International Criminal Law Between Science and Politics

Speaking Notes of Emma Bonino, MEP

Mr Chairman, Excellencies,

Ladies and Gentlemen,

I am very honoured to be here among government representatives, parliamentarians, policymakers and experts in International criminal law. I am pleased to talk about a subject which so much marked my political and personal life and to share with you my conclusion: how difficult is to draw a distinction between international criminal law as a science and international criminal law as an expression of political will!

Seven years ago, Cherif Bassiouni invited me to Siracusa for a discussion on the need to establish an effective international criminal justice system. Seven years have passed since I was able, as secretary of the Radical Party, to convince the then Italian Prime Minister - Giuliano Amato who currently leads Italy again - to be among the promoters, together with Robert Badinter and the French Government, of the establishment by the United Nations Security Council of an Ad Hoc Tribunal for the crimes committed in the former Yugoslavia. It has been a long path since we handed over to Boutros Boutros Ghali thousands of signatures to urge the effective institution of the ICTY.

It has also been a long path to obtain the convening of a diplomatic conference of plenipotentiaries for the establishment of the ICC, and I am proud to say that I had the privilege, on behalf of the Italian Government, to propose Rome as the host of the Conference to the UN General Assembly in 1994.

Ii has been a long path, and often a lonely one. A path which brought us to the adoption of the Rome Statute of the International Criminal Court on 17 July 1998, by a vote of 120 in favour, 7 against and 21 abstentions, a success which many people considered impossible even during the negotiations.

That very night, in my capacity as European Commissioner for Humanitarian Aid, I was among those who, at the FAO headquarters, welcomed this extraordinary event. Let me tell you that rarely, in my political career, I have witnessed such cheerful atmosphere at an institutional event.

Of course, the Rome Statute is an attempt to harmonise different criminal law systems, to meet all major concerns and to find a balance between very different cultures and interests. In facts, at the final plenary of the Diplomatic Conference, many delegations acknowledged that, although imperfect, the Rome Statute represents the first effective instrument to put an end to impunity for the most heinous crimes.

I would like to recall, in this respect, the debate on penalties and, in particular, on the inclusion of the death penalty in the Statute. On one side there was a large group of States that - while supportive of the ICC -- would not be able to support the court if the death penalty were included. On the other side, a large number of States were worried that the exclusion of capital punishment could have harmful effects on their domestic legislation. Clearly there was no consensus on the inclusion of death penalty. The compromise which was reached was a statement that the non-inclusion of death penalty would not, in any manner, prejudice the national application of penalties in accordance with the so-called principle of complementarity. Having said that, I am convinced that, in a historical perspective, the non-inclusion of the death penalty in the Statute, given the crimes involved, represents a reaffirmation of the irreversible trend towards the abolition of capital punishment.

Complementarity is one of the pillars of the future Court. The ICC will only be able to take up cases where there is a genuine unwillingness, or inability, of national criminal jurisdictions to act. All the negotiators in Rome agreed that the best way to bring perpetrators of genocide, crimes against humanity and war crimes to justice was through effective national criminal justice systems. National courts, if they are able -and if they are allowed-to operate effectively and independently, are closer to the people, their procedure is more understandable for victims, defendants and the public. The International Criminal Court is designed to "fill the gaps", when national criminal justice systems are disrupted by conflicts or are themselves implicated in the crimes; when States are unwilling to comply with their obligations deriving from conventional and customary international law.

After Rome, new developments occurred. Last June the Preparatory Commission was able to finalise the texts of two instruments that will be fundamental to the effective functioning of the Court: the "Rules of Procedure and Evidence" and the "Elements of Crimes". Both texts were adopted by consensus. In this regard, allow me to thank ambassador Kirsch, whose strong and enlightened chairmanship brought us to a successful conclusion of the Diplomatic Conference and is still guiding the ongoing work of the Preparatory Commission. Through his leadership all countries involved in the negotiations, including those that voted against the Statute, joined together and approved those documents.

Ladies and Gentlemen,

It is of particular importance for me to be here today - trying to assess the state of the play of the ICC process -, in The Hague, the seat of the International Court of Justice, the city that hosts the ad hoc Tribunal for the Former Yugoslavia and that will soon host the International Criminal Court.

It is important for me, a politician who has made the establishment of an effective international criminal justice system a political priority, to be with you all, eminent jurists, diplomats and experts.

Here is where science and politics meet. For years members of the International Law Commission had been working on a draft Statute, and a draft code of crimes. Thanks to the determination of some women and men, the political will has come in support of science and has permitted to revive an issue which had been blocked for 40 years. The outcome of theDiplomatic Conference demonstrates how politics and law can go hand in hand and even produce unexpected results.

Now that the Statute exists, an effective international criminal justice system is, finally, more at hand.

Thanks to the brave work of Justice Goldstone, Louise Arbour and Carla del Ponte, which culminated with the incrimination of state officials and, ultimately, of Slobodan Milosevic, thanks to the Pinochet case and the work towards the creation of special courts for Cambodia and Sierra Leone, it has now become unthinkable to resolve a conflict - internal or international - without resolving issues of justice and accountability. The fight against impunity has become a priority, regardless of the position of the culprits as Commanders or Heads of State.

Thanks to the hard work done at the International Law Commission and at the Rome Conference, we now have an instrument to end impunity. In this respect let me quote the article 27 of the Treaty: "The Statute shall apply to all persons without any distinction based on official capacity".

Here the relationship between law and politics becomes even clearer. It seems to me that politics urges legal science, asking the creation of the right instruments to codify what we have been saying for almost a decade: that there can be no peace without justice.

This revolution in international law that shakes the very foundation of the notion of state sovereignty, is not accepted quietly by all. There are many powerful countries that are still sceptical if not opposed to the emergence of a new common approach, that crosses borders and makes each and all of us, victims or war criminals, subject to one law.

For some countries this opposition is a direct consequence of the regimes that rule them. For others, for those governed by democracy and the rule of law, --and I am thinking of the United States in particular-- there seems to be no reasonable justification for their position. Our path, or struggle, will not be won, until an honest and real debate will not take place in that great democratic country on joining the ICC Statute.

I still hope that President Clinton , in the final days of his mandate, will be able to pay attention to listen to the appeal of experts and activists, his own friends, such as Benjamin Ferencz and Robert McNamara, and decide to sign the Rome Statute on behalf of the USA.

Ladies and Gentlemen,

Rome for me did not represent the end of my commitment to see the Court into operation. As Member of the European Parliament, together with my colleagues, we succeeded in adopting a resolution asking EU Governments to use the Ratification of the Rome Statute as a negotiating element towards associated Countries. This same approach was adopted by the Council of Ministers of the EU.

We should not be afraid, at this stage, of those who still seem to be challenging the entry into force of the Court. At the last session of the Preparatory Commission, we have witnessed to a new positive wave towards the Court. Cambodia and four Arab States have announced their signature of the Statute: the United Arab Emirates, Syria, Kuwait and Bahrain.

Ladies and Gentlemen,

Allow me, in conclusion, to thank the Asser Institute, Science Alliance and No Peace Without Justice, to which foundation I have contibuted in 93, for having organised this Training Course. I believe in its importance, especially for those who already operate or will be active in the field of International Criminal Law, either as policymakers, experts or as members of civil society.

I am sure that at the and of this Course you will realise how invisible is the line that separates law and politics, and how difficult is to separate law from politics whenever we discuss the ICC.

On my part, I hope this course will foster the speedy entry into force of the Statute, making the Court a concrete reality. We need to maintain - actually to increase- the pace of the ratification process.

In this spirit, and with this wish, I thank you for your attention and wish you a very good session.

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