Judge Sang-Hyun Song speech

[Editor's note: We gratefully acknowledge the special contribution of this speech with written permission to ICAS of Judge Sang-Hyun Song. sjk]

Pursuing Universal Acceptance of the Rome Statute and Other Challenges for the
Evolving System of International Criminal Justice

Judge Sang Hyun Song
President of the International Criminal Court

Philadelphia
February 11, 2013

Excellencies, Ladies and Gentlemen,

It is a great pleasure to be here in Philadelphia, the city of brotherly love! Let me first extend my sincere gratitude to all the member organizations of the Philadelphia Global Initiative on the Rule of Law for arranging this timely event.

I would also like to thank the University of Pennsylvania for providing the venue for this meeting. I have been a professor of law for far longer than I have been a judge, so a law school such as this one is still what I would call my natural habitat!

This is a particularly auspicious time for me to be addressing you, since we have recently celebrated the tenth anniversary of the entry into force of the Rome Statute - the governing treaty of the International Criminal Court. And just a few weeks ago this country inaugurated a President for his second term in office.

In his inaugural address, President Obama stated powerfully that while certain truths may be held as self-evident they are not self-executing. This is what I want to talk about today: great values that we hold dear, and the action that we must take in order to see them realised.

To that end, I want to say to you that it is time to enable the relationship between the United States and the ICC to develop further. We already enjoy mutual respect and cooperation, but there is more room for common action. I will not hide the fact that I hope the day will come when this country ratifies the Rome Statute. Now is the time to pave the way toward that goal.

For that to be possible, it is necessary to generate informed discussions and consideration of the Rome Statute and the ICC, for all stakeholders to fully grasp the values and the mission they represent. That is where I see the greatest value of today's event - building awareness and stimulating debate about the ICC here in the United States.

On that note, I would also like to use the opportunity to acknowledge the work that the American Bar Association has been increasingly doing toward the same goal, particularly through the ABA's new ICC programme.

In my speech, I will first reflect briefly on the historical origins of the ICC, and then discuss the ICC's first decade, showing how far it has travelled since its tentative first steps.

I will then focus the remainder of my remarks on the future challenges we face, including the main topic of my speech today: universality of the Rome Statute and the prospect of a new chapter in the relationship between the US and the ICC.

In the aftermath of the Second World War, the United States led a fundamental overhaul of international structures aimed at preventing the recurrence of the appalling violence of the war. The United Nations and the International Court of Justice were founded to enable peaceful cooperation and the settlement of disputes between States, but the period also saw the emergence for the first time of a fully-fledged concept of human rights.

The Universal Declaration of Human Rights and the Genocide Convention grew out of a belief that is also at the heart of the American dream - that all people are born free and equal in human dignity. The idealism of great Americans such as Eleanor Roosevelt, Ralph Bunche and Robert Jackson laid the foundations of the notion that it was not just those in the privileged West that were entitled to legally enforceable rights, but every man, woman and child around the globe.

This belief guided the creation of the International Military Tribunals in Nuremberg and Tokyo which were established to try the architects of the shocking atrocities committed by Nazi Germany and its allies.

Regrettably, due to the Cold War rivalry, it would take decades for the seeds of international criminal justice that had been planted in Nuremberg to take root. It was not until the 1990s when, with strong US involvement, two ad hoc tribunals were established to bring accountability and justice for the heinous crimes committed in the former Yugoslavia and Rwanda. The period also saw a renewed energy and focus by lawyers, diplomats, and civil society on the idea of creating a permanent international criminal court.

These aspirations came to fruition in July 1998 when delegates from 160 countries around the world gathered in Rome to negotiate the Statute of a court that had been fifty years in the making. On the 17th of July 1998 the Rome Statute for the International Criminal Court was adopted.

As you are probably aware, the United States was extremely active in the negotiations on the ICC Statute, but in the end voted against it as it did not agree with the final text.

In a far shorter time than anyone expected, the necessary sixty ratifications for the Rome Statute to enter into force were achieved, and on July 1st 2002, the ICC was born as a new, permanent international organization, independent from the United Nations or any other body.

Since then, the ICC has endured a tumultuous first ten years. 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. With strong political forces working against the ICC - first and foremost the United States - a number of the first judges to arrive at the Court were uncertain whether it would survive.

Today, I am pleased to be able to say that those fears proved unfounded. The ICC showed that it was able to do its work with professionalism and integrity, as an institution to be valued and encouraged.

This increased stature is reflected in the continuous growth of the membership and workload of the ICC. The Office of the Prosecutor is currently investigating crimes in eight situations: the Democratic Republic of the Congo, Uganda, the Central African Republic, Sudan, Kenya, Libya, the Ivory Coast, and most recently Mali.

All but the latest investigation have already given rise to cases and prosecutions before the ICC. The Prosecutor is furthermore conducting preliminary examinations of alleged crimes in other countries on several continents, including Afghanistan, Colombia, Georgia and Korea.

The ICC's trial chambers have issued its first two judgments, and there has also been the first decision on reparations for the victims of these crimes, showing that the ICC is blazing a trail in new forms of justice that go beyond simple retribution.

What can we learn from this first decade? I believe there are three key lessons.

Firstly, we know today, more than ever before, that people across the world - from Bosnia to Uganda and from Argentina to Syria - demand justice and accountability when heinous crimes are committed. It is inspiring - and humbling - to hear the voices calling for justice. Inspiring because it shows us how innate the human desire for justice truly is, and humbling because of the great responsibility it places on those of us charged with answering those calls.

These calls cannot be ignored, sidelined, or postponed in favour of narrow, short-term political considerations. The debate over whether peace and justice are mutually exclusive should have ended a long time ago. We know now that the two are mutually reinforcing: peace will never be secure and conflicts brought to a permanent end without the cathartic reckoning of justice and the entrenchment of the rule of law.

Secondly, the cooperation of states is crucial. The ICC does not have a police force or the independent capacity to enforce its decisions, whether the implementation of arrest warrants, ensuring the timely provision of evidence and witnesses, seizing of assets, or carrying out sentences. For all of these key aspects of its work the ICC is utterly reliant on the cooperation of States. The majority of the time, I am pleased to say, cooperation is forthcoming.

However, there are some notable gaps in cooperation, most starkly when it comes to enforcing arrest warrants, including against well-known figures such as Joseph Kony and Omar Al-Bashir.

So long as states fail to cooperate fully with the ICC in ensuring that these suspects are arrested, justice cannot be done. While it may at times be slow, be certain that the arm of justice is long, and that alleged perpetrators will see their day in court.

The third lesson I want to highlight is that international justice should never be a replacement for genuine national proceedings. Unlike the ad hoc tribunals for the former Yugoslavia and Rwanda, the ICC does not have primary jurisdiction over all crimes in a situation country. Rather it is as a court of last resort that can step in only when a state is unwilling or unable genuinely to prosecute the same crimes. The ICC is merely a safety net designed to ensure accountability when national jurisdictions fail in this task. This is why strengthening national capacities is crucial.

Excellencies, ladies and gentlemen,

In spite of the strengths and opportunities open to the ICC, obstacles remain - among them the Rome Statute's membership, which still has big gaps.

Today, 121 States are Parties to the Statute - around 60% of the world's sovereign states. This means that over 70 States, actually comprising a majority of the world's population, fall outside the legal protection of the Rome Statute.

As President of the ICC, I have invested a lot of effort into encouraging more States to consider joining the Rome Statute system. The goal of universal membership is important for several reasons. Each new State Party strengthens and broadens the ICC's jurisdiction, increasing its credibility not only for holding perpetrators of mass atrocities accountable, but also for the prevention of future atrocity crimes.

Furthermore, the ICC is also responsible for a substantial normative evolution, with the ideals of peace and justice woven through the fabric of the institution. The more states ratify the Rome Statute, the stronger these principles grow and the more entrenched these norms become, progressively narrowing the basis for war criminals to justify their actions.

There is widespread evidence for the growing international support for the ICC. The Court's membership continues to grow with eleven new States Parties in the last three years.

In 2011 the situation in Libya was referred to the ICC by the UN Security Council with all fifteen positive votes, including by the United States, Russia, China, India and the African members of the Council.

The United States is no stranger to international justice. From Nuremberg and Tokyo to the establishment of the ad hoc and hybrid tribunals, the US has usually pushed hard for international justice. Currently the Prosecutor and President of the Special Court for Sierra Leone are Americans, as is the President of the ICTY. The other international courts and tribunals, including the ICC, all have numerous staff from the US.

In the last year, the US Government has repeatedly stressed the priority it gives to bringing an end to the most heinous crimes. President Obama has labelled the prevention of mass atrocities and genocide a "core national security interest and core moral responsibility". ¹ The creation of an Atrocities Prevention Board last March was a powerful statement of intent in this regard, galvanizing commitment at all levels of the US Government to this mission. This was supplemented with direct support for the apprehension of Joseph Kony and the LRA leaders through the deployment of military advisors to Uganda. Recently, your Congress passed a law that enables substantial financial rewards to individuals who contribute to the apprehension and arrest of fugitives from the ICC.

This is a welcome incentive that has been already used with other international tribunals. I am delighted that the United States has been willing to show its strong commitment to international criminal justice.

I believe that these actions prove the existence of substantial common ground between the US and the Rome Statute, in shared values, priorities, and the sense of urgency that these crimes must be brought to an end. Now is the time to open a new chapter between the US and the ICC. The community of States Parties is growing quickly, with new political and legal agendas developing that shape the world in previously unimaginable ways. The US should not allow itself to be left behind by this development, but rather seize the opportunity to help lead the fight against impunity through the Assembly of States Parties to the ICC.

By joining, the US would gain full voting rights, as well as the opportunity to nominate candidates to key roles within the Court. While there has always been an American judge on the international Court of Justice, there is not on the ICC, and by ratifying the Rome Statute, the US would gain an opportunity to bring its best legal minds in service of a growing area of law that serves goals of global importance - goals that I believe are shared by Americans. I appreciate that it may take a while before the US ratifies the Rome Statute. There are many things that the United States can do in the meantime to strengthen a cooperative relationship with the ICC in pursuit of common objectives.

First, the United States can provide political support and assistance to advance the Rome Statute system and the ICC's operations, not least in the context of the UN Security Council.

The Security Council has referred two situations - Darfur, Sudan and Libya - to the ICC. However only three of the 10 ICC suspects from these situations have appeared before the Court - all of them alleged rebel leaders from Darfur. None of the Sudanese government officials have so far faced the allegations against them - despite the fact that the country is under an obligation to cooperate fully with the ICC. Suspects in the Libya situation are likewise yet to be transferred to The Hague. These are not the only challenges. Last summer, the Libyan authorities arrested a delegation of ICC staff on an official mission.

Unfortunately, I have to say that the Security Council has in practice done very little to help the ICC overcome these obstacles so that the Court could effectively discharge the mandates stemming from the Council's resolutions. We need a more consistent and vigilant approach by the Security Council - and the United States can play an important role in that regard.

Secondly, there is the question of anti-ICC legislation that still remains in force. The American Service-Members' Protection Act is perhaps not being actively applied - but it is still there, with many provisions that could be harmful to the US relationship with the ICC. Perhaps even more importantly, US legislation currently in force prohibits US funds from being used to support the ICC.

This means that although the United States is in principle supportive of the investigations and proceedings of the ICC, the country's administration is not able to provide financial support to the Court. Again, this has relevance for the situations in which the ICC is acting on a mandate from the Security Council - a mandate that the Council has essentially created on behalf of the world community as a whole in order to restore and maintain peace and security.

One could expect the UN to provide funds for the implementation of such mandates - as it has done in the case of the Yugoslavia and Rwanda tribunals. In many ways, the ICC is now fulfilling the same role as the ICTY and the ICTR, but with regard to Sudan and Libya. Indeed, the Rome Statute foresees that the UN can provide funds to the ICC for such purposes.

What the Security Council however did in the Darfur and Libya referrals was to insert a provision in the resolutions stating that UN funds could not be used to fund the ICC's operations. And indeed so far the States Parties to the Rome Statute have picked up the bill - but they are becoming increasingly vocal in saying that the UN should pay its share. This situation may need to be addressed in the near future, and I hope that the United States will be able to contribute constructively to finding a solution.

Finally, the United States can provide valuable voluntary assistance to the ICC, for instance in the form of witness protection or relocation. This kind of support is tremendously helpful for the Court's current operations.

Excellencies, ladies and gentlemen,

The Rome Statute family is a community of nations connected by shared values and mutual compassion - or, "brotherly love", if you will. The ICC is at the forefront of the international mission to do justice for the victims of the most heinous crimes. To join the ICC is to stand in solidarity with these men, women, and children, the most vulnerable people in the world.

63 years ago, I was one of those children - a small boy in the middle of a terrible war. The United States sent troops under the UN flag to help Korea - and 610 young men from Pennsylvania lost their lives defending my country. As a Korean citizen, I am grateful for their sacrifice.

Eradicating wars and mass violence altogether may seem utopian, but we must try - and the ICC is an essential building block for a future governed by the force of the law rather than the law of the force.

As we enter the second decade of the ICC and the second term for this US President, I believe that the US and the ICC can move toward a new era together. It is not enough to value human rights and justice. There must also be action, and I look forward to working with the United States in the years ahead to ensure that we can bring about the justice that we all seek.

Thank you very much for your attention.

¹ Presidential Study Directive 10 (PSD-10), August 2011. See http://www.whitehouse.gov/the-press-office/2012/04/23/fact-sheet- comprehensive-strategy-and-new-tools-prevent-and-respond-atro

This page last updated February 20, 2013 jdb

ICAS Special Contribution