Foreign Affairs Committee on June 6th, 2006

[Alexa McDonough, NDP, Halifax, NS]

I don't know whether you're in a position to comment on this, but it has to continue to be a frustration that the U.S. has not signed on. Is there anything that can be done from the perspective of the international community to address that, or are you again just left to whoever wants to sign on signing on, and in the case of whoever refuses to, there being nothing much you can do about it?

[Chief Justice Philippe Kirsch]

Your question, as formulated, could be described as having a little political angle, but I can address it from another angle.

The central theme that has been evoked about the court since its inception is the possibility that it could carry out politically motivated prosecutions; that's always been the argument that has been raised. You have to realize that in 1998, when states created the court, they had no idea what the court would actually deal with--situations were unknown, states were unknown. Therefore, when they created the court, the states had every interest in ensuring that the court would be unable to act in any way that would not be purely judicial.

In the three years I have been on the court, my observation is that this approach must have worked, because I have not heard in three years a single comment of a political nature by anyone in the court—not in the chambers, not in the prosecutor's office, not in the registry. All those people are only interested in administering justice, when national systems are unable to do it in the worst possible situations.

So my view of this is that it is the responsibility of the court to demonstrate, through its action, that it is indeed faithful to the strict judicial, limited administration of justice. I do not believe it is possible to sustain indefinitely arguments and misapprehensions that are never substantiated by anything. So it follows, in my view, that as the court demonstrates beyond any reasonable doubt—as lawyers say—that it is indeed a purely judicial institution, apprehensions will fade and support will increase. Already you can see that in the past three years...the atmosphere surrounding the court is much more relaxed than it was three years ago.

I don't think I can go much further on this question, but that is my general answer.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

We'll go back to the government side and to Mr. Goldring.

[Peter Goldring, Conservative, Edmonton East, AB]

Thanks, Mr. Kirsch.

Given that you haven't found any politically motivated reasons for two or three years now that would substantiate the substantial other countries from not participating in the court's action, has this not manifested itself in a reason to bring onside some of the countries? My understanding is that the countries aren't only the United States, but also China, India, and Russia, and I'm sure there are other countries, too.

If that's the case, that you have not seen any politically motivated reasons for not signing onto it—their major reason for not signing—wouldn't some of those countries have gradually come onside and supported the court over that period of time?

[Chief Justice Philippe Kirsch]

One hundred states have now ratified the statute. This is an exceptionally quick pace of ratification, if we compare it with any other major treaty. The Law of the Sea Convention, which did not affect the domestic system of states as the ICC does, took something like 12 years to enter into force. The ICC statute took five years to enter into force.

This is a very, very young institution. You cannot expect those who are still waiting to see how the court behaves to come en masse immediately. The court has not gone through a full cycle yet. We have had pre-trial chamber proceedings, some of which have been appealed, but we have not yet had a trial. A trial can only begin after the confirmation of charges, if these are confirmed in September against the first suspects.

So I think this is all a matter of a little time. As I said, it's a very, very young institution. Also, among the states that you mentioned, Russia has not ratified the statute, but has signed the Rome Statute.

[Peter Goldring, Conservative, Edmonton East, AB]

Still, you have substantial entities—the United States, China, and India, and other countries too—with combined populations of possibly a third to half of the world's population.

Do they have any other reasons for not ratifying, other than possible political reasons, just as you said?

[Chief Justice Philippe Kirsch]

If there is something I never do, it's to speak on behalf of states, but I think it stands to reason that if you look at some situations of states that have not ratified the statute, you could see that their particular contexts may give them reason to think about it a little longer.

[The Chair, Conservative, Kevin Sorenson]

We'll go to Mr. Wilfert, please.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Mr. Chairman, thank you very much.

Just following up on the issue, since all states act in their national interest and since there are many skeptics out there, or those who are not convinced of the merits, one area that seems to be of concern is the United States, and particularly the bilateral immunity agreements. They have been very active. I guess around 100 agreements have been signed, affecting both civilian as well as military personnel.

First of all, what impact do you think the American pressure has had in terms of getting others to sign on to the court?

[Chief Justice Philippe Kirsch]

I cannot answer that question. This is a question that relates to state policy. As a member of a judicial institution, I cannot address it.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

What signal would you suggest it may send about states being able...? We've had three that have referred specific matters to the court. Does this not create a difficulty in giving others the assurance to send matters to the court, given that these kinds of agreements could potentially impact negatively on the court?

[Chief Justice Philippe Kirsch]

Whether they have an impact or not is not something I can comment on. The court is not an NGO; it is not a political body; it is not there to pass judgment on or speculate on what effects states' policies may have. It is there to administer justice. All we can do now, having received some situations and having enough cases to be able to demonstrate that we will indeed administer justice as we should, is to make that demonstration and then see what happens later on in terms of ratification.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Do you, then, believe you have the appropriate tools to administer justice and therefore send out the right signals to those who may be skeptical at this time?

[Chief Justice Philippe Kirsch]

The system has been designed in such a way as to give the necessary tools to the court in judicial terms. The statute of the court is much more developed than the statute of any other international tribunal, precisely because in the treaty that created the court, states wanted to be very sure the court will be constrained to act impeccably.

When it was done, states themselves developed the rules of procedure and evidence of the court, which everywhere else, in other tribunals, were left to the judges. So as an institution, I think everything has been done to create a strong judicial institution. There will be a review conference in 2009 where states may determine that this or that has not been done perfectly the first time and may change it.

But the whole system also has been based, beyond the judicial, on cooperation. The court has no army; the court has no police. So as much as the court may be successful in administering justice judicially, there will always be this need for cooperation from the outside in arrests, in surrenders, in providing information, evidence, and the like.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

In terms of the ability of states to refer cases to the court, one of the clear issues is that we need as parliamentarians—and the question was answered to some degree earlier.... We met, for example, with the foreign affairs standing committee from Finland this morning. One of the things we were asking was how we as parliamentarians—and I, obviously, through government—could promote and assist in ensuring that others follow suit.

I asked you about the tools. You've explained about the mandate, the role. Are there other things we can ensure? Obviously one would be financial, but are there other ways we as parliamentarians, in conjunction with governments, can assist in making sure that perpetrators of human right crimes, as an example, are brought before the courts? In other words...[Technical difficulty--Editor]...that it needs.

[Chief Justice Philippe Kirsch]

Thank you.

You have mentioned financing, of course, which is important. The legislative work certainly in Canada seems to have been done to a large extent in support of the court. What I have observed in the past few years is that parliamentarians have an extremely important role to play in having contacts with parliamentarians of other countries.

I could identify very clearly, and I could do it after the meeting if you're interested, certain countries that have ratified the statute because their parliamentarians were convinced, after again a period of hesitation, reluctance, as you referred to earlier, that the court was indeed a good institution. So in that sense, parliamentarians, to me, have an absolutely unique role. They have unique contacts that may increase the level of ratification, which indeed is indispensable for reaching universality one day.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Judge.

Back to the government side. Madam Grewal.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Thank you, Mr. Chair, and thank you to Judge Kirsch for the presentation.

Well, my questions are designed to shed some light on what I believe must be some questions as to the legitimacy of the ICC. First, what are some of the factors that have caused some of the most powerful or populous nations like the United States, Russia, China, and India to resist signing or ratifying the Rome Statute?

Secondly, are there any steps you've taken or mechanisms in place that attempt to get these countries to sign or ratify the statute?

Finally, is Canada a clear advocate of the ICC, taking a leadership role in trying to convince or persuade nations, particularly the United States, to ratify the Rome Statute?

[Chief Justice Philippe Kirsch]

I've always maintained that the court, of course, does not have the responsibility and should not promote itself, because if we did, then the court would begin to have this political angle that I think it's very important we never have.

The court, however, has the responsibility to explain what it does. We have engaged, and I have personally engaged, on a responsive basis in many visits to other countries to explain the court. I've been twice to India. I've been to Pakistan, China, Russia, and Middle East countries. I have been to any number of countries, including the United States.

But this is all the court can do, to explain what it does, not to promote. So it is, of course, very useful when states like Canada continue to organize conferences, to explain, to give indications, for example, on the technical means of ratifying the statute, which are not always well understood, but certainly explain the court so that all these misapprehensions about the court disappear.

Of course, a major part of that process will come from the court itself. The court has to demonstrate that it is able and willing to adhere to the principles that underlie its creation.

[The Chair, Conservative, Kevin Sorenson]

Judge, we'll go back to the opposition side.

Mr. Martin, please.

[Keith Martin, Liberal, Esquimalt—Juan de Fuca, BC]

Judge Kirsch, I'd like to also echo the comments made by Ms. McDonough. I remember pre-ICC and your hard work and you as an individual being a significant driving force for the court and moving the international community away from a culture of impunity to a culture of accountability, to paraphrase your words. I want to thank you, as a Canadian, for all the hard work you've done with respect to breathing life into this idea and making it a reality.

My questions, Judge Kirsch, are an extension of what's already been mentioned. There are two things I'm really interested in. Number one, again, is the obstacles you face for prosecuting individuals and things that as a nation we could do to help facilitate support for the ICC in executing its duties.

Secondly, we've seen, as you mentioned before, a number of individuals, such as the 51 individuals in the Sudan who have been cited for prosecution, individuals like Joseph Kony, who, as head of the LRA, has committed atrocities beyond most people's worst nightmares. What are the obstacles to finding and bringing these people to justice?

In your comments, you mentioned Thomas Lubanga as being the first person, as of March of this year, to actually be arrested in a country and brought in front of the court. What do you need, and what can a nation like Canada do to help to strengthen the ICC?

[Chief Justice Philippe Kirsch]

Thank you.

Generally speaking, Canadian support is going to continue to be useful in terms of ratification, financial support, and other support to make the court well known, and in terms of complete cooperation at the request of the court—but for the time being, that is in the hands of the prosecutor, not of the judges.

Of course, an important obstacle right now in bringing people to justice is the situation of great instability in the regions in which we operate. It does require the support of all states that have something to contribute—information or other means. A country, for example, offered a plane to bring back the first suspect from the Congo to The Hague. This is clearly not work that one single country can do; it has to be a system in which several countries do cooperate to bring support to the court.

Again, I'm not in a good position to detail this, because a large part of this work is now being conducted in the prosecutor's office, while I'm the president and a judge working in a different area.

[The Chair, Conservative, Kevin Sorenson]

Very quickly, Mr. Martin.

[Keith Martin, Liberal, Esquimalt—Juan de Fuca, BC]

Judge Kirsch, if one wanted to prosecute a head of state, such as, hypothetically, Robert Mugabe from Zimbabwe, for crimes against humanity, how would one do that?

[Chief Justice Philippe Kirsch]

No one has immunity before the court; what counts is whether someone is alleged to have committed crimes. Once before the court, the person certainly does not have immunity, although states are never obliged to violate their own obligations under international law by surrendering someone to the court. It is a system that provides for respect for international law before the person is before the court.

In the case of a state that is not a state party, the only way of bringing a person to justice is through a Security Council referral; there is no other way.