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Report ICC

Among the various topics our delegation had wished to be briefed on, the International Criminal Court (ICC) in The Hague was one of the most requested.

Together with the NMUN delegations from Würzburg and Freiburg as well as college students from Virginia, we attended a briefing by Dr. Markus Pallek from the Office of Legal Affairs. Having studied in Würzburg and worked at Humboldt Universität zu Berlin, the lawyer had more in common with our delegations than just nationality. Right from the beginning, Dr. Pallek emphasized that he could only speak on the United Nations and its relationship to the ICC and not for the ICC itself, as he did not work for the latter.

First he gave us an overview on the historical development. “Fifty years ago”, he said, “the United Nations recognized the need for prosecution of crimes.” In December 1948 the General Assembly had adopted the Convention on the Prevention and Punishment of the Crime of Genocide. Dr. Pallek emphasized the role of Raphael Lemkin in this process and expressed his regret that this important man behind the genocide convention is often forgotten. The idea of a draft resolution for the establishment of the ICC had been taken up by the General Assembly in 1990 and had then been referred to the International Law Commission (ILC). In 1998, a conference was held in Rome, on which the statute of the ICC was adopted. It became known as the Rome statute, and entered into force on 1 July 2002. Until now, 104 states have ratified the Rome statute. Dr. Pallek underlined that due to this relatively small number the ICC was still far away from the goal of universal jurisdiction. However, the court has left the preparatory phase and is now fully operational, investigating its first cases and holding its first hearings. In order to illustrate this, Dr. Pallek mentioned that the Security Council had referred the conflict in Darfur to the ICC and that the prosecution had already summoned Sudanese politicians.

Then, the expert from the Office of Legal Affairs explained the court’s structure. It is separated into Presidency, Chambers and the Office of the Prosecution, which is independent for its substantial work. The Chambers are divided into three instances: the pre-trial chamber, the trial chamber, which will soon take up its work, and the appellate chamber.

Afterwards, Dr. Pallek came to the main part of his presentation: the cooperation between the UN and the ICC. He mentioned the UN-ICC Relationship Agreement, concluded on 4 October 2004, which affirms the independence of the Court while establishing a framework for cooperation. This agreement includes issues like the participation of the ICC, in the capacity of observer, in the UN General Assembly, the exchange of information, as well as the obligation to consult each other on matters of mutual interest. The United Nations delivers evidence as it would be too dangerous for the court to carry out investigations in the field itself. The UN agrees to cooperate with the Court whenever the latter requests the testimony of an official of the United Nations or of one of its programs, funds or offices. He also explained that the UN Security Council may refer a situation (in which one or more crimes under the jurisdiction of the Court appear to have been committed) to the Prosecutor and the Council may defer the commencement or continuation of ‘an investigation’ or ‘a prosecution’ for a renewable period of 12 months. He stressed that the ICC was a treaty-based organ that was fully operational. “We do not have a baby anymore, we have a partner in the ICC”, Dr. Pallek expressed his confidence in the functioning of the court. However, he emphasized that enforcement instruments were still lacking and he regretted the lack of support. For instance from the five permanent members of the Security Council, only the United Kingdom and France have ratified the Rome statute.

After the presentation, we were allowed to ask questions. The first was about the ICC’s investigations of five Ugandan members of the Lord’s Resistance Army. The expert from the Office of Legal Affairs made clear that he merely could present the official line of the Secretariat: “that it is an issue of the ICC”. But in his opinion “peace is a precondition for justice” and he explained the problem of amnesties: rebels claimed amnesty as a condition for peace treaties. “Where is the answer to this problem? I do not know” Dr. Pallek admitted. However, he expressed the hope that amnesties were not granted for genocide, war crimes and crimes against humanity. “Hopefully, this will become customary law”, the German lawyer said. As he explained, only the Security Council could stop the prosecution of the case. It had considered it, but refrained from doing so, as this would have sent out a wrong message.

The second question dealt with the position of the Security Council towards the ICC. As Dr. Pallek stated, the Security Council derived its power from the Charter. He explained that the court could exercise its jurisdiction either if the accused was a national of a state that was a party to the Rome Statute or if the alleged crime had taken place on the territory of a state party, or if a situation was referred to it by the Security Council. Furthermore states that are not members of the ICC can accept the jurisdiction of the court for a crime in question, as for example Cote d’Ivoire did. However, the lawyer underlined that the court cannot deal with cases that happened before the entering into force of the Rome statute.

Concerning the following question, whether the ICC would become an executive organ in future, he answered: “We are not the police.” Another question took up the problem of amnesties. “Definitely, prosecution can disturb peace processes”, the expert said. He called amnesties a wrong message saying “you can get away with your crimes”. He expressed his confidence in the prosecution by mentioning that the International Criminal Tribunal for the former Yugoslavia (ICTY) had been able to try Milosevic, and that in the case of Sierra Leone, Charles Taylor had been brought to court. Therefore, he still hoped that the court would get “the big guys”. Other questions followed, concerning among others the participation of victims, the independence of prosecutors, a strengthening of the role of the ICC and the establishment of other tribunals by the UN. Dr. Pallek answered all of them very clearly and precisely.

In the end, we all had a much better understanding of the work of the ICC as well as international criminal prosecution in general. We are very grateful for this interesting briefing. Hopefully, Dr. Pallek enjoyed it to have visitors from his home country, too. At least, he seemed have liked the coffee mug from Freie Universität Berlin we had brought as a gift.

Marc Lendermann