February 12 & 13th, 2009: Citizens for Global Solutions cosponsered an event for ICC President Philippe Kirsch on Capitol Hill to discuss the 'ICC in a new era'.  While in Washington he met with members of the administration, senior Senate staff, and members of Congress.

     We were fortunate to be able to ask President Kirsch a few questions about his experiance as the Court's first president.  Here's what he had to say:

CITIZENS FOR GLOBAL SOLUTIONS WITH PRESIDENT KIRSCH

CGS: As you come to the end of your term as President of the International Criminal Court (ICC), what in your view are the principal accomplishments of the ICC during your term?

Kirsch: Over the past six years, the Court’s entire judicial and administrative structure has been built from scratch.  Today, the Court stands as a firmly established judicial institution.  Twelve arrest warrants have been issued and, with the cooperation of States, four arrests have taken place.  The Court’s first trial began in January 2009 and the Court has begun to address fundamental issues of judicial interpretation in a way that is faithful to the Rome Statute.  Perhaps most importantly, the Court is having an immediate preventive impact on the commission of crimes.  Independent observers have noted several instances where the Court has contributed to deterring crimes or to improving the possibility for peace, as the Court’s founders envisioned.

CGS: As the ICC reaches the 10th anniversary of its founding, what are the challenges facing the ICC in the next ten years?

Kirsch: Over the next ten years, two central challenges will face the Court.

The first challenge is enhancing cooperation.  Like any judicial system, the ICC system is based on two pillars.  The Court is one pillar, the judicial pillar.  The operational pillar belongs to States, international organizations, and civil society. The Court has no police force of its own and, as a result, it depends on States to execute searches and seizures, provide information and evidence, and arrest suspects.  Countries also play critical roles in protecting and relocating witnesses, which is crucial in cases where their lives are threatened.  While States Parties are obliged to cooperate with the Court, other countries that are in a position to assist are invited to do so.  States created the Court to combat impunity and promote the rule of law.  By fulfilling their responsibilities, States can help the Court achieve these goals.

The second challenge is ensuring respect for the ICC’s independence as a judicial institution.  The Court is an apolitical institution, but it is situated firmly within a political environment.  The Court will continue to adhere strictly to its judicial role, and it is important that States and other actors equally respect and protect its judicial independence. 

CGS: Some Americans are concerned that, if the U.S. ratifies the treaty, joins the ICC, and agrees to be subject to its jurisdiction, American leaders or service personnel will be unfairly brought before the ICC to face unwarranted or politically-motivated charges.  What safeguards in the treaty have made other countries comfortable joining the ICC?

Kirsch: When the States drafted the Rome Statute, they included detailed safeguards against politicization.  Four central attributes of the ICC system ensure that the Court remains apolitical.

First, the ICC is a Court of limited jurisdiction which is clearly defined in the Statute.  It has jurisdiction only over the most grave crimes, namely war crimes, crimes against humanity, and genocide.  Moreover, the Court does not exercise universal jurisdiction. Rather, States must accept the Court’s jurisdiction over crimes committed by their nationals or on their territories – normally through ratification.  The only other circumstance in which the Court can exercise jurisdiction is if the United Nations Security Council refers a situation in the interests of peace and security.  Of course, any such referral would require the votes of nine Security Council members, including the support of the five Permanent Members.

Second, the ICC is a court of last resort.  In other words, the ICC can act only where States are unwilling or unable to investigate and prosecute crimes themselves.  The ICC was not set up to replace, interfere with or overrule national courts.  If States fulfill their duties, the ICC will not and cannot become involved.

Third, oversight by independent, impartial judges at all times ensures that cases before the ICC comply strictly with the Statute. For instance, one of the key elements of the ICC system is that the Prosecutor cannot open investigations on his own initiative without the authorization of a panel of three judges.

Finally, the ICC Statute enshrines the rights of the accused and the principles of due process throughout proceedings.

Not only are these fundamental attributes built into the ICC system, but the Court has adhered strictly to its limited, judicial mandate in practice.  Its record speaks for itself.  There has not been even a suggestion that the judges of the ICC have acted with anything but the utmost independence, fairness and impartiality.  The ICC has established a reputation as a purely judicial body. 

CGS: In what ways can the ICC be said to be contributing to the development of respect for the rule of law in the world?

Kirsch: Guaranteeing respect for justice and the rule of law are two of the goals that motivated the ICC’s creation.  The ICC, by its nature, deals with situations where national judicial systems are not fulfilling their duties to enforce the law.  In situations where victims are left without recourse, the ICC can hold perpetrators accountable.  Trials can help to establish an historical record of grave crimes, express public disapprobation for wrongdoing, and separate the truly guilty from the wrongfully accused.  Most importantly, however, it is expected that over time trials will help end the culture of impunity, thereby deterring future crimes and assuring respect for the rule of law.

Already, there are signs that the Court is beginning to have these positive effects.  Precisely because the Court operates in situations of ongoing conflict, potential perpetrators reportedly have taken note of the real risk that they may be brought before the Court and have changed their behavior accordingly.  In addition, the creation of the Court has provided the impetus for States to review and amend domestic laws criminalizing grave international crimes.  In this way, the Court has indirectly strengthened the ability of national courts to fulfill their responsibilities to ensure that justice will be done.

CGS: There has been some talk about the ICC being asked by Hamas to look into the situation in Gaza.  Is this within the Court’s jurisdiction?

Kirsch: Whether the Court has jurisdiction in any particular instance is a judicial question and, as a judge, I cannot comment on specific cases.  The Registrar of the Court received a declaration of the Palestinian National Authority which refers to Article 12(3) of the ICC Statute.  This article allows States to accept the jurisdiction of the Court.  In her administrative capacity, the Registrar acknowledged receipt of the declaration without prejudice to any judicial determination of the applicability of Article 12(3) to this declaration.

CGS: The ICC has begun its first trial of Thomas Lubanga Dyilo, a militia commander in the Democratic Republic of Congo accused of conscripting child soldiers, what can you tell us about the crimes he has committed?  The ICC was founded ten years ago; why has it taken so long to begin the first trial?

Kirsch: Mr. Thomas Lubanga Dyilo is alleged to have committed the war crime of enlisting and conscripting children under the age of 15 years into the Forces patriotiques pour la liberation du Congo [Patriotic Forces for the Liberation of Congo] (FPLC) and using them to participate actively in hostilities.  As the trial is ongoing, I cannot comment on any of the allegations.

It is important to keep in mind that the ICC Statute only entered into force in 2002, and that it really began operations in 2003 with the election of the first judges and Prosecutor.  Moreover its jurisdiction only dates back to 1 July 2002.  In the six years since the first judges were elected, the Court was transformed from an idea into a reality.  The Court began investigations into four very different situations.  These investigations which are ongoing take place in situations of ongoing conflict where there are real threats to the safety and security of victims and witnesses.  The Prosecutor has had to proceed with care in these circumstances.

The Court issued its first five warrants of arrest in 2005.  These warrants have not yet been executed.  The Court does not have the power to arrest these persons.  That responsibility belongs to States, who created the Court.  It is up to them to arrest and surrender suspects so that the Court can fulfill its mandate.  It was only once Mr. Lubanga was arrested and surrendered to the Court in 2006 that pre-trial proceedings against a suspect began.

Following Mr. Lubanga’s arrest, substantial proceedings took place before the Pre-Trial Chamber and subsequently the Trial Chamber in preparation for trial.  The Rome Statute is a new and complex treaty.  Judges have had to address fundamental issues of interpretation, including the role of the Pre-Trial Chamber, the rights of victims, and the disclosure of evidence.  Some delays have occurred as the Pre-Trial Chamber and subsequently the Trial Chamber dealt with these novel issues.  In several instances, the Appeals Chamber was also required to be involved.  As the Court establishes its jurisprudence and develops its practices, proceedings are expected to become increasingly efficient.

CGS:  What about the other people the Court is investigating or bringing to trial.  What are they accused of? Why can they not be tried in national Courts?

Kirsch: Ideally, national courts would take the lead in investigating grave crimes and bringing their perpetrators to justice.  The ICC is a court of last resort.  It acts only where States are unwilling or unable to investigate or prosecute alleged crimes.  This is a determination made by judges.  Where a State believes that its courts in fact are willing and able to act, it has the right to appear before the Court.

Overall, four situations are being investigated by the Prosecutor: the Democratic Republic of the Congo (DRC), Uganda, the Central African Republic (CAR), and Darfur, Sudan.  Three of these situations have been referred to the Court by the States Parties concerned themselves.  The fourth situation, in Darfur, Sudan, was referred to the Court by the United Nations Security Council.  The judges consider whether States are willing or able to act in all situations.  In none of these situations have the States or the accused asserted the willingness and ability of the State to act. 

In the DRC, in addition to Mr. Lubanga, Germain Katanga and Mathieu Ngudjolo Chui allegedly committed seven counts of war crimes and three counts of crimes against humanity.  A Pre-Trial Chamber confirmed these charges on September 26, 2008 and the case now is in the trial preparation phase.

In Uganda, five arrest warrants have been issued against members of the Lords’ Resistance Army (LRA); one of those individuals has since been confirmed to be dead and the warrant rendered without effect. 

In the CAR situation, Jean-Pierre Bemba Gombo was arrested on May 24, 2008 by Belgian authorities.  Mr. Bemba has been accused of three counts of crimes against humanity, including rape, torture, and murder.  In addition, he allegedly is responsible for five counts of war crimes, including rape, torture, committing outrages upon personal dignity, pillaging a town or place, and murder.  A Pre-Trial Chamber currently is considering whether to confirm these charges.

Finally, in Darfur, arrest warrants have been outstanding for Ali Kushayb and Ahmad Harun since May 2007.  In addition, a Pre-Trial Chamber is considering the Prosecutor’s requests for an arrest warrant against President al-Bashir and against three alleged rebel leaders.

*CGS would like to Thank President Philippe Kirsch for taking the time to answer a few of our questions.