Global Policy Forum

The International Criminal Court,


By Dr. Benita Ferrero-Waldner *

Parliamentarians for Global Action
April 14, 2005

Ladies and Gentlemen, Honourable Members of the European Parliament,

I wish to extend my sincere gratitude to "Parliamentarians for Global Action" for inviting me to this important debate on a very timely and crucial subject. I very much welcome the interest and support which Members of the European Parliament and organisations such as PGA have consistently demonstrated to the International Criminal Court.

The EU has consistently been a strong supporter of the ICC. Our support to the Court lies at the core of our commitment to promoting a rule-based international order. The EU has consistently taken the view that the setting up of a permanent International Criminal Court to prosecute war-crimes, crimes against humanity and genocide was a development of crucial importance for international peace and security. We see the Court, which applies "blended" legal traditions, as a splendid manifestation of effective multilateralism at work.

The ICC has now become fully operational and has entered a critical phase of its early life. Its first investigations are under close scrutiny. This is a good thing: human rights organisations and the Court itself have already reported that the existence of the ICC today has started to have a deterrent effect in conflict areas in Africa. But fairness, impartiality, transparency and an ability to deliver high-standard justice in a cost-effective and expeditious manner will be of crucial importance to ensure the legitimacy of this new institution in the eyes of the world and to foster wider participation in the Rome Statute.

We know, of course, that, while it has brought hope for a new era in international justice, the ICC has also brought fears and misunderstandings. There is no denying the challenge which the International Criminal Court poses for the Transatlantic Relationship, given the strength of feelings on both sides. A number of policy-makers in the United States have probably developed some suspicion, exacerbated in the wake of the September 11 terrorist attacks, about the structures and institutions of international society and international law. Most US politicians probably take the view that international justice depends upon America's ability to exercise its power freely in the world, while EU politicians tend to believe that international justice requires strong international law and institutions. While European politicians are accustomed to oversight by International bodies such as the European Court of Justice and the European Court for Human Rights, US politicians are far more likely to believe that only national governments and legal systems can legitimately demand accountability.

We understand the concerns triggered in the US by the prospect of ill-founded or politically-motivated complaints. After all, the United States is called upon more than any other nation to send troops overseas, making them potentially vulnerable to prosecution, perhaps even malicious prosecution. However, we sincerely believe that the Rome Statute guarantees the highest criteria of justice and does not lend itself to political manipulation. We believe that the Statute contains a robust set of safeguards and checks and balances to avoid such a risk. The ICC deals with only a limited range of specific crimes. The principle of complementarity gives primary competence to national jurisdictions to prosecute crimes falling within the scope of the Rome Statute. Investigations can proceed only after a pre-trial chamber has determined that there is a reasonable basis for action. There is, also, the safeguard that the UN Security Council can decide to block prosecutions for fixed periods.

We must continue to engage with the US in an effort to address their "fears". I am confident that, as it commences its vital work, the Court will vindicate our trust and, in so doing, help to allay US concerns. I personally see in the recent decision by the UN Security Council to refer the situation in Darfur to the ICC (without a US veto) cause for hope. I am confident that the US, on the ground of well-understood self-interest, will ultimately return to their historic pattern of support for essential international institutions such as the ICC.

In the meantime, we must of course stand firm on our commitment to preserve the integrity of the Court. The EU has made it clear that it would continue to make the case for preserving the integrity of the Rome Statute in its regular political dialogue with third countries and in ad hoc démarches. The Council Conclusions and the Guiding Principles on bilateral agreement adopted by the Council in September 2002 have served as a very useful instrument in this respect.

These guidelines have been met with great interest in third countries. They have demonstrated that the EU was politically determined to hold firm to its commitment towards the Court. The widespread dissemination of the "Guiding Principles" has provided helpful arguments to governments, civil society organisations and academics. It has undoubtedly played a role in limiting the impact of the US campaign. Another challenge to the Court has more recently come in the shape of the adoption in December 2004, by the US Congress, of the "Nethercutt Amendment", which extends to economic assistance the threat of US sanctions to the State Parties refusing to sign bilateral immunity agreements.

On 10 December 2004, the EU publicly expressed concern about the adoption of this Amendment. The Commission is particularly concerned that vulnerable countries, in Latin America, Africa or the Middle East, may see significant amounts of US economic aid withdrawn. The EU has expressed such concern to the US. We have also pointed to the risk that the US would further antagonise relations with countries whose co-operation it seeks in the fight against terrorism. We have urged the US President to make full use of the waiver powers he has under the Amendment and has expressed the hope that it will not be renewed (under the US Appropriations Bill for 2006.)

Whatever course of action the US Administration decides to follow, a steady increase in the number of ratifications and consistent steps towards the universality of the Rome Statute will further demonstrate that the Court is a reality which nobody, including the US, can afford to ignore. The EU is committed to pursuing its worldwide campaign to increase the number and broaden the geographical scope of States that have ratified the Rome Statute in order to ensure the universality of the Court. As of today, 98 countries have ratified the Rome Statute and we are fast approaching the symbolic target of 100 ratifications. This impressive figure should not hide the fact that half the world's countries are still not party to the ICC. Nor should it hide the gap which remains among Asian or Arab countries for instance. No international institution can claim to be truly universal without the participation of countries like China, Russia, Japan, India, or Turkey.

The Commission will continue to play an active role in promoting the universality of the Court. Through instruments such as the European Initiative for Democracy and Human Rights, we will also continue to provide support to NGOs and Parliamentarians promoting the Court across the world. Their work in raising awareness and mobilising academic expertise to assist those countries which are considering joining the Statute is invaluable.

The Commission is particularly proud to have been able to agree last month with ACP partners to include a joint commitment to the ICC in the new Cotonou Agreement which will be signed in June. The "ICC clause" that will figure in the Cotonou Agreement is an important reaffirmation of our joint commitment to the Court and will serve as and important precedent for the negotiation of agreements with other third countries. We will also ensure that the EU's commitment to the fight against impunity is reflected in our Rule of Law co-operation with third countries, especially developing countries.

In this respect, we attach great importance to the principle of complementarity enshrined in the Rome Statute. As has been repeatedly said, in an ideal world, there would be no need for an institution such as the ICC because all States would themselves prosecute genocide, war crimes and crimes against humanity. We believe that the ICC should not have the ambition, and will never have the means, to respond to all existing international justice needs. It is crucial that national jurisdictions should play their role. This is why the EU has provided significant financial support for the reconstruction of legal structures in countries concerned with crimes under the Rome Statute. Training judges, prosecutors and lawyers is a powerful way to avoid impunity, facilitate the implementation of the principle of complementarity and thus assist the ICC in its mission. In this respect, I should mention that the EU has funded several projects aimed at restoring criminal justice infrastructures and training legal professionals in countries such as the Democratic Republic of Congo, where the ICC is currently investigating difficult cases. We hope that such projects will reinforce the capacity of local judges, prosecutors and lawyers to co-operate with the Court and to prosecute cases themselves. We will, in the future, make sure that all EU-funded Rule of Law co-operation projects in third countries give proper attention to international criminal justice.

Ladies and Gentlemen, Honourable Members of the European Parliament, The ICC will not stand alone in carrying out its ambitious, difficult but above all, crucially important mandate. EU Member States and the Commission are committed to supporting the Court to make sure that it meets future challenges successfully. I look forward to your continued support for our work.

Thank you for your attention.

About the Speaker: Dr. Benita Ferrero-Waldner is the Commissioner for External Relations and European Neighbourhood Policy for the European Commission.

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