WEBVTT 1 00:00:16.000 --> 00:00:18.740 Before dealing with specific articles 2 00:00:18.740 --> 00:00:22.170 of the Preamble to the Rome Statute 3 00:00:22.170 --> 00:00:23.940 for the International Criminal Court, 4 00:00:24.340 --> 00:00:26.450 a few words by way of introduction. 5 00:00:27.250 --> 00:00:29.140 Before the early 1990s 6 00:00:29.140 --> 00:00:30.800 International Criminal Law had lost 7 00:00:30.800 --> 00:00:33.710 its importance. After it was used 8 00:00:33.710 --> 00:00:35.370 at the Nuremberg Tribunal after 9 00:00:35.370 --> 00:00:37.540 the Second World War, it really 10 00:00:37.540 --> 00:00:40.570 went into limbo and it took the 11 00:00:41.820 --> 00:00:44.680 war in the former Yugoslavia to 12 00:00:44.680 --> 00:00:48.620 galvanize the Security Council in 1993 13 00:00:48.850 --> 00:00:50.680 to establish the first ever truly 14 00:00:50.680 --> 00:00:52.220 international criminal court, 15 00:00:52.740 --> 00:00:54.510 The International Criminal Tribunal 16 00:00:54.510 --> 00:00:56.050 for the former Yugoslavia. 17 00:00:56.850 --> 00:01:02.910 That was followed the following year in 1994 18 00:01:03.140 --> 00:01:04.680 by the establishment of the 19 00:01:04.680 --> 00:01:07.250 International Criminal Tribunal for Rwanda, 20 00:01:08.000 --> 00:01:10.400 also set up by the Security Council. 21 00:01:11.020 --> 00:01:13.310 Both of those tribunals are referred 22 00:01:13.310 --> 00:01:15.940 to usually as the ad hoc tribunals. 23 00:01:17.140 --> 00:01:20.170 They began a new interest in 24 00:01:20.170 --> 00:01:22.970 International Criminal Law and it 25 00:01:22.970 --> 00:01:24.970 was really the successes of those 26 00:01:24.970 --> 00:01:28.000 two ad hoc tribunals that led to the 27 00:01:28.000 --> 00:01:31.080 international community establishing 28 00:01:31.140 --> 00:01:33.480 the permanent International Criminal Court 29 00:01:33.880 --> 00:01:36.450 at a conference held in Rome 30 00:01:36.510 --> 00:01:38.450 in the middle of 1998. 31 00:01:40.680 --> 00:01:43.880 The International Criminal Court 32 00:01:44.050 --> 00:01:45.370 would not I believe have come 33 00:01:45.370 --> 00:01:47.820 about but for the relative successes 34 00:01:48.000 --> 00:01:49.820 of the ad hoc tribunals. 35 00:01:50.220 --> 00:01:52.450 They advanced international criminal law. 36 00:01:52.910 --> 00:01:54.680 They used international criminal law 37 00:01:54.680 --> 00:01:56.680 which had pretty much been neglected 38 00:01:56.680 --> 00:01:58.340 in the previous decades. 39 00:01:58.970 --> 00:02:03.420 Very importantly, they showed that 40 00:02:03.420 --> 00:02:05.940 international criminal courts, staffed by 41 00:02:05.940 --> 00:02:07.480 judges from around the world, 42 00:02:07.480 --> 00:02:09.770 by prosecutors from around the world, 43 00:02:10.970 --> 00:02:13.250 they established that such a court 44 00:02:13.540 --> 00:02:16.400 could in fact hold fair trials, 45 00:02:16.570 --> 00:02:19.080 fair international criminal trials. 46 00:02:19.480 --> 00:02:21.140 I now turn to consider some of 47 00:02:21.370 --> 00:02:24.280 the specific articles of the 48 00:02:24.280 --> 00:02:26.450 Preamble of the Rome Statute for 49 00:02:26.450 --> 00:02:28.110 the International Criminal Court. 50 00:02:30.000 --> 00:02:32.110 Preamble [article] one states that 51 00:02:32.110 --> 00:02:35.310 “Conscious that all peoples are united 52 00:02:35.310 --> 00:02:39.020 by common bonds, their cultures pieced 53 00:02:39.020 --> 00:02:40.850 together in a shared heritage, 54 00:02:41.080 --> 00:02:43.200 and concerned that this delicate mosaic 55 00:02:43.200 --> 00:02:45.020 may be shattered at any time”. 56 00:02:45.600 --> 00:02:47.940 The very first Preamble demonstrates 57 00:02:47.940 --> 00:02:50.570 the concern of the international community 58 00:02:50.850 --> 00:02:52.570 that international criminal law 59 00:02:52.620 --> 00:02:54.570 should be seen to be universal. 60 00:02:55.370 --> 00:02:58.850 If women are raped in eastern Asia, 61 00:02:59.420 --> 00:03:01.370 or in southern Africa, or anywhere 62 00:03:01.370 --> 00:03:03.650 else in the world, their victimhood 63 00:03:03.650 --> 00:03:06.000 is the same, it's no different. 64 00:03:06.340 --> 00:03:09.080 So too, murder and other serious 65 00:03:09.080 --> 00:03:11.310 war crimes, the victims having 66 00:03:11.310 --> 00:03:13.770 commonly normal human reactions 67 00:03:13.770 --> 00:03:16.170 of being diminished or being demeaned, 68 00:03:16.170 --> 00:03:18.220 of being of being put through 69 00:03:18.220 --> 00:03:20.970 painful experiences, and for loved ones, 70 00:03:20.970 --> 00:03:22.510 of having members of their 71 00:03:22.680 --> 00:03:25.650 family taken from them in 72 00:03:26.340 --> 00:03:28.170 grossly unlawful ways. 73 00:03:28.570 --> 00:03:32.170 The very idea of genocide is a 74 00:03:32.170 --> 00:03:35.600 horrible concept of evil leaders, 75 00:03:36.000 --> 00:03:39.480 civilian and military, deciding to put 76 00:03:39.480 --> 00:03:41.770 an end to the existence of a whole 77 00:03:41.770 --> 00:03:44.340 people or a part of a whole people. 78 00:03:46.400 --> 00:03:48.970 I turn now to the second 79 00:03:50.910 --> 00:03:52.570 article of the Preamble. 80 00:03:53.250 --> 00:03:55.940 It reads as follows: “Mindful that 81 00:03:55.940 --> 00:03:58.850 during this century millions of children, 82 00:03:58.850 --> 00:04:01.020 women and men have been victims 83 00:04:01.020 --> 00:04:03.710 of unimaginable atrocities that 84 00:04:03.710 --> 00:04:06.110 deeply shock the conscience of humanity”. 85 00:04:07.080 --> 00:04:09.310 Clearly, the reference is to the 20th century. 86 00:04:09.820 --> 00:04:11.770 Bear in mind that this Statute 87 00:04:11.770 --> 00:04:15.710 was written and approved at 88 00:04:15.710 --> 00:04:19.540 the meeting in Rome [at the end] 89 00:04:19.650 --> 00:04:20.970 of the 20th century. 90 00:04:22.050 --> 00:04:25.770 It is a sad reflection that the 91 00:04:26.800 --> 00:04:29.880 persistence of the committal of 92 00:04:29.880 --> 00:04:32.620 these huge crimes to which 93 00:04:32.620 --> 00:04:34.680 reference is made in this Preamble 94 00:04:34.680 --> 00:04:36.110 have continued into our 95 00:04:36.110 --> 00:04:38.110 present 21st century. 96 00:04:38.570 --> 00:04:41.200 Of course, in the 20th century, 97 00:04:41.200 --> 00:04:43.370 one thinks of the genocides that 98 00:04:43.370 --> 00:04:45.020 accompanied the Second World War, 99 00:04:45.020 --> 00:04:48.110 the Holocaust; the genocide committed 100 00:04:48.110 --> 00:04:51.650 in Cambodia and in Iraq, and the terrible 101 00:04:51.650 --> 00:04:55.310 wars that plagued the African continent, 102 00:04:56.000 --> 00:05:00.110 but it continues now in Syria and Myanmar. 103 00:05:04.680 --> 00:05:06.220 One of the things we can learn 104 00:05:06.220 --> 00:05:08.620 from the war crimes that are being 105 00:05:08.620 --> 00:05:10.740 committed over many centuries 106 00:05:10.910 --> 00:05:12.740 is that it can happen anywhere. 107 00:05:13.370 --> 00:05:17.140 It would be a huge mistake to 108 00:05:17.140 --> 00:05:18.680 consider that only some peoples 109 00:05:18.680 --> 00:05:20.800 of the world are capable of committing 110 00:05:20.800 --> 00:05:22.280 genocide and not others. 111 00:05:22.800 --> 00:05:25.200 Where there is fear and dehumanization 112 00:05:25.200 --> 00:05:28.228 of people, international war crimes 113 00:05:28.220 --> 00:05:31.314 follow almost like night follows day. 114 00:05:33.200 --> 00:05:35.085 I turn now to the third 115 00:05:35.085 --> 00:05:37.080 article of the Preamble. 116 00:05:37.257 --> 00:05:39.257 It reads, “Recognizing that such 117 00:05:39.250 --> 00:05:41.542 grave crimes threaten the peace, 118 00:05:41.540 --> 00:05:43.885 security and well-being of the world”. 119 00:05:44.628 --> 00:05:46.342 It should be borne in mind that 120 00:05:46.340 --> 00:05:49.942 in most cases egregious war crimes 121 00:05:50.171 --> 00:05:51.940 being committed in one country 122 00:05:51.940 --> 00:05:54.628 spill over into neighboring countries. 123 00:05:54.914 --> 00:05:57.257 If one looks at the genocide that 124 00:05:57.250 --> 00:06:00.571 accompanied the Rwanda killings 125 00:06:00.914 --> 00:06:03.314 in the middle of 1994, 126 00:06:03.310 --> 00:06:06.057 one sees today in our present day 127 00:06:06.171 --> 00:06:09.485 the results of destabilization in other 128 00:06:09.480 --> 00:06:11.028 countries of the Great Lakes 129 00:06:11.200 --> 00:06:13.657 and particularly in Burundi and the 130 00:06:13.657 --> 00:06:15.650 Democratic Republic of the Congo. 131 00:06:16.228 --> 00:06:18.571 The Security Council used its peremptory 132 00:06:18.570 --> 00:06:22.342 powers under Chapter 7, namely 133 00:06:22.340 --> 00:06:26.628 the setting up of a peacekeeping tool, 134 00:06:26.620 --> 00:06:28.057 to put an end to a threat to 135 00:06:28.050 --> 00:06:30.114 international peace and security. 136 00:06:30.285 --> 00:06:32.342 It recognized that the genocide 137 00:06:32.340 --> 00:06:35.485 in Rwanda was spilling over 138 00:06:35.885 --> 00:06:38.342 into neighboring countries. 139 00:06:38.857 --> 00:06:41.657 In the former Yugoslavia the wars, 140 00:06:41.650 --> 00:06:44.742 particularly in Bosnia and Herzegovina, 141 00:06:44.740 --> 00:06:46.685 resulted in hundreds of thousands of 142 00:06:47.542 --> 00:06:51.657 refugees moving into other countries in Europe. 143 00:06:51.942 --> 00:06:54.342 Over 300,000 of them ended up in 144 00:06:54.340 --> 00:06:57.371 Germany in the middle 1990s. 145 00:07:01.542 --> 00:07:03.828 One aspect of the Security Council 146 00:07:03.820 --> 00:07:05.771 that I should mention with regard 147 00:07:05.770 --> 00:07:08.914 to this Preamble, this third article 148 00:07:08.910 --> 00:07:11.428 to the Preamble to the Rome Statute 149 00:07:11.420 --> 00:07:13.314 for the International Criminal Court, 150 00:07:13.942 --> 00:07:16.228 is the disappointing, certainly to me, 151 00:07:16.220 --> 00:07:18.742 the disappointment of the Security Council 152 00:07:18.914 --> 00:07:20.171 not following through 153 00:07:20.171 --> 00:07:22.170 on the actions it takes. 154 00:07:23.028 --> 00:07:25.657 Under the Rome Statute as we’ll see, 155 00:07:25.650 --> 00:07:29.257 the Security Council is given the power 156 00:07:29.314 --> 00:07:32.000 to request the International Criminal Court 157 00:07:32.228 --> 00:07:35.485 to undertake investigations and prosecutions 158 00:07:35.480 --> 00:07:39.942 into particular areas of concern to the 159 00:07:39.940 --> 00:07:42.742 Security Council, and particularly where there is 160 00:07:42.742 --> 00:07:45.771 a threat to international peace and security. 161 00:07:46.114 --> 00:07:47.771 It was under those provisions that 162 00:07:47.770 --> 00:07:50.457 the Security Council requested the 163 00:07:50.450 --> 00:07:53.600 International Criminal Court to undertake 164 00:07:53.600 --> 00:07:57.028 investigations into Sudan arising 165 00:07:57.028 --> 00:07:59.020 from the war crimes being committed 166 00:07:59.020 --> 00:08:01.885 in the Darfur province of that country, 167 00:08:02.171 --> 00:08:05.542 and a couple of years later into Libya. 168 00:08:06.742 --> 00:08:08.228 The International Criminal Court 169 00:08:08.220 --> 00:08:11.942 accepted both referrals and expended 170 00:08:11.940 --> 00:08:14.400 a lot of time, energy, and money 171 00:08:14.742 --> 00:08:15.942 on investigating them. 172 00:08:16.914 --> 00:08:21.028 Then both countries, [particularly] 173 00:08:21.020 --> 00:08:24.457 Sudan under the Presidency of Omar Al-Bashir 174 00:08:24.857 --> 00:08:26.450 demeaned the Security Council. 175 00:08:26.914 --> 00:08:29.028 It refused to recognize or act 176 00:08:29.020 --> 00:08:31.485 on the referrals and the 177 00:08:31.480 --> 00:08:33.314 Security Council did nothing, 178 00:08:33.310 --> 00:08:36.000 absolutely nothing, to ensure that its 179 00:08:36.000 --> 00:08:38.800 own peremptory resolution was respected 180 00:08:38.800 --> 00:08:41.314 by the target country, Sudan. 181 00:08:42.057 --> 00:08:45.828 In the case of Libya, the Libyan 182 00:08:46.280 --> 00:08:49.771 government refused in many cases to 183 00:08:49.828 --> 00:08:52.800 cooperate with the International Criminal Court. 184 00:08:53.257 --> 00:08:55.428 One would've expected the Security Council 185 00:08:55.420 --> 00:08:58.400 to use its powers including boycotts 186 00:08:58.628 --> 00:09:02.742 and trade embargoes to enforce the effects 187 00:09:02.740 --> 00:09:05.600 of its own resolution, and particularly 188 00:09:05.600 --> 00:09:07.600 in the case of Sudan. 189 00:09:07.942 --> 00:09:10.514 They didn't do that, and the result is that 190 00:09:10.510 --> 00:09:14.000 the International Criminal Court has had 191 00:09:14.000 --> 00:09:17.200 to put the Sudan situation on ice. 192 00:09:17.771 --> 00:09:21.485 It's been shelved for the time being 193 00:09:21.714 --> 00:09:23.714 because of the lack of cooperation from 194 00:09:24.228 --> 00:09:26.171 Sudan and some other countries, 195 00:09:26.171 --> 00:09:28.170 but particularly the Security Council. 196 00:09:28.914 --> 00:09:30.285 The other problem I have with the 197 00:09:30.280 --> 00:09:32.514 Security Council referrals is they bow 198 00:09:32.742 --> 00:09:35.942 to the American demand that the costs 199 00:09:35.940 --> 00:09:38.914 of the referral should be born 100% 200 00:09:38.914 --> 00:09:40.910 by the International Criminal Court, 201 00:09:41.257 --> 00:09:43.657 and that not one cent of United Nations 202 00:09:43.650 --> 00:09:46.628 funds should be used for referrals made 203 00:09:46.620 --> 00:09:49.085 by the Security Council on behalf 204 00:09:49.080 --> 00:09:50.800 of the whole United Nations. 205 00:09:51.314 --> 00:09:53.085 The second problem I have is that, 206 00:09:53.080 --> 00:09:55.771 again bound to the United States demand, 207 00:09:56.000 --> 00:09:59.257 the Security Council referral is not 208 00:09:59.428 --> 00:10:02.114 binding on any member states of the 209 00:10:02.971 --> 00:10:05.257 United Nations other than those 210 00:10:05.250 --> 00:10:08.800 who have ratified the Rome Statute 211 00:10:08.800 --> 00:10:10.914 for the International Criminal Court. 212 00:10:11.371 --> 00:10:12.857 That obviously arose because 213 00:10:12.850 --> 00:10:15.085 of the United States not wishing 214 00:10:15.080 --> 00:10:19.200 [to subject] itself in any way 215 00:10:19.485 --> 00:10:21.828 to any orders or requests of 216 00:10:21.820 --> 00:10:23.657 the International Criminal Court. 217 00:10:26.000 --> 00:10:29.257 I turn to the sixth article of the 218 00:10:29.250 --> 00:10:32.057 Preamble to the Rome Statute for 219 00:10:32.050 --> 00:10:33.600 the International Criminal Court. 220 00:10:34.457 --> 00:10:36.914 It reads as follows, “Determined to put an 221 00:10:36.910 --> 00:10:39.314 end to impunity for the perpetrators of 222 00:10:39.310 --> 00:10:42.171 these crimes and thus to contribute to the 223 00:10:42.170 --> 00:10:44.971 prevention of such crimes”. 224 00:10:46.228 --> 00:10:48.971 Well until the ad hoc tribunals 225 00:10:48.970 --> 00:10:51.771 were set up, there was truly impunity 226 00:10:51.885 --> 00:10:53.770 for international war criminals. 227 00:10:54.340 --> 00:10:57.600 The only courts generally speaking that had 228 00:10:57.771 --> 00:10:59.771 jurisdiction to try them were their 229 00:10:59.770 --> 00:11:02.971 own domestic courts, and unfortunately many 230 00:11:02.970 --> 00:11:05.828 war criminals were regarded in their homes 231 00:11:05.828 --> 00:11:07.820 as war heroes rather than criminals, 232 00:11:08.342 --> 00:11:10.285 and they were no domestic 233 00:11:10.800 --> 00:11:14.000 trials or investigations into war crimes 234 00:11:14.000 --> 00:11:16.742 committed prior to the setting up 235 00:11:16.740 --> 00:11:19.257 of the two ad hoc tribunals 236 00:11:19.250 --> 00:11:22.971 in 1993 and 1994 respectively. 237 00:11:24.571 --> 00:11:27.771 The importance of withdrawing impunity 238 00:11:27.770 --> 00:11:31.542 is primarily to provide some solace, 239 00:11:31.540 --> 00:11:33.771 some acknowledgment, some recognition 240 00:11:34.057 --> 00:11:37.028 of the victimhood of the millions of victims 241 00:11:37.257 --> 00:11:40.171 who suffered as a result of war crimes committed 242 00:11:40.170 --> 00:11:44.342 over the decades and indeed over the centuries. 243 00:11:44.971 --> 00:11:47.371 The hope of the Security Council and the 244 00:11:47.370 --> 00:11:49.600 international community was that 245 00:11:49.600 --> 00:11:51.942 withdrawing impunity would also, 246 00:11:51.940 --> 00:11:55.657 as the article of the Preamble suggests, 247 00:11:56.057 --> 00:12:00.971 would also be a reason to reduce the 248 00:12:00.970 --> 00:12:04.514 number of war crimes that that are committed, 249 00:12:05.085 --> 00:12:09.314 to be some way of inducing some leaders, 250 00:12:09.657 --> 00:12:12.971 some military leaders, some civilian leaders 251 00:12:13.142 --> 00:12:15.714 to think twice before 252 00:12:15.710 --> 00:12:17.142 committing war crimes. 253 00:12:18.857 --> 00:12:21.942 Whether the International Criminal Court 254 00:12:21.942 --> 00:12:23.940 and the Rome Statute has had 255 00:12:23.942 --> 00:12:26.914 a deterrent effect is of course difficult, 256 00:12:26.910 --> 00:12:29.142 if not impossible to prove. 257 00:12:29.485 --> 00:12:32.628 It's difficult always to prove a negative, 258 00:12:33.371 --> 00:12:36.742 but [there is] some anecdotal evidence 259 00:12:36.742 --> 00:12:38.740 that it has had a deterrent effect. 260 00:12:39.250 --> 00:12:42.742 When the Croatian Army went in to 261 00:12:43.257 --> 00:12:48.114 reclaim its own regions that had been 262 00:12:48.110 --> 00:12:50.114 overtaken by the Serb Army in what 263 00:12:50.110 --> 00:12:53.142 was called Operation Storm, the leaders 264 00:12:53.140 --> 00:12:55.085 of Croatia, President Tuđman and the 265 00:12:55.080 --> 00:12:58.000 Army leaders warned the armies that 266 00:12:58.000 --> 00:13:00.000 they should not commit war crimes. 267 00:13:00.228 --> 00:13:01.542 They were very conscious of the 268 00:13:01.540 --> 00:13:04.057 existence of the International Criminal Tribunal 269 00:13:04.050 --> 00:13:06.514 for the former Yugoslavia, and they didn't 270 00:13:06.510 --> 00:13:10.400 want to aggravate the situation 271 00:13:10.400 --> 00:13:13.142 that existed in any event of war 272 00:13:13.140 --> 00:13:14.457 crimes having been committed. 273 00:13:15.142 --> 00:13:17.542 Unfortunately, in Operation Storm the Croatian 274 00:13:17.714 --> 00:13:19.540 Army did commit war crimes, 275 00:13:19.771 --> 00:13:21.314 but I would suggest that they 276 00:13:21.310 --> 00:13:23.771 would've been more serious had the 277 00:13:23.771 --> 00:13:25.770 warnings not being given by their leaders 278 00:13:25.770 --> 00:13:27.028 not to commit war crimes. 279 00:13:27.885 --> 00:13:29.085 In the case of Colombia, 280 00:13:29.080 --> 00:13:30.800 in a very different situation on a 281 00:13:30.800 --> 00:13:34.628 very different continent, in Latin America, 282 00:13:35.020 --> 00:13:37.028 there can be no question that the 283 00:13:37.085 --> 00:13:39.657 Colombian government was very concerned 284 00:13:39.771 --> 00:13:42.114 about the investigation, the preparatory 285 00:13:42.110 --> 00:13:44.742 investigation by the Chief Prosecutor 286 00:13:44.914 --> 00:13:46.740 of the International Criminal Court 287 00:13:47.200 --> 00:13:48.971 into possible war crimes having 288 00:13:48.970 --> 00:13:50.457 been committed in Columbia. 289 00:13:50.971 --> 00:13:53.428 I have no doubt that the presence of 290 00:13:53.420 --> 00:13:55.085 the International Criminal Court, 291 00:13:55.080 --> 00:13:57.371 and of course the fact that Columbia 292 00:13:57.371 --> 00:13:59.370 had ratified the Rome Statute, 293 00:13:59.600 --> 00:14:03.371 has played a very positive role leading 294 00:14:03.370 --> 00:14:06.800 to the present negotiated settlement 295 00:14:06.800 --> 00:14:09.771 between the government of Columbia and 296 00:14:10.914 --> 00:14:14.285 [the] rebel movements FARC and ELN. 297 00:14:14.280 --> 00:14:18.285 So, there is some evidence of deterrence 298 00:14:18.450 --> 00:14:21.600 and I have little doubt, and certainly it’s 299 00:14:21.600 --> 00:14:21.657 my great hope that there will be 300 00:14:21.657 --> 00:14:23.371 my great hope that there will be 301 00:14:23.370 --> 00:14:25.942 more deterrence coming from the 302 00:14:25.940 --> 00:14:28.514 ICC in the years to come. 303 00:14:29.485 --> 00:14:33.942 The seventh paragraph of the Preamble to the 304 00:14:33.940 --> 00:14:36.857 Rome Statute provides as follows, 305 00:14:36.850 --> 00:14:38.971 it says “Recalling that it is the duty 306 00:14:38.970 --> 00:14:41.428 of every State to exercise its 307 00:14:41.428 --> 00:14:43.420 criminal jurisdiction over those 308 00:14:43.420 --> 00:14:45.828 responsible for international crimes”. 309 00:14:46.914 --> 00:14:51.657 The International Criminal Court has often been 310 00:14:51.650 --> 00:14:54.400 referred to as a court of last resort. 311 00:14:54.914 --> 00:14:56.628 It is subject to the provisions which 312 00:14:56.620 --> 00:14:59.485 appear later in the Rome Statute, 313 00:14:59.480 --> 00:15:02.400 the provision for complementarity. 314 00:15:02.857 --> 00:15:04.914 The idea is — and this is very clearly 315 00:15:04.910 --> 00:15:08.171 stated, and is really a basis 316 00:15:08.170 --> 00:15:11.085 of the Rome Statute — is that 317 00:15:11.080 --> 00:15:12.800 the International Criminal Court 318 00:15:13.085 --> 00:15:14.800 is a Court of last resort. 319 00:15:15.428 --> 00:15:18.914 That nations are expected to investigate 320 00:15:19.085 --> 00:15:21.485 and prosecute war crimes committed 321 00:15:21.480 --> 00:15:23.028 within the jurisdiction of their 322 00:15:23.020 --> 00:15:25.085 own domestic courts at home. 323 00:15:26.171 --> 00:15:27.714 With the ad hoc tribunals, 324 00:15:27.710 --> 00:15:28.971 it was the other way around. 325 00:15:29.542 --> 00:15:31.600 Because of the powers of the Security Council, 326 00:15:31.600 --> 00:15:34.171 the ad hoc tribunals had primacy. 327 00:15:34.457 --> 00:15:36.628 The ad hoc tribunals could decide what 328 00:15:36.620 --> 00:15:40.342 cases should be heard by them 329 00:15:40.628 --> 00:15:44.971 in Arusha in the case of the Rwanda Tribunal, 330 00:15:45.085 --> 00:15:46.800 and in The Hague in the case of the 331 00:15:46.800 --> 00:15:49.714 Yugoslavia Tribunal, they could decide 332 00:15:49.710 --> 00:15:51.828 what cases they would hear and 333 00:15:51.820 --> 00:15:53.942 what cases should be left to 334 00:15:53.942 --> 00:15:55.940 the jurisdiction of domestic courts. 335 00:15:56.628 --> 00:15:58.000 The International Criminal Court 336 00:15:58.000 --> 00:15:59.942 is exactly the other way around. 337 00:16:00.457 --> 00:16:04.514 If domestic prosecutions are 338 00:16:05.085 --> 00:16:08.685 instituted in good faith, that robs the 339 00:16:08.680 --> 00:16:11.085 International Court of any jurisdiction. 340 00:16:11.428 --> 00:16:15.085 So the first investigation that is made 341 00:16:15.080 --> 00:16:17.714 by the Prosecutor of the 342 00:16:17.885 --> 00:16:19.942 International Criminal Court is to 343 00:16:19.940 --> 00:16:21.828 determine whether there are domestic 344 00:16:21.820 --> 00:16:24.971 proceedings being set afoot, 345 00:16:25.200 --> 00:16:27.085 whether they have been set afoot 346 00:16:27.371 --> 00:16:29.885 in good faith and in earnest, 347 00:16:30.285 --> 00:16:33.771 nd not as some sort of dishonest 348 00:16:33.770 --> 00:16:36.742 way of shielding their own people from 349 00:16:36.740 --> 00:16:38.400 the International Criminal Court. 350 00:16:38.742 --> 00:16:40.171 If there are these good-faith 351 00:16:40.171 --> 00:16:42.170 investigations and prosecutions, 352 00:16:42.457 --> 00:16:44.857 as I've just said, that robs the 353 00:16:44.850 --> 00:16:48.228 International Criminal Court of its jurisdiction. 354 00:16:54.742 --> 00:16:57.085 I would mention in this regard too, 355 00:16:57.080 --> 00:17:01.600 the unhappy situation that the larger 356 00:17:01.600 --> 00:17:05.142 and more powerful states who are members 357 00:17:05.314 --> 00:17:07.771 of the United Nations have not joined 358 00:17:07.770 --> 00:17:09.542 in the International Criminal Court. 359 00:17:10.000 --> 00:17:11.942 They have not ratified the 360 00:17:11.940 --> 00:17:12.971 Rome Statute for the 361 00:17:13.142 --> 00:17:15.028 International Court Criminal Court. 362 00:17:15.314 --> 00:17:18.342 I refer in particular to Russia, 363 00:17:18.340 --> 00:17:20.457 to China, to India, and the 364 00:17:20.457 --> 00:17:22.450 saddest of all, the United States. 365 00:17:23.028 --> 00:17:25.485 I suppose it's common to large states 366 00:17:25.480 --> 00:17:28.514 that they don't like international courts 367 00:17:28.510 --> 00:17:30.971 and international institutions looking over 368 00:17:30.970 --> 00:17:33.142 their shoulders and second-guessing 369 00:17:33.140 --> 00:17:38.057 their own civilian leaders — or their own 370 00:17:38.050 --> 00:17:40.800 civilian leaders or their military leaders. 371 00:17:42.800 --> 00:17:45.142 It's the attitude of the powerful 372 00:17:45.314 --> 00:17:48.000 and it's an exercise of their sovereignty, 373 00:17:48.170 --> 00:17:51.828 and it demonstrates their objection to 374 00:17:51.828 --> 00:17:54.857 having their sovereignty in any way compromised. 375 00:17:55.371 --> 00:17:57.714 Of course, in some cases, it does suit 376 00:17:57.710 --> 00:18:01.085 such countries to accept invasions 377 00:18:01.080 --> 00:18:03.428 of their sovereignty, when it comes 378 00:18:03.420 --> 00:18:06.057 to overflight rights under the 379 00:18:06.050 --> 00:18:09.085 International Convention [on] Civil Aviation, 380 00:18:09.080 --> 00:18:11.142 all countries have to accept under 381 00:18:11.140 --> 00:18:14.057 that convention the right of civilian aircraft 382 00:18:14.050 --> 00:18:17.485 to overfly their airspace. 383 00:18:18.114 --> 00:18:20.628 When it comes to the international 384 00:18:20.620 --> 00:18:23.257 postal and telegraphic conventions, 385 00:18:23.485 --> 00:18:25.542 all countries accept the obligation 386 00:18:25.540 --> 00:18:31.371 to have postal items delivered in 387 00:18:31.370 --> 00:18:33.085 their own countries even if 388 00:18:33.080 --> 00:18:34.857 they come from countries at which 389 00:18:35.085 --> 00:18:38.171 might be temporarily at war. 390 00:18:38.571 --> 00:18:41.485 It’s very much an a la carte menu 391 00:18:41.542 --> 00:18:44.742 for members of the international community 392 00:18:44.740 --> 00:18:47.428 as to which international situations, 393 00:18:47.420 --> 00:18:50.571 international institutions, or international courts 394 00:18:51.028 --> 00:18:54.400 they are prepared to accept and 395 00:18:54.400 --> 00:18:56.057 obviously in making those decisions, 396 00:18:56.050 --> 00:18:58.400 not unexpectedly, governments act 397 00:18:58.400 --> 00:19:00.628 in what they perceived to be the 398 00:19:00.628 --> 00:19:02.620 self-interest of their own countries. 399 00:19:05.142 --> 00:19:08.628 I turn to the eighth paragraph of the Preamble, 400 00:19:09.257 --> 00:19:11.542 it provides that “Reaffirming the Purposes 401 00:19:11.540 --> 00:19:13.142 and Principles of the Charter of the 402 00:19:13.140 --> 00:19:15.714 United Nations, and in particular 403 00:19:15.710 --> 00:19:17.257 that all States shall refrain from 404 00:19:17.250 --> 00:19:18.742 the threat of the use of force 405 00:19:18.740 --> 00:19:21.371 against the territorial integrity or 406 00:19:21.370 --> 00:19:23.314 political independence of any State, 407 00:19:24.000 --> 00:19:26.228 or in any other manner inconsistent with 408 00:19:26.220 --> 00:19:29.028 the Purposes of the United Nations”. 409 00:19:29.600 --> 00:19:32.228 So, here a limit is put on the 410 00:19:32.220 --> 00:19:35.600 use of force unlawfully. 411 00:19:36.000 --> 00:19:40.857 The Rome Statute provides for 412 00:19:40.850 --> 00:19:43.885 the recognition of the crime of aggression 413 00:19:44.285 --> 00:19:46.742 which is different from the other crimes 414 00:19:46.740 --> 00:19:48.457 contained in the Rome Statute. 415 00:19:48.450 --> 00:19:50.914 The other crimes all relate to the manner 416 00:19:51.142 --> 00:19:53.714 in which war is fought, but the crime 417 00:19:53.710 --> 00:19:56.742 of aggression relates to the very act 418 00:19:56.740 --> 00:20:00.171 of making war and recognizes 419 00:20:00.170 --> 00:20:02.971 that it's not an absolute right that 420 00:20:03.085 --> 00:20:04.970 nations have of making war, 421 00:20:05.485 --> 00:20:08.400 unless it's excused in two respects 422 00:20:08.400 --> 00:20:10.400 under the Charter of the United Nations: 423 00:20:11.085 --> 00:20:13.085 it must either be in self-defense; 424 00:20:13.485 --> 00:20:15.257 or it must be authorized by the 425 00:20:15.250 --> 00:20:17.828 Security Council acting under 426 00:20:17.828 --> 00:20:19.820 a Chapter 7 resolution. 427 00:20:21.485 --> 00:20:23.714 The definition of aggression was 428 00:20:23.885 --> 00:20:27.142 a sticking point at the Rome Conference 429 00:20:27.771 --> 00:20:30.685 and it was put in, aggression was 430 00:20:30.680 --> 00:20:35.428 put in as a crime, but it's applicability 431 00:20:35.420 --> 00:20:38.114 was postponed to the first review conference 432 00:20:38.400 --> 00:20:42.000 which was only held [over 10 years later], 433 00:20:42.000 --> 00:20:48.742 in 2010, in Kampala in Uganda. 434 00:20:49.657 --> 00:20:51.314 At that Conference, surprisingly 435 00:20:51.310 --> 00:20:55.200 there was unanimity on the definition 436 00:20:55.200 --> 00:20:59.942 of aggression and the provisions 437 00:20:59.940 --> 00:21:03.314 of the amendments that were agreed 438 00:21:03.310 --> 00:21:05.142 to at Kampala are still 439 00:21:05.140 --> 00:21:06.228 to come into force. 440 00:21:06.628 --> 00:21:08.457 Whether they will, is still a matter 441 00:21:08.450 --> 00:21:10.742 of doubt because it requires the 442 00:21:10.740 --> 00:21:13.428 consent of a large number of the members 443 00:21:13.542 --> 00:21:18.000 of the Assembly of States Parties [of the] 444 00:21:18.285 --> 00:21:19.828 International Criminal Court. 445 00:21:20.171 --> 00:21:23.600 Those countries, those are 124 countries 446 00:21:23.828 --> 00:21:29.028 that have thus far agreed to the jurisdiction 447 00:21:29.428 --> 00:21:31.485 of the International Criminal Court. 448 00:21:33.942 --> 00:21:35.314 I've already mentioned 449 00:21:35.310 --> 00:21:37.085 the idea of complementarity. 450 00:21:37.080 --> 00:21:39.142 It’s to be found in the eleventh 451 00:21:39.714 --> 00:21:43.200 article of the Preamble, which provides, 452 00:21:43.200 --> 00:21:45.028 “Emphasizing that the International 453 00:21:45.020 --> 00:21:46.857 Criminal Court established under 454 00:21:46.850 --> 00:21:49.257 this Statute shall be complementary to 455 00:21:49.257 --> 00:21:51.250 national criminal jurisdictions”. 456 00:21:52.400 --> 00:21:54.457 It's important, I would suggest, 457 00:21:54.450 --> 00:21:56.628 in order for complementarity to work 458 00:21:56.620 --> 00:21:59.542 as it should, for the International Criminal Court 459 00:21:59.540 --> 00:22:02.000 to be far more proactive in what 460 00:22:02.000 --> 00:22:04.628 is understood by the expression 461 00:22:04.628 --> 00:22:06.620 “positive complementarity”. 462 00:22:06.971 --> 00:22:09.942 It's important for countries in which 463 00:22:09.940 --> 00:22:11.600 war crimes are committed, 464 00:22:11.600 --> 00:22:13.885 or likely to be committed, to have the 465 00:22:13.880 --> 00:22:16.914 capacity to investigate themselves, 466 00:22:17.428 --> 00:22:19.371 to have them prosecuted in their 467 00:22:19.370 --> 00:22:21.942 domestic courts, and it should be the 468 00:22:21.940 --> 00:22:23.600 work of the international community, 469 00:22:23.600 --> 00:22:25.600 including the International Criminal Court, 470 00:22:26.114 --> 00:22:29.885 to assist countries, particularly developing 471 00:22:29.880 --> 00:22:32.628 countries to build up their own capacity 472 00:22:33.028 --> 00:22:35.657 which would enable them more efficiently 473 00:22:35.650 --> 00:22:38.457 and more swiftly to investigate war crimes 474 00:22:38.450 --> 00:22:41.085 committed in their own country.