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The Complex Relationship between R2P and the ICC: Can it Succeed?

10. Aprill 2013 - 0:00

Keynote address by Urmas Paet, Estonian Minister of Foreign Affairs

Ladies and gentlemen,

This conference aims to look at the Responsibility to Protect concept from a human rights perspective. One possible way to do so is by looking at the International Criminal Court. As the ICC’s Chief Prosecutor, Fatou Bensouda has said: “The Court should be seen as a tool in the R2P toolbox.” I intend to highlight the complex and multidimensional relationship between the ICC and R2P by addressing certain issues like the ending of impunity, increasing the Court’s jurisdiction, national capacity building, and the role of women.

Recently, the ICC celebrated ten years since its founding. The ICC’s Rome Statute has been a significant development in international law. States parties have agreed to underline and abide by the principle that no one is above the law, no matter how high up they are. There is no immunity when it comes to international crimes.

Similarly, the development of the R2P concept has also been important. In the past couple of decades, due to globalisation, there have been discussions and debates about the changing nature of nation states. In 2005, heads of state and government historically agreed that each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. They also agreed that the international community has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means to help states protect populations from these crimes. Should that not be possible – that is, should peaceful means be inadequate and national authorities fail to protect their populations – states agreed to take collective action through the Security Council. Therefore, we can say that the responsibility to protect one’s people lies primarily with the state where they live. This has been every state’s obligation, and continues to be so.

The International Criminal Court and R2P form a tandem that contributes to the ending of impunity. For Estonia, as a member of the Human Rights Council, supporting the work and aims of the ICC and preventing R2P crimes is a priority. And since we are currently the only Nordic-Baltic country in the Council, Estonia feels an even greater obligation to address these issues, issues that are important for all of us. Estonia’s aims within the Human Rights Council are bolstered by our ambassador, Tiina Intelmann. She is currently the President of the Assembly of States Parties to the ICC.

The universality of the ICC’s Rome Statute is important in order to enforce the R2P principle. R2P is based on the obligation of states to protect their people from genocide, war crimes, ethnic cleansing and crimes against humanity. Joining the Rome Statute is a key step on the way to achieving all this. Already 122 countries have joined. This is around two-thirds of UN member states. However, the challenge remains for the Court to become truly universal and to embrace many more countries. Estonia and other likeminded nations continue to support this goal. The ICC can be a successful tool in the R2P toolbox only if it has widespread political support and at the very top level. Without the support of states, the Court remains powerless in fulfilling its mandate.

Having said this, it is also vital to recall the amendments to the Rome Statute that were made in Kampala. They aim to activate the Court’s jurisdiction over the crime of aggression. The act of aggression is often preceded or accompanied by the violation of human rights and the most atrocious crimes against humanity. In essence, it is committed when a political or military leader of a state causes that state to illegally use force against another state. This is why Estonia believes that the amendments of Kampala in relation to the crime of aggression should be ratified quickly. On March 27th Estonia became the fifth country to have ratified and deposited the instrument of ratification of the Kampala amendments to the UN. Twenty-five additional ratifications are necessary for the activation of the Court’s jurisdiction over the crime of aggression.

Dear friends,

The ICC and R2P are complementary. They both have an important role to play in preventing international crimes: genocide, war crimes, and crimes against humanity. Prevention is a key component in this toolbox. I admit that it is difficult to measure the extent of deterrence. Some have doubted the ICC’s capabilities in this field. However, I suggest critics visit a recent conflict zone. One will encounter graffiti that reads “ICC”. For local people, the Security Council’s decision to refer a situation to the ICC – or the initiation of legal proceedings by the Court itself – is a signal that the international community has not forgotten them. That they do not stand alone amidst violence.

The ICC makes it possible to bring to justice those who otherwise would have escaped with impunity. The Security Council has an important role in the fight against impunity and in preventing and halting international crimes. Recently, the first ever debate of the Security Council was held on the topic of Peace and Justice with a special focus on the role of the ICC.  In the cases of Sudan and Libya, the Council has mandated the Court to investigate the crimes committed in those countries. It is also important that these case referrals by the Security Council be followed-up regularly by the Council. This means reminding states that it is their obligation to co-operate with the Court.

The title of my speech includes the question: Can it succeed? A good way to measure success is to look at concrete results. A very significant result is the first ever judgement of the ICC, the conviction of Thomas Lubanga. This sends all other warlords a clear message: The use of children in war is unacceptable. In fact, it is a war crime.

Which brings me to the often heard criticism towards the Court that the ICC has unjustly targeted only African states and individuals. This is based on misperception and has become a rhetorical tool to undermine the Court.  It is true that all situations presently under investigation are from Africa.  However, two situations out of eight have been initiated by the Security Council, only two have been initiated by the Prosecutor, and four – that is half of them – after a request by the country itself to open an investigation.

So I would say the relationship between Africa and the ICC is strong. Its strength derives from a common set of fundamental values, for instance the will to fight impunity. The strong support of African nations in Rome in 1998 significantly helped the adoption of the Rome Statute. In the year 2000 the African Union was one of the first to provide a legal basis for international interventions when it came to war crimes, genocide, and crimes against humanity. But it may also be worth pointing out that the ICC’s Office of the Prosecutor is currently conducting preliminary examination in a number of situations outside Africa. They include Afghanistan, Georgia, Guinea, Colombia, Honduras, the DPRK, and Nigeria.

It is unacceptable that atrocious crimes and violations continue to go unpunished in Syria. That referring Syria to the ICC would have an important dissuasive effect is demonstrated by the numerous occasions during which the international community has voiced its concern, most recently in the Human Rights Council’s recent joint declaration. On March 11th sixty-three countries joined this declaration, Estonia among them. We are convinced that given the current situation in Syria, and in the absence of national action in this regard, mandating the ICC would add momentum to beginning a process of accountability in Syria.

The ICC and R2P also address the need for national capacity building. The Court acts only if states are unwilling or incapable of acting themselves. This is called the principle of complementarity. Thereby the ICC and R2P enhance the role of sovereign states. Unfortunately, this aspect often gets overlooked due to excessive and exclusive focusing on the most controversial issues. In reality, the ICC co-operates with states in order to avoid impunity. The Court encourages national investigations and prosecutions. To assist states in building these capacities, civil society, other states, as well as regional and international organisations all work together. Better co-ordination is critically important.

The UNDP has also advocated the integration of the complementarity principle into rule of law programmes. Prevention and national capacity building are also central elements of the R2P principle as the concept says that states have the primary responsibility to protect.

Ladies and gentlemen,

One of Estonia’s priorities in the Human Rights Council is the rights of women. The ICC and R2P are important aspects in this field too.

The Rome Statute is the first international treaty that criminalizes and explicitly defines sexual and gender-based violence as crimes against humanity, war crimes and to a certain extent as genocide. This is now better understood with the help of the Security Council resolution 1325, which was the first time that the Council admitted the disproportionate effect of military conflict on women. Iceland and Estonia have accorded great importance to this matter.

According to the recent report of the Secretary General on Sexual Violence in Conflict the problem of sexual violation is a burning issue in twelve countries engaged in armed conflict. It continues to be a problem in many post-conflict states. The report gives us a reliable and transparent picture of the harmful consequences of war. This conference is the right place to elaborate how we could consolidate the work done by the UNSG special representatives, the ICC, member states and other responsible stake holders in order to prevent the recurrence of war crimes.

However, violence against women is not only a problem in military conflicts. Less than a month ago at the Commission on the Status of Women meeting in New York the world’s states agreed on how to reduce violence. A question that kept arising was the relativity of human rights. Such as, whether culture can justify the rape or mutilation of women. In the agreed text they cannot be justified. Now we can only hope that these principles will be followed in practice too, and not only on paper.

This reminds me that we should never lose sight of the fact that victims are real individuals. The protection of people is at the heart of the R2P concept. And at a seminar that took place last year in Tallinn it was repeated that victims are a core concern for the International Criminal Court as well. The articles in the Rome Statute that concern victims are one of the most important novelties in international law in recent times. And this is a good example of taking into account the experience that has been gained from previous criminal tribunals.

Dear friends,

We are witnessing a gradual development of a new culture in international law. A culture that does not accept violations of human rights and that the perpetration of atrocious international crimes remains unpunished. I hope I have been able to underline the importance of the ICC and the R2P concept, and how the two go together. The international community already has achieved a lot. But more needs to be done. I wish you a successful continuation of the conference and many fruitful ideas on how to further these important issues.

Thank you.

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