VZCZCXYZ0024
RR RUEHWEB

DE RUCNDT #0539/01 1491308
ZNR UUUUU ZZH
R 291308Z MAY 09
FM USMISSION USUN NEW YORK
TO RUEHC/SECSTATE WASHDC 6638
INFO RUEHKM/AMEMBASSY KAMPALA 0376
RUEHKH/AMEMBASSY KHARTOUM 1514
RUEHTC/AMEMBASSY THE HAGUE 9150

UNCLAS USUN NEW YORK 000539 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV PREL KAWC UNSC XA
SUBJECT: SEMINAR ON INTERNATIONAL CRIMINAL JUSTICE:  THE 
ROLE OF THE INTERNATIONAL CRIMINAL COURT 
 
¶1.    (Begin summary.) On May 19, the Slovenian Permanent 
Representative, Ambassador Sanja Stiglic, convened a seminar 
entitled "International Criminal Justice: The Role of the 
International Criminal Court."  International Criminal Court 
(ICC) President Song, ICC Assembly of State Parties President 
Ambassador Christian Wenaweser (Liechtenstein), U.N. Under 
Secretary-General Patricia O'Brien, several Permanent 
Representatives to the United Nations and others addressed 
current issues facing the ICC.  (End summary.) 
 
¶2.    President Song said that the Court has come a long way 
since it was created, with 108 State Parties to the Rome 
Statute, four investigations, thirteen arrest warrants, four 
suspects surrendered to the Court, the start of the first 
trial, and the expected beginning of the second trial. Just 
six years after its start, President Song said, "the Court is 
a fully functioning judicial institution."  He said that 
there are increasing indications that the Court could be 
having a deterrent effect on potential perpetrators of 
international crimes. Song said the ICC does not have the 
capacity to handle all cases of genocide, crimes against 
humanity and war crimes, and it was never the intention of 
the Rome Statute's framers that it should.  President Song 
said that under the principle of complimentarity, the Court 
only acts where States are unwilling or unable to credibly 
investigate and prosecute crimes.  Apart from referrals from 
the Security Council, the Court only has jurisdiction over 
crimes committed on the territory of States Parties or 
committed by nationals of States Parties that have acceded to 
the Rome Statute voluntarily.  The Rome Statute thus actually 
reaffirms core principles of state sovereignty.  Furthermore, 
it is restricted to crimes that took place after the Rome 
Statute took effect on July 1, 2002. 
 
¶3.    President Song acknowledged that the ICC is a judicial 
institution operating in a political world - politically 
neutral and judicially independent, but aware of the world 
around it.  He noted that the Rome Statute created the 
possibility for a political body - the Security Council - to 
refer situations to the Court and that in the case of Darfur, 
the Council did just that.  According to President Song, once 
a situation comes before the Court, States must accept that 
judges cannot and will not take political considerations into 
account.  Efforts to blame the Court for insufficient 
political sensitivity are misplaced, he said.  If a case 
becomes a problem for international peace and security, the 
Rome Statute foresees an outlet in Article 16, with its 
deferral provisions.  "This political option is in the hands 
of a political body:  the Security Council.  It is not a 
matter for the Court."  President Song noted that the African 
States at the Rome Conference successfully banded together to 
ensure the Court's 
independence, rejecting proposals to place the Court under 
the control of the Security Council.  President Song noted 
that the South African Development Community adopted 
principles in 1997, declaring that the Court should be 
independent and that the Prosecutor should be able to 
investigate crimes "without influence from States or the 
Security Council, subject only to appropriate judicial 
scrutiny."  President Song said that it once again necessary 
to seek guidance from these SADC principles.  He said that 
the Court is purely a judicial institution and cannot partake 
in political debates. 
 
¶4.    U.N. Under Secretary-General Patricia O'Brien made 
remarks, which she said were in her personal capacity and not 
intended to offer a legal interpretation of the Rome Statute. 
 She said that there can be no sustainable peace without 
justice, and that peace and justice are not mutually 
exclusive.  She said that one cannot ignore justice in 
seeking a peace agreement, for it would be a fragile peace, 
and if one insists on perfect justice, then it may be 
difficult or impossible to put a halt to bloodshed.  At 
times, she said, there needs to be a postponement of when the 
guilty will be brought to trial.  The challenge is finding 
the right balance, without sacrificing the one for the other. 
 O'Brien emphasized the importance of the complimentarity 
provisions of the Rome Statute, focusing on the Uganda 
situation.  The key is whether a State is "willing or able" 
to investigate and prosecute.  To satisfy the complimentarity 
test, the State has to demonstrate that it is investigating 
or prosecuting, genuinely and in 
good faith, at that very moment, those individuals for those 
very crimes that are the subject of ICC action.  The State in 
question must have a credible national mechanism in place. 
Mere political intent or enactment of legislation is unlikely 
to suffice.  O'Brien said that Article 16 of the Rome Statute 
provides that the Security Council can request the Court to 
suspend an investigation or prosecution for one year.  She 
said that it was within the purview of the Security Council 
 
 
to attach conditions to this suspension, thus steering the 
situation in a direction that it wishes.  O'Brien observed 
that deferral is a temporary measure, a freeze of 
proceedings.  The Security Council, she said, could give the 
State in question time to establish a credible national 
mechanism. 
 
¶5.    Christian Wanaweser, the President of the ICC Assembly 
of States Parties, noted that in early June there will be an 
informal meeting in New York on the crime of aggression. In 
addition, there will be a two-week review conference in 
Kampala in 2010.  The crime of aggression will be on the 
review conference agenda. The review conference will take up 
other issues, such as the Belgian proposal to expand the list 
of prohibited weapons in Article 8 of the Statute.  Wanaweser 
pointed out that the review conference will not be the last 
opportunity for parties to amend the Rome Statute.  He said 
that he would like to see more States join the Rome Statute. 
He reiterated what Patricia O'Brien had said about peace and 
justice as complimentary and mutually reinforcing.  He 
suggested that the Security Council has an obligation to help 
make the ICC work. 
 
¶6.    Ambassador Lomonaco (Mexican Ambassador to Mexico's 
Embassy in The Hague) spoke about his coordination of The 
Hague Working Group and the program of work.  He emphasized 
the importance of getting support for the Court from the 
international community, not just the diplomatic community, 
but the public at large. 
 
¶7.    Ambassador Rosenthal of Guatemala spoke from the 
perspective of a country that was not a party but that 
aspired to become one.  According to Ambassador Rosenthal, 
there has been apprehension in Guatemala about the impact of 
the ICC on a State's sovereignty. There is still strong 
resistance in Guatemala to subordinating domestic activities 
to international laws.  In 2002 the Guatemalan Supreme Court 
ruled that there is no impediment under the Guatemalan 
constitution to that country's acceding to the Rome Statute. 
Ambassador Rosenthal also noted the significant political 
opposition to Guatemalan accession, stemming from fears of 
prosecution for abuses that took place in 1982 and 1983.  ICC 
President Kirsch visited Guatemala in 2007 and made 
assurances that there are safeguards in the Rome Statute to 
prevent retroactive application of that treaty.  Ambassador 
Rosenthal said that the Government is committed to becoming a 
party to the Rome Statute. 
 
¶8.    The Permanent Representative from South Africa said 
that peace and justice must be seen as complimentary and 
mutually reinforcing.  According to the Ambassador, African 
countries are concerned about the Al Bashir indictment.  This 
is the first time that the ICC has taken action against a 
sitting president. The Ambassador called on the UN Security 
Council to exercise its "responsibility" under Article 16 of 
the Rome Statute to issue a deferral.  "This process should 
not be complicated by a power play at the Security Council," 
the Ambassador said. 
 
¶9.    The Permanent Representatives of Trinidad and Tobago, 
New Zealand, Belgium and Japan also made remarks.  Christine 
Chung, a Yale Law School professor, Bill Pace with the 
Coalition for the ICC and James Goldston with the Open 
Society Institute, also made brief presentations. 
 
¶10.   During a short question and answer session, the 
Sudanese Permanent Representative took the floor.  He said 
that the ICC risked its downfall by issuing the Bashir 
indictment.  He asserted that justice has been transformed 
into a political tool, wielded by the rich and powerful.   He 
said that Sudan is not subject to ICC jurisdiction because it 
is not a party to the Rome Statute. Thus, he said, 
prosecution of Sudan's head of state violates basic 
principles of sovereignty and international law.  He said 
that the Security Council should invoke Article 16 of the 
Rome Statute. 
RICE