ICC: Prep Com Chair comments on US actions

15 July 2002

The chairman of the preparatory meeting for the International Criminal Court, Ambassador Philippe Kirsch of Canada, said on Friday that US actions against the ICC in the Security Council are "difficult to understand."

"What the preparatory commission as a whole has been wondering is why exactly is anything in the Security Council necessary?" Kirsch said, adding that the United States is "a great democracy with a judicial system that functions perfectly well. It is extremely difficult to imagine … that the American system would not deal with" serious crimes such as genocide and crimes against humanity, he said.

Kirsch made the comments to journalists on the last day of the tenth and final session of the preparatory committee - the same day the Security Council passed a resolution granting peacekeepers a one-year immunity from the jurisdiction of the ICC.

The Rome Statute places primary responsibility with the national courts, Kirsch said, with the ICC taking over "only if the states concerned do not perform their responsibilities because they are unwilling to do so. Here we are taking about the Rwanda situation, where obviously, the agents of the states are committing crimes and therefore the state is going to protect them. Or if the state in question is unable to do it, the Somalia kind of case where the judicial structures have collapsed."

"The broader issue legally is the harm it does to equality of all before the law, which is one of the pillars of the ICC statute," he said. "This is why no immunities are recognized … by the court itself." He added, "The role of the Security Council here is a bit open to question."

Kirsch also pointed out that the council's resolution falls under Chapter VII of the U.N. Charter, which deals with threats to international peace and security. "We all have been looking in vain to what that threat to peace and security could be. It certainly is not caused by the International Criminal Court," he said, "It is completely unrelated to peace and security."

This final session of the preparatory committee began July 1, the same day the ICC entered into force. It had a list of practical matters to settle, such as establishing a trust fund for victims and determining the court's first year budget, all of which Kirsch said were resolved.

A procedure for the nomination and election of judges was "the one task we had begun to work on that could not be completed," he said. The matter will have to be settled by the first assembly of states parties to the ICC, which will meet in September in New York. The judges and prosecutor will be elected at the second assembly in February 2003 and the ICC itself will be inaugurated "a couple of months later," said Kirsch.

He said the Rome Statute "provides for a general balance based on geographic considerations … and on gender [for the selection of judges]. But none of that is specified." The committee "could not agree on specific criteria, particularly with respect to how you approach the geographic allocation," he said. "Some states considered the general reference in the statute on the need for geographical distribution is enough. … Others find it is necessary to be more specific on that issue."

Jim Wurst
Published by UN Wire © UN Wire 2002

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