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[Publications]  SFIA Newsletter- "The International Criminal Court : Achievements and Challenges Ahead.¡± by Song, Sang Hyun.2014.01.03
131017 - BUCHAREST Speech FOR PUBLICATION (2).doc 

 

 

 

 

 

 

 

Judge Sang-Hyun Song 

President of the International Criminal Court 

 

 

Remarks at the University of Bucharest

The International Criminal Court : Achievements and Challenges Ahead

 

 

 

ADAPTED FOR PUBLICATION

 

 

 

 

17 October 2013

 

Excellencies, Ladies and Gentlemen,

 

It is a great pleasure to be here with you today. I am very glad that the University of Bucharest Faculty of Law is hosting this event – you see, I spent more than 30 years as a professor of law, so I feel right at home here!

 

I congratulate the organisers for this timely initiative – and I greatly appreciate the support that Romania has extended to the ICC since the very establishment of the Court. Indeed, Romania was among the 10 countries whose simultaneous ratification of the Rome Statute on 11 April 2002 brought the ICC into existence.

 

But let me go back in time for a moment.

 

I was born in Korea, and when I was only nine years old, war broke out in my country. War is very tough for all those involved, but particularly for a child. I was comparatively lucky as I survived the war without physical injury, but the traumatic experiences I was exposed to left an enduring scar on me.

 

I grew up in the firm belief that every human being should have the right to live their lives free from the terrors of armed conflict. I have always considered peace a blessing that we are fortunate to experience, and which we sometimes take for granted.

 

Much of my life I have dedicated to the idea that living in peace is the tranquillity derived from legal order and the consensus of wills. I chose law as a career out of the conviction that justice is crucial for attaining peace and security.

 

In spite of the great advancements the international community has made during the last decades, no part of the world is immune to conflicts and cruelty.  Children, men and women continue to fall victim to mass atrocities, too often committed with impunity. A tremendous amount of work remains to be done so that we may one day eradicate such suffering. That is why today’s conference is so important. […]

 

Joining the ICC and accepting its jurisdiction is a voluntary decision for each sovereign State. At the moment, we have 122 States Parties which represent almost two thirds of UN members. These nations have recognised the need for justice, accountability, peace, stability and the rule of law.

 

Currently, the ICC is conducting more proceedings involving more suspects than ever before. The Court has so far undertaken a total of nineteen cases in eight country situations.

 

To date, four States Parties to the Rome Statute – Uganda, the Democratic Republic of the Congo, the Central African Republic and Mali – have referred situations occurring on their territories to the Court.

 

In two situations – Kenya and Cote d’Ivoire, the previous Prosecutor commenced investigations on his own initiative – but with the knowledge and support of the governments concerned.

 

In addition, the Security Council has referred the situation in Darfur, Sudan, and the situation in Libya – both non-States Parties.

 

The ICC Prosecutor is conducting further eight preliminary examinations across five continents - among them are Afghanistan, Georgia, Honduras, and Korea.

 

Sixteen suspects have thus far appeared before the ICC. Two trial judgements have been issued – one conviction and one acquittal. Both are currently on appeal before the Appeals Chamber, on which I sit with four other judges.

 

Another trial judgement is expected in the near future; two trials are currently underway and two others set to start soon. Other cases are on-going at pre-trial stage. The ICC is very busy, providing justice where it cannot be attained at the national level.

 

One of the most progressive elements of the ICC is the unprecedented focus it gives to victims, giving them an opportunity to present their interests to the Court and allowing them to seek reparations for the harm they have suffered.

 

Last year, in the case of Mr. Thomas Lubanga concerning the use of child soldiers in the Democratic Republic of the Congo, Trial Chamber I issued the first judicial decision of the ICC on victims' reparations. However, this decision is currently under appeal, as is indeed the conviction of Mr. Lubanga.

 

The ICC’s Registry has so far provided legal representation for more than 5,000 victims who were granted the right to participate in the proceedings.

 

The Trust Fund for Victims is supporting over 110,000 victims of crimes under the jurisdiction of the Court through physical and psychological rehabilitation and material support at both the individual and community levels.

 

Excellencies, Ladies and Gentlemen,

 

The Rome Statute created much more than a Court. The ICC is the centrepiece of a new international justice system that consists of two main levels – national jurisdictions as the first line of defence against impunity, and the ICC as a failsafe system, a court of last resort. This is what we call the principle of complementarity.

 

The two levels of justice complement each other, together forming a completely new kind of international structure intended to ensure individual accountability. That means that the ICC only has jurisdiction over a matter if domestic legal systems have failed to genuinely investigate or prosecute.

 

When the ICC initiates proceedings, the State in question can come to the Court and say, “hold on – we are investigating and prosecuting this case”. If the State can demonstrate that they are genuinely doing so, the ICC has to step back, as a matter of law.

 

Just last week [on 11 October 2013], Pre-Trial Chamber I issued the first ever decision of the Court to this effect, declaring the case of Abdullah Al-Senussi inadmissible before the ICC on the grounds that domestic proceedings are underway in Libya, and that Libya is willing and able to genuinely carry out the corresponding investigations.

 

However, I am aware that this decision may be appealed to my own Chamber, and therefore I cannot predict or prejudge the final outcome of the matter at this point.

 

As you can see, the Rome Statute has created a system where responsibilities are shared. The primary responsibility for investigation and prosecution of Rome Statute crimes lies with states. When they cannot do so for any reason, the ICC can step in to prevent impunity. And when it does so, States, and at times, the UN Security Council, must assist the Court for arrest warrants to be implemented, evidence to be provided, witnesses to be protected, and sentences to be enforced.

 

Ultimately, the world will only be able to end impunity when States fully engage in investigating and prosecuting these crimes. And that is why it is vital to strengthen the capacity of national jurisdictions to do so.

 

All this shows how the real power of the Rome Statute is not in the ICC alone. Rather, it is the collective power of States that have come together to end impunity.

 

Excellencies, Ladies and Gentlemen,

 

The ICC is an independent, politically neutral, judicial institution.

 

However, more often than we wish for, we get hit by the political winds. Lately, these winds have been blowing stronger.

 

The Assembly of States Parties has created this institution to operate in the political world, dealing with highly sensitive matters of global significance. In this context, it seems inevitable that the ICC’s actions raise strong reactions, praise as well as criticism.

 

States need to accept that judges cannot and will not take political factors into account. They make a judicial judgement on the evidence presented before them in accordance with the applicable laws – adopted by States themselves.

 

The Rome Statute is quite rigid on some issues, and in those cases the Court has very limited room for discretion.  On other matters, the Statute may be rather silent, since there are many procedural issues that were not fully envisaged in Rome. In such situations, the Court has to engage in careful interpretation of the existing provisions.

 

And it is quite natural that when new issues arise for the first time, they are taken to the Appeals Chamber for a definitive ruling. […]

 

It is vital that States understand and respect the ICC’s judicial role, so that the Court may conduct its mandate independently and impartially without interference.

 

Another area where we need the support of States Parties is securing sufficient resources for the Court’s work.

 

The ICC operates in a time of general economic downturn in which States Parties understandably are more careful in the distribution of their resources.

 

While the Court is working very hard to increase its efficiency, the States Parties, mindful of their commitment to the fight against impunity, must ensure that the ICC is provided with the necessary tools to carry out its mandate. To do otherwise would mean letting down all the victims who look to the ICC in hope of justice.

 

International justice is a good investment. The price for justice is not high if we compare it to the consequences of impunity.

 

Excellencies, Ladies and Gentlemen,

 

The Rome Statute is a historic achievement with tremendous potential to deter future violence and turmoil through the adoption of legal norms, backed by an international court of last resort. 

 

After its first decade, the ICC has got to full speed, and the Court is very busy investigating, prosecuting and adjudicating some of the worst crimes imaginable to humankind.

 

The force of international criminal justice has come a long way. Yet, we are aware that there is much room for improvement and we face serious challenges. 

 

The ICC was created by States and it is their responsibility to further enhance this evolving system of international criminal justice. […]

 

As I said, the Rome Statute is a system of shared responsibilities. Cooperation at every level is necessary.  Vocal support and ensuring sufficient resources for the ICC’s mandate is vital. But above all, I would stress the need to respect the ICC’s role as a judicial institution. In my view, that is absolutely crucial for the integrity of the evolving Rome Statute system.

 

Thank you for your attention.

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