Issued by: General Council of the Bar of South Africa
ALL-PARTY SUPPORT IMPERATIVE FOR INTERNATIONAL CRIMINAL COURT - WAR CRIMES PROSECUTOR SAYS
The Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda has urged the international community to re-examine the concepts of complementarity and primacy when discussing proposals for the establishment of an International Criminal Court.
Speaking in Vienna last weekend during the International Bar Association's 4th Biennial Seminar on the Alleged Transnational Criminal - Crime Across the World - Is the Rule of Law Being Corrupted? - Madame Justice Louise Arbour told delegates "when crimes threaten not only the stability within a country, but risk creating regional or global-destabilisation, a supranational forum is essential."
Justice Arbour said that to date, approaches taken toward combating transnational crime has tended to concentrate on incremental steps aimed at enhancing mutual co-operation among states and their own institutions. However, crimes of "truly universal concern", such as genocide and acts against humanity, called for a different response from the international community.
"Traditionally criminal prosecution has been regarded by states as one of the most distinctive badges of their sovereign power," said Justice Arbour. "For some too, an effective and impartial independent tribunal or international court represents a clear threat to national interests."
"Even the use of the Chapter VII powers by the Security Council has not displaced the natural reluctance of states to cede control of criminal investigation and prosecution to outside bodies. The result is a `vertical' (rather than horizontal) relationship between the ad hoc tribunals and the states, yet the question of the actual powers of these international institutions remains fraught with difficulty."
Justice Arbour - who joined Hans Corell, United Nations Under-Secretary-General for Legal Affairs as a speaker at the event - said objections had been raised about the imposition of a "Master of the Universe" as Prosecutor at a permanent international court, and she suggested the answer to problems posed by the establishment of an International Criminal Court may lie in reviewing the relationship between such a body and the national courts of the states.
She proposed a re-examination of the concepts surrounding complementarity and primacy, and said an alternative to the relationship envisaged in the draft ICC statute, due to be debated in Rome later this year, must be sought.
Among the suggestions put forward by Justice Arbour were:
Retention of the present formula, but with an adjudication of the readiness, willingness or ability of the prosecuting state determined not in the ICC, but in another forum - the nature of which might reflect the fact that the exercise is not entirely a judicial one.
"The importance of international criminal justice should be affirmed once and for all on the world order, and a longer term view taken that those who commit the most shocking and massive atrocities imaginable should be routinely brought to account for their crimes, said Justice Arbour. "It is simply imperative for an effective international institution to command the co-operation of states on whose territory it must operate."
For further information or copies of papers given at the Seminar, contact Nicole Maley - IBA Media and Public Relations Officer - on Tel: +44 (0)171 491 4480 (direct0 or by fax on +44 (0)171 409 0456. Visit the IBA website at www.ibanet.org
Note to Editors
In June 1995 the Council of the International Bar Association voted unanimously in support of the establishment of a permanent International Criminal Court
Distributed by the Deputy Secretary-General of the IBA for Southern Africa, Adv M J D Wallis SC