In this latest contribution to our 20th anniversary blog series When hope and history rhyme, eminent jurist Hans Corell reflects on the importance of the International Criminal Court (ICC) system of international justice in creating a world society in which humans can live in dignity with their human rights protected.
When I was a junior judge in my country (Sweden) in the 1960s, I was very sceptical to the idea of an international criminal court because of the risk of politicisation. However, I completely changed my mind when two colleagues and I served as war crimes rapporteurs in the former Yugoslavia in 1992-1993. We were appointed by the Conference on Security and Co-Operation in Europe (CSCE) now (OSCE). On 9 February 1993, we presented the first draft of a statute for a war crimes tribunal for the former Yugoslavia. The CSCE immediately forwarded the draft to the United Nations, where the matter was under consideration. On 22 February 1993, the Security Council decided to establish the ICTY.
On 6 April 1994, the genocide in Rwanda erupted. A month earlier, I had taken up the position as Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations. This meant that I became involved in the establishment of both the Yugoslav and Rwanda tribunals. And later, I was responsible for the negotiations of the agreements between the UN and Sierra Leone for the establishment of the Special Court (SCSL) and the UN and Cambodia for the establishment of the Extraordinary Chambers (ECCC).
However, the highlight of my involvement with international criminal justice during my 10 years as the UN Legal Counsel was the 1998 Rome Conference for the establishment of the International Criminal Court. As the Representative of the Secretary-General, I was responsible for the organisation of the conference, together with Roy S. Lee, who was the Executive Director, and Mahnoush H. Arsanjani, who served as Secretary of the Committee of the Whole.
It was in this context that I had the pleasure of interacting with William (Bill) Pace and the CICC. I was very impressed by the way in which the Coalition was organised, and the manner in which it acted. In other contexts, I have said that this should be a model for how non-governmental organisations should organise themselves in order to get their message across and influence governments in their decision-making.
The only way ahead if we are to succeed in creating a world society in which humans can live in dignity with their human rights protected is to establish the rule of law both at the national and international levels. An important ingredient here is international criminal justice.
I agree fully with Bill Pace when he says that all of the international courts have had failures and successes, including the ICC. With respect to the ICC, I have focused specifically on the Kenyan cases and the manner in which the Court has dealt with them. This is because of my work for Kofi Annan when he was Chairman of the Panel of Eminent African Personalities and involved in the Kenya National Dialogue and Reconciliation from 2008-2013. I refer to the concerns that I have expressed in a brief article “Challenges for the International Criminal Court”.
It is against this background and my experiences from my years on the bench in my country that I have suggested that the Assembly of States Parties should:
- Elect competent judges with genuine courtroom experience to the ICC;
- Abolish candidate list B in the Rome Statute (which entails that diplomats and law professors with no courtroom experience whatsoever can be elected as judges); and
- Agree among themselves not to elect judges who will pass 70 years (common national retirement age) during their nine-year tenure in the court.
Equally important is that the members of the UN Security Council act with determination and consequence when they apply Article 13 (b) of the Rome Statute under which the Council can refer situations to the ICC Prosecutor. After such references it is crucial that the Council vigorously supports the Court. By way of example: if in such a situation the evidence leads the Prosecutor to the highest official at the national level and an arrest warrant is issued, the Council simply must follow suit and order the state to deliver the suspect to the ICC.
Another serious weakness is that some powerful states, including permanent members of the Security Council, have not ratified or acceded to the Rome Statute. This is a major setback in a world where states are increasingly interconnected and where the rule of law principles must be observed equally by all. Here, I see a continued role for the CICC to develop support among the general public in all countries in order to influence states that have not yet ratified or acceded to the Rome Statute to become parties to the Statute.
Finally, I cannot miss the opportunity of referring to the seventeen Sustainable Development Goals, adopted by the UN General Assembly in September 2015. In my view, one of these goals is a precondition for attaining all the other goals, namely Goal 16:
Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels
Among the targets of this goal are “promote the rule of law at the national and international levels”, and “substantially reduce corruption and bribery in all its forms”. These are absolutely crucial elements for creating the legal order that is a prerequisite for achieving all the other goals. The CICC could assist also here by explaining the connection between the ICC and the rule of law both at the national and international levels.
Hans Corell is a former Judge of Appeal from Sweden. He was later Chief Legal Adviser of the Ministry of Justice and Ministry for Foreign Affairs in his country. From March 1994 – March 2004 he was the Legal Counsel of the United Nations. He served on the Independent Panel on ICC Judicial Elections, established with the support of the CICC, and is now Co-Chair of the Council of the International Bar Association’s Human Rights Institute.
This post is the fourth of our “When hope and history rhyme” blog series, commemorating the 20th anniversary of the Coalition for the ICC. Starting July 17, 2015, and continuing until July 17, 2016, posts in this series offer reflections from Coalition staff, civil society members and officials on 20 years of fighting impunity, lessons learned and challenges for the future of global justice.