstanding of the Court. I am eager toreturn to Asia and travel to otherunderrepresented regions to assist in any waypossible.

At the end of the day, though, States and NGOnetworks have vastly greater resources thatthey can direct to these efforts. I wouldwelcome new efforts by the ASP and individualStates Parties to play an active part ininforming national debates about the RomeStatute in non-States Parties around the world.This is an area where State and NGO efforts canbe closely coordinated with those of the Court.

Assembly

How and with what frequency does the Presidencyand do you directly interact with the Assembly andits subsidiary bodies?

My staff and I have extensivecontact with the Assembly and its subsidiarybodies. We enjoy a close working relationshipwith President Wenaweser, who is alwaysavailable. We also value regular cooperationwith the Secretariat here in The Hague. WhenI travel to New York, I always meet withAssembly representatives. Just last month Ihad the pleasure of speaking to the Bureau.Likewise, this year I spoke at the opening andclosing of the CBF session, and Presidencystaff attended the sessions throughout. Manyworking-level contacts, especially with theNew York and Hague Working Groups, aredelegated to the Registry. The Registry hasextensive contact with The Hague WorkingGroup in particular. The Court appreciatesthe hard work of the various facilitators; weare truly grateful to have such a dedicatedand thoughtful group of ambassadors whoare readily accessible. The Court is committedto being responsive to States, andengagement in all of these forums isimportant to that end.

Are there means of improving such exchanges?

These interactions have goneextremely well. I am committed to continuinga full and open dialogue with the Assemblyand its subsidiary bodies.

How much support does the Court feel it receivesfrom States Parties?

States Parties created thisinstitution, and the Court continues to rely onStates Parties to sustain it. We are veryappreciative for cooperation that has beenforthcoming in a number of areas, includingarrests and surrenders of suspects,investigations, witness relocation,enforcement of sentences, and diplomaticsupport. Of course there are always areas thatcan be improved. Specifically, I wouldencourage all States Parties to adoptimplementing legislation as a matter ofpriority. To our knowledge, so far only 39 of110 States Parties have done so. With judicialactivity under way, there is also a great needfor more assistance on witness relocation andenforcement. I would urge those States thathave not done so to enter into negotiationswith the Court on relocation and enforcement

agreements. Where this is not possible, Iwould encourage States to consider tripartiteagreements. Thus States that cannotthemselves enter into relocation orenforcement agreements could assist otherStates Parties that are willing to do so but lackthe means. One other area in which I am eagerto increase cooperation with States Parties, isthe coordination of efforts to encourage newratifications and accessions to the RomeStatute. We can work together to make evenmore headway in extending the reach of thelegal regime in which we all have a greatstake.

Policy-decisions

From the perspective of the Assembly, there aresome concerns about the Court pre-empting policy-decisions under consideration by States Parties. Inthis regard the 10 March 2009 decision by theformer Presidency regarding the funding by theCourt for family visits of indigent detainees comesto mind. Are the judges as a whole, and thePresidency of the Court in particular, cognizant ofthose concerns and how do they view the wayforward on the general approach?

I am aware of the concerns thatsome States have in this area. This was ajudicial decision, and the same or a similarissue could come before the Presidency forjudicial review in the future. To avoidprejudicing potential future deliberations, Icannot address the substance of the decisionon family visits.

However, as I recently expressed to theBureau of the Assembly, as a matter ofprocedure I am very concerned about a draftresolution currently circulating in The HagueWorking Group that would in effect seek tooverturn the decision. Any attempt tooverturn a judicial decision by an ASPresolution raises concerns of precedent andperception. Observers could well ask, if aPresidency decision can be overturned by apolitical body, why not an Appeals Chamberdecision? At a time when some accuse theCourt of being prone to political influence, Iwould urge that every measure be taken tounderscore and respect its judicialindependence. I would hope that any actions

Welcoming ceremony for Chile

From left:Mrs. María Cecilia Borgoño deMartabit and H.E. Mr. Juan Martabit, President Song, Ms. Silvana Arbia, Registrar,H.E. Mr. Jorge Lomónaco, Ms. Fatoumata Dembele Diarra,First Vice-President of the Court,and Mr. Luis Moreno-Ocampo,Prosecutor


131133

contemplated would be carefully consideredin this context.

The Rome Statute could not foresee all possiblescenarios that the Court would face and,accordingly, left some areas ambiguous or for futuredecision-making by the Court and the judges inparticular. Now that the Court has been functioningfor several years, could there be a role for theAssembly in providing guidance on lacunae or othermatters where there may be a risk of divergentinterpretations by the Court’s judges?

The Statute and the Rules ofProcedure and Evidence could be amended toadapt it to changed circumstances or in lightof lessons learned. This is a matter for States,but I would urge that any changes be basedon broad policy visions and not in reaction tospecific decisions – especially judicialdecisions. It is true that many things could nothave been foreseen in 1998, but I think it isimportant to keep in mind that many futuredevelopments also cannot be foreseen. Afterall, the Court has not yet completed its firstjudicial cycle. For this reason, too, I wouldrecommend that any contemplatedamendments be made with a view topotential long-term implications.

How can the Assembly best contribute to the Court?

The Assembly can and doescontribute to the Court in many ways. Iwould start by mentioning financial support,and in this area Assembly members have anexcellent record of prompt payment of dues.With management issues, I find that theAssembly’s oversight function is mosteffective when focused on general policyguidance, allowing the Court flexibility towork out the details as best suit it. TheAssembly can also play a key role incoordinating among States on cooperationissues, from public and diplomatic support toadoption of implementing legislation.

Cooperation

How would you evaluate the cooperation betweenthe Court and the United Nations?

The Court’s cooperation with theUnited Nations has been excellent in suchdiverse areas as logistics and diplomaticsupport. The Relationship Agreement sets asolid framework, and subsidiary agreements,such as the memorandum of understandingwith MONUC, have also been very valuable.We have enjoyed consistent support from theSecretary-General on down. I particularlyappreciate the responsiveness of the Office ofthe Legal Counsel, which is the focal point forICC cooperation at the UN. This July, the Courthosted a two-day roundtable with the UN (one

in a series that rotates between New York andThe Hague) to allow a detailed exchange ofinformation and views at the working level andensure that concerns of both organizations aretaken into account by the other.

How would you evaluate the cooperation withregional intergovernmental organizations and howcould that be improved?

This is an area that needs to beworked on. The Court has an intensiverelationship with some organizations, such asthe European Union and is still seeking aformal relationship with others, for examplethe African Union. Over the past severalmonths, we have reached out to otherregional and thematic intergovernmentalorganizations. This May, Judge Kuenyehiarepresented the Court on a trip to Nigeria,where she addressed the Parliament of theEconomic Community of West African States.I have asked my staff to reach out to variousorganizations, including the League of ArabStates, Organization of the IslamicConference, the Organization of AmericanStates and the North Atlantic TreatyOrganization, in order to explore options forgreater communication and collaboration.

Review Conference

Would you share some of the Court’s views on someof the issues to be addressed at the ReviewConference in June 2010?

The Review Conference in Kampalaand especially proposed amendments to theStatute to be discussed there are matters forStates. Yet naturally, the Court shares a greatinterest in the Review Conference’s success. Itis my hope that the Review Conference canserve as another major milestone in thedevelopment of international criminal justice.Big issues including aggression may bediscussed, and I’m sure technical issues willbe too. The Conference offers an opportunityto review the efficiency and effectiveness ofthe Court. But I would encourage this all to beinserted into a broader context. I would alsoencourage the ASP to think creatively aboutinvolving affected communities – from allsituation countries – in discussions of theCourt’s work. To the extent that the Courtexists to serve victims, their voices should beheard in the preparations for Kampala and atthe Review Conference itself.

As regards the stock-taking item, what key areasshould it focus on?

I am pleased that a stock-takingexercise will look at the entire Rome Statutesystem. Critically, this should include variousissues of cooperation, complementarity and

State support. I am keen to learn why moreStates haven’t adopted implementinglegislation. Even after the Bureau’s plea to thefifth session of the ASP, only 39 States Partieshave done so. How can States better supporteach other in developing national capacity tocredibly investigate and prosecute ICCcrimes? These are just some of the issues thatcould be addressed. With enough notice andwhere appropriate, the Court couldcollaborate in brainstorming and refiningproposals in these areas.

What are the Court’s expectations in terms of theoutcome of the Review Conference?

Beyond the outcome of the debateof substantive legal proposals on which Icannot comment, it is my hope that theReview Conference can be effective incharting the further development of the entiresystem of international criminal justice. Iwould like to see the Conference developstrategies to broaden and deepen the RomeStatute. This includes bringing in new StatesParties, while also strengthening the Courtand exploring methods to further developnational capacities.

What is your typical day as President like?

The typical day is incredibly hectic.I come to work very early and can never besure what to expect. I have a wide range ofresponsibilities. I am a judge in the AppealsDivision and have a full workload there. As amember of the Presidency, I am deeplyinvolved in conducting judicial review of theRegistrar’s administrative decisions. Andthen of course as President, I have my handsfull with external relations matters. I traveland speak frequently to represent the Court,receive many ambassadors and seniordignitaries here in The Hague, and in theevenings I try to attend diplomatic functionsaround town. It is a heavy workload, but thelifestyle is facilitated by the unfortunate factthat I’m often geographically single! Whenmy wife is able to visit, I try to take somepersonal time.

Do still have time to indulge in golf, your favouritepastime?

I have very little time for golf thesedays, and have only played twice sincebecoming President.

What other activities do you enjoy in your freetime?

I enjoy reading and writing whentime allows.


141144

Interview with H.E. Juan Martabit, Ambassador of Chile to the Netherlands

How important is the ratification of the RomeStatute for Chile, and what are your expectationsfor the Court?

This is a very important step thatChile has taken very seriously and in fullawareness of its history, following a processof dialogue involving various political sectorsof society. Upon joining the InternationalCriminal Court, Chile has already achieved ahigh level of implementation, having alreadyadjusted its national legislation to incorporatethe crimes described in the Statute. Now wewish to participate as actively as possible as acountry in everything necessary to contributeto the ICC.

This ratification turns South America into theonly continent on which all States are Parties tothe Rome Statute. What political and legalobstacles did you have to overcome to ratify theStatute?

In Chile the process lasted severalyears during which some sectors needed toreflect in order to overcome certainreservations. This led to a productivedemocratic dialogue which yielded strongresults. First there were concerns about theapplication of the principle ofcomplementarity, then the Constitution hadto be amended, and finally an interest grew inincorporating the crimes under the RomeStatute into our national legislation to ensureits full application.

What role did Chilean civil society play in thisprocess, and how did it react to the ratification?

Civil society participated in thisdialogue through its own organizations, aswell as through important NGOs, in additionto the matter being discussed at the highestlevel. The government of President MichelleBachelet was particularly interested in

gathering the proposals of all sectors, butalways with a view to moving the ratificationforward, as Chile could not stay at themargins of this important development ininternational law and universal jurisdiction.

Unlike many other States, Chile proceeded topenalize the crimes provided under the Statutebefore ratifying it, which represents an importantstep with regard to the principle ofcomplementarity, the cornerstone of the RomeStatute, according to which it is the responsibilityof the respective State Party to investigate thecrimes. The Court only intervenes when a State isunable or unwilling to investigate or to prosecute.What role did this prior criminalization play in theratification process?

The purpose of the criminalizationwas to bring the Statute to life, for it to berecognized in the domestic judicial sphere.Chile wanted to avoid facing obstacles to itsfull application when the moment wouldarrive. Now that it has the law on thepenalization of the crimes as part of itslegislation, Chile incorporated the definitionsat the national level, and it is equipped withthe necessary legal tools to recognize thecrimes described under article 5 of theStatute, in accordance with the principle ofcomplementarity.

When do you expect to submit the Agreement onPrivileges and Immunities for consideration byParliament, its ratification constituting anessential step to facilitate the work of the Court,and how much time could its ratification take?

As yet no date has been set toconsider the Agreement, but this stepforward, as well as others, covering importantareas such as co-operation with the ICC, iscurrently being studied by the relevant legalauthorities of my country.

What do you think of the innovative provisions ofthe Statute that allow victims to participate in thejudicial proceedings before the Court and thepossibility for them to receive reparations from theTrust Fund for Victims?

In Chile we have experienced a longprocess with successive reparation phases forvictims through the Truth and ReconciliationCommissions and the National Commissionon Political Imprisonment and Torture, theimportant work of which involved, inter alia,taking statements and recognizing victims ofhuman rights violations committed under themilitary regime. Therefore we deem thisaspect of the Rome Statute to be of vitalimportance, as it concerns principles which

my country recognizes and which it isconcerned with as a society. Societies mustevolve, and to do so they must have a legalsystem which provides for the participationof victims and, of course, for reparations. Assuch the Statute represents a model ofuniversal justice.

Victims’ reparations may be individual orcollective, depending on the applicable nationallaws. In Chile’s experience, what has beenconsidered the best way of giving victims someform of reparation?

It must be emphasized from theoutset that no form of economiccompensation or any other kind ofcompensation will return the lives of lost onesor repair the harm inflicted by torture; this istaken into account in the compensationsystem established. In Chile’s experience,reparations have been mainly individual, inview of the nature of the crimes perpetratedagainst victims, who were individuals. Wedid not experience any group factors such asethnic and/or racial cleansing, as occurred inother parts of the world under very differentcontexts; we experienced persecutions of apolitical nature. It is important to emphasizethat the reparations proposed and/or paid forby the State have come in various forms andhave included direct family members. Theywere translated into pensions, medical andeducational assistance, bonuses in the form ofacquittals and benefits for the return to thecountry of those who had suffered from beingexiled; the objective was to attempt to widenthe scope of reparations as much as possible.

On the subject of transitional justice, the TruthCommission of Chile served as an inspiration andguide for several similar processes in differentLatin American countries and also some fromdifferent continents such as South Africa. Inretrospect, what changes do you deem necessaryfor the objectives of a Truth Commission to be moreeffective?

The work of the Truth Commissiondeserves to be recognized. It has functionedon the basis of voluntary cooperationbetween the parties. It has improved withexperience, and has had to adapt to newcircumstances, but despite everything it hasachieved, there will always be room forimprovement. However, it has been animportant motivating force in moving onfrom the past, and we are proud to havecreated a model for other societies that havesuffered similar situations. From thatperspective, it is necessary to recognize theprogress fostered by the institution, including

Interview with H.E. Juan Martabit,

Ambassador of Chile to the Netherlands


151155

with regard to the objective of nationalreconciliation. We know that the scars of thepast cannot be erased, but surely we can worktogether to improve the future of our countryand of future generations.

In the light of what has happened in Latin Americaand in particular in Chile during the last decadesof the twentieth century, could you give us youropinion on the alleged dilemma between peace andjustice?

The situation experienced in LatinAmerica at the time of the dictatorships of thesecond half of the twentieth century wasparticularly distressing. However, we havelearned from it. And now, as with mostsocieties that have had to go through suchdifficult situations, we respect and valuedemocracy more than before. We understandthe importance of the right to dissent, theright to freedom of expression and the right tojustice, all with the objective of achieving anincreasingly peaceful co-existence. And I

would like to emphasize that what is mostimportant is that we have learned from ourhistory. Justice is necessary in all societies tomove forward and achieve peace, which iswhy we are proud that the whole of SouthAmerica has ratified the Rome Statute andparticipates actively in the ICC.

What do you think of the much desired objective ofuniversal participation in the Rome Statute?

I believe that it will definitelyrepresent a step forward on all fronts, anunprecedented achievement, which all 110States Parties to the Rome Statute support. Asour President Bachelet said when she visitedThe Hague last May, whose words I fullyendorse: “Ideally the ICC would not haveanyone to prosecute, would not have anycases, as that would mean that it had met itsobjective of acting as a deterrent. I believe thatdeep down inside, we all want universaljustice to have the effect of deterring acts ofgenocide or other types of horrors, and for itno longer to be necessary in future ever toprosecute anyone anymore for atrocitiesperpetrated by humans against other humanbeings”.

continued from page 1

The Court held ceremonies for the new StatesParties in The Hague on the dates when theStatute entered into force for those States.

During the ceremonies welcoming the newStates Parties, reference was made to thelegal, political and technical challenges whichhad to be overcome in order to ratify theRome Statute. The importance of conveying aproper understanding of the principle ofcomplementarity, enshrined within theStatute, constituted an essential pillar in thearduous process of reaching a consensus atthe national level, since it would dispeldoubts about a possible cession of jurisdictionto a supranational judicial organ. In thisconnection, both Chile and the CzechRepublic expressed their appreciation to theCourt, which had always been open toaddressing politicians and jurists, both in TheHague and in capitals, for its assistance infacilitating an understanding of the Court’sjurisdiction.

The Ambassador of Chile to the Netherlands,H.E. Juan Antonio Martabit, emphasized thatalthough the ratification of the Statute was theresult of the efforts of many sectors within hiscountry, it was most of all due to the personalinterest of President Michelle Bachelet whohad made it a primary goal of hergovernment; he recalled that PresidentBachelet herself had also been a victim of theexcesses suffered during the period ofauthoritarianism that preceded the return todemocracy.

For his part, the Ambassador of the CzechRepublic to the Netherlands, H.E. Petr Mareš,in addressing the challenges of theinternational community with regard tocriminal justice, noted the relevance of thethoughts of Ms. Hannah Arendt who hadwritten over 40 years ago that Eichmannshould have been tried by an internationalcourt for the crimes committed againstmankind on the body of the Jewish peopleand not for the crimes against the Jewishpeople as the Jerusalem Court did. She hadalso affirmed that the purpose of a trial is torender justice, and nothing else, even thenoblest of ulterior purposes.

The Vice-President of the Assembly,Ambassador Jorge Lomónaco (Mexico),highlighted that the addition of two newStates Parties constituted a significantaccomplishment for the internationalcommunity as a whole, in advancing towardsthe cherished goal of universality, particularlyas both South America and the EuropeanUnion had thus fully embraced the RomeStatute system.

“… nobody is above thelaw, nobody can evaderesponsibility for anycrimes that States agreedto identify as dangerous tointernational peace andsecurity. International

peace and security will never work, if wedo not bear the consequences of thatresponsibility. Every individual isresponsible for his or her crimes againsthumanity, war crimes or crimes ofgenocide. Every State is responsible forthe punishment of such crimes. TheInternational Criminal Court is here notas a substitute for the responsibility ofStates, but to make them bear theirresponsibility themselves.”

Ambassador Petr Mareš

“A total of 396 millionSouth Americans, from theCaribbean coast to CapeHorn, from the GalapagosIslands to Recife, are underthe aegis of the normativeregime that sovereign

States established 11 years ago. Just asLatin America established the first“nuclear-weapons free-zone” under theumbrella of the Tlatelolco Treaty, let ushope that, within the next few years,other regions will follow and we canprogressively celebrate theestablishment of “Rome-Statute-zones”around the globe.”

Vice-President Jorge Lomónaco

Ceremonies for new States Parties

Ceremonies for new States Parties


16 This is not an official document. It is intended for public information only.1166

ASP Events and Calendar

1166

Deposit of Chile’s instrument of ratification at theUnited Nations

ColophonSecretariat of the Assembly of States Parties International Criminal CourtP.O. Box 19519, 2500 CM, The Hague, The Netherlands

e-mai l : [email protected] : www.icc-cpi.int/Menus/ASP

Copyright © International Criminal Court - All rights reserved

From left : Mr. Sibo Mutiri (2nd Vice-President), Ms. MurielMeric (Treasurer), President Christian Wenaweser,and Ms. Romana Maumbu (1st Vice-President)

ASP Calendar

2010

Assembly of States PartiesResumed eighth sessionNew York between 22-25 March

Ninth sessionNew Yorkmid-December

Review ConferenceKampala, Uganda31 May to 11 June 2010

Committee on Budget and FinanceFourteenth sessionThe Hague - 19 - 23 April

Fifteenth sessionThe Hague - 23 - 31 August

President meets Staff Council members

AAGGRREEEEMMEENNTT OONN PPRRIIVVIILLEEGGEESS AANNDDIIMMMMUUNNIITTIIEESS :: MMAALLAAWWII

With the deposit of the instrument ofratification by Malawi on 7 October 2009, atotal of 62 States are now parties to the APIC.Departures

The HagueH.E. Lyn Parker (United Kingdom) left his post as Ambassador to the Netherlands andreturned to the Foreign and Commonwealth Office in London; Mr. Akbar Khan(United Kingdom) became Director of the Legal and Constitutional Affairs Division ofthe Commonwealth Secretariat; Mr. Masud Husain (Canada) assumed his newfunctions in New York; Mr. Erasmo Lara (Mexico) was transferred to Vienna; Ms.Michèle Dubrocard (France) concluded her posting.

New YorkMr. Marko Rakovec (Slovenia) finished his posting, Ms. Polly Ioannu (Cyprus) wastransferred to Vienna, Mr. Tomohiro Mikanagi (Japan) assumed his new functions inBeijing, while Ms. Angela Nworgu (Nigeria) began to work in the office of thePresident of the General Assembly of the United Nations.

Oversight Committee on Permanent Premises

From left: H.E. Ambassador Lyn Parker (UnitedKingdom), Chair of the OversightCommittee on permanent premises,and Ms. Esther Halm, Associate LegalOfficer of the Secretariat of theAssembly

From left: Ambassador Claudio Troncoso,Director of Legal Affairs, Ministry ofForeign Affairs, congressman GabrielAscencio, H.E. Ambassador HeraldoMuñoz, Permanent Representative tothe United Nations, Mr. José AntonioViera-Gallo, Secretary-General of thePresidency of Chile, and Ms.Annebeth Rosenboom, Head of theUnited Nations Treaty Section.

© UN Photo


ovember h.e. mr. anders lindén, - icc - cpi asp 2-eng.qxp: ... ra’ad zeid al-hussein (jordan) and...

Documents