Foreign Affairs Committee on June 6th, 2006

[The Chair, Conservative, Kevin Sorenson]

It being 3:30, we will call this meeting to order. This is the Standing Committee on Foreign Affairs and International Development, meeting number 8. Pursuant to Standing Order 108(2), we are holding a briefing session with Philippe Kirsch, President of the International Criminal Court.

We certainly want to welcome Judge Philippe Kirsch to our committee today. He's going to talk to us about the International Criminal Court and provide us with an update on where the court stands today.

Since 2002, Canada's ICC and accountability campaign, funded by Foreign Affairs' human security program, has provided more than $3 million in funding to support events and projects that promote ratification and implementation of the Rome Statute. It also assists with the effective functioning of the ICC and other international criminal tribunals and it conducts education and outreach on the ICC and other tribunals.

In addition, and at the request of the ICC prosecutor, Canada has made a voluntary contribution of $500,000 to support ICC's investigation in Darfur. It was the first country to make such a pledge.

I understand you have an opening statement today. We've all received it in advance. I invite you to address our committee. At the close of your introductory remarks, we will proceed with questions.

The first round will be a five-minute one. That's five minutes for the questioner and for responses.

Mr. Kirsch, welcome.

[Chief Justice Philippe Kirsch, President, International Criminal Court]

Thank you very much, Mr. Chairman, for this introduction.

Mr. Chairman and members of the committee, I am very pleased to speak with you today about the International Criminal Court. I will divide my remarks into three parts: why the ICC is necessary, the features that are designed to make the ICC well-suited to meet this need, and where the court stands today, including what it will take for the court to be a success.

In terms of why the court is necessary, we have to start with the observation that when very serious crimes such as genocide, crimes against humanity, or war crimes are committed and go unpunished, the consequences are severe for individuals, but also for national and regional stability.

The first responsibility for punishing such crimes, as with any other crimes, belongs to national legal systems. But because of the nature of these offences, national legal systems have often proven unwilling or unable to prosecute. Where national systems cannot or will not act, an international court is necessary.

In the past, international tribunals were created on an ad hoc basis where national systems could not or would not act, first at Nuremberg and Tokyo following World War II, and more recently in tribunals established by the Security Council for the former Yugoslavia and for Rwanda.

Those tribunals were pioneers. They showed that international criminal justice was a practical possibility. But all of them also face several limitations: they are temporary, they are limited geographically, they respond primarily to events in the past, and their establishment depends every time on the will of the political community and involves substantial costs and delays.

Eventually, states reached a conclusion that only a permanent international court could effectively address the most serious international crimes. The ICC is immediately available, its jurisdiction is prospective, and its jurisdiction is not limited to predetermined situations. It operates within the bounds of the statute that limits that jurisdiction.

I will now move to the features which allow the International Criminal Court to fill the needs I have just described. The jurisdiction of the Court is limited to the most serious crimes of concern to the international community as a whole, that is to say genocide, crimes against humanity and war crimes.

The Court's jurisdiction is not universal. It is limited by status. The Court has jurisdiction over nationals of States Parties or offences committed on the territory of a State Party. There are two universally accepted heads of criminal jurisdiction.

In addition, the Court will have jurisdiction over situations referred by the Security Council. Acting under chapter 7 of the UN Charter, which concerns restoring and maintaining international peace and security, the Security Council can refer situations to the ICC independent of the nationality of the accused or the location of the crime. The Security Council also has the power to defer an investigation or prosecution for one year in the interests of maintaining international peace and security.

It is very important to understand, about the International Criminal Court, that it is a court of last resort. It works as a complement to national jurisdictions under what is known as the principle of complementarity. Under that principle, it is up to States to prosecute and convict those who commit the most serious crimes. The court can act only where States are unwilling or unable genuinely to investigate or conduct the necessary prosecutions.

Furthermore, cases will only be admissible if they are of sufficient gravity to justify the Court's involvement.

The ICC is an independent and strictly judicial institution. It was created by a treaty negotiated in Rome in 1998. It is the only existing international court to be created not by the UN Security Council or by other means, but pursuant to a treaty. The States are free to join or not to join the statut, the statut being the treaty. The Court is not part of the United Nations, or any other political body. It exercise, as I said, a purely judicial function. All cases will be handled judicially, in accordance with its statute, as well as the rules of procedure and evidence.

Numerous safeguards protect the independence of the Court, its judges and the prosecutor. The guarantee of a fair trial and protection of the rights of the accused have paramount importance before the ICC. The applicable instruments, starting with the Rome Statute, incorporate the fundamental provisions on the rights of the accused and due process. These are common to national and international legal systems.

However, I want to emphasize an innovation of the International Criminal Court. This is a unique phenomenon in the international world. I want to talk here about the situation of victims. Subject to the requirements of the rights of the accused and the guarantee of a fair trial, the Rome Statute contains a whole series of innovative provisions giving victims an important place in the Court's proceedings. Victims may participate in proceedings even when not called as witnesses. The Court also has the power to order reparations to victims, including restitution, compensation and rehabilitation.

Lastly, in this area, the need to take into account the particular interests of victims of violence against women and children is also specifically built into the Statute.

I would like to turn next to the court today and what it will take for the court to succeed. Three states parties have referred situations occurring on their territories to the court. In addition, the Security Council has referred the situation in Darfur, Sudan—Sudan being a non-state party. After analyzing the referrals for jurisdiction and admissibility, the prosecutor began investigations in three situations: Uganda, the Democratic Republic of the Congo, and Darfur, Sudan.

In addition to those formal referrals, the prosecutor has received since July 1, 2002—the date of entry into force of the statute—over 1,700 communications from various sources, primarily from individuals and non-governmental organizations. The prosecutor dismissed the vast majority of them as manifestly outside the jurisdiction of the court--for example, communications that allege crimes not within the court’s statute or that deal only with non-states parties. On the basis of such information, the prosecutor is monitoring five additional situations, but these are not situations that I'm aware of, as they are in the prosecutor's domain. But it is known that he is monitoring the situations.

On the 17th of March of this year, the first wanted person was surrendered to the court, Mr. Thomas Lubanga Dyilo, a national of the Democratic Republic of the Congo, who is alleged to have committed war crimes, namely, conscripting and enlisting children under the age of 15 years and using them to participate actively in hostilities. Mr. Lubanga had an initial appearance before the court on the 20th of March. A hearing to confirm the charges is scheduled for September. If the charges are confirmed, the trial phase will begin.

In addition, the court has issued and unsealed arrest warrants in the situation of northern Uganda for five members of an organization called the Lord’s Resistance Army, including its leader, Joseph Kony. The alleged crimes against humanity and war crimes contained in the warrants include sexual enslavement, rape, intentionally attacking civilians, and the forced enlistment of child soldiers.

As I have indicated, the court has been carefully designed to conduct fair and effective proceedings, but it should be clear that the ICC cannot end impunity for horrific crimes by itself. It is but one part of a larger system of international law and justice. To succeed, the court must have support from states, intergovernmental organizations, and civil society.

Because the court’s jurisdiction is limited to the nationals and territory of states parties, it follows that continued ratification of the statute is essential to the court having a truly global reach. Because the court is complementary to national jurisdictions, states will continue to have the primary responsibility to investigate and prosecute crimes. But where the court needs to act, it will require cooperation from states at all stages of proceedings, such as by executing arrest warrants, providing evidence, and enforcing sentences of the convicted. Simply put, for example, without sufficient support in arresting and surrendering persons, there can be no trials. This requirement for cooperation is not limited to states where crimes are committed or where wanted persons are located, but includes all states in a position to provide cooperation.

International organizations also provide critical support to the court. The support of the United Nations is particularly important in this regard. The UN and the court cooperate on a regular basis, both in our field activities and in our institutional relations. Our cooperation is governed by a relationship agreement signed by the Secretary General of the UN and I in October 2004.

The court is also developing cooperation with regional organizations. It concluded recently and signed a cooperation agreement with the European Union and expects to do so soon with the African Union.

Non-governmental organizations—NGOs—and civil society more broadly are of course instrumental to the work of the court. NGOs have played a large role in urging ratification of the statute, assisting states in developing legislation implementing their own statute, and disseminating information about and building awareness of the ICC.

I would also note here the important role of parliamentarians in supporting discussion of the court nationally and in many cases regionally. In this context, parliamentarians of states parties and non-states parties have been active in such areas as generating understanding of the ICC as well as assisting states in overcoming obstacles to ratification, accession, and implementation of their own statute.

Mr. Chairman, the creation of the ICC was a historic achievement, more than 50 years in the making, but its creation was only the beginning. The court now stands as a permanent institution capable of punishing perpetrators of the worst offences known to humankind. From this point forward, potential perpetrators are on notice that they may find themselves before the court.

For it to be fully effective, I cannot overemphasize how much support for the court will be necessary if it is to dispense justice as fairly and efficiently as possible. Canada has been a major supporter of the court, both in terms of its establishment and in its initial years of operation. Canada played a leading role before and during the Rome conference, and in June 2000 Canada became the first country to adopt comprehensive legislation implementing the Rome Statute.

More recently, Canada provided important public support for the Security Council referral of the situation in Darfur and it has subsequently provided funding to the office of the prosecutor to assist in its investigation in Darfur, as you mentioned yourself, Mr. Chairman. You also mentioned the ongoing ICC and accountability campaign of the Department of Foreign Affairs and International Trade, aimed at encouraging ratification and implementation of the Rome Statute, promoting effective cooperation with the court, and contributing to better understanding of the court. I should like to say how much the ICC appreciates such support; it is most interested, of course, in seeing it continue.

The court is now fully operational, but this does not mean it can act alone. It needs more than ever the practical, political, and moral support of countries like Canada in order to succeed.

I thank you very much.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Judge Kirsch.

I want to remind the committee members that because we have another meeting right at 4:30, we're going to keep fairly strictly to the timelines.

We'll begin on the opposition side. Mr. Patry, you have five minutes, please.

[Bernard Patry, Liberal, Pierrefonds—Dollard, QC]

Thank you, Mr. Chairman.

Mr. Kirsch, it's a great pleasure for me to see you appear before this committee today. Since little time has been allotted for our questions, I would especially like to get answers from you. I'll immediately go to the heart of the matter.

Before being appointed judge and president of the Court, you wrote that the main purpose of the Court was to replace a culture of impunity regarding various serious crimes with a culture of accountability.

What are the Court's immediate priorities for putting an end to the principle of impunity?

To date, 139 States have signed the Rome Statute. Russia signed it, and the United States, which had signed it in 2000, withdrew in 2002. Since then, they have been trying to deter certain nations, to invite them to withdraw from the Rome Statute. They are signing bilateral immunity agreements under which the signatories undertake to ensure that no American on their soil, including former government officials or military personnel, will be handed over to the Court if proceedings are brought.

More than 90 countries have signed these bilateral agreements. Doesn't the fact that a number of countries have signed both the Rome Statute and the bilateral immunity agreements seem incoherent, even a dichotomy?

[Chief Justice Philippe Kirsch]

Thank your very much.

As regards replacing a culture of impunity with a culture of accountability, that's obviously a long-term undertaking. The Court will have to prove itself. It recognizes that it is primarily responsible for establishing its credibility.

However, the first signs are quite encouraging. When I was appointed to the Court, I thought the only way to develop this culture of accountability would be through our judgments and that, consequently, that would take a number of years. Now we realize that the Court's very existence is noted in many situations where there are and could be conflicts or crimes. So we see that the Court's existence has begun to create a culture which, for the moment, should at least be a culture of deterrence and which should one day lead to the creation of a culture of accountability.

I should have said at the end of my presentation that, as regards the bilateral agreements, I am in a somewhat delicate position on certain questions since I'm not only the president of the Court, but also a judge in its Appeal Division. One of the questions of interpretation, perhaps concerning the existence of those agreements and the obligations of States that have entered into them, if they are States Parties, could come before the Appeal Division, and I would therefore be compelled not to answer that question.

Thank you.

[Bernard Patry, Liberal, Pierrefonds—Dollard, QC]

Then I'll go on to another question.

Ms. Arbour, who is now the UN High Commissioner for Human Rights said in a way that she was displeased with the slow manner in which guilty parties are brought to justice. She apparently said that the struggle against impunity at the national level has not advanced an inch. I therefore believe that we should call on the International Criminal Court to address its mandate and cases that the Security Council refers to it in a more vigorous and visible manner.

Can you explain why the Court is unable to proceed more quickly?

[Chief Justice Philippe Kirsch]

I could answer you by saying that's a question for the prosecutor, but I'll nevertheless give you an additional answer. Unlike the ad hoc tribunals created by the Security Council, the International Criminal Court is in a very different situation. Those tribunals dealt with crimes that had been committed in the past, in the context of conflicts that were over. The Court deals with crimes that are still being committed in the context of continuing conflicts.

This creates a situation of extreme vulnerability for the Court, not only for its staff, but also for victims and witnesses. In the case of Darfur, for example, I know, because it's been said publicly, that the prosecutor interviewed a lot of victims and witnesses, but always outside Darfur because he was unable to guarantee the safety of all those people in Darfur. This is one of the main barriers we encountered. Here again, we absolutely need the cooperation of international organizations to assist us in getting through stages as difficult as that.

[Le président, Conservative, Kevin Sorenson]

Thank you.

Ms. Lalonde, you have five minutes.

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

Thank you, Mr. Kirsch. We've heard from you at various stages of the Court's creation, then formation. It's a pleasure to welcome you, at a time when the Court is in session.

Can you tell us the main obstacles you're currently encountering and any that you apprehend? In addition, in these conditions, what can we do to help you?

[Chief Justice Philippe Kirsch]

The atmosphere surrounding the Court today has nevertheless improved in the past three years. That's something we perceive: the Court is better understood and therefore better appreciated.

One of the obstacles we encountered is the one I referred to, problems in the field. One of the obstacles we might encounter is a prolonged slowdown in the number of ratifications. The Court is limited to the State or territory where the crime was committed or to the nationality of the accused, which leaves vast tracts of the world map not covered by the Court. For example, we haven't really made any major breakthroughs in Asia. However, it is interesting to see that the Asian countries that have ratified include Cambodia, East Timor and Afghanistan, three countries where mass crimes have been committed.

Similarly, we haven't had enough ratifications in the Middle East.

If Canada can continue making the Court known and show that it is a useful instrument for the international community, and not a threat, that's definitely a major step toward establishing the Court.

I'm repeating myself, but I'll say it all the same. It is absolutely essential that the Court receive the active support of the States, in a practical way. I'm thinking especially of arrests in the coming years. That's something essential and something that depends on what the governments are prepared to do.

Being the president of the Court for the past three years and for the next three years, I feel confident about the Court's future. However, there are some barriers that must be overcome. I believe I've cited the main ones.

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

Despite the answer you've given, could it be that the results achieved by the International Criminal Court in Rwanda and in the Balkans aren't helping with ratification by other States?

[Chief Justice Philippe Kirsch]

I believe we've drawn lessons from the experience of the ad hoc tribunals, in particular that it is necessary to conduct prosecutions as efficiently and rapidly as possible, to the extent that's compatible with the administration of justice as it should be carried out.

The Statute itself contains provisions in this regard, for example the creation of a preliminary division which is designed to eliminate from the trial itself everything that should precede it. We've developed regulations for the Court, which is trying to be as efficient as possible. It's mainly in that sense that we're drawing on the experience of the ad hoc tribunals.

Knowing whether that has an influence on ratifications is a highly speculative question that is very hard to answer. However, we're determined to do what we can to show, in the next few years, that the Court is not only an impartial and effective judicial body — that doesn't trouble me, because I believe we'll do that — but also a Court that is part of a system in which everyone contributes: the States, international organizations, the NGOs. If people ultimately understand that the Court is part of a system, it will be successful.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

We'll go to the government side, to Mr. Obhrai, for five minutes.

[Deepak Obhrai, Conservative, Calgary East, AB]

Thank you, Chair.

Welcome. I met you, as I said, and I had the privilege of visiting you at your head office in The Hague and saw you in action.

There are concerns and questions that many raise in reference to your court. Your court is supposed to give confidence to victims of genocide and others that somebody will be brought to justice. But as you look around, the concern is, what about governments themselves that have spotty records? For example, we're just now hearing that the Government of Uganda may make a deal with the Lord's Resistance Army to give its leader a safe passage, and yet we have criminal arrest warrants for him. Then there is what you have come out with in Darfur as well with the Government of Sudan.

But let me give an example of one area that I think will say what I'm trying to say, and that's in Sri Lanka. The Tamil Tigers have been bad. They have been using suicide bombers, children, and everything, and yet the leader of the Tamil Tigers is not considered a war criminal. Nobody has ever said that, despite the facts. On the other hand, the Government of Sri Lanka itself does not have a good human rights record, which brought out this conflict in the first place. So you have this situation being created over there in Sri Lanka that is from both sides--a rebel army that is breaking all the rules and a government that still needs a lot of improvement on human rights.

Of course, the other country that falls close to that is Burma. In Burma you have the military regime, the junta, that is not giving human rights and these things.

All of these areas seem to escape from your court and it seems to focus only on areas with high political things or be easygoing on these things, which is what I'm trying to get at. This is one of the criticisms that comes in here.

How do you see your court addressing a situation like what I've just described here?

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Obhrai.

Mr. Kirsch.

[Chief Justice Philippe Kirsch]

You will understand, of course, that I cannot comment on specific situations, but I would make two points.

One is that the criterion the prosecutor has been using to determine whether he starts an investigation is gravity. He is going to start an investigation where, for example, the number of victims is very high and not where the number of victims is very low because the court has not been created to deal with everything, everywhere, but rather to deal with the most serious situations of crimes and probably within each situation with a limited number of individuals.

He certainly has made it clear in the situation that you mentioned that he would make no difference--if the criterion of gravity is met--between people who belong to one side of the story or the other. He has made that very clear.

With respect to the second situation you mentioned, that brings me back to ratification. Africa has ratified the statute of the court massively, for different reasons than Canada and the Europeans have ratified the court statute.

In the case of countries like ours, states have ratified the statutes because of humanitarian values and because they thought the court would be a contribution to regional stability--if crimes diminish, the flows of refugees, malnutrition, all these disruptions, are avoided.

African states ratified the statute because they saw the court as a protection in the future against the crimes they had suffered on their own territory. They said very clearly, we know what the consequences of those crimes are; we want legal protection.

My point in this is that if a state feels vulnerable one way or another, the best way of obtaining that legal protection is to ratify the statute. The court is bound in law not to go beyond the statute, obviously. It cannot deal with situations pertaining to non-states parties unless the Security Council intervenes.

The court executes, applies the statute; it cannot re-interpret the statute loosely.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Judge Kirsch.

We will now proceed to the New Democratic Party and Ms. McDonough.

[Alexa McDonough, NDP, Halifax, NS]

Thank you very much.

I want to congratulate you on the trail-blazing you've been involved in. It has to be a very great honour and a tribute to you that you've been elected and re-elected by the judges to serve as the chief justice. I think that makes Canadians very proud.

I fully appreciate that you're not in a position to talk in detail about cases that are before the court, so at any point that any of us transgresses, I know you'll push back.

I'm trying to understand a bit further—you could use the instance of Darfur and the Sudan, I guess, as a case in point or an example of where a country is not a signatory to the treaty of Rome and then, by referral from the Security Council, is brought before the court—how you deal with the fact that, as you've outlined in your presentation, the ability of the court to succeed in its mandate depends upon the cooperation of the state party. I'm wondering if you can talk a little bit, either by further reference to Sudan or in general, about what the obstacles are and whether there are things the international community can do, either through global opinion, international agencies, or whatever, to help put pressure on a country to cooperate. Or is the situation that if they don't cooperate, that's it, there's not really much of anything any committed parties can do to assist in that regard?

[Chief Justice Philippe Kirsch]

Thank you very much.

As you accurately guessed, I can answer that question in general and not in specific terms.

There have been so far no complaints about cooperation. The prosecutor refers in the reports on the Darfur situation to the Security Council of the UN—I think he's going to make his next report this month. So far there have been no allegations of non-cooperation on the part of any of the states involved in these situations.

If it were to happen, obviously there are ways in which interested states can apply pressure on states to cooperate, but there are also institutional mechanisms. The court can report to the Assembly of States Parties, generally speaking, in a situation where a state party has refused to cooperate. Then the Assembly of States Parties could decide on certain measures regarding the situation.

In the case of a situation referred by the Security Council, it's directly to the Security Council that the court could address that complaint. Of course, the Security Council has much more significant means of dealing with problems like this than the Assembly of States Parties.

[Alexa McDonough, NDP, Halifax, NS]

Could you elaborate on what kinds of institutional measures may be available for utilization?

[Chief Justice Philippe Kirsch]

This is not specified in the statute. It will have to be addressed when a situation like that comes up.

[Alexa McDonough, NDP, Halifax, NS]

I see. So you haven't actually dealt with a situation as yet?

[Chief Justice Philippe Kirsch]

That is because there have been no complaints about non-cooperation, so the question has not risen.

[Alexa McDonough, NDP, Halifax, NS]

Which is a good thing, I guess.

[Chief Justice Philippe Kirsch]

It is a good thing.