서울국제포럼 The Seoul Forum for International Affairs(SFIA)
Logo and Menu
RESOURCES
About UsSubmenu
Events Submenu
Members Submenu
Resources Submenu
Opinion (KOR/ENG/JPN) Submenu
Journal and Books Submenu
Full Menu
Publication and Reports
2013 05 06-Embargoed copy of President Song speech at Korea University 6 May 2013 (1).docx(84.39KB)
President Kim, Excellencies, ladies and gentlemen,
It is a great pleasure and an honour to be back home in Seoul, in my own country among old friends and new alike. I would like to begin by offering my sincere thanks to the President and all the organisers of this event as well as the head of the Global Leadership Development Centre for the kind invitation and the warm welcome that you have offered me. I always try to accept invitations to speak at universities – I am, at heart, a law professor and I have spent the majority of my career in education. I love talking to students, and being inspired by their energy and enthusiasm.
I am here today to speak about the institution that I am proud to serve, as President and as an Appeals Judge: the International Criminal Court. I am sure that many of you in the audience today know a certain amount about the ICC, but even so I would like to start my remarks today with a brief explanation of the historical process that brought this remarkable institution into being.
My real focus today, however, will be the way in which the ICC is changing the world. I want to talk about this in two ways: firstly I will discuss the way in which the ICC has a real effect on the conduct of international politics, regarding the successes it has already had in fighting impunity and deterring the commission of crimes around the world. Secondly, I want to talk about how the ICC is changing the very way that we think about the commission of international crimes, and reshaping our understanding of the nexus between international law, politics, and development.
Let me first tell you a little about myself. Most of you in this room are too young to have personally experienced the war that tore this country apart in the 1950s. I was a child at the time and I remember vividly the horrific experience of living in a bunker in Seoul, emerging to walk many miles to collect food for my family, passing decomposing corpses on the way. Going through this experience inculcated in me a lifelong hatred of war and violence, and I am profoundly grateful that you as young people today do not have to go through what I did.
Thankfully, the war ended, and I was able to grow up in relative peace and prosperity, a privilege I have always been profoundly grateful for. Regrettably there are still far too many parts of the world today in which peace remains an unattainable luxury. As President of the ICC, I have met with victims in Uganda and the Democratic Republic of the Congo. Some were former child soldiers, grappling to rebuild their lives. Other victims were missing arms or legs, or lips or ears, which had been intentionally cut off. The brutality which they suffered reminded me that, unfortunately, with so many countries caught up in conflict, we are far from eradicating depravity and mass violence.
Those of us who are granted the blessing of peace and safety from this horrific violence must always ask ourselves what we can do with this gift. I chose a legal career, and I have believed all my life that it is through law that the worst violence and cruelty inflicted upon humans can be prevented. This is the same belief that has guided the development of international criminal justice through the Twentieth Century.
History
[SLIDE CHANGE – 2: HISTORY FROM NUREMBERG TO ROME]
In the aftermath of the Second World War there was a fundamental overhaul of the institutions of international society with the aim of preventing the recurrence of the horrific violence that had torn the world apart. The United Nations was created in order to enable peaceful cooperation between states, and the International Court of Justice was established as the principal judicial organ of this new system with a mandate to apply international law in order to resolve disputes between States.
At this time, we also saw the emergence for the first time of a real body of international human rights law with the adoption of the Universal Declaration of Human Rights, the Geneva Conventions and the Genocide Convention. At the same time, two international military tribunals were established, in Nuremberg and Tokyo, in order to try the perpetrators of the hideous crimes committed during the Second World War. These provided an image of how the gap in this new international architecture could be filled, offering the potential for real, internationally enforceable criminal law that would provide justice for the worst crimes – genocide, crimes against humanity, war crimes, and the crime of aggression.
Unfortunately, international criminal justice was a victim of the Cold War rivalry and the project lay dormant for the subsequent half a century. However when the Cold War ended, the idea was revived, and following the horrific atrocities committed in the former Yugoslavia and Rwanda, the United Nations Security Council established two ad hoc tribunals to try the perpetrators of the crimes committed there.
This breathed new life into international criminal law, and in 1998 representatives from 160 states from around the world gathered in Rome to negotiate an international treaty that would become the founding document for the world’s first permanent International Criminal Court. On the 17th of July 1998, the Rome Statute was adopted. Finally, this missing piece in the institutional architecture of international society was filled in.
Four years later, far more quickly than even the ICC’s most ardent supporters anticipated, the sixtieth ratification was deposited, and the ICC was established as a new, permanent international organisation, independent from the United Nations or any other body.
The ICC has had a turbulent first decade. As the only permanent international criminal court mandated to prosecute genocide, crimes against humanity, and war crimes, it has at times faced significant challenges to the accomplishment of its work, and some of the judges who first arrived in The Hague thought that the Court might not survive. Today, I am pleased to be able to say that those fears proved unfounded. The ICC has shown that it is able to do its work with professionalism and integrity, and enjoys the strong support of the international community.
Today the ICC has eight country situations under investigation, our first two verdicts have been issued with one conviction and one acquittal, and both are under appeal, both are regarding the recruitment of child soldiers in the Democratic Republic of the Congo. Another verdict is expected soon, and other trials are progressing well.
Today, however, I want to focus less on the judicial work of the ICC, and give you a larger picture of how I believe this institution is changing the world. I would like to make two arguments to persuade you of this: firstly I will talk about the real world impact that the ICC has on conflict situations, and then secondly I will look at the way in which the broader Rome Statute system is responsible for a normative shift in the world that is reshaping the way that we think about crime, justice, and accountability.
Prevention
[SLIDE CHANGE – 3: FROM PUNISHMENT TO PREVENTION]
The perception of the ICC around the world is still often determined by the image of international tribunals going back to Nuremberg. This is the idea that the Court’s purpose is ex post facto justice, and it only exists to put on trial high level perpetrators of mass atrocities after crimes have been committed.
Of course it is not incorrect to view the ICC as the latest in a series of international mechanisms to address crimes that have previously occurred, and the ICC is very much the institution that people now look to for justice if it is unattainable in their own countries. However I profoundly believe that the long term significance of the ICC, and one of the ways in which it is really changing the world for the better is in its ability to have an impact on the prevention of crimes before they happen.
Firstly, one of the most crucial aspects of international justice is its deterrent effect. Deterrence is notoriously difficult to measure since success means the absence of events to measure or study.
Furthermore, every situation that we see around the world is unique, and showing a real causal link between the ICC and the absence of violence is extremely difficult.
That being said, there is increasing evidence to suggest that under certain circumstances the existence of the ICC does have a real deterrent effect. Arrest warrants for sitting heads of state issued by the ICC as well as other international courts have demonstrated that no one is immune from accountability and that the likelihood of punishment has grown.
Furthermore, we are starting to see that in countries which have had a pattern of violence in the aftermath of elections, the ICC has had an impact. The Justice Minister of the Democratic Republic of the Congo personally told me that the ICC had had a real deterrent effect in helping to prevent violence following the most recent elections.
More recently, the election in Kenya earlier this year was the first election that country has had since independence without significant post-election violence. It will take more time and research to ascertain what the role of the ICC was in this, but some commentators have suggested that the dramatic difference between the 2007 election and the 2013 election had something to do with the intervention of the ICC.
The preventative impact of the ICC goes well beyond this however. The second area that I want to address is the ability of the ICC to intervene in situations to react to the threat of crimes at an early stage. The fact that the Prosecutor of the ICC is entirely independent means that she does not need to consult anyone before opening a preliminary examination, and does not require the approval of any political body.
The Office of the Prosecutor can, and does, monitor developments in a number of countries under the ICC’s jurisdiction. Where tensions arise, she can announce publicly that she is following the situation closely. This is a powerful tool that can put any potential perpetrators of crimes on notice that they might be held liable for their actions. It can also draw local and international attention to the situation and induce the parties to take the necessary action to defuse tensions and ensure that crimes are not committed.
Where atrocities are committed, the Prosecutor can open an investigation, but this does not necessarily have to lead to a full investigation. Ideally, the national authorities would take steps to investigate and prosecute the alleged crimes themselves, thus reducing the likelihood of further crimes, building the rule of law, and expanding the deterrent effect at a local level.
In these ways, the International Criminal Court is already having a strong effect on conduct of crises that may lead to the commission of atrocities.
There is far more that can be done, and as long as the ICC has large gaps in its jurisdiction, the effect that it can have on situations in countries such as Syria which are not States Parties is severely limited. However, as a young institution, the ICC is having a material impact and punching above its weight in international politics.
Normative Development
[SLIDE CHANGE – 4: NORMATIVE DEVELOPMENT]
Allow me now to turn to a different way in which I believe the ICC is changing the world, and this brings me to the real meaning of my title today. The ICC is entrenching a new justice paradigm – what does this mean?
I believe that one of the most important effects that the ICC has already had, and continues to have, is the way in which it entrenches a system of norms that outlaw atrocities. I am referring to far more than the day to day practice of the ICC, with its investigations, prosecutions and judicial work. The existence of the broader Rome Statute system, now counting 122 States Parties, has demonstrated the increasingly strong normative consensus around the world that impunity for the worst atrocity crimes must no longer be tolerated.
The ICC, therefore, must be placed in a broad normative context whereby the Court is merely the tip of the iceberg – the most visible part of an enormous global system constructed to bring an end to the world’s worst atrocity crimes. This system operates at multiple levels, and I would like to talk about several of them now.
Firstly, and most importantly, the ICC operates according to the principle of complementarity. This means that States always retain the primary responsibility to investigate and prosecute alleged crimes themselves, and the ICC can only intervene when national jurisdictions are unwilling or unable genuinely to do so.
This means that it is the responsibility of states to ensure that the crimes in the Rome Statute are fully implemented into their domestic criminal codes and that national prosecutors take a proactive role in ensuring that they play their role in the fight against impunity. The first Prosecutor of the ICC said that the Court would ultimately be successful when it had no cases to prosecute and I share this belief.
The ICC is designed as a court of last resort with a mandate to close gaps in the fight against impunity, not to supersede properly functioning national judicial systems. The ideal world that we are striving to create is one in which every state in the world has dedicated itself to the fight against impunity, and actively investigates alleged crimes themselves.
Secondly, the doctrine of complementarity has real implications when it comes to the nexus between the ICC and development. We are seeing the increasing mainstreaming of international justice into development work around the world, as donors and their partner countries alike increasingly recognise that post-conflict stabilisation and lasting peace is impossible without justice.
Additionally, the ICC has pioneered a brand new form of reparative justice for those individuals and communities most affected by crimes through its Trust Fund for Victims. This independent organisation has a mandate to assist victims in situation countries as well as to implement judicially ordered reparations. This is providing an entirely new image of what it means to link the practical work of development with ideas of transitional justice, in particular for the most vulnerable people – the victims.
Thirdly, while the ICC is an independent international organisation, it is by no means an isolated one. It fits into and complements the pre-existing international structures that exist to deal with conflict, international crime, and development. The most important example of this is the relationship between the ICC and the United Nations. The two organisations have a relationship agreement, and the Rome Statute affords a number of rights to the UN regarding the work of the ICC.
For instance, the UN Security Council can refer situations to the Prosecutor of the ICC using its Chapter VII powers, and has done so twice: once in 2005 referring Darfur, Sudan, and once in 2011 with the unanimous referral of Libya to the ICC. The Security Council also has the right, should it so choose, to defer a case for twelve months, thus recognising that judicial processes can have an impact on peace and security. This has not happened so far.
The UN and the ICC cooperate closely, sharing information and collaborating in the field in situation countries for mutual benefit. Furthermore, we are seeing the increasing mainstreaming of the work of the ICC into the broader work of the international community through the UN. Most recently for example, the Security Council gave the UN peacekeeping force in Mali a broad mandate to assist the ICC in that situation country, an important step forward in UN-ICC cooperation.
Lastly, one of the most remarkable aspects of the ICC is the way that it has been at the forefront of a global civil society campaign to end impunity for the worst international crimes. I am inspired on a daily basis by the incredible energy and dedication coming from individuals and civil society groups from across the world calling for justice in their countries and around the world.
These groups played an invaluable role pushing states into the successful negotiation of the Rome Statute in 1998 and today they continue to fight for the ICC to fulfil the hopes that have been placed in it.
Millions of people around the world have responded to the call to put an end to impunity and are raising awareness in their communities, taking action to put pressure on their governments and ensuring that the ICC is not an elite project confined to capitals and court rooms, but rather one with deep and powerful support that cannot be ignored by policy makers and power brokers.
[SLIDE CHANGE – 5: CONCLUSION]
The creation of the International Criminal Court just over a decade ago was a moment of heady idealism for many of us who were involved – we were stepping forward, into the unknown armed with the lessons of history that impunity cannot be tolerated, and our profound desire to change the world. The last ten years have shown us all that such dreams will always be hard to realise, that there have been obstacles and stumbling blocks on the way, and no doubt the ICC will face obstacles in the future.
We will probably never fulfil all of the hopes of all of the people that believe in us, but I am here today to tell you that the ICC has already changed the world, and will continue to do so from now into the future as a giant leap forward in the global fight against impunity. That future is in your hands, and as the next generation of leaders, I hope that you will never give up trying to change the world.
Thank you very much.
